STATE OF NEW JERSEY v. HAKIM JONES

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3763-07T43763-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HAKIM JONES,

Defendant-Appellant.

_______________________________________

 

Submitted May 5, 2009 - Decided

Before Judges Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-01-0062.

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

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Brian Pollock, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Hakim Jones was tried to a jury, found guilty of possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10a(1), and sentenced to five years of incarceration. Defendant appeals from the judgment of conviction entered on November 16, 2007. For the reasons that follow, we affirm.

I.

Defendant was charged by an Essex County grand jury with third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(3) (count two); third-degree distributing, dispensing or possessing of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); and second-degree distributing, dispensing or possessing of a CDS within 500 feet of a public housing facility, public park or public building, N.J.S.A. 2C:35-7.1 (count four).

At the trial, the State presented testimony from Detective Phillip Turzani (Turzani) of the Newark Police Department. Turzani testified that, on August 5, 2005, at about 9:45 p.m., he was on assignment in the city with several other police officers. They decided to do a "walk through" of the courtyard of Georgia King Village, a housing complex known as a high crime area.

Turzani explained that the officers decided to enter the courtyard to look for illegal narcotics activity, determine whether anyone was armed with a weapon, and to see whether anyone was committing a violent crime in the area. Turzani and two officers entered the courtyard from one location, while three other officers entered from a different location.

Turzani testified that, as he and the other officers entered the courtyard, their attention was drawn to defendant. Turzani observed defendant hand a suspected item of narcotics to another person in exchange for paper currency. Turzani stated that defendant was in an area illuminated by several lights. The officers decided to approach defendant.

Turzani said that, as they approached, defendant "began to place several items into his rear pants area." Turzani stated that the items were suspected cocaine vials. The officers placed defendant under arrest and, as they were doing so, the vials fell from within the pocket of defendant's pants. The officers secured the vials. Defendant also was found in possession of cash, consisting of paper currency and coins. On cross-examination, Turzani stated that the alleged buyer of the illegal narcotics "got away[.]"

The State also presented testimony from Detective Reginald Holloway (Holloway), who is employed by the Essex County Sheriff's Department and was assigned to its Bureau of Narcotics. Holloway testified that he has participated in more than 5,000 narcotics investigations and has had the opportunity to seize illegal narcotics on thousands of occasions. Holloway was qualified as an expert in the field of narcotics.

Holloway stated that vials are commonly used for the packaging and distribution of cocaine. Holloway's direct testimony included the following exchange with the prosecutor:

Q. Detective, please assume the following facts are true for the purposes of a hypothetical.

A. Yes, ma'am.

Q. Police officers observed two individuals outdoors interacting together. Individual A[.] hands some objects to Individual B. In exchange, Individual B hands Individual A paper currency. After completing the exchange, Individual B walks away. Shortly thereafter, [the] officers approached Individual A and they find in his possession the following: 19 vials of cocaine, $68 in U.S. currency [which included] . . . two $20 bills, [and] eighteen $1 bills.

In your expert opinion, based upon your training and experience, can you give an opinion as to the 19 vials of cocaine taken from Individual A?

A. Yes, I can, ma'am.

Q. And what is your opinion, sir?

A. Ma'am, it's my opinion that Subject A possessed the 19 vials of cocaine with the intent to further distribute for monetary gain.

Q. And, sir, would your opinion be the same in light of the fact that it was 19 vials?

A. And based on the observations made by [the] officers within your hypothetical. My opinion wouldn't change.

Q. And if at all, what is the significance of the $68 in [currency]?

A. Ma'am, the currency -- it's my opinion that the currency are the proceeds of illegal narcotic distribution prior to the observed sale or transaction by said officers.

The parties agreed to the admission into evidence of a laboratory report, which indicated that vials seized from defendant contained cocaine. The parties also agreed to the admission of a letter which indicated that the place where defendant was apprehended was less than 1,000 feet from a school. With the admission of this evidence, the State rested.

