STATE OF NEW JERSEY v. WALI SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6066-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALI SMITH,

Defendant-Appellant.

________________________________________________________________

March 2, 2011

 

Submitted December 7, 2010 - Decided

 

Before Judges Carchman and Messano.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-07-02494.

 

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

 

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/ Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Wali Smith and his co-defendant Quadree Manning were convicted of second-degree conspiracy to possess heroin and cocaine and to possess heroin and cocaine with the intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5; third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3); third-degree possession of heroin with the intent to distribute within 1,000 feet of a school zone, N.J.S.A. 2C:35-7; second-degree possession of heroin with the intent to distribute within 500-feet of a public park, N.J.S.A. 2C:35-7.1; third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3); third-degree possession of cocaine with the intent to distribute within 1,000 feet of a school zone, N.J.S.A. 2C:35-7; and second-degree possession of cocaine with the intent to distribute within 500-feet of a public park, N.J.S.A. 2C:35-7.1. Following appropriate mergers, the judge sentenced defendant to an aggregate sentence of eight-years imprisonment with a four-year period of parole ineligibility. Defendant appeals, and we affirm.

These are the facts adduced at trial. During the evening of May 9, 2007, Officers Carlos Rivera1, Javier Rivera, and Jimmy Cosgrove, members of the Newark Police Department, Third Precinct Narcotics Enforcement, were on plain clothes patrol in an unmarked car.

At approximately 9:00 p.m., Rivera noticed two men, later identified at trial as defendant and co-defendant Manning, standing near the corner of Broad Street and Tichenor Street, attempting to speak to pedestrians and approaching motorists. He decided to conduct surveillance of the two men, so the patrol car pulled over, and Rivera began observing the men with his binoculars.

Rivera observed an unknown male approach defendant. They spoke briefly, and the male "gave [defendant] what appeared to be paper currency." Defendant then turned to Manning and signaled "one" with his finger. Manning, in turn, jogged across the street, reached into a plastic bag that was placed at the base of a tree and gave the male an small unknown item. The male then walked away towards Broad Street while defendant gave Manning the currency.

At trial, Rivera opined that he believed he had witnessed a drug transaction based on the "hand-to-hand money transfer [and] the possible stash location."

The officers watched the male walk away towards Broad Street where he turned north onto Broad Street. They intended to follow and investigate him; however, their attempt to follow him in their car failed. About five minutes after they had left their surveillance point, a backup unit drove the officers back to the same location.

At that point, Rivera observed defendant near his original position conversing with a Hispanic female and Manning in "pretty much . . . the same location." The officers approached the three people, identified themselves as police officers and detained defendant and Manning. Javier Rivera retrieved the clear plastic bag from the tree. He conducted a field test of the contents of the bag, which consisted of 72 vials of cocaine and 46 bags of heroin labeled "blood money" in red ink, bound by rubber bands. Thereafter, the officers arrested defendant and Manning. Defendant was searched, but neither drugs nor money were found on him.

At trial, Sheriff's Officer Reginald L. Holloway, an expert witness in the field of street level narcotics, testified on behalf of the State and explained that a stash location is used to conceal narcotics and currency from law enforcement officers, competing drug dealers and potential thieves. According to Holloway, it is not uncommon for a person who is distributing narcotics to be found with no money or drugs when using a stash location. After being presented with a hypothetical based on the facts of this case, Holloway opined that the facts describe an "illegal, three-way, hand-to-hand narcotic transaction" and that the subjects intended to distribute the narcotics that were by the tree.

Defendant did not testify or call any witnesses on his behalf.

On appeal, defendant raises the following issues:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT THE DEFENDANT COULD BE CONVICTED OF A LESSER OFFENSE BASED ON HIS OWN CRIMINAL INTENT AND HIS OWN PARTICIPATION IN THE CRIME (NOT RAISED BELOW).

 

POINT II

 

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS, AMBIGUOUS, AND PREJUDICIAL INSTRUCTION ON THE LAW OF PUBLIC PARK DRUG ZONE OFFENSES (NOT RAISED BELOW).

 

POINT III

 

THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF EVIDENCE BY ABSENTEE WITNESSES IMPLICATING THE DEFENDANT IN THE COMMISSION OF THE CRIMES (PARTIALLY RAISED BELOW).

A. The trial court improperly admitted evidence of anonymous complaints of drug dealing in the same location where the defendant was alleged to have been dealing drugs.

 

B. The state proved the public park and school zone offenses by relying on testimonial assertions by absentee witnesses (not raised below).

POINT IV

 

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY PREJUDICIAL LOCATION PROFILING EVIDENCE (NOT RAISED BELOW).

