October 2, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
HEMENEJID ULLOA, a/k/a HEMIGELD ULLOA, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 18, 2013
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-03-00269.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the briefs).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Simonelli and Haas.
Tried before a jury on five counts of a ten-count indictment, defendant Hemenejid Ulloa was convicted of two counts of third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (counts one and four); third-degree distribution of CDS (cocaine), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); third-degree distribution of CDS (cocaine) within 1, 000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count three); and third-degree possession of CDS (cocaine) with intent to distribute it, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count five). At sentencing, the judge merged the conviction for counts one and two into count three and the conviction for count four with count five. The judge sentenced defendant to 364 days in jail and five years of probation on count three and to a concurrent 364-day term with five years of probation on count five. Appropriate fines and penalties were also imposed.
On appeal, defendant has raised the following contentions:
THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTIONS FOR SEVERANCE OF COUNTS MANDATING THE REVERSAL OF [DEFENDANT'S] CONVICTION AND A NEW TRIAL.
THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT'S MOTION PURSUANT TO R. 3:18-2 TO SET ASIDE THE VERDICT AND MOTION FOR A NEW TRIAL PURSUANT TO R. 3:20-1.
THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S REQUEST FOR A THIRD PARTY GUILT INSTRUCTION TO THE JURY AND BY IMPROPERLY PRECLUDING DEFENDANT FROM INTRODUCING EVIDENCE REGARDING THIRD PARTY GUILT.
THE TRIAL COURT'S FAILURE TO GIVE THE PRIOR INCONSISTENT STATEMENT JURY INSTRUCTION AND THE THIRD PARTY GUILT INSTRUCTION WARRANT A REVERSAL.
THE COURT ERRED IN DENYING THE SUPPRESSION MOTION BECAUSE THE SEARCH OF DEFENDANT WAS THE UNATTENUATED PRODUCT OF AN ILLEGAL ARREST.
THE CUMULATIVE ERROR DOCTRINE WARRANTS REVERSAL OF THE CONVICTION.
THE SENTENCE IMPOSED BELOW WAS MANIFESTLY EXCESSIVE.
THE PROSECUTOR COMMITTED NUMEROUS ACTS OF MISCONDUCT WHEN HE IMPROPERLY BOLSTERED THE CREDIBILITY OF STATE WITNESSES ON CROSS-EXAMINATION AND IN SUMMATION.
After reviewing the record in light of the contentions advanced on appeal, we affirm.
On October 9, 2006, members of the Paterson Police Department's narcotics unit were conducting an investigation of drug trafficking in the area of Cedar and Summers Streets. Officer Sujerire Bilbao was assigned to make undercover purchases of CDS and Officer William Palomino was assigned to conduct surveillance of any transactions that occurred.
At approximately 3:30 p.m., Officer Bilbao parked her unmarked car and was approached by a man, later identified as defendant. Defendant asked the officer what she wanted and the officer replied "one, " meaning one bag of drugs. Defendant gave the officer a black baggy containing cocaine and she gave him $20 in exchange. After the transaction was completed, defendant walked to the corner and gave the money to another individual. Officer Palomino observed the transaction from his vantage point. Due to the ongoing nature of the investigation, the officers did not arrest defendant at that time.
At 12:15 p.m. on November 19, 2006, Officer Palomino was again conducting surveillance in the same area. He observed a man approach defendant, who was standing on the corner. The two men had a brief conversation and then defendant reached into his pocket, removed "a small object, " and gave it to the man. The man handed defendant paper money in return. Believing he had just witnessed a hand-to-hand drug transaction, Officer Palomino called for backup officers and gave them defendant's description. Defendant was stopped and taken into custody. Officer Palomino searched defendant and found four black plastic baggies of cocaine and sixteen $20 bills in his pockets.
Defendant called Officer Edgar Taylor as a witness. Officer Taylor testified that defendant was not "the target" of the investigation on October 9. Instead, the police were investigating three other individuals, Russell Redondo; Raymond Torres; and Lorenzo Flores. Officer Taylor was also conducting surveillance on October 9 and he observed defendant's transaction with Officer Bilbao and listened to it on a Kel device. He testified he had never seen defendant before the transaction. He further stated that he was familiar with Flores and that the individual who had sold cocaine to Officer Bilbao was defendant, not Flores.
Defendant's son and daughter testified on his behalf and provided general family background information. His son testified that, while defendant used drugs, he did not sell them.
