December 9, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAHEAN BROWN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-02-0259.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2009
Before Judges Parrillo and Ashrafi.
Tried by a jury, defendant Rahean Brown was convicted of third-degree conspiracy to distribute heroin, N.J.S.A. 2C:5-2 (Count One); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (Count Two); third-degree possession of heroin, N.J.S.A. 2C:35- 10a(1) (Count Four); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (Count Five); third-degree possession of heroin with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-5a(1) and 2C:35-7 (Count Six); third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (Count Seven); and third-degree distribution of heroin within 1,000 feet of school property, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7 (Count Eight).*fn1 After appropriate mergers, defendant was sentenced on Counts Six and Eight to concurrent five-year terms with three-year parole bars, and on Count Two, to a concurrent eighteen-month term of imprisonment. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs, on the morning of October 1, 2001, while on narcotics surveillance in his unmarked vehicle in the area of Carteret and Ocean Avenues in Jersey City, Officer Christopher Robateau observed defendant and a juvenile, J.W., standing on the southeast corner of that intersection. About fifteen minutes later, Kenneth Brown approached and engaged in a brief conversation, after which Brown handed defendant paper currency. After counting the bills, defendant nodded to J.W., who then removed an object from his jacket pocket and handed it to Brown. As Brown left the area, Robateau radioed other officers stationed on the perimeter of the surveillance area with a description of Brown, while he continued monitoring defendant. Brown was thereafter apprehended, found to be in possession of a bag of heroin, and arrested.
While Brown was being searched, Robateau saw an unidentified female approach defendant and converse with him briefly. She handed him paper currency, and defendant then pointed to J.W. The woman, as directed, approached J.W., and he handed her a similar object from his jacket pocket. Robateau again radioed his perimeter units to arrest the woman, but the officers were unable to find her.
Thereafter, Robateau ordered the arrest of defendant and J.W. As officers approached the two suspects in an unmarked vehicle, they fled the scene in opposite directions. During the chase, Officer Alexander Bermudez saw J.W. discard several objects from his jacket pocket, which were later retrieved and, after testing, determined to be twenty packets of heroin. Officer Bermudez eventually apprehended J.W.
Meanwhile, Officer Vincent Romano pursued defendant in his police vehicle. As defendant ran on the sidewalk, Officer Romano drove parallel with him, displayed his badge, and yelled, "Stop. Police," multiple times through his open window. Defendant, however, continued to flee. Romano ultimately overtook defendant by pulling into a supermarket driveway and using his vehicle to cut defendant off. When arrested, defendant was found to have $290 in cash on his person.
On appeal, defendant raises the following issues:
I. THE DEFENDANT'S DUE PROCESS RIGHT TO A FAIR TRIAL WAS VIOLATED SINCE HE WAS NOT INFORMED OF THE CONSEQUENCES OF A STIPULATION. (NOT RAISED BELOW).
A. AGREEMENT TO A STIPULATION IS A PERSONAL RIGHT OF THE DEFENDANT WHICH MUST BE EXAMINED BY A TRIAL JUDGE ON THE RECORD TO ENSURE THAT THE DEFENDANT IS AWARE OF THE CONSEQUENCES OF SUCH A DECISION.
II. THE JURY INSTRUCTIONS, IN SUBSTANCE AND IN THE ORDER IN WHICH THEY WERE PRESENTED BY THE TRIAL COURT, WERE AMBIGUOUS AND MISLEADING. (NOT RAISED BELOW).
III. THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING MR. BROWN TO AN EXCESSIVE AND UNJUSTIFIED PRISON TERM WITHOUT SUBSTANTIVE CONSIDERATION OF ANY SENTENCING FACTORS.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.
At trial, defendant, represented by counsel, agreed to two factual stipulations: (1) that the collected evidence was heroin; and (2) that the location in question was within 1,000 feet of school property. The stipulation advanced his defense that J.W. was dealing heroin, alone, on the day in question, as he had done previously at the same location, and for which he had been arrested. Indeed, J.W. testified in support of this defense. Now on appeal, defendant argues that due process required that he first have been specifically questioned by the judge as to his understanding of the effect of a factual stipulation, and that he have stated his affirmation on-the-record. We discern no such constitutional requirement.
