STATE OF NEW JERSEY v. CALVIN JACKSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4764-03T4764-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CALVIN JACKSON,

Defendant-Appellant.

_________________________________________________

 

Submitted October 11, 2005 - Decided:

Before Judges Axelrad and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

03-01-0018-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michele A.

Adubato of counsel and on the brief).

Peter C. Harvey, Attorney General,

attorney for respondent (Nina D. Bonner,

Deputy Attorney General, of counsel and

on the brief).

PER CURIAM

Defendant Calvin Jackson appeals from his conviction by a jury of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count One), possession with the intent to distribute cocaine, N.J.S.A. 2C:35-5a(1) and b(3) (Count Two), and possession of cocaine with the intent to distribute it within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Three). He also appeals from an extended term sentence of ten years in custody with five years of parole ineligibility.

On appeal, Jackson raises through counsel the following arguments for our consideration:

POINT I

THE LIMITATION OF THE CROSS-EXAMINATION OF P.O. EASON INFRINGED UPON THE DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AND HIS RIGHT TO A FAIR TRIAL.

POINT II

THE DEFENDANT'S MISTRIAL MOTION BASED UPON A DENIAL OF HIS RIGHT TO A PUBLIC TRIAL SHOULD HAVE BEEN GRANTED.

POINT III

IT WAS PLAIN ERROR FOR THE TRIAL COURT TO PERMIT A LAW ENFORCEMENT FACT WITNESS TO PROVIDE OPINION TESTIMONY AND TO NEGLECT TO INSTRUCT JURORS REGARDING THEIR EVALUATION OF THIS TESTIMONY. (Not Raised Below.)

POINT IV

THE COURT ERRED IN REFUSING TO INSTRUCT THE JURY, AT DEFENDANT'S REQUEST, OF THE LESSER-INCLUDED OFFENSE OF WANDERING, REMAINING IN OR PROWLING PUBLIC PLACES WITH PURPOSE OF OBTAINING OR SELLING CONTROLLED SUBSTANCES.

POINT V

CERTAIN STATEMENTS MADE BY THE PROSECUTOR IN HIS SUMMATION VIOLATED DEFENDANT'S FIFTH AMENDMENT RIGHT TO REMAIN SILENT AND SIXTH AMENDMENT RIGHT TO A FAIR TRIAL. (Not Raised Below.)

POINT VI

THE DEFENDANT'S NOTICE OF MOTION FOR NEW TRIAL SHOULD HAVE BEEN GRANTED.

POINT VII

THE DEFENDANT'S EXTENDED TERM SENTENCE WAS EXCESSIVE AND SHOULD BE REDUCED. (Not Raised Below.)

In addition to the foregoing, in a pro se brief, Jackson argues:

POINT ONE

REMAND IS WARRANTED TO ALLOW THE TRIAL COURT OPPORTUNITY TO DETERMINE THE VALIDITY OF THE LAB REPORT AND SUPPORTING CUSTODIAL CHAIN.

We affirm Jackson's conviction and reverse his sentence, remanding the matter for resentencing.

Evidence of Jackson's guilt was presented by police officer Scott Eason who had, through surveillance from a vacant lot, observed Jackson conducting six hand-to-hand transfers of small packages in exchange for money to passing motorists in a one-half hour period before Eason called in additional police to effect an arrest. When arrested, Jackson had eighteen baggies containing crack cocaine on his person, but no money. His partner and nephew, Terrance Jackson, was found upon arrest to be carrying $205 in cash. The transactions at issue occurred within 1000 feet of Number 6 School, operated by the Paterson Board of Education.

I.

On appeal, Jackson first challenges the court's limitation of the cross-examination of Officer Eason, claiming that it violated his right to confront witnesses against him, guaranteed by the Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution. In particular, Jackson objects to the court's refusal to permit his counsel to seek to establish through cross-examination of Officer Eason that other individuals had been illegally arrested by officers other than Eason at approximately the same time that Jackson was, and to use that evidence of illegal conduct to impeach the credibility of Eason in this case.

The issue arose as the result of a statement by defense counsel in his opening that:

These officers just don't stop with Mr. Jackson. They actually go into a house at . . . 130 12th Avenue without a warrant, and arrest two people for being inside their own homes. I'm sorry, for being in a hallway in their own apartment building, completely unrelated to this crime. At the - within seconds, within minutes - of them arresting Mr. Jackson.

