July 9, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RASHEED AMIN, A/K/A STEVEN HAWK, A/K/A AMIN RASHEEN, A/K/A RAH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 06-08-0542.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2009
Before Judges Axelrad, Sapp-Peterson and Espinosa.
Defendant made or arranged seven hand-to-hand drug sales to an undercover officer and now appeals from his sentence and convictions for conspiracy and distribution of cocaine. We affirm.
On March 30, 2006, Detective Katherine Curtin of the Cape May County Prosecutor's Office*fn1 began an undercover investigation regarding Steven Hawk, a/k/a defendant Rasheed Amin. On that date, she obtained a photograph of defendant from the Department of Corrections (DOC) that she used to identify defendant and made the first of four hand-to-hand purchases of cocaine directly from him.
At the time of the first purchase, Curtin paid defendant $50 for .304 grams of cocaine. Defendant gave her his telephone number to use to contact him for additional purchases.
Using that telephone number, Curtin arranged a second purchase of cocaine from defendant for $100 on April 7, 2006. They met in a motel parking lot. A second motor vehicle pulled up; defendant went to that motor vehicle and returned to Curtin's vehicle, where he provided her with .732 grams of cocaine.
The third purchase occurred on April 19, 2006, at a shopping center parking lot. Curtin testified that defendant advised her that they had to wait for "his girl, [that] she was going to be bringing the stuff over, the stuff being the drugs, the cocaine." A motor vehicle arrived and co-defendant Keisha Jones exited and handed defendant a clear plastic bag containing 1.761 grams of cocaine. Curtin paid defendant $100 for the cocaine.
Curtin contacted defendant to arrange the fourth hand-to-hand transaction on April 26, 2006. Curtin testified that she requested $250 worth, or a quarter-ounce of cocaine, and gave him the money. Defendant told her that he was going to take her "to his boys to get a heavier bag" and drove them to a drug store in North Cape May. A red Ford Taurus with two unidentified males pulled up. Defendant walked to the passenger side of the vehicle, stayed there briefly, and returned to Curtin with the cocaine.
When Curtin contacted defendant to arrange for a fifth purchase, he replied that he was in North Carolina but that he could set it up and "Angel" would be able to supply her. Defendant later called her, advised that he had spoken to Angel, and told her where to meet him.*fn2 On May 5, 2006, Angel arrived at the designated meeting place, left his vehicle, approached Curtin's vehicle and entered. She asked if he was Angel; he answered affirmatively, and they discussed the drug purchase. Curtin gave him $100 and he gave her 1.97 grams of cocaine.
Curtin called defendant on May 11, 2006 to arrange a sixth purchase. In a tape-recorded conversation, she asked him to contact Angel because he was not returning her calls. Defendant agreed to do so. After contacting Angel at a telephone number given to her by defendant, they met at a K-mart parking lot. A red Taurus pulled in to the parking lot with two males, one of whom was Angel. Curtin walked to the passenger side of his vehicle, where she purchased an additional quantity of cocaine for $100.
When Curtin was unsuccessful in attempting to contact Angel for another purchase, she again called defendant in North Carolina on May 19, 2006. In this tape-recorded conversation, Curtin negotiated for the purchase of an eight-ball, or one-eighth ounce of cocaine. Angel later called her and told her to call when she was ready to meet with him. They arranged to meet at a shopping mall parking lot, where Curtin purchased 3.193 grams of cocaine for $150.
Defendant was indicted*fn3 on seven counts of third-degree distribution of less than one-half ounce of cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts one, two, three, five, six, eight, ten); four counts of third-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2 (counts four, seven, nine, eleven); one count of second-degree distribution of cocaine in a quantity of one-half ounce or more, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count twelve); and with being the leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 (count thirteen) (the kingpin count).
Defendant moved for the suppression of his tape-recorded conversations with Curtin on the grounds that Curtin was not an "investigator or law enforcement officer" as defined in N.J.S.A. 2A:156A-2(f); that as a result, the State was required and failed to obtain the prior written approval of the Attorney General, the county prosecutor, or their designee, for recording the conversations pursuant to N.J.S.A. 2A:156A-4(c). Defendant also moved for the dismissal of the kingpin count and for the suppression of statements made by co-defendant co-conspirators pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004). The trial court denied the motions.
There was also a pretrial discussion concerning the photograph Curtin obtained from the DOC and used to identify defendant. The prosecutor acknowledged that certain information on the photograph was prejudicial to defendant and should be redacted. Defense counsel requested further that the photograph should be excluded from evidence. The prosecutor maintained that the photograph was necessary to the State's proof of identification. Defense counsel argued that it was unnecessary because "[w]e have all these other transactions. She's going to identify him in all other transactions. It's not an ID case." The court ruled that the State would be permitted to use a redacted photograph, provided there was no reference or description of the source of the photograph.
