STATE OF NEW JERSEY v. SOLOMON MITCHELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2573-04T42573-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SOLOMON MITCHELL,

Defendant-Appellant.

______________________________________________

 

Submitted March 15, 2006 - Decided August 2, 2006

Before Judges Stern, Grall and Humphreys.

On appeal from the Superior Court of New

Jersey, Law Division, Cumberland County,

Indictment No. 03-05-0411.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Gilbert G. Miller, Designated

Counsel, of counsel and on the brief).

Ronald J. Casella, Cumberland County Prosecutor,

attorney for respondent (Matthew M. Bingham,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant was indicted with Patricia Sherwood and Montia Sherwood and charged with fourth-degree possession of over fifty grams of marijuana, N.J.S.A. 2C:35-10a(4) (count one); second-degree possession of five pounds or more of marijuana with intent to distribute, N.J.S.A. 2C:35-5b(10) (count two), and second-degree conspiracy to distribute five pounds or more of marijuana, N.J.S.A. 2C:5-2 (count three). Defendant and Patricia Sherwood were convicted on all counts, while co-defendant Montia Sherwood was found not guilty. The trial judge merged count one into count two and sentenced defendant on counts two and three to concurrent five-year sentences in the custody of the Commissioner of the Department of Corrections.

On this appeal, defendant argues that:

POINT I THE PROSECUTOR ENGAGED IN INSTANCES OF

MISCONDUCT ON SUMMATION WHICH SINGULARLY

AND CUMULATIVELY DEPRIVED DEFENDANT OF A

FAIR TRIAL. (Partially raised below)

POINT II INADMISSIBLE HEARSAY WAS ADDUCED AT TRIAL.

U.S. CONST., AMEND. VI; N.J. CONST., ART. I,

PAR. 10. (Not raised below)

POINT III SHERWOOD'S CLAIM THAT DEFENDANT LEFT A

MESSAGE WHICH THREATENED HER WAS INADMISSIBLE

OTHER BAD ACT EVIDENCE, AND HER CLAIM THAT

SHE FEARED DEFENDANT AS A RESULT OF THE

ALLEGED THREAT WAS NOT RELEVANT AND UNDULY

PREJUDICIAL. (Not Raised Below)

POINT IV DEFENDANT SHOULD HAVE BEEN TRIED SEPARATELY

FROM [PATRICIA] AND MONTIA [SHERWOOD]. (Partially raised by co-defendant [Patricia] Sherwood but not by defendant)

POINT V THE TRIAL COURT ERRONEOUSLY FAILED TO GIVE

REQUIRED LIMITING INSTRUCTIONS. (Not

raised below)

POINT VI DEFENDANT'S CONVICTIONS WERE AGAINST THE

WEIGHT OF THE EVIDENCE, AND A JUDGMENT OF

ACQUITTAL SHOULD HAVE BEEN ENTERED OR A NEW

TRIAL ORDERED

POINT VII DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE

Our thorough review of the record leads us to conclude that these contentions are clearly without merit and warrant only the following discussion. R. 2:11-3(e)(2). We affirm the conviction for possession with intent to distribute five pounds or more of marijuana and the sentence on count two, but remand for entry of an amended judgment merging count three into count two.

Defendant and co-defendant Patricia Sherwood were friends. Because Patricia did not have her driver's license, defendant would drive her "places," including "to work." Patricia and co-defendant Montia Sherwood, her nineteen-year-old daughter, lived in Vineland with Patricia's mother, two of Patricia's other children, two of Patricia's grandchildren, and Patricia's twenty-year-old nephew, Leon Mattie.

On Thursday, July 11, 2002, the Cumberland County Narcotics Task Force received information from police in Texas that a package scheduled for delivery by United Parcel Service ("UPS") to the Sherwood's address in Vineland, "possibly contained narcotics in it." The police gave Task Force Officer Luis Santiago, then a member of the Sheriff's Office, the box's "specific tracking numbers." Santiago called the local UPS depot in Vineland and asked to be alerted when the box arrived.

