August 13, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MALIK PALMS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-09-1288.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 19, 2010
Before Judges Payne and Miniman.
Defendant, Malik Palms, appeals from his conviction for third-degree possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10a(1), and possession of heroin with the intent to distribute it, N.J.S.A. 2C:35-5a(1) and -5b(3). He appeals as well from his extended term sentence on the conviction for possession with intent to distribute heroin of ten years in custody with a five-year parole disqualifier. See N.J.S.A. 2C:43-6f and N.J.S.A. 2C:43-7a(4). Defendant was acquitted of charges of possession with the intent to distribute heroin within 1,000 feet of a school, N.J.S.A. 2C:35-7, and possession with the intent to distribute heroin within 500 feet of public housing or a public park, N.J.S.A. 2C:35-7.1.
On appeal, defendant makes the following arguments:
DEFENDANT'S SUPPRESSION MOTION WAS DENIED IN ERROR BECAUSE THERE WAS LACK OF PROOF THE INFORMANT'S TIP WAS CREDIBLE AND THE TESTIMONY USED FOR CORROBORATION THROUGH SURVEILLANCE WAS INCONSISTENT.
DEFENDANT'S MOTION TO PRODUCE THE INFORMANT FOR CROSS EXAMINATION WAS DENIED IN ERROR WHICH VIOLATED DEFENDANT'S RIGHT TO CONFRONTATION.
COUNSEL'S MOTION TO SET ASIDE THE VERDICT WAS ERRONEOUSLY DENIED BECAUSE THE INCONSISTENT NATURE OF THE JURY'S VERDICT WAS A RESULT OF PASSION AND PARTIALITY AND WAS AGAINST THE WEIGHT OF EVIDENCE.
THE TRIAL COURT'S RULING THAT THE JERSEY CITY POLICE POLICY ON INFORMANTS WAS A COLLATERAL ISSUE AND COULD NOT BE USED TO CROSS EXAMINE STATE WITNESSES PREJUDICED THE DEFENSE IN ITS ABILITY TO PROPERLY CHALLENGE THE CREDIBILITY OF THE WITNESS.
REMAND FOR RECONSIDERATION ON SENTENCE IS REQUIRED BECAUSE DEFENSE COUNSEL FAILED TO MAKE THE COURT AWARE OF MITIGATING FACTORS THAT WOULD HAVE AFFECTED THE LENGTH OF DEFENDANT'S SENTENCE.
Prior to trial, defendant challenged the seizure of drugs found in his possession, claiming that the information relayed by a confidential informant was insufficient to establish probable cause for his arrest. A suppression hearing was therefore conducted. The evidence adduced at the suppression hearing demonstrated that, on May 11, 2005, Jersey City Police Officer Michael Burgess was working as a narcotics surveillance officer. In the course of his duties, Burgess asked a confidential informant with whom he had previously worked successfully if he was aware of an individual named "Shake." The informant stated that Shake made deliveries of narcotics, he drove a maroon four-door Ford Taurus, and he lived in a third-floor apartment at a specified address. The car was said to be parked on the street where Shake lived, not too far from Shake's apartment. Shake was described as a black male of stocky build who was approximately five feet ten inches in height. Burgess passed this information on to fellow officer Anthony Goodman, who went to the location while the informant ordered two bricks of heroin by telephone. The call was placed at 9:35 p.m. and occurred within Burgess's hearing. Once the call was complete, the informant forecast that, in a few minutes, Shake would be "on his way." The informant was then released, and Goodman was advised to be on the lookout for the target. Burgess, along with two other officers, set up a perimeter unit.
Soon thereafter, Goodman informed Burgess that a black male with a stocky build was walking down the street, west to east, toward Shake's apartment. Thereafter Goodman advised that the individual was leaving Shake's apartment building and walking west toward the Ford Taurus. As the target entered the Ford and started the engine, the officers converged, boxing in the vehicle. Its occupant was subsequently identified as defendant. Defendant was ordered to turn off the car and exit the vehicle. He was then placed under arrest. Two bricks of heroin were found in his rear left pocket, and $307 in cash was seized.
On cross-examination, Burgess stated that he had known the confidential informant for two and one-half years and that he had received information from him on nine occasions. All nine resulted in arrests, and the majority of the individuals arrested had pled guilty. On one occasion, the informant stated that an individual was going to be dropping off a substantial amount of narcotics with another individual. Both were arrested, and the narcotics were seized. Trial was pending.
