STATE OF NEW JERSEY v. DAVID A. PHILLIPS -

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3341-06T43341-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID A. PHILLIPS,

Respondent-Appellant.

_________________________________

 
Telephonically Argued October 23, 2008- Decided:

Before Judges Stern, Rodr guez and Waugh.

On appeal Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-12-1249.

Kelly Anderson Smith argued the cause for appellant.

Laura Kotarba, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Ms. Kotarba, of counsel and on the brief).

PER CURIAM

Defendant David Phillips appeals his conviction for third-degree distribution of a controlled dangerous substance (CDS) and the resulting extended term sentence of five-years imprisonment, with three years of parole ineligibility. We reverse and remand for a new trial.

I

On February 23, 2005, the Trenton Police conducted an anti-narcotics operation, targeting the 500 block of Hoffman Avenue in Trenton. Sergeant Paul Gendron was in charge and Detective William Mulryne was assigned to conduct surveillance. The operation was prompted by information received by law enforcement that marijuana was being distributed from a building in that vicinity.

At approximately 11:30 a.m., Mulryne positioned himself on the roof of a building on Hoffman Avenue. Between 12:00 p.m. and 1:00 p.m., Mulryne saw two separate vehicles drive up to 528 Hoffman Avenue. He observed the drivers of each vehicle engage in what he believed to be narcotic transactions with co-defendants Lamar Tyson and Randy Hawkins, the targets of the surveillance operation. The vehicles departed and their drivers were not subsequently identified or apprehended by the police.

At approximately 1:10 p.m., Mulryne observed a green Jeep Cherokee pull up to 528 Hoffman Avenue. The driver was a black male, but Mulryne was unable to provide any description beyond the driver's race and gender. Mulyrne subsequently identified Phillips as the driver.

Mulryne observed Hawkins, who was posted at the apartment door, call upstairs for Tyson, who in turn came down and approached the Jeep's open passenger's side door. Phillips handed Tyson a yellow plastic bag, from which Tyson removed a clear plastic bag. Mulryne testified that the clear bag was full of "suspect marijuana." Tyson quickly returned the clear bag into the yellow bag. After reaching into his pocket, Tyson handed Phillips a large amount of currency. The entire transaction lasted approximately 15-20 seconds.

As soon as the exchange was completed, Tyson shut the door to Phillips's Jeep and ran into the apartment building, where Hawkins was waiting for him. Mulryne believed that the pair then entered apartment 3C. Phillips pulled away and headed towards Coolidge Avenue.

As the Jeep left the area, Mulryne called for assistance in stopping Phillips. Officer Daniel Pagnotta stopped the Jeep at approximately 2:00 p.m. As he approached the vehicle, he observed currency "strewn about" on Phillips's lap and "stuffed in his pants." Pagnotta ordered Phillips out of the vehicle and placed him under arrest. A total of $2,026.00 was found on Phillips and in the vehicle.

After Phillips's arrest, Gendron sought and received a search warrant for 528 Hoffman Avenue, apartment 3C, as well as for Tyson and Hawkins. At approximately 6:00 p.m., the search warrant was executed, with Mulryne's assistance. Significant amounts of marijuana, and related packaging materials; a digital scale; "gang literature," containing the "[s]treet names of certain gang members"; and an illegal handgun were found during the search. The occupants of the apartment were placed under arrest, including Tyson and Hawkins. The contents of the clear plastic bag, which had been found with the yellow plastic bag, were subsequently determined to be marijuana.

All of those arrested at the apartment were taken to the police station for processing. When they entered the processing area, they came into contact with Phillips, who was sitting on a bench. They exclaimed that Phillips had "set them up" and that "[t]hey were going to get him." Phillips did not respond, and was later released on bail.

Phillips was indicted on December 8, 2005, as part of a fourteen count indictment including eight other defendants. Phillips was charged with the following offenses: fourth-degree possession of CDS, N.J.S.A. 2C:35-10(a)(3) (count 1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(11) (count 2); second-degree possession of CDS with intent to distribute near a public facility, N.J.S.A. 2C:35-7.1 (count 3); and third-degree distribution of CDS, N.J.S.A. 2C:35-5(b)(11) (count 4).

