November 17, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AHMED REED, DEFENDANT-APPELLANT.
On appeal before Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-05-1557.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2008
Before Judges Payne and Lyons.
Defendant Ahmed Reed was arrested during a "buy and bust" drug operation. He was charged, found guilty, and sentenced on seven drug-related offenses. He now appeals, claiming that the State violated the Bankston rule,*fn1 the State impermissibly mentioned the Office of the Public Defender in questioning a defense witness, and his sentence was manifestly excessive. Based on a careful analysis of the record on appeal and the applicable law, we affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. In response to a citizen's "complaints" of drug activity in the area around 8 Vincent Court, Newark, New Jersey, police officers conducted a "buy and bust" operation at that locale. On March 15, 2006, at approximately 11:30 p.m., Newark Police Officer Phillip Turzani went to 8 Vincent Court, a public housing complex, along with Officers Richard Weber, Jimmy McCoy and Javi Rivera. Officer Weber was to act as a "shadow" for Officer Turzani, who would attempt to conduct the "buy and bust" operation. Both officers were undercover and dressed in plain clothes. Officers McCoy and Rivera were to remain outside of the complex but still in the immediate area.
Upon entering the hallway of 8 Vincent Court, Officer Turzani testified that he was immediately approached by defendant who was standing alone in the hallway. Defendant then stated, "I got that cookie," a street term referring to crack cocaine. In response, Officer Turzani said "let me get one" and handed defendant a ten-dollar bill, one which had been previously photocopied and logged from the Newark Police Department's narcotics fund. Defendant then walked up a flight of stairs and entered apartment 1B on the first floor. The apartment door was unlocked, and the residence appeared to be abandoned.
The officer further testified that, after entering the apartment, defendant retrieved a black magnetic key holder and removed an item from inside. He then handed Officer Turzani a small zip lock baggie of what was later identified as crack cocaine. At that point, Turzani and Weber identified themselves as police officers; defendant responded by running back into the apartment. After a short chase, the officers arrested defendant in the kitchen of apartment 1B. Officer Weber recovered the black magnetic key holder, containing three small baggies of crack cocaine. As part of a search incident to defendant's arrest, the police found the ten-dollar bill given to defendant by Officer Turzani for the buy, as well as an additional $51 on his person.
According to the police, no other individuals were present inside apartment 1B at the time of defendant's arrest. The electricity was on in the apartment, but the officers did not observe the presence of a television, Playstation, or table. Officer Turzani testified at trial that 8 Vincent Court is located within 1000 feet of the Hawkins Street Elementary School in Newark, and 8 Vincent Court is itself a public housing project.
Erica Ellis, the lone defense witness, gave a much different account of the evening. She resided at 9 Vincent Court on the evening of March 15, 2006. She stated she entered 8 Vincent Court at 10:30 p.m. that night with the intention of purchasing cocaine. She testified she was using drugs on a regular basis and admitted to consuming five to six dime bags of cocaine per day.
Once in 8 Vincent Court, Ellis said she encountered two men. At trial, she claimed to have not known these men previously and had no idea that they were undercover police officers. According to Ellis, the officers noticed drugs in her hand and asked her to get some for them. The officer handed her ten dollars for the purchase.
To procure the drugs, she proceeded to apartment 1B in the building. She claimed at trial to have purchased drugs from a man named "Joey" in that apartment. She also testified to seeing defendant in that apartment at that time playing with a Playstation in the living room.*fn2 She testified that she knew defendant from the area and acknowledged that he regularly got high in apartment 1B. After making the purchase, Ellis stated she gave the drugs to one of the men in the hallway. Instead of arresting her, the men pushed her aside and ran up the stairs to apartment 1B. Ellis, however, testified she made her way to the second floor where she heard the officers kick the door to 1B. She did not witness the arrest by the officers of defendant.
On November 21, 2006, Ellis had given a voluntary statement to an investigator in the Public Defender's Office. In that statement, she identified the men who asked her to purchase cocaine as undercover police officers. In her statement, she also stated that she purchased two dime bags from Joey, one for the officers and one for herself.
On cross-examination, Ellis admitted that she would be willing to lie if she thought it benefited herself. However, she did not believe her trial testimony would provide her with any personal benefit and she was, at the time of trial, enrolled in a drug treatment program.
