STATE OF NEW JERSEY v. EMMIT J. BOUIE

(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NOT FOR PUBLICATION WITHOUT THE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-4938-06T44938-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EMMIT J. BOUIE,

Defendant-Appellant.

_______________________________________

 

Submitted May 12, 2009 - Decided

Before Judges Wefing and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-02-0352.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano and Patricia B. Quelch, Assistant Prosecutors, of counsel; Ms. Quelch and Andrew D. Bennett, Legal Assistant, on the brief).

PER CURIAM

Defendant Emmit J. Bouie was tried before a jury and found guilty of distribution of a controlled dangerous substance (CDS) (heroin) within 500 feet of a public housing facility, as well as other drug offenses. He was sentenced to an aggregate term of eight years of incarceration with a four-year period of parole eligibility. Defendant appeals from the judgment of conviction dated February 9, 2007. We affirm defendant's convictions but remand for resentencing.

I.

Defendant was charged with possession of a CDS, N.J.S.A. 2C:35-10a(1) (counts two and nine); possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(3) (count three); possession of a CDS with intent to distribute within 1,000 feet of school proerty, N.J.S.A. 2C:35-7 (count four); possession of a CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count five); distribution of a CDS, N.J.S.A. 2C:35-5b(3) (count six); distribution of a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count seven); and distribution of a CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count eight). Co-defendant Maria Murdar (Murdar) was charged with possession of a CDS, N.J.S.A. 2C:35-10a(1) (count one).

Defendant filed a motion to suppress the evidence obtained upon his arrest. On June 30, 2006, the court conducted a hearing on the motion. The court denied defendant's motion. Defendant was thereafter tried before a jury.

At the trial, Murdar testified that on October 26, 2005, she went to Asbury Park to purchase the drugs from defendant. A friend dropped her off near the train station. After she was dropped off, Murdar walked through the parking lot to the other side of the building, where she met defendant.

Murdar gave defendant money and he provided her with two bags of heroin. Murdar stated that, at the time, she had been using heroin for about two years. She was arrested, taken to the Asbury Park police station and released on her own recognizance. Later, Murdar pled guilty, was sentenced to five years of probation and was required to participate in the drug court program. As part of the plea agreement, Murdar agreed to testify against defendant.

On cross-examination, Murdar admitted that, when she testified at her plea hearing, she initially stated that she did not purchase drugs from defendant. Murdar conceded that, after that testimony, there was a break in the proceeding and she was told that she had to acknowledge that defendant sold her the drugs or the plea agreement was "off." Murdar then testified that defendant sold her the heroin. On re-direct examination, Murdar stated that she was telling the truth when she said that defendant sold her the drugs.

Officer Dean Kenny (Kenny) of the New Jersey Transit Police (NJTP) testified that, on October 26, 2005, he was working as a plain-clothes detective, assigned to deal with street crimes, narcotics activities, public drinking and thefts. Kenny was outside the Asbury Park train station at around 3:00 p.m. He was working with Officer Alexis Melendez (Melendez), who also was employed by the NJTP. Kenny was on the east bound side of the station.

Melendez contacted Kenny and told him that he had observed a drug transaction between a black male and a white female. Melendez said that he was going to "intercept" the female. Melendez reported that he stopped the female and she had thrown contraband to the ground. The contraband was later determined to be heroin.

Kenny said that he got into his unmarked vehicle and headed north in pursuit of the black male. He arrested the individual, who he identified as defendant. Kenny searched defendant and recovered some "rock cocaine" wrapped in paper and another packet of heroin. He also recovered a $20 bill from defendant. On cross-examination, Kenny conceded that his report of the incident did not mention the $20 bill. Kenny stated that the $20 bill had been misplaced.

Melendez also testified. He stated that on October 26, 2005, he was working with Kenny at the Asbury Park train station. Melendez was patrolling the area in an unmarked SUV. Melendez said that, at around 3:00 p.m., he was on the westbound side of the station, near the parking lot. Melendez testified that he witnessed defendant sell heroin to Murdar from a distance of ten feet.

