STATE OF NEW JERSEY v. ANTHONY G. HEWITT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0100-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY G. HEWITT, a/k/a

FLOYD HEWITT,

Defendant-Appellant.

_______________________________________

March 8, 2013

 

Submitted February 12, 2013 Decided

 

Before Judges Yannotti and Harris.

 

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-06-0777.

 

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

 

Robert D. Bernardi, Burlington County Prosecutor,attorney forrespondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Anthony G. Hewitt appeals from the judgment of conviction entered by the trial court on September 3, 2010, after he was convicted of first-degree possession of a controlled dangerous substance (CDS) and other offenses, and sentenced to sixteen years in jail. We affirm.

I.

Defendant and Dervan Facey (Facey) were charged under Burlington County Indictment No. 06-06-0777 with first-degree possession of CDS of more than twenty-five pounds with intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(10)(a) (count one); fourth-degree possession of CDS, N.J.S.A. 2C:35-10(a)(3) (count two); and second-degree conspiracy to possess CDS with intent to distribute the same, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(10)(a) (count three). The charges arose after the State Police found about 1,400 pounds of marijuana in a search of a trailer that defendant was hauling on the New Jersey Turnpike.

Defendant filed a motion to suppress the evidence seized by the State Police. The trial court suppressed the evidence. We granted the State's motion for leave to appeal, and reversed the suppression order. State v. Hewitt, 400 N.J. Super. 376, 383-84 (App. Div. 2008). We concluded that the search did not exceed the scope of a valid regulatory inspection of the trailer. Ibid.

Defendant was thereafter tried before a jury. At the trial the State presented evidence which established that on November 5, 2005, at about 10:30 a.m., Trooper John Wayne Hancock (Hancock) stopped a tractor-trailer on the New Jersey Turnpike for a safety inspection. Defendant was the driver of the vehicle, and Facey was a passenger.

When Hancock approached the tractor-trailer, Hancock noticed that defendant's hands were shaking and he appeared nervous. Hancock examined defendant's and Facey's drivers' licenses and other paperwork. He directed defendant to drive to a nearby rest area for the inspection. State Trooper Andy Eaton (Eaton) joined Hancock at that location. Another Trooper, Rodney Logan (Logan), also was present.

Hancock noticed inconsistent information in the vehicle's log books and in other paperwork he reviewed. The logbooks indicated that defendant and Facey had departed from Phoenix, Arizona, but other paperwork indicated that they started out from Tucson, Arizona. Hancock then inspected the tractor.

Hancock noticed a lantern battery with two black wires, but the wires were not attached to or powering anything in the trailer. Hancock checked the windshield wipers, horn, break lights and other mechanical devices and found them to be in proper working order.

Hancock then inspected the trailer for proper blocking and bracing of the load. He opened the trailer's doors and observed a load of melons that were improperly secured, which created a risk that the trailer would tip over. Hancock directed his lit flashlight into the trailer and observed what appeared to be newly-constructed sheet metal at the far end. Hancock crawled into the trailer. He confirmed that the sheet metal was what he called an "aftermarket" addition to the vehicle.

Hancock also observed abnormalities in the trailer's floor drain and its air circulation system which suggested that there was "unaccounted space" behind the sheet metal. Eaton measured the length of the trailer. It measured fifty-three feet on the outside but forty-nine feet on the inside. Hancock and Eaton used a fiber optic scope to look behind the sheet metal and they observed numerous large packages wrapped in red and yellow cellophane with numbers written on them with a black marker.

Based on their training and experience, the Troopers believed the cellophane-wrapped packages contained marijuana. They arrested defendant and Facey. Hancock searched defendant and provided him with Miranda warnings.1 Defendant admitted that he knew there was a compartment behind the sheet metal wall, but denied knowing what had been packed there. Defendant told Hancock he intended to deliver the load of melons to a terminal in New York City, and that after the delivery, he would be instructed on where to bring the trailer.

Defendant and Facey were transported to the State Police Barracks in Moorestown. The tractor-trailer was moved to the nearby maintenance yard. With the assistance of Turnpike Authority workers, Hancock off-loaded the melons from the trailer. Sergeant Timothy Gallagher (Gallagher) also was present when the trailer was unloaded. The Troopers believed they were dealing with an aftermarket alteration to the trailer, which created a hidden compartment.

The Troopers attempted to open the compartment, but were unable to do so. They asked defendant to assist them. Defendant agreed. He used the lantern battery and wires to activate a device that allowed the Trooper to gain access to the compartment. The Troopers found and removed 58 bales of suspected marijuana, which weighed 1,400 pounds. Ten of the bales were opened. The contents were tested and determined to be marijuana.

