October 29, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAMIELLE TONDEE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-04-0684.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2010
Before Judges Grall and LeWinn.
Defendant Damielle Tondee appeals from a final judgment of conviction and sentence. Although defendant was one of eleven, including Latoya Simmons and Porsche Speaks, charged in the indictment, he was tried separately. A jury found him guilty of conspiracy to dispense or distribute a controlled dangerous substance (CDS) in the second and third degrees, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5, and employing a juvenile, K.G., to distribute or dispense CDS in the second degree, N.J.S.A. 2C:35-6.
Due to his prior convictions, defendant was subject to a mandatory extended-term sentence and period of parole ineligibility for employing a juvenile. N.J.S.A. 2C:43-6f. For that crime, the trial judge sentenced defendant to a fifteen-year term, seven and one-half years to be served without possibility of parole, and to concurrent terms of seven and four years, respectively, for second- and third-degree conspiracy. Those concurrent sentences are consecutive to defendant's fifteen-year term. Appropriate fines, penalties, assessments and fees were imposed.*fn1
On appeal, defendant argues:
I. THE DEFENDANT'S RIGHT OF CONFRONTATION WAS VIOLATED WHEN THE COURT PERMITTED DEFENSE COUNSEL TO ELICIT INFORMATION ABOUT A CONFIDENTIAL INFORMER. (Partially Raised Below).
Nature Of The Error
Impact On The Jury's Verdict. Defense Counsel's Conduct In Bringing about The Error
II. OTHER CRIME EVIDENCE, SPECIFICALLY TESTIMONY OF DOMESTIC VIOLENCE BETWEEN SPEAKS AND THE DEFENDANT, WAS IMPROPERLY ADMITTED AND HIGHLY PREJUDICIAL. (Not Raised Below).
III. THE TRIAL COURT ERRED IN DENYING A MOTION FOR JUDGMENT OF ACQUITTAL ON THE EMPLOYING A JUVENILE OFFENSE.
IV. THE COURT ERRED IN FRACTIONALIZING THE CONSPIRACY COUNT INTO TWO SEPARATE OFFENSES, FAILING TO MERGE THE COUNTS AT SENTENCING, AND THEN IMPOSING A CONSECUTIVE TERM FOR THE SECOND-DEGREE CONSPIRACY. (Not Raised Below).
A. Merger Of Conspiracy Convictions.
B. The Second-Degree Conspiracy Count Must Run Concurrent.
The State's evidence consisted of the testimony of one indicted co-conspirator and the officers and investigators who worked with the Hudson County Prosecutor's Office in September 2006 on this investigation along with the evidence they gathered. On September 26, search and arrest warrants were executed at three locations in Jersey City. The searches revealed drugs, including 78.97 grams of cocaine and 1.875 grams of heroin, paraphernalia used in the packaging of drugs for distribution, guns, ammunition and cash.
Prior to obtaining the search and arrest warrants, the investigators conducted surveillance and intercepted the defendant's telephone calls. Lieutenant Keith Stith, the supervisor of this investigation and who was qualified by the trial court to give expert testimony on the subject, explained the drug-trade lingo used by the participants. The testifying co-conspirator and the mother of defendant's child, Porsche Speaks, also explained what she understood defendant to mean in their several conversations about drugs.
On September 6, defendant directed K.G. to bring "a whole one with ten in it, smack, I mean fish." K.G. was born November 1990 and defendant was born May 1983. Thus, at the time of the offenses, K.G. was fifteen and defendant was twenty-three. "Fish" is a term used for heroin, and "ten in it" is a reference to ten-pack bundle. Defendant told K.G. where to deliver and store the drugs. On another occasion, defendant asked K.G. where he was storing the drugs and demanded the code to access them. In a separate conversation, defendant asked K.G. if he was "done," and K.G. explained that he had "three bottles [of cocaine] and a bundle [of heroin] left." Later, defendant demanded to know where the money was, told K.G. he owed him "five hundred" and said he was coming to get him. In another conversation, defendant directed K.G. to take a specified amount of drugs to a specific place and sell them.
