October 18, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAHEEM M. LONG, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment No. 09-11-0989.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012
Before Judges Messano and Kennedy.
Following a jury trial, defendant Raheem Long was found guilty of third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (Count One); second-degree distribution of heroin within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (Count Two); third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (Count Three); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (Count Four); and second-degree possession of heroin with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (Count Five).*fn1
The judge granted the State's request to impose a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f) and sentenced defendant to four years' imprisonment on Count One; a concurrent term of eight years on Count Two; a concurrent term of four years on Count Three; a concurrent term of eight years, with a four-year period of parole ineligibility, on Count Four; and a concurrent term of eight years on Count Five. The appropriate penalties and license suspension were also imposed.
Before us, defendant raises the following arguments:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE AGAINST HIM
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO REVEAL DETECTIVE STATEN'S
SURVEILLANCE LOCATION AS THE DISCLOSURE OF THE EXACT LOCATION OF THE UNDERCOVER SURVEILLANCE WAS CENTRAL TO THE DEFENDANT'S CASE
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL NOTWITHSTANDING THE VERDICT AS THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND RESULTED IN A MANIFEST DENIAL OF JUSTICE TO DEFENDANT
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO PRESENT AN OVERLY SUGGESTIVE HYPOTHETICAL
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST TO SUBSTITUTE COUNSEL PRIOR TO THE COMMENCEMENT OF TRIAL
THE SENTENCE IMPOSED ON DEFENDANT'S CONVICTION WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION
We have considered these arguments in light of the record and applicable legal standards. We affirm.
At a pre-trial evidentiary hearing on defendant's motion to suppress, the State called as its sole witness Plainfield police detective Daniel Staten. At approximately 3:13 p.m. on the afternoon of June 16, 2009, Staten, who had fifteen years experience as a narcotics detective, was in a "confidential surveillance location" in a "very high narcotics area." Staten estimated that he had made 2000 narcotics arrests in the area.
Staten knew defendant, having arrested him "several times before in the past." Staten observed defendant, who was with a small group of individuals near 536 West Second Street, have several conversations with passers-by. After each conversation, defendant would walk away from the group toward some "steps," reach down and pick up a soda can from the sidewalk. Staten observed these individuals exchange cash with defendant and walk away from the area.
Staten saw a car approach the group, and Pinks exited from the driver's side door. Pinks raised two fingers, and defendant motioned for Pinks to join him near the soda can. Staten saw defendant "twist off the top of the can," remove some small item and hand it to Pinks, who gave defendant some "currency." Pinks got back into the car.
Staten radioed for backup assistance. Detective Michael Black stopped Pinks' vehicle and advised Staten that Pinks was in possession of narcotics. Detective Troy Alston also responded, arrested defendant and seized the soda can. Inside were additional bags of narcotics that bore stamped markings identical to those on the two bags seized from Pinks.
The motion judge concluded that Staten was a credible witness, found probable cause for the arrests and seizure of the narcotics and denied the motion. Before us, defendant contends that Staten's testimony lacked credibility because Staten was unable to see the details of the transaction from his location and acknowledged errors in his written report. As a result, defendant claims his arrest and the seizure of the narcotics were not based upon probable cause.
The argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only the following.
In reviewing a decision on a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). A reviewing court will reverse only if it is convinced that the trial judge's factual findings "are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). The Court has noted that "[p]robable cause cannot be defined with scientific precision because it is a practical, non-technical conception addressing the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." State v. Basil, 202 N.J. 570, 585 (2010) (citations and internal quotation marks omitted).
The judge's findings in this case are adequately supported by the evidence, and we find no basis to conclude otherwise. Those factual findings demonstrate that defendant's arrest and the seizure of the soda can were supported by probable cause. We affirm the denial of defendant's motion to suppress.
