July 22, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRELL SANDERS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-11-1951.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 15, 2009
Before Judges Carchman and Parrillo.
Tried by a jury, defendant Terrell Sanders was found guilty of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count 1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(3) (count 2); and second-degree possession of heroin with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count 4).*fn1
For sentencing purposes, count 1 was merged with count 2, for which a mandatory extended term of ten years with a five-year parole bar was imposed, along with a concurrent ten-year term with a five-year period of parole ineligibility on count 4.*fn2
Appropriate fees and penalties were also imposed. Defendant appeals. Save for a limited remand to correct the judgment of conviction, we affirm.
According to the State's proofs, based on information from surveillance officers that a group of people were gathering in a local park to possibly engage in illegal activity, Jersey City Police Sergeant Thomas McVicar arrived at Bayside Park around 6:00 p.m. on September 3, 2006, in an unmarked vehicle and plain clothes. As he drove into the park, McVicar observed about fifteen to twenty people in a circle near one of the baseball fields. As other officers from the police department's Street Crimes and Uniformed Units neared, the group began to move off towards a stairway leading to a terrace. The police exited their vehicles, approached the group, and began to "sort out who was present," preventing the members from leaving the group. One of the individuals in the group was observed discarding some drugs and consequently was arrested at the park.
McVicar observed another member of the group, later identified as defendant, "remove what later turned out to be a magnetic key holder from his left pocket and click it on to one of the metal post[s] of the chain link fence" and then "slid a foot or two away from it and stopped." McVicar instructed members of his Unit to detain defendant, after which the sergeant walked over to the metal post, recovered the key holder, looked inside and saw four bags of suspected heroin with a "Hell Raiser" stamp on each bag. Defendant was then arrested. A search of defendant incident to his arrest revealed $418 in cash: one $100 bill, one $50 bill, nine $20 bills, five $10 bills, seven $5 bills, and three $1 bills.
Sergeant McVicar was the State's only fact witness. Sergeant Wally Wolfe of the Jersey City Police Department also testified, however, as an expert in narcotics packaging, use and distribution. According to Wolfe, heroin is packaged and sold in small glassine bags, containing less than one gram of heroin, and the bags are usually stamped with a logo that serves as a form of advertisement. Bags of heroin are affixed ten at a time in a plastic bag called a bundle; five of these bundles are then wrapped in magazine paper and taped tightly into what is called a brick. Thus, there are a total of 50 bags per brick. In New Jersey, the retail price of a bag of heroin ranges from $8 to $10.
Wolfe further explained that to avoid a drug possession charge, dealers commonly conceal the glassine bags in small garbage bags or potato chip bags, which are stashed in grass or trees, or in devices such as a magnetic key holder. Indeed, a drug dealer would be "foolish to possess multiple bags on [his] person because there's a lot of police, lot of narcotics officers frequent these drug markets . . . so people that work in these markets tend to stash things." For instance, in this case, the magnetic key holder contained four glassine bags still wrapped in plastic, indicating that they had been part of a larger bundle, and, therefore, use of this device is consistent with a dealer's method of stashing drugs.
In Wolfe's opinion, the absence of drug paraphernalia belies simple possession, as does the presence of varied denominations of currency. Unlike dealers who sometimes consolidate and exchange smaller bills for larger ones, buyers, on the other hand, typically scrounge up just enough money to buy one or two bags at a time, rather than "squirrel it away" by purchasing in bulk. Wolfe further elaborated on this point: when people come into a drug market, nine out of ten of them are ill, they get dope sick, so, it is associated with other things, other street crimes, burglaries, prostitution and people will go out commit crimes, come back to a market when they have money. [The buyer's illness is a] terrible cycle, terrible way to live.
On appeal, defendant raises the following issues for our consideration:
I. THE PROSECUTOR'S CLOSING STATEMENTS WERE INAPPROPRIATE; THE JUDGE ERRED IN DENYING A MISTRIAL BASED ON PROSECUTORIAL REMARKS.
II. THE JUDGE ERRED IN PERMITTING PREJUDICIAL TESTIMONY FROM THE STATE'S EXPERT REGARDING DRUG USERS' WAY OF LIFE CONTRARY TO N.J.R.E. 403 (not raised below).
III. DURING DELIBERATIONS THE JUDGE ERRONEOUSLY ACTED AS A WITNESS AND ANSWERED THE JURY'S QUESTION (not raised below).
IV. THE JUDGE ERRED IN DENYING DEFENDANT'S REQUEST TO ALLOW A PREVIOUSLY UNAVAILABLE WITNESS TO TESTIFY AT TRIAL.
V. THE SENTENCE IS EXCESSIVE.
We address these issues in the order raised.
