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State v. Davis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 10, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GARY ROBERT DAVIS, A/K/A GARY PURYEAR, FACE PURYEAR, STANLEY F. DURHMAN, JR., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-07-1605.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2009

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:

POINT I

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).

POINT II

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.

POINT III

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.

POINT IV

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).

POINT V

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).

POINT VI

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Defendant also sets forth the following arguments pro se:

POINT I

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 SEAL; AND AS SUCH THE COURT LACKED SUBJECT MATTER JURISDICTION OVER THE CASE. (EMPHASIS IN ORIGINAL).

POINT II

THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLANT, DENYING HIS RIGHTS TO A FAIR TRIAL, DUE PROCESS OF LAW AND EQUAL PROTECTION, WHEN THE COURT FAILED TO SUSTAIN HIS MOTION OF JUDGMENT OF ACQUITTAL, IN THAT IT WAS INSUFFICIENT EVIDENCE TO SUPPORT THE CONVICTION, WHERE:

1. The State failed to establish any change of custody;

2. Evidence adduced reflects [sic]; and

3. No weight or testing prior to sending evidence to lab; relation to the map, there was no foundation laid as to it's introduction, [and] either officer could prove by many attempts made to prove that where the alleged sale was made, was within 1.000ft. [sic] of any school zone; [and] Mr. Davis' clothing did not match.

POINT III

THE TRIAL COURT ERRED, AND DENIED APPELLANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW, WHERE THE COURT ON IT'S [SIC] OWN, CHANGED/AMENDED THE INDICTMENT, WITHOUT RESUBMITTING IT TO THE GRAND JURY ITSELF.

Defendant contends that the trial judge erred by failing to charge the jury in compliance with the revised jury charge,

"Testimony of a Cooperating Defendant or Witness," which was modified on February 6, 2006, one month before defendant's trial. Defendant alleges that the trial court did not "instruct the jury regarding the limited admissibility of their guilty pleas, denying to the defendant his right to a fair trial . . . ."

When the trial judge charged the jury regarding Ink and Stump's plea agreements, he stated:

The fact that a witness has been given or promised a benefit or that the witness hopes to receive a benefit does not disqualify him from testifying. You should, however, carefully scrutinize that testimony of the witnesses in light of any benefit he has received or been promised or which he may have some hope which he may have - might have an effect upon his testimony. . . .

The trial judge added, "Just because Mr. Stump and Davis*fn4 were co-defendants at this point and they've pled guilty that doesn't mean that necessarily that Mr. Davis is guilty. Again, you have to look at the entire context of the case as I've been explaining it to you."

Defendant contends that this instruction was inadequate and argues that the trial judge was required to offer an instruction more in line with the following:

_________, who was [charged with] [indicted for] the crime(s) that defendant is on trial for, has pleaded guilty to (one/some of) those charges, namely ____________, and has testified on behalf of the State. Evidence of ________'s plea of guilty may be used only in determining the credibility or believability of the witness' testimony. . . . You may consider such evidence along with all the other factors that I mentioned previously in determining the credibility of a witness. However, you may not use ______'s plea of guilty as evidence that this defendant is guilty of the crimes that he/she is charged with. [Model Jury Charge (Criminal), Testimony of a Cooperating Defendant or Witness, (2006).]

Defendant contends that the trial judge should have further emphasized to the jury that the co-defendants' guilty pleas could not be used as substantive evidence of defendant's guilt. Importantly, defendant did not request the 2006 version of the "Testimony of a Cooperating Defendant" jury instruction, nor did he object to the trial judge's jury instruction at trial.

Because defendant did not object to the instructions at trial, we consider the issue pursuant to the plain error rule.

R. 2:10-2; State v. Adams, 194 N.J. 186, 206 (2008). Generally, a defendant waives the right to contest an instruction on appeal if he does not object to the instructions as required by Rule 1:7-2. Nevertheless, an appellate court may reverse on the basis of unchallenged error if the court finds that the error was "clearly capable of producing an unjust result." R. 2:10-2.

