STATE OF NEW JERSEY v. JEFFREY VAUGHN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5563-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY VAUGHN,

Defendant-Appellant.

_________________________________________________________

 

Submitted January 21, 2010 - Decided

Before Judges Graves, Sabatino and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Cumberland County, Indictment

No. 06-05-0572.

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

Paula T. Dow, Acting Attorney General, attorney for respondent (Johanna Barba Jones, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On March 4, 2008, a jury convicted defendant Jeffrey Vaughn of third-degree distribution of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-5(b)(3) (count one), and second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two). The distribution to an undercover police officer occurred in the City of Millville in Cumberland County on November 2, 2005, and defendant was charged with possession of cocaine with intent to distribute on December 2, 2005, when the police executed a search warrant. On April 18, 2008, the court sentenced defendant to an eight-year prison term with four years of parole ineligibility on count two, and a concurrent five-year term with two-and-one-half years of parole ineligibility on count one. Appropriate statutory penalties and assessments were also imposed.

On appeal, defendant presents the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR DISCLOSURE OF THE CONFIDENTIAL INFORMANTS, IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW.

POINT II

DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY THE PUBLISHING OF A PRIOR ARREST PHOTO BEFORE THE JURY.

POINT III

THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR [JUDGMENT] OF ACQUITTAL.

POINT IV

THE TRIAL COURT ERRED BY NOT ALLOWING DEFENSE COUNSEL TO USE THE ATTORNEY GENERAL GUIDELINES REGARDING IDENTIFICATION PROCEDURES TO CROSS-EXAMINE OFFICER SHAW, THEREBY DENYING MR. VAUGHN HIS RIGHT TO A FAIR TRIAL.

([A]) THE TRIAL COURT ERRED BY NOT ALLOWING DEFENSE COUNSEL TO QUESTION A STATE'S WITNESS ABOUT WHETHER THE IDENTIFICATION PROCEDURE USED FOLLOWED THE ATTORNEY GENERAL'S GUIDELINES.

POINT V

THE SENTENCE IMPOSED BY THE TRIAL COURT WAS UNDULY EXCESSIVE.

Based on our examination of the record, the briefs, and the applicable law, we have concluded that these arguments do not warrant extended discussion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

Defendant's arrest on December 2, 2005, arose out of an undercover narcotics investigation conducted by the Cumberland County Narcotics Task Force. Adam Shaw, an undercover police officer, was recruited by Detective Carl Heger to attempt to purchase narcotics from an individual who was believed to be residing in a second-floor apartment on North Second Street in the City of Millville.

On November 2, 2005, Heger showed Shaw a black and white photograph of defendant, and instructed Shaw to try to purchase cocaine from the person in the photograph. Shaw did not know defendant and never had any prior contact with him. Shortly thereafter, Shaw drove to North Second Street. When Shaw knocked on the second-floor apartment door, a black male, who was later identified as defendant, opened the door and Shaw stepped into the kitchen. Shaw testified the "kitchen area just inside the door was well lit," and he identified defendant as the person who opened the door. Shaw also testified as follows:

Q. Now, . . . when you got into the residence, what, if anything, did you say?

A. I asked the male for a 20.

Q. And, can you explain to us what a 20 is?

A. Meaning $20 worth of whatever narcotics he was selling.

Q. And, in response to your inquiry, what, if anything, did the subject do?

A. Reached in his right front pants pocket, pulled out two white pieces of rock.

Q. And, what did you do with those white pieces of rock?

A. I handed him the $20 bill, and he dropped the two pieces of rock in my hand.

Q. Were the two pieces of rock packaged in any way?

A. No, ma'am, they were loose.

Q. And, what did you do with the two pieces of rock at the time?

A. Placed them into my pants pocket.

Q. And, at that point, was the transaction complete?

A. Yes, ma'am.

Q. And, how long do you estimate the total time that you were in the subject's apartment?

A. Two minutes.

Q. And, after the transaction was complete, what did you do?

A. Exited the residence, went back down the steps to my vehicle across the street.

Officer Shaw then returned to the Millville Police Department where he was again shown the same photograph of defendant, which he signed and identified as the individual who sold him the cocaine. Shaw gave Heger the two "rocks" he purchased, and Heger subsequently obtained a search warrant for the second-floor apartment on North Second Street.

Defendant was present when the police executed the search warrant on December 2, 2005. During the search of the apartment, the police recovered various documents that belonged to defendant in a bedroom dresser drawer, a covered coffee mug in the attic containing a substance believed to be cocaine, and a digital scale in the bedroom.

Prior to trial, the court denied defendant's motion to compel disclosure of two confidential informants. The trial took place from February 14, 2008 through March 4, 2008. Two expert witnesses testified for the State. A forensic scientist identified the substance that Shaw purchased on November 2, 2005, as cocaine and testified that the coffee mug seized on December 2, 2005, contained 20.639 grams of cocaine. In addition, a detective from the Vineland Police Department, testifying as an expert in "street level" narcotics distribution, concluded that a person who possessed a half ounce or more of cocaine was likely to distribute the drug.

Defendant testified on his own behalf. He denied that he lived in the upstairs apartment on North Second Street, but he admitted that his brother lived there and that he sometimes kept things at his brother's apartment. Defendant testified he never sold drugs and specifically denied selling drugs to Shaw on November 2, 2005. Defendant also testified he never saw the digital scale and had no knowledge of the coffee mug in the attic, which contained cocaine.

In his first point, defendant contends the court erred in refusing to compel disclosure of the identity of two confidential informants. One informant was used to introduce Officer Shaw to defendant on November 2, 2005, and the other informant made a controlled purchase that the State used in its request for the search warrant.

