January 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NATE WILLIAMS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-08-0859.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 17, 2008
Before Judges Lisa and Alvarez.
Defendant, Nate Williams, was found guilty by a jury of third-degree cocaine distribution, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count one), and second-degree distribution of cocaine within 500 feet of a public park, N.J.S.A. 2C:35-7.1(a) (count two). Defendant was sentenced on count one to a mandatory extended term, N.J.S.A. 2C:43-6(f), of eight years subject to four years of parole ineligibility. A concurrent eight-year term of imprisonment with four years of parole ineligibility was imposed on count two.
Defendant raises the following contentions:
POINT I WILLIAMS'S CONVICTION MUST BE REVERSED BECAUSE THE COURT ERRED IN PERMITTING OFFICER FRANKLIN TO OFFER INADMISSIBLE OPINION TESTIMONY AND IN FAILING TO GIVE ANY INSTRUCTION ON THE TESTIMONY (NOT RAISED BELOW)
A. THE COURT ERRED IN ALLOWING FRANKLIN TO TESTIFY AS AN EXPERT
B. THE COURT ERRED IN FAILING TO INSTRUCT THE JURY AS TO HOW IT SHOULD RECEIVE AND EVALUATE FRANKLIN'S EXPERT TESTIMONY
POINT II WILLIAMS'S MOTION TO SUPPRESS THE OUT-OF-COURT IDENTIFICATION SHOULD HAVE BEEN GRANTED BECAUSE THE IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE
A. FAILURE TO UTILIZE AN INDEPENDENT OFFICER TO CONDUCT THE PHOTOGRAPHIC IDENTIFICATION PROCEDURE WAS A MATERIAL VIOLATION OF SECTION IA OF THE GUIDELINES
B. FAILURE TO UTILIZE A SEQUENTIAL PHOTO ARRAY CONSISTING OF AT LEAST SIX PHOTOGRAPHS WAS A MATERIAL VIOLATION OF SECTION IE4 OF THE GUIDELINES
C. FAILURE TO RECORD THE NECESSARY DETAILS OF THE PHOTOGRAPHIC IDENTIFICATION PROCEDURE WAS A MATERIAL VIOLATION OF SECTION II OF THE GUIDELINES AS WELL AS CONTRARY TO STATE V. DELGADO
POINT III THE SENTENCING COURT SHOULD HAVE MERGED THE DISTRIBUTION CONVICTION INTO THE CONVICTION FOR DISTRIBUTION OF C.D.S. WITHIN 500 FEET OF A PUBLIC HOUSING FACILITY (NOT RAISED BELOW)
POINT IV WILLIAMS'S SENTENCE IS EXCESSIVE AND MAY REQUIRE A REMAND PURSUANT TO STATE V. THOMAS
A. THE SENTENCING COURT INAPPROPRIATELY FOUND AND WEIGHED AGGRAVATING FACTORS
B. THE SENTENCING COURT FAILED TO ADHERE TO THE PRINCIPLE OF PROGRESSIVE DISCIPLINE IN SENTENCING WILLIAMS
C. THE SENTENCING COURT FAILED TO FIND MITIGATING FACTORS MILITATING IN FAVOR OF A LESSER SENTENCE
D. ABSENT MERGER, THE SENTENCE ON COUNT ONE MUST BE REMANDED FOR RESENTENCING IN ACCORDANCE WITH STATE V. THOMAS, 188 N.J. 137 (2006)
The State concedes, and we agree, with defendant's Point III, and we accordingly remand for entry of an amended judgment of conviction to reflect merger of count one with count two. In all other respects, we affirm.
On December 10, 2003, at approximately 7:00 p.m., Detective Keith Franklin of the Union County Prosecutor's Office was working undercover at 471 Madison Avenue in Elizabeth, when he purchased cocaine from defendant. The county narcotics strike force had previously learned that drug transactions regularly occurred at that location, and an undercover investigation had been ongoing for some time.
The following facts were developed at trial. Moments after walking into the alcove of 471 Madison on December 10, Franklin recognized the man behind him as someone to whom he had previously spoken for approximately twenty minutes while seated on the front stoop. Franklin had seen this man, defendant, approximately twelve times at that location. Defendant was wearing a long white shirt, blue jeans, and tan Timberlands. According to Franklin, there was something "funny" about defendant's teeth and he wore his hair in dreadlocks. He was approximately six feet tall, had a medium-dark complexion, and sported a mustache. Defendant said to Franklin, "What's up?" Franklin then asked him for "dimes," referring to ten-dollar vials of cocaine. Defendant asked Franklin how many dimes he wanted, and Franklin answered that he wanted four.
Defendant continued into the adjoining hallway with Franklin following behind. Defendant stopped Franklin and told him to wait in the alcove. Two to three minutes later, defendant returned and handed Franklin four vials, for which the detective paid him $40. Franklin and defendant were approximately an arm's length apart during the exchange.
