December 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE F. RODRIGUEZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-05-0688.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 30, 2009
Before Judges Carchman, Parrillo and Lihotz.
Defendant Jose F. Rodriguez, along with co-defendants Alexis Martinez, Salvador Augustine, and Johanny Guzman were charged under Morris County Indictment No. 06-05-0688 with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); first-degree possession of CDS with intent to distribute (cocaine), N.J.S.A. 2C:35-5a(1), b(1) (count two); first-degree distribution of CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count three); and second-degree conspiracy to possess CDS with intent to distribute, N.J.S.A. 2C:5-2 (count four).
On October 20, 2006, co-defendant Salvador Augustine entered a guilty plea to first-degree distribution of CDS. Pursuant to the plea agreement, Augustine was to testify truthfully against his co-defendants in exchange for a recommendation that he be sentenced as a second-degree offender, N.J.S.A. 2C:44-1f(2), and receive a seven-and-a-half year term of imprisonment with a thirty-month period of parole ineligibility.
Defendant was tried with co-defendant Martinez. Following a jury trial, defendant was found guilty on all counts. The court sentenced defendant to a four-year flat term of incarceration on count one, to run concurrently to the sentence imposed on counts two, three and four; twelve years with a six-year period of parole ineligibility on counts two and three, to run concurrently; and a seven-year flat term on count four, to run concurrently to the sentence imposed on counts one, two, and three. Applicable fines and penalties were imposed.
Appellant presents the following points on appeal:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS.
THE DEFENDANT WAS INDUCED TO COMMIT THIS OFFENSE BY A POLICE OFFICER WHICH CREATED A SUBSTANTIAL RISK THAT THE OFFENSE WOULD BE COMMITTED BY THE DEFENDANT RATHER THAN ONE WHO WAS READY TO COMMIT IT; THE DEFENDANT'S CONDUCT WAS A DIRECT RESULT THEREOF. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE RESULTS OF THE LAB TESTS WITHOUT EVIDENCE OF THE CHAIN OF CUSTODY.
IT WAS ERROR ON THE PART OF THE TRIAL COURT IN NOT GIVING THE JURY A CLAWANS CHARGE.
THERE WAS A DISCOVERY VIOLATION RELATING TO THE TESTIMONY THAT THE DEFENDANT INDICATED TO THE UNDERCOVER OFFICER THAT THE CDS WAS IN THE PACKAGE HE WAS HOLDING; THE TESTIMONY SHOULD NOT HAVE BEEN PERMITTED.*fn1
IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL PURSUANT TO RULE 3:18 AND MOTION FOR A NEW TRIAL PURSUANT TO RULE 3:20 AS THERE WAS INSUFFICIENT EVIDENCE TO WARRANT A CONVICTION.
THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED. (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR RECONSIDERATION OF HIS SENTENCE.
After consideration of these arguments, review of the record, and applicable law, we affirm.
On April 1, 2005, the Morris County Prosecutor's Office conducted an undercover narcotics investigation. Detective Earl Harrison Dillard, a detective working in the Special Enforcement Unit, met with a cooperating witness, Gregory Fiorino, who agreed to assist the police with a narcotics investigation. Fiorino informed Dillard he had previously purchased cocaine from an individual, identified as "Alex," who was in the business of distributing large quantities of cocaine. Fiorino believed he could arrange to introduce Dillard to Alex for the purchase of a kilo of cocaine. Fiorino called Alex from his cell phone. Dillard recorded the conversation. The deal was arranged as follows: Dillard and Fiorino would purchase and split a kilo of cocaine, with Dillard paying $12,000 for his half. The transaction was set to take place in the parking lot of T.G.I. Friday's restaurant in Roxbury. Alex would be accompanied by "Sal" and "Van, or Vanilla."
