STATE OF NEW JERSEY v. ROBERT C. BRYANT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2151-04T42151-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT C. BRYANT,

Defendant-Appellant.

 

Submitted February 8, 2006 - Decided February 21, 2006

Before Judges Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, 02-05-0790-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Julie A. Higgs, Designated Counsel, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Missy Piccioni, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of the following offenses: second-degree distribution of controlled dangerous substance (CDS) on or within 500 feet of certain public property, N.J.S.A. 2C:35-7.1 (counts one and two); third-degree distribution of CDS on or within 1000 feet of school property, N.J.S.A. 2C:35-7 (counts three and four); third-degree distribution of CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count five); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count six); and third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (count seven). The court merged counts two through seven into count one, and imposed an eight-year prison term with four years of parole ineligibility.

On appeal, defendant raises the following issues:

POINT I

THE SINGLE PHOTOGRAPH OF DEFENDANT SHOWN TO A POLICE OFFICER FOR IDENTIFICATION WAS UNDULY SUGGESTIVE AND SHOULD HAVE BEEN SUPPRESSED.

POINT II

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF FAIR COMMENT BY IMPROPERLY BOLSTERING THE CREDIBILITY OF THE POLICE WITNESSES, ASSERTING THAT THEY SHOULD BE BELIEVED BECAUSE THEY HAD NO REASON TO LIE AND WERE, INTER ALIA, "RESPECTED OFFICERS." (NOT RAISED BELOW)

POINT III

DEFENDANT'S SENTENCE WAS INVALID AND UNCONSTITUTIONAL UNDER STATE V. NATALE, SINCE THE COURT BELOW IMPERMISSIBLY DETERMINED DEFENDANT'S TERM BY STARTING WITH A [PRESUMPTIVE] FIGURE, THEN INCREASING IT BY ONE YEAR BASED ON AGGRAVATING FACTORS.

POINT IV

DEFENDANT'S SENTENCE WAS EXCESSIVE AND ON REMAND SHOULD FALL AT THE LOW END OF THE SENTENCING SPECTRUM FOR A SECOND DEGREE OFFENSE.

We have carefully considered defendant's arguments in light of the existing law. We find no merit to defendant's argument under point one, but we do find merit to point two, that the prosecutor's summation remarks denied defendant a fair trial. Consequently, we reverse defendant's conviction. That being so, points three and four, regarding defendant's sentence, are moot.

Defendant's arrest arose out of a narcotics investigation by a joint task force of the Burlington County prosecutor's office and police officers from Mount Holly Township. Law enforcement officers were investigating the "Gardens" section of Mount Holly on December 17, 2001. Three undercover officers were working in the area, including Detective Verrill Dillard.

At approximately 8:00 p.m., Dillard drove onto Grant Street where he saw approximately ten men standing together. It was dark out, but streetlights were on. He observed a woman he had encountered before, who he identified as Timeca Reed. After she got into his car, he offered to pay her fifty dollars for three twenty-dollar bags of cocaine. She directed him to 277 Grant Street, which is located within 1000 feet of school property and 500 feet of a public park.

Reed got out of the car and yelled "Daddy," at which time three black males approached Dillard's car. Reed told them Dillard was looking for "three 20s for $50." Dillard testified that:

A. The individual standing in the middle of the three black males hands Miss Reed three clear plastic baggies of suspected crack cocaine at which time Miss Reed sits back in my vehicle, hands me the crack cocaine, I look at it, they look kind of small from my experience, from my training and experience, they don't look . . . like twenties, they look like dime bags which are $10 bags of crack cocaine at which time I say these are small and I request one additional bag, just another common technique used, drug dealers, drug buyers do it so I did it as an undercover capacity. I basically haggled for an additional bag at which time Miss Reed, and I'm stating these are small, let me have at least one more, Miss Reed exits the vehicle, gets one more bag and hands it to me. She got it from the same individual, the person in the middle, the black male in the middle so during this time period like I said my door's open, I can see these individuals, they're within my sight and they can also hear me talking so basically I was addressing them and Miss Reed about the bags being small and requesting another bag.

Q. Okay. What do you eventually do with the money in the operation?

A. Once I got the fourth bag, I handed the $50 to Miss Reed at which time she exits the vehicle and hands it to the male she received the CDS from.