Defendant argues certain prosecutorial comments in summation deprived him of a fair trial. We disagree.
In closing argument, the prosecutor implied that the $418 recovered from defendant represented the proceeds of the sale of an entire brick of heroin, less the four packets that were in the key holder.*fn3 Prior to the jury charge, defendant moved for a mistrial, arguing the prosecutor's inference was unduly prejudicial and outside the scope of the expert's testimony. The trial judge denied the motion, reasoning that the challenged inference was fair in light of the expert proof presented:
There is testimony in the case that established a range for a price of a bag of Heroin in this court, between eight and $10.
There's also testimony in the expert's testimony regarding the [sale] and packaging of bricks and decks of Heroin, et cetera, these are terms used to describe the packaging apparently, which is properly within the expertise of the witness and, as well part of his report. It's a question of inferences. The State seeks to have the jury draw an inference from the facts in the case. Whether they draw it or not is entirely up to them.
I will be instructing them along those lines, but it's a fair inference the State seeks to, especially in light of the other evidence in the case. . .
Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented. State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447 (1988). Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries, Harris, supra, 141 N.J. at 559, so long as they confine themselves to fair comments on the evidence presented. State v. Frost, 158 N.J. 76, 83 (1999).
Moreover, not every prosecutorial impropriety warrants reversal. Prosecutorial misconduct can be a ground for reversal where it is so egregious that it deprived the defendant of a fair trial. Ibid.; see also State v. Ramseur, 106 N.J. 123, 322 (1987). In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." State v. Marshall, 123 N.J. 1, 153 (1991); see also State v. Scherzer, 301 N.J. Super. 363, 433 (App. Div.), certif. denied, 151 N.J. 466 (1997).
Here, we discern no impropriety in the challenged comments, as they were based squarely on the expert proofs concerning, among other things, the retail price of a bag of heroin, its typical packaging, and the number of units comprising a brick of heroin. Just as significant, the prosecutor's remarks were in response to, and invited by, the comments of defense counsel. See State v. James, 144 N.J. 538, 554 (1996).
A critical issue at trial was whether defendant possessed the packets of heroin with the intent to distribute. By defendant's own admission, defense strategy was to show that the varied denominations in defendant's possession at time of arrest were more consistent with buying, not selling. To this end, defense counsel elicited substantial testimony regarding currency in an attempt to show that a drug dealer would have had more lower currency denominations -- $1 and $5 bills -- than actually found in defendant's possession, and that a buyer would have had more of a variety of denominations -- some larger, some smaller -- as defendant actually possessed at time of arrest. Indeed, defense counsel forcefully reinforced this point in her closing remarks:
Lastly, I want to look at the denominations of money recovered. The witness testified that drug dealers usually have -- when I asked him on cross-examination they usually have smaller denominations of money, tens, fives and single dollar bills, he testified that because buyers don't have time to come with a $100 bill or $50 bill to make change with drug dealers. They're engaged in criminal activity. They don't come with a large bill to make a purchase of narcotics.
According to the testimony of witness, they don't buy in quantity. They [buyers] buy one or two bags. They come with single dollar bills, fives, to ... get their drugs and go on their way before they're caught and apprehended by the police. They're not looking to get change back from drug dealers.
The witness went over the denomination of the money that was recovered ... Having money on you is not a crime ... he testified there was $100 bill, $50 bill, some twenties, there were three $5 bills, and three single dollar bills.
You make a determination based on those facts whether or not this is a situation consistent with someone who's selling drugs and, in combination with all of the other factors that the witness testified about regarding the quantity of the dosage. [emphasis added.]
We find no error in the prosecutor's ensuing response. After all, defendant made the amount of currency a relevant, if not crucial, issue on the question of an intent to distribute.
In addition to pointing out the obvious flaw in defendant's argument -- namely that the expert opined "tens, fives and ones are significant" -- the prosecutor merely "did the math," explained the connection between the retail price of heroin and the amount of money recovered from defendant, and concluded "would a reasonable person believe that a buyer or a user would have $418 in their pocket?". Having opened the door to this issue, defense counsel clearly invited the State's attempt in closing at clarifying the distinction between buying and selling drugs. Under the circumstances, the prosecutor's remarks constituted not only fair comment on the evidence but proper counter-argument, as well.
