STATE OF NEW JERSEY v. JOSEPH CLARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4086-08T44086-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH CLARK a/k/a PAC CLARK,

Defendant-Appellant.

_____________________________

 

Submitted June 8, 2010 - Decided

Before Judges Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-08-0690.

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

Paula T. Dow, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel; Christopher Shea O'Donnell, Legal Assistant, on the brief).

PER CURIAM

Union County Indictment No. 07-08-0690 charged defendant and co-defendants Randy Blakeney and Angela Berry, also known as Cindy Martin, as follows: count one charged all three defendants with third-degree possession of a controlled dangerous substance (CDS), cocaine, in violation of N.J.S.A. 2C:35-10(a)(1); count two charged defendant and Blakeney with third-degree possession of cocaine with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); count three charged defendant and Blakeney with third-degree possession of cocaine within 1000 feet of school property, in violation of N.J.S.A. 2C:35-7; count four charged defendant alone with third-degree distribution of cocaine, in violation of N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); and count five charged defendant alone with third-degree distribution of cocaine within 1000 feet of school property, in violation of N.J.S.A. 2C:35-7.

Defendant proceeded to trial alone. The jury found him guilty of counts one through three and not guilty on counts four and five. On September 19, 2008, defendant was sentenced to an aggregate term of five years with a three-year period of parole ineligibility. He now appeals his convictions, raising two claims of trial error. We affirm.

The trial evidence pertinent to our decision may be summarized as follows. On March 30, 2007, Roselle Police Detective Matthew Jakubowski and his partner, Detective Stacy Williams, were conducting undercover narcotics surveillance on St. George Avenue. Jakubowski testified that he recognized defendant and Blakeney, who is defendant's cousin. When the prosecutor asked Jakubowski how he had come to know defendant and Blakeney, the judge interrupted and called a sidebar conference, at which he instructed the prosecutor to elicit "no comment suggesting that [Jakubowski] knows [defendant] as a result of any investigations that he's been involved . . . [in]." Following the sidebar, the prosecutor asked the detective, "is it fair to say that you have come to know [defendant] just very generally as a member of the community?" Jakubowski answered, "[y]es." The judge thereupon instructed the jury that "police officers come to know residents in the community in a variety of ways, through interaction at schools, sporting events, picnics, carnivals, local charities, civic events such as car rallies, plays, parades."

Jakubowski observed defendant, Blakeney and Berry have a conversation together; then defendant and Berry walked into a supermarket where, according to the officer, "[i]t appeared that they conducted a hand-to-hand transaction" with each other. Through his "training and experience," Jakubowski "believe[d] that a narcotics transaction took place."

Defendant and Berry then exited the supermarket and went separate ways. Jakubowski and Williams confronted Berry inside a liquor store; she "became aggravated . . . and dropped an item onto the service counter." Jakubowski described the item Berry dropped as a "small plastic like Saran-like knot with suspected cocaine." Jakubowski and Williams placed Berry under arrest and arranged for her transfer to police headquarters.

Jakubowski then saw defendant standing in front of a nearby residence at 1205 Irvington Street; he called Officer Brian Burns to come to that location and the three officers then approached defendant and Blakeney who was also in front of that building. When they saw the police, defendant and Blakeney "tried to go into the house[,]" but the officers stopped them and placed them under arrest. Burns searched defendant and "removed a plastic knot of suspected cocaine from his right front pants pocket[,]" along with "$62 in cash." Williams searched Blakeney and found "two small Ziploc bags of cocaine."

At this point, defense counsel requested a sidebar. The judge excused the jury and counsel stated that he was "concerned that there's continuing testimony by [sic] Mr. Blakney [sic] and . . . [t]he question to include him in all of the discussions even to date, I think, certainly is more prejudicial than probative."

The judge asked the prosecutor what his purpose was in eliciting testimony about Blakeney; the prosecutor stated that he wanted "just to give an overall picture to the jury of the investigation that occurred[,]" and that he did not intend to have the jury believe that defendant jointly possessed the drugs found on Blakeney.

The jury returned to the courtroom, and the judge instructed them as follows:

We're going to continue the questioning, but I should tell you that with respect to Mr. Blakney [sic], the other person who was there under the surveillance, whatever he may have had on [sic] his possession, [defendant] has not been charged with any of that, so that's not really relevant to your consideration as to [defendant's] involvement with whatever the State has put forth concerning the female and whatever [defendant] may have had allegedly on [sic] his possession.

The prosecutor then showed Jakubowski the State's exhibit S-10 which consisted of two bags of cocaine. At the prosecutor's suggestion, the two bags were marked A and B.