Officer Goodman also testified at the hearing. Goodman testified that he was informed in a call from Burgess to look out for a black male with medium complexion, a stocky build and short hair, who was about five foot ten inches in height and was wearing a blue baseball hat. The location of the individual's apartment was also given, and Burgess stated that he made his deliveries from apartment six. Goodman was also told that the individual drove a maroon Ford Taurus, which he used for narcotics deliveries. The vehicle's license plate number was given.
Goodman testified that he went to the location and set up surveillance from a site where he could see both the apartment and the car. Approximately five minutes after he had been informed by Burgess that the order had been placed, he observed a black male walking down the street who fit the description given of Shake. The individual then entered the building in which Shake's apartment was allegedly located, utilizing a key, and soon thereafter, a light went on in a third-floor room. The individual then exited the building and walked in the direction of the Ford. The person had white objects in his left hand that were approximately the size of a deck of cards. Goodman recognized the objects by their shape and packaging as bricks of heroin. As the individual approached the Ford, he placed the bricks in his back left pocket. He then entered the car and started the motor. At this point, Goodman radioed the perimeter patrol to move in and stop the individual.
In an oral decision rendered after the hearing's conclusion, the motion judge denied defendant's suppression motion. In doing so, the judge ruled that the State had demonstrated that the informant was reliable. Moreover, he found that the informant's tip, along with Officer Goodman's observations and his identification of the heroin in plain view, provided probable cause to lawfully stop, arrest and search defendant without a warrant. In this regard, the judge relied particularly on the Court's decisions in State v. Smith, 155 N.J. 83, cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed. 2d 480 (1998), and State v. Birkenmeier, 185 N.J. 552 (2006).
Defendant also moved for disclosure of the identity of the informant. However, the motion judge found that the informant was not an essential witness because he was not an active participant in the criminal activity. In this regard, the judge relied on State v. Oliver, 50 N.J. 39 (1967), and State v. Infante, 116 N.J. Super. 252 (App. Div. 1971).
Trial was conducted before a different judge. Officer Goodman was called as a witness for the State; Officer Burgess was called as a witness for the defense. Goodman's testimony concerning the surveillance and arrest was basically the same as that which he gave at the suppression hearing, adding only that he observed defendant's actions from a van utilizing binoculars.
Goodman was also questioned as to whether defendant's residence and car were located within 500 feet of a public park and 1,000 feet of a school. Through use of a school zone map it was established that both the residence and the car were within 1,000 feet of P.S. 15. It was less clear from the transcript whether the locations were within 500 feet of Muhammad Ali Park.
On cross-examination, the following exchange occurred regarding the location of defendant's apartment and car in relation to Muhammad Ali Park:
Q: The question that I asked you is that the dark areas that are noted on this map are the public parks, correct?
Q: And the circles which surround them are the areas that are within 500 feet of a public park.
Q: So where Mr. Palms was living... is 500 feet of a public park.
Q: Does that mean that [the car's location] would be 500 feet of a public park?
A: Not necessarily. I would say it falls real close, but it looks like it is... within there.
With respect to schools, defense counsel showed Goodman a school zone map and elicited his concurrence in her statement that school zones cover "most of Jersey City." However, she did not specifically establish that either defendant's apartment or car was located in a school zone.
When Officer Burgess took the stand, he was asked by defense counsel about the Attorney General's policy regarding the use of confidential informants, incorporated by a former Chief of the Jersey City Police Department into a standard operating procedure. The purpose of this line of questioning was to establish that standard operating procedures had not been followed by the police when they utilized the confidential informant in this case, thereby impeaching the credibility of the police witnesses. A similar line of inquiry had been utilized by defense counsel in her cross-examination of Goodman, resulting in Goodman's concession that the police had not followed the required procedures when utilizing the informant in this case. After considerable questioning of Burgess on this subject and after a lunch break, the judge precluded further inquiry into this area. He ruled:
During... the break, I had an opportunity over lunch to think about the nature of the testimony that was going in, and I had all along felt that the issue of whether or not the procedures for a C.I. by the Jersey City Police Department were irrelevant.
I do find that it's a collateral issue, it is not relevant and it does not go to the credibility of the facts that were presented during the State's case, which is whether or not the defendant was seen... with drugs and possessed those drugs.
