December 16, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID SPENCER, A/K/A DAVID SAMS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-03-0406.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2009
Before Judges Stern, Graves and Newman.
Tried by a jury, defendant, David Spencer, was found guilty of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1); second-degree possession of heroin with intent to distribute same in a quantity of one-half ounce or more, but less than five ounces, N.J.S.A. 2C:35-5a(1) and (2); and third-degree attempted hindering apprehension, N.J.S.A. 2C:5-1a(3) and N.J.S.A. 2C:29-3b(1). The State moved for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f. Merging the possession charge with the possession with intent to distribute, the trial judge sentenced defendant to a mandatory extended term of sixteen-years imprisonment with an eight-year parole ineligibility term. On the attempted hindering apprehension charge, the court sentenced defendant to a concurrent five-year term. Defendant appeals. We affirm.
The relevant facts may be summarized as follows. On September 19, 2004, a concerned citizen contacted the Paterson Police Department to report that defendant and co-defendant David Ellis were employing Ellis's girlfriend, co-defendant Alexis Timmons, in her first floor apartment, on Montgomery Street in Paterson, to store bulk amounts of heroin. The citizen reported that rental vehicles were then used to transport the heroin to street dealers in Paterson.
Detectives William Palomino, Virginio Formentin, and Marvin Sykes investigated the citizen's information. The detectives were familiar with defendant and Ellis from "numerous prior narcotic investigations." That week, the detectives set up a thirty-five minute visual surveillance of Timmons's apartment building. The police officers claimed that during this surveillance, they observed a silver 2004 Pontiac SUV pull up and park in front of the apartment building. The detectives identified the driver and front passenger as defendant and Ellis, respectively. The two men were seen entering the apartment, exiting the apartment about two minutes later, and driving away.
The surveillance followed the vehicle to an abandoned lot on 12th Avenue. There, defendant met with a black male. The detectives said that they saw defendant give a black plastic bag to the male, who then walked into the lot and secreted the plastic bag in the fender of a pick-up truck with no license plate. The detectives said that the SUV then drove away.
Detective Palomino continued to surveil the male and observed him make what appeared to be numerous "hand-to-hand drug transactions." The detective recognized one individual from a previous narcotics investigation. He saw this person exchange money for a small object.
A second visual surveillance was conducted of Timmons's apartment building during the week of September 26, 2004. The detectives again saw the same Pontiac SUV, with the same license number, pull up in front of the building, with defendant and Ellis inside. The detectives stated that they observed defendant and Ellis enter the apartment building for about two minutes before they re-emerged, and drove to the abandoned lot on 12th Avenue.
Detective Palomino said that he observed defendant exit the SUV. Detective Palomino stated that he saw a black male in his early twenties exit the lot and approach defendant, at which point, defendant "began to look around while the . . . male entered the SUV and removed a medium sized plastic bag which he took and hid in the lot . . . ." Detective Palomino then said that he recognized a female from a past narcotic investigation approach defendant, who directed her to the lot, "where she made what appeared to be a hand to hand drug transaction" with the male.
Afterwards, Detective Formentin arranged for a confidential informant to conduct a controlled buy from the male in the lot. The plastic bag that the informant purchased tested positive for heroin. The detectives also discovered that the Pontiac SUV was registered to Elrac, Inc., commonly known as Enterprise Rent-ACar (Enterprise).
The citizen's information and the follow-up surveillance were described in an affidavit, signed and dated on September 29, 2004, by the detectives, for four search warrants, which were granted by a municipal judge. The search warrants were for defendant's person, Ellis's person, the Pontiac SUV, and the first floor of the apartment building at 59 Montgomery Street and any persons found therein reasonably believed to be connected with the criminal activity.
After obtaining the search warrants, the detectives drove to the Montgomery Street address. The detectives observed the same Pontiac SUV pull up in front of the apartment and saw defendant and Ellis exit the vehicle. The vehicle then pulled away, and was subsequently stopped and searched by a back up team of officers. The driver was identified as Gilbert Robinson. Nothing was recovered by the police in the Pontiac SUV.