On the morning of Friday, July 12, 2002, UPS notified Santiago that the package had arrived at the regional distribution center in Vineland. Santiago and several other officers went to the center with their "certified narcotics [detecting] dog." The dog "indicated affirmatively on the box, which was unopened, that he detected a presence of a narcotic odor." As a result, Santiago successfully applied for a search warrant to open the package. The warrant was issued at

3:35 p.m.

Task Force officers executed the warrant at about 4:15 that afternoon, and took the package to the Narcotic Task Force headquarters. The officers proceeded to open the box. Inside, they discovered "[s]everal bundles of green vegetation that were wrapped in [what] appeared to be green and . . . red gel. With the exterior coated with potpourri. And contained within a Tupperware container." Santiago removed the Tupperware container from the box, cut the tape around the lid, and pulled the lid off. He removed one of the bundles and made a small incision in the plastic to reveal the green vegetative matter. A "field test" confirmed that the substance was marijuana. The drugs were then repackaged and a controlled delivery of the box was planned for the next business day, Monday, July 15, 2002.

Officer Santiago thereafter obtained an anticipatory warrant, which permitted the agents to enter the Sherwood home when the package was "breached." To this end, Special Investigator Anthony Fenu of the United States Postal Inspection Service installed a thin electrical wire, or "beeping device," inside the box, which would alert the Task Force when the package was opened.

That afternoon, the Task Force set up a surveillance of the Sherwood home. Most of the team assembled inside a "raid van," which was parked out of view from the house. However, the Narcotics Task Force Commander, Lieutenant Rosemary Parks, parked her car in a location from which she could observe the front of the house, and saw the delivery and receipt of the package.

This delivery took place at 2:58 p.m. United States Drug Enforcement Administration ("DEA") Special Agent Mark Wassmuth, another Task Force Member, went up to the Sherwood house with the UPS box and knocked on the door. An "elderly woman" answered the door. Wassmuth announced that he had a delivery for "Mark Brown," the addressee of the package, and the woman called defendant Montia Sherwood to the door. Montia told Wassmuth that Mark Brown was her uncle, that she had been instructed to accept the package on his behalf, and that she was eighteen and old enough to accept it. Wassmuth handed Montia the box and asked her to sign for it. Montia signed the name "Tina Wilson" on the delivery slip. Wassmuth then left the premises. Shortly thereafter, Montia exited the house and drove away.

The officers remained at the scene and monitored the transmitter in the box, which remained unopened. At about 4:30 p.m., Lieutenant Parks observed defendant's white 1991 Ford Explorer enter Patricia's driveway and proceed out of view to the back of the house. Parks then observed defendant walk around to the front of the house, push open the front door, and enter the house.

At 4:41 p.m., the officers in the raid van received a transmission signal that the box had been opened. Lieutenant Parks ordered the officers to raid the house. The officers thereupon executed the search warrant "almost immediately." According to Parks, about ten minutes passed between "the time from when the white vehicle pulled into the driveway to when approximately the package was breached."

The officers found defendant and Patricia Sherwood "standing in the room" at the rear of the house. According to Santiago, "right . . . in front of them was the - the box we had delivered. It was - I believe it was on top of a desk." The box was open, and a serrated knife sat on the table nearby. "The container was out [of the box]. Tape was breached. The lid was off. And the bundles were exposed." The red and green gel-smeared bundles in the container were partially exposed underneath the potpourri. However, they had not been opened or removed. Moreover, "[n]obody had taken scissors and cut them open and pulled it out and taken the vegetation out from underneath it to see what was there."

Defendant and Patricia were arrested, as was Montia who returned home shortly thereafter. All parties were given their Miranda warnings.