On May 15, 2006, a grand jury in Essex County returned Indictment No. 06-05-1557 charging defendant Ahmed Reed with seven counts, including: third degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count 1); third degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) & -b(3) (count 2); third degree possession of cocaine with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count 3); second degree possession of cocaine with the intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count 4); third degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) & -b(3) (count 5); third degree distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7 (count 6); and second degree distribution of cocaine within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count 7).
The matter came to trial on January 10 and 11, 2007. At the conclusion of trial, the jury found defendant guilty of all seven charges against him. On March 8, 2007, the trial court, after merging various counts, sentenced defendant to a six-year prison term with a three-year parole disqualifier, along with the appropriate fines and penalties on the two remaining second degree offenses.
On appeal, defendant presents the following arguments for our consideration:
POINT I: THE COURT ERRED IN DENYING A MISTRIAL WHEN THE STATE VIOLATED THE BANKSTON RULE IN ITS OPENING STATEMENT AND TOLD THE JURY THAT POLICE RESPONDED TO 8 VINCENT COURT BASED UPON A CITIZEN'S REPORT OF DRUG ACTIVITY THERE.
POINT II: THE COURT ERRED IN FAILING TO DECLARE A MISTRIAL OR, ALTERNATIVELY GIVE A CURATIVE INSTRUCTION WHEN THE PROSECUTOR MADE A HIGHLY PREJUDICIAL REFERENCE TO THE OFFICE OF THE PUBLIC DEFENDER. (Partially Raised Below).
POINT III: THE SENTENCE IS EXCESSIVE BECAUSE THE COURT FAILED TO CONSIDER THE RELEVANT MITIGATING FACTORS.
Defendant contends that the prosecutor violated defendant's right to a fair trial when the prosecutor stated during her opening statement:
As we heard all morning and yesterday, this is a case about drugs, and in the State of New Jersey, it's illegal to sell drugs, buy drugs, possess drugs, it's even illegal to give drugs away.
And the State's evidence will show that, on March 15th, 2006, officers responded to 8 Vincent Court on a report from a citizen who lived in the area that it was [sic] narcotics activities occurring there -- (underlining added).
Defendant argues that the underlined portion of the prosecutor's opening violated the rule espoused in Bankston, supra, 63 N.J. 263, and, therefore, the trial court should have granted defendant a mistrial.
In Bankston, the Court dealt with the issue of admitting hearsay from unidentified parties not subject to examination by counsel concerning a crime by the accused. The Court found that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of a crime by stating that he did so "upon information received."
Id. at 268 (quoting McCormick, Evidence (2d ed. 1972), § 248, p. 587). "However, [if] the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule." Ibid. "Moreover, the admission of such testimony violates the accused's Sixth Amendment right to be confronted by witnesses against him." Id. at 269. The Court continued "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Id. at 271.
In Bankston, the investigating officer testified to the events leading up to defendant's arrest. He specified that he had been speaking with an informer. Id. at 266. That informer gave officers a description of defendant, including what clothing he was wearing and his location. The informer further explained his belief that defendant had narcotics in his possession. Ibid. The officers then went to that precise location and arrested an individual fitting the given description. Ibid. In response to this elicited testimony, defense counsel objected; the court sustained the objection, but decided to cure the defect by issuing an instruction to the jury. Id. at 267.
The Supreme Court held that the curative instruction was not sufficient and found the introduction of hearsay testimony to constitute reversible error because the testimony created "the inescapable inference" that the informer implicated defendant. Id. at 271; see also State v. Irving, 114 N.J. 427, 447-48 (1989) (finding the Bankston rule violated, but not reversible error under the plain error standard, where an investigator prepared a photo array based on an anonymous informant's tip that was later used to detain the defendant).
In State v. Long, 137 N.J. Super. 124, 127 (App. Div. 1975), certif. denied, 70 N.J. 143 (1976), a defendant was indicted for possession and distribution of a controlled dangerous substance. One basis for defendant's appeal was the response of the investigating officer to a direct examination question. Id. at 133. The investigating officer stated that he arrived at the location of the crime because "'a confidential informant of mine had told me that the people at that address were selling cocaine.'" Ibid. Although the defense counsel did not object at the time, appellate counsel asserted that this answer violated the defendant's Sixth Amendment right to confrontation of witnesses. Ibid. We held that "[t]he response of [the officer] . . . did not directly or by necessary inference implicate defendant. The information to which he testified only dealt in general terms with the address where 'people were selling cocaine.'" Id. at 134.
