STATE OF NEW JERSEY v. TIMOTHY LAWSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1285-05T41285-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY LAWSON,

Defendant-Appellant.

_____________________________________________________________

 

Submitted April 24, 2007 - Decided May 24, 2007

Before Judges Holston, Jr. and Grall.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-08-1305.

Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Nicole D. DePalma, Assistant Prosecutor, on the brief).

PER CURIAM

Hudson County Indictment No. 1305-08-04 charged defendant, Timothy Lawson, with third-degree possession of CDS (heroin), contrary to N.J.S.A. 2C:35-10(a)(1), count one; third-degree possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), count two; third-degree possession of CDS with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7, count three; third-degree distribution of CDS to Augustus Sandifer, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), count four, third-degree distribution of CDS within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-7, count five; and third-degree conspiracy with Scott Walker to violate narcotics laws by distributing CDS, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), count six.

Defendant was tried by a jury from July 5 through July 7, 2005. The State presented three witnesses. Defendant did not testify and presented no other witnesses. Defendant was found guilty of all six counts of the indictment.

Defendant was sentenced on September 9, 2005. The court merged count two into count three and count four into count five for sentencing purposes. The court imposed the mandatory sentence of five years incarceration with three months parole ineligibility on counts three and five, and four years incarceration on counts one and six. All sentences run concurrent to each other. Defendant appeals his judgment of conviction. We affirm.

On March 3, 2004, at 7:30 a.m. as a result of complaints from area residents, Jersey City Police Officer Scott Rogers, began conducting narcotics surveillance in the area of Clerk Street and Carteret Avenue, a mostly residential area, within 1,000 feet of a school, the TET Christian Academy. Rogers was parked approximately fifteen to twenty feet away from the intersection. The weather was clear and he had a field of vision of at least 500 feet southbound. He was using binoculars.

Upon starting surveillance, Rogers observed, approximately seventy feet away, three black males wearing black "military jackets" standing on the corner. The individuals were later identified as defendant, Walker, and Kendall Davis.

Rogers described defendant as having a light brown or tan colored hood sticking out of his jacket. He was wearing blue jeans and had a short afro hair style. Walker had long braids, a stocky build, and was wearing blue jeans. Davis had braids, was wearing a black doo rag and blue jeans, and was slightly taller than defendant and Walker.

Within a few minutes of setting up surveillance, Rogers observed Sandifer approach the three men and converse with them on the southeast corner of the intersection. Rogers described Sandifer as wearing a black knit hat, glasses, a brown and tan colored jacket and tan pants. Walker directed Sandifer to defendant and then Sandifer and defendant walked to the area of an unoccupied house believed to be 164 Clerk Street. Defendant then walked out of view of Rogers, and shortly thereafter returned to the fence near 164 Clerk Street, where Sandifer was waiting. Rogers observed defendant give Sandifer a small object or objects and receive paper currency in return. Rogers then alerted perimeter units of his observations and provided them with Sandifer's description. Officers Narney and Nieves apprehended Sandifer and recovered from him two small white glassine bags of heroin, with the logo CVS stamped thereon.

Rogers continued to observe defendant. He saw defendant bend down and possibly put something into his shoe or sock. However, he could not exactly see what defendant did with his hand when he bent down.

Rogers then observed a female approach Davis. After some conversation, Davis stepped onto the porch of 162 Clerk Street and reached down in the porch area, met back up with the female and gave her small objects in exchange for paper currency. The female proceeded to enter a blue Honda Accord and drove away. She was never apprehended. Davis entered the doorway of 162 Clerk Street for a few minutes and then returned to the area where defendant and Walker were located.

Rogers then gave a description of each of the three individuals to perimeter units who arrested them. Davis was holding a marijuana "blunt" when the officers approached. Officer Nieves then recovered a stash of six bags of heroin with the logo CVS from the southerly side of 164 Clerk Street. After searching defendant, Sergeant Nestor recovered currency from defendant's right shoe. Defendant presents the following arguments for our consideration.

POINT ONE.

THE TRIAL COURT ERRED IN FAILING TO ADEQUATELY CHARGE THE JURY REGARDING CREDIBILITY OF WITNESSES (NOT RAISED BELOW).

a) THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY AS TO PRIOR CONTRADICTORY STATEMENTS (NOT RAISED BELOW).

b) THE COURT ERRED IN FAILING TO CHARGE THE JURY WITH THE "FALSE-IN-ONE, FALSE-IN-ALL" INSTRUCTION (NOT RAISED BELOW).

POINT TWO.