Melendez further testified that he observed defendant take something out of his pocket and hand it to Murdar. Melendez said that it appeared to be two packets of heroin. Murdar took out money, which appeared to be United States currency. Murdar gave the money to defendant. Murdar and defendant then went their separate ways.

Melendez informed Kenny that he had observed a hand-to-hand drug transaction. Melendez stopped Murdar immediately and she dropped the two packets to the ground. Melendez handcuffed Murdar. He told Kenny that "the guy's going that way." Kenny entered his vehicle, drove up the street and apprehended defendant.

Melendez identified a map of Asbury Park, which showed the location of the city's drug-free zones near housing projects and schools. He stated that the drug transaction involving defendant and Murdar took place within 1,000 feet of school property and directly across the street from a public housing facility. On cross-examination, Melendez acknowledged that in his incident report, he did not state that defendant had been found with a $20 bill.

The jury found defendant guilty on all counts. He was sentenced on February 9, 2007. 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); N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law); and N.J.S.A. 2C:44-1a(11) (imposition of fine, penalty or order of restitution without a term of imprisonment would be perceived as a cost of doing business). The court found no mitigating factors and determined that the aggravating factors substantially outweighed the mitigating factors.

The court merged counts two, three, four, five and six with count eight. The court sentenced defendant to eight years of incarceration, with a four-year period of parole ineligibility, on count eight, in which defendant was charged with distribution of a CDS within 500 feet of a public housing facility. The court imposed a concurrent four-year sentence on count seven, in which defendant was charged with distributing a CDS within 1,000 feet of school property. The court also sentenced defendant to a concurrent four-year term on count nine, in which defendant was charged with possession of a CDS.

In this appeal, defendant raises the following arguments for our consideration:

POINT I

BECAUSE THE ARREST OF DEFENDANT WAS NOT SUPPORTED BY PROBABLE CAUSE, THE MOTION TO SUPPRESS EVIDENCE WAS ERRONEOUSLY DENIED. U.S. CONST. AMEND. IV, XIV; N.J. CONST. (1947) ART. I, PAR. 7.

POINT II

THE PROSECUTOR'S COMMENTS DURING SUMMATION WERE IMPROPER AND SO PREJUDICIAL AS TO DENY DEFENDANT A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, 10. (Not Raised Below.)

POINT III

BY ONLY MOLDING THE JURY CHARGE TO THE STATE'S VERSION OF EVENTS, THE TRIAL COURT BECAME AN ADVOCATE FOR THE STATE AND DIRECTED THE VERDICT IN VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.) (Not Raised Below.)

II.

We first consider defendant's contention that the trial court erred by denying his motion to suppress the evidence obtained upon his arrest.

At the suppression hearing, Melendez testified that he observed defendant hand Murdar two packets of suspected contraband in exchange for money. Melendez said that he believed he had witnessed a hand-to-hand drug transaction. Melendez informed Kenny that he had seen a drug transaction between a black male and a white female. Melendez told Kenny that he had arrested the female. Melendez said the black male was on a bicycle. He pointed out defendant. Kenny thereafter arrested defendant and searched him. Kenny testified that, in his search of defendant, he found a packet of heroin and a piece of cocaine wrapped in paper.

The trial court found that Kenny and Melendez were credible witnesses. The court also found no merit in defendant's suggestion that Murdar sold him the drugs. In addition, the court found that:

. . . based on the totality of the circumstances known at the time of the respective search and seizure, that there was, in fact, probable cause.

The one officer made an absolute observation of a hand to hand transaction seeing [defendant] selling heroin to Ms. Murdar. I find that there was probable cause to believe that he had committed an offense, and I find that it gives rise to a well[-]grounded suspicion that an offense had been committed by the person to be arrested.