Defendant testified on his own behalf. He stated that on August 5, 2005, at about 9:00 or 9:30 p.m., he was at his mother's residence in Georgia King Village. Defendant said that, at some point, he decided to go to the store to get some drinks. Defendant stated that the store is about one hundred feet away from his mother's residence.

Defendant left the house and he was stopped by an officer who asked him for identification. According to defendant, the officer started to look through his belongings and showed him "some bottles[.]" Defendant testified that the "bottles" were not his and he did not know where they had come from. Defendant asserted that he had not been in possession of any drugs and did not sell drugs to anyone.

Defendant admitted that he was in possession of about $68 in cash. He also admitted that he previously had been convicted of crimes "[p]robably like three, four, [or] five times." On cross-examination, defendant said that he did not keep track of his convictions, but conceded that he had five or six.

The jury found defendant guilty of possession of a CDS, but not guilty of the other charges. He was sentenced on November 16, 2007. The court denied the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3a. The court found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The court found no mitigating factors.

The court sentenced defendant to a term of five years of incarceration, imposed a $1,000 Drug Enforcement and Demand Reduction penalty, a Violent Crimes Compensation Board assessment of $50, a $50 forensic laboratory fee, a $30 penalty for the Law Enforcement Officers Training Fund, and a $75 assessment for the Safe Neighborhoods Service Fund. Defendant's driving privileges were suspended for twelve months and he was given appropriate jail credits.

Defendant appeals and raises the following issues for our consideration:

POINT I

THE TRIAL COURT ERRED BY PERMITTING THE STATE'S EXPERT TO TESTIFY AS THOUGH HE WERE A FACT-WITNESS THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)

POINT II

THE ADMITTANCE INTO EVIDENCE OF REMOTE CRIMINAL CONVICTIONS TO AFFECT THE DEFENDANT'S CREDIBILITY CONSTITUTED A CLEAR ABUSE OF DISCRETION AND VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)

POINT III

THE TRIAL COURT'S FAILURE TO DECLARE A MISTRIAL AFTER THE JURY ANNOUNCED THAT IT COULD NOT REACH A VERDICT, AND ITS SUBSEQUENT COERCIVE SUPPLEMENTAL INSTRUCTION VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)

POINT IV

CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)

POINT V

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW)

II.

Defendant first argues that the trial court erred by permitting the State's expert to testify "as though he were a fact-witness." Because this contention was not raised in the trial court, we consider this argument under the plain error standard in Rule 2:10-2. We must determine whether the court erred and, if so, whether the error was "clearly capable of producing an unjust result[.]" Ibid.

Testimony by an expert about methods employed by drug traffickers in the packaging and distribution of illegal drugs is permissible under N.J.R.E. 702. State v. Reeds, 197 N.J. 280, 290 (2009). "Such testimony, when provided through an expert, aids a jury's understanding of the evidence adduced in a drug prosecution and often may be necessary to 'explain the significance of the properties, packaging and value of illegal drugs.'" Ibid. (quoting State v. Odom, 116 N.J. 65, 76 (1989)).

The State may ask its expert to express an opinion as to whether the drugs were possessed for purposes of distribution but the expert may not offer an opinion on the defendant's guilt. Id. at 291 (citing Odom, supra, 116 N.J. at 78-79). The prosecutor may employ a hypothetical question to elicit testimony as to the intent or purpose with which illegal drugs are possessed. Ibid. (citing Odom, supra, 116 N.J. at 76-81). "'The question must be limited to the facts adduced at trial.'" Ibid. (quoting State v. Summers, 176 N.J. 306, 314 (2003)).

There are, however, limits upon the use of expert testimony in this context. Id. at 293. A narcotics expert may not be used "'to tell a jury that which is obvious.'" Ibid. (quoting State v. Nesbitt, 185 N.J. 504, 514 (2006)). In addition, the trial court must "'perform a gatekeeper role in determining whether there exists a reasonable need for an expert's testimony, and what the parameters of that testimony may be.'" Ibid. (quoting Nesbitt, supra, 185 N.J. at 514). Moreover, the expert's testimony may not track "too closely the language of the pertinent criminal statute." Ibid. (citing Nesbitt, supra, 185 N.J. at 517).