According to Santiago, Montia admitted to signing the alias "Tina Wilson" on the delivery slip, and to not knowing anyone named "Mark Brown," and told Santiago that "she's done this in the past" and that "she knew she had to accept" the box. Santiago also testified that Patricia denied that the box was hers, but admitted that she "recalled receiving prior packages under the same guise through a third party," and that she had "received boxes in the past from this third party under this same-type scenario."

According to Santiago, defendant "stated a Jennifer Reed from Atlanta, Georgia, was the main organizer of this operation." Santiago acknowledged, however, that the words "main organizer" may not have been defendant's actual words. Santiago also admitted that he had difficulty, "to some extent," understanding defendant because of his "accent."

The bundle in the Tupperware container yielded 9.6 pounds of marijuana. In addition, a search of the Sherwood house yielded an eight gram baggie of marijuana from the floor of her kitchen closet and a seven gram baggie of marijuana seeds from the cabinet under her bathroom sink. The officers also seized a small address book, an identification card of Leon Mattie, an identification card in the name of Angel Garcia, and numerous "coin-type baggies" commonly used to store drugs.

Both defendant and Patricia Sherwood testified at the trial. According to defendant, Patricia called him on the morning of July 15, 2003, and asked him for a ride to go shopping and run some errands, and he agreed to pick her up. Shortly thereafter, defendant's friend Loretta Reaves invited him to go to "happy hour" at a Vineland bar that afternoon. Defendant accepted the invitation and told Loretta that he would pick her up after he dropped his son off at work at 3:00 p.m. He went to Patricia's house shortly after 1:00 p.m. and drove her to a nearby grocery store and to her daughter, Rosemary's, school. Defendant thereafter drove his son on an errand and then dropped him off at work.

Defendant then headed to Loretta's apartment to pick her up for happy hour. On his way there, Patricia called. According to defendant, she asked for another ride, and he agreed to pick her up. Therefore, he took Loretta and her friends to the bar and said he would join them later, and returned to Patricia's house. He pulled into her driveway at 4:30 p.m, and entered the house through the front door, after finding the back door locked. Patricia was still getting dressed when he arrived. Therefore, he walked into the rear room and began watching television while he waited for her, as her son "was running around in the house." Patricia's mother was also in the house.

According to defendant, although he remembered "seeing a box," he "wasn't paying attention to the box. I was just paying attention to the t.v. and asked [Patricia] to hurry up . . . because . . . I got to go back to the [bar]." Defendant testified that he did not hear the police enter the house. Suddenly, as he stood watching television, he felt "somebody jump [o]n [his] back," and he was pushed down to the floor and handcuffed.

Defendant claimed that he misunderstood Santiago's questions at the scene, and that his answers were likewise misunderstood. Defendant said he thought Santiago asked him if anyone had ever shipped a package to him before, and he responded that his cousin's girlfriend in Atlanta - Jennifer Reed - had previously mailed him a package which contained a "cable box."

Patricia testified that she had been friends with defendant prior to their arrests, but that since then, her only contact with him was when he called her house three times and left messages with two of her daughters. Patricia testified that one year prior to the arrests, defendant had tried to have a package delivered to her house without her permission, but that she had not accepted the package. She said she had "cursed him out" when he came to pick it up, and told him not to send anything to her house again. She thought "it must not be right" if the package was sent to her house instead of defendant.

Patricia denied that defendant had given her a ride on July 15, 2005, or that she had asked him to come back and drive her somewhere else that afternoon. According to Patricia, her first contact with defendant that day occurred shortly before the police arrived, when defendant "called my house and tell me that a package [was] going to come to my house." She said she forbade defendant from having anything delivered to her home and hung up the phone on him.

Patricia further testified that when she "heard a big bang" and a "bunch of guys" entered the house, she was unaware that a box had been delivered and that it was "a complete surprise" to her. She was standing near defendant when the police entered, and was also pushed to the floor and handcuffed. Patricia denied telling Officer Santiago that defendant told her "the day before" that the package was coming and that she was aware of its contents. She testified that she told Santiago only that defendant had called her "[t]hat same day" to say a package was coming. She also denied telling Santiago that she had previously accepted a package "under the same guise" or "under a false name." Finally, Patricia claimed that she had never questioned Montia about the incident, and had not been aware that Montia signed for the box as "Tina Wilson" until she heard the testimony at trial.