THE TRIAL COURT ERRED IN EXCLUDING THE PROPERTY REPORT FROM EVIDENCE WHERE IT CONSTITUTED A PRIOR INCONSISTENT STATEMENT OF THE WITNESS.

POINT THREE.

THE TRIAL COURT ERRED IN ALLOWING DEFENDANT'S ARREST PHOTO TO BE PRESENTED TO THE JURY IN AN UNDULY PREJUDICIAL MANNER.

POINT FOUR.

THE TRIAL COURT ERRED IN ALLOWING DEFENDANT'S ARREST PHOTO INTO EVIDENCE WITHOUT THE PROPER JURY INSTRUCTION (NOT RAISED BELOW).

POINT FIVE.

THE TRIAL COURT ERRED BY ENGAGING IN AN EX PARTE, OFF-THE RECORD COMMUNICATION WITH THE DELIBERATING JURY PANEL (NOT RAISED BELOW).

POINT SIX.

THE TRIAL COURT ERRED IN NOT CONDUCTING VOIR DIRE AFTER BECOMING AWARE OF JURY TAINT (NOT RAISED BELOW).

POINT SEVEN.

THE TRIAL COURT ERRED IN FAILING TO PROPERLY POLL THE JURORS AS TO EACH OF THEIR VERDICTS (NOT RAISED BELOW).

POINT EIGHT.

CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

I.

Defendant contends that the trial court erred in failing to charge the jury as to prior contradictory statements. Defendant contends that substantial inconsistencies surfaced at trial between the testimony of the police officers and what they memorialized in their reports.

Officer Rogers testified that after observing a narcotics transaction, that defendant "bent down . . . [and was] messing with his shoe." However, on cross examination, Rogers acknowledged that the part about bending down and doing something with his shoe was not part of his report and was not mentioned in his grand jury testimony. Rogers stated the reason he left the information out of his report was "oversight." Rogers explained that because "I couldn't tell what he was doing with his shoe, [he] could not mention what he was bending down [to] the shoe for." Therefore, it was not a relevant fact that needed to go in the report at that time.

Defendant contends that once the inconsistency surfaced the judge should have sua sponte in her general charge to the jury given the jury the model jury charge on prior contradictory statements. At the charge conference prior to closing arguments, defendant's counsel did not request the prior contradictory statements of a witness charge be given. See R. 1:8-7. Therefore, this court must determine whether it was plain error for the trial court not to have sua sponte instructed the jury with this charge. R. 2:10-2; see also State v. Green, 86 N.J. 281, 288-89 (1981).

In considering whether an error in the charge in a criminal case amounts to plain error, our Supreme Court has defined plain error as "legal impropriety in the charge, prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court [which convinces] the court that of itself[,] the error possessed a clear capacity to bring about an unjust result."

[State v. Viera, 346 N.J. Super. 198, 210 (App. Div. 2001), certif. denied, 174 N.J. 38 (2002) (quoting State v. Hock, 54 N.J. 526, 538 (1960), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).]

"Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial." State v. Concepcion, 111 N.J. 373, 379 (1988). In evaluating the propriety of a jury charge, the charge to the jury must be viewed as a whole. Id. at 377. This examination is necessary to determine the overall effect of the charge. State v. Wilbely, 63 N.J. 420, 422 (1973). "If, on reading the charge as a whole, prejudicial error does not appear, then the verdict must stand." State v. Coruzzi, 189 N.J. Super. 273, 312 (App. Div.), certif. denied, 94 N.J. 531 (1983).

When a party does not suffer prejudice based on a jury charge, the harmless error rule applies. R. 2:10-2. The rule states, in part: "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." See also State v. Macon, 57 N.J. 325, 337-38 (1971); State v. Pierce, 330 N.J. Super. 479 (App. Div. 2000). The harmless error rule demands that the reviewing court determine whether the error at issue is "so grave that it caused the jury to be misled, confused, or inadequately informed." Boland v. Dolan, 140 N.J. 174, 189 (1995).

Defendant relies upon State v. Allen, 308 N.J. Super. 421 (App. Div. 1998), for the proposition that the court should have sua sponte charged the jury with the "prior contradictory statements of witnesses" jury charge. In Allen, a police officer observed a drug transaction and the surveillance officer's trial testimony differed from the report he prepared. Id. at 424. The trial strategy of the defense counsel was to show the lack of credibility of the arresting officer. Id. at 427. The trial judge only gave the jury the "false in one, false in all charge." Ibid. We held that the judge should have given the jury at a minimum the full charge on credibility. Ibid. Because defense counsel requested the charge be given, id. at 425, and the trial court refused the request, we held that "the charge as a whole [was] deficient." Id. at 432.

