On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-08-0819.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and C.S. Fisher.
Defendants Dawmeen Fitzgerald, Dawshon Fitzgerald, Dawud Fitzgerald, and John Fitzgerald, were charged in an indictment, along with thirteen co-defendants, with numerous drug trafficking offenses. The Fitzgeralds were tried together from February 24, 2005 to March 15, 2005. Dawmeen, Dawshon and Dawud were found guilty on all counts; John was found guilty on only some. The State successfully moved for the imposition of an extended term for each defendant, and, on April 22, 2005, Dawmeen, Dawshon and Dawud were each sentenced to an aggregate term of life, plus one-hundred years, with a sixty-five year period of parole ineligibility. John was sentenced to an aggregate term of life, plus forty years, with a fifty-year period of parole ineligibility.
All four defendants appealed. We calendared these appeals together, and now, by way of this single opinion, affirm their convictions and remand for resentencing.
Defendants, Dawmeen, Dawshon and Dawud, are brothers; John is their uncle. Much of the evidence presented by the State at trial against these four defendants was obtained as a result of wiretap applications and search warrants; the State also presented the testimony of police officers and two co-conspirators. This evidence permitted the jury to find that defendants operated a large-scale drug distribution network.
In gathering this evidence, the police applied for and were permitted in November 2002 to intercept calls to phone numbers assigned to Tamisha Fitzgerald, 17 Mravlag Manor, Elizabeth. By way of a 281-page affidavit dated December 16, 2002, the police obtained "no-knock" search warrants for various locations in Elizabeth, Newark and Roselle.
The warrants were executed at ten different locations in Elizabeth, Newark and Roselle at 6:00 a.m., on December 17, 2002. In considering the weight of the evidence amassed by the State against defendants, it is helpful to review the results obtained from the search warrants.
1. 82 Second Street, Apartment Two, Elizabeth*fn1
The police forced open the doors of this apartment and chased Angel Aviles, Shariek Hiett and Duane Wells, to the third floor. Wells "discarded some narcotics," later confirmed to be twenty bags of heroin, as he ran. All were quickly apprehended. Kiahna Hall, Terry Williams, Sherrod Britt, Cynthia Lewis, Leon Jenkins and Erick Faulk were also found inside the apartment. When the police ordered Aviles, Hiett and Wells to show their hands, Hiett placed six "bricks" of heroin on the step next to him.*fn2
The heroin discarded by Wells was an "open brick."
After the individuals found in the apartment were "transported for processing," thirty-three gold-capped vials*fn3 containing cocaine were found on the floor where Wells was seated; Wells was also found in possession of $79 in cash. Aviles had six bags of heroin in his right pants pocket and $126 in cash. The police found five bricks of heroin wrapped in "lottery paper" in a Knicks jacket, as well as a Nextel cell phone, charger, binoculars, and two Motorola "walk about walkietalkies" in the kitchen. The cell phone recovered was identified as one of the phones subject to the wiretap. Its directory included private service numbers, which allowed the use of the "push-to-talk" or a "direct connect number" for Dawshon and Dawud; both of those phone numbers were also subject to the wiretap. The directory of the seized cell phone included telephone numbers for, among others, co-conspirators Tyshon Jones, Charlotte Hall, Marc Stuckey, Jamarl Maye, and Aviles.
At trial, Aviles and Britt testified for the State that the CDS found in the apartment was "possessed with the intent to distribute." Aviles identified the "Rush" stamp on the heroin envelopes as the "Fitzgerald brand heroin," which was being sold at the apartment that morning. Britt testified that the cocaine belonged to Dawmeen.
In one of the bedrooms, the police found $187 in cash on top of a dresser. On a coat rack in another bedroom, the police found a "Phat Farm brand coat" containing five bricks of heroin and another jacket containing 100 vials of suspected cocaine. In a third bedroom, police found $464 in cash in a dresser and a record book with the words "record holla" on the cover; Aviles testified at trial that this book contained "drug records in terms of how much have [sic] been received and sold and money passed back." A "red talk about radio walkie-talkie" was found in a coat in the front bedroom. Aviles testified that the walkie-talkies were used by the lookouts outside of the building.
