STATE OF NEW JERSEY v. JAMEEL HEARNS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0408-04T40408-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMEEL HEARNS,

Defendant-Appellant.

________________________________

 

Submitted October 11, 2005 - Decided

Before Judges Cuff and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Ind. No. 03-07-0713.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jean M. Hartmann, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Joie Piderit, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Jameel Hearns, appeals the Law Division's amended judgment of conviction by which, after jury verdict, he was found guilty of all four counts of Union County Indictment No. 03-07-00713 charging him with third degree possession of heroin (count one), third degree possession of heroin with the intent to distribute (count two), second degree possession of heroin with intent to distribute within 500 feet of a public park (count three) and fourth degree obstructing administration of law (count four). At sentencing, counts one and two were merged into count three. Defendant was sentenced on count three to a nine-year term of imprisonment and to a consecutive fifteen months of imprisonment on count four. Appropriate monetary penalties were imposed. We affirm defendant's conviction but remand for re-sentencing in accordance with this opinion.

At approximately 2:30 p.m. on January 31, 2003, Elizabeth police officers Pevonis, Santos and Gramiak were patrolling in an unmarked vehicle in an "extremely high narcotics area" when Pevonis observed defendant and two "females," fifty to sixty feet from their location in the middle of Jackson Street and within 500 feet of Elizabeth-owned Legett Park. Peronis observed one of the women hand money to defendant, who in turn handed her a small object. Believing they had observed a narcotics transaction, the officers proceeded to the location, stopping their vehicle ten to fifteen feet from the three individuals. Pevonis and Gramiak exited their vehicle with their police badges visible. When someone yelled "eighty-eight," street language used to alert drug dealers that police are in the area, defendant and the women walked away in different directions. Upon seeing Pevonis' badge, defendant began to run, ignoring orders to stop. Pevonis chased defendant, never being more than ten feet behind him. As defendant ran past Gramiak, he threw a clear plastic bag onto the sidewalk. Gramiak retrieved the plastic bag containing thirty-five glassine envelopes containing a white powdery substance, later identified as heroin, stamped with the words "Smack Down." Pevonis soon overtook defendant, who fell when Pevonis tackled him as he attempted to run up steps. Defendant was apprehended and arrested after a brief struggle. The officers were uninjured, but defendant sustained an abrasion to the left side of his face as a result of being tackled. When searched incident to his arrest, $101 in various denominations was found on defendant.

At trial, Detective Antonio of the Union County Prosecutor's office testified for the State as an expert in the field of packaging, use, and distribution of narcotics. In response to a hypothetical question containing facts similar to those in this case, Antonio opined that the person described in the hypothetical possessed the thirty-five "folds" of heroin with the intent to distribute. Antonio based his opinion on the quantity of heroin, which he stated exceeded that possessed for personal use, the packaging in marked glassine envelopes, typical of packaging for street distribution, its monetary value, the area where the transaction took place and the observations by the officers of a "prototypical" hand-to-hand transaction. Antonio additionally opined that it is "prototypical" for someone who has just completed a narcotics sale to throw the narcotics still in his possession as far away as possible when he believes arrest is imminent.

Defendant raises the following issues for our consideration.

POINT I

DEFENDANT WAS DENIED DUE PROCESS, BECAUSE THE TRIAL COURT, ALTHOUGH ON NOTICE OF FACTS INDICATING A LACK OF COMPETENCY, FAILED TO ADEQUATELY INQUIRE INTO HIS COMPETENCE TO STAND TRIAL.

U.S. Const. V, VI, XIV; N.J. Const. (1947) Art. I, Par. 10 (Not Raised Below)

POINT II

THE COMBINATION OF WRONGFULLY ADMITTED EXPERT TESTIMONY AND A JURY INSTRUCTION STATING THE TRIAL COURT HAD FOUND THE FACTS PROMULGATED IN THE STATE'S HYPOTHETICAL TO BE WITHIN THE POSSIBLE RANGE OF EVIDENCE CONSTITUTED PLAIN ERROR AND COMPELS REVERSAL (Not Raised Below)

POINT III

DEFENDANT'S SENTENCES WERE IMPROPER

a. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND FINDINGS BASED UPON PROOF BEYOND A REASONABLE DOUBT WHEN THE TRIAL COURT SENTENCED HIM TO GREATER THAN PRESUMPTIVE SENTENCES BASED ON ITS FINDING OF STATUTORY AGGRAVATING FACTORS.

