March 9, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAMAR FRANKLIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-05-1818.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2009
Before Judges Sapp-Peterson and Espinosa.
Defendant Lamar Franklin appeals his conviction for narcotics-related offenses arising out of the execution of a search warrant and the sentence subsequently imposed. We affirm the conviction and remand for re-sentencing.
The evidence presented to the jury at trial disclosed that the search warrant was issued for a Johnson Avenue apartment (apartment) in Newark. When officers arrived at that location on February 2, 2007, they first knocked on the door. After hearing a female voice say, "[d]on't open that door," the officers forcibly entered and observed defendant exiting from a front bedroom and walking down a hallway. Defendant's sister and co-defendant, Myisha Sumter (Myisha),*fn1,*fn2 was seated at a table in a dining area along with her daughter. Sergeant Anthony Costa testified that when defendant attempted to leave the apartment, he "detained him immediately." Sergeant Costa further stated that when he "grabbed" him, defendant "tensed up." Fearing that defendant may be armed, he patted defendant for weapons. He found no weapons but felt a bulge in defendant's pocket that he "knew to be vials of cocaine" and recovered forty-six red vials of suspected cocaine from the jacket pocket. A search of the apartment uncovered eighty-two additional vials of cocaine and thirty glassine envelopes of heroin from inside a sneaker located in the bedroom from which police first saw defendant exiting. Police also recovered weapons and live rounds of ammunition from the apartment. During the course of the search, an unidentified male knocked on the door and police heard him say that he wanted to buy "two dimes," meaning two ten-dollar vials of cocaine. Police opened the door and arrested the individual.
After defendant, co-defendant Myisha, and the prospective buyer were arrested, two more persons came to the apartment, Stepffone Sumter*fn3 (Stepffone) and his relative, a juvenile. Stepffone told police he was interested in his family member. Police made no further inquiries of him at that point and they did not frisk him or the juvenile for weapons because they did not perceive them to be a threat to their safety. Nor did the police, at that point, attempt to determine in whose name the apartment was being leased.
Stepffone testified on behalf of the defense. He indicated that the apartment had originally been leased to his mother, with whom he had lived. He explained that she had since died and he had been living alone in the apartment as of January 2005. He denied that Myisha was also living there, despite being cross-examined about prior eviction notices that indicated otherwise. He indicated, however, that his niece, Kashima Sumter, who was romantically involved with defendant, had a key to his apartment. He denied that the loaded gun or any of the drugs confiscated from the apartment had been left there by him.
Myisha testified that she lived elsewhere in Newark but had lived at the apartment for thirty days in 2004. She denied telling police at the time of her arrest that she lived in the apartment. She indicated that she was at the apartment on February 2, to visit with her daughter over whom she had lost custody. When she arrived at the apartment, her other daughter was present, and defendant and Kashima walked in. She further testified that after being at the apartment for about one-half hour, the police entered and that she was seated at the kitchen table smoking marijuana, which police confiscated. She denied seeing police recover forty-six vials of cocaine from defendant.
Defendant and Myisha were indicted on twelve counts of narcotics and weapons offenses stemming from the events of February 2. The jury convicted defendant of the charges arising from the forty-six vials of cocaine confiscated from his person, while Myisha was convicted of all charges resulting from the execution of the search warrant that uncovered additional drugs, weapons, and ammunition.
On appeal, defendant raises the following points for our consideration:
THE [TRIAL COURT] ALLOWED IMPERMISS[I]BLE EXPERT TESTIMONY FROM A LAY WITNESS WHO WAS NEVER QUALIFIED AS AN EXPERT, AND FAILED TO GIVE A JURY INSTRUCTION REGARDING THE EXPERT TESTIMONY. [(Not Raised Below).]
THE TRIAL COURT ABUSED ITS DISCRETION BY PREVENTING MR. FRANKLIN FROM PRESENTING A DEFENSE, VIOLATING HIS RIGHT TO A FAIR TRIAL.
THE STATE IMPROPERLY AND REPEATEDLY REFERRED TO THE EXISTENCE OF A WARRANT, CLAIMING THAT MR. FRANKLIN WAS THE TARGET OF THAT WARRANT. (Not Raised Below).
