STATE OF NEW JERSEY v. DANA THOMPSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0064-04T40064-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANA THOMPSON,

Defendant-Appellant.

_________________________________

 

Submitted December 5, 2005 - Decided

Before Judges Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 03-06-2155.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Acting Essex County Prosecutor, attorney for respondent (Joan E. Love, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a two day jury trial, defendant, Dana Thompson, was convicted of second-degree conspiracy to possess cocaine with intent to distribute, N.J.S.A. 2C:5-2 (Count One); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count Two); third-degree possession with intent to dispute cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Three); and second-degree possession of cocaine within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (Count Five). Count Four, third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, was dismissed by the State prior to trial. The First, Second, and Third Count convictions were merged with the Fifth Count conviction and defendant was sentenced to seven years incarceration with three years of parole ineligibility. Defendant appeals and we affirm.

On March 22, 2003, at approximately 7:00 a.m., plainclothes Police Officers Frank Rusignuolo and Jason West were conducting undercover operations from inside their gray minivan when they saw three males enter the courtyard near 172 James Street in Newark. One of the males, later identified as defendant, was seen placing a plastic zip-lock bag containing what looked like drugs next to a tree in the courtyard. Another male, codefendant Donald Betts, remained in the front of the courtyard on the James Street side, while the third individual, codefendant Omar Ruff, sat on a nearby stool.

Rusignuolo and West observed a white male approach Betts, who in turn directed him to Ruff. The white male handed money to Ruff and Ruff motioned toward defendant, raising two fingers. Defendant responded by going over to the tree, pulled two bottles containing cocaine from the plastic bag, and handed them to the white male who then left the courtyard. The officers, who remained in the minivan, had a clear view of the transaction, which occurred about seventy feet away.

The officers observed three more similar transactions, after which they notified their supervisors, Lieutenant Musi and Sergeant Bailey. Musi and Bailey, both of whom were in uniform, pulled up in an unmarked police vehicle shortly after the fourth transaction. Rusignuolo and West exited the van. The three suspects began to walk toward 172 James Street. Ruff entered the apartment first. Rusignuolo ran after Betts and defendant who were walking toward the apartment, watching Musi and Bailey. As they gained entrance to the apartment, Rusignuolo was only seven feet away. West recovered the cocaine from the tree. The plastic bag contained approximately sixty black cap jugs of cocaine.

As Ruff and defendant entered the apartment, Rusignuolo placed his foot in the doorway preventing it from being slammed shut. Musi and Rusignuolo entered the apartment. Betts and defendant were apprehended in the living room and Ruff was found hiding in the bedroom. A female was the only other person in the apartment. Ruff had sixty-four dollars on his person, while defendant had eleven dollars. Detective Toussaint Hollins of the Essex County Sheriff's Department qualified as an expert witness and testified that jars of cocaine were commonly referred to on the street as "jugs" and each, depending upon the quantity of cocaine contained, had a value of between ten to twenty dollars.

Prior to closing arguments, defendant requested an instruction on cross-racial identification. Denying the request, the judge agreed with the State's position that identification was not an issue because Rusignuolo never lost sight of defendant and the two codefendants except for the instant they went into the apartment and they were the only males found in the apartment.

After approximately one-half hour of deliberation, the jury presented the following question:

"One of the jurors is confused about how clearly the officer identified the defendant. Could it be clearly explained since the panel is [in] doubt?" The judge permitted the jury to go to lunch. When the jury returned, the judge instructed, "how clearly or how not clearly the defendant was identified is for you to determine based upon your recollection of the facts." The judge gave the following identification instructions:

The defendant, as part of general denial of guilt contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that he is the person who committed the alleged offense.

The burden of proving the identity of the person who committed the crime is upon the State. For you to find the defendant guilty, the State must prove beyond a reasonable doubt that this defendant is the person who committed the crime.

The defendant -- burden nor the duty to show that the crime that was committed was committed by someone else or to prove . . . the identity of the other person.

You must determine, therefore, not only whether the State has proven each and every element of the offense charged beyond a reasonable doubt, but also whether the State has proven beyond a reasonable doubt that this defendant is the person who committed it.

The State presented testimony of Newark police officers Frank [Rusignuolo] and Jason West. You will recall both these witnesses identified the defendant in court as the person who they observed on March 22nd, 2003.

They were in a surveillance point in the minivan approximately anywhere from, I think, 70 to 100 feet from their location. And they indicated the defendant took drugs from -- S-1 from his waistband and hid it next to a tree.

And also that -- that ultimately a buyer would go from the one person, who was waving him to the person to the porch, to the person to the tree. He was the person, the allegation, that handled the drugs. That's their testimony.

The State also presented testimony on a prior case and before the trial they identified the person as the person who committed this offense. According to the witness, his identification of defendant was based upon the observations and perceptions that they made of the perpetrator at the time the offense was being committed.

It is your function to determine whether the witness's identification of the defendant is reliable and believable or whether it's based on mistake or for any other reason not worthy of belief.

You must decide whether it is sufficiently reliable evidence upon which to conclude that this defendant -- the offense charged. In evaluating the identifications, you should consider the observations and perceptions on which the identifications were based and the witness's ability to make those observations and perceptions.

