STATE OF NEW JERSEY v. SHARIEFFE PARKS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5332-03T45332-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHARIEFFE PARKS,

Defendant-Appellant.

___________________________________

 

Submitted September 14, 2005 - Decided

Before Judges Wefing and Wecker.

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

No. 03-04-0304.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Kevin G. Byrnes,

Designated Counsel, of counsel and on

the brief).

James F. Avigliano, Passaic County

Prosecutor, attorney for respondent

(Christopher W. Hsieh, Senior Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10a(1); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); and possession of cocaine with intent to distribute within one thousand feet of a school, N.J.S.A. 2C:35-7. The trial court granted the State's motion to impose a mandatory extended term under N.J.S.A. 2C:43-6f. It merged the first two convictions into the school zone offense and sentenced defendant to eight years in prison, specifying he must serve four years before becoming eligible for parole. Defendant has appealed his conviction and sentence. After reviewing the record in light of the contentions advanced on appeal, we have concluded we are constrained to reverse.

Shortly after midnight on October 28, 2002, defendant was driving a white Jeep Cherokee on East 30th Street in Paterson; Morgan Scott was a passenger in the vehicle. Detectives Arroyo and Rodriguez of the Paterson Police Department saw that the car was being operated with no headlights, and they followed it when it turned onto Tenth Avenue. They then observed the vehicle swerve over the double yellow line. Detective Arroyo activated the lights and siren on his police car but the Cherokee did not pull over immediately. After several blocks, it pulled into the parking lot of a Dunkin' Donuts store and Arroyo, after radioing in his location, pulled in behind the Cherokee. Arroyo approached the Cherokee on the driver's side, Rodriguez on the passenger's. Arroyo signaled defendant to lower his window; when he did so, Arroyo immediately detected a strong odor of marijuana. Arroyo asked defendant for his license and registration, but defendant could only produce the insurance card for the vehicle. Arroyo, who thought the driver might be intoxicated because he had witnessed the vehicle swerving, then asked defendant to step outside, intending to administer a field sobriety test. As he did so, Rodriguez, who was standing on the other side and shining his flashlight into the car's interior, told Arroyo that he could see a plastic bag, which in turn contained smaller bags, protruding from under the driver's seat. When the bag was retrieved, the officers found it contained fifty-nine baggies, each with a quantity of crack cocaine. They also found a small quantity of marijuana. Defendant had $299 in cash in his possession. The two men were placed under arrest and were tried together.

On appeal, defendant raises the following issues.

POINT I

THE ADMISSION OF THE CO-DEFENDANT'S STATEMENT THAT IMPLICATED THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 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. I PAR. 1 OF THE NEW JERSEY CONSTITUTION (Not Raised Below).

POINT II

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 IMPROPER ADMISSION OF OPINION EVIDENCE AND THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURORS ON HOW TO EVALUATE THE OPINION EVIDENCE.

A. DETECTIVE CONYERS RENDERED NUMEROUS HIGHLY PREJUDICIAL OPINIONS REQUIRING SPECIALIZED KNOWLEDGE EVEN THOUGH THE STATE DID NOT PROFFER CONYERS AS AN EXPERT AND THE TRIAL COURT NEVER FOUND THAT CONYERS QUALIFIED AS AN EXPERT WITNESS.

B. ASSUMING ARGUENDO THAT CONYERS WOULD HAVE QUALIFIED AS AN EXPERT WITNESS, THE DEFENSE RECEIVED NO NOTICE AND NO EXPERT WITNESS REPORT TO PREPARE FOR CROSS-EXAMINATION AND TO PRESENT REBUTTAL WITNESS TESTIMONY.

C. ASSUMING ARGUENDO THAT CONYERS WOULD HAVE QUALIFIED AS AN EXPERT WITNESS AND THE STATE HAD COMPLIED WITH ITS DISCOVERY OBLIGATIONS, THE TRIAL WAS FATALLY FLAWED BECAUSE THE JURORS HAD NO INSTRUCTION OR GUIDANCE ON HOW TO EVALUATE THE EXPERT TESTIMONY (Not Raised Below).

