July 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DWAYNE HARRIS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-08-00994.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2009
Before Judges Collester and Graves.
A jury found defendant Dwayne Harris guilty of third-degree possession of a controlled dangerous substance (heroin and cocaine), N.J.S.A. 2C:35-10(a)(1) (count one) and third-degree possession of heroin within intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two). At sentencing on December 2, 2005, count one was merged into count two. The court granted the State's motion for imposition of an extended term of imprisonment under N.J.S.A. 2C:43-6(f), and defendant was sentenced to a seven-year prison term with three and one-half years of parole ineligibility.
Defendant presents the following arguments on appeal:
DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL ON THE GROUNDS OF PROSECUTORIAL MISCONDUCT BECAUSE THE TRIAL COURT ERRED BY REFUSING DEFENSE REQUESTS FOR A MISTRIAL AND BY DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT AND MOTION TO DISMISS AFTER A VERDICT AND/OR FOR A NEW TRIAL.
A. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S REQUEST FOR A MISTRIAL AFTER THE PROSECUTOR, IN HIS CLOSING, REFERRED TO THE POLICE DEPARTMENT'S PRE-ARREST INVESTIGATION, WHICH WAS NOT IN EVIDENCE. (RAISED BELOW)
B. THE PROSECUTOR PREJUDICED THE DEFENDANT BY MISSTATING TESTIMONY REGARDING THE ALLEGEDLY STOLEN COMPUTER AND POLICE ABUSE. (RAISED BELOW)
C. THE PROSECUTOR PREJUDICED DEFENDANT BY SUGGESTING IN HIS SUMMATION THAT THE DEFENDANT HID DRUGS AND MONEY AT VARIOUS OTHER LOCATIONS WHICH WAS NOT SUPPORTED BY THE EVIDENCE. (RAISED BELOW)
D. EACH INSTANCE OF PROSECUTORIAL MISCONDUCT, CUMULATIVELY, REQUIRES A REVERSAL OF THE CONVICTION AND A NEW TRIAL. (RAISED BELOW)
THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BASED ON THE PROSECUTOR'S FAILURE TO SET FORTH THE CHARGES TO BE PROVEN OR THE ELEMENTS OF THE OFFENSES DURING HIS OPENING. (RAISED BELOW)
THE TRIAL COURT ERRED BY REFUSING THE DEFENSE'S REQUEST TO CHARGE ACCOMPLICE LIABILITY OR CONSPIRACY TO POSSESS A CDS AND/OR CONSPIRACY TO POSSESS A CDS WITH THE INTENT TO DISTRIBUTE. (RAISED BELOW)
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MIRANDA MOTION TO SUPPRESS HIS ALLEGED STATEMENT TO DET. MCDONOUGH THAT THE COKE AND DOPE ON THE SECOND FLOOR IN THE FRONT ROOM WERE HIS AND, THEREFORE, VIOLATED DEFENDANT'S FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION. (RAISED BELOW)
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
THE ACCUMULATION OF ERRORS DEMAND THAT THE DEFENDANT BE RETRIED.
Based on our examination of the record and briefs, we conclude that all of defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
On May 25, 2004, members of the Elizabeth Police Department executed a search warrant for defendant's person and his suspected apartment on the second floor of a house located at 941 Flora Street in Elizabeth, New Jersey. The parties stipulated that the search warrant "identified a black male currently unknown who was approximately 60 years old, five foot nine [inches] tall with a thin build as a person to be searched."
The house at 941 Flora Street was a two-family home that had been converted into three apartment units; with tenants living in the attic, the first floor, and the second floor. When police arrived to search the second-floor apartment, they found no one home but the door was "wide open" and they entered the premises. Detective Kevin McDonough testified that he left the apartment to look for the defendant, and Detectives Christopher Flatley and Frank Sebasco continued to conduct the apartment search.
About twenty minutes later, Detective McDonough returned to Flora Street after another officer radioed him that the defendant had been seen there. McDonough testified as follows:
Q: Did there come a point in time when you returned back to the area of 941 Flora Street?
Q: And how did you get back there?
A: I drove back, I was in an unmarked police vehicle, I came back when summoned to by another officer.
Q: Okay. Now when you got back there did you see the defendant anywhere?
A: Yes, I did. He was walking down Flora Street from the area of Henry Street, so he was walking westbound towards 941 Flora Street.
Q: And did there come a point in time when you spoke to the defendant?
Q: And could you tell . . . where you were when that conversation took place?
A: I was on foot, I walked towards him and met him as he was approaching 941.
Q: Did you explain to him who you were?
A: Yes, I did.
Q: Did you tell him why you were there?
A: Yes, I did.
Q: And what, if anything, did he say?
A: At that point I asked him if anybody else lived in the house with him.
Q: And what was the response to your question?
A: He said it didn't matter who else lived there, everything up in the house is mine.
Q: And is that what he said?
A: I asked him what he meant by that and he told me that he had coke and dope, which I understood to be cocaine and heroin, up on the second floor. He said it was in the front room.
Q: And at that point in time did you have any knowledge if any contraband was recovered from the second floor?
A: No, I did not.
Q: Based on your conversation with defendant what did you do next?