Defendant was acquitted on the kingpin count and convicted on counts one through twelve. At sentencing, the court merged counts one through eleven into count twelve, a second-degree distribution charge. The State had filed a motion for the imposition of an enhanced sentence. It was undisputed that defendant met the criteria for a mandatory enhanced term for this, his second distribution conviction. See N.J.S.A. 2C:43-6(f). However, defense counsel argued that, although the State had served counsel within fourteen days of conviction, it was required to serve defendant personally within the time period established by Rule 3:21-4(e). The court rejected this argument and sentenced defendant to twenty years imprisonment, with a ten-year period of parole ineligibility and appropriate fines and penalties.
In this appeal, defendant raises the following arguments:
THE TRIAL COURT ERRED BY PERMITTING DETECTIVE CURTIN TO TESTIFY THAT SHE OBTAINED A PHOTOGRAPH OF MR. AMIN FROM THE DEPARTMENT OF CORRECTIONS AND OVERRULING MR. AMIN'S MOTION TO STRIKE THE TESTIMONY.
THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY WITH A LIMITING INSTRUCTION CONCERNING THE TESTIMONY THAT MR. AMIN'S PHOTOGRAPH WAS OBTAINED FROM THE DEPARTMENT OF CORRECTIONS.
LIEUTENANT FRAME'S EXPERT OPINION THAT SHE DECIDED TO TAPE RECORD CURTIN'S CONVERSATIONS WITH MR. AMIN BECAUSE SHE BELIEVED MR. AMIN WAS ABOVE A STREET LEVEL DRUG DEALER WAS IMPROPERLY INTRODUCED TO THE JURY IN VIOLATION OF N.J.R.E. 702 AND THE TRIAL COURT ERRED BY NOT GRANTING MR. AMIN'S MOTION FOR A MISTRIAL.
THE TRIAL COURT ERRED BY NOT SUPPRESSING THE WIRETAP RECORDINGS OF THE TELEPHONIC CONVERSATIONS BETWEEN GRANT EMPLOYEE CURTIN AND MR. AMIN BECAUSE CURTIN WAS NOT A LAW ENFORCEMENT OFFICER AND THE STATE FAILED TO OBTAIN THE APPROVAL OF THE ATTORNEY GENERAL TO RECORD THE CONVERSATION PURSUANT TO N.J.S.A. 2A:156A-4c.
THE TRIAL COURT ERRED BY NOT GRANTING MR. AMIN'S MOTION FOR A MISTRIAL AFTER THE ASSISTANT PROSECUTOR'S IMPROPER REMARKS DURING SUMMATION.
THE TRIAL COURT ERRED BY FAILING TO ADEQUATELY RESPOND TO THE JURY'S REQUEST TO RECEIVE THE WRITTEN JURY CHARGE.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
After carefully reviewing the record and briefs, we are satisfied that any error here was harmless, R. 2:10-2, and that the arguments raised in Points IV and VI lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2).
We turn first to the evidence relating to a photograph of defendant obtained from the DOC. As defense counsel correctly pointed out, identification was not a critical issue in a case involving multiple hand-to-hand transactions with an undercover officer and tape-recorded conversations. Prior to trial, the trial court correctly set parameters for the State's use of the photograph, i.e., that there be no reference to the source of the redacted photograph. Despite this explicit instruction, Curtin mentioned twice that she obtained the photograph from "Corrections." Defendant argues that the trial court erred in permitting such testimony, in denying a motion to strike the testimony and in failing to give the jury a limiting instruction regarding this testimony.
It is a mischaracterization to argue that the trial court "permitted" such testimony because the trial court unequivocally prohibited the State from making any reference to the origin of the photograph and, in fact, no references were elicited during direct examination of any prosecution witness. The first reference came during a vigorous cross-examination of Curtin:
Q: Now again on March 30th, 2006[,] when you began this investigation there's no photos, there's no tapes, there's no fingerprints on any drugs, there's no taping of any sort, correct?
A: I actually obtained a photograph from the correction center and saw Hawk prior to the deal.
Defense counsel did not immediately object to this testimony but instead, directed his follow-up questions to clarify that there were no photographs of any offense. The first objection came after a recess. Defense counsel stated that while he had chosen not to "make an objection and get into that at that point," he now moved to strike that testimony and asked the court to instruct the jury "in reference to where photos come from and how they get photos." Defense counsel also faulted the witness, stating, "And she knows not to say Department of Corrections but she said Department of Corrections." The trial judge denied the motion to strike and noted that, as he had earlier indicated to counsel, he would give that charge at the trial's conclusion,*fn4 which in fact he did. Defense counsel pressed further:
[COUNSEL]: Again, why did the witness have to say Department of Corrections? She could have said I had a photo.
