August 27, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KIMSI VAUGHN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, 06-06-0887.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2008
Before Judges R. B. Coleman and Sabatino.
Defendant Kimsi Vaughn appeals from a March 23, 2007 judgment of conviction (JOC) entered following a jury verdict finding him guilty of the two counts charged against him in Indictment Number 06-06-0887, returned by an Ocean County Grand Jury: third degree possession of a controlled dangerous substance (CDS), namely cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count one), and second degree possession of a CDS in a quantity of one-half ounce or more, but less than five ounces, with the intent to distribute, contrary to 2C:35-5a(1) (count two).*fn1 After reviewing the record in light of the contentions advanced on appeal, we affirm.
The matter was tried to a jury over a period of three days in January 2007. At the conclusion of trial, the jury found defendant guilty as charged.*fn2 On March 16, 2007, the trial judge, sitting as the trier of fact, also found defendant guilty of the disorderly persons offense of possession of drug paraphernalia, in violation of N.J.S.A. 2C:36-2. On that same date, at his sentencing proceeding, defendant moved for a new trial. That motion was denied. Because defendant had previously been convicted for distribution or possession of CDS with intent to distribute, the court determined, without contest from defense counsel, that defendant was subject to extended term sentencing, pursuant to N.J.S.A. 2C:43-6f. The court then sentenced defendant on count two to twenty years in prison with a ten-year period of parole ineligibility, plus applicable penalties and fees. Count one was merged into count two, as was the conviction on the disorderly persons offense. On May 24, 2007, defendant filed the instant appeal.
The pertinent facts are as follows: on April 6, 2006, Officer Oscar A. Valmon and other law enforcement officers of the Lakewood Township police department executed a search warrant at 205 Bruce Street. When the officers entered the premises, they saw defendant and co-defendant Willie White sitting in the living room. The officers placed both men in "flex cuffs" so that they could not attempt to interfere with the search. Valmon then presented a copy of the search warrant to the two men. Prior to arresting the two men or issuing them a Miranda warning, Valmon asked them where the drugs were located. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). Defendant responded "in the night stand," and co-defendant remained silent.*fn3
Thereafter, Valmon and the other officers conducted a search of the premises, documenting the items seized and preserving them as evidence. In the course of their search, the officers found the following: in the first bedroom, crack cocaine, digital scales, a penny scale and packaging materials; and, in the second bedroom on top of a dresser, co-defendant's wallet containing his identification, a quantity of crack cocaine, some packaging equipment and materials and a digital scale. The officers also found an envelope addressed to defendant.
At trial, Valmon testified that on prior occasions he had observed defendant either coming or going from 205 Bruce Street. He further testified that the residence did not contain any evidence of paraphernalia that could be used to ingest crack cocaine. Captain Jeffrey Bissey of the Ocean County Prosecutor's Office, testifying as an expert on behalf of the State, indicated that the quantity of cocaine in conjunction with the type of paraphernalia seized at the residence suggested that the drugs were possessed with the intent to distribute, rather than for personal use.
On appeal, defendant presents the following arguments for our consideration:
POINT I: THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE APPLICATION FOR A MISTRIAL FOLLOWING A POLICE OFFICER'S TESTIMONY ABOUT A STATEMENT OBTAINED IN VIOLATION OF THE DEFENDANT'S MIRANDA RIGHTS.
POINT II: THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR A JUDGMENT OF ACQUITTAL.
POINT III: THE DEFENDANT'S SENTENCE IS EXCESSIVE.
In a supplemental brief, defendant raises the following arguments for our consideration:
ARGUMENT I: DOES THE TRIAL COURT COMMIT ERROR BY VIOLATING THE SUPREME COURT'S DIRECTIVE OF MODEL VOIR DIRE QUESTIONS, THEREBY DENYING A SUBSTANTIAL RIGHT?
A.) CIRCUMVENTION OF THE SUPREME COURT'S MANDATE, IN THE ABSENCE OF AN EXPRESSED WAIVER BY DEFENDANT, CREATES A PRESUMPTION OF PREJUDICE AMOUNTING TO PLAIN ERROR.
ARGUMENT II: APPELLANT WAS PREJUDICED BY THE TRIAL COURT'S SUSTAINING OF INADMISSIBLE EVIDENCE, AND THE FAILURE TO GIVE TIMELY CURATIVE INSTRUCTIONS TO CUMULATIVE TRIAL ERRORS.
Defendant contends that the following portion of Valmon's testimony warranted a mistrial because the court had ruled that the disclosed information pertaining to statements made by defendant was inadmissible:
Q: What room did you search first?
A: We did bedroom number one first.
Q: You searched bedroom number one. I notice you referred to it now in my questioning as bedroom number one. When the prosecutor was questioning you about it you referred to it as Kimsi Vaughn's bedroom, correct?
Q: At the time you searched that you referred to as Kimsi Vaughn's bedroom, you hadn't even found this bill yet, correct?