By parity of reasoning, we also find no error in the admission of expert testimony concerning a drug user's typical behavior. As noted, the defense strategy was to portray defendant, at worst, a buyer, not a seller. As such, it became relevant for the State to demonstrate any inconsistencies between defendant's behavior and that of a mere drug user. N.J.R.E. 402. One such inconsistency, mentioned earlier, is that defendant was found in possession of $418, whereas, according to the expert, the typical buyer will "come in and out of markets throughout the day and scrounge money up or commit a crime," before returning for more drugs. Another inconsistency pointed out by the State is that defendant was not in possession of drug paraphernalia when arrested, whereas, due to the powerful addictive nature of heroin, "when a drug user comes into a market ... he or she is ill, and nine out of ten of these people will possess tools to ingest the heroin[-] ... a cut straw or tube[.]"
Thus, the expert's testimony concerning a drug user's so-called "lifestyle" was highly relevant to rebut defendant's suggestion of simple possession at most and to show he more likely intended to sell the heroin, due to behavior such as possessing no tools to ingest the drug; using a hide-a-key (consistent with trying to "stash" an inventory); and packaging the heroin with plastic wrap still present as if it were in "bundle form" (inconsistent with what a user would possess).
Clearly, the intent to distribute a controlled dangerous substance may be inferred from the facts and circumstances surrounding the possession. State v. Brown, 80 N.J. 587, 592 (1979). In this regard, "an expert in the use and distribution of unlawful drugs can assist the jury by offering his opinion based on special knowledge and experience about the characteristics that serve to identify drugs that are being held for sale or distribution." State v. Odom, 116 N.J. 65, 80-81 (1989). Here, the State's expert did just that. And, further, by opining as to a drug user's behavior, Wolfe placed the defense's contrary intimation in proper context. Its obvious relevancy to the issue of intent to distribute far outweighed any arguably prejudicial impact, N.J.R.E. 403(a), and was, therefore, properly admitted.
Defendant next contends the judge improperly answered the jury's question. We disagree.
By way of background, Sergeant McVicar testified that the police did not lift any fingerprints from the key holder or the fence. On redirect, McVicar explained why:
I observed [defendant] remove that magnetic key lock from his pocket and place it on to the fence. There was no question as to who had taken it or placed it on the fence, therefore, there was no reason for me to send it out for fingerprints to try to determine who had done it. I had observed [defendant] do it. There was no reason to send it out for fingerprints.
During deliberations, the jury asked: "Does the police officer have to fingerprint the evidence if he was an eyewitness? What is the law or procedure in fingerprinting evidence?" The judge reviewed and discussed this inquiry with counsel. After consultation, the court responded:
The simple answer to that question is no. Police officer does [sic] not have to fingerprint evidence of items taken in Evidence in an investigation. There is no law that requires it. It's discretionary.
It can be used when they feel it is appropriate and not used when they feel it isn't.
As far as procedure is concerned, there are procedures in society that do require fingerprints unconnected with an investigation, okay. For example, if you want to buy a firearm in this State, the law requires you be fingerprinted and your fingerprints be on file, okay, but that's separate and apart from a criminal investigation.
You're not required. There is no law that requires fingerprints be taken in an investigation any more than there is that DNA be taken in an investigation. Those are discretionary measures. They're available investigative tools for police. They use them when they think it is appropriate.
They don't when they don't. There is no law that requires it. There are procedures but they don't relate to investigations.
No objection was voiced by defense counsel at the time. He now complains, for the first time on appeal, that by so responding, the judge unfairly bolstered McVicar's credibility and acted as a fact witness himself. We view defendant's belated challenge under the plain error standard, Rule 2:10-2, to determine whether the judge's response was clearly capable of producing an unjust result. State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970).
"'When a jury requests a clarification,' the trial court 'is obligated to clear the confusion.'" State v. Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984)). It may not decline a response. State v. Marcus, 294 N.J. Super. 267, 292 (App. Div. 1996), certif. denied, 157 N.J. 543 (1998). Rather, "[t]he court has a responsibility too guide the jury, which includes responding to any questions it may ask during deliberations." Ibid. (citing State v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 1994)). Equally clear, the trial judge is the judge of the law, on which he or she must instruct the jury clearly and accurately. State v. Oates, 246 N.J. Super. 261, 268 (App. Div. 1991).
