July 16, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAMUEL E. BELL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 06-12-2779 and 07-04-0939; Accusation No. 05-12-2623.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2009
Before Judges Collester and Graves.
In a three-count indictment, defendant Samuel Bell was charged with third-degree possession of a controlled dangerous substance (heroin) on July 20, 2006, in violation of N.J.S.A. 2C:35-10(a)(1) (count one); fourth-degree obstructing administration of law, in violation of N.J.S.A. 2C:29-1 (count two); and fourth-degree tampering with physical evidence, in violation of N.J.S.A. 2C:28-6(1) (count three). A jury convicted defendant on all counts. On August 17, 2007, defendant was sentenced to a five-year prison term on count one, and the court imposed two concurrent eighteen-month prison terms on counts two and three.*fn1
On appeal, defendant presents the following arguments:
DEFENDANT'S MOTION TO SUPPRESS EVIDENCE WAS WRONGFULLY DENIED.
THE ADMISSION OF HEARSAY TESTIMONY DENIED DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW)
DEFENDANT WAS PREJUDICED BY THE ADMISSION OF IMPROPER LAY TESTIMONY. (NOT RAISED BELOW)
THE ADMISSION OF IRRELEVANT AND UNDULY PREJUDICIAL EVIDENCE WAS REVERSIBLE ERROR. (NOT RAISED BELOW)
DEFENDANT WAS PREJUDICED BY THE PROSECUTORS IMPROPER COMMENTS. (PARTIALLY RAISED BELOW)
The trial court improperly charged the jury as to the crime of obstruction of administration of law. (not raised below)
We affirm defendant's convictions on counts one and three, but remand for entry of a corrected judgment of conviction and for resentencing on count two.
On July 20, 2006, Long Branch Police Officers Joshua Bard and Pat Coleman, working in conjunction with the Monmouth County Narcotics Task Force and the Asbury Park Police Department Street Crimes Unit, were conducting surveillance in Asbury Park from a black unmarked patrol car. The vehicle was driven by Asbury Park Officer William Whitley, who was showing Bard and Coleman areas where recent violent crimes and narcotics arrests had occurred.
At approximately 4:47 p.m., the officers were traveling northbound on Atkins Avenue when, according to Bard, either Coleman or Whitley exclaimed, "look at that . . . they're making a hand to hand right there" while pointing at a man later identified as defendant and another man, who was standing near a delicatessen. Bard observed the men have a "very brief conversation" when the unidentified man "reached into his pocket, removed an item, and exchanged the item [for] another item" that he received from defendant. According to Bard, defendant "extended his hand" and it "looked like it had an item in it and the two had swapped items." Based on his training and experience, Bard believed he saw a "hand to hand narcotics transaction." Officer Whitley also testified that he "observed what appeared to be a hand to hand narcotic[s] transaction."
When defendant and the unidentified man saw the unmarked police car, they "immediately separated," and all three officers pursued the suspects on foot. Bard shouted to defendant, "stop, police," but defendant ran down a small pathway behind a delicatessen. Bard briefly lost sight of defendant, but when he turned the corner Bard observed that defendant was pouring "white powder" from a wax paper envelope "onto the ground." As the white powder landed on the ground, it "immediately started getting absorbed into the soil" which was wet from rainfall earlier in the day. Bard suspected the white powder to be heroin and grabbed defendant by his wrist in order to effectuate an arrest.
As defendant was being handcuffed, he dropped the envelope on the ground, and when Bard recovered the envelope, he noticed it had the words "red bull" written on it in blue ink, along with the picture of a bull. Bard described the envelope as "a deck," which is "a small folded . . . wax paper envelope that usually contains heroin." The envelope later tested positive for trace amounts of heroin.
Defendant elected to testify at trial, and he acknowledged an extensive criminal history including nine convictions dating back to 1976. Defendant testified that he had gone "behind the garage by the store to urinate" when he was approached by a police officer. Defendant denied having "any hand to hand contact" with anyone, and he testified that he "never had possession of any heroin." According to defendant, Bard was "lying" when he testified that he saw defendant with a wax envelope containing heroin.
