STATE OF NEW JERSEY v. ALEXIS TORO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEXIS TORO,

Defendant-Appellant.

____________________________________________________

June 25, 2014

Submitted March 18, 2014 Decided

Before Judges Messano and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 11-03-00202.

Wayne Powell, attorney for appellant.

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

PER CURIAM

Following a jury trial, defendant Alexis Toro was convicted of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1).1 On October 5, 2012, the judge sentenced defendant to five years in prison with a twenty-month period of parole ineligibility.

Before us, defendant raises the following issues:

POINT I: APPELLANT WAS DEPRIVED OF HIS 6TH AMENDMENT CONSTITUTIONAL RIGHT OF CONFRONTATION BY THE ADMISSION OF HEARSAY EVIDENCE BY THE STATE'S WITNESS, JAMES DAY.

POINT II: THE PREJUDICIAL COMMENTS OF THE STATE DURING SUMMATION CONSTITUTED REVERSIBLE ERROR AND APPELLANT'S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED.

POINT III: THE ADMISSION OF S-7 INTO EVIDENCE WITHOUT A LIMITING INSTRUCTION AS TO WHAT USE THE JURY COULD MAKE OF THE 53 UNANALYZED BAGS SO PREJUDICED THE APPELLANT AS TO BE OUTWEIGHED BY ANY PROBATIVE VALUE THE UNANALYZED BAGS MAY HAVE HAD AND THEIR ADMISSION SERVED TO DEPRIVE APPELLANT OF A FAIR TRIAL.

POINT IV: THE COURT WAS OBLIGATED TO CANVAS THE JURY AFTER RECEIVING A QUESTION FROM JUROR #13 REGARDING EVIDENCE PRESENTED AT THE TRIAL PRIOR TO THE CLOSE OF THE STATE'S CASE.

After considering defendant's contentions in light of the applicable law, we affirm.

I.

We discern the following facts from the testimony at trial. On January 1, 2011, Vineland Police Officer Steven Triantos observed defendant speeding and initiated a traffic stop. Defendant appeared nervous, and Triantos determined defendant was not the registered owner of the car. Shortly thereafter, Officer James Day arrived as backup.

According to Day, the police suspected drugs were in the car, and they summoned a sergeant to bring a specially-trained dog to sniff the vehicle. The dog had difficulty near the driver's side because the car was parked next to a snow bank, but the dog reacted when it reached the passenger door. Triantos searched defendant, and Day searched the passenger, Stanley Garcia.2 No contraband was found on defendant, and he refused consent to a vehicle search.

The officers released defendant and towed the car to a secure police lot pending a search warrant. After obtaining a warrant, Day found a camera case between the driver's seat and the door containing fifty-four bags of white powder, suspected by the police to be heroin. Each bag was stamped with the logo "Knockout" and rubber-banded together in five bundles of ten with four loose bags.

Forensic scientist Diana Casner performed a laboratory analysis of the seized powder. She explained that pursuant to standard procedure, because the suspected drugs weighed under one-half ounce, she only needed to test a small portion of one randomly selected bag. The powder in the selected bag tested positive for heroin.

On July 20, 2012, the jury found defendant guilty, determining that he constructively possessed the heroin found in the vehicle. This appeal followed.

II.

Defendant first argues that Day's testimony regarding an informant constituted hearsay and violated his right to confrontation. Defendant further argues that the trial judge's denial of his motion for a new trial based on this testimony was in error. We disagree.

At trial, defense counsel questioned Triantos about the reason he detained defendant for so long on what should have been a brief routine traffic stop. The prosecutor requested a sidebar and reminded the judge that the officers' motivations in detaining defendant were based on information from a confidential informant regarding defendant's involvement in narcotics trafficking, and that the State had instructed the police witnesses not to testify about that. The judge warned defense counsel to avoid the topic as he was "running the risk of opening the door" to generally inadmissible testimony.

The next witness was Day. Immediately before his testimony, the court held a brief N.J.R.E. 104 hearing, outside the presence of the jury, regarding the admission of defendant's roadside statements. Defense counsel asked Day why he was detaining defendant for so long without simply issuing a ticket, and Day responded that he was investigating defendant based on information received from a confidential informant regarding defendant's involvement in drug trafficking. Shortly thereafter, during Day's cross-examination, defense counsel again asked questions regarding the officers' motivations in detaining defendant for so long for a minor speeding infraction. When defense counsel asked Day why he needed defendant's license when it was Triantos' traffic stop, Day responded, "[w]ell, due to information I was receiving from informants about the driver of the vehicle." Defense counsel did not object and continued cross-examination without further pursuing the subject.

