NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-3741-05T43741-05T4
STATE OF NEW JERSEY,
Submitted January 29, 2007 - Decided February 26, 2007
Before Judges Lintner and C.L. Miniman.
On appeal from the Superior Court of New Jersey, Law Division, Union County, 05-03-0449-I.
Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, of counsel and on the brief).
Stuart Rabner, Attorney General, attorney for respondent (Dana Citron, Deputy Attorney General, of counsel and on the brief).
A Union County Grand Jury returned an indictment charging defendant Jahmin Damon Muse with third-degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1) (count one); first-degree possession of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1), (b)(1) (count two); second-degree possession of cocaine with intent to distribute in or within 500 feet of public property in violation of N.J.S.A. 2C:35-7.1 (count three); third-degree possession of heroin in violation of N.J.S.A. 2C:35-10(a)(1) (count four); third-degree possession of heroin with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1), (b)(3) (count five); second-degree possession of heroin with intent to distribute in or within 500 feet of public property in violation of N.J.S.A. 2C:35-7.1 (count six); third-degree distribution of heroin with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1), (b)(3) (count seven); and second-degree possession of heroin with intent to distribute in or within 500 feet of public property in violation of N.J.S.A. 2C:35-7.1 (count eight).
After a pre-trial Miranda hearing in which the judge determined that defendant's statements to the police were admissible, the matter was tried before a jury on October 25 and October 26, 2005. Defendant was convicted on all eight counts.
On January 13, 2006, the State moved for an extended term of life in prison pursuant to N.J.S.A. 2C:44-3(a) on the ground that defendant was a persistent offender. That motion was granted and the judge merged count one into counts two and three. The judge sentenced defendant to life in prison on count two, first-degree possession of cocaine with intent to distribute, with twenty years of parole ineligibility. He also sentenced defendant on count three, second-degree intent to distribute cocaine within 500 feet of public property, to ten years in prison, five years without parole, with the sentence to run consecutive to the life sentence.
Count four was merged with counts five and six. On count five, third-degree possession of heroin with intent to distribute, the judge sentenced defendant to five years of which two and one-half years were to be served without parole. This sentence was to run consecutively to the other sentences. On count six, second-degree intent to distribute heroin within 500 feet of public property, the judge gave defendant five years concurrent, two and one-half without parole. Count seven merged with count eight. The judge sentenced defendant to five years concurrent, two and one-half without parole, on count eight, second-degree intent to distribute heroin within 500 feet of public property. The aggregate sentence was life plus fifteen years; twenty-seven and one-half years without parole.
Defendant's driving privileges were suspended for two years and the following fines were assessed: a drug fine of $10,000, a lab fee of $250, an assessment to the Safe Neighborhood Services fund of seventy-five dollars for each count, a Violent Crimes Compensation Board penalty of fifty dollars for each count, and a penalty to the Law Enforcement Officers Training and Equipment Fund of thirty dollars. Defendant was also required to give a DNA sample. This appeal followed.
On January 30, 2005, at about 7:00 p.m., Sergeant Todd Kelly and Officer Athanasios Mikros, police officers and members of the Community Service Division, were dressed in street clothes and sitting in an unmarked police vehicle while conducting surveillance in Elizabeth at the corner of Jackson Avenue and Bond Street. Sergeant Kelly testified that, from about seventy-five feet away, he observed defendant approach a man with a Carhartt-type jacket standing outside a liquor store at 426 Jackson Avenue. After a brief conversation defendant crossed the street and entered a Mercury Grand Marquis, reaching toward the middle of the seat. He then walked back across the street and handed something concealed in his hand to the man with the jacket, who was waiting for defendant in front of a duplex at 422 Jackson Avenue.
After the man in the jacket left, three other men approached defendant and were handed something concealed by defendant's hand. After the three men left, a black two-door Honda pulled up in front of defendant and the driver exchanged what appeared to be paper currency with defendant for something small that fit into defendant's hand. Almost exactly at the same time the driver of the Honda pulled away, another man approached defendant. The man "looked like he had paper currency in his hand" and gave it to defendant in exchange for "something." All of these transactions happened very close in time.