D. RODRIGUEZ AND ARROYO DID NOT QUALIFY AS EXPERT WITNESSES, YET BOTH TESTIFIED TO OPINIONS THAT REQUIRED EXPERTISE IN THE AREA OF NARCOTICS DISTRIBUTION (Partially Raised Below).

POINT III

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 WHEN THE TRIAL COURT FAILED TO INSTRUCT THE JURORS THAT THE DEFENDANT COULD BE GUILTY OF A LESSER OFFENSE THAN THE CO-DEFENDANT AND THAT THE EXTENT OF THE DEFENDANT'S GUILT WAS SOLELY A FUNCTION OF HIS OWN PARTICIPATION AND STATE OF MIND (Not Raised Below).

POINT IV

THE TRIAL COURT VIOLATED 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 BY FAILING TO INSTRUCT THE JURY ON THE LAW OF PRIOR INCONSISTENT STATEMENTS (Not Raised Below).

POINT 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 ACCUMULATION OF TRIAL ERRORS.

POINT VI

THE DEFENDANT'S SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

Defendant Scott filed a pretrial motion to suppress, at which Detective Rodriguez testified. Following that testimony, the trial court denied the motion. During the trial, the State called two witnesses on its behalf--Detective Arroyo and Detective Conyers. Detective Conyers was not involved in the stop or the arrest but was familiar with the drug trade in Paterson and explained various aspects of it to the jury.

At the conclusion of the State's case, defendant, perceiving some conflict between the testimony of Detective Arroyo and that given by Detective Rodriguez at the motion to suppress, called Detective Rodriguez as a witness. After finishing his direct examination, Detective Rodriguez was cross-examined, first by the attorney for co-defendant Scott and then by the State. Toward the end of the prosecution's cross-examination, the following colloquy occurred:

Q. Now [defendant's attorney] brought up the fact that you had a conversation with Mr. Scott.

A. Yes.

Q. Isn't it a fact that he gave you a bit of attitude?

[CO-DEFENDANT'S ATTORNEY]: Your Honor, I'm going to object here under Rule 104.

[PROSECUTOR]: Judge, the door was opened by [defendant's attorney].

[CO-DEFENDANT'S ATTORNEY]: Not me.

THE COURT: The door was opened, the door was opened.

[CO-DEFENDANT'S ATTORNEY]: Not by me, Your Honor.

THE COURT: I understand, but it's been opened in this trial.

[CO-DEFENDANT'S ATTORNEY]: Fine.

THE COURT: I'll allow it.

[PROSECUTOR]:

Q. You can go ahead and answer the question.

A. Yes, he did, ma'am.

Q. And what -- how would you describe what he gave you[,] a little bit of an attitude[?]

A. He was a very combative nature, stating it wasn't his, this and that, the narcotics weren't his.

Q. Okay. And did he say something to you to the effect that you got nothing on me?

A. Yes, he did, ma'am.

Defendant made no objection to this testimony at the time it was offered but now contends that the import of the testimony was necessarily to inculpate him and that he was deprived of the opportunity to cross-examine Scott, who did not testify at their joint trial. This, defendant now asserts, violated his right of confrontation. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); State v. Young, 46 N.J. 152 (1965).

We consider too facile the State's assertion that no reversible error occurred because Scott's purported statement "You got nothing on me" did not implicate defendant. There were only two individuals in the car in which the drugs were found, defendant and his passenger, co-defendant Scott. Any assertion by Scott that the drugs were not his had, by necessity, to cast some responsibility upon this defendant.

Nor are we persuaded by the State's assertion that defendant's conviction should remain undisturbed because it did not utilize that hearsay testimony in its summation to contend that defendant was guilty. Co-defendant's attorney, who had originally objected to the line of questioning, stressed those remarks in his summation, contending that his client had maintained his innocence from the outset. The contrast with defendant was unmistakable.

The testimony was clearly hearsay and should not have been put before the jury. The potential for prejudice to defendant was only strengthened by the absence of a limiting instruction of any sort.

