February 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KARLOW ANDERSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-01-0103.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 26, 2011
Before Judges A. A. Rodriguez, Sabatino, and Ashrafi.
Following a two-day jury trial in November 2009, defendant Karlow
Anderson was found guilty of third-degree possession of a controlled
dangerous substance ("CDS"), specifically crack
cocaine, N.J.S.A. 2C:35-10a(1). The jury acquitted defendant of the
two other remaining counts in the indictment, which had charged him
with possession of CDS with the intent to distribute it, N.J.S.A.
2C:35-5a(1) and -5b(3); and possession of CDS with the intent to
distribute it near a public park, N.J.S.A. 2C:35-7.1.*fn1
The trial court sentenced defendant to two years of probation
and a seven-month suspension of his driver's license.
Defendant now appeals his conviction, contesting several aspects of the pretrial and trial proceedings. For the reasons that follow, we affirm.
The State's proofs at trial adduced the following. At approximately 9:00 p.m. on October 7, 2008, two Elizabeth police officers on patrol in a marked vehicle observed two African-American males standing on the sidewalk in front of a residence. Defendant was one of the two men who the officers observed. At the time of the officers' initial observation, the men on the sidewalk did not appear to be doing anything wrong. However, as the police approached, one of the officers, Wilfredo Torres, saw that defendant "nonchalantly started walking away."
Officer Torres got out of the patrol car with his flashlight. He followed defendant, but neither he nor his partner, Officer Michael Barros, spoke to defendant. As Officer Torres walked towards defendant, Officer Barros approached the other individual, who was later identified as "Drayton."
Officer Torres followed defendant into an alleyway. The alleyway was located between two homes and was fenced off in the back. Torres estimated its dimensions to be about eight feet wide and fifty feet long. As Torres went into the alleyway he shined his flashlight ahead of him because, as he testified, "[t]he alleyway was dark [with] no lighting in there, whatsoever."
Officer Torres then observed defendant make a "flicking" motion with his hand and discard an object. The officer asked defendant what he was doing. Defendant responded that he was urinating. At that point, the two officers detained defendant.
Officer Barros searched the alleyway for the object that defendant had just discarded. He retrieved a plastic bag that was filled with smaller plastic bags containing suspected CDS. Defendant was then placed under arrest. A subsequent laboratory test confirmed that 2.31 grams of crack cocaine had been retrieved from the bag. Defendant was then indicted for CDS offenses relating to that cocaine.
Prior to trial, defendant moved to suppress the cocaine because it had been recovered by the police as the result of a warrantless pursuit of defendant into the alleyway. The trial court denied that motion, concluding that Officer Torres's conduct in following defendant into the alleyway, and the subsequent recovery of the discarded bag, were constitutional.
During the short trial of this case, the State presented testimony from Officers Torres and Barros. The State also presented opinion testimony from Detective Martin Lynch of the Union County Prosecutor's Office, an expert in narcotics distribution. Defendant did not testify and he did not present any witnesses on his own behalf. On the second day of deliberations, the jury convicted defendant of the simple possession count and acquitted him of the intent-to-distribute CDS and public park counts. Two months later, the trial court imposed the previously-noted probationary sentence, which defendant does not contest on appeal.
Defendant raises the following points for our consideration:
THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS EVIDENCE
THE TRIAL COURT ERRED BY FAILING TO EXCUSE JURORS BASED UPON THEIR STATEMENTS DURING JURY SELECTION THAT POLICE OFFICERS WERE MORE LIKELY TO TELL THE TRUTH THAN AVERAGE CITIZENS POINT III
THE TRIAL COURT ERRED BY PERMITTING THE STATE TO OFFER IMPROPER EXPERT TESTIMONY THEREBY PREJUDICING [DEFENDANT'S] RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY PERMITTING THE STATE'S POLICE WITNESSES TO TESTIFY THAT THEY WERE PATROLLING THE AREA OF [DEFENDANT'S] ARREST IN RESPONSE TO CITIZEN COMPLAINTS ABOUT DRUG ACTIVITY IN THE AREA POINT V
THE TRIAL COURT ERRED IN PERMITTING UNDULY PREJUDICIAL TESTIMONY THAT THE LOCATION OF THE INCIDENT WAS A HIGH-CRIME AREA (NOT RAISED BELOW)
THE GUILTY VERDICT ON THE CHARGE OF POSSESSION OF CDS WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW)
THE TRIAL COURT'S FAILURE TO DECLARE A MISTRIAL AFTER THE JURY ANNOUNCED THAT IT COULD NOT REACH A VERDICT VIOLATED [DEFENDANT'S] RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
The first point raised by defendant is his claim that the trial court erred in denying his motion to suppress the drugs that he discarded in the alleyway. In particular, he argues that the police had no authority to follow him into the alleyway with a flashlight without reasonable suspicion that he was engaged in a crime. He also contends that the trial court erred in concluding that he had abandoned the drugs by dropping the bag containing them on the ground. These arguments lack merit.
