July 1, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KOBIE PURKETT A/K/A ROBIE D. PURKETT A/K/A KOBIE D. PURKETT A/K/A KOBIE DELMONTE PURKETT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Essex County, Indictment Nos. 05-12-2938 and 06-04-1147.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Grall and LeWinn.
Essex County Indictment No. 2005-12-2938 charged defendant, Kobie Purkett, in counts five through seven, with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1),(b)(3); and third-degree possession of cocaine within one thousand feet of school property, N.J.S.A. 2C:35-7. Co-defendants, Unique Bennett and Chianti Walsh, were charged in counts one through four of the same indictment with third-degree conspiracy to possess heroin with intent to distribute, N.J.S.A. 2C:5-2; third-degree possession of heroin; third-degree possession of heroin with intent to distribute; and third-degree possession of heroin within 1000 feet of school property. The date of all offenses charged was August 9, 2005.
Essex Count Indictment No. 2006-4-1147 charged defendant, alone, with third-degree possession of heroin; third-degree possession of heroin with intent to distribute; third-degree possession of heroin within one thousand feet of school property; and second-degree possession of heroin within five hundred feet of public property. All offenses charged occurred on October 20, 2005.
Bennett and Walsh entered into negotiated plea agreements, and defendant proceeded to trial alone on the first indictment. A jury found him guilty of all three counts. Defendant thereafter entered into a negotiated plea agreement with respect to the second indictment and pending accusations. Defendant pled guilty to third-degree possession of heroin within 1000 feet of school property, and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5).
At sentencing on January 16, 2007, the judge imposed a five-year term of imprisonment with a three-year parole ineligibility period on the first indictment, and a consecutive aggregate term of three years with a nine-month parole ineligibility period on the two other charges. Defendant now appeals from the judgment of conviction entered upon the charges tried to a jury.
The facts pertinent to defendant's appeal may be summarized as follows.
On August 9, 2005, Newark Police Detective Philip Turzani and his partner, Police Detective Carlos Rivera, were patrolling in the area of South 18th Street and 15th Avenue in Newark at approximately 1:45 p.m.; the officers were in an undercover vehicle and were wearing plain clothes. Another police unit, consisting of Officers Macchia, Cabrera and Sergeant Gohner, was in the area.
Turzani testified that while driving on South 18th Street, he observed "three males sitting on the front steps to 516 South 18th Street motioning and beckoning for vehicles and pedestrians to approach them." "[F]rom the location and [the] area,... [he] believed that they [were] doing narcotic transactions[,]" leading him to park the vehicle at the curb and set up surveillance, with the use of binoculars, at a distance of approximately 100 to 200 feet.
Turzani identified the three individuals as defendant and co-defendants Bennett and Walsh.
Turzani testified that he observed Bennett "stand up and walk several feet" away from the building and "motion over an unknown black male" with whom Bennett engaged in a brief conversation. Bennett then "put his hand up in the air... right hand index finger indicating one." Turzani stated that Bennett made that gesture to Walsh who then "stood up, went inside the hallway of 516 South 18th Street and up into the door molding he took out an object,... took an item from the object, placed the remainder back up into the door molding." Walsh "then motioned over the black male[,]... and "handed him the item"; the black male then handed Walsh "an unknown amount of U.S. paper currency[,]" and "took the item and placed it up into the air as if inspecting the contents...." At that time, Turzani stated, he "was able to... notice that it was a glassine envelope containing suspected C.D.S. heroin."
Although Turzani believed he had just witnessed a "narcotics transaction and that both [Bennett and Walsh] were conspiring together to sell... heroin[,]" he did not "move in at that point[,]" because he "then observed [defendant] motion over another unknown black male to come over to him, at which time the black male walked over [to defendant]. They engaged in a brief conversation." Turzani then observed defendant "walk [s]outhbound on South 18th Street towards an abandoned house.... [Defendant] then bent down by the [n]orth side of the house, picked up a... black colored plastic bag, at which time he took an item from the bag, placed the bag back down on the ground," and brought it to the black male. Turzani then observed defendant "engage in a hand-to-hand transaction[,]" in which he "handed over the items that he... took from the bag to the black male and the black male handed over to him U.S. paper currency." Based on his observations, Turzani believed that he had "witnessed another narcotics transaction." Turzani thereupon called the backup unit, and the three individuals were arrested.
Turzani was shown a map of the area surrounding South 18th Street and 15th Avenue, and identified a school within 1000 feet of the locations of the drug transactions he had witnessed.
Detective Rivera's testimony was consistent with Turzani's. He added that after the three individuals were arrested, Turzani retrieved the black bag in the parking lot, from which defendant had removed the narcotics he sold. Inside the bag were "39 vials with black tops containing cocaine."