Generally plain error in the context of a jury charge is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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. Jordan, 147 N.J. 409, 422 (1997) (citations omitted); State v. Burns, 192 N.J. 312, 341 (2007). The charge to the jury must be read as a whole in determining whether there was any error. State v. Jordan, supra, 147 N.J. at 422; State v. Adams, supra, 194 N.J. at 207. Also, "[a]lthough arguments of counsel can by no means serve as a substitute for instruction by the court, the prejudicial effect of an omitted instruction must be evaluated in light of the totality of the circumstances - including all the instructions to the jury, [and] the arguments of counsel." State v. Marshall, 123 N.J. 1, 145 (1991) (citations and internal quotations omitted), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993). Nevertheless, because clear and correct jury instructions are fundamental to a fair trial, erroneous instructions in a criminal case are "poor candidates for rehabilitation under the plain error theory." Jordan, supra, 147 N.J. at 422 (citations and internal quotations omitted); State v. Adams, supra, 194 N.J. at 207.

When determining whether a jury charge is proper, the reviewing court need not consider whether the jury was charged in the defendant's own words. State v. Jordan, supra, 147 N.J. at 422. All that is necessary is that the charge as a whole be accurate. Ibid. So long as the jury is given a "legally correct and adequate definition" that conveys the applicable legal principals, no error will be found. State v. Ball, 268 N.J. Super. 72, 113 (App. Div. 1993), aff'd, 141 N.J. 142 (1995).

It has been established that "a defendant may be convicted solely on the uncorroborated testimony of an accomplice." State v. Begyn, 34 N.J. 35, 54 (1961). However, because of the inherent conflict in such testimony, "a defendant has a right, upon request, to a specific jury instruction 'that the evidence of an accomplice is to be carefully scrutinized and assessed in the context of his specific interest in the proceeding.'" Ibid. (quoting State v. Spruill, 16 N.J. 73, 80 (1954)). "'[T]he status of a witness as an accomplice or co-defendant invites special consideration' with respect to that witness's credibility." State v. Harris, 156 N.J. 122, 179 (1998) (quoting State v. Gross, 121 N.J. 1, 16 (1990)). The trial court should therefore caution the jury "regarding the credibility of witnesses who may have a special interest in the outcome of the cause, which might lead to influencing their testimony, because of some involvement in the criminal situation out of which the indictment and trial of the defendant arose." Begyn, supra, 34 N.J. at 54.

Although a co-defendant's guilty plea may be considered for credibility purposes, it may not be used as substantive evidence of the defendant's guilt. State v. Stefanelli, 78 N.J. 418, 433-34 (1979). Our Supreme Court has recognized that "there may be a myriad of 'other undisclosed or collateral factors' that contribute to a co-defendant entering a guilty plea." State v. Adams, supra, 194 N.J. at 208 (quoting State v. Stefanelli, supra, 78 N.J. at 433). More importantly, a defendant is entitled "to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else." State v. Stefanelli, supra, 78 N.J. at 431 (citation omitted). In sum, the trial court should instruct the jury that it must carefully scrutinize the testimony of a co-defendant in light of the witness's special interest and that a co-defendant's guilty plea may be used only to assess credibility and may not be used as substantive evidence of a defendant's guilt.

Here, the trial judge instructed the jury to carefully scrutinize the testimony of co-defendants Ink and Stump, and not to consider their guilty pleas as substantive evidence of defendant's guilt but only in assessing their credibility. Defendant received the benefit of this charge without having requested those instructions. Defendant now contends that the charge the trial judge gave did not properly emphasize that defendant's guilt was not tied to Ink's and Stump's pleas. Specifically, defendant contends the trial judge should have included the statement "you may not use [Ink and Stump's] plea of guilty as evidence that this defendant is guilty of the crimes that he . . . is charged with."

Defendant's argument ignores the clear import of the judge's charge and instead focuses on the words of the model jury charge rather than the substance of what the court did in fact say. Instead of using the quoted language from the 2006 Model Jury Charge, the trial judge instructed the jury that "[j]ust because Mr. Stump and [Ink] were co-defendants at this point and they've pled guilty that doesn't mean that necessarily that Mr. Davis is guilty." This statement was given in the context of the judge clearly explaining that the jury had to look at the witnesses' testimony as a whole.