Q. You observed not only the transfer of the CDS to Miss Reed before it gets to you but also the transfer of funds from Miss Reed to the black male?

A. Yes.

Q. What happens next in this operation?

A. I started departing from the Gardens. Like I said, I'm wearing [an] electronic monitoring device, I also have a handheld radio, I started relaying the description and location of the transaction, I'm relaying the description of the individuals involved in the transaction and I'm relaying the location of the transaction to the backup identification officers.

Q. Okay. Can you give me the description of the two people involved in this transaction you put out on the air?

A. Yes. The female I recognized from my previous contacts with her in the Gardens. I've dealt with her in the past. I identified her as [Timeca], I don't recall her last name. I remembered her last name at the time. I said it was [Timeca], I identified her as a tall black female, I believe approximately five foot 11, skinny, approximately 130 pounds, dark complected.

Q. And what did you describe the male person who provided the CDS to Miss Reed as?

A. Again I stated the male in the middle of the group of three males, he was described as approximately I believe five foot eight to five foot 10, 180 to 200 pounds, light complected wearing a gray cap, gray jacket and blue jeans with a gray stripe going down the side of the jeans.

When he received Dillard's call, Mount Holly police officer William Fields went to the scene of the sale where he saw a group of African-American men, but was unable to identify the person Dillard described as the seller. Consequently, Fields called for another unit to respond. He spoke with Patrolman John Barry who had also been provided with a full description of the seller of the drugs. Barry got out of the car and approached the three men. He noticed that the male in the center matched the description given by Dillard; he was wearing a gray jacket, gray hat and blue jeans. Barry was familiar with the individual, and identified him as defendant. After speaking with defendant for a few minutes, Barry "obtained his identifiers," including his date of birth and social security number. He then radioed Detective Fields that he positively identified the individual as defendant. He noted that defendant looked different than he had looked in the past, because he was about twenty-five pounds heavier.

After obtaining defendant's name from Barry, Fields secured a photograph of defendant and met with Detective Dillard to show him the photograph. He then conducted a photo identification with Detective Dillard. At trial, Fields explained how he did that.

For a photo identification right after a buy what I would do is secure a photograph of the subject who I believed was involved in the transaction based on the description, any names or anything like that. I would then inform Detective Dillard prior to showing him the photograph that the photograph I'm about to show him may or may not be a person he's familiar with. And then I would show Detective Dillard a photograph with no identification or identifiers visible so as a name or anything can be visible to him. After he views the photograph, I allow him to either interject he was familiar with the person and how he was familiar or if he was not familiar with the person.

Q. Okay. What happens in this case specifically?

A. During the first time I showed Detective Dillard a photograph of Miss Reed with no visible identifiers, upon looking at the photograph, he positively identified Miss Reed as the person who he had purchased crack cocaine from.

Q. And what about Mr. Bryant?

A. Upon showing the photograph of Mr. Bryant, again with no identifiers visible, he positively identified Mr. Bryant as the person who handed Timeca Reed the crack cocaine and who was wearing the gray hat and . . . gray jacket and the blue jeans.

Q. Okay. Approximately how long after the drug sale does this photo identification take place?

A. Approximately 35 minutes, it was 8:39 I believe.

At trial, Dillard identified defendant as the individual who sold him drugs on December 17, 2001. Defendant's grandmother, Lottie Dunbar, testified that defendant lived with her in December 2001, and on the evening of December 17 he was fixing the washing machine in her home; he did not leave the house that evening. Defendant did not testify.

We first turn to whether the single photograph shown to Officer Dillard was unduly suggestive. In New Jersey, the courts have adopted the "totality of the circumstances" test to determine whether a witness's identification is reliable, using the analysis enunciated by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977); see also State v. Madison, 109 N.J. 223, 233, 239 (1988). That test "involves considering the facts of each case and weighing the corruptive influence of the suggestive identification against the 'opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the time of the confrontation and the time between the crime and the confrontation.'" Madison, supra, id. at 239-40 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154). Given this test, we agree with the trial court that under the totality of the evidence the identification procedure was not suggestive.