Meanwhile, just before the police were about to stop defendant and Ellis, the men noticed the police and fled into the apartment building. Detectives Palomino, Formentin, and Paterson pursued them. The detectives saw the men run upstairs, go inside the second floor apartment, and slam the door shut. As the men were running upstairs, Detective Palomino saw defendant drop a "bright color [sic] plastic bag on the steps." Inside the bag, the detective could see "several bricks of heroin, suspected heroin." Later, the police counted 500 glassine bags of suspected heroin from inside the bag.
Detective Evelyn Gonzalez, located behind the apartment building, radioed the detectives and informed them that bricks of suspected heroin and United States currency were being thrown out of the second floor window. Thereafter, Detective Formentin identified himself and the other detectives as Paterson police officers, outside the second floor apartment. The detectives forcibly entered the apartment when no one responded to the door. The apartment was occupied by defendant, Ellis, Timmons, and Ellis's seventeen-year old cousin. The detectives observed defendant exiting the bathroom and Ellis attempting to flush numerous glassine bags of suspected heroin in the toilet. They also noticed United States currency in a grocery bag on the bathroom floor. After securing the second floor to ensure there were no other occupants, the detectives sought and obtained a search warrant for the second floor apartment.
Two-hundred sixty-one glassine bags of suspected heroin from the bathroom, 500 glassine bags of suspected heroin from the bag that defendant dropped while running up the stairs, twenty-five glassine bags of suspected heroin from the front bedroom of the apartment, and 952 glassine bags of suspected heroin from outside the apartment were recovered. The police also found a Timberland boot box under Ellis's bed. A digital scale, a dinner plate with white residue, small zip-lock baggies, larger zip-lock baggies, an ink pad, stamps, rubber bands, three straight edge razors, envelopes with the return address stating Ellis's name and the apartment's address, and three government documents that had defendant's name on them, with another address, were found inside the box. The police also found glassine envelopes of suspected heroin and magazine wrappings inside the box. They were wrapped in ten glassine bundles. Six thousand five hundred twenty-five dollars was also found. Defendant, Ellis, Robinson, and Timmons were arrested.
A field test conducted by Detective Sykes of some bags of suspected heroin positively identified the contents of the bag as heroin. Laboratory tests resulted in positive identifications of heroin that was recovered from the backyard of the apartment and the toilet.
A suppression hearing was held regarding the evidence found pursuant to the search warrants.
At the hearing, Robinson testified that he is friends with defendant and Ellis, and that his girlfriend, Ashley Moore, rented a purple Mazda from September 16 to September 23, 2004, then a beige mini van from September 23 to September 28, 2004, and then the Pontiac SUV for him on September 28, 2004.
Enterprise's records corroborated Robinson's account of the rental vehicles. Robinson said that he did not possess nor loan the Pontiac SUV van before September 28.
Detective Palomino did not remember the exact days of the week that he conducted the visual surveillance of the apartment building. Detective Palomino participated in preparing the search warrant affidavits, but Detective Formentin typed them. The information contained in the affidavit was recited from memory. The affidavit was prepared during the weeks of September 19 and 26. Detective Palomino reviewed the affidavit to make sure that it was truthful and accurate. He said that based on his experience in narcotic-related law enforcement, people involved in the drug trade use rental cars to elude the police. The detective stated that people in the drug trade sometimes pay individuals to rent vehicles for them.
Enterprise's records showed that the Pontiac SUV was rented from September 17 to September 18 by a Paterson resident, September 20 to September 21 by a Hawthorne resident, September 21 to September 23 by a Paterson resident, September 24 to September 25 by a Paterson resident, September 25 to September 27 by a Bergenfield resident, and September 27 to September 28 by a Wayne resident. According to Enterprise's records, on September 28 at 2:30 p.m., Moore exchanged her second rental vehicle for the Pontiac SUV. Enterprise received the Pontiac SUV from Moore on September 30. Moore testified that she rented the vehicle for Robinson and that he was Ellis's friend.
At trial, Detective Sykes mentioned that the detectives obtained search warrants for defendant, Ellis, the Pontiac SUV, and the first floor apartment. He said that the detectives applied for a search warrant for the second floor apartment. The detective testified that he and the other detectives refrained from searching the second floor apartment until a judge determined they had sufficient probable cause.