 

POINT V

 

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CROSS-RACIAL IDENTIFICATION, EVEN THOUGH IDENTIFICATION WAS THE MATERIAL ISSUE IN THE CASE (NOT RAISED BELOW).

POINT VI

 

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE CONFUSING, AMBIGUOUS, AND UNINTELLIGIBLE INSTRUCTION ON THE LAW OF CONSPIRACY AND THE SUBSTANTIVE CRIMES (NOT RAISED BELOW).

A. The instruction on the law of conspiracy was not "clear and understandable" as required by the law.

 

B. The trial court failed to instruct the jury on each and every element of the crime of possession of CDS with the intent to distribute and distribution of CDS.

C. The trial court erred in its instruction on the law of intent to distribute and distribution of CDS by instructing the jury that a transfer from one person to another is distribution.

POINT VII

 

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED (NOT RAISED BELOW).

 

POINT VIII

 

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS (PARTIALLY RAISED BELOW).

 

 

Although defendant raises a number of issues regarding the conduct of the trial, his primary arguments focus on the judge's charge to the jury. Particularly noteworthy, however, is that defense counsel did not object to any aspect of the jury charge. We therefore review the issues raised for plain error. We briefly set forth the standards we must apply when considering issues as to the charge.

We first acknowledge that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). "It is the independent duty of the court to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004).

When, as here, defendant does not object to the jury charge, our review is governed by the plain error standard; that is, whether the error is "clearly capable of producing an unjust result." R. 2:10-2. With respect to jury instructions, "plain error requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 288-89 (2006)). "The alleged error is viewed in the totality of the entire charge, not in isolation." Ibid. (quoting Chapland, supra, 187 N.J. at 289).

First, defendant asserts that the trial judge erred by failing to instruct the jury on accomplice liability; specifically, that defendant's guilt would be determined by his own criminal intent and the extent of his own participation in the crime.

Here, the State did not charge defendant as an accomplice or pursue a theory of accomplice liability. Both defendant and Manning were charged with conspiracy to possess CDS with intent to distribute, possession of CDS, and possession of CDS with intent to distribute. Moreover, the trial judge clearly instructed the jury to decide defendant and Manning's cases individually and to return separate verdicts for each defendant as to each charge. He said:

There are nine offenses charged in the indictment. There are separate offenses by separate counts in the indictment.

 

In your determination of whether the State has proven the defendant guilty of the crimes charged in the indictment beyond a reasonable doubt, the defendant is entitled to have each count considered separately by the evidence which is relevant and material to that particular charge based on the law as I will give it to you.

 

You must also return separate verdicts for each defendant as to each of the charges being tried. In other words, you will have to decide each case individually. Whether the verdicts as to each defendant are the same depends on the evidence and your determination as judges of the facts.

 

An instruction for accomplice liability was not warranted in this case.

Defendant further contends that the trial judge's instruction to the jury regarding possession of CDS with the intent to distribute within 500 feet of a public park omitted an essential element: the issue of who controlled the park.

The trial judge instructed the jury that "the State must prove that . . . [defendant] possessed a controlled dangerous substance with the intent to distribute it, and when he did so, he was in, on, or within 500 feet of any public park." He continued, "Now, public park, Lincoln Park [sic] Recreational Facility or area or playground is owned or controlled by a State, county or local government unit."

This instruction followed the model jury charge, Model Jury Charge (Criminal), Distributing a Controlled Substance: Proximity to Public Housing Facilities, Parks or Buildings (N.J.S.A. 2C:35-7.1) (2001). While the trial judge may have misspoken in defining "public park," he appropriately explained and defined in his charge, the elements at issue. See N.J.S.A. 2C:35-7.1. This instruction did not cause an unjust result.

Defendant next contends that the court committed reversible error by not charging the jury with a cross-racial identification instruction.

At the charge conference, defense counsel requested a cross-racial identification instruction. The judge denied the request and explained:

Cross-racial identification is not in this case. The whole theory of cross-racial identification is, in fact, that there tends to be an unfamiliarity with certain ethnicities, that is, you may have trouble distinguishing between a Korean and a Japanese because you don't see them regularly.

This is not that type of situation where weeks or days or even hours after the alleged incident, two Latino police officers who are somewhat unfamiliar with African Americans mistakenly identify the defendants because of that factor.

 

The court also noted that Rivera had been a Newark police officer for thirteen years.

