July 16, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL M. WEBB A/K/A DEREK ROUNDTREE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-04-0290.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 6, 2012
Before Judges Payne and Hayden.
Defendant, Michael Webb, appeals his conviction by a jury for third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10a(1), third-degree distribution of CDS, cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), and second-degree distribution of CDS, cocaine, within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. He also appeals his sentence of eight years with a three-year parole disqualifier, imposed on the conviction for the second-degree crime, the remaining counts having been merged into it.
On appeal, defendant presents the following arguments for our consideration:
POINT I THE STATE'S CONTENTION THAT THE DEFENDANT IS GUILTY BECAUSE HE REMAINED SILENT AFTER HIS ARREST VIOLATES THE DEFENDANT'S FIFTH AMENDMENT AND NEW JERSEY COMMON LAW RIGHT TO BE FREE FROM SELF-INCRIMINATION. (Not Raised Below.)
POINT II THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S AMBIGUOUS AND CONFUSING INSTRUCTIONS ON THE LAW OF DISTRIBUTION OF A CONTROLLED DANGEROUS SUBSTANCE. (Not Raised Below.)
A. THE INSTRUCTION PERMITTED THE JURORS TO FIND THE DEFENDANT GUILTY OF DISTRIBUTION, BUT THERE WAS NO FACTUAL BASIS FOR AN ATTEMPT.
B. THE TRIAL COURT ALLOWED THE JURY TO CONVICT THE DEFENDANT ON THE BASIS OF AN ATTEMPT WITHOUT ANY GUIDANCE ON THE LAW OF ATTEMPT.
C. THE TRIAL COURT FAILED TO MOLD THE LAW TO THE FACTS AND DELETE THE REFERENCE TO ATTEMPTED DISTRIBUTION AFTER A JURY REQUEST FOR CLARIFICATION ON THE LAW OF DISTRIBUTION.
POINT III THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE (DISTRIBUTION OF CDS WITHIN 500 FEET OF A PUBLIC HOUSING PROJECT) BEYOND A REASONABLE DOUBT. (Not Raised Below.)
POINT IV THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE. (Not Raised Below.)
POINT V THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF DUPLICATE EVIDENCE OF A WRITING, RATHER THAN ORIGINAL EVIDENCE AS REQUIRED BY THE LAW. (Not Raised Below.)
POINT VI THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
At trial, Plainfield Police Detective Ronald Fusco testified that, at approximately 11:00 p.m. on January 1, 2008, while working undercover, he purchased two bags of cocaine from defendant, as defendant was standing at the intersection of Liberty Street and Orchard Place near the Elmwood Gardens public housing project. Fusco gave defendant, in exchange for the CDS, a twenty-dollar bill marked on the face with Fusco's initials, R.F. Once the sale was complete, Fusco contacted Police Detective Daniel Staten, who was patrolling the area in another car, and Fusco informed Staten of the purchase, described defendant and gave defendant's location. Staten and his partner, a sergeant, drove to the location and spotted a person conforming to the description given by Fusco, later identified as defendant, along with a companion. The two men were detained and searched. Defendant had no CDS on his person, but he was carrying sixty-four dollars, including the marked twenty-dollar bill that Fusco had offered in payment for the cocaine sold to him. Staten then notified Fusco of the detention, and after Fusco returned to the scene and identified defendant, he was placed under arrest. At the time of the arrest, Staten confiscated the sixty-four dollars that had been in defendant's possession. Once at police headquarters, defendant signed a form indicating that forty-four dollars had been confiscated - his money minus the marked twenty-dollar bill.
Defendant, who testified on his own behalf, denied the version of events supplied by Fusco and Staten. He claimed that on the night in question, he was walking with his fiancee's brother when he was arrested. Defendant testified that he neither spoke with nor was approached by anyone other than his companion until he was detained by the police, and that he played no part in any of the incidents recounted by Fusco and Staten. However, defendant confirmed that, on the night in question, he was wearing the clothing that Fusco described - a Yankee baseball cap, a black North Face jacket, and jeans. He also confirmed that he was carrying sixty-four dollars, but he denied receipt of a marked bill and any knowledge of the reason why the police had not declared twenty dollars of his cash on the confiscated money form.
The jury did not accept defendant's version of events, convicting him of all three charges set forth in the indictment.
