STATE OF NEW JERSEY v. JUQUAN WALKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5625-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUQUAN WALKER,

Defendant-Appellant.

____________________________________________________

August 19, 2014

 

Argued March 18, 2014 Decided

 

Before Judges Messano and Lisa.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 10-10-2488, 10-10-2491, 10-12-2848.

 

Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Hubbard, of counsel and on the brief).

 

Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney, Mr. Pogany, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Juquan Walker was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count two); fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(b)(12) (count three); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (count five); second-degree possession of a firearm while in the course of committing certain drug offenses, N.J.S.A. 2C:39-4.1 (count six); and the lesser-included disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count seven). The judge imposed an aggregate sentence of fifteen years imprisonment, with an eight-year period of parole ineligibility.1

Before us, defendant raises the following arguments:

POINT I:

 

The introduction of law enforcement testimony from a witness not qualified as an expert in fingerprint analysis that the tape found on the handle of a gun was placed to prevent the retrieval of fingerprints, was highly prejudicial and left the jury to attribute uncharged crimes, wrongs, or acts to the defendant, in contravention of the principles enunciated in N.J.R.E.403 and N.J.R.E.404 and denied the defendant his right to due process and a fair trial. U.S. Const.Amends V, VI and XIV; N.J. Const. (1947) Art. I, Pars. 1, 9 and 10) (Not raised below)

 

POINT II:

 

The prosecutor's incorrect statement of the law during summation concerning what constitutes distribution, coupled with the trial court's failure to provide an instruction as to the actual definition of distribution left the jury without the proper tools to determine guilt or innocence and deprived walker of a fair trial. U.S. Const. amends. V, Vi and Xiv; N.J. Const. (1947) Art. I, Pars. 1, 9 and 10. (Not raised below)

 

POINT III:

 

Because possession of marijuana is a lesser-included offense of possession of marijuana with the intent to distribute, the trial court committed error in not charging it as a lesser-included offense and denied the defendant his constitutional rights to due process and a fair trial. U.S. Const.Amends. V, VI and XIV; N.J. Const. (1947), Art. I, Pars. 1, 9, and 10. (Partially raised below)

 

POINT IV:

 

The prosecutor improperly vouched for the credibility of police witnesses, suggesting to the jury that they were credible because of their status as law enforcement, and thereby, denying Walker a fair trial. U.S. Const.Amends. V, VI and XIV; N.J. Const. (1947), Art. I, Pars 1, 9 and 10. (Not raised below)

 

POINT V:

 

The trial court's denial of defendant's motion for an evidentiary hearing to determine the existence of video evidence and subsequent refusal to provide the jury with a Clawans2charge about the state's failure to present that evidence denied the defendant his right to due process and a fair trial. U.S. Const. Amends. V, VI and XIV; N.J. Const. (1947), Art. I, Pars 1, 9 and 10. (Raised below)

 

POINT VI:

 

The cumulative impact of the errors denied defendant a fair trial. (Not raised below)

POINT VII:

 

Defendant's sentence is manifestly excessive, unduly punitive and not in conformance with the code of criminal justice.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

Officers Patrick Carroll and John Berardi of the Port Authority Police Department were working in the camera room at Newark Penn Station on August 25, 2010. At approximately 8:50 p.m., they observed defendant and two other individuals jump over the turnstiles which separate the Port Authority Trans-Hudson (PATH) and New Jersey Transit (NJT) sides of the train platform. Berardi noted that defendant was carrying a backpack. After seeing defendant and his companions enter a PATH train, the officers left the camera room and approached the three men to issue summonses for failure to pay the fare.

Defendant claimed to be seventeen years old, but, when Carroll told defendant that, based on the birthdate defendant supplied, he was eighteen, defendant pushed Carroll and fled. The officers gave chase through the turnstiles and onto the NJT platform. As defendant ran, he threw the backpack onto the empty NJT tracks.

