STATE OF NEW JERSEY v. JOHN WHITE
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5241-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN WHITE,
Defendant-Appellant.
___________________________________
Submitted March 6, 2018 – Decided March 22, 2018
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
12-12-1811.
Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel V. Gautieri, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant appeals from his convictions of second-degree
unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b); third-degree
possession of a controlled dangerous substance (CDS),
N.J.S.A.
2C:35-10(a)(1); third-degree possession with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(3); third-degree
possession with intent to distribute within 1000 feet of school
property, N.J.S.A. 2C:35-7; third-degree possession of
prescription legend drugs with intent to distribute,
N.J.S.A.
2C:35-10.5(a)(3); and second-degree possession of a firearm while
possessing CDS with intent to distribute,
N.J.S.A. 2C:39-4.1.
An officer on patrol observed defendant's vehicle and
defendant's friends surrounding it, while defendant was in a liquor
store. He used his in-car computer to check the vehicle's license
plate, and determined the vehicle was stolen. He testified at
trial that he subsequently learned the car was not stolen. The
officer radioed for backup and after other officers arrived, they
converged on defendant's car with their guns drawn.
The officers secured the scene and asked all individuals to
step away from the vehicle while keeping their hands visible.
Defendant alerted the officers that he owned the vehicle. An
officer then conducted a pat-down search of defendant and
discovered marijuana and eleven dollars in his pants pocket.
Officers arrested numerous individuals at the scene and
transported the group to the police station. A loaded handgun was
found in the vehicle. Upon further inspection, a detective found
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sixty-eight Xanax pills in a backpack in the trunk. Defendant was
searched incident to arrest after he arrived at the police station
and an officer found eight decks of heroin and $616.
A grand jury indicted defendant, and his co-defendants,
including Barbara Hinson (Hinson) and Tanaya Hepburn (Hepburn),
on second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-
5(b) (Count One); and third-degree receiving a stolen automobile,
N.J.S.A. 2C:20-7 (Count Two).
Defendant was also indicted on third-degree possession of
CDS,
N.J.S.A. 2C:35-10(a)(1) (Count Three); third-degree
possession with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(3) (Count Four); third-degree possession with
intent to distribute within 1000 feet of school property,
N.J.S.A.
2C:35-7 (Count Five); fourth-degree possession with intent to
distribute,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(12)
(Count Six); third-degree possession with intent to distribute
within 1000 feet of school property,
N.J.S.A. 2C:35-7 (Count
Seven); third-degree possession of prescription legend drugs with
intent to distribute,
N.J.S.A. 2C:35-10.5(a)(3) (Count Eight);
second-degree possession of a firearm while possessing CDS with
intent to distribute,
N.J.S.A. 2C:39-4.1 (Count Nine); and third-
degree receiving stolen property,
N.J.S.A. 2C:20-7 (Count Eleven).
3 A-5241-15T1
At defendant's jury trial, Hepburn testified about a
conversation she had with defendant regarding how defendant
acquired the gun found in his vehicle. Hepburn testified that
defendant said he received the gun from his cousin. Defendant's
counsel cross-examined Hepburn, asking specifically about the
validity of defendant's statement and whether she testified to
such information for a favorable plea agreement from the State.
Hinson also testified at trial regarding defendant's
possession of the gun. She testified that defendant admitted
ownership of the gun while in the holding cell on the night of the
arrests. Hinson further testified that she received a text message
from defendant stating he would admit ownership of the gun so the
other co-defendants' charges would be dropped.
At trial, the judge granted the State's motion to dismiss
Counts Two and Eleven. The judge also granted defendant's motion
for a judgment of acquittal on Counts Six and Seven. The jury
found defendant guilty on the remaining six charges.
The judge merged Counts Three and Four with Count Five, and
sentenced defendant to five years with three years of parole
ineligibility. The judge sentenced defendant on Count Nine to
five years with three years of parole ineligibility to be served
consecutively with Count Five. The judge further sentenced him
on Count One to five years with three years of parole
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ineligibility, and on Count Eight to three years; each to be served
concurrently to his other convictions.
