October 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUCMANE JOSEPH DAZILME, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment No. 03-02-0144.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: August 27, 2008
Before Judges C.L. Miniman and Lihotz.
Defendant Lucmane Joseph Dazilme appeals from a February 3, 2006, judgment of conviction for third-degree possession of a controlled dangerous substance, to wit, heroin, in violation of N.J.S.A. 2C:35-10(a)(1). He was sentenced to a four-year term of incarceration without parole disqualification to be served consecutively to the sentences he was already serving on two separate, prior drug convictions in Union County. Defendant received credit for two days time served in October 2002 and 994 days gap-time credit for time spent in custody from May 16, 2003, through February 2, 2006. As a consequence, the real time to be served consecutively to the two other sentences was 465 days at the time of sentencing. This appeal followed.
Undercover narcotics officers conducting surveillance from a concealed location in Elizabeth on October 8, 2002, observed defendant approach the south end of Jefferson Park on a bicycle, stop, put the bicycle down, and stand next to a tree near the park. One officer recognized defendant and knew him on a first-name basis. Every time a car drove down the street, defendant would hide behind the tree, which the officer considered suspicious.
After five minutes, two Hispanic males approached defendant, spoke with him briefly, walked out of the officer's sight, and returned in two minutes. They again spoke to defendant, who then walked twenty feet to a grassy area near the sidewalk. Defendant picked up a brown paper bag, removed a small item, and replaced the bag. Defendant walked back to the tree, handed the item to the two men, and accepted money in exchange. The two Hispanic men left the area promptly.
Defendant was arrested by another officer when defendant left the area on his bicycle about ten minutes later. In the search incident to defendant's arrest, the police did not find any drugs on his person, but did find $718 in cash. The brown paper bag, which contained heroin in one glassine fold, was recovered from the grassy area.*fn1
After the State rested at trial, defendant called a family friend, Gary Delmas, and also testified in his own behalf. Delmas testified as follows: On the night in question defendant met him at the bus stop at the intersection of North Broad Street and Magnolia Avenue when defendant returned home from work at 9:10 p.m. The pair walked to the QuickChek on Magnolia Avenue, but it was closed. They then headed toward Delmas's home, but were stopped on the way by a group of plain clothes officers who arrested defendant and took Delmas's cell phone. No more than a few minutes had elapsed since Delmas arrived at the bus stop. Delmas claimed that he filed a complaint about his cell phone with Internal Affairs at the Elizabeth Police Department.
During the direct examination of Delmas, Delmas testified that defendant "told me he wanted to go [buy a] money order. He was going to get it from 400 North Broad Street." The State then objected that the answer was inadmissible hearsay. At sidebar, defense counsel argued that the testimony was admissible under the hearsay exception for statements of then-existing state of mind. The judge sustained the objection. The jury was not instructed to disregard this testimony given by Delmas.
Defendant then testified in the following manner: First, defendant denied ever being at Jefferson Park on the night of October 8, 2002. Rather, he went to North Broad Street to purchase a money order so that his mother could pay the rent. He met Delmas at the bus stop so that Delmas, who was under eighteen, would not have to be alone after curfew. Delmas arrived at the bus stop at 10:00 p.m. The store on North Broad was closed and so defendant and Delmas went to the QuickChek on Magnolia, which was also closed. Defendant and Delmas then began to walk to Delmas's home when defendant was arrested.
The arresting officer testified on rebuttal that defendant was alone when he was apprehended. The captain in charge of Internal Affairs also testified in rebuttal, stating that there was no record of a complaint filed by Delmas.
The jury returned its verdict on October 4, 2005, and defendant appeared for sentencing on February 3, 2006. At that time defendant was serving an aggregate sentence of thirteen years with no parole for five-and-a-half years. Defendant argued that he had not had a conviction for possession with intent for some period of time and it would be appropriate to impose a concurrent sentence, claiming that his last three convictions were for simple possession. In addressing the judge, defendant insisted that he was not guilty.
The State argued for consecutive sentencing because this was defendant's fifth indictable conviction and he had been adjudicated delinquent three times. The State pointed out that defendant was serving a nine-year sentence with four years of parole ineligibility for an offense that occurred on May 1, 2002. He was also serving a five-year sentence with sixteen months of parole ineligibility for an offense that occurred on September 14, 2002. The subject offense occurred while defendant was on bail.
The judge found aggravating factors three, six and nine*fn2 based on defendant's juvenile, municipal and Superior Court record. He concluded there were no mitigating factors and imposed the above-described sentence.
