STATE OF NEW JERSEY v. CARLTHIA LITTLE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4535-03T44535-03T4

A-5283-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLTHIA LITTLE,

Defendant-Appellant.

__________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK JOHNSON,

Defendant-Appellant.

__________________________________

 

Submitted September 18, 2006 - Decided October 5, 2006

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of

New Jersey, Law Division, Mercer County,

01-06-0831.

Yvonne Smith Segars, Public Defender, attorney for appellants (Richard Sparaco, Designated Counsel, of counsel and on the brief in A-4535-03T4; J. Stewart Borrow, Designated Counsel, of counsel and on the brief in A-5283-03T4).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the briefs).

PER CURIAM

These two appeals arise from Mercer County Indictment No. 01-06-0831, charging both Mark Johnson and Carlthia Little, with fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3) and N.J.S.A. 2C:2-6 (Count One); third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(11), and N.J.S.A. 2C:2-6 (Count Two); third-degree possession of marijuana with intent to distribute on or near school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(11), and N.J.S.A. 2C:2-6 (Count Three); second-degree possession of marijuana with intent to distribute on or near a public facility, N.J.S.A. 2C:35-7.1, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(11), and N.J.S.A. 2C:2-6 (Count Four); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); N.J.S.A. 2C:2-6 (Count Five); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(2), and N.J.S.A. 2C:2-6 (Count Six); third-degree possession of cocaine with intent to distribute on or near school property, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(2), and N.J.S.A. 2C:2-6 (Count Seven); second-degree possession of cocaine with intent to distribute on or near a public facility, N.J.S.A. 2C:35-7.1, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(2), and N.J.S.A. 2C:2-6 (Count Eight); second-degree possession of a handgun while committing controlled dangerous substance crimes, N.J.S.A. 2C:39-4.1 and N.J.S.A. 2C:2-6 (Count Nine); and fourth-degree maintaining a narcotics nuisance, N.J.S.A. 24:21-21a(6) and N.J.S.A. 2C:2-6 (Count Ten).

On May 23, 2003, the judge conducted a hearing on Little's motion to sever her case from Johnson's. The motion was adjourned without decision in order for Little's attorney to obtain supporting documentation. It was not rescheduled and both defendants were tried together. On August 12, 2003, following jury selection, the trial judge denied Johnson's motion to exclude any reference to the term "search warrant" concerning the officers' presence in the home where both defendants were arrested and the evidence discovered.

Following four days of trial, the jury found both defendants guilty on Counts One through Eight and Count Ten. The jury, however, found both defendants not guilty on Count Nine. The judge merged the Count One, Two, and Three convictions with the Count Four conviction. He also merged the Count Five, Six, and Seven convictions with the Count Eight conviction. Johnson received concurrent six-year terms with three years of parole ineligibility on Counts Four and Eight, with a concurrent eighteen-month term on Count Ten. The judge imposed concurrent five-year terms with three years of parole ineligibility on Little's Count Four and Eight convictions, together with a concurrent eighteen-month term on Count Ten. Except to remand to correct the monetary penalties assessed on Johnson, we affirm both judgments of conviction and sentences imposed.

On February 1, 2001, at 3:10 p.m., Trenton Police Department Detective Leonard Sutton and his unit executed a search warrant for the first-floor apartment at 137 Monmouth Street. The officers found Little in the kitchen with an adult male. Johnson was found in the middle bedroom. Another adult male was found in the bathroom and a small child was found sleeping in the front bedroom. The adults were all placed in handcuffs.

Officers conducted a search of the home, including the basement, which was accessed through a door in the kitchen. In the front portion of the basement ceiling, on top of the Sheetrock, officers recovered a blue plastic Gap bag containing a clear plastic bag of marijuana. A clear plastic bag containing crack cocaine and a number of empty plastic bags were recovered from the same area.

