STATE OF NEW JERSEY v. JAMES WALKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3268-04T43268-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES WALKER,

Defendant-Appellant.

_________________________________

 

Submitted September 13, 2006 - Decided October 2, 2006

Before Judges Wefing, C. S. Fisher and Yannotti.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 04-02-0627.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Richard C. Erdman,

Designated Counsel, of counsel and on

the brief).

Anne Milgram, Acting Attorney General,

attorney for respondent (Mary E. McAnally,

Deputy Attorney General, of counsel

and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of two counts of possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), and two counts of possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3). Defendant was sentenced to four years in prison, and appropriate fines and penalties were assessed. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant's trial was brief. The prosecution presented two witnesses, as did defendant; defendant himself did not testify. Detective Modesto Miranda of the Newark Police Department testified that on the morning of September 17, 2004, he and two other members of the special investigations unit were engaged in a surveillance operation from an unmarked vehicle parked near 293 Hawthorne Avenue. They observed a black male, later identified as defendant, standing in front of 293 Hawthorne Avenue, engage in two hand-to-hand transactions that they recognized as drug transactions. When they pulled up in front of 293 Hawthorne, defendant began to approach their vehicle; when he saw the officers get out of the car, however, he discarded something by the garbage. Defendant was placed under arrest, and the object he discarded was retrieved. It was a raisin box which contained glassine envelopes of heroin and zip lock baggies of cocaine. The prosecution's remaining witness was Detective Reginald Holloway, who testified as an expert witness and expressed the opinion that the drugs which were seized were possessed with the intent to distribute.

Defendant's sister testified that she lived at 295 Hawthorne Avenue and that defendant had spent the previous evening at her apartment. She said that he left at approximately 8:00 a.m. and that she left at approximately 8:15 a.m. to take her two small children to school. She testified that after he left the building, she knew defendant was sitting in his car, parked in front of 295 Hawthorne, warming up the engine. She said that when she left, defendant was already handcuffed in front of the building next door.

Albert Glover III also testified for defendant. He is the superintendent of 293 and 295 Hawthorne Avenue. He testified that he was in the front of 293 Hawthorne picking up trash and saw defendant sitting in his car, smoking a marijuana cigarette. Glover said the police pulled up in an unmarked car, with guns drawn, dragged defendant from the car and arrested him.

On appeal, defendant raises the following arguments:

POINT I THE PHYSICAL EVIDENCE IN THIS CASE SHOULD HAVE BEEN SUPPRESSED BECAUSE THIS SEARCH AND SEIZURE WERE NOT SUPPORTED BY REASONABLE SUSPICION OR PROBABLE CAUSE AS REQUIRED BY BOTH FEDERAL AND STATE CONSTITUTIONAL PROVISIONS (NOT RAISED BELOW).

POINT II THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO ESTABLISH A FINDING OF GUILT BEYOND A REASONABLE DOUBT AS TO ALL COUNTS (NOT RAISED BELOW).

POINT III THE TRIAL COURT'S PROVIDING ANSWERS TO THE JURY'S SET OF FACTUAL QUESTIONS IMPROPERLY INVADED THE JURY'S FACTFINDING PROVINCE, THEREBY REQUIRING REVERSAL OF THIS DEFENDANT'S CONVICTION REGARDLESS OF DEFENSE TRIAL COUNSEL'S FAILURE TO OBJECT TO THIS PROCEDURE (NOT RAISED BELOW).

POINT IV THE PARTISAN ONE-SIDED HYPOTHESIS PRESENTED TO THE EXPERT WITNESS AND HIS TESTIMONY ALSO VIOLATE THE DEFENDANT-APPELLANT'S FUNDAMENTAL RIGHTS TO A FAIR TRIAL (NOT RAISED BELOW).

A. Federal and State Constitutional

Provisions Prohibit the Expert Witness

Practices in This Case.

B. The New Jersey Fundamental Fairness

Doctrine Also Bars the Expert Witness

Practices in This Case.

C. Best Practice Grounds Also Preclude

The Expert Witness Practices in This Case.

POINT V THE TRIAL COURT MANIFESTLY ABUSED ITS DISCRETION BY ALLOWING THE USE OF CERTAIN OF DEFENDANT-APPELLANT'S PRIOR CRIMINAL CONVICTIONS FOR THE PURPOSE OF POSSIBLE IMPEACHMENT (NOT RAISED BELOW).

POINT VI DEFENDANT'S LENGTHY SENTENCE OF INCARCERATION IS MANIFESTLY EXCESSIVE AND SHOULD CLEARLY BE REDUCED PURSUANT TO R. 2:10-5.

POINT VII THE NUMBERING OF THE NUMEROUS EXHIBITS SHOWN TO THE JURY AND ENTERED INTO EVIDENCE IN THIS CASE PREJUDICIALLY INTIMATED TO THE JURY THE EXISTENCE OF MORE EVIDENCE AGAINST DEFENDANT THAN THERE ACTUALLY WAS, THEREBY DEPRIVING THE DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).

POINT VIII PROSECUTORIAL MISCONDUCT IN HIS SUMMATION MANDATE[S] REVERSAL OF DEFENDANT-APPELLANT'S CONVICTION (NOT RAISED BELOW).

As to defendant's first argument, he concedes that his trial counsel never filed a motion to suppress the drugs seized from defendant at the time of his arrest. That omission constitutes a waiver of the issue. R. 3:5-7(f). We have elected, however, for the sake of completeness, to consider the issue.

