STATE OF NEW JERSEY v. JAVIN A. WARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0801-13T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAVIN A. WARD,

Defendant-Appellant.

__________________________________

December 1, 2015

Submitted November 16, 2015 Decided

Before Judges Fasciale and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 11-10-0127.

Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

 
PER CURIAM

Defendant appeals from his convictions for second-degree conspiracy to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2, and N.J.S.A. 2C:35-5b(2); second-degree distribution of CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2); second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2); and third-degree possession of CDS, N.J.S.A. 2C:35-10a(1). We affirm.

This case involves approximately seven controlled buys between defendant and an undercover detective (the detective). Defendant moved to dismiss the indictment arguing that the prosecutor impermissibly testified before the grand jury and failed to properly define the elements of the crimes, which the judge denied. A judge and jury tried defendant over four days. We discern the following facts from the evidence adduced at trial.

The officers received information from a reliable informant that defendant had been selling drugs. After speaking to the informant, the officers had the informant call defendant, while the detective listened to the conversation on a speaker phone, and set up a meeting between the detective and defendant. The detective and the informant traveled to defendant's home, defendant invited the detective inside the residence, and the detective purchased four bags of cocaine from defendant. The detective transmitted his conversation with defendant to the surveilling officers using a Blue Tooth1 device. After completing the transaction, the detective traveled to a predetermined location and delivered the cocaine to the case agent officer.2

Approximately five days later, the detective called defendant, returned to defendant's house, and purchased more cocaine. The surveillance team listened to the drug transaction using the Blue Tooth device. Once again, the detective proceeded to a predetermined location and delivered the cocaine to the case agent officer.

Approximately one week after the second transaction, defendant engaged in a third cocaine transaction with the detective. This time, they met in the parking lot of a Staples and completed the transaction while sitting in the detective's vehicle. The surveillance team listened to the conversation between defendant and the detective.

Two weeks later, the detective purchased more cocaine from defendant. The detective met defendant at his place of employment and then traveled to defendant's home. At defendant's residence, defendant made a call to obtain the quantity of drugs requested by the detective, and later that day, defendant sold cocaine to the detective, albeit in a lesser amount than what the detective initially requested.

Approximately one week later, another drug transaction occurred. The detective contacted defendant requesting more cocaine. That night, they met at a Wendy's where the detective purchased more cocaine from defendant.

Within the next few weeks, the detective contacted defendant to purchase more cocaine. They met at least two more times. Defendant sold the detective approximately two additional ounces of cocaine.

The jury convicted defendant of committing the drug-related offenses. After the appropriate mergers, the judge imposed an aggregate five-year prison term with the appropriate fines and penalties.

On appeal, defendant raises the following arguments

POINT I

THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT'S REQUEST TO HAVE THE JURY INSTRUCTED THAT IT COULD DRAW AN UNFAVORABLE INFERENCE AGAINST THE STATE FOR FAILING TO PRODUCE THE TESTIMONY OF THE INFORMANT.

POINT II

THE PROSECUTOR MADE REMARKS ON SUMMATION WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below).

POINT III

THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BECAUSE OF THE PROSECUTOR'S FAILURE TO PROVIDE DEFINITIONS FOR STATUTORY ELEMENTS AND HER MISCONDUCT IN HER GRAND JURY PRESENTATION WAS ERRONEOUS.

I.

We begin by addressing defendant's contention that the judge erred by denying his request for an adverse-inference charge.

Our Supreme Court has defined the adverse-inference charge in the criminal context to be

analogous to the spoliation inference which may be drawn when evidence has been concealed or destroyed in civil cases. The spoliation inference[,] like the adverse-inference charge[,] allows a jury in the underlying case to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her.

[State v. Dabas, 215 N.J. 114, 140 n.12 (2013) (citation and internal quotation marks omitted).]