From the center portion of the basement ceiling, on top of the Sheetrock, the detectives recovered: (1) a clear plastic bag containing nine smaller bags of marijuana; (2) a clear plastic bag containing a loose quantity of marijuana; (3) fourteen small red bags containing marijuana; (4) a clear plastic sandwich bag, tied in a knot, containing crack cocaine; and (5) a black sock containing a nine millimeter semi-automatic handgun. The weapon was loaded with a magazine containing eight armor-piercing bullets. A white plastic bag containing a digital scale and both clear and red empty plastic bags was also found in the same area.

In the center portion of the basement, the officers found a safe, from which they recovered $2188. A Tanita digital scale was located on top of the safe. The owner's manual for the safe was recovered from inside the safe. There were written notations on the back of the manual.

On top of a refrigerator, the officers found a Startech Motorola cellular telephone and car adapter. A Samsung cellular telephone was recovered from the living room. Empty clear plastic bags were found on top of a television in the living room. A green plastic bag containing three smaller blue plastic bags of crack cocaine and two hollow glass tubes, commonly used to ingest crack cocaine, were found on the kitchen table. A single-edged razor blade was recovered from the windowsill.

A document addressed to "Carlthia Little, Mark Johnson, 137 Monmouth Street, first floor" was recovered from the middle bedroom. Two documents were recovered from the kitchen table. One was addressed to both defendants at 137 Monmouth Street and one was addressed only to Johnson at the same address.

The evidence was all taken to police headquarters and placed in an evidence locker. The drugs were examined by the State Police Laboratory and yielded a total of 29.04 grams of cocaine and 116.51 grams of marijuana. At trial, Sutton testified that the apartment building was within 1000 feet of Grant Elementary School. Detective William Straniero of the Mercer County Prosecutor's Office testified that the quantity and packaging of the drugs was consistent with possession with intent to distribute. Detective Sean Yard, also with the Prosecutor's Office, used a rolatape to determine that the distance between the apartment building and the Miller Homes, a public housing facility, was sixty-nine feet six inches.

On appeal, Little raises the following points:

POINT I

THE VERDICTS OF GUILTY WERE AGAINST THE WEIGHT OF THE EVIDENCE.

POINT II

THE DEFENDANT WAS DENIED THE RIGHT TO A[N] EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL MOVED FOR SEVERANCE, THEN FAILED TO FOLLOW THROUGH WITH THE MOTION.

POINT III

THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO PROSECUTORIAL MISCONDUCT IN REFERRING TO THE SEARCH WARRANT DURING HIS CLOSING ARGUMENT.

Johnson raises the following points on appeal.

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION BY PROHIBITING THE DEFENDANT'S TRIAL COUNSEL FROM WRITING THE RESPONSES OF THE

STATE'S CHIEF WITNESS ON THE BLACKBOARD DURING CROSS-EXAMINATION.

POINT II

THE TRIAL COURT ERRED WHEN THE SCOPE OF ITS QUESTIONING OF ONE OF THE STATE'S WITNESSES CROSSED THE BOUNDARY OF CLARIFYING THE

RECORD INTO ESTABLISHING AN ELEMENT OF THE OFFENSE OF POSSESSION WITH INTENT TO DISTRIBUTE OF [sic] A CONTROLLED DANGEROUS SUBSTANCE WITHIN 500 FEET OF A PUBLIC FACILITY.

POINT III

THE TRIAL COURT ERRED WHEN IT FAILED TO CHARGE THE JURY WITH MAINTAINING A NUISANCE AS A LESSER INCLUDED OFFENSE TO COUNT TEN. (NOT RAISED BELOW).

POINT IV

THE TRIAL COURT ERRED IN FAILING TO MERGE THE DEFENDANT'S CONVICTION ON COUNT TEN WITH HIS CONVICTION ON COUNTS FOUR AND/OR EIGHT.

POINT V

THE TRIAL COURT'S JUDGMENT OF CONVICTION CONTAINS ERRORS IN THE AMOUNT OF PENALTIES AND ASSESSMENTS.

