STATE OF NEW JERSEY v. MARK HANLAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5882-07T45882-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK HANLAN,

Defendant-Appellant.

__________________________

 

Submitted March 9, 2010 - Decided

Before Judges Wefing, Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-05-1963.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Luanh L. Lloyd, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of fourth-degree possession of a controlled dangerous substance (marijuana), N.J.S.A. 2C:35-10(a)(3), and first-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(b)(10)(a). He was sentenced to a term of fourteen years in prison and assessed the appropriate fines and penalties.

On appeal, defendant raises numerous claims of trial error; he also argues that his sentence is excessive. For the reasons discussed below, we affirm.

The evidence adduced at trial may be summarized as follows.

On March 4, 2003, Detective Warren Hodges, of the Port Authority Police Department assigned to the Drug Enforcement Administration, received information "that there was a shipment at a cargo area in [Newark International Airport] that was similar to a shipment that was investigated earlier, that possibly contained a controlled dangerous substance." By "similar[,]" he meant "the size of the boxes, the packaging, the sender and receiver were the same, and the fact that it had 'hold for pickup' and no address or phone number to where it was going to go." En route to the cargo area, Hodges notified other officers and requested a "narcotic[s] canine dog [sic]."

Upon arrival at the cargo area, Hodges examined the air bill which was marked "prepaid as arranged[,]" and identified "Protech Garment Incorporated" as the recipient, which was "familiar" to Hodges "because it was on an earlier shipment." The contents of the package were described as "[g]arments[,]" and no value was declared on the air bill. Hodges testified that when he lifted the boxes they "felt solid[,]" which he considered as "similar to the way narcotics is usually packaged and shipped."

Hodges "set up surveillance" along with Special Agent Mark Russin in the cargo area; two other officers were stationed outside the cargo area. Through cell phone communication with the officers outside, Hodges learned that a white rental van entered the lot of the cargo area. The driver "circled the parking lot several times[,]" and then parked and entered the building. This individual was later identified as defendant.

Hodges observed defendant "walk up to the Guest Control desk and speak to the woman behind the desk." The officer was then advised that defendant "was there to pick up the shipment that [the police] were watching." Hodges described observing defendant pick up the shipment:

The boxes were on three different pallets and the pallets were brought over to his vehicle, and the first two pallets were put inside the van, and the next pallet was unable to fit, so [defendant] had to physically move the boxes and get the last seven boxes into the van.

Hodges observed defendant "to be unusually nervous. . . . He was unable to stand still."

Once all the boxes were loaded in the van, Hodges approached defendant, identified himself and displayed his badge. The narcotics canine arrived at this point as well. Hodges stated:

After identifying myself, I asked [defendant] if I could speak with him, and he stated that I could. And I then asked him if the shipment that was in his vehicle, was that his, and he stated that it was. I asked him if he knew what was in the boxes, and he said he did. I asked him if I could search the boxes and take a look inside, and he said yes, I could.

Hodges also asked defendant if the narcotics canine "could go inside of the van and examine the boxes also." Defendant consented to that as well. The canine examined the boxes and gave a "positive indication" that narcotics were present. Hodges thereupon opened one of the boxes and retrieved a "cellophane bundle of alleged marijuana." Hodges testified that "each one of the boxes that were later seized" contained the same items.

Hodges then placed defendant under arrest, advised him of his Miranda rights "verbally" and transported him to the "Port Authority police detective office in Newark Airport."

Hodges testified that he advised defendant of his rights by reading to him from a "Miranda warning card used by the Port Police[,]" and that Hodges wrote out the answers defendant gave him; defendant then signed the card. Hodges asked defendant if he would "write down actually what happened in his own words and have it part of the record, and he stated that he would."

Defendant's written statement was moved into evidence and read to the jury; it contained the following:

I got laid off, and it got harder . . . to pay my bills, my rent, light, heat. I went [to] look for work, but without luck. . . . I was offered a job to pick up . . . "garments." I was at Newark airport . . . on several occasions. I pick up. And to my knowledge, it was clothing. However, over a period of time, more boxes came, and I figure it was clothing no more. But I needed the money. They were just [a] few more, after I realized. I didn't know what was the content, however, I know something wasn't right. I am sorry for what I did, but please understand where I are [sic] coming from. I have a lot of people depending on me.