The Court has acknowledged the "commonsense view that members of one race have greater difficulty in accurately identifying members of a different race . . . ." State v. Cromedy, 158 N.J. 112, 133 (1999). "[C]onvincing social science data demonstrat[es] the potential unreliability of cross-racial identifications of African-American defendants specifically." State v. Romero, 191 N.J. 59, 69 (2007). Therefore, "[a] cross-racial instruction [shall] be given only when . . . identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." Cromedy, supra, 158 N.J. at 132. The instruction serves the purpose of "alert[ing] the jury . . . that it should pay close attention to a possible influence of race." Id. at 133.

The terms "Hispanic" and "Latino" do not describe a race, Romero, supra, 191 N.J. at 68; State v. Valentine, 345 N.J. Super. 490, 496 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002), but rather, they are "cultural term[s], an ethnic identification." Valentine, supra, 345 N.J. Super. at 496. Hispanics are of different races, so a Hispanic person may be African-American, Caucasian, Native American, Asian, or of multi-racial descent. Id. at 497. The Court has noted that "[c]ross-ethnicity . . . has been described as difficult to define and apply with precision in an identification setting." Romero, supra, 191 N.J. at 69. "[I]nsufficient data . . . support[s] the conclusion that, as a matter of due process, people of the same race but different ethnicity, specifically Hispanic ethnicity . . . require a Cromedy instruction whenever they are identified by someone of a different ethnicity." Id. at 71-72.

Here, the record describes defendant as an African-American male and Rivera as a "Latino." The record does not sufficiently establish that defendant and Rivera are of different races, which in turn, would require a cross-racial identification charge.

We have previously observed in a different context that trained police officers are less likely than lay witnesses to misidentify subjects:

There can be no dispute that a trained undercover police officer has heightened awareness of the need for proper identification of persons who engage in drug purveyance. [The undercover officer] was a trained and experienced illicit-drug-activity investigator. As an undercover officer, he was not only trained to be observant but also had a strong incentive to be observant.

 

[State v. Little, 296 N.J. Super. 573, 580 (App. Div.), certif. denied, 150 N.J. 25 (1997).]

 

Identification of defendant was a key issue in the case. Rivera is an experienced plain-clothes officer with a background in narcotics. His role at the scene was surveillance and he was focused on defendant's conduct during the surveillance.

In State v. Murray, 338 N.J. Super. 80, 89-90 (App. Div.), certif. denied, 169 N.J. 608 (2001), we concluded that the judge did not err by failing to give a Cromedy charge where the witness identifying defendant was a "trained investigator" who observed defendant and had direct contact with him within minutes of his apprehension. We contrast this with State v . Walker, 417 N.J. Super. 154 (App. Div. 2010), where we addressed the relevant factors that would necessitate a cross-racial identification charge. We noted that the critical participants were the victim and defendant, and they were of different races. Unlike Rivera, a police officer, the witness in Walker, as the witness in Cromedy, was the victim of violent crimes and "he could remember nothing about the facial description of either assailant." Walker, supra, 417 N.J. Super. at 162.

In sum, we find no basis to conclude that the trial judge erred by declining to give a charge on cross-racial identification.

Defendant claims that the judge's instruction to the jury on the law of conspiracy was not clear and understandable. He claims that the jury was instructed that "defendant would be guilty of a conspiracy if he attempted to attempt to distribute CDS." Defendant asserts that the judge should have "mold[ed] the law to the facts of the case . . . ."

The judge instructed the jury that one is guilty of conspiracy:

if, with the purpose of promoting or facilitating its commission, he agrees with [another] person or persons that they or one or more of them will engage in conduct which constitutes such crime, or an attempt or solicitation to commit such crime, or agrees to aid such other person or persons in the planning or commission of such crime, or in an attempt or solicitation to commit such crime.

 

When he instructed the jury on the substantive crime of possession with intent to distribute, the judge defined the term "distribute" to the jury: "[It] means the transfer, actual or constructive, or attempted, from one person to another of a controlled dangerous substance."

We agree that when read literally, the instruction alluded to "attempt[ing] to attempt" to distribute CDS. While the syntax could withstand improvement, the instruction was, in fact, understandable. Although it is better practice for a judge to relate the facts to the law of the case in the jury charge, see State v. Reddish, 181 N.J. 553, 612 (2004), in this particular instance, the instruction was satisfactory as it was given. No unjust result was caused by the jury charge.

Defendant next argues that the judge erred by failing to provide the jury with a definition for attempt when it instructed the jury on the law of possession with intent to distribute CDS and distribution of CDS. Again, defendant did not object to this portion of the jury charge.

Defendant was not charged with attempted distribution. An instruction on attempt was not necessary here because the charge, that defendant possessed the CDS with the intent to distribute them, was based upon the evidence presented at trial. See State v. Thomas, 187 N.J. 119, 136 (2006). The instruction mirrored the model jury charge, which is consistent with N.J.S.A. 2C:35-5(a)(1). See Model Jury Charge (Criminal), Possession of a Controlled Dangerous Substance with Intent to Distribute (N.J.S.A. 2C:35-5) (2008). There was no error here.