We are convinced that the expert's testimony in this case did not transgress the restrictions outlined in Reeds, Nesbitt and Odom. The hypothetical question posed in this case was clearly drawn from the evidence presented by the State. Furthermore, the State's expert did not offer an opinion on defendant's guilt. The expert confined his testimony to the issue of whether, based on the hypothetical facts, the drugs were possessed for distribution or personal use. Moreover, in his testimony, the State's expert did not track the language in the pertinent criminal statutes.

We note that, despite the expert's testimony, defendant was found not guilty of distributing or possessing a CDS with intent to distribute. Defendant nevertheless argues that the expert's opinion "improperly buttressed" Turzani's testimony, "salvaged an otherwise insufficient case[,]" and may have impelled the jury to convict him of simple possession. We disagree with these contentions. In our judgment, the admission of the expert's testimony was not erroneous, nor was its admission "clearly capable of producing an unjust result[.]" R. 2:10-2.

III.

Next, defendant argues that the trial court erred by permitting the State to admit evidence of defendant's prior criminal convictions. This contention also was not raised during the trial; therefore, we consider this contention under the plain error standard. R. 2:10-2.

It is well-established that a prior conviction may be admitted against a criminal defendant for purposes of impeaching defendant's credibility. State v. Sands, 76 N.J. 127, 147 (1978). The admission or exclusion of such evidence is, however, committed to the sound discretion of the trial court. Id. at 144. "Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Ibid.

"The key to exclusion is remoteness." Ibid. "Remoteness," however, is not determined solely "by the passage of time[.]" Ibid.

The nature of the convictions will probably be a significant factor. Serious crimes, including those involving a lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Moreover, it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried. When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence.

[Id. at 144-45.]

When a testifying defendant in a criminal case has previously been convicted of a crime that is the same or similar to those for which he is being tried, "the State may introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted." State v. Brunson, 132 N.J. 377, 391 (1993). The evidence is sanitized in this manner to "insure that a prior offender does not appear to the jury as a citizen of unassailable veracity and . . . will protect a defendant against the risk of impermissible use by the jury of prior-conviction evidence." Ibid.

As stated previously, defendant testified at trial. During cross-examination, he was questioned regarding his prior criminal convictions in the manner prescribed by Brunson. In response to the prosecutor's questions, defendant admitted that in December 1991, he was convicted of second- and third-degree offenses and received probation and a county jail sentence. He acknowledged that in January 2006, he was convicted of a third-degree offense for which he received a period of probation and a county jail sentence. Defendant also admitted that in September 1997, he was convicted of a third-degree offense and received a four-year state prison sentence. Defendant further acknowledged that he was convicted of a third-degree offense in March 2005, for which he received a period of probation and a county jail sentence.

Defense counsel did not object to the questioning of defendant regarding his prior criminal convictions. Thus, the trial court was not afforded an opportunity to engage in the balancing required by Sands. Even so, we are convinced that the court did not err by allowing the admission of the evidence.

The convictions were relevant to an assessment of defendant's credibility and they were not too remote in time. As the Court stated in Sands:

A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible.

[Sands, supra, 76 N.J. at 145.]

We therefore conclude that the trial court did not abuse its discretion by admitting the evidence of defendant's prior convictions, and the admission of the evidence was not "clearly capable of producing an unjust result[.]" R. 2:10-2.

IV.

Defendant additionally argues that the trial court erred by failing to declare a mistrial when the jury first informed the court that it could not reach a unanimous verdict. Defendant further contends that the court's instructions to the jury regarding further deliberations were erroneous and denied him a fair trial. Defendant also argues that the court should have declared a mistrial when the jury for a second time informed the court that it was unable to reach a verdict. These arguments also were not raised in the trial court. We accordingly consider these contentions under the plain error standard. R. 2:10-2.