Carroll pursued defendant until he ran into a closed set of doors, whereupon the two collided. Defendant resisted Carroll's efforts to place him under arrest. Berardi joined the fray, and defendant was eventually subdued. Carroll walked onto the tracks and retrieved the bag that defendant had thrown. Inside was some cash, toothbrushes, clothing, a hand gun, twenty-four bags of marijuana, ten packets of cocaine and three separate vials of cocaine. Defendant's companions were never located.

Defendant was transported to the hospital by emergency medical personnel. He was treated for a laceration above his left eye and a contusion. Defendant did not testify and no defense witnesses were called.

 

 

 

II.

At trial, the jury watched Port Authority surveillance camera footage showing defendant, with the black bag on his back, jump over the PATH turnstile without paying. Later, defendant was shown, still carrying the bag, with Carroll and Berardi in pursuit. This footage was supplied to defendant in pre-trial discovery.

Before jury selection began, defense counsel noted that defendant had filed a pro se motion "seeking a hearing to determine if there was any additional surveillance video[,] what happened to it[,] and why that was not preserved and turned over" in discovery. The prosecutor acknowledged defense counsel's prior request to "look into" whether there was "any other video of this incident." The prosecutor told the judge, "I looked in to it. And . . . when I turned over additional discovery to the defense, I noted there's no other video of this pursuit." The judge denied defendant's request to hold a hearing, adding "[w]e'll see where [cross-examination] takes us when the officers testify."

The testimony at trial revealed that there were six security cameras on the Port Authority side of the platform, one over each turnstile. A single camera on the NJT side of the platform was focused on the ticket vending machines. It suffices to say that Carroll, Berardi and Port Authority Detective Sargeant Daniel McCabe acknowledged they personally made no attempts to secure any video footage from the NJT camera.

As the State rested and the evidentiary exhibits were being reviewed, defense counsel requested an adverse inference charge, based on the State's failure to produce any other video footage. He claimed that the two brief snippets of video in evidence failed to show defendant actually jumping back over the turnstiles, and failed to show what happened to defendant's two cohorts.

The prosecutor objected, noting "there's no other video of the pursuit. The Port Authority gave us what they had . . . ." The prosecutor added that since the incident continued on the NJT side, the police did not "have access to" any video, although he noted that McCabe's testimony explained there was only one NJT camera and it focused solely on the fare machines. The prosecutor stated, "[w]e provided everything that was saved or given to us from the Port Authority."

The judge denied defendant's request, reasoning that defendant failed to show other footage "exist[ed] that somehow ha[d] not been produced." Although there may have been six cameras focused on the PATH turnstiles, the judge failed to see "what else could have been produced that would have been relevant to the issue." In particular, he found that footage of defendant's two companions, if it existed, was not relevant to the case. The judge concluded that the "factors that would constitute a failure to produce charge" did not apply and Clawans was "distinguishable."

In Point V, defendant argues that the judge erred in denying his pre-trial request for a hearing regarding additional video footage and in failing to give a Clawans charge. Defendant surmises that other footage must have existed showing defendant jumping back over the turnstile, as Carroll and Berardi claimed. He also argues that the State had the duty to investigate whether any relevant NJT footage existed and, if so, supply it in discovery.

A party's failure to produce a witness at trial may give rise to an inference that the witness' testimony would have been unfavorable to that party. Clawans, supra, 38 N.J. at 170. The court may provide an adverse inference instruction if:

 

(1) . . . the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue [;] and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.

[State v. Hill, 199 N.J. 545, 561 (2009) (quoting State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985)).]

 

In this case, of course, defendant sought an adverse inference charge based not upon the State's failure to call a witness, but rather upon the State's purported failure to produce other video footage. Assuming for the moment that such footage ever existed, on the record presented, defendant failed to meet the predicate requirements set forth in Hill.