2. 84 Second Street, Apartment Four, Elizabeth
The six-unit apartment building at 84 Second Street is "connected physically" to the buildings at 80 and 82 Second Street. Once secured, the police found Amatullah David and Jahmin Muse in the first bedroom and Marc Stuckey in the second bedroom. The police seized $208 from Stuckey and $195 from David.
In the room where Stuckey was found, the police found "items that are consistent with packaging of drugs for distribution" -- namely, two digital scales, two tape dispensers, an empty box of sandwich bags, a box of small wax or glassine envelopes, an ink pad and two boxes of rubber bands.*fn4 A small ceramic saucer and a small "utensil type of tool" with a spoon on one end and point on the other were found in the same location.
In the closet, the police found a pair of black Adidas tennis shoes containing twenty-four wax envelopes of heroin, two pink-capped vials of cocaine and another bag of cocaine. On the floor of the closet were two other bags -- one bag contained fifty vials of cocaine with either pink or blue caps and two wax envelopes of heroin, and the other bag contained twenty bags of vial caps in various colors, twenty boxes of vials, and some wax envelopes. A child's backpack, also found in the closet, contained four boxes of empty wax envelopes (some were stamped "Mo Money" in blue ink), two ink stamps for "Mo Money" and "Da Take Over," three blue ink stamps, a metal strainer, a small glass pestle and a bag with suspected cocaine. According to expert testimony, the stamps are of the type used to designate the dealer's "brand name."
The search also uncovered surveillance equipment, namely, a small camera on the back porch pointed at the stairs and connected to a monitor in the living room of the apartment. In the kitchen, the police found "several hundred very small empty plastic ziploc type bags." Walkie-talkies were found in the first and third bedrooms.
3. 42G Mrvalag Manor, Elizabeth
The police found Dawmeen, Laquanda Boone and a child under the age of one inside this apartment. No drugs were found.
In a basket of papers in one of the bedrooms, the police found Dawmeen's birth certificate and a letter addressed to "Doc" at 651 Elm Street in Roselle. Also found was $39,796 in cash in a dresser drawer and $16,000 in cash in a laundry basket next to the dresser. In the other bedroom, the police found $2,352 in cash in a purple bag stashed between the mattress and springs of a baby crib. In the living room, the police found a bag containing $31,000 in cash that fell out when the couch was flipped over.
The police found a Nextel cell phone that had "connections" to the phones subject to the wiretap used by Dawshon and Dawmeen.
4. 636 Franklin Street, Second Floor, Elizabeth
After forcibly entering this apartment, the police found Dawud, Laverne Graves and Melissa Jeter inside. No drugs or drug paraphernalia were recovered.
Two cell phones were found. One of the phones was subject to the wiretap and contained several "entries," including the push-to-talk numbers for Dawmeen, Dawshon and other co-conspirators.
The police also found mail addressed to Dawud at 636 Franklin Street, second floor, Elizabeth, a letter addressed to "Duke" and "Dukeman," and a New Jersey picture identification of Dawud.*fn5 The police also found a car title in the name of Aviles.
Sergeant John Murphy testified that he found $6,010 in cash in a "red Madeline bag" at the foot of the bed in the front bedroom of the first floor. Although Murphy testified that he searched the first floor, the State sought to prove that Murphy's recollection was incorrect and that he actually searched the second floor, which was covered by the search warrant. Another officer testified that he recalled Murphy searching the second floor apartment with him. And a detective testified that he received the $6,010 in cash from Murphy and, although he did not know which floor it was recovered from, he testified that Murphy searched the second floor of the apartment where he (the detective) had also been searching.
Paperwork, receipts, photographs and a checkbook were found in a shoe box in a closet in the front bedroom. A receipt showing that Dawud, listed as "Duke Fitzgerald," paid $2,000 for the November 2002 rent on 82 Second Street, apartment two, was also found in that box.
In the back bedroom, the police found $437 in cash, and a pair of pants containing Dawud's New Jersey driver's license, which listed 636 Franklin Street as his residence.