Detective Sergeant First Class Robert Gaugler (Gaugler) was qualified as an expert in narcotics trafficking. As part of his training and experience, Gaugler has developed knowledge regarding the use of commercial vehicles for transportation of contraband, such as narcotics. Gaugler has participated and taught in programs focused on smuggling techniques and the use of commercial vehicles to transport large quantities of contraband.

Gaugler was presented with a hypothetical question based on the facts of this case. He opined that the hypothetical trailer was possessed for the purpose of distribution and that it was "part of a high level drug trafficking organization." In support of this opinion, he noted that the hypothetical trailer had begun its journey in Nogales, Arizona, an area known "for drug trafficking organizations which are in the business" of smuggling "large quantifies of contraband."

Gaugler testified that his opinion that the marijuana was possessed for distribution was based on the large quantities of the drug and the manner in which the marijuana was packaged. Gaugler said the marijuana was wrapped in cellophane and grease, which are used to disguise the odor of the drug. Gaugler also said he considered the fact that the drugs were placed in a hidden compartment.

Defendant chose not to testify. He did not call any witnesses on his behalf.

The jury found defendant guilty on all charges. At sentencing, the court merged counts two and three with count one, and sentenced defendant to sixteen years of incarceration. This appeal followed.

Defendant raises the following arguments for our consideration:

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 BY THE IMPROPER ADMISSION OF HIGHLY PREJUDICIAL EXPERT WITNESS TESTIMONY (Partially Raised Below).

 

a. THE OPINION THAT 1,400 POUNDS OF MARIJUANA WAS POSSESSED WITH THE INTENT TO DISTRIBUTE WAS NOT BEYOND THE KEN OF THE AVERAGE JUROR (Not Raised Below).

 

B. THE EXPERT'S OPINION THAT NOGALES, ARIZONA IS A HIGH DRUG TRAFFICKING AREA AND "MANY" COMMERCIAL TRUCK DRIVERS USE MELONS TO CONCEAL DRUGS DELIVERED FROM THIS HUB WERE ERRONEOUSLY ADMITTED WITHOUT A PROPER FOUNDATION.

 

C. THE OPINION REGARDING DRUG ORGANIZATIONS' CONTROL OF MEXICO'S BORDERS WAS WELL BEYOND THE SCOPE OF THE EXPERTISE OF A STATE'S WITNESS WHO NEVER ESTABLISHED THAT HE HAD EVEN BEEN TO MEXICO.

 

D. THE UNDULY PREJUDICIAL EXPERT OPINIONS FAR EXCEEDED THEIR MINIMAL PROBATIVE VALUE AND SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403 (Not Raised Below).

 

POINT II

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, PREJUDICAL, AND INCOMPLETE INSTRUCTIONS ON THE LAW OF CONSPIRACY AND THE SUBSTANTIVE DRUG CRIMES (Not Raised Below).

 

A. THE INSTRUCTION ON THE LAW OF ATTEMPT WAS INCOMPLETE, CONFUSING, ERRONEOUS, AND PREJUDICIAL.

 

B. THE INSTRUCTION ALLOWED THE JURORS TO CONVICT THE DEFENDANT OF CONSPIRACY BASED ON AN ATTEMPT TO ATTEMPT DISTRIBUTION.

 

C. THE TRIAL COURT FAILED TO INSTRUCT JURORS THAT THE LAW OF ATTEMPT REQUIRES PURPOSEFUL CONDUCT AND THAT THEY CANNOT FIND THAT THE DEFENDANT ATTEMPTED DISTRIBUTION KNOWINGLY.

 

D. THE TRIAL COURT FAILED TO MOLD THE LAW TO THE FACTS OF THIS CASE, RESULTING IN A CONFUSING INSTRUCTION ON THE LAW OF INTENT TO DISTRIBUTE AND CONSPIRACY TO INTEND TO DISTRIBUTE CDS.

 

POINT III

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 ERRONEOUS CONSTRUCTION ON THE LAW OF CONSTRUCTIVE POSSESSION (Not Raised Below).

 

POINT IV

THE DEFENDANT'S SENTENCE IS EXCESSIVE; THE TRIAL COURT'S ERRONEOUSLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

 

II.

We turn first to defendant's contention that his right to a fair trial was violated by the admission of Gaugler's expert testimony. We do not agree.

