STATE OF NEW JERSEY v. JOSEPH HESTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7130-03T47130-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH HESTER,

Defendant-Appellant.

_______________________________________

 

Submitted September 20, 2006 - Decided November 14, 2006

Before Judges Parker, C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. I-04-02-310.

Yvonne Smith Segars, Public Defender, attorney for appellant (Eli L. Eytan, Designated Counsel, on the brief).

Thomas F. Kelaher, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Senior Assistant Prosecutor, of counsel; Roberta DiBiase, Assistant County Prosecutor, on the brief).

PER CURIAM

Defendant Joseph Hester was charged in an Ocean County indictment with possession of cocaine, a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count one); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count three); possession of cocaine, N.J.S.A. 2C:35-10a(1) (count four); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count five); and distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count six). The first trial ended in a mistrial. Defendant was retried and convicted on all counts. The judge granted the State's motion for an extended sentence pursuant to N.J.S.A. 2C:43-6f. After appropriate mergers, the judge imposed concurrent seven-year custodial sentences on counts three and six, each with a three-year period of parole ineligibility. Defendant appeals his conviction and sentence. For the reasons that follow, we affirm the conviction and sentence but remand to the trial judge to consider defendant's claim that he is entitled to additional jail credits.

I.

We briefly summarize the evidence that was presented at the second trial. On the evening of September 4, 2002, at about 9:00 p.m., Officer Theodore Grob (Grob) of the Ocean County Narcotics Strike Force (Strike Force) drove to a house located at 22 Fielder Avenue in Dover Township to make an undercover purchase of crack cocaine. Officer William Morsch (Morsch), who was also assigned to the Strike Force, had previously outfitted Grob with a wireless body transmitter to record Grob's conversations during the transaction.

When Grob arrived at 22 Fielder Avenue, a man approached the driver's side of his car. Grob testified that although it was dark, he was able to see the individual. Grob took note of the man's features because, as he explained, he knew that he would have to identify the person so that he could be charged. Grob spoke briefly with the man and the man exchanged what Grob believed to be crack cocaine for $100. The man was known to Grob as "Joe." The transaction was recorded.

On September 23, 2002, at around 8:42 p.m., Grob called the number for the residence at 22 Fielder Avenue. Grob spoke to a woman named "Gail" and then spoke with "Joe." Grob asked "Joe" if he could "do anything tonight." Grob said that, in other words, he asked "Joe" whether he had any cocaine and whether he "could meet me and sell me cocaine." "Joe" instructed Grob to call him from a nearby Chinese restaurant. The call was recorded.

Grob went to the restaurant and made the call. He spoke to "Joe," who told him to come to 22 Fielder Avenue in about fifteen or twenty minutes. After waiting as instructed, Grob drove to 22 Fielder Avenue in an undercover vehicle. Morsch parked down the block. "Joe" came out the front door, approached Grob and instructed him to drive around to the back of the house. "Joe" went back into the house. Grob drove to the rear of the house.

"Joe" exited the back door and approached Grob's car. He gave Grob some crack cocaine but Grob told "Joe" that he was not pleased with the amount. According to Grob, they "haggled back and forth." "Joe" went into the house, came out and handed Grob more cocaine. In return, Grob gave "Joe" $100 in marked bills.

Grob testified that on October 25, 2002, he went to the Strike Force's building to look at a photo line-up. Investigator Sean Feltri (Feltri) explained the procedure and Grob was shown six photographs. Grob picked out defendant's photo and signed it. Grob identified defendant as the person who sold him cocaine on September 4, 2002, and September 23, 2002.

Morsch corroborated Grob's statements. He testified that he asked Grob to work as an undercover officer and make certain purchases of cocaine. Morsch went with Grob to 22 Fielder Avenue on September 4, 2002. Morsch was in an unmarked vehicle. Morsch recorded the transaction between "Joe" and Grob. While doing so, Morsch listened to the conversation. At the time, Morsch did not know the last name of the suspect. Morsch said that the suspect was not arrested on September 4, 2002, because Morsch wanted to continue the investigation and perhaps locate the source of the drugs.