THE INTRODUCTION OF HEARSAY FROM AN UNKNOWN, NON-TESTIFYING PERSON DEPRIVED MR. FRANKLIN OF DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
We have considered each of these points in light of the record and applicable legal principles and reject all of defendant's contentions. We find no abuse of discretion in any of the trial court's evidentiary rulings, Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (1999), certif. denied, 163 N.J. 79 (2000), and the sentence imposed was not manifestly excessive, State v. Roth, 95 N.J. 334, 364-65 (1984).
Defendant, for the first time on appeal, argues that the trial court allowed impermissible expert testimony from a lay witness without first qualifying that witness as an expert. Ordinarily, objections not raised below are deemed waived. R. 1:7-2. Nevertheless, a reviewing court may reverse on the basis of an unchallenged error when we are satisfied that "plain error," namely, error "'clearly capable of producing an unjust result'" has occurred. State v. Torres, 183 N.J. 554, 564 (2005) (quoting R. 2:10-2). Where there has been a jury trial, the possibility of an unjust result must be such that a reasonable doubt is raised "'as to whether the error led the jury to a verdict it otherwise might not have reached.'" State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
During his direct examination, Officer Kevin Matthew, who completed the arrest reports for defendant, was asked why he charged defendant with possession of cocaine with the intent to distribute. He responded: "Well, based on the packaging of the narcotics we recovered, it was 128 individual vials. It was 30 individual glassine envelopes. When it's packaged in that manner, it is intended for distribution purposes." Neither defense counsel objected, and direct examination continued. After Officer Matthew and another police officer completed their testimony, the court commented that Officer Matthew*fn4 "was pretty much permitted to testify as an expert with no . . . objection[,]" and asked "[i]s anybody going to be looking for a charge on expert testimony?" Both defense counsel and the prosecutor responded that they would not seek such a charge and they all expressed their opinion that they did not consider the testimony to be expert opinion.
Defendant claims that this testimony should have been disallowed because the court did not qualify Officer Matthew to provide expert testimony. We agree that this was objectionable testimony that should not have been permitted. Although Officer Matthew may have been responding to a question about why he charged defendant and Myisha with intent to distribute narcotics, his response that the manner of packaging was evidence that the drugs were "intended for distribution purposes," was clearly expert testimony. See State v. Reeds, 197 N.J. 280, 290 (2009) (noting "[t]he use of expert testimony about the methods employed by drug traffickers to package and to distribute illegal drugs for sale has been long recognized as permissible under Rule 702 standards because such information is a specialized subject matter that is beyond the ken or normal life experience of the average juror") (citing State v. Odom, 116 N.J. 65, 76 (1989)). Consequently, defense counsel should have objected to this testimony. The error in permitting this testimony, however, was harmless, because its admission was not capable of producing an unjust result or a result that would not have otherwise been reached by the jury. R. 1:7-5; R. 2:10-2. Police recovered 128 vials of suspected narcotics and, while executing the search warrant, witnessed a knock on the door from an unknown person seeking to purchase drugs from that location. Thus, even without the benefit of Officer Matthew's improper opinion testimony, a jury could have reasonably concluded that drugs were being sold from that location by a person or persons found in the apartment at the time the search warrant was executed, including defendant.
Defendant next argues that the court abused its discretion when it precluded defense counsel from eliciting testimony of continuing narcotics activities at the apartment that occurred following defendant's arrest and resulted in additional arrests, including that of Stepffone. In ruling as it did, defendant contends that the court denied to him the fundamental right to cross-examine witnesses called to testify against him. In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682, 694 (1948). The court did not discount the relevancy of this proffered testimony as it related to potential third-party guilt, but concluded that it had marginal value and that it was substantially outweighed by its capacity to cause confusion and to mislead the jury.
The decision to admit or exclude evidence of third-party guilt is "particularly fact-sensitive" and rests within the trial court's discretion. State v. Loftin, 146 N.J. 295, 345 (1996) (citing State v. Koedatich, 112 N.J. 225, 300 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989)). To admit the evidence, there must be some link between the third-party and the victim or the crime. Koedatich, supra, 112 N.J. at 300-03. The link need not be substantial but need only have "'a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.'" Loftin, supra, 146 N.J. at 345 (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S.Ct. 873, 4 L.Ed. 2d 873 (1960)); see also State v. Fortin, 178 N.J. 540, 591 (2004); Koedatich, supra, 112 N.J. at 299. In Fortin, the court explained that in presenting third-party guilt evidence, "[t]he connection between the third party and the crime cannot be left to conjecture. . . . [A] trial court's decision regarding admissibility of evidence is fact sensitive and, therefore our review is deferential and limited to whether there has been an abuse of discretion." Fortin, supra, 178 N.J. at 591 (citation omitted).
