STATE OF NEW JERSEY v. PIERSON PIERRE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1050-04T41050-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PIERSON PIERRE,

Defendant-Appellant.

_____________________________

A-5978-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PIERSON PIERRE,

Defendant-Appellant.

_____________________________

 

Submitted January 24, 2006 - Decided June 27, 2006

Before Judges Collester and S.L. Reisner.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, 02-10-3894-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant on both appeals (William Welaj, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent in A-1050-04T4 (Teresa A. Blair,

Deputy Attorney General, of counsel and on the

brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent in A-5978-04T4 (Sara A. Friedman,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant Pierson Pierre was found guilty on October 24, 2003, of possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1), possession with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3), and possession with intent to distribute within a school zone, contrary to N.J.S.A. 2C:35-7. Following the conviction on March 12, 2004, Judge John C. Kennedy merged counts of the indictment and imposed an extended seven-year term with a three-year parole disqualifier. In another case, defendant was convicted by jury verdict of possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5(b), and on a separate indictment, for possession of a weapon by a convicted felon, contrary to N.J.S.A. 2C:39-7(b). Judge Kennedy merged the convictions and sentenced defendant to a seven-year term with a five-year parole disqualifier consecutive to the sentence imposed the same day for the unrelated conviction of possession with intent to distribute cocaine within a school zone. Defendant appeals both convictions and his sentences.

We first address the conviction for possession of cocaine with intent to distribute within a school zone. At about 2 a.m. on April 5, 2002, Newark police officers Lawrence Brown and Mike Walker were in uniform and on patrol in a marked police vehicle traveling west on Orange Street toward the intersection with Nesbitt Street. Near the housing projects known as Baxter Terrace they saw four young men they believed were juveniles standing on the corner conversing. They decided to investigate and, if appropriate, issue juvenile curfew violations. There were no other persons or vehicles on the street at that time, and the officers described the area as well-lit.

As the patrol car approached, the group began to disperse, and the officers got out of their patrol car. At that time, one of the individuals, later identified as defendant, ran. Walker pursued defendant while Brown detained the others. As he approached the northwest corner of the intersection, the defendant quickly turned and reversed his direction, running toward Officer Walker, who had stumbled, and in the direction of Baxter Terrace housing project. Both Walker and Brown continued pursuit and saw defendant discard a clear plastic bag as he ran. Walker reached defendant first and detained him while Brown picked up and examined the plastic bag. Inside were eighty-one small blue bags of cocaine. Defendant was then searched, and two $20 bills and one $10 bill were found on his person. The incident occurred in an area within 1,000 feet of McKinly Elementary School.

The State produced Detective Reginald Holloway of the Essex County Sheriff's Department Bureau of Narcotics as an expert witness. Responding to a hypothetical question mirroring the testimony of Officer Brown, Detective Holloway opined that whoever possessed eighty-one baggies of cocaine did so with the intent to distribute and that the money recovered consisted of the proceeds of illegal narcotics transactions. He based his opinion on the fact that the area was well-known for high-volume narcotics trafficking, that it would be unusual for a drug user as opposed to a drug dealer to possess such a large amount of cocaine in the area for fear of being robbed or assaulted, and that the eighty-one individual packets were for distribution while the larger plastic bag was a "stash item." The defense called no witnesses, and the jury returned its verdict of guilty.

On appeal of this conviction, defendant makes the following arguments:

POINT I - THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS A RESULT OF DEFENSE COUNSEL'S FAILURE TO FILE A MOTION TO SUPPRESS UNDER THE CIRCUMSTANCES OF THE PRESENT CASE.

POINT II - THE TRIAL COURT ERRED BY FAILING TO SUA SPONTE REMOVE A JUROR WHO THE COURT OBSERVED SLEEPING DURING DEFENSE COUNSEL'S CROSS-EXAMINATION OF THE STATE'S PRIMARY WITNESS. (Not Raised Below.)

POINT III - THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE. (Not Raised Below.)

POINT IV - THE TRIAL COURT ERRED BY CHARGING THE JURY REGARDING FLIGHT.

POINT V - THE DEFENDANT IS ENTITLED TO A REMAND FOR A DETERMINATION AS TO THE REASONS FOR THE STATE'S DECISION TO SEEK AN EXTENDED TERM AND WHETHER SUCH A DECISION WAS ARBITRARY AND CAPRICIOUS. (Not Raised Below.)

