STATE OF NEW JERSEY v. JAMES D. SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3580-07T43580-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES D. SMITH,

Defendant-Appellant.

________________________________________________________________

 

Submitted April 20, 2009 - Decided

Before Judges Carchman and Simonelli.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County,

Indictment No. 07-04-565.

John W. Hartmann, attorney for appellant.

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis Rosenbach,

of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant James Smith was convicted of third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; and third-degree conspiracy, N.J.S.A. 2C:5-2. The jury acquitted defendant of third-degree possession of a CDS, cocaine, N.J.S.A. 2C:35-10(a)(1). The State moved for an extended term, which was granted, and after appropriate mergers, the judge sentenced defendant to a seven-year jail term, with a three-and-one-half year period of parole ineligibility. The judge also imposed the applicable fines and penalties and suspended defendant's driver's license. Defendant appealed, and we affirm.

These are the facts adduced at trial. On February 1, 2007, Detective Ronaldy Martinez of the New Brunswick Police Department conducted surveillance in the area of a residence located on Seaman Street in New Brunswick (the house). Detective Martinez, a member of the New Brunswick Anti-Crime Unit, had obtained a search warrant for the house. The search warrant named defendant. The house is located within 1,000 feet of Roosevelt School and New Brunswick Health Sciences Technology High School. Detective Martinez's surveillance occurred during the day time, his location was within one hundred and fifty feet of the house, and nothing obstructed his view of the house or the alley-way next to it. Detective Martinez used binoculars to enhance his observation of the area.

At one point during the surveillance, a Hispanic woman walked toward the house while talking on her cell phone. A few minutes later, defendant exited the house through a side window, entered the alley-way, removed a large bag from under the siding of the house and removed a smaller bag from within the large bag. Defendant then re-entered the house and met the woman on the front steps of the house. Detective Martinez then witnessed defendant hand the woman the smaller bag of suspected cocaine in exchange for cash. The woman then placed the bag into her mouth and walked away.

There were two back-up units parked nearby during this interaction. Detective Martinez remained in radio and cell phone contact with these units throughout the surveillance. Detective Martinez, as well as the other officers in the back-up units, wore plain clothes with a badge to identify themselves as police officers. After observing the interaction between defendant and the female, Detective Martinez remained in his surveillance location and advised the back-up units to not make an arrest. The detective did this because he was afraid that the female would swallow the bag if an officer approached her.

At some point after these observations, Detective Martinez observed a white male walk into the area and wait across the street from the house. The detective then observed Morgan Brown, a co-defendant, ride a bicycle to the house. Brown walked across the street, engaged in a short conversation with an unidentified male and then walked back to the alley-way next to the house. Brown then reached under the siding, removed the large bag and several smaller bags from the large bag. Brown walked back across the street to the male and exchanged multiple bags of suspected cocaine for cash. At this point, the male placed the bags into his mouth and left the area. Brown placed the remaining bags in his mouth and also left the area on his bicycle. The detective did not advise the back-up units to arrest either the white male or Brown because he was afraid that they would swallow the bags of suspected cocaine.

Immediately after Brown left the area, Detective Martinez rejoined the back-up units, and they proceeded to execute the search warrant on the house. Detective Martinez knocked on the front door and rang the doorbell, but no one answered. The detective noticed that the door was unlocked, so he entered the house yelling, "police, search warrant." Defendant appeared on the second-floor landing with a child. Detective Martinez advised defendant of his rights, and defendant cooperated with the police officers. The police officers found two cell phones and $241 in cash on defendant. The officers also found several sandwich bags in the attic and more sandwich bags, some with the ends cut off, in the trash can located in the alley-way. While the police were executing the search warrant, Brown returned to the house and was consequently arrested.

After securing the inside of the house, Detective Martinez instructed Detective Michael Yurkovic to go to the alley-way where he had observed defendant and Brown remove the cocaine. Detective Yurkovic indicated that he had been assigned to the "perimeter team," to ensure that no one entered or exited the house during the execution of the search warrant. Specifically, the detective was assigned to the alley-way next to the house. As a result of his conversation with Detective Martinez, Detective Yurkovic approached the siding of the house and recovered two plastic bags filled with an unknown substance. One of the bags contained seven smaller bags and the other contained twenty-one smaller bags. The substance in these bags later tested positive for crack cocaine.