After contacting Officer Bellomo, another plain-clothes officer stationed in the area, to assist, Sergeant Kelly and Officer Mikros exited the car and approached a liquor store that defendant had already entered. As they approached the door, they observed defendant make another exchange with co-defendant Graddy, similar to what the officers had previously observed. Kelly and Mikros had their badges displayed around their neck and gun belts exposed. Defendant apparently knew Kelly to be an officer and when approached said, "You got me, you got me. It is the last bag I have. That's all I got. That's all you got." Mikros and Kelly then approached defendant who was then handcuffed and placed under arrest.
When Kelly and Mikros approached defendant, Bellomo stopped co-defendant Graddy when he attempted to slip out the front door. At that point, Bellomo ordered Graddy to spit out a small glassine envelope Graddy placed into his mouth. After a struggle, Graddy finally spit out the envelope which was marked "Self-Destruction."
When defendant was arrested and searched, the officers found four glassine envelopes marked "Self-Destruction" in the crotch flap of long underwear defendant was wearing, $203 in cash in his left front pocket, and a set of house keys. After calling for a marked car to pick up defendant and co-defendant Graddy, Kelly left Officers Mikros and Bellomo with the two defendants, exited the store, and approached the Grand Marquis. With his back towards defendant, Kelly heard defendant yell, "Mikros, Mikros. I'll tell you where my stash is. I'll tell you where my stuff is." Mikros responded to defendant to "[j]ust get in the car," to which defendant replied, "Listen, I'll tell you where my stuff is. You know, don't tie me to the car. It's my brother's car, I don't want him to lose his job." Kelly then turned around and walked back to Mikros where he heard Mikros reading defendant his Miranda rights. During and after the reading of these rights, defendant kept telling Mikros that he'd take Mikros to his stash. Defendant then led Mikros and Officer Alverez (who arrived in the marked car) up a driveway while Kelly went back to the Grand Marquis. Following defendant's instructions as to where the stash was located, Mikros uncovered a black plastic bag containing forty-four vials of cocaine.
In the meantime, Kelly walked over to the Grand Marquis and made a visual inspection of it. In an effort to see inside the tinted windows, Kelly shone his flashlight through the front window and saw "two . . . gallon-size Ziploc bags underneath the armrest. And on top of it was a sleeve of what I can see containing glassine envelopes, which are used to package heroin." The car doors were locked and Kelly did not open the car. Instead, he left another officer in charge of the vehicle and went to obtain a search warrant, which was secured before the vehicle was entered and searched.
After retrieving defendant's stash, Mikros took defendant and co-defendant Graddy back to headquarters. Mikros processed defendant who "wanted to give a statement [on] what was going on and why he was doing it." Mikros escorted defendant to an office where he read defendant his Miranda rights from a form on a computer. Defendant understood these rights and still wanted to talk, but would not sign anything. Sergeant Kelly also came out and told defendant that if the police are going to take a truthful statement, a form had to be filled out and signed, to which defendant continued to refuse to sign anything, but still wanted to talk.
Defendant initially told Mikros that there was nothing in the Grand Marquis and that he wanted the car released to his brother. As Mikros was taking defendant downstairs to the cell block, defendant, without any prompting, admitted that "there's 190 grams of cocaine in the car. The key is . . . underneath the front passenger tire." Mikros relayed this information via cell phone to Kelly, who was at a judge's house obtaining a search warrant.
When Sergeant Kelly returned to headquarters, he again advised defendant of his Miranda rights, to which defendant responded that he understood those rights and still wanted to talk to Kelly, but would not sign anything. Kelly then escorted defendant to an interview room where Kelly, again, read defendant his rights. Defendant understood these rights and was willing to waive them, but would not sign anything. During the interview, defendant told Kelly that
he was meeting an individual at Jackson and Bond from Plainfield who he was going to sell the cocaine to for $5,000. He said while he was there waiting for the individual, he saw some of the guys that sell drugs for him out there and he passed out a couple of bundles of heroin from the sleeve inside the car to these individuals.
Once, the police had the search warrant, Bellomo searched the vehicle and found "[a] large blue tinted Ziploc bag containing a white rock-like and granular substance." He also found "[a]nother clear plastic Ziploc bag containing a white paper towel and . . . a white rock-like and granulated substance." There were also eighty small glassine envelopes marked "Self-Destruction." One bag contained cocaine and the other heroin.
Christopher Gulbin, a detective for the Union County Prosecutor's Office, testified as an expert for the State. Gulbin opined that the quantity of drugs on defendant at the time of his arrest ("84 folds of heroin, 44 vials of cocaine, and approximately 171.45 grams of cocaine") indicated intent to distribute them.