Jakubowski identified S-10A as "the one that [he] got off the service counter at the . . . liquor store that Ms. Berry discarded." Exhibit S-10B was identified as the cocaine found on defendant.

Detective Williams testified that she also was "familiar" with defendant "just through . . . being a member of the Roselle community[.]" On the date in question, she observed defendant and Blakeney have a conversation with a "[b]lack female[,]" who then walked into a supermarket across the street; defendant followed her, and Williams "observed a hand-to-hand transaction," and "didn't see either one go to the counter to pay for anything." Neither defendant nor Berry left the supermarket with any merchandise in his/her possession. Williams also described following Berry into a liquor store and observing her place "an item on the counter[,]" which was suspected cocaine.

Williams testified that Burns "found narcotics on [defendant] in his pants pocket[,]" and she "found narcotics on Blakney [sic] in his left front pants pocket." Defense counsel immediately objected, and the trial judge instructed the jury to "disregard what was found on Blakney, [sic] because, whatever was found on Blakney [sic], . . . this defendant has not been charged with in any way, so at this point, the jury will just disregard that statement."

During deliberations, the jury sent out a question: "Who had possession of 10A and 10B?" Before bringing out the jury, the judge consulted with counsel and stated: "My understanding is 10A was the defendant, allegedly, and allegedly, it was Ms. Berry in [sic] 10B, right?" The prosecutor responded, "yes[,]" and defense counsel responded, "correct."

The judge proposed to "bring the jury out and tell them that as opposed to having them get [it] -- from the tape[,]" and asked defense counsel if he agreed with that suggestion. Counsel stated he had "no problem."

The judge then brought the jury into the courtroom and told them that "[t]he parties agree that the officer's testimony would reflect that the defendant allegedly possessed 10A and Ms. Berry allegedly possessed 10B." After further deliberations, the jury returned its verdict.

On appeal, defendant raises the following contentions for our consideration:

POINT I

THE COURT'S ERRONEOUS ANSWER TO THE JURY'S QUESTION DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below)

POINT II

THE ADMISSION OF UNDULY PREJUDICIAL EVIDENCE INCLUDING PRIOR BAD ACT EVIDENCE AND EVIDENCE OF UNCHARGED OFFENSES, DENIED DEFENDANT A FAIR TRIAL. (Raised in Part Below)

Having reviewed these contentions in light of the record, we are convinced they are without merit.

Defendant contends that the trial judge's "error violated [his] state and federal constitutional rights to due process of law and a fair trial." We disagree. Exhibit S-10A was the bag of cocaine retrieved from Berry in the liquor store after the two police officers observed what they believed to be a narcotics transaction in the supermarket between Berry and defendant. Exhibit S-10B was the bag of cocaine found in defendant's pocket when he was searched subsequent to his arrest. Both exhibits were described as small packets of cocaine; there is no evidence comparing their respective sizes or weights.

Under the circumstances, notwithstanding the misinformation the judge conveyed to the jury in response to its question, we deem any error to be harmless. R. 2:10-2. "In determining whether a defendant has been denied a fair trial, we necessarily look to the significance of the trial errors in light of the evidence presented to the jury." State v. Blakney, 189 N.J. 88, 96-97 (2006). "Not every trial error in a criminal case requires a reversal of the conviction." State v. LaPorte, 62 N.J. 312, 318 (1973).

Here, the jury's question did not imply that they had doubt as to whether defendant possessed cocaine; rather, they sought clarification as to which of the two bags of cocaine in evidence was found in his possession.

Moreover, "it is not disputed that defendant's trial counsel did not object to" the judge's answer to the jury's question "that he now claims was error . . . ." N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 339 (2010). In fact, counsel acquiesced in the correctness of that answer. Thus, "we hold that defendant is barred by the doctrine of invited error from contesting for the first time on appeal" a jury instruction to which he consented at trial. Id. at 342. "The doctrine of invited error 'is based on considerations of fairness and preservation of the integrity of the litigation process.'" Id. at 340.

Defendant's remaining argument is "without sufficient merit to warrant discussion in a written opinion," Rule 2:11-3(e)(2), beyond the following brief comments. The trial judge scrupulously protected defendant's right not to have the jury consider any unduly prejudicial evidence unrelated to the State's burden to prove him guilty beyond a reasonable doubt of the charges in the indictment. The judge took affirmative steps to limit Jakubowski's testimony about the basis on which he knew defendant. Moreover, the judge repeatedly instructed the jury to focus only on the evidence pertinent to defendant. Under these circumstances we find no violation of N.J.R.E. 403 or 404(b) as defendant contends.

 
Affirmed.

N.J.R.E. 403 provides that "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. 404(b) provides, in pertinent part, that "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith."

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A-4086-08T4

August 31, 2010