July 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER GUILES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-04-0673.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 14, 2010
Before Judges Cuff and Payne.
Defendant, Christopher Guiles, appeals from his convictions for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), possession of CDS with the intent to distribute it, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), and third-degree possession of CDS with the intent to distribute it within 1000 feet of a school, N.J.S.A. 2C:35-7. Defendant appeals, as well, from his extended term sentence as a persistent offender of ten years with five years of parole ineligibility, imposed pursuant to N.J.S.A. 2C:44-3a.
The record demonstrates that, on February 11, 2007, during a planned surveillance, Officer Michael Burgess, a member of the Narcotics Unit of the Jersey City Police Department, observed defendant and Tony Carter engaged in two drug sales near a bodega on a corner in Jersey City, located within 1000 feet of a school. In each case, contact by the buyer was initially with Carter, but the hand-to-hand sale transaction was completed by defendant. In the first instance, the buyer was not located by the police following the sale. In the second, other police officers stationed as part of a perimeter unit followed the buyer, Eugene Chambers, who drove his truck to his residence, where Chambers parked. A bag of suspected heroin, marked "First Class," was found in plain view by the officers in a beverage cup located between the two front seats in the console of the truck driven by Chambers. Chambers was arrested.
Following the arrest of Chambers, defendant was arrested by Police Officer Peretti, and Officers Butrose and Lugo arrested Carter. A bag of suspected heroin marked "First Class" was removed from defendant's jacket pocket during the course of a search incident to arrest, along with cash in the amount of $233. Additionally, after defendant had been removed from the police's holding cell for transport to the jail, a stash of thirteen bags of "First-Class" heroin was discovered near where defendant had been seated in the cell.
Following a jury trial, at which defendant did not testify or offer witnesses, defendant was convicted of possession of heroin, possession with intent to distribute heroin, and possession with intent to distribute heroin within 1000 feet of a school. He was acquitted of charges of distribution to Chambers, distribution to Chambers within 1000 feet of a school, and conspiracy to distribute.
On appeal, defendant presents the following arguments:
THE STATE'S RELIANCE ON AN ABSENTEE WITNESS TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITION. [(Not Raised Below)]
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS, INCOMPLETE, AND PREJUDICIAL INSTRUCTION ON THE LAW OF INTENT TO DISTRIBUTE. (Not Raised Below)
A. THE TRIAL COURT FAILED TO DISTINGUISH BETWEEN A TRANSFER FROM ONE JOINT POSSESSOR TO ANOTHER (NO INTENT TO DISTRIBUTE) AND A TRANSFER TO A THIRD PARTY (INTENT TO DISTRIBUTE).
B. THE INSTRUCTION PERMITTED THE JURORS TO FIND THE DEFENDANT GUILTY OF INTENT TO DISTRIBUTE BASED ON AN ATTEMPTED DISTRIBUTION, BUT THE COURT FAILED TO INSTRUCT THE JURORS ON THE LAW OF ATTEMPT.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT. (Not Raised Below)
THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
THE SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACORS.
B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
Defendant first argues that he was denied his right of confrontation when the State offered as an expert with respect to the laboratory analysis of the drugs at issue the chemist who had peer reviewed the laboratory tests, not the person performing them. We reject this argument. N.J.S.A. 2C:35-19c permits the proffer in a criminal action of a properly executed laboratory certificate of analysis without the need to call the analyst as a witness at trial if notice of the intent to proffer the certificate and all reports relating to the analysis are provided to the defense at least twenty days before trial and no objection is made.
Defendant did not argue at trial and does not argue on appeal that the notice and demand procedures of N.J.S.A. 2C:35-19c, which were found to be constitutional in State v. Miller, 170 N.J. 417, 433-36 (2002), were improperly utilized by the State in this case, or that an objection to the admissibility of the laboratory certificate was raised. Thus, any objection to the use of the certificate was waived. See also Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 2541, 174 L. Ed. 2d 314, 331 (2009) (approving notice and demand statutes as a means for avoiding the Confrontation Clause requirements of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004)).
Moreover, at trial in the matter, defense counsel, in the course of an unrelated evidentiary objection, specifically stated that "I have a copy of the lab certificate, I'm not objecting to that," and counsel later raised no objection to the admission of the certificate into evidence.
Defendant argues additionally that his motion for a judgment of acquittal at the conclusion of the State's case should have been granted because the State failed to produce sufficient reliable, admissible evidence of his possession of heroin, not having adduced testimony from the chemist who analyzed the evidence taken from him. However, defendant's argument ignores the effect of N.J.S.A. 2C:35-19, which provides "a practical device 'for stipulating a written drug-testing report into evidence'" when, as here, no objection to the procedure is raised. Miller, supra, 170 N.J. at 431 (quoting State v. Roberson, 246 N.J. Super. 597, 605 (App. Div.), certif. dismissed, 126 N.J. 330 (1991)). There was thus no need for the chemist to appear in order for the State to satisfy its burden of proof. The State's evidence, when viewed by the standard of State v. Reyes, 50 N.J. 454, 459 (1967), was sufficient to send the case to the jury for its consideration.