At the conclusion of counsels' openings, the prosecutor objected to any introduction of testimony or other evidence supporting this statement as irrelevant. Following an extended colloquy, during which defense counsel explained that he wished to use the alleged illegality of the officers' conduct in apprehending the unrelated individuals to impeach Eason's version of what he saw and did, the court sustained the objection.

A trial judge has discretion to determine the proper limits of cross-examination of a witness such as Eason whose credibility is placed in issue. State v. Tirone, 64 N.J. 222, 228 (1974); State v. Pontery, 19 N.J. 457, 473 (1955); State v. Steele, 92 N.J. Super. 498, 503 (App. Div. 1966). We see no abuse of that discretion in this case. Defense counsel was given ample opportunity to vigorously cross-examine Eason's statements relating to his identification of Jackson and observations of his activities, including the visibility on the night in question, his distance from Jackson, what he could hear at that distance, and the extent of concealing weed growth in the lot from which the surveillance took place. He also engaged in substantial cross-examination regarding the sales to which Eason had testified, establishing that Eason had not noted the license plate numbers of Jackson's customers or described the drug purchasers, had not videotaped or photographed the alleged sales, had not used binoculars or night vision goggles, and had not searched for a stash. Additionally, counsel challenged Eason's testimony regarding his vantage point, suggesting that he would have been observed by passers-by in that location, and he challenged Eason's testimony that Jackson was seized with drugs in his hand, suggesting that he would have disposed of them prior to being apprehended by the police. That counsel was not also permitted to explore through the cross-examination of Eason unrelated arrests by officers who did not appear as witnesses at trial does not, in these circumstances, constitute an abuse of discretion by the court. Counsel does not have "license to roam at will under the guise of impeaching the witness." Pontery, supra, 19 N.J. at 473.

II.

Jackson next claims that the court erred in declining to grant a mistrial as the result of the mistaken exclusion of Jackson's nephew Terrance from the court by a court officer during jury selection because the officer thought Terrance was subject to the court's sequestration order. Upon determining that the sequestration order did not apply to the nephew, the officer permitted him to enter, and he remained throughout the trial.

Jackson nonetheless argues that this precautionary action by the court officer, without any notice to or authorization by the trial court and without any formal closure of the trial proceedings deprived him of his Sixth Amendment right to a public trial, necessitating a mistrial. We disagree.

A right to a public trial has been deemed fundamental. See, e.g., Waller v. Georgia, 467 U.S. 39, 44-46, 104 S. Ct. 2210, 2214-15, 81 L. Ed. 2d 31, 37-38 (1984); State v. Cuccio, 350 N.J. Super. 248, 260 (App. Div. 2002), certif. denied, 174 N.J. 43 (2002). Further, exclusion of a defendant's family from the courtroom during jury selection has been held to violate the public trial guarantee, requiring a new trial. Cuccio, supra, 350 N.J. Super. at 261.

Nonetheless, "[t]he denial of a defendant's right to a public trial requires some affirmative act by the trial court meant to exclude persons from the courtroom." United States v. Al-Smadi, 15 F.3d 153, 154-55 (10th Cir. 1994). A "brief and inadvertent closing" of a courtroom, "unnoticed by any of the trial participants" does not violate the Sixth Amendment. Ibid. See also, e.g., United States v. Shryock, 342 F.3d 948, 974-75 (4th Cir. 2003) (no Sixth Amendment violation when seating limited by size of courtroom), cert. denied, 541 U.S. 965, 124 S. Ct. 1729, 158 L. Ed. 2d 411 (2004); Perez v. Cockrell, 77 Fed. Appx, 201, 204 (5th Cir. 2003) (no Sixth Amendment violation when sign on door during jury selection stated "knock, no admittance"), cert. denied, sub nom. Perez v. Dretke, 540 U.S. 1221, 124 S. Ct. 1505, 158 L. Ed. 2d 157 (2004); Gonzalez v. Quinones, 211 F.3d 735, 737 (2d Cir. 2000) (no Sixth Amendment issue when court officer locked courtroom doors, without knowledge of the court, during the testimony of two witnesses); Synder v. Coiner, 510 F.2d 224, 230 (4th Cir. 1975) (no constitutional violation when courtroom locked for a short time without knowledge of the trial judge during arguments by trial counsel before jury). In such circumstances, the error is deemed trivial. As stated by Judge Calabresi in Peterson v. Williams, 85 F.3d 39 (2d Cir. 1996):

A triviality standard, properly understood, does not dismiss a defendant's claim on the grounds that the defendant was guilty anyway or that he did not suffer "prejudice" or "specific injury." It is, in other words, very different from a harmless error inquiry. It looks, rather, to whether the actions of the court and the effect that they had on the conduct of the trial deprived the defendant -- whether otherwise innocent or guilty -- of the protections conferred by the Sixth Amendment.

