April 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAMAR JACKSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-03-0713.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2011
Before Judges Sabatino and Ashrafi.
Defendant Lamar Jackson appeals from convictions resulting from two successive trials that arose out of the same indictment. At the first trial, in October 2009, the jury found defendant guilty of third-degree simple possession of crack cocaine, N.J.S.A. 2C:35-10a(1), but was unable to reach a unanimous verdict on the three other counts in the indictment. At the second trial in November 2009, defendant was convicted on all of the remaining counts, namely second-degree possession with intent to distribute more than a half an ounce of cocaine, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(2); third-degree possession of cocaine with intent to distribute it within 1000 feet of a school, N.J.S.A. 2C:35-7; and second-degree possession of cocaine with intent to distribute it within 500 feet of a public housing project, public park, or public building, N.J.S.A. 2C:35-7.1. After appropriate mergers, the trial court imposed upon defendant an extended-term sentence of eighteen years, with nine years of parole ineligibility, plus a concurrent ten-year sentence with a six-year parole disqualifier.
On appeal, defendant contends that the manner in which the trial court dealt with a potential juror who had recognized him during jury selection was unfairly prejudicial and that the court improperly allowed the State's narcotics expert to use a crack pipe and plastic baggies for demonstrative purposes during his testimony. Defendant further argues that his sentence was excessive. We affirm.
The State's proofs at both trials*fn1 established that defendant was observed, during police surveillance of an area known for drug transactions, pulling a plastic bag containing a white rocky substance out of his boot and placing it in his waistband. The substance was seized from defendant and later confirmed by testing to be crack cocaine. The pertinent details are as follows.
At around 9:00 a.m. on February 23, 2008, Atlantic City Patrolman Robert Nawrocki was conducting surveillance in the vicinity of the Stanley Holmes Village housing project. According to Officer Nawrocki's trial testimony, the housing project "[has] been known as a high-crime, high-drug area." Officer Nawrocki was "[l]ooking for narcotic sales" that day because, as he put it, there had been "a lot of complaints by citizens" about such sales.
Officer Nawrocki stated that he was about 100 yards away from the surveillance location and was using binoculars that made objects that were that distance away appear as though they were only ten yards away. Nawrocki stated that he observed defendant smoking a marijuana joint with an unidentified male on the porch of the housing unit. The unidentified man then walked inside the building.*fn2
Nawrocki testified that he then observed defendant leave the area, reach down into his boot, "manipulat[e]" his sock, and pull out a clear plastic bag. The bag contained a white rocky substance in the shape of a golf ball. Nawrocki then saw defendant place the bag in his waistband.
Nawrocki, who had been involved in about 500 narcotics cases and completed some 120 hours of narcotics coursework, testified that based on his experience and training, he believed that the defendant's plastic bag contained crack cocaine. He also noted that drug dealers will commonly attempt to conceal narcotics in the area of their waistbands.
After observing defendant's suspicious actions, Nawrocki left his surveillance location, pulled his vehicle up next to defendant, and identified himself to defendant as a police officer. Nawrocki arrested defendant and searched him. Defendant did not resist the arrest. However, when Nawrocki reached for defendant's waistband, he "was twisting and turning trying to keep [the detective] from getting to that area."
Nonetheless, the patrolman was able to recover the plastic bag containing the golf-ball-sized white substance from defendant.*fn3
Nawrocki then took defendant back to the police department and completed the booking process, which involved an additional search of defendant. During this second search of defendant's person, Nawrocki recovered a digital scale and a cell phone. Officer Nawrocki did not recover any pipes, lighters, plastic baggies, or money.
Nawrocki then field-tested the white, rocky substance, and it came up positive for crack cocaine. The substance was then sent out to the State Police laboratory for additional testing. Those test results confirmed that the substance tested positive for crack cocaine and that it weighed 1.08 ounces.*fn4
Nawrocki testified, without objection, that it was his belief that defendant intended to sell the crack cocaine that he possessed because
[t]he quantity, the way it was packaged in a plastic bag is usually known for dipping where you can open the bag and pull out small rocks, sell them for $5.00 or $10.00.