A.

Defendant claims that "[t]he trial court should have severed the trial of defendant from that of [Patricia] and Montia [Sherwood] because defendant was substantially prejudiced by the joint trial and denied a fair trial." The disposition of a motion for severance is left to the sound discretion of the trial court. State v. Brown, 170 N.J. 138, 160 (2001). On appeal, a reversal of a trial court's decision not to sever defendants' trials is only appropriate where the denial was a clear abuse of discretion. Ibid.; State v. Melendez, 129 N.J. 48, 56 (1992).

In general, "[t]wo or more defendants may be tried jointly 'if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.'" Brown, supra, 170 N.J. at 159-60 (quoting R. 3:7-7). "There is a general preference to try codefendants jointly, particularly when much of the same evidence is needed to prosecute each defendant." Id. at 160 (internal citations and quotation marks omitted). "That preference is guided by a need for judicial efficiency, to accommodate witnesses and victims, to avoid inconsistent verdicts, and to facilitate a more accurate assessment of relative culpability." Ibid. (citing State v. Sanchez, 143 N.J. 273, 282 (1996)). Therefore, although there is a concern about "guilt by association" inherent in all joint trials, this concern is effectively overcome if, by proper instructions to the jury, the separate status of the co-defendants can be maintained. Id. at 162.

In this case, the court charged that "[e]ach offense and each defendant in the indictment shall be considered separately," and it is clear the jury did so by virtue of the acquittal of Montia. Moreover, in a case involving joint possession of CDS, the State can be severely prejudiced by separate trials as each defendant could blame the other. See State v. Morant, 241 N.J. Super. 121, 131 (App. Div.), certif. denied, 127 N.J. 323 (1990). We find no abuse of discretion by the trial judge in denying a severance of defendants.

In any event, defendant never moved or requested a severance, and we find no basis for reversal because defendant was tried jointly with his co-defendants.

B.

Defendant argues that co-defendant Patricia Sherwood's testimony "that she was afraid of defendant because of a message which he left with her daughter which made her feel like he was threatening her . . . constituted inadmissible implied hearsay which deprived him of his constitutional rights." He also contends it constituted "other crimes" evidence improperly admitted in violation of N.J.R.E. 404(b). Conversely, the State contends that the statement is not inadmissible hearsay because "the actual statement that the defendant made to Patricia Sherwood's daughter was not placed on the record," and "was, in any event, not admitted for the truth of the matter asserted." The State further contends that the message did not constitute "prior bad act" evidence and was relevant to "the mental state of Patricia Sherwood."

During her direct testimony, Patricia was asked about communications with defendant after their arrest:

Q Do you recall having a conversation -- do you now recall having any conversation with Solomon Mitchell between the time you saw him at the mall and July the 15th, 2002?

. . . .

A No. He called my house. That was it.

Q Did he leave a message for you?

A Yes.

Q How was the message left? Was it voice mail or did someone give you a message?

A Someone -- my daughter.

Q Gave you the message?

Q Yes.

Q I'm not going to ask you what that was because that is hearsay. Are you afraid of Mr. Mitchell?

A Yes, I am.

Q Why are you afraid of Mr. Mitchell?

A Because of the message that he left with my daughter.

. . . .

Q Okay. Okay. What -- how did that message make you feel? How -- listen to me. Don't say what the message was because that wouldn't be appropriate, but how did the message make you feel that was left with your daughter?

A Like he was threatening me.

Q You felt threatened?

A Yes.

Q Did it concern the events of July 15th, 2002?

A Yes, it did.

