July 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BYRON K. JONES, JR., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 07-05-443.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2012
Before Judges A. A. Rodriguez and Ashrafi.
Defendant Byron K. Jones Jr. appeals from his conviction in a non-jury trial on drug distribution charges and a sentence of seven years imprisonment. We affirm.
A Gloucester County grand jury indicted defendant on six third-degree charges: (counts one and four) possession of cocaine, N.J.S.A. 2C:35-10a(1); (counts two and five) possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3); and (counts three and six) distribution of cocaine, N.J.S.A. 2C:35-5b(3). Counts one through three arose from an undercover purchase of cocaine from defendant on November 3, 2006. Counts four through six arose from the purchase of cocaine from defendant by the same undercover detective at the same location six days later, November 9, 2006.
Defendant expressly waived in open court his constitutional right to be tried by a jury. His bench trial was held before Judge Walter Marshall Jr. in April 2010. The State presented the testimony of four law enforcement witnesses - the undercover detective, a second detective in charge of the investigation, an evidence custodian, and an expert from the State Police laboratory to identify the items purchased as cocaine. The defense did not present any witnesses.
The undercover detective testified that on November 3, 2006, he and a confidential informant went to a fast food restaurant, where the confidential informant introduced him to defendant. The detective then purchased one-quarter ounce of cocaine from defendant, receiving the drugs and paying $250 to defendant under a table. The detective also testified that he obtained defendant's telephone number at that time for future transactions. Following the November 3 purchase, the detective in charge of the investigation showed the undercover detective a single photograph, which depicted defendant, and the undercover detective identified the photograph as the person from whom he had just purchased the cocaine.
The undercover detective testified that he contacted defendant directly on November 9, 2006, at the telephone number he had received, and he asked for another quarter ounce of cocaine. The detective then met defendant alone at the same fast food restaurant and purchased the quarter ounce, again for $250. No confidential informant was involved or present for the second purchase. After the transaction, the undercover detective again identified the same photograph as the person from whom he had purchased the cocaine.
The detective testified that he wore a concealed microphone during the two transactions so that other detectives could monitor the events from a location nearby to ensure his safety and the safety of the public. He testified that the November 3 transaction was not recorded because the detectives did not want to jeopardize the informant's safety by recording his voice.
During cross-examination of the undercover detective, defense counsel discovered a DVD recording in the detective's file that was marked "not for discovery" and had not been turned over to the defense before the trial. The assistant prosecutor who was trying the case was not aware of the DVD recording. The court ruled that the defense was entitled to discovery of the DVD, which was a recording of the November 3 transaction. The recording revealed that two confidential informants had actually been present during the first transaction and one of them had initially received the cocaine before it was returned to defendant and then given to the undercover detective. The court ordered that a transcript of the recording be promptly prepared, and the defense was given an opportunity to review the recording and transcript and subsequently to cross-examine the undercover detective about the discrepancies in his testimony and the contents of the recording.
Upon completion of all testimony and the arguments of counsel, Judge Marshall dismissed counts one through three of the indictment pertaining to the November 3 transaction. The judge found that the State had violated defendant's due process rights by failing to disclose the recording before the trial. Reviewing the evidence pertaining to counts four through six, the judge concluded beyond a reasonable doubt that defendant had engaged in the November 9 transaction and therefore was guilty of the charges brought in those counts.
At the sentencing hearing on September 20, 2010, the judge referenced defendant's three prior convictions on drug distribution charges and sentenced him to an extended term of seven years imprisonment with three years of parole ineligibility, consecutive to a sentence defendant was then serving for conviction on another drug offense.
On appeal, defendant argues:
THE DEFENDANT'S RIGHT TO A JURY TRIAL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR.
9 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT RELIED ON AN ERRONEOUS LEGAL STANDARD TO DETERMINE WHETHER TO GRANT A PRO SE MOTION FOR A WAIVER OF A JURY TRIAL.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE (Not Raised Below).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE SUPPRESSION OF EXCULPATORY EVIDENCE.
THE SENTENCE IS EXCESSIVE.
