August 23, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES WASHINGTON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-04-1627.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 9, 2011
Before Judges Waugh and Koblitz.
Defendant Charles Washington appeals from his conviction after a jury trial on Camden County Indictment No. 09-04-1627 of third-degree possession of cocaine and heroin, N.J.S.A. 2C:35-10a(1) (count one). The court declared a mistrial on count two, third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3), and count three, third-degree possession of heroin with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, as the jury could not reach a verdict on these counts. Both counts were subsequently dismissed by the State at sentencing. Counts four and five, charging third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3), and third-degree possession of cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, were dismissed by the State prior to trial. Both co-defendants charged in the indictment with defendant entered into plea agreements that required them to plead guilty only to count one, the only count for which defendant was ultimately sentenced. Defendant was sentenced to five years in prison with a two-year period of parole ineligibility as well as the required fines and penalties and was ordered to provide a DNA sample and surrender his driver's license for one year. Defendant raises various trial errors on appeal. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The police executed a search warrant on defendant's residence on September 3, 2008, at approximately 6:00 p.m. Defendant and his two roommates, co-defendants Leighann M. Henry and William L. Byrnes, Jr., were present when the police arrived with a K-9 unit and a SWAT team. The police found eight bags of heroin in the living room closet. Eighty-four bags of heroin packaged in six bundles were found on a computer desk, and a single bag of heroin was found inside a change purse in the upstairs middle bedroom. Defendant and his co-defendants were arrested, and $166 was found in defendant's possession.
Defendant's two co-defendants testified at trial. Henry testified that she rented the upstairs middle bedroom where she stayed with her boyfriend, Byrnes. She said defendant lived in a room in the basement. She testified that she purchased two bags of heroin from defendant for $20 on the day of the arrest. She said she and Byrnes shared one bag and saved the other in the change purse where it was later found by the police. She testified that she saw the owners of the home give defendant drugs to sell and observed people "coming and going," buying drugs from defendant. The owners' three young sons, aged eighteen, nineteen and twenty, stayed in the front bedroom.
Byrnes testified to substantially the same facts related by Henry, although he indicated that he was the one to buy two bags of heroin from defendant and share it with Henry. He said he had been buying drugs from this residence for approximately one year. He indicated the owners of the residence were Curtis and Diane Barnes. On cross-examination, he said that although defendant kept a bed and his clothes in the basement, he "always stayed upstairs in the chair right by the front door." Byrnes indicated that his plea agreement required him to testify at defendant's trial.
Investigator Michael Sutley of the Camden County Prosecutor's Office testified as an expert in drug distribution that drugs are frequently sold from homes and that a quantity of eighty bags of heroin would not be for personal use, as the typical drug user would not buy more than two to four bags for personal use.
Defendant did not testify or present any witnesses on his behalf.
Defendant raises the following issues on appeal:
THE TRIAL COURT ERRED BY ALLOWING THE JURY TO HEAR TESTIMONY ABOUT THE ISSUANCE AND EXECUTION OF A SEARCH WARRANT FOR MR. WASHINGTON'S PURPORTED RESIDENCE WITHOUT PROVIDING THE JURY WITH A CURATIVE INSTRUCTION THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY ALLOWING THE STATE TO ELICIT TESTIMONY CONCERNING THE ACTIONS OF THE GRAND JURY (NOT RAISED BELOW)
THE PROSECUTOR ENGAGED IN PROSECUTORIAL MISCONDUCT WHEN SHE SUGGESTED THAT STIPULATED FACTS HAD TO BE ACCEPTED BY THE JURY (NOT RAISED BELOW)
THE TRIAL COURT ERRED IN RULING MR. WASHINGTON'S REMOTE CRIMINAL CONVICTIONS ADMISSIBLE THEREBY PREJUDICING HIS RIGHT TO A FAIR TRIAL POINT V
THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR ACQUITTAL POINT VI
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW) POINT VII
THE TRIAL COURT MISAPPLIED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW)
In Point I of his brief, defendant argues for the first time on appeal that the trial court should have sua sponte charged the jury to disregard any mention of the issuance of a search warrant. He argues that the prosecutor's mention of the search warrant in her opening and closing statements, coupled with the police testimony concerning how the warrant was obtained, was inadmissible as it was prejudicial and irrelevant. N.J.R.E. 403; State v. Anderson, 127 N.J. 191, 207 (1992); State v. McDonough, 337 N.J. Super. 27, 34 (App. Div. 2000), certif. denied, 169 N.J. 605 (2001); State v. Alvarez, 318 N.J. Super. 137, 147-48 (App. Div. 1999). The State responds to this argument that the defense strategy at trial was to argue that defendant was not the drug seller, not that the police lacked a good basis to believe drugs were being sold from the home. Defendant stipulated to the chain of custody, admissibility of the lab report and the City of Camden Drug Free Zone Map.