Here, the trial court permitted defendant to argue third-party guilt, in particular the guilt of Stepffone, as a defense, but exercised its discretion to limit specific inquiry into the facts surrounding the activities occurring at the apartment subsequent to defendant's arrest. Furthermore, evidence showing that Stepffone, who was arrested for possession with the intent to distribute cocaine at the apartment five months after defendant was arrested, does not raise reasonable doubt that defendant was in possession of the forty-six vials of cocaine found on his person on February 2, 2007, and possessed those drugs with the intent to distribute. Sturdivant, supra, 31 N.J. at 179.
Defendant contends that he was denied a fair trial when, during the questioning of the State's witnesses, the prosecutor was permitted to make repeated references to the search warrant, suggesting that defendant was its target. The record does not support this contention. Because no objection was raised to these questions, we review defendant's claim under the plain error standard, namely, whether this testimony was capable of producing an unjust result. R. 2:10-2. The possibility of injustice 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." Macon, supra, 57 N.J. at 336.
The State may present testimony explaining that police were at a particular location because of the issuance of a search warrant to show that they were lawfully on the premises. State v. Marshall, 148 N.J. 89, 239-40, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). Testimony regarding a warrant remains admissible unless it implies that evidence outside that presented to the jury was presented to the judge issuing the warrant. State v. McDonough, 337 N.J. Super. 27, 32, 33 (App. Div.), certif. denied, 169 N.J. 605 (2001).
Nothing in the officers' testimony suggested that a judge issued a warrant based on information not presented at trial. Moreover, no witnesses told the jury that defendant was the target of the warrant or investigation. Rather, the officers who testified stated that the targets of the warrant were those selling narcotics. Officer Jason West's testimony, to which defendant now objects, was elicited on redirect examination, in refutation of defense counsel's cross-examination questions implying police error in failing to ascertain the leaseholder of the apartment. The prosecutor asked who the target of a warrant usually was in a police investigation to establish that police did not err by not ascertaining the leaseholder because the leaseholder was not always the target of the investigation. Thus, the police testimony did not indicate that police were targeting defendant specifically, or even knew of defendant prior to executing the warrant. Rather, the statements explained that the goal of the investigation was to arrest the parties who were in possession of or distributing narcotics from the apartment, and that person may or may not be the leaseholder. Finally, because defendant was only convicted of those offenses stemming from the seizure of the forty-six vials of cocaine on his person, the repeated references to the search warrant did not have the capacity to produce an unjust result.
R. 2:10-2; Macon, supra, 57 N.J. at 336.
Likewise, we reject defendant's contention, raised for the first time in this appeal, that the prosecutor's summation implied that evidence not before the jury resulted in the issuance of a warrant that targeted defendant. The prosecutor stated:
The officer told you, their interest when we're executing a search warrant was the targets, the people selling the drugs, the people possessing the drugs. [Defendant and co-defendant]. That's who they were interested in. Not the leaseholder. This isn't landlord/tenant.
We're not here looking for leaseholders. That's obvious by the fact that Stepffone Sumter comes home, they don't arrest him just because it's his apartment.
They arrest the people with the drugs, the people selling the drugs, the people possessing the drugs, the people with the guns, the people with the drugs.
Prosecutors are permitted to make a "'vigorous and forceful presentation of the State's case,'" State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed. 2d 205 (1989) (quoting State v. Bucanis, 26 N.J. 45, 57, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958)), and "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). Moreover, a court, in reviewing a prosecutor's summation, must consider the comments of the defense. United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 1045, 84 L.Ed. 2d 1, 11 (1985) (in reviewing the State's comments in summation, a court must weigh the defense counsel's "opening salvo"). "A prosecutor is permitted to respond to an argument raised by the defense so long as [the response] does not constitute a foray beyond the evidence adduced at trial." State v. Munoz, 340 N.J. Super. 204, 216 (App. Div. 2001).