On September 15, officers conducting surveillance at 1036 Garfield Avenue saw defendant leave that address at 4:20 p.m. He was driving a black Pontiac, which was registered to Latoya Simmons at that address. He went to 96 Van Cleef Street, the address of K.G.'s apartment, and he and K.G. left with a brown paper bag. When they returned to 1036 Garfield Avenue, K.G. took the bag inside.
A search of K.G.'s apartment yielded a locked box that contained numerous empty glass vials with blue caps, a small glass vial with a red cap containing white powder, eleven glassine envelopes with faded red markings and four packages with numerous glassine envelopes rubber banded together. A brown residue was discovered in his bedroom.
The apartment at 1036 Garfield Avenue was also searched. Neither defendant nor Latoya Simmons was there when the police arrived. But Morris Tondee, defendant's brother, was and a phone bill and identification card issued to defendant at that address were found. Simmons arrived during the search and said the apartment was hers. The investigators recovered cocaine, a bag containing glass vials and plastic tops, a digital scale and $8340. Simmons and Morris Tondee were arrested.
Defendant's conversations with Speaks were also intercepted. She lived in a single-family home at 150 Bayview Avenue with several members of her family. Her room was in the basement. In searching her room, the investigators found a shopping bag with glass vials, red caps and white powder; a bag of plain rice; fifty packs of heroin stamped "Stop"; a shoe box containing vials with white caps; a bag of empty glass vials; an electronic scale; and various documents in defendant's name, including a student identification card.
At trial, Speaks explained her relationship with defendant. Defendant was not living with her but stayed with her on occasion, and the drugs in her room belonged to him. She held the drugs for him, and he called her when he wanted to bring drugs there or pick them up. He usually came himself but sometimes sent someone else.
Speaks also explained certain terms used in her intercepted conversations with defendant. When defendant said he was "dirty," he meant he had drugs and wanted to keep them at her house, and when he told her to "bring [him] one of those things to the door right now," he meant drugs. By telling her that someone was coming to pick up "the box things," he referred to a brick of heroin wrapped in magazine paper. He used the terms "fish" and "chicken" to refer, respectively, to bricks of heroin and vials of cocaine. He asked her for a bag of rice, because, as she later came to understand, rice was used to store the drugs. Stith, testifying as an expert, confirmed the common use of rice in storing drugs and the meanings assigned to "fish" and "chicken" by those in the drug trade. According to Speaks, she was not paid by defendant or any person he sent to her home. She did what defendant asked because he "made" her.
Prior to testifying at defendant's trial, Speaks pled guilty pursuant to a plea agreement. The State promised to recommend a five-year sentence subject to an eighteen-month term of parole ineligibility and she agreed to testify against defendant.
Defendant chose not to testify at his trial and did not call any witnesses.
Defendant argues that his right of confrontation was violated when his attorney elicited testimony about an informant who did not testify at trial. The basis for this claim is Stith's testimony on cross-examination.
The cross-examination to which defendant points follows:
Q: Okay. Now, [the wiretap] all came about from your meeting with a confidential informant; correct?
Q: Okay. And what is an informant? Is that someone often who is facing criminal charges and wants to help themselves out?
A: Yes, sir.
Q: Okay. And based on the information they give you, they'll basically help themselves and keep them out of jail perhaps?
[PROSECUTOR]: Judge, may we approach sidebar for a moment?
THE COURT: Why?
[PROSECUTOR]: I have an - I have a problem about this line of questioning, Judge.
THE COURT: Object to it.
[PROSECUTOR]: I object to, specifically, getting into the confidential informant.
THE COURT: I haven't heard any other questions to a specific informant.
[DEFENSE COUNSEL]: I'm not going to get into this specifically.
THE COURT: All right. It's overruled as of now, subject to my hearing further questions.