Defendant testified and denied ever selling drugs to anyone, including Officer Bilbao. He stated the cocaine found by Officer Palomino on November 19 was for his own personal use and the money was from a pay check he had received a few days before. Defendant testified he had purchased drugs from Flores in the past in that area of Paterson and that Flores looked like him. When asked whether he "believe[d] the police officer had confused you with Lorenzo Flores, " defendant replied, "[i]t might be."
Defendant first argues the judge erred in denying his request to sever counts one through three, which dealt with the October 9 transaction, from counts four and five, which pertained to the events of November 19. We disagree.
Rule 3:7-6 states that "[t]wo or more offenses may be charged in the same indictment or . . . in a separate count . . . if the offenses charged are of the same or similar character . . . or constitut[e] parts of a common scheme or plan." The decision whether to grant a motion to sever counts at trial "rests within the trial court's sound discretion and is entitled to great deference on appeal." State v. Brown, 118 N.J. 595, 603 (1990) (citations omitted). Here, the judge properly found that the events of October 9 and November 19 were similar in kind and reasonably close in time. The second transaction also had probative value because it demonstrated defendant's intent and mode of operation and rebutted his claim that the police had mistaken him for Flores. Under these circumstances, we perceive no basis for disturbing the judge's denial of the severance motion.
Defendant next argues that the judge should have granted his post-verdict motion for a new trial based upon his contention that Officer Palomino improperly expressed an opinion that defendant was involved in a drug transaction. This argument lacks merit.
During his testimony on direct examination, Officer Palomino described what occurred after he observed defendant talk to a man, give him "a small object, " and accept paper money in return. According to defendant, the following testimony by the officer should not have been permitted because it violated the ground rules established in State v. McLean, 205 N.J. 438, 449 (2011) and State v. Odom, 116 N.J. 65, 70-71 (1989):
Q. . . . . From the time this individual approached the defendant to the time he walked away, how long a time period was that? Between conversation and exchange, how much time approximately elapsed during that exchange?
A. From the time of the brief conversation to the exchange, maybe a couple of minutes.
Q. Now what happened at that point?
A. At that point I believed that I had just witnessed a hand-to-hand drug transaction. I asked for backup team to get in the area. Sergeant Mooney (phonetic) advised me that he was dealing - - available. I then gave a description of the individual walking northbound.
Defendant did not object to this testimony at the time of trial and, therefore, we will not reverse on this ground unless the error was "clearly capable of producing an unjust result[.]" R. 2:10-2.
Since its decision in Odom, the Supreme Court has held that expert opinions in narcotics prosecution cases are limited to relevant subjects that are beyond the understanding of the average juror. Supra, 116 N.J. at 71. Expert opinion is generally inadmissible if the alleged drug transaction occurred in a straightforward manner that the average juror can readily understand. McLean, supra, 205 N.J. at 452-53. Where factual testimony is sufficient to potentially enable the jury to draw the inference of distribution, further comment in the form of expert opinion is improper. Id. at 452.
Even though expert opinion testimony is inadmissible in the context of a "straightforward" hand-to-hand exchange of drugs for money, id. at 449-52, lay opinion testimony, as defined in N.J.R.E. 701, is nevertheless admissible when offered to describe "what was directly perceived by the witness[.]" Id. at 460. The "personal observations and perceptions of the lay witness" are admissible so long as the police officer is not offering an opinion, provided the factual testimony is limited to setting forth "what [the officer] perceived through one or more of the senses." Id. at 459-60. Such testimony is "an ordinary fact-based recitation" that "does not convey information about what the officer 'believed, ' 'thought' or 'suspected[.]'" Id. at 460.
Consistent with these principles, Officer Palomino testified as a lay witness and the State never sought to offer him as an expert. While Officer Palomino testified he "believed" he "had just witnessed a hand-to-hand drug transaction, " he did not express an improper "opinion" to that effect within the holding of McLean. Unlike in McLean, where the officer's answer was immediately preceded by testimony about his two decades of experience in law enforcement and a specific question by the prosecutor soliciting his opinion based on that experience, id. at 446, 463, Officer Palomino's testimony was a factual description of his observations and an explanation as to why he determined to arrest defendant. He did not give an opinion as to defendant's guilt or refer to the statutory language of the charges contained in the indictment. Odom, supra, 116 N.J. at 82 (prohibiting a proffered expert in a narcotics case from expressing a direct opinion of the defendant's guilt, specifically referring to the elements of the offense, or tying a hypothetical question to the specific facts of the case).