Here, in defense counsel's closing statement, counsel expressed that the prosecution did not present evidence that defendant lived at the apartment or that he exhibited any control over the residence. Counsel stressed that defendant was not on the lease and that "[a] search warrant was executed, [defendant] was found in the apartment, he was charged with everything in that apartment, based on his mere presence in the apartment." Myisha's counsel stated in closing that "no effort was made, either before the search or after the search, to find out whose apartment it was." Myisha's counsel also stated,
And we asked Lieutenant Minovich what steps were taken before the execution of the search warrant to determine whose apartment he was going into that day. I mean, there was a plan, obviously. They were executing a search warrant. They weren't going to this location randomly. There was a search warrant and they were going there as a team.
And yet the testimony was that no effort was made whatsoever to determine whose apartment it was.
The prosecution's closing statement responded to these arguments from the defense. Furthermore, even if the prosecutor's conduct went beyond commenting on the evidence and the inferences to be drawn from the evidence, the error was not clearly capable of producing an unjust result. R. 2:10-2. References to a search warrant, mention of "integrity officers," and implying that the search was conducted properly do not outweigh the evidence against defendant. The jury acquitted defendant of eight of the twelve charges against him and found him guilty of only those charges stemming from the drugs removed from his pocket. Thus, the prosecutor's line of questioning and remarks did not lead the jury to a conclusion it would not have otherwise reached. Macon, supra, 57 N.J. at 336.
Also, for the first time on appeal, defendant urges that the admission of testimony concerning the person who police testified knocked on the door while they were executing the search warrant and asked for "two dimes" should have been excluded as hearsay. While we agree that the statement was hearsay, we are satisfied that the statement was admissible as it fell within the res gestae exception to the hearsay rule. N.J.R.E. 803(c)(3). Res gestae encompasses words or actions that occur so integrally in the event at issue that they are considered part of it. State v. Long, 173 N.J. 138, 153-55 (2002). Police were present to execute a search warrant at the premises related to narcotics activity. Contemporaneous to their actions was the attempted purchase of narcotics from the apartment by an unknown individual. We view this event as inextricably connected to the belief that drugs were being sold from the apartment and therefore relevant to show that defendant possessed drugs with the intent to distribute them to prospective buyers who came to the apartment. Ibid., see Gresham v. Mass. Mut. Life Ins. Co., 248 N.J. Super. 64, 67 (App. Div. 1991); Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 803(c)(3) (2009).
Defendant contends the sentence imposed was manifestly excessive. We need not address this issue.
The court merged Count One, possession of cocaine, N.J.S.A. 2C:35-10(a)(1), into Count Two, possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), and then merged Counts Two and Three, possession of cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-5(a) and 2C:35-7, into Count Four, second-degree possession of cocaine with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:5-5(a) and 2C:35-7.1. Defendant faced a maximum ten-year custodial sentence. Although the judgment of conviction incorrectly lists the term of parole ineligibility as three and one-half years, the court sentenced defendant to siX and one-half years imprisonment with three and one-third years of parole ineligibility. The court found as aggravating factors: (1) the nature and circumstances of the offense and the role of the actor, N.J.S.A. 2C:44-1(a)(1); (2) the gravity and seriousness of harm inflicted upon the victim, N.J.S.A. 2C:44-1(a)(2); (3) the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); and (4) the need to deter, N.J.S.A. 2C:44-1(a)(9). As mitigating factors, the court found:
(1) defendant's willingness to cooperate with law enforcement authorities, N.J.S.A. 2C:44-1(b)(12); and (2) defendant's youthful status as compared to his co-defendant, who was eleven years his senior, N.J.S.A. 2C:44-1(b)(13). The court concluded that the aggravating factors "preponderate over any mitigating factors."
We agree with defendant that aggravating factor (a)(1) is generally applied where an offense is committed in an "'especially heinous, cruel, or depraved manner.'" State v. Jarbath, 114 N.J. 394, 404 (1989). We also agree that in applying aggravating factor (a)(2), the court focused upon general harm to the community as distinguished from harm to a particular victim or victims, which is the intent of this factor. See State v. Radziwil, 235 N.J. Super. 557, 575 (App. Div. 1989), aff'd o.b., 121 N.J. 527 (1990) (noting that the harm to be considered is the harm to the victim, not harm to her family). We therefore remand for re-sentencing without consideration of aggravating factors (a)(1) and (a)(2).
The conviction is affirmed, and the sentence imposed is vacated and the matter is remanded for reconsideration of sentence consistent with this opinion. We do not retain jurisdiction.