January 14, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT ZACK, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-10-3161.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2010 - Decided Before Judges Wefing and Payne.
Defendant, Robert Zack, appeals from his conviction by a jury of separate charges of third-degree possession of cocaine and heroin, N.J.S.A. 2C:35-10a(1) (Counts One and Four), second-degree possession of cocaine and heroin with the intent to distribute, N.J.S.A. 2C:35-5b(2) (Counts Two and Five) and second-degree possession of cocaine and heroin within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (Counts Three and Six). The State moved for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f, and its motion was granted. Thereafter, the judge merged Counts One and Two into Three and Counts Four and Five into Six and imposed concurrent sentences of eighteen years in custody with nine years of parole ineligibility. Aggravating factors three (risk of reoffense), six (extent of defendant's prior record) and nine (need for deterrence) were found.
N.J.S.A. 2C:44-1a(3), (6) and (9).
Defendant has appealed. On appeal, he has raised the following issues through counsel:
THE COURT ABUSED ITS DISCRETION WHEN IT DECLINED TO PLAY THE VIDEO OF WHITAKER'S AND POWELL'S TESTIMONY IN RESPONSE TO THE JURY'S REQUEST FOR TRANSCRIPTS OF WHITAKER'S AND POWELL'S TESTIMONY, DEPRIVING DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., Amends. V, VI AND XIV; N.J. CONST. (1947), Art. [I], Pars. 1, 9, 10.
THE COURT ABUSED ITS DISCRETION WHEN IT RULED THAT DEFENDANT COULD NOT TESTIFY ABOUT WHITAKER'S OFFER OF LENIENCY CONDITIONED ON DEFENDANT NOT REPORTING WHITAKER'S USE OF EXCESSIVE FORCE, WHICH DEPRIVED DEFENDANT OF A FAIR OPPORTUNITY TO PRESENT A DEFENSE AND THUS, HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., Amends. V, VI AND XIV; N.J. CONST. (1947), Art. [I], pars 5, 9, 10.
THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO EQUAL PROTECTION OF THE LAW WERE VIOLATED BY THE PROSECUTOR'S USE OF PEREMPTORY CHALLENGES TO STRIKE THREE AFRICAN-AMERICAN JURORS FROM THE PANEL FOR REASONS THAT WERE NOT CREDIBLY RACE-NEUTRAL. U.S. CONST., Amends. V, VI AND XIV; N.J. CONST. (1947), Art. I, pars 5, 9,10.
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF THE INDIVIDUAL ERRORS, AS SET FORTH ABOVE, DO NOT CONSTITUTE REVERSIBLE ERROR, THE ERRORS IN THE AGGREGATE DENIED DEFENDANT A FAIR TRIAL.
THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.
Defendant presents the following additional arguments pro se.
THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY WITH THE MODEL JURY CHARGE ON HOW TO EVALUATE PRIOR INCONSISTENT STATEMENTS MADE BY THE STATE'S WITNESSES, DEPRIVING DEFENDANT OF A FAIR TRIAL. (Raised Below.)
THE TRIAL COURT ERRED IN ALLOWING THE ADMISSION OF EXPERT TESTIMONY ON DRUG TRAFFICKING THAT INCLUDED THE OPINION THAT DEFENDANT HAD DISTRIBUTED DRUGS, WHICH IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY AND DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL. (Not raised below.)
THE TRIAL COURT FAILED TO PROPERLY RESPOND TO THE JURY'S QUESTION WITH REGARDS TO THE PLAYING BACK OF WITNESS TESTIMONY, IN LIGHT OF THE JURY'S OBVIOUS DIFFICULTY IN RESOLVING THE AFOREMENTIONED INCONSISTENT STATEMENTS MADE BY THE STATE'S WITNESS. (Not raised below.)
I.At trial the State offered evidence to demonstrate that, on June 7, 2006 at approximately 2:15 p.m., officers from the Fourth Bureau Narcotic Enforcement Team conducted a walk-through of the Bradley Court Housing Complex in Newark. Sergeant Johnnie Whitaker was in the lead, followed by Officer R. Gordon and shadowed by Officer Sean Powell. Whitaker testified that as he approached 86 North Munn Street, he spotted defendant standing on the top steps of the building holding a black plastic bag. Whitaker, who was in plain clothes, held out ten dollars, whereupon defendant said "yo, whatcha want?" As Whitaker continued to approach, defendant removed two vials from the bag, at which point Whitaker grabbed defendant and identified himself as a Newark police officer. As defendant attempted to flee, Whitaker tackled and cuffed him. At the police station defendant was found to have in his possession 253 packets of heroin, 305 vials of cocaine and $571 in cash.
