STATE OF NEW JERSEY v. JAKE B. SAXTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1261-04T41261-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAKE B. SAXTON,

Defendant-Appellant.

________________________________

 

Submitted September 20, 2006 - Decided October 6, 2006

Before Judges Parrillo and Sapp-Peterson.

On appeal From the Superior Court of New Jersey,

Law Division, Salem County, Indictment No.

03-09-416-I.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Ingrid A. Enriquez, Designated Counsel,

and on the brief).

Anne Milgram, Acting Attorney General of New Jersey, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel, and on the brief).

PER CURIAM

Following a trial by jury, defendant, Jake B. Saxton, was convicted of second-degree possession of more than one-half ounce, but less than five ounces, of cocaine with the intent to distribute, N.J.S.A. 2C:35-5b(2) (Count One); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count Two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5 (Count Four); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (Count Five); and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1) (Count Six). The court merged the conviction on Count Two with that on Count One, imposing for that crime a seven-year term to run concurrent with concurrent nine-month terms imposed for the remaining counts. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.

According to the State's proofs at the suppression hearing, on March 15, 2003, the Salem County Prosecutor's Office received four telephone complaints of narcotics activity among several black males around a red SUV at the Whispering Waters apartment complex off Kent Street in Salem, an area specifically targeted by the Office's Quality of Life operation for narcotics trafficking. In response, at around 4:00 p.m., five officers were dispatched to the scene, including Sergeant Timothy Haslett, who, upon arriving at work just an hour earlier, had reviewed a current warrant list before going out on patrol.

Upon arrival, three officers pulled up to the SUV in an unmarked vehicle, identified themselves as police, and ordered the four individuals near the SUV to stop. Three of them got into a nearby car, but were immediately detained. Defendant, on the other hand, quickly walked away and, as the officers approached, began to run. Meanwhile, Haslett and Sergeant Brian Facemyer, who were approaching from the opposite direction in another vehicle, had received a radio transmission describing defendant in flight, and in fact, saw defendant running. Haslett exited the vehicle and, about ten to fifteen feet away, identified himself and ordered defendant to stop. Haslett, who knew defendant, recognized him as defendant looked back, and remembered seeing his name on the warrant list Haslett had just reviewed at the beginning of his shift.

Although Haslett identified himself once again, defendant continued to run. During the brief chase, about thirty or forty feet from their initial encounter, defendant stepped off the curb, removed from his jacket a clear plastic bag containing a white, rock-like substance, and threw it into a storm drain on Kent Street. Haslett, who was only ten feet away at this point, grabbed defendant's shirt, dragged him to the ground, and handcuffed him. Haslett then ordered another officer to immediately retrieve the bag, which was visible from outside the drain, being only a foot and one-half deep. The bag was later found to contain sixteen grams - over one-half ounce - of cocaine. Defendant, who had been placed under arrest, was transported to police headquarters where a more thorough search of his person revealed a kitchen knife and several small, empty yellow packets or plastic baggies.

At trial, Sergeant Facemyer, who testified as an expert without objection, explained that these packets are commonly used for packaging cocaine. In addition, from the bulk quantity possessed, with a retail value of about $1,600, and the absence of the usual usage paraphernalia, Facemyer opined that the cocaine in this instance was held for repackaging and resale.

Crediting the State's proofs, the jury found defendant guilty of the crimes charged.

In challenging the judgment of conviction, defendant raises the following issues:

I. THE EVIDENCE SEIZED SHOULD HAVE BEEN SUPPRESSED AS IT WAS SEIZED IN VIOLATION OF DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS.

II. STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM.

III. THE TRIAL COURT ERRED IN PERMITTING DETECTIVE FACEMYER TO RENDER EXPERT TESTIMONY ON THE ISSUE OF INTENT TO DISTRIBUTE NARCOTICS (Not Raised Below).

IV. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENT OF INTENT TO DISTRIBUTE DRUGS; CONSEQUENTLY THE CONVICTIONS ON COUNTS ONE AND TWO MUST BE VACATED (Not Raised Below).

V. THE TRIAL JUDGE ERRED IN FAILING TO GIVE AN IDENTIFICATION CHARGE TO THE JURY, THUS, WARRANTING REVERSAL OF DEFENDANT'S CONVICTION (Not Raised Below).

VI. DEFENDANT'S CONVICTION MUST BE SET ASIDE AS THE JURY VERDICT WAS INCONSISTENT AND AGAINST THE WEIGHT OF THE EVIDENCE.

VII. THE COURT BELOW ERRED IN RELYING ON A PRESUMPTIVE SENTENCE IN VIOLATION OF THE DEFENDANT'S DUE PROCESS RIGHTS.

We address the issues in the order raised.

