July 8, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
GARY R. MADDOX, a/k/a GARY FOSTER, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent,
JASON E. MCKINNON, a/k/a JASON E. MORRIS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2012
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-09-0124.
Joseph E. Krakora, Public Defender, attorney for appellant Gary R. Maddox (Michael Confusione, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Jason E. McKinnon (Kevin G. Byrnes, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lisa Sarnoff Gochman, Deputy Attorney General, of counsel and on the brief).
Appellant Gary R. Maddox filed a pro se supplemental brief.
Appellant Jason E. McKinnon filed a pro se supplemental brief.
Before Judges Graves, Espinosa and Guadagno.
Defendants Gary R. Maddox and Jason E. McKinnon appeal from their convictions for first-degree leading a narcotics trafficking network, N.J.S.A. 2C:2-6 and 2C:35-3, and other offenses and their sentences. We affirm.
The evidence accumulated against defendants during the investigation conducted by the Drug Trafficking South Unit (DTSU) of the New Jersey State Police (NJSP) was overwhelming. The evidence included the testimony of Nasser Perez, a drug supplier arrested when he traveled to Arizona to obtain five kilograms of cocaine to sell to defendants; the testimony of Bennett Goodin and Jonathan Flick, two "runners" who were recruited to distribute drugs for defendants; the testimony of officers who conducted surveillance and monitored conversations between an informant and defendants that included multiple controlled purchases; transcripts of telephone conversations intercepted pursuant to court-authorized wiretaps in which defendants made numerous incriminating statements that provided extensive details about their trafficking activities; and the recovery of drugs, money, guns, and other corroborating evidence following the execution of search and arrest warrants.
Detective Frederick Hunter, assigned to the DTSU of NJSP, testified that he had been involved in over two hundred eighty drug investigations in his career. He had worked as primary investigating detective and in an undercover capacity, and became familiar with street names for drugs, their prices, packaging, and quantities sold.
In the spring of 2006, Hunter conducted surveillance of the above informant, who had been under investigation for trafficking in cocaine. After observing interactions between him and defendant Maddox, the officers approached the above informant and inquired about his relationship with Maddox. He confirmed that the relationship involved narcotics transactions and agreed to become an informant.
The informant consented to have NJSP review his telephone records and listen to his telephone calls through the following procedure: When Maddox called, the informant would let the call go to voicemail. The informant would then call the police before returning Maddox's call. By wearing an earpiece and holding the telephone in a pre-determined way, the informant allowed the police to hear both sides of the conversation and record it.
The first controlled purchase was made on May 18, 2006. The informant called Maddox and asked to buy two ounces of cocaine. Maddox agreed and instructed the informant to come to his residence on Shady Lane, in Washington Township, for the drugs.
Hunter listened in to the telephone conversation in which the purchase was arranged, and followed the customary procedure for a controlled purchase, i.e., searching the informant and his vehicle to confirm he had no drugs in his possession prior to the purchase; providing him with the agreed-upon amount of money; equipping the informant with an on-body recording device; keeping the informant under surveillance before and after the purchase; listening to the conversation between the informant and Maddox; and meeting the informant to recover the drugs after the purchase. Once the narcotics were recovered, they were taken to a secure location where they were field tested, logged into evidence, and secured. Hunter explained that the police used the same procedure each time they retrieved drugs from the informant: "[T]hey [were] secured, field tested, weighed by us . . . and then . . . [they were] secured in the Evidence Safe and taken to the state police lab." After the state lab confirmed that the substance was the drug in question, the drugs were transported to the federal Drug Enforcement Administration (DEA) Lab for further testing.
When the informant arrived at Maddox's residence on May 18, 2006, Maddox told him he was awaiting the delivery of the drugs. Hunter observed Charles Muldrow, Maddox's nephew, arrive. Muldrow and the informant drove to an address on Walnut Avenue in Lindenwold, the residence of Maddox's child's mother. Hunter maintained surveillance and observed a cream-colored Chrysler, driven by Perez,  pull up. Hunter overheard Muldrow tell the informant, "Wait, should be here momentarily." Muldrow got into the passenger side of the Chrysler, which then drove off around the corner and returned to the Walnut Avenue address. Muldrow then walked to the informant's vehicle and handed him a small object through the passenger side window. The informant met with Hunter at the pre-determined location and surrendered approximately two ounces of cocaine he had obtained from Muldrow.
The second controlled purchase occurred on May 31, 2006. Hunter listened in as the informant called Maddox and asked to buy four and one-half ounces of cocaine. Maddox told the informant he did not have that quantity but that he did have one ounce available. The same procedure for a controlled purchase was followed. With Hunter listening in, the informant went into Maddox's home and bought approximately one ounce of cocaine for $1100. The informant questioned Maddox about pricing, and asked if he could get a discount if he was able to bring Maddox multiple ounce purchases. Maddox replied that the informant was getting "the family price."
The third controlled purchase occurred on June 3, 2006. On the previous evening, Hunter listened in as the informant placed a call to Maddox. Lori Gephart, Maddox's live-in girlfriend, answered and told the informant, "We have what you are looking for[.]" The informant insisted on speaking to Maddox, who then repeated, "Yeah, we have what you're looking for, come on over." Hunter testified that he understood this to mean that Maddox had the four-and-one-half ounces of cocaine that the informant had requested. The procedure for a controlled purchase was followed once again, enabling Hunter to monitor the informant's purchase of approximately four ounces of cocaine from Maddox at his residence through surveillance and the transmitting and recording device worn by the informant.
After the third controlled purchase, Hunter applied for a court order authorizing a "Dialed Number Retrieval" for the two telephone numbers Maddox used to contact the informant and gave to him to arrange for drug purchases. Dialed Number Retrieval allowed the police to examine the telephone numbers for incoming and outgoing calls for those numbers. By obtaining subscriber information, Hunter identified people who called Maddox at the numbers he used for drug transactions, including "Jay, " defendant McKinnon; and Maddox's younger brother, Gerald Foster.
A fourth controlled purchase occurred on August 2, 2006. Monitored by Hunter, the informant called Maddox and asked to buy two ounces of cocaine. Maddox agreed and quoted the informant a price of $2200, but later called him back with a price of $2100. Because the amount purchased on June 3 weighed approximately four ounces, about one-half ounce less than the amount paid for, the informant confronted Maddox about it. Maddox told the informant he would make good on the outstanding half-ounce.
Hunter followed the informant to the location where the purchase was to occur, a McDonald's parking lot on State Highway 42. He observed a tan pickup truck pull up next to the informant and overheard the driver tell the informant to get in the truck to go to another location. Pursuant to instructions given him by NJSP, the informant refused. Hunter was able to overhear the conversation as the driver contacted Maddox and told him the situation. Hunter also heard Maddox instruct the driver to have the informant follow him to an Exxon station. Hunter followed the informant and the pickup truck to the Exxon station, where he observed Maddox arrive with a white male in a green Ford Explorer. Hunter testified there was a white Crown Victoria, unrelated to the investigation, parked to the side of the Exxon station. After Maddox and the two other males engaged in what Hunter perceived to be an attempt to create confusion, Maddox walked to the informant and completed the drug sale.
The amount purchased weighed 36.1 grams, which was almost three-quarters of an ounce less than the agreed-upon amount of two ounces. The value of the "shorted" amount was $550. At Hunter's direction and under his supervision, the informant placed a series of calls to Maddox and then went to his home to confront him about the fact that he had supplied the informant less than the agreed-upon amounts. While the informant was wearing a transmitting and recording device, Hunter was able to hear Maddox apologize to the informant and explain that he had been nervous at the last sale, concerned there were police in the area, and had mistakenly given the informant a package that was for another customer. Maddox assured the informant that it was just a mistake, that he would make good on it, and said, "My family is cocaine." Maddox then told the informant about various methods he had for getting cocaine to sell to him, and told him that he transported cocaine from Arizona by hollowing out small appliances, inserting the cocaine in place of the parts, and shipping the appliances back to New Jersey.
Maddox also offered a sample of crystal methamphetamine to the informant. He told the informant that the price would be $250 per gram and offered him a reduced price of $175 per gram. Maddox said to the informant, "Don't tell nobody where this came [from]. Listen, when this shit comes out it's like an epidemic 'cause nobody never has it." Maddox also said to informant, "Get that paper." Hunter interpreted this to mean that Maddox asked the informant to get prescriptions so he could sell prescription pills, such as Percocets and "Oxy's."
Another controlled purchase occurred on September 26, 2006. Hunter applied for and obtained court-authorized wiretaps on the two telephone numbers used and supplied by Maddox for the drug transactions. Gephart was the subscriber for one of the numbers. The subscriber for the second telephone number was Keith Rich, whom Hunter described as a "criminal associate" of Maddox. The court-authorized wiretap lasted from October 2006 to January 2007.
The next controlled purchase occurred on October 18, 2006. The informant called Maddox and asked to purchase three "eight-balls, " or three-eighths of an ounce of crystal methamphetamine. Maddox asked the informant why he had been out of touch for three weeks. The informant lied and said he had a "mini-stroke." Maddox instructed the informant to come to his house for the drugs. The informant did so.
Pursuant to Hunter's direction and while equipped with a transmitting and recording device, the informant asked Maddox for a price on a kilogram of cocaine. Maddox called McKinnon. Using "bird, " street slang for one kilogram of cocaine, Maddox said he had a "bird drop for twenty-six thousand[.]" McKinnon told Maddox that "Naz" (Perez) usually charged him $22, 000 to $24, 000 per kilogram. They talked about who would deliver the kilogram to the informant. In a second call, made minutes later, McKinnon told Maddox to "go to storage, you got the storage key, all you got to do is go there and grab that shit." Maddox asked if McKinnon had anybody to use for the delivery. McKinnon said he could get "P" to do it, referring to Michael Scott, who was also known as "Powerful" or "P, " but would have "to give him a couple dollars[.]"
Hunter observed the informant go to his car and remove the on-body recording and transmitting device. He also observed Gephart leave the house, drive around the neighborhood, and return to the house. She opened up the passenger door of a gray pickup truck parked in the driveway, placed a small object on the passenger floorboard, and walked back to the house. The informant then walked to the truck, retrieved a small item from the passenger floor board and returned to his car. He surrendered 10.2 grams of crystal methamphetamine and 3.4 grams of cocaine, the drugs purchased from Maddox, to Hunter at a predetermined location.
The informant called Maddox later and told him he would purchase a kilogram of cocaine for $26, 000, the quoted price, but that he only had $20, 000. Maddox later discussed the informant's request to purchase a kilogram with Gephart. She was skeptical about the informant's stated reason for being out of touch, and said, "he's lying about this stroke thing." Maddox responded by describing the precaution he had taken to avoid being caught on a wire, saying, "In case he is lying, I wrote everything down on paper, I didn't say anything."
