July 12, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
CHRISTOPHER DICKERSON, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2012.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-03-0241.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fasciale and Maven.
Defendant Christopher Dickerson appeals from a judgment of conviction and sentence imposed following a jury trial at which he was found guilty of third-degree possession of a controlled dangerous substance (CDS), cocaine, contrary to N.J.S.A. 2C:35-10(a)(1) (count one); and second-degree possession of CDS, a half ounce, with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(2) (count two). Defendant was sentenced to four years imprisonment on count one and eight years imprisonment on count two to be served concurrently.
Defendant raises the following points for our consideration:
I. THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED: THE SEARCH WARRANT IS INVALID BECAUSE IT FAILED TO DESCRIBE THE THINGS TO BE SEIZED.
II. THE PROSECUTOR'S ERRONEOUS THEORY OF LIABILITY SUPPORTED BY THE TRIAL COURT'S INSTRUCTION PERMITTED THE JURORS TO CONVICT THE DEFENDANT OF POSSESSION WITH INTENT TO DISTRIBUTE SOLELY ON THE BASIS OF SHARING CDS. (Not raised below).
A. The Prosecutor Erroneously Proceeded on the Theory that Sharing is Tantamount to an Intent to Distribute and Distribution.
B. The Trial Court Erred in its Instruction to the Jury on the Law of Intent to Distribute CDS by Failing to Make it Clear that Sharing is Not Distributing.
III. THE DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE CONFUSING, AMBIGUOUS, INCOMPLETE AND PREJUDICIAL INSTRUCTION ON THE LAW OF INTENT TO DISTRIBUTE. (Not raised below).
IV. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE. (Not raised below).
V. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT JURORS THAT THEY HAD THE RIGHT TO REJECT THE EXPERT WITNESS OPINION OF THE STATE'S LABORATORY CHEMIST. (Not raised below).
VI. THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
After considering defendant's arguments in light of the record and applicable law, we are satisfied that he received a fair trial, and we affirm his convictions and sentence.
The facts as adduced from the record reveal that during the week of January 20, 2008, Bridgeton Police Detective Ronald D. Caldwell, Jr. (Caldwell) was contacted by a confidential informant. The informant stated that defendant was selling cocaine from his residence. Caldwell planned a controlled buy between informant and defendant. Caldwell attested that he witnessed the "hand[-]to[-]hand" transaction in front of defendant's home. The informant provided the purchased item to police, and a field test later confirmed the substance was cocaine.
Throughout the week, defendant's home was periodically under surveillance by Caldwell. In a prepared affidavit, Caldwell stated that he observed several known drug users "knock on the back door and then they go inside and then leave after a few minutes." Caldwell also observed defendant make "hand[-]to[-]hand" transactions from a green Ford Expedition parked behind his residence. Caldwell attested that this behavior was "consistent with street-level drug trafficking." Based on this evidence, Caldwell affixed his affidavit to a search warrant application.
On February 1, 2008, based on Caldwell's firsthand knowledge, observations, and the affidavit, the Honorable Richard J. Geiger, J.S.C., issued a search warrant. The warrant indicated that both defendant and his residence were subject to search; however, it failed to describe what items were presumed to be located there. This area was left blank on the search warrant. The warrant did expressly note that the application was supported by Caldwell's affidavit.
Bridgeton police executed the search warrant on February 5, 2008. At that time, Caldwell and Patrolman Parvin uncovered a bag containing a cocaine-like substance from the "crotch area of [defendant's] thermal underwear." New Jersey State Police South Regional Laboratory later determined the substance to be 30.85 grams, or 1.08 ounces, of cocaine. Caldwell turned over the seized evidence to Officer Angel Santiago. Police immediately arrested and charged defendant.
Defendant moved to suppress the cocaine seized during the search claiming the warrant was deficient in light of
Groh v. Ramirez, 540 U.S. 551, 557, 124 S.Ct. 1284, 1289, 157 L.Ed.2d 1068, 1078 (2004), which requires that warrants state with particularity the items seized. The trial court judge determined, "the plain language of the [F]ourth [A]mendment recognizes that a warrant may particularly describe the persons or things to be seized. It need not describe both." The judge reasoned that "the warrant adequately incorporated the affidavit by reference, " as noted in
State v. Cristow, 147 N.J.Super. 258 (App. Div. 1977). Ultimately, the court found the search warrant was valid.
On January 30, 2009, the trial court considered defendant's motion to reconsider this ruling, as well as defendant's motion to suppress certain statements made during his arrest. The judge affirmed his prior ruling regarding the evidence suppression, finding again, that the warrant was valid because the warrant referenced the affidavit, and the affidavit clearly noted, "[d]escription of evidence being looked for: cocaine, any and all illegal drugs." The judge, however, suppressed defendant's statements made at the time of arrest. On February 13, 2009, the trial court heard and denied defendant's motion for the judge to recuse himself.