During deliberations, the jury presented the following question to the judge: "[t]here was a mention of an informant by Officer Day; did he come to the crime scene because of this information? Can we read his testimony transcript?" At the judge's suggestion, and with both attorneys' agreement, a recording of Day's testimony was played back to the jury.

Before the sentencing, defense moved for a new trial arguing Day's testimony regarding the informant unfairly prejudiced the jury against defendant. The judge denied the motion, finding that Day's testimony was in direct response to defense counsel's insinuations that the officers were acting arbitrarily in detaining defendant. The judge further determined that when defense counsel repeatedly questioned Day's motivations in detaining defendant, counsel knew what the answer would be based on Day's responses at the N.J.R.E. 104 hearing, and that the answer could prejudice defendant. The judge concluded that defense counsel invited any error.

Both the United States Constitution and the New Jersey Constitution "guarantee a criminal defendant the right to confront 'the witnesses against him.'" State v. Branch, 182 N.J. 338, 348 (2005) (quoting U.S. Const. amend. VI; N.J. Const. art. I, 10). "The right of a party to confront witnesses in court is one of the principal values protected by the hearsay rule." Id. at 342. However, "[t]he Confrontation Clause does not condemn all hearsay." Id. at 349 (citing Crawford v. Washington, 541 U.S. 36, 50-51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 192 (2004)).

For instance, "the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" State v. Bankston, 63 N.J. 263, 268 (1973) (citation omitted). However, an officer cannot testify as to specific information said by an unidentified declarant regarding a crime committed by the accused. Id. at 268-69. That is, "a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." Branch, supra, 182 N.J. at 351. Nevertheless, when a defendant "opens the door" by "flagrantly and falsely suggesting that a police officer acted arbitrarily or with ill motive[,]" that officer may refute that suggestion "despite the invited prejudice the defendant would suffer." Id. at 352.

In this case, Day's testimony that he had possession of defendant's license and participated in the traffic stop due to information received from informants did not violate the hearsay rule. See Bankston, supra, 63 N.J. at 268. We are in agreement with the trial judge that defense counsel "opened the door" to this issue by repeatedly questioning the officers' motivations in detaining defendant, and Day's testimony was in response to defendant's suggestions that the officers' actions amounted to overzealous police work. See Branch, supra, 182 N.J. at 352.

A review of Day's testimony on cross-examination demonstrates that defense counsel brought out the fact that Day was a member of the Street Crimes Unit, defense counsel directly asked Day if he arrived on the scene to investigate a narcotics matter, and then asked why Day needed to be involved in Triantos' run-of-the-mill traffic stop, all the while knowing that a complete answer to those questions could prejudice his client. "[T]rial errors that 'were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal[.]'" State v. A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)).

Importantly, Day did not testify about any specific information regarding what the informant said about defendant's involvement in a crime, and therefore his testimony does not come within the Bankston proscription. See Bankston, supra, 63 N.J. at 268-69. Furthermore, defendant did not object to Day's fleeting reference to an informant. We perceive no error here capable of producing an unjust result in admitting this unchallenged brief portion of Day's testimony. See R. 2:10-2. Consequently, the judge did not err in denying defendant's motion for a new trial. See Jastram v. Kruse, 197 N.J. 216, 230 (2008).

III.

Defendant next argues that the prosecutor made prejudicial remarks in her summation suggesting defendant slid the drugs under the seat when he was stopped by police because they were valuable to him as a drug dealer, which were not based upon evidence developed at trial. During closing arguments, defense counsel asserted that the State failed to prove defendant knew the drugs existed, as he would not necessarily know that drugs were concealed beneath the driver's seat of a car that he borrowed from an acquaintance.

The prosecutor, in summation, made the following remarks:

[I]f you're an addict, [the drugs are] going to have a certain amount of value to you. It's 54 bags of heroin. If you're an addict and you own that, you want that. . . . This is what you need. And, if you're a drug dealer, this is your income.

These 54 bags [are] not something you're going to leave setting around willy-nilly. Whether you're an addict or you're a dealer . . . . You're not going to just throw it in someone else's car and walk away for a week. You're not going to leave it in your car. You're going to keep it with you.

. . . .

So, what would you do? You're getting pulled over. You know the police are right there. Shove it under the seat.

After the prosecutor's summation, defense counsel objected and moved for a mistrial arguing that the drug dealing remarks severely prejudiced defendant's case. The judge observed that the references to drug dealing "crossed a line," but concluded that a mistrial was not warranted and gave the following curative instruction:

[J]ust so that we are all clear . . . [defendant] is not charged with being a drug dealer or distributing drugs. And, he is charged with simple possession of drugs. . . . I'm not saying that the prosecutor was or was not implying that he is a drug dealer. . . . I want to clarify that that's not what this case is about; that no one has charged him with being a drug dealer. And, I am instructing you to ignore the prosecutor's reference to drug dealer in your consideration.