If you determine that the out of court identification is not reliable, you may still consider the witness's in court identification of defendant, if you find that to be reliable.

Unless the in court identification resulted from the witness's observations or perceptions of the perpetrator during the commission of the offense rather than being a product of impression gained and the out of court identification procedure . . . should be afforded no weight.

The ultimate issues of the trustworthiness of both of in and out of court identification are for you to decide. To decide whether the identification testimony is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offense charged, you should evaluate the testimony of the witness in light of the factors for considering credibility that I've already explained to you.

In addition, you consider the other following factors. The witness's opportunity to view the person who committed the offense at the time of the offense. The witness's degree of attention on the perpetrator when he observed the crime being committed.

The accuracy of any description the witness gave prior to identifying the perpetrator. The degree of certainty expressed by the witness in making any identification. The length of time between the observation and the first identification right afterwards.

Discrepancies or inconsistencies between identification, if any, exist. The circumstances under which the out of court identification was made. -- here, it was surveillance from a minivan several feet away and ultimately the arrest inside the apartment at 172 James Street.

Any other factors based on the evidence or lack of evidence in the case which you consider relevant to your determination whether the identifications are reliable.

The fact that an identifying witness is not of the same race as the perpetrator or defendant and whether that fact may have an impact on the accuracy of the witness's original perception or the accuracy of subsequent identification.

You should consider that ordinary human experience. People may have greater difficulty in accurately identifying members of different race[s]. If after the consideration of all the evidence, you determine the State has not proven beyond a reasonable doubt that defendant was the person who committed the offense, then you must find him not guilty.

If, on the other hand, you after consideration of all the evidence you are convinced beyond a reasonable doubt that defendant was correctly identified, you will then consider whether the State has proven each and every essential element of the offenses charged beyond a reasonable doubt.

After less than one hour, the jury returned with the following message: "We have attempted to come to an agreement. Unfortunately, we are not all in agreement." The judge then gave them the following instruction:

Well, let me say this. You . . . are supposed to attempt to come to an agreement. That's your job. Okay?

And, frankly, you've been out I would say a half hour between the time I finished my charge and the time I sent you to lunch and probably less than an hour after lunch. So, you were in there less than an hour and a half and to be not in agreement only after an hour and a half is normal. Okay?

So, I'm going to direct you to go back in the jury room and continue deliberations. Okay? Thank you.

Defendant moved for a mistrial, arguing, "[i]t's clear from the note that's been provided to the court that they're unable to reach an agreement." The judge denied defendant's motion, noting that it is unusual for a jury to reach an agreement in less than one and one-half hours.

On appeal, defendant raises the following points:

POINT ONE

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT INSTRUCTING THE JURY ON THE ISSUE OF IDENTIFICATION AND CROSS-RACIAL IDENTIFICATION AS PART OF THE ORIGINAL JURY INSTRUCTIONS.

POINT TWO

THE TRIAL COURT'S INSTRUCTION TO THE JURY AFTER IT INDICATED IT WAS DEADLOCKED WAS PREJUDICIAL TO THE DEFENDANT AND RESULTED IN A DENIAL OF [A] FAIR AND IMPARTIAL JURY AND IS GROUNDS FOR A REVERSAL OF HIS CONVICTIONS.

POINT THREE

THE APPELLANT'S CONVICTIONS SHOULD BE REVERSED AS THERE WAS INSUFFICIENT EVIDENCE PRESENTED FOR THE JURY TO CONVICT THE APPELLANT OF THE VARIOUS NARCOTIC OFFENSES.

POINT FOUR

THE COURT COMMITTED ERROR BY GIVING THE APPELLANT A HIGHER SENTENCE [THAN] THE MINIMUM SENTENCE INCLUDING A MINIMUM MANDATORY THREE YEAR SENTENCE.

Defendant first contends that it was error for the trial judge to deny his request for an identification instruction including a charge on cross-racial identification. The principles are well settled. Upon an appropriate request, a trial court should instruct the jury that it is the prosecution's burden to prove beyond a reasonable doubt that the defendant committed the crime charged, that the defendant has no duty to show that he was elsewhere when the crime was committed, that the State's case depends upon the reliability of the identification evidence presented, and that it is appropriate to consider the capacity of the witness to make observations in addition to his opportunity under all the attendant circumstances for seeing that which he says he saw. State v. Green, 86 N.J. 281, 293-94 (1981). If a pretrial identification has been made, the judge should instruct the jury that it must determine whether any in-court identification results from the observations or perceptions of the defendant during the commission of the crime rather than being the product of the pretrial confrontation. Id. at 294. Finally, the judge should mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case. Id. at 287-88; see also State v. Concepcion, 111 N.J. 373, 379 (1988).