Following sentencing, defendant appealed, raising arguments that were not presented to the trial court. As a consequence, we review the record for plain error, warranting reversal only where that error is "clearly capable of producing an unjust result." R. 2:10-2. In doing so, we are mindful of the fact that the possibility that an error led to an unjust verdict "must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
On appeal, defendant first argues that the prosecutor used his silence against him when he argued to the jury that defendant did not object when Staten gave him a receipt for forty-four dollars, rather than the full sixty-four dollars that he possessed, thereby implying that defendant knew he had no possessory right to the twenty dollars involved in the sale to Fusco. After noting that it was unlikely, as defense counsel contended, that Fusco purchased the drugs from a different person resembling defendant, and that defendant just happened to possess one of, potentially, several "Fusco" twenties in circulation, the prosecutor argued to the jury:
Now I want to call your attention to one other thing about this - this money. I think it's pretty clear that the defendant's real downfall was what he admitted here too, and that is - or one of his downfalls in this case - is that when he admitted that he didn't know that this was the marked $20 bill. But one thing you didn't hear from him is that he ever complained . . . about the police officers taking this extra $20 bill of his, or that - and, in fact, on the stand it's my recollection that he kind of acted like it wasn't a big deal, I think probably to distance himself from it. It was a big deal. It connected him to Ron Fusco through the anti-statement.
We agree with defendant that the comment was improper, and that it violated defendant's constitutional right to remain silent. State v. Muhammad, 182 N.J. 551, 568-69 (2005); State v. Deatore, 70 N.J. 100, 115 (1976); State v. Holmes, 290 N.J. Super. 302, 316 (App. Div. 1996).
Nonetheless, we do not find the prosecutor's misconduct in this regard to warrant a reversal.
[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial. [State v.] Ramseur, 106 N.J. [123,] 322 [(1987)]; State v. Siciliano, 21 N.J. 249, 262 (1956). In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." State v. Marshall, 123 N.J. 1, 153 (1991); see also State v. Scherzer, 301 N.J. Super. 363, 433 (App. Div.), certif. denied, 151 N.J. 466 (1997). . . . Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Ramseur, supra, 106 N.J. at 323. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action. State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997). [State v. Frost, 158 N.J. 76, 83-84 (1999).]
As noted, defense counsel in the present matter did not object to the prosecutor's comments.
Our review of the record satisfies us that the prosecutor's erroneous reference in this case, albeit of constitutional dimension, was not likely to have been considered by the jury in arriving at its decision in the matter. Macon, supra, 57 N.J. at 340. As we view the evidence, we find the conduct by defendant upon which the prosecutor based his comments to have been equivocal at best, and we conclude that it could not have formed the basis for the jury's decision without the jury having engaged in unsubstantiated speculation. State v. Phillips, 166 N.J. Super. 153, 160 (App. Div. 1979), certif. denied, 85 N.J. 93 (1980). Moreover, our review of the record suggests that the untainted evidence presented by the State was so overwhelming that, in our judgment, conviction was inevitable. State v. Pepshi, 162 N.J. 490, 493-94 (1999). While defendant did take the stand to deny the State's iron-tight version of events, his testimony lacked both credibility and corroboration.
At trial, the court defined distribution of CDS as "the actual, constructive, or attempted" transfer of CDS from one person to another. On appeal, defendant claims (1) the instruction permitted the jury to base its verdict on attempted distribution, without any factual basis for that finding in the record; (2) the court permitted a verdict on that basis without defining attempt; and (3) the court did not mold the instruction to the facts, even after the jury had exhibited confusion by seeking additional instruction on distribution. We find defendant's arguments in this regard to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We add only that, in a case in which the evidence in no respect suggested an attempt at distribution, defendant was not prejudiced by the inclusion of the small amount of surplusage, as it related to this case, that the Model Jury Charge (Criminal) for Distribution of a Controlled Dangerous Substance (N.J.S.A. 2C:35-5) (Revised 1/14/08), contains. In that connection, we note that the jury's question regarding distribution did not concern the "attempt" language found in that instruction, but rather, the jury asked: "Please clarify your instruction on distribution of cocaine. Must transfer of the substance have to occur between the two parties?"
Defendant next argues, for the first time, that no evidence was presented at trial that the Elmwood Gardens housing complex was "owned or leased by a local housing authority in accordance with local redevelopment/housing law." According to defendant, there was no evidence presented as to who owned or leased the project, and none that demonstrated that the property was in compliance with local redevelopment/housing law. However, defendant merely claims a failure of proof; he does not argue that the Elmwood Garden housing facility was not a public housing complex.
The record discloses that, when the prosecutor produced what is colloquially called a "500-foot map" delineating the 500-foot space around the public housing complex for use in connection with the testimony of Det. Fusco regarding the location of the sale, defense counsel immediately stated: "Judge, we certainly stipulate that into evidence. There's no objection to that." It was then established through Fusco's testimony that the map accurately depicted the area and that the sale took place within the radius of the circle set forth on the map. Notably, defendant does not claim that he was arrested elsewhere.