In addition to Detectives Martinez and Yurkovic, the State proffered Marc Levy, an investigator with the Middlesex County Prosecutor's office, who was qualified as an expert in the field of possession of a CDS with intent to distribute. Levy opined that the CDS was possessed with the intent to distribute based on the location of the bags, the fact that the parties placed the bags in their mouths, the involvement of more than one person and the manner in which the CDS was packaged.

Brown testified on behalf of defendant. He indicated that on February 1, 2007, defendant's mother and his siblings lived at the house, but defendant lived with his girlfriend elsewhere. Brown stated that although defendant did not live at the house, he went there regularly to check on his mother and to utilize a music recording studio located in the basement. Brown admitted to being arrested at the house on February 1, 2007, and to pleading guilty to possession of CDS with intent to distribute within 1,000 feet of a school.

Brown noted that on February 1, 2007, he arrived at the house at approximately three o'clock in the afternoon. As Brown rode his bicycle towards the house he noticed a white male, to whom he normally sold drugs, walking up Seaman Street. Brown approached the male and asked, "what's good," to which the male replied that he had twenty dollars. At this point, Brown went into the alley-way, retrieved the bag of cocaine from under the siding, and proceeded to make the sale.

After this sale, Brown went into the house and gave defendant money to hold for him because Brown did not want to have that much money on him while standing outside. Brown testified that he gave defendant around $243 but no more than $250. Brown then left the house on his bicycle to conduct more sales. Later that day, Brown returned to the house to drop off more money, but the police were there. The police arrested Brown, and when they informed him that they found drugs under the siding, he admitted that they were his.

On cross-examination the State questioned Brown regarding his plea form. The State directed Brown to line 20 of the plea agreement, which states "have any promises or representations been made by you, the Prosecutor, your defense attorney, or anyone else, as a part of this guilty plea." Brown admitted that he did not claim that defendant had nothing to do with the drugs on this line but left the line blank. Brown also testified that he wrote a letter on August 24, 2007, in which he stated that defendant "had nothing to do" with the sale of drugs on February 1, 2007, and he gave this letter to defense counsel. Brown admitted that the letter did not mention Brown going into the house and asking defendant to hold his money. When asked why he did not include this, Brown stated that he did not know that he had to discuss the money in his letter. Brown also admitted to not appearing at his scheduled sentencing.

During deliberations the jury asked whether the charges were independent of one another and whether defendant could be guilty of a crime for his knowledge of someone else's possession of narcotics. The judge informed the jury that each charge was a separate offense to be considered individually and that the answer to the second question was no. Additionally, the jury asked if defendant could be guilty of possession with intent to distribute but not guilty of mere possession and whether there were two different definitions of "possession." The judge explained that the definition of possession was the same, regardless of where it was used. The judge then redefined possession and discussed the concepts of actual, constructive, sole and joint possession. The jury returned its verdict without any further questions.

On appeal, defendant raises the following issues:

POINT I

THE PROSECUTORS' [SIC] STATEMENTS DURING HIS OPENING STATEMENT AND DURING SUMMATION PREJUDICED SMITH AND CAUSED AN UNJUST RESULT. (Not Raised Below)

A. The Prosecutor's Disparaging Comments about Defense Counsel During Summation Led to an Unjust Verdict and Requires Reversal.

B. Assistant Prosecutor LaMountain Improperly Used the Existence of a Search Warrant as Evidence of Smith's Guilt.

POINT II

THE TRIAL COURT ERRED IN PERMITTING THE STATE TO UTILIZE THE PLEA AGREEMENT AS A PRIOR CONVICTION TO DISCREDIT BROWN.

POINT III

THE TRIAL COURT ERRED IN FINDING THAT THE INCONSISTENT VERDICT DID NOT REQUIRE AN ACQUITTAL OF ALL CHARGES.