The actual statement or message was not stated or admitted into evidence. Accordingly, we need not decide if it would have been admissible if offered into evidence. See N.J.R.E. 803(b)(1); 803(c)(25). Nor was it offered for its truth. N.J.R.E. 801(c). In any event, there was no objection to the particular inquiry or testimony, and we find no plain error. State v. Macon, 57 N.J. 325, 336 (1971). To constitute "plain error," it must be "clearly capable of producing an unjust result," R. 2:10-2, and must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336. This standard cannot be met in the circumstances of this case.

C.

We find that any other error at the trial was cured by the trial judge's instructions or was harmless. Defendant nevertheless argues that his "convictions were completely unsupported by the evidence. Therefore, a Judgment of Acquittal should have been entered or a new trial ordered." We disagree. See State v. Reyes, 50 N.J. 454, 458-59 (1967).

In denying defendant's motion for a new trial, the trial judge stated:

The Court can grant the relief that's sought by the plaintiff under Rule 3:20-1, if the Court is convinced that it is required in the interests of justice. The Court has to take into account and give due regard to - for the opportunity of the jury to pass upon the credibility of the witnesses. And having done so, if it [] clearly and convincingly appears to the Court that it would be a manifest denial of justice to allow the verdict to stand, the Judge, if it does appear to be such a denial of justice, then the Court should grant a new trial and declare a mistrial. . . .

. . . .

This Court finds that there was an adequate - certainly an adequate, more than adequate amount of evidence of the defendant's involvement; his presence at the time the package was breached. His proximity to the package as it was breached; the content of the package. The other evidence in the case. I certainly think the jury's verdict was a correct verdict.

On appeal from an order denying a motion for a new trial, we must decide whether "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. "[T]he standard of review is whether the error was of such a nature as to have been clearly capable of producing an unjust result." State v. Spruell, 121 N.J. 32, 42 (1990) (citing R. 2:10-1). "Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced." State v. Smith, 262 N.J. Super. 487, 512 (App. Div. 1993) (citing State v. Haines, 20 N.J. 438, 446-47 (1956)), certif. denied, 134 N.J. 476 (1993). Otherwise, the reviewing court makes its own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360-61 (1979).

We cannot conclude that "it clearly appears that there was a miscarriage of justice under the law." Smith, supra, 262 N.J. Super. at 512 (citing R. 2:10-1). The timing of the "breach" following defendant's entry into the Sherwood home about ten minutes earlier, and defendant's proximity to the package when the police rushed in immediately following the breach, independent of all of the testimony concerning defendant's statements and Patricia Sherwood's trial testimony, warrant the jury's verdict. Stated differently, defendant was caught standing next to an open box containing 9.6 points of marijuana, which had been opened shortly after his arrival at the Sherwood house.

D.

In imposing sentence, the trial judge said:

The Court finds aggravating factors 3, 9, and 11. The Court finds no mitigating factors, notwithstanding the comments of the Prosecutor [conceding the mitigating factor of a lack of prior criminal record]. This Court considers the risk the defendant will commit another offense, number 3, to be moderate. He has five - excuse me. Four prior adult arrests with a local ordinance violation and two arrests subsequent to these charges.

The Court finds aggravating factor number 9 to be huge, the need to deter this defendant and others from violating the law. The Court finds aggravating factor number 11, the imposition of a penalty, fine, or order of restitution while imposing a term of imprisonment would be perceived by the defendant and others merely as part of the cost of doing business or an acceptable, contingent business or operating expense associated with initial decision to resort to unlawful practices to be present as well, and I place great weight on that.

This defendant denies in the Pre-Sentence Report a denial of personal use of marijuana. I take that into account along with the quantity of marijuana, the methodology used in the distribution scheme, which clearly indicates to this Court that this was an ongoing business enterprise. It was a commercial enterprise, and as such I think that a fine/penalty or order for restitution or other period of probation or something of that nature would be totally inconsistent with the penal sanctions necessary for a . . . second-degree offense.

