STATE OF NEW JERSEY v. RENARD V. WILSON

NOT FOR PUBLICATION WITHOUT THE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.

RENARD V. WILSON, a/k/a

WILSON RENARD,

Defendant-Appellant.

_______________________________________________________________

January 29, 2014

Submitted May 20, 2013 Decided

Before Judges Parrillo, Fasciale and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-07-1236.

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

Andrew C.Carey, ActingMiddlesex CountyProsecutor,attorney forrespondent (BrianD. Gillet,Special DeputyAttorney General/ActingAssistantProsecutor, ofcounsel; SusanL. Berkow,Special AssistantProsecutor. ofcounsel andon thebrief.

The opinion of the court was delivered by
 
MAVEN, J.A.D.
 

Following a jury trial, defendant Renard V. Wilson was found guilty of possession of a controlled dangerous substance (CDS); possession with intent to distribute a CDS; possession with intent to distribute cocaine within 1000 feet of school property; and possession with intent to distribute cocaine within 500 feet of a public building. The judge granted the State's motion to impose a mandatory extended term pursuant to N.J.S.A.2C:43-6(f), and sentenced defendant to a ten-year imprisonment term, with a five-year parole ineligibility. Defendant appeals from the judgment of conviction (JOC) dated August 9, 2010. We affirm.

I.

A grand jury charged defendant with two counts of third-degree possession of CDS cocaine, N.J.S.A. 2C:35-10a(1) (counts one and two); two counts of third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(3) (counts three and four); third-degree possession of the CDS cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(a) and -7 (counts five and six); and third-degree possession with intent to distribute the CDS cocaine within 500 feet of a public museum, N.J.S.A. 2C:35-5(a) and -7.1 (counts seven and eight1).

On May 8, 2008, New Brunswick Police Lieutenant Paul Schuster and two backup officers, Detectives Alexander and Maimone, conducted surveillance near the intersection of Remsen Avenue and Seaman Street. Schuster observed a tall, thin African-American male with long braids, wearing a bright blue hoodie, talking to a white male at the corner. The man with the braids took three small packets out of his mouth and put them in the white male's hand. The white male gave him cash and then walked away on Remsen Avenue. At Schuster's direction, Detectives Alexander and Maimone arrested the white male, later identified as Bobby Dumas. Alexander recovered four packets of cocaine from Dumas's pocket.

Meanwhile, Schuster provided the black male's physical description to Detectives Sabo and Abode who canvassed the area. Schuster testified that he initially thought the black male resembled another individual named Rodney Edison, who also wore braids and frequented that area. However, because he only saw the black male briefly and did not get a clear view of the seller's face, he did not sign a complaint against Edison. Instead, he decided to set up surveillance in the same area the following day hoping to see the seller again.

Alexander and Sabo interviewed Dumas at police headquarters. Sabo testified that he questioned Dumas and when asked about the black male that had sold him the cocaine, Dumas stated he had met him before but did not know his name. Dumas showed Sabo a telephone number appearing on his cell phone and indicated that it belonged to the black male. Alexander then wrote the number down. Upon Schuster's instruction, one of officers also showed Dumas a picture of Rodney Edison, and Dumas responded, "Yeah. Yeah. That's him."

On May 9, 2008, Schuster resumed surveillance but positioned himself closer to the intersection. At approximately 12:15 p.m., when Schuster saw a black male with braids and a bright blue hoodie, he "immediately thought [it] was the [individual] from the previous day" and recognized him as defendant, whom he knew by name. Schuster witnessed a group of individuals gather around defendant at the corner, and saw defendant remove packets from his mouth and exchange them for money at least five times. At trial, Schuster testified that there were so many exchanges he could not keep track of them. He also identified two buyers as David Martin and James Alston. Schuster immediately radioed Alexander and Maimone for backup.

Minutes later, Schuster witnessed defendant spit packets out of his mouth, count them, and place them back in his mouth. Defendant gave some bags to another man, who Schuster identified as Louis Jackson. Jackson and defendant began walking towards the corner of Lee and Remsen Avenues out of Schuster's view.