Defendant testified that he was in the area of South 18th Street and 16th Avenue on the date in question to visit his elderly aunt. He traveled by public transportation and as he left the bus, a "neighbor... asked [him to]... go to the store for her." He approached a liquor store on 18th Street and was suddenly accosted by three people from behind, who "grab[bed him] and put handcuffs on [him]." He was brought to a building and was seated "in front of the building with two other individuals.... Then after that, they just took [him] directly down to the station. Never knew nothing else...."
During direct examination, counsel questioned defendant about his employment history. Defendant testified that "prior to August 9th," he was not employed; he "was doing volunteer work for... a company called Acorn." He was asked when he last had "full time employment" prior to August 2005, and replied:
Let me see, 2000, 2001, 2000 [sic]. It was off and on that I had other jobs. But they would be under the table jobs. It wouldn't be a regular, 40 hour a week paying job....
The jury began deliberations on the morning of the third day of trial. During deliberations, juror #3 asked to speak to the judge. In the presence of counsel, the trial judge brought juror #3 into the courtroom and asked what she wanted to say. The juror responded:
A... juror said that her... decision is based on feelings. That... when asked, she said she has worked with drug addicts. When asked about that,... would that influence her feelings,... she said no. And then another statement was made. So, I'm not sure that we're dealing with the evidence or if we're dealing with feelings. And... that's just my concern
Out of the presence of juror #3, the judge asked counsel for their thoughts on how to proceed. The prosecutor requested the judge to "reinstruct the jury that their decision is to be based on solely the evidence in this case, what was presented to them in this courtroom and not to be influenced by any outside factors." Defense counsel essentially concurred with this language. The judge asked if counsel thought that "any other inquiry of any other juror [was] necessary...." Defense counsel stated that he was "not requesting that[,]" and the prosecutor concurred.
A sheriff's officer who had escorted juror #3 out of the courtroom after her statement then advised the judge that the juror had said to him that "she's in fear... for her life." The judge brought juror #3 back into the courtroom and questioned her further; she responded, "I don't know if I said life. I said that I am concerned. I feel uncomfortable being in this situation." The following colloquy then ensued between the judge and juror #3.
THE COURT: And what... is the source of your discomfort as precisely and as accurately and as fully, without leaving any details out, ma'am? Because that's different from what... you said before.
JUROR: I'm making a statement about jury deliberations in a criminal case. And it could affect the outcome and that makes me feel uncomfortable. However, I feel compelled to state my observations to the [c]court.
THE COURT: Well, did someone threaten you?
JUROR: No. No one has threatened me.
THE COURT: Was there any implicit threat?
JUROR: No. Not at all. Nothing. I'm just uncomfortable in the situation.
THE COURT: Are you able to continue deliberating and decide this case based upon the evidence?
JUROR: I... would ask to be excused.
THE COURT: Well, what about the answer to my question?
JUROR: I -- I've already stated my concerns within the jury room... and it's still a concern of mine....
THE COURT: What is a concern of yours?
JUROR: That... everyone in the jury room is without prejudice in... dealing with the evidence.
THE COURT: Well, if I were to reinstruct the jury that the jury is to base their decision on evidence alone,... is there any reason to believe that you, ma'am, could not continue to do that? You have not said anything to me that would show me that you're not able to decide this case based on the evidence alone. Isn't that true?
JUROR: That's true.
THE COURT: So you are able to continue deliberating and you are able to continue to deliberate with your colleagues just on the evidence presented in this courtroom, is that true?
JUROR: Yes. That's true. Yes.
THE COURT: [Y]ou understand you're permitted to express your views just like the... other 11 are able to express their views. And the job of the jury is to decide this case based on the evidence.
JUROR: All right.
THE COURT: And I intend to tell the jury that.
JUROR: Uh-huh. Okay.
THE COURT: You may be there when I tell them.
THE COURT: You're not to discuss our conversations with you fellow jurors.
THE COURT: Okay? JUROR: Yes.
Again out of the juror's presence, the judge asked counsel if they had "any objection to the [c]court's colloquy with that juror?" Defense counsel responded "Your Honor, I believe that the [c]court did ask the right questions. So, I have nothing to add to that."
The judge then brought juror #3 back into the courtroom to advise her to "resume [her] seat [with] the jury." The judge instructed her "once again" that she was "at no time to discuss with [her] fellow jurors any of the colloquy or anything that happened when [she was] before [him]." The juror agreed.
The judge then brought the entire jury back into the courtroom and instructed them as follows:
Ladies and gentlemen of the jury, may I remind you that you took an oath to follow the instructions of the [c]court so that both sides may receive a fair trial.