An adverse-inference instruction is considered a sanction for the violation of a discovery rule, and we review legal issues related to the use of discovery sanctions de novo. Id. at 131-32. "[I]f the trial court had the legal authority to give the adverse-inference charge, we must then answer whether the trial court abused its discretion in not doing so." Id. at 132; see also State v. Marshall, 123 N.J. 1, 134 (1991) (indicating that "[t]he choice of sanctions appropriate for discovery-rule violations is left to the broad discretion of the trial court"), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). We have defined abuse of discretion to mean that "the trial court's decision must be so wide of the mark that a manifest denial of justice resulted." State v. Scherzer, 301 N.J. Super. 363, 424 (App. Div.), certif. denied, 151 N.J. 466 (1997). We conclude the judge did not abuse his discretion.

In State v. Clawans, 38 N.J. 162 (1962), our Supreme Court addressed whether an adverse-inference charge should be given to a jury for failure to call a witness at trial. The Court explained that "[g]enerally, failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him." Id. at 170. However, "such an inference cannot arise except upon certain conditions . . . ." Ibid.

The Court, in State v. Hill, 199 N.J. 545 (2009), explained that "[w]hen making a determination about a Clawans charge, a court must demonstrate [31] that it has taken into consideration all relevant circumstances by placing, on the record, findings on each of the following[]"

(1) that 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.

[Id. at 561 (alteration in original) (quoting State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986)).]

The judge analyzed each prong, properly concluding that defendant was not entitled to an adverse-inference charge.

As to the first prong, the judge found that the informant was not "peculiarly within the control or power" of the State because the defendant knew the informant and had a relationship with him. In fact, during the first drug transaction, the informant introduced the detective and defendant at defendant's residence.

As to the second prong, there is no indication in the record that the informant was unavailable to the State. However, the judge found that if "defendant contemplated use of the [informant], there's no indication that any effort was made to get the [informant]. By that I mean disclose the name[.]" It is undisputed that defendant did not ask the State to produce the witness.

As to the third prong, the judge correctly found that even had the informant testified, he or she would not have elucidated critical facts. There is no indication that the informant observed the first drug transaction. Moreover, the informant did not witness the subsequent drug transactions between the detective and defendant. Thus, there is little beyond mere conjecture to suggest that the informant's testimony would reveal relevant and critical facts. The judge properly concluded that "the State would [not] be expected [to call the informant as a witness], nor do I think the witness would be one that would be expected to be here at trial or to be used during this trial."

As to the fourth prong, there is no evidence in the record to suggest that the informant's testimony would have been superior to the evidence produced by the State. Defendant did not produce any evidence indicating that the informant was a witness to any of the drug transactions. At most, the informant provided the police with information that led to the investigation. Without any evidence that the informant was involved in the transaction or even witnessed it, the judge was within his discretion in finding that the fourth prong was not met.

II.

Defendant contends for the first time that the assistant prosecutor's remarks in summation amounted to misconduct and deprived him of a fair trial.

We apply the plain error standard here because defendant did not object at trial. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). We conclude there was no error, let alone plain error.

"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). For prosecutorial comments "[t]o justify reversal, the prosecutor's conduct 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) (alteration in original) (citations and internal quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Furthermore, "[t]he failure to object [at trial] suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Frost, supra, 158 N.J. at 84. Defendant's failure to raise an objection in the face of prosecutorial misconduct "also deprives the court of an opportunity to take curative action." Ibid.

Applying these well-settled standards, we conclude that the assistant prosecutor's conduct was not so egregious as to deprive defendant of a fair trial.

Here, certain comments by the prosecutor "were prompted by comments in the summation of defense counsel." State v. Smith, 212 N.J. 365, 404 (2012), cert. denied, __ U.S. __, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). For example, defense counsel on summation introduced the theme of "arrogance." Defense counsel stated

And why? Why didn't [the officers search the detective]? There's no real explanation as to why they didn't do it. The only thing that I heard from the last witness is something to the effect of well, we don't search policemen. Really? Really? You know, I'm sorry to be sarcastic but, really? Why? Why not? It's easy. Turn your pockets inside out, it takes what a minute and, then, you're done. Don't you find that a little arrogant? Don't you find that a little troubling that all three witnesses, basically said, well we don't search policemen.

And, you know, I'm sorry, but even the way the last witness said it contained, I submit to you, a little arrogance even in the way he said it. Well, we don't search policemen.

. . . .