Dillard held a pre-operational briefing with approximately twenty officers and detectives. He laid out the operational plan and informed each officer of his responsibility. During the course of the meeting, Dillard provided electronic equipment to assist the team and created a "take down" signal. It was established that Fiorino would introduce Dillard, who would engage the parties in drug-related conversation and purchase the cocaine. The $12,000 was placed in a secure location in the event Alex asked to see the money. However, the transaction was not to be completed: Dillard planned to negotiate the transaction, ensure the parties had the drugs, then give the take down signal, and call in the assisting officers.
Around 8:30 p.m., Fiorino placed a second call to determine Alex's location. Alex revealed he was coming over the George Washington Bridge. Dillard did not record the call. Shortly thereafter, Dillard and his team left to go to T.G.I. Friday's.
Dillard instructed Fiorino to place another call to Alex at approximately 9:30 p.m. Around 10:00 p.m., Fiorino received a call from Alex stating he had exited Route 80 and was looking for T.G.I. Friday's. Fifteen minutes later, Alex called Fiorino stating he had arrived.
As Dillard instructed, Fiorino greeted Alex and his associates, then returned to Dillard and the two walked toward Alex's car, a Mitsubishi Montero. Five individuals were inside the car. Martinez was sitting in the driver's seat, defendant in the front passenger seat, and Augustine sat in the rear passenger seat with two women.
Fiorino introduced Dillard to the individuals, and they engaged in casual conversation. Dillard asked about the cocaine, and Augustine reached between his legs and retrieved a black plastic bag, which he then handed to defendant. The contents of the bag were not visible, so Dillard squeezed the bag to ensure the object was consistent with a powdery substance and about the size of a kilo. Once Dillard was confident the drugs were in the bag, he dropped the bag onto defendant's lap, stepped back from the car, and pretended to make a call to get the money.
After a few minutes, Martinez asked Fiorino if he would take the bag. Dillard testified, "[i]t seemed to me that [Martinez] wanted to get . . . the cocaine out of his vehicle." At that point, Dillard gave the take down signal. The arrest team came in and took Fiorino, along with the occupants of the Mitsubishi, into custody. To maintain his cover, Dillard was also "arrested."
While Dillard was being led away by Sergeant Mike Rogers, he told Rogers the drugs were inside the Mitsubishi in a black plastic bag. Rogers went to the car, recovered the bag and examined its contents. He then took the black bag to special enforcement headquarters and examined its contents a second time. Rogers observed the black plastic bag contained two separate plastic bags that held the cocaine. Based upon the appearance, smell of the white powdery substance, and a chemical field test, Rogers confirmed the bag, in fact, contained cocaine.
Rogers submitted the substance to the New Jersey State Police for forensic examination. At trial, Lowell Mark, a forensic chemist employed by the New Jersey State Police, was qualified as an expert in forensic chemistry and related that his testing revealed the bag contained 1,005 grams of cocaine, a little more than a kilogram.
Captain Jeffrey Paul, of the Morris County Prosecutor's Office, was qualified as an expert witness in narcotics investigation. Paul testified the amount of cocaine recovered had an estimated wholesale value of between $25,000 and $32,000. He further testified the amount of cocaine at issue "would be consistent with possession with intent [to distribute] versus personal consumption."
Defendant presented no witnesses. Martinez called Special Agent Miguel Carrera of the United States Drug Enforcement Administration. Carrera assisted the Morris County Prosecutor's Office in the April 1, 2005 undercover operation. Carrera had interviewed Augustine at the time of arrest and obtained his written statement in Spanish. The translated statement was entered into evidence, pursuant to the parties' stipulation. Augustine wrote that he was solely responsible for the drug sale, and the others present in the car had no idea the sale was to occur.
As rebuttal, the State introduced that portion of Augustine's October 20, 2006 plea colloquy where he recanted the written statement previously provided to Carrera. Augustine explained he lied in his original written statement because he "was scared." On sur-rebuttal, co-defendant Martinez explained Augustine's October 20, 2006 statement was made as part of his plea agreement, whereby he was promised favorable treatment. The jury was informed Augustine pled guilty and was sentenced to seven-and-one-half years imprisonment, with a thirty-month period of parole ineligibility. The trial judge instructed the jury that consideration of Augustine's guilty plea and statement were for the purpose of determining credibility and were not evidence of the other defendants' guilt.
