STATE OF NEW JERSEY v. DONALD W. JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2630-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD W. JACKSON,

Defendant-Appellant.

_______________________________

SubmittedMay 22, 2012 Decided June26, 2012

 

Before Judges Messano and Kennedy.

 

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-12-1115.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

 

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Donald Jackson appeals from the judgment of conviction and sentence that followed a jury verdict finding him guilty of third-degree distribution of cocaine in violation of N.J.S.A. 2C:35-5(b)(3). At sentencing, after the State moved for imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f), the judge granted the motion and imposed a sentence of ten years imprisonment, with a five year period of parole ineligibility, along with the appropriate financial penalties.

I.

We discern the following facts from the trial record.

On July 17, 2008, at approximately 3:15 p.m., Detective James Gillespie made an undercover purchase of crack cocaine from defendant in the parking lot of a Coastal Mart, near the intersection of Irving and Pearl Streets, in Bridgeton. Detective Gillespie worked for the Salem County Prosecutor's Office and, at the time, was assisting the Bridgeton City Police Department in an undercover capacity, along with other members of the "Guns, Gangs and Narcotics Task Force."

Detective Gillespie, driving an unmarked vehicle, entered the Coastal Mart parking lot and parked next to a maroon minivan. Gillespie got out of his car and the driver of the van called him over. Gillespie approached the passenger side of the van and spoke with the two males in the van about buying drugs. Defendant was in the front passenger seat of the van and sold Gillespie loose crack cocaine wrapped in paper for twenty dollars. Gillespie also purchased a quantity of heroin from the driver.

After Gillespie completed the undercover purchase, Detective Rick Pierce, a back-up officer, approached and saw the minivan exit the parking lot. Pierce testified that he "got a very good look at the driver," later identified as Dontre Crawford, but he did not get a good look at the passenger. Gillespie turned over the substances he had purchased to Pierce. Pierce secured the suspected cocaine Gillespie had purchased from defendant and placed it into an evidence bag, which Gillespie signed and dated. The bag was then sealed, marked with the case number and placed in the Bridgeton Police Department evidence locker.

Gillespie also provided Pierce with a description of the passenger of the vehicle. He indicated that the passenger was "a light to medium skinned black male, approximately forty years old," and was approximately six feet tall and weighed 250 pounds. He added that the passenger was dressed in blue jeans and a white t-shirt.

On July 19, 2008, Bridgeton Detective Jeffrey Bordley stopped the minivan. Defendant was driving the minivan and matched Gillespie's earlier description of the passenger who had sold him crack cocaine. Bordley compiled a photo array, which he showed to Gillespie on July 31, 2008. The photo array consisted of six photographs, which were shown to Gillespie one at a time. Gillespie identified the individual in the third photograph, defendant, as the individual who sold him the cocaine on July 17. He also identified defendant before the jury.

A State Police forensic scientist testified that she examined the substance Gillespie bought from defendant and confirmed it to be cocaine. On December 15, 2009, the jury returned its verdict, finding defendant guilty of distribution of cocaine in violation of N.J.S.A. 2C:35-5(b)(3).

Defendant raises the following arguments on appeal:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND [ART.] 1, [PAR.] 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF IDENTIFICATION EVIDENCE.

A. THE IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE AND DID NOT COMPLY WITH THE LAW.

B. THE TRIAL COURT ADMITTED HIGHLY MISLEADING IDENTIFICATION EVIDENCE THAT COULD ONLY CONFUSE JURORS AS THEY ASSESS THE IDENTIFICATION ISSUE.

POINT II

 

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND [ART.] 1, [PAR.] 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNFAIRLY PREJUDICIAL EVIDENCE (Not Raised Below).

 

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND [ART.] 1, [PAR.] 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO SHOW AN UNINTERRUPTED CHAIN OF CUSTODY.

POINT IV

THE SENTENCE IS EXCESSIVE.

A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM.

B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.

C. THE IMPOSITION OF A PERIOD OF PAROLE INELIGIBILITY SHOULD BE VACATED.

 

Having considered these arguments in light of the applicable legal principles, we affirm.