Phillips's case was severed from the other defendants. The State chose to proceed against him on only one charge, the third-degree distribution of CDS (count 4). The prosecutor stated at the beginning of the trial that it was doing so for the sake of simplicity. As already noted, Phillips was convicted and sentenced to a five-year extended term, N.J.S.A. 2C:43-6(f), with three years parole ineligibility. This appeal followed.

II

Phillips raises the following issues on appeal:

POINT I

THE DEFENDANT WAS DENIED FAIR AND IMPARTIAL JURY SELECTION: The Court committed plain and reversible error by denying Trial Counsel an opportunity to explore Voir Dire Question of the Jury.

A. Bumper Stickers

B. Race Considerations

POINT II

PROSECUTOR RELIED UPON INAPPORPRIATE REMARKS IN BOTH HIS OPENING AND CLOSING STATEMENTS CONSTITUTING PLAIN ERROR.

A. The Prosecutor inflamed the Jury by improperly referring to the ongoing drug problem faced by the City of Trenton.

B. The Prosecutor improperly bolstered State's witnesses through the trial.

C. The Prosecutor made unfair and improper comments constituting plain error when attempting to rehabilitate Detective Mulryne's credibility.

POINT III

THE INCLUSION OF ADDITIONAL CRIMES, CO-CONSPIRATORS, AND SUPERFLUOUS GANG ACTIVITY SERVED NO PURPOSE BUT TO INFLAME AND PREJUDICE JURORS, CONSTITUTING PLAIN ERROR.

POINT IV

THE TRIAL COURT ERRED IN PERMITTING INFLAMMATORY EVIDENCE NOT RELATED TO THE DEFENDANT OR THE STATE'S CASE IN CHIEF, TAINT THE JURY.

POINT V

THE ADMISSION OF CO-DEFENDANTS' STATEMENTS WERE INFLAMMATORY AND CONSTITUTED PLAIN ERROR AS THEY INFERRED DEFENDANT'S CRIMINAL ASSOCIATION AND PARTICIPANTION IN THE GANG.

POINT VI

THE STATE'S DECISION TO IMPOSE AN EXTENDED TERM SENTENCE PURSUANT TO N.J.S.A. 2C:43-6(f) WAS ARBITRARY AND CAPRICIOUS.

We turn first to the issues raised in Point V, which concerns the statements of the co-defendants. During the State's direct examination of Mulryne, the following exchange took place with respect to what occurred at police headquarters after the arrest of Phillips:

Mr. MCMURTY: What do you recall happened when they came into the processing area?

DET. MULRYNE: As soon as they saw Mr. Phillips on the bench, they started yelling at, screaming at him that he set them up. They were going to get him. They were cursing at him.

MR. MCMURTY: What was Mr. Phillips's response at that time?

DET. MULRYNE: He sat there and didn't comment on them.

There was no objection to those questions, so we must view the issue raised by Phillips under the plain error rule. See R. 1:7-2; R. 2:10-2. See also State v. Macon, 57 N.J. 325, 336-37 (1971). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

Phillips argues that the statements by the co-defendants "suggested that [he] was very familiar with all of the individuals who had just been arrested." He also contends that, "[b]y permitting testimony, which is irrelevant and extremely inflammatory, the jury [was] left with the impression that [he] was part of the Sex Money Bloods Gang, and therefore, guilty by association."

We agree that the wholly unnecessary and inadmissible testimony had the potential to lead the jury to the conclusion that Phillips had a closer relationship to the gang and the gang member co-defendants than the admissible evidence would have warranted. The possibility of such a result was, we believe, enhanced by the equally prejudicial and largely irrelevant testimony, N.J.R.E. 403(a), about the gang activities of the other defendants and the gang paraphernalia found in apartment 3C, which was offered by the State during the trial. See supra Phillips's Point III. Leading the jury to conclude that Phillips had such a relationship with the co-defendants also had the potential to lead the jury to conclude that he was part of their ongoing drug operation.

