June 29, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID SPENCER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-11-1562.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 23, 2011 -- Before Judges Ashrafi and Newman.
Defendant David Spencer appeals his conviction by a jury and sentence on all seven counts of an indictment arising from the sale of heroin. We affirm.
The facts were developed at a pretrial suppression hearing and at trial. On August 17, 2005, Paterson Police detective Marvin Sykes was conducting surveillance of a high drug distribution area at Hamilton and Summer Streets. He had information that defendant would be arriving there after 11:00 a.m. from the Triangle Village housing development to deliver heroin to an unknown buyer. Sykes observed a man, later identified as Chad Alston, waiting alone near the street for about fifteen minutes. Defendant arrived driving a minivan with a pit bull dog in the passenger seat. The minivan stopped and Alston got into the back seat. The minivan drove off but stopped again about two blocks away. After three or four minutes at that location, Alston stepped out of the van holding a green towel that Sykes had not seen earlier. The minivan drove off.
Sykes called to a support team of police to stop and question Alston. As Detective Washington Griffin and other police officers approached Alston on the street, items dropped to the ground from the towel Alston was carrying. The police recovered and identified the items as two "bricks" of suspected heroin. At the trial, Sykes described a "brick" as ten bundles, each bundle consisting of five glassine bags of heroin, fastened with rubber bands and wrapped in magazine paper. In total, thepolice recovered 100 glassine bags of suspected heroin from Alston. Laboratory testing at a later time confirmed the contents of one of the glassine bags as .05 grams of heroin, which Sykes testified would sell on the street for ten dollars.
Upon seeing the bricks of heroin on the ground, the police arrested Alston, and Sykes notified other detectives that heroin had been recovered. Detectives then approached defendant after he parked the minivan at Triangle Village. They searched defendant's person and found $2,571 in cash and an empty sandwich bag in his pocket. Defendant was also arrested.
A grand jury returned a seven-count indictment against defendant charging: third-degree possession of heroin, N.J.S.A. 2C:35-10a(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3); third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-7; second-degree possession of heroin with intent to distribute near a public facility, N.J.S.A. 2C:35-7.1; third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and 5b(3); third-degree distribution of heroin in a school zone, N.J.S.A. 2C:35-7; and second-degree distribution of heroin near a public facility, N.J.S.A. 2C:35-7.1. Alston was also named in the first four counts of the same indictment charging possession offenses.
Pretrial, the court denied defendant's motions to suppress evidence recovered at the scene of the arrests, but the court suppressed as irrelevant to the charges other evidence the police had recovered by means of a consent search of a residence. The court also denied defendant's motion to bar opinion testimony at trial by Detective Sykes as an expert in drug dealing activities and practices. Following the court's pretrial rulings, co-defendant Alston pleaded guilty pursuant to a plea agreement that required his cooperation with the prosecution.
Detectives Sykes and Griffin were the only witnesses at defendant's trial. Other evidence was presented through stipulation and documents. The jury convicted defendant of all seven charges of the indictment.
At sentencing, the court merged all counts of the indictment into count seven, charging second-degree distribution of heroin near a public facility. On the merged counts, the court sentenced defendant to nine years in prison with three years to be served before eligibility for parole. The sentence was to run consecutively to a sentence defendant was already serving. Statutorily required money penalties were also imposed.
On appeal, defendant argues:
DETECTIVE SYKES'S EXPERT TESTIMONY PREJUDICED MR. SPENCER AND DEPRIVED HIM OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. POINT II
THE TRIAL COURT ERRED BY REFUSING TO GIVE AN ADVERSE INFERENCE CHARGE AFTER THE STATE FAILED TO CALL CHAD ALSTON AS A WITNESS. POINT III
THE TRIAL COURT ERRED BY DENYING MR. SPENCER'S MOTION TO SUPPRESS EVIDENCE OF MONEY AND A BAGGIE ALLEGEDLY FOUND IN HIS POCKET DURING A SEARCH INCIDENT TO ARREST. POINT IV
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
We reject these arguments.
We consider first defendant's appeal from denial of his motion to suppress evidence. The trial court conducted a pretrial evidentiary hearing in which Detectives Sykes and Griffin testified, as well as a bystander who was a witness to the arrest of Alston. The court made detailed findings of fact, assessing all three witnesses to be credible. It found the facts of the surveillance and other police conduct as we have described in this opinion. Our standard of review requires that we defer to the trial court's findings of fact and credibility determinations. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)); State v. Robinson, 200 N.J. 1, 15 (2009); State v. Elders, 192 N.J. 224, 243-44 (2007).
