May 19, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAKEEM KELLUM A/K/A RAHEEM COLLINS, JEROME BROWN, BRIAN TURNER, AND RAHIM KELLUM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-03-1075.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 20, 2009
Before Judges Lisa and Reisner.
Defendant, Rakeem Kellum, along with his co-defendant, Sheirron Jones, was indicted for (1) fourth-degree possession of less than one ounce of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1), and (2) third-degree possession of less than one ounce of marijuana with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7.*fn1 Shortly before trial, Jones, pursuant to a plea agreement, pled guilty and received a favorable sentence. It was anticipated that she would testify for the State in defendant's trial, and the State subpoenaed her. However, she invoked her Fifth Amendment right and refused to testify. Defendant went to trial and was found guilty of both counts. After merging count one with count two, Judge Hornstine imposed a mandatory extended term sentence, see N.J.S.A. 2C:43-6f, of ten years imprisonment with a five-year period of parole ineligibility.
On appeal, defendant argues:
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 INFRINGED BY THE PROSECUTOR'S VIOLATION OF HER PRIMARY DUTY TO DISCHARGE JUSTICE. (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 STATE'S EXPERT WITNESS ON NARCOTICS TRAFFICKING RENDERED OPINIONS ON FINGERPRINTS THAT WERE BEYOND THE SCOPE OF HIS EXPERTISE. (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 TRIAL COURT'S FAILURE TO INSTRUCT JURORS THAT THEY MAY CONSIDER THE ABSENCE OF DRUG TESTING OF ALL THE ALLEGED CONTRABAND WHEN DECIDING WHETHER THE STATE MET ITS BURDEN OF PROOF.
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 PERMITTED THE STATE'S EXPERT WITNESS TO ALSO BE A FACT WITNESS WITHOUT ADEQUATE GUIDANCE TO THE JURY.
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.
THE SENTENCE WAS EXCESSIVE.
A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM.
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
C. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
D. THE IMPOSITION OF A TEN-YEAR SENTENCE WITH A FIVE-YEAR PERIOD OF PAROLE INELIGIBILITY, RESULTING FROM THE SEIZURE OF LESS THAN ONE TENTH OF AN OUNCE OF MARIJUANA, IS CRUEL, UNUSUAL, AND SHOCKING.
We reject these arguments and affirm.
On December 4, 2006, at about 8:30 p.m., New Jersey State Trooper Scott Orman was conducting a surveillance in a high drug area in the Whitman Park section of the City of Camden. He observed a man and woman, later identified as defendant and Jones. Another woman, who was never identified, approached Jones and handed her paper currency. Jones gestured to defendant. The unknown woman then approached defendant, engaged in a brief conversation, and received from defendant a small item. The unknown woman quickly left the area. Suspecting that he witnessed a drug transaction, Orman arrested defendant and Jones. Back-up officers arrived. Eight bags of marijuana were recovered from defendant's person. Orman recovered two more from the ground near defendant, which he had seen him discard as Orman approached to make the arrest. Five more bags containing marijuana were seized from Jones' person. All of the bags matched in size, color and contents. In addition, $106 was found on defendant and $564 on Jones.
At trial, the State called Investigator Mark English of the Camden County Prosecutor's Office, an expert in street-level narcotics activity in the City of Camden. He opined that under circumstances similar to those in this case, considering the number of bags, the amount of currency, and the actions of the two co-defendants, the bags of marijuana would be possessed for purposes of distribution rather than personal use. The State Police laboratory report, which confirmed that the contents of the two bags that were tested were marijuana, was stipulated in evidence. One of the bags tested was recovered from Jones' person. The other was seized from defendant's person or was one of the two bags he discarded.
Defendant argues that the State violated his constitutional rights by entering into a plea agreement with Jones conditioned upon her providing "a truthful factual against her co-defendant." According to defendant, Jones was required by the plea agreement to provide inculpatory testimony on behalf of the State at defendant's trial. We first note that we have not been provided as part of the appellate record with the record of Jones' plea agreement. We have not been furnished with the completed plea form, nor with the transcript of her plea or sentence. Our information is limited to colloquy at defendant's trial between Jones' assigned counsel, the prosecutor, and the judge. In that colloquy, the judge read from Jones' presentence report and plea form as follows:
It says here [in the presentence report] open Brimage plea forfeiting money, waiving appeal, truthful, factual basis regarding co-defendant, license suspension. And here's the plea form[.] . . . It says here truthful, factual basis regarding co-defendant. Does not say whether or not that is at the time of the plea or at the time of trial. It doesn't say.