We disagree with defendant that the record presented at trial warrants suppression of the drugs, and we consider the cases upon which defendant principally relies, State v. Piniero, 181 N.J. 13 (2004), and State v. Kuhn, 213 N.J. Super. 275 (App. Div. 1986), to be distinguishable.

Here, the police saw defendant engage in several hand-to-hand transactions with people on foot. Detective Miranda described each of these encounters as brief, leading to the inference that defendant was not simply engaging in conversation with those who approached him. In addition, the police observed an individual pull up in a red automobile, get out of the car and approach defendant. The driver gave defendant currency, and defendant retrieved an object from his pocket, took something from that object and handed it to the driver, who then returned to his car and left the scene.

This is in sharp contrast to the situation presented in Kuhn, in which the police did not observe the defendant engage in any narcotics-appearing transactions. 213 N.J. Super. at 278. Rather, the defendant was standing by the driver's side of a car parked in a tavern lot, another man was standing on the passenger's side, and another individual was seated in the front passenger's seat. When the police, who considered this configuration indicative of drug activity, pulled into the parking lot, defendant drove away. We agreed with the defendant that the trial court should have granted his motion to suppress.

The record here is also in sharp contrast to the facts of Pineiro, in which the police observed no more than the defendant handing a pack of cigarettes to another individual. 181 N.J. at 18-19.

We are satisfied that even if defendant had timely presented a motion to suppress, it would properly have been denied. The observations of the officers gave ample probable cause for their actions.

In our judgment, defendant's second point, that the evidence presented at trial was insufficient to support his convictions, requires little discussion. Defendant did not file a motion for a new trial and thus is barred from raising this issue on appeal. R. 2:10-1.

We are nonetheless cognizant of our responsibility to see that defendant receives the justice to which he is due and have thus canvassed the trial record in light of defendant's contention. We consider this case closely analogous to State v. DiFerdinando, 345 N.J. Super. 382 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). The defendant in that case was convicted of possession of cocaine, aggravated assault, eluding and resisting arrest. Id. at 384. She argued on appeal that her convictions were against the weight of the evidence despite the fact that she had not filed a motion for a new trial. Id. at 399. We rejected the argument, noting that

[t]he record reflects ample evidence for the jury to find defendant guilty beyond a reasonable doubt of possession of cocaine. The jury is free to accept or reject, in whole or in part, any aspect of testimonial evidence based on credibility. Here, the jury obviously believed the State's witnesses.

[Ibid. (citations omitted).]

The same principles apply here.

Defendant's third argument relates to the manner in which the trial court responded to the questions posed by the jury. Defendant complains that by providing specific answers to the jury's questions, the trial court interfered with the jury's fact-finding function. Our analysis is informed by several factors. We note, first, the fact that defense counsel concurred in the procedure that was used. Additionally, the jury's first questions, dealing with the particular addresses involved, did not include a request for a read-back of particular testimony. Further, the trial court did arrange a read-back of the sections of testimony that the jury requested to hear and told the jury that if it wished anything further, it should let the court know. The jury made no further requests. Finally, defendant makes no complaint that the answers that were supplied to the jury were inaccurate or misleading in any regard. In such a context, we can perceive no justification to reverse defendant's convictions.

We deem it appropriate, nonetheless, to note the dangers which lurk in a trial court's responding in such an unequivocal fashion to factual questions posed by a deliberating jury. A trial court must be sensitive not to intrude in any fashion upon the fact-finding function of the panel. The trial of this matter was brief; all of the testimony was presented in one day, and the jury deliberated the following day. In such a situation, the jury should be encouraged to rely upon its collective recollection but assured that if there is an uncertainty, the court will arrange to have the pertinent sections of testimony read back.

Contrary to defendant's next assertion, there was nothing improper in the formation of the question posed to the State's expert witness. It was based entirely upon the factual evidence presented by the prosecutor, and the witness's answer was based upon his extensive experience in the investigation and arrest of individuals involved in the narcotics trade.

Further, we perceive no merit to defendant's next contention, that the trial court erred in ruling that certain of defendant's convictions would be admissible on the question of his credibility if he testified. First, defendant never moved for a hearing pursuant to State v. Sands, 76 N.J. 127 (1978), and thus the trial court never made a definitive ruling in this regard. Defendant's argument is based upon the trial court's explanation to defendant, in the course of querying him whether he understood his right to testify or not to testify, that if he did elect to testify, the prosecution could bring out the fact of his prior convictions. We have reviewed the presentence report that was prepared in connection with defendant's sentencing. That report notes that defendant had four prior indictable convictions, two of which were for robbery and resulted in lengthy terms of incarceration. There was no error on the part of the trial court in this regard.

Similarly, there was no prosecutorial misconduct in this case, and, certainly, nothing that would warrant a reversal of defendant's convictions. Defendant complained at trial of the prosecutor's comment in summation that Detective Miranda "was just doing his job." Contrary to defendant's assertion, this remark cannot fairly be construed as an improper bolstering of the credibility of Detective Miranda. We have on many occasions noted the impropriety of a prosecutor arguing to a jury that a police witness had no motive to lie. State v. Vasquez, 374 N.J. Super. 252, 260 (App. Div. 2005); State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994); State v. West, 145 N.J. Super. 226, 234 (App. Div. 1976). The comments of which defendant complains made no such implication; rather, they were clearly directed to refuting the defense contention that defendant was arbitrarily taken into custody, for no reason.

Finally, we see no merit to defendant's assertion dealing with the number of exhibits at trial, or his challenge to his entirely unremarkable sentence. R. 2:11-3(e)(2).

Defendant's convictions and sentence are affirmed.

 

(continued)

(continued)

10

A-3268-04T4

 

October 2, 2006