Franklin returned to his car and called Detective Raymond Smith on his cell phone. He reported that he had made the purchase and said that he knew the seller's name, but initially could not remember it. Franklin described the seller to Smith, and Smith said that he would attempt to locate a photograph of the seller. The four vials subsequently tested positive for cocaine.
Back at the narcotics strike force building, Smith showed Franklin defendant's photograph, which Franklin immediately recognized as the man who had just sold him the cocaine. After Franklin signed and dated the back of the photo, Smith placed it in a case file. The photo could not be located before trial. When asked on cross-examination why he was only shown one photo, Franklin responded that it was unnecessary for Smith to show him a photo array because "the law says that I can look at one picture within [twenty-four] hours and make an identification." Because Franklin was the only undercover officer and the investigation was ongoing, defendant was not arrested until nine days later. Franklin, in fact, recommended that defendant's arrest be delayed until the undercover operation ended because he was certain that defendant would be found at the building where the drug sale was made.
Smith testified that he drove by 471 Madison on December 10 and saw defendant on the front steps. He had known defendant for approximately three years and interacted with him on about 100 different occasions. The exterior of the building was well-lit by ambient light from a nearby park and light stanchions lining the street. Using binoculars, Smith saw Franklin walk up the front steps and enter the building, followed by defendant. Franklin was inside for approximately a minute-and-a-half. When Franklin emerged, he called Smith and told him that he had made a buy. He described the seller and said, "Remember that dude, we used to talk to him. We talked to him on the porch that time. Remember that dude, he's got something wrong with his teeth." Smith responded, "You don't mean Nate?" Franklin said, "Yeah, Nate. That's the dude we talked to on the porch, right?"
Smith agreed to delaying defendant's arrest in order to continue the investigation because defendant was not "going anywhere." When Smith showed Franklin the photograph of defendant at the narcotics strike force building, Franklin immediately identified him as the drug seller. Defendant was arrested upon exiting a car in front of 471 Madison nine days after the undercover buy.
Franklin was not qualified by the State as an expert witness pursuant to N.J.R.E. 702.*fn1 Therefore, defendant contends that because he was not qualified as an expert, Franklin should not have been permitted to give opinion testimony. He further contends that the court committed reversible error in failing to instruct the jury as to the manner in which expert testimony is assessed.
Specifically, defendant objects to Franklin's testimony that it is common for drug dealers to keep a "stash." He also objects to Franklin's explanations as to why fingerprint analysis was not performed on the vials of cocaine and why he was not wearing a recording device at the time of the buy. Defendant further asserts that Franklin's statement that a photo array was unnecessary because the law allowed him to make an identification based on one photo conveyed an improper legal conclusion.
The State responds by pointing out that because defendant did not make these objections at trial, the plain error doctrine bars our consideration unless the interests of justice are implicated. R. 2:10-2. The possibility of an unjust outcome must be "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, 336 (1971). Moreover, errors that were "induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974).
At trial, defense counsel not only failed to object to Franklin's testimony, he cross-examined Franklin as to "stash locations," the propriety of the identification procedures that he and Smith follow, and the use of recording devices during undercover operations. Because the testimony was elicited by defendant, he cannot now be heard to challenge its admission. State v. Jenkins, 178 N.J. 347, 358-59 (2004).
In any event, the admission of the testimony was not error. Courts routinely permit law enforcement officers to "testify as lay witnesses, based on their personal observations and their long experience in areas where expert testimony might otherwise be deemed necessary." State v. LaBrutto, 114 N.J. 187, 198 (1989).
Franklin's opinions were based on his observations and substantial experience. He had conducted more than 1500 undercover drug transactions, had been a police officer for more than twenty-nine years, and was assigned to drug-related task forces for at least eleven years. In light of our conclusion that Franklin's statements constituted permissible lay opinion, the trial judge was not required to give jurors the Model Jury Charge as to expert testimony.
In like manner, defendant contends that it was error for Franklin to testify that defendant sold him drugs. N.J.R.E. 704 provides that opinion testimony by a properly qualified witness can be proffered to the jury even though "it embraces an ultimate issue to be decided by the trier of fact." Defendant's complaint is that Franklin testified both as an expert witness and a fact witness about the ultimate issue in the case, defendant's guilt. In defendant's view, Franklin's statement was the equivalent of impermissible direct expert opinion that defendant was guilty of the crimes charged. See State v. Odom, 116 N.J. 65, 77 (1989).
Franklin's testimony simply cannot be characterized as usurping the jury's function. All he did was describe a transaction in which he was the buyer. Franklin was not interpreting conduct as would an expert law enforcement officer opining as to the meaning of behavior viewed from a distance; rather, he was describing events in which he participated. He was, in other words, only a fact witness.
