STATE OF NEW JERSEY v. CARLOS BLEUS, a/k/a Hakeem Addisson, Hakim Adisson, Halim Adisson, Carlos Blues Hakeem Mitchell, and Jeff Bleus 2013 -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1084-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS BLEUS, a/k/a Hakeem

Addisson, Hakim Adisson, Halim

Adisson, Carlos Blues, Hakeem

Mitchell, and Jeff Bleus,

Defendant-Appellant.

__________________________________

March 20, 2013

 

Submitted January 24, 2013 - Decided

Before Judges Hayden and Lisa.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-08-1942.

Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one), and third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3) (count two). After merging count one with count two, the court sentenced defendant on count two to an extended term, pursuant to N.J.S.A. 2C:43-6f, of eight years imprisonment with a four-year parole disqualifier. Defendant presents the following arguments on appeal:

POINT ONE

 

THE ADMISSION OF OPINION TESTIMONY BY OFFICER SAMPSON CONSTITUTED IMPROPER LAY OPINION TESTIMONY WHICH INVADED THE PROVINCE OF THE JURY AND VIOLATED N.J.R.E. 701. (NOT RAISED BELOW)

 

POINT TWO

 

THE COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S MOTIONS FOR A JUDGMENT OF ACQUITTAL, WITH REGARD TO COUNT TWO, MADE AT THE END OF THE STATE'S CASE.

 

POINT THREE

 

THE FAILURE OF THE TRIAL COURT TO PREVENT THE INTRODUCTION OF "OTHER CRIMES, WRONGS, OR ACTS" EVIDENCE, TO IMMEDIATELY CONDUCT A HEARING AS TO ITS ADMISSIBILITY, AND, ONCE IT WAS ERRONEOUSLY ADMITTED, TO INSTRUCT THE JURY ON THE LIMITED USE IT COULD MAKE OF SUCH EVIDENCE, DEPRIVED DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW)

 

 

 

POINT FOUR

 

DEFENDANT'S SENTENCE WAS EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION, REQUIRING HIS SENTENCE BE VACATED AND THE CASE RETURNED TO THE TRIAL COURT FOR A NEW SENTENCE HEARING.

 

We reject these arguments and affirm.

I.

At about 6:15 p.m. on December 18, 2009, defendant was standing outside of a bodega on Clinton Avenue in Irvington. Patrolling the area in an unmarked vehicle were Irvington Police Officers Rashaan Sampson and Christopher Burrell, who were assigned to the Irvington Controlled Dangerous Substance Team. They were wearing police uniforms. At trial, the officers gave the following account of what transpired.

A young woman flagged them down approximately one block from defendant's location and provided information regarding an individual at defendant's location. The woman described a fair-skinned African-American male, wearing a tan and black jacket, with tattoo markings on his face. Based on the information received from the citizen, Sampson and Burrell immediately drove to the designated location. They saw defendant, who matched the description given, drove past him, made a U-turn, and returned to defendant's location, double parking in the street in front of him.

No other pedestrians were standing in defendant's immediate vicinity. Both officers insisted that the incident occurred in the afternoon, during full daylight conditions, thus giving them a clear view of defendant. However, their police reports made clear that they called in the stop of defendant at 6:26 p.m. The officers acknowledged that the official dispatch record established the time of the call-in, which they incorporated in their reports. The court took judicial notice that on December 18, 2009 sunset occurred at 4:31 p.m. and announced that fact to the jury.

As they pulled up in front of defendant or as they were exiting the police vehicle, the officers saw defendant discard onto the sidewalk several objects he removed from his jacket pocket, as he began to slowly walk away. Sampson was driving and Burrell was the passenger. Burrell went directly to defendant as Sampson proceeded toward the discarded objects. Sampson said he never lost sight of the objects from the time defendant discarded them. He picked them up and immediately recognized them, based on his training and experience, as CDS. More particularly, they were three "bricks" of heroin.