A: I walked inside of 941 Flora Street and went up to the second floor, up into the front room that he was referring to where I met up with Detective Flatley.
Q: And did you happen to see anything aside from Detective Flatley when you got there?
A: He showed me a plastic jar that had packaged vials of cocaine and packaged bags of heroin that were inside this jar that he found.
Defendant was then placed under arrest and taken to police headquarters. While he was being processed at the police station, defendant gave his address as the second floor of 941 Flora Street. During the search, Detective Flatley found a cable bill addressed to defendant at that address with a due date of March 15, 2004, and a letter dated May 19, 2004, addressed to defendant at that address. Defendant admitted on cross-examination that he had given that address as his legal address on several occasions even though he maintained throughout the trial that he did not reside there.
Defendant testified that his father, his uncle, and his uncle's wife and daughter resided in the second floor apartment. Defendant maintained that he resided with his fiancée and their child on Parker Road in Elizabeth, New Jersey. He said he moved in with her so that his father and uncle, who had been evicted, could move into the second floor apartment. He never took the utility bills out of his name or changed his legal mailing address because he wanted to be able to return to the second floor apartment if he and his fiancée broke up.
Defendant denied telling Detective McDonough that "everything up in the house is mine," and he denied that the cocaine and heroin found in the second floor apartment was his.
According to defendant, he did not speak to McDonough until after he was arrested and transported to the police station. Defendant also informed the jury of his prior criminal convictions, which occurred in 1990, 1991, 1992, and in 1997. In denying defendant's motion to suppress his statements, the trial court found that Detective McDonough was "the more believable witness," and it found defendant's statements "were not the product of custodial interrogation." Therefore, no Miranda*fn1 violation occurred. We agree that Miranda warnings were not required because defendant was not in custody when Detective McDonough asked him at the scene if anyone else lived in the apartment that the police were searching. Dickerson v. United States, 530 U.S. 428, 431-32, 120 S.Ct. 2326, 2329, 147 L.Ed. 2d 405, 412 (2000); State v. O'Neal, 190 N.J. 601, 615-16 (2007); State v. Coburn, 221 N.J. Super. 586, 596-97 (App. Div. 1987).
In his first point, defendant contends that he was unduly prejudiced when the prosecutor, in his closing, referred to the preliminary police investigation which resulted in the issuance of the search warrant. The State agrees that it was improper for the prosecutor to mention the preliminary investigation, which was not in evidence. But it contends the trial court's "swift and direct response to the prosecutor's remarks ensured that defendant's right to a fair trial was not infringed upon."
Immediately after the prosecutor's improper comments, the trial court issued the following curative instruction:
As I said earlier, you're going to be deciding this case only based upon the evidence in this case that has been presented to you here at trial. And sometimes in the glow of advocacy attorneys may try to make an argument in a way that might be construed as suggesting to you that there was evidence that would be significant for your consideration but not presented to you here in court. I am sure that that was not the Prosecutor's intention with the last few words that he spoke to you, but I want to make sure that you understand that the only evidence that is to be considered as to the guilty or innocence of Mr. Harris is the evidence that has been presented to you here in trial. And you are not to speculate as to any fact or non fact that may or may not exist outside of this courtroom in deciding this matter.
The court then polled the jurors to make sure that they would follow the curative instruction. Under these circumstances, we are convinced that any possible prejudice was harmless beyond a reasonable doubt. See State v. Macon, 57 N.J. 325, 338 (1971). Defendant also claims he was irreparably prejudiced when the prosecutor referred to a "stolen computer" that was recovered by the police during the search of 941 Flora Street.
Although defense counsel did not make a contemporaneous objection to the prosecutor's statement at the end of summations, defense counsel subsequently argued that it was unfair for the prosecutor to allege the computer was stolen because "no charges have been filed." Defense counsel requested an immediate instruction to the jury that their recollection of the facts should control, and the court instructed the jury as follows:
Okay, ladies and gentlemen, as I said to you earlier, you know, during the course of their summations counsel referred to a fact and they're referring to their recollection of the facts to support the argument that they're making to you, but as -- you know, during the course of their references to these facts they may have described facts differently than [you] may recall the evidence. And at any time it's always your recollection that controls.
Considering the jurors' knowledge of defendant's prior criminal convictions, the fact that defendant was not charged with possession of stolen property, the court's curative instruction, and the overall strength of the State's case, we conclude the prosecutor's fleeting reference to a stolen computer was not reversible error pursuant to Rule 2:10-2.
Defendant also challenges his sentence, but he does not dispute that he was subject to a mandatory extended term as a repeat drug offender under N.J.S.A. 2C:43-6(f). See State v. Thomas, 188 N.J. 137, 151 (2006) ("[W]hen the predicate prior sentences are present, enhanced sentencing must occur."). In determining defendant's sentence within the extended-term range, the court noted this was "defendant's seventh indictable conviction, and there have been numerous convictions in the past for narcotics offenses." Based on aggravating factors 3, 6, and 9,*fn2 and no mitigating factors, defendant was sentenced to a seven-year prison term with forty-two months of parole ineligibility. Given the circumstances present in this case, we conclude that defendant's sentence is not manifestly excessive or unduly punitive, and it does not constitute an abuse of discretion.