May 6, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEITH W. CUNNINGHAM, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-12-4614.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2009
Before Judges Stern, Lyons and Waugh.
Defendant Keith W. Cunningham appeals his conviction and the resulting sentence arising out of a drug transaction. We affirm the conviction on all counts, but, as the State concedes is necessary, remand for resentencing.
The facts of the case are largely taken from the testimony presented at Cunningham's trial. On September 21, 2004, at approximately 7:30 a.m., State Troopers David Yeager and Jack Donegan were driving through Ablett Village, a public housing project located in Camden. They were in the area attempting to serve a fugitive warrant. At trial, both Yeager and Donegan testified that they knew Ablett Village to be "a documented narcotics distribution location."
As they drove through the community in an unmarked vehicle, Yeager was "trying to look at the people that [they were] driving by to make sure they [were] not the person [they were] actually looking for." When they were approximately thirty feet away from Cunningham, Yeager and Donegan observed him walk to an empty clothesline where he retrieved something from the clothespin bag. Cunningham then walked over to another man and exchanged the item from the clothespin bag for money. Based on their training, both Yeager and Donegan believed they witnessed a drug-related transaction.
Yeager and Donegan exited their vehicle and approached Cunningham and the other man. The troopers were in plain clothes, but carried police identification hanging around their necks and wore bullet proof vests on top of their clothes with a large "State Police" label on the front and back. Donegan testified that he "ran up on [Cunningham and the other man] indicating that [he] was State Police." Cunningham ran as Donegan approached.
When Cunningham fled, Donegan "ran up to where the hand-to-hand transaction had taken place" and retrieved a "red heat-sealed bag containing a white rock-like substance" which had been dropped. Donegan pursued Cunningham on foot and saw him discard two additional "red heat-sealed bag[s] of a white rock-like substance." After pursuing Cunningham for two blocks, Donegan apprehended him. The alleged purchaser was never pursued.
After Cunningham had been arrested and put in the police car, Yeager and Donegan returned to the clothesline where they had initially seen him. From the clothespin bag, they retrieved one plastic bag containing four smaller clear plastic bags; three of these bags contained twenty small bags of a white rock-like substance; one bag contained nineteen bags of a white rock-like substance.
On December 4, 2004, Cunningham was indicted on four counts: third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two); second-degree possession of a CDS with intent to distribute within 500 feet of a public housing facility, park, or building, N.J.S.A. 2C:35-7.1 (count three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2 (count four). Cunningham pled not guilty and was tried over three days in October 2006.
Both Donegan and Yeager testified at trial recounting the facts laid out above. Additionally, Donegan verified the evidence and property inventory sheet completed for the bags he and Yeager had retrieved while arresting Cunningham. Donegan also testified that the evidence had been marked and turned over to the Camden Police Department's custodian of evidence. The evidence was sent to the State Police laboratory for testing and was determined to be cocaine.
Carmello Villegas, an employee in the evidence room at the Camden Police Department, testified for the State. Villegas stated that the evidence is returned from the State Police laboratory in heat sealed initialed bags. These bags are not opened "until [the case] gets to court."
Terry King, an investigator for the Camden County Prosecutor's Office, testified for the State. King was qualified by the court "as an expert in narcotics, narcotics distribution, also including street level distribution." King testified that "the smaller bags which are held inside the plastic sandwich bag in a bundle-like fashion [with] small quantities of crack cocaine inside the bags" was packing consistent with street level distribution as opposed to packing for defendant's personal use.
Cunningham testified on his own behalf at trial. He stated that he was in Ablett Village on the morning of September 21, 2004, because he worked at a trucking company across the street. He was talking to Richard Johnson when the police approached. According to Cunningham, Donegan stuck his head out of the police car and demanded that Johnson come over and talk to him. Johnson approached the car and Cunningham walked away.
Cunningham testified that, shortly thereafter, he heard Donegan say, "Hey you," just prior to Donegan putting his gun against him and telling him "to get on the ground." Cunningham testified that Donegan then "stomped on [his] hand" and his arm, which "was already broken,  was being pulled." He testified he gave Donegan his name, date of birth, and social security number. Donegan then called dispatch to see if Cunningham had any outstanding warrants and dispatch responded, "Negative." Cunningham admitted that he had a crack pipe and cocaine on his person and that Donegan took both and destroyed them. According to Cunningham, he was not arrested at this point.