Defendant argues before us that the curative instruction did not ameliorate the prejudice to his case, and the judge erred in denying his motion for a mistrial. We do not agree.

It is well settled that "a prosecutor is afforded considerable leeway to make forceful arguments in summation." State v. Bradshaw, 195 N.J. 493, 510 (2008) (citing Bender v. Adelson, 187 N.J. 411, 431 (2006)). However, "prosecutors should not make inaccurate legal or factual assertions during a trial and . . . must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Reddish, 181 N.J. 553, 641 (2004) (internal quotation marks and citations omitted).

In order for the jury to determine defendant's guilt or innocence, "it is important that both the defendant and the prosecutor have the opportunity to meet fairly the evidence and arguments of one another." United States v. Robinson, 485 U.S. 25, 33, 108 S. Ct. 864, 869, 99 L. Ed. 2d 23, 32 (1988). Thus, the reviewing court "'must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo'" to determine if the prosecutor's remarks were made as a measured response in an attempt to "'right the scale.'" State v. Engel, 249 N.J. Super. 336, 379 (App. Div. 1991) (quoting United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 11 (1985)).

"[T]o justify reversal, the prosecutor's [remarks] must have been clearly and unmistakably improper," and "so egregious that it deprived the defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 438 (2007) (internal quotation marks and citations omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). The reviewing court should consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid. (internal quotation marks and citations omitted).

We agree with the trial judge that the prosecutor's remarks did not warrant a new trial. The assertion that defendant slid the drugs between the driver's seat and door was a reasonable inference based upon testimony that the drugs were discovered in that location after defendant was stopped by police. See Reddish, supra, 181 N.J. at 640-41. Furthermore, the assertion that the drugs were valuable was a reasonable inference based upon the large number of bags discovered and common knowledge that illegal drugs are expensive. See ibid.

A review of the closing remarks demonstrates that the prosecutor did not label defendant a drug dealer. Rather, the prosecutor proposed that regardless of whether the owner of the heroin was an addict or a dealer, he or she would not haphazardly leave valuable drugs in another person's car, or in his or her own car prior to lending it to someone. This comment was a fair response to defendant's assertion that he would not have known the heroin was there because he did not own the car. See Engel, supra, 249 N.J. Super. at 379.

In any event, the judge determined the prosecutor's use of the term "drug dealer" was improper, and gave a thorough curative instruction, which ameliorated any potential prejudice. Generally, it is presumed that the jury will follow such instructions accurately. State v. Winder, 200 N.J. 231, 256 (2009). Accordingly, the prosecutor's closing remarks did not prejudice "defendant's fundamental right to have a jury fairly evaluate the merits of his defense." See Wakefield, supra, 190 N.J. at 438.

IV.

Defendant next argues that the court's admission of the untested bags of heroin as physical evidence prejudiced his case. Defendant had moved to limit admission to the one randomly tested bag, arguing the fifty-three untested bags were irrelevant to a charge of simple possession, and their probative value was substantially outweighed by the prejudice that the jury would surmise defendant was a drug dealer. Defendant conceded that the State was entitled to allow the officers to testify that they found fifty-four bags of what they believed to be heroin. The judge admitted all fifty-four bags stating:

[R]elevance and weight are two different things.

. . . .

[I]t would seem that this is relevant because this is what the police say they found in that car. The State has presented the chemist who says, "This is what I do. Our procedure is that if it's under one-half ounce, that we only analyze one of the items" -- one of the little baggies[.]

. . . .

And, what you really want to do is you want to argue to the jury like -- "They haven't proved beyond a reasonable doubt that this is heroin." The jury can decide what weight to put on it[.]

Defendant argues that the judge's decision to admit the non-tested bags was in error. We are not persuaded.

All relevant evidence is admissible, unless otherwise excluded. N.J.R.E. 402; State v. Burr, 195 N.J. 119, 126-27 (2008). To determine relevancy, a trial judge must "focus on the logical connection between the proffered evidence and a fact in issue." State v. Covell, 157 N.J. 554, 565 (1999) (internal quotation marks and citation omitted).

A court may nevertheless exclude relevant evidence if "its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury[.]" N.J.R.E. 403. "The burden is on the party urging exclusion of evidence to convince the court that the N.J.R.E. 403 considerations should control." Belmont Condo. Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 96 (App. Div.) (citing Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001)), certif. denied, 216 N.J. 366 (2013). Claimed prejudicial evidence "'is excluded only when its probative value is so significantly outweighed by its inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case.'" Wakefield, supra, 190 N.J. at 429 (quoting State v. Koskovich, 168 N.J. 448, 486 (2001)).