On appeal, defendant argues:
POINT I
BECAUSE THE PROSECUTOR POSED A HYPOTHETICAL
QUESTION DESIGNED TO ELICIT AN OPINION THAT
[DEFENDANT] POSSESSED DRUGS WITH THE INTENT
TO DISTRIBUTE AND THE STATE'S NARCOTICS EXPERT
TESTIFIED ON THE ULTIMATE ISSUE OF
[DEFENDANT'S] STATE OF MIND, THE EXPERT
INVADED THE JURY'S EXCLUSIVE DOMAIN AS
FACTFINDER AND THE STATE'S FACT EVIDENCE WAS
IMPROPERLY BOLSTERED. (Not raised below.)
POINT II
THE PROSECUTOR COMMITTED MISCONDUCT IN
VOUCHING FOR THE CREDIBILITY OF A WITNESS
WHOSE TESTIMONY WAS CONTRADICTED BY ANOTHER
STATE'S WITNESS, USING INFORMATION THAT WAS
NOT BEFORE THE JURY TO CREATE THE
MISIMPRESSION THAT THEIR STORIES COULD BE
RECONCILED. (Not raised below.)
POINT III
BECAUSE THE STATE FAILED TO PROVIDE A PROPER
FOUNDATION FOR SECONDARY EVIDENCE THAT
[DEFENDANT] SENT AN INCULPATORY TEXT MESSAGE
TO CO-DEFENDANT HINSON, THE COURT ERRED IN
ADMITTING HER TESTIMONY REGARDING THE ALLEGED
CONTENTS OF THAT MESSAGE. BUT EVEN IF THE
EVIDENCE COULD BE CONSIDERED BY THE JURY, THE
COURT ERRED IN FAILING TO PROVIDE A LIMITING
INSTRUCTION. (Not raised below.)
POINT IV
THE COURT ERRED IN FAILING TO PROVIDE JURORS
WITH THE MODEL CHARGE ON STATEMENTS OF
DEFENDANT. (Not raised below.)
POINT V
THE MATTER SHOULD BE REMANDED FOR RESENTENCING
BECAUSE THE JUDGE INTENDED TO IMPOSE THE
5 A-5241-15T1
MINIMUM SENTENCE ON THE SCHOOL-ZONE DRUG
OFFENSE BUT ERRONEOUSLY IMPOSED A SENTENCE
THAT EXCEEDED THE MINIMUM BY TWO YEARS. (Not
raised below.)
Each of defendant's arguments are raised for the first time
on appeal. We review these arguments for plain error. R. 2:10-
2. "Any error or omission shall be disregarded by [this court]
unless it is of such a nature as to have been clearly capable of
producing an unjust result . . . ." Ibid. In a jury trial, the
possibility of such an unjust result must be "sufficient to raise
a reasonable doubt as to whether the error led the jury to a result
it otherwise might not have reached." State v. Macon,
57 N.J.
325, 336 (1971). Defendant carries the burden of showing plain
error. State v. Morton,
155 N.J. 383, 421 (1998). We address
each of defendant's arguments in turn.
First, defendant contends that the companion cases, State v.
Cain,
224 N.J. 410 (2016) and State v. Simms,
224 N.J. 393 (2016),
should be applied retroactively to his case. The Court in Cain,
224 N.J. at 429-30, held that the use of a hypothetical question
"should be used only when necessary in drug cases" and should not
be utilized when the evidence presented before the jury is
uncomplicated and easily understood. Furthermore, the Court
established that it is improper for a drug expert to opine as to
a defendant's state of mind. Id. at 426-29. Here, defendant
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appeals the use of a hypothetical question and the expert's opinion
in light of Cain and Simms.
Lieutenant Steven Weitz (Weitz) testified as a drug expert
at trial. The prosecutor posed the following hypothetical question
to him:
Let's suppose we have some police
officers in the evening hours in the area
that's known as a high crime and drug
trafficking area. They come across an
individual. This individual is found to be
in possession of – I'd call it a smaller
quantity of heroin, less than ten packets of
heroin. Along with the heroin he's got a
significant quantity of cash in various
denominations, over $500 I'd say. Those are
stored together in a bag that's in his pocket.
Alongside those there is a loose $20 bill
outside of the bag with the heroin and the
money. In addition, this individual is later
found to also be in possession of some
marijuana, [and] some additional cash in other
pockets of his pants . . . . At that point do
you have any opinion as to whether that heroin
is possessed for personal use or for
distribution purposes?