(U.S. Const. Amend. V, VI, XIV; N.J. Const. (1947) Art. I, Pars. 8, 9, 10, 11)

(Not Raised Below)

b. THE SENTENCES IMPOSED WERE MANIFESTLY EXCESSIVE AND WERE REACHED WITHOUT FINDINGS OF APPLICABLE MITIGATING FACTORS AND A BALANCING OF THOSE FACTORS WITH THE APPROPRIATE AGGRAVATING FACTORS

(Not Raised Below)

[c.] THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING CONSECUTIVE SENTENCES

(Not Raised Below)

I

Defendant contends that he was denied due process because the trial court, although aware of facts that indicated a lack of competency, failed to adequately inquire into his competence to stand trial. Defendant argues that his responses to the trial judge's inquiries as to whether he wanted the judge to give a jury instruction regarding his decision not to testify should have caused the judge to at least question his competence and required the court to examine him further to determine whether the statutory factors contained in N.J.S.A. 2C:4-4 were satisfied.

The following colloquy took place between the court and defendant.

THE COURT: Mr. Hearns, did you have a chance to go over the instruction with Mr. Negron [defense counsel]?

THE DEFENDANT: Yes.

THE COURT: All right. That's the instruction that I'm -- I'm allowed to give if someone doesn't testify and they want me to give that instruction to the -- to the jury. I haven't heard one defendant yet, I just counted up, I think we had 133 trials here so far, I haven't heard one defendant say that he didn't want me to give that charge to the jury but some defendant[s] may, they may say hey, I don't want to draw attention to the fact that I didn't testify, don't give that to the jury. Most defendants, as I said, give -- want me to give that instruction to the jury. Have you gone over both versions for both scenarios with Mr. Negron? Whether to give it or not?

THE DEFENDANT: Yes.

THE COURT: Okay. Do you have any questions of me or Mr. Negron about what it means if I give it and what it means if I don't?

THE DEFENDANT: Um-hum.

THE COURT: You do have questions?

THE DEFENDANT: Um-hum.

THE COURT: Go ahead.

THE DEFENDANT: I want to know what do it mean.

THE COURT: What does it mean?

THE DEFENDANT: If you give it to them or not. Do it -- do it hurt me in any way?

THE COURT: I -- I can't tell if it hurts you, but it does inform the jury that you have the right not to testify and they are not to consider in any way the fact that you didn't testify in their deliberations. It protects -- it's supposed to protect your fifth amendment right to remain silent, it's supposed to protect your right to be able to sit there without testifying and have your case go to the jury because as I told the jury before and I'll tell them again in my final instructions, it's not your duty or your burden to prove your innocence, it's the State's burden to prove the elements of the crime beyond a reasonable doubt. Even if you don't testify you're entitled to that presumption. So that's basically what the instruction is for.

THE DEFENDANT: What about the signature that was forged? He said I couldn't use a forged signature in evidence.

THE COURT: Well, that has nothing to do with that instruction. Let's stick with the instruction. Do you have any other questions regarding the instruction?

THE DEFENDANT: No - no, sir.

THE COURT: Okay. Do you want me to give that instruction to the jury?

THE DEFENDANT: Yes.

As respects the exchanges between the judge and defendant concerning the jury charge, after the judge explained the significance of the charge to defendant, he seemed satisfied with the judge's explanation, and had no other questions concerning the jury charge. The forged signature statement in the context of the record appears to reflect a topic defendant had discussed with his attorney during the court's recess, preceding the judge's questioning of defendant, so that counsel could go over the proposed charge with him. Additionally, our examination of the record confirms that defendant did not exhibit any aberrant behavior during the trial, an indication that he was rational and coherent throughout the trial. Following the jury verdict, the judge asked defendant if he wanted to address the court at sentencing. Defendant rationally responded, "Oh yeah? Oh, yeah, I'll come back."