And I find that the arrest was constitutionally lawful, because at the moment of the arrest, the facts within the arresting officer's knowledge, in which he . . . had reasonably trustworthy information was sufficient to warrant a prudent man in believing that the defendant had committed . . . an offense.

He saw it. It happened right in front of him. But he [did not] make the arrest. The arrest was made by Officer Kenny. Officer Kenny made the arrest based upon what he was told by the other officer, Officer Melendez.

And I find that after that arrest . . . the drugs that were found on [defendant] were [seized] incident to a lawful arrest. He was arrested. He was patted down. The officer found [the drugs] in his pocket[.]

Defendant argues that Officer Kenny did not have probable cause to arrest him. We disagree.

A law enforcement officer has probable cause to make an arrest without a warrant when the officer has "'a well-grounded suspicion that a crime has been or is being committed.'" State v. O'Neal, 190 N.J. 601, 612 (2007) (quoting State v. Moore, 181 N.J. 40, 45-46 (2004)). "'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.'" Ibid. (quoting Moore, supra, 181 N.J. at 46). "The totality of the circumstances must be considered in determining whether there is probable cause." Ibid. (citing Moore, supra, 181 N.J. at 46).

We are satisfied that the trial court correctly determined that Officer Kenny had probable cause to arrest defendant. As stated previously, Officer Melendez had observed what he believed was a hand-to-hand drug transaction. Based on his observations, Melendez had a "well[-]grounded suspicion" that a crime had been committed. Melendez conveyed that information to Kenny, along with a description of defendant. The information that Melendez provided to Kenny was "reasonably trustworthy" and provided Kenny with probable cause to arrest defendant.

We are therefore satisfied that the trial court correctly found that defendant's arrest was lawful and properly denied defendant's motion to suppress the evidence obtained in the search incident to that arrest.

III.

Next, defendant argues that he was denied a fair trial because of certain comments made by the prosecutor in her closing argument.

A prosecutor is "permitted considerable leeway to make forceful, vigorous arguments" to a jury. State v. Nelson, 173 N.J. 417, 472 (2002) (citing State v. Chew, 150 N.J. 30, 84 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999)). We must assess the propriety of the prosecutor's comments "in the context of the entire trial record." Ibid. (citing State v. Morton, 155 N.J. 383, 419-20 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001)). Even if a prosecutor's remarks are improper, they will not result in the reversal of a conviction unless the remarks were "'so egregious as to work a deprivation of a defendant's right to a fair trial.'" Ibid. (quoting State v. Pennington, 119 N.J. 547, 566 (1990)).

In determining whether a prosecutor's remarks denied defendant a fair trial, we must consider whether defense counsel made a "timely and proper objection" to the statements. State v. Ramseur, 106 N.J. 123, 322-23 (1987). "If no objection is made, the remarks usually will not be deemed prejudicial." Ibid. (citing State v. Bogen, 13 N.J. 137, 141-42, cert. denied, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953)). "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 84 (1999).

Defendant argues that the prosecutor's remarks regarding Murdar's plea were not based on evidence in the record. Defendant contends that the prosecutor improperly referred to popular television programs, stated that the loss of the $20 bill was just an error, and "testified" that defendants are often convicted based solely upon eyewitness testimony. Defendant additionally maintains that the prosecutor erred by offering a personal opinion on defendant's guilt. Again, we disagree.

We are convinced that the challenged remarks were fair comments on the evidence and inferences that could be reasonably drawn from that evidence. Moreover, the prosecutor's remarks were a proper response to the arguments of defense counsel, who forcefully challenged Murdar's credibility, emphasized the absence of the $20 bill, and disputed the reliability of the eyewitness testimony that identified defendant as a participant in a hand-to-hand drug transaction. Furthermore, the prosecutor did not offer a personal opinion as to defendant's guilt. The prosecutor merely argued that defendant should be found guilty based on the evidence.

IV.

Defendant also argues that, in its instructions to the jury, the trial court improperly molded the charge to the State's version of the case.