Detective Reginald Leon Holloway of the Essex County Sheriff's Department's Bureau of Narcotics, testified as an expert in the field of narcotics trafficking and distribution. Asked to estimate the "street value" of the 1024 pounds of marijuana seized, Holloway opined that the value was "in . . . excess of millions of dollars." Holloway was presented with a hypothetical based on Hodges' testimony and asked whether he had "an opinion . . . as to whether [defendant] is engaged in illegal narcotics trafficking[.]" Holloway responded:

It is my opinion as to your hypothetical that the individual was taking part in an illegal distribution networking scheme, whereas the man, the subject, him or herself, the overall ring leader [sic] or part of the ring, or the individual is acting in the capacity as I indicated, a mule . . . . Just getting paid to make said pickup, to make a delivery to another location, and the subject's job is completed . . . .

Holloway defined a "mule" as "an individual or individuals that their role in the distribution of narcotics are [sic] they are the pickup person. They are the transporter, an individual that . . . they are getting paid to transport narcotics from one location to another."

Defendant was tried in absentia. He failed to appear at any time during trial, and his attorney did not "know where he [was]." Immediately prior to the jury charge, defense counsel asked the judge to instruct the jury regarding defendant's election not to testify "in addition to the defendant's election to absent himself from trial . . . ." The judge declined that request, stating:

I'm not inclined to instruct this jury utilizing the election not to testify, it doesn't apply here. The defendant's individual consent must be obtained in giving this instruction, and obviously that's not possible under these circumstances. In addition to that, the charge does not apply to the circumstances that are presented here.

After deliberating for approximately forty minutes, the jury returned its verdict.

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

POINT I

THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS FROM ABSENTEE WITNESSES

(Not Raised Below)

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF OTHER-CRIME EVIDENCE WITHOUT A PROPER LIMITING INSTRUCTION

(Not Raised Below)

A. OTHER-CRIME EVIDENCE WAS IMPROPERLY ADMITTED

B. THE TRIAL COURT FAILED TO GIVE A PROPER LIMITING INSTRUCTION

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT ADVERSE INFERENCES MAY NOT BE DRAWN AGAINST THE DEFENDANT BASED ON HIS FAILURE TO TESTIFY

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF EVIDENCE THAT HE NEEDED MONEY TO PROVE POSSESSION OF CDS WITH THE INTENT TO DISTRIBUTE

(Not Raised Below)

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CONFESSIONS

(Not Raised Below)

POINT VI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S EXPERT WITNESS RENDERED SPECULATIVE PREJUDICIAL OPINIONS BY SUGGESTING THAT THE DEFENDANT WAS A DRUG RINGLEADER

(Not Raised Below)

POINT VII

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED

A. THE STATE FAILED TO PROVE BY CLEAR AND POSITIVE EVIDENCE THAT THE DEFENDANT WAS ADVISED THAT HE HAD A RIGHT TO REFUSE TO CONSENT TO THE SEARCH PRIOR TO GIVING HIS CONSENT

B. THE POLICE LACKED REASONABLE SUSPICION TO JUSTIFY THE SEARCH OF A MOTOR VEHICLE

C. THE WARRANTLESS SEARCH CANNOT BE JUSTIFIED AS A SEARCH INCIDENT TO A LAWFUL ARREST

POINT VIII

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAIVED HIS MIRANDA RIGHTS

POINT IX

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS

(Partially Raised Below)

POINT X

THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES

Having reviewed these contentions in light of the record and controlling legal principles, we find no basis to reverse defendant's convictions or modify his sentence. Therefore, we affirm.

We first consider defendant's contention regarding the trial judge's failure to charge the jury in accordance with State v. Hampton, 61 N.J. 250 (1972), with respect to defendant's written statement introduced into evidence. While we concur that the trial judge failed to give such an instruction to the jury, we are satisfied nonetheless that any resulting error was harmless. Therefore, since this issue is raised as plain error, we conclude that it was not "clearly capable of producing an unjust result," R. 2:10-2, and affords defendant no basis for relief.

Plain error in a jury charge occurs when there is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).

