March 10, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
OMAR WALKER, A/K/A AL OMAR A. WALKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-09-0968.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2009
Before Judges Fuentes and Chambers.
Defendant Omar Walker appeals from his conviction by a jury of two counts of third degree distributing heroin, a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1). He was sentenced to nine years of imprisonment with four and one half years of parole ineligibility on the first count and received a concurrent sentence of five years imprisonment with two and one half years of parole ineligibility on the second count. The court also imposed the mandatory fines and penalties. We affirm.
On appeal defendant raises the following issues:
THE TRIAL COURT'S FAILURE TO PROVIDE THE JURY WITH AN IDENTIFICATION INSTRUCTION DEPRIVED DEFENDANT OF A FAIR TRIAL, AND DEFENSE COUNSEL'S FAILURE TO REQUEST A PRE-TRIAL WADE HEARING AND AN IDENTIFICATION INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 1, 10. (Not Raised Below)
A. The Trial Court Failed to Provide a Jury Instruction on Identification, Despite the Presence of Indicia of Unreliability.
B. Trial Counsel Failed to Request a Pre-Trial Wade hearing and a Jury Instruction On Identification, Thereby Depriving Defendant Of His Constitutional Right Effective Assistance of Counsel.
THE PROSECUTOR COMMITTED MISCONDUCT DURING SUMMATION WHEN SHE BOLSTERED THE STATE'S CRITICAL WITNESS'S TESTIMONY AND APPEALED TO JURORS' EMOTIONS. MOREOVER, THE JUDGE FAILED TO GIVE THE JURY A CURATIVE INSTRUCTION. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, ¶ 10.
THE TRIAL COURT GRANTED THE STATE'S MOTION TO DISMISS THE CHARGE THAT MR. WALKER HAD DISTRIBUTED CDS TO CAROLYN DIXON, BUT FAILED TO INSTRUCT THE JURY NOT TO CONSIDER ANY TESTIMONY RELATING TO HER, DEPRIVING MR. WALKER OF A FAIR TRIAL. U.S. CONST. AMEND XIV; N.J. CONST. (1947), ART. I, PARA. 1. (Partially Raised Below)
THE DEFENDANT'S DISCRETIONARY EXTENDED TERM, PURSUANT TO N.J.S.A. 2C:44-3(a), OF A NINE-YEAR BASE TERM WITH A FOUR-YEAR PERIOD OF PAROLE INELIGIBILITY, IS MANIFESTLY EXCESSIVE AND REQUIRES REMAND UNDER STATE V. PIERCE. (Not Raised Below)
A. The Defendant's Nine-Year Extended Term Is Manifestly Excessive.
B. The Defendant Is Entitled To A Remand Pursuant To State v. Pierce.
At trial, Officer David Conrad from the Elizabeth Police Department testified that on March 29, 2005, at about 7:40 p.m., he and another officer set up surveillance in the area of Jackson and Broad Street that he described as a well lit area. A takedown unit was also in the vicinity in order to arrest any buyers. Officer Conrad testified that he saw defendant stop in front of a liquor store at this location. At the time, defendant was not a person known to him. Officer Conrad made an in court identification of defendant as the person he saw at the time.
Officer Conrad observed a woman approach defendant and speak to him. She handed what appeared to be money to defendant, who in turn handed her a small object. The exchange took only a few seconds. Officer Michael Kurinzi from the takedown unit testified that he and another officer followed the woman and placed her under arrest. The woman, identified as Monica Bosch, was found in possession of a glassine envelope, commonly used for heroin. She testified that she had purchased the heroin from defendant for $10. Defendant was a person she knew from the neighborhood, and she identified him in court.
Officer Conrad continued the surveillance and saw two individuals later identified as Mark Turner and Carolyn Dixon briefly talk to defendant. Turner handed defendant something that appeared to be a wad of currency which defendant placed in his left pants pocket. Defendant then handed a small object to Dixon. As defendant was turning to Turner, the takedown unit came to arrest defendant, Turner, and Dixon. Officer Conrad testified that defendant remained in his sight from the time he started the surveillance until defendant's arrest.
Officer Michael Kurinzi testified that, as he saw a woman walk away from defendant and another man, he observed defendant and the man engage in what appeared to be a drug transaction. When Officer Kurinzi exited his car, defendant began to walk away quickly, and when Officer Kurinzi told defendant to stop, identifying himself as police, defendant began to run. After about twenty-five to thirty yards, Officer Kurinzi caught up with defendant, tackled him, and then placed him under arrest. Turner and Dixon were also arrested at the scene; a single glassine envelope was recovered from Turner's pocket. No narcotics were found on defendant, but he did have $20 in his pocket; the street value of the drugs was $10 per unit.