The cases addressing an omitted identification charge demonstrate that vitiating an otherwise valid conviction depends on the circumstances of the case and is highly fact-sensitive. See Green, supra, 86 N.J. at 291-92; State v. Malloy, 324 N.J. Super. 525, 535 (App. Div. 1999); State v. Walker, 322 N.J. Super. 535, 545-50 (App. Div.), certif. denied, 162 N.J. 487 (1999); State v. McNeil, 303 N.J. Super. 266, 272 (App. Div. 1997); State v. Edmonds, 293 N.J. Super. 113, 118 (App. Div. 1996), certif. denied, 148 N.J. 459 (1997); State v. Salaam, 225 N.J. Super. 66, 69-72 (App. Div. 1988); State v. Frey, 194 N.J. Super. 326, 328-30 (App. Div. 1984).

A cross-racial instruction should be given "when . . . identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." State v. Cromedy, 158 N.J. 112, 132 (1999).

Here, contrary to defendant's contention, the judge's initial refusal to give an identification charge was justified. The identification was made by two trained officers who viewed defendant's criminal activity. Both Rusignuolo's and West's observations of defendant were not the product of a chance encounter. They were at the scene and observed four separate transactions, all of which were within their clear view from a distance of approximately seventy feet. Both officers obviously had a heightened awareness of the need for a proper identification. They also had a strong incentive to be observant. See State v. Little, 296 N.J. Super. 573, 580 (App. Div.), certif. denied, 150 N.J. 25 (1997). Defendant's arrest occurred very close to the scene almost immediately after the commission of the crimes when the officers' on-the-scene perceptions were indelibly imprinted in their mind. Despite extensive cross-examination, the officers readily identified defendant without hesitation and were unequivocal in their statements that defendant was the perpetrator. Salaam, supra, 225 N.J. Super at 70-71.

Rusignuolo chased defendant into the apartment only losing sight of him for an instant as defendant entered the apartment. The officers corroborated each other's testimony. The apprehension of the three suspects, who were the only males found in the apartment, together with the seizure of drugs in the plastic bag at the location where defendant was observed during the four transactions, was other evidence affording independent reliable corroboration.

Defendant also argues that the instructions given by the judge following the jury's first question was too little too late. He contends that because the judge refused his initial request for an identification charge, his counsel was unable to argue identification adequately in his closing remarks. The record, however, discloses that defense counsel vigorously argued both officers' ability to make observations from their position inside the van, the observations they claim to have made, and the lack of credibility of their testimony surrounding defendant's involvement. Simply put, the jury was well aware of the mistaken identity defense although argued by defendant in terms of credibility. The record reflects that defendant counsel amply "probe[d] the State's evidence with vigor and diligence . . . ." State v. Robinson, 165 N.J. 32, 45

(2000). Prior to the judge's supplemental charge on identification, the jury was adequately instructed on credibility and the State's burden of proof. Although in hindsight the better course would have been to instruct identification, we are convinced that the failure to do so was harmless beyond a reasonable doubt.

Further, the judge's supplemental instructions were adequate to ameliorate any significant prejudice. State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S. Ct 1306, 122 L. Ed. 2d 694 (1993). There is no reason to believe that the jury was unwilling or unable to follow the instructions as given. State v. Manley, 54 N.J. 259, 270 (1969). In any event, it would offend the interests of justice to require a rerun of the trial under these circumstances. See State v. Macon, 57 N.J. 325, 333 (1971).

Defendant next argues that the jury indicated that it was deadlocked and the judge's instructions "were coercive and improperly pressured the jury" to return a guilty verdict. Relying on State v. Czachor, 82 N.J. 392, 405-06 (1980), defendant also contends, for the first time on appeal, that the judge should have given the jury more guidance. He claims that the judge's response to the jury's note indicating that its members were not all in agreement was equivalent to placing a time limit on further deliberations, thus creating an ultimatum contrary to State v. Nelson, 304 N.J. Super. 561, 566 (App. Div. 1997). We disagree. The judge's response that it is normal for a jury not to have reached an agreement in one and one-half hours and directing the jury to "continue deliberations" was not coercive nor did it impose pressure or a time limit. Instead, it was "entirely neutral" and appropriate under the circumstances. State v. Childs, 204 N.J. Super. 639, 648 (App. Div. 1985), certif. denied, 104 N.J. 340 (1986); see State v. DiFerdinando, 345 N.J. Super. 382, 397 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).

Defendant's failure to move for new trial generally precludes us from determining whether the verdict was against the weight of the evidence. R. 2:10-1; State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). Where such a motion is made, the trial judge is obliged to grant the motion "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly appears that there was a miscarriage of justice under the law." Dolson v. Anastasia, 55 N.J. 2, 7 (1969). Notwithstanding the procedural bar, we conclude that defendant's claim that there was insufficient evidence presented to convict is without merit to warrant a prolonged discussion in a written opinion. R. 2:11-3(e)(2). Defendant's assertions involve issues of credibility that were resolved by the jury. See State v. Haines, 20 N.J. 438, 446-47 (1956). We are satisfied from our review of the record that there was sufficient evidence from which the jury could reasonably infer defendant's guilt. State v. Reyes, 50 N.J. 454, 458-59 (1967). The verdict reached did not constitute a manifest denial of justice.

Finally, defendant argues that his sentence was excessive. We have considered defendant's contention and supporting argument and are satisfied that the presumptive sentence imposed is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

 
Affirmed.

(continued)

(continued)

15

A-0064-04T4

December 29, 2005