The jury was selected following two days of voir dire questioning. Immediately before opening statements, defense counsel advised the judge that defendant was "unhappy with [counsel's] services." Counsel told the judge he was "prepared to go to trial" and had "done all investigation which [he felt was] proper." When questioned by the judge, defendant stated his attorney was not "representing [him] right," was not "call[ing]" him and providing "advice," and he "want[ed] another public defender."
The judge concluded that defendant's request was a "delay tactic." He further stated:
[W]e're here on the day of trial, openings are about to begin, the jury's been selected, and for the first time defendant's brought to the Court's attention that he wants a new counsel. He has no substitute counsel ready to go. And he wants another counsel from the public defender's office.
. . . [T]here's been no showing by him of substantial cause other than he's just dissatisfied. He lost the motion [to suppress] and he feels [defense counsel] didn't diligently represent him.
In Point VI, defendant contends the judge erred in denying his request to discharge his attorney and have substitute counsel appointed. We disagree.
We have said that a defendant's right to secure counsel of his own choice "is not absolute and cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice and deprive such courts of the exercise of their inherent powers to control the same." State v. Harris, 384 N.J. Super. 29, 59 (App. Div.), certif. denied, 188 N.J. 357 (2006) (quotation marks and citations omitted). Additionally, "a court may not require the Public Defender to assign new counsel to a defendant who was dissatisfied with the attorney assigned to represent him, absent a showing of 'substantial cause.'" Ibid. (quoting State v. Coon, 314 N.J. Super. 426, 438 (App. Div.) (in turn quoting State v. Lowery, 49 N.J. 476, 489-90 (1967)), certif. denied, 157 N.J. 543 (1998)). "Disagreement over defense strategy does not rise to the level of good cause or substantial cause." Coon, supra, 314 N.J. Super. at 438 (citation omitted).
In this case, defendant failed to assert any substantial cause supporting the discharge of his appointed public defender. Moreover, despite several days of court proceedings that occurred beforehand and at which he was present, defendant waited until the jury was empanelled and the trial was about to begin before voicing his concerns. The judge did not err in denying defendant's request.
We now consider those points regarding the conduct of the trial and the testimony adduced before the jury.
During the hearing on the motion to suppress, Staten generally described the distance between his surveillance location and the transaction between defendant and Pinks. On cross-examination, Staten stated that he wore his eyeglasses but used no binoculars or other equipment, made his observations from an elevated point and had no obstructions in his line of sight. He further testified that "the surveillance location was the 500 block of West Second Street which is [a] housing complex." There were no objections to this testimony, and the record does not disclose any further discussion regarding the issue of Staten's surveillance location before the detective's testimony began at trial.
On cross-examination in front of the jury, defense counsel began to question Staten with greater specificity about the surveillance location. The prosecutor objected and argued at sidebar that the exact location should not be disclosed, noting "[w]e talked about this in chambers. This is a protected location." Counsel for Pinks argued that before the judge could grant such a request, an in camera hearing was necessary. The judge cleared the courtroom and took testimony from Staten. Thereafter, he sealed the record.
The judge advised defense counsel that he had preliminarily decided to grant the State's motion to prohibit disclosure of the surveillance site, but that he would entertain defense counsel's attempt to "convince [him] otherwise." Defense counsel responded, "I'm not going to make an argument to change the Court's ruling . . . to protect the site." The judge permitted some additional questioning of Staten.
The judge then ruled that he would issue a "protective order" regarding the surveillance location "based on the fact that there's a concern for the lives and property of anybody else connected with this overall process. And it goes to a substantial safety issue and potential reprisal issue." The judge continued, "[T]he important public interest balances and outweighs the need for disclosure . . . because of the public safety that's involved here." The jury was brought back into the courtroom and the trial continued.
Before us, defendant contends he was denied his right to effectively cross-examine Staten as a result of the judge's decision to prevent disclosure of the surveillance location. Again we disagree.