Detective Sykes was qualified by the trial judge as an expert in the areas of narcotics packaging, narcotics trafficking, and possession of narcotics. Detective Sykes testified that he processed certain evidence, including a small scale, empty glassine bags, glassine bags with suspected heroin, zip-lock baggies, and razor blades. He opined that, based on his experience, the scale found at the apartment was commonly used "to weight [sic] drugs, to bag it up, to sell in the street." He said that, based on his training and experience, he had seen glassine bags before and that they are used to package heroin. Sykes testified that, once heroin is packaged in glassine bags, the heroin is commonly distributed on the street; that rubber bands, which were also found at the apartment, are commonly used to bundle heroin glassine bags to make a brick; and that magazines, also found in the apartment, are commonly used to wrap up bricks of heroin composed of fifty glassine bags. He also identified bags commonly used to package marijuana, bags commonly used to package powder cocaine, and bags commonly used to package crack cocaine. The detective also explained that drug dealers commonly stamp glassine bags of heroin with different logos, as a trademark; in this case, the stamp that the detective processed was that of a marijuana cigar, and Detective Sykes opined that it had been previously used. The detective also acknowledged how razors are commonly used to distribute cocaine. Detective Sykes testified that he conducted a field test of suspected heroin, seized from the apartment, that tested positive.
Detective Formentin was qualified as an expert in the area of narcotics distribution by the trial judge. Detective Formentin testified about the role the glassine bags, rubber bands, and magazines play in the distribution of narcotics. He said that a dinner plate like the one found in the Timberland boot box is commonly used to mix heroin. The detective also opined that the zip-lock baggies found in the boot box are commonly used to package controlled dangerous substances.
Detective Formentin also testified about his surveillance from the week of September 26. He said that he observed defendant and co-defendant Ellis pull up to the apartment on Montgomery Street, enter the apartment, return to the vehicle about two minutes later, proceed to the lot on 12th Avenue, and meet with an individual. The detective described the location as "a high drug area."
Detective Palomino testified about his surveillance of defendant during the week of September 16. The detective said that he observed the Pontiac pull up in front of [a lot on] 12th Avenue, at which a [sic] unidentified black male approached the front driver's side window. I was able to observe [defendant] have a brief conversation with this unidentified black male at which time [defendant] gave the unidentified black male a plastic bag.
The detective said the black male then walked into the lot at that address, "went around to a pick-up truck which had no license plate on it, and went to the passenger side and placed that black plastic bag into the front fender wheel well of that black pick-up on the passenger side."
Co-defendant Ellis lived in the second floor apartment with Timmons in September 2004. According to Ellis, he and Timmons were packing the apartment up and moving out by October 1, 2004. Ellis claimed that Robinson brought over a blue book bag on the afternoon of September 29. Ellis stated that Robinson took out a black bag from the blue book bag, said that there was $15,000 in the black bag, and asked Ellis to hold onto the bag for him. Ellis said that when the police followed him and defendant up the stairs, he and defendant discovered that heroin was in the bag that Robinson left and that they then attempted to get rid of the heroin.
Ellis denied that any of the heroin found in the apartment belonged to him. However, Ellis claimed ownership of the paraphernalia found under his bed. He said that they were used for purposes of packaging drugs but not heroin. Ellis admitted to selling crack and marijuana, but that neither defendant nor Timmons were dealers with him. Ellis said he stored his drugs outside, rather than inside because he did not want to endanger his children.
In a pre-trial suppression hearing, defendant challenged the truthfulness of the factual statements made in the affidavit in the suppression hearing. The trial judge found that the affidavit's statements were neither fabricated nor were they "false or improbable statements knowingly or intentionally, or [made] with a reckless disregard for the truth." The judge determined that "notwithstanding any inconsistencies provided in the affidavit, that there was probable cause to issue the search warrants."
The judge found that a discrepancy with regard to dates was perhaps caused by the affidavit's references to particular weeks, rather than particular days.
The trial judge acknowledged that the defense proffered through cross-examination of Detective Palomino and records from Enterprise, that other individuals rented the Pontiac SUV during the weeks of the surveillance, and, according to the defense, "that it would have been impossible for the affiants to have observed the Pontiac SUV, and that by extension the affidavit must be false." However, the trial judge "decline[d] to blindly accept this evidence as proof that experienced narcotics officers could not have observed the events as sworn to in the affidavit, in the manner in which Detective Palomino testified."