Defendant chose to take the witness stand after the judge informed defendant of the possibility of his prior convictions coming into evidence and the protection of a limiting instruction regarding the use of those prior convictions. In his testimony defendant placed blame for the criminal activity on an associate of his named "Kev" and co-defendant Graddy. Defendant denied both his and his brother's possession of the Grand Marquis. He also denied making any confession to the police. Defendant's counsel elicited defendant's prior crimes on direct examination. The judge, immediately after that line of questioning, gave the jury a limiting instruction. Defendant also alleged that he "[n]ever touched no drugs." After defendant made this claim, the court informed the prosecutor that "[t]he door is open."
During cross-examination, the prosecutor used prior convictions of drug possession with intent to distribute within 500 feet of a public park and a separate conviction of possession of a controlled dangerous substance to impeach the witness's claim that he never touched any drugs. The prosecutor, without objection by defendant, then notified the judge that she would be going into the nature of the other convictions.
On this appeal defendant raises the following issues for our consideration:
POINT ONE: THE TRIAL COURT'S FAILURE TO PROVIDE HAMPTON AND KOCIOLEK CHARGES REQUIRES THE REVERSAL OF DEFENDANT'S CONVICTIONS (Not Raised Below).
POINT TWO: THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY ALLOWING THE STATE TO ELICIT TESTIMONY THAT DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF TWO DRUG OFFENSES (Not Raised Below).
POINT THREE: THE TRIAL COURT'S TRUNCATED JURY CHARGE ON EXPERT TESTIMONY REQUIRES THE REVERSAL OF DEFENDANT'S CONVICTIONS (Not Raised Below).
POINT FOUR: THE SENTENCE IMPOSED ON COUNT FIVE (THIRD-DEGREE POSSESSION OF HEROIN WITH THE INTENT TO DISTRIBUTE) MUST BE VACATED BECAUSE COUNT FIVE MERGES WITH COUNT SIX (THIRD-DEGREE POSSESSION OF HEROIN WITH THE INTENT TO DISTRIBUTE WITHIN 500 FEET OF PUBLIC PROPERTY), AND THE SENTENCE IMPOSED ON COUNT THREE (THIRD-DEGREE POSSESSION OF COCAINE WITH THE INTENT TO DISTRIBUTE WITHIN 500 FEET OF PUBLIC PROPERTY) MUST BE VACATED BECAUSE COUNT THREE MERGES WITH COUNT TWO (FIRST-DEGREE POSSESSION OF COCAINE WITH THE INTENT TO DISTRIBUTE) (Not Raised Below).
POINT FIVE: DEFENDANT'S LIFE-TERM MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING PURSUANT TO STATE V. PIERCE, 188 N.J. 155 (2006) (Not Raised Below).
Because none of defendant's concerns were raised below, our review is limited. R. 2:10-2; State v. Chapland, 187 N.J. 275, 289 (2006). Unless an error or omission "is of such a nature as to have been clearly capable of producing an unjust result," we must disregard it. R. 2:10-2. We may, however, "in the interests of justice, notice plain error not brought to the attention of the trial . . . court." Ibid.
We begin with the charge to the jury. Plain error in the charge has been defined as "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).
[A] mandatory duty exists on the part of the trial judge to instruct the jury as to the fundamental principles of law which control the case. Among such principles is the definition of a crime, the commission of which is basic to the prosecution against the defendant. And the duty is not affected by the failure of a party to request that it be discharged. Whether, in the absence of objection, such failure constitutes plain error, would depend upon the circumstances of the particular case.
. . . .
An accused is entitled to assume that the elemental principles governing the accusation against him will be covered in the charge of the court. But when that course is not pursued and an oral request to do so is submitted, it cannot be ignored. The right to the instruction is absolute.
[State v. Green, 86 N.J. 281, 288 (1981) (quoting State v. Butler, 27 N.J. 560, 595-96 (1958)).]
Erroneous jury instructions in a criminal case are ordinarily presumed to constitute plain error and are generally "poor candidates for rehabilitation under the harmless error philosophy." State v. Feaster, 156 N.J. 1, 45 (1998) (quotations omitted). We review the charge as a whole as well as the context of the error. State v. Nelson, 173 N.J. 417, 447 (2002), State v. Gartland, 149 N.J. 456, 473 (1997); State v. Tierney, 356 N.J. Super. 468, 477-78 (App. Div.), certif. denied, 176 N.J. 72 (2003); State v. Gaikwad, 349 N.J. Super. 62, 75 (App. Div. 2002). If the charge as a whole is adequate, the omission of specific language does not require a finding of plain error. State v. Josephs, 174 N.J. 44, 100 (2002).