N.J.S.A. 2C:35-7.1e provides in relevant part:
In a prosecution under this section, a map produced or reproduced by any municipal or county engineer for the purpose of depicting the location and boundaries of the area on or within 500 feet of a public housing facility which is owned by or leased to a housing authority according to the "Local Redevelopment and Housing Law," [N.J.S.A. 40A:12A-1 et seq.], . . . or a true copy of such a map, shall, upon proper authentication, be admissible and shall constitute prima facie evidence of the location and boundaries of those areas, provided that the governing body of the municipality or county has adopted a resolution or ordinance approving the map as official finding and record of the location and boundaries of the area or areas on or within 500 feet of a public housing facility
The State did not produce the resolution approving the map as an official finding, thereby entitling it to the prima facie presumption offered by the statute. However, the record suggests that the State was prepared to do so. During pre-trial arguments, the prosecutor stated to the court: "I'll talk to [defense counsel] about the 500-foot map. I'm going to ask him to stipulate to . . . the authenticity of the 500-foot map. If he doesn't I'm prepared to move forward with the resolution." Defense counsel did in fact stipulate on the record to the map's admissibility. As a consequence, we find defendant's argument on appeal to be meritless.
Defendant argues additionally that the show-up identification by Fusco was impermissibly suggestive, and either that Fusco should have arrested defendant when the sale occurred or, if arrest did not take place then, Staten should have immediately arrested defendant upon arriving at the scene, and then, following the arrest, arranged a more elaborate out-of- court identification procedure, such as the use of a photo array. We reject this argument finding nothing to suggest that the one-on-one on-the-scene show-up in this case resulted in a misidentification of defendant as the seller of the drug to Fusco or that Fusco's identification was in any respect unreliable. State v. Madison, 109 N.J. 223, 232 (1988).*fn1
On-the-scene identifications "have generally been supported on three grounds. They are likely to be accurate, taking place, as they do, before memory has faded. They facilitate and enhance fast and efficient police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent." State v. Wilkerson, 60 N.J. 452, 461 (1972). See also State v. Carter, 91 N.J. 86, 129-31 (1982); State v. McNeil, 303 N.J. Super. 266, 271-72 (App. Div. 1997). Moreover, our courts have recognized that police officers have unusual experience in identification, as well as a heightened sense of the importance of correct identifications. State v. Little, 296 N.J. Super. 573, 580 (App. Div.), certif. denied, 150 N.J. 25 (1997).
Here, Fusco, an experienced policeman, had an opportunity to view defendant both when he initially observed him and when he returned shortly thereafter to purchase drugs. Following the purchase, Fusco described the seller of the drugs to Staten, Staten located a person matching Fusco's description at the place where Fusco had left him, and Fusco returned almost immediately to the scene, where he made a positive identification. We find no grounds, given this evidence, to conclude that the identification was unreliable or resulted in an irreparable misidentification. If there were any doubt, the presence of Fusco's money in defendant's pocket provides strong corroboration that the correct person was arrested.
In a further argument, defendant claims that it was improper to introduce as evidence, at trial, a photocopy of the marked twenty-dollar bill used in the sale, not the original. We find this argument to lack sufficient merit to warrant discussion in a written opinion. R. 2:-11-3(e)(2). We add only that N.J.R.E. 1003 provides:
A duplicate as defined by Rule 1001(d) is admissible to the same extent as an original unless (a) a genuine question is raised as to the authenticity of the original, or (b) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
A "duplicate," as defined by N.J.R.E. 1001(d) includes a counterpart produced "by means of photography . . . or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original." This definition clearly encompasses a photocopy such as the one admitted at trial. See also U.S. v. Petroff-Kline, 557 F.3d 285, 291 (6th Cir. 2009) ("[I]t is well established that '[p]hotocopies are allowed into evidence as if they were originals[.]'") (citation omitted).
Defendant has raised no question as to the authenticity of the original marked twenty-dollar bill or explained how he sustained prejudice by the introduction of a copy of the bill that would have been obviated if the bill itself had been introduced. As a consequence, we reject defendant's arguments on this point.
As a final matter, defendant claims that his sentence of eight years in custody with three years of parole ineligibility was excessive. However, having considered the record in this matter, as well as defendant's prior criminal history, we are satisfied that the sentence that the court imposed was not manifestly excessive or unduly punitive, and that the court properly considered and weighed applicable statutory aggravating and mitigating factors in setting a term that was not manifestly excessive or unduly punitive and does not shock our conscience.
State v. Bienick, 200 N.J. 601, 607-08 (2010); State v. O'Donnell, 117 N.J. 210, 219-20 (1989); State v. Ghertler, 114 N.J. 383, 389-93 (1989); State v. Roth, 95 N.J. 334, 356-66 (1984).
Defendant's convictions and sentence are affirmed.