August 24, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALMEIN ARCHER, DEFENDANT-APPELLANT.
On appeal from the New Jersey Superior Court, Law Division, Somerset County, Indictment No. 05-07-0624.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2009
Before Judges Fuentes, Gilroy and Chambers.
Tried to a jury, defendant was found guilty of third-degree conspiracy to distribute and/or possession with intent to distribute a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1) (Count One); and third-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5a(1) and -5b (Count Two). On April 13, 2007, the trial court granted the State's motion seeking to sentence defendant to an extended term, pursuant to N.J.S.A. 2C:43-6f. After finding aggravating sentencing factors N.J.S.A. 2C:44-1a(3), (6), and (9), and no mitigating factors, the court sentenced defendant on Count Two to a seven-year extended term of imprisonment with a three and one-half year period of parole ineligibility; and to a concurrent four-year term of imprisonment on Count One. The court imposed all appropriate fines and penalties.*fn1
On appeal, defendant argues:
THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS FROM ABSENTEE WITNESSES.
THE DEFENDANT'S INVOCATION OF HIS [MIRANDA] RIGHTS WAS NOT SCRUPULOUSLY HONORED.
THE RIGHT TO BE FREE FROM SELF-INCRIMINATION AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW WAS VIOLATED. (Not raised below).
A. THE POLICE IMPROPERLY INFORMED JURORS THAT THE DEFENDANT REFUSED TO GIVE THEM A TAPED STATEMENT.
B. THE POLICE IMPROPERLY INFORMED THE JURORS THAT THE ALLEGED CO-CONSPIRATOR REFUSED TO GIVE THE POLICE A STATEMENT.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S RELIANCE ON THE EFFECTS OF DRUGS ON SOCIETY TO PERSUADE THE JURY TO CONVICT THE DEFENDANT.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER RELIANCE ON A CHARACTER AND DISPOSITION ASSERTION THAT THE DEFENDANT IS A "DRUG DEALER". (Not raised below).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR.  OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE CONFUSING, AMBIGUOUS, AND UNINTELLIGIBLE INSTRUCTION OF THE LAW OF CONSPIRACY AND THE SUBSTANTIVE CRIMES. (Not raised below).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION [WAS VIOLATED] BY THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURORS ON ALL THE ESSENTIAL ELEMENTS OF THE CRIMES. (Not raised below).
THE SENTENCE WAS EXCESSIVE.
A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM.
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
C. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
D. THE CONVICTION FOR CONSPIRACY MUST MERGE WITH THE CONVICTION FOR THE SUBSTANTIVE CRIME.
In May 2005, Detective Robert Orro of the Somerset County Prosecutor's Office, Organized Crime and Narcotics Task Force (Task Force), obtained a warrant authorizing the Task Force to intercept communications to and from a pre-paid cellular phone between May 19 and June 30, 2005. Although defendant was the initial target of the wiretap investigation, resulting information developed which caused the Task Force to target other individuals as well. Over the six-week investigation, various Task Force members monitored the wiretap and transcribed numerous conversations during which defendant agreed to sell cocaine. Based on the transcribed wiretap information, Task Force members set up surveillance and observed defendant engage in drug transactions with other individuals.*fn2
Based on conversations heard through the wiretap and surveillance of drug transactions, the Task Force obtained a search warrant for a residence in Somerville. On June 30, 2005, the Task Force executed the search warrant. On arrival at the residence, the Task Force members observed defendant and his brother Kareem Archer sitting on the front porch with a black baseball hat between them. Investigator Enrico Perrone placed Kareem Archer under arrest, and retrieved the hat and cellular phone lying next to it. The hat contained five plastic bags of cocaine.
Pursuant to an arrest warrant obtained in conjunction with the search warrant, Detective Omar Belgrave arrested defendant. Although Belgrave advised defendant that he was under arrest, Belgrave did not give defendant his Miranda*fn3 warnings at that time. Belgrave placed defendant into his vehicle and transported him to the Somerset County Prosecutor's Office (SCPO). On the way to the SCPO, defendant initiated a conversation with Belgrave asking why he was arrested. Belgrave advised defendant that he had a warrant for his arrest and would tell him the reason later.
Once at the SCPO, Belgrave asked defendant for his personal information. Prior to taking defendant's statement, Belgrave read defendant his Miranda rights from the SCPO "Miranda Warning Waiver Form." According to Belgrave, defendant was coherent, spoke clearly, and appeared to understand his Miranda rights. Defendant wrote the word "yes" next to each question, initialed and signed the waiver form. Although defendant did not initial next to that part of the Miranda form that stated "having these rights in mind I agree to speak with the police," he did sign immediately below it. At no time during his questioning did defendant invoke his right to an attorney or to remain silent.
