February 23, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROLAND BRUTTON, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-08-0598-I and 05-05-0413-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2009
Before Judges Rodríguez and Yannotti.
Defendant Roland Brutton appeals from convictions following a jury trial on one indictment and the entry of a guilty plea on another. Following a jury trial of the charges stated in Indictment No. 04-08-0598-I, defendant was convicted of two counts of third degree distribution of a CDS (heroin), N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); and one count of third degree conspiracy to distribute a CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:5-2(a)(1). Judge Frank W. Gasiorowski merged all three counts and imposed a five-year term. Following this conviction, defendant pleaded guilty pursuant to an agreement with the State to three charges listed in Indictment No. 05-05-413-I: third degree possession of a CDS (heroin) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); third degree possession of a CDS with intent to distribute while within 1,000 feet of school property, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7; and third degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1). Judge Gasiorowski merged the three counts and imposed a four-year term with a nineteen-month parole disqualifier to run consecutively with the sentences imposed on the conviction on Indictment No. 04-08-0598-I. We affirm.
These are the salient facts. Somerset County Prosecutor's Detective Harem Smallwood testified regarding sales of heroin to an undercover police officer, which occurred on July 19, 2004, and July 20, 2004. Smallwood described the sales as a "buy walk away" operation, during which the police obtain information about someone selling drugs in an area and then proceed to buy drugs from the individual. In a "buy walk away" operation, the seller is not arrested at the time of the sale.
Smallwood served as a backup for Somerset County Sheriff's Detective Christopher Ouellette, the undercover purchaser. Smallwood listened to an audio transmitter attached to the undercover officer in order to monitor the transaction. According to Smallwood, although on some occasions the audio transmissions are recorded, on these particular occasions, they were not.
On July 19, 2004, Smallwood took a position with a video camera to record the undercover purchase. At trial, the video tape was authenticated and admitted into evidence without objection. The video was played in court while Smallwood described what was happening onscreen. Smallwood then identified defendant in a group of individuals. However, the video camera did not capture the July 19, 2004 transaction.
On July 20, 2004, Ouellette was scheduled to make another buy and to arrest the seller. On that day, Smallwood was once again a backup unit for Ouellette. Smallwood also recorded events that day. Again at trial, the court admitted the video into evidence with no objection. According to Smallwood, he noticed someone come up to Ouellette's window and make an exchange. The individual rode away on a bicycle after the exchange occurred. The prosecutor played the video, while Smallwood described what was happening on the tape. Smallwood testified that the man fleeing was the same person who sold the heroin the day before. Smallwood positively identified defendant as the seller. Defendant was wearing the same clothing as the day before.
Ouellette testified that he received information about illegal drug transactions from a confidential informant. The confidential informant introduced Ouellette to Joel Vazquez. Ouellette spoke to Vazquez over the phone and arranged a meeting to purchase narcotics. The meeting was to occur on July 19, 2004, at four o'clock in a specified parking lot in North Plainfield. Ouellette went to the meeting equipped with a monitoring device. He was approached by three individuals. The individuals spoke with the confidential informant and then proceeded to enter Ouellette's vehicle. A price for the drugs was set and Ouellette purchased the heroin. Ouellette spoke with one of the individuals, stating that he would contact Vazquez the following day to purchase more drugs. Ouellette identified defendant as one of the three individuals. As Smallwood had done previously, Ouellette described what happened in the video, while the video was played for the jury.
Ouellette contacted Vazquez the next day to arrange for the purchase of more heroin at the same location. Ouellette went to the location. An individual arrived on a bicycle. The individual approached the car and tossed in a packet of heroin. Ouellette handed him twenty dollars. Ouellette identified the person as defendant. During Ouellette's cross-examination, defense attorney played the video and pointed to a person in the video. The attorney stated, "[t]his is [defendant], right."
According to Ouellette, the heroin purchased at the scene was field tested. It was positive. The heroin bag was admitted into evidence. The parties stipulated that the specimen was tested and was in fact heroin.
Detective Edward Francis Conway III, a detective for the Somerset County Prosecutor's Office, testified that he assisted in the arrest of defendant on July 20, 2004. Conway transported defendant from the scene of the crime to the Prosecutor's Office, where he was placed in a holding cell. Defendant was given Miranda*fn1 warnings. After signing the Miranda form and waiving his rights, defendant told Conway that his friend asked him to come along on the sale of heroin on July 19, 2004. His friend also told him to deliver the bag of heroin on July 20, 2004, for which defendant was promised ten dollars in return. Defendant gave a taped statement describing the circumstances leading up to his arrest and his participation in the drug transaction. The transcript and the tape were admitted into evidence without objection.