Cunningham testified that, following the exchange with Donegan, he went across the street to a friend's apartment because the friend had witnessed the entire incident and wanted to help clean him up. Thirty to forty-five minutes after entering the friend's apartment, Donegan came to the door with another trooper looking for Cunningham and arrested him because they "found [his] stash." Cunningham asserted he had never seen the "stash" and did not know what the troopers were talking about. Upon being led out of the apartment, Cunningham saw Johnson "cuffed standing outside a car."
Cunningham denied ever selling drugs as charged and only admitted to possessing a crack pipe stem and "a half-open bag of crack cocaine." He admitted that he "had a drug problem at that time."
On October 26, 2005, the jury found Cunningham guilty of all charges. He was sentenced on January 27, 2006. At sentencing, the State's motion for an extended term, based on Cunningham's status as a repeat drug offender, N.J.S.A. 2C:43-6(f), and a persistent offender, N.J.S.A. 2C:44-3(a), was granted. The trial judge then merged count one into count two and sentenced Cunningham to a seven-year term of imprisonment for count two; a concurrent twelve-year term of imprisonment for count three, subject to six years of parole ineligibility; and a concurrent eighteen-month term of imprisonment for count four. In sum, Cunningham was sentenced to an aggregate of twelve years in prison with six years of parole ineligibility and various fines. This appeal followed.
On appeal Cunningham raises the following issues:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS AND PREJUDICIAL ARGUMENT AND INSTRUCTION TO THE JURY ON THE LAW OF CONSTRUCTIVE POSSESSION. (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT DENIED COUNSEL'S REQUEST TO INSTRUCT JURORS THAT THEY MAY REQUEST A READ-BACK AFTER THE JURY ASKED QUESTIONS ABOUT THE TESTIMONY.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE. (NOT RAISED BELOW).
THE TRIAL COURT'S INSTRUCTION TO THE JURY DIRECTED THE JURY TO FIND THAT THE DEFENDANT COMMITTED THE CRIME, THEREBY VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION. (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EVIDENCE OF GUILT BY ASSOCIATION. (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO SHOW THAT ITS WITNESSES HAD FIRST-HAND KNOWLEDGE OF THE FACTS. (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURORS PROPERLY ON THE LAW OF ATTEMPT NOTWITHSTANDING THE FACT THAT AN ATTEMPT WAS AN ESSENTIAL ELEMENT OF THE CRIME OF RESISTING ARREST. (NOT RAISED BELOW).
THE SENTENCE IS EXCESSIVE:
A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM.
1. THE TRIAL COURT ERRONEOUSLY IMPOSED AN EXTENDED TERM BASED ON N.J.S.A. 2C:43-6(f).
2. THE TRIAL COURT ERRONEOUSLY IMPOSED AN EXTENDED TERM BASED ON N.J.S.A. 2C:44-3(a).
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
C. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
The issues set forth in Points I, III, IV, V, VI, and VII were not raised by Cunningham at trial and thus are evaluated on appeal under the plain error standard. See R. 1:7-2; R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
After a careful review of the record, we find Cunningham's arguments in Points I, III, IV, V, VI, and VII to be without sufficient merit to warrant extended discussion on appeal. R. 2:11-3(e)(2). We add only the following.
With respect to Point V, Cunningham argues that the State was improperly allowed to rely on "guilt by association evidence" admitted through King and Yeager's testimony that he was apprehended in a "high narcotics trafficking area."*fn1 With respect to the testimony offered by King, we recognize that the Supreme Court has stated that expert testimony that a drug "exchange took place in a high-crime area" is permissible. State v. Summers, 176 N.J. 306, 315 (2003). The Court stated:
[W]e are not persuaded that the risk of undue prejudice from the expert's testimony substantially outweighed its probative value. [The officer's] opinion was highly probative of the distribution offenses and necessary to assist members of the jury, who presumably were unschooled in the drug trade. Although, as just noted, the State presented substantial overall evidence of defendant's guilt, the expert's testimony uniquely aided the jury. It did so by helping jurors to understand how drugs are packaged, priced, concealed, and sold consistent with distribution in high-crime areas. [Id. at 316-17.]