BY [DEFENSE COUNSEL]:
Q: So, in general, an informant is somebody, like I said, that needs to help themselves out? They need to give you information, and based on that information they'll get a favor from the Prosecutor's Office? They'll keep themselves out of custody, or something like that?
A: They would get some consideration, yes, sir.
Q: Okay. And sometimes that consideration would be, they were facing charges, but you don't have to go to jail based on the information you gave us?
A: Yes, sir.
Q: Now, the informant who's - you were given a phone number from this informant; correct?
A: Yes, sir.
Q: And that number was utilized by your office? Initially? Before you even got the wiretap authorization, you made a phone call to this number; correct?
A: I don't understand your question.
Q: You got - you got a phone number from the informant; right?
Q: And the informant made a phone call in your office; correct?
Q: Okay. And you heard somebody pick up on the other line and said they were Damielle [defendant]; correct?
Q: And for the most part, based on that, you then obtained the wiretap?
Q: Okay. What did you do, just based on this phone call, what did you do to verify that [it] was Damielle Tondee [defendant], based on that? Did you do anything? Check phone records or anything like that?
A: When we make a call utilizing an informant we do an overhear.
A: I overheard the conversation.
Q: So, they're talking on the phone and you're, kind of, listening as they're talking?
A: That's correct.
On redirect and recross, Stith testified that the informant had not received any personal benefit from his cooperation, and defense counsel further probed the adequacy of the investigation and the benefits an informant might expect to derive.
On appeal, defendant argues that in derogation of his right to confront a witness against him, Stith's responses implied that he received information about defendant's guilt from a person who did not testify at trial. See State v. Bankston, 63 N.J. 263, 268-69 (1973). He asserts that the judge should, at a minimum, have given a curative or limiting instruction to address the error, but admits it was injected by his attorney.
Bankston does not address testimony implying receipt of information from a non-witness that raises only "possible inferences" about what a non-witness told an officer. Id. at 271. It applies "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt." Ibid.
To clarify without belaboring the point, in Bankston "the inescapable inference from [the officer's] testimony was that the informer had given information that defendant would have narcotics in his possession." Ibid. The constitutional error was that "the jury was led to believe that an unidentified informer, who was not present in court and not subjected to cross-examination, had told the officers that defendant was committing a crime." Ibid.; see State v. Branch, 182 N.J. 338, 351 (2005) (noting "[t]he common thread that runs through [the Bankston cases] is that a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant").
In this case, the jury could infer that the non-testifying informant gave Stith a phone number used by a person involved in wrongdoing related to this drug investigation and that was inadmissible hearsay. N.J.R.E. 801(c), 802. In contrast, Stith's testimony linking defendant with the phone number was based on admissible hearsay - the assertions made by defendant, a party to the action. N.J.R.E. 803(b)(1). Defendant answered the phone call and identified himself by name.
This testimony is analogous to an officer repeating an eyewitness's description of a car used in a crime when the defendant's connection with a car of that description is used to establish his guilt. See Bankston, supra, 63 N.J. at 270 (discussing the facts and holding in People v. Harris, 200 N.W.2d 349 (Mich. Ct. App. 1972)). If the eyewitness does not testify at trial, the defendant's right to confrontation is violated. Ibid.
The question for this court is whether reversal of defendant's conviction is warranted given that defense counsel elicited the inadmissible hearsay that violated defendant's right to confrontation. We conclude that it is not.
Trial errors "induced . . . by defense counsel ordinarily are not a basis for reversal on appeal." State v. Corsaro, 107 N.J. 339, 345 (1987) (internal quotation omitted). Under the doctrine of invited error, where the court relies on defendant's position in making an erroneous ruling, we will apply a more stringent standard before finding an error prejudicial. State v. Jenkins, 178 N.J. 347, 359 (2004); Corsaro, supra, 107 N.J. at 345; State v. Ramsey, 415 N.J. Super. 257, 265 (App. Div. 2010).