That alleviates any type of baggies you might have to carry on you, easier to get rid of because it's one bag. Also the fact that he had a scale is indicative of sales to weigh it out . . . It's easier to weigh it for the customer so the customer knows they're not getting beat.
The State also presented expert testimony from Detective James Scoppa, Jr., of the Atlantic County Prosecutor's Office. Detective Scoppa is a member of the Prosecutor's Shooting Response Team, which investigates gang, drug, and organized crime-related shootings. He is also a member of the FBI Safe Streets Task Force Unit, which investigates large-scale drug distribution organizations. Scoppa had previously worked for five years in the Narcotics Unit, investigating drug dealers, drug users, and organizations.
Scoppa has extensive training and experience in the fields of drug use, distribution, and investigation. Among other things, he has completed an eighty-hour DEA course on drug dealer and drug user investigation; a forty-eight-hour "Top Gun" course on drug dealers and users; a forty-hour course on undercover work; and a twenty-four-hour course on how to identify marijuana fields. Scoppa has participated in over 500 narcotics operations and has encountered over 100 drug users during the course of his work. Given Scoppa's extensive training and experience, the court qualified Scoppa as an expert in "narcotics use and distribution."
During direct examination of Scoppa, the State posed a hypothetical question that mirrored the State's version of the facts in this case. Based on that hypothetical, the detective testified that "[a]bsolutely without a doubt the male in your scenario possessed that crack cocaine with the intent to distribute [it]." After examining the crack cocaine in evidence, which had been recovered from defendant, Scoppa explained:
This is a little bit over an ounce of crack cocaine in here . . . Now  anything else
-- I mean if this was an ounce of rice or an ounce of peas, it wouldn't be a lot. For crack cocaine this is a ton. For crack cocaine this on the street level is worth $3000 to $5000 . . . This is not something that a drug user would have. A drug user would literally have, in my experience, a very small amount[.]
Over defendant's continuing objection,*fn5 Scoppa then displayed a crack pipe and various plastic baggies to the jury. As he showed them, he stated "you can imagine how much crack's in here. It's  a fraction of a gram . . . and [the users will] put it in a crack pipe, which you can see how small the hole is here, and they'll take the hit of crack." Scoppa added that "you can probably get over 100 of these [small] baggies from [the] amount of crack cocaine [found on defendant]."
Scoppa explained that it was not common for drug users to purchase more crack cocaine than they intended to smoke at a particular time. According to Scoppa, mid-level or high-level dealers usually keep their crack cocaine in "one bag, especially if they haven't gotten the opportunity to bag it." He added that he had never seen a crack cocaine user in possession of a digital scale.
Detective Scoppa further stated that he would not be surprised if someone he believed to be a drug dealer did not have money on his person when he was arrested because "the drug dealer  may have just gone out to sell." Scoppa also stated that the absence of a crack pipe would indicate that the person did not intend to smoke the crack.
Defendant did not testify at either of the trials, nor did he produce any witnesses. His trial attorney's theme in his closing arguments was, essentially, that the State's proofs of defendant's intent to distribute cocaine were circumstantial and inadequate.
As we have already noted, defendant was found guilty of simple possession at the first trial, and the jury was hung on the remaining counts that charged him with various forms of illegal possession with intent to distribute. The jury at the second trial thereafter convicted defendant on those open intent-to-distribute counts.
On appeal, defendant raises these points for our consideration:
DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND AN IMPARTIAL JURY BY THE TRIAL COURT'S DECISION TO RETAIN A POTENTIAL JURY POOL THAT HAD BEEN TAINTED BY EXCUSED POTENTIAL JUROR, N.N.'S, COMMENT THAT SHE KNEW THE DEFENDANT AND DEFENSE COUNSEL FROM COURT, AND BY THE COURT'S ISSUANCE OF A FLAWED INSTRUCTION THAT FAILED TO CURE THE TAINT. (RAISED IN PART).
THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE STATE'S EXPERT TO INTRODUCE A PIPE AND PLASTIC BAGGIES AS DEMONSTRATIVE EVIDENCE WHERE NEITHER WERE FOUND ON THE DEFENDANT'S PERSON AND THE PREJUDICE TO THE DEFENDANT OUTWEIGHED ANY PROBATIVE VALUE UNDER N.J.R.E. 403.
THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO CONSIDER CERTAIN MITIGATING FACTORS, ERRONEOUSLY WEIGHING THE AGGRAVATING AND MITIGATING FACTORS, AND IMPOSING AN EXCESSIVE SENTENCE.
THE ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, SUPPORT HIS REQUEST FOR A REVERSAL OF HIS CONVICTION AND SENTENCE.*fn6
For the reasons we explain in Part II, infra, none of these points warrant our intervention.
During jury selection at the second trial, a potential juror seated in the venire panel, who coincidentally was employed as a municipal court administrator, stated in open court that she recognized the defense attorney and the defendant from her court. The trial judge asked, "[y]ou mean just as a visitor to the  court?" to which the potential juror replied, "[y]es." During an ensuing sidebar conference with the judge and both counsel, the potential juror elaborated that she thought her court had bench warrants out on defendant. The potential juror was then excused.
The judge and both counsel then considered whether a curative instruction could be fashioned to address any prejudice that might flow from the potential juror's statement in open court. The judge noted that he did not want to have to discharge the entire remaining panel. Defense counsel agreed that he too did not want to lose the panel, but was uncertain as to whether the problem could be sufficiently addressed.
Despite that initial equivocation, defense counsel eventually agreed with the court's decision to ameliorate any negative effect that the potential juror's comment might have had with a curative instruction. The judge then addressed the other potential jurors and told them:
I want to clarify one other thing, too, and that we clarified here at sidebar because I don't want any negative inferences or -- or positive inferences drawn that shouldn't be drawn. Number one, [the potential juror] is in charge of traffic court. Okay? Number two, it -- it would appear that she does not know or recognize [defendant] Mr. Jackson but only knows and recognizes [defense counsel]. And number three, even if she did, she indicated that the Mr. Jackson she's thinking of was simply a witness in a traffic case. So we don't want you to in any way, shape, or form draw any negative inference or positive inference, for that matter, with regard to any appearance  in court in what essentially is a traffic court[.]
Defendant's trial counsel did not object to this instruction after it was issued. Nor did he suggest to the court any clarifying or other additional comments for the jury on this subject. Jury selection was then completed. Both counsel stated on the record that the empanelled jury was satisfactory.
Despite not having objected to the curative instruction when it was given, defendant now contends on appeal that the trial court's failure to dismiss the jury panel was plainly erroneous and deprived him of a fair trial. He maintains that the potential juror's recognition of him in the courtroom implicitly suggested that he had engaged in prior criminal behavior, thereby tainting the other potential jurors. Defendant argues that the curative instruction was inadequate, contending that it only "vaguely told the jury not to draw any negative or positive inferences" from the potential juror's recognition of him. He also criticizes the instruction for containing false information, i.e., that the potential juror recognized him only as "a witness in a traffic case," while the truth was that she seemingly recognized him as a defendant in a municipal case and that the case might not have been about a traffic summons because "warrants" may have been issued for him.
Because defendant's trial attorney agreed to the trial court going forward with jury selection without discharging the entire panel and did not object to the court's curative instruction, our review of this issue is guided by the plain error doctrine. See R. 2:10-2. Under that doctrine, we do not disturb a trial court's handling of an issue that arises during the trial proceedings unless the alleged error was one that was "clearly capable of producing an unjust result[.]" Ibid.; see also State v. Macon, 57 N.J. 325, 333, 341 (1971).