As to the first two Hill factors, defendant was fully able to investigate the video surveillance capabilities on NJT's side of the track and subpoena any video produced by NJT's camera. He could have produced a witness from NJT who might have disputed what was otherwise undisputed in the record, i.e., that the sole NJT camera focused only on the fare machines and not on the platform in general. This type of information was not peculiarly within the possession of the State, or an agency whose "special relationship" with the prosecutor would make it less available to defendant. As to factors three and four, the record fails to reveal the existence of any video footage, much less that it was likely to elucidate "relevant and critical facts in issue," or that it was superior to the footage actually shown to the jury or to the testimony of the officers.

Defendant makes a broader argument. He contends that the prosecutor simply relied upon what the Port Authority Police furnished, and the State's efforts to investigate whether other footage existed, secure it and provide it in discovery were inadequate. See e.g., Kyles v. Whitley, 514 U.S. 419, 436-37, 115 S. Ct. 1555, 1567-1568, 131 L. Ed. 2d 490, 508-509 (1995) (noting that "the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf, including the police"); State v. Womack, 145 N.J. 576, 589 (1996) ("[E]vidence, which was clearly known to the principal investigating agent, is properly considered to be within the knowledge of the prosecutor[.]")(citing Kyles, supra, 514 U.S. at 436-37, 115 S. Ct. at 1567-68, 131 L. Ed. 2d at 508-09).

We generally agree that at various points in these proceedings, the prosecutor seemingly believed he had no obligation to provide anything in discovery other than what had been supplied to his office. However, there is nothing in the record to support defendant's supposition that other footage existed. Even if it did, the failure to produce the footage would not necessarily be a Brady3 violation.

In State v. Mustaro, 411 N.J. Super. 91, 96-97 (App. Div. 2009), the defendant sought to withdraw his guilty plea based upon the late discovery that a police officer's dashboard videotape was not supplied by the State and had since been destroyed. We held that, when evidence is no longer available, in order to establish a violation of due process, a defendant must demonstrate that the evidence had "'apparent' exculpatory value" and comparable evidence could not reasonably be obtained, or, if the prosecutor destroyed the evidence in bad faith, that the evidence was "'potentially'" exculpatory. Id. at 102-03 (quoting Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281,289 (1998)).

While defendant in this case has not asserted a Brady violation, our holding in Mustaro has relevance with respect to the prosecutor's obligation to supply discovery, and whether defendant is entitled to a remedy if the prosecutor fails to adequately perform his duty. In this case, there was no assertion that the prosecutor, acting in bad faith, destroyed other video footage. There was nothing to demonstrate that the footage, if it existed at all, was of "apparent exculpatory value." In short, on the record that exists, defendant was not entitled to a further evidentiary hearing on the issue or an adverse inference charge.

III.

A.

McCabe took possession of the gun Carroll and Berardi recovered from defendant's bag. The grip of the gun was wrapped in layers of tape that was removed to expose the gun's serial number. Detective Randolph Root of the Essex County Prosecutor's Office, an expert in fingerprint examination, was unable to find fingerprints on the weapon or on the tape removed from its grip. Root opined that "mishandling" the weapon ripping the tape off without gloves, handling the weapon without gloves, or pulling the tape off in a reckless manner "could [a]ffect the ability to retrieve any prints . . . ."

Captain Dennis Hultay, supervisor of the Ballistics Unit and Detective Bureau of the Essex County Sheriff's Office, testified as a ballistics expert and stated that although the gun was in poor condition, it was operable. When asked where tape had been located on the gun, Hultay responded:

Traditionally it's on the grip. . . . They . . . do it ever since the "Godfather" movie where an assassin would essentially put it on the grip. The rationale is it's supposed to not . . . leave fingerprints on the tape. Or you would take the tape off afterwards and discard it.

 

There was no objection.

In Point I, defendant argues Hutlay's comments constitute plain error requiring reversal because 1) he was not qualified as a fingerprint expert; and 2) the testimony impugned defendant's character by permitting the jury to infer he was a violent person prone to criminal behavior. We reject all the counter arguments advanced by the State as to why the evidence was admissible. Nevertheless, while Hutlay's comments were improper, they did not amount to plain error.

