STATE OF NEW JERSEY v. JIMMY L. WHITE a/k/a MARK WHITE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5368-03T45368-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JIMMY L. WHITE

a/k/a MARK WHITE,

Defendant-Appellant.

_________________________________________________

 

Submitted March 28, 2006 - Decided June 28, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Cape May County, 98-02-0103.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Richard Sparaco,

Designated Counsel and on the brief).

Zulima V. Farber, Attorney General,

attorney for respondent (Leslie-Ann

Justus, Deputy Attorney General, of counsel

and on the brief).

Jimmy L. White, appellant, filed a pro se

supplemental brief.

PER CURIAM

Defendant Jimmy White appeals from his conviction for third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and

-5b(3) (count one), third-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5-2, 2C:35-5a(1) and -5b(3) (count two), third-degree distribution of cocaine within 1000 feet of a school, N.J.S.A. 2C:35-5a(1) and -7 (count three), third-degree conspiracy to distribute cocaine within 1000 feet of a school, N.J.S.A. 2C:5-2, 2C:35-5a(1) and -7 (count four), third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count five) and possession of a police radio, N.J.S.A. 2C:33-22 (count six). He also appeals from the extended term sentence imposed on him of ten years in custody with a five-year period of parole ineligibility.

On appeal, defendant presents the following arguments through counsel:

POINT I - DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE ADMISSION INTO EVIDENCE OF THE CODEFENDANT'S HEARSAY STATEMENTS.

POINT II - THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO ALL OF THE INADMISSIBLE HEARSAY REFERENCES MADE TO THE DEFENDANT'S NAME BY THE POLICE, BASED UPON INFORMATION THEY HAD RECEIVED FROM THE CODEFENDANT AND THE CONFIDENTIAL INFORMANT, NEITHER OF WHOM TESTIFIED AT TRIAL IN THE STATE'S CASE IN CHIEF.

POINT III - THE VERDICT OF GUILTY OF ALL COUNTS IN THE INDICTMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IV - DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED BASED UPON THE ILLEGAL ARREST OF THE DEFENDANT.

POINT V - DEFENDANT'S SENTENCE TO THE MAXIMUM TIME OF TEN YEARS WITH A PAROLE INELIGIBILITY TERM OF FIVE YEARS WAS EXCESSIVE.

POINT VI - THE SENTENCE OF TEN YEARS, FIVE YEARS NO PAROLE WAS EXCESSIVE.

Additionally, in a pro se submission, defendant draws our attention to various "contradictions of State's brief."

We affirm defendant's conviction, vacate his sentence and remand the case to the trial court for resentencing.

I.

The State's evidence at trial disclosed that on January 24, 1998, Wildwood Narcotics Enforcement Detective Kenneth Gallagher received a call from a confidential informant (CI) with whom he had worked in the past. The CI advised Gallagher that she could arrange a significant purchase of crack cocaine from a source whom she identified as Jimmy White. Buy-bust surveillance and back-up teams were assembled, and Investigator Michael Kelly of the Cape May County Prosecutor's Office was enlisted to pose as the buyer. He was directed to purchase one-half ounce of crack cocaine for $650 from a black male named Jimmy Lee White.

Kelly, wearing a transmitting device, proceeded to Wildwood's Garden Park, disguised as a fisherman, in the company of the CI. After approximately fifteen minutes, they were approached by Glenda Sue Tozer, who stated that Jimmy wanted them to go to his apartment. When Kelly and the CI refused, Tozer directed the two to wait in the park for her return.

The surveillance team observed Tozer, riding the CI's bicycle, approach to 400 block of Magnolia Avenue in Wildwood. Shortly thereafter, she returned with a clear plastic bag, inside of which were multiple small green ziplock baggies containing what appeared to be crack cocaine, and she told Kelly and the CI that "this is what Jimmy gave me." When Kelly pulled out the purchase money and gave a verbal signal to the surveillance team, it converged on the location and arrested Kelly, the CI and Tozer. Kelly never saw defendant during the purported buy.

After Tozer's arrest, she informed the police that she had obtained the drugs from defendant at 419 Magnolia Avenue, Apartment 4. When the surveillance team then observed defendant leaving that location, they arrested him and transported him to police headquarters.

At headquarters, defendant was read his Miranda rights. Defendant acknowledged them, waived his right to counsel, and orally admitted, among other things, that he was the source of the drugs that Tozer sold to Kelly, that he had purchased them on the previous night in Philadelphia and transported them to Wildwood for resale, and that Tozer was acting as his courier. However, defendant denied having drugs in his apartment. At the request of the police, he executed a form indicating his consent to search that apartment.

