June 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SUZETTE COLEMAN, A/K/A SUZETTE SHABAZZ, A/K/A SUZETTE ALLEN, A/K/A SUZETTE ALLEN SHABAZZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-07-00622.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 15, 2011
Before Judges Reisner and LeWinn.
Defendant Suzette Coleman appeals from her conviction for third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), for which she was sentenced to two years of probation, forfeiture of her public office, a six-month suspension of her driving privileges, and required fees and fines. We affirm.
These are the most pertinent facts. While conducting an undercover surveillance for drug activity, Elizabeth Police Officer Helder Deabeau observed what he believed to be a drug transaction between two men and two women pedestrians who approached them. Deabeau saw one of the women give a small object to one of the men, who directed the women to walk across the intersection at the corner of Anna and Jefferson Streets. One of the men then reached inside his waistband and removed two small objects, and the other man gestured to the women to return. When the women rejoined them, one of the men gave them each a small object. Deabeau alerted his backup team to arrest the women, and gave a description of the clothing they were wearing. The backup officers arrested the women and quickly searched them for weapons and contraband, but they did not find anything. Nonetheless, they initially charged them with loitering in search of narcotics. The officers then transported the women, later identified as defendant and Cynthia Ann Thomas, to police headquarters.*fn1
At headquarters, the women were placed in a holding cell with a one-way mirror that allowed the police to observe them. According to Officer Bryan Clancy, while the women were in the cell, he saw that they were "fidgeting" with their clothing and he believed they might be trying to further conceal contraband. Therefore, he and Officer Kevin Marr searched the women again. Officer Clancy discovered a small bag of rock cocaine clenched in defendant's hand. Officer Marr found a similar bag and a crack pipe in Thomas's hand.
The defense theory was that the drugs the police claimed to have found in defendant's and Thomas's hands actually came from the floor of the cell. They presented testimony from Cristhian Alarcon, who was arrested shortly after defendant and Thomas were detained. Alarcon admitted that he was a drug dealer, and that he was selling cocaine on the corner of Anna and Jefferson Streets. However, he insisted that he never sold any drugs to defendant or Thomas. Alarcon testified that he was acquainted with the women, and would never have sold them drugs because they were in their fifties, and he only sold to younger buyers.
He insisted that it would be improper to sell drugs to "older" women. Alarcon testified that after he was brought to headquarters, he was placed in the same holding cell with defendant and Thomas. He recounted that the police missed a cache of drugs while searching him and, while in the cell, he threw the drugs on the floor to avoid being caught with them.
In their testimony, both women denied buying or possessing any drugs. They testified that they had gone for a short walk to buy loose cigarettes from a local bodega. On the way back to Thomas's house, they stopped to ask Alarcon to light their cigarettes, and he obliged. A block or so later, they were stopped by the police and arrested, although they had no drugs in their possession. They testified that Alarcon was in the cell with them when the police claimed to have found the cocaine in their hands. Officer Clancy testified that defendant and Thomas "were the only two in the holding cell at the time."
On this appeal, defendant raises the following points for our consideration:
POINT I: THE TRIAL COURT ERRED IN FAILING TO STRIKE HIGHLY PREJUDICIAL TESTIMONY OF A STATE'S WITNESS THAT MS. COLEMAN WAS GUILTY OF "DRUG LOITERING" AND FAILING TO PROVIDE A CURATIVE INSTRUCTION TO THE JURY. (Not Raised Below)
POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR ACQUITTAL.
POINT III: THE TRIAL JUDGE ERRED BY FAILING TO INCLUDE A CHARGE ON IDENTIFICATION IN HIS FINAL INSTRUCTIONS TO THE JURY. (Not Raised Below)
POINT IV: THE TRIAL COURT'S FAILURE TO DECLARE A MISTRIAL AFTER THE JURY ANNOUNCED THAT IT COULD NOT REACH A VERDICT VIOLATED MS. COLEMAN'S RIGHT TO A FAIR TRIAL.
POINT V: THE TRIAL COURT ERRED IN RECOUNTING TRIAL TESTIMONY FOR THE JURY IN RESPONSE TO A QUESTION ABOUT THE TESTIMONY, INSTEAD OF ALLOWING THE JURORS TO REVIEW THE TESTIMONY. (Not Raised Below)
POINT VI: CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL. (Not Raised Below)
Having reviewed the record, we conclude that these points are all without merit and, except as addressed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(2).