The informant did not complete the kilogram purchase with Maddox. Pursuant to Hunter's direction, he told Maddox in a telephone conversation on October 19, 2006 that he was "down in Cam, " talked to a friend of his, and "picked it up" for "22, 5." Maddox said, "That's what it is." When the informant asked what he meant, Maddox said, "The next one you need holler at me." Maddox subsequently had a telephone conversation with McKinnon regarding the informant's purchase. Maddox complained,
he was like I found my man North Camden 22, 500.00 if you can do that I'll deal with you all day . . . . Man we don't even need that. Ya know what I mean? You getting, you getting it, I'm doing what I'm doing you know what I mean if something passes our way and just some knuckle head that don't even need to be doing this shit then we do it like that or we just sell ounces of . . . that shit cause I know mother fuckers that buy ounces of that shit.
A call between Maddox and Foster was intercepted on October 20, 2006. Foster wanted to borrow money. Maddox said he just bought "500 fucking 80's, a whole bunch of shit today" and had sent Gephart to get a "pound from Gabe." As a result, Maddox was low on funds. Maddox and Foster also discussed a possible purchase of "30's, " which Hunter testified were thirty milligram pills, from "Cherri." Maddox said the pills were probably not real, that "[t]hey are the ones with the M on them and they [are] the . . . morphine sulfate ones." He advised Foster that he did not have to pay Cherri money for the pills, that Foster should "tell that bitch you got some crack for her[.]" When Foster said that he was "about to have one of those 30's[, ]" Maddox replied, "Well, I got pills there, everything, man." Maddox was about to leave and Foster asked him to "leave like a buck 50 in the mail box[.]" Maddox responded, "What the fuck you need money for when I just now said I got all the fucking pills you need? That bitch don't want nothin' but some fucking crack."
Perez testified that Maddox's "main hustle" was selling pills, such as Xanax, Percocet and OxyContin, and that selling cocaine was "a side thing that he did." Maddox always had a "bag full" of pills. He told Perez that he trafficked in crystal methamphetamine as well, obtaining it from sources in Arizona and Mexico.
In a conversation intercepted on October 31, 2006, Maddox instructed an unidentified male on what to say to a doctor in Trenton to get prescription pills:
[J]ust tell him your back is fucked up and you been taking OxyContin and your doctor ain't around and you ran out of your prescription and you heard about him and he'll write you out . . . some more Oxys and you also have panic attacks and you want Xanax and he'll give you 90 poles.
The unidentified male asked, "That's it just like that?" Maddox replied, "Yeah, and I'll give you the buck and a half for doing that for me." They then arranged to meet. In a telephone conversation later that day, Maddox told Foster that he went to Trenton that morning, only to "find out the damn doctor was closed on Halloween." He said he would now have to go back the following day.
The evidence showed that, in addition to knowing how to obtain prescriptions from doctors, Maddox had knowledge of certain pharmacies' practices for filling out prescriptions. In a conversation with Scott, Maddox referred to "the Eckerd, " saying, "that's a good place and . . . you ain't gotta worry about them calling[.]" In an intercepted conversation with "Maurice, " a pharmacist at the Farmacia San Antonio in Camden, Maddox said he just came back from the doctor and asked Maurice about his statement "that [he] couldn't take no more prescriptions from him[.]" Maurice replied, "No, it's alright. Ah, once in a while I take. What happens is too many people will call me and I'm trying to stay away from that. But if you have one, yeah, I can take it."
There were a number of intercepted conversations in which Maddox arranged to purchase or sell prescription pills. By way of example, on October 26, 2006, an unidentified male called him and said, "I got the OxyContin 40's." Maddox asked how much the caller wanted for them, tried to negotiate a price lower than "9, " and asked how many there were. Told "90, " Maddox said he wanted them, but when the unidentified male said the pills were "footballs, " Maddox said,
Hell, no, I can't do any generic . . . them generic football shaped ones, they ain't the real shits because they can't flip them yo. They want the real ones they can wipe the coating off and sniff. . . . I know this shit yo. This is my bread and meat, you know what I mean?
An order authorizing a wiretap of the telephone number McKinnon used to call Maddox was entered in mid-November 2006. A call intercepted on November 25, 2006, between McKinnon and a male identified as "Eric" revealed that McKinnon had been in Amsterdam. Eric complained about a transaction he had in McKinnon's absence with a male who was later referred to as "Kill Bill" in the conversation. Eric stated, "he gave me all your coke dude, every bit of it[, ]" and later said, "he gave me the bag a hundred piece and said split it . . . ." Eric said he told Kill Bill that he had "no money to pay for this" and said, "if there's gonna be a problem you need to take this back right now because I don't need it." According to Eric, Kill Bill refused and he later got a call from "P, " who told him "next time you need something on the front, you just call me or call Jay." Eric said he told "P" that he was trying to do that but that this "n__ 's too sweet." Eric assured McKinnon that he was "not beating no one." In two other conversations between McKinnon and unidentified callers on that date and the following day, the callers discussed drug transactions they had with McKinnon's "boys" while he was away.
On November 26, 2006, McKinnon placed a call to James Giacomucci and said he "might have a job" for Giacomucci. McKinnon said, "I need you to break somebody's legs." McKinnon said, "[t]he dude . . . got beat" and "wants to know how much you goin' to charge him." Giacomucci said he did not want to meet the "dude" but wanted to know where the person lived before he gave a price. On the following day, McKinnon told Giacomucci, "[t]he boy's from Berlin" and that he "beat [McKinnon's associate] for a lot of Oxy's[.]" McKinnon said the price for "Oxy's" was "like . . . forty or fifty dollars." Giacomucci said, "Tell him to give me a grand, I'll make sure he don't walk." When Giacomucci said, "I can hit him anywhere I'll split his shit right there on the spot[, ]" McKinnon said he did not want him "to kill nobody." Giacomucci clarified that he meant he would "take his knees out" and leave him "laid out like prone right on the fuckin' ground crying[.]" Giacomucci asked for additional information, including whether the intended victim was "packing, " and stated he could use the money because he had $2500 bail.
In a conversation between Scott and McKinnon on the same date, they discussed doing "onions." Scott asked McKinnon, "You want to do more then [sic] an onion at a time on that?" McKinnon asked Scott how much he had sold and Scott replied that he could do with an "onion or two at a time[.]" McKinnon said, "Alright, we'll, do like 2 onions." They agreed that they had to "get workers." Scott said that a "young boy" talked to him and needed $300 for a warrant. Scott reported that he told him, "we'll pay for your warrant to get fix [sic] and you'll work it off."
The "young boy" referred to was Flick, who testified that in 2006, Scott, whom he also knew as "P" or "Powerful, " approached him and his friend, Goodin, to sell drugs. At the time, he had no criminal record and was unemployed. However, he had a warrant outstanding for unpaid traffic fines. He testified that "Power and Jason said they would pay [his] fines off if he [sold drugs for them] for a little while and pay [him] for doing that, also." Flick was promised $1000 per week to sell "50-bags" and "100-bags, " quantities of cocaine and crack cocaine worth fifty dollars and one hundred dollars, respectively. He met McKinnon a week or two after he agreed. Flick was given a cell phone to receive calls from customers and worked from noon to 1:00 a.m., furnishing drugs to ten to twenty customers per day. Although promised $1000 per week, he was paid $500 per week and stopped working for McKinnon and Scott after approximately one-and-one-half months.
Goodin also testified that he had been recruited by Scott to sell drugs for McKinnon. Like Flick, he had no criminal record when Scott approached him. Goodin stated that Scott told him and Flick they would work every day, with Sundays off, and make $1000 per week. He received cocaine and crack cocaine packaged in 50-bags and 100-bags from either Scott or McKinnon and sold them to purchasers who contacted him on a telephone supplied by McKinnon. Goodin testified that he sold drugs for McKinnon and Scott for approximately one-and-one-half months, working from "[e]ight, nine o'clock in the morning till [sic] three, four o'clock at night, all day." He made sales to twenty to thirty customers per day. They were never paid $1000 per week. Instead, they were paid $500 and sometimes less. Goodin identified his voice and that of McKinnon in a taped telephone conversation in which he asked McKinnon for assistance regarding a drug sale.
In a telephone call between defendants intercepted on November 28, 2006, McKinnon asked Maddox if a price of $10, 000 was worth it for five "500 OC 80s." Maddox advised against it. Maddox also told McKinnon he had "some hard" that he had "to get rid of" and asked, "You can do that for me, yo?" McKinnon asked how much he had and how much it weighed. Maddox said he did not know, that "it's all like 20's, bagged up, bro. Then I got like one that's 8 grams." McKinnon said they would weigh it out and he would see what he could do.
On November 30, 2006, McKinnon placed an intercepted call to Perez and told him that he thought he had "like nine stacks" for Perez but that he could "wait until after the weekend, to see how much [McKinnon gets.]" Perez said he would "get it now" because he would be away after the weekend. McKinnon asked Perez, "you give Riz my number, like just in case if I need something or what ever?" Perez replied, "Yep . . . he here with me, he'll have this phone, actually."
Perez testified about his November 30 conversation with McKinnon. He explained that "nine stacks" meant $9000, and that this referred to money McKinnon owed him for drugs he had given to him previously. He testified further that "Riz" was his "right-hand man" and that he "was going to have [Perez's] phone so any of the customers that [Perez] had for weight or any of the other users that would call . . . he would make sure that the workers had the phones and made sure that they deliver the drugs."
In conversations intercepted on December 2, 2006, McKinnon discussed an impending drug transaction near an Auto Zone store and said he was about to leave his "storage spot." NJSP officers conducting surveillance observed McKinnon at Mini-U Storage in Berlin, where a storage unit was rented in McKinnon's name. McKinnon was seen going into the facility, leaving approximately ten minutes later, and driving to the Auto Zone parking lot where he met with Foster.
McKinnon had conversations with Scott, Maddox, and an unidentified male that were intercepted on December 2 and 3, 2006, in which complaints were conveyed to McKinnon about cocaine he had supplied. The unidentified male complained that the cocaine was "rounded" and that he wanted a cheaper price if it was being "retouched." Maddox told McKinnon of a complaint made by an unidentified white male at the Golden Nugget Bar. Scott also told him, "You know when you sell weight, you can't have it all broken up. You don't know how to do it, man. You crushed it all up, a little too much." Scott instructed him that he had to have it "chunky monkey[, ]" that "you put three gram of cut, all you need is a gram, from off the rock to crush up wit[h] it."
Perez testified that he initially obtained his drugs from Maddox's older brother, Jerald Green, who was known as "Stef." Perez began selling cocaine and crack cocaine to McKinnon and Maddox in 2001. Initially, he sold McKinnon drugs in "8-ball" quantities, which is one-quarter ounce or 3.5 grams. Perez was arrested in 2002 for selling drugs and released from prison in 2003. He resumed selling drugs a few months later and started selling to both defendants as well as to Green. Perez was now able to sell larger quantities, selling McKinnon kilograms of cocaine and selling Maddox up to four-and-one-half ounce quantities. At first, Perez sold drugs directly to Maddox. However, at Maddox's request, Perez agreed to sell drugs to "Chuck, " whom Maddox introduced as his nephew. In the fall of 2006 into January 2007, Perez typically supplied McKinnon with one kilogram of cocaine per week, charging him from $21, 500 to $24, 000 per kilogram. The sales were arranged on the telephone or in person.