Anything that they may or may not have done involving procedures with a confidential informant are not relevant to this issue. So I find it's a collateral issue, and I am limiting... further testimony on that issue.
After further argument, the judge ruled further:
[F]rom the testimony I heard from the officer who's presently on the stand was that he now knows about the policy but at the time of the incident did not know of the policy.
So we've gotten in front of the jury and been allowed to go into the jury the fact that there is a policy and the fact that these officers did not follow it - this officer did not even know of the policy.
So that is in front of the jury but I do find that... it is a collateral issue, it is irrelevant to the facts as to whether or not the defendant had heroin or didn't have heroin on the date of May 115h 2005.
So, therefore, I'm not going to allow any further testimony on that issue.
After both parties had rested, on Friday October 27, 2006, the jury was charged, and it retired to deliberate at approximately 10:30 a.m. At 2:30, the jury asked for a clarification of the meaning of "dispense," and at 3:47 the judge asked the jury if arrangements would have to be made for their return on Monday. At 4:00 a verdict was reached. A motion for a new trial was denied.
On appeal, defendant argues that the warrantless search of his person was conducted without probable cause for doing so, and that the informant's tip and subsequent surveillance by Officer Goodman were insufficient to establish probable cause. In that regard, defendant argues that the informant's information was never proven to be reliable, defense counsel was denied the opportunity to determine reliability through a deposition of the informant, and his tip was not sufficiently corroborated. We reject defendant's arguments.
The Supreme Court has held that information related by informants may constitute a basis for probable cause "'so long as a substantial basis for crediting the hearsay is presented.'" Smith, supra, 155 N.J. at 92 (quoting State v. Novembrino, 105 N.J. 95, 111 (1987)). "[T]he reliability of an informant's tip must be analyzed under the totality of the circumstances." Ibid. (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed. 2d 527, 548 (1983) and Novembrino, supra, 105 N.J. at 122).
Two factors that are generally considered to be relevant in determining reliability are the informant's veracity and basis of knowledge. Id. at 93 (citing Gates, supra, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed. 2d at 548). However, compensation for a deficiency in one may be provided by a strong showing as to the other. Ibid. (citing Gates, supra, 462 U.S. at 233, 103 S.Ct. at 2329, 76 L.Ed. 2d at 545).
Past instances of reliability may establish an informant's veracity. Ibid. (citing State v. Ebron, 61 N.J. 207, 212-13 (1972)); see also Novembrino, supra, 105 N.J. at 123. In the present matter, Officer Burgess indicated that he had successfully used the confidential informant on nine prior occasions, obtaining arrests in each. He testified further that in the majority of cases, pleas of guilty had been entered. One case, involving what Burgess characterized as a large quantity of drugs, awaited trial at the time that Burgess gave his testimony in this matter.
The Smith Court observed that an informant could demonstrate the basis of his knowledge by relating precisely how the informant came to know the facts at issue. Smith, supra, 155 N.J. at 94. That did not occur here. However, a detailed description of the accused's criminal activity and a prediction of future events can also establish that the informant obtained his information directly as a witness or from a reliable source. Id. at 94-95; see also Novembrino, supra, 105 N.J. at 113; Draper v. United States, 358 U.S. 307, 309, 79 S.Ct. 329, 331, 3 L.Ed. 2d 327, 329-30 (1959). Moreover, "[b]ecause the information contained in an informant's tip is hearsay and must be invested with trustworthiness to be considered as probative evidence, corroboration is an essential part of the determination of probable cause." Smith, supra, 155 N.J. at 95.
In the present case, the confidential informant explained to Burgess the nature of defendant's drug-related activities, and he gave an accurate description of his physical appearance, a partial description of what defendant was wearing at the time, his address and apartment number, and a full description of defendant's car, including its license plate number. Thereafter, in the presence of Burgess, the informant called a number, and he placed an order for drugs. The informant then predicted that within a short period of time, defendant would leave his apartment with the ordered drugs and proceed in his car to deliver them.