In this case, the model charge on credibility deemed essential in Allen was given in its entirety by the trial judge. See id. at 427; Model Jury Charge (Criminal), "Credibility of Witnesses." Further, the jury was instructed to take into consideration the extent to which "each witness is either corroborated or contradicted, supported or discredited by other evidence." We are satisfied that the court's failure to sua sponte charge the jury with the "Prior Contradictory Statements of Witnesses" jury charge was not error and clearly not plain error as the absence of the charge was not capable of producing an unjust result. R. 2:10-2.

II.

Defendant further argues that the court erred by failing to give the "False-In-One, False-In-All" jury instruction. This charge states:

If you believe that any witness or party willfully or knowingly testified falsely to any material facts in the case, with intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it, or you may, in your discretion, disregard all of it.

[Model Jury Charge (Criminal), False In One - False in All.]

This charge is not a mandatory charge, and should be given to "the jury as an aid when a witness has been discredited out of his own mouth either by cross-examination or by an unimpeached record." State v. Sturchio, 127 N.J.L. 366, 369 (1941). "[A] trial judge in his discretion may give the charge in any situation in which he reasonably believes a jury may find a basis for its application. State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961). "The 'false about one fact false about all' rule may be invoked by a trial judge when a witness intentionally testifies falsely as to some material fact." State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div.), certif. denied, 33 N.J. 109 (1960).

Our thorough review of the record convinces us that the court did not err in failing to sua sponte deliver the false in one-false in all jury charge. The court instructed the jury:

If you believe that any witness or party willfully or knowingly testified falsely to any material facts in the case, with intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it, or you may, in your discretion, disregard all of it.

As a result, the jury was adequately notified that it was their job to decide the credibility of all witnesses and determine whether a witness was willfully or knowingly testifying falsely to any of the facts testified to at trial.

III.

Defendant contends that the trial court erred in excluding the report of Sergeant Nestor because it fell within a hearsay exception. The property report completed by Nestor on March 3, 2004, stated that "the money [was] recovered from [defendant] in the right sneaker underneath insole." Nestor testified that $133 in currency was found in defendant's right shoe. During cross-examination, Nestor testified that the money was "in his right shoe . . . and under the sole and on the shoe." He added, "[t]here was money located in the shoe. There's like a sole part that comes out, stuffed underneath and on top of that." He acknowledged that his report made no mention of money being above the sole or on the side of the shoe. He also admitted that there was no mention in the report that money was sticking out from underneath the shoe.

Defendant contends that this inconsistency required the court to have admitted in evidence the property report, as the credibility of Nestor was critical to the outcome of the case. Defendant claims the report was admissible as substantive evidence under N.J.R.E. 803(a)(1). N.J.R.E. 803(a)(1) provides that "[a] statement previously made by a person who is a witness at a trial or hearing [is admissible], provided it would have been admissible if made by the declarant while testifying and the statement: (1) is inconsistent with the witness' testimony at the trial . . . and is offered in compliance with Rule 613."

Although we are convinced the property report was admissible under N.J.R.E. 803(a)(1), we are equally convinced that the failure to permit its admission as substantive evidence was harmless. The failure to admit the report as substantive evidence was not sufficient to change the verdict rendered by the jury.

The property report was used extensively during cross examination of Nestor. Thus, the jury was aware of the report's content. Additionally, the jury was instructed in the court's charge to make determinations based upon all the evidence before it. We further note that the report did not prove or disprove any element of the offenses with which defendant was charged. The only inconsistency the report revealed was where the money was found in defendant's shoe. We are convinced, therefore, that the failure to admit the report into evidence did not affect any fundamental right of defendant and was harmless.

IV.

Defendant contends that the admission into evidence of his photograph taken on the date of his arrest was reversible error. Defendant relies on State v. Cribb, 281 N.J. Super. 156, 160 (App. Div. 1995) and contends that the photograph was not "presented in as neutral a form as possible." Further defendant argues that the jury was influenced in making its decision by inferring from the photograph that defendant was found guilty of prior criminal conduct.

During trial, the photograph of defendant was presented to the three officers who testified for the purpose of identifying defendant. The photograph was referred to as a B.C.I. photograph. B.C.I. means bureau of criminal investigations, but the officers were not asked to explain what the term B.C.I. meant, when they were identifying defendant's photograph.

Rogers testified to the following:

[State] Officer, I am going to show you what's been marked as S-1 for Identification, can you tell me what that is?