Perez identified his own voice and that of both McKinnon and Maddox on several intercepted telephone conversations and testified about each of the conversations. One of the conversations concerned Perez's request to collect some of the $24, 000 McKinnon owed him. In another, McKinnon stated he got a job, delivering auto parts, that made it easy for him to do "drizzy drops, " which Perez explained meant dropping off drugs to customers. In the same conversation, McKinnon advised Perez that he had twelve or thirteen "stacks" for him, which Perez explained was twelve or thirteen thousand dollars that McKinnon owed him. Perez knew that McKinnon also had people who helped him sell drugs, including Scott, whom he introduced as "P, " and someone called "Kill Bill."
On December 19, 2006, Perez asked McKinnon in an intercepted conversation if he "still had a lot of work left?" McKinnon replied, "not really" but said he "might have almost all that money that [he] owe[d]" Perez, that he was in Pennsauken "collecting a couple dollars." McKinnon stated further, "I'm definitely gonna need to get up with you, cause I'm almost running out[.]"
NJSP Detective David Lawyer conducted surveillance of McKinnon on December 26, 2006. He described McKinnon's actions, which, Lawyer stated, appeared to be narcotics transactions, in a McDonald's parking lot, and then at a laundromat, the Echelon Mall, a liquor store, a Rite Aid, and other places. Lawyer based his beliefs on "past experience, " explaining that he had "seen hundreds [of narcotics transactions] done just that way in the past."
In a conversation intercepted on January 20, 2007, Perez told McKinnon that "things are looking bad, meaning [he did not] have a lot of coke to give him." He told McKinnon that he needed to collect money from him because he was "looking to make a move[.]" Perez testified that this meant he needed money to buy more drugs. Perez testified, "I was selling him weight as far as the kilograms of cocaine and he would break the kilogram down. Sometimes he would sell weight and sometimes he would sell bags." He cautioned McKinnon that if he sold "all his cocaine in weight then he won't have any bags for his customers, for bag customers, which is the main source of income." Perez explained that selling bags was more profitable than "selling weight":
Weight is just a quick flip. If I bought a kilogram for 19, 000 I could sell it for 21, 000, you know. And that's $2, 000 that I would make. However, if I took that same kilogram of cocaine for 19, 000 and bagged it up into small bags I'll make like 40, 000. So that's a big difference.
Perez testified that he sold weight to a lot of different people, but McKinnon was his "main, best customer[.]"
Shortly after this conversation, Perez traveled to Arizona to buy drugs, financed in part by $4000 he had received from McKinnon. Perez wanted to get a new source and McKinnon's brother, Green, was going to introduce him to a new connection, Blackstone. Such an introduction was necessary when operating on "that level . . . buying multiple kilograms of cocaine." Their arrangement was for Stef to fly out and Perez to drive in his pick-up truck, which had a secret compartment on the side railings to conceal money en route to Arizona and the cocaine after purchase. Although Perez had ordered five kilograms from the new source, the supplier became suspicious and brought only three kilograms to the sale to avoid the higher penalties for a five-kilogram sale.
However, DEA had placed tracking devices on Perez's vehicles, and followed him to Arizona. Perez was arrested, along with Green and Blackstone, in Arizona on January 24, 2007 as the transaction was completed. Perez immediately admitted he went to Arizona to purchase drugs and to meet a new source. Perez pled guilty in federal court pursuant to a plea agreement to distribution of over five kilograms of cocaine, a charge that carried a possible sentence of ten years to life imprisonment.
On January 25, 2007, search warrants were issued for a number of locations, including Maddox's residence and McKinnon's storage unit. Among the items seized at Maddox's residence were: (1) 0.52 grams of cocaine and 15.2 grams of marijuana; (2) cell phones; (3) money orders and receipts totaling $10, 000; and (4) eight vehicles. From McKinnon's storage unit, the police recovered: (1) baggies used to package narcotics; (2) scales with white residue on them; (3) a strainer; (4) a control weight; (5) several bags and a safe containing what appeared to be marijuana; and (6) a Smith and Wesson .357 magnum revolver.
McKinnon was arrested at a Best Western hotel in Berlin, New Jersey, in possession of almost $5000, two bags of marijuana, four cell phones, a clear pipe used to smoke crack, and white pills believed to be Percocets. In McKinnon's wallet, the police found the title to a 2000 red Cadillac Escalade, which previously belonged to Perez. McKinnon also "had a bag of crack cocaine underneath his boxers, pretty much tucked underneath his genitalia." On the same day the warrants were executed, Maddox, McKinnon, Green, Gephart, Foster, Muldrow, Scott, Goodin, and Flick were arrested.
Daniel Brown, a special agent with DEA, was qualified as an expert in the methods, practices, and terminology used in trafficking and distributing narcotics. He testified that Arizona is a gateway for cocaine to enter the United States. Cocaine is cheaper in Arizona than in New Jersey since, due to security and transportation costs, the price increases as the drug moves further from its source. Because Arizona has a long growing season and many remote areas for hiding farms, it is also a source state for marijuana. In response to a hypothetical question, Brown testified that the assortment of drugs and paraphernalia found in McKinnon's storage locker was indicative of distribution rather than personal use. Brown also explained that the items found with McKinnon when he was arrested were indicative of possession with intent to distribute.
On September 6, 2007, the grand jury returned an indictment against defendants (nine counts against Maddox and seven against McKinnon), and their associates, Gephart, Scott, Foster, and Muldrow. Maddox and McKinnon were both charged with: first-degree racketeering, contrary to N.J.S.A. 2C:41-2(c) or 2C:41-2(d) (count one); and second-degree conspiracy, contrary to N.J.S.A. 2C:5-2, 2C:35-5(a)(1) and (b)(1), and 2C:35-10(a)(1) (count two).
Maddox was charged with seven additional counts: (1) first-degree being a leader of a narcotics trafficking network, contrary to N.J.S.A. 2C:2-6 and 2C:35-3 (count three); (2) first-degree distribution of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:2-6 and 2C:35-5(a)(1), (b)(1), and (c) (count seven); (3) second-degree distribution of CDS (methamphetamine), contrary to N.J.S.A. 2C:2-6 and 2C:35-5(a)(1), (b)(9)(a), and (c) (count nine); (4) third-degree distribution of CDS (cocaine) within 1000 feet of school property, contrary to N.J.S.A. 2C:2-6, 2C:35-5, and 2C:35-7 (count twelve); (5) third-degree possession of CDS (cocaine), contrary to N.J.S.A. 2C:2-6 and 2C:35-10(a)(1) (count thirteen); (6) second-degree money laundering, contrary to N.J.S.A. 2C:21-25(a) (count fourteen); and (7) second-degree endangering the welfare of a child, contrary to N.J.S.A. 9:6-1, 9:6-3, and 9:6-8.21, and N.J.S.A. 2C:24-4(a) (count fifteen).
Separate from Maddox, McKinnon was charged with five additional counts: (1) first-degree being a leader of a narcotics trafficking network, contrary to N.J.S.A. 2C:2-6 and 2C:35-3 (count four); (2) first-degree possession with intent to distribute CDS (cocaine), contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(1) (count five); (3) second-degree possession with intent to distribute CDS (cocaine), contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count six); (4) second-degree possession of a weapon (pistol) during commission of certain crimes (possession with intent to distribute), contrary to N.J.S.A. 2C:35-5 and 2C:39-4.1(a) (count sixteen); and (5) second-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7(b) (count seventeen).
Following a jury trial, Maddox was convicted of all charges, except second-degree endangering the welfare of a child. McKinnon was convicted of all seven charges against him.
Defendants were sentenced on August 7, 2009. Both defendants received life sentences (seventy-five years with thirty years of parole ineligibility) for first-degree being a leader of a narcotics trafficking network (counts three and four), consecutive to a fifteen-year term for first-degree racketeering (count one). Both defendants also were sentenced to concurrent seven-year terms for second-degree conspiracy (count two).
Separately, Maddox was sentenced to concurrent terms of: (1) fifteen years plus five years of parole ineligibility for first-degree distribution of CDS (count seven); (2) seven years for second-degree distribution of CDS (count nine); (3) three years for third-degree distribution of CDS within 1000 feet of school property (count twelve); and (4) three years for third-degree possession of CDS (count thirteen). Maddox also received a sentence of three years for third-degree money laundering (count fourteen), which was consecutive to count three. Maddox's aggregate term was life (seventy-five years), with thirty years of parole ineligibility, plus fifteen years.
McKinnon was separately sentenced to terms of: (1) fifteen years plus five years of parole ineligibility for first-degree possession with intent to distribute CDS (count five), consecutive to count sixteen; (2) seven years for second-degree possession with intent to distribute CDS (count six); (3) seven years for second-degree possession of a weapon during the commission of certain crimes (count sixteen), consecutive to count five; and (4) seven years for second-degree persons not to have weapons (count seventeen). McKinnon's aggregate term mirrored Maddox's: life (seventy-five years), with thirty years of parole ineligibility, plus fifteen years.
Maddox raises the following arguments:
THE DRUG KINGPIN INSTRUCTIONS WERE ERRONEOUS AND PREJUDICIAL.
THE ADMISSION OF HEARSAY EVIDENCE VIOLATED THE RULES OF EVIDENCE AND DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AT TRIAL.
THE TRIAL COURT PERMITTED IMPROPER OPINION TESTIMONY AT TRIAL.
IMPROPER IDENTIFICATION EVIDENCE VIOLATED DEFENDANT'S DUE PROCESS RIGHTS.
FAILURE TO INSTRUCT THE JURY ON THE LAW OF ACCOMPLICE LIABILITY WAS HARMFUL ERROR (PLAIN ERROR).
COMMENTS BY THE PROSECUTOR WERE PREJUDICIAL AND DENIED DEFENDANT A FAIR TRIAL.
IMPROPER TESTIMONY ABOUT DEFENDANT'S LACK OF EMPLOYMENT CAUSED AN UNFAIR TRIAL.
THE TRIAL COURT ERRED IN PERMITTING EVIDENCE REGARDING CONTROLLED DANGEROUS SUBSTANCES ALLEGEDLY TESTED BY FEDERAL AUTHORITIES.
DEFENDANT ADOPTS AND INCORPORATES BY REFERENCE ALL ARGUMENTS ADVANCED IN THE BRIEF SUBMITTED BY CO-DEFENDANT JASON MCKINNON.
DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
McKinnon raises the following arguments:
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 CONTRADICTORY, CONFUSING, AMBIGUOUS, AND ERRONEOUS INSTRUCTION ON THE LAW OF A LEADER OF A NARCOTICS TRAFFICKING NETWORK. (Not Raised Below)
A. THE INSTRUCTION WAS CONTRADICTORY AND CONFUSING.
B. THE INSTRUCTION OMITTED AN ESSENTIAL ELEMENT OF THE CRIME.
C. THE TRIAL COURT FAILED TO MOLD THE LAW TO THE FACTS OF THIS VERY COMPLICATED CASE IN WHICH THE MODEL JURY CHARGE INCLUDES INNUMERABLE PERMUTATIONS THAT COULD RESULT IN A GUILTY VERDICT.
D. THE TRIAL COURT FAILED TO INSTRUCT JURORS THAT THE DEFENDANT COULD AGREE TO PARTICIPATE IN THE CRIME BUT BE CONVICTED OF A LESSER OFFENSE BASED ON HIS OWN CRIMINAL INTENT AND PARTICIPATION IN THE CRIME.
E. THE TRIAL COURT FAILED TO INSTRUCT THE JURORS THAT THEY HAD TO BE UNANIMOUS WITH RESPECT TO THE PREDICATE FACTS SUPPORTING THEIR VERDICT.
F. THE INSTRUCTION ON THE LAW OF ATTEMPT WAS INCOMPLETE, CONFUSING, ERRONEOUS, AND PREJUDICIAL.
1. THE INSTRUCTION LACKED GUIDANCE ON THE LAW OF ATTEMPTED DISTRIBUTION.
2. THE INSTRUCTION ALLOWED THE JURORS TO CONVICT THE DEFENDANT OF BEING A LEADER IN A NARCOTICS NETWORK BASED ON AN ATTEMPT TO ATTEMPT DISTRIBUTION.
3. THE TRIAL COURT FAILED TO INSTRUCT JURORS THAT THE
LAW OF ATTEMPT REQUIRES PURPOSEFUL CONDUCT AND THAT IT CANNOT FIND THAT THE DEFENDANT ATTEMPTED DISTRIBUTION KNOWINGLY.
THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART 1., PAR. 1 OF THE NEW JERSEY CONSTITUTION, AND 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 WERE VIOLATED BY THE IMPROPER ADMISSION OF HEARSAY EVIDENCE AND ACCUSATIONS FROM ABSENTEE WITNESSES. (Partially Raised Below)
A. THE IMPROPER ADMISSION OF HEARSAY EVIDENCE VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT OF CONFRONTATION. (Partially Raised Below)
1. THE TRIAL COURT IMPROPERLY ADMITTED ACCUSATIONS FROM ABSENTEE WITNESSES. (Partially Raised Below)
2. THE TRIAL COURT IMPROPERLY ADMITTED FEDERAL LABORATORY EVIDENCE.
B. THE IMPOPER ADMISSION OF HEARSAY EVIDENCE VIOLATED N.J.R.E. 802. (Not Raised Below)
C. THE IMPROPER ADMISSION OF HEARSAY EVIDENCE WITHOUT FIRSTHAND KNOWLEDGE OF THE FACTS VIOLATED N.J.R.E. 602. (Partially 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 WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED.
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 IMPROPER ADMISSION OF IDENTIFICATION EVIDENCE AND THE ABSENCE OF PROPER INSTRUCTIONS ON THE LAW OF IDENTIFICATION. (Partially Raised Below)
A. THE TRIAL COURT IMPROPERLY ADMITTED VOICE IDENTIFICATION EVIDENCE. (Partially Raised Below)
1. THE STATE FAILED TO PROVIDE A PROPER FOUNDATION FOR THE ADMISSION OF VOICE IDENTIFICATION TESTIMONY. (Partially Raised Below)
2. THE VOICE IDENTIFICATION TESTIMONY WAS SUGGESTIVE AND UNRELIABLE. (Not Raised Below)
B. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE LAW OF IDENTIFICATION OF JASON MCKINNON. (Not Raised Below)
1. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE LAW OF VISUAL IDENTIFICATION OF JASON MCKINNON.
2. THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE LAW OF VOICE IDENTIFICATION.
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 ABSENCE OF AN ACCOMPLICE WITNESS INSTRUCTION NOTWITHSTANDING THE STATE'S SUBSTANTIAL RELIANCE ON ALLEGED ACCOMPLICES TO PROVE ITS CASE. (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 PROSECUTOR'S TACTIC OF CHARACTER ASSASSINATION TO PROVE HIS CASE. (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 STATE'S EVIDENCE SHOWING THAT THE DEFENDANT'S ALLEGED CO-CONSPIRATOR WAS UNEMPLOYED. (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 FAILURE OF THE STATE TO SHOW AN UNINTERRUPTED CHAIN OF CUSTODY.
THE MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
THE DEFENDANT ADOPTS AND INCORPORATES BY REFERENCE THE ARGUMENTS ADVANCED IN THE CO-DEFENDANT'S APPELLATE BRIEF THAT ARE NOT INCONSISTENT WITH DEFENDANT'S ARGUMENTS.
THE SENTENCE IS EXCESSIVE.
A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM.
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
C. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
D. THE IMPOSITION OF A LIFE SENTENCE PLUS FIFTEEN YEARS IS CRUEL AND UNUSUAL IN VIOLATION OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
Maddox raises these additional arguments in his pro se supplemental brief and letter brief:
THE APPELLANT SUBMIT [SIC] THAT THE EVIDENCE WHICH WAS SUBMITTED FOR PURPOSE OF PROBABLE CAUSE IN THE AFFIDAVIT CONTAINED FALSE STATEMENTS IN RECKLESS REGARDS FOR THE TRUTH BY AGENTS OF THE STATE WHICH THE APPELLANT SHOULD BE AFFORDED A REMAND FOR A FRANKSHEARING UNDER THE FOURTH AMENDMENT AS INCORPORATED IN THE FOURTEENTH AMENDMENT IN THE UNITED STATES CONSTITUTION.
THE APPELLANT SUBMIT [SIC] THAT THE TRIAL COURT ERRED BY NOT GRANTING A MISTRIAL WHERE TESTIMONY CONCERNING ISSUE OF MIRANDAWARNINGS BY OFFICE WIDMAIER WAS BASED SOLELY ON HIS CREDIBILITY BECAUSE HE WAS AN OFFICER AND COULD NOT PRODUCE ANY SUFFICIENT EVIDENCE TO SHOW THE MIRANDA WARNING EXISTED.
THE APPELLANT SUBMIT [SIC] THAT THE TESTIMONY OF DETECTIVE DAVID LAWYER VIOLATED THE RULES GOVERNING LAY OPINION AND VIOLATED THE FACT FINDING PROVINCE OF THE JURY IN CONDUCTING SURVEILLANCE OF MCKINNON.
McKinnon raises the following arguments in his pro se supplemental brief:
A NEW TRIAL IS WARRANTED DUE THE PROSECUTION REPEATEDLY INTRODUCING AND REFERENCING OTHER CRIMES AND BAD ACTS, AND STATING THAT THE DEFENDANTS WERE A THREAT TO THE COMMUNITY. (Partially Raised Below)
BECAUSE THE LOWER COURT NEGLECTED TO CONDUCT FULL INQUIRIES INTO SOME POTENTIALLY TAINTED JURORS, PREJUDICE MUST BE PRESUMED, OR THIS CASE MUST BE REMANDED TO COMPLETE THE RECORD. (Not Raised Below)
DEFENDANT COULD NOT FULLY PREPARE FOR TRIAL BECAUSE HE WAS NEVER GIVEN TRANSCRIPTS OF ANY RECORDED CONVERSATIONS.
DEFENDANT WAS CUMULATIVELY PREJUDICED DURING THE JOINT TRIAL. (Not Raised Below)
A. DEFENDANT WAS UNABLE TO CROSS-EXAMINE HIS JOINTLY TRIED CO-DEFENDANT, WHO INCULPATED DEFENDANT VIA SEVERAL RECORDED CONVERSATIONS.
B. THERE WAS NO WAY FOR DEFENDANT TO AVOID HAVING THE COURT GIVE AN INSTRUCTION THE CO-DEFENDANT DEMANDED.
RECORD-PROVEN CUMULATIVE ERROR WARRANTS A NEW TRIAL. (Not Raised Below)
After reviewing these arguments in light of the record and applicable legal principles, we are satisfied that none of defendants' arguments have merit. Further, the arguments raised by Maddox in Points III and IV of his supplemental brief and letter brief, by McKinnon in Point IX of his brief and the points McKinnon raised in his pro se supplemental brief lack sufficient merit to warrant any discussion in a written opinion. R. 2:11-3(e)(2).
We first turn to the argument defendants make in Point III of their briefs, that they were prejudiced by the introduction of lay opinion testimony from Detectives Hunter and Thomas Cornely. Because the admissibility of opinion evidence lies within the discretion of the trial court, State v. LaBrutto, 114 N.J. 187, 197 (1989), we review the admission of this evidence for an abuse of discretion. State v. Feaster, 156 N.J. 1, 82 (1998). We grant substantial deference to the trial judge's discretion on evidentiary rulings unless it is a clear error of judgment or so wide of the mark that a manifest denial of justice results. See, e.g., State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989); State v. Carter, 91 N.J. 86, 106 (1982); State v. Swint, 328 N.J.Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000).
The trial in this matter was completed before the Supreme Court decided State v. McLean, 205 N.J. 438 (2011). Although McLean specifically "address[ed] the permissible scope of lay opinion testimony in the context of prosecutions involving alleged street-level narcotics transactions[, ]" id. at 443 (emphasis added), unlike the level of narcotics trafficking here, it provides guidance regarding the admissibility of opinion testimony offered by law enforcement officers who are not qualified as expert witnesses.
The Court examined the permissible bounds of both expert and lay opinion testimony and noted that lay opinion testimony is governed by N.J.R.E. 701, which permits a lay witness's "testimony in the form of opinions or inferences . . . if it is (a) rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." Addressing the first requirement, the Court stated, "perception . . . rests on the acquisition of knowledge through use of one's sense of touch, taste, sight, smell or hearing." McLean, supra, 205 N.J. at 457. The principle that lay opinion testimony must be "limited to what was directly perceived by the witness[, ]" id. at 460, does not lend itself to a bright-line rule. It is clear from the examples of permissible lay opinion testimony noted in McLean that the witness may offer an opinion that entails some processing of the facts perceived. Id. at 457-59. E.g., LaBrutto, supra, 114 N.J. at 199 (police officer who did not observe collision permitted to offer a lay opinion about the point of impact of vehicles); Trentacost v. Brussel, 164 N.J.Super. 9, 19-20 (App. Div. 1978) (officer permitted to testify as to whether a neighborhood is a "high crime area"), aff'd, 82 N.J. 214 (1980).
Fed. R. Evid. 701 is similar to N.J.R.E. 701 in requiring that a lay opinion be rationally based upon the perception of the witness and helpful to the trier of fact. Addressing the first requirement that the opinion be rationally based upon perception, the Second Circuit stated, "a lay opinion must be the product of reasoning processes familiar to the average person in everyday life." United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005). The Fifth Circuit described that reasoning process as follows:
[T]here must be sufficient evidence to support a finding that the witness has personal knowledge of the facts from which the inference or opinion is said to derive. Next, there must be a rational connection between the opinion or inference and the observed factual basis from which it derives -- that is, the opinion or inference must be one that a normal person would form from those perceptions.
[Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc., 630 F.2d 250, 263 (5th Cir. 1980) (internal citations omitted).]
This description is consistent with the explanation provided in McLean as to why the lay opinions regarding point of impact and "high crime area" were permissible. As the Court observed, the officer's opinion regarding point of impact "was based on his personal observations of [the] accident scene, areas of damage to vehicles, skid marks and damage to grassy shoulder[.]" McLean, supra, 205 N.J. at 459. As for the "high crime area" opinion, the Court noted the officer's opinion "rested on frequency with which he answered calls, quelled disturbances and made arrests in area[.]" Ibid. Thus, in each case, the opinion given was a conclusion the average person could reach by applying no more than the reasoning process associated with everyday living to the events perceived.
As for the second requirement, the Court noted that opinion testimony admitted under N.J.R.E. 701 is "limited to testimony that will assist the trier of fact either by helping to explain the witness's testimony or by shedding light on the determination of a disputed factual issue." Id. at 458. The Court provided the following example of such assistance:
[A] lay witness was permitted to offer an opinion about the meaning of street slang that defendant used during a conversation relating to a crime because it was "unfamiliar to the average juror . . . [it] was of assistance in determining the meaning and context of his conversation with defendant and was obviously relevant to the issue of defendant's motive and intention."
[Ibid. (quoting State v. Johnson, 309 N.J.Super. 237, 263 (App. Div.), certif. denied, 156 N.J. 387 (1998)).]
Guided by these principles, we turn to a review of the evidence challenged on appeal to determine if its admission constituted an abuse of discretion. We note that the testimony now challenged was largely presented without objection at trial. Further, defendants' arguments ignore the existence of other clearly competent evidence that, in many cases, rendered the lay opinion testimony merely cumulative.
Maddox identifies the following testimony as improperly admitted:
On October 18, 2006, the informant made a controlled buy of cocaine from Maddox and asked about purchasing a kilogram of cocaine from him. During an intercepted telephone conversation between Maddox and McKinnon thereafter, McKinnon asked, "Well, who's going to get it to him?" The prosecutor asked Hunter what he interpreted that statement to mean and the following exchange occurred:
A. I interpreted that to mean who is actually going to deliver the kilogram of cocaine to the informant . . . .
Q. Why would they need somebody other than themselves to do it?
A. Insulates them from law enforcement. Obviously, would not want to be seen or caught giving anything over -- well, five ounces or any quantity of cocaine to somebody. Certainly, not a kilogram.
There was no objection posed to any of this colloquy.
Maddox also challenges the following exchange regarding a conversation between defendants, intercepted on October 18, 2006:
Q. Detective, what did you interpret Mr. Maddox to mean when he said to Mr. McKinnon "One of your people" --
A. (Interposing) In order to deliver the kilogram of cocaine to the informant, . . . . Mr. Maddox is asking or requesting of Mr. McKinnon to get one of Mr. McKinnon's subordinates to deliver it to [the informant].
Again, there was no objection to either the question or answer given.
The next lay opinion challenged by Maddox regards Hunter's interpretation of certain language in a conversation between him and Scott intercepted on October 25, 2006. The prosecutor asked Hunter about Maddox's statement, "I got to say it's like Nas is his mentor, so I leave it as that."
Q. Who is "Nas"? What were they referring to?
A. Nasser Perez, his nickname was "Nas." When Michael [sic] says Nas was his mentor, Nas was getting it. Nas is hot as hell, he meant Jason McKinnon was working for Nasser Perez; Nas was making money.
No objection was made to either this question or answer.
Maddox also contends it was improper for Hunter to interpret certain terms used in the intercepted conversations, i.e., that "a bird" referred to a kilogram of cocaine; that to "chirp" referred to using the walkie-talkie feature on a phone to let somebody know you want to talk to them; and that "Tina" referred to crystal methamphetamine. Again, there were no objections to any of this testimony.
As we have noted, the Supreme Court expressly identified the interpretation of street slang as a proper subject for lay opinion testimony. See McLean, supra, 205 N.J. at 458. Hunter's experience in drug investigations generally and in monitoring conversations among these defendants provided him with adequate personal knowledge as to the terms used. Further, such interpretations were clearly useful for the jury to understand the content of the intercepted conversations. See State v. Lazo, 209 N.J. 9, 22-23 (2012) (lay witness testimony of police officer permissible when witness has sufficient personal knowledge of facts underlying opinion to render lay opinion helpful to jury).
McKinnon argues that Detectives Hunter and Cornely rendered "highly prejudicial" testimony in the form of purported lay opinions.
Cornely testified that McKinnon was selling one-half kilogram to one kilogram of cocaine per week. When asked how he knew that, Cornely answered:
Well, we would constantly get calls between the two and he would tell Mr. Perez his status, how many stacks he had, by stacks it's thousands. We could tell he was getting -- whether it took a couple of days, he'd have ten, 13 stacks put together. We would kind of gauge how much he was buying and then he would meet him on certain occasions through the course of the week.
There was no objection to this testimony. Nonetheless, McKinnon argues that this testimony is prejudicial because "lay jurors cannot be expected to conclude that McKinnon was selling between a half-kilo and a kilo per week based on ten, 13 stacks[, ]" despite Cornely's explanation that "stacks" meant "thousands." McKinnon's argument utterly ignores the fact that Perez testified about his sales of up to one kilogram of cocaine per week to McKinnon and explained that a "stack" was one thousand dollars.
An intercepted telephone conversation between McKinnon and an unidentified male on December 7, 2006, included the following exchanges:
JM: What happened?
UM: I think these n___s just made a controlled buy off me.
. . . .
JM: Wh, wh, why would you say that?
UM: Shit, I got a bad feelin', dude.
JM: Nah, nah, I, I served him before. He alright.
UM: Cause he asked if I was gettin' it off you, first. I said what the fuck's it matter.
. . . .
JM: No, yeah, I know what dude you're talking about. Nah, I don't think he will, yeah, I don't think he would do that. He didn't ask me when I went in there, either.
UM: Well, he asked me, like, where you gettin' that. He like you gettin' off "J." I was like what the fuck's it matter where I'm gettin' it. Give me fifty dollars, I'll get you what you want.
JM: Yeah, I don't know. That ain't good.
UM: Hey, I got you. I wouldn't fuck do nothin' against you, anyway.
JM: Yeah, yeah, I know that.
In reviewing this conversation, the prosecutor asked Hunter what the participants in the conversation were talking about. Hunter replied, "[t]he unidentified male is advising Jason McKinnon that he believes a controlled buy or controlled purchase was just performed." When the prosecutor asked Hunter why the unidentified male would be telling McKinnon this, Hunter answered, "Because he obviously was working for Jason McKinnon." Defense counsel objected on the ground that this was opinion testimony. The court instructed the jury to disregard the word "obviously." We discern no error in Hunter's "interpretation" that the unidentified male was telling McKinnon about his suspicion that there was a controlled buy. In fact, Hunter's testimony merely repeated what the unidentified male said, i.e., that he thought someone "just made a controlled buy off [him]."
As noted, Perez testified that he sold McKinnon cocaine in kilogram quantities. A telephone conversation between Perez and McKinnon intercepted on December 19, 2006, included the following exchanges:
NP: Yo, you were sayin' that you, you, you still had a lot of work left?
JM: Well, not really . . . . But, I'm, I might have almost all that money that I owe you. I'm down in Pennsauken, now, collecting a couple dollars.
. . . .
JM: Yeah, I'll, I, I'll chirp you when I get up there and then I'll tell you how much dough I got for you.
NP: Alright, yeah. Okay. . . . If not, . . . you can see me tomorrow . . . .
JM: Alright, yeah, but I'm definitely gonna need to get up with you, cause I'm almost running out anyway.
After reviewing this conversation, there was the following colloquy between the prosecutor and Hunter:
Q. And what was the arrangement between Mr. Perez getting cocaine to Jason McKinnon?
A. There were times when Nasser Perez would front or give Jason McKinnon cocaine on consignment; Jason McKinnon would sell the cocaine and pay Nasser Perez back.
Q. Is that common in drug trafficking?
A. When you get to higher weight, yes, it is.
Q. Why is that?
A. When you get to higher weights, getting the amount of money up to buy a half-kilo or kilo --
At this point, counsel for Maddox objected, stating, "I don't know if he's testifying as an expert in narcotics investigation or how they finance it or not. . . . So, unless he's saying it's his expert opinion as to higher weights and what the limits of higher weights are --" At the court's suggestion, the prosecutor then asked Hunter questions designed to qualify him as an expert and moved to have him so qualified. Counsel for both defendants objected on the ground that Hunter had not been identified as an expert prior to trial. The court did not advise the jury that Hunter was qualified as an expert and did not include Hunter in its charge on expert testimony. As a result, the admissibility of Hunter's testimony must be evaluated as lay opinion testimony. The testimony that elicited the objection concerned his statement that Perez gave McKinnon cocaine and that McKinnon would pay him for the cocaine after he received the proceeds for the sale, and his opinion that this was common in trafficking at higher weight.
The intercepted conversations include statements by McKinnon regarding money he owed to Perez and his effort to collect money to repay him. Perez testified about this practice and the intercepted conversations as well. Thus, Hunter's first statement regarding the practice between Perez and McKinnon was one of fact, not opinion, and cumulative of the independent evidence that established that fact.
Perez also testified that McKinnon, who purchased kilogram quantities of cocaine, was one of his best customers. This testimony, along with McKinnon's intercepted statements regarding quantities of cocaine, was sufficient to support a description of McKinnon as one who dealt in higher weight. However, an opinion that cast McKinnon's and Perez's arrangement as one that was common in drug trafficking at higher weight was not properly admitted as a lay opinion. We note that the statement was fleeting in nature. In light of the compelling evidence against McKinnon, we are satisfied that any error was harmless.
In sum, the evidence of defendants' drug trafficking was compelling. None of the testimony challenged on appeal, some for the first time, had the capacity to lead to an unjust result.
In Point II of their briefs, defendants argue that the admission of hearsay evidence violated their Sixth Amendment right to confrontation, requiring reversal of their convictions. We disagree.
Defendants argue they were not provided with the opportunity to confront all the sources of information relied upon by the State. Defendants place particular emphasis upon the State's failure to call the informant,  whom they describe as playing a pivotal role in the investigation. The State is required to prove its case through competent evidence that does not deprive defendants of their right to confront the witnesses against them. That obligation does not, however, require the production of every source of information relied upon.