Based on the facts we have recited, the trial court concluded that the police had sufficient corroborated information from an unidentified informant and their own observations at the scene to conduct an investigatory stop of Alston. In particular, the court emphasized that Alston had waited on the street for some fifteen minutes for the arrival of the minivan and then had ridden only about two blocks in the vehicle. He had spent about three or four minutes with defendant and left the minivan holding a towel that he was not carrying earlier. Consequently, he was not waiting for the minivan simply to get a ride, and his conduct was consistent with the information the police had received earlier.
We find no error in the court's conclusion that the police observations and the accuracy of the informant's report - that defendant would be arriving at that location at a certain time - gave the police reasonable and articulable suspicion to detain Alston and investigate whether he had in fact engaged in a drug transaction. See State v. Pineiro, 181 N.J. 13, 27 (2004); State v. Nishina, 175 N.J. 502, 511 (2003).
When the police approached Alston and packages of suspected heroin fell to the ground, probable cause developed to arrest him for possession of the illegal drugs. See State v. Johnson, 171 N.J. 192, 214 (2002) (probable cause requires "a 'well-grounded' suspicion that a crime has been or is being committed") (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). Recovery of the heroin, in turn, provided probable cause to arrest defendant as well for suspected sale of the heroin a few minutes earlier. See State v. Moore, 181 N.J. 40, 46-47 (2004). The search of defendant in which cash and a sandwich bag were recovered was justified as a warrantless search incident to defendant's arrest. Id. at 45.
We conclude the trial court did not err in finding that the police had probable cause to arrest and search defendant.
Defendant argues he was prejudiced at trial by inadmissible expert testimony from Sykes. He points to the absence of any drugs on his person when he was arrested, and no factual testimony about a hand-to-hand transaction between him and Alston. He contends the prosecution improperly bolstered its factual evidence of surveillance observation with opinion testimony from Sykes that defendant had delivered and sold the bricks of heroin to Alston.
In a drug prosecution, a law enforcement expert may testify about "relevant subject[s] that [are] beyond the understanding of the average person of ordinary experience, education, and knowledge." State v. McLean, 205 N.J. 438, 450 (2011) (quoting State v. Odom, 116 N.J. 65, 71 (1989)). But a narcotics expert may not usurp the jury's fact-finding function. See State v. Reeds, 197 N.J. 280, 296 (2009). Testimony from a narcotics expert must "genuinely aid" the jury, Odom, supra, 116 N.J. at 71, and it must be "limited to that which assists 'the trier of fact [in] understand[ing] the evidence or determin[ing] a fact in issue.'" State v. Nesbitt, 185 N.J. 504, 514 (2006) (quoting State v. Berry, 140 N.J. 280, 291 (1995)).
Our review of the trial transcript leads us to conclude that the court did not err in permitting Sykes to testify as an expert in narcotics sales practices. Although in a few instances the testimony was objectionable, overall the expert testimony could have genuinely aided the jury's understanding and evaluation of the factual evidence. The improper expert testimony was harmless in the context of the entire trial and the valid purposes of the testimony that was admissible.
Sykes properly testified about the packaging of the recovered drugs. His description of a "brick" and wrapped "bundles" of glassine bags was beyond the knowledge and experience of the average juror. Similarly, Sykes's testimony was admissible about the markings "King of Dope" on the glassine bags, describing them as similar to "a brand name" and a common practice in street sales of heroin. Also, the street value of the heroin was relevant to an inference that the cash found on defendant's person was connected to the heroin found in Alston's possession. Taking all the factors into account, Sykes could appropriately testify that a transaction such as the one the State alleged involved the sale of heroin from "a mid-level distributor" for further sales at the street level.
We agree with the defense argument, however, that the testimony that a "drug drop" had occurred in the minivan was improper. The detective was expressing an opinion that the jury itself could draw as an inference. The State justifies that testimony as relevant to explaining why Sykes directed that backup police officers stop and question Alston, but Sykes's belief was self-evident and irrelevant to defendant's guilt.
While the expert could properly testify about the meaning of the phrase "drug drop" as used in the drug trade, it was improper to provide opinion testimony that a transaction had occurred. See State v. Boston, 380 N.J. Super. 487 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006); State v. Singleton, 326 N.J. Super. 351, 354 (App. Div. 1999); State v. Baskerville, 324 N.J. Super. 245, 254-57 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000).
Also, Sykes's answer to a question about why drug dealers would have a large sum of cash on their person may have improperly suggested to the jury that defendant had made other sales of heroin because he had $2,571 in his possession. Sykes testified, appropriately, that a brick of heroin would sell for about $240 to $275 from a mid-level dealer to a street retailer of heroin. Thus, the amount of cash that defendant was carrying could lead to an inference that he had made other sales besides the two bricks recovered from Alston. The State had no evidence, however, other than the cash and Sykes's opinion, to support such a conclusion.