In reviewing the Enterprise records, the judge found that based on the locations of the people who rented the Pontiac SUV and the total mileage it accrued during this time, "it would not be impossible, and in fact it is very probable, that the observations made in the affidavit are true." Rather, "there's been nothing demonstrated that would make it impossible or extremely unlikely that the observations regarding the 19th just simply possibly can't occur. If anything, the proofs suggest it certainly could have occurred." He concluded that "the defense has not shown by preponderance of the evidence that the affidavit contained a false statement either deliberately or with reckless disregard for the truth."
The trial judge characterized Detective Palomino's testimony as "entirely credible." The trial judge understood that Detective Palomino did not specify the date of the surveillance to prevent the surveillance location and vehicle from being disclosed. The trial judge also found "there would be no motive for the detective, or the other affiants, to create a conspiracy in order to obtain a search warrant." The trial judge considered that Robinson testified that Moore rented a car for him, and that narcotics dealers commonly rent vehicles to help carry out their trade.
The trial judge found that the affidavit's narrative of the surveillance from the week of September 26 actually occurred. He gave weight to the three affiants' statements in the affidavit because of their qualifications. The trial judge also considered that Ellis had five prior arrests and two prior drug-related convictions. The trial judge noted that the Enterprise documents support the proposition that the detectives observed the second surveillance after Moore rented the Pontiac SUV on September 28. The trial judge concluded that based solely on the affidavit's statements concerning the second visual surveillance, coupled with the prior criminal history of defendant and Ellis, there was "absolutely more than a sufficient amount of probable cause to justify the warrant."
On appeal, defendant raises the following issues for our consideration:
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE DEFENDANT PROVED BY A PREPONDERANCE OF THE EVIDENCE THAT FACTS CLAIMED BY OFFICERS IN SUPPORT OF THEIR APPLICATION FOR A SEARCH WARRANT WERE UNTRUE.
NUMEROUS TESTIMONIAL ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL. (Partially Rasied Below).
IMPROPER NOTICE SHOULD HAVE PRECLUDED IMPOSITION OF AN EXTENDED TERM SENTENCE.
THE SENTENCE WAS EXCESSIVE.
Defendant argues in Point I that the evidence obtained from the search warrants should have been suppressed because their accompanying affidavits contained material falsities and, therefore, the affidavit's remaining content would be insufficient to establish probable cause. We disagree and reject the argument substantially for the reasons expressed by Judge Reddin in his written opinion of December 14, 2006, and his oral comments made on November 28 and December 14, 2006.
We add these brief comments. A defendant must prove by a preponderance of the evidence that material misstatements in a search warrant affidavit were made knowingly or with reckless disregard for the truth to invalidate a warrant and to suppress the evidence seized thereby. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed. 2d 667, 672 (1978); State v. Howery, 80 N.J. 563, 566 (1979).
"In reviewing a motion to suppress, [an appellate court] must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Mosner, 407 N.J. Super. 40, 59 (App. Div. 2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)) (internal quotation marks omitted). A reviewing court will reverse only if it is "convinced that the trial judge's factual findings are so clearly mistaken that the interests of justice demand intervention and correction." Ibid. (quoting Elders, supra, 192 N.J. at 244) (internal quotation marks omitted). Only then will an appellate court appraise the record as if it were "deciding the matter at inception" and make its own findings and conclusions. Id. at 59-60 (quoting Elders, supra, 192 N.J. at 244).
Judge Reddin's findings are supported by sufficient credible evidence in the record. The trial judge found Detective Palomino to be entirely credible and did not detect a motive to lie from the detective or the other affiants. As the trial judge noted, although the Enterprise records reflected that Moore did not rent the Pontiac SUV for Robinson until September 28, 2004, it was possible that the detectives observed defendant in the Pontiac SUV during the weeks of September 19 and September 26, especially considering that from September 19 until September 25, the Pontiac SUV was rented by residents from Hawthorne, Paterson, and Bergenfield. Indeed, the mileage traveled by the vehicle supports the possibility that the detectives observed defendant in the Pontiac SUV.