We consider first the points raised by Little. Little maintains that the verdict was against the weight of the evidence. Initially, we note Little's failure to timely move for a new trial generally precludes us from determining whether the verdict was against the weight of the evidence. R. 2:10-1; State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). Notwithstanding the procedural bar, we conclude that her claim that the verdict was against the weight of the evidence is without merit. Simply put, the evidence amply supported the result reached by the jury. Where such a motion is made, the trial judge is obligated to "grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly appears that there was a miscarriage of justice under the law." Dolson v. Anastasia, 55 N.J. 2, 7 (1969).

Our complete examination of the record reveals no error warranting a new trial. Moreover, viewing the evidence in the light most favorable to the State clearly establishes defendant's guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). The evidence established that Little resided with Johnson at the apartment where contraband was found and, therefore, had direct access to the basement. There was sufficient evidence to infer intent, knowledge, and control, thus establishing constructive possession. State v. Brown, 80 N.J. 587, 594-95 (1979).

Little next asserts that she received ineffective assistance of counsel because her attorney failed to follow through on her motion to sever, claiming that Johnson, although unwilling to do so at a joint trial, would have exculpated her had he been called as a witness in a separate trial. These allegations regarding abandoning the severance motion, as well as any evidence of Johnson's purported willingness to provide exculpatory testimony prior to commencement of the joint trial, are beyond the trial record and would be best addressed on an application for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992); State v. Ospina, 239 N.J. Super. 645, 656 (App. Div.), certif. denied, 127 N.J. 321 (1990). We, therefore, forgo further consideration.

Towards the beginning of his summation, the prosecutor, refuting the defense claim of a police conspiracy, stated "[t]hey want you to believe that this was a conspiracy, that the police, on February 1st, 2001, armed with a search warrant . . . were planning . . . a great conspiracy." Little's counsel objected and the judge overruled the objection but instructed the State not to go any further. In his jury charge, the judge gave the following instructions:

During this case, there has been reference to the term search warrant. In order to indicate, and you may conclude therefrom, that the officers were properly and legally on the premises of 137 Monmouth Street in Trenton on the day in question. However, the existence of a search warrant in no way should be considered evidence of the guilt of the defendants. In other words, I instruct you -- and this is a limiting instruction -- to disregard the fact that a search warrant existed for the purposes of determining the guilt or innocence of the defendant. You may only conclude therefrom that the officers were properly and appropriately on the premises.

Little maintains on appeal that the prosecutor's reference to the search warrant represented prosecutorial misconduct and implied that the State had more information about both defendants than was presented at trial. We disagree. Although the prosecutor's comments were somewhat gratuitous, Sutton testified that the police presence at the apartment was by virtue of the execution of a search warrant. First and foremost, we view the judge's instructions as "adequate to ameliorate any significant prejudice." 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). There is no reason to believe that the jury was unwilling or unable to follow the curative instruction as given. State v. Manley, 54 N.J. 259, 270 (1969). More importantly, the judge provided the appropriate curative instruction. State v. Marshall, 148 N.J. 89, 240 (1997). Under these circumstances the remark was harmless. R. 2:10-2

We next address the five points raised by Johnson. During cross-examination of Sutton by Johnson's counsel, the following colloquy took place:

THE COURT: What are you writing on the board?

[COUNSEL]: Number one.

THE COURT: Why? It's not summation.

[COUNSEL]: It's just for demonstrative purposes, Judge.

THE COURT: Get the demonstration from the witness. I don't want you to be --

[COUNSEL]: Sure, do you want to do it, sir?

THE COURT: I don't know that I want him to do it. What's the point?

[COUNSEL]: So we can -- this is in evidence, Judge. Just to highlight certain aspects of it. If you don't want me to do it, I won't do it.

THE COURT: That's why we have testimony.

[COUNSEL]: Fine.

THE COURT: Confine it to questions.

[COUNSEL]: Fine.

At the close of evidence that day, defense counsel renewed his objection to the judge's failure to allow him to use the chalkboard to outline the drug exhibits and lab numbers during cross-examination.