Belgrave asked defendant whether he wanted to give a taped statement, but defendant declined. Instead, defendant provided an oral statement admitting he had gone by the name of "X" and had sold cocaine in the past. Belgrave then explained that the arrest warrant was issued for conspiracy, to which defendant replied: "well, if I've sold drugs before, why didn't you arrest me when I sold the drugs?"
When questioned if he knew a man by the name of "Pops," defendant responded that he did and that he visited Pops frequently. Using dates and times elicited from the wiretap, Belgrave then asked defendant whether he recalled meeting with certain individuals. Instead of answering the question, defendant again asked Belgrave, "if I was meeting with those people selling drugs, why didn't you arrest me at the time?"
The matter was tried between November 8, and November 30, 2006. Twelve Task Force members testified concerning their monitoring and capturing the telephone intercepts, or conducting follow-up surveillances at the locations ascertained from the wiretap. Mingle testified that he knew defendant as "X" and that he often met defendant at the home of Ricky Stewart, an individual whose nickname was "Pops," to purchase cocaine.
The State's final witness was Task Force Detective Joseph Walsh, who testified as an expert in narcotics. Walsh initially described to the jury how cocaine is packaged and sold in Somerset County. Responding to a hypothetical question from the prosecutor, Walsh opined that the five bags of cocaine recovered from the baseball hat "were possessed with the intent to distribute."
Although defendant did not testify, he called two witnesses on his behalf. One was Christopher Moeder, the Assistant Manager and Human Resources Manager at Altist Packaging, defendant's employer. Moeder testified that Altist employed defendant during May and June 2005, and during that time, defendant generally worked the morning shift from 6:00 a.m. to 4:30 p.m., Monday through Thursday, with Friday being optional. In addition, Moeder stated that defendant often worked overtime until approximately 8:00 p.m. On cross-examination, Moeder was provided with several dates and times relevant to the wiretap investigation to check against defendant's time records. Moeder acknowledged that defendant had not worked during any of those periods. On November 30, 2006, the jury found defendant guilty on both counts.
Defendant first argues that, by permitting the jury to hear he was the target of the wiretap investigation, the court in essence conveyed to the jury "that there was a factual basis for the police to target" him. Defendant asserts that the jurors could have inferred that the police had additional information outside the scope of the record that implicated him in drug dealing. Because he could not question the source of the information that led to him being the target of the investigation, he contends that his rights to confrontation and due process were violated. We disagree.
The right of an accused to confront and cross-examine witnesses in a criminal trial is well-founded. Crawford v. Washington, 541 U.S. 36, 54-55, 124 S.Ct. 1354, 1365-67, 158 L.Ed. 2d 177, 194-95 (2004). "The rule generally shields a party from damning out-of-court statements, which are offered for their truth but are not subject to the truth-testing rigors of cross-examination." State v. Branch, 182 N.J. 338, 342 (2005).
However, the right to confrontation "is not absolute." State v. Benitez, 360 N.J. Super. 101, 114 (App. Div. 2003). "A defendant's confrontation right must accommodate legitimate interests in the criminal trial process." Branch, supra, 182 N.J. at 349 (internal quotation omitted). For example, "a police officer generally may testify that he went to the scene of a crime based 'upon information received,' in order to show that the officer was not acting in an arbitrary manner." Id. at 351. However, "the hearsay rule is violated if the officer states or suggests that some other person provided information that linked the defendant to the crime." Ibid.
Furthermore, it is well-accepted that "[n]ot every trial error in a criminal case requires a reversal of the conviction." State v. Burton, 309 N.J. Super. 280, 289 (App. Div.), certif. denied, 156 N.J. 407 (1998); R. 2:10-2. Generally, a trial court's decision whether to admit or exclude evidence will not be disturbed on appeal absent a finding of abuse of discretion. State v. Buda, 195 N.J. 278, 294 (2008). "The test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Burton, supra, 309 N.J. Super. at 289. The existence of other evidence in the record, properly admitted, may render error, otherwise committed in either the exclusion or admission of specific evidence, harmless. State v. Doyle, 77 N.J. Super. 328, 344 (App. Div. 1962), aff'd, 42 N.J. 334 (1964).
