STATE OF NEW JERSEY v. ANTHONY O'NEAL

NOT FOR PUBLICATION WITHOUT THE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.

ANTHONY O'NEAL, a/k/a ANTHONY

D. O'NEAL,

Defendant-Appellant.

__________________________

December 15, 2015

Argued November 17, 2015 Decided

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-12-1772.

Peter Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief).

Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).

PER CURIAM

Defendant Anthony O'Neal was convicted by a jury of third-degree possession of a controlled dangerous substance (CDS) with intent to distribute in a school zone, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a), third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1), and possession of CDS, N.J.S.A. 2C:35-10(a)(1). After merger, he was sentenced to seven years in prison, three years to be served without parole. On this appeal, defendant challenges his conviction, asserting that his Confrontation Clause rights were violated by certain trial testimony and that the trial judge erred in responding to two notes from the jury during deliberations. Finding no merit in any of those arguments, we affirm.

I

We will discuss the pertinent trial events when we address defendant's appellate arguments. We briefly summarize the trial evidence as background. In response to complaints from residents about narcotics activity in the area, Detective Alexander was conducting surveillance of a rooming house on High Street in New Brunswick.1 Sergeant Quick and Detective Walcott were acting as his back-up unit. While conducting surveillance, Alexander observed defendant and another man, later identified as Mr. Griffin, engaging in conduct which a jury might conclude constituted the illicit sale of drugs. During one transaction, Alexander saw defendant hand another man an object which resembled a bundle of heroin,2 and he saw the man give defendant money in return. During this surveillance, Alexander periodically reported his observations of defendant to his back-up team, and asked them to attempt to apprehend the purchasers.

Alexander then saw defendant and three companions walk over to a black car. He observed defendant put a cigarette pack in the car's trunk, enter the vehicle, and begin driving away. Alexander alerted the back-up unit, who stopped the car and obtained defendant's voluntary consent to search it.

In the trunk of the car, the police found a pair of boots. Inside one of the boots, they discovered a cigarette pack containing eighty-five small bags of heroin each bearing the stamp "STOP SNITCHING." After giving defendant Miranda3warnings, but before telling defendant that they had found the cigarette pack, the police showed defendant one of the boots and asked him whose boots were in the trunk; defendant responded that they were his boots. The State presented expert testimony that the eighty-five bags of heroin, packaged and stamped as they were, would have been intended for sale rather than personal consumption.

On cross-examination, Alexander admitted that defendant did not live at the rooming house. He also stated that his surveillance was not focused exclusively on the rooming house, but on the area around it as well.

In his testimony, Detective Walcott described the role of the back-up team as obtaining information from Alexander, and trying to arrest the suspected buyers whom Alexander described. Walcott explained that, if the arrested buyers had drugs in their possession, then the back-up unit would also arrest the suspected seller. Walcott also explained that after he and Sergeant Quick stopped the black car, they arrested defendant because, at a minimum, he had been observed loitering for the purpose of selling drugs.

II

On this appeal, defendant presents the following points of argument for our consideration

I. A NEW TRIAL SHOULD BE GRANTED BECAUSE THE CONFRONTATION CLAUSE WAS VIOLATED BY TESTIMONY THAT THE POLICE SURVEILLANCE WAS TARGETING O'NEAL, THEREBY SUGGESTING THAT THE POLICE HAD PRIOR REPORTS ABOUT O'NEAL'S WRONGDOING FROM OUT-OF-COURT DECLARANTS. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART, I, PARA. 10.

II. A NEW TRIAL SHOULD BE GRANTED BECAUSE THE COURT COMMITTED PLAIN ERROR IN INADEQUATLEY [SIC] RESPONDING TO JURY NOTES. U.S. CONST. AMEND. XIV; N.J. CONST. ART, I, PARA. 1 (NOT RAISED BELOW).

A. The Court Committed a Major Gaffe in Failing to Respond to the Jury Request for the Eyewitness Detectives' Testimony.

B. Upon Receiving a Request for a Definition of Possession, the Court Should Not Have Merely Marked the Relevant Portion of the Jurors' Written Instructions, but Should Have Clarified Whether the Jurors Wanted More.