The plain error standard, as applied to a jury instruction, "requires demonstration of legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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." Chapland, supra, 187 N.J. at 289 (quotations omitted). When reviewing the jury instructions, a court must examine each "remark in the context of the entire charge." State v. DiFrisco, 137 N.J. 434, 491 (1994). "In addition, any finding of plain error depends on an evaluation of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289.
Trial judges are required to instruct the jury to disregard defendants' oral statements, such as confessions, unless the jury finds those statements true in light of all the circumstances surrounding those statements. Hampton, supra 61 N.J. at 272. While courts should give this instruction, regardless of whether or not it is requested, the failure to give such an instruction is not reversible error, per se. State v. Jordan, 147 N.J. 409, 425 (1997). It is only reversible when the omission, in the context of the entire case, is "'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2). When there exists evidence independent of defendant's statements that clearly establishes guilt or the defendant admits the truth of the statement, there is no reversible error in the absence of such an instruction. Id. at 425-26. In addition, in State v. Setzer, 268 N.J. Super. 553, 564-65 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994), we held that when a trial court failed to give a Hampton instruction but, instead, gave a general instruction on considering the credibility of all testimony, no reversible error existed. See also Jordan, supra, 147 N.J. at 424-25.
Similarly, in the event of unrecorded oral statements, "the jury should receive, weigh and consider such evidence with caution, in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." Kociolek, supra, 23 N.J. at 421 (quotations omitted). "Like the Hampton charge, the Kociolek charge should be given whether requested or not. . . . However, failure to give the charge is not reversible error per se." Jordan, supra, 147 N.J. at 428. Although the facts of each case dictate whether the failure to give a Kociolek charge is reversible error, it is rare where this failure, alone, is sufficient to warrant reversal. Ibid. In the event of an omission of a Hampton or Kociolek jury instruction, a significant burden is placed on the State to prove that such error is not plain error. Id. at 430.
Here, the omission of a Hampton and Kociolek jury instruction was not plain error in light of the significant evidence presented at trial independent of defendant's confession that proved defendant's guilt and evidence that corroborated defendant's statements to the police. Police observations of various drug transactions were independent of any statements made by defendant. Both defendant's activities and the results of a proper search warrant indicated that the drugs found in the Grand Marquis belonged to defendant. Finally, defendant corroborated his own statements when he led police to the location of his stash.
Police observations independent of defendant's statements helped prove defendant's guilt. The police observed defendant engage in several transactions involving "items that would fit into your hand" both on the street and in the liquor store. The police also found four envelopes of heroin in the crotch flap of defendant's long underwear. Finally, the envelope that police observed defendant hand to co-defendant Graddy, the envelopes found in defendant's underwear, and the envelopes found in one of the Ziploc bags retrieved from the Grand Marquis were all marked "Self-Destruction." Such observations were independent of defendant's statements and helped prove defendant's guilt.
There was sufficient evidence, independent of defendant's statements to prove that the drugs recovered in the Grand Marquis belonged to defendant. Police observed defendant approach the car. They also observed defendant unlock the door with a key, lean inside the vehicle while kneeling on the front seat, and reach "toward the middle of the front seat." All of this preceded the apparent drug transactions in which the police observed defendant engage. Before a search warrant was obtained, Sergeant Kelly observed evidence of drugs in the car when he looked through the window. Finally, Officer Bellomo, after obtaining a search warrant, retrieved two Ziploc bags which contained cocaine and heroin from the car. Thus, sufficient evidence existed to link defendant to the drugs, even without his confession.
Defendant's own actions actually helped corroborate the confession that defendant alleges never occurred. The most glaring corroboration occurred when defendant led the police to his stash. Defendant's control over the car was also corroborated when the information regarding where to find the key to the car proved accurate when Bellamo retrieved the keys exactly where he expected them to be. Finally, defendant's knowledge of what type of drugs would be found in the Grand Marquis further helped to corroborate defendant's statements. Therefore, sufficient independent evidence existed to convict defendant and the absence of a Hampton or Kociolek instruction was not plain error. In this case, as in Setzer, the general credibility instruction given by the trial court was sufficient in assessing the credibility of defendant's statements.