POINT VI - THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Defendant did not make a motion to suppress evidence prior to trial as required by R. 3:5-7(a) and R. 3:10-2(a). The consequence of this failure means the suppression motion is deemed waived and, as a result, defendant is barred from challenging the legality of the seizure of evidence on appeal. State v. Martin, 87 N.J. 561, 566-67 (1981); State v. Jordan, 115 N.J. Super. 73, 76 (App. Div.), certif. denied, 59 N.J. 293 (1971); R. 3:5-7(f). Defendant asserts he had a viable argument on a motion to suppress and that he was deprived of asserting his Fourth Amendment rights because of ineffective assistance of trial counsel in failing to file the motion. Assertions on appeal of ineffective assistance of counsel generally involve allegations and evidence outside the trial record and are therefore particularly suited for post-conviction review under R. 3:22-1. State v. Preciose, 129 N.J. 451, 460-61 (1992). Accordingly, we decline to rule upon the issue, leaving defendant with the opportunity to seek relief under R. 3:22-1 to -2.

Defendant next claims reversible error in the failure of the trial judge to remove a juror observed sleeping during the trial. The argument lacks merit. At one point early in the cross-examination of Officer Brown, the judge called the attorneys to sidebar and said that a juror appeared to be sleeping. The judge proposed a ten-minute break, and defendant made no objection. When the jurors returned, the judge reminded them to alert the court if they needed a break. Defense counsel did not object to the court's handling of the matter.

We have held that a trial judge should take corrective action when counsel brings to his attention that a juror appears to be sleeping. See, e.g., State v. Burks, 208 N.J. Super. 595, 611-12 (App. Div. 1986). In this case the judge noticed the sleeping juror and immediately called it to the attention of counsel. Since defense counsel did not request further action with regard to the juror at that time, he waived his right to further inquiry and corrective action. State v. Scherzer, 301 N.J. Super. 363, 491 (App. Div.), certif. denied, 151 N.J. 466 (1997). Moreover, since defense counsel did not object, our scope of review is the plain error standard, that is, error clearly capable of producing an unjust result or sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise would not have reached. State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-2. The record does not indicate that the juror was asleep during any testimony favorable to the defendant, and counsel repeated his prior questioning of Brown after the recess. We find no error, much less plain error, in the manner in which the judge resolved the matter. See State v. Glover, 230 N.J. Super. 333, 343 (App. Div. 1998).

Defendant next contends that the prosecutor's summation caused reversible error by inferentially commenting upon the defendant's Fifth Amendment privilege through the use of rhetorical questions. There is nothing objectionable or improper about the use of rhetorical questions in summation, and in this instance, the rhetorical questions of the prosecutor were in response to the assertions made in defense counsel's summation. Furthermore, defendant's suggested interpretation of the remarks of the prosecutor to indicate an oblique or subtle commentary on his election not to testify is farfetched when the remarks are considered in full context. Under the plain error standard the conduct mandating reversal must be so egregious that it deprives the defendant of a fair trial. State v. Frost, 158 N.J. 76, 83 (1999); State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). Here the prosecutor's comments did not exceed the bounds of a vigorous closing argument based on legitimate inferences from the facts at trial. State v. Timmendequas, 161 N.J. 515, 587 (1999); State v. Perry, 65 N.J. 45, 48 (1974).

Defendant also asserts that the trial judge improperly charged flight. Although defense counsel objected, the judge instructed the jury as follows:

There has been some testimony in the case from which you may infer that Mr. Pierre fled shortly after the arrival of police on the scene. The question of whether the defendant fled is another question of fact for your determination. Mere departure from a place where a crime has been allegedly committed does not constitute flight.

If you find that the defendant, fearing that an accusation or arrest would be made against him on the charge involved in the indictment, took refuge [in] flight for the purpose of evading the accusation or arrest on that charge, then you may consider such flight in connection with all the other evidence in the case as an indication or proof of consciousness of guilt.

Flight may only be considered as evidence of consciousness of guilt if you determine that the defendant's purpose in leaving was to evade accusation or arrest for the offense charged in the indictment.

It is well-settled that evidence of flight is admissible as demonstrating consciousness of guilt, and a judge may so charge the jury provided that it also is given the distinction between flight and mere departure from the scene and told that if it finds there was flight by the defendant, it may consider the flight in connection with all the other evidence and whether it was an indication of consciousness of guilt. In this case, there was evidence to support a finding of flight and for a jury to reach the conclusion that defendant fled from the officers to avoid being apprehended while in possession of cocaine. There was no error in the instruction.