Turner testified that he bought a $10 bag of heroin from defendant that evening, and when he turned to walk away, the police appeared, and he was arrested. He testified that the person who sold him the heroin was a little shorter than he; however, in fact defendant was the taller of the two. A statement that Turner gave to the police on the evening in question, indicated that when he was shown a photograph of defendant, he identified defendant as the person who sold him the CDS. However, testimony regarding this identification at the police station was not presented to the jury.
Defendant testified that on the evening in question, he had walked to the liquor store to get something to drink when he ran into an acquaintance, Carolyn Dixon. As they began to talk, a police officer jumped him, and placed him in handcuffs. He said that he did not know Monica Bosch or Mark Turner, and he denied selling drugs to Bosch, Turner, or Dixon that night. He indicated that he had a $20 bill on his person given to him by his wife.
Defendant was charged with distributing CDS to Bosch, Dixon, and Turner. The charge involving Dixon was dismissed for lack of evidence because neither Dixon nor the arresting officer were called by the State to testify. Defendant was convicted of distributing the CDS to Bosch and Turner.
Defendant contends that the trial court erred in failing to provide an identification instruction to the jury. An identification charge is required where identification is a critical issue in the case. State v. Cromedy, 158 N.J. 112, 128 (1999). The charge must provide the jury with "discrete and specific instruction that provides appropriate guidelines to focus the jury's attention on how to analyze and consider the trustworthiness of eyewitness identification." Ibid.
We review this issue under the plain error standard, R. 2:10-2, because defense counsel did not request that the trial court give an identification charge to the jury. An error in the charge constitutes plain error when the "legal impropriety in the charge prejudicially [affects] the substantial rights of the defendant and [is] sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970). Failure to provide an identification charge constitutes plain error where that error "created a possibility of injustice sufficient to raise a reasonable doubt as to the propriety of the jury's conviction." State v. Copling, 326 N.J. Super. 417, 432 (App. Div. 1999) (citing State v. Oliver, 316 N.J. Super. 592, 596 (App. Div. 1998), aff'd, 162 N.J. 580 (2000); State v. Macon, 57 N.J. 325, 336 (1971)), certif. denied, 164 N.J. 189 (2000).
Under this standard, we discern no plain error here. Not only did numerous eyewitnesses place defendant at the scene, but defendant himself acknowledges that he was there and talking to Dixon. A number of witnesses identified defendant as the person who sold the drugs, including the police officer deployed to observe the scene for the expressed purpose of determining if CDS transactions were occurring. This officer never lost sight of defendant during the entire time it took for the illicit transactions to transpire, up to and including defendant's arrest. Bosch also testified that defendant was a person known to her in the community.
We recognize that the better practice is for the trial judge to give an identification charge "where identification is even a remote issue"; however, failure to do so is not necessarily plain error where identification, although an important issue in the case, is not an essential contested issue. State v. Copling, supra, 326 N.J. Super. at 434. Defense counsel in summation did not argue that the witnesses had mistakenly identified defendant, but rather that the witnesses had not told the truth.
Defendant's ineffective assistance of counsel claims based on counsel's failure to request a Wade*fn1 hearing or an identification charge are best resolved on a post conviction relief application under Rule 3:22 where counsel's strategies and tactics can be explored. See State v. Castagna, 187 N.J. 293, 313 (2006) (stating "[o]ur courts have expressed a general policy against entertaining ineffective-assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record" (quoting State v. Preciose, 129 N.J. 451, 460 (1992))); State v. Dixon, 125 N.J. 223, 261-62 (1991) (noting that the trial record was inadequate to disclose whether counsel's failure to call certain witnesses at the Miranda hearing, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), was the result of tactics and strategy or neglect and may be addressed at post conviction relief proceedings).
Defendant contends that he was denied due process and a fair trial due to the prosecutor's improper remarks in her summation. In one remark, she improperly bolstered the credibility of one of the police officers who testified, stating:
Ladies and gentlemen, if I had to ask somebody how to do a surveillance or what would be the best way to catch this guy whose modis operandi is this on the corner of Jackson Avenue and Bond I would ask Dave Conrad, because that is his job, that is what he does for a living.