Defense counsel herself referred to the search warrant in her opening statement, and defendant did not object to the State's references to the warrant. Consequently, defendant must demonstrate that the testimony concerning the search warrant and mention of the warrant by the prosecutor constituted plain error, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required only if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotation marks omitted); see also State v. Daniels, 182 N.J. 80, 95 (2004); Macon, supra, 57 N.J. at 333. The existence of the search warrant was consistent with the defense trial theory that the owners of the home or their three sons were probably the actual drug dealers. We do not find that the otherwise inadmissible evidence of the search warrant constitutes plain error in this context.
Nor do we conclude that the court had a duty to sua sponte give a curative instruction with regard to the warrant. Although defendant did not seek a limiting instruction at trial, "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). Accordingly, although the plain error standard of Rule 2:10-2 applies to our review of the charge, we must assure that a defect in the charge was not apt to have been consequential. We conclude that the court's instructions concerning the presumption of innocence, burden of proof and meaninglessness of the indictment were sufficient, especially in light of the defense strategy.
Both the State and the defense discussed the search warrant before the jury. The court in this matter should not be faulted for allowing defendant to present his theory of the case fully to the jury. Evidence of the search warrant without a limiting instruction did not in any way prejudice defendant's right to a fair trial in these circumstances.
Defendant argues as plain error that he was prejudiced by the following testimony elicited by the prosecutor on redirect:
Q. Detective, would you please explain to the jury the difference between charges and an indictment -- charges that you pressed versus an indictment?
A. The charges that I signed would be from -- based upon my observations and my investigation. The items or the charges would be crimes I believed that the defendants committed and I have reason to believe that he or she committed these crimes and I would then sign charges against the said person.
An indictment would be a tool by the prosecution in which they will take my charges and any other charges that the prosecutor, he or she, might feel are valid in the case, go before a grand jury and seek the approval of a grand jury to either further charge the individual or not charge an individual on certain crimes that I charged them with, me being the detective.
Q. So, Detective, based on your testimony, the prosecutors can further charge based on just what your charges were?
Q. Okay. And were you, in fact, the individual who testified at the grand jury in this case?
A. Yes, ma'am.
Defense counsel did not object to this testimony, which seems to have been elicited in response to the following testimony elicited by defense counsel on cross-examination:
Q. Now, when Mr. Byrnes and Ms. Henry and Mr. Washington were arrested, did they all receive the same charges?
A. No, ma'am.
Q. Can you tell me who received what?
A. Mr. Washington was charged with the possession -- possession with intent and possession with intent within a thousand feet for the heroin. And Mr. Byrnes and Ms.
Henry were charged with the possession of C.D.S.
Although we cannot determine from the record precisely why defense counsel elicited this testimony, perhaps she wanted to lay a foundation that the police or the State unfairly targeted her client for more serious charges than the co-defendants. By questioning the officer regarding the initial charges, defendant opened the door to further testimony about the charging process.
Additionally, at the beginning and at the end of the case, the court charged the jury that the indictment was not evidence of guilt. Under these circumstances, we do not find that the testimony elicited by the prosecutor without objection by defense counsel constitutes plain error. See State v. Green, 313 N.J. Super. 385, 392 (App. Div. 1998) (reversing a conviction because the prosecutor argued to the jury that "the grand jury's indictment was a consideration which should influence them to convict").