"Under State v. Hampton, . . . the court is required to instruct the jury to disregard defendant's statements if they find, after considering the evidence, the statements to be untrue." State v. Morton, 155 N.J. 383, 428 (1998) (citing Hampton, supra, 61 N.J. at 272). Generally, the necessity for a Hampton charge arises when the State introduces a prior statement given by the defendant, typically a confession, and the defendant at trial repudiates the accuracy of that statement. "The very purpose of a Hampton charge is to call the jury's attention to the possible unreliability of the alleged statements made by a criminal defendant." State v. Feaster, 156 N.J. 1, 72 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

In Jordan, the Supreme Court noted that the problem of prejudice from the omission of a Hampton instruction "arise[s] most frequently when the defendant's statement is critical to the State's case and when the defendant has challenged the statement's credibility." Jordan, supra, 146 N.J. at 425. Here, defendant's statement was important because it tended to show his knowledge of the contents of the boxes. There was, however, other evidence of knowledge, specifically Officer Hodges' observations of defendant's conduct upon his arrival at the cargo area of the airport.

Moreover, defendant absented himself from the entire trial; therefore he never repudiated his written statement. Under the circumstances, we are satisfied that the jury, even if given the Hampton charge, would have reached the same result. Assessing the evidence in accordance with Jordan, the omission is not "'clearly capable of producing an unjust result.'" Jordan, supra, 147 N.J. at 425 (citation omitted).

The following claims of trial error are all raised as plain error. We find none of them to be "clearly capable of producing an unjust result . . . ." R. 2:10-2.

Detective Hodges' testimony about information he previously received concerning prior similar shipments is distinguishable from the not impermissible hearsay that led to the reversal of the defendant's conviction in State v. Bankston, 63 N.J. 263, 268-73 (1973). "It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" Id. at 268. Nevertheless, "when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule," and "the accused's Sixth Amendment right to be confronted by witnesses against him." Id. at 268-69. The distinction between this case and Bankston is that defendant was not charged with a crime based on the prior shipments. Although defendant's written statement refers to his involvement in prior deliveries, the only time such a "link" was mentioned was by the prosecutor at sentencing.

Based on the distinction between this case and Bankston, we are satisfied that the erroneous admission of hearsay was harmless. Defendant admitted in his written statement that he had picked up other shipments about which he was suspicious, providing evidence sufficient to permit the jury to find that he acted with the requisite state of mind. Detective Hodges' passing reference to a prior shipment at the outset of his testimony gives us no reason to doubt that the jurors would have returned the same verdict if the evidence had been excluded. State v. Castagna, 187 N.J. 293, 312 (2006) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967)).

Defendant's claim that evidence of the prior shipments of marijuana was improperly admitted in violation of N.J.R.E. 404(b), as so-called "other crime evidence" is without merit. That rule 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."

As noted above, nothing in Hodges' testimony regarding the prior shipment linked defendant in any way to that shipment. Hodges' testimony clearly established that his first encounter with defendant in connection with any shipments was on March 4, 2003. While defendant's written statement alludes to such conduct on prior occasions, that does not render Hodges' testimony improper under N.J.R.E. 404(b). Under the circumstances, no limiting instruction was necessary.

Similarly without merit is defendant's claim of error in the admission of evidence that he "needed money." The sole source of this evidence was defendant's own statement given to Detective Hodges. As noted below, we are satisfied that that statement was properly entered into evidence; therefore, we find no plain error here.

The State's expert, Detective Holloway, did not opine to the jury that defendant was a drug "ringleader." While that term is found in Holloway's testimony, it occurs in the middle of the same sentence that goes on to reference a "mule[,]" which the detective had defined as a "transporter" of narcotics in his immediately preceding testimony. As noted, this issue is also raised as plain error; clearly defense counsel perceived no need to object to Holloway's testimony on this basis.

Defendant's next contention regarding the trial judge's failure to charge the jury that they were to draw no adverse inference from his failure to testify, is "without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(2). Suffice it to say, the trial judge properly charged the jury on defendant's failure to appear for trial. Both charges contain the following identical language:

You are not to consider for any purpose or in any manner in arriving at your verdict the fact that (defendant) was not present at trial [or did not testify]. That fact should not enter into your deliberations or discussions in any manner, at any time.

(Defendant) is entitled to have the jury consider all evidence presented at trial. He/she is presumed innocent even if he . . . is not present [or whether or not he . . . chooses to testify].

[Model Jury Charges (Criminal) "Defendant's Election not to Testify" (Rev. 5/4/09); "Defendant's Absence From Trial" (Rev. 6/14/04).]

Under the circumstances, we are hard-pressed to discern how defendant was prejudiced by the lack of an instruction on his failure to testify.