Defendant's first argument arises in this context. During his testimony, Detective Walcott explained that the back-up unit was parked a few blocks away from High Street. He testified that he "never set eyes on" High Street or the rooming house on that day; Alexander "was the only one [who] was anywhere near [High Street]" on the day of the surveillance. On cross-examination, Walcott testified that his unit's role was to protect Alexander in case he was "located[,] spotted or placed in a [dangerous] situation" and "to locate a buyer." Defense counsel then asked Walcott "you're only there to work as backup for [Alexander], to work with him? . . . You're not working two jobs?" Walcott responded, "We're working off of him. Our sole purpose is there for [the rooming house on] High Street, Griffin and O'Neal."

There was no defense objection to that testimony. However, after Walcott's testimony was over, defense counsel moved for a mistrial. He argued that the testimony about the unit's "sole purpose" being for the rooming house, Griffin and O'Neal, implicitly violated a pre-trial agreement between the State and the defense that the State would not inform the jury that the surveillance was based on a report from a confidential informant. Defense counsel argued that the jury would construe Walcott's testimony to mean that the police based their surveillance decision on undisclosed, incriminatory information about defendant.

In response, the prosecutor argued that taken in context, the jury would understand that defendant and Griffin were targeted for investigation after Alexander saw them "engaging in suspected drug activity." The trial judge agreed that there was no prejudice to the defense "given the context in which the words were used." The judge offered to give the jury a cautionary instruction to be sure they did not misconstrue the testimony, but defense counsel did not ask for a curative instruction.

On this appeal, defendant repeats his argument that the trial court should have declared a mistrial. The applicable standard is well established

The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice. An appellate court should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence. Thus, an appellate court will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice.

[State v. Harvey, 151 N.J. 117, 205 (1997) (citations omitted), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).]

As in the trial court, defendant argues that his Confrontation Clause rights were violated, because the jury would have construed Walcott's testimony as implying that some unknown informant told the police that defendant was selling drugs. See State v. Bankston, 63 N.J. 263, 268-69 (1973). "[W]hen the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule. Moreover, the admission of such testimony violates the accused's Sixth Amendment right to be confronted by witnesses against him." Ibid. (citations omitted). We agree with the State that Bankston is inapplicable here because the jury would not have drawn any inadmissible inference from Walcott's testimony. We find no abuse of discretion in the trial judge's decision to deny defendant's mistrial motion.

Defendant next contends that the judge erred in responding to jury questions. The jury first asked: "Please provide copies of police reports and, if possible, Officer Alexander and Officer Walcott's testimony." The jury's note was sent to the court late in the afternoon, after defendant was no longer in the courthouse. In that context, the judge observed that a read-back of testimony could not be accomplished that day. See State v. Miller, 205 N.J. 109, 123 (2011) (read-backs of testimony must "take place in open court with all parties present").

In response to the judge's question, defense counsel agreed that the jury should be told that the police reports were not in evidence, and the jury should be asked if they wanted "to stay." Defense counsel specifically stated that the judge should "[h]ave them continue deliberating," and the judge did so.

A few minutes later, the jury sent out another question asking for the definition of "possession." With the agreement of both counsel, the judge sent in to the jury the written definition of "possession" from the jury charge. The judge then asked both attorneys if they wanted him to excuse the panel until the following Tuesday, because it was then "quarter to five" on the "Friday before a three-day weekend." Both attorneys agreed, but at that moment, the jury sent out a note indicating that they had reached a verdict.

Defendant now contends, for the first time on appeal, that the judge should have directed a read-back of the detectives' testimony before allowing the jury to continue deliberating. He also argues, again for the first time on appeal, that the judge "should have clarified whether the jurors wanted more than the model definition" of possession. We conclude that both arguments are barred by the doctrine of invited error; however, even if we consider the arguments we find no plain error, and the contentions are without sufficient merit to warrant further discussion. See R. 2:11-3(e)(2); State v. Munafo, 222 N.J. 480, 487 (2015); State v. Robinson, 200 N.J. 1, 19-20 (2009).

Affirmed.

1 To avoid compromising the privacy of the residents, we describe the location as a rooming house rather than giving its exact address on High Street.

2 Alexander explained that a "bundle" generally consists of ten small envelopes of heroin held together with a rubber band.

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