It further appears from the colloquy that in providing the factual basis to support her guilty plea, Jones inculpated defendant. Finally, it appears that, although not provided for in the plea agreement, the judge, at sentencing, imposed as a condition of Jones' probation that she testify truthfully against defendant.
Jones invoked her Fifth Amendment right because her anticipated trial testimony might be incriminating. Her counsel suggested, without specificity, that her trial testimony might be inconsistent with her sworn testimony at her plea hearing. No further particulars were given.
As we stated, it was the State that subpoenaed Jones as a witness. Defendant never gave any indication that he intended to call her as a witness or that he was precluded from calling her because she invoked her Fifth Amendment right.
Defendant now argues that he was deprived of due process because of this arrangement. He suggests for the first time on appeal that Jones could have exonerated him at trial, but was precluded from doing so because she was induced by the State to falsely implicate defendant at her plea hearing. In his appellate brief, defendant sets forth the argument this way:
By requiring that true testimony implicate the defendant, the State, not the facts, determines the truth. This case highlights the need for the courts to ensure that the State discharges justice by precluding the State from conditioning its pleas with the requirement that co-defendants testify "truthfully against the defendant." To carry out its primary duty of discharging justice, the State is compelled to ensure that co-defendants testify truthfully, period.
We reject defendant's argument for several reasons. First, his suppositions about the truthfulness of Jones' testimony at her plea hearing and whether she would have provided exculpatory evidence on his behalf at trial if not for her plea testimony is speculation. Second, it appears from the limited information available to us that the plea agreement merely required Jones to tell the truth "regarding co-defendant," not to testify against him at trial. The latter requirement was imposed by the court, not the State. Therefore, we view defendant's characterization of the plea agreement as inaccurate.
Further, the State may condition a plea agreement with one co-defendant upon his or her truthful testimony against other co-defendants. State v. Marshall, 148 N.J. 89, 163 (Marshall III), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). That the co-defendant accepting the plea agreement may be motivated to lie does not establish that he in fact perjured himself concerning the material aspects of his testimony against his co-defendant. Ibid.
Of course, the State may not enter into a "no testimony" plea agreement conditioned upon the promise that the pleading co-defendant will not testify on behalf of the defendant. State v. Fort, 101 N.J. 123, 130-31 (1985). The State may not use threats or intimidation that substantially interfere with the decision of a witness to testify for the defendant. State v. Feaster, 184 N.J. 235, 262 (2005). Nothing in the record suggests that the State violated these principles. However, the State is permitted to enter into a plea agreement asking the co-defendant not to remain silent but to testify truthfully, even if the agreement provides favorable inducements to implicate the defendant. State v. Long, 119 N.J. 439, 488-89 (1990); State v. Murphy, 376 N.J. Super. 114, 122-24 (App. Div. 2005); State v. Baker, 270 N.J. Super. 55, 70-71 (App. Div.), aff'd, 138 N.J. 89 (1994).
In his next point, defendant argues for the first time on appeal that, because English was never qualified as an expert in fingerprint analysis, he exceeded the scope of his expertise when he opined that police do not usually test small bags of suspected drugs for fingerprints because the bags are handled by so many different people that obtaining a positive match would be difficult. There was no objection to this direct testimony. On cross-examination, defense counsel elicited from English that he was not an expert in the area of fingerprint analysis, he had never attempted to fingerprint small bags such as those in this case, and he was "basically . . . just guessing." Defense counsel highlighted these concessions in summation. On appeal, defendant now argues that "English's testimony . . . undermined the juror's [sic] ability to assess fairly the lack of fingerprint evidence."
We first note that because there was no objection at trial, our review is guided by the plain error standard. We will not reverse on the ground of such error unless it was "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice, but the possibility 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). Applying these principles, English's testimony regarding fingerprints provides no basis for reversal.
English's testimony was not expert testimony in the field of fingerprint analysis. Thus, he did not testify as a fingerprint expert. The gist of his testimony was within the scope of his knowledge as a narcotics investigator regarding established police procedures. Further, it is apparent that defense counsel made a strategic decision to allow the direct testimony on this point and then capitalize on it through effective cross-examination and summation argument, undermining English's credibility and the State's presentation of its case.
Defendant's third point pertains to a question asked by the jurors during deliberations. They asked "why would the lab not have checked all the bags?" Defense counsel requested the following instruction: "[T]here was no explanation given for why they didn't test all the bags and it's up to the jury to decide what weight to give that lack of testimony." The State objected and argued that the laboratory results were stipulated to, the laboratory was not required to test all the bags, and the court had already given the standard instruction that the jury could infer reasonable doubt from the lack of certain evidence in the record. Judge Hornstine declined to give the instruction requested by the defense, and instead told the jury: "That is not in evidence and again, you should consider the testimony you have heard together with the exhibits that have been moved into evidence."