In contrast to Whitaker's version of events, defendant, who testified on his own behalf, claimed that the drugs belonged to Abduhl Evans, known as "Fat Cat," with whom defendant had been talking when Whitaker approached. According to defendant, Fat Cat took off at the sight of Whitaker, dropping the bag. Thereafter, Whitaker, who did not identify himself as a police officer, punched defendant in the mouth, and a fight ensued, in which two other Caucasian officers joined. In the course of the fight, defendant alleges that he lost a front tooth. Following the fight, the officers washed blood from defendant's face in a nearby drain, and later in the bathroom of the station house. Although defendant sought to testify that Whitaker offered to drop aggravated assault charges against him if defendant did not file an excessive force complaint, the judge did not permit the testimony, declaring it to be inadmissible hearsay. Defendant asserted that the money found on his person was lawfully earned by him from his employment as a barber.
Corroboration was provided to defendant by the woman from whose apartment he was departing, Donna McClinton, who claimed to have witnessed the police beating defendant and to have discovered defendant's tooth on the porch after the police left the scene with defendant. McClinton testified that defendant did not have a black plastic bag in his possession when he was in her apartment.
Additionally, the court admitted two photographs taken by a sheriff's officer three days after the arrest allegedly depicting defendant wearing a ripped and bloodied tee shirt. A photo of defendant on June 7 shows a rip at the top of defendant's shirt, and a dirt spot "right underneath the collar," but does not demonstrate injury to his face.
On rebuttal, the State called Officer Powell, who corroborated Whitaker's testimony. Powell confirmed that defendant was standing alone when approached by Whitaker and that he was carrying a black plastic bag. He denied that defendant was taken to a storm drain to clean his face.
II.In defendant's first argument through counsel, he claims that the trial judge abused his discretion when he declined to replay the videotape of the testimony of Sergeant Whitaker and Officer Powell in response to the jury's request for transcripts of their testimony.
The transcript on appeal discloses that, during the course of deliberations, the jury sent the judge a note that stated: "We would like Sergeant Whitaker and Powell's transcripts, please." In response, the judge stated:
We don't have any transcripts to give you. In other words, all we have here is the testimony of everybody that's recorded on a video with a voice. I don't have any transcript that I can give you. If we had a stenographer here, we wouldn't have a transcript. In order to get a transcript, it's got to be transcribed and brought back. So, I don't have that.
So, either continue your deliberations [sic]. If you have any further clarification or any further desires or questions, please do that. But just to answer your question and nothing more than the question, I don't have transcripts. All I have is what I've just told you.
Neither attorney objected to the judge's statement or requested that the judge supplement that statement in any fashion.
In the circumstances presented, we do not regard the judge's response to have created reversible error. As the judge acknowledged, in that response the judge answered the jury's request in a literal fashion, noting that the transcripts that the jury requested were not presently available and could not be produced in a timely fashion. In answering as he did, the judge did not abuse his discretion. See State v. Wolf, 44 N.J. 176, 185 (1965) (holding that a determination whether to read back trial testimony in response to a jury's request is discretionary with the trial judge); see also State v. Wilson, 165 N.J. 657, 660 (2000) (suggesting that it would not be an abuse of discretion to reject a readback request when the testimony was not "reasonably available."). However, at the same time, the judge noted that a videotape of the trial existed, and he invited the jury to express "any further desires or questions" that it might have. The jury did not request the videotapes of Whitaker and Powell's testimony.
It is true that the judge could have offered to replay the videotape of the requested testimony sua sponte. However, we do not regard the judge to have abused his discretion in not doing so, particularly given the Court's recognition that a videotape offers more information than a transcript does, and a videotape replay of the testimony of State witnesses essentially permits the State to present its evidence to the jury a second time, after the defense has rested, thereby conferring an advantage on it. State v. Michels, 264 N.J. Super. 579, 644 (App. Div.1993), aff'd on other grounds, 136 N.J. 299 (1994); see also State v. Burr, 195 N.J. 119, 134 (2008) (in the context of a replay of a videotaped pre-trial statement, noting: "We therefore share the Appellate Division panel's concern that allowing a jury unfettered access to videotaped witness statements could have much the same prejudicial effect as allowing a jury unrestricted access to videotaped testimony during deliberations.").