We note in passing that the trial court gave the jury the standard Model Jury Charge as to credibility. The court also gave a modified identification charge and summarized defendant's arguments as to the claimed unreliability of the identification, such as the police failure to tape record the transaction and to preserve the photograph that Franklin identified. Nothing further was required of the trial court. See State v. R.B., 183 N.J. 308, 324 (2005) (holding that the test as to the propriety of a jury instruction is whether the charge as a whole was "ambiguous or misleading"). We consider the instructions given by the trial court as to Franklin's testimony to have been more than adequate.
Defendant now urges that the out-of-court photo identification should have been performed by an "independent officer," rather than by Smith, in accord with the Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (Apr. 18, 2001) (the Guidelines). That argument fails because Franklin and Smith were acquainted with defendant and actually knew his name prior to the drug buy. As Smith explained it, he showed defendant's photograph to Franklin only to completely reassure himself that he and Franklin were speaking about the same "Nate." Given that they knew the identity of the seller, Smith as the result of a three-year acquaintance, and Franklin because of his several conversations with him at the location where the drugs were sold, the Guidelines' routine identification procedures are inapplicable. The strength and reliability of the identification rested upon the officers' prior acquaintance with defendant, not from the out-of-court identification. See State v. Adams, 194 N.J. 186, 203 (2008) (holding that the test as to the admissibility of an out-of-court identification represents the witness's independent recollection of whether it resulted from impermissibly suggestive conduct of a law enforcement officer).
Both defendant and the State agree that the third-degree distribution conviction should merge into the second-degree conviction for distribution within 500 feet of public property. Count one should have been merged with count two, and the matter is remanded for that purpose. As we said in State v. Gregory, 336 N.J. Super. 601, 607 (App. Div. 2001), "[T]he Legislature intended . . . to preserve the more stringent punitive impact of [an N.J.S.A. 2C:35-7.1] conviction. That intent is implemented by merging the [N.J.S.A. 2C:35-5] third-degree conviction into the [N.J.S.A. 2C:35-7.1] second-degree conviction and sentencing defendant as a second-degree offender." Because the matter is remanded for the purpose of addressing the merger, we will not reach defendant's arguments as to the extended term sentence imposed on count one.
Defendant asserts that the court's failure to specifically tie together defendant's criminal history with the aggravating factors requires a remand for a new sentence hearing. While sentencing defendant, the trial judge noted that defendant had sufficient prior municipal court and indictable convictions, all accumulated since 1999, to warrant a sentence above the midpoint of the range. In fact, defendant was previously convicted of four indictable offenses and five disorderly persons offenses, which is a sufficient basis for the aggravating factors that the court awarded. Those factors were: the risk that defendant will reoffend, N.J.S.A. 2C:44-1(a)(3), the extent of his prior criminal history, N.J.S.A. 2C:44-1(a)(6), and the need to deter, N.J.S.A. 2C:44-1(a)(9). The court did find one mitigating factor, the hardship that defendant's imprisonment will create for his family, N.J.S.A. 2C:44-1(b)(11), as defendant has two young children. The sentencing judge did not assign that factor much weight. The sentencing judge reasoned that the aggravating factors "significantly and substantially" outweighed the single mitigating factor. Consequently, he imposed an eight-year sentence subject to parole ineligibility of four years.
In reviewing a sentence, we do not substitute our judgment for that of the trial court. State v. Natale, 184 N.J. 458, 489 (2005). Sentences are affirmed where the sentencing court properly identifies and balances aggravating and mitigating factors, and where those factors are supported by competent credible evidence on the record. Ibid. We therefore find no error in the court's analysis and the result that it reached.
Ample competent credible evidence supported the aggravating and mitigating factors and the weight accorded to them. Furthermore, the sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364 (1984). Nor were there facts justifying the award of any additional mitigating factors. The crime of distribution of cocaine, for example, is conduct that causes and threatens serious harm. State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994). It is not conduct, contrary to defendant's suggestion, that would have been a basis for the award of the mitigating factors related to the severity of the crime or a defendant's contemplation thereof, N.J.S.A. 2C:44-7(b)(1) and (2). Nor do we agree that progressive discipline as defined in In re Carter, 191 N.J. 474 (2007), is applicable. That doctrine concerns agency disciplinary action toward employees based on their employment history. The Criminal Code, however, focuses on the gravity of the offense, not the blameworthiness of the offender. Roth, supra, 95 N.J. at 355. The offense charged in count two of the indictment carried with it the presumption of incarceration. The balancing of the aggravating and mitigating factors warranted the sentence imposed, and we will not disturb it. Defendant's conviction is affirmed. The matter is remanded for entry of an amended judgment of conviction to reflect merger of count one with count two.
Affirmed as modified.