Detective Dillard had observed defendant for approximately ninety seconds during the drug transaction, from a distance of approximately seven feet. The streetlights in the area were on. He broadcasted defendant's description as: the man in the middle of the group, five foot eight to five foot ten inches tall, 180 to 200 pounds, light complexion, with a gray cap, gray jacket, and blue jeans with a gray stripe down the side of the jeans. That description was accurate. Detective Dillard was also able to make an in-court identification of defendant. Weighing the Madison/Brathwaite factors against the single photograph identification procedure, we agree with the trial judge that the reliability of the identification outweighs any potential prejudicial effects of the procedure.

We turn next, then, to the prosecutor's remarks in his summation. In a criminal case, a prosecutor is "expected to make a vigorous and forceful closing argument to the jury." State v. Harris, 141 N.J. 525, 559 (1995). A prosecuting attorney is afforded "considerable leeway" so long as his or her "comments are reasonably related to the scope of the evidence before the jury." Ibid. The comments may not, however, exceed the parameters of "permissibly forceful advocacy." State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). To determine whether the alleged prosecutorial misconduct requires a reversal of a conviction, we decide whether "the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). "[S]tatements by a prosecutor about a police officer's credibility are wholly inappropriate." Id. at 85. It is also improper for a prosecutor to "contend police had no motive to lie." State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994); see also State v. R.B., 183 N.J. 308, 331-32, 339 (2005) (holding it improper for a prosecutor in summation to contend that the police had no motive to lie or to personally vouch for the credibility of a police officer).

In addressing whether a prosecutor's statements constitute prejudicial misconduct, we consider whether defense counsel made a "timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 322-23 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). A failure by counsel to timely object "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made" and "deprives the court of the opportunity to take curative action." State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). In the absence of a proper objection at trial, therefore, to warrant a reversal a defendant must demonstrate that the conduct was sufficiently prejudicial to produce an unjust result. R. 2:10-2; State v. Josephs, 174 N.J. 44, 124-25 (2002).

Here, though defense counsel made no objection to the prosecutor's summation at trial, the challenged remarks were sufficiently egregious so as to warrant a new trial. After defense counsel, in his summation, questioned the veracity of the testifying police officers, the prosecutor made the following remarks in his closing:

Detective Fields and Dillard, lead Officer Barry, they have no bias in this case. They testified truthfully, they have no real interest in this case. It doesn't behoove them to lie. First of all, there's no promotion that comes with it. Detective Fields and Dillard are still detectives, Barry is still the lead officer in patrol. . . . They have no interest in lying. It doesn't help them. They are respected officers. . . . They have no bias to lie.

Later in his summation, the prosecutor, commenting on Officer Barry's testimony that he used a ruse of a noise complaint when he approached the men on the street, said: "Yes, it was a ruse when Officer Barry got there there was no noise complaint, he told you he wasn't there investigating a noise complaint . . . . He wasn't lying, there was no subterfuge . . . ."

These comments were not, as suggested by the State, simply a single incident of the prosecutor indicating the police had no reason to lie. Significantly, when the prosecutor suggested that "there's no promotion that comes" with lying, his remark referred to the effect lying could have on the police officer's career; it therefore went beyond the bounds of vigorous and forceful argument. See Frost, supra, 158 N.J. at 86 (comments regarding the effect lying would have on an officer's career "unfairly invites the jury to speculate concerning whether the effect of an acquittal would be to terminate the officer's career"); State v. West, 145 N.J. Super. 226, 234 (App. Div. 1976) (prosecutor's comments that "[t]here is a lot of harm that could come to him from lying" and "the police officer's career would be finished in a minute" found to be improper), certif. denied, 73 N.J. 67 (1977).

To compound the error, the prosecutor expressed his personal belief as to the truthfulness of the officers' testimony. By commenting that the officers "are respected officers" and "have no bias in this case," the prosecutor personally vouched for their credibility. While it would have been helpful had defense counsel objected and given the trial judge the opportunity to cure the inappropriate remarks, that failure to object is not sufficient, under the facts here, to avoid plain error. There was no dispute that the drug transaction took place; the defense was one of identification that defendant was not the seller of the drugs, as he was at his grandmother's house at the time. From the defense perspective, the entire trial revolved around whether the jury believed the identification by Officer Dillard. In this context, the prosecutor's remarks constituted plain error.

 
We reverse defendant's conviction.

Defendant's judgment of conviction indicates that he entered a guilty plea on August 19, 2002. The judgment of conviction must be amended to reflect that he was adjudicated guilty following a jury trial.

(continued)

(continued)

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A-2151-04T4

February 21, 2006