Asserting that the use of the chalkboard in the manner requested by counsel was proper and a means to make it easier for the jury to digest the maze of drug exhibits and identification numbers, Johnson contends that the judge committed reversible error in denying counsel the use of the chalkboard. He essentially contends that the judge abused his discretion by prohibiting counsel from writing a witness's responses on the chalkboard. Again, we disagree.

"As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991) (citing State v. Wise, 19 N.J. 59, 98 (1955); Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982); Schweizer v. MacPhee, 130 N.J. Super. 123, 127 (App. Div. l974)). Absent an abuse of discretion, evidentiary decisions of the trial judge should not be disturbed. State v. Sands, 76 N.J. 127, 144 (1978). Our role is not to substitute our judgment for that of the trial judge, but rather to decide whether the judge pursued a manifestly unjust course. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).

Generally, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. Refusing to revisit the issue at the end of the trial day and to permit counsel to use the chalkboard the next day, the judge explained his concerns that information placed on the chalkboard becomes evidence as the jury views it. The judge reiterated his decision that he would not permit such evidence because it would be tantamount to introducing visual stimulus that the State did not have an opportunity to analyze and was not previously screened. The judge also alluded to the cumulative effect of the evidence, asking rhetorically, "Why do you need it again? Why do you need to emphasize that? . . . Why would you need it? If it's been testified to . . . ."

We are satisfied that the judge appropriately exercised his discretion under N.J.R.E. 403, and that there was no "clear error" in his judgment warranting our intervention. State v. Koedatich, 112 N.J. 225, 313 (1988) (citation omitted), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). The reasons stated by the judge for the exercise of his discretion were provided to the parties and were appropriate. See Khoudary v. Salem County Bd. of Soc. Servs., 281 N.J. Super. 571, 578 (App. Div. 1995). His findings were not so wide of the mark that a manifest denial of justice resulted. State v. Carter, 91 N.J. 86, 106 (1982).

During Detective Yard's cross-examination, he explained that he used the fence line on the Miller Homes' property to determine the distance between the apartment and the Miller Homes. The following colloquy then took place:

Q: Did at any point in time you consult a tax map before you made these measurements?

A: I consulted this map here, ma'am.

Q: And does that map there indicate where

the fence is?

A: Yes, it does.

Q: On the, on the map itself, it shows where the fence line is?

A: Yes it does.

Q: Show me where it says that.

. . . .

A: I'm sorry, your Honor. No, sir. I'm sorry. I was misled. There is not a fence line on that.

THE COURT: Are you describing a fence line or borderline?

THE WITNESS: There was a borderline. I mistook that for the fence line.

THE COURT: Is there a difference in your observation between the two?

THE WITNESS: Yeah. The difference that I can ascertain from that is that the fence line that I observed would be within that borderline.

On redirect, after the prosecutor asked how many buildings are in the Miller Homes and the judge asked about the distance from the edge of the Miller property to the fence line, Johnson's counsel objected again. At sidebar, counsel claimed that the judge was asking questions that established elements of the offense. The judge responded that he was attempting to clear up any confusion in the distances between the Miller Homes and 137 Monmouth Street.

On appeal, Johnson reprises his objection, contending that the judge's questions regarding the measurements of the distance between the apartment building and the Miller Homes improperly "served to embellish upon the facts establish[ing]" the offense of possession with intent to distribute within 500 feet of a public facility. We disagree.

A judge, "in accordance with [the] law and subject to the right of a party to make timely objection, may . . . interrogate any witness." N.J.R.E. 614. "The intervention of a trial judge in the questioning of a witness is both a power and a duty, and forms part of the judiciary's general obligation to ensure a fair trial 'conducted in [an] orderly and expeditious manner.'" State v. Medina, 349 N.J. Super. 108, 130-31 (App. Div.) (quoting State v. Laws, 50 N.J. 159, 181 (1967)), certif. denied, 174 N.J. 193 (2002). Thus, a trial judge is authorized "to propound questions to qualify a witness's testimony and to elicit material facts on their own initiative and within their sound discretion." Id. at 131; see also State v. Guido, 40 N.J. 191, 207-08 (1963). Here, the judge questioned Yard in order to clear up any confusion about the measurements taken to insure that the jury accurately understood the facts.