Defendant asserts that his presentence report (PSR) should have alerted the court to his possible lack of competence. The PSR stated: (1) defendant reported suffering from "delusions, schizophrenia and hears voices" and that he has been on medication for his mental health problems since age twelve; (2) when asked why he committed the offense, the defendant stated: "I didn't know the car had run out of gas. Nobody told me."; (3) "He related that his mother told him he went to trial. However, he stated that he does not remember and does not understand it."; (4) defendant admitted to abusing alcohol and various narcotics including heroin, PCP, dust, embalming fluid, marijuana and crack from age sixteen until his present age of twenty-five; and (5) defendant said that he was under the influence of heroin at the time he committed this offense. The probation officer authoring the PSR recommended that defendant undergo a psychological evaluation.

Defendant also points out that when asked at his sentencing hearing if he had a statement, he responded, "I didn't know the car had run out of gas. I don't know." Defendant contends that both his statement and his attorney's informing the court that defendant had given him a physician's note indicating that he was on medication should have caused the judge to question his competence, but the judge proceeded to sentence him without further substantive inquiry. We disagree.

During the sentencing hearing the court specifically addressed defendant. The judge asked defendant if he was taking medicines. Defendant responded, "yes." When queried if the medicine was helping, defendant said, "little bit." When asked if it was true that he had not been to behavior management in prison, defendant answered, "yes." When the judge inquired if defendant was concerned about the length of his sentence, defendant replied, "yes." When asked if there was anything he would like to tell the court about the length of the sentence, defendant replied, "no." The judge was satisfied that defendant rationally responded to the questions that he had directed to him. The judge concluded: "I do make findings based on Mr. Hearns' responses to the court questioning here today that he is competent, he does understand these proceedings."

A trial court must hold a competency hearing, even when not requested, where the evidence raises a bona fide doubt as to a defendant's competence. See Pate v. Robinson, 383 U.S. 375, 385, 86 S. Ct. 836, ___, 15 L. Ed. 2d 815, ___ (1966); See also N.J.S.A. 2C:4-4. "When a defendant demonstrates a history of psychiatric problems and a current thought disorder, creating a reasonable basis to question his or her competency to stand trial or to raise a defense. . . , the court is obligated to conduct a further inquiry either by appointing counsel or directing that a psychiatric examination be conducted." State v. Ehrenberg, 284 N.J. Super. 309, 315 (Law Div. 1994). Evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial, none of which were presented here, would all be relevant in determining whether further inquiry is required. See Drope v. Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908, 43 L. Ed. 2d 103, 118 (1975).

Defense counsel is ordinarily "in a far better position than the trial judge to assay the salient facts concerning the defendant's ability to stand trial and assist in his own defense[.]" State v. Lucas, 30 N.J. 37, 74 (1959); see also State v. Lambert, 275 N.J. Super. 125, 129 (App. Div. 1994). An appellate court's review of a trial court's determination of competence is "typically, and properly, highly deferential." State v. Moya, 329 N.J. Super. 499, 506 (App. Div.), certif. denied, 165 N.J. 529 (2000). Circumstances warranting a competency hearing are "rare, and limited to those cases where, from the outset, the defendant presents behavior which objectively suggests that [] the defendant is not competent. . . ." Ehrenberg, supra, 284 N.J. Super. at 318 (emphasis added).

During the pre-trial motion to suppress evidence, during the entire trial from voir dire to verdict, and at sentencing, defense counsel never by motion or suggestion to the judge indicated that he questioned defendant's competence to stand trial or to be sentenced. Nor did counsel inform the court that the medical note defendant presented to counsel prior to sentencing in any way indicated that the medication defendant was taking adversely affected his competence to be sentenced. Accordingly, defendant's competence was never called into question. Additionally, at sentencing the trial court questioned the defendant, and based on defendant's rational responses, determined that he was competent and that he understood the trial proceedings.

We are satisfied that defendant's contentions were not sufficient to raise a "bona fide doubt" as to defendant's competence. Thus, there was no need for the trial court sua sponte to hold a competency hearing.