At trial, Caldwell testified to the events occurring on the night of defendant's arrest. The State called Dupnock, who the court accepted as an expert in CDS analysis. Dupnock testified that he tested the substance found on defendant's person and positively identified it as 1.08 ounces, or 30.85 grams, of cocaine. Detective Paul Shadinger (Shadinger) of the Vineland Police Department, an expert witness in the field of street level CDS or drug trafficking, testified that given the amount of cocaine seized from defendant, it was possessed with an intent to distribute. According to Shadinger, one ounce of crack cocaine could be purchased for $1000 and separated into 150 bags of 0.2 grams per bag for individual sale at $20 per bag to realize a profit of up to $2000.
On appeal, defendant first argues that the search warrant was invalid because it did not contain a description of the things to be seized, thereby necessitating suppression of the seized evidence. He states that the law requires that the warrant describe the things to be seized with particularity pursuant to
Groh, supra,. We are not persuaded by this argument.
It is undisputed that the search warrant did not contain a description of the items to be seized. Rather, the search warrant referenced and incorporated the detective's affidavit, which clearly described that the officers would be looking for cocaine. We have upheld the validity of a search warrant that did not describe the items to be seized but which explicitly incorporated the affidavit that described the location to be searched and the items to be seized. State v. Brooks, 201 N.J.Super. 10, 19 (App. Div. 1985); see also
Christow, supra, 147 N.J.Super. at 260 n.4.
We are satisfied that Caldwell's affidavit described with sufficient particularity the place to be searched and the items to be seized, and that there was probable cause for the issuance of the search warrant. Moreover, we find no substantial defect in the warrant itself. In reaching this conclusion, we bear in mind the Fourth Amendment's command that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV; see also N.J. Const. art. I, ¶ 7. We also recognize that the authors of the Bill of Rights intended this language to serve as a safeguard to the people against "general searches and unrestrained seizures by officers acting under the unbridled authority of a general warrant." State v. Johnston, 257 N.J.Super. 178, 188 (App. Div. 1992) (quoting State v. Muldowney, 60 N.J. 594, 600 (1972)), certif. denied, 130 N.J. 596 (1992).
Next, defendant argues multiple trial court errors regarding the jury instructions. Namely, he contends that: (1) the State misrepresented the law on distribution during its opening statement by erroneously stating that sharing equates to distribution and the court failed to correct the statement; (2) the trial court erred by not providing a jury instruction that included the definition of "attempt" upon instructing the jurors to "find the defendant guilty of intent to distribute if he intended to attempt to distribute;" and (3) the trial court failed to mold the jury instructions to the facts of the case.
Where a defendant does not object to jury instructions at trial, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment, " State v. White, 326 N.J.Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000), and creates a "presum[ption] that the instructions were adequate, " State v. Morais, 359 N.J.Super. 123, 134-35 (App. Div.), certif. denied, 177 N.J. 572 (2003). An exception is made on appellate review for jury instructions issued in error. R. 1:7-2. Should we find plain error "clearly capable of producing an unjust result, " the conviction will be reversed. R. 2:10-2. Since there were no objections at trial, we review defendant's contentions under the plain error standard. Ibid.
"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . 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. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)), certif. denied, 213 N.J. 396 (2012). The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). Furthermore, while an erroneous jury charge may be a "'poor candidate for rehabilitation' under the plain error theory, "
Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), the error "must be evaluated in light 'of the overall strength of the State's case, '" State v. Walker, 203 N.J. 73, 90 (2010) (quoting
Chapland, supra, 187 N.J. at 289).
"Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial. The trial court has an absolute duty to instruct the jury on the law governing the facts of the case." State v. Pleasant, 313 N.J.Super. 325, 333 (App. Div. 1998) (quoting State v. Concepcion, 111 N.J. 373, 379 (1988)), aff'd, 158 N.J. 149 (1999). The jury charge should also "explain to the jury how it is to apply the legal principles to the facts." Ibid. Nonetheless, a "party is [not] entitled to have the jury charged in his or her own words; all that is necessary is that the charge as a whole be accurate."
Jordan, supra, 147 N.J. at 422. A defendant "is only entitled to an adequate instruction of the law."
Pleasant, supra, 313 N.J.Super. at 333. We note that in this case defense counsel told the judge that the charge was acceptable.
We turn first to the claim of error regarding the definition of sharing. In the prosecutor's opening statement, he stated: "I . . . intend to prove to you why he had it; he was in possession of that ounce of cocaine because he intended to sell it, share it, to give it away or otherwise distribute it to other individuals." Defense counsel did not object to this assertion during trial.
Defendant contends that the State's use of the word "shared" misled the jury into concluding that joint possession was "tantamount to distribution." See e.g., State v. Lopez, 359 N.J.Super. 222, 233-34 (App. Div.) (noting there can be no intent to distribute where "two or more defendants" are "intend[ing] to distribute to each other drugs they jointly possess" or are "sharing"), certif. granted sub nom., State v. Garcia, 177 N.J. 576, appeal dismissed, 178 N.J. 372 (2003).