In addition to the trial judge's instruction to the jury, defense counsel thoroughly cross-examined the co-defendants, and challenged their credibility, reducing the import of jury charge regarding the admissibility of their guilty pleas. State v. Adams, supra, 194 N.J. at 208-09. During his summation, defense counsel noted that both Stump and Ink were facing lengthy jail terms, but neither had served "a day" in prison. He emphasized that "[i]f that's not motive to lie, I don't know what is." Defense counsel then went on to explain how easy it would have been for Stump and Ink to implicate defendant in the drug transaction, reasoning that if defendant testified he had seen Stump from his girlfriend's backyard, Stump could also have seen him, thereby knowing he was in the area of the crime scene. In addition to defense counsel's thorough attack on Stump and Ink's credibility, both witnesses gave detailed testimony about purchasing the drugs from defendant. That detailed testimony independently established their guilt of the crime and their guilty pleas added little weight to that testimony. Ibid.

Clearly the trial judge's jury instruction "did not have the clear capacity to produce an unjust result" and "had a minimal effect on the outcome of trial." Stefanelli, supra, 78 N.J. at 437. We find no error in the charge.

During Stump's cross-examination, the prosecution attempted to solicit from the witness how many times he had met defendant prior to the date of his arrest on March 31, 2006. Defense counsel objected and the trial judge held a sidebar conference, where he stated that the prosecutor could elicit testimony as to how Stump knew defendant, but cautioned him to avoid testimony regarding previous drug transactions. The judge then gave the jury a limiting instruction, stating, "You shouldn't draw any adverse inferences if this witness Mr. Stump said that he met Face or Mr. Davis on prior occasions. . . . The State is attempting to demonstrate that Mr. Stump knew or could recognize this witness for purposes of identification." The prosecutor resumed his questioning and the following exchange ensued:

Prosecutor: And do you know for how many years or months [you have known defendant]? How many times roughly did you - - Stump: Months. I mean, you know, he was the one to see at the - the - Defense Counsel: I'm going to object to anything -Trial Judge: Hang on a minute. Whoa. That's it. That's it. Stop. Stop.

The trial judge then instructed the jury to disregard Stump's last statement and defense counsel promptly moved for a mistrial.

The trial judge denied that motion but gave the jury a curative instruction regarding Stump's statement. The judge informed the jury:

Now I've got to give you what's known as a "curative instruction." There is no testimony, and you will hear no evidence at all, to the effect that Mr. Davis had some prior drug dealing arrangements or meetings with this witness. You have no evidence to that effect. You are not to draw any conclusions to that effect. I am directing that you not draw any conclusions to that effect. . . .

Now, Mr. Stump was about to try and blurt something out and I cut him off. Whatever it is you heard, if you heard it, disregard it.

Defendant now argues that "the jury could not possibly have ignored the clearly inadmissible and highly inflammatory testimony gratuitously volunteered by co-defendant Stump." Defendant also takes issue with Ink's testimony on direct examination, where he testified that Stump "knew Face better," and so he approached him to ask for the drugs. Defendant contends that Ink's testimony, "when viewed in conjunction with the testimony . . . from co-defendant Stump, was prejudicial by serving to buttress the inferences already existing connecting the defendant with previous drug transactions." As such, defendant contends that no curative instruction could have been "sufficient to mitigate the damage resulting from improper evidence or comments."

"[N]ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error . . .; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently." State v. Winter, 96 N.J. 640, 647 (1984) (quoting Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed. 2d 476, 484 (1968)). "A mistrial motion is granted only when the trial court finds that as a result of error manifest injustice would result from continuation of the trial." State v. Hogan, 297 N.J. Super. 7, 14 (App. Div.), certif. denied, 149 N.J. 142 (1997); R. 3:20-1; The court must also consider whether the error might be cured by a cautionary instruction or other curative steps. State v. Winter, supra, 96 N.J. at 646-48 (1984). This determination "'is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.'" State v. Denmon, 347 N.J. Super. 457, 464 (App. Div.), certif. denied, 174 N.J. 41 (2002) (quoting State v. Winter, supra, 96 N.J. at 646-47). Thus, a motion for a mistrial is addressed to the sound discretion of the trial judge.

When weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court. State v. Winter, supra, 96 N.J. at 647. The adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached. State v. Macon, 57 N.J. 325, 335 (1971). "No matter how a test may be stated, the question whether an error is reason for reversal depends finally upon some degree of possibility that it led to an unjust verdict." Ibid.

We find the trial judge's curative instruction was adequate. It was within the judge's discretion to cure Stump's testimony with an instruction and nothing in the record supports the view that the jury failed to heed the judge's instruction. See State v. Wilder, 193 N.J. 398, 416 (2008) (crediting juries for following instructions carefully and applying the facts, as found, to the law, as instructed). Moreover, defendant has not shown he has suffered a "manifest injustice" due to Stump's testimony because the offending evidence did not have the capacity to lead to a verdict that could not otherwise have been justly reached. Stump and Ink both testified that defendant sold them drugs, and both testified that they knew defendant before the date of their arrest. The two arresting officers also testified, with Detective Montgomery stating that he witnessed defendant hand Stump the drugs. Defendant admitted to being in the immediate area of the drug transaction. Based on this plethora of evidence, it is doubtful that had the jury not heard Stump's partial statement about defendant's prior drug involvement, it would have reached a different verdict. See State v. LaBrutto, 114 N.J. 187, 207 (1989) (emphasizing again that the trial court's discretion in denying a mistrial will be deferred to on appeal unless manifest injustice would result).

Defendant's argument that Ink's testimony "buttressed" Stump's statement that defendant was "the person to see" for drugs likewise lacks merits. Ink only testified that he had met defendant on one previous occasion and Stump was more familiar with him. He in no way indicated that he knew defendant from prior drug transactions.

After Ink and Stump were arrested and taken to Police Headquarters, they gave written statements concerning the events that led up to their arrest. Officer Newman read the jury these statements over defendant's objection. Defendant now argues that reading these statements was "an improper attempt to bolster [the witnesses' credibility] through a prior consistent statement, which could only occur to rebut a charge of recent fabrication." The State asserts that defendant's cross-examination of Ink and Stump concerning their plea agreements "implied that they had a motive to lie" and, as such, their prior consistent statements were "properly used pursuant to N.J.R.E. 607 to rehabilitate their credibility. . . ."

N.J.R.E. 607 provides "[a] prior consistent statement shall not be admitted to support the credibility of a witness except to rebut an express or implied charge against the witness of recent fabrication or of improper influence or motive and except as otherwise provided by the law of evidence." Therefore, pursuant to the rule, "prior consistent statements offered to bolster the credibility of a witness may only be admitted if the requirements of N.J.R.E. 607 are satisfied, i.e., that there has been a charge or suggestion that the testimony of the witness was a fabrication that was belatedly conjured up." Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 607; see also State v. Sullivan, 24 N.J. 18, 39 (1957), cert. denied, 355 U.S. 840, 78 S.Ct. 52, 2 L.Ed. 2d 51 (1957).

Defendant contends that his trial counsel was very careful to avoid alleging that Stump or Ink had engaged in a "recent fabrication" and therefore reading their statements to the jury was improper. However, defendant reads N.J.R.E. 607 too narrowly. The rule clearly allows for the admission of prior consistent statements to rebut a charge against the witness of 1) a recent fabrication or 2) of improper influence or motive. Defendant argues that because he did not charge Stump and Ink with recently fabricating their stories, N.J.R.E. 607 bars their prior statements. However, defendant did attempt to suggest to the jury that their testimony was not trustworthy because it was given in exchange for a plea agreement. It is significant, therefore, that Stump and Ink gave their written statements to the police before they were offered their plea agreements and before they had any "improper influence" or motive to fabricate their testimony. This allowed the State to rebut defendant's suggestions of reason to fabricate. Therefore, the trial judge did not abuse his discretion by allowing the State to rebut defendant's implication by having Officer Newman read the jury the witnesses' prior consistent statements.