Alexander and Maimone, who also saw defendant at the corner of Lee and Remsen Avenues, quickly arrested him. Defendant attempted to swallow the packets, but the officers were able to force him to spit them out. The officers confiscated the packets, two marijuana cigarettes, a cell phone, and cash. Defendant provided his phone number, which matched the information Dumas provided the day before.

The packets, later identified as containing cocaine, matched the items seized from Dumas. Forensic scientist Lynn Crutchley testified that defendant's DNA matched the DNA found on the packets seized from defendant on May 9, 2008; however, she was unable to obtain a measurable amount of DNA from the May 8 packets found in Dumas's possession.

After trial the jury found defendant guilty on counts two, four, six, and eight, for the events that occurred on May 9, 2010. The jury acquitted defendant on the charges stemming from the events of May 8, 2010. The judge imposed an aggregate ten-year extended term with five years of parole ineligibility.2 This appeal follows in which defendant raises the following arguments:

I. DETECTIVE SCHUSTER TESTIFIED THAT DEFENDANT SIGNED A MIRANDA[3] CARD, AND THE COURT ADMITTED DEFENDANT'S SIGNED MIRANDA CARD INTO EVIDENCE AT THE STATE'S REQUEST, THUS HIGHLIGHTING DEFENDANT'S FAILURE TO TESTIFY AND REVEALING THAT DEFENDANT DID NOT GIVE A STATEMENT WHEN ARRESTED. THESE ACTIONS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI, XIV; N.J. CONSTI. (1947), ART. I, PARS. 1, 9, 10.) (Not Raised Below).

II. SINCE THE DEFENSE WAS BASED ON MISTAKEN IDENTIFICATION, IT WAS ERROR FOR THE COURT TO FAIL TO INSTRUCT THE JURY ON IDENTIFICATION. (Not Raised Below).

III. THE TRIAL JUDGE ERRED IN NOT ASKING THE JURORS IF FURTHER DELIBERATION WOULD HELP RESOLVE THEIR DEADLOCK, RESULTING IN A UNANIMOUS GUILTY VERDICT, WHICH WAS RETURNED AFTER THEY WERE SENT TO DELIBERATE FURTHER. (Not Raised Below).

IV. THE TEN-YEAR EXTENDED TERM SENTENCE, WITH A FIVE-YEAR PAROLE DISQUALIFIER, IS EXCESSIVE; THE NEED TO DETER WOULD HAVE BEEN SATISFIED BY A LESSER SENTENCE.

After reviewing defendant's arguments in light of the record and applicable legal principles, we are satisfied that none have merit.

I.

In Point I, defendant argues that testimony presented by the State, and the admission of defendant's Mirandacard into evidence, had the cumulative effect of denying him the protection of his right to post-arrest silence and his right to refuse to testify. We disagree.

The first reference to Mirandacards occurred during defendant's cross-examination of Schuster when he was asked to identify the items listed on Dumas's property receipt. Schuster testified that the receipt indicated "four bags of cocaine" and "one signed MirandaWarning card, Bobby Dumas." The next reference came from Alexander who testified that the items taken from defendant included his signed Mirandacard and the seized drugs, money, and cell phone. The property receipts were moved into evidence. Defendant contends that this testimony, along with testimony indicating that Dumas provided a statement to police, likely caused the jury to infer that defendant invoked his right to remain silent.

Aside from these references, the record does not demonstrate that the State ever used defendant's Mirandacard, or commented on a statement, or the absence of a statement, made by defendant during the trial. Defendant did not object to any of the testimony. Nor did defendant object to the admission of the property receipts into evidence.

We review arguments raised for the first time on appeal under the plain error standard. Under that standard, a conviction will be reversed if the error was "clearly capable of producing an unjust result." R.2:10-2. "Reversal of defendant's conviction is required only if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super.319, 336 (App. Div. 2008) (alteration in original) (internal quotation marks omitted). See alsoState v. Daniels, 182 N.J.80, 95 (2004).

"It is well-settled under federal and state law that a prosecutor may not use a defendant's post-arrest silence against him." State v. Taffaro, 195 N.J.442, 456 (2008). "Our state law privilege does not allow a prosecutor to use at trial a defendant's silence when that silence arises 'at or near' the time of arrest, during official interrogation, or while in police custody." State v. Muhammad, 182 N.J.551, 569 (2005). However, that privilege was not violated in this case.