The actions of Officer Torres in following defendant into the alleyway with a flashlight did not violate defendant's constitutional rights. Based upon his initial observations of an individual who had promptly walked away when he saw the police car approaching, Officer Torres was authorized to conduct a minimally intrusive field inquiry to assess what that individual was doing and why he had departed. Such a field inquiry requesting an individual to respond to basic questions is permissible, even in the absence of probable cause or reasonable suspicion of a crime, so long as the police officer questions the individual in a manner that is "'not harassing, overbearing, or accusatory in nature.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). The police do not violate the constitution by "'merely approaching'" an individual to ask questions. State v. Davis, 104 N.J. 490, 497 (1986) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)).
The trial judge, Judge James C. Heimlich, credited Officer Torres's testimony at the suppression hearing, during which the officer explained his actions and why he had followed defendant in the alleyway. The judge's credibility assessment deserves our deference. See State v. Locurto, 157 N.J. 463, 475 (1999). Based on that credible testimony, the judge reasonably concluded that Officer Torres was justified in following defendant into the alleyway, and that his actions did not rise to an arrest or a detention. In addition, Officer Torres's use of a flashlight to illuminate the dark alleyway "does not transform an otherwise reasonable observation into an unreasonable search within the meaning of the Fourth Amendment." State v. Gibson, 318 N.J. Super. 1, 11 (1999) (citing United States v. Dunn, 480 U.S. 294, 304, 107 S. Ct. 1134, 1141, 94 L. Ed. 2d 326, 337 (1987)).
For these various reasons, we affirm the trial court's denial of the motion to suppress.
Defendant next argues that he was deprived of a new trial because, during the voir dire of three potential jurors, they expressed a belief that police officers were more likely to tell the truth than other citizens, while also indicating nonetheless that they could be fair and impartial. He contends that the trial court erred in declining to excuse these jurors for cause, and that the error deprived him of a fair trial.
We need say little about this issue because it is undisputed that defendant's trial counsel used peremptory challenges to strike each of these three potential jurors. Moreover, it is undisputed that defendant did not exhaust his peremptory challenges. Given the fact that none of the three individuals in question ultimately served on the jury, and that defendant still had peremptory challenges remaining after striking them, no prejudice warranting relief has been demonstrated. In fact, defense counsel agreed to the composition of the empaneled jury, and defendant has presented no proof on appeal that any of the empaneled jurors were biased. Consequently, any error in the denial of the request to strike the three jurors for cause was harmless. Moreover, we are not persuaded that the trial judge misapplied his discretion in declining to strike these prospective jurors for cause, given their sworn assurances of impartiality and the trial court's assessment of their demeanor. State v. Reynolds, 124 N.J. 559, 567 (1991); see also State v. Singletary, 80 N.J. 55, 62-63 (1979).
Defendant next argues that the trial court erred in permitting Detective Lynch to present expert testimony regarding the packaging of the recovered crack cocaine and the circumstances under which such a package would commonly be possessed. In particular, defendant claims that Detective Lynch was improperly allowed to respond to hypothetical questions about an individual who discards a bag containing smaller bags of drugs when he sees a police officer, and to opine that the individual had possessed the drugs for distribution rather than for personal use. Defendant asserts that this expert testimony unfairly prejudiced him by bolstering Officer Torres's disputed assertion that he saw defendant discard the bag of drugs in the alleyway.
Notably, defendant's trial counsel did not object to this portion of Detective Lynch's testimony at trial. Consequently, our review of this issue is guided by a plain error standard. See State v. Macon, 57 N.J. 325, 333 (1971); see also State v. Sharpless, 314 N.J. Super. 440, 456 (App. Div.) (holding that defendant waived any potential objection by not objecting to the detective's testimony at trial), certif. denied, 157 N.J. 542 (1998), overruled on other grounds by State v. Richards, 351 N.J. Super. 289, 303 (App. Div. 2002).