Defendant next argues that he is entitled to a remand to the trial court for a determination of the reasons behind the State's decision to seek an extended term sentence pursuant to N.J.S.A. 2C:43-6(f) and whether the decision was arbitrary and capricious. The prosecutor filed a motion for an extended term on the basis of defendant's two prior convictions for third-degree possession with intent to distribute a dangerous substance within a school zone. At the time defense counsel acknowledged that due to his prior convictions, defendant was eligible for a mandatory extended term. Extended term sentencing for repeat drug offenders is the norm, with waiver as the exception. State v. Lagares, 127 N.J. 20, 33 (1992). The trial prosecutor said that the State refused to waive the mandatory extended term because there was no basis for waiver under the Attorney General's guidelines. That having been stated, the burden was upon the defendant to establish by clear and convincing evidence that the determination of the prosecutor was an abuse of prosecutorial discretion. State v. Kirk, 145 N.J. 159, 169-70 (1996); Lagares, supra, 127 N.J. at 33. Defendant made no such showing to warrant a remand for further inquiry of the prosecutor. Therefore, the State's application for an extended term sentence pursuant to N.J.S.A. 2C:43-6(f) was properly considered and imposed by the trial judge.

Defendant's further argument that his sentence was manifestly excessive is totally without merit. Defendant had twelve prior indictable convictions and was subject to a mandatory extended term under N.J.S.A. 2C:43-6(f). Judge Kennedy imposed the presumptive sentence after determining that defendant's extensive prior record warranted a finding as to the statutory aggravating factors of 3, 6 and 9 and the absence of any mitigating factors. We find no abuse of discretion in the imposition of this sentence.

We now consider defendant's appeal of his unrelated conviction for unlawful possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5(b), and possession of a weapon by a convicted felon, contrary to N.J.S.A. 2C:39-7(b), as well as his sentence.

At trial Detective Wayne Wilkins of the Newark Police Department testified that at 1:40 p.m. on June 30, 2002, he was in uniform and driving his marked patrol car when he responded to a call for backup from Sergeant Constantino at the intersection of 15th Avenue and South 13th Street. When he arrived, Detective Wilkins saw an individual he knew to be defendant walking east on 15th Avenue. Since defendant fit a description given on the police radio, Wilkins pulled his car in front of defendant, ordered him to show his hands and lie down on the ground. Wilkins testified that defendant made a movement toward his waistband, at which point Wilkins pulled out his service revolver, pointed it at defendant, and ordered him to "drop the weapon." Wilkins testified that defendant removed his hands from the waistband and, as he did so, something fell from his left pant leg. Wilkins retrieved the item, which was a 9mm firearm that was "still hot." Further inspection revealed seven bullets in the gun.

The State called Detective Frank Faretra as a firearms and ballistics expert to testify that the gun confiscated was operable. The State concluded its case by placing into evidence a gun permit search, which showed that no permit had been issued to defendant. The State then rested, as did the defense.

After the jury announced its verdict of guilty to the charge of unlawful possession of a firearm, the court instructed the jury to deliberate further on an indictment charging defendant with possession of a handgun by a convicted felon. The State then moved into evidence prior judgments of conviction of defendant for possession of a controlled dangerous substance with the intent to distribute within 1,000 feet of a school and third-degree aggravated assault. The jury found defendant guilty as charged of possessing a weapon as a convicted felon. On March 12, 2004, he was sentenced on both weapons convictions to a seven-year term with a five-year parole disqualifier consecutive to the sentence of seven years with a three-year disqualifier imposed on the conviction for possession with intent to distribute cocaine.

On appeal of his convictions of weapons offenses and sentence, defendant sets forth the following arguments:

POINT I - THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A POLICE OFFICER CONNECTING THE DEFENDANT WITH OTHER CRIMINAL CONDUCT.

POINT II - THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF TESTIMONY VOLUNTEERED BY A POLICE OFFICER RELATING TO THE DEFENDANT'S ALIAS.