POINT IV

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAILING TO MAKE SEVERAL ESSENTIAL AND MERITORIOUS MOTIONS THAT WOULD HAVE AFFECTED THE OUTCOME OF THE TRIAL.

A. Defense Counsel rendered Ineffective Assistance because He Failed to File a Motion to Divulge the Surveillance Location and did Not File a Motion to Suppress the Evidence that Result [sic] from the Execution of the Search Warrant.

B. Trial Counsel was Ineffective because He Failed to Meet with Smith Prior to Trial, Did Not File Pro Se Motions on Behalf of Smith and Failed to Cross-Examine Detective Martinez as Requested.

POINT V

THE PROSECUTOR FAILED TO PLACE ON THE RECORD HIS REASONS FOR NOT WAIVING THE MANDATORY EXTENDED TERM THEREBY REQUIRING THE SENTENCE BE VACATED AND REMANDED.

We address the issues seriatim.

Defendant asserts that the statements during the prosecutor's opening and closing were inappropriate. Specifically, defendant asserts that during his summation, the prosecutor made disparaging comments about defense counsel that led to an unjust verdict. He focuses on two particular statements:

If [the police] would be trying to hide anything from you, why not just leave that picture out, or stage the scene, if they're trying to deceive you? That's not what's happening here. There is an intent to deceive you, but it's not by the State.

. . . .

[Brown] had a hundred fifty dollars on him. Doesn't that sound just a little too convenient, that since February, that he admitted to you, he talked to his attorney, to Mr. Smith's attorney.

Defendant argues that the prosecutor disparaged defense counsel, and called counsel's reputation into question. He asserts that the comments were likely to produce an unjust result because the prosecutor's comment regarding Brown's credibility was "exacerbated" by his previous comment, which endorsed Detective Martinez's testimony while disparaging the defense.

The State counters that the prosecutor's comments were a response to defense counsel's summation, citing three specific instances where defense counsel accused the State's witnesses of conspiring to deceive the jury. The State continues that before the prosecutor made this comment, he asked the jury to consider whether the police had an intent to deceive, stated that Brown's guilty plea corroborated Martinez's testimony regarding surveillance and then discussed how the pictures admitted into evidence contradicted a claim that the State intended to deceive. The prosecutor's final statement regarding intent to deceive was simply him redirecting defense counsel's theme back at counsel.

Finally, the State maintains that this statement did not accuse defense counsel of partaking in a fraud upon the court, but simply highlighted the fact that Brown did not mention that he gave defendant the money until after discussing the case with defense counsel. Moreover, the amount acknowledged by Brown was almost identical to the amount found on defendant, instead of a round number.

"Prosecutors are afforded considerable leeway in their closing arguments. . . ." State v. Frost, 158 N.J. 76, 82 (1999). However, there remain limitations on what a prosecutor may say during summation. A prosecutor must "confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178 (2001). "[I]f a prosecutor's arguments are based on the facts of the case and reasonable inferences therefrom, what is said in discussing them, 'by way of comment, denunciation or appeal, will afford no ground for reversal.'" Ibid. (quoting State v. Johnson (Johnson I), 31 N.J. 489, 510 (1960)). Prosecutors are permitted to "respond to an issue or argument raised by defense counsel." State v. Johnson (Johnson II), 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996).

When a prosecutor's "misconduct was so egregious that it deprived the defendant of a fair trial," reversal is required. Frost, supra, 158 N.J. at 83. "In determining whether prosecutorial misconduct is prejudicial and denied defendant a fair trial, we consider whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 322-23 (1987). Generally, when counsel fails to object, the remarks will not be considered prejudicial. Id. at 323.