Sampson explained that heroin is often individually packaged in glassine envelopes, sometimes referred to as "decks." Ten decks are tightly bundled with rubber bands into a "bundle." Five bundles are then packaged together as a "brick." Therefore, each brick contains fifty glassine envelopes or decks of heroin. The bricks are approximately three to four inches square. As is customary, the bricks found in this case were tightly wrapped with magazine paper. Therefore, the total quantity recovered was 150 glassine envelopes or decks of heroin.

Recognizing the items as CDS, the officers placed defendant under arrest. Upon searching defendant, the officers recovered $220 in cash, made up of six $20 bills, eight $10 bills, and four $5 bills, which they confiscated. Defendant was transported to the stationhouse in the unmarked vehicle. The charges were filed and defendant was processed.

Officers Sampson and Burrell were the State's only trial witnesses. Defendant, who had not given any statement to the police, testified at trial. He called no other witnesses. His account of the events was very different from the account given by the officers.

Defendant said he lived a short distance from the bodega. He returned home after work at a supermarket, and, because there was no dinner available at home, he walked to the bodega to get something to eat. Thursday was his regular payday, and he had been paid the day before. He went into the bodega and placed his food order, after which he stood outside to smoke. While doing so, the police arrived.

Defendant said it was completely dark, and there was very little artificial lighting illuminating the area. A very limited amount of light from stores shone through their windows onto the sidewalk area, and there were no streetlights in the immediate vicinity of where he was standing. He acknowledged that headlights from cars passing by would provide some limited and temporary illumination.

When the police vehicle pulled up, the passenger window went down and a voice from inside asked him what he was doing there, to which he responded he was ordering food. Defendant claims Sampson then exited the passenger side and identified himself as an Irvington police officer and again asked him what he was doing there and asked for identification. Defendant refused to produce identification and reiterated that he was waiting for the food he had ordered. Defendant and the officer got into "a little debate," after which the officer directed him to put his hands on the hood of the car. While defendant was in that position, Burrell exited the driver's side. The officers searched the sidewalk area, but did not find anything. They handcuffed defendant, placed him in the back seat of the car, and told him he was charged with loitering.

Burrell then got into the driver's seat, while Sampson walked to the back of the car and opened the trunk. Defendant observed Sampson through the rearview mirror, and he could see through the gap of about four inches between the open trunk lid and the body of the car that Sampson removed a bag. Sampson then closed the trunk, returned to the passenger seat, and placed the bag in the middle area of the front seat.

According to defendant, that bag contained the three bricks of heroin that the police accused defendant of discarding on the sidewalk. Defendant denied that he ever possessed those bricks of heroin, and he denied discarding any objects on the sidewalk.

Further, defendant said there were three young African- American men in close proximity to him when the police pulled up, and that they immediately walked away when the police arrived. This incident occurred on a Friday evening on a busy commercial strip, and defendant contended there were also other pedestrians in the general area.

The jury obviously believed the officers' account of the events and rejected defendant's account. We now consider defendant's arguments on appeal.

II.

In Point One, defendant argues that the court committed reversible error by allowing Sampson to testify that "when you have that amount [of heroin], it's commonly used for distribution, not for personal use." Defendant did not object to this testimony at trial. He now argues that it was improper because Sampson was never qualified as an expert, he never produced an expert's report, and the judge did not instruct the jury regarding the proper evaluation of an expert's testimony. Defendant contends that Sampson's comment constituted improper lay opinion testimony and improperly invaded the province of the jury in its factfinding function.

A proper evaluation of this argument requires consideration of the context in which the testimony occurred and an overview of defendant's trial strategy.

As we have stated, the officers recovered $220 in cash from defendant upon his arrest. After Sampson testified that a field test of the recovered substance tested positive for heroin, defendant was placed under arrest. The prosecutor asked what happened next, and this colloquy ensued:

A. We then transported him to headquarters to process the paperwork.

 

Q. At any point in time did you search him?

 

A. My partner did so.

 

Q. Okay. Did you fill out a confiscation report in this case?

 

A. Yes, sir. A money seizure form.

 

Q. A money seizure form.

 

A. Yes.

 

Q. And why did you fill that out?

 

A. A money seizure form, due to the amount that -- of -- of CDS that he had in his possession is -- is known commonly when you have that amount, it's commonly used for distribution, not for personal use.

