STATE OF NEW JERSEY v. DARRAL V. BLACK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1322-07T41322-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARRAL V. BLACK,

a/k/a KENNY BLACK,

KENNETH GONZALES,

KENNY GONZALES,

DARRAL VAUGHN BLACK, and

DARRAL VAUGH BLACK,

Defendant-Appellant.

_______________________________

 

Submitted January 6, 2009 - Decided

Before Judges Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 03-03-0364 and 06-07-1044.

Yvonne Smith Segars, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of third-degree conspiracy, N.J.S.A. 2C:5-2 (Count One); third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (Count Two); and third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:36-5b(3) (Count Three). On July 2, 2007, the trial court sentenced defendant to an extended term pursuant to N.J.S.A. 2C:43-6f of seven years of imprisonment with a three and one-half year period of parole ineligibility. The court merged Counts One and Two with Count Three. On the same day, following defendant's plea of guilty to a charge of violation of probation under a separate indictment, the court sentenced defendant to a concurrent term of five years of imprisonment. The court also imposed all appropriate fines and penalties.

On appeal, defendant argues:

POINT I.

THE ABSENCE OF A LIMITING INSTRUCTION REGARDING THE GUILTY PLEA OF ALLEGED CO-CONSPIRATOR AND ACCOMPLICE BROWN DEPRIVED [DEFENDANT] OF DUE PROCESS OF LAW AND A FAIR TRIAL. [U.S. CONST. amend. XIV; N.J. CONST. art. I, 1, 9 and 10.] (NOT RAISED BELOW).

POINT II.

THE COURT'S INACCURATE AND CONFUSING CHARGE LESSENED THE STATE'S BURDEN OF PROOF, ACCUSED [DEFENDANT] OF AN UNINDICTED CRIME, AND WAS NOT TAILORED TO THE FACTS OF THIS CASE, DENYING [DEFENDANT] A FAIR TRIAL. [U.S. CONST. amends. V, VI AND XIV; N.J. CONST. art. I, 1, 9 and 10.] (NOT RAISED BELOW).

A. THE CHARGE IMPROPERLY REDUCED THE STATE'S BURDEN OF PROOF TO A STANDARD LOWER THAN BEYOND A REASONABLE DOUBT, THEREBY VIOLATING [DEFENDANT'S] RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. [U.S. CONST. amends. V, VI AND XIV; N.J. CONST. art. I, 1, 9 and 10.]

B. THE COURT MISINFORMED THE JURY THAT [DEFENDANT] WAS ACCUSED OF DISTRIBUTION OF A CDS, VIOLATING HIS RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. [U.S. CONST. amends. V, VI AND XIV; N.J. CONST. art. I, 1, 9 and 10.]

C. THE ACCOMPLICE CHARGE WAS NOT TAILORED TO THE FACTS OF THIS CASE, VIOLATING [DEFENDANT'S] RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. [U.S. CONST. amend. XIV; N.J. CONST. art. I, 1.]

POINT III.

THE COURT'S IMPROPER LIMITING INSTRUCTION ON [DEFENDANT'S] ARREST WARRANT DEPRIVED HIM OF A FAIR TRIAL. [U.S. CONST. amends. VI and XIV; N.J. CONST. art. I, 10.] (PARTIALLY RAISED BELOW).

POINT IV.

THE INTRODUCTION OF HEARSAY FROM GAIL DEPRIVED [DEFENDANT'S] RIGHTS TO DUE PROCESS OF LAW AND CONFRONTATION. [U.S. CONST. amends. VI and XIV; N.J. CONST. art. I, 1, 9 and 10.] (NOT RAISED BELOW).

A. THE STATEMENTS OF GAIL, TESTIFIED TO BY MR. BROWN, AND OFFERED FOR THEIR TRUTH, WERE INADMISSIBLE HEARSAY.

B. GAIL'S HEARSAY STATEMENTS WERE INADMISSIBLE UNDER CRAWFORD V. WASHINGTON, 541 U.S. 36 [ 124 S. Ct. 1354, 158 L. Ed. 2d 177] (2004).

POINT V.

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.

We agree with defendant's argument in Point I and reverse.

I.

On April 12, 2006, members of the South Brunswick Police Department set up surveillance of the Red Roof Inn Motel (RRI) to investigate possible drug activities at the facility. Several police officers sat in an unmarked van in the RRI's parking lot, and Detectives James Ryan and John Avalone waited in an unmarked police vehicle in an adjacent gasoline station parking lot.

On the same day, co-defendant Brown received a telephone call from Gail Jochman, a female friend, asking if Brown wanted "to hang out with her that evening" at the RRI. Jochman also asked Brown whether he knew anyone from whom she could purchase cocaine. In turn, Brown telephoned defendant and asked him for a ride to the RRI and for some "party favors." According to Brown, both parties understood that he was asking defendant to supply him with cocaine. Defendant replied that they could "work something out," which Brown understood "as a confirmation in a sense."