We have no doubt that the court relied on the defense's position. Defense counsel cross-examined Stith to undermine the State's case by suggesting that Stith's informant, acting in his own interest, had a motive for currying favor with the investigators. Defense counsel used Stith's testimony to urge that inference in his closing argument. Given the strength of the State's evidence, the only defense readily apparent on this record was to raise doubts about the investigation and the evidence it produced. Defendant was not deprived of cross-examination; he sought to benefit from favorable inferences the jurors might draw from the hearsay. In sum, this is a proper case for application of the doctrine of invited error.
We reject defendant's claim that the trial judge erred by allowing defense counsel to pursue this line of cross-examination. After all, any sua sponte effort to limit this line of cross-examination or the jurors' consideration of Stith's responses would have limited defendant's ability to make these points regarding the informant's potential bias in closing argument and his right to effectively cross-examine a witness, Stith, who had testified at trial.
When the doctrine of invited error applies in a criminal case, the defendant must show an error that "cut mortally into the substantive rights of the defendant." Corsaro, supra, 107 N.J. at 345 (internal quotations omitted). There is nothing of that magnitude in this case.
Indeed, defendant is not even entitled to relief under the more lenient prejudicial error standard. R. 2:10-2. Reversal based on error, even constitutional error, is warranted only if it is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Kemp, 195 N.J. 136, 157 (2008) (internal quotations omitted); see State v. Castagna, 187 N.J. 293, 312 (2006) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed. 2d 705, 710-11 (1967)).
Our courts consider the impact of any error "in light of the overall strength of the State's case." State v. Vallejo, 198 N.J. 122, 141 (2009) (internal quotations omitted). Defendant's conversations with K.G. and Speaks established his involvement with the drugs discovered at their homes, his role in the conspiracy and his "use" of K.G. in several transactions in which drugs were delivered from one person to another. Defendant's comings and goings from the home of Latoya Simmons as well as the documents indicating that he held himself out as a resident of her home, linked him with drugs at that location.
With this overwhelming evidence of guilt, there is no room for any doubt that the jurors would have returned the same verdict if defense counsel had not elicited inadmissible hearsay testimony to cast doubt on the State's proofs.*fn2 See Castagna, supra, 187 N.J. at 312.
Defendant also argues that evidence of his domestic disputes with Speaks was erroneously admitted, highly prejudicial and warrants reversal of his convictions. Defense counsel brought out this evidence in his cross-examination of Speaks to undermine her credibility, and the prosecutor, without objection, pursued the issue to rehabilitate the witness. We are confident that the trial judge did not abuse his discretion in allowing this questioning. See State v. Lykes, 192 N.J. 519, 534 (2007). Any error that might be perceived because the judge did not give a limiting instruction, was, beyond any reasonable doubt, harmless. Castagna, supra, 187 N.J. at 312.
As noted above, Speaks testified that she did not receive any benefit for keeping defendant's drugs and that defendant "made [her] keep them there." Defense counsel did not object to this testimony.
On cross-examination, defense counsel pursued the issue:
Q: Now you mentioned something earlier - yesterday actually, that [defendant] made you keep drugs in the house. That's what you said, right?
Q: Did he - did he put a gun to your head?
Q: Okay. So you did something against your own will. That's what you're saying?
A: He would fight me.
Q: Let me ask you something. You had guns in the basement - I'm sorry - drugs in the basement, a scale, and you're saying that somebody made you keep drugs in that basement. Did you ever call the police and say, listen, somebody is forcing me to keep drugs in my house, they're doing - he's doing this against my will? Did you ever make that phone call?
A: Oh, no. If I told him that I would call the police, it would just make it worse. We would wind up fighting again, in front of my -
Q: And you never made that phone -
A: - son, or whatever.
Q: - call, right? You love your son?
A: Yes, I do.
Q: You care about your son?
A: Yes, I do.