Morsch said that he directed Grob to make a call on September 23, 2002, to schedule the next purchase. Morsch again provided Grob with a wireless transmitter. They proceeded to 22 Fielder Avenue. Morsch parked down the block and he listened to the conversation as it was recorded. Morsch explained that defendant was not arrested at the time to allow for further investigation.

Subsequently, Morsch ascertained defendant's last name. He compiled the photo array and gave it to Feltri. The photo line-up took place at Strike Force headquarters. Afterwards, Feltri advised Morsch that Grob had picked out defendant's photo.

Morsch determined that defendant and "Gail" lived at 22 Fielder Avenue. On November 13, 2002, Morsch called the same number that Grob had called to set up the drug purchases. He learned that defendant was at home. Morsch went to the house at 22 Fielder Avenue and arrested defendant.

At the police station, defendant confirmed that he resided at 22 Fielder Avenue. The phone number he provided was the same number that had been called to arrange the undercover buy and to confirm that defendant was present at the house prior to his arrest. From his conversation with defendant on the date of his arrest, Morsch identified defendant's voice as the voice he heard on the recordings of the drug transactions.

Feltri testified about the photo line-up. He said that he knew nothing about the case when Morsch provided him with the six photographs for the line-up. Feltri stated that he read Grob the prosecutor's standard instructions for photo line-ups. Feltri told Grob that he should "take as much time" as required to look at each photo and "not conclude that the person who committed the crime is in the group merely because a group of photographs is being shown to you." Feltri told Grob that the person who committed the crime "may or may not be in the group" of photographs, and the "mere display" of the photos is not "meant to suggest" that "the person who committed the crime is in one of the photographs." Feltri also told Grob he "should not feel obligated to choose any one." Grob selected defendant's photo.

On this appeal, defendant raises the following issues for our consideration:

POINT I:

THE OUT OF COURT AND IN COURT VISUAL IDENTIFICATIONS OF DEFENDANT, COMBINED WITH THE OUT OF COURT AND IN COURT VOICE IDENTIFICATIONS, WERE SO UNDULY SUGGESTIVE AND UNRELIABLE IN THE TOTALITY OF THE CIRCUMSTANCES, SO AS TO DENY DEFENDANT DUE PROCESS.

POINT II:

THE TAPE RECORDINGS SHOULD HAVE BEEN EXCLUDED WHERE THEY WERE INACCURATE, INAUDIBLE, INCOMPLETE, AND GENERALLY OF POOR QUALITY; DEFENDANT WAS FURTHER PREJUDICED BY DISSEMINATION OF TRANSCRIPTS OF THE RECORDINGS NOT STIPULATED TO BE ACCURATE TRANSCRIPTIONS OF THE CONVERSATION AND WHICH INCLUDED CHARACTERIZATIONS OF THE CONVERSATION BY THE POLICE.

POINT III:

THE PHOTO ARRAY OF WHAT WERE CLEARLY ARREST PHOTOS OF INDIVIDUALS IN JAIL JUMPSUITS WAS UNDULY PREJUDICIAL TO THE DEFENDANT (Not raised below).

POINT IV:

THE PROSECUTOR IMPERMISSIBLY COMMENTED INDIRECTLY ON DEFENDANT'S DECISION NOT TO TESTIFY (Not raised below).

POINT V:

THE CUMULATIVE IMPACT OF TRIAL ERROR DENIED DEFENDANT A FAIR TRIAL (Not raised below).

POINT VI:

THE STATE WAS GUILTY OF DUE PROCESS ENTRAPMENT UNDER THE CIRCUMSTANCES OF THIS CASE (Not raised below).

POINT VII:

THE EXTENDED TERM SHOULD BE VACATED WHERE THERE WAS NO ARTICULATION OF EXERCISE OF DISCRETION BY THE PROSECUTOR IN MAKING THE MOTION (Partially raised below).

POINT VIII:

THE USE OF THE FOURTEEN-YEAR OLD CONVICTION AS A PREDICATE FOR EXTENDED TERM VIOLATED DEFENDANT'S EQUAL PROTECTION RIGHTS UNDER THE FEDERAL AND STATE CONSTITUTIONS (Not raised below).