The jury did not need an expert to explain that a mid-level drug dealer may have a large sum of cash on his person because he was selling drugs. If the evidence supported a finding that defendant had made other drug sales before the transaction with Alston, the trial court and defense counsel should have been alerted to the prosecution's intent to prove that fact, see
N.J.R.E. 404(b), and, if permitted by the court, the jury could consider the evidence without the expert's testimony about drug dealers carrying cash. The question and answer posed to Sykes about cash possessed by drug dealers were improper, but, becausethe answer was self-evident, it did not prejudice defendant's right to a fair trial.
This case is distinguishable from our prior holdings in Boston, supra, 380 N.J. Super. 487; Singleton, supra, 326 N.J. Super. 351; and Baskerville, supra, 324 N.J. Super. 245, finding error in police expert testimony explaining a straight-forward hand-to-hand street sale of narcotics. The transaction in this case was sufficiently beyond the experience and common understanding of the average juror that expert testimony was useful and thus admissible. See Nesbitt, supra, 185 N.J. at 515. The improper questions and answers were few and isolated. We deem them to be harmless error. See R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result. . . ."). They did not affect the overall fairness of the trial.
Next, defendant argues the trial court erred in declining to give an instruction to the jury under State v. Clawans, 38 N.J. 162 (1962); namely, that the jury was permitted to draw an adverse inference from the prosecution's failure to call Alston as a witness at the trial. We find insufficient merit in the argument to warrant extensive discussion in a written opinion.
R. 2:11-3(e)(2). Although Alston had agreed to cooperate by his plea agreement, and he had been subpoenaed by the State, he was not a witness either in the control of the State or with the kind of special relationship that precluded his availability to defendant. See State v. Hill, 199 N.J. 545, 561 (2009). If his testimony would have been exculpatory, he was equally available to the defense.
Moreover, no evidence of his guilty plea and promised cooperation was presented to the jury, and defense counsel was permitted to argue to the jury that they should draw an adverse inference from his absence from the trial. We find no abuse of discretion in the trial court's denial of the defense request for a Clawans charge.
Finally, defendant argues his sentence of nine years in prison, to be served consecutively to another sentence he was then serving, was an excessive sentence. He also contends the court erred in its evaluation of aggravating and mitigating factors.
Our review of a sentencing decision can involve three types of issues: (1) whether guidelines for sentencing established by the Legislature or by the courts were violated; (2) whether the aggravating and mitigating factors found by the sentencing courtwere based on competent credible evidence in the record; and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-66 (1984); accord State v. Carey, 168 N.J. 413, 430 (2001). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. Roth, supra, 95 N.J. at 365.
The trial court found four aggravating factors under N.J.S.A. 2C:44-1a, which we designate by the numbered subsections of the statute: (3) the risk defendant will commit another offense; (5) a substantial likelihood that defendant was involved in organized criminal activity; (6) the extent and seriousness of defendant's criminal record; and (9) the need to deter defendant and others from criminal conduct. The court found no mitigating factors under N.J.S.A. 2C:44-1b.
At the time of sentencing, defendant was twenty-eight years old. His criminal record included eight prior indictable convictions, five of them for drug offenses. We see no need to discuss the court's finding of aggravating factors (3), (6), and (9). While the finding of aggravating factor (5) was not routine, the court relied on evidence that defendant was a mid-level dealer of heroin, with several similar convictions on his record, and there was nothing in the presentence report to indicate he was addicted to or abused drugs personally. From this evidence, the court concluded that defendant was engaged on a persistent and long-term basis in the business of selling illegal drugs, a business that requires organized criminal activity at that level. Credible evidence supported the court's finding of aggravating factor (5). See State v. Velez, 119 N.J. 185, 188 (1990), affirming as modified, 229 N.J. Super. 305, 316-17 (App. Div. 1988).
As to the nine-year sentence, the State had sought imposition of a discretionary extended term under N.J.S.A. 2C:44-3a, and a sentence of imprisonment within the first-degree range of ten to twenty years. The court rejected the State's motion and instead sentenced defendant to a term one year less than the maximum for his second-degree conviction. The court also imposed the minimum mandatory period of parole ineligibility, three years, as required by the school zone conviction, N.J.S.A. 2C:35-7. The length of the prison term was within the court's discretionary authority. See State v. Bieniek, 200 N.J. 601, 611-12 (2010).
Finally, with respect to the sentence running consecutively to another sentence, the court applied the factors set forth in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), including:
(a) the crimes and their objectives were predominantly independent of each other;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; [Id. at 643-44.]
Defendant's charges in this case were separate and distinct criminal episodes, committed at different times. We find no error or abuse of discretion in imposition of a consecutive sentence.
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