As the Court has said:

[A] trial is not a perfectly scripted and choreographed theatrical presentation; rather, it is an extemporaneous production whose course is often unpredictable given the vagaries of the human condition. Attorneys will sometimes pose inartfully crafted questions, and even the most precise question may bring an unexpected response from a witness. In any trial, "inadmissible evidence frequently, often unavoidably, comes to the attention of the jury."

 

[State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v. Winter, 96 N.J. 640, 646 (1984).]

 

"[W]hen inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was 'clearly capable of producing an unjust result.'" Id. at 397-98 (quoting R. 2:10-2). Hutlay's comments about the "Godfather" movie and the use of tape by an "assassin" to make recovery of fingerprints more difficult were fleeting and do not

"'raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J 442, 454 (2008) (quoting State v. Macon, 53 N.J. 325, 336 (1971)). The argument requires no further discussion. R. 2:11-3(e)(2).

B.

The prosecutor said the following during his summation:

You're going to hear the law from the Judge. He's going to tell you when it comes to possession with the intent to distribute a controlled dangerous substance, it doesn't matter if you['re] going to sell it, or hand it off to someone, or share it. That is possession with the intent to distribute a controlled dangerous substance.

 

[(emphasis added).]

 

Additionally, in responding to defense counsel's exhortation that the jury "question right from the beginning whether [the officers are] telling the truth about how this took place," the prosecutor stated: "when an officer who's been an officer for [nine] to [twelve] years tells you something, you have to judge their credibility. But to corroborate that we actually have the video."

Although neither comment provoked an objection at trial, defendant now contends that both were improper and require reversal. He argues that the prosecutor misstated the law when he told the jury that sharing drugs with another was tantamount to possession with intent to distribute, and, at the least, the judge should have provided a carefully tailored charge consistent with State v. Morrison, 188 N.J. 2, 20 (2006) (holding that parties who "simultaneously and jointly acquired possession of the drugs for their own use, intending only to share it together, . . . cannot be charged with the crime of distribution"). Defendant contends that the prosecutor's second comment improperly suggested that certain officers were credible given their length of time on the force. We disagree.

The prosecutor did not misstate the law regarding possession with intent to distribute. See State v. Heitzman, 209 N.J. Super. 617, 620-21 (App. Div. 1986), aff'd, 107 N.J. 603 (1987) (defendant's admission that in addition to personal use, he intended to share the marijuana with friends was adequate basis for charge of possession with intent to distribute). Moreover, the facts of this case are entirely distinguishable from those presented in Morrison, supra, so as to negate any need by the judge to tailor a charge regarding joint possession.

The prosecutor's reference to the officers' years of experience, although unnecessary, does not require reversal, particularly since the prosecutor immediately followed by telling the jurors they must judge the officers' credibility for themselves. The remark responded to a defense theme, and "it is extremely unlikely that th[e] comment[] could have affected the integrity of the jury verdict." State v. Jackson, 211 N.J. 394, 413 (2012).

C.

Defendant argues the judge should have given a charge on simple possession of marijuana as a lesser-included offense under count three of the indictment. Although he did not request the charge, or object to the actual charge as given, defendant contends that his motion for a judgment of acquittal, made and denied at the end of the State's case, was tantamount to such a request. He therefore argues we should not apply plain error analysis to this contention. We disagree.

To be sure, defendant's motion for a judgment of acquittal was based upon the sufficiency of the State's proofs regarding intent to distribute marijuana. However, in what may have been a strategic decision, defendant never asked the judge to charge simple possession. "Because defendant failed to object to the instruction at trial and raised it for the first time on appeal, we consider this issue under the plain error rule." State v. Torres, 183 N.J. 554, 564 (2005) (citing R. 2:10-2).

In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.

[State v. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

 

"If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J.157, 182 (2012) (citing State v. Macon, supra, 57 N.J.at 333-34).