The jury found defendant and Martinez guilty on all counts. Thereafter, the court denied defendant's motion for judgment of acquittal or a new trial, which argued the State failed to prove beyond a reasonable doubt defendant knew the bag contained cocaine or that he had possession.
In imposing sentence, the trial court considered applicable aggravating and mitigating factors. Defendant's motion for reconsideration of sentence was denied. This appeal ensued.
Defendant first argues the court erred in denying his motion to dismiss the indictment because the State failed to present Augustine's arrest statement to the grand jury as exculpatory evidence. The trial judge denied the motion, determining Augustine's statement was not "clearly exculpatory," and that the State had presented sufficient evidence to make the requisite prima face case against defendant. The court stated:
[S]ince all the Prosecutor has to do is make out a prima facie case the testimony, to synopsize it, and we can read the transcript into the record, but there's no need to do so, is that there was an arranged meeting, that when the meeting took place the vehicle pulled up into a handicapped parking spot. The detective goes out, he sees five individuals in the vehicle later identified as the driver being Mr. Martinez and the front seat passenger being [defendant]. We don't really need, for this purpose, to identify who the other passengers were, but the package which later turned out to be a little over a kilogram of drugs, comes from the back seat passenger, it turns out Mr. Augustin[e], to the front seat passenger who was [defendant] who has the drugs in his lap, literally.
A decision on whether to dismiss an indictment is left to the sound discretion of the trial court and will be reversed only upon a finding of an abuse of discretion. State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). An indictment should be dismissed only on the clearest and plainest ground, where it is manifestly deficient or palpably defective. State v. Hogan, 144 N.J. 216, 228-29 (1996)(internal citations and quotations omitted). Challenges to a prosecutor's decision on instructing a grand jury, including what evidence to present, may be challenged when the prosecutor's error is clearly capable of producing an unjust result. State v. Hogan, 336 N.J. Super. 319, 344 (App. Div. 2001). This standard is satisfied upon a showing "that the grand jury would have reached a different result but for the prosecutor's error." Ibid.
Generally, any defect in a grand jury proceeding affecting the decision to indict is cured or rendered moot once a jury convicts, because a jury verdict establishes that there was probable cause to indict. United States v. Mechanik, 475 U.S. 66, 70, 106 S.Ct. 938, 942, 89 L.Ed. 2d 50, 56 (1986); Warmbrun, supra, 277 N.J. Super. at 60. Nevertheless, we will review defendant's challenge.
Augustine's written statement, made to Special Agent Carrera on April 1, 2005, was as follows:
I Salvador Augustine went to my friends and I asked them that they take me to NJ. I was going to go to NJ to sell drugs and it was going to be sold for credit. I brought one (1) kilo of cocaine. My friends did not know about this, only me.
I did this because I did not have work and I had to pay rent and other bills. I also had expenses of my family.
This was written by people from the DEA and I dictated it. It was not done by force and was voluntary.
The grand jury presentment was made on May 20, 2006. On October 20, 2006, Augustine retracted his statement and testified defendant knew of the plan to sell the kilo of cocaine.
On Martinez's motion, the court first reviewed the issue of whether the exculpatory evidence should have been presented on October 20, 2006. On February 26, 2008, defendant moved for dismissal of the indictment because Augustine's statement was not presented to the grand jury.
A prosecutor's duty to present exculpatory evidence arises only if the evidence directly negates guilt and is "clearly exculpatory." Hogan, supra, 144 N.J. at 237. As to the first requirement, "[c]onfining the prosecutor's duty to the presentation of evidence that directly negates the guilt of the accused recognizes that the sole issue before the grand jury is whether the State has made out a prima facie case of the accused's guilt." Therefore, this duty is not triggered "unless the exculpatory evidence at issue squarely refutes an element of the crime in question." Ibid. As to the second requirement, "that the evidence in question be 'clearly exculpatory,'" the quality and reliability of the evidence must be evaluated. Ibid.
