March 9, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARCOS HERNANDEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-11-01042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 8, 2010
Before Judges Rodríguez, Reisner and Yannotti.
Defendant Marcos Hernandez was tried before a jury, which found him guilty of distribution of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 35-5(b)(2); and distribution of CDS, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 35-5(a)(1). The trial court granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f) and sentenced defendant to an aggregate fifteen years of incarceration, with a seven-year period of parole ineligibility. Defendant appeals from the judgment of conviction entered on November 30, 2007. For the reasons that follow, we affirm defendant's conviction and sentence.
We begin with a summary of the relevant facts. Drug Enforcement Administration (DEA) agent James Kerrigan (Kerrigan) arrested Faustino Fuentes (Fuentes) on certain drug charges and Fuentes agreed to cooperate with the Cumberland County Prosecutor's Office (CCPO) in its investigation of the sale of illegal drugs. Fuentes informed Kerrigan that he could provide information about defendant, who he said was selling large quantities of cocaine in the Cumberland County area.
With the assistance of persons in the CCPO, Fuentes set up a controlled purchase of CDS. On January 14, 2004, Fuentes met with defendant. He was wearing a Kell transmitter, which allowed Kerrigan to record Fuentes' conversations. A detective gave Fuentes $680 to purchase CDS. Fuentes drove to a pre-arranged location in the City of Vineland in his silver pick-up truck.
A red or maroon colored van arrived and parked behind Fuentes' truck. Defendant was driving the van and he had one passenger. Kerrigan and other law enforcement officers maintained surveillance of the scene. Defendant exited the van and Fuentes got out of his truck. They met between the two vehicles and spoke briefly.
Defendant entered the driver's side of the van and Fuentes entered the passenger side. After about five minutes, Fuentes exited the van, went back to his vehicle and left the scene. Defendant also departed. Kerrigan met Fuentes in a parking lot and recovered three bags containing twenty one grams of a substance, later determined to be cocaine. Fuentes was not in possession of any money.
At the trial, Kerrigan played the tape recording of the conversations in the van. Kerrigan identified Fuentes' voice as one of the voices heard on the recording. At one point on the recording, a voice stated "[t]his way doesn't work for you? Because, really, I am giving it to you pure and I am going to give it to you - I am also giving it to you for ten bucks." Kerrigan testified that "pure" is a slang term for cocaine.
On April 14, 2004, Fuentes met defendant for another pre-arranged controlled purchase of CDS. He was again wearing a Kell transmitter. Kerrigan provided Fuentes with $2000 in cash. Fuentes drove to a residence in Vineland. Kerrigan and other law enforcement officers again maintained surveillance of the scene. Fuentes exited his vehicle. Defendant drove up, got out of his car and greeted Fuentes. They went into the garage, where they remained for a few minutes. Fuentes left the garage, got back into his truck and drove away.
Fuentes thereafter met Kerrigan at a parking lot and gave him a package of a substance, which was later determined to be cocaine. The recording of the conversations in the garage was played at the trial. Kerrigan testified that Fuentes' voice was one of the voices heard on the recording. Kerrigan also testified that the other voice on the recording was "very distinctive." Kerrigan said that the same voice had been recorded during the meeting between defendant and Fuentes on January 14, 2004.
The State called Fuentes as a witness but he refused to testify. Outside the presence of the jury, the court discussed the matter with counsel. Fuentes then was called to the stand and the following colloquy between Fuentes and the prosecutor ensued:
Q: Before we broke and had the jury go out, you had turned to the judge and you had said to him - well, tell us what you said to him.
A: Well, I said to him that I spoke to you and to the other prosecutor and to the detective many times that [I'm] not going to testify. And, you know, I was not going to testify. You still subpoenaed me without . . . letters to tell my boss that I was going to come to Court. I'm this close to losing my job, and you still subpoenaed me here for four days, don't care that I lose my job or not, knowing that [I'm] not going to testify.