Defense counsel's failure to object to the detective's statements suggests that counsel did not think the statements were unduly prejudicial. See 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). That inference is particularly applicable here, where defense counsel himself elicited the statements from Schuster on cross-examination.

We reject defendant's assertion that the State impermissibly elicited testimony that defendant signed a Mirandacard. The fleeting references to defendant's Mirandacard were made in the context of detailing the property found on defendant after his arrest. Although Alexander testified that during their discussion defendant provided his phone number, Alexander did not intend to elicit information regarding the street transaction. The State did not use defendant's silence in any way during the trial.

Nor is there any merit in defendant's claim that a jury could surmise from defendant's signed Mirandacard and Dumas's testimony that defendant had exercised his right to remain silent, or had made an incriminating statement that had been suppressed. On the contrary, Alexander's testimony, indicating that defendant provided his telephone number, negates any inference of silence the jury may have drawn from the Mirandacard. Under the circumstances, the references to defendant's Mirandacard did not constitute plain error, and were incapable of leading the jury to an unjust result. We reject defendant's demand for a new trial on this issue.

We also reject defendant's contention that the trial judge erred by failing to give a curative instruction warning the jury against drawing an inference of guilt from defendant's post-arrest silence. At trial, the court engaged in an extensive colloquy during which the court advised defendant that as a result of his decision not to testify, the court could either instruct the jury that they are not to view his silence negatively, or the court could remain silent as to his decision not to testify. Defendant chose the latter and no charge regarding his decision was read to the jury.

"Under that settled principle of law, trial 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)) (internal quotation marks omitted). "[I]f a party has invited the error, he is barred from raising an objection for the first time on appeal." Ibid.(internal quotation marks omitted) (citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.328, 342 (2010)). We conclude that under the invited error doctrine, defendant's trial decision precludes him from urging reversal on appeal.

II.

We now turn to address defendant's contention that the court erred by failing to charge the jury, sua sponte, on identification. Defendant contends that because identification was the major thrust of his defense, this omission constitutes plain and reversible error.

It is well-settled that appropriate and proper jury charges are essential for a fair trial in a criminal case. State v. Reddish, 181 N.J.553, 613 (2004). When a defendant identifies an error in the charge, we must evaluate the charge in its entirety. State v. Figueroa, 190 N.J.219, 246 (2007). Although a flawed jury charge is a poor candidate for rehabilitation or the application of the harmless error rule, State v. Simon, 79 N.J.191, 206 (1979), a defendant must still demonstrate that the error affected the outcome of the jury's deliberations. State v. Jordan, 147 N.J.409, 422 (1997).

Here, defendant did not request any jury instruction on identification, nor did he object to its omission at trial. Therefore, the court's failure to give this instruction requires reversal only if its omission constituted plain error. State v. Gaines, 377 N.J. Super.612, 623 (App. Div.), certif. denied, 185 N.J.264 (2005). "The determination of [whether the omission of this instruction constitutes] plain error depends on the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument is convincing." State v. Cotto, 182 N.J.316, 326 (2005). See alsoState v. Salaam, 225 N.J. Super.66, 70 (App. Div.), certif. denied, 111 N.J.609 (1988). When such evidence is overwhelming, the failure to give an identification instruction does not constitute reversible error. Cotto, supra, 182 N.J.at 327.

At trial, defendant raised a mistaken identity defense. The jury determined that there was insufficient evidence to convict defendant for the May 8 charges, which involved Dumas. The record demonstrates, on the other hand, that the State presented stronger evidence that defendant was the perpetrator in the May 9 transactions. First, Schuster testified that he clearly recognized defendant and provided defendant's location and physical description to the other officers. Shortly thereafter, Alexander and Maimone witnessed defendant in the same location wearing the same distinctive blue hoodie. The man they arrested had three cocaine bags in his mouth and was later identified as defendant. Finally, the State's most compelling evidence was Crutchley's testimony that defendant's DNA, taken from the cocaine bags in his mouth, matched the evidence seized on May 9. Based on the totality of this evidence, we conclude the issue of identification was not compelling, consequently, the court's omission of the unrequested charge was not clearly capable of producing an unjust result.

III.