Prior to trial, defendant filed a motion to suppress evidence. Officer Bard and defendant were the only witnesses to testify at the suppression hearing. In denying defendant's motion, the court credited Officer Bard's testimony and found that Bard had "an articulable and reasonable suspicion that the defendant was engaged in a drug transaction." The court found that the area in question was known as a "high narcotics area," a "high crime area" and was further described by Officer Bard as "an open drug market." The court stated:
[Officer Bard] indicated that while he was in a slowly moving, unmarked police vehicle, at approximately 4:47 p.m., he observed what he felt was a drug transaction . . . . He was initially about 50 feet away, but was approaching the scene. And the defendant, Mr. Bell, was facing him, so he was able to identify him.
And [Bard] observed what he felt was an exchange of drugs. There was a quick conversation. He saw what he believed to be currency. Not that he could actually see it, but the shape apparently led him to believe that.
And once they continued to approach after observing the transaction, Mr. Bell and the other individual who was a young black male in his 20's observed the Crown Victoria car, and started to walk away from the scene. The officer immediately exited the car, there was yelling to Mr. Bell, stop, police. The officer was running. Bell was walking behind a shed. Did not stop.
And when the officer turned around the shed, he observed Mr. Bell with a white envelope in his hand, commonly known as a deck. The officer felt it was a wrapper for a deck of heroin. And could see him dumping a white powder on the ground, and that's when he grabbed him.
Certainly, as far as this Court is concerned, when the officer saw him with . . . what he believed to be a deck of heroin in his hand dumping the contents on the ground, he had probable cause to arrest him at that particular time.
[B]ased upon his initial observations, if you accept his testimony, he also had an articulable and reasonable suspicion that the defendant was involved in a drug transaction, and could approach him at that particular point.
We must, of course, defer "to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). We are obliged to "uphold the factual findings underlying the trial court's decision so long as those findings are supported by substantial credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (quotation omitted). In this case, the court's findings are fully supported by the evidence and there is no reason to disturb them. The court not only credited Officer Bard's testimony but also found that defendant was "evasive" and not "candid with the Court." Moreover, it is well established that the police may conduct an investigative stop if "specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity." State v. O'Neal, 190 N.J. 601, 612 (2007). We are satisfied the trial court's findings are supported by sufficient credible evidence in the record, and the court did not err in denying defendant's motion to suppress.
In his second point, defendant contends the admission of a hearsay statement by Officer Bard constituted plain error. During the trial, Bard testified as follows:
[PROSECUTOR]: And based upon what you observed -- do you know if the other officers in the car observed what you observed?
[OFFICER BARD]: Yes, sir.
[PROSECUTOR]: Did they?
[OFFICER BARD]: Yes, they verbalized it as well. I don't think I was actually the one who actually called it out. I saw it but I don't recall if it was Officer Coleman or Officer Whitley who said that they saw it. They said, look at that, you know, they're making a hand to hand right there, pointing to the two subjects.
Because defendant did not object, we must determine whether this testimony was plain error, and "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. The error 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).
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). The hearsay rule applies when a statement "is offered to prove the truth of the statement attributed to the declarant." State v. Long, 173 N.J. 138, 152 (2002). Therefore, it follows, that "if evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial." Ibid. However, "if proffered evidence is hearsay, it can be admitted only pursuant to one of the exceptions to the hearsay rule." Ibid. (citing N.J.R.E. 802).
We first observe that Officer Bard's testimony as to the statement by one of the other officers was not hearsay because the statement was not offered to prove the truth of the matter asserted, but only to show that Bard's attention was directed to the hand-to-hand transaction. See ibid.; see also Spragg v. Shore Care, 293 N.J. Super. 33, 56 (App. Div. 1996) ("[W]here statements are offered not for the truthfulness of their contents, but only to show that they were in fact made and that the listener took certain action as a result thereof, the statements are not inadmissible hearsay."). Bard testified he was not "the one who actually called . . . out" the hand-to-hand transaction, and he did not "recall if it was Officer Coleman or Officer Whitley who said that they saw it." In any event, the statement by Coleman or Whitley was not offered for its truth, but to demonstrate that another officer directed Bard's attention to the street transaction.