A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO A MANDATORY EXTENDED TERM.
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
Although not designated properly in the argument points as required by Rule 2:6-2(a)(1), Point I, pertaining to waiver of trial by jury, was also not raised before the trial court. In fact, it is directly contrary to defendant's application at the time of trial to dispense with a jury.
As background for the issue raised in Point I, we recount the following information gathered from the sentencing hearing and the presentence investigation report. After the undercover transactions in this case, defendant was arrested and charged with drug offenses based on a search warrant executed on February 5, 2007. He was charged in a separate indictment with second-degree possession of a controlled dangerous substance with intent to distribute and related offenses. He stood trial before a jury and Judge Marshall on the separate indictment and was found guilty. The judge sentenced him on January 22, 2010, to thirteen years imprisonment with six-and-a-half years of parole ineligibility.
When he appeared before the judge again on April 12, 2010, on the charges arising from the November 3 and 9, 2006 undercover purchases, defendant requested that the court conduct the trial without a jury. Defense counsel stated he had advised defendant against proceeding without a jury, but defendant still desired to waive a jury for the second trial. Judge Marshall spoke to defendant directly and advised him about his Sixth Amendment right to trial by jury. Defendant indicated that he understood his rights but he believed he would receive a fair trial without a jury. Before proceeding with the bench trial, the judge established through questioning defendant that he was voluntarily and knowingly waiving trial by jury.
On appeal, defendant argues that the court's acceptance of his waiver did not satisfy the holding of State v. Dunne, 124 N.J. 303 (1991), with respect to waiver of a jury trial. In Dunne, the Supreme Court stated:
[W]hen reviewing a request to waive a jury trial, a court should:
(1) determine whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel;
(2) determine whether the waiver is tendered in good faith or as a stratagem to procure an otherwise impermissible advantage; and
(3) determine, with an accompanying statement of reasons, whether, considering all relevant factors . . . it should grant or deny the defendant's request in the circumstances of the case. [Id. at 317.]
Defendant argues that the judge in this case did not consider whether defendant had a good faith basis for waiving trial by jury and did not state explicitly the reasons for granting the waiver.
Defendant's argument is without merit. Dunne involved the trial court's denial of a defendant's request to waive a jury in a murder case. Id. at 307. The Supreme Court first held that the defendant did not have a constitutional right to a bench trial instead of a jury trial. Id. at 312, 316. It ultimately held that the trial court had not abused its discretion in denying the defendant's waiver of a jury trial. Id. at 306.
In State v. Jackson, 404 N.J. Super. 483, 489-90 (App.
Div.), certif. denied, 199 N.J. 129 (2009), we considered Dunne in the context of facts and arguments essentially identical to those in this case. In Jackson, as here, the trial court granted the defendant's application to waive a jury trial after questioning him closely to ensure that his waiver was knowing and voluntary. Id. at 486-88. After the defendant was convicted at a bench trial, he challenged on appeal the judge's granting of his request. Id. at 485. In rejecting the defendant's argument on appeal, we analyzed the reasoning for Dunne's strict standards as quoted previously, id. 488-91, and we held: "that a defendant who has persuaded the trial court to grant his motion to waive the right to a jury trial may challenge that decision only if he can show that his waiver was not voluntary and knowing[,]" id. at 490. We stated that the other requirements established in Dunne applied where the court denied defendant's application for the benefit of the public. Ibid.
Here, the trial judge made an explicit finding that defendant waived his right to trial by jury "knowingly, intelligently, and voluntarily." The court stated that defendant's reason for choosing to proceed without a jury was that "he just feels more secure with the court handling [the trial] rather than a jury." There was no plain error in the court accepting defendant's waiver of a jury trial and conducting a bench trial.
Next, defendant argues that he was prejudiced by testimony from the undercover detective identifying him as the person from whom he purchased the cocaine on November 3 and 9, 2006. He argues that the showing of a single photograph to the undercover detective after each transaction was an unduly suggestive identification procedure contrary to guidelines promulgated by the Attorney General and also contrary to the Supreme Court's recent detailed discussion of appropriate identification procedures in State v. Henderson, 208 N.J. 208, 288-93 (2011).