The State may withhold disclosing the identity of a confidential informant unless the court "finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues." N.J.R.E. 516; see also N.J.S.A. 2A:84A-28. "[T]he purpose of the privilege is to further the public interest in effective law enforcement. By preserving the anonymity of informers, the privilege encourages citizens to perform their civic duty to communicate knowledge of wrongdoing to law enforcement officials." Grodjesk v. Faghani, 104 N.J. 89, 97 (1986). The privilege to withhold the identity of an informant is "particularly important in the enforcement of the narcotic laws." State v. Milligan, 71 N.J. 373, 381 n.3 (1976). There is a presumption against disclosure that is only overcome by a "'substantial showing of a need' for the disclosure." Cashen v. Spann, 77 N.J. 138, 142 (1978) (quoting State v. Oliver, 50 N.J. 39, 47 (1967)).

The privilege is not absolute, however, and will not apply if: (1) disclosure is essential to a fair trial; (2) the informant is an essential witness on a basic issue in the case; (3) the informant is an active participant in the crime for which defendant is prosecuted; (4) when a defense of entrapment seems reasonably plausible; or (5) disclosure is mandated by principles of fairness. State v. Milligan, supra, 71 N.J. at 383-84.

In this matter, the trial court detailed its reasons for denying defendant's motion to compel disclosure in a comprehensive written decision applying the proper legal standards and, in our view, the matter was correctly decided. We therefore affirm the order denying defendant's motion substantially for the reasons stated by Judge Geiger on January 25, 2007.

In his next point, defendant contends the trial court committed reversible error when the photograph of defendant shown to Officer Shaw on November 2, 2005, was admitted into evidence. The photograph showed a front and side view of defendant, and during cross-examination, defendant referred to the photograph as a "mug shot." Defendant also volunteered that the photograph was taken after he got into "a fight." The trial court correctly determined the photograph was probative of defendant's identity, and the probative value of the photograph exceeded the potential for prejudice under N.J.R.E. 403. In addition, while charging the jury on identity, the court specifically addressed the photograph and defendant's testimony as follows:

Now, there is in evidence in this case photographs that were used to identify the defendant. They are S2 in evidence, two photographs or one document as an exhibit. Now, with reference to these photographs submitted in evidence, that is S2, you will notice that these photographs appear to have been taken by [a] law enforcement agency or some other governmental agency. You are not to consider the fact that the agency obtained the photograph of the defendant as prejudic[ial] in any way. The photographs are not evidence the defendant has ever been arrested or convicted of any crime. Such photographs come into the hands of [] law enforcement officers from a variety of sources including but not limited to driver's license applications, passports, ABC identification cards, various forms of government employment, private employment requiring state regulation, including but not limited to casino license applications, security guard applications, et cetera, and from a variety of other sources totally unconnected with criminal activity.

I believe in his testimony, Mr. Vaughn suggested that these were police photographs that were obtained . . . as a result of his having been involved in a fight. I'm going to charge you that that is not a crime. A fight is a disorderly persons offense. We don't know whether there was any adjudication or finding of guilt with respect to that so I'm telling you to totally disregard that, where the photographs may have come [from] is irrelevant. The issue is whether or not that photograph forms the basis of the officer's identification.

The trial court is in the best position to determine if evidence should be excluded because the threat of prejudice outweighs its probative value. State v. Ramseur, 106 N.J. 123, 266 (1987). Consequently, a trial court's evidentiary rulings are accorded substantial deference on appeal. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We may reverse an evidentiary ruling only if the trial court committed a clear error of judgment. State v. Harvey, 151 N.J. 117, 184 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). In the matter before us, we find neither error nor abuse of discretion by the trial court.

In point four, defendant contends the court should have allowed defense counsel to question Officer Shaw regarding the Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (April 18, 2001) (the guidelines). When Shaw was asked about the guidelines, he testified he had never reviewed them, and the State objected to further cross-examination about them. After hearing oral argument and reviewing the guidelines, the court ruled they were not applicable because defendant was the target of the investigation:

This isn't an after the fact show up, this is a show up beforehand. This is the individual, you know, that we're targeting. This is the individual we want you to attempt to buy drugs from. This is not a typical photo identification. Identification is certainly an issue. Credibility is certainly an issue. Weight to be given to the testimony is certainly an issue. But, I find that to focus unduly on the guidelines would tend to confuse the issue, because the police aren't on trial. It's not an issue of whether or not the police adhered to the guidelines, it's whether or not this identification is reliable.

As noted in the Attorney General's cover letter dated April 18, 2001, the guidelines were designed to "improve the eyewitness identification process in New Jersey to ensure that the criminal justice system will fairly and effectively elicit accurate and reliable eyewitness evidence." Nevertheless, we agree the guidelines do not apply in a case such as this where the police targeted a specific suspect during an ongoing undercover investigation. Consequently, we find no abuse of discretion in the trial court's evidential ruling.

Defendant also challenges his sentence, but the court's findings regarding three aggravating factors (N.J.S.A. 2C:44-1(a)(3), (6), and (9)) and the lack of mitigating factors were based on competent and credible evidence in the record; the court correctly applied the sentencing guidelines enunciated in the Criminal Code; and it imposed a reasonable sentence based on a proper weighing of the relevant factors. See State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Ghertler, 114 N.J. 383, 388-89 (1989). As a reviewing court, we may modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). This is not such a case. See also State v. Bieniek, 200 N.J. 601, 612 (2010) (instructing appellate courts to refrain from "second-guessing" the discretionary assessments of sentencing judges).

 
Affirmed.

On February 14, 2008, the court granted the State's motion to dismiss counts one, two, and four of Indictment No. 06-05-0572. Count three of the indictment became count one and count five of the indictment became count two.

We note that 20.639 grams is the equivalent of .728 ounces.

(continued)

(continued)

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A-5563-07T4

August 17, 2010