We find that our ruling in Long should control in this case. In the prosecutor's opening statement, she simply stated that a citizen reported narcotics activities in the area. Likewise, Officer Turzani testified that he arrived at 8 Vincent Court, "[o]n complaints." Neither the prosecutor nor the officer inferred that a non-testifying witness had identified defendant as the particular person conducting drug activity. The "buy and bust" operation was arranged to apprehend anyone willing to sell drugs to the undercover officers. Like in Long, the prosecutor and officer only spoke generally about narcotics activity in the area and not about this defendant's guilt. See Bankston, supra, 63 N.J. at 271. There was no logical inference to be drawn from either the prosecutor's or the officers' statements that the complainant had given the police evidence of defendant's guilt. Ibid. Moreover, in this case, the defense argued and implicitly admitted that there was narcotics activity at 8 Vincent Court based upon Ellis' testimony that "Joey" was selling drugs at that site. The complaint of narcotics activity at the site did not contain any specific information about a crime being committed by this defendant and in no way logically implicated him. Bankston, supra, 63 N.J. at 268.
Moreover, the trial court in this case issued a curative instruction during the prosecutor's opening statement in response to the defense's objection to her statement. The court stated:
Ladies and Gentlemen, let me just remind you. Please understand that what [the prosecutor] is saying now to you in her opening is not evidence, it is what she anticipates she will be able to prove, but you will have to be bound by and what you will have to base your decision on, is what you hear from police officers, not from [the prosecutor].
A jury is presumed to faithfully follow such instructions. State v. Manley, 54 N.J. 259, 270 (1969).
We note that it is left to the trial court's discretion to grant or deny a motion for mistrial because that court is in the best position "to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J. 640, 647 (1984).
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.  Unless the vice is plainly ineradicable by an instruction to the jury, a mistrial is not allowable of right. [Ibid. (quoting State v. Witte, 13 N.J. 598, 611 (1953)).]
An appellate court should uphold the trial court's decision concerning a mistrial unless that court wrongfully exercised its discretion or the defendant suffered actual harm. State v. L.P., 352 N.J. Super. 369, 379 (App. Div. 2002), certif. denied, 174 N.J. 546 (2002); State v. Labrutto, 114 N.J. 187, 207 (1989).
Given the facts and circumstances present in this case, we do not discern any abuse of discretion in the trial court denying the motion for a mistrial or that defendant suffered any actual harm from the complained of statements.
Defendant argues the trial court erred by not granting a mistrial based on the prosecutor's reference to the Public Defender's Office. When cross-examining defense witness Ellis, the prosecutor asked, "Do you recall giving a statement to, I believe, the investigator from the Public Defender's Office back in November?" This prompted an immediate objection by defense counsel. After going to sidebar and subsequently consulting with defendant, defense counsel noted that his client wanted to go forward with the trial and that: the best option is to basically say that, generally speaking, we're not supposed to mention the Public Defender's office, and that it was clearly a slip of the tongue and not intentional and they should ignore that, and then I can clean up my credibility issue as it regards that on summation without attacking the Prosecutor's office.
The trial court, after hearing from counsel, decided it was best not to mention the issue to the jury because it was satisfied that the statement did not constitute reversible error. "It happened once, it's not as if it was repeatedly stated, public defender, public defender, public defender. I doubt if the Jury even took notice of why we stopped." Both counsel accepted this position and continued with the trial. Now, on appeal, defendant seeks a new trial.
In general, a prosecutor may not elicit testimony concerning a defendant's unemployment to show a tendency or motive to commit a crime for financial gain. See State v. Mathis, 47 N.J. 455, 471-72 (1966); rev'd on other grounds, 403 U.S. 946, 91 S.Ct. 2277, 29 L.Ed. 2d 855 (1971). Generally, "there must be something more than poverty to tie a defendant into a criminal milieu." Id. at 472. This prohibition on eliciting testimony of defendant's unemployment is not limited to the questioning of a defendant but applies also to witnesses. State v. Terrell, 359 N.J. Super. 241, 247 (App. Div.), certif. denied, 177 N.J. 577 (2003).