Expert testimony is permitted in criminal matters involving the possession and distribution of narcotics if the testimony is "'beyond the understanding of the average person of ordinary experience, education, and knowledge.'" State v. McLean, 205 N.J. 438, 450 (2011) (quoting State v. Odom, 116 N.J. 65, 71 (1989)). The expert may testify about how to distinguish between drugs that are possessed for distribution and those that are merely destined for personal use. Ibid. (citing Odom, supra, 116 N.J. at 68). Such testimony is permitted because "jurors ordinarily would not understand the significance of quantities, values, packaging, and properties of illegal drugs" or "how those characteristics were relevant" to determining whether drugs were possessed for distribution. Ibid. (citing Odom, supra, 116 N.J. at 76).

In addition, expert testimony is permitted "about methods of drug distribution and about the roles played by participants in street-level drug transactions." Ibid. (citing State v. Berry, 140 N.J. 280, 293-95 (1995)). In this regard, an expert may testify about the places where the drugs are acquired, the street value of the drugs, the use of plastic bags for packaging, and the reasons why drug dealers use juveniles to transport the drugs. Id. at 451 (citing Berry, supra, 140 N.J. at 302). The testimony pertains to matters with which the average juror is not familiar, and assists the jury comprehend the evidence and resolve issues of fact. Ibid. (citing Berry, supra, 140 N.J. at 292-93).

When providing such testimony, the expert may not offer an opinion about the defendant's guilt or innocence. Id. at 453 (citing State v. Papasavvas, 163 N.J. 565, 613 (2000)). To reduce the risk that the expert will impermissibly cross the line and directly opine on the defendant's guilt, the expert's testimony must be provided through the use "of a hypothetical question that recites the relevant facts as the basis for the expert's opinion." Id. at 454 (citing Odom, supra, 116 N.J. at 82). The hypothetical questions may "mirror the facts of the particular prosecution." Ibid. (citing State v. Summers, 176 N.J. 306, 315-16 (2003)).

Defendant argues that Gaugler should not have been permitted to testify that 1,400 pounds of marijuana is possessed for distribution rather than personal use. Defendant contends that the average juror would be able to determine whether such a large quantity of drugs would be possessed for distribution rather than personal use. We disagree.

As we have explained, an expert in a narcotics prosecution may testify as to whether a quantity of drugs was possessed with intent to distribute the same to others. Odom, supra, 116 N.J. at 79-80; Berry, supra, 140 N.J. at 297-98. The fact that this matter involves the possession of 1,400 pounds of marijuana rather than some smaller amount is irrelevant.

Defendant also argues that the State failed to establish a proper foundation for Gaugler's testimony that Nogales, Arizona is a drug trade hub and produce is used as a cover for transportation of drugs shipped from that location. Gaugler explained why the geographic location of Nogales, Arizona, was a factor in his opinion. He stated:

[D]ue to its close proximity to the Mexican border there are several drug trafficking organizations which control the Mexican border and the influx of illegal narcotics. Nogales is a very noted staging area for bulk loads of contraband. And it also is a large staging area for produce which is harvested down there where many tractor trailers and commercial vehicles go to pick up both large quantities of contraband and produce to travel throughout the United States to other major cities.

 

Defendant contends that Gaugler was not qualified to offer this testimony. He notes that Gaugler had admitted he did not have any knowledge about the illegal transportation of drugs on commercial airlines, water or commercial rail.

However, Gaugler has had extensive training and experience in narcotics investigations, including involvement as an instructor in a federal program focused on smuggling techniques in commercial vehicles. Moreover, Gaugler has participated in a approximately five hundred investigations in matters involving narcotics trafficking in commercial vehicles.

In addition, defendant argues that that Gaugler impermissibly implied that he was contributing to "the Mexican government's loss of control over its borders." We do not agree. In a narcotics prosecution, an expert may testify about the manner in which drug traffickers operate, including the places where the drugs are obtained. McLean, supra, 205 N.J. at 451 (citing Berry, supra, 140 N.J. at 302).

Defendant further argues that Gaugler's testimony should have been excluded under N.J.R.E. 403 because the risk of undue prejudice arising from its admission substantially outweighed its probative value. Defendant did not raise this issue during the trial. We are satisfied that the admission of Gaugler's testimony was not erroneous. The testimony was probative, and any prejudice resulting from the admission of this evidence did not substantially outweigh its probative value.

III.

Next, defendant argues that trial court's instructions to the jury were flawed. Again, we disagree.

