STATE OF NEW JERSEY v. GARRICK KIRK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1602-04T41602-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARRICK KIRK,

Defendant-Appellant.

_____________________________

 

Submitted May 31, 2006 - Decided June 26, 2006

Before Judges Kestin and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Criminal

Part, Mercer County, 01-10-1445.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michele C.

Buckley, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County

Prosecutor, attorney for respondent

(Dorothy Hersh, Assistant Prosecutor,

of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant was tried to a jury on Mercer County Indictment No. 01-10-1445, charging him with: fourth-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12) (Count One); fourth-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12) (Count Two); fourth-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12) (Count Three); second-degree eluding, N.J.S.A. 2C:29-2b (Count Four); third-degree theft by receiving stolen property, N.J.S.A. 2C:20-7a (Count Five); third-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10c (Count Six); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (Count 7).

Defendant was acquitted on the charge originally contained in Count Three but was convicted of the lesser included disorderly persons offense of possession, N.J.S.A. 2C:35-10. Defendant was also acquitted on the charge originally contained in Count Seven but was convicted of the lesser included fourth-degree offense of resisting arrest, N.J.S.A. 2C:29-2a(2). He was convicted on the remaining five counts.

The judge merged Count One into Count Two and imposed concurrent custodial terms of eighteen months on Count Two and six months on Count Three. The judge imposed an extended custodial term of fifteen years with a five year period of parole ineligibility on Count Four to run consecutively to the sentences imposed on Counts Two and Three. The judge merged Count Six into Count Five and imposed custodial sentences of five years on Count Five and eighteen months on Count Seven to run concurrently with each other and with the sentence on Count Four.

Defendant appeals from his convictions and from the sentences imposed. We remand for resentencing on Counts Two, Five, and Seven and affirm otherwise.

These are the facts necessary for a consideration of the arguments advanced by defendant. Detectives Christopher Doyle and Frank Guido of the Trenton Police Department were assigned to an undercover operation on June 27, 2001. They were to "go out in an undercover vehicle, in plain clothes, and . . . to attempt to purchase narcotics on the street." If they were successful, "then a bust team, an arrest team, would be directed in by the buying officer . . . to take those persons into custody that had sold narcotics to the undercover officer."

The officers testified at trial that they were approached by defendant who ultimately sold them a quantity of marijuana. They paid for the drug with bills that had been "marked" earlier that day. Immediately after completing the transaction, they advised the arrest team of defendant's location. Officer Woodhead was member of that team. He testified that when he pulled next to the car identified for him by Guido and Doyle, defendant put his car into reverse and began to flee. Defendant drove approximately 1.1 miles in reverse at speeds approaching forty miles an hour while traveling, at least part of the way, in the wrong direction on a one-way street. Defendant exited the car which continued until it stopped when it struck a parked car.

Woodhead testified that he never lost sight of defendant and eventually apprehended him, recovering both a quantity of marijuana and the marked bills which had been used to purchase drugs by Officer Guido and Doyle. The marked bills, although originally placed in the evidence file, were ultimately returned to circulation for use in other operations. Although photocopies were produced at trial, the original bills were not.

On appeal, in counsel's brief, defendant urges the following seven points:

POINT ONE

THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT THAT MR. KIRK POSSESSED MARIJUANA WITH THE INTENT TO DISTRIBUTE AND ELUDED POLICE AND THE GUILTY VERDICT ON THOSE CHARGES WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.

POINT TWO

MR. KIRK WAS DENIED DUE PROCESS OF LAW BY THE FAILURE OF THE STATE TO PROPERLY COLLECT AND PRESERVE CRITICAL AND POTENTIALLY EXCULPATORY PHYSICAL EVIDENCE.

POINT THREE

DEFENDANT WAS DENIED HIS RIGHT TO AN IMPARTIAL JURY BECAUSE OF JUROR MISCONDUCT, IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION IN ART.1, PARA.10 OF THE NEW JERSEY CONSTITUTION. [sic]

POINT FOUR

THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

POINT FIVE

UNDER THE NEW JERSEY SUPREME COURT'S RECENT DECISIONS IN STATE V. NATALE AND STATE V. ABDULLAH, THIS CASE MUST BE REMANDED TO THE TRIAL COURT FOR RESENTENCING CONSISTENT WITH THOSE OPINIONS.