In evaluating the quality and reliability of Augustine's unsworn written statement, the motion judge determined the issue was one of credibility and, therefore, the evidence was not clearly exculpatory. As stated in Hogan, "the credible testimony of a reliable, unbiased alibi witness that demonstrates that the accused could not have committed the crime in question would be clearly exculpatory." Id. at 238. That is not the case here. Certainly, when defendant presented his motion, Augustine's statement about the events of April 1, 2005 had changed, and his testimony given under oath implicated defendant.
Based upon our review of this record, we cannot state the prosecutor's conduct was an "'intentional subversion' of the grand jury process." State v. Engel, 249 N.J. Super. 336, 360 (App. Div.) (quoting State v. Murphy, 110 N.J. 20, 35 (1988)), certif. denied, 130 N.J. 393 (1991). Accordingly, we discern no basis to overturn the trial judge's reasoned exercise of discretion in denying defendant's motion to dismiss the indictment.
Defendant's second challenge addresses the jury charge. He argues the trial court should have included instructions on an entrapment defense. There was no objection to the instruction given by the trial judge and no request for an entrapment instruction was made. Therefore, our review is guided by the plain error standard, and we will not reverse unless any error was clearly capable of producing an unjust result. R. 2:10-2.
In making this determination, the possibility of an unjust result 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). With respect to a jury charge, plain error is an impropriety "prejudicially affecting the substantial rights of the defendant and 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. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970).
Defendant claims his criminal involvement resulted from police conduct, which induced him to commit the offense. Entrapment is recognized and defined in N.J.S.A. 2C:2-12.*fn2 If a defendant proves by a preponderance of the evidence that he was entrapped, he shall be acquitted. N.J.S.A. 2C:2-12b; State v. Rockholt, 96 N.J. 570, 576-77 (1984). A defendant who intends to rely upon the defense of entrapment must serve written notice upon the prosecutor, Rule 3:12-1, and allow a determination to be made by the trier of fact. N.J.S.A. 2C:2-12b.
Here, defendant gave no notice of the suggested defense, submitted no evidence of police misconduct, failed to show his conduct was a direct result of police actions, and cannot establish he was not ready to commit the crime, as required by N.J.S.A. 2C:2-12a. His proclamation that "the conduct by the police was sufficient to entrap the average person," is inadequate. Rockholt, supra, 96 N.J. at 577. We reject defendant's contention that error occurred.
Defendant also urges reversal of his judgment of conviction asserting the State failed to establish an uninterrupted chain of custody for the cocaine, admitted as evidentiary exhibit S-15. See State v. Brunson, 132 N.J. 377, 393 (1993) (stating that a party introducing tangible evidence has the burden of laying a proper foundation for its admission). Defendant contends the testimony offered by the State Police forensic chemist was deficient in proving that the cocaine seized was the same substance tested and introduced at trial. We disagree and conclude defendant's assertion lacks merit. R. 2:11-3(e)(2). We add these brief comments.
Mark reviewed the forensic testing identification numbers on the sealed sample he received from the police, which was the same number of the exhibit presented in court. Mark noted the substance was returned to the police once testing was complete, and he identified the evidence bag at trial, stating it appeared to be in the same condition as it was when he last observed it. In addition to Mark's testimony, the State presented Sergeant Rogers, who recovered the bag containing the cocaine from the Mitsubishi at the scene, examined it, and took it to his office for processing. Rogers removed the cocaine from the plastic bag, preserved the outer bag for future examination, and field tested the substance, which confirmed it was cocaine. Rogers placed the cocaine in an evidence bag, which he dated and signed, then sent the bag to the New Jersey State Police laboratory for forensic testing of its contents. Both officers dated and signed the evidence log accompanying the substance when received and returned.
"[T]he State is not obligated to negate every possibility of substitution or change in condition of the evidence." Brunson, supra, 132 N.J. at 393. "Such evidence generally should be admitted if the trial court 'finds in reasonable probability that the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed.'" Id. at 393-94 (quoting State v. Brown, 99 N.J. Super. 22, 28 (App. Div.), certif. denied, 51 N.J. 468 (1968)).