In corroboration of the informant's statement, Officer Goodman observed a car that fit the informant's description parked near the location given for defendant's apartment. Goodman then observed that a person matching the description given by the informant entered the proper apartment building, utilizing a key; that a light was turned on in an apartment on the floor specified by the informant; and that shortly thereafter, the person exited the apartment building holding what the officer described at the suppression hearing as bricks of heroin. Goodman then observed the person walk to the car that had been identified, place the heroin in his pocket, enter the car, and start the engine. We find that evidence sufficient to establish the basis of the informant's knowledge and to corroborate its validity under the standards established in Smith and the precedent upon which that decision relies. We recognize that Goodman stated in his police report that he witnessed defendant leaving his building with an "object" in his hand, whereas he testified at the suppression hearing that the object was a brick of heroin. We find that discrepancy, while undercutting to some extent the weight of Goodman's testimony that he witnessed defendant to be holding heroin, to be insufficient to establish a lack of probable cause in this case.
We likewise reject defendant's argument that the identity of the confidential informant should have been disclosed because he participated in the criminal conduct at issue by arranging the purchase of narcotics.
N.J.S.A. 2A:84A-28, codified at N.J.R.E. 516, provides:
A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that
(a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.
It is self-evident that preserving the anonymity of informers plays "'an indispensable role in police work' and that, in consequence, the privilege against disclosing the identity of the informant 'has long been considered essential to effective enforcement of the criminal code.'" State v. Williams, 356 N.J. Super. 599, 603 (App. Div. 2003) (quoting State v. Milligan, 71 N.J. 373, 381 (1976)). Nonetheless,
[t]he informant's privilege is not absolute.
A court must "balance the public interest in protecting the flow of information against the individual's right to prepare his defense and contest the State's charges."
State v. Salley, 264 N.J. Super. , 98 [(App. Div. 1993)] (quoting Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628, 1 L.Ed. 2d 639, 646 (1957)). Our Supreme Court has outlined instances in which the privilege is inapplicable: where the informant's identity is already known to those who might pose a risk of retaliation against the informant; where the identity of the informant is relevant and helpful to the defense or is essential to a fair determination of the case; where the informant is an essential witness to an issue that is basic to the case; where the informant actively participated in the crime for which defendant is charged; where entrapment is a plausible defense; and where disclosure is mandated by fundamental principles of fairness to the accused.
State v. Milligan, 71 N.J. , 383 [(1976)]. [Williams, supra, 356 N.J. Super. at 604.]
In the present case, the informant participated to a limited extent in the criminal activity by placing a drug order over the telephone. He had no face-to-face contact with defendant, and he did not participate in the surveillance that his call engendered or in defendant's arrest. We therefore conclude that the informant's testimony was unnecessary for a fair determination of the issues in the case. Oliver, supra, 50 N.J. at 42. We agree with the State that, in the circumstances presented, "the possibility that the informer's testimony might controvert" the version of events provided by Burgess and Goodman was "too speculative and remote" to require an identification of that informant. Milligan, supra, 71 N.J. at 392.
Defendant next argues that "a rational fact finder could not have found the defendant guilty of possession and possession with intent and not guilty of being within the prerequisite distance of a public housing and a school zone." Defendant argues further that the jury was "rushed into making a decision" and rendered a compromise verdict that was "blatantly against the weight of the evidence." As a consequence, defendant seeks a new trial. Defendant further argues:
Defense counsel was prepared to offer by way of witness proof that... at least one member of the jury was determined to render a verdict by the end of the day regardless of outcome. Counsel stated to the judge that a member of the defendant's family overheard a jury member say there was no way he was coming back another day after the judge asked if preparations should be made for Monday. In addition, counsel was prepared to put the defendant on the stand to corroborate the same statement. The defendant was denied the opportunity to do so.
In considering arguably inconsistent verdicts, our Supreme Court, in State v. Banko, 182 N.J. 44, 53-55 (2004), has adopted the standards set forth in Dunn v. United States, 284 U.S. 390, 52 S.Ct.. 189, 76 L.Ed. 356 (1932) and United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed. 2d 461 (1984). "Such verdicts are permitted 'normally... "so long as the evidence was sufficient to establish guilt on the substantive offense beyond a reasonable doubt."'" Banko, supra, 182 N.J. at 55 (quoting State v. Petties, 139 N.J. 310, 319 (1995) (quoting State v. Kamienski, 254 N.J. Super. 75, 95 (App. Div.), certif. denied, 130 N.J. 18 (1992), rev'd on other grounds, 332 Fed. Appx. 740 (3d Cir. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1168, 175 L.Ed. 2d 927 (2010))).