Defendant argues as plain error in Point III of his brief that the prosecutor engaged in prosecutorial misconduct by indicating to the jury that "there [wa]s no dispute" between the parties, based on the stipulations of the parties, that "in fact" the residence was within a school zone and the bags found in the home contained heroin. Defendant argues that because the jury is free to accept or reject stipulated facts, these comments exceeded "the parameters of 'permissibly forceful advocacy.'" State v. Acker, 265 N.J. Super. 351, 355-56 (App. Div.) (quoting State v. Marshall, 123 N.J. 1, 160-61 (1991)), certif. denied, 134 N.J. 485 (1993); State v. Wesner, 372 N.J. Super. 489, 494 (App. Div. 2004), certif. denied, 183 N.J. 214 (2005) (finding the judge committed error, though not reversible, by charging the jury that it was bound by stipulations).
To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (internal quotation marks and citation omitted), cert. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). Indeed, the Supreme Court has recognized that criminal trials often create a "'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). See Ramseur, supra, 106 N.J. at 323 (noting that the absence of a timely defense objection to a prosecutor's remarks in summation generally signifies that the remarks are not prejudicial). We discern no undue prejudice arising from that discrete portion of the summation and, more importantly, detect no prosecutorial misconduct when properly considering the summation as a whole. See State v. Ingram, 196 N.J. 23, 43 (2008) (evaluating the propriety of a prosecutor's summation when "[t]aken as a whole").
We find these comments by the prosecutor to be fair, given that the parties did not dispute that the home was in the school zone or that heroin was found in the home. Defendant made the strategic decision to focus the jury's attention exclusively on the identity of the seller of the heroin. This strategy was to a great extent successful in that defendant was convicted only of possession of the heroin and not possession with intent to distribute the drugs. Defense counsel did not object to the prosecutor's comments, which were factually accurate.
In Point IV of his brief, defendant argues that the court abused its discretion in ruling that the State could use his prior criminal record from 1985 onward for impeachment purposes should he testify, thereby unfairly deterring him from testifying in his own defense.
When a criminal defendant chooses to testify in his own defense, he takes the risk that evidence of his prior convictions will be admitted for purposes of impeaching his credibility. See N.J.R.E. 609 ("For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes."); State v. Brunson, 132 N.J. 377 (1993); State v. Sands, 76 N.J. 127 (1978). In Sands, supra, the New Jersey Supreme Court held that "whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge." 76 N.J. at 144. Further, "[o]rdinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Ibid. In the end, the "trial judge shall admit evidence of criminal convictions to affect credibility of a criminal defendant unless in his discretion he finds that its probative force because of its remoteness . . . is substantially outweighed so that its admission will create undue prejudice." Id. at 147. In Brunson, supra, the Court added that evidence of prior similar-crime convictions should be "sanitized" by limiting the evidence to the date, degree, and number of such prior convictions while excluding the names of the specific crime of which defendant was convicted. 132 N.J. at 391-92.
The court held a pre-trial hearing pursuant to State v. Sands. Defendant was convicted in 1971 of burglary, attempted larceny and assault, for which he received a five-year prison term. Between 1974 and 1983, defendant was convicted in Municipal Court on three separate occasions. In 1985, he was convicted of murder, N.J.S.A. 2C:11-3, possession of a weapon, N.J.S.A. 2C:39-5, and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5. He received a twenty-five-year term with a ten-year period of parole ineligibility for those crimes and was released from prison in 1999. He was convicted in 2005 of third-degree aggravated assault with a weapon, N.J.S.A. 2C:12-1b(2), and sentenced to three years in prison. He was released in November 2006, less than two years before the search in this matter.