In support of his argument, defendant cites State v. Bankston, 63 N.J. 263 (1973), where the prosecutor improperly informed the jury during opening and closing statements "that the detectives 'were actively engaged in an investigation of this man.'" Id. at 266. A detective also testified that "the officers had been talking to an informer and that based on information received they went to the tavern," explaining: "[w]e were looking for a certain individual that had narcotics in his possession." Ibid. (internal quotations omitted). Reversing the conviction, the Court held that an officer's testimony "repeating what some other person told him concerning a crime by the accused" violates the accused's right of confrontation. Id. at 268-69. "When the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Id. at 271.
Similarly, in Branch the Court reversed a defendant's conviction where a "detective's testimony that he developed a suspect based on information received from an unknown source was inadmissible hearsay that violated [the] defendant's right of confrontation." Supra, 182 N.J. at 342. In addition to testifying that he did so "'based on information received,'" the detective "also testified to the out-of-court descriptions of the burglar given by two non-testifying child victims." Ibid. The Court held that:
[i]n contexts other than a photographic identification, the phrase 'based on information received' may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person. The exception would be the defendant who opens the door by flagrantly and falsely suggesting that a police officer acted arbitrarily or with ill motive. In such a circumstance, the officer might be permitted to dispel that false impression, despite the invited prejudice the defendant would suffer. [Id. at 352 (emphasis added).]
Because "there was no trial testimony or evidence . . . that could have led [the detective] to focus on [the] defendant as a suspect" other than the improper testimony, the defendant's conviction was reversed. Id. at 347-48.
Conversely, the testimony here was not nearly as detailed as that cited above, and was elicited in response to defendant's opening the door on cross-examination. Various detectives who testified at trial were careful not to state that defendant was the target of the wiretap investigation. However, on cross-examination of Detective Christopher Shearer, defense counsel suggested that Eric Pittman was the initial target of the investigation. Shearer replied that "[he] didn't say that [the target] was Mr. Pittman." Defense counsel pressed on, asking, "was that the target of your investigation?", to which Shearer responded "[i]nitially, no, sir."
It was only after this line of questioning that the State sought to elicit from Shearer that defendant was the initial target. Because the court ruled that defendant had opened the door on the line of questioning, the State asked Shearer who the initial target was; Shearer identified defendant. Shearer's testimony would have concluded there had it not been for defense counsel then questioning Shearer on re-cross:
Q: Sir, isn't it true that the wire was for Eric Pittman, is that correct?
A: Initially, no, sir.
Later in the trial, the State questioned Orro, the lead investigator in the case, who the Task Force initially targeted in its investigation, and whether there were any additional targets. Orro replied that defendant was the target of the investigation, but that there were also additional targets, including Pittman.
Albeit not an identical situation to Branch, the Court's exception to the right of confrontation for a defendant who opens the door is applicable here. Save Shearer and Orro, the testifying officers were careful not to identify the target of the investigation, but instead limited their testimony to the information procured as a result of the wiretap. It was only when defense counsel raised the issue concerning who the target of the wiretap investigation was that the State sought to rebut the subtle inference that, by failing to name the target of the investigation, Shearer was in effect acknowledging that it was Pittman. The State sought to dispel that incorrect impression. We are satisfied that, because defendant opened the door to the line of questioning concerning who the target of the investigation was, the State properly elicited testimony from Shearer, identifying defendant as the target. Id. at 352.
Furthermore, the testimony is devoid of the hearsay statements rampant in the cases previously discussed. There was no testimony that defendant had become the target of the wiretap investigation based on information supplied by a non-testifying informant. Id. at 348 ("Both the hearsay rule and the right of confrontation protect a defendant from the incriminating statements of a faceless accuser who remains in the shadows and avoids the light of court."). Indeed, neither witness discussed why the police had focused on defendant. While the jury could have inferred that the Task Force members had probable cause to initiate the investigation, information concerning the events leading to the wiretap lacked the detail in the cases cited by defendant.
Although Shearer's brief reference to defendant as the target of the investigation was not error, the same cannot be said as to Orro's testimony. There was no issue that required clarification when the State questioned Orro as to the target of the investigation. Any ambiguity raised concerning the matter had already been clarified by Shearer's testimony. Despite this problem, we conclude that the error was harmless because the State presented overwhelming evidence of defendant's guilt. Burton, supra, 309 N.J. Super. at 289; R. 2:10-2. See also State v. Cotto, 182 N.J. 316, 337 (2005) (finding an informant's statements relayed through an officer's testimony harmless error when the State presented strong identification evidence, and "it was defendant who originally introduced the suggestive testimony").