At approximately 8:30 p.m., defendant and Amanda Toppins, a friend, picked up Brown in New Brunswick and drove him to the RRI. During the ride, Brown told defendant how much Jochman was willing to spend for the cocaine. Defendant acknowledged that he understood. On arrival at the RRI, Brown telephoned Jochman to confirm that she was going to meet him there. Jochman told him that she would, and gave Brown her room number at the RRI. Meanwhile, defendant, Toppins and Brown waited in defendant's car for Jochman to arrive. After approximately ten to fifteen minutes, Myles Fink, another friend of Brown, arrived in the parking lot. According to Brown, Fink was going to "hang out" with him and Jochman for a little while and then drive Brown home. On observing Fink, Brown exited defendant's vehicle and proceeded to Fink's vehicle.

Eventually, Jochman arrived at the RRI, and she and Brown began to walk toward her room. Based on the surveillance of "a male and a female interacting by a motel room" and "some people in a vehicle in the parking lot," the police "decided to move in." Specifically, while the officers in the van detained Brown and Jochman, Detectives Ryan and Avalone pulled into RRI's parking lot. At that time, Jochman and Brown were in custody. Accordingly, Ryan and Avalone proceeded toward defendant's car where defendant and Toppins were in the back seat. Because Avalone recognized defendant as having outstanding traffic warrants, he and Ryan removed defendant and Toppins from the vehicle and arrested defendant.

The police searched Brown, but found no drugs or money on his person. A search of defendant disclosed that he had $117 in his possession. After Ryan and Avalone checked out another vehicle further down in the parking lot, they returned to defendant's vehicle, where Ryan observed four plastic bags containing a white powder substance on the console between the driver's and passenger's seats. Based on his training and experience, Ryan formed the opinion that the bags contained cocaine. As Ryan opened the passenger's door to secure the contraband, he observed six additional bags similarly packaged to the four that were on the console containing what appeared to Ryan as cocaine.

The police transported Brown and defendant to the police headquarters in the same patrol car. According to Brown, once in the car, defendant asked him to take the blame for the drugs found in defendant's vehicle. On arriving at police headquarters, Brown initially admitted that the drugs belonged to him. However, after the police informed Brown that both he and defendant would be charged with possession of the drugs, Brown recanted and told the police that he had asked defendant for a ride to the RRI and to provide him with cocaine.

Prior to trial, Brown entered into a negotiated plea agreement with the State. Brown pled guilty to Count One of the indictment and agreed to testify against defendant in exchange for receiving probation.

II.

Defendant did not raise the arguments presented in Points I, II, and IV during the trial. Accordingly, we review those issues under the plain error rule, R. 2:10-2. A reviewing court will reverse on the basis of an unchallenged error, only if the error was "clearly capable of producing an unjust result." Ibid.; State v. Castagna, 187 N.J. 293, 312 (2006); State v. Macon, 57 N.J. 325, 337 (1971). To reverse for plain error, the reviewing court must determine that there is a real possibility that the error led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.

In Point I, defendant argues that the trial court erred in not instructing the jury that co-defendant Brown's guilty plea to Count One could not be considered as substantive evidence of defendant's guilt, but only for credibility purposes. The State acknowledges that the trial court did not provide a limiting instruction regarding the use of Brown's guilty plea. However, the State counters that the error was harmless. In Point II, defendant argues the trial court improperly provided the jury with "inaccurate and confusing" final jury instructions that reduced "the State's burden of proof to a standard lower than beyond a reasonable doubt"; misinformed the jury that defendant was accused of a non-indicted offense of distribution of a CDS; and violated defendant's right to a fair trial by not tailoring the accomplice liability charge to the facts of the case. The State counters that when viewed in its entirety, the final jury instructions were correct. We disagree with defendant's argument in Point II.

Under Rule 1:7-2, a defendant waives the right to contest an instruction on appeal "if he [or she] does not object to the instruction." State v. Torres, 183 N.J. 554, 564 (2005). Thus, the court will reverse on the basis of unchallenged error only if the error was "clearly capable of producing an unjust result." R. 2:10-2.

Proper jury instructions "are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The court must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. The jury charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. "However, a defendant is not entitled to have the jury instructed in his [or her] own words." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff'd, 158 N.J. 149 (1999). In assessing the propriety of the jury charge, we examine the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005).

After examining the entire charge, we are satisfied that it was neither ambiguous nor misleading, and properly informed the jury of the appropriate principles of law. However, we agree with defendant's agreement in Point I that the trial court erred in failing to provide the jury with a limiting instruction as to its consideration of Brown's plea to Count One.