Defendant argued in his motion for a new trial and on appeal that the jury's verdict was against the weight of the evidence. Following our review of the record, we disagree, determining that the trial judge's decision not to order a new trial did not constitute a miscarriage of justice under the law.
R. 2:10-1; Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). The evidence at trial established that defendant was arrested with a substantial amount of heroin in his pocket while responding to a request to purchase the substance. The evidence could not have been clearer. The fact that the jury's verdict was potentially inconsistent is thus of no consequence. Banko, supra, 182 N.J. 53.
Moreover, we are not persuaded that the judge placed any pressure on the jury to reach a verdict in the case. In his query to the jury regarding their deliberations, the judge stated:
[L]adies and gentlemen, I'm sorry to disturb you, but my staff and I need to make arrangements for Monday and we just wanted to ask if you thought that you would need to come back on Monday or if you thought you'd be able to reach a verdict today, and that's - what I'm going to do is I'm going to pose the question to you, I'm going to let you back in the jury room. If you think you're not going to be able to reach a verdict in a reasonable period of time, and you think you may have to come back on Monday, if you'd just send me out a note so we can start making preparations for Monday.
We find nothing coercive in this query, and liken it to the judge's inquiry in State v. Barasch, 372 N.J. Super. 355, 360-63 (App. Div. 2004), which we found to be perfectly proper.
We find no significance in the fact that one or more of the jurors may have wished to conclude deliberations on Friday, rather than return on Monday. The case was a straightforward one, the time spent in deliberations was ample, additional time for further deliberation was available on Friday, and no deadline for the conclusion of deliberations that day was set.
Defendant next challenges the trial judge's determination to limit cross-examination on whether the police followed standard operating procedures in the use of a confidential informant in this case. We decline to address that argument at length in a written opinion, finding it to lack merit. R. 2:11-3(e)(2). As the judge stated and the record confirms, defense counsel placed before the jury the fact that a policy regarding the use of informants was in existence at the time of the events at issue, the testifying officers were unaware of the policy on the day of defendant's arrest, and they did not follow that policy. The judge's determination to terminate cross-examination on the issue clearly did not constitute an abuse of discretion. N.J.R.E. 403; State v. Garfole, 76 N.J. 445, 456-57 (1978).
As a final matter, defendant argues that counsel should have offered mitigating factors 1 (that his conduct did not cause or threaten serious harm) and 2 (that he did not contemplate that his conduct would cause or threaten serious harm) in connection with his sentencing, and that as a consequence, the matter should be remanded for resentencing. See N.J.S.A. 2C:44-1b(1) and (2).*fn1 We reject this argument, determining that those mitigating factors are wholly inapplicable to a case involving possession with the intent to distribute heroin in the quantity that was found on defendant. In reaching this conclusion, we distinguish State v. Cullen, 351 N.J. Super. 505, 511 (App. Div. 2002), which suggested the applicability of those factors in a drug case. However, that case involved possession of a single baggie containing.33 grams of cocaine. It is in no way comparable to the present circumstance.
We also reject any argument that defendant's sentence was excessive. His criminal case history reflects that, prior to this crime, defendant had been arrested on eleven occasions, resulting in one disorderly persons conviction and four indictable convictions. Three of the prior indictable convictions were for drug offenses; one was for aggravated assault. As a consequence, defendant qualified for extended term sentencing under N.J.S.A. 2C:43-6f (previous conviction for possession with the intent to distribute a controlled dangerous substance) and N.J.S.A. 2C:43-7a(4) (persistent offender), both of which were cited by the State in moving for an extended term sentence. As the result of the State's motion pursuant to N.J.S.A. 2C:43-6f, the judge was required to impose such a term.
Although the sentence imposed by the judge was at the top of the sentencing range, we are satisfied that the aggravating factors upon which the judge relied - factor 3 (the risk of another offense), factor 6 (the extent of defendant's prior record), and factor 9 (the need for deterrence) - were appropriately cited. We are further satisfied that the sentence was not manifestly excessive or unduly punitive, and that the judge did not abuse his discretion in imposing it. State v. O'Donnell, 117 N.J. 210, 219-20 (1989); State v. Ghertler, 114 N.J. 383, 389-93 (1989); State v. Roth, 95 N.J. 334,356-66 (1984).