[Rogers] This is a B.C.I. photograph of [defendant.]

[State] What's the date of that photograph?

[Rogers] 3/3/04

[State] Now, is that an accurate depiction of how [defendant] looked on the day in question?

[Rogers] Yes.

Officers Nieves and Nestor had similar questions asked of them and gave similar answers.

Generally, a photograph of a defendant may be used if identification is at issue, but it must be presented in "as neutral form as possible." Cribb, supra, 281 N.J. Super. at 161 (quoting State v. Taplin, 230 N.J. Super. 95, 99 (1988)). It must be presented neutrally so that the jury is not influenced to think that the defendant has a criminal history. Taplin, supra, 230 N.J. Super. at 98. In Taplin, this court held that the use of a "mug shot" during trial, when identification was not an issue, prejudiced defendant and required reversal. Id. at 99-100. We stated that the "photograph of defendant objected to was and could reasonably be inferred by a jury to be a mug shot suggestive of a prior criminal record, and we perceive no purpose for its admission other than unfairly to permit the jury to draw the inference that defendant had a prior criminal record." Id. at 99. However, the photograph used in Taplin was a front and side photo previously taken of defendant, prior to his arrest for the crime for which he was on trial. Id. at 97.

Similarly, in Cribb, an issue arose because the testifying witness stated that the photographs used, "they were, like, mug shots. I guess that's what you call them." 281 N.J. Super. at 160. The court noted, that "[i]dentification of photos of a defendant as mug shots has resulted in reversal of conviction on appeal because they imply a criminal history." Ibid. Additionally, during direct examination of the investigating detective, the detective testified that another officer recommended to the investigating detective the defendant as a possible suspect. We held that the investigating officer's testimony "tended to establish that [the defendant] was an individual notorious to the police." Id. at 161. We concluded that the use of the term mug shot and the investigating officer's testimony created an issue because the "photo was not presented in a neutral format." Ibid. It "had a substantial capacity to influence the jury in favor of conviction because it tended to buttress the creditability of [the victim's] identification of defendant as the perpetrator and reinforce its impact." Id. at 162.

We are satisfied that defendant has failed to show any prejudice that occurred from the admission of the photograph into evidence. We first note that the photograph was not objected to. The photograph was never referred to as a mug shot, and the jury was not told what the initials B.C.I. meant. Further, the date the photograph was taken was the date defendant was arrested for the offenses for which he was on trial. Under these circumstances, we are satisfied the jury could not infer that the photograph was a mug shot the police had on file. We are equally satisfied the photograph would not lead a jury to conclude that defendant had a prior criminal record, as the photograph was taken on the day of defendant's arrest. As a result, we are convinced that defendant suffered no prejudice from the admission of the photograph.

V.

Defendant contends that the trial court erred in not instructing the jury with the "Identity - Police Photos" jury instruction. Defendant claims that the trial court's failure to charge the jury in a manner consistent with the Model Jury Charge on "Identity - Police Photos," allowed the jury to be improperly influenced in favor of a guilty verdict and thus, was clearly capable of producing an unjust result. R. 2:10-2.

In State v. Swint, 364 N.J. Super. 236 (App. Div. 2003), defense counsel requested that the court mention to the jury that photographs included in a photo array may have been obtained from various sources. Id. at 241. During trial, the prosecutor characterized photographs as mug shots. Id. at 240. We observed that the defense counsel did not request exactly the "Identity - Police Charge," but "she certainly requested the substance of that charge and that request was just as clearly denied." Id. at 241. We held that the failure to give this charge was harmful. We stated: "Here, the jury was obviously concerned about the 'criteria' used to select the photos shown to the victims." Id. at 243. "The legal concern is that police photos suggest the inadmissible postulate that defendant had a criminal history, may have been suspect for that reason, and the jury may then find him guilty on the same basis." Ibid. We concluded that, "[i]n a case such as this where the sole issue was identification and that, in turn, was influenced by whether defendant's alibi was credible, we cannot say the error was harmless." Ibid.

This case is different from Swint. Here, the issue of identification was not the sole issue. Further, there was no mention of a mug shot or the meaning of B.C.I. during the officers' testimony. Further, the charge or a charge similar to the "Identity-Police Photos" charge was not requested. We are convinced that the jury would not conclude that defendant had a prior criminal history as the photo was taken the day that he was arrested for the charges contained in the indictment for which he was being tried. As a result, defendant's right to a fair trial was not violated and the failure to give the charge was not "clearly capable of producing an unjust result." R. 2:10-2.

VI.