COURT: She was asked under oath a blanket question that as of March 30th, 2006 you had no photos, tapes or fingerprints. She answered obviously that she had a DOC photo. You opened the door, Counsel.
At best, Curtin's reference to "Corrections" was the gaffe of an inexperienced witness; at worst, it was a calculated measure to take advantage of a sweeping question by gratuitously injecting negative information about defendant in response. In either case, it would have been prudent for the court to address Curtin directly to confirm that she was aware of the court's prior order and understood her obligation to comply with that order. If that had been done, even without the request of counsel, it is less likely that Curtin would have made a second reference to "the Corrections photograph:"
Q: Do you, do you know what Mr. Hawk's real name is?
A: Steven Harrell Hawk, sir.
Q: Steven Harrell Hawk?
A: He goes by also Rasheed Amin.
Q: Well, Rash[ee]d Amin, is that his real name?
A: I know him as Steven Harrell Hawk. That is how I positively identified him off a corrections photograph.
Defense counsel did not object to this reference.
The references to "Corrections" were improper because they "carr[y] the connotation that defendant was involved in prior criminal conduct." State v. Miller, 159 N.J. Super. 552, 562 (App. Div.), certif. denied, 78 N.J. 329 (1978). Defense counsel's objection provided the court with an opportunity to address the issue by striking the testimony or giving a curative instruction while the witness was still on the stand. The court erred in failing to do either.
However, references to a photograph as a "mug shot" or otherwise obtained from police sources have been found to be harmless error where the reference is solitary and fleeting and accompanied by an appropriate charge to the jury. See, e.g., Miller, supra, 159 N.J. Super. at 562. See also State v. Harris, 156 N.J. 122, 173 (1998); State v. Mays, 321 N.J. Super. 619, 632 (App. Div.) (reference to Rahway State Prison harmless), certif. denied, 162 N.J. 132 (1999); State v. Porambo, 226 N.J. Super. 416, 426 (App. Div. 1988). The error may be harmless even when the evidence is not just a fleeting reference in testimony but rather, the actual admission of a photograph of defendant in prison garb into evidence. Compare State v. Burton, 309 N.J. Super. 280, 289 (App. Div.) (admission of photograph of defendant in prison garb as part of photographic array used to identify defendant harmless error in light of "overwhelming evidence of guilt"), certif. denied, 156 N.J. 407 (1998), with State v. Taplin, 230 N.J. Super. 95, 98-100 (App. Div. 1988) (where identification was not an issue, admission of "mug shot" of defendant required reversal of conviction).
In reviewing the relevant circumstances here, we note that there were two references, rather than a solitary reference to "Corrections" as the source of the photograph Curtin used to identify defendant. These references were, however, still fleeting. See Porambo, supra, 226 N.J. Super. at 426 (harmless error found despite more than one reference that could be construed as reference to defendant's prior involvement in criminal history). Although the court failed to give an immediate curative instruction, the appropriate instruction was included in the charge to the jury. We have scrutinized these errors more closely because identification was not an issue here. However, we are satisfied that, because the evidence of defendant's guilt of the crimes for which he was convicted was overwhelming, any error here in failing to strike the testimony or give a curative instruction when requested was harmless. R. 2:10-2.
Lieutenant Lynn Frame of the Cape May County Prosecutor's Office was permitted to testify that, during the investigation, a decision was made to record conversations between defendant and Curtin because "we suspected that the suspect or the target was a little bit more advanced and more substantial than the street level dealer." After an objection that she was "giving a conclusion of the status of a defendant" was overruled, she was permitted to testify as follows:
Q: Upon what did you base your decision that the conduct of Mr. Hawk or the subject was more than just a street level operation?
A: It was a number of factors. Beginning with the number of transactions that occurred, the fact that the amount of narcotics that was transacted was larger than a regular street level deal, up to, I believe it was up to almost a quarter ounce if not more at a time. That indicates that the target is able to provide larger quantities and is more than just a street level dealer. And also the fact that he was orchestrating transactions through other people.
At this point, defense counsel posed the following objection:
This witness who has not been qualified just gave an opinion, that's first. Second she made a conclusion without being an expert to the jury. So I'd ask that her testimony be stricken and ask for a mistrial. She just gave a conclusion as to the crime attributed to Mr. Hawk in this matter.
