STATE OF NEW JERSEY v. JOHN DOUGLAS

NOT FOR PUBLICATION WITHOUT THE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.

JOHN DOUGLAS, JR., a/k/a DARRLY

JONES, a/k/a JOHN DOUGLAS, a/k/a

JOHN DOUGLASS,

Defendant-Appellant.

_____________________________________________

February 26, 2014

 

Submitted January 6, 2014 - Decided

 

Before Judges Kennedy and Guadagno.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-11-1003.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant John Douglas, Jr., was convicted of fourth-degree possession of a controlled dangerous substance (marijuana) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(12) (count one); third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count two); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count three).

At sentencing, the State moved for an extended term pursuant to the persistent-offender statute, N.J.S.A. 2C:44-3(a). The trial court granted the motion and sentenced defendant to eighteen months on count one; an extended term of eight years on count two, to run consecutively to count one; and eighteen months on count three, to run concurrently with count two. Defendant's aggregate term of incarceration is nine and one-half years.

On appeal, defendant presents the following arguments:

point i

 

the warrantless search of the automobile violated defendant's constitutional protection against search and seizure because the stop was not unexpected and there were no exigent circumstances.

 

point ii

 

the conviction for resisting arrest must be vacated because the state failed to prove beyond a reasonable doubt that defendant knew he was being arrested. (not raised below).

 

point iii

 

the prosecutor committed reversible error when she tied defendant, who was not charged with weapon possession or gang membership, to gangs and guns, and told the jury the police "had no motive to lie." (not raised below).

 

point iv

 

the admission of expert-opinion testimony was improper because the jurors were fully capable of understanding the state's evidence; it was prejudicial because the expert offered baseless opinions that turned innocuous facts into incriminating evidence. (not raised below).

 

point v

 

the sentence is excessive for this defendant and this offense.

We reject these contentions and affirm.

I.

We glean the following facts from the trial record and the hearing on defendant's motion to suppress. Undercover Plainfield narcotics police officer, Michael Glowacki, received information regarding a marijuana dealer named "J.D." from an informant. The information included a description of J.D. and his phone number. On July 17, 2009, at approximately 11:00 p.m., Glowacki called J.D. and requested two bags of marijuana. J.D. replied, "I got you." They agreed to meet near a restaurant on Watchung Avenue in a high-crime area of Plainfield.

The officer was driving near the meeting location when he observed a green Ford with two occupants. The passenger, later identified as defendant, got out of the car and made a phone call to Glowacki, asking where he was. Glowacki told him he was already there and waived at him. Glowacki got out of his car and the two men began to walk toward each other. Glowacki noticed that defendant was carrying a clear plastic baggie in his right hand which he believed to contain the marijuana he had ordered.

As they got closer, defendant looked at the officer, appeared startled, and said, "I don't know you." He then began to back away and put the plastic bag into his pocket. After stating, "I'm not doing anything," defendant walked back and re-entered the Ford. Glowacki, who knew defendant from prior arrests, testified that he believed that defendant had recognized him as a police officer. Glowacki radioed for back-up and other officers responded, including Detective Michael Black.

Black approached the Ford and saw defendant place a small item in the glove compartment. Black opened the passenger door and asked defendant to step out of the vehicle. Defendant refused, saying that he was not doing anything wrong. When Black tried to physically remove him, defendant closed his fist and tried to punch Black but missed. After a brief struggle, defendant was handcuffed, placed under arrest, and searched.

Kevin Jefferson, who was sitting in the driver's seat, was also removed from the vehicle. Black then opened the glove compartment and found a clear sandwich bag containing twelve smaller bags of marijuana.

After a Union County grand jury indicted defendant, he moved to suppress the evidence found in the car. Officers Glowacki and Black testified at the hearing on defendant's motion. The court found the officers had "more than ample probable cause" to believe defendant possessed marijuana; that defendant had agreed to sell the officer marijuana; that he possessed the marijuana; and that he placed the marijuana he intended to sell in the car's glove compartment. The court found sufficient exigency based on the high crime area and the time of the night.

II.

A.

Defendant argues that the warrantless search of the vehicle by the police violated his constitutional protection against unreasonable searches and seizures, as there were no exigent circumstances for it to fall within the automobile exception.

When reviewing a motion to suppress, "we must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007). We owe deference to the credibility findings of the factfinder. State v. Locurto, 157 N.J. 463, 471 (1999) ("It should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.").

A motion court's findings of fact may be disturbed only when "the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction[.]" State v. Johnson, 42 N.J. 146, 162 (1964).

A search without a warrant is presumptively unreasonable. State v. Wilson, 178 N.J. 7, 12 (2003). There are a few, well-defined exceptions to the warrant requirement. See State v. Hill, 115 N.J. 169, 173-74 (1989). The prosecution bears the burden of proving that circumstances existed justifying a warrantless search. State v. Brown, 132 N.J. Super. 180, 185 (App. Div. 1975).