Although Phillips does not himself raise a constitutional issue, we find that the State's presentation of testimony consisting of out-of-court statements by the co-defendants who did not testify at the trial raises a serious confrontation clause issue. U.S. Const. amends. VI, XIV; N.J. Const. art I, 10. Phillips had no opportunity to cross-examine the co-defendants, whose statements were clearly offered in evidence against him by the State. State v. Branch, 182 N.J. 338, 350 (2005) ("[B]oth the Confrontation Clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged."); State v. Bankston, 63 N.J. 263, 268-69 (1973); State v. Taylor, 350 N.J. Super. 20, 33 (App. Div.), certif. denied, 174 N.J. 190 (2002) ("The principle distilled from Bankston and its progeny is that testimony relating inculpatory information supplied by a co-defendant or other non-testifying witness identifying the defendant as the perpetrator of a crime deprives the accused of his or her constitutional rights." (quotation and citation omitted)).

The problem was further compounded by the prosecutor's reiteration of the improper testimony in his closing statement.

MR. MCMURTY: Now, what else have we got in this case, ladies and gentlemen? We have some other information that I think is quite telling for your consideration when you deliberate. We know that the defendant was taken back to headquarters for processing because Detective Mulryne says he saw him there when they went back after the praying was over, and everybody in 3C was under arrest, and they were being taken to police headquarters as well.

And when Rambo, Capone, Mar-Mar and the others are taken into headquarters and they see the defendant sitting there, what is their reaction? You set us up. You're dead. That's what they said, ladies and gentlemen.

MS. SHIMIZU: Objection.

THE COURT: There was testimony to that effect.

MS. SHIMIZU: That wasn't the exact quote.

MR. MCMURTY: Well, ladies and gentleman, they shouted at the defendant, you set us up.

Although the objection did not raise directly either the admissibility of the co-defendants statements or the constitutional issue, it should have alerted the trial judge to those issues.

We are satisfied from our review of the whole record in light of the applicable law that the State's introduction of the out-of-court statements of the co-defendants was a confrontation clause violation under Bankston and its progeny. The violation was compounded when the prosecutor reiterated the statements in his summation and described them as "telling" evidence in support of the State's case against Phillips.

Although there was little doubt that Phillips was at the location in the Jeep, the defense had questioned Mulryne's ability to have actually seen the exchange of CDS and cash from his vantage point on the roof and had also questioned his credibility based upon a prior inconsistent statement as to his actual location. By using inadmissible evidence to emphasize Phillips's apparent connection with the co-defendants, their gang activities, and then their suspicion that he "set them up," the prosecutor improperly enhanced the State's case against Phillips.

Consequently, we find that the improper admission and use of the statements was "clearly capable of producing an unjust result." Bunch, supra, 180 N.J. at 541. In any event, we are satisfied that, in the aggregate, he did not receive a fair trial. State v. Oreechio, 16 N.J. 125, 129 (1954). We therefore reverse Phillips's conviction and remand the matter to the trial court for a new trial.

III

A.

Because of the need for a retrial, we add the following. At the new trial, the jury will be selected under the provisions of Administrative Directive #21-06, as supplemented by Administrative Directive #4-07, and they will govern the questions to be asked of prospective jurors.

B.

Because we have reversed Phillips's conviction, we need not reach the issue of the propriety of the State's application for an extended term under N.J.S.A. 2C:43-6(f). In the event he is convicted on retrial and again sentenced to an extended term, we will review the sentence in light of the record then before us. We note, however, that N.J.S.A. 2C:43-6(f) requires the sentencing court to impose an extended term if requested to do so by the State, after satisfying itself that the statutory prerequisites have been met. However, in deciding whether to request an extended term, the prosecutor must exercise his or her discretion within the parameters set forth in the Brimage guidelines established by the Attorney General.

IV

In summary, we find that the aggregate of errors combined to deprive defendant of a fair trial. Accordingly, we reverse his conviction and remand to the trial court for a new trial.

Reversed and remanded.

We note in the indictment count 1 is entitled "Possession of a controlled substance with Intent to Distribute." However, N.J.S.A. 2C:35-10(a)(3) addresses only possession. N.J.S.A. 26:35-5 addresses possession of a CDS with the intent to distribute.

Phillips filed pre-trial motions, including motions to suppress, which were denied, but have not been raised on appeal.

In connection with the forfeiture complaint, Mulryne had stated under oath that he was in a different location than the one he testified about at trial. He explained during the trial that the discrepancy was the result of a typographical error.

State v. Brimage, 153 N.J. 1 (1998).

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A-3341-06T4

November 24, 2008