Weitz then offered his expert opinion that such a person usually
possesses such an amount of heroin and money with the intent to
distribute. He further testified about the typical packaging for
various quantities of heroin. The packaging Weitz described
resembled the packaging that police discovered in defendant's
possession.
7 A-5241-15T1
We first address whether Cain and Simms apply to defendant
retroactively. This court addressed the retroactive effect of
Cain and Simms in State v. Green,
447 N.J. Super. 317, 327-29
(App. Div. 2016). We held that the new rule of law expressed in
Cain and Simms applies through "pipeline retroactivity," meaning
it applies to those cases on direct appeal at the time Cain and
Simms were decided, and those in the future. Id. at 326-28.
Defendant was tried in December 2014 and sentenced in June
2016. The delay in sentencing was a result of defendant's motion
for a new trial, which he filed in January 2015.1 The judge did
not decide the motion until March 2016 due to defendant's request
for new counsel. Cain and Simms were both decided in March 2016
when defendant had not yet appealed his convictions. Defendant
is not entitled to rely on the holdings of Cain and Simms because
he is not within the scope of pipeline retroactivity. This matter
was not on direct appeal at the time of the Court's decisions.
Cain and Simms are inapplicable to defendant's case.
The prosecutor's hypothetical question and the State's expert
opinion were in accordance with State v. Odom,
116 N.J. 65 (1989),
which preceded Cain and Simms. There is no violation "as long as
the expert does not express his opinion of defendant's guilt but
1
Defendant does not argue that the delay prejudiced him, or was
caused by either the court or the State.
8 A-5241-15T1
simply characterizes defendant's conduct based on the facts in
evidence in light of his specialized knowledge, the opinion is not
objectionable even though it embraces ultimate issues that the
jury must decide." Id. at 79. The use of a hypothetical question
is also permitted to assist the jury so long as the expert does
not express his or her view that a defendant is guilty. Id. at
82.
We find no error in the expert's testimony at trial in light
of the Court's pre-Cain and Simms standards expressed in Odom.
Weitz's opinion did not express his view that defendant was guilty,
and the judge explained to the jury that it may accept or reject
his expert opinion in making its determination. Defendant has
failed to show that such testimony amounted to plain error
requiring the reversal of his convictions.
Next, defendant contends that the prosecutor committed
misconduct in his summation to the jury. Defendant asserts that
the prosecutor attempted to reconcile Hepburn's and Hinson's
testimonies regarding who was in the car when defendant drove from
Highland Park to New Brunswick on the night of the arrests.
Defendant contends the prosecutor's summation, which told the jury
that each witness's account could be reconciled if it considered
the statements that were made to the police two and a half years
earlier, vouched for the State's witnesses.
9 A-5241-15T1
We determine prosecutorial misconduct by considering "(1)
whether defense counsel made timely and proper objections to the
improper remarks; (2) whether the remarks were withdrawn promptly;
and (3) whether the court ordered the remarks stricken from the
record and instructed the jury to disregard them." State v. Frost,
158 N.J. 76, 83 (1999). If no objections were made to the remarks
at trial, they will generally not be deemed prejudicial. Ibid.
The failure to object to such remarks "also deprives the court of
an opportunity to take curative action." Id. at 84. "A prosecutor
may argue that a witness is credible, so long as the prosecutor
does not personally vouch for the witness or refer to matters
outside the record as support for the witness's credibility."
State v. Walden,
370 N.J. Super. 549, 560 (App. Div. 2004).
Hinson and Hepburn provided conflicting testimony as to who
was in defendant's car, and defendant seeks to attack their
credibility and the prosecutor's remarks because both women also
testified about defendant's ownership of the gun. Defendant,
however, failed to object to the prosecutor's statements at trial.
The judge directed the jury to weigh the witnesses' testimonies
and examine each's credibility, as it sought fit, in making its
decision. Regardless of defendant's failure to object, there
exists sufficient evidence in the record to support the jury's
finding of guilt.
10 A-5241-15T1
Although the prosecutor may have inappropriately made
statements regarding the witnesses' credibility during his
summation, they were not "so egregious that it deprived [him] of
a fair trial." Frost,
158 N.J. at 83. We find no plain error.2
Next, defendant argues the judge erred by failing to conduct
an N.J.R.E. 104(a) hearing to determine whether proper foundation
was laid for the admission of Hinson's testimony regarding a text
message from defendant; and erred by failing to charge the jury
with a limiting instruction regarding that evidence.