POINT IX:

RECIDIVISM SENTENCING FACTORS, OTHER THAN THE BARE FACT OF PRIOR CONVICTION, WERE IMPERMISSIBLY CONSIDERED BY THE TRIAL COURT AS THEY FALL WITHIN THE PURVIEW OF BLAKELY v. WASHINGTON (Not raised below).

POINT X:

DEFENDANT'S SENTENCE WAS EXCESSIVE AND THE MATTER SHOULD BE REMANDED FOR RECALCULATION OF JAIL CREDITS (Partially raised below).

II.

We first consider defendant's contention that the procedures that resulted in the out of court and in court identifications of defendant and his voice, were unduly suggestive.

Convictions that are "based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." State v. Clausell, 121 N.J. 298, 325 (1990) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). To determine whether identification evidence is sufficiently reliable to allow its admission as evidence, several factors should be considered, including the witness's opportunity to view the suspect when the crime was committed; the degree of the witness's attention; the accuracy of any prior description; the witness's certainty in making the identification; and the time between the crime and the identification. Id. at 325-26 (citing Manson v. Braithwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).

Following a hearing on March 2, 2004, the judge rejected defendant's challenge to Grob's testimony identifying defendant as the person who had sold him cocaine. The judge found that Grob had a sufficient opportunity to view defendant on September 4, 2002, and on September 23, 2002, even though the transactions took place at night and Grob only saw defendant for brief periods of time. The judge noted that because Grob was investigating a crime and was participating in an undercover drug buy, Grob was focusing upon the person who was providing him with the drugs. The judge also noted that only about a month had passed before Grob was shown the photo array and Grob had expressed no uncertainty in his identification of defendant.

In addition, the judge found that there was no evidence that in conducting the photo line-up, Feltri had acted in a manner that was in any way suggestive. The judge also noted that there was no indication that Morsch influenced Grob's identification in any way. In support of these findings, the judge specifically stated that he found the testimony of Grob, Morsch, and Feltri to be credible.

The judge's findings are entitled to our deference because "the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). Indeed, deference is particularly appropriate where, as in this matter, the judge's findings were "substantially influenced" by the judge's "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting Johnson, supra, 42 N.J. at 161).

Defendant also argues that the judge erred in admitting the voice identifications because these identifications were unreliable. We disagree. "The constitutional safeguards applicable to visual identifications apply equally to voice identifications." Clausell, supra, 121 N.J. at 328 (citing State v. Johnson, 138 N.J. Super. 579, 582 (App. Div.), certif. denied, 71 N.J. 340 (1976)). A "voice identification is inadmissible if its reliability is outweighed by the suggestiveness of the identification procedure. Reliability depends upon such factors as the witness's opportunity to hear the accused and the consistency with prior voice identifications." Ibid. (citing Neil v. Biggers, 409 U.S. 188, 199-201, 93 S. Ct. 375, 382-83, 34 L. Ed. 2d 401, 411-12 (1972)).

Here, both Grob and Morsch testified that the voice they heard on the audio tapes was the voice of the person who sold the cocaine to Grob. Grob testified that when he called "Joe" on September 23, 2002, he recognized the voice from his conversation on September 4, 2002. Grob believed it was the same voice. In addition, Morsch testified that he recognized defendant's voice when he spoke to him after he was arrested. Both Grob and Morsch had sufficient opportunity to hear defendant's voice and their identifications of defendant's voice were consistent. Based on this evidence, we are satisfied that the judge did not abuse his discretion by admitting the voice identifications into evidence.

III.

We next consider defendant's contention that the judge erred by admitting the tape recordings because they were inaccurate, inaudible, incomplete, and generally of poor quality. Defendant also argues that the judge erred by allowing the jury to see transcripts of the recordings and by failing to instruct the jury in the proper use of those materials.

Sound recordings are admissible if they are competent and relevant. State v. Driver, 38 N.J. 255, 287 (1962). However, to be admissible at trial, the speakers should be identified and it should be shown that:

(1) the device was capable of taking the conversation or statement, (2) its operator was competent, (3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement.

[Ibid.]