 

Q. Okay.

 

A. So, therefore, we would seize the money, alongside with the -- the -- the CDS.

 

Q. And did you -- did you seize any money in this case?

 

A. Yes sir.

 

The testimony now complained of was part of the narrative description of defendant's processing. Sampson was not asked to render an opinion as to whether or not the seized drugs were possessed for purposes of distribution. He did not render such an opinion, but explained why he and Burrell seized the cash and why it was necessary to complete a money seizure form.

The disputed issue in this trial focused entirely on whether the State proved beyond a reasonable doubt that defendant possessed and discarded the three bricks of heroin. It was stipulated before the jury that the substance was heroin, and there was no dispute about its quantity and packaging. Defendant did not attempt to show, either through cross-examination of the State's witnesses or by presenting his own witnesses, that the 150 decks of heroin would not typically be possessed by someone for purposes of distribution. His defense was that he never possessed them.

Defendant's attorney did not object when the prosecutor asked Sampson why he filled out the money seizure form. And, when the answer was given, defense counsel did not move to strike. We glean from this that defense counsel did not deem the comment prejudicial in the overall context of the case and the defense strategy, which did not focus on the issue of intent to distribute. Had a timely objection been made, the court would have ruled on it, and perhaps would have barred the testimony or given an appropriate limiting instruction. If Sampson would have already responded, the court might have stricken the response and given an appropriate curative instruction.

When defendant testified, his attorney asked him, "you weren t selling drugs . . . at the bodega that evening . . . December 18th, 2009?" Defendant answered, "No." Defense counsel then asked, "[y]ou didn't have these three bricks of heroin?" Defendant again answered, "No."

In summation, defense counsel argued that "[t]his all boils down to who are you going to believe?" Counsel further argued that defendant "got on the stand," looked the jurors in the eye and told them he "didn't have the drugs," and he "wasn't selling" that evening. Finally, counsel argued: "Who is more credible? You going to believe officers who say it was daylight or getting dark at 6:26 p.m. on December 18th, 2009, when it's been dark for nearly two hours or the sun had set two hours before? Pitch dark."

In his summation, the prosecutor did not dispute that the incident occurred about two hours after sunset, but suggested there was sufficient artificial lighting in the area to enable the officers to make the observations to which they testified. With respect to the element of intent to distribute, the prosecutor said to the jury:

I submit to you that the magazine wrappings, which were wrapped around the 150 decks, as well as the sheer number of glassine envelopes show us that this is not personal use, ladies and gentlemen. This is with the intent to distribute displayed in the sheer number and packaging as Officer Sampson testified to.

 

Thus, the prosecutor did not rely on any purported opinion given by Sampson. He urged the jury to find intent to distribute based upon the large number of individual packets of heroin and the manner in which it was packaged. Although the last sentence of the quoted passage could suggest reliance on Sampson's comment that typically, this quantity is for distribution purposes, in context the more probable meaning is that it was Sampson who described the quantity and packaging of the drugs.

Because the State did not produce an expert regarding intent to distribute, it is obvious that the State did not believe it necessary in light of the very large quantity of drugs involved and the manner in which it was packaged, coupled with the recovery of a significant amount of cash from defendant's person. Prosecutors are permitted, but not required, to provide expert testimony on this issue to assist jurors in understanding the significance of the quantity and packaging of drugs, and other circumstances, with respect to the distinction between drugs possessed with intent to distribute and those possessed for personal use. State v. Odom, 116 N.J. 65, 70-76 (1989).