II.

Defendant contends that the trial court erred in denying his motion to suppress his identification by Detective Gillespie under UnitedStates v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Defendant claims that Gillespie was not told that the "perpetrator may not be among those in the photo array" and that the photos themselves had somewhat different backgrounds and cropping. We find this argument to be unpersuasive.

On June 23, 2009, the trial judge held an evidentiary hearing on defendant's motion to suppress the identification evidence. Gillespie testified at the hearing and stated that he had a clear and unobstructed view of defendant during the drug purchase. The transaction occurred during daylight hours and defendant did nothing to conceal his face. Gillespie viewed each of six unmarked photographs provided by Bordley. Bordley did not make any suggestions or indicate in any way that Gillespie should pick out the third photograph or, indeed, any photograph at all. Gillespie was "certain" that the third photograph - that of defendant - was the passenger in the van who sold him the crack cocaine.

After hearing the arguments of counsel, the trial judge issued his decision from the bench, determining that the identification would be admissible at trial. The judge found that the six photographs were shown to Gillespie one at a time and that there was "nothing . . . suggestive" in the composition of the photographs or in the manner in which they were shown to Gillespie. The judge determined that "there were no suggestions, no threats, no promises nor incentives." He also found that Gillespie was credible and was "certain" of the identification he had made.

In response to defendant's argument that the procedure was suggestive, given the "delay" between the identification and the photo array, the judge stated that no case law supported the contention that a thirteen-day period between the initial observation of a suspect and "an [identification procedure] is too long" and that the mere passage of time did not warrant suppression of the identification. He also determined that the fact that three of the photographs showed individuals in white shirts or that the backgrounds of some photographs appeared darker than others, was not "suggestive" in any respect. Also, the judge found that differing skin tones of some individuals in the photographs constituted "nothing that's overly suggestive."

The judge concluded that Gillespie was "very credible" and stated,

The testimony was very clear, appeared to be very truthful. He . . . was obviously testifying . . . from a present recollection of a past incident.

 

. . . .

 

He's a trained officer. He knew what he was there for.

 

This detective went to this scene premeditated, wasn't in fear. His demeanor was . . . calm. He was not afraid[.]

 

[He] made [observations of] [d]efendant from within a foot and approached him and talked to him in the daylight.

 

I don't find it particular[ly] suggestive that Detective Boardley [sic] may or may not have been involved in an investigation [of] this [d]efendant.

 

There's nothing from the testimony that was elicited . . . on cross-examination [to] indicate[] that this officer was somehow suggested who he was supposed to point out[.]

 

I found the procedure for the photo array to be exactly on target, except the officer wasn't told, like a lay person, that I'm going to show you six [photos] and . . . the photo may or may not be in there.

 

I find that a trained officer would know that. It would be something that would not be necessary to be told to him.

 

. . . .

 

He indicated there were no suggestions, no threats, no promises nor incentives. I find no deviation from the policy or no identification from the testimony or what was elicited during cross that there was anything wrong with the identification.

 

 

Citing State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973), the trial judge determined the identification to be admissible.

Identification evidence will be deemed inadmissible where it is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Neil v.Biggers, 409 U.S. 188, 197, 93 S. Ct. 375, 381, 34 L. Ed. 2d 401, 410 (1972); Statev. Cook, 330 N.J. Super. 395, 417 (App. Div.), certif. denied, 165 N.J. 486 (2000). Due process requires suppression of identification evidence in such an instance, Simmons v.United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968), because, in the final analysis, a conviction that "rests on a mistaken identification" constitutes "a gross miscarriage of justice." Stovall v.Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199, 1204 (1967).