Defendant next argues that the judge committed plain error in failing to instruct the jury regarding the relationship between joint possession and possession with the intent to distribute, in that he failed to inform them that a transfer or intent to transfer between joint possessors cannot be used as a factual predicate for a finding of distribution or an intent to distribute. According to defendant "[t]he prejudice was greatly exacerbated when the State proffered evidence that the defendant and Carter were involved in the distribution of CDS. . . . Without a proper instruction, the jurors could have inferred a transfer between joint possessors and used that factual predicate to convict defendant of an intent to distribute."
According to defendant, the fact that the judge instructed the jury on joint possession indicated that "the facts supported a finding of joint possession between the defendant and Carter." Defendant contends that the judge should have "expressly precluded the jurors from finding intent to distribute based solely on a finding of a transfer between joint possessors."
We note in this regard that none of the arguments regarding the charge that defendant now raises was raised before the trial court, as required by Rule 1:7-2. Further, the record demonstrates that defendant failed to request the charge he now seeks, as required by Rule 1:8-7. When counsel fails to object to a charge, a presumption arises that the instructions were adequate. State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div. 2003) (citing State v. Macon, 57 N.J. 325, 333 (1971)), certif. denied, 177 N.J. 572 (2003). "The absence of an objection to a charge is also indicative that trial counsel perceived no prejudice would result." Id. at 135 (citing State v. Wilbely, 63 N.J. 420, 422 (1973)). As a consequence, a reversal will be entered only if plain error is found. Ibid.; see also R. 2:10-2.
Plain error, in the context of the jury charge, is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." [Morais, supra, 359 N.J. Super. at 135 (quoting State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Jordan, 147 N.J. 409, 422 (1997))).]
In the present case, we do not find the plain error standard to have been met. Testimony at trial disclosed that defendant and Carter were working in tandem in their drug-selling enterprise. However, it was clear from the evidence that their purpose was drug distribution to others, not a mere transfer of drugs between the two of them. There is no possibility that the jury could have been misled by a purported incorrect or incomplete jury instruction so as to have found otherwise.
Additionally, we reject defendant's further argument that the instructions given by the judge permitted the jurors to find defendant guilty of an intent to distribute based on an attempted distribution, but he erroneously did not instruct the jury on the law of attempt. What the judge said, in instructing the jury on the third element of the crime of possession of CDS with the intent to distribute was:
In regard to the third element that the defendant had the intent to distribute the substance in evidence, distribute means to transfer actual, constructive or attempted, from one person to another of heroin. It is not necessary that the drugs be transferred in exchange for the payment or promise of money or anything of value.
With the exception of the inadvertent substitution of "to transfer" for "the transfer," the judge's instruction is exactly that which is set forth in the model jury instructions. While the evidence presented did not implicate the concepts of constructive or attempted transfer, we find no basis for concluding that the inclusion of this surplus language misled the jury in any fashion.
Defendant also faults the trial judge for his failure to incorporate the facts of the case into the charge, which he claims permitted juror confusion on whether defendant could be convicted of intending to distribute to Carter, an alleged joint possessor. Having already determined that the evidence at trial did not support a theory of distribution to Carter, we reject this argument. Moreover, we note that the law requires a trial judge to mold instructions to the facts of the case in protracted trials with conflicting testimony or when the charge is particularly complex. State v. Savage, 172 N.J. 374, 393-94 (2002); State v. Concepcion, 111 N.J. 373, 380-01 (1988). However, this case was a straightforward one, accurately, albeit briefly, summarized by the trial judge in the following statement introducing the six charges against defendant:
Now I'm going to go soon into each of the charges and explain the elements of each charge. You have - in this case you have heard evidence about three heroin exhibits; one bag allegedly found on Mr. Guiles, the bag allegedly found in Mr. Chamber's car and 13 other bags allegedly found at the police station. The State alleges these bags are evidence against Mr. Guiles. Mr. Guiles denies he was connected in any way with these exhibits.
In your deliberations you must be unanimous, that means everybody, all 12 must agree as to which bags, if any in evidence, were possessed, were possessed with intent to distribute or were conspired to distribute or distributed by Mr. Guiles.
In the circumstances, we do not regard it necessary for the judge to have said more.
On appeal, defendant also claims as plain error alleged prosecutorial misconduct during the course of closing argument. In particular, defendant objects to a statement by the prosecutor that addressed arguments by defense counsel that there were inconsistencies in the testimony of officers at trial. The allegedly objectionable statement was preceded with the following:
Counsel points out that while the officers' statements don't perfectly match, there are some inconsistencies. Well, let me ask you this - wouldn't it raise a red flag if the officers' testimonies all perfectly matched? . . .