POINT SIX

THE STATE'S DECISION TO SEEK THE ENHANCED SENTENCE IMPOSED IN THIS CASE WAS AN ARBITRARY AND CAPRICIOUS EXERCISE OF DISCRETION.

POINT SEVEN

THE COURT ERRONEOUSLY ORDERED THAT MR. KIRK'S SENTENCE FOR COUNT FOUR, ELUDING POLICE, RUN CONSECUTIVE TO THE SENTENCE FOR COUNT TWO, POSSESSION WITH INTENT TO DISTRIBUTE CDS.

Defendant filed a "pro se supplemental brief" in which he raises the following three arguments:

POINT I

THE COURT FAILURE TO GIVE A CAUTIONARY INSTRUCTION THAT GUARD AGAINST POTENTIAL PREJUDICE, IS REVERSIBLE ERROR, SINCE THE DEFENDANT DID NOT TESTIFIED AT HIS TRIAL AND TESTIMONIES CONCERNING HIS ARREST AND JAILHOUSE PROPERTY WAS BEFORE THE JURY. THEREBY VIOLATED HIS RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. V, IV; XIV; N.J. CONST. ART. 1. PARA. I., 10. [sic]

POINT II

THE COURT ERRED BY FAILING TO INSTRUCT THE JURY ON THE ATTEMPT MENTAL STATE FOR THE CHARGE OF ELUDING POLICE, AND ITS FAILURE DEPRIVED DEFENDANT OF DUE PROCESS AND RIGHT TO A FAIR TRIAL, U.S. AND N.J. CONST. ART. 1. PARA 1., 10. [sic]

POINT III

THE RESISTING ARREST COUNT AND ITS SENTENCED OF 18-MONTHS MUST BE VACATED, BECAUSE THE COURT ERRED BY SENTENCING DEFENDANT ON THAT CHARGE FIRST, WITHOUT CORRECTION, TO 5-YEARS AS IF IT WAS A THIRD-DEGREE CRIME. THEREBY, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW. U.S. CONST. AMENDS. VI, XIV; AND N.J. CONST. ART. I. PARAS. 1, 10. [sic]

The judge considered the burden-of-proof argument, both when he denied defendant's motion for a judgment of acquittal at the close of the State's evidence and when he denied defendant's motion for a new trial. In considering whether the State had produced sufficient evidence to convict, the judge said:

You have the testimony of Detective Guido and Detective Doyle, each of whom positively identified Mr. Kirk as the person who sold the marijuana to Detective Guido, and you also have Woodhead testifying that shortly after the incident, after having pursued Mr. Kirk for over a mile in a car, that was the same car used by the person who sold to Guido and Doyle, he apprehended Mr. Kirk, and under those circumstances, I think the State has made our more than a prima facie case, and certainly a reasonable jury could find Mr. Kirk guilty of the charge of distribution and possession with intent beyond a reasonable doubt, so the [Rule] 3:18 application is denied.

On defendant's motion for a new trial, the judge dealt with the same issue:

The Officers called at trial testified as to their observations regarding the defendant. The officers were clear in their belief that Mr. Kirk was observed on the day at issue and was the one sitting before them at trial. Any testimony regarding the identification was a matter for the jury to assess. State versus Bohuk, 269 N.J. Super. 581 (App. Div.), certif. denied, 136 N.J. 29 91994), cert. denied, 513 U.S. 865 (1994).

Additionally, this Court gave an identification instruction which included instructions with regard to cross-racial identification.

The judge also considered defendant's due process argument regarding the preservation of evidence when denying the motion for a new trial. He said:

Second, the defendant attempts to argue that the failure of the Trenton Police Department to produce the currency seized from him warrants a new trial. Such argument is without merit.

Where there has been destruction of physical evidence in a criminal case, the Court must determine whether there was bad faith or connivance on the part of the government, and whether the defendant was prejudiced by the loss or destruction of the evidence. State versus Montijo, 320 N.J. Super. 483 (Law Div. 1998).

Whatever duty the constitution imposes on the state[] to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. State versus Washington, 165 N.J. Super. 149 (App. Div. 1979).