We find that the testimony of King fits squarely within the principles announced in Summers and can find no plain error caused by its admission at defendant's trial.
Additionally, we find the testimony of Yeager to have been properly admitted as opinion testimony of a lay witness. See N.J.R.E. 701 ("If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue."). "Courts in New Jersey have permitted police 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). We believe that the trial court properly allowed Yeager to testify that Ablett village was "a documented narcotics distribution location" as his testimony was "rationally based on the perception of the witness."
In Point II, Cunningham argues that the trial judge erred by not informing the jury that they could request a readback of the trial testimony. During their deliberations, the jury delivered a note to the trial judge which read: "Is [defendant]'s arm injury a result of the arrest? (Is it still broken? Why is it in a sling?)." The following exchange then took place between the trial judge and counsel outside the presence of the jury:
The Court: My suggestion is to advise the jury that they are to just recall any testimony. If there was any testimony regarding the arm, then they are to recall that testimony and use that testimony however they feel they should use it.
Any suggestions? Any comments?
[Defense Counsel]: Your Honor, would the jury be permitted to request a readback?
The Court: Sure they can.
I propose to instruct the jury that if, in fact, there was testimony regarding the defendant's arm injury, you are [to] refer to your recollection of that testimony and evaluate it.
If they, in fact, come back -- I'm not going to suggest [to] them [a] readback. If they wish the Court to read back that portion of the testimony, then we'll deal with that issue at the appropriate time if they ask for it.
They haven't asked for it yet. But, I'm just going to instruct them with regard to their recollection. . . .
[Prosecutor]: No objection from the State.
The Court: [Defense Counsel]?
[Defense Counsel]: Your Honor, just a further inquiry. Is the jury aware of the fact that they can ask for one?
The Court: Well, I don't know if they are aware of it or not. There is no instruction regarding -- The only instruction is that if they have a question to advise the Court. . . . There is no instruction about asking for a readback.
[Defense Counsel]: Your Honor, would the Court be able to instruct them as to their ability to get a readback at this point or is it impossible for them to get that instruction?
The Court: I'm not going to give them that instruction.
I mean, if they want a readback, they are going to have to ask for it.
[Defense Counsel]: Very good. Thank you, Judge.
Cunningham argues that the above exchange represents "a timely and specific objection." While we do not see the above exchange evidencing a clear objection to the trial judge's decision, we will give Cunningham the benefit of the doubt because no matter what the applicable standard of review, we find the trial judge committed no reversible error.
We recognize the right of the jury to request and receive a readback of the trial testimony. State v. Wolf, 44 N.J. 176, 185 (1965). However, we cannot find, nor has Cunningham been able to direct us to, any case law that a trial judge must instruct the jury on their right to request a readback following a factual inquiry by the jury. On the contrary, the Supreme Court has stated the trial judge "may inquire if [the jurors] wish to hear the testimony . . . whether or not a party suggests it. But [the trial judge] should not burden a jury with unnecessary reading they do not indicate a need to hear." Ibid. (emphasis added). Further "[i]f [the jurors] do not ask for further reading there is no right in a party to demand it." Ibid.
We find no error in the trial judge's decision not to instruct the jury on their right to have testimony read back. We affirm Cunningham's conviction as he has not demonstrated plain error under Points I, III, IV, V, VI, and VII nor any error under Point II.
A review of Cunningham's sentence, as the State concedes, necessitates a remand. The trial judge sentenced Cunningham to twelve years for count three. However, count three, which charged a violation of N.J.S.A. 2C:35-7.1, was a second-degree offense, for which the sentencing range is imprisonment for a term between five and ten years. N.J.S.A. 2C:43-6(a)(2). The trial judge, however, sentenced Cunningham to a twelve-year term of imprisonment for count three, apparently believing that count three was subject to a mandatory extended term under N.J.S.A. 2C:43-6(f). However, N.J.S.A. 2C:35-7.1 is not one the enumerated offenses in N.J.S.A. 2C:43-6(f) warranting an extended term.*fn2
The State did request a discretionary extended term for count three based on Cunningham's status as a persistent offender under N.J.S.A. 2C:44-3(a). However, the State concedes that the trial judge, by failing to address whether the extended term was necessary for the "protection of public," did not engage in the necessary fact-finding to warrant the imposition of a discretionary extended term as required at the time of sentencing.