Mr. Bashir would have you believe that they did a sweep that night. Well, this is a high crime, high drug area. They don't need to do a sweep. There is a reason why it's high crime, high narcotics area, and you heard him testify and, of course, if I say something you don't believe is how you recollect, obviously, your recollection controls. I recollect that he testified that this is a high complaint area, too. There [are] complaints from the citizens that there [are] guys dealing on the street, dealing in this neighborhood. If I even know how to get that guy I'm going to ask Dave Conrad.
At that point, defense counsel objected and the trial court sustained the objection, stating:
Sustained as to what you think of Mr. Conrad and his ability is not relevant. The issue before the jury is what he did on that date and his background. You can't bolster your own witness on summation.
The prosecutor's comment was improper since a prosecutor may not "express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant." State v. Marshall, 123 N.J. 1, 154 (1991) (quoting ABA Standards for Criminal Justice § 3-5.8(b) (2d ed. 1980)), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993).
At two other points, the prosecutor improperly appealed to the jurors emotions. The first statement occurred when the prosecutor was discussing the credibility of the buyers, Bosch and Turner, and the fact that they had made deals with the State, and she stated:
Now, you also had Mr. Turner come in. He also did the same thing. Yeah, again, Mr. Turner got a deal, but you know what? Miss Bosch and Mr. Turner were charged with possession of a controlled dangerous substance. Mr. Walker is sitting here in front of you charged with distribution. I ask you to prioritize this for yourself in your head. Just think about it. Who do you want off the street more?
At this point, defense counsel objected. The trial court sustained the objection stating: "Sustained as to the ultimate event that happens here, if there is a conviction. That is my job. That is not their job." The State concedes in its brief that this comment by the prosecutor was "ill-advised."
The prosecutor also stated:
Ladies and gentlemen, I would submit to you that Mr. Walker's testimony is wholly incredible. It is wholly unbelievable. You heard that this is -- it ties to my next point. You heard Mr. Bashir say that this was a sweep and they were going to grab anybody they could. This is a high crime, high narcotics area, I submit to you. The police officers don't need to go looking for crimes, they are out there right in the middle of all that. They are out on the streets. The citizens in that neighborhood are complaining about it saying, "Please, send somebody out there.
Once again defense counsel objected. The trial court sustained the objection stating: "Sustained. Don't emphasize that again. Comment is struck for the record."
A prosecutor's misconduct will only justify reversal where the conduct is "so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v. Papasavvas (I), 163 N.J. 565, 625 (2000)), cert. denied, __ U.S. __, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008).
The prosecutor's conduct must have been "clearly and unmistakably improper" and it "must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Id. at 438 (quoting State v. Papasavvas (I), supra, 163 N.J. at 625). In determining whether this standard has been met the court will consider whether defense counsel made a timely objection, whether the statement was promptly withdrawn, and whether the court instructed the jury to disregard the remarks. Ibid.
Here defense counsel immediately objected to the remarks, and the trial judge immediately sustained the objection and indicated in some manner to the jury that the remarks were not to be considered. Further, the remarks themselves, although improper, were not so inflammatory or prejudicial as to seriously jeopardize a fair trial, particularly when read in the context of the entire summation and the evidence in the case. As a result, defendant's fundamental right to a fair trial was not substantially prejudiced by these remarks.
We briefly address defendant's contention that he is entitled to remand for sentencing in light of the Supreme Court's ruling in State v. Pierce, 188 N.J. 155 (2006). We note at the outset that Pierce is not directly applicable since it involved a discretionary extended term sentence under N.J.S.A. 2C:44-3. See id. at 158. While defendant qualified for an extended term under that statute, he also qualified for a mandatory extended term under N.J.S.A. 2C:43-6(f), which applies to persistent drug offenders, and sentencing under that statute is more directly governed by State v. Thomas, 188 N.J. 137 (2006).
Thomas addressed the question of whether defendant's Sixth Amendment rights were violated when the judge rather than a jury determined the presence of the two recidivism based aggravating factors, "[t]he risk that defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3), and the need for deterrence, N.J.S.A. 2C:44-1(a)(9), that led to the mandatory enhanced sentence under N.J.S.A. 2C:43-6(f). Id. at 138-40. The Court found the statutory scheme constitutional. Id. at 149-52. The Court remanded for resentencing because the defendant fell within the pipeline retroactivity of State v. Natale, 184 N.J. 458 (2005). Id. at 152-54. Here defendant was sentenced in 2006, long after Natale was decided, and defendant does not argue that the sentence was contrary to the holding in Natale.
The balance of the issues raised in this appeal require no further discussion. R. 2:11-3(e)(2).