Generally, "the guilty plea of a co-defendant is inadmissible in the separate trial of another defendant as substantive evidence of the latter's complicity." State v. Stefanelli, 78 N.J. 418, 430 (1979). The underpinning of that principle is that a defendant on trial "'is entitled to have the question of his guilt determined upon the evidence against him, not on whether a Government witness or co-defendant has plead [sic] guilty to the same charge.'" Ibid. (quoting Babb v. United States, 218 F.2d 538, 542 (5th Cir. 1955)); United States v. Toner, 173 F. Supp. 2d 140, 142 (3d Cir. 1949).

An exception to this principle is when evidence of a co-defendant's guilty plea is admitted for the purpose of affecting the testifying co-defendant's credibility. Id. at 433; State v. Murphy, 376 N.J. Super. 114, 122 (App. Div. 2005). However, when the evidence is admitted for this purpose, the court is obligated "to give the jury a proper cautionary instruction as to the limited use of this testimony for credibility purposes, even in the absence of . . . a request therefor by defendant[]." Stefanelli, supra, 78 N.J. at 434. The limiting instruction must also define "'the prohibited use of the testimony,' as substantive evidence of the defendant's guilt." State v. B.M., 397 N.J. Super. 367, 379 (App. Div. 2008) (quoting Murphy, supra, 376 N.J. Super. at 122-23).

Here, Brown testified that he pled guilty to a charge of conspiracy arising out of the same events that led to defendant's indictment. Part of his plea agreement with the State was to provide "truthful testimony" at defendant's trial. Brown testified to the events that led up to him entering defendant's motor vehicle where the drugs were found. We are satisfied that without a proper limiting instruction, the jury was free to consider Brown's plea as substantive evidence against defendant. "'If A's admission that he conspired with B is believed, it is pretty hard to avoid the conclusion that B must have conspired with A.'" Stefanelli, supra, 78 N.J. at 430-31 (quoting Toner, supra, 173 F. 2d at 142). Because we conclude that this error was "clearly capable of producing an unjust result," R. 2:10-2, we reverse.

III.

Although none of defendant's remaining arguments are of sufficient merit to warrant reversal by themselves, we address the issues raised for purpose of retrial. In Point III, defendant argues that the trial court provided the jury with incorrect instructions concerning its use of Detective Ryan's testimony that "Detective Avalone was aware that Mr. Black had outstanding traffic warrants. And he was taken into custody at this time." Defendant contends that the court failed to provide the jury with a limiting instruction as to use of that evidence when the testimony was presented. Defendant asserts that the court's final charge improperly instructed the jury that it could consider the evidence as an illustration "why the officers were on the scene of the [RRI], which is where the arrest on April 12, 2006[] came about." "Specifically, why the officers are on the scene, and removed him from his vehicle. You may not consider it for any other purpose." We agree that the trial court improperly instructed the jury as to its consideration of Detective Ryan's testimony.

Contrary to the court's final instructions, the evidence was not proffered for the purpose of explaining why the police were at the RRI; but rather, the evidence was offered only to explain why the police ordered defendant from his vehicle and placed him in custody. In addition, Detective Ryan testified that the police were at the RRI for "a set-up . . . involving an investigation into some drug activity at the hotel[.]" By mistakenly instructing the jury that they could use the evidence for the purpose of understanding why the police were at the RRI, the jury could reasonably have assumed that the police knew defendant from prior encounters involving drugs, and were waiting to arrest him for possession of drugs at the RRI.

IV.

Defendant argues next that the trial court improperly admitted Brown's testimony that he had received a telephone call earlier in the evening from Jochman inquiring whether he knew of anyone who could supply her with cocaine. Defendant contends that the testimony was improperly introduced by the State to prove its theory that Brown was only a middleman, and defendant was the true supplier of the drugs. Defendant asserts that Brown's statement was admitted in violation of the hearsay rule. We agree. A trial court's discretionary decision concerning whether to admit or exclude evidence is reviewed under an abuse of discretion standard. State v. Ramseur, 106 N.J. 123, 266 (1987). "To demonstrate abuse of such discretion, the danger of undue prejudice must outweigh probative value so as to divert jurors 'from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" State v. Moore, 122 N.J. 420, 467 (1991) (quoting State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div.), certif. denied, 111 N.J. 653 (1988)).

"[A] statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted" is hearsay. N.J.R.E. 801(c). Unless admissible under the rules of evidence or by other law, "hearsay is not admissible" at trial. N.J.R.E. 802. Here, no exception exists for the admission of the complained of testimony that was offered for the truth of the matter asserted.

 
Reversed.

Count One of the indictment also charged co-defendant Donald L. Brown with conspiracy "to commit the crimes of unlawful possession of a controlled dangerous substance and/or unlawful possession of a controlled dangerous substance with intent to distribute and/or distribution of a controlled dangerous substance."

(continued)

(continued)

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A-1322-07T4

July 23, 2009