December 11, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAEED T. ELLIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-07-1611.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 2, 2009
Before Judges Fisher and Espinosa.
In this appeal, we consider whether testimony concerning the police investigation that led to defendant's arrest violated the principles set forth in State v. Bankston, 63 N.J. 263 (1973) and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), and thereby prejudiced defendant's right to a fair trial. We also consider whether the sentence imposed was excessive. Finding no merit in any of these arguments, we affirm.
Defendant was charged with third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (first count); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (second count); and the second-degree offense of being a person not permitted to be in possession of a weapon, N.J.S.A. 2C:39-7(b) (third count). The first and second counts were dismissed prior to trial; at the conclusion of a jury trial, defendant was convicted on the third count.
The State successfully moved for the imposition of an extended term pursuant to N.J.S.A. 2C:44-3(a), and the judge sentenced defendant to an extended fourteen-year prison term, subject to a seven-year period of parole ineligibility.
Defendant has appealed, presenting the following arguments for our consideration:
I. TESTIMONY THAT CLEARLY IMPLIED THAT AN INFORMANT HAD TOLD THE POLICE THAT [DEFENDANT] HAD A GUN IN THE SATURN VIOLATED THE RULE IN BANKSTON AND THE RULE IN CRAWFORD (Not Raised Below).
II. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND MUST BE REDUCED.
In considering the argument raised in Point I, we first note that defendant did not object to the testimony he now claims violated Bankston and Crawford. As a result, to gain a reversal, defendant must demonstrate that these unnoticed claims of error were capable of producing an unjust result. R. 2:10-2.
To place these arguments in context, we recount the events preceding defendant's arrest. The record reveals that on March 21, 2006, Detective Scott Samis, of the Monmouth County Prosecutor's Office, and Lieutenant David DeSane of the Asbury Park Police Department investigated a tip received from a confidential informant (CI) about a handgun belonging to defendant. The CI advised that the gun was kept in a red car, bearing no license plates, parked in the yard of a residence on Elizabeth Avenue in Asbury Park. The CI claimed he knew this because two days earlier he had seen defendant fire the weapon and then place it in the car.
Detective Samis and Lieutenant DeSane arrived at the property and noticed a red Saturn, which lacked a front license plate, in the fenced-in yard. Prior to arriving, they learned there were outstanding municipal warrants for defendant's arrest. As he neared the residence, Detective Samis was approached by defendant's aunt; he advised of the nature of the investigation and was told by defendant's aunt that defendant had just left. Defendant's younger brother soon arrived in an agitated state, demanding to know why the police were present. When he failed to calm down, defendant's brother was handcuffed.
Defendant arrived shortly thereafter. He too was agitated and yelled at the officers, demanding to know why they were present. Defendant was arrested in light of the outstanding warrants. After being placed under arrest, defendant asked whether the officers had searched his vehicle; Detective Samis responded that they had not. Due to the nature of the CI's tip, as well as the fact that other family members were present, defendant was transported to the prosecutor's satellite office in Asbury Park and the red Saturn was towed.
A search of defendant's person at the prosecutor's satellite office uncovered no weapons. Detective Samis advised defendant of his Miranda*fn1 rights, which defendant voluntarily waived. Detective Samis testified at trial that he then told defendant he knew there was a handgun in the vehicle and suggested that defendant "step up and do the right thing and take responsibility for his actions." He testified that defendant admitted there was a gun in the vehicle and also acknowledged the vehicle was his although registered in his girlfriend's name. Defendant consented to a removal of the handgun from the vehicle. Defendant also signed a statement that declared he was the owner of the vehicle and the handgun. In addition, defendant admitted he did not have a permit for the gun.*fn2
The matter went to trial in April 2008. The State called Detective Samis and other police officers involved in the investigation. Defendant took the stand on his own behalf and testified he had no prior knowledge of a gun being in the vehicle. Defendant disputed Detective Samis's testimony, asserting that the detective told him his girlfriend and brother would be arrested if defendant did not "step up to the gun." Defendant claimed that he admitted ownership of the gun in order to protect his girlfriend and brother.
Defendant's argument in Point I actually contains two separate arguments; the first asserts a violation of Bankston and the second asserts that hearsay statements were admitted in violation of Crawford. We turn first to the Bankston argument.
In Bankston, the Court held that "the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" 63 N.J. at 268. The Court held that "[s]uch testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct." Ibid. As later explained in State v. Branch, 182 N.J. 338, 351 (2005), "[t]he common thread that runs through [the Bankston cases] is that a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." See also State v. Kemp, 195 N.J. 136, 154-55 (2008).