Q: Okay. So, to that end, - and I think you're making it perfectly clear, regardless of what I show you, what I ask you, if I played tapes for you, and tried to ask you questions about any of this material that we have, your answer would be the same, and you refuse to testify about it.
A: Yes, sir.
The court then asked Fuentes to explain his reasons for refusing to testify. Fuentes stated:
. . . the DEA agent told me that the deal was off, that [they're] not satisfied with my work. Nobody was - he made it seem there was nobody [who] was happy with me. And, he don't [sic] need my help no [sic] more. I believe the last time I was here. I got ten years out of that deal. I went. I came on, and I speak. I got four months left. I'm working, doing what I'm supposed to do. And now, they send me back. So, for me, it was
- I want all that behind. I just want to work and do what I'm supposed to do. And, I told him many times that I want this all behind, and the deal was off. They told me the deal was off. And, I still got my ten years. I went to jail. I came back. And, I'm doing what I'm supposed to do. So, I just ask the Court please let me be and . . . I'm trying to do good.
On this appeal, defendant raises the following issues for our consideration:
POINT I THE ADMISSION OF EXTENSIVE HEARSAY THROUGHOUT THE TRIAL VIOLATED THE DEFENDANT'S CONFRONTATION RIGHTS UNDER THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE 1, PARAGRAPH 10 OF THE CONSTITUTION OF NEW JERSEY (PARTIALLY RAISED [BELOW]).
POINT II THE MISCONDUCT OF THE PROSECUTOR DURING SUMMATION; 2) ALONG WITH THE STATE'S PATTERN OF RELYING UPON HEAR-SAY EVIDENCE; 3) ALONG WITH THE STATE PRESENTING ITS CASE AS IF ITS KEY WITNESS WOULD TESTIFY (WHEN THE STATE KNEW OR SHOULD HAVE KNOWN THAT HE WOULD NOT) DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW UNDER BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT III THE "EXPERT" TESTIMONY OF DEA AGENT KERRIGAN DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION.
POINT IV THE NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT AT TRIAL, ALONG WITH THE ERRORS COMMITTED BY THE COURT, AGGREGATELY, IF NOT INDIVIDUALLY, DEPRIVED DEFENDANT OF A FAIR TRIAL CONCLUSION.
POINT V THE COURT BELOW SHOULD HAVE GRANTED THE MOTION FOR JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AS TO BOTH COUNTS; THE CONVICTIONS ARE CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE CONSTITUTION.
POINT VI DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND BY ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION.
POINT VII THE DEFENDANT'S EXTENDED-TERM SENTENCE MUST BE REVERSED SINCE THE STATE'S DECISION TO SEEK SUCH EXTENDED-TERM IS "ARBITRARY AND CAPRICIOUS" AND THE REASONS WERE NOT PROVEN BY A PREPONDERANCE OF THE EVIDENCE.
In addition, defendant has filed a supplemental pro se brief in which he raises the following contentions.
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTIONS AND ART. 1 PARA. 1 AND PARA. 10 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE ADMISSION OF HEARSAY STATEMENTS AS SUBSTANTIVE EVIDENCE IMPLICATING DEFENDANT.
(a) DEFENSE COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO CALL THE DEFENDANT AS A WITNESS FOR THE DEFENSE; (b) DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO CHALLENGE THE HEARSAY EVIDENCE; (c) FAILURE TO REASONABLY CROSS-EXAMINE LAB REPORTS AND THE CHAIN OF CUSTODY RATHER THAN MAKING A MOCKERY OF THE TRIAL WITH NUMEROUS STIPULATIONS, RESULTING IN A TRIAL OF AFFIDAVIT, REQUIRING THE REVERSAL OF DEFENDANT'S CONVICITON AND A NEW TRIAL, PROMULGATED ON THE 5th, 6th AND 14th AMENDMENTS TO THE NEW JERSEY AND FEDERAL CONSTITUTIONS OF THE UNITED STATES.