A: That is correct.
Q: Now, you didn't find it in there, correct?
A: No, I did not.
Q: Okay. And when you ultimately searched him -- you searched him later, correct?
A: That is correct.
Q: And when you searched him did you find anything on him to suggest that that bedroom was his? Anything on his person?
A: Nothing on his person.
Q: And you [Valmon] testified that you searched bedroom number one and you found drugs and you found paraphernalia, correct?
A: That is correct.
Q: And you found clothes, correct?
A: That is correct.
Q: And you testified that they were Kimsi Vaughn's clothes, correct?
A: That is correct.
Q: Do you have any basis for that?
A: Again, I don't know if I could say, but he did tell me that was his room prior to me going --
[Defense Counsel]: Objection, Judge.
Defendant's argument that the denial of a mistrial warrants a reversal lacks merit. "A motion for a mistrial is addressed to the sound discretion of the court; and the denial of the motion is reviewable only for an abuse of discretion. The power is to be exercised with the greatest caution, in the furtherance of justice between the accused and the State." State v. Witte, 13 N.J. 598, 611 (1953). In State v. Winter, 96 N.J. 640, 646-47 (1984), the Court stated:
The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.
The Court further articulated: when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court. The adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached. See State v. Macon, 57 N.J. 325, 335 [(1971)] ("No matter how a test may be stated, the question whether an error is reason for reversal depends finally upon some degree of possibility that it led to an unjust verdict."). However, even in the context of an error of constitutional magnitude, this Court has stated that "not 'any' possibility can be enough for a rerun of the trial. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Id. at 336. [Id. at 647.]
We do not find that the trial court's denial of defendant's motion for a new trial constitutes an abuse of discretion.
First, the trial court issued a limiting instruction, stating that Valmon's statement was inadmissible and must be disregarded by the jury. Moreover, the other evidence of defendant's guilt presented at trial demonstrates that this error did not cause the jury to reach a different verdict. The State established that the residence had two bedrooms, that co-defendant White's wallet and identification were on a dresser next to a quantity of drugs in one bedroom, that there was found in the living room a bill addressed to defendant at that location, that there was clothing and other personal belongings in the second bedroom and that Valmon observed defendant entering and returning to the residence on several prior occasions. Although much of this evidence is circumstantial, it certainly is sufficient for a jury to find beyond a reasonable doubt that defendant resided at the residence and occupied the second bedroom. We cannot conclude that the trial court abused its discretion by denying defendant's motion for a mistrial. At the direction of the court, the State studiously avoided the disclosure of defendant's pre-Miranda statement in which he indicated bedroom one was his bedroom. That disclosure came on cross-examination when defense counsel asked an open-ended question, "Do you have any basis for that [the belief that the drugs, paraphernalia and clothing in bedroom one were defendant's]." The witness's answer was responsive and truthful.
Defendant's next argument, that the court erred by denying his motion for a judgment of acquittal, also lacks merit. At the end of the State's proofs, defendant moved for a judgment of acquittal on the grounds that the State had failed to provide sufficient evidence of defendant's constructive possession of the CDS. The court denied that motion, noting that the facts mentioned above were not refuted and were "facts from which a reasonable jury could conclude from all of the evidence that's presented in the most favorable light to the State that there is proof beyond a reasonable doubt that these individuals possessed, constructively, that cocaine . . . ."
A court may order a judgment of acquittal if the evidence presented is insufficient to warrant a conviction. R. 3:18-1. On the other hand, "[w]e are required to sustain the trial judge's denial of a motion to acquit if, 'viewing the State's evidence in its entirety, be that evidence direct or circumstantial,' and giving the State the benefit of all reasonable inferences, 'a reasonable jury could find guilt of the charge beyond a reasonable doubt.'" State v. Milton, 255 N.J. Super. 514, 521 (App. Div. 1992) (quoting State v. Reyes, 50 N.J. 454, 458-59 (1967)).
Defendant relies on State v. Brown, 80 N.J. 587, 593 (1979), for the following proposition:
Where . . . a defendant is one of several persons found on premises where illicit drugs are discovered, it may not be inferred that he knew of the presence or had control of the drugs unless there are other circumstances or statements of the defendant tending to permit such an inference to be drawn.
In the present case, there are "other circumstances" that permit an inference to be drawn that defendant possessed the CDS. Among other circumstances, his regularly-observed presence at the premises and the presence of an invoice directed to him at that address suffice to satisfy the standard set forth in Brown, supra.
Defendant's reliance on State v. Jackson, 326 N.J. Super. 276 (App. Div. 1999), is also misplaced. In Jackson, the court granted the defendant a judgment of acquittal with regard to cocaine found in a dresser because "the State did not prove nor even contend that defendant resided at the subject apartment, no indicia of identification was found on the premises and none of the vials containing cocaine were tested for fingerprints." Jackson, supra, 326 N.J. Super. at 281 (quoting Milton, supra, 255 N.J. Super. at 523). There, the court further remarked "there was nothing in the State's case from which a jury could 'readily draw the inference that the occupant of such premises would have knowledge and control of its contents.'"