The record shows that the jury deliberated for about one and one-half hours on the afternoon of September 20, 2007. The jury continued its deliberations on September 25, 2007 and, after about forty-five minutes, informed the court that it was deadlocked. The court told the jury to continue to deliberate. The court instructed the jury as follows:

All right. The note I have is that you can't . . . reach a unanimous decision. You have been back here, and you have deliberated for about 45 minutes. I don't find that to be a reasonable effort by a jury to try to see if they can come to a unanimous decision.

I think you have to go back and discuss the case in a little more detail, and [I am] . . . not going to be satisfied of calling a hung jury after 45 minutes. I mean, [you are going to] have to go back and discuss it further. See if you can come to a verdict at this particular point. We will see you back.

Later that day, after further deliberations, the jury again informed the court that it was unable to render a verdict. The court then read the jury the charge that was approved in State v. Czachor, 82 N.J. 392, 405-07 (1980) (citing American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, Commentary to 5.4(a), at 146-47). The jury continued its deliberations and returned its verdict.

Defendant argues that the trial court should have declared a mistrial after the jury first informed the court that it could not reach a unanimous verdict. According to defendant, the jury had already deliberated for a reasonable period of time and there was no reasonable probability that the jury would agree upon a verdict. Defendant contends that the court's insistence that the jury continue its deliberations was unreasonable and an abuse of discretion.

Defendant also contends that the court's instructions to the jury at this point were flawed. Defendant says that the court erred by failing to provide the jury with the Czachor charge and by giving instructions that were unduly coercive. Defendant further argues that the court's errors were compounded by its failure to declare a mistrial following the jury's second note indicating that it was still deadlocked.

We are not persuaded by these contentions. We are convinced that, after the jury first informed the court that it could not reach a verdict, the court did not abuse its discretion by finding that the jury had not been deliberating for a reasonable period of time and directing the jury to continue its deliberations. Furthermore, the instructions provided to the jury at this point were appropriate and not in any way coercive. We are satisfied that, because the jury had only been deliberating for a relatively brief time, the court did not abuse its discretion by declining to provide the Czachor instructions.

We are also convinced that the trial court did not abuse its discretion by failing to declare a mistrial after the jury's second note advising the court that it could not reach a verdict. At that point, the court properly exercised its discretion and provided the jury with the Czachor charge.

V.

Defendant additionally challenges his sentence as excessive. Defendant argues the court erred by finding aggravating factors under N.J.S.A. 2C:44-1a(3) and (6). He contends that the court based those findings solely on his criminal history without engaging in a qualitative analysis of his prior criminal record. Defendant further argues that the court erred by failing to find mitigating factors under N.J.S.A. 2C:44-1b(1) (defendant's conduct did not cause or threaten serious harm), and N.J.S.A. 2C:44-1b(11) (defendant's incarceration will entail hardship to defendant or his dependents).

We reject these contentions. Here, the record clearly supports the court's findings on the aggravating factors. Defendant failed to present sufficient evidence to support the finding of a mitigating factor under N.J.S.A. 2C:44-1b(11). Moreover, even if the court erred by failing to find a mitigating factor under N.J.S.A. 2C:44-1b(1), that would not warrant the imposition of a different sentence.

Defendant further argues that the imposition of a five-year term of incarceration is excessive. Again, we disagree. We are satisfied that the sentence imposed here is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

 
We have considered all of the other arguments raised by defendant and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

According to the State, there are two errors in the record regarding two of defendant's prior convictions. It appears that defendant was convicted in 1996, not 2006, as stated in the transcript. He also was convicted in 2002, not 2005, as stated in the transcript. We do not view the errors as significant in determining whether the evidence should have been admitted.

In Czachor, the Court modified instructions permitted by Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). Czachor, supra, 82 N.J. at 404-07.

(continued)

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A-3763-07T4

June 4, 2009