On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 05-12-1610.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 2, 2009
Before Judges Cuff, Payne and Waugh.
After execution of a personal search warrant upon defendant, Darryl Hester, failed to disclose drugs, but a residential search warrant, executed upon the residence of Theresa Banks, where Hester was then living, disclosed heroin and cocaine secreted in a leather bag above the bathroom ceiling, both Hester and Banks were arrested and indicted. Banks pled guilty and was diverted to Drug Court. Defendant Hester was tried and found guilty of the third-degree crimes of possession of heroin and cocaine, N.J.S.A. 2C:35-10a(1), possession with the intent to distribute heroin and cocaine, N.J.S.A. 2C:35-5a(1) and -5b(3); possession with the intent to distribute heroin and cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7, and the second-degree crime of possession with the intent to distribute heroin and cocaine within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. Defendant was given an extended sentence of twelve years in custody with a four-year period of parole ineligibility.
Defendant has appealed, raising the following issues for our consideration:
THE TRIAL COURT'S REFUSAL TO REPLACE A JUROR WITH AN ALTERNATE JUROR DENIED DEFENDANT A FAIR TRIAL.
THE COURT'S JURY INSTRUCTION ON CONSTRUCTIVE POSSESSION WAS IMPROPER AND MISLEADING. (Not Raised Below.)
THE STATE'S REPEATED REFERENCES TO SEARCH WARRANTS DENIED DEFENDANT A FAIR TRIAL.
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY AS TO THE LIMITED USE OF OTHER CRIMES EVIDENCE PREJUDICED DEFENDANT. (Not Raised Below.)
DEFENDANT WAS PREJUDICED BY THE TRIAL COURT'S ERRONEOUS JURY INSTRUCTION ON POSSESSION WITH INTENT TO DISTRIBUTE A CONTROLLED DANGEROUS SUBSTANCE. (Not Raised Below.)
DEFENDANT WAS PREJUDICED BY THE ADMISSION OF IMPROPER OPINION TESTIMONY FROM DETECTIVE EDWARDS. (Not Raised Below.)
DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.
The record discloses that, during the course of approximately one and one-half months in the summer of 2005, the Morristown police conducted a narcotics investigation that focused initially upon Theresa Banks and her residence and was later broadened to focus as well upon defendant, a friend of Banks who stayed with her for approximately one month in June and early July 2005, sleeping on her couch. The head of the investigation was Detective Matthew Edwards, who supervised two surveillance officers and approximately ten members of a tactical narcotics team. Over time, enough information was gathered through controlled buys and other investigation to permit the police to obtain warrants to search Banks's apartment and defendant's person.
On July 6, 2005, Sergeant Michael Buckley of the Morristown Police was assigned to conduct a surveillance of Banks's apartment. He arrived at approximately 2:00 p.m. At approximately 4:30 p.m., Buckley observed defendant leaving the apartment and meeting two individuals in the street. Buckley informed Edwards, who dispatched two officers on bicycles, Matthew Rawding and Brett Smith, to detain defendant. Upon their arrival, they handcuffed defendant and arranged for his transport to police headquarters where defendant was searched. The search of defendant did not reveal any drugs, but did disclose his possession of $84 in cash.
Following defendant's detention, a search of Banks's apartment occurred. During its course, Rawding discovered a Louis Vuitton bag lodged above the dropped ceiling in the bathroom. The bag contained six vials of suspected cocaine and eighteen druggist folds of suspected heroin, along with a picture of defendant and an unidentified woman, a government document addressed to defendant, and a condom. Nearby was a vial of methadone bearing the name of Joseph Banks, a Morristown resident who was not related to Theresa Banks. A further search of the apartment disclosed drug packaging materials and marijuana.
Following the discovery of the cache of drugs in the apartment, both Banks and defendant were arrested and later indicted on the cocaine and heroin charges previously set forth. After indictment, Banks, an addict, accepted a plea offer of Drug Court, conditioned on her agreement to testify for the State at defendant's trial. She was, however, called instead as a witness by the defense on the issue of constructive possession of the drugs. Banks testified that her sole crime was to have sold one bag of heroin on July 6, 2005. She denied any knowledge of the cache of drugs found above the bathroom ceiling, but she admitted to having seen the Louis Vuitton pouch previously. In that regard, she testified that she had seen defendant with the pouch a couple of times, and that, one day, she had seen it lying in the living room by the lamp table. She testified additionally that she had witnessed defendant taking the pouch out of his pocket on a number of occasions, and when she no longer saw it lying around, she assumed "he had it on him." As stated, after a period of deliberation, defendant was found guilty of all charges against him.
Defendant first argues that the failure of the trial judge to replace a juror who informed the judge that he would have a scheduling problem on the last day of testimony deprived defendant of his right to a fair trial.
The trial transcript discloses that, at the conclusion of trial proceedings on Monday, June 19, 2006, the trial judge informed the jury that, because of difficulty in scheduling a final witness, trial would resume on Wednesday, June 21. When informed of that fact, one of the jurors stated: "My concern is I'm here, I'd like to complete [the trial], but Wednesday afternoon I have to leave at 3:00 for my daughter's graduation." To this, the judge responded: "I expect that you'll be able to do that . . . . If for some reason you cannot, I'll approach that when we approach it, but if I can get an early start, that's what I would like to do."
The trial transcript also indicates that, on June 21, near the conclusion of Banks's testimony, the judge recalled the juror's scheduling problem, stating to him, "we know you have to be at the graduation and you will be at the graduation, okay?" At 1:00 p.m., the judge completed his charge to the jury, reduced the jury from fourteen to twelve deliberating members and, after determining that the jurors wished to commence their deliberations without going to lunch, sent them to the jury room for that purpose. After the jury retired to deliberate, defense counsel argued to the trial judge that the juror with the scheduling conflict should be excused, because knowledge by the jury of his time constraint placed undue pressure on them to reach a verdict in the two hours that remained before he had to leave. The judge rejected this argument, stating that the juror might have made alternative arrangements and that he could not remove the juror unless that juror told him again that he had to leave. At the present time, the judge observed, he did not have a valid reason for excusing the juror. The transcript does not disclose when a verdict was reached, and it contains no reference to a further request by the juror to be excused because of the graduation.
Defendant argues that the trial judge's refusal to replace the juror with an alternate following notice of the potential scheduling problem or, at least, to revisit the scheduling issue with the juror immediately prior to the commencement of deliberations constituted an abuse of the discretion provided to the judge by Rule 1:8-2(d)(1). See also State v. Valenzuela, 136 N.J. 458, 469-70 (1994) (adopting abuse of discretion standard). However, "in reviewing the exercise of discretion it is not the appellate function to decide whether the trial court took the wisest course, or even the better course, since to do so would merely be to substitute our judgment for that of the lower court. The question is only whether the trial judge pursued a manifestly unjust course." Gittleman v. Central Jersey Bank and Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968); see also Union County Improvement Auth. v. Artaki, 392 N.J. Super. 141, 149 (App. Div. 2007); Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523 (App. Div.), certif. denied, 144 N.J. 174 (1996).
We do not find the evidence contained in the record to be sufficient to meet the requisite standard, particularly since we do not know when the jury's verdict was reached and do not know the nature of its deliberations. In the circumstances presented, any conclusion by us that the jury felt pressured to reach a premature determination of guilt would rest on mere speculation, in which we decline to engage. In this regard, we note that as the result of the manner in which the case was tried, conviction turned solely on the issue of constructive possession, and the evidence on that issue offered by Banks, together with the personal identifiers found in the pouch with the drugs, was ...