The search disclosed one baggie of crack cocaine packaged similarly to the drugs that Tozer had sold to Kelly, a police scanner, defendant's birth certificate, and a sifter commonly used to cut narcotics.

At trial, the State presented testimony by Investigator Kelly, another investigator employed by the Prosecutor's office named Michael Hickman, and Detective Gallagher. Defendant then offered on his behalf an alibi witness, Denise Bawsel, and Tozer, who was not tried with him. Tozer testified that a person named "Rob" was the source of the drugs, which he kept in a closet at defendant's apartment, and that she had taken the drugs for purposes of sale without Rob's knowledge. On cross-examination by the State, Tozer denied her prior statements to the police implicating defendant. Detective Gallagher was then recalled by the State as a witness to rebut Tozer's version of events by recounting her statements on the day of the incident.

Following the jury's return with a verdict of guilty on all counts, defendant collapsed and was taken to the hospital. Although he was scheduled for sentencing on March 29, 1999, he absconded from the hospital and remained a fugitive until he was arrested in late 2001 on drug charges in Pennsylvania. His motion for a new trial was denied as untimely at the time of his sentencing, which occurred on March 12, 2004.

I.

In his first argument on appeal, defendant contends that the court erred in admitting Tozer's hearsay inculpatory statements under the co-conspirator exception to the hearsay rule, N.J.R.E. 803(b)(5), which authorizes the use of "a statement made at the time the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan." He notes that Tozer was not called as a State's witness, but only as a witness for the defense, and that Tozer's pre-arrest hearsay statements were admitted in support of the State's case without a finding that they were reliable or that there was other evidence substantial enough to engender a belief in the conspiracy's existence.

In order for a co-conspirator's hearsay statement to be admitted pursuant to N.J.R.E. 803(b)(5), there must be proof that the statement was made in the course of and in furtherance of the conspiracy, and evidence independent of the hearsay of the existence of the conspiracy and defendant's relationship to it. State v. Savage, 172 N.J. 374, 402 (2002).

The rationale for the co-conspirator exception is that "because conspirators are substantively liable for the acts of their co-conspirators, they are equally responsible for statements by their confederates to further the unlawful plan." State v. Harris, 298 N.J. Super. 478, 487 (App. Div.), certif. denied, 151 N.J. 74 (1997).

[Ibid.]

In accordance with the dictates of Savage, a trial court "must make a preliminary determination of whether there is independent proof of the conspiracy." Id. at 403. In this case, the judge did not make such a determination overtly. However, the record reflects clear evidence of such proof in testimony regarding the oral confession given by defendant to the police shortly after his arrest, which implicated both himself as seller and Tozer as courier of the drugs at issue. While that confession was not recorded, it was witnessed by Detective Gallagher and Investigator Hickman, both of whom testified at trial. The content of the oral confession was not substantially challenged through the cross-examination of either witness.

In this circumstance, we find it reasonable for the court to have concluded that testimony regarding the confession "engender[ed] a strong sense of [the] inherent trustworthiness" of the hearsay statements by Tozer recounted at trial. Ibid. Further, the statements by Tozer, made to the CI and Kelly while the drug sale was in progress, by their nature reflected Tozer's purpose to further the conspiracy. As a result, the conditions of N.J.R.E. 803(b)5 were met. We find no ground to distinguish references by Tozer to "Jimmy" from the remainder of her inculpatory statements recounted at trial.

II.

Defendant argues next that the verdict against him should be reversed because of the constant iteration of the name "Jimmy White" in the examination of the State's witnesses at trial, when Tozer had only identified "Jimmy."

A reference to defendant's last name first occurred in the direct testimony of Investigator Kelly, who stated that the name had been provided by the confidential informant, a person who did not testify at trial. An objection to the use of the name was made by the defense on the ground that it was prohibited by State v. Bankston, 63 N.J. 263, 268 (1973), as the result of the absence of any opportunity for cross-examination. The objection was properly sustained, and the court gave a curative instruction to the jury that it could not consider the comment in determining defendant's guilt. We presume that the jury understood and was willing to abide by that instruction. State v. Burris, 145 N.J. 509, 531 (1996).

Thereafter, however, the defense elicited the same testimony by asking Investigator Kelly:

Q. And all of this has occurred at least until the - Glenda Tozer came up, based upon the concept that the undercover confidential informant has already made the arrangements with Jimmy White?

A. Yes.

Q. And it's your understanding at this point that she [the confidential informant] knows Jimmy White, particularly rather than just some guy?

A. That's correct.

Q. So that you're operating under the theory that she, knowing Jimmy White, has talked with Jimmy White, correct?

A. Yes.

Q. And that they have made up the deal to occur at a certain time and place, right?

A. Yes.

The transcript of cross-examination thereafter is replete with references by defense counsel to Jimmy White and Mr. White, utilized by the defense to claim that the informant had been set up by the police as a ruse to obtain the arrest of defendant that they had been unable to accomplish by other investigatory means.