Defendant contends that the court did not scrupulously avoid all ex parte communications with the jury. Defendant argues, based upon the trial court's failure to conduct all proceedings and questions from the jury in open court, that the ex parte communications were clearly capable of producing and unjust result, constituting plain error. We disagree.

During jury deliberations, the jury gave a note to the judge. The judge then gave a note to the jury. Neither note was read on the record. However, prior to receiving the jury's verdict the judge placed the following remarks on the record:

[The Court] Ms. Johnson, let the Record note our Jury Foreperson and all members are seated as is our alternate. I understand from your note that we have marked C-3 in Evidence, that you have reached, the jury has reached a verdict, is that correct?

[Foreperson] Yes, sir.

[The Court] Also, I sent some others, the other note back to you that was marked C-2, do you still have that, where I responded that the read back that you had requested was ready?

[Foreperson] You should have it.

[The Court] It may be with the evidence. No problem. We'll find it. But in any event, when I wrote it back to you, you did give it to the officer?

[Foreperson] Yes I did.

A judge should avoid engaging in ex parte and unrecorded communications with a deliberating jury. State v. Basit, 378 N.J. Super. 125, 131 (App. Div. 2005). However, ex parte communications between judges and deliberating jurors do not automatically require a reversal of conviction. Id. at 332; see State v. Auld, 2 N.J. 426, 432 (1949).

In Basit, the jury, during deliberations, posed two questions to the judge. The judge, off the record, answered the jury's questions. The court noted that the record did not indicate what the jury was told by the judge, but only that the judge spoke to the jury and what he intended to say. The record was void of what actually was said or "to what extent any juror may have responded." Id. at 130. We noted that at no time "did the trial judge ever describe what occurred when he had his ex parte unrecorded discussion with the jury." Id. at 131. We added, "when 'the record fails to disclose whether or not the communication was prejudicial, it will be presumed to be so and constitute cause for a reversal of the judgment." Id. at 135 (quoting Guzzi v. Jersey Central Power & Light Co., 36 N.J. Super. 255, 264-65 (App. Div. 1955)). We noted that there are times when an "adequate description of the ex parte proceeding may permit a reviewing court to determine that the presumption of prejudice has been dispelled." Id. at 135-36.

This case differs from Basit. In Basit, the judge met with the jury while the jurors were deliberating. In this case, the judge never met with the jury. The only interaction between the judge and the deliberating jury was an exchange of notes. The first note was a request by the jury for a "read back" and the second note by the judge was that the read back was ready to be read. The judge described what took place on the record prior to taking the jury's verdict, thereby enabling this court to review the record. We are convinced that the presumption of prejudice is thus dispelled.

VII.

Defendant contends that the court erred in failing to properly poll the jurors as to each of their verdicts. Defendant contends that the jurors were not polled as to each of their votes, but only as to whether they were unanimous in making a decision.

A unanimous verdict is required in order properly to convict a defendant in a criminal case. U.S. Const Amend. 6. The trial judge must poll each juror individually. The poll must afford an "opportunity for free expression, unhampered by the fears or the errors which may have attended the private proceedings." State v. Milton, 178 N.J. 421, 432 (2004) (quoting State v. Schmelz, 17 N.J. 227, 233 (1955)). The court must determine "whether each juror assented, and still assents, to the verdict tendered to the court." Id. at 433.

In this case the clerk of the court addressed the jury:

First thing I am going to do is poll the Jury, which means, I am going to call your name according to where you are sitting. I want you to respond verbally so the Reporter can pick it up, then I am going to ask the Foreperson on each count of the Indictment, how everyone voted, then I am going to ask you individually if the vote was unanimous.

The transcript then reads: "(Whereupon the jury is polled and all are present.)" Thereafter each count of the indictment was read and as to each count the foreperson was asked: "Do you agree that was a unanimous verdict." As to each count, the foreperson responded, "yes." After the foreperson answered that it was a unanimous verdict on each count the transcript of the jury questioning states in parentheses: "(Whereupon the jury is polled and all agree with the verdict as stated by their Foreperson.)"

We are convinced that the jury was properly polled. Despite the lack of an actual record of the questions asked of each juror individually, the court clerk specified that he/she would be polling each juror and making sure each individually reached the same verdict. The parenthetical "whereupon the jury is polled and all agree with the verdict as stated by their Foreperson," sufficiently shows that the jury was individually polled and the transcriber simply neglected to transcribe the individual polling questions and answers into the record.

 
The remainder of defendant's contentions are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). Accordingly, we affirm defendant's judgment of conviction.

(continued)

(continued)

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A-1285-05T4

May 24, 2007