The Supreme Court addressed the impact of mentioning the involvement of the Public Defender's Office in State v. Martini, 131 N.J. 176 (1993), overruled in part as stated in, State v. Wakefield, 190 N.J. 397 (2007). In Martini, on the cross-examination of an expert witness, the witness mentioned that the case was "a 'Public Defender case.'" Id. at 265. This statement amounted to telling the jury that the defendant was represented by the Public Defender's Office. The Court, however, categorized the witness' statement as an "inadvertent remark" which "was brief and non-responsive." Id. at 266. The Court ultimately found that this remark did not result in reversible error. Id. at 266-67.
The remark here, as stated by the prosecutor, was likewise inadvertent. It was made in a fashion and without further elaboration such that it did not infer anything about defendant's employment status, let alone suggest a motive for the crime charged.
The statement at issue is wholly distinguishable from the remarks made by the prosecutor in Terrell, supra, 359 N.J. Super. at 245. In Terrell, we reversed two of the defendant's convictions and remanded for re-sentencing based on the prosecutor's summation, which argued that defendant had substantial funds on his person for an unemployed person. The prosecutor asserted that this indicated defendant was selling the drugs he possessed, as opposed to having them for personal use. That summation was also preceded by a cross-examination question to the defense's only witness which directly inquired as to defendant's employment status, in violation of the previously mentioned Mathis rule. Id. at 244-45. The questioning and summation in Terrell were blatant attempts to create the inference that an impoverished man found with money must be guilty of narcotics transactions.
In this case, the improper reference was immediately objected to by defense counsel and never mentioned to the jury again. Even if the mention of the Public Defender's Office can be viewed as error, it is no doubt harmless error. R. 2:10-2. In light of the eyewitness testimony of two police officers, the ten-dollar bill found on defendant, and the drugs recovered from defendant, we do not find that the mere one-time mention of the Public Defender's Office could be capable of influencing the jury's ultimate decision. See State v. Farr, 183 N.J. Super. 463, 469 (App. Div. 1982) (finding that a mention of defendant's pecuniary status did not reach dimensions sufficient to alter the jury verdict).
Lastly, defendant argues that his sentence was manifestly excessive. Our review of a criminal sentence must follow a three-step process. We:
(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case make the sentence clearly unreasonable so as to shock the judicial conscience.
[State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984) (emphasis omitted)).]
In other words, an appellate court will deem a trial court's sentence excessive only if the trial court clearly abused its discretion. State v. Gardner, 113 N.J. 510, 516 (1989); State v. Velasquez, 54 N.J. 493, 495 (1969).
When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court. . . ." State v. Johnson, 118 N.J. 10, 15 (1990). We may, however, modify the sentence if it was clearly mistaken or if its imposition was a clear abuse of discretion. Roth, supra, 95 N.J. at 363-64. The record here does not reveal any improper exercise of discretion by the trial court.
In determining defendant's sentence, the court found aggravating factors three, six, and nine. Factor three is the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); factor six is defendant's prior criminal history, N.J.S.A. 2C:44-1(a)(6); and factor nine is the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). Given defendant's documented prior criminal record, the finding of these three aggravating factors is well founded.
Defendant claims there are three mitigating factors that should have been considered: defendant did not contemplate that his conduct would cause serious harm, N.J.S.A. 2C:44-1(b)(2); defendant's drug addiction underlies his involvement with the law, N.J.S.A. 2C:44-1(b)(4); and if not for the statutory mandate of imprisonment, defendant is a good candidate for treatment, N.J.S.A. 2C:44-1(b)(10).
At sentencing, the trial court reviewed defendant's presentence report. It noted that defendant was thirty-two years old and he had been arrested on seventeen occasions, both in New York and New Jersey. This was his seventh indictable conviction.
The trial court found no mitigating factors. We agree with the trial court that defendant was not entitled to mitigating factor two, that he did not contemplate that his conduct would cause serious harm. N.J.S.A. 2C:44-1(b)(2). In State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994), we noted that "[d]istribution of cocaine can be readily perceived to constitute conduct which causes and threatens serious harm." Our Supreme Court in State v. Ghertler, 114 N.J. 383, 390 (1989), made it clear that drug dependency is not a mitigating factor which would satisfy N.J.S.A. 2C:44-1(b)(4). Lastly, we agree with the trial court that given this defendant's prior record, he is not a good candidate for drug treatment. N.J.S.A. 2C:44-1(b)(10).
We are satisfied the trial court thoroughly analyzed defendant's record and his prospects for rehabilitation. The court did not abuse its discretion by refusing to find any mitigating factors.
Accordingly, we affirm defendant's conviction in all respects.