Hinson testified at trial that she and defendant communicated
through text message following their arrests. She testified that
defendant admitted to owning the gun and stated that he would
admit ownership so no other co-defendant would be charged. The
State did not produce a copy of the message because Hinson
testified that she lost the telephone containing the message.
Defendant failed to object to the testimony about the evidence
at trial. He also failed to request an evidentiary hearing until
his motion for a new trial, and even then only challenged its
relevance to the case in light of the message's prejudicial value.
In a separate opinion dismissing defendant's motion for a new
2
During this appeal's pendency, defendant moved to supplement
the record. Another panel of the court reserved, leaving it for
this panel to decide. We grant defendant's motion to supplement.
11 A-5241-15T1
trial, the judge determined that the use of the testimony regarding
the text message was prejudicial to defendant, but its relative
value outweighed that concern.
Additionally, the text message was not the only testimony
that Hinson gave in regard to defendant's ownership of the gun.
Hinson also testified to a conversation with defendant in the
holding cell when he admitted to owning the gun. Thus, there is
sufficient evidence in the record for the jury to have ultimately
decided that defendant owned the gun. Any error regarding Hinson's
testimony was harmless and defendant has failed to show plain
error.
Next, defendant asserts that the judge erred in failing to
charge the jury with the model jury instruction on statements of
defendant. Defendant contends that the judge erred when she failed
to charge the jury in accordance with State v. Hampton,
61 N.J.
250 (1972), and State v. Kociolek,
23 N.J. 400 (1957). Defendant
contends that Hepburn's and Hinson's testimonies regarding
defendant's statements admitting to own the gun warranted the
specific instruction.
The failure to provide the charge in question does not
necessarily constitute plain error. State v. Jordan,
147 N.J.
409, 425 (1997). However, the failure to provide such a charge
may be reversible "when the defendant's statement is critical to
12 A-5241-15T1
the State's case and when the defendant has challenged the
statement's credibility." Ibid. "If, however, the defendant's
statement is unnecessary to prove defendant's guilt because there
is other evidence that clearly establishes guilt, . . . the failure
to give a Hampton charge would not be reversible error." Id. at
425-26.
During the preliminary charge conference, the judge discussed
the jury charge concerning Hepburn's and Hinson's testimonies.
The judge did not propose the jury instruction in Hampton, however,
defendant's counsel did not object to the judge's proposed charge.
Defendant's counsel also failed to object to the charge after
being provided a copy of the charge. After the judge read the
jury charge, she asked counsel if either required a sidebar
meeting, and both declined.
Although the judge did not provide the specific instruction
outlined in Hampton, the judge did charge the jury with examining
both witnesses' testimonies with "special scrutiny." The judge
instructed the jury to independently assess each witness's
testimony, and determine credibility. She further explained to
the jury, "you may consider whether [the witnesses] have a special
interest in the outcome of the case, and whether their testimony
was influenced by the hope or expectation of any favorable
treatment or reward, or by any feelings of revenge or reprisal."
13 A-5241-15T1
The judge's instruction captured the same information as a Hampton
charge and alerted the jury to the same credibility issues. Thus,
defendant failed to show plain error in the jury charge.
Lastly, defendant contends that the judge erred at sentencing
by imposing a five-year minimum sentence in connection with
defendant's conviction of Count Five, possession with intent to
distribute within 1000 feet of school property,
N.J.S.A. 2C:35-
7(a). At trial, the judge recognized that defendant should be
sentenced to the mandatory minimum sentences for each conviction
because defendant had mental-health issues and the gun was not
used in the incident. Defendant argues that the minimum sentence
should have been three years, rather than the five-year sentence
imposed.
A violation of
N.J.S.A. 2C:35-7(a) is a third-degree crime,
and carries a minimum sentence of three years. Thus, the judge
incorrectly applied the minimum sentence for defendant's
conviction and erred in sentencing defendant on the school-drug
related offense.
Defendant's convictions are affirmed, except we remand for
resentencing in accordance with this opinion. We do not retain
jurisdiction.
14 A-5241-15T1
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