Our courts have not hesitated to reverse a defendant's conviction under similar circumstances. In State v. Maristany, 133 N.J. 299 (1993), defendant was convicted of possession of a controlled dangerous substance and possession with intent to distribute. The drugs were found in a blue gym bag in the trunk of a car driven by Green that was stopped for a motor vehicle violation. Green and his passenger, defendant Maristany, gave conflicting stories of where they were coming from, leading the trooper to ask for permission to search the car. Green gave the necessary consent and told the trooper that the trunk held a brown suitcase and a blue gym bag. The gym bag, which had no identifying tags, contained three kilos of cocaine. During defendant's trial, the trooper was permitted to testify as to Green's statement that he had picked up defendant in New York City, that defendant had placed the bag in the trunk and that he, Green, was not aware of its contents. We reversed defendant's conviction, and the Supreme Court agreed with our characterization of this testimony as "rank hearsay" that was "so prejudicial as to require reversal."

State v. Bowser, 297 N.J. Super. 588 (App. Div. 1997), also illustrates the principle. Defendant in that case, together with his co-defendant Ash, was accused of robbing a convenience store at gunpoint. Ash was apprehended first and confessed, telling police that it was defendant's idea to commit the robbery and that defendant had supplied the weapon. At defendant's trial, the officer who took Ash's confession testified and during cross-examination, defendant's attorney elicited testimony tending to exculpate defendant. Upon redirect, the State elicited further testimony to the effect that defendant had supplied the weapon and planned the robbery. Upon appeal, we reversed defendant's conviction, rejecting the State's assertion that defendant's examination had opened the door to receipt of the challenged testimony. Similarly, in our view, defendant's cross-examination cannot fairly be read to have "opened the door" to presentation of Scott's alleged remarks to Detective Rodriguez.

From our review of the entire record, it is clear that for whatever reason, defense postures switched during the course of this trial. While initially defendants pursued a common defense strategy, that strategic unity collapsed as the trial got underway and the inadmissible hearsay was utilized to defendant's unfair detriment.

Because we are satisfied that defendant's conviction must be reversed on this ground, it is unnecessary for us to address his remaining contentions in detail. We shall, however, deal with them for the sake of completeness, save for his challenge to his sentence, which is mooted by our reversal. We note that as to each of the following arguments, defendant made no objection at the time of trial and, thus, must establish that the particular error complained of constituted plain error. R. 2:10-2.

We reject defendant's contention that the trial court erred in permitting the testimony of Detective Conyers without his having qualified as an expert and without giving any instructions on the use of expert testimony. Detective Conyers did not testify as an expert in the sense of expressing an opinion whether the quantity of narcotics seized indicated that defendant possessed the drugs with the intent to distribute them. State v. Odom, 116 N.J. 65 (1989). Indeed, he was not asked a hypothetical question along those lines.

Because of his position within the Paterson Police Department, he was involved in field testing the narcotics seized and arranging for their further testing by the laboratory maintained by the State Police. He explained to the jury the difference between powder and crack cocaine and how the drugs are packaged for each. He also explained various common methods dealers would employ to ply their trade. His testimony was not used to plug an evidential gap in the State's case, a technique we condemned in State v. Boston, ___ N.J. Super. ___ (App. Div. 2005) and State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000).

We are satisfied, moreover, that defendant was not unfairly prejudiced because Conyers had not prepared a formal report. Conyers finished his direct testimony at the end of one court day, and cross-examination did not occur until the following day, allowing ample time for preparation.

Similarly, we reject defendant's contention that the trial court was obligated to instruct the jury that defendant could be guilty of a lesser offense than his passenger Scott. The trial court clearly told the jury it must consider separately the guilt of each of the defendants, both of whom were charged with offenses requiring either a purposeful or knowing state of mind. This is not a situation such as arose in State v. Bielkiewicz, 267 N.J. Super. 520, 531 (App. Div. 1993). In that case, we reversed defendant's conviction because the trial court did not instruct the jury that defendant could be convicted of a lesser offense than his co-defendant if he acted recklessly, as opposed to knowingly or purposefully.

Finally, we disagree with defendant's assertion that the trial court was obligated to instruct the jury on the use of prior inconsistent statements. The trial court's instructions on the issue of credibility were entirely adequate in the context of this case.

For the reason stated, defendant's conviction is reversed, and the matter is remanded for a new trial.

 

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A-5332-03T4

October 14, 2005