Sometimes someone remembers the man was wearing - I don't know, maybe black boots with black fur and someone will say black boots with brown fur. Does that change the fact that one bag of heroin was found on Guiles with the log[o] First Class? Does that change the fact that Eugene Chambers was found with one bag of heroin marked First Class? These things, little details, ask yourself if they create a reasonable doubt. In this case it doesn't.
In the portion that defendant finds objectionable, the prosecutor argued:
The fact that officers couldn't remember who got to the [police's] base first? That should not be part of your deliberation. The fact that some officers couldn't answer who was strip searched first. Rivera couldn't remember who he did first; he said Guiles, I'm not sure, then maybe Chambers and then maybe Carter. But does the order matter? Does that give you reasonable doubt? I don't think so.
The prosecutor then stated:
It doesn't change the fact that they were held, they were strip searched and put in the holding cell.
Defendant also objects to a response by the prosecutor to defense counsel's factually unfounded argument that defendant was beaten by Officer Peretti and then taken into the nearby bodega where he was strip searched in a desperate attempt to find drugs on him. The prosecutor addressed this argument by summarizing the Officer's testimony, stating in a passage to which defendant has not objected:
Officer Peretti testified that he was the one who arrested Christopher Guiles. He said he saw the defendant and as part of procedure he was taken to the ground to be secured. And Officer . . . Peretti testified that he did a pat down of Guiles and found in right front jacket pocket one bag of heroin marked First Class, and he found that right away after doing an initial pat down.
Officer Peretti also testified that he took Christopher Guiles into the bodega to do a more thorough search. . . .
Then, in the passage to which defendant objects, the prosecutor stated:
Peretti testified that in no way was any item of clothing removed from Guiles, [no] strip search was ever done at the bodega. And think about it - why would an officer do a strip search out in public? That just kind of spells lawsuit, it would to me if - if you see a strip search being done on the street? I would be alarmed, and that's not protocol and that's what Officer Peretti testified to. He just merely did a more careful pat down.
The defendant argues that the two emphasized portions of the prosecutor's closing argument constituted impermissible statements of her personal belief as to defendant's guilt requiring reversal of defendant's conviction. We hold otherwise.
Prosecutors "are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82-83 (1999). In determining whether a prosecutor's comments provide grounds for a reversal of a conviction, we are directed to consider "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Id. at 83 (citing State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993)). "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Ibid. (citing State v. Ramseur, 106 N.J. 123, 323 (1987)). In this case, there was no objection, which signified that trial counsel was not concerned by the remarks. Moreover, as the result of the lack of objection, there was no opportunity for withdrawal and other cure. State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997).
Viewing the comments as a whole, they can fairly be interpreted only as a permissible response to arguments made by defense counsel in his own closing argument. State v. DiPaglia, 64 N.J. 288, 297 (1973). Although on the two occasions noted by defendant the prosecutor expressed her personal opinion, we disagree with defendant's characterization of those opinions as bearing impermissibly upon defendant's guilt. See State v. Thornton, 38 N.J. 380, 400 (1962), cert. denied, 374 U.S. 816, 83 S.Ct. 1710, 10 L.Ed. 2d 1039 (1963). Rather, they concerned wholly collateral matters and were thus harmless. Even if the comments were erroneous, "not every deviation from the legal prescripts governing prosecutorial conduct warrants reversal." State v. Williams, 113 N.J. 393, 452 (1988) (citing State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958)). And in this matter, we do not find a clear infraction that substantially prejudiced the defendant's fundamental right to have a jury fairly evaluate the merits of his defense. State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001).
As a final matter, we find no abuse of discretion or legal error in the judge's imposition of an extended ten-year sentence with five years of parole ineligibility upon defendant. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Kromphold, 162 N.J. 345, 355 (2000); State v. Roth, 95 N.J. 334, 363 (1984).
Our review of the record satisfies us that the judge's invocation of aggravating factors 3, 6 and 9, N.J.S.A. 2C:44-1a(3), (6) and (9), was amply supported by defendant's lengthy criminal history, including five indictable convictions,*fn1 as well as by evidence that he supported himself as a drug dealer with a drug habit who had made no effort to rehabilitate himself or to refrain from his illegal conduct. We reject defendant's argument that his conduct did not cause serious harm, because the heroin in his possession was confiscated, and that he did not contemplate that this conduct would cause serious harm, thereby rendering applicable the mitigating factors found in N.J.S.A. 2C:44-1b(1) and (2). The devastating effects of drug distribution cannot be so lightly dismissed.
As a final matter, we reject defendant's claim that the judge engaged in improper factfinding in imposing an extended term sentence. "[A] sentencing court does not engage in impermissible fact-finding when it assesses a prior record of convictions and determines that a defendant is statutorily eligible for a discretionary extended term as a persistent offender." Pierce, supra, 188 N.J. at 158.