Let me... remind you that, as jurors, this is your duty. It is your duty to weigh the evidence calmly and without passion, without prejudice and without sympathy. Any influence caused by these emotions has the potential to deprive the State and the [d]efendant of what you promised them. And what you promised them was a fair and impartial trial by fair and impartial jurors. Speculation and conjecture and other forms of guessing play absolutely no role in the performance of your sworn duty.
It is your sworn duty to arrive at a just conclusion. And that just conclusion can only come after considering all the evidence and nothing... but the evidence that was presented during the course of the trial.
Now please return to your deliberations.
A while later, the jury informed the judge that it was unable to reach a verdict. With the concurrence of counsel, the judge gave the jury what he termed a "modified Allen charge,"*fn1 and instructed them on their duty to "consult with one another and to deliberate with a view to reaching an agreement[,]" and to "decide the case for yourself... only after an impartial consideration of the evidence with your fellow jurors."
The jury resumed deliberations on the following day. It requested a readback of defendant's testimony and, shortly thereafter, reached its verdict.
On appeal, defendant raises the following issues for our consideration:
ONCE THE COURT BECAME AWARE OF THE PREJUDICIAL IMPACT OF EVIDENCE RELATING TO THE CO-DEFENDANTS' DRUG SELLING, THE COURT SHOULD HAVE DECLARED A MISTRIAL, OR ALTERNATIVELY ISSUED STRONG CURE. (Not Raised Below).
A. The Testimony Relating To The Co-Defendants['] Charges Was Admitted In Violation of N.J.R.E. 403 And 404(b).
B. The Court, Sua Sponte, Should Have Declared A Mistrial And Severed The Co-Defendants' Charges For Retrial, Or alternatively Issued An Immediate Strong Curative Instruction.
THE INTRODUCTION OF EVIDENCE THAT THE DEFENDANT WAS UNEMPLOYED CREATED THE IMPERMISSIBLE INFERENCE THAT DEFENDANT DEALT DRUGS FOR PROFIT THEREBY DENYING THE DEFENDANT A FAIR TRIAL. (Not Raised Below).
THE COURT ERRED IN FAILING TO MAKE A THOROUGH INQUIRY OF JUROR #3 AS TO HER CONCERN ABOUT ANOTHER DELIBERATING JUROR'S IMPROPER BASIS FOR DECISION. (Not Raised Below).
We note initially that all of these arguments are raised as plain error. Therefore, we must examine whether any of them is "clearly capable of producing an unjust result...." R. 2:10-2. Having reviewed the record in light of these contentions and the controlling legal principles, we are satisfied that none of the claimed errors meets this test and, therefore, we affirm. We add the following comments.
At the start of trial, the prosecutor advised the judge that he intended to elicit the police officers' observations of the two co-defendants' conduct as well as the fact that they were arrested at the same time as defendant. The judge asked defense counsel for his response; counsel replied, "I don't know if it was on the [witness] list." The judge responded:
Would you have inferred from the fact that your client was indicted with those two individuals and that the police reports are rife... with the mention of their names, do you think that puts you on notice that the prosecutor might be mentioning those names?
Defense counsel responded, "That's fine."
Immediately after Detective Turzani's testimony, the judge excused the jury and engaged in the following colloquy with counsel:
THE COURT: Much ado has been made of [co-defendants] and the heroin they possessed and what they did for which this [d]efendant is not at all charged. All of that evidence went in without any objection.
Now the issue is this.
And... I'm positive, [defense counsel], that it was a strategic reason that you did not object to any of that evidence, isn't that true?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: Now the issue becomes what limiting instruction, if any, the jury should be given with regard to the evidence against those two other people. I leave both of you to your own devices to craft that limiting instruction.... That you can do tonight. Have that ready to show the [c]court tomorrow at 9 a.m.
The following morning, defense counsel advised the judge that he accepted the prosecutor's proposed instruction, to which the judge then added a minor correction. During the judge's charge to the jury, he instructed them as follows:
Evidence has been admitted concerning the actions of [co-defendants] on August 9, 2005. The guilt or innocence of those two individuals is not for your consideration nor should you speculate as to their status in the criminal justice system.
Evidence concerning these two individuals is for your consideration only for the limited purpose of testing the accuracy and credibility of the witnesses that testified under oath in this courtroom. You cannot use it for any other purpose.
On appeal, defendant argues that this "instruction was too little, too late[,]" and that N.J.R.E. 403 and 404(b) prohibit the admission of this evidence.