The State argued that it intended to use the term "share" in accordance with the model jury instruction on distribution that tells a jury that "[i]t is not necessary that the drugs be transferred in exchange for payment, or promise of payment, or money or anything of value." See Model Jury Charge (Criminal), "Possession of a Controlled Dangerous Substance With Intent to Distribute" (2008) (Model Charge).
Defendant also takes issue with the court's failure to explain to the jurors the relationship or difference between joint possession and distribution or to instruct the jurors that sharing cannot be used as a factual predicate to find distribution or intent to distribute. See
Lopez, supra, 359 N.J.Super. 222. We find defendant's arguments misguided.
In this case, the judge's jury charge tracked the language of the Model Charge. The State's case focused solely on defendant, who, it contended, personally had the drugs packaged in a manner indicative of distribution. Here, defendant was the only person in possession of the cocaine and he was tried alone. The record does not support any claim that defendant intended to merely share the cocaine. As such, defendant's focus on the reference and definition of "sharing" is a nonstarter. Thus, the court had no basis to offer any such instruction.
Furthermore, in considering the evidence adduced at trial, the charge, as given, provided the jury with "sufficient guidance" and did not create any "risk that the . . . ultimate determination of guilt or innocence [was] based on speculation, misunderstanding, or confusion." State v. Olivio, 123 N.J. 550, 567-68 (1991).
Next, defendant claims the instructions were inadequate because the judge never defined the word "attempt." The judge instructed the jury that a person violates N.J.S.A. 2C:35-5(a)(1) if he "manufacture[s], distribute[s] or dispense[s]" a controlled substance, or he possesses the substance with the "intent to manufacture, distribute or dispense" it. "'Distribute' means to deliver." N.J.S.A. 2C:35-2. "'Deliver' . . . means the actual, constructive, or attempted transfer from one person to another of a controlled dangerous substance." Ibid. As noted, the judge utilized the Model Charge to define "distribute" for the jury: "[D]istribute means the transfer, actual, constructive or attempted, from one person to another of a controlled dangerous substance." (Emphasis added). The Model Charge, however, does not define the word "attempted" in this regard. Defendant contends that the use of the word "attempted" licensed the jury to convict him of "possession with the intent to attempt distribution, " a crime that does not exist in our Criminal Code. We reject that contention.
As previously noted, "'a defendant is not entitled to have the jury instructed in his [or her] own words.'" State v. Whitaker, 402 N.J.Super. 495, 513 (App. Div. 2008) (alteration in original) (quoting
Pleasant, supra, 313 N.J.Super. at 333)), aff'd, 200 N.J. 444 (2009). When the challenged instruction is the model charge, "'it is a persuasive argument in favor of the charge as delivered.'" Id. at 514 (quoting State v. Angoy, 329 N.J.Super. 79, 84 (App. Div.), certif. denied, 165 N.J. 138 (2000)).
We are firmly convinced that the judge's instruction did not mislead the jury. The charge focused the jury's attention on the necessary element of intent when defendant possessed the drugs, not the actual distribution of the drugs, a crime for which he was not charged. There was no evidence to suggest that defendant was "attempting" to distribute the drugs when apprehended. Rather, the evidence supported the jury's finding that defendant possessed the CDS and that he intended to distribute the drugs. There was no error.
Finally, defendant contends his sentence is excessive because the judge failed to properly weigh the aggravating and mitigating factors. Defendant challenges the application of aggravating factors three, "[t]he risk that the defendant will commit another offense, " N.J.S.A. 2C:44-1(a)(3); six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, " N.J.S.A. 2C:44-1(a)(6); and nine, "[t]he need for deterring the defendant and others from violating the law, " N.J.S.A. 2C:44-1(a)(9), as well as mitigating factor eleven, "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents, " N.J.S.A. 2C:44-1(b)(11). He argues the judge should have found and applied mitigating factor one, "[t]he defendant's conduct neither caused nor threatened serious harm, " N.J.S.A. 2C:44-1(b)(1), and factor two, "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm, " N.J.S.A. 2C:44-1(b)(2). Defendant contends that had the court made the proper findings and appropriately weighed the aggravating and mitigating factors, his sentence would have been reduced to probation or a substantially shorter period of incarceration. We cannot agree.
Our review of a sentence is limited.
State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.;
State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must: (1) require that an exercise of "discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence"; (2) "require that the factfinder apply correct legal principles in exercising its discretion"; and (3) modify sentences only "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience"
State v Roth 95 N.J. 334 364 (1984)
We discern no abuse of discretion in defendant's sentence The record does not support mitigating factors one and two We agree with the trial judge who at sentencing stated that "[t]here are victims in these cases Society is being impacted upon the sale of narcotics and there is a victim" We are convinced that the record amply supports the court's assessment of the aggravating and mitigating factors and the judge did not err by not finding additional mitigating factors We are therefore satisfied that defendant's sentence is not manifestly excessive or unduly punitive does not represent an abuse of the court's sentencing discretion and does not shock the judicial conscience
State v O'Donnell, 117 N.J. 210 215-16 (1989); Roth supra 95 N.J. at 364
Defendant's remaining arguments are without sufficient merit to warrant further discussion R 2:11-3(e)(2)