III.Defendant next challenges the judge's determination to bar his testimony that Whitaker offered to forego aggravated assault charges against defendant if he agreed not to file a complaint alleging excessive force by the police. Defendant contends on appeal that by doing so, the judge precluded defendant from introducing evidence of third-party guilt sufficient "'to engender a reasonable doubt with respect to an essential feature of the State's case.'" State v. Fortin II, 178 N.J. 540, 591 (2004) (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959), certif. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960)). Defendant argues on appeal: "[T]he court abused its discretion because Whitaker's offer of leniency in exchange for silence was a non-hearsay admission that he used excessive force,which offered a plausible explanation for wrongly implicating defendant: after having made the mistake of beating up defendant, the police used the criminal charges as leverage to ensure silence." (Footnote omitted.) According to defendant, the judge's ruling left the jury "with only half of defendant's innocent explanation." "If the jury did not credit defendant's allegation of police brutality, they could not credit defendant's protestation of innocence."
At trial, the judge sustained the State's objection to the admissibility of the hearsay statement, overruling arguments by the defense that the statement reflected Whitaker's then existing mental condition and was admissible pursuant to N.J.R.E. 803(c)(3), and also finding that the statement was not admissible under N.J.R.E. 803(c)(1) (present sense impression) or N.J.R.E. 803(c)(2) (excited utterances), determining that the conditions precedent to the application of those rules had not been demonstrated. The judge also overruled defense counsel's argument that the hearsay was admissible as a prior inconsistent statement pursuant to N.J.R.E. 803(a)(1), because Whitaker had not denied making such a statement during the course of his testimony and, therefore, there was no statement to impeach. The judge additionally found the statement was not admissible as a statement of a party opponent pursuant to N.J.R.E. 803(b)(1) because Whitaker was not a party to the litigation, but rather, a witness. We find no error in the judge's evidentiary analysis.
Defendant's theory that the statement was admissible to demonstrate third-party guilt was not raised before the trial judge. Similarly, arguments on appeal that the statement attributed to Whittaker was not offered for its truth, but rather as a non-hearsay admission or that it was admissible as a statement against interest pursuant to N.J.R.E. 803(c)(25) were not advanced at trial.*fn1 Thus, the effect of any error committed by the trial judge in declining to admit Whitaker's alleged statement must be judged by a plain error standard. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).
When we view the evidence in light of defendant's newly-advanced theories, we do not find that the trial judge's evidentiary ruling had the clear capacity to bring about an unjust result. State v. Hock, 54 N.J. 526, 538 (1969), certif. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). Whether the police used excessive force in arresting defendant has very little to do with whether he, or another, possessed the drugs at issue. For that reason, this hearsay evidence had the capacity to confuse the issues and mislead the jury, justifying a determination that it was inadmissible pursuant to N.J.R.E. 403.
IV.Defendant argues additionally that the prosecutor misused his peremptory challenges to strike three African-American jurors from the panel for reasons that were not race-neutral, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,90 L. Ed. 2d 69 (1986) and State v. Gilmore, 103 N.J. 508 (1986). We disagree.
Precedent establishes a rebuttable presumption that the prosecution has exercised its peremptory challenges in a constitutional fashion. Gilmore, supra, 103 N.J. at 535. However, the presumption may be rebutted by defendant's prima facie showing that the prosecution "exercised its challenges on constitutionally-impermissible grounds." Ibid. To do so, defendant must initially establish that the potential jurors who were excluded were exclusively or predominantly members of a cognizable group such as African-Americans. Id. at 535-36. The defendant then must produce "evidence sufficient to draw an inference that discrimination has occurred." State v. Osorio, 199 N.J. 486, 502-03 (2009).
If the defense meets its prima facie burden, then the burden shifts to the prosecution to come forward with evidence that the peremptory challenges at issue are justifiable on the basis of concerns about situation-specific bias. Gilmore, supra, 103 N.J. at 537. "The trial court must decide whether these are, on the one hand, genuine and reasonable grounds for believing that potential jurors might have situation-specific biases that would make excusing them reasonable and desirable, given the aim of empanelling a fair and impartial petit jury, or, on the other hand, 'sham excuses belatedly contrived to avoid admitting acts of group discrimination.'" Id. at 537-38 (quoting People v. Wheeler, 583 P.2d 748, 765 (Cal. 1978)).
