February 18, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENNETH PERKINS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-10-1062.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Grall and Messano.
Defendant Kenneth Perkins appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); and third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3).*fn1 Defendant, who was eligible for an extended term pursuant to N.J.S.A. 2C:43-6(f), was sentenced to eight years in prison with a four-year period of parole ineligibility.
He raises the following arguments on appeal:
IT WAS ERROR TO DENY DEFENDANT'S MOTIONS FOR JUDGMENT OF ACQUITTAL.
IT WAS ERROR TO ADMIT THE CDS AND THE MUG SHOTS INTO EVIDENCE BECAUSE THEY WERE IRRELEVANT, NOT PROBATIVE IN THE ABSENCE OF ANY LINK TO DEFENDANT AND HIGHLY PREJUDICIAL. (Not Raised Below)
DEFENDANT WAS DENIED HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITE[D] STATES CONSTITUTION BY THE GROSS FAILURE OF THE STATE TO CONDUCT A COMPETENT INVESTIGATION, THE RESULTS OF WHICH COULD WELL HAVE VINDICATED APPELLANT.
DEFENDANT'S SENTENCE WAS EXCESSIVE.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The evidence at trial revealed that during the morning hours of July 1, 2006, members of the Trenton Police Department were conducting a "surveillance in the area of Martin Luther King Boulevard and Wayne Avenue." Using binoculars, police officer William Mulryne observed defendant standing on the corner in front of a market. Mulryne also saw other individuals, "Brian Phelps, Aaron Carter, Rashawn Carter . . . [and] Nashawn Holloway[,]" on the corner, all of whom, with the exception of Holloway, he was "familiar" with prior to July 1.
Mulryne identified defendant in court. When the prosecutor attempted to have the officer identify a mug shot of defendant, defense counsel objected. At the ensuing sidebar, the judge sustained the objection, concluding any "questioning" regarding defendant's mug shot "m[ight] be prejudicial." The prosecutor then showed Mulryne two other mug shots of Phelps and Holloway, which he identified as accurate depictions of the two men as they appeared on the corner that morning. Without objection, the State moved the two mug shots into evidence.
Mulryne testified that on three occasions, he observed individuals approach defendant as he stood in the doorway of the market. Each time, defendant would leave the doorway, walk to a nearby tree, retrieve a razor blade from the tree, and walk to the Wayne Avenue side of the market. There, Mulryne observed defendant "shaving off what [he] believed to be crack cocaine into" the hands of the individuals. Each person then gave defendant "paper currency."
When Mulryne saw the third individual complete a transaction with defendant and leave in a red Honda, he radioed an "arrest team" of officers, including Detective Herbert Flowers, with descriptions of the man and the car, including its license plate. Flowers and other officers stopped the car and asked the front-seat passenger, Robert Edwards, to exit. Edwards turned over "a dollar bill . . . containing a . . . small quantity of crack cocaine" to Flowers.
Mulryne testified that after completing the third transaction, defendant walked away from the corner. However, Mulryne continued his surveillance of the other individuals, including Phelps and Holloway who remained on the corner, to see if they were engaging in narcotics sales. In response to a question from defense counsel, Mulryne acknowledged arresting "one male . . . for distribution [of narcotics] and detain[ing] another for investigation" after defendant had left the corner.
Defendant was arrested three days later at the same location. No razor blade was recovered from the tree or from his person, and no drugs were found on defendant or at the scene.
Defendant first argues that the various motions for acquittal he made should have been granted because the State's evidence was insufficient to prove his guilt beyond a reasonable doubt. In this regard, at the conclusion of the evidence and without extensive argument, defense counsel moved for a "directed verdict" on all counts, "but specifically with respect to the park counts."*fn2 The judge denied the motion.
While awaiting sentencing, defendant filed a pro se "motion for judgment of acquittal and a new trial because the verdict was against the weight of the evidence . . . ." At sentencing, that motion was orally argued by defense counsel. The judge again denied the motion. Defendant's argument on appeal attacks the sufficiency of the State's proofs.
We conduct our review of the denial of defendant's motion for acquittal de novo, applying the same standard used by the trial judge, State v. Bunch, 180 N.J. 534, 548-49 (2004), namely:
[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 459 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S.Ct. 439, L.Ed. 2d 396 (1962)).]