Odom involved eighteen vials of crack cocaine and $24 in cash. Id. at 68-69. That was a relatively close call, and expert assistance was appropriate. The corollary to the Odom rule is that it does not give expert's "carte blanche" to give an opinion about that which is "obvious." State v. Nesbitt, 185 N.J. 504, 514 (2006). We are not confronted with the question of whether or not the State would have been permitted to present an expert in this case if it sought to do so. However, it is clear to us that, because of the quantity and packaging of the drugs involved and the amount of cash possessed by defendant, an average juror, relying on his or her own ordinary experience and knowledge, would be capable of evaluating the intent to distribute issue. See Odom, supra, 116 N.J. at 71.

It is further noteworthy that, following Model Jury Charge (Criminal), "Possession Of A Controlled Dangerous Substance With Intent To Distribute" (2008), the judge charged the jury as follows:

Intent means the purpose to do something. The resolution to do a particular act or to accomplish a certain thing. Intent is a state of mind. It is very rare that intent is proven by witnesses who can testify that an accused said that he had a certain intent when he engaged in a particular act.

 

The intention may be gathered from a person's acts, conduct, from all the person said or did at a particular time and place, and from all of the surrounding circumstances.

 

You may consider any evidence as [to] . . . the quantity, purity, and packaging of [the drugs] in evidence together with all the other evidence in this case to [aid] you in your determination of the element[] of intent to distribute.

 

The judge made no mention of Sampson's testimony in instructing the jury on the factors it could consider in assessing the intent to distribute issue.

Because defendant did not object to this evidence at trial, we will not reverse unless we find plain error, namely, error "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice; the possibility must be "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). Applying this standard, we conclude that, considering the fleeting nature of Sampson's testimony, the context in which it was given, and the fact that intent to distribute was not the primary issue in dispute in the trial, any error was harmless and does not warrant reversal. See, e.g., State v. Sowell, ___ N.J. ___, ___ (2013) (slip op. at 23-24); State v. Kittrell, 279 N.J. Super. 225, 235-36 (App. Div. 1995).

III.

Defendant's second point is somewhat related to the first. He argues that the trial court erred in denying his motion at the end of the State's case for acquittal on count two. In denying the motion, the judge set forth the correct legal standard, citing State v. Reyes, 50 N.J. 454, 458-59 (1967), and Rule 3:18-1. The judge then concluded that the State presented sufficient evidence to convince a reasonable factfinder beyond a reasonable doubt that defendant possessed the heroin and possessed it with the intent to distribute.

In doing so, the judge commented that Sampson's testimony "indicate[d] that it was for distribution and not for personal use." Because the judge referenced that testimony, which defendant contends should never have been admitted, defendant argues that denial of the acquittal motion as to count two was improper. We do not agree.

In reviewing whether a trial judge correctly denied a defendant's motion for judgment of acquittal, we view the State's evidence in its entirety and, giving the State the benefit of all favorable testimony and inferences therefrom, decide whether a jury could determine defendant's guilt beyond a reasonable doubt. State v, Wilder, 193 N.J. 398, 406 (2008); Stave v. Spivey, 179 N.J. 229, 236 (2004). In other words, we apply the same standard as the trial court, based upon our review of the evidence presented in the State's case.

Defendant does not dispute that the evidence was sufficient to establish possession of heroin. As to intent to distribute, we conclude that the evidence of the quantity and packaging of the heroin, along with the amount of cash found on defendant's person, was sufficient to prove beyond a reasonable doubt defendant's intent to distribute.

IV.

We next address defendant's argument in Point Three, that he was deprived of a fair trial because of the improper admission of evidence of other wrongs and, having admitted the evidence, failure to instruct the jury on the limited use it could make of such evidence. The evidence involved here is that defendant had two teardrop tattoos on his face. Defendant did not object to this evidence at trial. Indeed, defense counsel attempted to use the evidence to defendant's advantage. Because there was no objection, our review is guided by the plain error standard, which we have previously described.

The citizen who flagged down the police gave a description of a fair-skinned African-American male with facial tattoo markings. Without objection from the defense, Sampson described defendant's tattoos and noted that he had listed that description in his report. Sampson was then shown a photograph of defendant, which apparently depicted the tattoos. Sampson said he recognized it, that the markings were those described in his report, and that if he saw them again, he would recognize them. There was no objection. The photograph was admitted in evidence without objection from the defense.