In the present case, there was no evidence that the police acted in bad faith in the loss of the currency. More importantly, Mr. Kirk was not prejudiced by the failure to maintain the cash. The evidence did not have any exculpatory value ascertainable prior to or even after its loss, and defense counsel was able to effectively question members of the Trenton Police Department regarding the loss of the evidence.

Defendant's argument asserting juror misconduct relates to his claim that one of the jurors was improperly influenced. This juror expressed some concern during the deliberations that her conscience would not allow her to judge a fellow human. The judge addressed those concerns to the declared satisfaction of the defense. After the verdict was returned, defendant claimed the juror had been coerced and referenced a communication between the juror and a corrections officer she met at a mall after the verdict. We have independently reviewed the record and can find nothing to substantiate the assertion of improper behavior. The judge disposed of this claim on the motion for a new trial:

Mr. Kirk has alleged juror misconduct since writing a letter to the Court on February 22nd, 2004. He renewed his contention verbally at a March 19th, sentencing hearing. Sentencing was then postponed until April 16th, 2004, to allow Mr. Kirk time to substantiate his claim. To this date, that is, June 25th, he has not offered a single piece of evidence to support his contention.

In contrast, after rendering the verdict, the Court polled the jurors individually. Each juror responded in the affirmative that the verdict given was the juror's own verdict. Additionally, pursuant to the defendant's own letter of February 22nd, any contact between the juror and the corrections officer did not take place until after the conclusion of the trial. As such, none of these comments made between the two, if any, would have had the capacity to influence or even appear to influence any deliberations of the jury.

Our independent review of the record leaves us in full agreement with the judge's analysis of these issues and with the result he reached. We reject defendant's arguments respecting his conviction for the reasons expressed by the Judge in his February 3, 2004, oral opinion denying defendant's motion for acquittal and his June 25, 2004, oral opinion denying defendant's motion for a new trial. Any arguments respecting the convictions that we have not addressed lack sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(2).

We have also reviewed the record in light of the arguments advanced respecting the sentences imposed. Our review of the sentences is limited. See State v. Jarbath, 114 N.J. 394, 410 (1989) (the power to modify a sentence must be "used only sparingly: when trial courts are 'clearly mistaken' and 'the interests of justice demand intervention and correction.'") (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). With the exception of the sentence on Counts Two, Five, and Seven, the sentences imposed here were well within the judge's discretion. Defendant argues that the consecutive, extended sentence of fifteen years with a five-year period of parole ineligibility imposed on Count Four was improper. The judge's decision to impose the extended consecutive term was well within his sentencing authority. Since the judge imposed the presumptive extended term for a second-degree crime, N.J.S.A. 2C:44-1f, no reconsideration of that sentence is necessary. Defendant's arguments, to the contrary, are without sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(2).

Nevertheless, and although defendant has not specifically briefed these issues, we are constrained to reverse and remand for resentencing on Counts Two, Five and Seven. Counts Two and Five charged fourth-degree crimes for which, at the time of sentencing, defendant was subject to custodial terms of up to eighteen months, N.J.S.A. 2C:43-6(a)(4), with a presumptive term of nine months, N.J.S.A. 2C:44-1(f)(e). Count Five charged a third-degree crime for which defendant was subject to a custodial term of between three years and five years, N.J.S.A. 2C:43-6(a)(3), with a presumptive term of four years. N.J.S.A. 2C:44-1(f)(d). The judge imposed sentences of eighteen months on Counts Two and Seven and five years on Count Five. In imposing sentences in excess of the presumptive term, the judge relied on four of the aggravating factors described in N.J.S.A. 2C:44-1a including factor eleven, relating to the perception that a more lenient sentence would be perceived as simply the cost of doing business. The utilization of a factor unrelated to defendant's prior record requires a remand for a resentencing in accordance with State v. Natale, 184 N.J. 458 (2005).

The convictions are affirmed; the sentences imposed on Counts Three and Four are affirmed; the sentences on Counts Two, Five, and Seven are vacated and the matter is remanded for resentencing on these Counts.

 

The Indictment originally contained ten counts. Three counts were dismissed prior to trial and the remaining counts were renumbered.

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A-1602-04T4

June 26, 2006