In summation, defendant's attorney stated: "We're conceding the drug distribution . . . [he] conspired with two others in these drug distributions and he took direct part in one and was an accomplice in the other." Defendant's attorney focused his summation on count four of the indictment, second degree unlawful possession of a weapon, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:39-4.1c. Defendant was acquitted of this charge, but found guilty on all others.
While defendant was released on bail, he was arrested for another drug transaction, which resulted in Indictment 05-05-00413-I. At defendant's plea hearing, he gave the following factual basis:
[DEFENSE ATTORNEY]: On the 25th day of April, 2005, in the Borough of North Plainfield were you at an apartment that was rented by Mr. Koemple?
Q: And in that apartment did you have a quantity of cocaine?
Q: Where did you have the cocaine hidden in the apartment?
A: Under the pantry. In the cabinet. Whatever you call it.
Q: You would agree that this apartment is within [1,000] feet of Saint Joseph's Elementary School; is that correct?
Q: Now this cocaine you possessed, it was yours to do with what you wanted with it, right?
In fact I believe there might have been packaging materials somewhere in that apartment just for that purpose; right?
Q: And so you intended to -- this cocaine you possessed, you also intended to distribute it; correct?
Q: And you were packaging it up with intent to distribute it inside a school zone; is that correct, sir?
On appeal, defendant contends:
THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE N.J. CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE 1, PARAGRAPH 1 OF THE N.J. CONSTITUTION WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS AND OTHER EVIDENCE FROM AN ABSENTEE WITNESS (Not Raised Below).
Specifically, defendant argues that the judge erred by allowing Smallwood to testify about an investigation that stemmed from information obtained by a confidential informant. We disagree.
We note at the outset that because defendant failed to raise this issue at trial, he must show a plain error. R. 2:10-2. The plain error standard provides that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." Ibid. 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). Moreover, a failure to raise an objection below may be an indication that counsel did not consider the error to be significant in the context of the trial. Id. at 333.
Defendant relies on State v. Bankston, 63 N.J. 263, 271 (1973), which found an informant's tip regarding the defendant's guilt was inadmissible hearsay. "'[W]hen [an] officer becomes more specific by repeating what some other person told him concerning a crime by the accused, the testimony violates the hearsay rule' and implicates defendant's Sixth Amendment confrontation rights." State v. Frisby, 174 N.J. 583, 593 (2002) (quoting Bankston, supra, 63 N.J. at 268). Conversely, where the testimony "[does] not directly or by necessary inference implicate defendant" the hearsay rule is not violated. State v. Long, 137 N.J. Super. 124, 134 (App. Div. 1975).
This case is distinguishable from Bankston. Here, the informant merely told the police of potential drug activity and enabled them to arrange a transaction with Vazquez. It was Vazquez, not defendant, who was the subject of informant's tip.
Further, our Supreme Court has held that "when a case is fortified by substantial credible evidence -- for example, direct identification of the defendant -- the testimony is not likely to be prejudicial under the 'plain error' rule." State v. Irving, 114 N.J. 427, 448 (1989) (citing State v. Douglas, 204 N.J. Super. 265, 275 (App. Div. 1985)). Here, the State's case is not tenuous. The evidence includes eye-witness testimony by two police officers, a video documenting the event, and a statement by defendant. Any error here is not capable of yielding an "unjust result." R. 2:10-2.
Defendant also contends:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE 1, PARAGRAPH 1 OF THE N.J. CONSTITUTION WAS VIOLATED BY THE FAILURE TO DISCLOSE THE IDENTITY OF A WITNESS WHO PROVIDED INCRIMINATING EVIDENCE AGAINST THE DEFENDANT AT TRIAL (Not Raised Below).
Specifically, defendant argues that by not identifying a confidential informant, his constitutional rights were violated. We disagree, noting that this contention is also to be judged against the plain error standard.
Pursuant to the New Jersey law, the State was not required to reveal the identity of this particular informant. See N.J.R.E. 516; N.J.S.A. 2A:84A-28. "Absent a strong showing of need, courts generally deny disclosure where the informer plays only a marginal role, such as providing information or 'tips' to the police or participating in the preliminary stage of a criminal investigation." State v. Milligan, 71 N.J. 373, 388 (1976). In narcotics cases specifically, confidentiality of informants is especially important. Milligan, supra, 71 N.J. at 383 n.3 (citing United States v. Day, 384 F. 2d 464, 468 (3d Cir. 1967)).