Q: You kept him in an environment, a drug-filled environment in that basement. You never called the police to say, hey, somebody is forcing me to keep drugs in my apartment? You never made that call, right?
Speaks also said she would not let defendant into her house after they "had like a million fights."
On redirect, the prosecutor asked Speaks what she meant when she stated on cross-examination that defendant would fight her. She responded, "[w]e would literally have . . . a fist fight." When the prosecutor followed up on the point, Speaks said defendant had hit and punched her and that she did not call the police because it would "make the situation worse." Defense counsel again did not object.
On recross, defense counsel continued to probe the issue:
Q: Ms. Speaks, aside from your testimony here today, do you have any kind of proof at all that these fights took place? Did you ever call the police?
A: Excuse me?
[PROSECUTOR]: Objection, Judge.
THE COURT: Overruled. Did you ever call the police during these fights?
[SPEAKS]: I have pictures of like my hair being pulled out in my phone, one of the phones that y'all have.
[DEFENSE COUNSEL]: That I have?
A: From the evidence, one of my cell phones.
Q: You have no pictures here today, right?
Q: Okay. So you have no - you ever go for a restraining order?
On redirect, the prosecutor followed up with the following:
Q: You said you never filed for a restraining order?
Q: Why not?
A: The one time we did call the cops, they never did come.
Defense counsel referenced this testimony in closing argument. Pointing to Speaks' explanation for her participation and the absence of any evidence confirming the fights, defense counsel urged the jurors to disbelieve her testimony associating defendant with the drugs and paraphernalia found in her room.
Evidence of prior bad acts of a defendant is generally excluded because of its tendency to invite inferences of guilt based on defendant's proclivity for acting badly. N.J.R.E. 404(b); State v. Reddish, 181 N.J. 553, 608 (2004). When it is admitted for a limited purpose, an instruction on permissible and impermissible uses of the evidence is required. State v. Blakney, 189 N.J. 88, 93 (2006). But in this case, defense counsel asked the questions that evoked the allegedly prejudicial responses and did not object when the prosecutor attempted to rehabilitate the witness by having her elaborate.
Viewed in light of the State's evidence, the challenged testimony does not cause us to doubt whether this verdict was based on the overwhelming evidence of defendant's guilt or evidence suggesting defendant had a propensity for fighting.
See Vallejo, supra, 198 N.J. at 141 (requiring such an assessment). It is noteworthy that this jury found defendant guilty on some counts but not guilty on others, including being a leader of a narcotics trafficking network and possessing the drugs recovered in the searches. There is no reason to doubt that, individually and collectively, the jurors focused on the adequacy of the State's evidence relevant to the elements of the crimes, not on a view of defendant as a bad person in general.
The trial judge properly denied defendant's motion at the close of the State's case for a judgment of acquittal on the charge of employing a juvenile. A judgment of acquittal must be denied if the evidence, viewed in the light most favorable to the State, is sufficient to permit a jury to find each element of the crime beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967); see State v. Josephs, 174 N.J. 44, 81 (2002) (noting that a reviewing court applies the same standard).
In order to establish defendant's guilt, the State had to prove that defendant was at least age eighteen and "knowingly use[d], solicit[ed], direct[ed], hire[d] or employ[ed] a person [seventeen] years of age or younger to violate N.J.S.[A.] 2C:35-4 or subsection a. of N.J.S.[A.] 2C:35-5." N.J.S.A. 2C:35-6. The cited sections refer to the maintaining or operating of a CDS production facility and the manufacturing, distributing or dispensing of a CDS respectively.
Defendant's challenge is limited to the adequacy of the evidence relevant to defendant's exercise of control over K.G. See State v. Laws, 262 N.J. Super. 551, 561 (App. Div.), certif. denied, 134 N.J. 475 (1993). This court has construed this statute and held that the word "use" should "be given a broad interpretation consistent with its ordinary meaning." State v. S.C., 289 N.J. Super. 61, 67 (App. Div.), certif. denied, 145 N.J. 373 (1996). It is sufficient for the State to establish that the adult charged put the juvenile into action or service or accomplished his purpose through the juvenile. Id. at 68.
