May 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRELL ARCHER A/K/A OMAR T. MURRAY, OMAR MRRY, MATHAN MURRAY,
OMAR MURRAY, OMAR HOUEI AND OMAR TERRELL MURRAY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-11-3465.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011
Before Judges A.A. Rodriguez and Grall.
Defendant Terrell Archer was tried to a jury with co-defendant Arlene Hunt on a five-count indictment charging conspiracy to commit and commission of crimes involving possession of a controlled dangerous substance (CDS), heroin, and possession of CDS with intent to distribute. The jurors found defendant guilty of second-degree conspiracy to possess and possess with intent to distribute CDS, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-10a(1); third-degree possession, N.J.S.A. 2C:35-10; third-degree possession with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3); third-degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-7; and second-degree possession with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1.
The judge merged four of defendant's convictions with his conviction for possession with intent to distribute within 500 feet of a public housing facility and sentenced him to an eight-year term subject to a four-year term of mandatory parole ineligibility. In addition, the judge imposed the mandatory fines, penalties, assessments and fees and a driver's license suspension. On the same day, the judge revoked defendant's probationary sentence on a separate indictment and sentenced him to two three-year terms for third-degree possession of CDS concurrent with one another and his sentence for the second-degree crime.
On July 13, 2006, Detectives Richard Weber and Philip Turzani of the Newark Police Department, along with two back-up officers, Jimmy McCoy and Javier Rivera, went to the Pennington Court Housing Complex in Newark. Pennington Court is a public housing complex that is within 1000 feet of a school.
The detectives and officers were not in uniform and their badges were concealed. When the detectives entered the courtyard, McCoy and Rivera "shadowed" them, remaining about fifteen to twenty feet behind. Defendant was in the courtyard and waived the detectives toward him. In response, they approached defendant. Defendant said he had "diesel," which the detectives understood to mean heroin. Turzani said, "Let me get two."
Defendant took the detectives inside a building and to the door of an apartment on the first landing. Defendant knocked on the door, and co-defendant Hunt answered and peeked outside. Defendant told Hunt to "hook them up." Hunt had glassine bags of heroine in her hand and she recognized the detectives as police officers. She said so and attempted to shut the door. Detective Turzani rushed after Hunt, tackled her, placed her under arrest and seized twenty-seven glassine bags bound with rubber bands. As McCoy and Rivera were entering the building, defendant was fleeing from it. The detectives signaled to "lock him up" or said "grab him," and McCoy and Rivera did. Defendant had about $200 in bills of small denominations on his person at the time of his arrest.
Defendant raises two issues on appeal:
I. THE TRIAL COURT VIOLATED MR. ARCHER'S RIGHT TO CONFRONTATION BY PREVENTING DEFENSE COUNSEL FROM EFFECTIVELY CROSS-EXAMINING WITNESSES. (U.S. Const. amends. IV AND XIV; N.J. Const. (1947), art. I, ¶ 10).
II. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE AND IMPERMISSIBLY DOUBLE COUNTING.
The importance of cross-examination in criminal trials has been discussed with such eloquence and is so well understood that no elaboration is required here. See State v. Castagna, 187 N.J. 293, 309 (2006). With respect to the issue raised on this appeal, it suffices to reiterate that "[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353 (1974).
Despite the importance of the right asserted by defendant, he overstates the limitations the judge placed on defense counsel's questioning of the police officers who testified against him. Defendant's objections center on the judge's view of the permissibility of defense counsel's questions about matters omitted from the police report prepared by Detective Weber. The judge ruled that questions about facts disclosed in testimony and not included in the report were improper. He reasoned that no one could expect a police report to include the entirety of an officer's trial testimony and, therefore, the fact of an omission was not adequate to establish a prior inconsistency.
We do not endorse that restrictive view of cross-examination. Statements that "call into question" a version of the facts recounted by a witness at trial as well as those that "contradict" the testimony are admissible. State v. Burris, 145 N.J. 509, 535 (1996); State v. Provet, 133 N.J. Super. 432, 437 (App. Div.), certif. denied, 68 N.J. 174 (1975). Nonetheless, we cannot conclude that defendant was prejudiced in any way by this ruling.