(i)

Defendant contends his arrest was unconstitutional. This argument fails for a number of reasons.

First, defendant was lawfully arrested on an outstanding valid warrant. Contrary to defendant's argument, the fact that the State did not produce at trial independent verifiable evidence of the warrant list reviewed by Sergeant Haslett, or that Haslett did not physically possess the warrant upon arrest, does not vitiate the legality of the official action. There is no constitutional requirement concerning the latter, and the former is simply a factor in weighing the credibility of the officer's testimony, which the motion judge found believable. Indeed, the record is devoid of any contradictory evidence, and we owe substantial deference to the judge's findings of credibility. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974); State v. Butler, 32 N.J. 166, 196, cert. denied, 362 U.S. 984, 80 S. Ct. 1074, 4 L. Ed. 2d 1019 (1960); Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005).

In any event, defendant's arrest and the subsequent searches were supported by probable cause. See State v. Moore, 181 N.J. 40, 45 (2004). "[A] principal component of the probable cause standard 'is a well-grounded suspicion that a crime has been or is being committed.'" Ibid. (quoting State v. Nishina, 175 N.J. 502, 515 (2003)).

In determining whether there is probable cause, the court should utilize the totality of the circumstances test set forth in Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). [State v. Novembrino, 105 N.J. 95, 122 (1987)]. That test requires the court to make a practical, common sense determination whether, given all of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, supra, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 544. The factors to be considered in applying that test include a police officer's "common and specialized experience," [Schneider v. Simonini, 163 N.J. 336, 362 (2000)] (citation and quotation marks omitted), and evidence concerning the high-crime reputation of an area, [State v. Johnson, 171 N.J. 192, 217 (2002)]. Although several factors considered in isolation may not be enough, cumulatively these pieces of information may "become sufficient to demonstrate probable cause." [State v. Zutic, 155 N.J. 103, 113 (1998)].

[Moore, supra, 181 N.J. at 46.]

In this case, citizen complaints were made about drug activity in an area already targeted by law enforcement for its narcotics trafficking. Upon arrival at the scene, the officer's verification of several details of the information provided rendered it sufficiently reliable. See Zutic, supra, 155 N.J. at 110-11. Moreover, defendant was seen fleeing the scene which, when considered with the information previously obtained, see State v. Pineiro, 181 N.J. 13, 26 (2004), gave rise to a reasonable suspicion of criminal activity, sufficient to warrant investigatory detention. See State v. Birkenmeier, 185 N.J. 552, 562 (2006); State v. Rodriquez, 172 N.J. 117, 127-28 (2002); State v. Stovall, 170 N.J. 346, 357 (2002). When defendant further ignored repeated requests to stop and, while running, then discarded a bag of suspected cocaine into a nearby drain, the officer's reasonable suspicion escalated to probable cause to believe a crime had indeed been committed. See Moore, supra, 181 N.J. at 46; Zutic, supra, 155 N.J. at 113; see also Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). Of course, the retrieval of the bag of cocaine dumped into the drain was independently justifiable since the property was abandoned by defendant, State v. Tucker, 136 N.J. 158, 170-172 (1994); see also California v. Hodari, 499 U.S. 621, 625-629, 111 S. Ct. 1547, 1550-1552, 113 L. Ed. 2d 690, 696-699 (1994), and in any event, was in plain view. State v. Bruzzese, 94 N.J. 210 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Moreover, the plastic baggies and the kitchen knife uncovered from defendant at headquarters were the product of a valid search of defendant's person incident to a lawful arrest, based, as noted, on probable cause. See State v. Goodwin, 173 N.J. 583, 598 (2002); see also Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969).

(ii)

Defendant challenges the following underscored portion of the prosecutor's summation as prejudicial:

What little baggies? These little baggies that are found on Mr. Saxton's person. You break them down, cut it and put it here. Now you have a retail quantity. Jake Saxton walking around with this and calling this personal use is like buying a beer truck to get a beer. It's not practical. Sure, people buy cartons of cigarettes, you know, at once. It's cheaper. But no one walks around with a carton of cigarettes when they -- when they want to smoke and that's . . . part of the same thought process here.

We discern nothing improper in the prosecutor's analogy.