In this matter, the trial judge listened to the tapes outside the presence of the jury and found that, despite some gaps and inaudible sections, the voices could be identified. The judge further found that Morsch was competent to record the conversations and the device he used was capable of doing so. In addition, the investigating officers had made no changes, additions or deletions to the tapes. The judge's findings are fully supported by the record. Indeed, we have listened to the recordings and we are satisfied that the judge did not abuse his discretion in admitting the recorded conversations into evidence.

The judge's decision to admit the tape recordings into evidence also was consistent with our decision in State v. Cusmano, 274 N.J. Super. 496 (App. Div. 1994). There, we held that taped recordings of conversations should be admitted at trial even though there were gaps and inaudible sections in the recordings provided that the tapes include "substantially" all of the "pertinent conversations." Id. at 517. Here, the tapes include "substantially" all of the "pertinent conversations."

The judge also did not abuse his discretion by allowing the jury to have copies of transcripts of the audio tapes, which the jurors were able to review as they listened to the tapes. The judge properly instructed the jurors that the transcripts were only an aid to assist the jurors in listening to the recorded statements and, if there were any discrepancies between the transcripts and the recorded statements, the oral statements controlled.

IV.

We turn to defendant's contention that the prosecutor improperly commented in summation on defendant's exercise of his right not to testify at trial.

The assistant prosecutor asserted in her summation that it was undisputed that defendant's voice was the voice on the audio tape. The prosecutor stated, "You didn't hear any evidence to the contrary. And you didn't hear any evidence to the contrary that it was somebody else who sold the cocaine to the investigator on those two occasions." The prosecutor added, "I would submit to you that the voices on all those three tapes were Investigator Grob and Joseph Hester. There was absolutely no evidence to the contrary that it wasn't." Defense counsel did not object to these statements at trial but defendant now argues that the prosecutor improperly commented on his failure to testify.

We have cautioned "against comments by prosecutors which may adversely affect an accused's Fifth Amendment rights." State v. Engel, 249 N.J. Super. 336, 382 (App. Div. 1991). "A prosecutor should not either in subtle or obvious fashion draw attention to a defendant's failure to testify." Ibid. In certain circumstances, a comment by a prosecutor that the State's evidence is not contraverted may be "an impermissible indirect comment on the defendant's decision not to testify if in its context it would have that meaning." State v. Irizarry, 270 N.J. Super. 669, 675 (App. Div. 1994) (citing State v. Sinclair, 49 N.J. 525, 548-49 (1967)).

In this case, the prosecutor did not comment directly on defendant's election not to testify. Nevertheless, the prosecutor's comments may fairly be interpreted as an indirect reference to defendant's failure to testify. The State presented evidence that defendant spoke to Grob on the phone and twice sold him cocaine. While it is conceivable that some person other than defendant could have contradicted the State's proofs concerning these events, from the perspective of a reasonable juror, defendant was the only person who could have testified that he did not speak with Grob or sell him the cocaine.

While we do not condone the prosecutor's statements, we cannot say that the prosecutor's "errant remark was so egregious" that it denied defendant a fair trial. Engel, supra, 249 N.J. Super. at 381-82. The prosecutor made the comment in passing during the closing argument, in which she emphasized that the State had proven all of the elements of the charged offenses. As we stated previously, there was no objection to the remarks by defense counsel. The absence of any objection to the prosecutor's summation "suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 84 (1999).

Moreover, in his charge, the judge instructed the jury concerning defendant's decision not to testify. The judge stated:

It is [defendant's] constitutional right to remain silent. You must not consider for any purpose or in any manner in arriving at your verdict the fact that the defendant did not testify. That fact should not enter into your deliberations or discussions in any manner, at any time. The defendant is entitled to have the jury consider all evidence presented at trial. He's presumed innocent even if he chooses not to testify.

We are satisfied that the judge's instructions cured any potential for prejudice from the prosecutor's "errant remark."

V.

We next consider defendant's contentions respecting his sentences. Here, the judge granted the State's motion for an extended term pursuant to N.J.S.A. 2C:43-6f by reason of defendant's 1990 conviction for distribution of cocaine. Defendant argues that under State v. Lagares, 127 N.J. 20, 32 (1992), the prosecutor is required to state on the trial record the reasons for seeking the extended term and in this case the prosecutor failed to do so.

