April 30, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TASHANDO R. LUSTER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-03-0119.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 16, 2010
Before Judges Carchman and Ashrafi.
Following a jury trial, defendant Tashando Luster was found guilty of three counts of second-degree distribution of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5(b)(2), as well as one count of first-degree distribution of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5(b)(1). After appropriate mergers, the trial judge sentenced defendant to a mandatory extended term of imprisonment, N.J.S.A. 2C:43-7c and N.J.S.A. 2C:43-6f, of twenty-years with an eight-year period of parole ineligibility together with mandated fines and penalties. Defendant appeals, and we affirm.
The thrust of defendant's defense was entrapment. On appeal, defendant asserts that the admission of a prior drug conviction to establish predisposition constituted reversible error. With a focus on that issue, we review the testimony adduced at trial.
During the fall of 2005, an informant, Michael Featherstone, related to detectives assigned to the Somerset County Drug Task Force that he met an individual while in custody at the Somerset County Jail who could procure significant amounts of cocaine. A meeting was arranged between the individual, later identified as defendant, and undercover Hunterdon County Detective Mark Wilson of the Narcotics Task Force. Detective Wilson presented himself as a laborer and longstanding friend of Featherstone who was interested in purchasing an ounce of cocaine.
The meeting occurred on October 9, 2005 at approximately 11:30 a.m. in a parking lot. After speaking with Featherstone, Detective Wilson arrived at the designated location with identifiable currency that had been supplied and photocopied by the Task Force. The detective was also armed with a handgun and equipped with a concealed wireless microphone and transmitter to record and broadcast any conversations. Defendant was driven to the scene by Featherstone and arrived several minutes later.
After being waved over to the vehicle by Featherstone, Detective Wilson approached the car and entered the driver's side rear door. During a brief conversation with the detective, defendant stated that he was a good judge of character and could see that the officer was "cool." Defendant, who was sitting in the front passenger seat, then told Detective Wilson that the cocaine was located in the center console. After discussing an acceptable price, defendant opened the center console lid and removed a white paper towel. The towel contained what appeared to be both rock and powder cocaine. At that point, defendant exclaimed that the "shit is real good." Detective Wilson briefly inspected the cocaine and placed it in his pocket. Defendant then stated that he could procure 18 ounces of cocaine the following day and also asked the detective if he was interested in purchasing heroin, ecstasy or marijuana.
Detective Wilson gave defendant $900, which defendant refused to count in the detective's presence, claiming that to do so would be impolite. He then placed the cash in his right pants pocket. Before parting company, defendant and Detective Wilson exchanged cell phone numbers. Defendant again stated that he could be called at any time if the detective wished to purchase large amounts of cocaine. Defendant and Detective Wilson shook hands, and defendant exited the vehicle.
As Featherstone and Detective Wilson drove away, defendant called the detective by cell phone and complained that he had been paid less than the agreed-upon amount of $1,000. As a result, Featherstone and Detective Wilson drove back to the parking lot and located defendant near a pizzeria. Detective Wilson exited the vehicle, hugged the defendant good-naturedly and handed him the outstanding $100. Defendant assured the detective that "everything is cool" before the detective reentered Featherstone's car. They drove to another location where the two met with other back-up officers assigned to the Task Force.
At that time, Detective Wilson field-tested the suspected cocaine, packaged it and turned the drugs over to his superiors. The State Police subsequently analyzed the drugs, which weighed approximately 27.60 grams. Also following the first transaction, Detective Wilson received a photograph of defendant from Somerset County authorities, thereby confirming the identity of the person from whom he had purchased cocaine.
On October 14, 2007, Detective Wilson telephoned the defendant to arrange another purchase of drugs. Defendant inquired as to the quantity, and defendant agreed to sell the detective three ounces of cocaine for $2,375 at the location of the previous transaction.*fn1
Detective Wilson drove to the Kings Plaza parking lot in an undercover vehicle and observed defendant standing alone. Defendant approached the detective's car, entered it, engaged in some friendly banter and then instructed him to park adjacent to a blue vehicle parked in the center of the lot. Defendant exited the detective's car and walked toward the driver's side of the blue car. A young African-American male sat in the driver's seat of the blue car. Defendant reached inside the open-driver's side window with his back turned to the detective. He reentered the detective's car with three bags containing white powder and rocks, which the detective believed to be cocaine. In exchange for the drugs, Detective Wilson paid defendant $2,700 in cash and $30 for "traveling expenses."