In her Point I, defendant mischaracterizes the testimony concerning drug loitering. Officer Clancy did not testify that defendant was "guilty" of loitering to purchase drugs, nor did he testify to his belief that she was guilty. See State v. McLean, 205 N.J. 438, 461-63 (2011). Rather, when the prosecutor asked Clancy why he arrested defendant and Thomas, even though he initially did not find drugs in their possession, Clancy stated that "[t]hey would have been under arrest at thevery least for loitering for a narcotics offense based on the information that we received from the other officers in the area." There was no objection, and, on cross-examination, defense counsel emphasized that the initial arrest was not for drug possession but only for loitering. Counsel for Thomas returned to that point later on re-cross-examination. This line of questioning supported the defense theory that the police had no proof that either defendant possessed drugs and unfairly arrested them for loitering, when they were innocently walking in their own neighborhood.
Defendant would be barred by the doctrine of invited error from challenging on appeal testimony that defense counsel elicited as part of the defense strategy. See State v. Corsaro, 107 N.J. 339, 345 (1987) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)). However, we also find no error, plain or otherwise, in explaining to the jury, without more, the reason why defendant was arrested. R. 2:10-2.
In her Point III, defendant contends that the judge should have given the jury an identification charge. The short answer is that identification was not an issue in this case. Defendant admitted that she was at the scene where the alleged drug dealing occurred. She contended that she was there for an innocent purpose. Further, the charge on which she was tried arose from the discovery of drugs in her hand when she was in the holding cell. Again, there was no question as to her identity. The only issue was whether she possessed the drugs. The trial judge appropriately exercised his discretion in declining to give an identification charge. See State v. Benthall, 182 N.J. 373, 386 (2005); State v. Green, 86 N.J. 281, 290-91 (1981).
We likewise find no merit in defendant's Point V. Toward the end of the first day of deliberations, the jury asked these questions about certain testimony from one of the police witnesses: "According to Officer Clancy, who was in the holding tank when the drugs were found? Was Cristhian . . . Aldercone [sic] in holding tank at that time? According to Officer Clancy when was the pipe found? Was it found in Cynthia's hands at the time . . . at the same time [as] the drugs"
Both defense counsel initially objected to the judge summarizing Clancy's testimony based on his recollection and notes, and the judge advised the jury that Clancy's testimony would be played back for them the next morning. However, the next day, before the jury entered the courtroom, the judge placed on the record that he and the attorneys had listened tothe audiotape of the testimony and had all agreed that it could briefly be summarized in lieu of playing it back. In accordance with counsel's agreement, the judge gave the jurors the following summary: Clancy testified that when the drugs and the pipe were found, there was no one else in the cell besides defendants, and that the pipe was found in Thomas's hand at the same time as the bag of drugs. However, the judge also specifically told the jurors that "obviously not everyone agrees that that's what the facts are" but "that is what Office Clancy testified to." The judge told the jurors that the audiotape could be played for them if they wanted "to hear other specific testimony."
We review the judge's decision for abuse of discretion, State v. Wilson, 165 N.J. 657, 660 (2000), and we find none here. Defendant's argument that "the court gave an imprimatur to Officer Clancy's testimony and inadvertently bolstered [his] credibility" is not supported by the record. The jury asked several very specific questions, which all counsel agreed the judge could answer without replaying the audiotape of the testimony. The judge did so in an evenhanded manner. We find no error, plain or otherwise. See State v. Macon, 57 N.J. 325, 336 (1971).
We likewise find no merit in defendant's contention that the judge should have declared a mistrial after the jury initially indicated that it was deadlocked. The jury deliberated for about two hours at the end of the day on August 20, 2008. When they returned the next day, they deliberated from 9:00 to about 10:30 a.m., and then sent out a note that they could not reach a verdict on the charge against defendant, or as to one of the two charges against Thomas. The judge agreed with the State's argument that, since the trial had lasted two days and the jury had been deliberating for a relatively short time, it would be inappropriate to declare a mistrial at that point. He noted that the jury's deliberations had actually been somewhat shorter than three hours because they had sent out questions that had to be answered. Instead of declaring a mistrial, the judge instructed the jury with the correct model charge, see State v. Czachor, 82 N.J. 392, 405-06 n.4 (1980), and sent them back to continue their deliberations.
"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997) (internal citations omitted), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). The court "should be guided in the exercise of sound discretion by such factors as the length and complexity of trial and the quality and duration of the jury's deliberations." Czachor, supra, 82 N.J. at 407. This was a two-day trial with five witnesses and significant credibility issues for the jury to decide. We find no abuse of discretion in the judge's decision not to declare a mistrial after the jury had deliberated for a relatively short time.