One exception to the warrant requirement is the automobile exception. See State v. Pena-Flores, 198 N.J. 6, 11 (2009). A "warrantless search of an automobile in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." Id. at 28.

Courts evaluate exigency on a case-by-case basis by considering the totality of the circumstances and how the facts bear on the issues of officer safety and evidence preservation. Id. at 28-29. Considerations relating to exigent circumstances include:

[T]he time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

 

[Id. at 29.]

Here, the motion court found both officers to be "credible and believable witnesses." The judge then found the police had probable cause to believe that defendant was engaged in a narcotic transaction and that he placed narcotics that he intended to sell in the glove compartment of the vehicle. On appeal, defendant does not challenge the court's finding of probable cause.

Defendant argues that "the police had every reason to expect that the dealer would arrive in a car or that they would arrest him at the scene and want to search his car." While the officers did arrange to purchase marijuana from defendant, there was no indication that defendant would arrive by car and certainly no expectation that he would decline to sell to Glowacki, return to the vehicle, and place the baggies he was holding into the glove compartment. Defendant's decision to abort the sale dramatically altered the nature of the investigation. The police had no advance knowledge of the way these events would unfold. See State v. Colvin, 123 N.J. 428, 437 (1991) (upholding warrantless search of parked car conducted without advance planning where police had articulable reasons to fear evidence would be lost or destroyed); State v. Minitee, 210 N.J. 307, 322-24 (2012) (upholding warrantless search of an SUV conducted three hours after the vehicle was towed to police headquarters).

The trial court based its finding of exigency on the high crime nature of the neighborhood and the time of night. We discern no basis to disturb that decision. As defendant approached Glowacki, the officer observed a baggie in defendant's hand. Based on his training and experience and his earlier conversation with defendant, Glowacki reasonably believed the baggie contained the marijuana defendant had previously agreed to sell to Glowacki. When defendant suddenly changed his mind and returned to the Ford, Glowacki immediately notified Black that defendant recognized him as a police officer and aborted the drug sale. Black responded to the area and arrived just as defendant was re-entering the Ford. Black then observed defendant place an object into the glove compartment and, after subduing defendant, removed the baggie.

The observations of the officers along with defendant's statements gave them probable cause to believe that defendant had placed evidence of his drug-related activity in the glove compartment. Combined with the exigencies created by the high-crime location and the time of night, the warrantless seizure was reasonable.

B.

Defendant also challenges his conviction for resisting arrest, arguing that the State failed to prove beyond a reasonable doubt that he knew he was being arrested. Defendant claims that Detective Black was in plain clothes and did not identify himself as a police officer, although he concedes that the officer had a badge on a chain around his neck and official police identifiers on his shirt and hat.

A defendant is guilty of resisting arrest, pursuant to N.J.S.A. 2C:29-2, if he "purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. Resisting arrest is a crime of the third degree if the person:

(a) Uses or threatens to use physical force or violence against the law enforcement officer or another; or

 

(b) Uses any other means to create a substantial risk of causing physical injury to the public servant or another.

 

[N.J.S.A. 2C:29-2(a)(1).]

 

To establish resisting arrest, "the State must prove beyond a reasonable doubt that it was defendant's conscious object to prevent his arrest." State v. Ambroselli, 356 N.J. Super. 377, 384-85 (App. Div. 2003). "Thus, resisting arrest requires a culpability of purpose." State v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997), rev'd on other grounds, 155 N.J. 317 (1998). The defendant must know of the officer's intent to arrest and purposely resist the arrest. Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:29-2 (2013).

Defendant argues that Detective Black failed to announce that he was under arrest. However, "[t]he failure to announce that defendant was under arrest would only be one factor to be considered in the overall sequence of events leading to the arrest." Branch, supra, 301 N.J. Super. at 321. Therefore, the court properly instructed the jury:

If the arrest is lawful, the officer does not have to utter the words you're under arrest but you still have to find that the resisting arrest, that the defendant in resisting arrest had the culpability of purpose, that is the failure to announce that defendant was under arrest would be a factor in considering the overall sequence of events leading to the arrest but it does not have to be announced.

 

Know, however, that the defendant must have a reason to know that a law enforcement officer is attempting to effect the arrest, okay, notwithstanding that he doesn't have to utter the words, all right.

 

Defendant did not object to the court's jury instruction and did not raise the issue of insufficiency before the trial court. "[T]he issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." R. 2:10-1.

Notwithstanding defendant's failure to raise the issue below, the standard of review in determining the sufficiency of evidence is

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

 

[State v. Reyes, 50 N.J. 454, 459 (1967).]