Defendant also argues that the judge plainly erred in excluding the last three paragraphs of Model Jury Charge (Criminal), Expert Testimony (Nov. 11, 2003), because "the critical principles contained in the model jury charge" were not properly conveyed. We are not persuaded that the jury charge on expert testimony was plainly erroneous and capable of producing an unjust result.
Defendant's assertion that the third paragraph from the Model Jury Charge was omitted is incorrect. The main idea from the third paragraph is to inform the jury that they are not obligated to believe anything the witness says. This was conveyed to the jury when the judge charged, "You are not obligated to accept the testimony of any such witness."
The State correctly points out that, even though the judge did omit the portion of the model charge that instructs the jury about determining whether the factual underpinnings upon which the expert opinion is based actually exist, this instruction was provided at other times during the trial. At the beginning of the trial, the judge instructed the jury at least twice that they are the judges of facts. The judge also twice reminded the jury during the final jury charge that they were the judges of facts and the credibility of the witnesses, and they were the sole judges of the weight to be accorded to each witness's testimony.
Finally, the last omitted paragraph of the model charge would have told the jury that they, alone, would determine guilt beyond a reasonable doubt. The jury was reminded of this on numerous occasions when the judge addressed the jury. The instructions given to the jury as a whole were clear on the law and not so ambiguous as to constitute plain error.
Defendant next contends that the trial judge plainly erred in permitting the State to elicit the details of the offenses of which he had been convicted. We are not persuaded by this argument. The trial court properly ruled that defendant had "opened the door" during his direct examination to questioning by the State regarding his prior convictions when he testified that he had prior convictions and then claimed that he "[n]ever touched no drugs."
"The 'opening the door' doctrine is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection." State v. James, 144 N.J. 538, 554 (1996). This doctrine allows otherwise inadmissible evidence to be elicited "when the opposing party has made unfair prejudicial use of related evidence." Ibid.
"Evidence of prior criminal convictions may be introduced for the purpose of impeaching the credibility of anyone who testifies, including a defendant in a criminal trial who offers himself as a witness." State v. Lair, 62 N.J. 388, 391 (1973); N.J.R.E. 609. However, since a jury must not consider this evidence when determining the guilt or innocence of a defendant, a limiting instruction must be given by the trial court directing the jury to only use the prior convictions when determining the credibility of defendant's testimony. Lair, supra, at 62 N.J. 391.
The trial judge correctly ruled that defendant opened the door when he claimed that he had never touched any drugs. The State would have been unfairly prejudiced had they been prohibited from using defendant's prior drug convictions to impeach this statement because this evidence directly impeached defendant's credibility by showing he had lied to the jury.
In any event, the judge gave two limiting instructions informing the jury that the prior convictions could only be used to determine defendant's credibility and not his guilt or innocence of the crime charged. The first instruction was given immediately after the evidence of defendant's past crimes was raised on direct. The second instruction occurred during the jury charge when the judge stated that such evidence was admissible only on the issue of defendant's credibility. These two sets of instructions made clear to the jury that defendant's prior convictions were to be used solely for impeachment purposes.
The State concedes that this matter must be remanded to merge count five (third-degree possession of heroin with the intent to distribute) with count six (third-degree possession of heroin with the intent to distribute within 500 feet of public property). In addition, as the State concedes, count three (third-degree possession of cocaine with the intent to distribute within 500 feet of public property) must be merged with count two (first degree possession of cocaine with intent to distribute). The sentences on those counts must be vacated.
The only remaining issue is whether we must remand the balance of the case for resentencing under State v. Pierce, 188 N.J. 155, 162 (2006). It is undisputed that defendant was extended-term eligible. In imposing an extended-term sentence, Pierce requires that the sentencing court determine the appropriate sentence within the expanded range of sentences from the bottom of the ordinary-term range to the top of the extended-term range, by assessing the aggravating and mitigating factors, including consideration of the deterrent need to protect the public. Id. at 169. It is not clear from the record before us whether the sentencing judge considered the full range of sentences that could be imposed. As a consequence, we must remand the matter for resentencing in light of Pierce.
Affirmed and remanded for resentencing.
Robert Lee Graddy was indicted as a co-defendant in counts four, nine, and ten.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
State v. Hampton, 61 N.J. 250, 272 (1972).
State v. Kociolek, 23 N.J. 400, 421 (1957).
February 26, 2007