After Cunningham was sentenced, the Supreme Court decided State v. Pierce, 188 N.J. 155 (2006). Prior to Pierce, the permissible sentencing range for a second-degree crime with an extended term was between ten and twenty years. N.J.S.A. 2C:43-7(a)(3). In Pierce, the Court expanded the range of permissible sentencing for defendants eligible for an extended term under N.J.S.A. 2C:44-3(a), and also clarified the procedures to be used when deciding to impose a discretionary extended term.
[W]e must restate the sentencing procedures established in our prior cases to set in proper perspective the timing and purpose of the judicial fact-finding related to the "need for protection of the public." That finding is not made until after a defendant has been determined to be subject, for Apprendi*fn3 purposes, to a sentence up to the maximum of the discretionary extended-term range based on statutory eligibility as a persistent offender. The determination of the length of sentence imposed on a defendant and whether that sentence should be within the permissibly enhanced range are, and henceforth must be regarded as, separate and distinct from the court's determination of the top of the entire range of sentences to which a defendant is potentially subject as a persistent offender. The sentencing court must first, on application for discretionary enhanced-term sentencing under N.J.S.A. 2C:44-3(a), review and determine whether a defendant's criminal record of convictions renders him or her statutorily eligible. If so, then the top of the range of sentences applicable to the defendant, for purposes of Apprendi, becomes the top of the enhanced range. Thereafter, whether the court chooses to use the full range of sentences opened up to the court is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public. Consideration of the protection of the public occurs during this phase of the sentencing process.
. . . [T]he range of sentences, available for imposition, starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range. By recognizing that the top of the extended-term range is the "top" applicable to a persistent offender, we do not make mandatory a defendant's sentencing within the enhanced range. Rather, we merely acknowledge that the permissible range has expanded so that it reaches from the bottom of the original-term range to the top of the extended-term range. [Pierce, supra, 188 N.J. at 168-69.]
Consequently, the range for an extended term on a second-degree crime is now between five and twenty years. On remand, should the trial judge find Cunningham eligible for an extended term, he must consider the now enlarged sentencing range. See N.J.S.A. 2C:43-6(a)(3); N.J.S.A. 2C:43-7(a)(2).
Cunningham was originally sentenced to two extended terms. The extended term for count two was mandatory under N.J.S.A. 2C:43-6(f). Ordinarily, N.J.S.A. 2C:44-5(a)(2) prohibits the imposition of two extended terms at any one sentencing. However, "[t]he N.J.S.A. 2C:44-5(a)(2) prohibition of more than one extended term '[w]hen multiple sentences of imprisonment are imposed on a defendant for more than one offense,' N.J.S.A. 2C:44-5(a), does not apply to mandatory extended terms." State v. Singleton, 326 N.J. Super. 351, 355 (App. Div. 1999) (citing State v. Connell, 208 N.J. Super. 688, 691-92 (App. Div. 1986)). On remand, the trial judge remains free, upon finding Cunningham eligible and articulating his reasons, to sentence him to a discretionary extended term for count three.
Cunningham also challenges the trial judge's findings of aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a), and finding no mitigating factors. See generally N.J.S.A. 2C:44-1(b). However, we find that the trial judge's finding of aggravating factors three, six, and nine and no mitigating factors was sufficiently supported by the record. State v. Ghertler, 114 N.J. 383, 388 (1989). Cunningham also argues that the trial judge erred by engaging in unconstitutional fact finding. However, Cunningham fails to point to any specific portion of the transcript at sentencing to support this position.
In conclusion, we affirm the conviction on all counts. However, we remand the matter for resentencing consistent with this opinion.
Affirmed in part and remanded for resentencing.