"The absence of an objection suggests that trial counsel perceived no error or prejudice, and, in any event, prevented the trial judge from remedying any possible confusion in a timely manner." Bradford v. Kupper Associates, 283 N.J. Super. 556, 573-74 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996). Plain error consists of an error that is "clearly capable of producing an unjust result. . . ." R. 2:10-2. In order to reverse, we must find that this "possibility" is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

A prosecutor is prohibited from "cast[ing] unjustified aspersions on the defense or defense counsel." Smith, supra, 167 N.J. at 177. In Frost, the Court held that the prosecutor's comments during summation that "defense counsel's closing arguments were 'lawyer talk'" were improper. Frost, supra, 158 N.J. at 86. Similarly, we found that prosecutorial misconduct occurred where a prosecutor remarked to the jury "that defendant's calling of character witnesses was 'quite shameless.'" State v. Neal, 361 N.J. Super. 522, 535 (App. Div. 2003). However, "a prosecutor may point out discrepancies in a witness's testimony or a witness's interests in presenting a particular version of events." Johnson II, supra, 287 N.J. Super. at 267.

Here, the prosecutor's statements did not constitute prosecutorial misconduct. First, it must be noted that defense counsel did not object at trial. Second, defense counsel's central theme during his summation was that the police officers were not being completely truthful in their testimony. Defense counsel stated:

I submit to you . . . that what you saw happen, by way of the State's witness[es]' testimony, was a conspiracy. The only conspiracy out here was a conspiracy to deceive. To deceive you.

. . . .

A conspiracy to deceive you. Guess what? On this conspiracy to deceive you, they didn't do a good job on it.

. . . .

It is a conspiracy to deceive. That's what you witnessed here. A conspiracy to deceive you. This is supposed to be a search for the truth. You didn't hear the truth, not from these individuals. They came here to deceive you.

In addition to these claims of "a conspiracy to deceive" the jury, defense counsel also repeatedly accused Detective Martinez of lying during his testimony. The prosecutor's response to these comments were within acceptable advocacy and do not provide a basis for our intervention.

Defendant also claims that the prosecutor improperly used the existence of the search warrant as evidence of defendant's guilt. We disagree.

The prosecutor said:

Who has an intent to deceive you? The police? I submit to you, because whatever the police told you, in this case, was backed up by the facts. Whatever I told you was going to come out in opening statements is corroborated by the facts in this case.

. . . .

I told you that on February 1st, Detective Martinez set up surveillance on the house

. . . with a search warrant for [defendant], his residence, and the areas immediately surrounding.

. . . .

What the police said is backed up by the evidence. After deciding to break off the surveillance, Detective Martinez goes back with his surveillance group, and they go in, and they execute the search warrant. They didn't know . . . Brown was coming back. The police set up, to execute the search warrant. They find the drugs.

. . . .

Of all the places in New Brunswick, in the world for that matter, to keep his stash, he keeps it on the side of his buddy's house. Does that make any sense to you? That [defendant] wasn't involved in this? Didn't have access to that CDS, wasn't selling out of the same bag? Does that make any sense to you? That it would be at his house (indicating)?

Does it make a little better explanation, when you realize who and what the search warrant was for, who actually was involved in this case.

Defendant states that the prosecutor also unnecessarily commented on the search warrant in his opening statement. He contends that the only item recovered as a result of the search warrant was the box of sandwich bags from the attic. He continues that the police did not even need a search warrant to recover the drugs because they were located under the siding of the house. Defendant concludes that the prosecutor referenced the search warrant as evidence that defendant possessed the drugs and as support for the officers' credibility, thus causing an unfair trial.

The Supreme Court stated that "a properly instructed jury will not presume guilt based on the issuance of a search warrant. We note, moreover, the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly." State v. Marshall, 148 N.J. 89, 240, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). A reference to a search warrant is proper unless the reference has the capacity to mislead the jury. Ibid.

The references to the search warrant simply indicate that the police officers had obtained a search warrant and executed it. None of those statements had the potential to mislead the jury, and therefore, defendant's arguments as to those are without merit.

Ultimately, Judge Venezia instructed the jury that they should reach a verdict based on evidence alone and that statements by counsel do not constitute evidence. This limiting instruction, along with the testimony provided by Detective Martinez and Levy shows that even if the prosecutor's statements were improper, they do not provide "'a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Kuchera, 198 N.J. 482, 497 (2009) (quoting Macon, supra, 57 N.J. at 336). We perceive of no need for our intervention on this issue.