Defendants' challenges to hearsay statements attributable to the informant lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e), with one exception. Hunter testified that the informant "admitted that he had a relationship with Mr. Maddox . . . to exchange narcotics, prescription pills for cocaine." Because this testimony would "lead the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." State v. Bankston, 63 N.J. 263, 271 (1973). Under such circumstances, the defendant is deprived of his constitutional right to confront the witness. See State v. McLaughlin, 205 N.J. 185, 207 (2011); State v. Roach, 146 N.J. 208, 224, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed.2d 424 (1996); Bankston, supra, 63 N.J. at 269.
However, defendants failed to object to this testimony at the time it was given. The Supreme Court has instructed that, under such circumstances, the harmless error standard applies. State v. Hightower, 120 N.J. 378, 410 (1990); Bankston, supra, 63 N.J. at 273. For the error here to require reversal, there must be "some degree of possibility that it led to an unjust verdict. The possibility 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." Ibid.
The informant certainly provided an important entry for the investigation by agreeing to act as an informant and wear a wire. However, the prosecution was by no means dependent upon the information obtained through his cooperation. The avalanche of incriminating statements made by defendants in intercepted telephone conversations corroborates and even eclipses the information obtained with the informant's assistance. In light of the significant amount of evidence implicating defendants, the admission of the informant's hearsay statement was harmless error incapable of causing an unjust result.
Defendants also challenge testimony by Hunter in which he described Rich, Blackstone, and Scott as "criminal associates" of defendants, based upon the investigation. We agree that this testimony was improper. Use of the term, "criminal associates, " conveyed the witness's conclusion that defendants were criminals. However, because there was no objection at trial, this challenge is subject to the plain error standard. R. 2:10-2. Both the association among defendants and these individuals and the criminal nature of that association were evident from the intercepted conversations. Because the jury had evidence that permitted it to draw its own conclusions as to whether defendants engaged in criminal endeavors with Rich, Blackstone, and Scott, this was not a case in which the improper conclusory description depended upon information outside the record. In light of the substantial evidence in the record of defendants' guilt and of the criminal association described by Hunter, this testimony was not "clearly capable of producing an unjust result[.]" R. 2:10-2.
Defendants challenge Cornely's testimony that: McKinnon's cell phone was "very active"; McKinnon was selling a variety of narcotics, mostly crack cocaine; "two younger guys that [McKinnon] basically was training to distribute" were identified as working with McKinnon; Scott was "an individual who sometimes cooked up cocaine into crack cocaine for Mr. McKinnon and also distributed cocaine for Mr. McKinnon"; they established that McKinnon was purchasing "from half-a-kilo to a kilo a week" of cocaine from Perez; he interpreted the intercepted conversations based on "[e]verything that was going on in the course of the investigation"; and Foster was one of the people Maddox used to sell drugs. Defendants also challenge testimony from Davis that, in conducting surveillance, he followed a vehicle "known to be driven and utilized by Mr. McKinnon" and that he had "targeted" McKinnon as a suspect in the drug trade as early as December 4, 2006.
Although the defense at trial was vigorously pursued, no objections were posed to any of the statements now challenged on appeal. These challenges are therefore subject to review for plain error. R. 2:10-2. Contrary to defendants' contentions, the testimony challenged was not based upon facts outside the record. There was evidence, including intercepted conversations, the results of physical surveillance, and the testimony of Perez, Goodin, and Flick, to support these statements. The admission of this testimony was not plain error. The balance of defendants' arguments regarding alleged hearsay evidence in Point II of their briefs lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
In Point VIII of defendants' briefs and McKinnon's Point II(A)(2), they argue that the court erred in admitting DEA lab reports without the requisite certification and without demonstrating a sufficient chain of custody. These arguments lack merit.
More than six months prior to the start of trial, the State provided defendants with copies of the fourteen proffered DEA lab reports, as part of its "Discovery Inventory." The State also gave defendants formal notice of its intention to admit the reports as per N.J.S.A. 2C:35-19. Specifically, the State informed defendants: "Be advised that the State intends to admit into evidence at any trials in this matter the enclosed laboratory reports analyzing the controlled dangerous substances in this case, pursuant to N.J.S.A. 2C:35-19. This letter constitutes formal notice of such intention." On April 23, 2009, the State reiterated its intention to submit the reports at trial in its pre-trial memorandum.
The only objections to the DEA reports raised at trial related to chain of custody. After the close of both the State's and defendants' cases, however, defendants objected to the reports on the ground that the State had failed to provide the required certificates. They stated the reports were not "procedurally . . . admissible on their face, not anything else. And if they [were] not admissible on their face procedurally because of a procedural defect, they're not admissible." Defendants noted that the State would not be prejudiced by their request that the reports not be given to the jury since "[a]ll the reports [had] been testified to[.]"
The court determined that "defense counsel made an intelligent and very shrewd tactical decision" in failing to make a timely objection. The court recalled numerous questions posed by both defense counsel on cross-examination that reflected a
tactical decision . . . to attack the ability of the State to prove this case beyond a reasonable doubt was to attack the weight to be given to the evidence; that because there were chain-of-custody issues the State did not meet its burden of proving . . . that these were the drugs analyzed beyond a reasonable doubt.
The court concluded:
the only inference . . . [to] be drawn is that were either counsel to have notified the State of an objection to the lab reports or their admissibility, the State would have simply called the DEA chemist, would have had him testify and that entire line of defense would have gone out the window.
Defendants did not raise their objection until summations were about to begin. The court explained that it could not, for numerous reasons, ask the jury to wait up to two weeks for the State to obtain the chemists and reopen its case to present such testimony. The court also noted that defendants never challenged the results, the findings, the net weight, or the identity of the drugs contained in the reports. Witnesses testified as to field test results that confirmed the DEA reports, and were able to explain any discrepancies. The court therefore declined to exclude the reports from evidence.
Under N.J.R.E. 402, relevant evidence is generally deemed admissible, although it may be excluded where "its probative value is substantially outweighed by the risk of . . . undue prejudice[.]" N.J.R.E. 403. Decisions on the admissibility of evidence are reviewed for abuse of discretion. State v. Harvey, 151 N.J. 117, 166 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000). Here, defendants' objection was merely procedural and, if timely raised, undoubtedly would have been addressed during the trial. They acknowledged that the substantive contents of the reports were already in evidence before the jury. We discern no abuse of discretion in the court's decision to admit the reports into evidence.
Defendants also contend that the State did not adequately establish a chain of custody for the drugs that were seized during execution of the search warrants. We disagree.
"The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901; see also State v. Brunson, 132 N.J. 377, 393-94 (1993). "The determination of whether the State sufficiently established the chain of custody is within the discretion of the trial court." State v. Mosner, 407 N.J.Super. 40, 62 (App. Div. 2009). Such evidence will usually be admitted "if the court finds in reasonable probability that the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed." Ibid. (internal quotation marks omitted). Defects in the chain do not negate admissibility, but go instead to the weight of the evidence. State v. Morton, 155 N.J. 383, 446 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed.2d 306 (2001); Mosner, supra, 407 N.J.Super. at 62.
Hunter was the evidence custodian for the seized drugs until they were sent to DEA. When the seized drugs were introduced at trial, Hunter repeatedly testified that he recognized the NJSP evidence bags contained inside the DEA evidence bags. DEA had subsequently assigned the evidence separate numbers, which were displayed on the outside of the bags and which were consistent with the DEA reports. The results of the DEA tests were consistent with NJSP field tests, as well as with the amounts of drugs the informant was instructed to purchase during the controlled buys. Thus, there was a reasonable probability that the evidence was not altered and was in the same condition as when it was obtained by police. Mosner, supra, 407 N.J.Super. at 62. We discern no abuse of discretion in the court's determination that the State provided sufficient evidence to establish the requisite chain of custody.
In Point IV of their briefs, defendants argue that the trial court erred in permitting testimony from Hunter and Cornely that identified their voices on intercepted conversations, and Hunter's identification of the informant's voice in recorded conversations.
An objection was made to Hunter's testimony identifying the informant's voice. Defendants argued that only the informant could confirm it was his voice on the recordings, rendering Hunter's testimony as to what the informant and Maddox said hearsay. This argument lacks merit. Clearly, competent evidence of the identification of a speaker is not limited to testimony by that speaker.
Pursuant to N.J.R.E. 701, a lay witness may identify the voice of a speaker, provided the witness's opinion "(a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." See, e.g., State v. Perez, 150 N.J.Super. 166, 170 (App. Div.), certif. denied, 75 N.J. 542 (1977). Such testimony "is generally admissible provided that the witness has an adequate basis for comparison of defendant's voice with the voice which he identifies as that of the accused." State v. Johnson, 138 N.J.Super. 579, 582 (App. Div.) (citing Annotation, "Identification of an accused by his voice, " 70 A.L.R. 2d 995 (1960)), certif. denied, 71 N.J. 340 (1976); see also State v. Gallagher, 286 N.J.Super. 1, 16 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996). To satisfy the first requirement of N.J.R.E. 701, the witness's "perception . . . [must] rest on the acquisition of knowledge through use of one's sense of touch, taste, sight, smell or hearing." McLean, supra, 205 N.J. at 457.
As the case agent, Hunter had extensive contacts with the informant and supervised the monitoring and recording of his conversations. Plainly, there was an ample basis for him to identify the informant's voice.
Defendants did not object to Hunter's identification of their voices at trial and now contend that the admission of this testimony was plain error. We note that identification was not a material issue in the case. See State v. Cotto, 182 N.J. 316, 325 (2005). The evidence included testimony from Perez, who identified both defendants' voices based upon his business relationship and friendship with defendants and participation in intercepted conversations; Goodin's identification of McKinnon; and defendants' self-identifications on the wiretap recordings. Indeed, the identifications were not challenged on cross-examination.
Both Hunter and Cornely had numerous opportunities to listen to and become familiar with defendants' voices. The detectives heard intercepted telephone conversations in which defendants identified themselves. In addition, Hunter heard Maddox's voice in monitored conversations between the informant and Maddox that he was able to observe, and he spoke to defendants at the time of their arrests. We are therefore satisfied that the detectives' identifications of defendants' voices were properly based on their own perceptions. N.J.R.E. 701; McLean, supra, 205 N.J. at 457. Moreover, the testimony regarding the surveillance procedures, as well as the testimony of corroborating witnesses, supports the reliability of the identifications. The admission of this testimony was not error, let alone plain error.
In Point VII of their briefs, defendants argue that they were prejudiced by the introduction of testimony that Maddox was unemployed. There was no objection to this testimony at trial, and therefore, the argument is subject to a review for plain error. See R. 2:10-2. The absence of an objection corresponds to the absence of any merit to this argument. N.J.S.A. 2C:35-3 states in pertinent part:
The trier of fact may infer that a particular scheme or course of conduct was undertaken for profit from all of the attendant circumstances, including but not limited to . . . the actor's net worth and his expenditures in relation to his legitimate sources of income[.]
The statute thus explicitly permits the jury to consider evidence that a defendant charged with being a leader of a narcotics trafficking network lacks sufficient legitimate income to support his lifestyle. Accordingly, even if an objection had been posed, this evidence would have been properly admitted.