Absent a defendant's specific request that the jury be charged on lesser-included offenses, a trial court has the independent obligation to issue such an instruction "'when the facts adduced at trialclearly indicate that ajury could convict on the lesser while acquitting on the greater offense.'" State v. Rivera, 205 N.J. 472, 489 (2011) (quoting State v.Thomas, 187 N.J.119, 132 (2006)). The court has no duty to issue a sua sponte charge if the evidence "'does not clearly indicate or warrant such a charge.'" Ibid.(quoting Thomas, supra, 187 N.J.at 132.) "[T]he notion that the facts must "'clearly indicate the appropriateness' of the jury instruction is paramount"; the court is not obligated to "'meticulously . . . sift through the entire record in every trialto see if some combination of facts and inferences might rationally sustain a[n unrequested] charge.'" Id.at 490 (quoting Thomas, supra, 187 N.J.at 134) (alteration in original).

In this case, we apply the "clearly indicated" standard. The evidence demonstrated that defendant was carrying a backpack-type bag that contained a gun, twenty-four separately packaged bags of marijuana, ten packets of cocaine and three additional vials of cocaine. But for a single sentence directed to the lack of evidence that defendant possessed these drugs with the intent to distribute, defense counsel's entire summation focused on the lack of corroboration of the officers' testimony through surveillance footage. Looking at the record as a whole, we cannot conclude that the judge had the obligation

to sua sponte charge simple possession of marijuana because that lesser-included offense was "clearly indicated" by the evidence.4

IV.

At sentencing, the judge found aggravating factors three, six and nine. See N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); (6) (the seriousness of the offenses for which defendant had been convicted; and (9) (the need to deter). He found no mitigating factors.

After merging count one, possession of cocaine, into count two, possession of cocaine with intent to distribute, the judge imposed a five year term of imprisonment with a three-year period of parole ineligibility. On count six, possession of a firearm during the commission of a drug offense, the judge imposed a consecutive ten-year sentence with a five-year period of parole ineligibility. The judge imposed maximum terms on the remaining counts, but made them concurrent to the sentence imposed on count six. In short, the judge imposed an aggregate sentence of fifteen years imprisonment with eight years of parole ineligibility. Before us, defendant contends the sentence is manifestly excessive and unduly punitive.

"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "'competent credible evidence in the record.'" Ibid. (quoting State v. Bieniele, 200 N.J. 601, 608 (2010)). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid.(quoting State v. O'Donnell, 117 N.J.210, 215 (1989)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J.334, 364 (1984) (citation omitted); accordState v. Cassady, 198 N.J.165, 183-84 (2009).

Defendant does not challenge the judge's finding of aggravating factors three, six or nine. Rather, defendant argues that the judge should have found mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (the extreme hardship imprisonment would cause defendant's dependents).

Defendant's grandmother submitted a letter to the trial judge indicating she depended upon defendant to help her shop, attend doctor's appointments and pay her bills. However, defendant argues that the judge should have focused his attention on the hardship incarceration would cause to defendant's four-year old daughter. In this regard, the pre-sentence investigation report reveals that defendant's daughter actually resided with her mother, and that defendant was $7930 in arrears on his support obligations. These facts do not support a finding of mitigating factor eleven.

We conclude that the judge did not mistakenly exercise his broad discretion in imposing sentence in this case.

Affirmed.

 

 

1 The same jury returned a guilty verdict on the single count of a second indictment that charged defendant with second-degree possession of a firearm by a convicted person, N.J.S.A. 2C:39-7(b). Prior to being sentenced, defendant pled guilty to a single count of a third indictment charging him with second-degree burglary, N.J.S.A. 2C:18-2. The judgments of conviction and sentences imposed on those indictments are not challenged on appeal.

2 State v. Clawans, 38 N.J. 162 (1962).

3 Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215, 218 (1963) (the failure to disclose or preserve exculpatory evidence violates a defendant's due process rights).

4 Based upon our foregoing discussion, defendant's contention in Point VI that the cumulative effect of these error requires reversal lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).