The phrasing of the question posed by the prosecutor improperly asked the witness the reasons for her "decision" that defendant "was more than just a street level operation." See State v. Summers, 176 N.J. 306, 314 (2003). (Expert opinion is not objectionable "as long as the expert does not express his opinion of defendant's guilt but simply characterizes defendant's conduct based on the facts and evidence in light of his specialized knowledge[.]") (emphasis added) (quoting State v. Odom, 116 N.J. 65, 79, (1989)). However, even if improper expert testimony is elicited, a reversal of defendant's conviction is warranted only if that testimony was sufficiently prejudicial to have the capacity to bring about an unjust result. State v. Nesbitt, 185 N.J. 504, 518-19 (2006); State v. Thompson, 405 N.J. Super. 76, 81 (App. Div., certif. denied, 199 N.J. 133 (2009)).
The verdict here presents unassailable proof that the jury was unswayed by this testimony because they only convicted defendant of the "street level" charges of conspiracy and distribution and acquitted him of the kingpin charge.
Therefore, we conclude that this testimony was not "clearly capable of producing an unjust result." R. 2:10-2.*fn5
Defendant argues that his motion for a mistrial should have been granted based upon improper comments made by the prosecutor in summation. The remarks specifically complained of are: that defendant "[p]robably had a lot of customers[,] but we only heard about one customer. And the one customer was an undercover police officer[,]" and that the undercover officer was attempting "to purchase as much as she can within the financial limits of the task force[.]" The prejudice alleged is that the first comment suggested that defendant had engaged in other drug transactions with other customers and that the second comment suggested that defendant had the capacity to provide significantly higher quantities of cocaine that those purchased by Curtin.
Arguably, these arguments were responsive to defense counsel's assertion in summation that defendant was merely "a low level street dealer." Still, prosecutors must be cautious not to exceed the wide latitude accorded the prosecutor in summation, see State v. Wakefield, 190 N.J. 397, 457 (2007), cert. denied, 522 U.S. 1146, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008); State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969), by suggesting that defendant is guilty of criminal conduct beyond that being tried before the jury. See State v. Farrell, 61 N.J. 99, 103 (1972). However, "[n]ot every instance of misconduct in a prosecutor's summation will require a reversal of a conviction. There must be a palpable impact." State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). Reversal is appropriate when the prosecutor's conduct is "so egregious that it deprived the defendant of the right to a fair trial." State v. Josephs, 174 N.J. 44, 124 (2002). See also Roach, supra, 146 N.J. at 219.
In this case, to the extent that the prosecutor's comments can be construed as suggesting that defendant's criminal activity was of a kingpin nature, they were for naught since defendant was acquitted on that charge. As for the individual counts of distribution and conspiracy for which he was convicted, the evidence of his guilt provided by the testimony of the undercover officer who participated in each of the transactions was compelling. Therefore, the comments by the prosecutor did not deprive defendant of a fair trial.
It was undisputed that, after a second conviction for drug distribution, defendant met the criteria for the imposition of a mandatory enhanced sentence pursuant to N.J.S.A. 2C:43-6(f). Nonetheless, defendant challenges his sentence as excessive.
We review the sentencing court's exercise of discretion with deference. Even if the appellate court would have reached a different result, it must affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). To be accorded such deference, the sentencing court is required to "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." Ibid.; State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008); see also N.J.S.A. 2C:43-2(e); R. 3:21-4(g).
Defendant does not challenge the trial court's findings regarding the applicability of aggravating factors N.J.S.A. 2C:44-1(a)(3) (risk of committing another offense); N.J.S.A. 2C:44-1(a)(2) (substantial likelihood of involvement in organized criminal activity); N.J.S.A. 2C:44-1(a)(6) (extent of prior criminal history); and N.J.S.A. 2C:44-1(a)(9) (need to deter). He contends that the court erred in failing to find the following mitigating factors: N.J.S.A. 2C:44-1(b)(1) (defendant's conduct did not cause or threaten serious harm); N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his conduct would cause or threaten serious harm); and N.J.S.A. 2C:44-1(b)(11) (excessive hardship to his dependents).
We are satisfied that the trial court did not err in failing to find these mitigating factors. Within a two month period, defendant was involved in seven separate cocaine sales. This conduct "can be readily perceived to constitute conduct which causes and threatens serious harm," State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994), and defendant cannot claim a mitigating factor based upon his contention that he did not contemplate such harm. The sole basis asserted for the application of N.J.S.A. 2C:44-1(b)(11) is that defendant supports five children. The loss of financial support for dependents caused by incarceration is common to all incarcerated defendants with dependents and does not, standing alone, constitute the excessive hardship that forms the basis for this mitigating factor.