Defendant again inquired whether the detective intended to purchase drugs from him in the future. Detective Wilson expressed his intent to contact defendant and that he had "people lined up" who were willing to buy cocaine.
Thereafter, Detective Wilson drove to a predetermined location to meet with members of the backup team. As with the prior transaction, he debriefed his colleagues, packaged the drugs and turned them over to a superior. When analyzed by personnel from the New Jersey State Police laboratory, the drugs from the second transaction weighed approximately 2.9 ounces.
Detective Wilson next met with defendant on November 4, 2005. A third transaction involving the sale of three ounces of cocaine for $2,750 occurred at the same location at approximately 4:23 p.m. When the sale was concluded, Detective Wilson asked to purchase five ounces of cocaine. Defendant responded that he would have to "do the math" and then contact the detective. It appeared to the detective that defendant was quite eager to conduct the next transaction, as evidenced by the defendant's request that the detective provide him with a specific date for the anticipated purchase. Defendant added that he could sell the detective whatever drugs he wanted. In response, Detective Wilson explained given the number of clientele, he could at most handle five ounces of cocaine.
On November 17, 2005, Detective Wilson called defendant to arrange the fourth and final purchase of cocaine. Notwithstanding several delays, Detective Wilson arranged to purchase five ounces of cocaine from defendant for $4,350. On December 7, 2005, defendant and Detective Wilson met at approximately 1:00 p.m. On this occasion, defendant was accompanied by a female later identified as Lakrushon Lynch, who drove a black Kia. At the conclusion of this transaction, Detective Wilson uttered the code phrase "shit looks good[,]" which alerted a SWAT team as well as backup officers with the Task Force positioned nearby to move in and arrest defendant. The five ounces of cocaine defendant sold to the detective were turned over to another detective for field testing. Laboratory testing confirmed that the powder was indeed cocaine.
In January 2006, Lieutenant Katherine Shive of the Hunterdon County Prosecutor's Office received a letter from Lakrushon Lynch's defense attorney, Peter Abatemarco, that was purportedly written by defendant. Dated January 19, 2006, the letter stated in part, "If you really thought that I would try to put my business off on you to escape my punishment, it really does hurt me because that's some lame shit for anyone to do. I can handle mine, please believe me." Defendant also wrote: "Oh yeah, my defense is 2C:2-12 (not saying it was yours)."
In his opening, defense counsel indicated that the defense was entrapment, and defendant would testify. At trial, against counsel's advice, defendant elected not to testify. However, to establish entrapment, counsel offered additional witnesses. Assistant Prosecutor Dawn Solari of the Hunterdon County Prosecutor's Office testified regarding the disposition of several charges against Featherstone in 2005. Specifically, she testified that Featherstone had been charged with second-degree aggravated assault, third-degree possession of a weapon (a paintball gun) for an unlawful purpose and fourth-degree endangering. Assistant Prosecutor Solari acknowledged that Featherstone's status as a confidential informer was a consideration in the State's offer to dismiss the more serious counts of the indictment and to recommend a split sentence in exchange for his guilty plea to fourth-degree endangering.
Featherstone indicated that he first met defendant, who he knew as "S," while the two were incarcerated together at the Somerset County Jail. Featherstone also acknowledged having been convicted on previous occasions for issuing bad checks and possession of drugs with the intent to distribute. On cross-examination, Featherstone claimed that, based on his conversations with defendant while in the Somerset County Jail, he concluded that defendant was willing to sell drugs to buyers in the Hunterdon County area. Defendant also proffered the testimony of Sharon O'Brien, his federal parole officer, who disclosed that defendant was on federal parole following his conviction for the federal crime of possession of a firearm by a convicted felon.
During the defendant's case, and over defendant's objection, the State presented defendant's 1994 third-degree drug charge to establish defendant's predisposition and rebut the entrapment defense. The judge then instructed the jury:
The State has introduced evidence to demonstrate, if believed, that the defendant was not an innocent person who would not have committed the offense were it not for the inducements of the law enforcement officer and the informant and the agent. That in fact he was predisposed to commit the crime.
Therefore, for this purpose and only for this purpose, the Court has permitted the State to introduce for your consideration, evidence of the defendant's previous conviction in 1994 of possession of a controlled dangerous substance with intent to distribute, third degree.
