On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-07-1605.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Lyons and Waugh.
Defendant, Gary Robert Davis, appeals his convictions, after trial by jury of all counts of an indictment charging him with possession of a controlled dangerous substance (CDS) in the third-degree, contrary to N.J.S.A. 2C:35-10a(1) (count one); possession of a CDS in the third-degree with intent to distribute, contrary to N.J.S.A. 2C:35-5b(3) (count two); distribution of a CDS in the third-degree, contrary to N.J.S.A. 2C:35-5b(3) (count three); third-degree possession of a CDS on or within 1000 feet of school property with the intent to distribute, contrary to N.J.S.A. 2C:35-7 (count four); and third-degree distribution of a CDS on or within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (count five). We affirm defendant's convictions and his sentence. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
On March 31, 2005, Kurt T. Stump, age thirty-six, and Richard Ink, age twenty, took the train to Asbury Park to buy drugs. At approximately 3:00 p.m., they walked to the corner of Emory and Sewall streets, an area known for drug transactions. Detective Philip Montgomery*fn1 and Patrol Officer Daniel Newman of the Asbury Park Police Department, both eight-year veterans of the force, were on patrol that day and were stationed at Emory Street, near the Emory Street General Store, which is located within 1000 feet of a school zone. Officer Newman walked the area surrounding the General Store while Detective Montgomery conducted surveillance from across the street, approximately one-hundred feet from the store front. The officers were dressed in plain clothes.
Stump and Ink were looking for a man they knew as "Face," a known drug dealer. Both Stump and Ink identified defendant as "Face" during trial. Stump testified that he knew defendant for approximately six years and had met him numerous times. Ink stated that he had met defendant at least once before, though he only knew him by his "nickname."
Defendant, who resided in Asbury Park at the time, admitted to being known as "Face," but testified that "four or five" other people in the neighborhood also had that nickname. However, defendant conceded that he was the only one known as "Face" in the area on that particular date.
When Stump and Ink arrived at the Emory General Store, they found defendant standing out front with a group of black males whom they did not know. Both Stump and Ink described defendant as wearing a green jacket and a red hat in the statements they gave to the police. Stump, who was more familiar with defendant, approached him and asked to buy three bags of heroin and $10 worth of crack cocaine. Defendant agreed and walked out of sight for about "four or five minutes" to retrieve the drugs. At this point, Detective Montgomery observed "two white males," whom he identified as Stump and Ink, standing near the payphone near the storefront. Detective Montgomery immediately recognized Stump.
While Stump and Ink waited for defendant to return, Stump walked over to the payphone and pretended to make a call in order to appear "inconspicuous." Detective Montgomery then observed as defendant, whom he also knew, emerged from a hole in a fenced-off portion of an alleyway behind the General Store. Detective Montgomery testified that defendant, who was wearing "a green jacket and a red hat," walked directly over to Stump and Ink and handed Stump what was later revealed to be three glycerin bags containing heroin and one "rock" of crack cocaine. Stump immediately paid defendant $38 in cash and started walking with Ink down Emory Street. Detective Montgomery notified Officer Newman to respond to his location and then approached Stump and Ink.
Detective Montgomery identified himself as a police officer and ordered Stump and Ink to stop as they walked down Emory Street. Stump then threw the drugs on the ground. Detective Montgomery immediately retrieved the contraband and placed Stump and Ink under arrest. Officer Newman then arrived on the scene in an unmarked police vehicle and Detective Montgomery instructed him to remain with Stump and Ink while he went to look for defendant.
Detective Montgomery proceeded back toward the Emory General Store and went through the same hole in the fence he observed defendant climb through. The alleyway led to a backyard in a residential neighborhood. Detective Montgomery was able to see into a neighboring yard, where he observed people standing around near the front door of a home. The detective proceeded through the backyard and up to the front door of the house, which was partially opened. Detective Montgomery knocked on the door and peered into the house. He saw defendant inside, still wearing the green jacket and red hat. He identified himself and then asked defendant to step outside. Defendant complied and was placed under arrest.
Defendant testified that on March 31, 2005, he had been at his girlfriend's house located on the block behind the Emory General Store for a cookout. He asserted that he saw Stump and Ink at the General Store from his girlfriend's backyard and observed an individual he knew as Walter Oxen hand Stump something. He described Oxen as "about my height, same complexion." Defendant admitted that he was wearing a green jacket and a red hat that day but stated that he and Oxen were wearing similar clothes. Defendant denied climbing through the hole in the fence to go to the General Store on the day of his arrest, though he did testify that he could fit through the hole and had climbed through it before. Defendant claimed that he saw Oxen leave the area of the General Store and defendant was arrested approximately five minutes later.