The trial testimony laid a proper foundation for the admission of the plastic bag and the lab results confirming its contents to be cocaine. In addition, the testimony established a "reasonable probability" the bag and its contents were in the same condition as they were on the night of April 1, 2005, further supporting the trial judge's decision to admit the evidence. Thus, we discern no error, let alone one clearly capable of producing an unjust result. Defendant's claim is rejected. R. 2:10-2.
Next, defendant argued the trial court erred by denying his request for an adverse inference charge because the State did not call Fiorino or Augustine as witnesses. See State v. Clawans, 38 N.J. 162, 171-72 (1962) (setting forth guidelines concerning inferences that may be drawn from a failure to produce a witness). Although the trial court declined inclusion of a Clawans charge, it permitted defendants to comment in summation that neither Fiorino nor Augustine testified. Defendant argues if comment was permitted, the charge was applicable. State v. Carter, 91 N.J. 86, 128 (1982). We disagree.
Under Clawans, supra, it must be shown that a party had the power to produce the witness at trial and that the witness' testimony would have been superior to that already utilized in respect of the fact to be proved. 38 N.J. at 171; see also State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985) (citing Carter, supra, 91 N.J. at 127), certif. denied, 103 N.J. 495 (1986). "[W]hen it is more reasonable to infer that the litigant's decision to do without the testimony is explained by factors other than the litigant's fear of its content, the inference is not properly drawn." State v. Velasquez, 391 N.J. Super. 291, 306 (App. Div. 2007). Moreover, the failure to call a witness available to both parties poses a possible inference against both, the questions of the existence and strength of the inference against either being dependent upon the circumstances of the case, including whether one party has superior knowledge of the identity of the witness and what testimony might be expected from him, as well as the relationship of the witness to the parties. [Clawans, supra, 38 N.J. at 171-72 (citations omitted).]
The trial court denied defendant's request for a Clawans charge because the witnesses were available to both parties, not specifically under the control of the State, and the State had presented tactical reasons not to call either witness. The prosecutor asserted the existence of Augustine's prior inconsistent statements lessened his effectiveness as a credible witness, and Fiorino's testimony would add little to that already provided by Dillard and could raise a significant N.J.R.E. 404(b) issue regarding the witness's past dealings with Alex, as well as his own criminal activities.
The Supreme Court in State v. Murphy, 36 N.J. 172, 178 (1961), held:
A prosecutor may sensibly decide for various reasons not to use evidence which could advance the State's case. . . . We have suggested enough to demonstrate the need for discretion in the prosecutor. He does not have a peremptory duty to use all available evidence to support the charge.
And surely, if a court should undertake to review the prosecutor's decision in such matters, it must know the reasons for his decision and weigh them against the contribution the evidence could make in the case.
The trial court's analysis of these issues was soundly supported. Additionally, the court's decision to allow this argument in the defense's summation even though the charge request was denied was proper and not inconsistent. "'[I]t is one thing for counsel in his summation to point to the absence of particular witnesses; it is quite another when the court puts the weight of its authority behind such a summation by telling the jury it may draw an adverse inference from their absence.'" State v. Hill, 199 N.J. 545, 562 (2009) (quoting Wild v. Roman, 91 N.J. Super. 410, 415 (App. Div. 1966). Defendant is "entitled to an adequate instruction on the law[,]" which he received. State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff'd, 158 N.J. 149 (1999). There was no error.
Defendant asserts the State violated its discovery obligations. The circumstances surrounding the omitted evidence center on Dillard's trial testimony, which we examine.
In a colloquy with the prosecutor, Dillard described his interaction with defendant:
Q: Can you please describe what happened at that point?
A: After a general conversation I basically inquired to where the drugs were, asking where it was, if they had it.
Q: And in response to that, what did [defendant] do?