After the jury convicted defendant on all counts, the State requested the maximum possible term of five years imprisonment with a three-year parole disqualifier. The State also requested that defendant's term run consecutive to the term he was serving on his unrelated Missouri conviction. Defendant contends that because the State failed to indicate its specific reasons for "refus[ing] to waive some or all of the three year parole disqualifier," he is now entitled to a remand pursuant to N.J.S.A. 2C:35-7 and State v. Vasquez, 129 N.J. 189 (1992).

N.J.S.A. 2C:35-7 states, in pertinent part, that "[a]ny person who violates subsection a. of N.J.S.A. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance . . . within 1,000 feet of . . . school property . . . is guilty of a crime of the third degree and shall, except as provided in N.J.S.A. 2C:35-12, be sentenced by the court to a term of imprisonment." Where the violation in question involves more than one ounce of marijuana, "the term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, or three years, whichever is greater, during which the defendant shall be ineligible for parole."

N.J.S.A. 2C:35-12 addresses the waiver of mandatory minimum and extended terms when a defendant enters into a plea agreement. The statute specifically allows for plea bargaining as to the mandatory penalties imposed by the Comprehensive Drug Reform Act, Chapter 35 of the New Jersey Criminal Code. It permits a defendant to form an agreement that provides for less than the minimum term for which he or she is ineligible for parole. The statute states, in pertinent part, that:

Whenever an offense . . . specifies a mandatory sentence of imprisonment which includes a minimum term during which the defendant shall be ineligible for parole, [or] a mandatory extended term which includes a period of parole ineligibility, . . ., the court upon conviction shall impose the mandatory sentence . . . unless the defendant has pleaded guilty pursuant to a negotiated agreement or, in cases resulting in trial, the defendant and the prosecution have entered into a post-conviction agreement, which provides for a lesser sentence, period of parole ineligibility or anti-drug profiteering penalty.

The statute permits a waiver of a mandatory sentence, therefore, only when the defendant has either entered into a "negotiated agreement" in connection with a guilty plea or a "post-conviction agreement" with the State following a trial.

In State v. Vasquez, 129 N.J. 189, 197 (1992), our Supreme Court held that when a prosecutor refuses to waive a parole disqualifier in the context of N.J.S.A. 2C:35-12, the reasons for that decision must be placed on the record. This is because "[j]udicial oversight is mandated to protect against arbitrary and capricious prosecutorial decisions." Ibid.

Here, defendant was found guilty after a jury trial and did not enter into a post-conviction agreement. Therefore, N.J.S.A. 2C:35-12 does not apply. In other words, this was not a case where the prosecutor agreed to defendant's sentence based on a plea agreement. Defendant was sentenced by the trial judge and the conditions allowing a waiver of a parole disqualifier were not present. Defendant is not entitled to a remand.

At sentencing, the trial judge found defendant had "14 juvenile involvements, 11 arrests as an adult, 7 disorderly persons convictions, 2 indictable convictions. He's presently serving time on one now." As such, the judge applied aggravating factors N.J.S.A. 2C:44-1a(3) (the risk defendant will commit another offense); and N.J.S.A. 2C:44-1a(9) (the need to deter defendant and others). The trial judge found no mitigating factors applied. The 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.

Defendant argues that the trial court should have considered mitigating factor N.J.S.A. 2C:44-1b(2) (defendant did not contemplate that his conduct would cause or threaten serious harm). Also, because defendant is "the father of four minor children arising out of a long-standing relationship with his girlfriend," with whom he has "resided" with as a "family unit," he also argues that the trial court should have considered N.J.S.A. 2C:44-1b(11) (imprisonment of defendant will result in excessive hardship to a dependant).

Appellate review of a sentencing decision calls for the reviewing court to determine whether the trial court clearly erred "by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors." State v. Roth, 95 N.J. 334, 365-66 (1984). In order to make that determination the appellate court may:

(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience.

[Id. at 364-65.]

In other words, we may only disturb a trial judge's sentencing decision in three situations. State v. Carey, 168 N.J. 413, 430 (2001). Those situations are "(1) the trial court failed to follow the sentencing guidelines, (2) the aggravating and mitigating factors found by the trial court are not supported by the record, or (3) application of the guidelines renders a specific sentence clearly unreasonable." Ibid.