Prosecutors are permitted to use analogies during summation at trial. See State v. Mahoney, ___ N.J. ___, ___ (2006) (slip op. at 38-40); State v. Roman, 382 N.J. Super. 44, 60 (App. Div. 2005), certif. granted, 188 N.J. 219 (2006). However, those analogies must be based on the facts and reasonable inferences, be within the bounds of propriety, and not create a real danger of prejudice to the accused. Mahoney, supra, ___ N.J. at ___ (slip op. at 38-40). Here, defendant was found with sixteen grams of cocaine, which, according to Facemyer, the State's expert, was the equivalent of between eighty and 160 individual doses. Certainly, it is reasonable to infer that the amount held by defendant far exceeded what one person would, and possibly could, use within a reasonable amount of time. Thus, the analogy to someone purchasing a beer truck to obtain a beer, albeit hyperbolic, is clearly based on the evidence and its reasonable inferences. Moreover, the singular reference to "beer truck" had no real capacity to prejudice defendant in light of the overwhelming evidence of guilt, including the cocaine, baggies, and knife, introduced at trial. Roman, supra, 382 N.J. Super. at 60-62.

(iii)

Defendant objects for the first time on appeal to Facemyer's expert testimony, relying on State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). Defendant's reliance is misplaced.

In Baskerville, the defendant was charged with distribution of CDS and distribution of CDS within a school zone. Id. at 246-47. The issue before the jury was whether the State had proved beyond a reasonable doubt that the defendant had distributed drugs. As we noted, "[t]his was, purely and simply, a question of fact which the jurors were capable of deciding from the testimony of the fact witnesses alone -- the officers on the scene . . . ." Id. at 257. Nevertheless, the State's expert characterized the particular interaction between the defendant and others, which, as an opinion on the ultimate question, we held to be "unduly prejudicial in the circumstances." Id. at 258. Such expert opinion, in that case, "could not aid the jury in resolving that simple fact without the risk of usurping the jury's function[]" and

might well impel the jury to an affirmative conclusion on the focal issue whether the State's fact witnesses had established the distribution element of the crime beyond a reasonable doubt . . . .

[Ibid.]

In the present matter, defendant was not charged with distribution, but rather with the intent to distribute. Questions of intent are necessarily treated differently. See State v. Nesbitt, 185 N.J. 504, 507-08 (2006). In State v. Odom, 116 N.J. 65, 67-68 (1989), the Supreme Court found properly admissible expert testimony as to a defendant's intent to distribute CDS.

Here, defendant does not appear to contest the fact that the jury will normally need the insight of an expert to explain the significance of the properties, packaging, and value of illegal drugs. It simply does not follow, however, that once the expert has revealed his knowledge and given such an explanation of underlying facts, average persons with ordinary backgrounds would then be able to appreciate whether possession of those drugs would be for personal use or for distribution. As stated in [State v. Perez, 218 N.J. Super. 478 (App. Div. 1987)], "it is unreasonable to assume that the average lay person called to serve as a juror would necessarily know what a person who possessed [a certain quantity of drugs in certain circumstances] was going to do with it." [Id.] at 485. The jury, though enlightened by the expert's explanation of the significance of surrounding facts, does not thereby become expert in the field. Thus, under these circumstances, the subject of intent or purpose in connection with the possession of unlawful drugs is a matter of specialized knowledge of experts. In this case, we are satisfied that the testimony of the expert covered a subject beyond the understanding of average persons and was genuinely helpful to the jury in understanding the evidence presented and determining important issues of fact.

[Id. at 76.]

The Court affirmed its reasoning in State v. Summers, 176 N.J. 306 (2003), holding:

Odom . . . is grounded firmly in New Jersey precedent and has been reflected in our Rules of Evidence for many years. The Court concluded that Odom's approach was permissible and sound when it decided that case over a decade ago. We remain convinced of that today. To hold otherwise would deprive jurors of valuable assistance as they discharge their important and often difficult responsibilities.

[Id. at 317.]

Here, Facemyer opined, on the basis of the quantity of cocaine discovered, the unused baggies, and the absence of paraphernalia suggestive of mere usage, that the cocaine was for resale, not personal consumption. The technical information which formed the basis of his opinion relating to the amounts packaged into baggies for resale versus the uncut amount found on defendant is clearly "a subject matter that is beyond the ken of the average juror," State v. Kelley, 97 N.J. 178, 208 (1984), and would "assist the trier of fact to understand the evidence or determine a fact in issue." State v. Berry, 140 N.J. 280, 291 (1995). Moreover, defendant lodged no objection to either the expert's qualifications or testimony. There was no error, much less plain error, Rule 2:10-2, in the admission of this evidence.

(iv)

We have considered the remaining issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

Count Three, charging third-degree possessing a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and Count Seven, charging second-degree committing a drug offense while possessing a firearm, N.J.S.A. 2C:39-4.1b, were dismissed, at the State's request, prior to trial.

(continued)

(continued)

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A-1261-04T4

October 6, 2006