[Id. at 42, cert. denied, 519 U.S. 878, 117 S. Ct. 202, 136 L. Ed. 2d 138 (1996).]

In this case, there is ample precedent, derived from similar factual circumstances, demonstrating that the exclusion of Jackson's nephew from jury selection met Judge Calabresi's triviality standard and did not constitute a Sixth Amendment violation.

III.

In his third argument on appeal, Jackson characterizes testimony by Eason that the street value of one of the baggies found upon Jackson as five to ten dollars constituted impermissible expert testimony by a lay witness; that the court gave no instruction as to the evaluation of such testimony; and that the testimony usurped the jury's function of determining whether Jackson was guilty of possessing cocaine for the purpose of distributing it to others.

As an initial matter, we do not accept Jackson's argument that Eason impermissibly gave an opinion as to whether Jackson had committed a crime. His testimony as to the street value of drugs found on Jackson's person following his arrest does not constitute such a statement. Compare State v. Baskerville, 324 N.J. Super. 245, 255 (App. Div. 1999) ("In my opinion the individual was, the individual was selling narcotics."), certif. denied, 163 N.J. 10 (2000). This is so because the testimony did not serve to characterize Jackson's conduct, and it did not embrace the ultimate question of his guilt. Id. at 258.

We further find no plain error to exist either in the admission of Eason's testimony regarding the street value of the cocaine or the court's failure to give an expert witness instruction. The testimony at issue was properly admissible as a statement of fact or as opinion testimony by a lay witness pursuant to N.J.R.E. 701. State v. Labrutto, 114 N.J. 187, 199 (1989); State v. Sparano, 249 N.J. Super. 411, 422 (App. Div 1991). Officer Eason's experience as a police officer working on narcotics cases provided sufficient foundation for the testimony. Even if we were to deem the testimony to have been expert in nature, we find Eason to have been qualified by experience and training to have given it. N.J.R.E. 702. Given the incidental nature of the testimony to issues of Jackson's guilt, we find that any error in failing to give an expert witness instruction to be insufficient to warrant reversal on grounds of plain error. R. 2:10-2; State v. Macon, 57 N.J. 325, 335 (1971).

IV.

Jackson suggests additionally that the court erred when it denied the State's suggestion that it charge the lesser-included offense of fourth-degree wandering for the purpose of purchasing or distributing a controlled dangerous substance. N.J.S.A. 2C:33-2.1. We reject that argument, finding, as did the trial judge, that there was no rational basis for a verdict convicting Jackson of the included offense. In order for such a rational basis to exist, there must have been reasonable grounds in the evidence for a jury to have acquitted Jackson of the charged offense and to have convicted him of the lesser one. State v. Brent, 137 N.J. 107, 113-14 (1994); State v. Sloane, 111 N.J. 293, 299 (1988). Here, the evidence, if believed, required conviction on the charges for which Jackson was indicted; if disbelieved, it required acquittal. There was no basis for acquittal of drug possession and possession with an intent to distribute, but conviction instead of loitering for those same purposes.

V.

Jackson also objects to the prosecutor's query in summation:

How do you know that someone intends to do something. In this case, would you expect a drug dealer to just come out and admit to the police, I was selling drugs? Do you think that that's something that's reasonable that would happen? No.

The way we figure out what someone intends to do is by their actions. And in this case, Calvin Jackson's . . . actions . . . spoke louder than any words that could possibly be spoken about what he intended to do and what he was doing that night.

Jackson contends that this argument, to which no objection was raised at trial, called attention to the fact that he had not testified as a witness at trial and compromised his Fifth Amendment right to remain silent. We do not view it in that light, but rather as fair comment upon defense counsel's argument that there was no evidence of an intent to distribute cocaine. That the prosecutor intended his argument to be construed in that light is demonstrated by the statement that immediately preceded the extract to which Jackson objects:

It's interesting that counsel raised a point of intent and he's asking, well, how do we know what the defendant intended to do in this case? How do we know that? Well, let's think about that.