Even were we to discount these findings, defendant did not substantiate that the affiants' statements were perjurious or made with a reckless disregard for the truth. Defendant did not establish this by a preponderance of the evidence.
With respect to the arguments made in Points II, III and IV, we are satisfied that they are without sufficient merit to warrant extended discussion in a written decision. R. 2:11-3(e)(2). We add, however, these brief comments.
We agree that the evidence of paraphernalia was relevant to intent and its probative value outweighed its prejudice. Testimony from Detectives Palomino and Sykes that referred to and described the items of paraphernalia was admissible. This testimony was used to prove an element of the offense, namely, possession with the intent to distribute the heroin, and, as such, was properly admitted. It was not "other crimes" evidence, but rather related to the crimes for which defendant and his co-defendant were being tried.
The same is true of testimony concerning observations of the surveillance conducted of defendant's activities which led up to the securing of the search warrants. Indeed, even references to the search warrants, which defendant claims were improper, were approved by our Supreme Court in State v. Marshall, 148 N.J. 89, 239, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). See also, State v. Williams, 404 N.J. Super. 147, 168 (App. Div. 2008). Judge Reddin correctly instructed the jury that they were not to draw any inference of guilt from the issuance of a search warrant by a judge which was made on probable cause, a standard significantly less than the requirement of proof beyond a reasonable doubt.
Both Detectives Formentin and Sykes were properly qualified as expert witnesses. Contrary to defendant's assertions that they should not be permitted to testify as experts because it may enhance their credibility as fact witnesses, the employment of fact witnesses as experts "is an ordinary incident of many trials." State v. Jackson, 278 N.J. Super. 69, 75 (App. Div. 1994), certif. denied, 141 N.J. 95 (1995). Furthermore, "the use of a police officer with personal knowledge of an observed narcotics transaction to testify both as an eyewitness and an expert is not only ordinary but has met with specific judicial approval." Ibid. (citing U.S. v. de Soto 885 F.2d 354, 360 (7th Cir. 1989); United States v. Young, 745 F.2d 733, 760 (2d Cir. 1984), cert. denied sub. nom. Myers v. U.S., 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed. 2d 142 (1985); Channer v. State, 617 A.2d 1092, 1097 (Md. Ct. Spec. App. 1993)). Despite recognizing the special risk created by the dual nature of a fact and expert witness, we held that a full and proper jury instruction coupled with expert testimony, which did not encompass an opinion as to the nature of an observed transaction, was not reversible error. Id. at 78.
Here, neither Detectives Formentin or Sykes gave an opinion as the exchange between defendant and the individual at the 12th Avenue lot. Neither did each detective offer an opinion on the ultimate issue. In addition, the trial judge gave a full and proper jury instruction. Judge Reddin did not abuse his discretion in admitting Detective Formentin's or Detective Sykes's expert testimony.
Defendant contends that the cumulative errors committed by the trial court should result in a reversal of defendant's conviction. Because we have determined that there was no error perpetuated by the trial judge, much less an accumulation of errors, there is no basis for reversal.
With respect to the defects in the State's motion for a mandatory extended term argued in Point III, the mistakes were the wrong indictment number and date, but it listed the proper crime, and an incorrect date of birth for defendant. The trial court offered to adjourn the sentencing to correct the errors and re-serve the notice. Defendant, who was questioned in court concerning an adjourned date, declined. Defendant effectively waived any objection to the notice required by N.J.S.A. 2C:43-6f and no prejudice ensued to him.
Defendant was sentenced to sixteen years of imprisonment with eight years of parole ineligibility, a sentence that is within the acceptable range permitted under State v. Pierce, 188 N.J. 155, 170 (2006).*fn1 There is no presumptive starting point, but only a minimum term of five years and a maximum term of twenty years. N.J.S.A. 2C:43-6a(2); N.J.S.A. 2C:43-7a(3).
Defendant contends that the sentence was excessive. He was engaged in an organized criminal activity and was doing it for a livelihood, not to support a drug habit since he denied having any substance abuse problems. There was no impermissible double-counting by the trial judge in sentencing defendant to a mandatory extended term. In short, we are persuaded that the sentence was unexceptional and does not shock the judicial conscience. The trial court followed the sentencing guidelines. State v. Roth, 95 N.J. 334, 364-65 (1984).