August 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAYMOND JENKINS A/K/A GARY ROBINSON A/K/A GARY WADU ROBINSON A/K/A RAYMOND E. JENKINS A/K/A RAYMOND EUGENE JENKINS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-04-0300.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2010
Before Judges Stern, Graves and J.N. Harris.
Following a jury trial, defendant was acquitted of third- degree distribution of a controlled dangerous substance (heroin) in a school zone (count two), but he was found guilty of third- degree distribution of heroin in violation of N.J.S.A. 2C:35- 5(a)(1) and (b)(3) (count one), and second-degree distribution of heroin within 500 feet of a public housing facility in violation of N.J.S.A. 2C:35-7.1 (count three). At sentencing on January 25, 2008, the court noted that defendant had twelve indictable convictions, which resulted in two probationary terms, one county jail sentence, and nine New Jersey State Prison terms. After merging count one into count three, the court sentenced defendant to a ten-year term with five years of parole ineligibility to be served concurrently with the sentence he was already serving. The court also imposed appropriate fines, penalties, and assessments. Defendant appeals and we affirm.
The State's proofs were relatively straightforward. In 2006, Detective Kevin O'Brien (O'Brien) of the Plainfield Police Department and Detective Kevin Connell (Connell) of the Newark Police Department, were working together in an undercover operation to purchase controlled dangerous substances as "part of a State Police Task Force investigation." O'Brien testified that Connell worked as an undercover officer, "[m]aking undercover buys." O'Brien's role, as a backup officer, was to monitor Connell's activities "[t]o keep him safe."
About a week after Connell met defendant, Connell telephoned him on July 8, 2006, and "expressed an interest in wanting to purchase narcotics, specifically heroin." Defendant gave Connell a time and location where they could meet in the City of Plainfield. When Connell drove to the designated location, he saw defendant standing on the sidewalk, so Connell pulled over and defendant got into the car.
At that point, defendant told Connell to "drive around the block." As Connell began driving, he handed defendant fifty dollars and told him he wanted "[f]ive." Defendant then handed Connell five glassine folds of heroin.*fn1
O'Brien testified he observed defendant "walk to and enter" Connell's undercover vehicle and also saw defendant exit the vehicle. According to O'Brien, as defendant walked away, he was "looking over his shoulder and scanning the area as if he was nervous, looking for police presence."
Thereafter, O'Brien went to police headquarters, retrieved a photograph of defendant, and met with Connell at a predetermined location. Upon viewing the photograph, Connell identified the person in it as the person who had just sold him heroin. O'Brien and Connell both initialed the back of the photograph, and both identified defendant in court when they testified. O'Brien prepared a criminal complaint against defendant approximately a week after the purchase, but the complaint was not signed until January 2, 2007. O'Brien explained that defendant's arrest was deliberately delayed because it would have compromised the safety of the undercover officer and the investigation if "people on the street [knew] undercover officers were out purchasing narcotics and people were getting arrested."
O'Brien and Connell were the only witnesses to testify at trial. Defendant did not testify or call any witnesses. In his summation, defendant's attorney stressed that the "ultimate issue" was "the identity of the person who did sell heroin to Detective Connell." On the other hand, the prosecutor told the jury "there is good evidence in this case, evidence beyond a reasonable doubt based on the testimony of these cops that the defendant is guilty."
There were no objections to the jury charge, which included the following instructions regarding defendant's photograph:
There is in evidence a photograph used to identify the defendant in this case. With reference to the photograph submitted in evidence, you will notice that it appears to have been taken by a law enforcement agency or some other government agency. You are not to consider the fact that the agency obtained a photograph of the defendant as prejudicing him in any way. The photograph is not evidence that the defendant has ever been arrested or convicted of any crime.
Such [a] photograph comes into the hands of law enforcement from a variety of sources including, but not limited to[,] driver's license applications, passports, ABC identification cards, various forms of government employment, private employment requiring state regulation including, but not limited to, casino license applications, security guard applications, etcetera, or from a variety of other sources totally unconnected with criminal activity.
Mr. Jenkins as part of his general denial of guilt contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that he is the person who committed the alleged offense. The burden of proving the identity of a person who committed the crime is upon the State. For you to find this defendant guilty, the State must prove beyond a reasonable doubt that this defendant is the person who committed the crime.
The jury commenced its deliberations at 11:40 a.m. on November 29, 2007, and it reached a verdict at 1:33 p.m. the same day. On appeal, defendant raises the following issues:
THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, 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. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS FROM ABSENTEE WITNESSES. (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. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF OTHER-CRIME EVIDENCE WITHOUT A PROPER LIMITING INSTRUCTION. (Not Raised Below)
A. Other-crime evidence was improperly admitted.
B. The trial court failed to give a proper limiting instruction.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S FACT WITNESS RENDERED EXPERT WITNESS OPINIONS. (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. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE. (Not Raised Below)
THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LAW OF PRIOR INCONSISTENT STATEMENTS AND OMISSIONS. (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. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY AND UNFAIRLY PREJUDICIAL EVIDENCE THAT HAD NO PROBATIVE VALUE. (Not Raised Below)
THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE (DISTRIBUTION OF CDS WITHIN 500 FEET OF A PUBLIC HOUSING PROJECT) BEYOND A REASONABLE DOUBT. (Partially Raised Below)
THE SENTENCE IS EXCESSIVE.