We note that defendant never objected to the court's instructions on this basis. Pursuant to Rule 1:7-2, defendant's failure to object to the jury charge is deemed to be a waiver of any challenge to the instructions on appeal. State v. Thomas, 187 N.J. 119, 133 (2006) (citing Chew, supra, 150 N.J. at 82.

Consequently, we may reverse defendant's conviction on the basis of an unchallenged error in a jury charge only if the error was "clearly capable of producing an unjust result." R. 2:10-2. In determining whether the jury charge was erroneous, we consider the instructions as a whole. State v. Torres, 183 N.J. 554, 564 (2005) (citing State v. Jordan, 147 N.J. 409, 422 (1997)).

Here, defendant makes no claim that the court's charge was in any way legally erroneous. Defendant argues, however, that in molding the instructions to the particular facts of this case, the court became an advocate for the State, effectively directed a verdict for the State, and denied defendant of his right to a fair trial. The record does not support defendant's contentions.

Although the trial court commented on the evidence presented by the State, the court emphasized that it was the jury's function to determine whether the State's witnesses were credible, whether Melendez's and Kenny's identification testimony was reliable, and whether Murdar's testimony was worthy of belief. The court also emphasized that the State had the burden of proving all elements of the charged offenses beyond a reasonable doubt.

Defendant maintains that the trial court erred by failing to point out the various theories propounded by defendant through his cross-examination of the State's witnesses, including defendant's contention that Murdar sold the drugs to defendant. Defendant also says that the court erred by failing to comment on the missing $20 bill that allegedly supported the defendant's theory of the case. We are not convinced that the court's failure to mention these points in the jury charge was error, let alone plain error under Rule 2:10-2.

V.

As we stated previously, the trial court found aggravating factors under N.J.S.A. 2C:44-1a(3), (6), (9) and (11). The court found no mitigating factors and determined that the aggravating factors substantially outweighed the mitigating factors. The court imposed an eight-year term of imprisonment on count eight with a four-year period of parole ineligibility. The court imposed shorter, concurrent sentences on counts seven and nine. We are constrained to vacate the sentences imposed and remand for resentencing.

N.J.S.A. 2C:44-1a(11) provides that the trial court may find an aggravating factor if:

[t]he imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices[.]

"By its very terms, that provision is inapplicable unless the judge is balancing a non-custodial term against a prison sentence." State v. Dalziel, 182 N.J. 494, 502 (2005) (citing State v. Rivera, 351 N.J. Super. 93, 110 (App. Div. 2002), aff'd o.b., 175 N.J. 612 (2003)). When a defendant is convicted of a crime for which there is a presumption of incarceration, "'factor (11) is ordinarily inapplicable unless the court is being asked to overcome the presumption pursuant to N.J.S.A. 2C:44-1(f)(2).'" Id. at 503 (quoting Rivera, supra, 351 N.J. Super. at 110).

In this matter, defendant was convicted of count eight in which he was charged with possession of a CDS within 500 feet of a public housing facility, a second degree offense. Under N.J.S.A. 2C:44-1d, there is a presumption of incarceration when a person is convicted of such an offense. The record shows that, in sentencing defendant, the court was not balancing a non-custodial term against a prison sentence. The record also shows that the court had not been asked to find that the presumption against incarceration had been overcome.

Although the court found three other aggravating factors and no mitigating factors, the court's erroneous finding of aggravating factor (11) may have led the court to impose lengthier sentences than might otherwise have been imposed. Accordingly, we vacate the sentences and remand the matter to the trial court for resentencing.

Finally, we note that although the indictment is No. 06-02-0352, the judgment of conviction erroneously states that the indictment is No. 06-02-0351. We expect the trial court will correct this error on remand.

Defendant's convictions are affirmed and the matter is remanded to the trial court for resentencing. We do not retain jurisdiction.

 

We note that, in the indictment, Murdar is incorrectly identified as "Maria Murday."

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A-4938-06T4

June 22, 2009