Defendant's contentions that (1) the State failed to prove that he waived his Miranda rights; and (2) that the search and seizure to which he was subjected were unconstitutional, are also "without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(2). Suffice it to say, both of these issues were the subject of an extensive pre-trial hearing, at which Detective Hodges was the only witness to testify. At the conclusion of that hearing, the trial judge made findings of fact and conclusions of law supporting the admissibility of defendant's written statement and rejecting his Fourth Amendment arguments.

The essence of the trial judge's decision was his finding that Hodges was credible. We defer to such findings, State v. Locurto, 157 N.J. 463, 474 (1999), provided that we are satisfied, as we are here, that they are supported by the record. State v. Cooper, 151 N.J. 326, 356 (1997) (citing State v. Johnson, 42 N.J. 146, 162 (1964)), cert. denied, 528 U.S. 1084, 130 S. Ct. 809, 145 L. Ed. 2d 681 (2000).

The judge's findings with respect to defendant's Fourth Amendment issues are likewise supported by the record and primarily based upon credibility determinations. We defer to those findings as well. Locurto, supra, 157 N.J. at 474.

Finally, we address defendant's contention that his sentence is excessive. Defendant received a sentence below the mid-range for the first-degree offense of which he was convicted. N.J.S.A. 2C:43-6(a)(1).

The judge found the following mitigating factors applicable: number seven, that defendant had "led a law-abiding life for a substantial period of time before the commission of the present offense"; and number twelve, that defendant was "willing[] . . . to cooperate with law enforcement authorities" by giving a written statement. N.J.S.A. 2C:44-1(b)(7) and (12).

The trial judge considered the following aggravating factors to apply: number one, defendant's "role" in the offense "serv[ing] as a cog in the machinery of controlled substance distribution, which is a threat to all of our communities"; number five, that there is "a substantial likelihood that the defendant is involved in organized criminal activity[,]" based upon the judge's finding that "the nature of this crime did require organized activity[,]" and that defendant's conduct was a "link[] in the chain of a criminal enterprise"; number seven, that defendant "committed the offense pursuant to an agreement that he either pay or be paid for the commission of the offense and the pecuniary incentive was beyond that inherent in the offense itself"; number nine, the need to deter "defendant and others from violating the law"; and number eleven, that the "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 . . . ." N.J.S.A. 2C:44-1(a)(1), (5), (7), (9), and (11).

Our review of sentencing decisions is limited

[A]ppellate review of a sentencing decision calls for us to determine, first, whether the correct sentencing guidelines . . . have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

[State v. Roth, 95 N.J. 334, 365-66 (1984).]

We are "not to substitute [our] assessment of aggravating and mitigating factors for that of the trial court." State v. Bieniek, 200 N.J. 601, 608 (2010).

We note that the judge's inclusion of factor eleven was improper. Where, as here, "defendant is convicted of a crime carrying a presumption of imprisonment, factor [eleven] is ordinarily inapplicable unless the court is being asked to overcome th[at] presumption. . . . Other than in such an instance, factor [eleven] should not be utilized in sentencing for first and second degree crimes." State v. Rivera, 351 N.J. Super. 93, 110 (App. Div. 2002), aff'd o.b. 175 N.J. 612 (2003); see also, State v. Dalziel, 182 N.J. 494, 502-03 (2005). Although erroneous, the inclusion of factor eleven is not a sufficient basis to warrant relief; defendant received a sentence in the mid-range for a first-degree offense and the other factors considered by the judge support the sentence imposed.

Even if we conclude that the trial court's "statement of reasons could have been somewhat clearer and more complete[,]" where, as here, "[i]t is . . . possible in the context of th[e] record to extrapolate without great difficulty the court's reasoning[,]" a sentence that "falls within the discretionary parameters of the [Criminal] Code and does not shock the judicial conscience[,]" will be upheld. State v. Pillot, 115 N.J. 558, 566 (1989).

We remand for the limited purpose of the entry of an amended judgment of conviction. We otherwise affirm.

 
Affirmed.

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

When defendant failed to appear for trial, a bench warrant was issued. Three years later, defendant was located in California and extradited to New Jersey for sentencing.

The judgment of conviction does not reflect the judge's inclusion of aggravating factor number seven, as stated in the sentencing transcript; therefore, we direct the trial court to enter an amended judgment of conviction that is consistent with that transcript.

(continued)

(continued)

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A-5882-07T4

August 31, 2010