The record shows that the prosecutor initially relied solely upon defendant's prior conviction as a basis for the motion for an extended term. The judge granted the motion on that basis. Later in the sentencing hearing, the assistant prosecutor commented on the sentence, noting that defendant told his probation officer he had been dealing drugs for twenty years and that it was an "adrenalin rush" to deal drugs. Defendant had expressed no remorse for engaging in this criminal conduct, stating that if his "clients" could not purchase drugs from him, they would have obtained the drugs from some other dealer. The assistant prosecutor additionally stated that, while this case was pending trial, defendant had been arrested on charges that he again dealt drugs to the Strike Force.

In our view, it would have been preferable for the prosecutor to place the reasons for seeking an extended term on the record before the judge ruled on the application. However, we are satisfied that the prosecutor fulfilled the requirements of Lagares and provided a sufficient explanation of the State's reasons for seeking the extended term.

Defendant also argues that he was denied equal protection because persons convicted of drug-related offenses who are eligible for an extended term pursuant to N.J.S.A. 2C:43-6f are treated differently from persons who may be subject to an enhanced sentence as a persistent offender pursuant to N.J.S.A. 2C:44-3a. Under N.J.S.A. 2C:43-6f, an extended term may be imposed by reason of a conviction for certain drug-related offenses without any limitation as to the date of the prior conviction, while under N.J.S.A. 2C:44-3a, an extended term may be imposed by reason of convictions for crimes committed "within 10 years of the date of the crime for which the defendant is being sentenced."

In our view, the disparate treatment of offenders is rationally based on the perceived need to deal more firmly with drug abuse and drug-related crime. N.J.S.A. 2C:35-1.1c; cf. Lagares, supra, 127 N.J. at 33-35 (rejecting equal protection challenge to extended term imposed under N.J.S.A. 2C:43-6f because under the statute defendant was treated differently from other offenders who were convicted of the same offense but were "not burdened with previous drug-related convictions"). In addition, the Attorney General's guidelines allow for waiver of the extended term under N.J.S.A. 2C:43-6f when the record includes prior convictions that are "extremely remote." State v. Irrizary, 328 N.J. Super. 198, 202-03 (App. Div. 2000) (quoting State v. Kirk, 145 N.J. 159, 169 (1996)). We are therefore convinced that there is no merit in defendant's equal protection challenge to N.J.S.A. 2C:43-6f and his extended term sentences.

Defendant next argues that his right to a trial by jury under the Sixth Amendment was violated because the judge imposed an extended term based on his own findings of fact. However, in State v. Thomas, 188 N.J. 137 (2006), the Court held that the Sixth Amendment is not violated when the sentencing court finds that defendant's prior conviction warrants imposition of an enhanced sentence under N.J.S.A. 2C:43-6f. Id. at 151-52. Furthermore, re-sentencing is not required here because the judge imposed the presumptive extended term on counts three and six. N.J.S.A. 2C:43-6f; N.J.S.A. 2C:43-7c; N.J.S.A. 2C:43-7a(4); and N.J.S.A. 2C:44-1f.

We also reject defendant's contention that his sentences are excessive. We are satisfied that the sentences imposed are not manifestly excessive or unduly punitive, are not an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Defendant additionally asserts that the judge erred in his calculation of jail credits. The judgment of conviction provides credit for 141 days served. The judge calculated jail time credit from December 21, 2002 to February 26, 2003 and again from March 24, 2004 to June 4, 2004. Defendant notes that on March 24, 2004, defense counsel stated on the record that defendant had been "incarcerated for quite some time now." Defendant says that he may be entitled to additional credits from December 2003. The State argues that on March 24, 2004, defendant may have been incarcerated on other charges. The record does not provide sufficient information for us to determine whether defendant is entitled to additional jail credits. We therefore remand the matter to the trial court to address this issue.

We have considered defendant's other contentions and find them not to be of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed and remanded for further proceedings consistent with this opinion.

 

(continued)

(continued)

20

A-7130-03T4

November 14, 2006