5. 307 Clinton Place, first floor front apartment, Newark
This location is within 100 feet of an elementary school. The police found the first-floor front left apartment empty; it did not appear to be lived in "on a regular basis." In the bedroom night stand, the police found two handguns: an Intratec 9 (Tec-9) and a Glock .40 along with an extended clip. The police also found a loaded .32 caliber handgun with four extra rounds in a dresser, and a digital scale still in its original packaging in a hall closet.
The Tec-9 was found to be operable, with a capacity of over fifteen rounds. Aviles testified that both the .32 and .40 caliber weapons were kept at 82 Second Street, and at times he carried the Tec-9 for protection. Britt testified that he also carried the Tec-9 when he left the building, and the .40 caliber gun belonged to Muse.
6. 651 Elm Street, Roselle
When the warrant was executed, Laverne Jackson, Jameica Jackson, and three children, between the ages of six and twelve years old, were found inside. Franklin Jackson, Sr. was stopped by the police outside of this single-family residence.
In the first floor bedroom where Jameica was sleeping, police found $431 in cash. In the same room, they found a plastic bag containing $6,001 in cash, and two Gucci bags, each containing $2,400 and $2,000 in cash. The police also found a small unlocked safe containing $93,515 in cash and a plastic bag with $1,810 in cash. The parties stipulated that the police found several bags containing paperwork in a bedroom closet, including letters and bills addressed to Dawmeen at 651 Elm Street.
A green container, found in the master bedroom, contained various bills in the name of Jackson, Sr., and a May 28, 2002 bail receipt signed by Jackson, Sr., for Britt. A large locked safe was found in the master bedroom containing $445,450.
7. 414 Franklin Street, Elizabeth
The police forcibly entered this single-family house. In a bedroom where Theodore Wayne Patterson was located, the police found a grinder with a "yellowish white" residue, a scale, "a jar containing a white powdery substance," which was later determined to be baking soda, thirty-eight bags of 100 gold caps each, and twenty-eight boxes each of which contained 100 clear vials, which are typically used to hold cocaine and heroin.
8. 271B Third Street, Elizabeth
In the rear bedroom, the police found a shoe box on top of a pile of clothes behind the door. Inside the box were various items, including stamp pads, tooth brushes, loose rubber bands, a phone card, soap with a white powdery substance on it, and a box of glassine envelopes. In the same pile, the police found a plastic bag with nineteen more boxes of glassine envelopes and a bag with "a brown substance in it."
9. 307 Clinton Avenue, first floor rear apartment, Newark
Tyshon Jones was found inside this apartment. In a hall closet, police found a "Papaya bag" containing rubber stamps, stamp ink pads, dust masks, a small digital scale, and a ziploc bag containing smaller ziploc bags. Other similar materials were found in other locations in the apartment.
In the pantry, the police found three plastic bags that contained smaller bags with "a white rock-like substance" in one bag, a brownish powder in two others, and two dinner plates holding suspected drug residue. A "Sprint phone document" bearing the name Tyshon Jones was found in the kitchen hutch along with a black plastic bag filled with "a powder." On the table, police found a white plastic bag with four razor knives. Two Western Union receipts in Jones's name were found above the refrigerator.
In a dresser in the master bedroom, the police found nineteen rubber stamps, several plastic spoons, ink pads, a bottle of ink, playing cards, and a card bearing the name Angel Aviles. Aviles testified that he left his plastic identification card there "so we could use it to chop up the dope." A Sprint cell phone was found on the floor near the window. Also found was a cable television bill in name of Jones and a Nextel cell phone bill in the name of Tamisha Fitzgerald.
In the second bedroom, police found sixty cardboard boxes containing approximately 36,000 glassine bags; some were marked with a stamp and others were new and unused. The closet also held boxes of scotch tape, tape dispensers and "thousands" of rubber bands in boxes. A box with 162 glassine envelopes were stamped and contained a white powdery substance. The closet also contained a folded white paper with white powder in it, a bottle of quinine, and a black "Dr. Jay's bag" containing various packaging material and an identification card for Aviles.
In a hall closet, police found eight electric coffee grinders, some of which appeared to have been used for "grinding some type of white powder."