We are satisfied that the court's response to the jury's question does not constitute plain error. Clearly, the jury was inquiring of any law or legal mandate requiring fingerprinting in the instance at hand, and in responding "no," the judge distinguished those situations, i.e., purchase of a firearm, in which fingerprinting is legally demanded. Such clarification was obviously intended to avoid any prejudicial speculation during deliberations that the police may have violated a law in failing, as part of their investigation, to obtain fingerprint evidence. To be sure, the judge's response came close to impermissibly "testifying" as to standard police departmental procedures. However, the judge was cautious in limiting his answer to the law and legal requirements, avoiding any opinion as to whether police investigation here was adequate, complete or in accordance with internal operating standards. We, therefore, see no basis for concluding that the jury's verdict was improperly influenced by the court's response to its inquiry.
Defendant also contends the trial court erred in denying his request to allow a previously unavailable witness to testify at trial. Again, we disagree.
After both sides rested and concluded their closing arguments, defendant notified the judge that a witness who had been listed as a potential defense witness, but was unavailable during the discovery period, was now available, and therefore requested he be allowed to reopen the case. Noting the lateness of the request, the judge denied defendant's request. We discern no abuse of discretion here.
The discretionary power of the trial judge to manage the conduct of a trial and to control the orderly presentation of evidence is unquestioned. State v. Guido, 40 N.J. 191, 208 (1963). Equally well-settled is the right of an accused to present witnesses in his own defense. State v. Garcia, 195 N.J. 192, 201-02 (2008). The right of compulsory process, however, is not absolute, and "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Id. at 201 (quoting State v. Garron, 177 N.J. 147, 169 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004)). Clearly, a defendant does not have the right to call a witness who will offer irrelevant testimony. Garcia, supra, 195 N.J. at 203; see also Crane v. Ky, 476 U.S. 683, 689-90, 106 S.Ct. 2142, 2146, 90 L.Ed. 2d 636, 644 (1986). Moreover, the right to compulsory process "does not mean that a defendant may violate with impunity rules of court that require the production of a witness list, or that he may issue a subpoena, for a witness long known to him, so late in a criminal trial that a significant delay in the proceedings will be incurred." Garcia, supra, 195 N.J. at 203.
Here, at the conclusion of the trial, defendant requested, for the first time, that a witness be allowed to testify. There was, however, no explanation why the request could not have been made earlier. More significant, defendant made no proffer as to what this witness might testify to. It was, of course, incumbent on defendant to make an offer of proof as to the testimony that would have been proffered if the ruling were otherwise. R. 1:7-3. Without an offer of proof, "it is virtually impossible for the appellate court in reviewing the case to determine whether the exclusion had a prejudicial effect . . . ." Duffy v. Bill, 32 N.J. 278, 294 (1960). Thus, given the lateness of the request, and the absence of any indication that the witness would have proven beneficial to defendant or that his preclusion from testifying foreclosed defendant's ability to present a viable defense, we perceive no abuse of discretion in the court's denial of defendant's request. See State v. Gray, 101 N.J. Super. 490, 494 (App. Div. 1968).
Lastly, defendant contends his sentence was excessive. We disagree.
Because of his previous drug convictions, defendant qualified for a mandatory extended-term sentence. N.J.S.A. 2C:44-3. He was sentenced at the maximum of that range in light of the clear preponderance of aggravating factors found by the trial judge. N.J.S.A. 2C:44-1(a)(3),(6) and (9). Most notably, the trial judge cited defendant's "longstanding pattern of disregard for the law." Specifically, defendant, who was twenty-three years old at time of sentencing, had nine juvenile adjudications of delinquency, and, in his relatively brief history as an adult, one conviction for aggravated assault, three other "1000-foot" drug convictions, and one drug possession conviction.
In contrast to State v. Vasquez, 374 N.J. Super. 252 (App. Div. 2005), where we held that counting the defendant's one prior conviction (aside from two other disorderlies) in sentencing him to the maximum extended term of 10 years was tantamount to "double-counting," here, defendant's record evidences multiple convictions, which the sentencing court properly considered as an aggravating circumstance. Moreover, as the judge found, defendant's "multiple unsuccessful probationary sentences demonstrate that he is not amenable to rehabilitation"; that he has "demonstrated that early release from a prison term is an insufficient incentive to become law abiding, as demonstrated by his Violation of Parole"; and, therefore, "incarceration [is] the only effective deterrent." As to possible mitigating factors, the judge explained that, because defendant continued to maintain his innocence, he did not show remorse. Nor did the judge find any other mitigating factors applicable. Under the circumstances, we find no warrant for interference with the sentence imposed.
Remanded to correct the judgment of conviction. In all other respects, the judgment of conviction is affirmed.