In the present case, after the judge qualified fourteen jurors, the prosecutor exercised four peremptory challenges, three of which resulted in the removal of African-American jurors from the panel, Mr. Reese, Mr. Peterman, and Ms. Thomas. At this point, defense counsel raised a Batson/Gilmore objection and, after the jury was excused, the prosecutor offered her reasons for exercising her peremptory challenges. As to Mr. Reese, she stated that he was a criminal justice major who might, mistakenly, believe he knew the system. He was sleeping during the voir dire of some of the other jurors, he had a cousin who had been accused of manslaughter and, while in the jury box, he was "sitting in his chair slumped, uninterested. . . . He didn't look like he was paying attention." As to Mr. Peterman, he gave very short verbal answers on voir dire, did not have answers to many of the questions, and, like Mr. Reese, was slumped in his chair while in the jury box and did not appear interested in the proceedings. With respect to Ms. Thomas, the prosecutor stated:
Ms. Thomas, I excused her for the main reason when I was sitting at the beginning of jury selection when Your Honor had called her, I believe number - whatever her number was, I believe number 29, and I didn't - I couldn't find it on my paper. And I asked Your Honor what - what was that name? What was her name? She answered me. And the tone in her voice was she gave me an attitude right away by the way that she answered the question when I asked Your Honor what whose name was number 29. So,right away, I didn't like the attitude from Ms. Thomas.
Although defense counsel argued that the prosecutor's reasons were "superficial," the judge ruled that "at least at this juncture," the reasons set forth on the record were valid, particularly those relating to the jurors' lack of attention to the proceeding. Additionally, the judge determined that any Batson/Gilmore challenge at this point was premature, but that he would observe the ensuing proceedings carefully to determine whether there were "any further developments which would establish a prima facie case by the defense." Defense counsel did not renew his challenge and thus the issue was not again addressed by the trial judge. Further, on appeal, counsel has not set forth either the composition of the jury when the original challenge occurred or its final composition, thereby depriving us of an opportunity to consider jury composition in determining whether the reasons given by the prosecutor for her challenges were genuine and reasonable. See State v. Clark, 316 N.J. Super. 462, 474 (App. Div. 1998). When we view the evidence presented in light of the standards for review set forth in Clark, id. at 473-74 and adopted by the Supreme Court in Osorio, supra, 199 N.J. at 506-07, we see no grounds for reversal.
V.Defendant next argues that a reversal is required as the result of cumulative errors in the trial court proceedings. However, because we have not found such errors to exist, we reject this argument and turn to defendant's claim that his sentence was excessive.
In that regard, defendant concedes that, because the State moved for a mandatory extended term pursuant to N.J.S.A. 2C:43-6f, a sentence between ten and twenty years was mandated. However, defendant argues that a sentence of eighteen years with a nine-year period of parole ineligibility exceeded that which could be justified following consideration of applicable aggravating factors. In particular, defendant challenges the judge's invocation of aggravating factor nine, as to which the judge stated:
And number nine, the need to deter the defendant and others from violating the law. Clearly, there has to be deterrence in this case. And, although there might not be personal deterrence because Mr. Zack has demonstrated his recidivistic tendencies, certainly the community at large must understand that drug trafficking in the city of Newark and causing people in the city of Newark to continue their addictions and live in a state of absolute drug horror can't be tolerated.
Defendant interprets the judge's comments as demonstrating a focus solely on general deterrence, unrelated to specific deterrence of future conduct by defendant, and argues that when general deterrence is unrelated to specific deterrence it has relatively insignificant penal value. In support of his position, defendant relies on State v. Gardner, 113 N.J. 510, 520 (1989) and State v. Jarbath, 114 N.J. 394, 405 (1989). However, both of the cited cases concerned the use of general deterrence, in the absence of a need for specific deterrence, to justify a custodial sentence - a concern that does not exist in the present matter. Moreover, we do not understand the judge's comments to indicate that a need to deter defendant's drug-dealing activities was absent. We view his comments merely as indicating that incarceration as deterrence, to date, had been ineffective.