(a) The Defense Attorney In The Present Case was Ineffective For His Failure To Call The Defendant As a Witness For The Defense.
(b) Defense Counsel Was Ineffective For Failure To Challenge The Hearsay Evidence, Resulting In Appellant's Conviction.
(c) Failure to Reasonably Cross-Examine Chemists Who Prepared Lab Reports And The Chain Of Custody, Rather Than Making A Mockery Of The Trial With Numerous Stipulations Resulting In A Trial Of Affidavit, Requiring The Reversal Of Defendant's Conviction And A New Trial.
REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS AND THE INEFFECTIVENESS ADVANCED IN POINT II.
JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND SHOULD BE SET ASIDE AND A VERDICT OF NOT GUILTY REPLACE THE OLD VERDICT.
BECAUSE N.J.S.A. 2C:43-6f GIVES THE PROSECUTOR THE STATUTORY DISCRETION WHETHER OR NOT TO SEEK AN EXTENDED TERM, ABSENT ANY LEGISLATIVE GUIDELINES, THE EXTENDED TERM SENTENCE IMPOSED ON DEFENDANT, MARCOS HERNANDEZ, IS ILLEGAL, MUST BE REVERSED TO AN ORDINARY TERM OF PUNISHMENT.
We turn first to defendant's contention that the trial court erred by permitting the State to introduce the tape recordings of Fuentes's conversations during the drug purchases because Fuentes' statements were inadmissible hearsay. Defendant argues that, because Fuentes did not testify at trial, he was denied of his constitutional right to confront Fuentes.
The Sixth Amendment to the United States Constitution bars the admission in a criminal case of "testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. " Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed. 2d 177, 194 (2004). A testimonial statement is "typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Id. at 51, 124 S.Ct. at 1364, 158 L.Ed. 2d at 192 (quoting 2 N. Webster, An American Dictionary of the English Language (1828) (alteration in original)).
In United States v. Tolliver, 454 F.3d 660 (7th Cir. 2006), cert. denied, 549 U.S. 1149, 127 S.Ct. 1019, 166 L.Ed. 2d 768 (2007), two defendants were charged with conspiring to distribute and possess cocaine with intent to distribute. Id. at 662. At the trial, the government presented audiotapes of conversations between one of the defendants and a confidential informant, who made controlled purchases of cocaine from the defendant. Ibid.
The Court of Appeals for the Seventh Circuit held that the Confrontation Clause as interpreted in Crawford did not bar the admission of the audiotapes even though the informant was not called as a witness at trial. Id. at 664-66. The Court noted that the defendant's recorded statements were admissible under the hearsay rules because they were admissions of a party-opponent. Id. at 665. The Court also noted that the informant's recorded statements had not been offered to establish the truth of the matter asserted. Id. at 666.
The Court therefore determined that the informant's statements were admissible to put the defendant's admissions into context and to make those admissible statements understandable for the jury. Ibid. The Court held that the informant's "statements were readily admissible as [a] form of non-hearsay, [and were] not subject to the strictures of Crawford and the Confrontation Clause[.]" Ibid.
The Court of Appeals for the Third Circuit reached essentially the same conclusion in United States v. Hendricks, 395 F.3d 173 (3d Cir. 2005). In that case, the Court held that the Confrontation Clause as interpreted in Crawford did not bar the introduction of the recorded conversations between the co-defendants and a governmental informant even though the informant was not called as a witness at trial. Id. at 183-84. The Court did not determine whether the informant's statements were testimonial in nature but concluded that Crawford did not bar the admission of the informant's statements because they were not offered for their truth. Id. at 183.
Rather, the informant's statements were offered to provide the context for the statements of other parties, make them intelligible to the jury and allow the jury to recognize the statements of the other parties as admissions. Id. at 184 (citing United States v. McDowell, 918 F.2d 1004, 1007 (1st Cir. 1990)). The Court held that, when a defendant or his co-conspirator engages in a "reciprocal and integrated conversation" with a governmental informant, who thereafter is unavailable to testify at trial, "the Confrontation Clause does not bar the introduction of the informant's portions of the conversations as are reasonably required to place the defendant or coconspirator's non-testimonial statements into context." Ibid.