Following the Supreme Court's decision in State v. Garcia, 131 N.J. 67 (1993), the Legislature adopted N.J.S.A. 2A:84A-27, now codified as N.J.R.E. 515, which provides:
No person shall disclose official information of this State or of the United States . . . if the judge finds that disclosure of the information in the action will be harmful to the interests of the public.
When the State asserts this privilege, it must show "that disclosure would compromise an important public interest" and "must demonstrate a realistic possibility that revealing the [surveillance] location would compromise present or future prosecutions or would possibly endanger lives or property." Garcia, supra, 131 N.J. at 77-78. The trial court must conduct an in camera proceeding to determine whether the standard has been met. Id. at 78. Thereafter, a defendant may overcome the privilege by making "a substantial showing of need[.]" Id. at 81 (citation omitted). The court must balance "defendant's need for that information with the public's interest in nondisclosure." State v. Zenquis, 131 N.J. 84, 88 (1993).
Even if the privilege applies, a defendant is entitled "to inquire about certain important facts" regarding the surveillance to help the jury "critically examine testimony, while also serving the State's need for confidentiality." Garcia, supra, 131 N.J. at 81. These facts include "the distance from which the observation was made," whether "the witness used [any] vision-enhancing article[s]," whether the observations were made from an elevated position, and information about the witness's line and angle of sight. Id. at 81-82. We review the trial judge's decision under an abuse of discretion standard. Id. at 81.
In this case, defendant has failed to articulate any substantial need for the exact surveillance location. There was extensive cross-examination regarding Staten's location, line of sight and ability to make the observations he claimed to have made. We also have reviewed the sealed transcript of the in camera hearing conducted by the judge. The judge did not mistakenly exercise his discretion in granting the State's application to bar disclosure of the exact surveillance location.
During cross-examination of Staten, counsel for Pinks asked the detective to demonstrate the transaction he saw between defendant and his client. Staten was permitted to step down from the witness stand and, after defense counsel likened the demonstration to "a movie," the following exchange occurred:
Q: . . . [W]ho do you want to play, [defendant] or Mr. Pinks?
Staten: Denzel Washington.
Q. No you can't --Staten: Whoever.
Q: Okay, you can be [defendant].
Staten: I ain't too happy about that
At sidebar, defense counsel moved for a mistrial, arguing that Staten was "casting character evidence into this case as to his knowledge of [defendant]." The prosecutor argued there was "nothing prejudicial" about Staten's remarks as "he didn't say anything about the character of [defendant]." The judge denied the request for a mistrial and decided to give a curative instruction. He told the jury:
[B]efore we begin I want to give you what's called a curative instruction. As we were commencing to go into what's called a demonstrative role play the witness made a statement that he didn't appreciate playing a certain role. It's not for him to choose or not for him to say and it's not evidence.
So I'm going to instruct the jury [to] disregard the last comment. . . .
It's something that is a demonstrative role and the witness really had no choice in that matter. So any comment he made must be disregarded and must not be considered by you as part of this case.
Defendant now argues the judge erred in not granting his request for a mistrial. We again disagree.
As the Court recently stated in State v. Yough, 208 N.J. 385, 397-98 (2011):
[W]hether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters peculiarly within the competence of the trial judge. The grant of a mistrial is an extraordinary remedy to be exercised only when necessary to prevent an obvious failure of justice. For that reason, an appellate court should not reverse a trial court's denial of a mistrial motion absent a clear showing that the defendant suffered actual harm" or that the court otherwise "abused its discretion. Furthermore, when inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was clearly capable of producing an unjust result. [(Citations and quotation marks omitted).]
Applying these standards to the facts at hand, reversal is not warranted. The judge gave an immediate and clear instruction to the jury. The judge reminded the jury in his final charge that "[a]ny testimony that [he] may have had occasion to strike is not evidence and shall not enter into [the jury's] final deliberations. It must be disregarded . . . ." Under these circumstances, we find no mistaken exercise of the judge's broad discretion.
