May 29, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TYRESS EDWARD HIX, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-09-1180.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 13, 2009
Before Judges Parker and LeWinn.
Defendant Tyress Edward Hix appeals from a judgment of conviction entered on February 10, 2006 after a jury found him guilty of third degree distribution of heroin, N.J.S.A. 2C:35-5b(3); and third degree distribution in a school zone, N.J.S.A. 2C:35-7. After the appropriate merger, defendant was sentenced to an extended term of nine years subject to four years parole ineligibility.
This was defendant's second trial. The first trial ended after the court granted defendant's motion for a mistrial when a police officer testified that he knew defendant from "previous investigations." A second jury was selected the same afternoon and the case was tried to conclusion with defendant's conviction.
The charges arose out of a routine undercover operation on July 9, 2004. Elizabeth Police Department Detective Christopher Flatley and his partner Lieutenant Tyrone Torner were patrolling in an unmarked car. They saw a red Toyota Camry double-parked on the wrong side of the street in front of 310 Magnolia Avenue. Flatley, who knew defendant, saw him walk up to the driver's side of the Camry, pull a small brown paper bag from the back of his pants and, after a brief conversation, give the driver of the Camry an object pulled from the bag in exchange for money. The Camry drove down the street, but the passenger got out and walked back toward defendant. They had a brief conversation and defendant again removed a few small objects from the paper bag and gave them to the passenger in exchange for money. The passenger got back in the Camry, which then drove away. As Flatley drove toward defendant, he turned and ran into 310 Magnolia Avenue and closed the door.
The officers followed the Camry and radioed to a marked police car to make the stop. When the Camry was stopped, the driver dropped two glassine envelopes containing heroin on the ground as he got out of the car. The driver and passenger were arrested and the officers went back to 310 Magnolia to look for defendant. They found him hiding in an open garage next to the house. When he was searched, $178 was found on his person.
In this appeal, defendant argues:
HIX'S CONVICTION MUST BE REVERSED AS IT VIOLATES FEDERAL AND STATE PROHIBITIONS AGAINST DOUBLE JEOPARDY.
HIX'S RIGHT TO CONFRONTATION WAS VIOLATED BY THE TRIAL COURT'S ADMISSION OF THE MUNICIPAL ORDINANCE AND THE THOUSAND FOOT MAP. U.S. Const., amends VI, IV; N.J. Const., art. I, ¶ 10. (Not Raised Below).
HIX'S SENTENCE IS EXCESSIVE AND REQUIRES A REMAND PURSUANT TO STATE V. THOMAS.
A. The Sentencing Court Inappropriately Found and Weighed Aggravating Factors.
B. The Sentencing Court Failed To Find Mitigating Factors Militating In Favor Of A Lesser Sentence.
C. The Sentence On Count Two Must Be Remanded for Resentencing In Accordance With State v. Thomas.
Defendant first argues that his conviction must be reversed on the ground that double jeopardy precluded his second trial. He contends that the State "goaded" him into making the mistrial motion when Flatley intentionally violated the court's order prohibiting him from testifying that he knew defendant from "previous investigations."
Prior to trial, defendant moved in limine to preclude Flatley from stating that he knew "that [defendant] has been arrested in the past for narcotics distribution." The trial court granted the motion, stating: "[T]hat's a very wise thing to do, prior to trial, to make sure it doesn't slip out, because if it did slip out, we just have to do the trial all over again."
Defendant claims that "Flatley's knowledge is imputed to the prosecutor." No one disputes that the prosecutor knew of Flatley's contact with defendant in prior investigations. There is no evidence, however, from which we can conclude that the prosecutor in any way encouraged Flatley's statement or "goaded" defendant into making the mistrial motion. Indeed, before the court granted defendant's motion in limine, the prosecutor represented to the court that she had spoken to Flatley "about the same issue."
In State v. Torres, 328 N.J. Super. 77, 86 (App. Div. 2000), we noted that double jeopardy does not generally attach when a mistrial is declared at a defendant's behest. We further noted, however, that "an errant prosecutor, sensing that completion of the trial will result in an acquittal, may purposely 'goad the [defendant] into requesting a mistrial.'" Ibid. (quoting United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed. 2d 267, 276 (1976)). Under that circumstance, we concluded that double jeopardy "should attach to a mistrial deliberately provoked by the prosecutor." Ibid. In Torres, we found no double jeopardy bar to retrial because there was "nothing in the record to support the conclusion that the assistant prosecutor intentionally goaded defendant into requesting a mistrial." Id. at 88-89. Moreover, we found "nothing in the record [that] suggests a motive for provoking a mistrial." Id. at 89.
"Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S.Ct. 2083, 2089, 72 L.Ed. 2d 416, 424 (1982). Double jeopardy "is not a sanction to be applied for the punishment of prosecutorial or judicial error." Torres, supra, 328 N.J. Super. at 93.
Here, Flatley was the State's first witness and had barely begun his testimony. There is nothing in the record to indicate that the prosecutor suborned Flatley's response or that she had any reason to do so. Nor is there anything in the record to indicate prosecutorial "bad faith" or "overreaching."
Defendant next argues for the first time on appeal that the court's admission into evidence of Elizabeth Municipal Ordinance 3261 approving drug-free school zones and adopting the Drug Free School Zone Map violated his Sixth Amendment confrontation rights as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004). In Crawford, the United States Supreme Court held that the Sixth Amendment Confrontation Clause precludes the State from relying on hearsay testimony unless it demonstrates that the declarant is unavailable and that the defendant had a prior opportunity for cross-examination. 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed. 2d at 203.
We have held that certain documentary evidence may be testimonial in nature. State v. Kent, 391 N.J. Super. 352, 354-55 (App. Div. 2007) (holding that a State Police chemist's laboratory report is "testimonial" under Crawford); State v. Renshaw, 390 N.J. Super. 456, 462-63 (App. Div. 2007) (holding that a blood test certificate issued under N.J.S.A. 2A:62A-11 is "testimonial" under Crawford). The municipal ordinance and map, however, are not testimonial in nature. Rather, they are public records admissible under N.J.R.E. 803(c)(8), and business records admissible under N.J.R.E. 803(c)(6).
In State v. Dorman, 393 N.J. Super. 28, 33 (App. Div. 2007), aff'd, 195 N.J. 357 (2008), we held that certificates of operability of a breathalyzer before and after it was used to test a defendant's blood alcohol content were admissible as business records under N.J.R.E. 803(c)(6). We noted in Dorman that Renshaw and Kent "have a common element triggering a defendant's right of confrontation," which was not present in the certificates of operability. Ibid. The triggering element is that the documents in Renshaw and Kent were created for specific defendants based upon tests performed to demonstrate essential elements of the cases against those particular defendants. Ibid.
Here, the ordinance and map were adopted by the municipal governing body in the regular course of its business and within the scope of its duties. The Rules of Evidence provide that a "business" "includes activities of governmental agencies." N.J.R.E. 801(d). Both N.J.R.E. 803(c)(6) and (8) are intended to cover admissibility of documents that are objectively reliable, were not prepared for a specific defendant, and have a sufficient guarantee of trustworthiness. Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(6) (2008) (citing Liptak v. Rite Aid, Inc., 289 N.J. Super. 199, 219 (App. Div. 1996)); and comment 3 on N.J.R.E. 803(c)(8) (citing State v. Garthe, 145 N.J. 1, 13-14 (1996); Dorman, supra, 393 N.J. Super. at 33; State v. Cleverley, 348 N.J. Super. 455, 459 (App. Div. 2002)).
Under both N.J.R.E. 803(c)(6) and (8), any objection to the admissibility of a business or public record must be supported by some evidence that the record is not trustworthy. Defendant presents no such evidence here.
We hold that a municipal ordinance adopting drug-free school zones and the map of such zones are not testimonial evidence under Crawford; that the ordinance and map are admissible under N.J.R.E. 803(c)(6) and (8); and that a defendant may object to the admissibility of such an ordinance or map only upon a showing that it lacks reliability or trustworthiness.
We find no merit in defendant's sentencing arguments. He contends that he is entitled to resentencing under State v. Thomas, 188 N.J. 137 (2006), and State v. Natale, 184 N.J. 458 (2005). In Thomas, the Court held that a trial court has the authority to sentence a defendant to a mandatory extended term under N.J.S.A. 2C:43-6(f). 188 N.J. at 152-53. "In accordance with Natale, supra, the court should [determine] defendant's sentence within the extended-term range based on aggravating and mitigating factors found to be present." Id. at 154 (citing Natale, supra, 184 N.J. at 486).
Here, the trial court gave careful consideration to the aggravating and mitigating factors along with defendant's very extensive criminal history, which included three juvenile adjudications, all for drug offenses (two of which were school-zone offenses) and seven prior convictions for indictable offenses, including five for drug offenses (four of which were school-zone offenses).
The court noted that it initially intended to sentence defendant to ten years subject to five years parole ineligibility, "because the record is so horrific and so repetitive and so abusive to selling of drugs within a school zone." After considering defendant's arguments for leniency, however, the court sentenced him to nine years subject to four years parole ineligibility, well within the permissible range for a mandatory extended term under N.J.S.A. 2C:43-6(f).
Defendant's remaining arguments lack sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).
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