Moreover, even if the challenged statement was hearsay, it was admissible as a "present sense impression." That exception to the hearsay rule provides for the admissibility of "[a] statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate of fabricate." N.J.R.E. 803(c)(1). Here, the statement by either Coleman or Whitley regarding the hand-to-hand transaction was made while the officers observed the transaction and without opportunity for deliberation. Accordingly, the statement falls within the present sense impression exception. Moreover, because defendant did not object below and because the statement relates to the investigatory stop rather than to the question of whether defendant possessed contraband, we are convinced that any perceived error could not be fairly characterized as "clearly capable of producing an unjust result." R. 2:10-2.
Defendant further argues that Bard's testimony violated the Confrontation Clause of the Sixth Amendment. The Supreme Court held, in Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed. 2d 177, 194 (2004), that testimonial statements are subject to the Confrontation Clause and may only be admitted if the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. The Confrontation Clause, however, "does not condemn all hearsay." State v. Branch, 182 N.J. 338, 349 (2005). There is no Confrontation Clause violation where a statement is non-testimonial in nature. Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 2273-74, 165 L.Ed. 2d 224, 237 (2006).
In State ex rel. J.A., 195 N.J. 324, 345 (2008), the Court considered the distinction between non-testimonial and testimonial statements:
Non-testimonial statements are those 'made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.' Testimonial statements are those made in 'circumstances objectively indicat[ing] that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.' [Ibid. (citations omitted) (alteration in original) (quoting Davis v. Washington, supra, 547 U.S. at 822, 126 S.Ct. at 2273, 165 L.Ed. 2d at 237).]
Thus, in a situation where the declarant was "'speaking about events as they were actually happening, rather than describ[ing] past events,'" the statement is non-testimonial. Ibid. (quoting Davis v. Washington, supra, 547 U.S. at 827-28, 126 S.Ct. at 2276-77, 165 L.Ed. 2d at 240) (alteration in original). In this case, the statement Bard attributed to Coleman or Whitley concerned an event as it was actually happening, and not a past event. Accordingly, we conclude that Officer Bard's testimony was not violative of the Confrontation Clause.
We next address defendant's contention that he was prejudiced by certain comments made by the prosecutor during summation. A conviction will be reversed based on improper comments during summation only "where the prosecutor's misconduct was so egregious that it deprived defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).
Defendant's principal argument is that the prosecutor attempted to improperly bolster Officer Bard's credibility. In rejecting this argument the trial court found that the prosecutor's comments were made in response to defense counsel's closing argument which questioned Officer Bard's credibility. Moreover, even though the court did not find the prosecutor's comments to be "improper," it issued a curative instruction out of an "abundance of caution." Under these circumstances, we are satisfied that defendant could not have been prejudiced by the prosecutor's comments regarding Officer Bard's credibility.
We have also considered defendant's other arguments regarding the allegedly improper remarks by the prosecutor and conclude that they are meritless. We are satisfied from our review of the record that none of the remarks, independently or cumulatively, had the capacity to deprive defendant of a fair trial. State v. Daniels, 182 N.J. 80, 95-96 (2004); State v. Ramseur, 106 N.J. 123, 322-23 (1987).
With respect to defendant's conviction on count two, fourth-degree obstructing administration of law (obstructing), both parties agree that the trial court erred by failing to read the grading element of the model charge to the jury. Obstructing is a fourth-degree crime "if the actor obstructs the detection or investigation of a crime or the prosecution of a person for a crime." N.J.S.A. 2C:29-1(b). Otherwise, obstruction "is a disorderly person's offense." Ibid.
It is clear that the trial court presented to the jury only the elements of the disorderly persons offense. Accordingly, we vacate defendant's conviction for fourth-degree obstructing and remand for entry of a corrected judgment of conviction and resentencing for obstructing as a disorderly persons offense. See State v. Viera, 346 N.J. Super. 198, 217 (App. Div. 2001) ("A trial court may mold a verdict by entering a judgment of conviction for a lesser included offense where the jury verdict necessarily constitutes a finding that all the elements of the lesser included offense have been established and where no prejudice to the defendant results.") (quotation omitted).
We conclude from our review of the record that defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part; reversed in part; and remanded for further proceedings consistent with this opinion.