A. Instructions on Possession with Intent to Distribute CDS.

Here, the trial court instructed the jury on the elements of the offense of possession of CDS with intent to distribute, as charged in count one. The court stated that "distribute" means "the transfer, actual, constructive, attempted from one person to another[.]" Defendant argues that the court was obligated to instruct the jury on the law of attempted distribution. Defendant maintains that because he and Facey were apprehended before they actually distributed the marijuana they were transporting in the trailer, "it would be natural for the jurors to focus their attention on the law of attempt."

However, defendant was not charged with attempted distribution of CDS. He was charged with possession of CDS with intent to distribute the same. While the court instructed the jury that distribution could include an attempt to transfer CDS from one person to another, the court was not required to provide the jury with a detailed instruction on the law of attempt.

Defendant further argues that the court's instructions on possession of CDS with intent to distribute and conspiracy to commit that offense allowed the jury to convict him of an attempt to attempt distribution of CDS. In addition, defendant contends that the court erred by failing to instruct the jurors that attempt requires purposeful conduct and they could not find him guilty if he acted knowingly, rather than purposefully. These arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

B. Molding the Instructions to the Facts.

Defendant also contends that the court failed to mold the law to the facts of the case. He contends that the court had an obligation to inform the jury that he told the Troopers he did not know about the marijuana found in the trailer's hidden compartment.

We note, however, that in its instructions, the court said that the State had:

alleged that the defendant, Anthony Hewitt, made an oral statement to Trooper Hancock immediately after his arrest where the defendant said that he knew that the trailer had a hidden compartment but that he did not know what was in there. The defendant went on to say that after he off-loaded the melons at the Hunts Point Terminal in Bronx, New York, after delivery of the melons he would receive instructions of where to deliver the trailer.

 

We are satisfied that a further instruction regarding defendant's statement to the Troopers was not required.

C. Constructive Possession.

Defendant additionally contends that the court's instructions on constructive possession were flawed. The court instructed the jury that constructive possession means "possession in which a person does not physically have the item on his person, but is aware that the item is present and is able to exercise intentional control or dominion over it."

Defendant contends that constructive possession requires intentional control over an item, not merely the ability to exercise such control. He also contends that the court's instructions were contradictory and confused the jury. These arguments are entirely without merit.

We are satisfied that the court correctly instructed the jury that constructive possession can include the ability to exercise control over an item. The instruction was based on the model jury charge. Moreover, constructive possession involves the ability to assert direct control over a particular item. State v. Schmidt, 110 N.J. 258, 271 (1988). Furthermore, nothing in the record indicates that the jury was confused by the instruction.

IV. Defendant argues that his sentence is excessive. He maintains that the court failed to find certain mitigating factors and erroneously balanced the aggravating and mitigating factors that it found.

Here, the trial court merged counts two and three with count one, charging first-degree possession of CDS of more than twenty-five pounds, with intent to distribute the same. The court found aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (the nature and circumstances of the offense, including whether it was committed in an especially heinous, cruel or depraved manner); three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); five, N.J.S.A. 2C:44-1(a)(5) (substantial likelihood defendant was involved in organized criminal activity); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law).

The court also found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (defendant has no history of prior delinquency or criminal behavior or has led a law-abiding life for a substantial period of time before committing the instant offense). The court gave this factor limited weight because, while defendant has apparently led a law-abiding life for a period of time, he has two prior felony convictions. The court also pointed out that defendant had served in the armed forces and was honorably discharged.

The court weighed the aggravating and mitigating factors on a qualitative and quantitative basis, and found that the aggravating factors outweighed the sole mitigating factor. The court then sentenced defendant on count one to sixteen years of incarceration.

Defendant argues that the court improperly used the conviction in this case as a basis for finding a risk of re-offense. He contends that court erred by finding there was a substantial likelihood he was involved in organized crime because the jury made no such determination. He maintains that little weight should have been given to the need to deter because that factor is applied to all crimes by all sentencing courts.

Defendant additionally argues that the court should have found mitigating factors one, N.J.S.A. 2C:44-1(b)(1) (defendant did not cause or threaten serious harm); two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his conduct would cause or threaten serious harm); and twelve, N.J.S.A. 2C:44-1(b)(12) (defendant cooperated with law enforcement).

Defendant contends that had the court made the proper findings and appropriately weighed the aggravating and mitigating factors, his sentence would have been reduced to probation or a substantially shorter period of incarceration. We cannot agree.

We are convinced that the record supports the court's findings of aggravating and mitigating factors, and did not err by not finding additional mitigating factors. We are additionally convinced that the court properly weighed the aggravating and mitigating factors in sentencing defendant. Defendant's arguments on these issues are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

We are therefore satisfied that defendant's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the court's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

 

 

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).