We find the reasoning of Tolliver and Hendricks to be persuasive. Here, as in Tolliver and Hendricks, Fuentes' statements were not offered for their truth. They were admitted for the purpose of placing other statements in context and making them understandable. We therefore conclude that the trial court did not err by allowing the introduction into evidence of the statements made by Fuentes in the recorded conversations of the subject drug transactions.*fn1
Defendant also contends that his Sixth Amendment right to confrontation was violated by evidence regarding his cell phone number. Defendant says that the State improperly asked DEA agent Kerrigan to testify that Fuentes had dialed defendant's cell phone number to arrange the January 14, 2004, drug transaction. Defendant says that the question sought inadmissible hearsay.
However, the record shows that defense counsel objected to the prosecutor's question on hearsay grounds and the court sustained the objection. The court noted that Fuentes could testify that the number he called was a number he knew to be defendant's phone number. As noted previously, Fuentes did not testify but the State then presented testimony from an employee of the phone company, who stated that the cell phone number called by Fuentes was a number registered to defendant. Because defendant had the opportunity to cross-examine that witness, he was not denied his constitutional right to confront the witness.
We next consider defendant's contention that a new trial is required due to prosecutorial misconduct.
Defendant argues that the State improperly relied upon "inadmissible and highly prejudicial hearsay[,]" specifically the tape recordings of the drug transactions and certain evidence regarding his cell phone number. These contentions are without merit. As we have explained, Fuentes' recorded statements and the testimony regarding defendant's telephone number were not inadmissible hearsay. Therefore, the presentation of this evidence was not prosecutorial misconduct.
Defendant also argues that the prosecutor improperly commented upon facts not in evidence when he stated in his summation that Fuentes' mother resided at the address where defendant and Fuentes met on January 14, 2004. However, the record shows that defense counsel objected to the prosecutor's comment and the court sustained the objection. In addition, the court instructed the jury to disregard the prosecutor's statement, and stated that no direct evidence had been presented establishing that Fuentes' mother resided at the address and it would be up to the jury to determine whether to draw that inference from the testimony.
We note that "[p]rosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). The State argues that the prosecutor's comment was a reasonable inference that could be drawn based on the evidence. The trial court seemed to agree when it suggested in its curative instruction that the jury could draw the inference. In any event, even if the prosecutor's statement was erroneous, the error was harmless because it related to a matter of little consequence to the outcome of the case. Moreover, the trial court appropriately addressed the matter by instructing the jury to disregard the prosecutor's comment.
Defendant additionally argues that the prosecutor improperly tried the case as though Fuentes would testify. As we stated previously, when questioned by the court, Fuentes said that he had informed the prosecutor on the previous day that he was not going to testify. The court asked the prosecutor whether he had "some inclination" that Fuentes would refuse to testify. The prosecutor stated that he did. The court then asked why the prosecutor had not informed the court and the prosecutor said that he did not "think to do that[.]"
Although it might have been preferable for the prosecutor to inform the court and defense counsel that Fuentes said he would not testify, we are not convinced that the prosecutor's failure to do so constitutes prosecutorial misconduct. The trial record indicates that the State expected Fuentes to testify at trial, despite statements he may have made indicating he would not. Furthermore, as we have explained, the tape recordings of Fuentes' conversations were properly admitted into evidence, despite his decision not to testify.
Next, defendant argues that the trial court erred by allowing DEA agent Kerrigan to testify about certain terms used in the drug trade and the street value of cocaine in Vineland at the time of the controlled purchases at issue in this case.