The State called Jordan Jeffer, a detective with the Union County Prosecutor's Office assigned to the gangs, guns, drugs, and violent crime task force, as an expert in the field of narcotics and narcotics distribution. Defense counsel objected "for essentially appellate purposes." He argued that the use of an expert was inappropriate because the jury could easily understand the facts of the case and any probative value was outweighed by potential for prejudice. The judge allowed the questioning to continue.
The prosecutor asked:
Q: [A]t this time I'm going to place before you and the jury a hypothetical question. And after a hypothetical question I will ask you certain general questions relating to that hypothetical question.
Assume you observed an individual in a high narcotics area being approached by an individual on the street. Assume the individual has a brief conversation with this person and immediately walks with him over the steps of a public housing complex. Assume that on the steps of this housing complex is a soda can which the individual picks up and carries with him.
Assume the individual is observed screwing the top of the can open like a jar and the other person motions to him with two fingers. Assume the individual with the soda can reaches into the soda can and pulls out a small item and hands it to the other person. Assume that the person takes the item and hands over U.S. currency to the individual with the soda can.
Assume they part ways and they are both subsequently arrested. Assume the soda can is retrieved and contains 17 glassine envelopes of heroin. Assume these envelopes are stamped shrimp and broccoli. Assume he also has on him $157 in denominations of 22 1s, 5 5-dollar bills, 3 10-dollar bills, and 4 20-dollar bills.
Assume the person who obtained the item from this individual is also arrested and is searched and is found to possess two glassine folds of heroin also stamped shrimp and broccoli.
Based on the facts I have given to you in this hypothetical do you have an opinion as to whether the man with the soda can in the hypothetical question possessed those narcotics for personal use or for distribution purposes.
A: I do.
Q: And what is your opinion?
A: Based on the hypothetical . . . my opinion is that the man with the soda can possessed those drugs with the intent to distribute them.
Jeffer then identified "seven factors" upon which he based his opinion. He described, among other things, the manner in which the drugs were packaged, the significance of the marking on the packages and the use of a "stash" can with a screw-off top. As he did, Jeffer frequently used the term "in this case."
Defense counsel objected at sidebar to Jeffer's use of the term "in this case." The judge immediately gave a curative instruction, advising the jury that Jeffer's responses were made to the hypothetical question posed, and should not be "confused with the case that is before you." Defendant argues before us that the judge erred in admitting any expert testimony and in permitting the State to utilize an overly suggestive hypothetical.
"Admission of expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson." State v. Nesbitt, 185 N.J. 504, 507 (2006) (citing State v. Odom, 116 N.J. 65, 81 (1989)). It is well established that "the nature and purpose of the possession of illegal drugs is a subject within the specialized knowledge of experts and not something generally known by persons of ordinary understanding." Odom, supra, 116 N.J. at 73.
The State may ask an expert "a hypothetical question mirroring the facts of the case, even though" the question may be framed "'in terms of ultimate issues of fact.'" Nesbitt, supra, 185 N.J. at 507 (quoting Odom, supra, 116 N.J. at 81).
"The hypothetical question should clearly indicate that it is the witness' opinion that is being sought and that that opinion was formed assuming the facts and circumstances adduced only at trial." Odom, supra, 116 N.J. at 82. The trial court must instruct the jury "on the proper weight to be given to an expert opinion and to emphasize that the ultimate decision about a defendant's guilt rests solely with the jury." Nesbitt, supra, 185 N.J. at 513.
We fail to see the necessity for the continued, pervasive use by the State of expert testimony in drug prosecutions where the factual testimony is straightforward and the inferences suggested therefrom obvious. However, we cannot conclude that admission of Jeffer's testimony was reversible error. R. 2:10-2.