The judge's response to the jurors' question was appropriate. The jury had been properly instructed that reasonable doubt could arise from the evidence itself or a lack of evidence. The response requested by defendant was not neutral but was skewed to advance a defense argument, namely that there was indeed a "lack" of evidence that should result in a reasonable doubt as to his guilt. The judge did not mistakenly exercise his discretion in declining to give such an instruction.
In his fourth and fifth points, defendant takes issue with English's testimony, over defense objection, that the location where defendant was apprehended is considered a high drug trafficking area. Defendant first argues that this testimony was improper because it was factual testimony given by an expert witness. Defendant further argues that it tended to establish "guilt by association" merely by being in such an area. On the latter point, we note that on cross-examination English acknowledged that he would not conclude that an individual was selling drugs just because he or she was in Whitman Park.
The dual use of a fact and expert witness has the potential to create confusion for the jury, and may have a tendency to bolster the factual testimony of the witness because of his or her expert status, and should generally be avoided. State v. Jackson, 278 N.J. Super. 69, 78 (App. Div. 1994), certif. denied, 141 N.J. 95 (1995). In this case, English was not involved in the surveillance or apprehension of defendant. Therefore, this is not a situation in which testimony of the witness regarding the facts forming the subject of the crime on trial would be bolstered by the expert status of the witness. His comment that Whitman Park is a high drug trafficking area was very general in nature and within the scope of his knowledge as a narcotics investigator in the City of Camden. He acknowledged that drug distribution is not more common in certain areas of Camden than in others because "it's all over the city." In the overall scope of this trial, the evidence was relatively innocuous. If nothing more, it provided a reason why police established a surveillance at that location. The defense did not request a limiting instruction. Any error was harmless.
Defendant's guilt by association argument is unpersuasive.
English acknowledged that merely being in a high drug area would not lead to a conclusion that the person must be involved in illegal drug activity. The prosecutor never made any such argument. This testimony did not have the capacity to mislead or improperly influence the jury and it provides no basis for reversal.
Finally, we address defendant's argument that his sentence is excessive. He received a maximum extended term sentence. He argues that because of the small quantity of drugs involved, this was improper. We do not agree.
Because defendant had prior convictions for distribution or possession with intent to distribute drugs, the State moved for a mandatory extended term sentence pursuant to N.J.S.A. 2C:43-6f. Indeed, defendant's adult record, dating back to 1997, includes eight indictable convictions, three of which were for distribution or possession with intent to distribute illegal drugs. Defendant also had a number of disorderly convictions as an adult. As a juvenile, he had two adjudications for drug offenses, one of which was for possession with intent to distribute.
Defendant argues that his sentence was improper for two reasons. First, relying on State v. Lagares, 127 N.J. 20, 31 (1992), he contends the State did not express its reason for invoking its authority to seek a mandatory extended term under N.J.S.A. 2C:43-6f. Second, he argues that because of the small quantity of marijuana involved, a maximum extended term sentence was excessive.
We first note that defendant did not raise the Lagares issue in the trial court, but acquiesced in the prosecutor's motion for a mandatory extended term sentence. Further, defendant has advanced no basis under the Attorney General Guidelines upon which the prosecutor should have or could have refrained from seeking the extended term. The only factor in the Guidelines that weighs in defendant's favor is the relatively small quantity of drugs (although the significant amount of cash seized from defendant and Jones suggests they sold a significant quantity of drugs before they were arrested). All other factors weigh heavily against him. Any error in the failure of the prosecutor to articulate the reasons for seeking the extended term was harmless.
In imposing sentence, Judge Hornstine found the presence of three aggravating factors, the risk that defendant would commit another offense, the extent and seriousness of his prior criminal record, and the need for deterrence. N.J.S.A. 2C:44-1a(3), (6) and (9). He found no mitigating factors. N.J.S.A. 2C:44-1b. We reject defendant's argument that the judge should have found some mitigating factors. None were applicable here.
We also reject defendant's arguments that the judge double counted aggravating factors because defendant's prior conviction for distribution or possession with intent to distribute drugs was already counted in establishing the basis for the mandatory extended term. As we have pointed out, defendant had multiple prior indictable convictions beyond a single predicate offense triggering the applicability of N.J.S.A. 2C:43-6f.
We are satisfied that the judge's findings on aggravating and mitigating factors were based on competent and credible evidence in the record, that the judge correctly applied the sentencing guidelines enunciated in the Code of Criminal Justice, and that the sentence imposed was not manifestly excessive or unduly punitive and did not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).