We apply the same standard to our review of the denial of defendant's motion for j.n.o.v. or for a new trial. See State v. Perez, 177 N.J. 540, 549 (2003).
In this case, the evidence was clearly sufficient to establish guilt beyond a reasonable doubt. Mulryne testified that he saw defendant make three transactions on the morning in question. In each case, defendant would take a razor blade from a tree, walk around the corner with the prospective purchaser, "shave" some cocaine into the person's hand, and accept currency. The third customer was apprehended by the police, and found to be in possession of cocaine. Based upon these facts, defendant's argument is without sufficient merit to warrant further discussion. See R. 2:11-3(e)(2).
Defendant next contends it was reversible error for the judge to have admitted the cocaine seized from Edwards and the two mug shots into evidence. He argues that the evidence was irrelevant and highly prejudicial.
Since defendant did not object at trial, we must consider whether admission of the evidence amounts to plain error, i.e., error that was "clearly capable of producing an unjust result."
R. 2:10-2. To meet that standard, the error must be "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
The cocaine was obviously relevant evidence; it provided the basis for the charges contained in the indictment. The jury could reasonably infer that the cocaine found on Edwards was sold to him by defendant minutes earlier. The contention that it should not have been admitted because there was no "link" to defendant is simply without any merit. See R. 2:11-3(e)(2).
The admission of the mug shots of Phelps and Holloway is a closer question. The two were on the corner with defendant and were apparently arrested later that morning after defendant had engaged in his transactions and left the scene.*fn3 However, neither man was named in the indictment nor was defendant charged with having conspired with either of them. Defendant now argues in his brief that testimony regarding Phelps and Holloway and the admission of their mug shots, along with other testimony from Mulryne, raised the possibility in the jury's mind of defendant's "guilt by association."
We recognize the intuitive appeal of the argument. However, a complete examination of the record reveals that the photos, and Mulryne's testimony in this regard, had some limited probative value and we cannot conclude their admission into evidence was error.
The essential defense at trial was that Mulryne was mistaken when he identified defendant, one of many young African-American males standing on a street corner, as the person who sold drugs to Edwards. In summation, defense counsel argued that there were "uncertainties" in the State's case. Highlighting Mulryne's continued surveillance of the two individuals after defendant left the scene, and noting those men "were subsequently arrested[,]" defense counsel argued, "It's those two individuals that sold the drugs to Edwards, not [defendant]." Counsel later reiterated that contrary to Mulryne's testimony, "Edwards walked up to the two individuals, [and] made a transaction with them . . . not [defendant]."
The State attempted to preempt this defense by having Mulryne describe all three men, highlighting their physical similarities and differences. The prosecutor defused the defense argument that the officer could not tell defendant from the other men by having him identify the mug shots of Phelps and Holloway during his testimony. Thus, the mug shots carried some relevancy. More importantly, we are convinced that the admission of the mug shots into evidence could not have led to an unjust result because the judge gave the appropriate model jury charge on the issue during her final instructions.
Defendant next contends that his "due process" rights were violated because the police investigation was incompetent. To the extent defendant's claim is made pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963), we reject it out of hand. See R. 2:11-3(e)(2). "In order to establish a Brady violation, defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000) (citing State v. Martini, 160 N.J. 248, 268-69 (1999)); State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed. 2d 788 (1999). There is nothing in the record to support the assertion that the State suppressed evidence favorable to defendant.
Lastly, defendant contends his sentence was excessive and a "more appropriate sentence would have been at the low end of the statutory range," i.e., five years as opposed to eight. We disagree.
The judge took note of defendant's prior criminal history that included nineteen municipal court convictions, numerous juvenile adjudications, a federal conviction for narcotics violations, a prior robbery conviction, and two prior indictable convictions for drug offenses. She further observed that defendant had "no real steady employment history," and had only completed the first year of high school. The judge concluded that defendant's distribution of drugs was "the way for [him] to make some money, and . . . support [his] [drug] habit." She found aggravating factors three, six and nine. See N.J.S.A. 2C:44-1(a)(3), (6), and (9). The judge found no mitigating factors.
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). "In the end, '[t]he fundamental principle is that an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). When the judge has followed the sentencing guidelines, and her 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. See State v. Roth, 95 N.J. 334, 364-65 (1984). Here, the sentence imposed does not shock our conscience.