Defendant argues he was denied a fair trial, after the jury announced that it was deadlocked, when the judge failed to ask the jury whether further deliberations would be fruitful. Although defendant acknowledges that the Model Jury Charge on Further Jury Deliberations was properly given, he claims the failure to inquire whether such a charge was warranted or even useful was error. The claim has no merit.

The jury began deliberating at 12:10 p.m. on March 12. At 4:12 p.m. the jury sent a note stating they were deadlocked and asked how to proceed. The judge noted to counsel that the jury had only been deliberating for about three hours, taking into account lunch and other breaks, and stated:

I'm not inclined to accept a deadlock or a verdict. I'll bring them back, at this juncture, on Monday. My inclination is to let them go home now, and tell them to come back on Monday morning, and resume their deliberations, and not to discuss the case. And see where we go from there. If they continue, in that vain, on Monday, I think then I'll have a better idea of how I'm going to proceed. Okay.

Neither the State nor defendant objected. Thereafter, the judge brought the jurors into the courtroom and informed them as follows:

[T]he attorneys and I have discussed your question, ladies and gentlemen. And what we would like for you to do is, for you to stop your deliberations for the day, and ask you to return on Monday, and resume your deliberations.

Hopefully, you can give us more information as to what exactly you need. Or we can give you more information, as to how you should proceed. . . .

When the jury returned on Monday, March 15, 2010, the judge read the Model Jury Charge on Further Jury Deliberations.4 The jury deliberated for less than an hour and found defendant guilty on counts two, four, six, and eight.

We review defendant's contention in light of the plain error standard. R. 2:10-2. Before declaring a deadlock, a trial judge has the discretion to require a jury to deliberate for a reasonable period of time. Figueroa, supra, 190 N.J.at 221, 235; State v. Czachor, 82 N.J.392, 407 (1980). "What constitutes a reasonable amount of time is influenced by the length of the trial and the complexity" of the issues. State v. Hightower, 146 N.J.239, 258 (1996).

It is clear from the record before us that the foreperson never indicated an actual deadlock such that a unanimous verdict would be impossible. The foreperson declared only that the jury was deadlocked with respect to count four. There was no indication in the record that the jury had even begun deliberating as to the other counts. Also, because the jury had only been deliberating for a few hours and because there were several other counts to consider, we find no error in the judge's failing at that juncture to delve further into the foreperson's declaration. While trial courts generally should ask a deadlocked jury if further deliberations will result in a verdict, "it is not always necessary . . . to do so." Figueroa, supra, 190 N.J.at 240.

Moreover, it also appears that the foreperson was not voicing an objection to further deliberations, but merely inquiring as to the next step in the process. The court's comments did not push the jury toward the verdict by suggesting they would not be discharged. See, e.g., Figueroa, supra, 190 N.J. at 227 (holding that a comment that the court would be there "as long as it takes to go through this process" was coercive).

We perceive no abuse of discretion or coercion by asking the jurors to return for more deliberations the next day.

IV.

We turn to defendant's final argument that his sentence is excessive. Although defendant acknowledges that his prior convictions required an extended term sentence, he contends the judge failed to articulate appropriate findings to support the length of the base term and the need to impose a period of parole ineligibility greater than one third, as required by statute. We disagree. A review of the record clearly demonstrates that the trial judge recounted defendant's extensive criminal history, use and distribution of illegal drugs, and lack of employment history. We are satisfied the ten year term of imprisonment, with five years of parole ineligibility, was clearly justified under N.J.S.A.2C:43-6(f). We will not second-guess the judge's sentencing analysis. State v. Bieniek, 200 N.J.601, 612 (2010); State v. Kirk, 145 N.J.159, 175 (1996).

Accordingly, we affirm the conviction and sentence. However, we remand in order to delete reference in the JOC to a conviction on count three and to amend count eight as a second-degree offense.

Affirm the sentence and conviction but remand for correction of the JOC.

1 The court granted the State's motion to amend the Indictment to modify counts seven and eight from third- to second-degree offenses. The JOC incorrectly denotes third-degree.

2 The JOC incorrectly reflects a guilty verdict on count three, as this count had been dismissed.

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

4 Model Jury Charge (Criminal), "Further Jury Deliberations" (1994).