On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-01-0042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2008
Before Judges R. B. Coleman and Simonelli.
Defendant Forlang Spencer was arrested on October 16, 2003, and charged with third-degree conspiracy, contrary to N.J.S.A. 2C:35-5 and N.J.S.A. 2C:5-2 (count one); third-degree possession of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-10a(1) (count two); second-degree possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-56(2) (count three); and third-degree possession of CDS with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count four), and second degree possession of CDS with intent to distribute on or near a public park, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1 (count five). On January 13, 2004, a grand jury indicted defendant on those charges (Indictment No. 04-01-00042). On January 25, 2005, a jury convicted defendant on counts two, three and four.
Defendant was released on bail for the charges in Indictment No. 04-01-00042 when he was arrested on November 3, 2003, and charged with second-degree eluding, contrary to N.J.S.A. 2C:29-2b; third-degree unlawful possession of an assault firearm, contrary to N.J.S.A. 2C:39-5f; second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and fourth-degree unlawful possession of a large capacity ammunition magazine, contrary to N.J.S.A. 2C:39-3j. On December 23, 2003, a grand jury indicted defendant on those charges (Indictment No. 03-12-1636). On November 8, 2004, a jury convicted defendant on the eluding charge.
On February 25, 2005, Judge Cantor sentenced defendant on Indictment No. 03-12-1636 to a seven-year term of imprisonment.*fn1
The judge also imposed the appropriate assessments, penalties and fees. On Indictment No. 04-01-00042, the judge merged counts two and three into count four and sentenced defendant to a consecutive five-year term of imprisonment with a thirty-month period of parole ineligibility.*fn2 The judge also imposed the appropriate assessments, penalties and fees, and suspended defendant's driver's license for eighteen months.
On appeal, defendant raises the following contentions:
POINT I: THE PROSECUTOR'S COMMENTS DURING THE TRIAL AND IN CLOSING CONSTITUTED MISCONDUCT DEPRIVING THE DEFENDANT OF A FAIR TRIAL AND REQUIRES REVERSAL OF HIS CONVICTIONS. [Partially raised below].
- A - Questioning the Detective About the Defendant's Employment During the Trial.
- B - The Prosecutor's Comment During Summation.
POINT II: THE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE TRIAL COURT FAILED TO ISSUE A CAUTIONARY INSTRUCTION TO THE JURY CONCERNING THE FACT THAT THE DEFENDANT WAS WEARING PRISON CLOTHES ON THE FIRST DAY OF JURY SELECTION, NOTWITHSTANDING THE FACT THAT COUNSEL SPECIFICALLY ASKED THAT IT NOT BE GIVEN. IN THE ALTERNATIVE, TRIAL COUNSEL WAS INEFFECTIVE FOR NOT INSISTING ON THIS CAUTIONARY INSTRUCTION REGARDLESS OF THE FACT THAT DEFENDANT CHOSE TO WEAR CIVILIAN CLOTHES FOR THE REMAINING DAYS OF THE TRIAL. [Partially raised below].
- A -The Court should have issued a curative instruction.
- B - Ineffective Assistance of Trial Counsel.
POINT III: CERTAIN ASPECTS OF THE COURT'S CHARGE TO THE JURY VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL. [Not raised below].
POINT IV: THE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE STATE INTRODUCED EVIDENCE THAT JOSE SANTIAGO AND IVAN LAMA WERE KNOWN COCAINE USERS WITHOUT HAVING THOSE TWO INDIVIDUALS TESTIFY; UTILIZED THAT INFORMATION AS PART OF THE BASIS FOR THE STATE'S EXPERT OPINION; AND RELIED ON THIS INFORMATION IN THE STATE'S SUMMATION. AT THE VERY LEAST, THE COURT SHOULD HAVE CONDUCTED A N.J.R.E. 403 HEARING TO DETERMINE IF THE PREJUDICIAL IMPACT OF THE INFORMATION WAS SUBSTANTIALLY OUTWEIGHED BY ANY PROBATIVE VALUE AND SHOULD HAVE SUA SPONTE ISSUED A CAUTIONARY INSTRUCTION WITH REGARD TO THIS TESTIMONY. [Partially Raised Below].
POINT V: THE STATE'S EXPERT, SERGEANT BRIAN CAFFREY TESTIFIED TO THE ULTIMATE ISSUE OF GUILT IN THIS CASE IN AN AREA NOT BEYOND THE KEN OF THE AVERAGE LAYPERSON, THEREBY INTRUDING ON THE JURY'S EXCLUSIVE PROVINCE TO DETERMINE GUILT OR INNOCENCE. THE COURT'S GATEKEEPER ROLE REQUIRED IT TO HAVE PRECLUDED ADMISSION OF THIS TESTIMONY EVEN THOUGH THE DEFENDANT DID NOT OBJECT TO IT BELOW. THE INTRODUCTION OF THIS TESTIMONY HAD THE CAPACITY TO CAUSE AN UNJUST RESULT REQUIRING REVERSAL OF HIS CONVICTION FOR POSSESSION WITH INTENT TO DISTRIBUTE AND POSSESSION WITH INTENT TO DISTRIBUTE AT OR NEAR SCHOOL PROPERTY. [Not raised below].