Thus, a reviewing court must first determine whether the identification process was impermissibly suggestive and, if so, must then decide whether the identification was nevertheless reliable under the totality of the circumstances. State v.Adams, 194 N.J. 186, 203 (2008) (citing Statev. Romero, 191 N.J. 59, 76 (2007)). This involves "'weighing the suggestive nature of the identification against the reliability of the identification.'" Ibid. (quoting Romero, supra, 191 N.J. at 76). Factors to be considered include the "'opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the time of the confrontation and the time between the crime and the confrontation.'" State v. Madison, 109 N.J. 223, 239-40 (1988) (quoting Manson v.Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).1

Where these and any other relevant factors have been considered and a court is convinced that the identification is reliable, the out-of-court identification should be admitted into evidence. Adams, supra, 194 N.J. at 204 (citing State v.Herrera, 187 N.J. 493, 503-04 (2006)). Reliability is clearly the dispositive factor in determining whether the out-of-court identification may properly be introduced at trial. Ibid.

A Wade hearing is conducted for the purpose of determining whether an out-of-court identification was made in unduly suggestive circumstances and, "if so, whether or not any ensuing in-court identification would be fatally tainted thereby." Pressler, Current N.J. Court Rules, comment 3.6.2 on R. 3:4-2 (2010). "If the court concludes that it is not so tainted even though the identification might have been suggestive, then the credibility of the in-court identification, in view of the taint, becomes a jury question." Ibid.

Applying these principles, we conclude that the trial judge's determination that the minor variations among the photos in the array were not unduly suggestive is supported by credible evidence in the record and should not be disturbed on appeal. Cooke, supra, 330 N.J. Super. at 418.

Further, defendant's claim that Detective Gillespie was not told "that the perpetrator may not be among those in the photo array"2 is unpersuasive. Detective Gillespie felt no pressure or compulsion to make any identification here and the absence of the instruction to a trained detective created no likelihood of an irreparable misidentification. To the extent defendant raises other issues regarding Gillespies's identification testimony, they are without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(2).

Next, defendant contends that "the State sought to connect drugs with gang shootings and thereby unfairly prejudice[d] the jury" when Detective Gillespie testified that he worked for the "Guns, Gangs and Narcotics Task Force." This clam of error was not raised before the trial court and thus must be analyzed under the plain error standard, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2; seealso State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J.Super. 319, 336 (App. Div. 2008) (internal citations and quotations omitted); see also State v.Daniels, 182 N.J. 80, 95, (2004); Macon, supra, 57 N.J. at 333; R. 2:10-2.

Applying these principles, we conclude that the reference to Detective Gillespie's assignment, which was brought out by the defense on cross-examination, was neither error nor clearly capable of producing an unjust result, in any event. The testimony was neither highlighted nor expanded upon and no suggestion was raised that defendant was armed or a member of a gang.

Next, defendant challenges the trial court's determination permitting the State to introduce into evidence the cocaine Detective Gillespie purchased from defendant. We find this claim to be without merit.

The State, as noted earlier, offered into evidence the cocaine Gillespie purchased from defendant that had been examined by the forensic scientist employed by the New Jersey State Police Laboratory in Hammonton. She had testified that the Bridgeton Police evidence bag had been received at the laboratory on November 25, 2008, and bore a local agency case number and other markings. She indicated that the "first thing" she checks is that "all the seals [on the evidence submitted] are intact" and that if the bag were "open or damaged", it would not be accepted at the laboratory. Her description of the evidence bag and its markings matched the description given by Detective Pierce, who had custody of that evidence, placed it into an evidence bag and sealed it for transportation to the laboratory.

Defense counsel argued that he state had not proved "chain of custody" because "we don't know what happened on the way from the police station to the lab." The judge, after consideration of the trial testimony, determined that "chain of custody has been properly established" and permitted the cocaine to be admitted into evidence.

Our standard of review requires us to give "substantial deference to a trial [judge's] evidentiary rulings." 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 review such decisions under "an abuse of discretion standard." Statev. Burns, 192 N.J. 312, 332 (2007). "[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). See also Statev. Goodman, 415 N.J. Super. 210, 224-25 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

"A party introducing tangible evidence has the burden of laying a proper foundation for its admission." State v.Brunson, 132 N.J. 377, 393 (1993). A proper foundation "should include a showing of an uninterrupted chain of possession." Ibid. (citing State v.Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968)). Evidence should be admitted if there is a "reasonable probability that the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed." Brunson, supra, 132 N.J. at 393-94 (citation and internal quotation marks omitted). Whether a chain of custody has been adequately established to admit evidence is a determination "'committed to the discretion of the trial judge, and his determination will not be overturned in the absence of a clearly mistaken exercise thereof.'" Morton, supra, 155 N.J. at 446 (quoting Brown, supra, 99 N.J.Super. at 27).