An appellate court should not "substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). Consideration of inappropriate aggravating factors violates the sentencing guidelines and can constitute reversible error. State v. Kromphold, 162 N.J. 345, 355 (2000).

In this case, defendant does not contest that he has a prior record, and, based on his numerous arrests and convictions, it is clear that there is a risk he will re-offend.

The trial judge also properly found that the State has an interest in deterrence.

Regarding the trial judge's determination that there were no mitigating factors, we also find no abuse of discretion. Defendant at no time suggested or demonstrated that he was the sole provider for his children or that there were any special circumstances arising from his incarceration that would constitute "excessive hardship" on his family. Moreover, defendant has been incarcerated in Missouri since March 30, 2007, and has therefore been unable to live with his children and girlfriend as a "family unit" since that time.

Defendant's claim that "from a subjective point of view, it is clear [he] did not contemplate his conduct would cause or threaten serious harm" and therefore mitigating factor N.J.S.A. 2C:44-1b(2) should apply is also without merit. The sale of drugs within 1000 feet of a school zone is clearly conduct that can "cause or threaten serious harm." There is no doubt that drugs harm their users and a school-age child's exposure to drugs is harmful. The trial judge did not abuse his discretion in failing to apply this mitigating factor.

In defendant's pro se supplement brief, he argues that because counts one through five of his indictment were based upon the same criminal act, his indictment, trial and convictions violated the principles of double jeopardy. He also argues that the court erred by attempting to "correct" that double jeopardy violation by "merging the convictions."

Our Supreme Court has held that "separate and distinct offenses cannot be charged in the same count of an indictment." State v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 21 (1984). However, N.J.S.A. 2C:1-8a states "[w]hen the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense." Moreover, Rule 3:7-6 permits "[t]wo or more offenses [to be] charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction . . . ." See State v. Baker, 49 N.J. 103. 104-05 (1967), cert. denied, 389 U.S. 868, 88 S.Ct. 141, 19 L.Ed. 2d 144 (1967). While defendant only committed one set of actions, each count of the indictment properly alleged discrete criminal offenses. Therefore, defendant's argument lacks merit.

Also, the trial judge correctly merged defendant's convictions. Merger is rooted in the established principle that "'an accused [who] has committed only one offense . . . cannot be punished as if for two.'" State v. Cole, 120 N.J. 321, 325-26 (1990) (quoting State v. Miller, 108 N.J. 112, 116 (1987)).

The question whether to merge convictions implicates a defendant's substantive constitutional rights. Cole, supra, 120 N.J. at 327. A court considering whether to merge convictions should focus on the elements of the crime, the Legislature's intent in enacting the statutes, and the specific facts of each case. Ibid.

In State v. Dillihay, 127 N.J. 42, 45 (1992), the defendant was convicted of possession of marijuana and phencyclidine with intent to distribute, N.J.S.A. 2C:35-5, and possession of the same substances with intent to distribute within a school zone, N.J.S.A. 2C:35-7. As is the case here, all violations were a part of the Controlled Dangerous Substances Act and were the result of the defendant's arrest for narcotics activity within 1000 feet of a school zone. Ibid. The trial court merged the school zone convictions with the other convictions. Id. at 46. Both the Appellate Division and the Supreme Court affirmed. The Supreme Court held "that convictions for school-zone offenses must merge into convictions for related first- or second-degree Section 5 offenses." Id. at 45.

In this case, the trial judge properly merged the possession convictions (counts one and four), the possession with intent to distribute conviction (count two), and the distribution conviction (count three) with the distribution of a CDS on or within 1000 feet of school property conviction and complied with the Supreme Court's holding in Dillihay. We reject defendant's contention that his convictions were a violation of double jeopardy and were improperly merged.

Defendant also alleges, pro se, that the State failed to establish a sufficient chain of custody for the drug evidence seized. N.J.R.E. 901 states that evidence must be authenticated by evidence sufficient to support a finding that the matter is what its proponent claims as a condition precedent to admissibility. It is well established that a party introducing tangible evidence has the burden of laying a proper foundation for its admission. State v. Brunson, 132 N.J. 377, 393 (1993). That foundation should generally include a showing of an uninterrupted chain of possession. State v. Morton, 155 N.J. 383, 446 (1998). Whether the requisite chain of possession has been sufficiently established to justify admission of the exhibit is a matter committed to the discretion of the trial judge, and his determination will not be overturned in the absence of a clearly mistaken exercise thereof. Ibid.