On cross-examination, defense counsel asked Sampson whether he could see the tattoos on defendant's face as he initially drove by defendant before making the U-turn. Sampson said he could not. This was consistent with the defense theory that, because of the darkness, the ability of the officers to make accurate observations was questionable.

When defendant testified, the prosecutor questioned him about the photograph in evidence, and defendant acknowledged that it accurately depicted the two teardrop tattoos under his right eye. Apparently, those tattoos could not be seen on defendant in the courtroom, and the prosecutor inquired: "I see that you do not have that on your face now?" Defendant answered that he covers them up for work and acknowledged covering them up for court that day, because he did not want the jury to see them. The prosecutor asked why he did not want the jury to see them. Defendant responded, "because I cover it daily for school and work."

Defense counsel immediately followed with redirect examination as follows:

Q. - - you have two teardrop tattoos under your right eye, correct?

 

A. Yes.

 

Q. And those tattoos you had on December 18th, 2009?

 

A. Yes.

 

Q. How long have you had those tattoos, Mr. Bleus?

 

A. For over ten years now.

 

Q. You got that -- those tattoos when you were down in State prison, right, Mr. Bleus?

 

A. Yes, I did.

 

Q. Why do you cover them, Mr. Bleus?

 

A. Because for work purposes --

 

Q. Okay. Well --

 

A. - - and school purposes.

 

Q. Why do you cover them for work purposes?

 

A. Because they aren't appropriate at my work.

 

Q. Is it because, Mr. Bleus, people in State prison get these tear . . . drop tattoos?

 

A. Yes.

 

Q. So you don't want people to know you've been down to State prison?

 

A. Yes. Yes.

 

Thus, it was defense counsel who elicited from defendant that the teardrop tattoos were associated with imprisonment. However, the jury already knew that defendant had served two State prison sentences. At the beginning of defendant's testimony, defense counsel elicited the sanitized particulars of those convictions and sentences. The judge charged the jury that defendant's prior criminal convictions could be used for the limited purpose of assessing his credibility and for no other purpose. In their summations, both attorneys referred to the teardrop tattoos by making reference to their association with defendant having served State prison time and thus bearing on his credibility.

Defendant now argues that it was plain error for the judge to have allowed this evidence of "other crimes, wrongs, or acts," in violation of N.J.R.E. 404(b). Defendant further asserts plain error in the court's failure to give a limiting instruction after having allowed it in evidence.

We find defendant's argument unpersuasive. Having tattoos is not a prior bad act within the meaning of N.J.R.E. 404(b). Nor is covering up the tattoos for work, school or court.

Had defendant not testified, his prior convictions would have been inadmissible. If that were the case, the teardrop tattoo evidence might have constituted significant prejudice, outweighing its probative value, if it is assumed that jurors would know from their common experience and knowledge that such tattoos are associated with imprisonment. If that were the case, analysis under N.J.R.E. 403 would be required and would take on greater significance. However, defendant did testify, thus making his prior criminal convictions and State prison sentences admissible. Indeed, he volunteered that information to the jury. For that reason, and because defense counsel attempted to use the evidence to defendant's advantage, any prejudicial effect was erased. If there was error, it was harmless.

V.

Finally, we reject defendant's argument that he received an excessive sentence. Because defendant had multiple indictable convictions, and because only one of those convictions was the predicate for imposing a mandatory extended term pursuant to N.J.S.A. 2C:43-6f, the judge did not double count defendant's prior convictions as a basis for finding aggravating factors as argued by defendant. The sentence imposed was based upon aggravating and mitigating factors amply supported by competent and credible evidence in the record, it is not manifestly excessive or unduly punitive, and it does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); S

 

tate v. Roth, 95 N.J. 334, 363-65 (1984).

 

 

 

 

Affirmed.