In admitting the cocaine, the trial judge relied upon Detective Pierce's testimony that he placed it into an evidence bag, clearly marked and identified it and then sealed the bag for eventual transportation to the laboratory. He also relied upon the testimony of the examining forensic scientist that she received the sealed bag and that it had the same markings which Pierce earlier identified. Such testimony demonstrated "an uninterrupted chain of possession," and provided support for the judge's conclusions. Brunson, supra, 132 N.J. at 393-94.

Finally, defendant claims his sentence was excessive and that the trial judge improperly applied aggravating and mitigating factors. Defendant contends his sentence is excessive to the point of "shocking" because, according to defendant, he was "sentenced as though he were a drug kingpin when, in fact, he was merely convicted of one small $20 street level sale of cocaine."

On March 5, 2010, defendant appeared before the trial judge for sentencing. The judge considered the State's motion for an extended term of incarceration based upon defendant's status as a persistent offender pursuant to N.J.S.A. 2C:43-6(f). That statute provides, in pertinent part:

A person convicted of . . . distributing . . . any dangerous substance or controlled substance analog under N.J.S.2C:35-5 . . . who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S.2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court. The term of imprisonment shall, except as may be provided in N.J.S.2C:35-12, include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater . . . .

 

Defendant does not contend that he did not qualify as a persistent offender under the statute, but rather it was improper to sentence the defendant pursuant to the statute because he is "indigent. . . . Nobody was hurt or injured. . . [and] defendant was not pushing drugs; it was the police who initiated the sale."

In imposing sentence, the judge found three aggravating factors: N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant will commit another offense"; N.J.S.A. 2C:44-1(a)(6), "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses for which he has been convicted"; and N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring the defendant and others from violating the law[.]" The judge found no mitigating factors.

The judge recited defendant's lengthy criminal history. He noted that defendant "incurred 19 arrests" as an adult; that he "incurred five indictable convictions"; three of which were for resisting arrest, one for possession of a controlled dangerous substance, and one for manufacture or distribution of a controlled dangerous substance; and finally that defendant "has one VOP [violation of probation] conviction and one ISP conviction, one parole violation and two pending VOP's." With regard to aggravating factor nine, the judge explained that it was especially applicable in defendant's case considering that defendant was a "repetitive offender . . . [and] needs specific deterrence."

The judge also determined a period of parole ineligibility was appropriate due to defendant's "criminal record and the nature of the present offense." The judge explained that he was "clearly convinced that the aggravating factors substantially outweigh the [non-existent] mitigating factors" and a period of parole ineligibility is appropriate.

"Appellate review of sentencing decisions is . . . narrow and is governed by an abuse of discretion standard." State v.Blackmon, 202 N.J. 283, 297 (2010). If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, an appellate court is obliged to affirm. State v. Cassady, 198 N.J. 165, 180 (2009). A sentence that adheres to the applicable guidelines should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also Statev. Bieniek, 200 N.J. 601, 608, 612 (2010).

Applying this standard, we find no error in the trial judge's imposition of sentence. Defendant had an extensive criminal history and the trial judge appropriately balanced the applicable factors in imposing sentence upon defendant.

Affirmed.

 

 

1 In State v. Henderson, 208 N.J. 208, 285-293 (2011), the Court revised the Manson/Madison test for evaluating eyewitness identification evidence in criminal cases. The new rule of law, however, applies to future cases only. Id. at 300-02. Because the court below decided this matter in 2009, the Henderson rule does not apply.

2 See Office of the Attorney General, N.J. Dept of Law and Pub. Safety, Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures, . I (2001).