While the proper foundation for the admission of real evidence requires a showing of an uninterrupted chain of possession, "it is not necessary for the party introducing such evidence to negate every possibility of substitution or change in condition between the event and the time of trial, especially where . . . the custodian has been an arm of the State." State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968); State v. Brunson, supra, 132 N.J. at 393. The question is one of "reasonable probability that no tampering has occurred." State v. Brown, supra, 99 N.J. Super. at 27-28. Generally it is sufficient if the court finds a reasonable probability that the evidence is in substantially the same condition as when the crime was committed. Id. at 28. Furthermore, a defect in the chain of custody goes to the weight, not the admissibility, of the evidence introduced. State v. Morton, supra, 155 N.J. at 446.

In this case, the jury was presented with evidence showing that defendant handed Stump three bags of heroin and one "rock" of crack cocaine in exchange for $38 in front of the Emory General Store in Asbury Park. Detective Montgomery testified that he took the drugs from the scene of the arrest and transported them to the Asbury Park Police vault. The department's evidence officer then transported the drugs to the New Jersey State Police Lab, where they were assigned an identification number and tested. The lab generated a report identifying the drugs as heroin.

The State accounted for the location of the evidence from the point it was first seized by the police until it was introduced into evidence at trial. Defendant has offered absolutely no proof that the drugs had been tampered with and, therefore, the trial judge did not abuse his discretion in admitting the drugs into evidence.

Lastly, defendant contends that he received ineffective assistance of trial counsel because "[c]counsel failed to put forth any challenges to this case, nor challenged the validity of ANY of the several counts. . . ." (Emphasis in original).

Our 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. State v. Preciose, 129 N.J. 451, 460 (1992); R. 3:22-4(a). As the United States Supreme Court observed:

Because collateral review will frequently be the only means through which an accused can effectuate the right to counsel, restricting the litigation of some Sixth Amendment claims to trial and direct review would seriously interfere with an accused's right to effective representation. A layman will ordinarily be unable to recognize counsel's errors and to evaluate counsel's professional performance; consequently, a criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case.

Indeed, an accused will often not realize that he has a meritorious ineffectiveness claim until he begins collateral review proceedings, particularly if he retained trial counsel on direct appeal. [Kimmelman v. Morrison, 477 U.S. 365, 378, 106 S.Ct. 2574, 2584, 91 L.Ed. 2d 305, 321 (1986) (citations omitted); State v. Preciose, supra, 129 N.J. at 460.]

However, because defendant has opted to set forth this argument, we will address it.

In order to determine if defendant was not provided with effective assistance, we must apply the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed. 2d 674, 692 (1984), and adopted by the Supreme Court of this State in State v. Fritz, 105 N.J. 42, 58 (1987). See State v. Savage, 120 N.J. 594, 612-13 (1990). In Strickland, the Court held that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. at 2064, 80 L.Ed. 2d at 692-93; see also Savage, supra, 120 N.J. at 613. To assist in this determination, the Court outlined a two-part standard based upon grounds of performance and prejudice. To satisfy this standard, a defendant carries the following burdens:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the [court's holding] . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.]

Reviewing courts should note that "'counsel is strongly presumed to have rendered adequate assistance' and to have made 'all significant decisions in the exercise of reasonable professional judgment.'" Savage, supra, 120 N.J. at 614.

In this case, defendant does not point to any specific error on the part of his trial counsel, but simply asserts that he failed to put forth "any challenges" to the State's case. "[A] petitioner must do more than make a bald assertion that he was denied effective assistance of counsel." State v. Cummings, 312 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Here, defense counsel was attentive during trial, made several objections and thoroughly cross-examined the State's witnesses. There is nothing to suggest that his performance fell below the constitutionally mandated standards.

We therefore reject defendant's argument that he was provided with ineffective assistance of counsel.

Defendant's other arguments are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2); State v. Ingram, 196 N.J. 23, 42 (2008).

Affirmed.


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