Furthermore, even if a timely objection to this brief testimony could have been sustained, the testimony was not, as required by Rule 2:10-2, "clearly capable of producing an unjust result[.]" We so conclude because of the overwhelming strength of the State's case. The State produced the officer who engaged in the hand-to-hand drug transaction with defendant on October 9, and the officer who observed that transaction and a second one occurring on November 19. All of the police witnesses, including Officer Taylor, who was called by defendant, positively identified defendant as the person who sold the cocaine. Thus, we also reject defendant's argument that the jury's verdict was against the weight of the evidence. There was ample evidence presented to enable a jury to find defendant guilty of all of the charges beyond a reasonable doubt.
Defendant next argues the judge should have instructed the jury on third-party guilt and prior inconsistent statements. It is undisputed that "[a]ppropriate and proper jury charges are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. Ibid. The charge must be read as a whole to determine whether there was any error. State v. Adams, 194 N.J. 186, 207 (2008). Having applied these standards to the judge's charge in this case, we perceive no error warranting a reversal.
A defendant has the right to introduce evidence of third-party guilt "'if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case.'" State v. Cotto, 182 N.J. 316, 332 (2005) (citing State v. Fortin, 178 N.J. 540, 591 (2004)). Consistent with this requirement, the judge permitted defendant to testify that he resembled Flores and to present the testimony of Officer Taylor, who confirmed that defendant was not initially the target of the investigation. However, Officers Bilbao, Palomino and Taylor all positively identified defendant as the individual involved in the cocaine sales. Officer Taylor was very familiar with Flores and testified that Flores was not the individual who sold drugs to Officer Bilbao on October 9. No witness placed Flores at the scene on either of the two dates in question. Under these circumstances, there was no rational basis for providing the jury with an instruction on third-party guilt.
Similarly, while defendant argues that the judge should have specifically instructed the jury on the concept of prior inconsistent statements allegedly made by the State's witnesses, he was not able to identify any specific instances of inconsistent testimony by the witnesses that would warrant such a charge. Therefore, his contention on this point also lacks merit.
Defendant's pre-trial motion to suppress the cocaine and money found on him following his arrest was correctly denied. On review of a motion to suppress evidence, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We defer "to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting Elders, supra, 192 N.J. at 244).
Officer Palomino testified at the evidentiary hearing that he observed defendant sell cocaine to Officer Bilbao on October 9 and to an unidentified man on November 19. The judge found this testimony credible and concluded the officer had probable cause to arrest defendant. Thus, the search incident to that arrest was entirely proper. State v. O'Neal, 190 N.J. 601, 613-14 (2005) (holding that a police officer who observed a defendant in a "high-crime area" receive money from an individual in exchange for "an unknown object" had probable cause to arrest and search him).
We agree with defendant that the prosecutor should not have asked defendant on cross-examination whether Officer Palomino was telling the truth when he testified he found four bags of cocaine and $320 in cash in defendant's pockets during the search. A prosecutor may not require one witness, and particularly a defendant, to assess the credibility of another. State v. Bunch, 180 N.J. 534, 549 (2004); State v. Frisby, 174 N.J. 583, 594-95 (2002). Here, however, defendant did not object to the questions posed and any error in admitting the evidence was clearly harmless because defendant readily admitted during his testimony that he was carrying four bags of cocaine and a large sum of money when he was arrested.
Defendant next argues the prosecutor improperly referred to this testimony during his summation. Prosecutorial misconduct is not a basis for reversal unless the conduct "was so egregious that it deprived defendant of a fair trial." State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996) (internal quotation marks and citations omitted). Considerable leeway is afforded to prosecutors in presenting their arguments at trial "as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999).
No misconduct occurred in this case. Because defendant admitted he was in possession of cocaine at the time of his arrest, it was proper for the prosecutor to state this to the jury in response to defense counsel's attack on the credibility of the officers.
Defendant argues that the cumulative prejudice of the errors he raises deprived him of a fair trial. Having rejected defendant's argument that any reversible error occurred during his trial, we also reject his cumulative error argument.
Finally, defendant argues that his sentence was excessive. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, applied the correct sentencing guidelines enunciated in the Code, and the application of the factors to the law do not constitute such clear error of judgment as to shock our judicial conscience. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989). Accordingly, we discern no basis to second-guess the sentence.