In Point VI of their briefs, defendants argue that comments made by the prosecutor in his opening and closing statements to the jury deprived them of a fair trial. No objection was made at trial to the comments challenged here.
"Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action." State v. Timmendequas, 161 N.J. 515, 576 (1999) (internal citations omitted), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed.2d 89 (2001). To justify a reversal, the prosecutor's comments "must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right" to a fair trial. Id. at 575 (internal quotation marks omitted).
Defendants first contend that it was improper for the prosecutor to state in his opening that the case was about "a family of drug dealers." The evidence at trial supported both the characterization of defendants as a family and as drug dealers. It included, but was not limited to, the following: Maddox and McKinnon were brothers by adoption. In the intercepted conversations, Maddox stated his "family is cocaine" and told the informant he was giving him the "family price." Maddox's nephew, Muldrow, participated in the informant's controlled purchase on May 18, 2006. In a conversation between Maddox and his younger brother, Foster, on October 20, 2006, Maddox instructed Foster on how he should conduct a drug transaction involving pills and crack cocaine. The prosecutor's reference to "a family of drug dealers" was, therefore, appropriately "limited to the evidence and inferences reasonably drawn therefrom[.]" Morton, supra, 155 N.J. at 457.
Defendants also challenge, again as plain error, a comment made in summation regarding the familiarity that "even the bad guys" have with the procedures used in controlled buys. Defendant contends that in referring to defendants and their alleged co-conspirators as "bad guys, " the prosecutor impermissibly relied on character assassination to prove defendants' guilt. Although the prosecutor may be fairly criticized for using the term "bad guys" here, this isolated comment was, in fact, firmly rooted in evidence before the jury. Indeed, the comment provided a segue to review evidence that included a statement made to McKinnon in one intercepted conversation that the caller suspected someone had "made a controlled buy" from him, and Gephart's statements to Maddox regarding controlled buys.
We are satisfied that none of the comments challenged on appeal constituted plain error. R. 2:10-2.
We next turn to defendants' challenges to the jury charge, specifically, the charge on being a leader of a narcotics trafficking network (Point I), and the court's failure to give charges sua sponte on voice identification (Point IV), visual identification (McKinnon Point IV), and the evaluation of accomplice testimony (Point V). All of these arguments are subject to review for plain error. R. 2:10-2.
Counts three and four charged Maddox and McKinnon, respectively, with being a leader of a narcotics trafficking network, N.J.S.A. 2C:35-3. At a pretrial conference, the trial judge noted that the State had proposed a jury charge regarding this offense, which defense counsel had an opportunity to review. The judge stated he "would be inclined to give that charge as proposed." There was no objection from either defense counsel. Defendants have identified no request or objection made by either regarding this instruction before it was given. Similarly, defendants failed to request any instruction on voice identification or the evaluation of accomplice testimony.
The judge began the jury charge on June 9, 2009, and concluded it the following day. The instruction on being a leader of a narcotics trafficking network was delivered on June 9 and, at the conclusion of the day, the judge asked counsel, "Anything anybody needs to say or comments or any questions about the charge up to this point in time?" Each attorney replied, "No, Your Honor."
On the following day, after the judge concluded the jury charge, he again asked counsel if there were "any additional instructions or corrections[.]" The prosecutor noted one error on the verdict sheet, but defense counsel raised no objection to any part of the charge. Neither defendant requested charges on voice identification or evaluating the credibility of an accomplice, or objected to the absence of such a charge. Nonetheless, for the first time on appeal, defendants challenge the charge on being a leader of a narcotics trafficking network and contend that the court committed plain error in failing to give charges on voice identification and evaluating the credibility of an accomplice.
Pursuant to Rule 1:7-2, defendants' failure to object at trial constitutes a waiver of their right to challenge the instruction on appeal, State v. Afanador, 151 N.J. 41, 54 (1997) (Afanador II), and their challenge is subject to the plain error standard. R. 2:10-2. "In considering a jury charge, plain error is '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed.2d 797 (1970)). We discern no error in the charge that prejudiced defendants.
The court's instruction on the leader of a narcotics trafficking network counts tracked the model jury charge. See Model Jury Charge (Criminal), "Leader of Narcotics Trafficking Network" (2000) (Model Jury Charge). "When a jury instruction follows the model jury charge, although not determinative, 'it is a persuasive argument in favor of the charge as delivered.'" State v. Whitaker, 402 N.J.Super. 495, 513-14 (App. Div. 2008) (quoting State v. Angoy, 329 N.J.Super. 79, 84 (App. Div.), certif. denied, 165 N.J. 138 (2000)), aff'd, 200 N.J. 444 (2009).
The trial court first gave a charge on count three, the leader of a trafficking network charge against Maddox, and then gave virtually the same instruction regarding McKinnon. The court advised that the four elements the State was required to prove beyond a reasonable doubt were:
One, that defendant conspired with two or more persons. Two, that the purpose of the conspiracy included a scheme or a course of conduct to unlawfully manufacture, distribute, dispense, bring into or transport in this state [illegal narcotics]. And, three, the defendant was an organizer, supervisor or manager of at least one other person, and, four, the defendant occupied a high level position in the conspiracy.
Specifically addressing the third element, the court reiterated that in order to find defendants guilty, the jury needed to find that the State proved beyond a reasonable doubt that defendants were "organizer[s], supervisor[s], or manager[s] of at least one other person." (Emphasis added). Subsequently, in instructing the jury on the fourth element, the court explained that "a high level position in the drug trafficking conspiracy" meant that defendants
occupied a position of superior authority or control over other persons in the scheme or organization of drug distribution or manufacturing, dispensing or transportation and that in that position the defendant[s] exercised supervisory power or control over others engaged in the drug trafficking conspiracy.
Defendants first contend that the trial court's instruction was contradictory and confusing because the court used the terms "at least one other person" and "others" in referencing people allegedly supervised by defendants. Defendants further argue that the language, "at least one other person, " in explaining the third element of the crime conflicts with State v. Alexander, 136 N.J. 563 (1994), in which the Court stated a trial court "should instruct the jury that it must find that the defendant occupies a high-level position, that is, a position of superior authority or control over other persons, in a scheme or organization of drug distribution . . . and that in that position the defendant exercised supervisory power or control over others" in the network. Id. at 570-71 (emphasis added).
However, N.J.S.A. 2C:35-3 was amended in 1997 to state explicitly that the "organizer" role did not require supervision over more than one person. Therefore, at the time the offenses here were committed, the statute provided in pertinent part:
A person is a leader of a narcotics trafficking network if he conspires with two or more other persons in a scheme or course of conduct to unlawfully . . . distribute . . . any controlled dangerous substance classified in Schedule I or II . . . as a financier, or as an organizer, supervisor or manager of at least one other person.
Therefore, the court's use of "at least one other person" in explaining the third element of the crime was consistent with both the model jury charge and the statute as it existed when defendants' crimes were committed. Although both the model charge and the court's instruction on the fourth element defined "a high-level position" as one in which the defendant "occupied a position of superior authority or control over other persons" and "exercised supervisory power or control over others[, ]" Model Jury Charge, supra, (emphasis added), this disparity actually imposed a higher level of proof upon the State than that in the statute and thus clearly did not prejudice defendants. Moreover, even under the higher standard, the State's evidence was sufficient to prove that each of the defendants had multiple persons working for them, thereby satisfying the third and fourth elements of the charge regardless of the wording. Thus, there was no potential for an unjust result. See Jordan, supra, 147 N.J. at 426.
Defendants also argue that the court's instruction on being a leader of a narcotics trafficking network failed to inform the jurors that purchasers are not to be considered as a person over whom the defendant allegedly exercised authority or control. See State v. Afanador, 134 N.J. 162, 173 (1993) (Afanador I) ("The casual purchaser will not ordinarily constitute one of the 'others' with whom a defendant conspires, because in most cases a street distributor does not direct or supervise a drug buyer."). However, the charge explained that members of the networking organization over whom defendants exercised authority or control had to be involved in "a scheme or organization of drug distribution, manufacturing, dispensing or transportation[.]" Casual purchasers would not fall within that description and, as noted, there was ample evidence that defendants had a number of subordinates who worked for them. Therefore, the omission of a further clarification that casual purchasers could not be considered part of the trafficking network was not plain error. R. 2:10-2.
Defendants' remaining arguments regarding the jury charge on being a leader of a narcotics trafficking network lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
The State presented the testimony of three alleged accomplices of the defendants, Perez, Flick, and Goodin, each of whom received a reduced sentence as a result of their cooperation. Defendants submit that because the use of accomplices was crucial to the State's case, an accomplice-credibility instruction was required to enable the jury to assess the witnesses' credibility.
The Supreme Court of New Jersey has "long noted that 'a defendant may be convicted solely on the uncorroborated testimony of an accomplice.'" State v. Adams, 194 N.J. 186, 207 (2008) (quoting State v. Begyn, 34 N.J. 35, 54 (1961)). "[B]ecause of the inherent conflict in such testimony, " a defendant may request a jury instruction requiring the jury to consider such testimony in light of the accomplice's interest in the proceeding. Ibid. Where such an instruction is requested, "[t]he trial court should caution the jury 'regarding the credibility of witnesses who may have a special interest in the outcome of the cause, which might lead to influencing their testimony, because of some involvement in the criminal situation out of which the indictment and trial of the defendant arose.'" Id. at 208 (quoting Begyn, supra, 34 N.J. at 54). Even where the instruction is not requested, the trial court may give it sua sponte if "it is advisable under the circumstances." State v. Shelton, 344 N.J.Super. 505, 520 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002). However, the potential for prejudice to the defendant generally advises against giving the instruction in the absence of an express request. Ibid. Here, since neither defendant requested the instruction, reversal is only warranted if "in the context of the trial, " the court's failure to sua sponte issue the instruction "was clearly capable of bringing about an unjust result." Adams, supra, 194 N.J. at 208.
The State examined each witness about their respective agreements, and both defendants subjected the witnesses to vigorous cross-examination. In his summation, McKinnon's counsel also noted that the witnesses had motivation to lie. The court provided the jury with the standard credibility instruction. At McKinnon's request, the court also instructed the jury that it could consider whether the witnesses' convictions made them more likely to lie.
Even in the absence of a specific instruction, the vigorous cross-examination of the accomplice witnesses and the argument of counsel alerted the jury that the witnesses' testimony should be subject to "careful scrutiny." State v. Harris, 156 N.J. 122, 182 (1998), cert. denied, 532 U.S. 1057, 121 S.Ct. 2204, 149 L.Ed.2d 1034 (2001). Furthermore, totally apart from the testimony of Perez, Flick, and Goodin, the evidence of defendants' guilt was substantial. Therefore, the court's failure to give an accomplice-credibility instruction sua sponte was not clearly capable of producing an unjust result.
In Point IV of their briefs, defendants argue that the court committed plain error in failing to instruct the jury on "the law of voice identification." They do not state what that instruction should have been or identify any prejudice suffered as a result of its omission.