Further, defendant argues that, because the focus of the New Jersey Criminal code is on "the gravity of the offense and not the blame-worthiness of the offender," State v. Roth, 95 N.J. 334, 355 (1984), the weight accorded to "offender-oriented" factors such as aggravating factors three, six and nine should be less than the weight accorded to those factors aggravating the offense. While that may be so, we cannot conclude that the sentence imposed on defendant, who had four prior convictions in Superior Court for drug-related offenses and was convicted in the present matter of two second-degree drug-related crimes, was excessive under sentencing standards set forth in State v. Natale, 184 N.J. 458, 488-89 (2005), State v. O'Donnell, 117 N.J. 210, 215 (1989), and Roth, supra, 95 N.J. at 364-65. Given defendant's criminal history, the sentence imposed cannot be considered "clearly unreasonable so as to shock the judicial conscience." Id. at 365.
VI.We turn now to the arguments raised by defendant pro se, commencing with his claim that the trial judge erred in refusing to give the jury the model instruction on prior inconsistent statements, and instead, merely instructed the jury on credibility. In making this argument, defendant focuses on the following inconsistencies in the testimony of Sergeant Whitaker.
Before the grand jury, Whitaker testified that, as he approached, defendant stated "whatcha want," whereas at trial he testified "yo whatcha want." Defendant notes further that in his incident report, Whitaker stated that "he immediately tackled and secured" defendant, whereas he testified before the grand jury that he "detained" defendant, and at trial Whitaker testified that he "put [his] weight on [defendant] and he fell down." Defendant additionally notes that Whitaker testified before the grand jury that "we observed a number of individuals exiting from 88 and 86 North Munn Avenue," but Whitaker's report indicated that the individuals "were exiting the walkway of 86 and 88 North Munn Avenue." As a final matter, defendant notes that, in Whitaker's police report, he indicated that when he approached, defendant pulled out vials of cocaine with red tops, but he testified at trial that defendant pulled out two vials.
We regard these variations in Whitaker's testimony to be negligible and clearly insufficient to warrant an instruction regarding prior inconsistent statements, which is applicable only when conflicting versions of the same event are provided by a witness, not when there are minor divergences in phraseology. As we have explained, in the model charge on inconsistent statements,the inconsistency in the witness's statements is that on one occasion the witness states that a car was red and on another occasion that it was blue. These two statements are not merely inconsistent. In addition to the inconsistency, the essence of each may, if the jury chooses, be used as substantive evidence concerning the disputed factual issue. [State v. Hammond, 338 N.J. Super. 330, 342 (App. Div.), certif. denied, 169 N.J. 609 (2001).]
The portions of Sergeant Whitaker's testimony upon which defendant relies do not fit this model. Accordingly we find that it was proper to omit the instruction that defendant invokes.
VII.As a final matter,*fn2 we reject defendant's argument that the judge erred in allowing the testimony on drug trafficking offered by the State through its expert witness, Detective Reginald Holloway.
At trial, Holloway gave testimony regarding the packaging of heroin, the terminology for that packaging, and the street price for the drug. Similar testimony was offered with respect to cocaine. Additionally, Holloway testified regarding typical language used in the purchase and sale of narcotics, the amount of drugs a seller would likely have on his person, the times of day when drugs were offered for sale, and the amount of cash a dealer might possess. As a final matter, in response to a hypothetical example that reflected the State's view of the facts of this case and designated the alleged drug seller as "subject-A," Holloway testified that "subject-A possessed the recovered narcotics with the intent to further distribute [them] for monetary gain," and that "the recovered currency are proceeds from various illegal hand-to-hand narcotic transactions orchestrated by subject-A."
Defendant argues that the opinions given by Holloway in response to the State's hypothetical question expressed Holloway's view that defendant was guilty of the crimes charged, and that we have found such testimony to be impermissible in cases such as State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). However, we disagree, premising our disagreement on the Court's opinion in State v. Summers, 176 N.J. 306 (2003). There, after discussing applicable precedent, including State v. Odom, 116 N.J. 65 (1989), the Court concluded that [An expert's] opinion can be "expressed in terms of ultimate issues of fact, namely, whether drugs were possessed with the intent to distribute," [Odom, supra, 116 N.J.] at 81, but it cannot contain an explicit statement that "the defendant is guilty of the crime charged under the statute." Id. at 80. [Summers, supra, 176 N.J. at 314-15.]
The testimony at issue conformed to Summers' strictures, and thus we find that it was properly admitted.