STATE OF NEW JERSEY v. JESSIE L. BUTLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JESSIE L. BUTLER, a/k/a JESSIE

BUTTLER, JESSIE PERRY, JESSIE

LAVERNE BUTLER,

Defendant-Appellant.

_________________________________

August 13, 2015

Submitted December 17, 2014 Decided

Before Judges Fuentes, Ashrafi and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-02-0288.

Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief).

GaetanoT. Gregory,Acting HudsonCounty Prosecutor,attorney for respondent (Jennifer J.Pinales, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jessie Butler was tried before a jury and convicted of third degree possession of heroin, N.J.S.A. 2C:35-10a(1), third degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3), third degree possession of heroin with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, and third degree distribution of heroin, N.J.S.A. 2C:35-5(b)(3). After merging the appropriate offenses, the court sentenced defendant to a mandatory extended term of nine years, with four years and six months of parole ineligibility pursuant to N.J.S.A. 2C:43-6f.

In this appeal, defendant argues the trial court erred in permitting testimony concerning a "second stash" of heroin the police found near the area where defendant was arrested, despite the fact defendant was not charged with possession of this heroin. Defendant also argues the court should have barred the State from presenting expert testimony as a sanction for the prosecutor's failure to comply with the requirements of Rule 3:9-1(e). Independent of these alleged trial errors, defendant argues the trial judge erred in sentencing him without considering and finding mitigating factor eleven under N.J.S.A. 2C:44-1(b)(11).

We reject these arguments and affirm. We gather the following facts from the record developed before the trial court.

I

Jersey City Police Officer Eddie Nieves testified that on October 21, 2011, he and Officer Philip Schinnagel were assigned to surveil the area of Carteret Avenue and Arlington Avenue in Jersey City, in response to a complaint received by Nieves's lieutenant "about drug activity" in that area. Nieves and Schinnagel were in plain clothes, with a second "plain clothes unit" consisting of Officers Crollius (phonetic) and Keith Keoghan "to act as a perimeter unit for [the] surveillance." Nieves was in charge of the investigation.

The surveillance began at approximately 8:30 a.m., when Nieves parked a white unmarked police SUV with tinted windows facing northbound on the east side of Arlington Avenue. Nieves characterized his vantage point from this location as an "elevated position." He positioned himself in the backseat of the SUV, to be able to look out of the rear tinted window. It was a clear sunny day and Nieves testified he had an unobstructed view of the area. Nieves described the area as "[a]ll private homes, no businesses." He observed light pedestrian traffic over a period of approximately forty minutes.

At approximately 9:00 a.m., Nieves saw "a black male standing on the northwest corner of Arlington and Carteret." He was wearing what appeared to be a "black leather jacket [and] blue jeans" and had "long dread locks." Nieves later identified this man as defendant Jessie Butler. Nieves next saw a "Hispanic male" approach defendant and engage in a brief conversation with him. Nieves described this second man as "kind of tall, about 6 foot wearing a reddish-brown jacket, black pants, [and] . . . tan boots[.]" He later identified this man as Anthony Rios.1

Nieves testified he was "approximately 500 feet" from defendant and Rios when he made these observations. However, he was able to see the particular details of their interaction through his binoculars. Both men began walking together north on Arlington Avenue. At one point, defendant crossed the street and entered a vacant building.2 Nieves lost sight of defendant once he entered the alleyway. Rios remained outside apparently waiting for defendant to return

Q. How long was [defendant] in the alleyway for?

A. Approximately one minute.

Q. What, if anything, did you observe after that?

A. Once he - - approximately a minute later, he exited the alleyway and walked over across the street to Mr. Rios where he handed him small objects, and Mr. Rios then handed him green currency.

Q. The order of that, you had stated that you observed Jessie Butler hand Anthony Rios the small objects?

A. Yes.

Q. Could you describe those small objects?

A. They were just very small white objects that he dropped into his hand.

Q. Would you say it was one object, more than one object, as far as you could tell?

A. It appeared to be more than one object to me.

Q. Then you stated that you saw Anthony Rios hand Jessie Butler paper currency. How could you tell what that was?

A. I could see it. I had my binoculars up. I was watching their hands to see what was going to happen between the two parties, and I could see green currency being handed to Mr. Butler.

From this point forward, the two men walked in separate directions. According to Nieves, defendant walked back south on Arlington Avenue while Rios crossed the street and walked north on Arlington Avenue. Rios continued in this direction heading toward a New Jersey Transit railroad bridge. He stepped over a guardrail, and walked across the tracks. Nieves lost sight of Rios thereafter. Nieves relayed Rios's description and direction of travel to the perimeter unit.

Keoghan and Crollius responded to Nieves's call and proceeded to the area around the light rail station and Randolph Avenue. Keoghan testified that they approached Rios, identified themselves as police officers, and "advised him we were conducting a narcotics investigation." Crollius searched Rios's pocket and retrieved "three glassine bags containing suspected . . . heroin, which was marked with a logo of a red milk carton." Crollius arrested Rios for possession of heroin. Keoghan took possession of the heroin and contacted Nieves to report they had arrested Rios after finding three bags of heroin on his person.