Defendant next claims that Judge Venezia erred in allowing the State to use Brown's plea agreement as a prior conviction for the purpose of impeaching his credibility as a witness.

Although Brown pled guilty to count three, he did not appear for his sentencing hearing and was never sentenced. Although Judge Venezia did not sentence Brown before the trial, she ruled that the State could cross-examine Brown as to the circumstances of his plea and the fact that he did not appear for sentencing. However, the judge ruled that she would not instruct the jury as to prior conviction and its impact on Brown's credibility.

Defendant argues that the judge allowed the State to use Brown's guilty plea as a prior conviction for the purposes of impeachment, despite the fact that he had yet to be sentenced. He contends that the State used the plea agreement to improperly impeach Brown, by pointing out his failure to exculpate defendant on the plea agreement form. He submits that nothing on line twenty of the plea form, the line to which the State pointed to at trial, states that this is where one must exculpate a co-defendant. He continues that there is no evidence that Brown's counsel, the prosecutor, or the judge who accepted the plea informed Brown that line twenty was the location to exculpate defendant. Defendant concludes that the State should have obtained the transcript of Brown's plea hearing in order to impeach him.

The prosecutor utilized the plea agreement to show that Brown did not exculpate defendant at that time and then pointed out that Brown did not appear for sentencing. The prosecutor brought to the jury's attention to the fact that Brown had nothing to lose since he already plead guilty.

The thrust of defendant's argument is not that Judge Venezia erred in allowing the State to use Brown's plea agreement, as a prior conviction, for impeachment purposes. Judge Venezia did not allow the State to use the plea agreement as a prior conviction. Instead, defendant argues that the State improperly impeached Brown by questioning him as to why he did not exculpate defendant in his plea agreement. However, defense counsel specifically stated before trial, "I would have no objection to have [Brown] questioned as to his plea form." At best, this is invited error. See State v. Jenkins, 178 N.J. 347, 358 (2004).

Our rules permit the type of cross-examination utilized here and the use of appropriate evidence to impeach credibility. Further, "it may be proper to permit such evidence to be used to impeach the credibility of a previously-convicted co-defendant who testified for the defendant at trial for the limited purpose of showing that he has nothing to lose by incriminating himself. . . ." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 410 (2008) (citing Biunno, supra, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 611). Comment 4 on N.J.R.E. 611 discusses State v. Robinson, 253 N.J. Super. 346 (App. Div.), certif. denied, 130 N.J. 6 (1992). In Robinson, we observed that a co-defendant, who had already been sentenced, "had nothing to lose by exonerating [the defendant,] and his testimony is therefore 'inherently suspect.'" Id. at 367 (internal quotations and citation omitted).

We conclude that the State properly used Brown's guilty plea. The State used the plea to show that Brown had nothing to lose by exculpating defendant and that Brown's exculpating statements were recently contrived. Defendant's claims that the plea agreement does not indicate that exculpating statements should occur on line twenty and that there is no evidence that anyone informed Brown that he needed to include this statement, could have been addressed through redirect examination of Brown. Defense counsel did not do so at the trial level. Defendant has failed to show that this was an error, let alone plain error.

As to defendant's claims regarding inconsistent verdicts or the failure of the State to place on the record the reasons for not waiving the mandatory extended term, we have carefully reviewed the record and find that defendant's arguments are without merit and do not warrant additional comment. R. 2:11-3(e)(2).

Finally, defendant asserts that his trial counsel was ineffective. we conclude that such application is premature. As we observed in State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008), "the Law Division should, in the first instance, hear [post-conviction relief] petitions raising claims of ineffective . . . counsel."

We conclude that the issues raised by defendant are properly reserved for post-conviction relief.

 
Affirmed.

As part of the Anti-Crime Unit, Detective Martinez has been involved with over five hundred narcotics investigations (over half of which involved cocaine), three hundred arrests and over one thousand surveillances.

(continued)

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A-3580-07T4

August 12, 2009