Defendant argues next that the prosecutor's improper reference to the effect of drugs on society during summation requires reversal. We disagree.
The Court has held that "prosecutors may fight hard, but they must also fight fair." State v. Wakefield, 190 N.J. 397, 437 (2007), cert. denied, __ U.S. __, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008) (internal quotations and citation omitted). Generally, "[p]rosecutors are afforded considerable leeway in their closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Neal, 361 N.J. Super. 522, 534-35 (App. Div. 2003). However, "[p]rosecutorial misconduct constitutes grounds for reversal when it is so egregious as to deprive the defendant of a fair trial." Id. at 535.
In State v. Holmes, 255 N.J. Super. 248, 249 (App. Div. 1992), a prosecutor made two inappropriate comments to the jury. On opening, he stated: "You all understand the particular drug problem that we have in this country, particularly in Newark and I submit to you, that the police officers don't have to make up facts." Ibid. The defendant objected, but the trial court did not sustain the objection or give a curative instruction. Ibid. During summation, the prosecutor again commented, "[w]ith the war on drugs, [the police witness] didn't have to come before you and fabricate these type [sic] of cases. I submit to you he came before you and told the truth." Id. at 249-50. We concluded that, taking the two comments together, the comments were "so inflammatory as to constitute plain error." Id. at 251. As such, we reversed the defendant's conviction and remanded for a new trial. Id. at 252.
Likewise, in Neal, supra, 361 N.J. Super. at 535, the prosecutor commented that "the defendant's calling of character witnesses was 'quite shameless.' . . . 'And he should be really ashamed of himself that he would put those character witnesses of his in the line of fire like that to come in and say good things about him when he knows he lied.'" Ibid. Again, we found that "the comments were egregious and deprived defendant of a fair trial." Ibid. This was so because defendant's credibility was at issue and "[t]he prosecutor's comments cast aspersions upon defendant for calling the witnesses"; and the comments improperly "express the prosecutor's personal belief or opinion of defendant's guilt." Id. at 536. Additionally, "[t]he prosecutor also impermissibly asked the jury to hold defendant accountable for his betrayal of the children of Asbury Park." Id. at 537. We determined that comment was "inflammatory, improper and had the capacity to deprive defendant of a fair trial." Id. at 538.
Nevertheless, not all instances of prosecutorial misconduct require reversal. "Prosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987). That is, error will not require reversal unless it is "clearly capable of producing an unjust result." R. 2:10-2. In evaluating a claim of harmful error, the fundamental question is whether it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict if the questioned conduct had not occurred. State v. Macon, 57 N.J. 325, 335-36 (1971).
Here, the improper statements alleged by defendant were made during the State's summation:
This is a case not only about police investigation and surveillance, it's also about a personal toll that you see comes out of the use of cocaine in this case.
Not only have you been shown evidence that the co-defendants in this case, Mr. Mingle, Andrew Brockley, Rose Hinson, Nikki Johnson use drugs, and that's not good, and it's against the law, and it has bad implications for them and for society. . . .
At that point defense counsel objected, and the court conducted a sidebar conference. The prosecutor explained that he sought to address the personal toll drugs had taken on the witnesses' lives based on their testimony. The court instructed the prosecutor that he was permitted to comment "about the evidence that was actually adduced during the course of the trial," but he could not "cause bias or prejudice and cause the jury to become the avenging angel, so to speak." Further, the judge noted that he was "cautioning" the prosecutor, not that he had found the comments at that point to be improper. After the sidebar conference concluded, the prosecutor refrained from any further comments of the nature complained of.
We conclude that the comments complained of do not warrant reversal. Contrary to defendant's assertion, the prosecutor's comment was fleeting at best and did not rise to the level of those made in Holmes or Neal. Additionally, during the jury charge, the judge instructed the jury to disregard what the attorneys may have said regarding the evidence and to rely on its recollection. The court's immediate action to defendant's objection, coupled with the prosecutor's refraining from such comments after that point, effectively cured any error. See State v. Tirone, 64 N.J. 222, 229 (1974) (where the prosecutor's comments during summation were not so inflammatory as to offend the defendant's rights to due process of law). Furthermore, the evidence adduced at trial of defendant's guilt was overwhelming. The prosecutor's brief mention of the bad implications "for society" constitutes harmless error as it was not "clearly capable of producing an unjust result." R. 2:10-2.
We have considered defendant's remaining arguments in light of the record and applicable law. We conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).