A: Well, initially Mr. Augustine reached between his legs and -- we retrieved the black -- a black bag and I said, well, can I touch it, at which time the males in the vehicle started talking in Spanish again and seconds later [defendant] reached over his left shoulder and Mr. Augustine handed him that black plastic bag. It was a pretty big plastic bag.
Q: And upon receipt, what did [defendant] do with that -- that black plastic bag?
A: He put it on his lap. . . . .
Q: What did you do once this black plastic bag was [o]n [defendant's] lap?
A: He indicated it's in there. I reached my hands -- rested my elbows on the windowsill of the door, reached in and grabbed the package and squeezed it to see what the contents were and it seemed to be consistent with a powdery substance and about the size -- approximate size of what a kilo would be, at which time I put it back into his lap.
No objection was lodged. On cross-examination, when Dillard was asked about what conversations he had with defendant, he stated: "When he's holding the package he's indicating it's in here, yes, it's in here." Additional cross-examination elicited Dillard's acknowledgment that he failed to include defendant's admission in his report prepared immediately after the arrests or mention the statement during his grand jury testimony.
Defendant argues reversal is warranted because the incriminating statement attributed to defendant was not disclosed by the State prior to trial to allow him "to prepare for trial or to, perhaps  accept a plea offer." Further, defendant contends at the very least, "the trial should have been adjourned to permit preparation of a rebuttal."
A prosecutor's obligation, with respect to discovery, is set forth in Rule 3:13-3(c), which provides:
The prosecutor shall permit defendant to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b):
(2) records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but not recorded[.]
The duty to disclose is a continuing one. R. 3:13-3(g). When seeking a reversal of a conviction, due to the State's alleged failure to disclose a defendant's statement against interest, defendant must "demonstrate manifest injustice due to the State's discovery violation." State v. Harris (Harris III), 181 N.J. 391, 519 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005).
Defendant relies on State v. Blake, 234 N.J. Super. 166 (App. Div. 1989), suggesting Dillard's testimony was both "a surprise" and crucial to link defendant to the drug transaction. In Blake, supra, the defendant was on trial for robbery and elected to testify in his own defense. Id. at 167, 170. The defendant denied he knew the victim and stated he was not at the location of the crime. Id. at 170. Over the defense's objection, ibid., the State presented a rebuttal witness, the victim's mother, who testified to a conversation with the defendant wherein he admitted being at the location and firing a gun in the air. Id. at 172. Although the State had the witness' statement prior to trial, it was not disclosed. Id. at 171. This court reversed the denial of the defendant's request for mistrial. We determined the discovery violation impacted the defendant's decision to testify and concluded the State's "failure to disclose defendant's alleged inculpatory statements before he took the stand deprived [the] defendant of a fair trial." Id. at 175.
Unlike Blake, defendant, in this matter, did not object to or express surprise at Dillard's testimony. He neither sought an adjournment nor a mistrial. Defendant's silence deprived the trial court of the ability to implement curative action to protect defendant's rights, such as striking the testimony or employing the other remedies outlined in Rule 3:13-3(g).
A more important distinction between this matter and Blake is that defendant has not articulated how the omission altered his trial decisions or strategy. In Blake, supra, the undisclosed admission was utilized after the defendant testified. 234 N.J. Super. at 170-71. Therefore, the defendant's decision to take the stand was made without knowledge of all the evidence against him gathered by the State. Ibid. Here, defendant discloses no similar manifest injustice or even what "different trial strategy would have been employed" had he had Dillard's statement ahead of time. Harris III, supra, 181 N.J. at 519 (internal citations omitted). In fact, the defense later used this evidence to impeach Dillard.
Reversal of a conviction will be granted only when it is demonstrated that the trial error was "clearly capable of producing an unjust result." R. 2:10-2. Defendant has failed to satisfy this standard.
Defendant next asserts the trial court erred in denying his motion for acquittal, pursuant to Rule 3:18-1, or a new trial, pursuant to Rule 3:20. Defendant was charged with possession of cocaine with an intent to distribute and conspiracy. He argues the State "failed to prove the possessory counts of the complaint" and that there was inadequate evidence of a conspiracy. Viewing the State's direct and circumstantial evidence in its entirety, and giving the State the benefit of all reasonable inferences, we disagree and conclude the evidence was sufficient such that "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967).