As a general matter, a trial judge undoubtedly has a responsibility to ensure that an empanelled jury is both fair and impartial. See State v. Papasavvas, 163 N.J. 565, 587-88 (2000). In carrying out that function, the trial judge is "vested with broad discretionary powers in determining the qualifications of jurors." State v. Jackson, 43 N.J. 148, 160 (1964), cert. denied, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965). The judge's "exercise of discretion will ordinarily not be disturbed on appeal." Ibid. Moreover, in reviewing whether the trial court's exercise of discretion in this setting was misapplied, we also consider the roles that had been played by trial counsel in the process. Papasavvas, supra, 163 N.J. at 587-88.
Having reviewed this record in light of these well-settled principles, we conclude that the trial court did not abuse its discretion in its handling of the unanticipated circumstances presented by the potential juror's recognition of defendant and her brief remarks uttered in open court. The judge rightly -- and promptly -- excused the juror for cause once it became clear that she recognized defendant from other court proceedings. The judge appropriately solicited the views of both counsel on how to ameliorate the possibility that any of the other potential jurors would infer from the potential juror's comments that defendant had engaged in prior criminal conduct. Defendant's trial attorney did not request a voir dire examination of the other potential jurors to determine whether they had been affected by her remarks. In fact, if such individualized inquiries had been made, they might have drawn undue attention to the excused juror's remarks.
The judge was not obligated to strike the entire jury pool based upon this brief episode. The court's curative instruction was adequate to dispel any reasonable claim of prejudice. The instruction was appropriately swift and pointed. See State v. Vallejo, 198 N.J. 122, 134 (2009) (mandating that curative instructions must be "firm, clear, and accomplished without delay"). Jurors are presumed to have followed a court's instructions. See Verdicchio v. Ricca, 179 N.J. 1, 36 (2004); see also Williams v. James, 113 N.J. 619, 632 (1989) (recognizing that juries are "capable of following a curative instruction to ignore prejudicial matter"). Although it would have been preferable for the instruction to have omitted its contrived description of the municipal proceedings as a "traffic" case in which defendant had been only a "witness," we appreciate that the judge injected those comments in a well- intentioned effort to minimize any possibility of prejudice to defendant. In any event, the partial falsity of the court's description is inconsequential.
Although it is not essential to our analysis, we add that defense counsel's deliberate and ultimate decision to forego dissolution of the entire jury panel and his acquiescence to the curative instruction amounts to invited error, for which no remedy on appeal is warranted. See State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966) (applying principles of invited error in a criminal case); see also N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-42 (2010) (applying those principles of invited error more recently in a parental termination case where the constitutional rights of a litigant were likewise at stake).
We turn to defendant's separate claim that the trial court committed reversible error in allowing Detective Scoppa, the State's narcotics expert, to display a sample crack pipe and several plastic baggies commonly used for cocaine to the jurors. The trial court permitted those demonstrative aids to be used because they would help jurors understand how crack is used, information that was "not within the ken of the average juror." The judge also ruled that, on balance, the exhibits were more probative than prejudicial. See N.J.R.E. 403. Significantly, the judge did not allow the jurors to hold the demonstrative items or pass them around.
The term "demonstrative aids" refers to items that serve as "'aid[s] to the presentation and understanding of the evidence.'" Heinzerling v. Goldfarb, 359 N.J. Super. 1, 8 (Law Div. 2002) (quoting United States v. Bray, 139 F.3d 1104, 1112 (6th Cir. 1998)). The expert's usage of the pipe and the baggies as demonstrative aids was entirely proper in this case.
Defendant argues that the trial court abused its discretion in allowing the State's expert to use these exhibits because the items "unduly confused and prejudiced the jury." He asserts that the objects were not found on his person and that, therefore, displaying them at his trial had no probative value and could not aid in the jury's understanding of the case. He maintains that jurors commonly know what plastic baggies and pipes look like, so there was no need to see the State's expert demonstrate their use. Moreover, he contends that it was not essential for Detective Scoppa to use those "props" because Scoppa testified at the first trial without them. In the alternative, defendant argues that even if we conclude that the trial court properly allowed the detective to use the exhibits, the court should have issued a limiting instruction, sua sponte, reminding the jury that no pipe or baggies were found on defendant. We reject these contentions.