In addition, McKinnon argues that the court committed plain error in failing to instruct the jury on out-of-court and in-court identifications of him. He contends that these instructions were required because he was implicated by testimony given by various NJSP witnesses regarding their surveillance of him.
Counsel for Maddox requested an instruction on cross-racial identification. The court reviewed the instruction it planned to give and specifically asked counsel for McKinnon about this instruction. Counsel for McKinnon stated the instruction did not apply to McKinnon but made no further request.
It is evident that identification was not a key issue in this case. McKinnon did not argue at trial and does not argue now that any of the detectives' identifications of him were made under circumstances that rendered them untrustworthy. Rather, the theory of his defense was that he was a small-time, street-level drug dealer and that the cocaine found in his possession when he was arrested was for personal use or for sales of less than one-half ounce.
When a defendant presents a legitimate claim of misidentification, even a "thin" one, a model identification charge should be given as a matter of general procedure. State v. Davis, 363 N.J.Super. 556, 561 (App. Div. 2003). However, that is not the case when the claim of misidentification is specious, see ibid., or as here, non-existent. Moreover, although it is the exception, "the State may sometimes present such overwhelming corroborative evidence that the 'failure to give an identification instruction does not constitute error[.]'" State v. Walker, 417 N.J.Super. 154, 163 (App. Div. 2010) (quoting Cotto, supra, 182 N.J. at 326). The issue raised by McKinnon's argument is "whether the failure to instruct the jury as to identification created a possibility of injustice sufficient to raise a reasonable doubt as to the propriety of the jury's conviction." State v. King, 372 N.J.Super. 227, 238 (App. Div. 2004) (quoting State v. Copling, 326 N.J.Super. 417, 431-32 (App. Div 1999), certif. denied, 164 N.J. 189 (2000)), certif. denied, 185 N.J. 266 (2005).
Here, an identification charge was given to the jury. The alleged error was that the court did not advise the jury that the charge was specific to McKinnon as it had regarding Maddox. The identifications were made by trained police officers during the course of an investigation that lasted for months. Their trustworthiness was not challenged in court or on appeal. The evidence that corroborated the identifications was, indeed, overwhelming. It included the testimony of Perez, Flick, and Goodin regarding their drug transactions with McKinnon; McKinnon's own incriminating statements regarding his movements; the rental of the storage unit in his name; and the seizure of drugs and other evidence relevant to trafficking cocaine when the search warrants and arrest warrants were executed. We are satisfied that the failure to give an instruction on identification specific to McKinnon did not "create a possibility of injustice sufficient to raise a reasonable doubt as to the propriety of the jury's conviction." King, supra, 372 N.J.Super. at 238.
Both defendants received an aggregate sentence of life imprisonment, or seventy-five years, with a thirty-year parole ineligibility period. Each challenges the sentence as excessive and faults the trial court's identification and weighing of aggravating and mitigating factors. In addition, Maddox argues that, although he was convicted of being a leader of a narcotics trafficking network, he was not in the highest echelon of the trafficking network, and that there was a disparity in the sentences imposed. McKinnon argues that the court should have rejected the State's application for an extended-term sentence, that the court usurped the jury's fact-finding function, and that the length of the sentence was cruel and unusual, in violation of the Eighth Amendment. Defendants' arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.
Although extended terms are ordinarily discretionary, N.J.S.A. 2C:43-6(f) provides in pertinent part:
A person convicted of . . . leader of a narcotics trafficking network under N.J.S.A. 2C:35-3 . . . who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S.A. 2C:43-7[.]
N.J.S.A. 2C:43-7(c) provides that the sentence so imposed "shall include a minimum term" of parole ineligibility and, "where the term of life imprisonment is imposed on a person convicted for a violation of N.J.S.A. 2C:35-3, the term of parole ineligibility shall be 30 years."
It is undisputed that each defendant had the requisite prior conviction to render him eligible for an extended term pursuant to N.J.S.A. 2C:43-7(c). Therefore, the court was mandated by statute to impose an extended-term sentence of life imprisonment with a thirty-year parole disqualifier upon each defendant for his conviction of being a leader of a narcotics trafficking network. The court also imposed a consecutive sentence of fifteen years imprisonment upon each defendant for his conviction for first-degree racketeering. We review defendants' arguments within this context and conclude they have no merit.
Both defendants, the only participants convicted of being a leader of a trafficking network, received the same sentence; thus, there was no disparity in the sentences of similarly situated defendants. The argument that the sentence imposed was excessive because there were others who operated at a higher echelon of the trafficking network does not diminish the fact that defendants were subject to these sentences because each was convicted of being a leader of the network, and the others were not. See State v. Hawks, 114 N.J. 359, 362-63 (1989); N.J.S.A. 2C:35-3 ("It shall not be a defense that the defendant was subject to the supervision or management of another, nor that another person or persons were also leaders of the narcotics trafficking network.").
The trial court made specific findings as to the aggravating factors found, addressed each of the mitigating factors proposed by defendants, and explained the reason for its rejection of those mitigating factors. The record provided adequate support for those findings and, in particular, for a sentence mid-range for each defendant's first-degree racketeering conviction. The imposition of a consecutive sentence for the racketeering charge is consistent with the legislative intent to provide for an enhanced penalty for the offense. See State v. Ball, 268 N.J.Super. 72, 148 (App. Div. 1993) ("Concurrent sentences for the RICO offense and its predicate acts would both frustrate legislative intent and give defendants the benefit of 'free crimes.'"), aff'd, 141 N.J. 142 (1995), cert. denied, sub nom. Mocco v. New Jersey, 516 U.S. 1075, 116 S.Ct. 779, 133 L.Ed.2d 731 (1996).
McKinnon's argument that his sentence violates the Eighth Amendment was not presented to the trial court and therefore is not properly subject to our review. State v. Robinson, 200 N.J. 1, 20 (2009). On appeal, McKinnon merely contends that the aggregate sentence violates the Eighth Amendment and does not narrow his argument to challenge the constitutionality of either of the component parts of that sentence. In effect, his argument is that the imposition of consecutive sentences, which resulted in an aggregate sentence that exceeded the sentence for murder, constituted a violation of the Eighth Amendment. No authority is cited for the novel proposition that a defendant who commits multiple offenses may not be sentenced to an aggregate sentence that exceeds the sentence for murder. This argument is entirely lacking in merit. We discern no basis to disturb the sentence imposed on either defendant.
We next address the arguments raised by Maddox in Points I and II of his pro se supplemental brief.
In Point I, Maddox argues that Hunter made statements in affidavits submitted to obtain search warrants that were both false and material. As a result, he contends, the affidavits were insufficient to establish the requisite probable cause and his arrest was illegal. This argument, raised for the first time in appeal, lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following limited comments.
Maddox contends Hunter falsely stated that he owned four vehicles customized with hidden compartments for concealing narcotics that were actually owned by the informant or Perez. The statement in question was not, however, contained in an affidavit submitted to the court for the purpose of obtaining a warrant or to seek judicial authorization for Dialed Number Retrievals or wiretaps. Rather, the statement identified by defendant was contained in an NJSP Electronic Surveillance Request, an internal document of the NJSP during the course of the investigation that was never submitted to the court. The sworn affidavits used to establish probable cause for obtaining information regarding Maddox's phones and calls sent and received, dated July 24, 2006 and August 31, 2006, did not mention the vehicles.
A defendant who seeks to overcome the "presumption of validity" accorded affidavits supporting search warrants, Franks, supra, 438 U.S. at 171, 98 S.Ct. at 2684, 57 L.Ed.2d at 682, must prove by a preponderance of the evidence, State v. Howery, 80 N.J. 563, 567-68 (1979), cert. denied, 444 U.S. 994, 100 S.Ct. 527, 62 L.Ed.2d 424 (1979), that:
a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.
[Franks, supra, 438 U.S. at 155-56, 98 S.Ct. at 2676, 57 L.Ed.2d at 672 (emphasis added).]
Defendant fails to satisfy the threshold issue -- that the allegedly false statement was included in an affidavit to obtain a warrant. There was, therefore, no basis to either request or hold a Franks hearing.
In Point II of his supplemental brief, Maddox argues that the trial court erred in failing to grant his motion for a mistrial. We disagree.
During cross-examination of NJSP Detective Albert Widmaier, Maddox's counsel questioned Widmaier about cocaine recovered from the top of a dresser in the master bedroom at Maddox's residence. Widmaier admitted he did not know whose dresser it was. In an effort to determine whether Widmaier could definitively say who owned the cocaine, the following line of questioning occurred:
Q: And you don't know who that item belonged to?
A: I know who it belonged to.
Q: If you weren't there when it was seized, you don't know where it was laying other than on a dresser, how do you know --
A: Because the person who it belongs to told us that.
Q: Who told you -- okay. Wait. May we approach on this issue?
Maddox's counsel informed the court that he had "never been told that there was an admission that anybody owned" the cocaine. The court suggested they stop the questioning there since Widmaier never said who owned it. Out of the presence of the jury, Widmaier was questioned further. He testified that, after reading Maddox his Miranda rights, he told Maddox they had found the cocaine and Maddox admitted the drugs were his. Although the admission was contained in a report, the State failed to turn over the report to the defense.
The trial judge observed that, at the time the jury was excused, it did not know who owned the drugs, only that someone admitted ownership and that two people lived at the Shady Lane residence. The judge denied the motion for a mistrial without prejudice to counsel submitting supplemental briefing, sustained Maddox's objection to Widmaier's response, and gave a curative instruction in which he told the jury to disregard the last answer given by Widmaier and to neither draw any inferences nor consider it for any purpose.
A trial court "should grant a mistrial only to prevent an obvious failure of justice." Harvey, supra, 151 N.J. at 205. Because the trial court "has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting[, ]" State v. Winter, 96 N.J. 640, 647 (1984), an appellate court "should defer to the decision of the trial court [and] will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice." Harvey, supra, 151 N.J. at 205; see also State v. Kueny, 411 N.J.Super. 392, 403 (App. Div. 2010); State v. Thompson, 405 N.J.Super. 76, 83 (App. Div.), certif. denied, 199 N.J. 133 (2009).
"In any trial, 'inadmissible evidence frequently, often unavoidably, comes to the attention of the jury.'" State v. Yough, 208 N.J. 385, 397 (2011) (quoting Winter, supra, 96 N.J. at 646). The evidence here that prompted the motion for a mistrial was the statement that someone had admitted ownership of the cocaine found in the master bedroom. The trial judge stated he was inclined to grant a mistrial if there was no report memorializing Maddox's admission. When the report was produced, he had before him a discovery failure that redounded to the State's detriment as it was barred from presenting Maddox's admission to the jury. As the trial court noted, there is nothing in the record to suggest that the State's failure to provide Widmaier's report in discovery was the product of bad faith. The prompt response of counsel allowed the court to avert the disclosure of the admission to the jury, and the trial judge took appropriate action in sustaining the objection and giving a curative instruction to the jury. We discern no abuse of discretion in denying Maddox's motion for a mistrial.