Whether such evidence, along with other facts and surrounding circumstances, shows a predisposition on the part of the defendant to commit the offense is for you to determine. If you find that the defendant has been predisposed to commit the offense, even without the law enforcement officer and/or informant or agent's participation or inducement, then the defendant's participation was not the direct result of the officer's activity and the defense of entrapment has not been proven and it is unavailable to him.
Ultimately, the jury convicted defendant. Defendant now asserts that the prior conviction was improperly admitted as there was no proof of entrapment nor similarity between the proffered prior offense and the offenses that were the subject of the trial.
Entrapment may be raised as a defense and requires a showing that a person was induced or encouraged to commit an offense by a law enforcement officer or person cooperating with such officer, such as an informant, "[e]mploying methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it." N.J.S.A. 2C:2-12a(2). The burden is on defendant to establish entrapment by a preponderance of the evidence. N.J.S.A. 2C:2-12b; see State v. Florez, 134 N.J. 570, 583 (1994).
The State may, in a unique exception to the prohibition on propensity evidence provided in N.J.R.E. 404(b), introduce evidence of other crimes committed by the defendant to demonstrate that a defendant was predisposed toward committing the crime in question and rebut the entrapment defense. See State v. Davis, 390 N.J. Super. 573, 597 (App. Div.) ("When a defendant seeks to establish entrapment, the State may rebut that proof with evidence of predisposition of which similar bad acts are probative."), certif. denied, 192 N.J. 599 (2007). The inherent danger in admitting other-crimes evidence, however, is that "a jury, aware of other-crimes evidence, may convict a defendant not on the evidence of the specific crime at issue but because of the perception that the defendant is a 'bad' person in general." Not all evidence of other crimes is admissible to rebut an entrapment defense; "courts have tried to ensure that the probative worth of such evidence when used to show predisposition will outweigh its prejudicial effect by requiring that the prior convictions be for crimes similar to the crime for which the defendant is being prosecuted." Gibbons, supra, 105 N.J. at 77. Therefore, there must be sufficient "similarity between the 'objects, methods, and particular mental states' as well as the 'factual nexus between the crimes' so as not to mislead the jury to focus on a defendant's general bad character." State v. Cofield, 127 N.J. 328, 334 (1992) (citing Gibbons, supra, 105 N.J. at 85).
In addition, predisposition evidence ordinarily is presented as rebuttal to actual evidence of entrapment. As observed by the United States Supreme Court, "if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue." Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 216, 77 L.Ed. 413, 422 (1932). In addition, we have "previously found no error in presenting 404(b) evidence in the State's case-in-chief when the defense of entrapment had been raised in defendant's opening." Davis, supra, 390 N.J. Super. at 597 (citing State v. White, 86 N.J. Super. 410, 421 (App. Div. 1965); see also State v. Dolce, 41 N.J. 422, 434 (1964) (observing that whether the State may introduce propensity evidence before the defendant "has succeeded in getting some proof into the record in support of his asserted claim of entrapment (in the opening, for example), is questionable").
Throughout the trial, defendant argued entrapment. During his opening, when he believed defendant was going to testify, counsel asserted that defendant would claim entrapment. After defendant presented witnesses to establish the entrapment defense, the State proffered defendant's prior drug charge. Defendant followed through in his closing that the defense was entrapment, and defendant was acquitted of one of the charged offenses. Defendant cannot now disclaim the defense on appeal after it has proven unsuccessful, and the State was entitled to rebut defendant's entrapment by proffering defendant's prior conviction of a similar offense. Gibbons, supra, 105 N.J. at 76.
We recognize, as do both parties, that entrapment is a defense fraught with risks; it requires a concession that the underlying criminal act has been committed. Moreover, where there is an understanding that defendant will testify and that fact is made known to the jury, if defendant exercises his constitutional right not to testify, that too diminishes the viability of the defense. Nevertheless, defendant pressed forward with the theory, to no avail. We are reluctant to allow defendant to now disavow the viability of the defense and its attendant risks. That is what happened here, and we find no basis for overturning the verdict.
In its responding brief, the State raises the specter of ineffective assistance of counsel. That issue is not before us on appeal, and any questions as to the propriety of counsel's conduct or the strategies employed must await further review in a different forum. See R. 3-22. We take no position on the issue at this time.