 

Here, a reasonable jury could find defendant guilty beyond a reasonable doubt of resisting arrest. The officers, though plain clothed, had their badges exhibited around their necks and their clothing was marked as police. Moreover, defendant's refusal to exit the vehicle and his statement that he "wasn't doing anything wrong," exhibits his knowledge of their attempt to arrest him for wrongdoing. Further, defendant's endeavor to punch the officer evidences his intent to forcibly resist the arrest.

C.

Defendant next claims the prosecutor committed reversible error when she associated him with "gangs and guns" and when she told the jury that the police "had no motive to lie."

The State presented the testimony of Detective Oliver Kalebota of the Union County Prosecutor's Office, as an expert in the packaging, use, sale, and distribution of narcotics. In response to hypothetical questions incorporating the facts of this case, Kalebota testified that, in his opinion, the marijuana was possessed for the purpose of distribution, not personal use.

When Kalebota was asked about his current assignment, he responded he was assigned to the "guns, gang, drug, violent crime task force." In questioning Kalebota about his duties, the prosecutor referred to his assignment once and Kalebota mentioned it one additional time during his testimony.

Defendant made no objection to these references and we employ the plain error standard of review, seeState v. Daniels, 182 N.J.80, 95 (2004), and disregard any error "unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" R.2:10-2.

When there is no objection to a prosecutor's remarks, the remarks generally will not be deemed prejudicial. State v. Timmendequas, 161 N.J.515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); State v. Ramseur, 106 N.J.123, 323 (1987). Failure to object deprives the court of the opportunity to take curative action. State v. Irving, 114 N.J.427, 444 (1989).

Defendant argues that there was no evidence linking him to gangs or guns and the prosecutor's remarks "injected the unwarranted and inflammatory suggestion" that the State had information that he was involved in gang activity.

Detective Kalebotawas not involved in the undercover operation and only appeared at trial as an expert witness. His trial testimony was limited to narcotics only and there were no references to guns or gangs.

We are satisfied that the prosecutor's reference to Kalebota'scurrent assignment could not reasonably be considered as an attempt to link defendant to gangs and guns. During the prosecutor's summation, she described the detective as "someone who worked regularly in the field of narcotics[,]" and made no reference to guns or gangs.

Defendant also argues that the prosecutor committed reversible error during her closing argument by urging the jury to believe the state's witnesses, all police officers, because they "had no motive to lie. They had no bias. They had no reason to be untruthful."

We note that these comments came in response to an attack on the officers' credibility during the closing by defendant's counsel. Before the prosecutor's comments, the judge instructed the jury as follows:

The State cannot vouch for any witness. You have to be the sole determiners, the sole determiners of the credibility of the witnesses, especially the police officers, because they were the only witnesses who testified, okay. All witnesses in this case were law enforcement officers.

 

The State cannot say that they were credible. You have to make the finding that they were credible. The State cannot vouch for its own witnesses, okay.

Generally, prosecutors are afforded considerable leeway in their closing arguments. State v. Frost, 158 N.J.76, 82 (1999). However, "a prosecutor must refrain from improper methods that result in a wrongful conviction, and is obligated to use legitimate means to bring about a just conviction." State v. Smith, 167 N.J.158, 177 (2001). "Our courts have consistently held that . . . statements by a prosecutor about a police officer's credibility are wholly inappropriate." Frost, supra, 158 N.J.at 85.

Here, defense counsel vigorously attacked the credibility of Officer Glowacki. The prosecutor suggested that the testimony of the officers corroborated each other. We find nothing in the conduct of the prosecutor in these respects sufficient to warrant reversal.

D.

Defendant next argues that the trial court erred in allowing the state to call an expert witness on drug distribution because his expertise was not necessary to inform the jury and the expert offered unsubstantiated, prejudicial opinions.

Pursuant to N.J.R.E.702, a qualified expert may testify and offer an opinion "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[.]" To be admissible, expert testimony should "relate[] to a relevant subject that is beyond the understanding of the average person of ordinary experience, education, and knowledge." State v. Odom, 116 N.J.65, 71 (1989). In drug distribution trials, jurors typically benefit from expert insight into the "properties, packaging, and value of illegal drugs." Id.at 69, 71, 76. However, it is not proper to present expert testimony about straightforward but disputed facts. State v. McLean, 205 N.J.438, 455 (2011) (citing State v. Boston, 380 N.J. Super. 487, 494 (App. Div. 2005), certif. denied, 186 N.J.243 (2006)).

For the erroneous admission of expert testimony about a drug transfer to be reversible error, it must be plain error. State v. Sowell, 213 N.J.89, 107-08 (2013). The error must be "clearly capable of producing an unjust result," Rule2:10-2, or "led the jury to a verdict it otherwise might not have reached." State v. R.B., 183 N.J.308, 330 (2005) (quoting State v. Bankston, 63 N.J.263, 273 (1973)).