II

Defendant claims that the expert testimony of Antonio was wrongfully admitted and that the jury instruction given by the court concerning the State's hypothetical question constituted error and compels reversal. At trial, defendant did not object to the expert testimony, to the form or content of the hypothetical posed to Antonio, to the opinions expressed by Antonio, or to the judge's instruction regarding the hypothetical posed. Pursuant to Rule 2:10-2, the failure to object requires defendant's contention to be evaluated under the "plain error" rule. To prevail on this claim, defendant must demonstrate that the error was clearly capable of producing an unjust result. See State v. Macon, 57 N.J. 325, 335 (1971).

N.J.R.E. 702 provides "If . . . specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion . . . ." Defendant argues that Antonio's expert testimony was not used to assist the jury as trier of fact but rather constituted improper bolstering of the State's case. Although defendant concedes that certain behaviors of drug dealers are outside the common knowledge of lay people, he argues that the custom of discharging drugs when apprehension is imminent and exchanging drugs for currency are not the type of facts requiring specialized knowledge.

Defendant also claims that the court's jury instruction was prejudicial. The court instructed:

Your acceptance or rejection of the expert - the expert's opinion will depend therefore to some extent on your findings as to the truth of what happened here. The ultimate determination as to guilt or innocence is never with the expert, it is always with you.

In examining the expert, you heard counsel use what's called a hypothetical question. And by asking the hypothetical question the expert assumed -- such a question and in permitting that question the Court does not rule and does not necessarily find that all of the assumed facts have been proved, it only determines that the assumed facts are within the possible range of evidence.

It's your job, its for the jury to find from all the evidence whether or not the facts assumed in a hypothetical question have been proven. And if you should find that any assumption in that question has not been provided you have to determine again the effect of the failure of proof on the value and the weight of the expert's opinion based on that assumption. (emphasis added).

Defendant contends that the emphasized language, gave the court's approval to the State's case and bolstered the State's expert witness' testimony.

We are satisfied that neither the court's admission of the expert testimony nor its jury instruction were plain error. The customs and behaviors of drug dealers are proper subjects for expert testimony. See State v. Summers, 350 N.J. Super. 353, 364 (App. Div. 2002), aff'd, 176 N.J. 306 (2003). The expert's testimony here assisted the jury because the fact that drug distributors sometimes discard their highly valuable product is illogical. The testimony referred to the conduct of the possessor and the manner in which drugs may be secreted. Id. at 365. Additionally, the expert's testimony was presented through the use of hypothetical questions that referred only to evidence introduced in the trial. Ibid. Accord State v. Berry, 140 N.J. 280, 292-93 (1995); State v. Odom, 116 N.J. 65, 70-71 (1989).

Even if the admission of the testimony were error, it was not testimony that was clearly capable of producing an unjust result. There was substantial other evidence against defendant for the jury to find guilt. Defendant was observed engaging in a hand-to-hand transaction for cash, he ran from Pevonis even when ordered to stop, he discarded a bag containing thirty-five separate envelopes of heroin virtually at the feet of Gramiak and was never out of eyesight of Pevonis before being apprehended.

For the same reason the jury instruction, when considered in its entirety, did not constitute prejudicial error. As discussed in Summers, it was the court's role to ensure that only facts in evidence were contained in the hypothetical, but it was the jury's task to make the factual determinations. Summers, supra, 350 N.J. Super. at 365. Although the emphasized language was removed from the model criminal jury charge, Expert Testimony, approved November 10, 2003, we are satisfied that the court's instruction essentially informed the jury of its proper role with regard to evaluating the expert testimony and whether the facts contained in the hypothetical were proven. The jury's function was not undermined.

III

Defendant argues that his Sixth Amendment right to trial by jury based upon jury findings of proof beyond a reasonable doubt was violated, when the trial court sentenced him to greater than the presumptive sentence, based on the court's finding of statutory aggravating factors. Defendant was sentenced to nine years imprisonment for count three, second degree possession of heroin with intent to distribute within 500 feet of a public park. On count three, the judge found three aggravating factors: (3) the risk that defendant will commit another offense; (6) the extent of defendant's prior record and the seriousness of the offenses of which he has been convicted; and (9) the need for deterring defendant and others from violating the law that the judge found outweighed "the nonexistent mitigating factors."