If "courts have no obligation to address a defendant and inquire whether he or she waives the right to testify[,]" which is constitutionally protected, State v. Savage, 120 N.J. 594, 630 (1990), a fortiori, no mandate exists for judicial intervention when uncontested facts are mutually acknowledged by the parties through counsel. The underlying constitutional right to which defendant points is the affirmative burden on the prosecution to prove every element of the crime charged beyond a reasonable doubt. That right, however, does not preclude counseled stipulations of facts. "As with the right against self-incrimination,... 'it is the responsibility of a defendant's counsel, not the trial court, to advise defendant on whether or not to'" stipulate to an undisputed fact, and "'to explain the tactical advantages or disadvantages [of] doing so or not doing so.'" Ibid. (quoting State v. Bogus, 223 N.J. Super. 409, 423 (App. Div.), certif. denied, 111 N.J. 567 (1988)).
Notably, defendant does not argue ineffective assistance of counsel for having entered into the two stipulations. See State v. Perry, 124 N.J. 128, 154 (1991). To the contrary, the stipulations advanced the defense that it was another, J.W., and not defendant, who was dealing heroin at the same location where J.W. had been previously arrested for the same illegal activity. Indeed, defense counsel stressed this point to the jury when he said in summation:
Rahean Brown and myself are not contesting that [the materials seized are] heroin and that the incident... was within 1,000 feet of a school. It's not an issue because I knew that [J.W.] was going to testify and say he was dealing drugs. It makes no sense for me to say "Oh, this isn't what it is."
Although the trial strategy ultimately proved unsuccessful, such "[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable...." Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed. 2d 674, 695 (1984).
Under these circumstances, relieving the State of its affirmative burden of offering evidence of uncontested facts violates no constitutional mandate. See State v. Mack, 131 N.J. Super. 542, 546 (App. Div. 1974) (holding that the discretion of the trial judge to eliminate from the jury's consideration "factual issues about which there could be no real dispute" where "there has been an intentional and distinct concession[,]... can be exercised... without impairment to the viable rule that the State bears the burden of proof beyond a reasonable doubt as to all material elements of the crime"). Absent any constitutional underpinning, we find no basis in due process to require judicial inquiry into a defendant's factual stipulation.
Defendant next contends he was prejudiced by the court's failure to fully repeat the definition of "possession" during his jury instructions on each and every drug offense charged against defendant. We disagree.
During the jury charge, the judge noted that "possession" was an "aspect of many of the charges" against defendant, and therefore he would explain in full the definition of possession only once, to save time, at the beginning of the instruction. Consequently, when "possession" arose in instructing on the elements of subsequent drug offenses, the court stated as follows:
Possession [-] I've already explained to you just a moment ago. You understand that applies - that concept applies here as well.
Okay? Anybody have any question about that?
Defendant did not object to the charge at trial. Now, he objects only to the court's failure to restate the definition of possession in each relevant count.
We review this belated challenge under the plain error standard, namely whether the claimed omissions were "clearly capable of producing an unjust result." R. 2:10-2. We also review the charge in its entirety to determine whether it was "'ambiguous or misleading.'" State v. R.B., 183 N.J. 308, 324 (2005) (quoting State v. Hipplewith, 33 N.J. 300, 317 (1960)). Those aspects of the charge alleged to be error are not viewed in isolation; rather, the charge is "examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973).
Viewed against this standard, we find no error, much less plain error, in the court's charge. The judge's initial description of "possession" was set forth over seven transcript pages, fully detailed and containing a wide range of examples. As noted, when the element of possession arose subsequent to the initial definition, the court made clear that (1) the concept of possession applied to the count under consideration and (2) the substantive definition of the term given earlier continued to apply. During deliberations, the jury had no questions as to this feature of the instruction, strongly suggesting its full understanding of the term and its application. Moreover, the judge provided counsel the opportunity to object to the charge, but no objections or suggested amendments were forthcoming. Even now, defendant does not complain of any substantive error in the definition of "possession" or any other portion of the court's instructions. We conclude the charge, when read as a whole, was accurate and surely not capable of "clearly producing an unjust result."
Lastly, defendant's claim of an excessive sentence is devoid of merit. At sentencing, defense counsel noted that each of defendant's drug convictions carried mandatory minimum terms, N.J.S.A. 2C:35-7, and asked that those sentences be imposed concurrently, along with an eighteen-month flat sentence for resisting arrest. The prosecutor agreed with defense counsel's assessment. The court, finding aggravating factors (3) and (9), N.J.S.A. 2C:44-1a(3) and (9), supported by defendant's criminal record, and no mitigating circumstances, sentenced defendant to an aggregate five-year term with a three-year parole bar. Under the circumstances, we find no warrant for interference with this determination.