We discern no error, much less plain error, in the admission of Detective Lynch's testimony. The detective indisputably had the credentials and experience to testify as an expert in narcotics. See N.J.R.E. 702; State v. McLean, 205 N.J. 438, 449 (2011). It is permissible for a prosecuting attorney to pose hypothetical questions to an expert witness, so long as they have a reasonable nexus to the factual proofs in case. See N.J.R.E. 705; see also State v. Odom, 116 N.J. 65, 82 (1989). The hypothetical questions posed to Detective Lynch fairly corresponded to the State's proofs of what had occurred in the alleyway and how the recovered drugs were packaged. Moreover, any alleged error in the admission of the detective's opinions concerning intended CDS distribution was harmless, given that the jury acquitted defendant of the two intent-to-distribute counts in the indictment.
Defendant maintains that the arresting officers conveyed inadmissible hearsay proofs during the course of their testimony. Specifically, defendant contends that the officers were improperly allowed to testify that they had been patrolling the neighborhood and conducting an investigation because of complaints that the police had received from unidentified citizens about drug activity, loitering, prostitution, and other wrongful conduct. He also complains that Officer Torres impermissibly referred to the neighborhood of the incident as a "high crime" area.
These arguments fail for several reasons. First, although defendant's trial counsel objected to Officer Torres's testimony concerning "what other people perceived" about the area, the trial court sustained that objection in defendant's favor, and no curative instruction was sought. Second, the references to citizen complaints were not presented for their truth in violation of the hearsay rule, see N.J.R.E. 801 and 802, but instead provided a reasonable explanation about why the officers were patrolling the area and observing the two men standing outside. See State v. Tarver, 272 N.J. Super. 414, 431-33 (App. Div. 1994) (finding no plain error in an officer's testimony that an investigation had been initiated after he received a report of people on the corner selling narcotics).
We reject defendant's claim that the officers' testimony violated the precepts of State v. Bankston, 63 N.J. 263, 271 (1973), because the testimony here did not, as Bankston proscribes, convey that "a non-testifying witness has given the police evidence of the accused's guilt." The officers' testimony in this case did not suggest that they had out-of-court information implicating defendant in a crime. Moreover, as we already have noted, defendant was acquitted of the intent-to-distribute charges, which suggests that the jury was not unduly swayed by the officer's portrayal of the neighborhood.
We similarly reject defendant's related argument that Officer Torres impermissibly referred to the neighborhood of defendant's arrest as a "high crime" area. The officer's characterization, which was relevant in explaining the police's actions, was based upon his personal perceptions and observations as a patrolman in the City of Elizabeth, and comprised proper lay testimony. See N.J.R.E. 701; see also McLean, supra, 205 N.J. at 459; Trentacost v. Brussel, 164 N.J. Super. 9, 20 (App. Div. 1978) (permitting a trained detective to offer lay opinion testimony that a neighborhood was a "high-crime" area), aff'd 82 N.J. 214 (1980).
Defendant also contends that the trial court was obligated to declare a mistrial when the jury initially reported that it was unable to reach a verdict. We disagree.
After less than three-and-a-half hours of deliberations, the jury sent the judge a note asking: "[i]f we cannot come to a unanimous agreement on all three charges do they all get thrown out, and we are a hung jury?" In response, the trial court advised the jurors that they should continue deliberating, issuing a customary charge explaining to the jurors their obligations to consider the evidence impartially, to consult with and consider the views of one another, and to ascertain the truth. That instruction substantially tracked the model criminal charges. See State v. Figueroa, 190 N.J. 219, 221 (2007); State v. Czachor, 82 N.J. 392, 405-07 (1980). No objection to this was raised. The jurors thereafter returned a verdict convicting defendant of the simple possession count and acquitting him of the intent-to-distribute counts.
We perceive no abuse of discretion by the judge in withholding a mistrial after only a few hours of deliberation and instead issuing the standard instructions that he provided. State v. Roach, 222 N.J. Super. 122, 129 (App. Div. 1987) (noting the trial court's discretion in granting or denying a mistrial because of an apparently hung jury), certif. denied, 110 N.J. 317 (1988); see also State v. Thomas, 76 N.J. 344, 362 (1978).
The remaining contentions of defendant -- including his claim that the
proofs were manifestly against the weight of the evidence*fn2
and of cumulative error -- lack sufficient merit to warrant
discussion in this written opinion. R. 2:11-3(e)(2).