N.J.R.E. 403 excludes otherwise relevant evidence "if its probative value is substantially outweighed by the risk of... undue prejudice, confusion of issues, or misleading the jury...." Whether the trial judge would have excluded this evidence had a timely objection been made is sheer speculation at this point. We are, however, satisfied, that the failure to exclude this evidence under N.J.R.E. 403 was, at most, harmless error for the following reasons.
Both Detectives Turzani and Rivera testified as to their direct observation of defendant's actions in negotiating and consummating his own narcotics transaction with a different "customer" than the individual involved with co-defendants. It is worth recalling that the jury's last request before reaching its verdict was for a readback of defendant's testimony. It appears that, upon hearing defendant's version of events on August 9, 2005, the jury determined it to be incredible; this determination likely affected their verdict as much as the direct evidence presented by the police officers. We are, therefore, confident that the evidence related to co-defendants did not "divert jurors 'from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" State v. Moore, 122 N.J. 420, 467 (1991) (citation omitted).
Defendant's reliance upon N.J.R.E. 404(b) is misplaced. The "evidence of other crimes, wrongs or acts" deemed inadmissible under this rule for the purpose of "prov[ing] the disposition of a person in order to show that such person acted in such conformity therewith[,]" clearly refers to prior conduct of the defendant, not of third parties. The prejudice which the rule is intended to eliminate is the risk that a jury will conclude "that because defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial." State v. Weeks, 107 N.J. 396, 406 (1987).
Here, the conduct of co-defendants was part of "the subject matter of the action being tried[,]" and, therefore, "cannot be excluded under N.J.R.E. 404(b) because the rule is only a consideration with respect to conduct that occurred on other occasions." Biunno, Current N.J. Rules of Evidence, Comment 7 on N.J.R.E. 404(b) (2010). Moreover, evidence of events that take place during the same timeframe as the crime for which a defendant is charged in the indictment will not be excluded under this rule "if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury." State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995).
Under the circumstances, we are satisfied that the trial judge had no obligation to declare a mistrial sua sponte or to sever co-defendants as defendant asserts. Severance, in any event, is a moot point, since both co-defendants had been sentenced pursuant to negotiated plea agreements prior to defendant's trial. Moreover, we are confident that the limiting instruction which the judge gave to the jury at the conclusion of trial was sufficient to focus the jury's attention on the evidence pertinent to defendant's conduct alone.
Defendant next argues that the introduction of evidence regarding his employment history prejudiced him and deprived him of a fair trial. Not only is this point raised as plain error, but, in our view, it constitutes "invited error[,]" as defense counsel initiated this line of questioning on direct examination. "Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal...." State v. Corsaro, 107 N.J. 339, 345 (1987) (internal quotations omitted). See N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 340-41 (2010).
When the prosecutor attempted to explore this line of questioning on cross-examination, the judge immediately called a sidebar conference and instructed the prosecutor not to pursue the subject any further. Thereafter, in his instructions to the jury, the judge stated: "[Y]ou cannot use the... circumstances of [defendant's] employment or lack thereof as a circumstance from which to infer that on [the date in question] he possessed cocaine with intent to sell it."
Under the totality of circumstances, we are satisfied that this asserted error was not "clearly capable of producing an unjust result," and therefore it "shall be disregarded...."
Finally, we conclude that defendant's contention regarding juror #3 is "without sufficient merit to warrant discussion in a written opinion...." R. 2:11-3(e)(2). Suffice it to say, we are satisfied that the trial judge's inquiry of this juror was adequate to ensure both her ability to continue to serve and that her concerns had not contaminated the rest of the jury. Defendant concedes that removal of juror #3 was "not justified under the 'inability-to-continue' standard[,]" citing Rule 1:8-2(d)(1). Juror #3 expressed concern that another juror may have been deliberating based upon "feelings" rather than upon the evidence, and sought clarification from the judge that deliberations were to be based "on [the] facts in evidence." Under the circumstances, defendant's assertion of "the possibility that [j]uror #3 was attempting to alert the court to another juror's statements of bias against drug addicts or drug dealers" is not borne out by the record.
In a supplemental pro se brief, defendant argues that he received ineffective assistance of trial counsel. We note that with respect to the evidence relating to co-defendants, defense counsel agreed with the judge's statement that counsel had a "strategic reason" for not objecting to such evidence. Regarding the issue of defendant's employment status, defense counsel did attempt to rehabilitate defendant's testimony by proffering evidence that he was receiving disability benefits; counsel withdrew that request when the judge stated that he would give the jury a curative instruction on the issue.
In short, we reject defendant's claim of ineffective assistance of counsel without prejudice to his right to raise such a contention by way of post-conviction relief, pursuant to Rule 3:22. See State v. Preciose, 129 N.J. 451, 460 (1992).