Opinion
DOCKET NO. A-3582-09T1
09-10-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. QUADIR GRAHAM, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-12-4002.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Quadir Graham, appeals his conviction, following a jury trial, on one count of third-degree possession of heroin, N.J.S.A. 2C:35-10a(1). The jury acquitted defendant of third- degree conspiracy to possess with intent to distribute heroin, N.J.S.A. 2C:5-2; third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1); and third-degree possession of heroin with intent to distribute it within 1000 feet of school property, N.J.S.A. 2C:35-7. The trial judge sentenced defendant as a persistent offender, N.J.S.A. 2C:44-3a, to seven years in prison with a three-year period of parole ineligibility.
On appeal, defendant raises the following contentions for our consideration.
POINT I — THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S ARGUMENT THAT HIS WITNESSES WOULD JEOPARDIZE THEIR POLICE CAREERS BY LYING. (Not Raised Below).
POINT II — THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF OTHER-CRIME EVIDENCE. (Not Raised Below).
A. THE EVIDENCE WAS IMPROPERLY ADMITTED.
B. THE TRIAL COURT FAILED TO PROVIDE THE JURY WITH A
PROPER LIMITING INSTRUCTION AS REQUIRED BY THE LAW.POINT III - THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED A HIGHLY PREJUDICIAL OPINION THAT THE DEFENDANT WAS RUNNING AN ILLICIT DRUG BUSINESS. (Not Raised Below).
POINT IV — THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNFAIRLY PREJUDICIAL EVIDENCE. (Not Raised Below).
1. THE STATE PROFFERED EVIDENCE SUGGESTING THAT THE POLICE WERE CONDUCTING A GANG INVESTIGATION EVEN THOUGH THERE WAS NO EVIDENCE THAT THE DEFENDANT WAS CONNECTED WITH ANY GANGS.POINT V — THE SENTENCE IS EXCESSIVE.
2. THE STATE IMPROPERLY RELIED ON EVIDENCE THAT THE DEFENDANT WAS SITUATED IN A HIGH NARCOTICS TRAFFICKING AREA TO PROVE THAT HE WAS INVOLVED IN THE DRUG TRADE.
A. THE IMPOSITION OF A DISCRETIONARY PERSISTENT
OFFENDER EXTENDED TERM SHOULD BE VACATED.
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS, AND ERRONEOUSLY IMPOSED A PERIOD OF PAROLE INELIGIBILITY.
C. THE COURT IMPERMISSIBLY MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
Having considered defendant's arguments in light of the applicable legal principles, we affirm the conviction and remand for resentencing.
I.
The record reveals that the State adduced the following facts at trial. Detective Lance Garcia testified that he was a member of the Newark Police Department Gang Unit and on the evening of August 30, 2007, he was working with three other detectives, conducting surveillance from an unmarked vehicle with tinted windows. Garcia, sitting in the front passenger seat and using binoculars, observed defendant and his co-defendant, Pamplin, exchanging currency. An unknown man then approached the suspects, engaged in a brief conversation, and handed defendant paper currency. Defendant then reached into his left rear pocket and removed a clear plastic bag containing an unidentified item. He gave the plastic bag to the unknown man, who then walked away. The detectives did not investigate that man.
The officers pulled up next to defendant and Pamplin and then got out of their vehicle, displaying their badges and announcing their presence as police officers. Defendant reached in his pocket and tossed a plastic bag on the ground. The officers recovered the bag, which had a substance that appeared to be heroin. Defendant and Pamplin were placed under arrest, and a search of Pamplin's person turned up fifteen decks of what appeared to be heroin. Later testing confirmed that the substance found on Pamplin's person and thrown away by defendant was heroin.
During the trial, the prosecutor asked Garcia why the unidentified male was not arrested. Detective Garcia responded, "We wanted to go after the dealers. We don't, I don't really want to go after a buyer. If you get a buyer then we've still got the dealers back there. Once you leave they'll come back out. — their business [sic]." Defense counsel did not object to this statement.
Detective Morgan, who testified that he was also a member of the Newark Police Department gang unit and was working with Garcia that day, confirmed Garcia's story. When asked why the officers chose to survey that particular area, he stated, "We normally go into areas which are high violent areas, high narcotic areas, areas inhabited by gang members who are pretty much in control of narcotic distribution schemes in that area."
The State also introduced the testimony of Detective Holloway, who was qualified without objection as an expert in the field of narcotics investigation at the street level. He explained street terms for drug sales and, in answer to a hypothetical question, opined that individuals behaving like defendant and Pamplin could be involved in hand-to-hand drug transactions.
Defense counsel, in his summation, repeatedly alluded to Garcia's dishonesty and called him "cocky" and "smug." For instance, counsel stated, "[i]t's not about the truth, I submit to you, with Detective Garcia." Later, he accused Garcia of having an "agenda in this case. . . . His agenda is to come in here and tell his little tale." Further, he declared, "[t]ruth doesn't mean anything to [Garcia]."
During his summation, the prosecutor asked the jury, "why would he take that risk [of lying] for these two defendants. That he would risk essentially his career, if you will, by potentially . . . falsifying records. Ask yourself that." Defense counsel made no objection to this statement.
At sentencing, the prosecutor argued that defendant should receive an extended term as a persistent violator based on defendant's five prior convictions, including two for possession of controlled dangerous substances (CDS) with intent to distribute. After considering aggravating and mitigating factors under N.J.S.A. 2C:44-1, the judge found that the aggravating factors substantially outweighed the mitigating factors, and granted the State's application for an extended term pursuant to N.J.S.A. 2C:44-3a. As a result, the judge sentenced defendant as a persistent offender to seven years in prison with a three-year period of parole ineligibility.