In reviewing defendant's contentions, we are mindful that appellate courts give substantial deference to a trial court's evidentiary rulings. See State v. Ramseur, 106 N.J. 123, 266 (1987). "The party seeking to preclude the admission of evidence pursuant to N.J.R.E. 403 has the burden of convincing the trial judge that the factors favoring exclusion substantially outweigh the probative value of the contested evidence." State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000). "The mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Morton, 155 N.J. 383, 453-54 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). "Whether the probative value of the evidence is outweighed by the potential prejudice is a decision left to the discretion of the trial judge." Swint, supra, 328 N.J. Super. at 253. "On appellate review, the decision of the trial judge [on such evidentiary matters implicating N.J.R.E. 403] must be affirmed unless it can be shown that he palpably abused his discretion." Ibid.
As our established case law instructs, "[t]here is nothing inherently improper in the use of demonstrative or illustrative evidence." State v. Scherzer, 301 N.J. Super. 363, 434 (App. Div.), certif. denied, 151 N.J. 466 (1997). Permitting or disallowing the use of such demonstrative evidence is within the trial judge's discretion. See ibid.
Here, the court did not err or abuse its discretion in allowing Detective Scoppa to use the crack pipe and plastic baggies for demonstrative purposes. The judge conducted a full Rule 104 hearing, fully considered the arguments of both the State and the defense, and provided a clear explanation for his ruling on the record. It was reasonable for the judge to determine that the exhibits would be more probative than prejudicial, because lay persons might not understand how crack cocaine is typically consumed and kept by a drug user. The judge was not required to issue, sua sponte, an unrequested limiting instruction regarding the fact that the defendant had not possessed the items at the time of his arrest. Instead, both the prosecutor and defense counsel emphasized to the jury that Officer Nawrocki did not find either a crack pipe or plastic baggies on defendant's person when he searched him.
In sum, we discern no error from the expert's use of these demonstrative aids.
Lastly, defendant challenges his eighteen-year sentence and the corresponding nine-year parole disqualifier as excessive. The sentence was for an extended term, which the trial court properly granted at the State's request pursuant to N.J.S.A. 2C:43-6f and 2C:43-7a(3), because he was convicted in this case of a second-degree narcotics offense, and he had been previously convicted of one or more narcotics offenses. The applicable extended-term range was between ten and twenty years.
In imposing an eighteen-year extended term within that range upon defendant, the judge reasonably balanced the applicable aggravating and mitigating factors. The judge noted the prospect that defendant might commit another offense, N.J.S.A. 2C:44-1a(3), given his extensive criminal history, which included, among other things, fifteen adult arrests and nine prior convictions. That same extensive criminal history reasonably led the judge to conclude that "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted" should be considered as a second aggravating factor. N.J.S.A. 2C:44-1a(6). Additionally, it was reasonable for the judge to conclude that imposing a sentence at the upper end of the range would deter the defendant and others from violating the law in the future.
N.J.S.A. 2C:44-1a(9). Finally, a difficult family life does not, as defendant argues, necessarily constitute a mitigating factor pursuant to N.J.S.A. 2C:44-1b.
It is not our function as an appellate court to "'second-guess'" a trial court's discretion in imposing a sentence within the permissible range and in applying the pertinent statutory factors. See State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. Ghertler, 114 N.J. 383, 384 (1989)). Once the trial court has balanced the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1a and 2C:44-1b, it "may impose a term within the permissible range for the offense." Id. at 608. We do not disturb a sentence imposed within those parameters, unless it is "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).
The sentence imposed in this case does not shock our conscience and, in fact, is amply justified by the applicable factors, particularly defendant's history as a repeat drug offender.