This is a second-degree offense, in both counts two and count three. And as such, there is a presumption of incarceration. It has not been overcome by any factors. Interestingly enough, although the Prosecutor asks for me to sentence in the mid-range in the presumptive sentence for a third-degree offense - and that might be appropriate given the fact I found no mitigating factors.

This is the defense's first indictable-level conviction. He has some disorderly-persons, a local ordinance violation and some dismissals, a number of arrests. This Court feels that to sentence him beyond the minimum range for a second-degree offense, I feel that that is sufficient sanctions and that's the reason I'm imposing the five-year term of incarceration.

Defendant asks us to merge the convictions and remand for resentencing as a third-degree offender. See N.J.S.A. 2C:44-1f(2).

The trial judge should not have considered aggravating factor number eleven because he was not "balancing a non-custodial term against a prison sentence." State v. Dalziel, 182 N.J. 494, 502 (2005). Rather, he recognized the impact of the presumption of imprisonment and imposed five-year sentences for the second-degree crimes. This was at the bottom of the sentencing range for a second-degree crime. See N.J.S.A. 2C:43-6a(2). Given the judge's finding of no mitigating factors, there is no reason to remand for resentencing or consideration of a term of imprisonment under N.J.S.A. 2C:44-1f(2). See Dalziel, supra, 182 N.J. at 506.

However, as the State concedes in its brief, the trial court should have merged defendant's conspiracy conviction (count three) into the possession with intent conviction (count two). See N.J.S.A. 2C:1-8a(2),d(2). Here there was no proof that the conspiracy involved more than the possession with intent as alleged in count two, and the jury found no greater conspiracy by special verdict or otherwise.

E.

We remand the matter for entry of a corrected judgment merging the conviction on count three into the conviction on count two. We affirm the judgment and sentence on count two.

 

After finding both defendant and Patricia guilty the jury concluded they were guilty as "princip[als]." The jury specifically found, by special verdict, that the quantity was "[f]ive pounds or more."

Wassmuth identified Montia in court.

The "third party" to whom she was referring was defendant. However, his name could not be referred to in the State's case in chief. See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).

Ms. Reaves testified for defendant at the trial.

The issue was raised by Patricia incident to consideration of her statement to Officer Santiago because it referred to defendant's statements to her with respect to the delivery of packages. See State v. Melendez, supra, 128 N.J. at 60.

The State also refers to the message as part of the "res gestae" that "assisted the jury in gaining a full picture as to what was going on amongst the co-conspirators." However, the defendant and Patricia had been arrested before the message was left, so the message could not be a part of the "res gestae" or made in furtherance of the conspiracy. For this conclusion, we refer to another part of Patricia's testimony where she said she had not had a "friendly conversation with [defendant] since July 15th, 2002," and in response to a question about having heard from him since then, said "[h]e called my house, like three times but I never talked to him [and] twice he talked to two of my daughters." She added she was not "friendly with Mr. Mitchell at this point" because of "something that strained [her] relationship with him." Moreover, Patricia stated the meeting at the mall was "since" the events of July 15. If the State means the threat evidenced a "consciousness of guilt," it does not develop the point, which might well have merit.

As previously noted, Patricia had already testified that the meeting at the mall was "since" the events of July 15.

The judge appears to have inadvertently misspoken. The prosecutor acknowledged the absence of a criminal record as a mitigating factor, but argued that the aggravating factors "outweigh . . . that lack of prior record." Defendant was convicted of a second-degree crime, and the prosecutor argued for "at least the presumptive."

This is true even if the prior arrests without conviction should not have precluded consideration of a mitigating factor. N.J.S.A. 2C:44-1b(7); Dalziel, supra, 182 N.J. at 503-05. It is not "unclear" to us, based on what the judge said, that a sentence of imprisonment at the bottom of the second-degree range would have been imposed even if aggravating factor eleven was not considered and mitigating factor seven was.

(continued)

(continued)

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A-2573-04T4

August 2, 2006