Defendant challenges the court's failure to find mitigating factors. Defendant claims that the trial court completely ignored the person being sentenced before it, and argues that factors such as defendant's drug addiction, mental illness and his age should have been considered mitigating factors. However, none of these factors are among the statutorily recognized mitigating factors listed in N.J.S.A. 2C:44-1b. Additionally, "[A]n appellate court should not second-guess a trial court's findings as to aggravating and mitigating factors if they are supported by sufficient evidence in the record." State v. Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002) (citation omitted). Here, the factors identified by the sentencing judge are supported by the record. We discern no basis to alter the analysis of those factors.

The sentence on counts three and four, however, must be remanded for reconsideration in light of State v. Natale, 184 N.J. 458 (2005) (Natale II). The sentencing range for a term of imprisonment for a second degree crime is five to ten years. N.J.S.A. 2C:43-6a(2). The presumptive sentence for a second degree crime is seven years. N.J.S.A. 2C:44-1f(1)(c). For a crime of the fourth degree, the term of imprisonment shall not exceed eighteen months. N.J.S.A. 2C:43-6a(4). The presumptive term is nine months. N.J.S.A. 2C:44-1f(1)(e). Thus, the court's sentence of nine years for the second degree offense exceeded the presumptive term of seven years and the court's sentence of fifteen months on the fourth degree offense exceeded the presumptive term of nine months.

In Natale II, the Supreme Court held "that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Natale II, supra, 184 N.J. at 466. The court, therefore, "elminat[ed] the presumptive terms[,]" creating the "'statutory maximum' authorized by the jury verdict . . . [as] the top of the sentencing range for the crime charged." Id. at 487. Natale II admonished judges to sentence defendants within the statutory range by balancing the aggravating factors against the mitigating factors. Ibid. See also Abdullah, supra, 184 N.J. 506-07 (discussing the elimination of presumptive terms and the use of aggravating and mitigating factors in sentencing procedures). Because defendant's sentence was greater than the then-existing presumptive term a remand is necessary.

In Natale II, the Court held:

As a result of today's decision, we will order a new sentencing hearing in each affected case based on the record at the prior sentencing. At the new hearing, the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely grounds will not be subject to a sentence greater than the one already imposed.

[Natale II, supra, 184 N.J. at 495-96. See also Abdullah, supra, 184 N.J. at 504-12; State v. Young, 379 N.J. Super. 498, 514-15 (App. Div. 2005).]

Defendant also asserts that the trial court abused its discretion in imposing a consecutive sentence on count four contrary to State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Yarbough addressed the following criteria as guidelines in determining whether sentences for multiple offenses should be served consecutively or concurrently:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous; (footnote omitted).

(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses. (footnote omitted).

[Id. at 643-44.]

We are convinced that the trial court departed from the standards enunciated in Yarbough in sentencing defendant to consecutive terms because the "obstructing the administration of law" charge resulted from a single event that was part of defendant's arrest for the "possession with the intent to distribute" charge. See also State v. Abdullah, 184 N.J. 497, 506-07, 512-14 (2005) (although consecutive terms do not fall within the Blakely rule, the judge is required to articulate the factors that influence the selected term). Here, the criminal objectives were not predominately independent of each other, there were no separate acts of violence involved, and the crimes, although composed of separate elements, were committed so close in time and place as to indicate a single period of aberrant behavior.

Accordingly, we remand this matter for a new sentencing hearing in accordance with this decision. On the remand, we direct the sentencing judge to follow the dictates of Natale II and Abdullah in imposing a proper sentence. We do not retain jurisdiction.

Affirmed on conviction; remanded for resentencing.

 

At the time of trial and sentence, the PSR indicates defendant was incarcerated at Mid-State Correctional Facility on a parole violation.

Guideline number six has been statutorily eliminated. N.J.S.A. 2C:44-5a provides, "[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses."

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

(continued)

(continued)

20

A-0408-04T4

November 10, 2005