Defendant argues that Detective Samis's testimony implied he had "superior knowledge, outside the record," that incriminated him because he testified that a check was run on defendant before arriving at his aunt's residence*fn3 and that, upon being approached by defendant's aunt, the detective inquired about defendant's whereabouts.
Certainly, the police were proceeding on knowledge outside the record. The investigation was triggered by the CI's tip.
But the assistant prosecutor carefully conducted her direct examination of Detective Samis in an attempt to avoid disclosing the existence of a CI, the content of the CI's tip, or that defendant was a person of interest prior to the officers' arrival at the home of defendant's aunt. Although the testimony cited by defendant in his appeal brief may be arguably suggestive of the officers' possession of "superior knowledge, outside the record, that incriminates the defendant," State v. Branch, supra, 182 N.J. at 155, we can perceive no particular harm to defendant resulting from the detective's testimony.*fn4
Indeed, defense counsel did not object to those few instances when the detective's testimony may have drifted near areas prohibited by Bankston, thus suggesting the lack of harm.
In fact, the officers' possession of information outside the record -- namely, the CI's tip -- was not revealed during the State's case-in-chief, but only surfaced for the first time during defendant's testimony:
Q: And Det[ective] Samis, prior to talking to you that day, wouldn't have known that you had a fight with your girlfriend, would he?
A: In all actuality he would.
Q: Who would have told him that?
A: No, the CI would have.
Q: So the CI would have told him?
It is plainly apparent that it was defendant who volunteered that the CI had provided information to the police in response to the assistant prosecutor's open-ended questions during cross-examination.
In short, if a Bankston problem was created, it arose from defendant's own testimony and not from the brief comments in Detective Samis's testimony that suggested the officers' interest in defendant prior to their arrival at the residence of defendant's aunt.
In Point I, defendant raised a second issue, baldly asserting a violation of Crawford, which imposes constitutional limits on the use of hearsay in criminal trials. Defendant, however, has not specified the hearsay testimony he believes offended Crawford nor has he explained how any such testimony ran afoul of Crawford. Indeed, after careful examination of defendant's brief, we discern that he complains only of the emphasized portion of the following testimony of Detective Samis*fn5
Q: Without telling us what she might have said, can you tell us whether or not you actually had a conversation with her?
A: I did.
Q: And did you discuss the nature of your investigation with her?
A: I did.
Q: Did you inquire as to whether Saeed Ellis was present at that time?
A: I did, and she said that he had just left. [Emphasis added.]
As can be seen, this exchange commenced with the assistant prosecutor's caution to the witness that he should not express what defendant's aunt may have said to him. Notwithstanding, Detective Samis revealed what defendant's aunt said to him after he inquired about defendant's presence.
Although Detective Samis provided inadmissible hearsay in responding beyond the limits of the assistant prosecutor's question, the answer he gave has not been shown to be damaging. Moreover, as we have already observed, defense counsel did not object and thus deprived the trial judge of the opportunity to cure any prejudice resulting from this testimony. As a result, even if we were to conclude that this single hearsay statement violated Crawford, the unnoticed error was not capable of producing an unjust result. R. 2:10-2.
Lastly, defendant contends that the sentence imposed was excessive. He argues that the judge: placed undue emphasis on aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a); should have found the presence of mitigating factors one and two, N.J.S.A. 2C:44-1(b); and did not "follow the procedures set forth in State v. Pierce, 188 N.J. 155 (2006), in that, after finding the defendant to be eligible for an extended term, the judge did not mention his obligation to use the full range of sentences open to the [c]court based on the [c]court's assessment of the aggravating and mitigating factors" (emphasis added). We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
The judge found there was a risk that defendant will commit another offense, defendant had a lengthy criminal record and there was a need to deter defendant and others from violating the law. The record amply supports the judge's finding that aggravating factors three, six and nine were present. We find no reason to second-guess the weight the judge gave to those factors. In arguing the judge mistakenly failed to find mitigating factors one and two, defendant contends that the record suggested only that defendant obtained the gun to protect himself and his brother against a street gang. Even were this so, we fail to see how such facts support defendant's contention that he did not contemplate that his conduct would cause or threaten serious harm in engaging in the conduct for which he was convicted.
We also reject the contention that the judge did not properly follow State v. Pierce. Although the judge may not have expressed the fact that his discretion extended from the lower end of an ordinary term to the high end of an extended term, we have no cause to doubt that the experienced judge well understood the range within which the sentence could fall. Pierce imposes no obligation on a sentencing judge to express the scope of a lawful sentence; it requires only that he impose a sentence that falls within the acceptable range.