The tactics employed by the defense were acknowledged by the trial court which, as the result of the examination by defense counsel and his closing arguments, observed to the jury:

Any testimony that I may have had occasion to strike is not evidence and shall not enter into your final deliberations. I believe initially there was some testimony stricken, although as it turned out during the trial, it ended up being developed.

Having objected to the disclosure of defendant's full name through testimony by Kelly regarding the statements of the CI, and then having conducted a detailed cross-examination of Kelly regarding those statements, during which defense counsel again and again elicited the previously objected-to name, we find any objection to the use of defendant's full name to have been waived. Pettijohn v. Hall, 599 F.2d 476, 481 (1st Cir.), cert. denied, 444 U.S. 946, 100 S. Ct. 308, 62 L. Ed. 2d 315 (1979) (a defendant who introduces testimony that is intimately related with previously suppressed testimony will be deemed to have waived his objection to the introduction of that suppressed testimony); see also State v. James, 144 N.J. 538 (1996).

III.

We decline to consider defendant's argument that the jury's verdict was against the weight of the evidence. Our consideration of such an argument on appeal requires a showing that a motion for a new trial was made in the trial court. R. 2:10-1. Although such a motion was made in this case, it was not made within the ten-day period mandated by R. 3:20-2, but instead, was made five years later after defendant, having absconded, had been taken into custody. The trial court deemed the motion untimely. We find no basis to disturb that conclusion or to consider defendant's untimely motion as constituting compliance with R. 2:10-1. Moreover, in light of the confessions of defendant and Tozer, which we find to have been properly obtained, we find no merit in defendant's position in this regard. State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985).

IV.

We likewise reject defendant's argument that the police lacked probable cause for his arrest, and thus his confession and consent to search his apartment were invalid as fruit of the poisonous tree. At the time of the arrest, an identified confidential informant who had proven to be reliable in the past had identified defendant by name as a drug dealer and had offered to set up a drug sale by him. When courier Tozer appeared, Tozer identified the dealer by his first name of Jimmy, requested that the CI and Kelly return to Jimmy's apartment and, when they declined to do so, went there herself while being followed by a police surveillance team to the block where defendant lived. Following Tozer's return with the drugs and her arrest during the course of their sale, Tozer gave a statement in which she identified defendant by his full name and gave his address correctly as 419 East Magnolia, apartment 4.

The standards for determining probable cause to arrest have recently been stated by the Supreme Court:

We have often stated that the probable cause standard is not susceptible of precise definition. Nevertheless, our jurisprudence has held consistently that a principal component of the probable cause standard "'is a well-grounded suspicion that a crime has been or is being committed.'" "Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." "The substance of all the definitions of probable cause is a reasonable ground for belief of guilt."

[State v. Moore, 181 N.J. 40, 45-46 (2004) (citations omitted).]

We find a reasonable ground for a belief in guilt to have been established by the evidence known to the police at the time of defendant's arrest.

The search of defendant's apartment occurred with his consent following his lawful arrest, and thus did not violate the Fourth Amendment. State v. Birkenmeier, 185 N.J. 552, 564 (2006).

V.

As a final matter, we address defendant's extended term sentence of ten years of imprisonment with a five-year parole disqualifier, imposed pursuant to N.J.S.A. 2C:43-6f and N.J.S.A. 2C:43-7c. We find the imposition of an extended term sentence, premised upon defendant's two prior convictions for cocaine distribution, to have been permissible under our decisions in State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005); State v. McMillan, 373 N.J. Super. 27, 28 (App. Div. 2004), certif. denied, 192 N.J. 628 (2005); and State v. Dixon, 346 N.J. Super. 126, 139-41 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002). However, because the ten-year sentence exceeded the presumptive term then in effect, we vacate the sentence and remand the matter for resentencing pursuant to State v. Natale, 184 N.J. 458, 487-89 (2005). In light of our remand, we decline to address defendant's argument that his sentence was excessive.

Defendant's conviction is affirmed; his sentence is vacated and the matter remanded to the trial court for resentencing.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The content of Tozer's statements to the police after her arrest were denied by Tozer at trial, and thus those post-arrest statements were properly admitted pursuant to N.J.R.E. 607.

The voluntariness of defendant's written consent, set forth on a waiver form, was not raised as an issue. See State v. White, 305 N.J. Super. 322, 331 (App. Div. 1997) (finding it unnecessary to address fact issue of voluntariness when it had not been raised).

(continued)

(continued)

14

A-5368-03T4

June 28, 2006