10. 607 South Park Street, second floor, Elizabeth
After forcibly entering this single-family residence, the police found Dawshon and Jewel Jones in one bedroom; Jewel Jones's adult brother and two small children were found in other bedrooms.
The police found two digital scales and seven boxes of ammunition for .40, .45 and .38 caliber weapons in a utility closet. In the master bedroom, police found Verizon cellular telephone bills in Dawshon's name, utility bills in Dawshon and Jewel Jones's name showing an address of 607 South Park Street, a $1,698.16 Nextel phone bill in the name of "Tamisha Fitzgeral[d]," a gas bill addressed to Jewel Jones at 311 Franklin Street, a gas bill addressed to Dawshon at 607-609 South Park Street, a December 1, 2002 rent receipt with the name Terry Williams and an address of 82 Second Street, apartment two, Elizabeth, a money counting machine, a letter from Tyshon Jones addressed to Dawud and Dawshon, a bank card and a New Jersey identification card in Dawshon's name in the dresser, a "drug record" notebook with dates and numbers, a bag of cash in the dresser, a bag of cash in the entertainment center, and two Nextel phones. The police also discovered "thousands of dollars in cash" in plastic bags, a shoe box and dresser drawers. In total, the apartment search uncovered $90,728 in cash.
One of the phones that was seized there was subject to the wiretap. The "address portion of the phone" had three "entries" for Dawmeen, including his home and push-to-talk number. There were also entries for other co-conspirators. A second phone that was found belonged to Jewel Jones and had listings for Dawshon and Dawud at numbers that were subject to the wiretap.
Along with the considerable evidence obtained through the execution of search warrants and wiretaps, the State presented at trial the testimony of Aviles, who testified that he was "engaged in the active distribution of narcotics" during the time of the investigation, i.e., November 19 to December 17, 2002.*fn6 Aviles testified that he and other "workers" were paid each week by Dawshon, Dawud, or someone else on their behalf, from "a bundle of cash."
Tapes of intercepted calls were played for the jury, and Aviles testified as to the individuals involved and interpreted the content of the conversation for the jury.
In the first conversation played for the jury, Dawud told Aviles that a "narco" or police car with a specific license plate was in the area and directed the workers selling drugs at 82 Second Street to be careful. Using walkie-talkies, Aviles then warned the lookouts. In other calls, Dawud gave Hiett approval to sell a whole brick of heroin for $300, rather than the normal price of $350, checked on the supply of drugs, and whether they "opened" for business on time. In one call, Dawud checked with Tyshon Jones to make sure they had enough heroin to package.
In another conversation, Dawmeen called to warn about police in the area and to determine whether Aviles either had "locked down" or already "closed down the house," meaning a cessation in the selling of drugs. Almost one-half hour after one call, Dawmeen called back to report that "everything's clear," and Aviles "[r]eopened" for business. Aviles testified that he spoke to defendants about police activity in the area "[a]lmost on an everyday basis." In another conversation, Dawmeen called Aviles to complain that the lookouts were just sitting on the porch and instructed Aviles to get them to their "post[s]." Dawmeen also called to check on the supply of cocaine.
In several conversations played for the jury, Aviles called Dawshon and said "[n]eed you," or "down to our last ten," meaning he was running low on drugs. In another call, Hiett told Dawshon to bring more heroin. Dawshon also called Aviles to check on how many bricks of heroin Aviles had left.
There were other conversations in which Dawshon called about a shortage of money or about keeping the money for the cocaine and heroin separate. For example, Dawshon called Aviles to report that he got only $136 for a brick of heroin, when the normal price was $350. They then argued about someone named April who "took a hundred," meaning $100, and "two wake-ups," meaning two bags of dope.*fn7
Dawshon placed another of these calls because Aviles had paid Dawud for fourteen bricks, instead of fifteen bricks, and Aviles had to go outside to bring Dawshon the rest of the money.
Dawshon also spoke to Aviles when the $350 bricks were "coming up 300" instead. On several occasions, Dawshon told Aviles that he would be held responsible for the difference in price if bricks were sold for $300 ...