"Criminal '[p]ossession signifies intentional control and dominion, the ability to affect physically and care for the item during a span of time[.]'" State v. Brown, 80 N.J. 587, 597 (1979) (quoting State v. Davis, 68 N.J. 69, 82 (1975)). To prove conspiracy, the State must show defendant, with the purpose of facilitating the commission of a crime, made an agreement with another person to engage in conduct constituting a crime. N.J.S.A. 2C:5-2.
The uncontroverted evidence showed the police, with the aid of a cooperating witness, arranged for the purchase of a kilo of cocaine. Defendant, along with the co-defendants, traveled from New York to New Jersey and arrived on the date and at the designated meeting spot for the narcotics transaction. In the vehicle was a kilo of cocaine. Defendant was present during conversations that expressly discussed inspection of and payment for the CDS. At Dillard's request, defendant held the bag of cocaine for Dillard's inspection. Taken together, it was reasonable for the jury to infer from these facts defendant, together with the co-defendants, intended to take part in a significant drug transaction. We determine that, based on the evidence presented, the facts "coalesce sufficiently to enable a rational jury to infer beyond a reasonable doubt knowledge and control on the part of defendant justifying his convictions for the crimes of . . . possession with an intent to distribute[.]" Brown, supra, 80 N.J. at 599. It is not fatal to the State's case that other possible explanations of defendant's conduct could be argued or that the evidence failed to "exclude every other conceivable hypothesis except guilt." Ibid.
Turning to his request for a new trial, defendant alleges relief was warranted due to prosecutorial misconduct during summation. In support of this claim, defendant cites four improper references.
The first remark relates to the prosecutor's reference to the amount of cocaine recovered, as follows:
First, there's testimony before you, and there's no real dispute that this is, in fact, cocaine. That's a quantity approximately seven times more than it is necessary for the State to prove here in this case. You will hear testimony that the State will show that it's five ounces or more. That bag contains more than seven times the amount of cocaine necessary.
Defendant claims the statements "were an attempt on the part of the prosecutor to, with irrelevant information, overwhelm the jury making the implication that [he] was guilty because of the sheer amount of cocaine" and to display the prosecutor's belief of defendant's guilt.
Second, defendant takes issue with the prosecutor's recitation that three distinct people, defendant, Martinez and Augustine arrived at T.G.I. Friday's, which he maintains is a fact not in evidence, as Dillard testified five people were in the vehicle when it pulled into T.G.I. Friday's.
Next, defendant asserts the prosecutor improperly vouched for Dillard's credibility by referring to Dillard's experience as a trained detective. Specifically, the prosecutor stated:
Okay, ladies and gentlemen, this is a situation where you have a trained police officer see the package in the hands of the defendants. This is not a situation where there's a dead body and a gun sitting next to the body and you need to find out who touched that gun. We have a trained detective who's had six years in narcotics who saw who touched the gun.
I submit, ladies and gentlemen, that is all you need.
In a related comment, the prosecutor stated:
Ladies and gentlemen, you heard from Detective Dillard and while you deliberate it will be your job to determine Detective Dillard's credibility. The State submits that his credibility is unassailable.
It is unclear whether any of these comments evoked objection. During the State's summation, defendant requested a sidebar, which was not recorded. Therefore, we review defendant's claims to determine whether the alleged "misconduct . . . was so egregious that it deprived the defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987).
Prosecutors must be "afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (citing Harris, supra, 141 N.J. at 559). It is expected that the State's summation should be "vigorous and forceful" but tempered by a prosecutor's primary duty "to see that justice is done." Ramseur, supra, 106 N.J. at 320 (internal quotations and citations omitted). Accordingly, in our review, we "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties." Harris, supra, 141 N.J. at 559.