Nieves informed the two perimeter units of defendant's description and location, while he continued to observe defendant's movement from the back of the unmarked SUV. When it appeared defendant was going to leave the area, Nieves advised the units to stop him. Schinnagel stopped and arrested defendant at approximately 9:15 a.m., fifteen minutes after Nieves began his surveillance of the area. A search incident to his arrest revealed defendant had two $20 bills, five $10 bills, six $5 bills, and ten $1 bills, for a total of $130. No illicit drugs of any kind were found on his person.

Nieves searched the backyard of the vacant building where defendant had gone earlier and recovered "a drug stash of 45 bags of heroin."3 When the prosecutor asked him if the individual bags of heroin had a logo, Nieves responded, "There was a logo on it. I forget what - - I know it was a green logo. I don't particularly remember what the exact logo was." On re-direct examination, Nieves clarified the stash of heroin he found in the backyard of the vacant building was not connected to defendant. Nieves testified this heroin was marked "[t]o be destroyed because we had nobody to tie or to charge with those drugs."

After he completed arresting defendant, Schinnagel went in the alleyway of the vacant building where Nieves had seen defendant go earlier, apparently to retrieve the heroin defendant sold to Rios. While Nieves was searching the backyard, Schinnagel searched the windowsills in the alleyway that leads to the backyard. Schinnagel testified he discovered twenty-two glassine bags containing heroin. The bags were white "with a milk carton on them." On cross-examination defense counsel asked Schinnagel

DEFENSE COUNSEL: [T]hese glassine bags that you found, you said they're like a plastic wrap?

A. Heat-sealed wrap.

DEFENSE COUNSEL: They had the milk carton on it, right?

A. Yes.

The State called Sergeant Christopher Robateau as an expert witness "in the area of packaging and sale of illegal narcotics." Following the voir dire of Robateau, defense counsel did not challenge the witness's expertise. Robateau defined a "stash" to the jury as "a concealed or hidden supply of drugs that a dealer would keep at his or her disposal for distribution purposes." Robateau testified it was "uncommon" to find a stash in close proximity to another stash. Before Robateau took the stand to testify, the court had admitted into evidence S-3A, the "three glassine bags which were stamped with the red milk logo" recovered from Rios, and S-3B, the twenty-two glassine bags Schinnagel found in the alleyway that were also stamped with the red milk carton logo.

Robateau characterized S-3A and S-3B as "bags of heroin that are commonly distributed on the streets of Jersey City and other parts of Hudson County for that matter." He explained the logo is used to have a "buyer or an addict" associate a particular potency with the particular logo. Robateau characterized this practice as a "marketing tool that's used by dealers to generate repeat customers." Robateau testified there are "hundreds" of different types of logos. He valued a bag of heroin like the one recovered from Rios at $10, although he emphasized "the prices on the drug market are very negotiable." Generally, a street-level dealer would have "a lot of tens, fives and singles. Denominations of tens or smaller for the most part." The parties stipulated that the substance recovered from Rios and found on the windowsill at the alleyway of the vacant building was in fact heroin.

Defendant decided not to testify in his own defense. However, defense counsel called two witnesses on defense, Shantell Jones and Anthony Rios. Jones resided in defendant's neighborhood and personally witnessed defendant's arrest. She testified she did not see defendant engage in any activity that would justify his arrest that day. Rios admitted he had heroin on his person when he was arrested on October 21, 2011. However, he denied defendant was the person who sold him the heroin. He testified he told the sergeant at the police station that same day that defendant was not the person who sold him the heroin, but was merely told to "shut up [and] keep moving."

Rios read aloud to the jurors an affidavit he wrote and typed "a few days or a week" after his arrest. In this affidavit, Rios claims the police placed him inside a car immediately after his arrest and drove him around to see if he could identify the person who sold him the heroin. Rios states in this document that he told the police officer who was with him in the car "over and over again that [defendant] was not the person they were looking for." Rios also alleged the police officers told him he "had been under surveillance for the previous seven days." Rios told the jury that he had pled guilty to the charge of possession of heroin and was on probation at the time he pled guilty. He also had been convicted for credit card fraud.

II

Defendant raises the following arguments in support of his appeal

POINT I

THE ADMISSION OF EXTENSIVE TESTIMONY CONCERNING A SECOND STASH OF HEROIN UNCONNECTED TO THE CRIMES CHARGED IN THE INDICTMENT, AND OF CITIZEN COMPLAINTS THAT DRUG DEALING HAD BEEN OCCURRING AT THE LOCATION WHERE MR. BUTLER WAS ARRESTED, SUGGESTED THAT BUTLER WAS INVOLVED IN A LARGE-SCALE, ONGOING DRUG DISTRIBUTION OPERATION, THEREBY DENYING HIM DUE PROCESS AND A FAIR TRIAL. (Partially raised below)

POINT II

THE TRIAL COURT'S REFUSAL TO EXCLUDE THE EXPERT TESTIMONY, NOTWITHSTANDING THE STATE'S FAILURE TO PROPERLY NOTIFY BUTLER OF AN OUTSTANDING EXPERT REPORT IN THE DISCOVERY SECTION OF THE PRETRIAL MEMORANDUM, DENIED MR. BUTLER DUE PROCESS AND A FAIR TRIAL.