Johnson next contends that the judge erred in failing to sua sponte charge the jury on the lesser-included offense of maintaining a nuisance, N.J.S.A. 2C:33-12b. Under N.J.S.A. 2C:33-12b, a person who "knowingly conducts or maintains any premises, place or resort where persons gather for purposes of engaging in unlawful conduct" is guilty of maintaining a nuisance. (emphasis added). "An unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). A trial judge need not "'scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty.'" State v. Brent, 137 N.J. 107, 118 (1994) (quoting State v. Sloane, 111 N.J. 293, 302 (1988)). "The trial court does not . . . have the obligation on its own meticulously to sift through the entire record" to find appropriate charges. Choice, supra, 98 N.J. at 299.

By contrast, where a defendant requests a charge on a lesser offense, the trial judge must focus on the facts in evidence "to ensure that there is a rational basis for a jury to reject the greater charge and convict of the lesser" charge. Brent, supra, 137 N.J. at 116 (quoting Cannel, New Jersey Criminal Code Annotated, comment 13 on N.J.S.A. 2C:1-8e (1993)). Moreover, where the evidence reasonably supports a defendant's request for a jury charge on a lesser-included offense, a trial court's failure to give the charge is reversible error. Id. at 118. Simply stated, there was no rational basis in the evidence, much less a clear indication that the apartment at 137 Monmouth Street was maintained as a place where persons gather for purposes of engaging in unlawful conduct. There was no error.

Equally unavailing is Johnson's contention that the judge should have merged the Count Ten conviction of maintaining a narcotics nuisance, N.J.S.A. 24:21-21a(6) and N.J.S.A. 2C:2-6, with the Count Four and Count Eight second-degree convictions of possession of marijuana and cocaine with intent to distribute within 500 feet of a public facility, N.J.S.A. 2C:35-7.1. Under N.J.S.A. 24:21-21a(6), it is unlawful "[k]nowingly to keep or maintain any . . . dwelling house, [or] building . . . which is used for the keeping or selling of" controlled dangerous substances. By contrast, a person violates N.J.S.A. 2C:35-7.1 by "possessing with intent to distribute a controlled dangerous substance . . . in, on or within 500 feet of . . . a public housing facility."

The constitutional proscription against cumulative punishment for the same offense, without contrary legislative authority, is absent where "each [offense] requires proof of an additional fact which the other does not." State v. Dillihay, 127 N.J. 42, 48 (1992) (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932)). The failure to merge maintaining a narcotics nuisance with possession with intent to distribute within 500 feet of a public facility was proper because maintaining a narcotics nuisance requires proof of the use of a building to sell or maintain illegal drugs, whereas the possession with intent to distribute does not. Further, the possession with intent to distribute offense requires that the illegal conduct occur within 500 feet of a public facility, while such is not an element in the offense of maintaining a narcotics nuisance.

Finally, the State concedes and agrees with Johnson that the judgment of conviction incorrectly assessed the aggregate Violent Crimes Compensation Board, Safe Neighborhood Service Fund, and Law Enforcement Officers Training and Equipment Fund penalties. Accordingly, we remand to correct the penalties imposed as reflected on Johnson's judgment of conviction. In all other respects, we affirm.

 

 

Back-to-back appeals, consolidated for purposes of this opinion.

The trial court must undertake a different analysis depending upon whether the State or defendant requests a jury charge for a lesser-included offense. When it is the State's request, the existence of a lesser-included offense should be analyzed largely on the basis of elements in the indictment to make sure those elements are "included" in the indictment so that the defendant has had fair notice of potential liability on the charge. Cannel, New Jersey Criminal Code Annotated, comment 12 on N.J.S.A. 2C:1-8e (2006); Sloane, supra, 111 N.J. at 299; State v. Graham, 223 N.J. Super. 571, 577 (App. Div.), certif. denied, 113 N.J. 323 (1988).

(continued)

(continued)

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A-4535-03T4

October 5, 2006