In this case, the judge appropriately instructed the jury before Jeffer testified regarding the use of expert testimony and repeated the instruction again at the end of the case in his general charge. Although Jeffer used the phrase "in this case" in his responses to the hypothetical, taken as a whole, and particularly in light of the judge's curative instruction, the testimony did not express an opinion on the ultimate question of defendant's guilt, and therefore did not constitute reversible error. Odom, supra, 116 N.J. at 79.
Moreover, the strength of the State's case was substantial. Staten re-iterated the testimony he gave at the pre-trial motion in a consistent fashion before the jury. Succinctly stated, Staten actually observed a hand-to-hand transaction between defendant and Pinks. He identified both men in court. Detective Black testified before the jury regarding his stop of Pinks' vehicle and the seizure of two glassine envelopes of drugs from Pinks that bore distinctive markings. Detective Alston also testified before the jury regarding his arrest of defendant and the seizure of narcotics in the soda can that Staten had described. Those narcotics bore the same distinctive markings, and Alston recovered $157.00 in various denominations from defendant.
In sum, the admission of Jeffer's testimony does not "raise a reasonable doubt" that it "led the jury to a result it otherwise might not have reached." State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Macon, 57 N.J. 325, 336 (1971)) (internal quotation marks omitted). Reversal is not warranted.
Following the conclusion of the State's case, counsel for Pinks moved for acquittal arguing that the evidence was insufficient to find his client guilty beyond a reasonable doubt. The judge denied the motion and Pinks elected not to testify.
Defendant testified and acknowledged his presence at the scene. However, defendant stated that when the police arrived, they asked if the soda can was his. Defendant denied it was his and told the police he did not know whose can it was. Defendant claimed he was playing dice with others in the crowd and the money in his pocket was from his winnings.
At the conclusion of all the evidence, neither defendant nor Pinks moved for a judgment of acquittal, and neither moved for judgment notwithstanding the verdict (j.n.o.v.) nor for a new trial after the verdict. Defendant now argues the judge erred in denying his motion for j.n.o.v. because the verdict was against the weight of the evidence.
Defendant's failure to move for a new trial bars our consideration of this argument on appeal. See R. 2:10-1 ("the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court"). Even if defendant had preserved the issue properly, any motion attacking the sufficiency of the evidence would have been properly denied because the substantial proofs we alluded to above clearly supported the jury's verdicts. Moreover, "[t]he trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law."
R. 2:10-1. There was no "miscarriage of justice" in this case.
Defendant argues the trial court abused its discretion in failing to articulate adequate reasons for imposing an eight-year period of incarceration on the second-degree offenses and a four-year period of incarceration on the third-degree offenses. We disagree.
Because of his prior record, defendant was subject to a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f). That section also mandates "the imposition of a minimum term . . . fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater . . . ." Ibid. The judge found aggravating factors three, six, and nine. N.J.S.A. 2C:44-1(a)(3) (risk of re-offense), (6) (the extent of defendant's prior record and the seriousness of the offenses), (9) (the need to deter). He found no mitigating factors. N.J.S.A. 2C:44-1(b). The judge imposed an aggregate sentence of eight-years' imprisonment with a four-year period of parole ineligibility. It was the precise sentence defense counsel requested.
In reviewing a "sentence challenged for excessiveness[,]
[t]he reviewing court is expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364 (1984)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, an appellate court will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. Roth, supra, 95 N.J. at 364; accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
In this case, the aggravating factors found by the judge were adequately supported by the record. As to aggravating factor three, the trial judge found "a lack of success in prior diversionary programs . . ., prior drug use, prior crimes of similar nature, [and a] lack of stable employment." As to factor six, the judge noted the current conviction was defendant's "fifth indictable." In finding aggravating factor nine, the judge noted defendant's "failure to appreciate the gravity of the offense" and his "extensive record".
As to each count of the indictment for which defendant was convicted, the judge selected a term of years that was approximately the mid-point of the permissible sentencing range. The sentences imposed do not shock our judicial conscience.