The present case is dissimilar from Jackson, supra, because the prosecutor in this case alleged and provided evidence from which the jury could find that defendant resided in the premises. The present case is further distinguishable from Jackson, supra, because, as stated above, the State provided additional evidence from which a jury could have drawn the inference that defendant, as a resident of the premises, had knowledge and control of its contents. Thus, the trial court did not err when it denied defendant's motion for a judgment of acquittal.
Defendant asserts that his sentence was excessive. That argument is not persuasive. An appellate court may modify a sentence if it is "clearly mistaken." State v. Jarbath, 114 N.J. 394, 401 (2000). It is not the job of an appellate court to second-guess a trial court's findings regarding aggravating and mitigating factors if they are supported by substantial credible evidence in the record. Ibid. It is the function of an appellate court to determine: (1) whether the facts regarding aggravating and mitigating factors are based on competent evidence; (2) whether the factfinder applied the correct sentencing guidelines; and (3) whether the application of the facts to the law "is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
In the present case, the court's findings regarding aggravating and mitigating factors are supported by the record. The trial court found that the following aggravating factors were applicable: (3) the risk that defendant will commit another offense; (6) the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; and (9) the need for deterring the defendant and others from violating the law. N.J.S.A. 2C:44-1a.
Defendant has a lengthy history of criminal activity, including an adult record that includes eleven indictable offenses and six municipal level offenses, as well as several juvenile offenses. Thus, the trial court appropriately found that factors three, six and nine applied. As the trial court pointed out, the only time defendant appeared not to have been selling drugs was during his previous incarcerations. It was also appropriate that the trial court recognized mitigating factor two, but gave minimal weight to that factor. Though the defendant may not have contemplated that his conduct would cause or threaten serious harm, the court pointed out that this type of crime does, in fact, victimize society. N.J.S.A. 2C:44-1b.
We are satisfied by our review of the transcript of the sentencing hearing that the trial court appropriately applied the applicable sentencing guidelines. The extended term was mandatory in accordance with N.J.S.A. 2C:43-6(f), due to defendant's prior convictions for possession of a CDS with intent to distribute. Indeed, at sentencing, defendant's counsel acknowledged that an extended term should apply.
Defendant argues, however, that the trial court erroneously used the same prior offense to justify the imposition of both the extended term and the maximum within the statutory base term. We disagree. Based on defendant's significant criminal history, which includes multiple convictions for possession of a CDS with the intent to distribute, the trial court did not rely on a single offense in order to impose both an extended term and the maximum within the statutory range. Defendant has multiple prior convictions justifying the imposition of both an extended term and a maximum base term. Defendant's sentence of twenty years imprisonment with a ten-year parole ineligibility period does not exceed the applicable guidelines for an extended term for a conviction of a second degree crime. N.J.S.A. 2C:43-7a(3). The sentence does not shock the judicial conscience of this court. Thus, we reject defendant's claim that the sentence is excessive.
In his supplemental brief, defendant argues that the voir dire method used by the trial court deprived him of a fair trial. More specifically, defendant contends that the trial court did not adhere to the Administrative Office of the Courts Directive #21-06. Defendant is correct, that the trial court deviated from the procedure prescribed by Directive #21-06. See, e.g., State v. Morales, 390 N.J. Super. 470, 474-75 (App. Div. 2007) (interpreting the directive as leaving only a limited amount of judicial discretion). However, this does not necessitate reversal.
The subject directive was short-lived.*fn4 It was amended by Directive #4-07 shortly after defendant's trial. The amendment allows a trial court to proceed in voir dire proceedings using procedures that are similar to those they had used prior to the enactment of Directive #21-06. In State v. Wagner, 180 N.J. Super. 564, 567 (App. Div. 1981), we explained that:
It is vital that juries be selected in a manner wholly free from taint and suspicion. To that end the pertinent practice safeguards in the statute must be carefully observed. There are times, even in the absence of prejudice to a defendant, when it is essential to insure future observance of a prescribed practice safeguard or the vindication of a fundamental principle that courts should not hesitate to reverse.
Here, reversal is not justified in order to insure its future observance, and it cannot be said that Directive #21-06 was a fundamental principle.
The jury selection process in this case complied with the standards set forth in both Rule 1:8-3 and State v. Oates, 246 N.J. Super. 261 (App. Div. 1991), and was not plagued by irregularities. Cf. Wagner, supra, 180 N.J. Super. at 566-68. Therefore, the trial court did not deprive defendant of a fair trial.
Finally, defendant's argument that the trial court's cumulative errors constitute plain error and require a new trial is without merit and does not warrant further written discussion. R. 2:11-3(e)(1)(E).