Here, the informant's participation primarily consisted of giving tips and introducing Ouellette to Vazquez. Even though the informant sat beside Ouellette during the drug transaction, such presence "does not take him out of the protection of the statute." State v. Booker, 86 N.J. Super. 175, 180 (App. Div. 1965). Therefore, the identity of the informant need not be revealed.
Defendant also contends:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION WAS VIOLATED WHEN THE STATE'S KEY WITNESS USURPED THE FUNCTION OF THE JURY BY RENDERING AN INADMISSIBLE CONCLUSION ON THE ULTIMATE ISSUE IN THE CASE (Not Raised Below).
Defendant argues that allowing Smallwood to identify defendant in a surveillance video tape improperly usurped the function of the jury because this testimony went to an ultimate issue in the case. We disagree.
N.J.R.E. 704 allows a witness to render an opinion on the ultimate issue in a case. Therefore, defendant's right to due process was not violated. Similarly, expert witnesses can offer opinion testimony about the ultimate issue of a case. Jacober v. St. Peter's Medical Ctr., 128 N.J. 475, 498 (1992).
Here, Smallwood was offering an opinion on an event that he witnessed. Smallwood did not simply view the video to identify defendant; he was present at the crime scene, and he was the one who recorded the video. In addition, he saw defendant at the drug sale that took place the day before on July 19, 2004, all facts of which he testified to at trial.
Furthermore, defendant's attorney himself identified defendant as the individual portrayed in the video tape. On cross-examination of Ouellette, defendant's attorney played the video and pointing to a person in the video stated, "[t]his is [defendant], right." In addition, defendant gave a taped statement to officers after his arrest confirming his participation in the drug transactions making his participation in the crime undisputed.
Finally, as defendant failed to raise this issue below, he has a higher standard to meet. Defendant fails to demonstrate there was an error or omission "clearly capable of producing an unjust result." R. 2:10-2. Therefore, the plain error standard is not met.
The final contention is:
THE DEFENDANT'S SENTENCE IS EXCESSIVE (Not Raised Below).
As a preliminary matter, we note that "trial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005).
Defendant argues that the court improperly balanced the aggravating and mitigating factors required under the statute and that the factors the court considered were based in part on findings of fact made to enhance the sentence. However, a trial judge need not base his or her sentence solely on the facts elicited from defendant when he or she pleaded guilty; the judge may look to other evidence in the record as well. State v. Sainz, 107 N.J. 283, 293 (1987).
Defendant also argues that certain aggravating factors do not apply. Defendant first maintains the court erred by stating that he participated in organized crime, the aggravating factor set forth in N.J.S.A. 2C:44-1(a)(5). Defendant argues the court had no factual basis for making this determination. However, a sentencing court is allowed to find a defendant was involved in organized crime if that defendant was distributing drugs that he himself did not manufacture. State v. Velez, 229 N.J. Super. 305, 317 (App. Div. 1988), modified by 119 N.J. 185 (1990).
Defendant next argues the court should have applied the mitigating factor articulated in N.J.S.A. 2C:44-1(b)(1), "defendant's conduct neither caused nor threatened serious harm." Defendant argues that because the CDS was seized, he did not cause actual harm. However, possession of CDS with intent to distribute "can be readily perceived to constitute conduct which causes and threatens serious harm." State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994).
Defendant also argues that the trial court erred in imposing consecutive sentences. We reject this contention. The court correctly applied the guidelines set forth in State v. Yarbough 100 N.J. 627, cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1985), to be considered when imposing consecutive sentences:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
[Id. at 644.]
Citing Yarbough, defendant argues that his two offenses were part of a "pattern of the same type of criminal behavior," therefore the sentence should run concurrently. However, this argument is without merit, as the two crimes were separate offenses. Defendant was charged first with selling heroin to an undercover officer, and in his second offense, with selling cocaine in a school zone. Both crimes occurred in separate locations and with separate individuals. Moreover, the court correctly applied Yarbough, and found the crimes to be independent:
I also find that the crimes for which, sir, you stand convicted of are crimes independent of each other, considering the time periods involved, considering the fact that the second set of charges of which you . . . pled guilty [occurred] during the period of time that you . . . [were] on bail pending the first set of charges in the first indictment[,] which was also a drug distribution. These crimes were committed at different times and while you were on bail.