[W]hy didn't they do it? I don't know. I mean the only explanation is arrogance. Well, everybody is just going to believe a cop who sits down and says something.

[(emphasis added).]

The prosecutor responded to defense counsel's reference to the arrogance of the officers by stating

[T]he issue here before you[ is] whether the defendant distributed cocaine to an [u]ndercover [d]etective . . . . And to believe that all these seven buys that had occurred, all ten face to face interaction[s] didn't happen is to say that three detectives took the stand, took an[] oath and made up this big story. They made up a story to such [] a high level [of] detail as they did in this. And I ask you does that make sense to you? . . . . Does it correlate with your everyday life experiences as they've mentioned?

The assistant prosecutor stated "[y]ou want to talk about arrogance? That's arrogance."

III.

After carefully considering the record and the briefs, we conclude that defendant's remaining argument, that the judge erred by denying defendant's motion to dismiss the indictment, is "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2). We add the following brief remarks.

"Grand-jury proceedings are presumed valid, and defendants bear the burden of proving prosecutorial error." State v. Triestman, 416 N.J. Super. 195, 204 (App. Div. 2010). Generally, "[a]n indictment should be disturbed only on the clearest and plainest ground." State v. Perry, 124 N.J. 128, 168 (1991) (citation and internal quotation marks omitted). Thus, "[i]ncomplete or imprecise grand-jury instructions do not necessarily warrant dismissal of an indictment; rather, the instructions must be blatantly wrong." Triestman, supra, 416 N.J. Super. at 205 (citation and internal quotation marks omitted). The "decision whether to dismiss an indictment lies within the discretion of the trial court," and the judge's finding will not be disturbed unless there has been a clear abuse of discretion. State v. Hogan, 144 N.J. 216, 229 (1996). We conclude there was no abuse of discretion here.

Defendant argues that the assistant prosecutor failed to define knowledge, purpose, possession, dispensing and distribution. A prosecutor need only read the relevant statutes to the grand jury, which is what occurred here. See State v. Laws, 262 N.J. Super. 551, 562 (App. Div.) (rejecting the defendant's argument that the New Jersey Constitution required the prosecutor to read verbatim the applicable statutes and provide a "recitation of all legal elements of each charge"), certif. denied, 134 N.J. 475 (1993). This court has made clear that even "incomplete or imprecise legal interpretations will not warrant dismissal of the indictment." Ibid.

Defendant maintains that the assistant prosecutor made improper remarks during the grand jury proceedings. "The prejudicial effect of prosecutorial conduct must be judged from a different viewpoint when it occurs before a grand jury as compared with a petit jury" in that "a chance remark or improper question before a grand jury does not affect the ultimate determination of the defendant's guilt and therefore should not be judged with as critical an eye." State v. Schamberg, 146 N.J. Super. 559, 563 (App. Div.), certif. denied, 75 N.J. 10 (1977). "Unless the prosecutor's misconduct before a grand jury is extreme and clearly infringes upon the jury's decision-making function, it should not be utilized as a stepping stone to dismissal of an indictment." Id. at 564.

We have previously explained that

while a prosecutor may assist the grand jury in [a] general manner . . . he may not participate in its deliberations, or express his views on questions of fact, or comment on the weight or sufficiency of the evidence, or in any way attempt to influence or direct the grand jury in its findings -- rather, the grand jury must act independently of any outside source.

[State v. Hart, 139 N.J. Super. 565, 567-68 (App. Div. 1976).]

Here, the judge properly found that the assistant prosecutor's comments regarding defendant's possession of CDS merely reiterated testimony from a detective during the proceeding. She did not infringe on the grand jury's fact-finding role, or impermissibly testify before the grand jury. It is well-settled that a prosecutor may explain "the testimony with reference to the law of the case." Id. at 567.

Affirmed.

1 At trial, the detective explained that the device was placed in his ear and was connected to a cell phone in his pocket, which allowed him to transmit the conversation over an "open line" to the other officers conducting surveillance outside the residence.

2 The case agent officer explained at trial that an officer serving as a case agent is responsible for all reports, evidence collection, and "buy money" to purchase narcotics.