Generally, a trial court's evidentiary rulings will be upheld absent an abuse of discretion. State v. Feaster, 156 N.J. 1, 82 (1998). A judge's decision pursuant to N.J.R.E. 403 will not be overturned "'unless it can be shown that . . . a manifest denial of justice resulted.'" Verdicchio v. Ricca, 179 N.J. 1, 34 (2004) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

We are in accord with the trial judge that all fifty-four bags were relevant and admissible. The bags were bundled together in groups of ten all bearing the same logo, and police discovered those bundles in the camera case. The entire packaging of the fifty-four bags tends to suggest that defendant was more likely aware of the heroin's existence, as opposed to one bag that could have been dropped unnoticed in the car by anyone at any time. See Covell, supra, 157 N.J. at 565.

We also agree defendant failed to show that the admission of all the bags was so prejudicial or misleading as to substantially outweigh their probative value. See Wakefield, supra, 190 N.J. at 429. Defendant agreed that he would not object to officer Day's testimony that fifty-four bags were recovered from the car, and conceded that "the State is certainly entitled to have police officers come in and testify" to that effect. Regardless of whether the jury had the physical evidence before them in deliberations, they were aware through testimony that fifty-four bags had been recovered, and that one of those bags tested positive for heroin, which was sufficient to sustain the possession charge. Thus, the admission of the untested bags was not an abuse of discretion resulting in a denial of justice, and we decline to disturb the judge's decision. See Verdicchio, supra, 179 N.J. at 34.

V.

Finally, defendant argues the judge erred by failing to canvas the jury to determine if they engaged in premature deliberations after he received a question from a jury member priorto theclose of the State's case. We discern no such error.

During the trial, the juror presented a question asking, "[w]ould it be possible to find out how long [defendant] was in possession of the vehicle before he was stopped for the moving violation?" With the agreement of both attorneys, the judge gave the following instruction:

I would remind you [of] the instructions that I indicated at the beginning that you're not to begin deliberating about this case until you hear all the testimony. . . . And, at the conclusion of the case after all of the evidence is in[,] after you hear the oral argument and my charge to you about the law, then you can analyze the evidence that you receive and discuss it among yourselves as to what type of evidence was presented, and how it was presented to you, and how to judge the credibility of that evidence.

After deliberations began, the State moved to strike the juror, arguing that her question evidenced premature deliberations. Defendant disagreed and opposed the motion. The judge denied the motion, stating:

Well, I don't think she started deliberating. I think she started thinking. I think there's a difference between deliberating and thinking, and we can't expect jurors not -- as the trial goes on, although we tell them to keep an open mind, she obviously had a thought come into her head, and she communicated this. I think I corrected it with a curative instruction, and I don't intend to make a change at this point in that.

Generally, "the decision whether to excuse a juror lies in the sound discretion of the trial judge." State v. Loftin, 191 N.J. 172, 192 (2007). Further, "[t]he determination of the appropriate course of action upon a showing of premature deliberations is a matter left to the trial court's broad discretion." State v. McLaughlin, 310 N.J. Super. 242, 256 (App. Div.) (citing State v. Scherzer, 301 N.J. Super. 363, 488 (App. Div.), certif. denied, 151 N.J. 466 (1997)), certif. denied, 156 N.J. 381 (1998).

Where there are allegations of jury misconduct, the court "must make a probing inquiry into the possible prejudice caused by any jury irregularity[.]" Scherzer, supra, 301 N.J. Super. at 487-88. If the judge determines a juror's misconduct could prejudice the defendant, the judge must question the remaining jurors to determine whether any of them were exposed to the prejudicial information. Id. at 487. "Whenever the 'intrusion of irregular influences' inside the jury room has the capacity to affect the outcome of a case, a new trial must be granted." Loftin, supra, 191 N.J. at 190 (quoting Panko v. Flintkote Co., 7 N.J. 55, 61-62 (1951)).

In this case, the trial judge properly declined to strike the juror as the question presented did not reflect that any improper deliberations had occurred. See Loftin, supra, 191 N.J. at 192; Scherzer, supra, 301 N.J. Super. at 487-88. Nothing in the contents of the question suggests that the juror formed any opinion of defendant's guilt or innocence or had improperly discussed the case. After the juror submitted the question, the judge appropriately issued a curative instruction, which we presume the jury followed accurately. See Winder, supra, 200 N.J. at 256. Accordingly, the judge's failure to poll the jury was not in error, and we decline disturb the judge's course of action which was based on his sound discretion. See Scherzer, supra, 301 N.J. Super. at 487-88.

Affirmed.

1 This charge was amended pre-trial from third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(3).

2 Garcia was found with 140 bags of heroin on his person, and he entered a guilty plea prior to trial.