POINT III - THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

During the course of his testimony, Detective Wilkins testified that after he saw something fall down defendant's pants leg, "I then removed a 9mm from his pants' leg - his left pants' leg. It was still hot and . . ." At that point defense counsel objected and moved for a mistrial on grounds that the testimony that the gun was "still hot" was prejudicial to defendant since the only way it could have been hot was if it had recently been fired, which could lead the jury to conclude that not only had the defendant just fired the weapon but that he also had been engaged in assaultive conduct. The trial judge denied defendant's mistrial application, noting that the detective's comment was gratuitous and in response to a general question about what happened at the scene. The judge further offered to instruct the jury to disregard the detective's comment. Defense counsel declined the offer of a curative instruction because he felt it might exacerbate the problem, although he reserved his right to request a curative instruction later in the trial. No such request was made.

Defendant argues that while a mistrial is an extraordinary remedy employed only to prevent an obvious miscarriage of justice, State v. Rechtschaffer, 70 N.J. 395 (1976), the statement in question had the capacity of creating the unfair risk that defendant might be convicted based on unrelated and unspecified criminal conduct. State v. Mays, 321 N.J. Super. 619, 632 (App. Div.), certif. denied, 162 N.J. 132 (1999). He claims it was psychologically impossible for the jury to ignore the comment and a curative instruction could not purge its prejudicial impact. See State v. Winter, 96 N.J. 640, 646-47 (1984); State v. Blanchard, 44 N.J. 195, 203 (1965).

The ruling of a trial judge on a motion for a mistrial will not be disturbed absent an abuse of discretion resulting in manifest injustice to the defendant. State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000); State v. DiRienzo, 53 N.J. 360, 383 (1969). We give great deference to the discretionary determination of the trial judge, who has the proper feel for the case. State v. Brown, 325 N.J. Super. 447, 452 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000). Whether or not a curative instruction is adequate focuses on the capacity of the objectionable evidence to lead to a verdict by the jury that could not otherwise be properly reached. Winter, supra, 96 N.J. at 647. We agree with the trial judge that the fleeting comment was not so egregious as to require a mistrial.

Defendant makes a similar argument based on Wilkins' testimony that the individual he observed walking east on 15th Avenue was "called Shaky Pete." Defense counsel moved at sidebar for a mistrial after reminding the trial judge of the agreement the day before that there was to be no reference to any aliases of defendant. Once again the statement was both gratuitous and harmless. The testimony must be weighed in the context of other evidence produced by the State in determining whether substantial prejudice occurred which could result in a miscarriage of justice. Here the evidence produced by the State was overwhelming, and the gratuitous comments of the witness could have little or no impact upon the jury finding that defendant was guilty.

With regard to his sentence on the weapons offenses, defendant acknowledges the mandatory five-year parole disqualifier in conjunction with the conviction for possession of a weapon by a convicted felon, as well as the fact that he was eligible for a mandatory sentence for the conviction for third-degree possession with the intent to distribute a controlled dangerous substance within a school zone. However, he argues that it was error to impose consecutive rather than concurrent sentences.

Prior to imposition of sentence, the court stated the following:

Counsel for Mr. Pierre has made a plea that these sentences not run consecutively. However, the statute that governs this is N.J.S.A. 2C:44-5(h), and it provides that when a defendant is sentenced to imprisonment for an offense committed while released pending disposition of a previous offense, the term of imprisonment shall run consecutively to any sentence of imprisonment imposed for the previous offense, unless the court, in consideration of the character and conditions of the defendant, finds that the imposition of consecutive sentences would be a serious injustice which overrides the need to deter such conduct by others.

I don't find in the circumstances in this case, where I am clearly convinced that the aggravating factors preponderate over the mitigating factors, that I should depart from the presumption of consecutive sentences that is called for under 2C:44-5(h). Again, I find the same aggravating factors apply with regard to these two indictments. I find no mitigating factors, and I am clearly convinced that the aggravating factors outweigh the mitigating factors. However, I am going to sentence within the presumptive range in view of the fact that these sentences will run consecutively.

N.J.S.A. 2C:44-5(h) limits the conditions under which a judge may exercise discretion in not imposing the presumptive consecutive sentence for an offense committed while a defendant is released pending disposition on a previous offense. Here, it is not disputed that the defendant's weapons offenses occurred while pending disposition on the CDS charges. Therefore, a consecutive term of imprisonment was mandated unless the sentencing judge "in consideration of the character and conditions of the defendant, finds that imposition of consecutive sentences would be a serious injustice which overrides the need to deter such conduct by others." Ibid. The sentencing judge specifically found this exception to imposition of a consecutive sentence was not applicable. We concur.

Affirmed on both docket number A-1050-04T4 and A-5978-04T4.

 

(continued)

(continued)

17

A-1050-04T4

June 27, 2006