Guided by these standards, we reject defendant's contentions of alleged misconduct. First, the amount of a controlled substance relates to the offense of possession with intent to distribute. State v. Zapata, 297 N.J. Super. 160, 178 (App. Div. 1997), certif. denied, 156 N.J. 405 (1998). Therefore, the prosecutor's remarks regarding the quantum of cocaine were not improper. The second example, suggesting the State offered facts not in evidence, lacks merit. R. 2-11-3(e)(2). It was never disputed that five individuals were present in the car -- three of whom were men, as Fiorino stated. Finally, although a prosecutor may not offer a personal opinion, as to a particular witness's veracity or credibility, State v. Morton, 155 N.J. 383, 457-58 (1998), or suggest that police officers are believable due to the nature of their office, Frost, supra, 158 N.J. at 85, the prosecutor's remarks here do not violate these principles; rather, they were examples of fair comment on the evidence, particularly in light of defendant's attack on Dillard's credibility. Morton, supra, 155 N.J. at 457-58; State v. Perry, 65 N.J. 45, 48 (1974); State v. Di Paglia, 64 N.J. 288, 297 (1974).
We conclude defendant was not denied a fair trial. Accordingly, the trial court properly denied his request for a new trial.
Finally, defendant advances two arguments to support his claim that his sentence was excessive. Our role in reviewing the trial judge's sentence is a limited one. "[A]n 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). However, "'appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts.'" State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).
In imposing an aggregate sentence of twelve years with a six-year period of parole ineligibility, the trial judge properly elevated the offense to first-degree, based on the quantity of CDS involved. N.J.S.A. 2C:35-5a(1). Also, the judge properly found applicable aggravating factors one (the nature and circumstances of the offense), N.J.S.A. 2C:44-1a(1); seven (defendant committed the offense, pursuant to an agreement that he either pay or be paid for the commission of the offense and the pecuniary incentive was beyond that inherent in the offense itself), N.J.S.A. 2C:44-1a(7); and nine (the need to deter defendant and others from violating the law), N.J.S.A. 2C:44-1a(9). The court provided the factual basis supporting application of factor one, determining "[o]ne kilogram of cocaine can be cut so many times that literally hundreds of lives could have been or would have been affected had these drugs hit the street." In applying factor seven, the court noted the drugs were to be sold, and the need for deterrence is easily inferred from the court's comments.
Mitigating factor seven, N.J.S.A. 2C:44-1b(7), was also applicable as this was defendant's first conviction. On appeal, defendant suggests additional mitigating facts should have been considered. However, these assertions are unsupported and must be rejected.
The trial court found the aggravating factors preponderated over the mitigating factor, see N.J.S.A. 2C:43-6b; State v. Sainz, 107 N.J. 283, 290-91 (1987), and the sentence was properly within the statutory range for the offenses. State v. Ghertler, 114 N.J. 383, 387-89 (1989); Roth, supra, 95 N.J. at 362-64. We discern no basis for modification, as the trial judge correctly exercised his broad discretion and did not impose a sentence that shocks the judicial conscience. Roth, supra, 95 N.J. at 364-66.
Additionally, defendant argues fundamental fairness alone requires a reduction in his period of parole ineligibility. He compares his six-year parole ineligibility period on a twelve-year sentence to that imposed on co-defendant Martinez, who received a period of approximately six years, eight months and twenty-one days before being parole eligible on his twenty-year sentence. Defendant argues this disparity of treatment requires his period of parole ineligibility be shortened.
"'A sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter.'" State v. Roach, 146 N.J. 208, 232 (quoting State v. Hicks, 54 N.J. 390, 391 (1969)), cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). Although a sentence imposed upon a defendant may fall within the mandatory statutory limits, "there is an obvious sense of unfairness in having disparate punishments for equally culpable perpetrators." Roach, supra, 146 N.J. at 232 (internal quotations and citations omitted). Thus, the question to be determined by an appellate court "is whether the disparity is justifiable or unjustifiable." Id. at 233. We have no basis to interfere with the sentence imposed.