In this appeal, defendant raises two issues:
POINT I - IT WAS ERROR TO EXCLUDE HEARSAY STATEMENTS BY DEFENDANT AS TO HIS PLAN OR INTENT TO PURCHASE A MONEY ORDER UNDER THE EXCEPTION TO THE HEARSAY RULE AT N.J.R.E. 803(C)(3).
POINT II - DEFENDANT'S SENTENCE WAS EXCESSIVE.
Defendant asserts that the judge misconceived the state-of-mind exception to the hearsay rule when he determined that only defendant, not Delmas, could testify to what defendant said to Delmas. New Jersey Rule of Evidence 803 provides that the statements described in its various subparts "are not excluded by the hearsay rule[.]" Subsection (c) contains those statements that are admissible "[w]hether or not the declarant is available as a witness[.]" N.J.R.E. 803(c). The specific exception to the hearsay rule on which defendant relied at trial provides as follows:
A statement made in good faith of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health) . . . . [N.J.R.E. 803(c)(3).]
Defendant urges that the judge erred when he would not permit Delmas to testify to defendant's statement respecting his intent to purchase a money order at 400 Broad Street. As a consequence, he contends that we should reverse his conviction.
The State now concedes that the judge should have admitted the testimony to which the State objected. However, the State argues that the error was harmless because defendant himself testified to his intent to purchase a money order at 400 North Broad Street.
Rule 2:10-2 provides: "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ."
The test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. 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. State v. Macon, 57 N.J. 325, 335-336 (1971). Or, as stated in Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed. 2d 171, 173 (1963), "The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." [State v. Bankston, 63 N.J. 263, 273 (1973).]
We review violations of the hearsay rule in accordance with this test. See State v. Douglas, 204 N.J. Super. 265, 272-73 (App. Div.), certif. denied, 102 N.J. 378 (1985), and certif. denied, 102 N.J. 393 (1986).
We are satisfied under this standard that the error in the judge's ruling was harmless, first, because the jury was not instructed to disregard the testimony; second, because defendant testified to his intent to purchase a money order at 400 North Broad Street; and third, because the evidence had no potential to affect the verdict in this case. See State v. Norman, 151 N.J. 5, 31, 33 (1997).
Defendant's excessive-sentence argument arises under State v. Yarbough, 100 N.J. 627 (1985), where the Supreme Court adopted the guidelines promulgated by the United States Sentencing Commission in fashioning concurrent or consecutive sentences for a multiple offender.
These various provisions reflect some of the common concerns expressed in the various models of sentencing reform that have been promulgated over the last two decades. . . . Although varying in content, these disciplines reflect, in whole or in part, the following criteria:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses. [Id. at 643-44 (footnotes omitted).]
Defendant argues that the same crime was committed in the same neighborhood of Elizabeth over a four-month period, no violence or injuries occurred, and his crimes clearly reflect a pattern of conduct limited in time and place. Thus, he urges that the judge was mistaken in exercising his discretion to impose a consecutive sentence.
At the time of sentencing on this case, defendant was serving a nine-year term for his May 1, 2002, offense of second-degree possession of cocaine with intent to distribution within 500 feet of a public park. He was also subject to a five-year term for his September 1, 2002, offense of third-degree possession of cocaine. Defendant committed this crime while he was on bail in connection with his two earlier offenses.
"There can be no free crimes, and separate crimes ordinarily deserve separate punishment." State v. Johnson, 309 N.J. Super. 237, 271 (App. Div.), certif. denied, 156 N.J. 387 (1998). Consecutive sentencing is appropriate where there are "clearly separate offenses independent of one another, and committed at different times." State v. S.C., 289 N.J. Super. 61, 70 (App. Div.) (three offenses committed over a one week period), certif. denied, 145 N.J. 373 (1996); see also State v. Bauman, 298 N.J. Super. 176, 211-12 (App. Div.) (affirming consecutive sentences where the crimes were committed over a three-day period), certif. denied, 150 N.J. 25 (1997).
Although all three crimes involved possession or distribution of two different controlled dangerous substances, they were clearly separate, independent offenses committed over a significant period of time. This was hardly a two-day crime spree. Because the sentencing was done separately, there was no double counting of aggravating factors. Furthermore, this consecutive sentence of four years did not exceed the sum of the two earlier-imposed sentences. As a consequence, we find no mistaken exercise of discretion in this matter.