Sowellpresents similar facts to this case where the State presented expert testimony in response to hypothetical questions that tracked facts of the narcotic exchange at issue and the expert concluded to the jury that an exchange of narcotics took place. 213 N.J.at 95-97. The Court held that parts of the expert testimony were improper, as it "recast[ed] straightforward evidence in the form of a hypothetical and elicit[ed] an opinion as to what it reflects." Id.at 108.

Because our system of justice relies on jurors to decide straightforward factual disputes, and because nothing about the contested episode was beyond the ken of the average juror, expert testimony about the nature of the transaction was neither warranted nor proper. It inappropriately reinforced [the in-person officer-witness]'s account of what he saw and encroached on the jury's fact-finding role.

 

[Id.at 104-05.]

Here, Detective Kalebota, "an expert in the field of packaging, use, sale, and distribution of narcotics" testified as to whether the marijuana defendant possessed was for the purpose of distribution or for personal use. He responded to a series of hypothetical questions incorporating the facts of this case posed by the prosecutor. First, the prosecutor described a scenario of an individual possessing a clear plastic bag containing twelve smaller half-gram bags of marijuana. Kalebota responded that the packaging suggests that the marijuana was for distribution purposes, as each bag could be sold individually. Then, the prosecutor added to the hypothetical, explaining that the same individual was called by an undercover officer to purchase drugs, and the individual arrived at the meeting location. Kalebota responded that the situation would "clearly show" that the person was intending to distribute the marijuana.

Kalebota further testified that a second-person driving the drug-possessing individual to the meeting location, where both possessed cash and cell phones, is a further indication that the marijuana was for distribution purposes, as most drug dealers have "money in their cash register to make change and collect" from sales and they use cell phones to communicate with their clients.

As the Court held in Sowell, courts do not expect the average jurors to understand the packing of marijuana and how it reflects distribution. Id.at 104. While Kalebota's testimony as to carrying money and a cell phone is closer to an everyday straight-forward experience that jurors are competent to assess in the context of the rest of the incident's events, any error does not amount to plain error requiring reversal as his conclusions did not likely lead the jury to a different verdict than it otherwise would have reached. SeeId.at 107-08.

Moreover, the evidence presented to the jury is sufficiently compelling to support a verdict of guilty of intent to distribute. In his reply brief, defendant concedes that the facts show he "likely intended to sell the marijuana he brought with him when he went to meet the officer."

E.

Defendant lastly argues that his sentence of nine and one-half years is excessive and the judge relied on factual errors in sentencing him. Defendant claims that, in imposing the extended term, the judge misquoted him in saying "you're not doing this to me again," and the judge found this to be an aggravation of the offense because defendant did not want to be taken into custody. Defendant also claims that it was error for the judge to decline to consider his substance abuse problem as a mitigating factor.

Our review of the length of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). We will not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record. State v. O'Donnell, 117 N.J. 210, 216 (1989). Moreover, a sentence will not be disturbed unless there is "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).

After a sentencing court determines that a defendant qualifies as a "persistent offender" pursuant to N.J.S.A.2C:44-3(a), it may impose a discretionary extended-term sentence. State v. Pierce, 188 N.J.155, 161 (2006).

A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.

 

[N.J.S.A.2C:44-39(a).]

For a third-degree crime, an extended term between five and ten years may be fixed by the court. N.J.S.A.2C:43-7(a)(4).

The sentencing court found defendant qualified for an extended term as a persistent offender because he was previously convicted of at least seven indictable offenses since the age of 18, the last of which occurred in 2007. The court then found aggravating factors three, six, and nine of N.J.S.A.2C:44-1(a), and no mitigating factors. "[W]hen the aggravating factors preponderate, sentences will tend toward the higher end of the range." State v. Natale, 184 N.J.458, 488 (2005).

Defendant denies that he made the statement attributed to him by the court, "you're not doing this to me again," when he was told to get out of the Ford. The court considered that statement in determining that the resisting arrest was a separate offense, and justified imposing a separate consecutive sentence on count two.

Defendant also argues that the court erred by not considering his substance-abuse problem as a mitigating factor. The court did consider defendant's substance abuse problem, but ultimately declined to find mitigating factor four, "substantial grounds tending to excuse or justify the defendant's conduct." N.J.S.A.2C:44-1(b)(4). Defendant presented no evidence during trial or at sentencing that he was under the influence of substances during the incident that may have affected his actions. The court's determination not to find factor four was reasonable.

We are satisfied that the reasons given by the trial court for finding three aggravating and no mitigating factors find ample support in the record and the length of defendant's sentence does not "shock the judicial conscience." SeeRoth, supra, 95 N.J.at 365.

Affirmed.