First, the judge invited defense counsel to approach him out of the presence of the jury to present any argument as to why particular questions based on inconsistencies between the testimony and report should be permitted. Defense counsel did not take advantage of the offer, even though the judge throughout the trial repeatedly invited the attorneys to raise issues after releasing the jurors for breaks and at the end of the day.
Second, on appeal, we are pointed to few questions defense counsel was precluded from asking, and those mentioned have little to do with the case against this defendant. At trial, Detective Weber testified that co-defendant Hunt was told she was under arrest. Defense counsel was not permitted to point out that Detective Weber did not include that fact in his report. In light of the officer's testimony that co-defendant Hunt announced that the men defendant brought to the door were police officers, we fail to see how this ruling could have, as defendant argues, had any impact on the outcome of the case.
Defendant also argues that the judge erred in precluding co-defendant's trial attorney from asking Detective Weber why he did not a check a box on a "use of force" form indicating that a "compliance hold" was used on Hunt. The officer's credibility with respect to what occurred inside the apartment, after defendant fled the building, had little relevance to defendant's case that we can discern. In any event, there was significant extrinsic evidence about the use of force that followed defendant's departure from the doorway of the apartment, including evidence that the detectives had a motive to lie based on an internal investigation of Turzani's conduct in the apartment.
Defendant has other complaints about the judge's proper evidentiary rulings. The judge sustained the State's objection to this clearly improper argumentative question: "And it was lucky you saw those drugs, because then you got to chase her into her apartment without a warrant? Correct." The judge also precluded a detective from answering a question posed by defense counsel that called for the witness to discuss the law - whether he needed a warrant to search the apartment for drugs. In addition, he foreclosed cross-examination of McCoy on the absence of any reference in Detective Weber's report to the direction he gave McCoy about arresting defendant because McCoy did not author Weber's report.
Defendant's allegation that the judge created an atmosphere that was hostile to the defense is simply not supported by the record. This trial judge even-handedly ruled on the evidentiary issues in a case that had the potential to become quite unwieldy. The judge took no different view in limiting the State's use of prior inconsistent statements in questioning co-defendant Hunt. To the extent that the judge's exercise of discretion was too strict, we can say without doubt that any abuse of discretion was clearly incapable of producing an unjust result. R. 2:10-2; see Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967); Castagna, supra, 187 N.J. at 312.
Defendant's claim that his eight-year sentence for a second-degree crime is excessive lacks sufficient merit to warrant more than brief comment in a written opinion. R. 2:11-3(e)(2). The judge sentenced defendant on only one of the five counts of this indictment - second-degree possession with intent to distribute in a public housing zone, N.J.S.A. 2C:35-7.1 - and merged the others. One of the merged counts is possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7. On that count, defendant was eligible for a mandatory extended term and a mandatory period of parole ineligibility pursuant to N.J.S.A. 2C:43-6f, because he had a prior conviction for possession with intent to distribute.*fn1 In addition, the judge was sentencing defendant on a separate indictment that included two counts for simple possession, and the judge made that sentence concurrent with the eight-year term.
Although defendant had additional prior convictions, one need not look beyond the prior convictions for simple possession and possession with intent to distribute to conclude that the judge's findings of a risk of recidivism and need to deter are well supported by the record. Because defendant was sentenced for a second-degree crime, not an extended term for a third-degree crime, we discern no double counting of those aggravating factors. As the judge noted at the time of sentencing, the extended term for a third-degree crime is equivalent to an ordinary term for the second-degree crime of distribution within a public housing zone. See N.J.S.A. 2C:43-6a(2); N.J.S.A. 2C:43-7a(4).
A period of parole ineligibility was mandated by the Code. Under the principles established in State v. Dillihay, 127 N.J. 42, 54 (1992), upon merger of defendant's second- and third-degree crimes, the minimum period of parole ineligibility that N.J.S.A. 2C:43-6f requires for an extended term survived merger, and the judge was required to include it in defendant's sentence.
Because the judge's findings are well supported by the record and the judge properly applied the sentencing law, we have no basis for disturbing this sentence. State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).