The prosecutor conceded that the 1971 convictions were too remote in time, and the court agreed that those convictions should not be used by the State if defendant testified. The court decided that the convictions from 1985 forward could be used to impeach defendant's credibility in light of the pattern of frequent convictions, given the lengthy period of incarceration during which defendant was not free to commit crimes. As the Court in Sands noted,
When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible.
[76 N.J. at 145]
The court did not abuse its discretion ruling that defendant's convictions from 1985 forward could be used to impeach defendant.
Defendant argues in Point V of his brief that his motion for a judgment of acquittal at the end of the State's case should have been granted.
A court shall enter an order for a judgment of acquittal only "if the evidence is insufficient to warrant a conviction."
R. 3:18-1. The standard to be applied to determining a motion for a judgment of acquittal at the conclusion of the State's case is set forth in State v. Reyes, 50 N.J. 454 (1967):
[T]he question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [Id. at 458-59.]
Under Rule 3:18-1, the trial court "'is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004). The standard for deciding a Rule 3:18-2 motion for judgment of acquittal n.o.v. is the same as that used to decide a motion for acquittal made at the end of the State's case. State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004). On appeal, we apply the same standard. State v. Kittrel, 145 N.J. 112, 130 (1996).
The State's evidence, if given every favorable inference, demonstrated that defendant lived in a home, located within a school zone, where large quantities of heroin were found.*fn1 His co-defendants testified that he sold heroin to them the morning of the search and that they saw him selling drugs to others from the house. The court appropriately denied defendant's motion for a judgment of acquittal given the strength of the State's case.
In Point VI of his brief, defendant argues that cumulative errors denied him the right to a fair trial. As we have found little error in the trial, we reject this argument without further discussion. R. 2:11-3(e)(2).
Finally, defendant argues in Point VII of his brief that a sentence of five years in prison with a two-year parole disqualifier was manifestly excessive. In determining the appropriate sentence to be imposed on a convicted individual, the sentencing judge must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1a and b, balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 507 (2005); State v. Kruse, 105 N.J. 354, 358 (1987). If a sentencing judge properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Bieniek, 200 N.J. 601, 608-09 (2010). If a judge adheres to the sentencing guidelines, the sentence imposed should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).
Defense counsel argued at sentencing that her client was sixty-one years old and unlikely to commit another offense. She indicated that he has severe dental issues and a tumor in his leg that requires treatment.
On appeal, defendant argues, although not argued by defense counsel, that the court should have found mitigating factor one, that defendant's conduct neither caused nor threatened serious harm. N.J.S.A. 2C:44-1b(1). We disagree. Possession of heroin is not a "victimless crime" in that, as the prosecutor argued at sentencing, "the prevalence of drug use does lead to various types of violence throughout the city. . . . [and] the effect that the drugs have on the individuals who use them is obviously crippling to the State, as well."
The court found aggravating factors three (risk that defendant would commit another offense), six (extent of defendant's prior criminal record and seriousness of the offenses), and nine (need to deter defendant and others from violating the law). N.J.S.A. 2C:44-1a(3), (6) and (9). In finding that defendant was likely to commit another offense, the court considered defendant's extensive and serious prior record as well as the quantity of drugs found in the home. It found no mitigating factors.
Although the prosecutor requested only a five-year "flat" sentence, the court imposed a discretionary two-year term of parole ineligibility, finding that "the aggravating factors substantially outweighed the mitigating factors clearly and convincingly." N.J.S.A. 2C:43-6(b). The court specified that defendant had not been found guilty of possessing with intent to distribute heroin and was not being sentenced for that crime. Rather, the quantity of drugs was a consideration in determining the severity of the drug possession. The court explained that it imposed the two-year period of parole ineligibility "to sufficiently provide a deterrent and keep both the defendant and the streets safe." Defendant was charged with aggravated assault and weapons charges approximately three and one-half years after being released from his incarceration for murder. Defendant served his full sentence on his aggravated assault conviction, and less than two years after his release committed the present offense.
Defendant's sentence does not shock the judicial conscience in light of his serious prior criminal record, including a conviction for murder, the short time periods between re-offenses and the large quantity of heroin involved here.