Kerrigan was not qualified as an expert witness, although he clearly had the qualifications to testify as an expert. Kerrigan has spent thirty-one years in law enforcement, with an emphasis on the enforcement of laws regarding the possession and sale of CDS. Kerrigan testified that he was familiar with certain words employed by persons in the drug trade. He explained the meaning of several of those words.
Kerrigan also was asked to explain certain drug-related words defense counsel used in his opening statement. Defense counsel objected but the court overruled the objection, observing that the meaning of such words were not expert opinions. Kerrigan then said that "powder" is "powder cocaine" or "cocaine hydrochloride[;]" "hard" means "cocaine base or crack cocaine[;]" "soft" is "powder cocaine[;]" and "ready" means "cocaine base, or crack cocaine."
In addition, Kerrigan testified that the amount of cocaine he had removed from Fuentes after one of the controlled purchases was consistent with the amount of money that Fuentes had been given to make the purchase. Defense counsel objected and argued that the prosecutor did not lay a foundation for Kerrigan to testify as to the value of the cocaine.
The State thereupon endeavored to establish the foundation for the question by asking Kerrigan whether he knew from his experience and could state the going rate for an ounce of powdered cocaine in Vineland in the relevant time. Defense counsel again objected, arguing that this question called for an expert opinion and Kerrigan had not been qualified as an expert. The court overruled the objection. Kerrigan then testified that he was familiar with the going rate of a quarter ounce of powdered cocaine in Vineland and the going rate was between $175 and $250.
We are satisfied that the trial court did not err by allowing Kerrigan to explain the meaning of terms used in the drug trade and to testify as to the going rate of powdered cocaine at the time of the drug transactions at issue here. Kerrigan's testimony on these points was essentially factual in nature, rather than opinion testimony. However, even if Kerrigan's testimony on these points is considered to be opinion testimony, we are satisfied that it was permissible lay testimony under N.J.R.E. 701 because the opinions were based on Kerrigan's perceptions, drawn from his extensive experience in the enforcement of the laws concerning illegal drugs.
Defendant also argues that he was denied the effective assistance of trial counsel because his trial attorney: failed to seek a hearing on the admissibility of the audiotapes pursuant to State v. Driver, 38 N.J. 255 (1962); did not call him as a witness; failed to object to certain hearsay testimony; stipulated as to the chain of custody of the cocaine in evidence; and failed to cross-examine the person who prepared the lab reports concerning the weight and composition of the drugs seized from Fuentes.
Claims of ineffective assistance of counsel should ordinarily be raised in a petition for post conviction relief (PCR). State v. Preciose, 129 N.J. 451, 460 (1992). Indeed, "[o]ur courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." Ibid. We therefore decline to address these issues. Defendant may pursue these claims in a PCR petition.
In addition, defendant argues that the trial court erred by sentencing him to an extended term of incarceration pursuant to N.J.S.A. 2C:43-6(f). Defendant contends that the State's decision to seek an extended term was arbitrary and capricious. He says that the State failed to advance compelling reasons, other than his prior conviction, for imposing this sentence.
In our judgment, defendant failed to show that the prosecutor's decision to seek an extended term was an abuse of discretion. State v. Kirk, 145 N.J. 159, 169 (1996). The State established that defendant was eligible for extended-term sentencing pursuant to N.J.S.A. 2C:43-6(f). Indeed, the record showed that defendant was convicted in 1996 of second-degree distribution of a CDS, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2), and third-degree distribution of a CDS, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3).
Moreover, the prosecutor's application for an extended term sentence was consistent with the Attorney General's guidelines. See Directive Implementing Guidelines for Determining Whether to Apply for an Extended Term Pursuant to N.J.S.A. 2C:43-6f from Robert J. Del Tufo, Attorney General, to the Director, Division of Criminal Justice and all County Prosecutors (April 20, 1992). Accordingly, we reject defendant's contention that the trial court erred by sentencing defendant to an extended term of incarceration pursuant to N.J.S.A. 2C:43-6(f).
We have considered all of defendant's other contentions, including those raised in his pro se supplemental brief, and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).