The plain error standard of review applies to this argument because defense counsel raised no objection to the undercover detective's identification testimony at trial. R. 2:10-2. Under the plain error standard, a conviction will be reversed only if the error was "clearly capable of producing an unjust result," ibid., that is, if it was "'sufficient to raise a reasonable doubt as to whether the error led [the factfinder] to a result it otherwise might not have reached[.]'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Defendant must prove that a plain error was clear or obvious and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), overruled in part on other grounds by State v. Boretsky, 186 N.J. 271, 284 (2006).
Here, identification of defendant was not dependent entirely on the undercover detective's testimony. The identification was corroborated by descriptions of the two different cars and their distinctive wheels that the seller of the cocaine drove to the fast food restaurant on November 3 and 9, 2006. The detective in charge of the investigation had also made observations of the cars to identify defendant as the person who arrived and met with the undercover detective at the restaurant. The second detective was previously familiar with defendant and had, in fact, planned the undercover investigation to target defendant specifically. Furthermore, the November 9 transaction was arranged through direct contact of the undercover detective with defendant using the phone number provided to him.
Besides this corroborative evidence, the identification of the single photograph by the undercover detective is reliable because the detective, who was the same race as defendant, met him two times within a matter of days, interacted closely with defendant for several minutes, saw the photograph immediately after each transaction, and was able to identify defendant in the courtroom.
The fact that identification of defendant by the undercover detective was not a contested issue at trial indicates its relative insignificance in the nature of the proofs at trial.
We conclude there was no plain error in the alleged deviation from proper photo identification procedures.*fn1
Defendant argues that the State's failure to produce in discovery the DVD recording of the November 3 transaction was a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), that should have been sanctioned by dismissal of the entire indictment. Although the trial court initially denied defendant's motion to dismiss when the discovery violation was revealed, it ultimately granted that sanction as to the November 3 transaction and dismissed counts one through three of the indictment. The evidence that was improperly withheld by the detectives was not exculpatory but would have provided relevant information to defendant and his attorney in preparation for challenging the accuracy of the undercover detective's testimony as to the first transaction. The recording had nothing to do with the November 9 transaction. We find no abuse of discretion in the trial court's determination of an appropriate sanction for the State's Brady violation.
With respect to the seven-year sentence on the merged third-degree charges, defendant argues that the trial court erred in granting the State's motion for an extended term and in weighing aggravating and mitigating factors.
"[T]rial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). 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 court were 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, 364-65 (1984); accord State v. Carey, 168 N.J. 413, 430 (2001); State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. State v. Natale, 184 N.J. 458, 488-89 (2005); Roth, supra, 95 N.J. at 365.
Here, defendant had three prior convictions for drug distribution offenses. It appears that the State sought an extended term under either the persistent offender statute, N.J.S.A. 2C:44-3a,*fn2 or the repeat drug offender statute, N.J.S.A. 2C:43-6f.*fn3 The trial court concluded that defendant's record of prior drug convictions required application of a mandatory extended term.*fn4
If the sentencing court determines defendant has a predicate prior drug conviction as provided by N.J.S.A. 2C:43-6f, the statute "requires [it] to impose an enhanced-range sentence when the prosecutor applies for such relief." State v. Thomas, 188 N.J. 137, 149 (2006). Then "the court . . . [determines a] defendant's sentence within the extended-term range based on aggravating and mitigating factors . . . ." Id. at 154.
The trial court found three aggravating factors applicable: aggravating factor three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3); aggravating factor six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1a(6); and aggravating factor nine, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1a(9). The court found no mitigating factors applicable.
Given the highly deferential standard of review from the court's finding of aggravating and mitigating factors, State v. Bieniek, 200 N.J. 601, 608-09 (2010), and also from the trial court's discretionary decision on the length of the sentence imposed within an appropriate sentencing range, Carey, supra, 168 N.J. at 430; Roth, supra, 95 N.J. at 364-66, we find no error or abuse of discretion in defendant's sentence of seven years imprisonment with three years of parole ineligibility.