Defendant also contends that the court erred by neglecting to instruct the jury that a transfer between joint possessors does not constitute distribution under our Criminal Code. Defendant relies on State v. Lopez, 359 N.J. Super. 222 (App. Div.), certif. granted sub. nom., State v. Garcia, 177 N.J. 576, appeal dismissed, 178 N.J. 372 (2003).

This is not a Lopez case. The evidence adduced at trial demonstrated that defendant and Manning were working cooperatively to distribute their drugs to others, not amongst themselves. The charge to the jury was neither incomplete nor incorrect with respect to the law on possession and joint possession. No error was committed by the court in charging the jury on distribution.

Defendant next asserts that the judge improperly admitted evidence of anonymous complaints of drug dealing in the same location where he was observed allegedly engaged in drug transactions. He claims that the jury "could have reasonably inferred that these anonymous complaints concerned . . . defendant's alleged drug dealing."

On direct examination, Rivera explained that the Narcotics Enforcement Team addresses citizen complaints relating to narcotics complaints. Then, during Manning's cross-examination, the following colloquy occurred:

Q. Sir, you mentioned quality of life issues?

 

A. Yes.

 

Q. Can you explain to the jury what they are?

 

A. Narcotics sales, panhandling, people congregating playing loud music, stuff like that.

 

Q. And do many of these situations arise in response to complaints from citizens?

 

A. Yes.

 

Q. Okay. And in locations where you believe that these things occur frequently, you go out and monitor them so that they don't cause more problems for the citizens with those people congregating in these areas you mentioned?

 

A. Yes, we investigate, yes.

No objection was lodged by counsel.

The admission of this evidence was neither plain error, nor error at all. Rivera did not refer to defendant in his response to the inquiry regarding the area. He justified his presence on patrol near the scene. We reject this argument and defendant's assertion that the police had engaged in "location profiling."

At trial, Rivera mentioned that the area which he had been patrolling, Broad, Tichenor, and Orchard Streets, were known for narcotics activity.

This evidence merely provided background and context as to why the police officers were patrolling the area. Rivera's references to the high narcotics area were not unduly prejudicial, and the judge's discretionary determination to admit such evidence did not result in a manifest denial of justice. See Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (noting that a trial judge discretionary determination "should not be overturned on appeal unless it can be shown that the trial judge palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted").

Defendant next argues that the trial judge improperly admitted the map depicting the 500-foot zone around Lincoln Park and 1,000-foot zone around Lady Liberty Academy Charter School and Rivera's testimony about the map. He claims that the map constitutes inadmissible hearsay because it was created out-of-court, and defendant was deprived of an opportunity to confront someone who prepared or authenticated the map.

During the direct examination of Rivera, a zone map was entered into evidence which displayed school zones, public park zones, and public housing zones. Rivera noted that defendants were arrested within the 500-foot zone of a public park, Lincoln Park and within the 1,000-foot zone of a school, Lady Liberty Academy Charter School.

The map satisfies the hearsay exceptions for business records, N.J.R.E. 803(c)(6), and public records, N.J.R.E. 803(c)(8). It was adopted by the municipal governing body in the regular course of its business and within the scope of its duties. A business "includes activities of governmental agencies." N.J.R.E. 801(d). The map is objectively reliable, was not prepared for a specific defendant, and has a sufficient guarantee of trustworthiness. See Biunno, Current N.J. Court Rules of Evidence, comment 1 on N.J.R.E. 803(c)(6) and comment 3 on N.J.R.E. 803(c)(8) (2010). Nothing suggests that it is untrustworthy. The map was admissible under two hearsay exceptions and was not testimonial. Defendant did not object to the map upon a showing that it lacks reliability or trustworthiness. There was no error here.

Finally, defendant argues that the judge erred by allowing Rivera to opine as to what he had observed when conducting surveillance of defendant and that an aggregate of legal errors rendered his trial to be unfair. See State v. Orecchio, 16 N.J. 125, 129 (1954).

We have carefully reviewed the record and considered the arguments of counsel and conclude that defendant's arguments are without merit and do not require further discussion. R. 2:11-3(e)(2).

In sum, we conclude that the trial was fair. See State v. Loftin, 146 N.J. 295, 397 (1996) (observing that defendant is "entitled to a fair trial but not a perfect one"). We find no basis to overturn the jury's verdict in this case.

A

ffirm.

1 Unless otherwise indicated, all references to Rivera refer to Officer Carlos Rivera.