Defendant's conversations with K.G., which are summarized above, were more than adequate to support the jury's guilty verdict on this charge. Viewed in the light most favorable to the State and giving the State the benefit of all favorable and reasonable inferences, those conversations demonstrate his use and direction of K.G.'s supply, distribution and retention of the money he received.
Defendant's final arguments relate to his multiple convictions and sentences.
We agree that this indictment, which included one count alleging a single conspiracy that had two criminal objectives, precluded entry of two convictions and imposition of two sentences for conspiracy. N.J.S.A. 2C:5-2c provides: "If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship." This indictment charged one conspiracy and agreement and continuing conspiratorial relationship with two objects:
DAMIELLE TONDEE, IBN-PITTMAN BALLAH, PORSCHE SPEAKS, LESLIE SPEAKS, GREGORY SPEAKS, MARQUIS ALBERT SPEAKS, MORRIS TONDEE, LATOYA SIMMONS AND ERIC BARNES did conspire with each other to dispense or distribute a controlled dangerous substance, that is, cocaine and/or heroin, in a quantity of greater than one-half ounce but less than five ounces, in violation of N.J.S.[A.] 2C:35-5a(1) and 2C:35-5b(2), contrary to the provisions of N.J.S.[A.] 2C:5-2, against the peace of this State, the Government and dignity of the same.
Therefore, the charge permits only one conviction and sentence, and for that reason, defendant's conviction for third-degree conspiracy must be vacated.
Defendant is not correct that his convictions for employing a juvenile and conspiracy must be merged. Pursuant to N.J.S.A. 2C:1-8a(2), a defendant cannot be convicted of two crimes if "[o]ne offense consists only of a conspiracy or other form of preparation to commit the other." In addition, N.J.S.A. 2C:1-8a(1), precludes two convictions when one offense is included in the other. Pursuant to N.J.S.A. 2C:1-8d(2), conspiracy to commit a crime is an offense that is included in a crime charged.
These statutory restrictions were construed by the Supreme Court in State v. Hardison, 99 N.J. 379 (1985). In that case the Court considered the claims of defendants convicted of and sentenced for both conspiracy to commit robbery and robbery.
Id. at 381-83. The Court determined that the statute requires merger of conspiracy and a completed crime unless the conspiracy has objectives other than the substantive offense committed.
Id. at 380, 391. Here, the substantive offense proven - employment of a juvenile - was in furtherance of the conspiracy. The conspiratorial agreement, distribution of cocaine and heroin, had "other or further criminal objectives" beyond the transactions in which defendant employed K.G. See id. at 391. The quantity of drugs seized from the homes of the co-conspirators demonstrates those additional and unachieved objectives. Thus, unlike the defendant in Hardison, this defendant was charged with a crime that was an object of the conspiracy but not convicted of that crime. N.J.S.A. 2C:1-8a(2) is only implicated if the defendant has been convicted of conspiracy to commit a crime and the completed crime. If defendant had been convicted of possessing with the intent to distribute, merger would be required. But he was not. Accordingly, we reject defendant's objections to separate sentences for conspiracy and employing a juvenile.
We also affirm defendant's consecutive sentences for conspiracy and employment of a juvenile. The trial judge's determination is based on findings supported by competent and reasonably credible evidence and a proper application of the controlling legal principles. State v. Bieniek, 200 N.J. 601, 608-09 (2010); State v. Cassady, 198 N.J. 165, 180-83 (2009); State v. Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986).
Affirmed in part and remanded with direction to vacate defendant's conviction for conspiracy in the third degree. As the sentence for the vacated conviction is concurrent with his sentence for second-degree conspiracy, the number of convictions, not the aggregate sentence, will be reduced.