POINT III

BECAUSE MITIGATING FACTOR ELEVEN WAS AMPLY SUPPORTED BY THE RECORD, THE COURT ERRED IN REJECTING THIS FACTOR AND SENTENCING BUTLER AT THE HIGH END OF THE EXTENDED TERM RANGE AND IMPOSING THE MAXIMUM PERIOD OF PAROLE INELIGIBILITY FOR THAT SENTENCE.

We are not persuaded by these arguments and affirm. With respect to argument Point I, defendant asserts the prosecutor presented "extensive testimony" concerning a second stash of heroin the State concedes is not in any way connected to defendant. Defendant argues that despite this concession, the State wanted the jury to associate this unrelated stash of heroin to defendant by emphasizing it was found in close proximity to the twenty-two bags attributable to defendant. Defendant argues the testimony elicited from Nieves and the expert witness on this second stash was irrelevant and highly prejudicial. Defendant characterizes this testimony about the second stash as "uncharged misconduct" that should have been excluded by the court under N.J.R.E. 404(b).

The State argues defendant did not object at trial when the State presented this testimony and the record shows Nieves emphasized there was no basis to tie defendant to the forty-six bags of heroin that were marked for destruction. The State also notes the prosecutor clearly stated to the jury in summation that the forty-six bags of heroin were marked for destruction because there was no suspect connected to this crime.

N.J.R.E. 401 defines "relevant evidence" as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." "Relevancy is tested by the probative value the evidence has with respect to the points at issue." State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). "Probative value" "is the tendency of the evidence to establish the proposition that it is offered to prove." State v. Buckley, 216 N.J. 249, 261 (2013) (citation omitted).

It seems clear to us that the forty-six bags of heroin discovered by Nieves in the backyard of the vacant building had no connection to this case. Indeed, both sides agree that they had no relevance to the charges against defendant. The State should not have offered testimony about this so-called second stash, and once presented, the court should have consulted with counsel to determine whether the testimony should be stricken from the record.4 Unless defense counsel indicated otherwise, the court should have given a strong and clearly worded curative instruction admonishing the jury not to consider the forty-six bags in any way during its deliberations.

Despite our misgivings, we discern no legal basis to overturn the jury's verdict. The record shows defense counsel did not object to Nieves's testimony. Therefore, we must examine the legal implications of this omission under the plain error doctrine. As codified by the Supreme Court under Rule 2:10-2, plain error is error that "is 'clearly capable of producing an unjust result.'" State v. Singleton, 211 N.J. 157, 182 (2012) (quoting R. 2:10-2). We must also consider defense counsel's remarks in his summation to the jury highlighting that "the Budweiser can" that contained the forty-six bags of heroin "was not submitted for fingerprinting" nor "submitted for DNA testing." Counsel argued that the twenty-two bags attributed to defendant were also not tested to determine the identity of the owner. Through these remarks, counsel attempted to use the testimony about the forty-six bags to create an impression of ineptitude on the part of the investigating officers and to suggest that the twenty-two bags of heroin could also have belonged to someone other than defendant, including the person who had stashed the forty-six bags in the same area.

The record does not permit us to judge whether these comments by defense counsel during summation are indicative of a reasonable trial strategy, but they indicate that defense counsel attempted to make positive use of the testimony about the unrelated forty-six bags in presenting the defense. We cannot say it was plain error in the trial for the jury to have heard testimony about the other stash of heroin. As Chief Justice Weintraub wisely noted, "to rerun a trial when the error could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal." State v. Macon, 57 N.J. 325, 333 (1971).

We also reject defendant's argument as framed in Point II because we discern no abuse of discretion by the trial judge in relaxing the mandate of Rule 3:9-1(e), especially when the record shows the State provided defense counsel with the State's expert report more than 30 days in advance of trial in accordance with Rule 3:13-3(b)(1)(I). The judge's decision to deny defendant's application to bar the State's expert from testifying was well within his discretionary authority and supported by the record. State v. Berry, 140 N.J. 280, 293 (1995).

Finally, defendant's argument attacking the sentence imposed by the court lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Rios was charged with third degree possession of heroin and named as a codefendant in the same indictment with defendant. The court granted defendant's pretrial motion to sever the count naming Rios.

2

Officer Nieves mentioned the specific address of the vacant building. We have decided not to include it in this opinion to respect the privacy of the residents in this area.

3 After reviewing a supplemental investigation report given to him by defense counsel in the course of cross-examination, Nieves corrected himself and testified there were actually forty-six bags of heroin recovered from the backyard of the vacant building.

4 The forty-six bags were not offered in evidence; they had been destroyed before the trial.