The officers transported all three suspects to the police station for processing. Officer Newman asked Ink and Stump if they would be willing to give a statement. Both agreed. Officer Newman read them their Miranda*fn2 rights, had them sign a waiver, and then asked them to write down the events that led up to their arrest in their own words. Officer Newman read the jury these statements at trial over defendant's objection.
Detective Montgomery transported the suspected heroin and cocaine to Police Headquarters. He requested that the evidence be tested at the New Jersey State Police Lab. The substance in one of the glycerin bags tested positive for heroin. The suspected crack cocaine was not tested.
Co-defendants Stump and Ink were both charged with third-degree conspiracy to possess a CDS, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10a(1), and third-degree possession of a CDS, contrary to N.J.S.A. 2C:35-10a(1). They both pled guilty to possession of a controlled dangerous substance in the third-degree. As part of his plea agreement, the State dropped Stump's charge of conspiracy. He received a probationary sentence in exchange for enrolling in the Integrity House and for "testify[ing] truthfully against" defendant in this case. Ink's charge of conspiracy was likewise dropped and he also received a probationary sentence. Ink's plea agreement was not conditioned on his testimony at defendant's trial. Both Stump and Ink testified to the conditions of their plea agreements.
Defendant moved for a mistrial during the first day of trial. The trial judge denied defendant's motion. Defendant moved for a judgment of acquittal after the State rested, which the trial judge denied. The jury found defendant guilty on all counts. Thereafter, defendant began serving a sentence in Missouri on an unrelated conviction.
Defendant appeared before the trial judge on October 19, 2007, for sentencing. At that time, defendant pled guilty to the violation of his probation on his 2004 conviction for possession of a CDS, contrary to N.J.S.A. 2C:35-10a(1) (Indictment No. 03-12-2421). Defendant's arrest constituted a violation of that probation sentence.*fn3 The trial judge then merged counts one through four into count five of defendant's indictment and sentenced him to five years imprisonment with a three-year period of parole ineligibility. As a result of the violation of his probation, the trial judge also re-sentenced defendant to four years imprisonment on the 2004 conviction, to run concurrent to the five-year sentence. Both sentences were to run consecutive to defendant's Missouri sentence. The trial judge ordered defendant to pay the following fees and penalties: a $1,000 DEDR penalty; $50 in lab fees; a $30 LEOTEF penalty; a $50 VCCB penalty; and $75 Safe Neighborhood Services Fund penalty. Defendant was also required to pay $1,405 in extradition costs.
On appeal, defendant now presents the following arguments for our consideration:
THE TRIAL COURT ERRED IN FAILING TO APPROPRIATELY INSTRUCT THE JURY REGARDING THE LIMITED ADMISSIBILITY OF THE GUILTY PLEAS ENTERED BY BOTH CO-DEFENDANTS. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF TESTIMONY ELICITED BY THE PROSECUTOR FROM CO-DEFENDANT STUMP CONNECTING THE DEFENDANT WITH PRIOR DRUG TRANSACTIONS.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S RULING PERMITTING THE PROSECUTOR TO ELICIT PRIOR CONSISTENT STATEMENTS OF BOTH CO-DEFENDANTS PURSUANT TO N.J.R.E. 607.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED FROM CO-DEFENDANT INK WHICH SERVED TO BUTTRESS THE PREVIOUS TESTIMONY OF CO-DEFENDANT STUMP CONNECTING THE DEFENDANT WITH PREVIOUS DRUG TRANSACTIONS. (NOT RAISED BELOW).
THE DEFENDANT IS ENTITLED TO A REMAND FOR A DETERMINATION AS TO THE REASONS FOR THE STATE'S DECISION REFUSING TO WAIVE SOME OR ALL OF THE PAROLE DISQUALIFIER PURSUANT TO N.J.S.A. 2C:35-7. (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Defendant also sets forth the following arguments pro se:
THE TRIAL COURT ERRED, TO THE PREJUDICE OF DEFENDANT, DENYING HIS RIGHTS TO A FAIR TRIAL, DUE PROCESS OF LAW EQUAL PROTECTION, WHERE THE COURT ALLOWED MR. DAVIS TO BE TRIED UPON A DUPLITIOUS [SIC] INDICTMENT, ALSO VIOLATIVE [SIC] OF THE DOUBLE JEOPARDY CLAUSE, [AND] WHERE THE CHARGING DOCUMENT HE WAS TRIED ON WAS VOID OF ANY GRAND JURY FOREMAN OR PROSECUTOR'S SIGNATURE, OR A COURT'S ...