POINT VI: THE COURT IMPOSED AN EXCESSIVE SENTENCE WHICH DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING GUIDELINES. AT THE LEAST, THE DEFENDANT IS ENTITLED TO A REMAND FOR A NATALE HEARING TO DETERMINE THE APPROPRIATE BASE TERM TO BE IMPOSED IN THIS MATTER AND FOR A DETERMINATION WHETHER THE STATE HAD LEGITIMATE REASONS TO REFUSE TO WAIVE THE MANDATORY PAROLE INELIGIBILITY TERM.
We reject these contentions and affirm.
The following facts are summarized from the record. On October 16, 2003, at approximately 9:30 p.m., Detectives Robert Estrada and Carmelo Jimenez of the Perth Amboy Police Department Narcotics Division Special Investigations Unit were on narcotics patrol in their unmarked police vehicle in the area of Market and Olive Streets, a known high narcotics area. Estrada was dressed in plain clothes with his badge displayed on a chain on his chest. While driving west on Market Street, Estrada observed a black Acura Integra parked southbound at the corner of Olive Street, facing east. From a distance of approximately ten to fifteen feet, Estrada saw a black male, later identified as defendant, in the Acura's driver's seat and a female, later identified as Tamika Green, in the passenger seat. The officer also saw Jose Santiago, "a known drug user . . . [who is] always in the area[,]" standing by the passenger side talking to Green.
As Estrada continued toward the Acura, he saw Santiago reach into the passenger window and hand Green what appeared to be money. Green then handed Santiago "an object," which Santiago placed in his pocket. Estrada drove past the Acura, made a u-turn at the corner of Market and Grant Streets, and parked approximately one car length behind the Acura. Santiago continued talking to Green but began walking toward the corner of Market and Olive Streets when he noticed Estrada's vehicle. Santiago then ran into a house on that corner.
The officers pulled out of their parking space in an attempt to stop Santiago. However, they decided not to pursue him. Instead, they followed the Acura, which began heading east on Market Street. When the Acura made a left turn onto McClellan Street, Estrada saw a Hispanic male, later identified as Ivan Lama, flagging down the Acura. The Acura stopped in the middle of the roadway. Lama approached the vehicle and spoke to defendant, who opened his door. Estrada pulled his vehicle alongside the Acura, and both he and Jimenez exited with Estrada approaching the driver's side and Jimenez approaching the passenger's side. After Estrada identified himself as a police officer, he saw defendant clench his left fist then lower it, dropping a clear plastic baggie containing a white, rock-like substance. Believing the substance was crack cocaine, Estrada immediately retrieved the baggie and placed defendant under arrest. The arrest occurred within 1000 feet of the McGinnis School. A subsequent search of defendant revealed four individually-wrapped items believed to contain crack cocaine and $1289 in cash.*fn3
Upon approaching the passenger's door, Jimenez observed Green holding a white Styrofoam cup in her right hand and $40 in her left hand. The cup contained what appeared to be a baggie of marijuana. Jimenez opened the passenger door, grabbed the cup from Green and placed her under arrest.
We first address defendant's allegations of prosecutorial misconduct. The first allegation concerns a question the prosecutor asked Jiminez about whether he recalled if defendant indicated he was employed at the time of the incident. Defense counsel objected to the question and sought a mistrial.
Jiminez never answered the question. Judge Cantor instructed the jury that defendant's employment status was irrelevant and that they were to disregard the question and not speculate as to its answer. The judge later instructed the jury that "where I have sustained objections to some questions asked by attorneys, which may have contained a statement of fact, or certain facts, the mere fact that an attorney asks the question . . . in no way proves the existence of those facts."
Relying on State v. Mathis, 47 N.J. 455 (1966) and State v. Terrell, 359 N.J. Super. 241 (App. Div.), certif. denied, 177 N.J. 577 (2003), defendant argues that even without an answer, the mere asking of the question was improper because it placed his economic status in issue before the jury implying that an unemployed person would have a motive to be a drug dealer. Defendant argues that the judge's instructions failed to adequately advise the jury to disregard the inference that an unemployed person would have a motive to commit the crimes charged. We disagree.
In Mathis, supra, the defendant was charged with murder during an attempted robbery. 47 N.J. at 461. During his trial testimony, the prosecutor asked the defendant when he last worked. Id. at 469. The defendant responded that he worked for his father from time to time in repairing automobiles at his father's home. Ibid. Rebuttal witnesses testified that they never saw the defendant working at his father's home, indicating that the defendant lied when he said he worked for his father. Id. at 470. The trial judge gave no cautionary instruction. Our Supreme Court reversed the defendant's conviction, concluding that this testimony impermissibly suggested that the "defendant had no apparent means of income and hence was likely to commit a crime for dollar gain." Id. at 472.
In Terrell, supra, the defendant was charged with various CDS-related offenses. At trial, the prosecutor asked the defendant's only witness if the defendant had a job. 359 N.J. Super. at 244. The witness responded in the negative. Id. at 245. The trial judge gave no cautionary instruction. In her summation, the prosecutor pressed the point of the defendant's lack of a job, suggesting that the jury could infer that the $965 found on him when he was arrested was the proceeds of drug sales. Ibid. We reversed the defendant's conviction for possession of CDS with intent to ...