As such, the prosecutor's statement was unobjectionable. See State v. Nelson, 173 N.J. 417, 473 (2002) ("A prosecutor may respond to defense claims, even if the response tends to undermine the defense case."); State v. Wilson, 128 N.J. 233, 241-42 (1992) (noting that the prosecutor's response to defense counsel's challenge to the credibility of a witness did not exceed legitimate comment); State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.) ("A prosecutor may respond to an issue or argument raised by defense counsel. Her response to an issue injected by opposing counsel cannot be considered a foray beyond the evidence adduced at trial."), certif. denied, 114 N.J. 587 (1996).

We also perceive no prejudice to Jackson from the prosecutor's statement that pictures shown to Eason at trial and discussed by defense counsel in his closing were from the "defense team." The prosecutor stated:

Now you heard counsel for Calvin Jackson make some references to photographs that you have and you'll be able to look at. These . . . six photographs I suggest to you - you'll realize that none of these photographs were taken from the vantage point of the officer in this case, Scott Eason, from his vantage point of where he saw them.

Now, these are photographs - remember, these are photographs from the defense team. And [the] defense wants you to believe that the photographs that were taken by them show that Officer Eason did not see this defendant dealing drugs.

And what I suggest to you, take a good look at these pictures. And none of these pictures are taken from the vantage point of the police officer in this case. So I suggest to you that these pictures are not inherently helpful in deciding what the officer saw.

We conclude that these arguments, too, constituted fair comment, amply supported by the testimony at trial of Officer Eason.

VI.

We find no merit in Jackson's argument that he was entitled to a new trial as the result of the alleged errors that we have discussed or his argument that a remand is required to explore the validity of the lab report and inviolability of the custodial chain - matters that were subject to stipulation at trial. We thus decline to discuss these issues further. R. 2:11-3(e)(2). If warranted, Jackson may raise his arguments regarding the identity of the drugs seized from him in the context of a properly presented petition for post-conviction relief.

VII.

As a final matter, Jackson challenges the extended ten-year term with a five-year parole disqualifier imposed upon him for the school zone offense as a repeat drug offender under N.J.S.A. 2C:43-6f. In this regard, he does not challenge his eligibility for an extended term, but argues that the sentence was excessive.

We reverse. Our review of the matter discloses that the trial judge went well beyond a review of Jackson's record in determining the applicability to him of aggravating factors 3 (risk of re-offense), 6 (extent of prior record) and 9 (deterrence), N.J.S.A. 2C:44-1(a)(3), (6) and (9), considering as well, in the context of these factors, that defendant likely committed perjury in the trial of his nephew and, additionally, that the chance of recidivism was great because defendant was a long-term addict who would not be receiving treatment in prison. The sentence imposed as a result of a consideration of those factors thus violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), which holds that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Id. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455. See also Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403, 412 (2004); State v. Natale, 184 N.J. 458, 481-82 (2005).

Second, the judge never articulated why he imposed a ten-year sentence rather than a shorter one, thereby frustrating effective appellate review. State v. Dunbar, 108 N.J. 80, 89 (1987); State v. Roth, 95 N.J. 334, 363 (1984).

As a final matter, the sentence of ten years that was imposed exceeded the presumptive term then applicable to second-degree crimes. We recognize that the trial court made no reference to the presumptive term when imposing sentence. Nonetheless, the sentence exceeded the "statutory maximum" of seven years, Natale, supra, 184 N.J. at 484, that was then applicable in Jackson's case in the absence jury factfinding. The sentence was thus imposed in violation of Jackson's Sixth Amendment rights. Ibid.; see also Blakely, supra, 542 U.S. at 303, 124 S. Ct. at 2537, 159 L. Ed. 2d at 413. As a consequence, re-sentencing is required.

Defendant's conviction is affirmed; his sentence is reversed, and the matter is remanded for re-sentencing.

 

On appeal, Jackson claims that the evidence would have been utilized to demonstrate that Eason did not make the observations that he claimed to have made, and that Jackson was simply caught up in a police sweep of the area. We do not construe the record in this fashion. However, we do not regard this difference as material. Even affirmative proof of such a sweep would not have shown that Officer Eason did not or could not have witnessed the acts of Jackson and his nephew that he claimed to have observed.

Jackson claims, without citation to the record, that Eason also "was allowed to testify that, in his opinion, defendant was selling drugs." We find no such testimony to have been offered.

Jackson's statement that his counsel requested the charge is not consistent with the record.

(continued)

(continued)

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A-4764-03T4

December 15, 2005