A. The Court Made Findings of Fact to Enhance the Sentence.
B. The Trial Court Improperly Balanced the Aggravating and Mitigating Circumstances.
Based on our examination of the record, the briefs, and the applicable law, we are convinced that defendant received a fair trial and a reasonable sentence, and the issues presented do not warrant extended discussion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
In Point III, defendant contends it was plain error for O'Brien to improperly render an expert opinion regarding the packaging of the heroin sold to Connell. Specifically, defendant challenges O'Brien's testimony that the glassine folds he received from Connell, which were marked into evidence as Exhibit S-1, were packaged for street level distribution.
O'Brien's testimony consisted of the following:
Q: Now, could you open S-1, please? You can dump it out. What is in S-1?
A: Five glassine envelopes or paper folds labeled "Red Monkey" with a picture of a monkey on it.
Q: Okay. And based on your experience what are those glassine folds?
A: They contain at the time what was suspected to be heroin.
Q: Is that the way that heroin is frequently packaged?
Q: For street-level distribution?
A: Yes, sir.
Q: Are those five packets in the same condition as they were when you received them from Detective Connell?
A: All except one.
Q: What one is not consistent?
A: One is wrapped with a blue piece of tape.
Q: And what is on that blue piece of tape?
A: It is the laboratory number.
Q: And are you familiar with blue tape on those kinds of envelopes?
A: Yes, sir.
Q: How . . . does that blue tape end up on the envelope?
A: It shows that this envelope was opened for the testing and then it's resealed with a piece of tape and the lab number is put on it along with the initials of the person who did the testing.
Q: Okay. All right. If you could put those back in S-1, please? Thank you.
The State concedes that it "should have sought to qualify Detective O'Brien as an expert before he testified as to how heroin could be packaged for street level distribution."
Nevertheless, the State contends the error was harmless because O'Brien testified he was assigned to the Narcotics Bureau for five years and participated in over a thousand narcotics investigations. Thus, O'Brien had sufficient training and experience to have qualified as an expert with regard to drug transactions even though he was not formally qualified as an expert. See State v. Kittrell, 279 N.J. Super. 225, 236 (App. Div. 1995) ("Because enough evidence was presented to qualify [the officer] as an expert in [drug-related investigations], the trial court's error in failing to specifically qualify him as an expert was harmless.").
In addition, because defendant was charged with distribution rather than possession with intent to distribute, any potential prejudice to defendant was negligible. See State v. Walker, 385 N.J. Super. 388, 408 (App. Div.), certif. denied, 187 N.J. 83 (2006) (noting that expert testimony is "particularly appropriate when the defendant did not personally hold the drugs, did not personally give the drugs to the officer, and did not accept payment from the officer"). Under the circumstances in this case, however, we agree the error was not "clearly capable of producing an unjust result." R. 2:10-2.
In Point IV, defendant argues O'Brien's query to Connell, "Is this the guy?" while showing him a single photograph of defendant shortly after the drug purchase, was unduly suggestive and unreliable. Because defendant did not object to the identification of his photograph at trial, we must consider his present claim under the plain-error standard. See State v. Afanador, 151 N.J. 41, 54 (1997) ("A reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result. R. 2:10-2.").
When determining the admissibility of an out-of-court identification procedure, "a court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 232 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. 2d 1247, 1253 (1968)).
When deciding the first issue----whether the pretrial identification was impermissibly suggestive----a court must consider "the totality of the circumstances of the identification." State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed. 2d 602 (1973). In this case, we are satisfied that the review of a single photograph by Connell was not unduly suggestive because this case did not involve an identification in the traditional sense. Connell testified he knew defendant and telephoned him in an effort to purchase drugs. Thereafter, the parties met for that purpose on July 8, 2006. Thus, defendant was a target of the undercover narcotics investigation, and Connell merely confirmed defendant's identification when he viewed defendant's photograph. Under these circumstances, there was no impermissibly suggestive police conduct and no plain error.
Defendant also claims his sentence is excessive. We do not agree. As a reviewing court, we may modify a sentence when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience. State v. Roth, 95 N.J. 334, 363-65 (1984). This is not such a case. See also State v. Bieniek, 200 N.J. 601, 612 (2010) (instructing appellate courts to refrain from "second-guessing" the discretionary assessments of sentencing judges).