II.
Defendant argues that the prosecutor committed reversible error by vouching for the credibility of the police officers because a prosecutor may not suggest to a jury that police witnesses will suffer penalties if they are not telling the truth. State v. Staples, 263 N.J. Super. 602, 605-06 (App. Div. 1993). Defendant further claims that, since this case rested heavily on the credibility of the officers, this remark was highly prejudicial and his conviction must be vacated. The State distinguishes Staples because in that case, rather than a single reference in a summation, the prosecutor asked an officer a number of questions to elicit his understanding of the law of perjury. Id. at 606-07. Additionally, the State counters that defendant must show plain error because defense counsel did not object at trial, R. 2:10-2, and the prosecutor's comment did not produce an unjust result.
While a prosecutor's statements in summation are not without limits, so long as the prosecutor stays within the evidence and makes reasonable comments based on legitimate inferences that can be drawn from the evidence, he is entitled to wide latitude. State v. R.B., 183 N.J. 308, 330 (2005); State v. Carter, 91 N.J. 86, 125 (1982). Nevertheless, a prosecutor may not express a personal belief about a witness's veracity, or suggest that a police officer would suffer penalties if a jury does not believe his or her testimony. State v. Marshall, 123 N.J. 1, 154 (1991). See also State v. Vasquez, 374 N.J. Super. 252, 261-62 (App. Div. 2005); State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994).
"We review the challenged portions of a prosecutor's summation in the context of the entire summation." Vasquez, supra, 374 N.J. Super. at 262. "Prosecutors are permitted to respond to arguments raised by defense counsel as long as they do not stray beyond the evidence." Id. at 260 (quoting State v. Morais, 359 N.J. Super. 123, 131 (App. Div.), certif. denied, 177 N.J. 572 (2003)). Indeed, the court "must take into account defense counsel's 'opening salvo.'" Morais, supra, 359 N.J. Super. at 133.
Moreover, improper comments alone do not necessarily dictate reversal. Id. at 131. Rather, the statements should be viewed in the overall context of the trial to determine whether a defendant was denied a fair trial. Ibid. In State v. Frost, 158 N.J. 76 (1999), the Supreme Court devised a three-part test for this analysis:
Specifically, an appellate court must consider (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. Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action.
[Id. at 83-84 (emphasis added) (internal citations omitted).]
Here we conclude that defendant's argument, when reviewed in context, must be rejected. The prosecutor made one reference to the absence of a motive for Garcia to lie, after a barrage of statements by defense counsel strenuously attacking the detective's credibility. We find it significant that defense counsel did not object, suggesting that it did not appear at the time to be harmful to defendant. Ibid. Under the plain error rule defendant must show that the error is "clearly capable of producing an unjust result" for this court to reverse his conviction. R. 2:10-2. We find that the prosecutor's statement did not meet the plain error test.
III.
Next, defendant argues that Garcia, in explaining why he did not arrest the unknown man who interacted with defendant and Pamplin, improperly referred to defendant's "business," thereby suggesting that defendant would continue his illicit activities. Defendant argues that this testimony constituted a violation of N.J.R.E. 404(b), which prohibits the use of propensity evidence. Defendant argues that even if there was a legitimate reason to offer proof of defendant's "business," the State was obliged to request a limiting instruction but failed to do so.
The State maintains that "the entire discussion of N.J.R.E. 404(b) is inapposite" because the State did not introduce the testimony as other crimes evidence for the purpose of showing that defendant committed the present crime. Rather, the prosecutor asked these questions because a major part of the defense strategy was to insinuate that the detectives fabricated the story about the unknown man since it did not make sense that the detectives did not arrest him. The State was responding to defense assertions which cast doubt on their entire testimony.
N.J.R.E. 404(b) reads:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
Based upon our review of the record, we are not persuaded of defendant's premise that Garcia's reference to his arrest strategy in drug operations constituted evidence of other crimes showing defendant's propensity to sell or possess drugs. Rather, the statement concerned Garcia's motive for not apprehending the unknown man, with no reference made to defendant. Defense counsel vigorously cross-examined Garcia concerning the unknown man, implying that the man never existed. Thus, defendant had a fair opportunity to present this theory of defense.
Even if this comment was error, defendant failed to object at the time, meaning that the plain error standard governs this analysis. The possibility of reaching 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). Here, where the jury acquitted defendant of the distribution charges, we are not persuaded that an unjust result occurred.
Defendant also contends that Garcia's statement about "business" was improper lay opinion testimony that defendant was running a drug business. We are not persuaded that Garcia's testimony violated the lay opinion evidence rule. N.J.R.E. 701. Pursuant to the Rule, police officers are permitted to testify as lay witnesses based on their personal observations and experience in areas where expert testimony might be necessary. State v. LaBrutto, 114 N.J. 187, 198 (1989). To admit lay opinion evidence, the trial judge must determine that the witness's opinion is rationally based on his or her personal experience or perception and that the testimony will help the jury understand the rest of the witness's testimony or the case in general. Id. at 198. See State v. McLean, 205 N.J. 438, 456 (2011); State v. Bealor, 187 N.J. 574, 586 (2006).
We do not agree that Garcia gave lay opinion testimony in explaining the reason he did not arrest the unknown man, particularly because it was an issue the defense made important. He was not testifying from a perception based upon his observation and experience, but merely stating his rationale for not making an arrest. Simply put, Garcia never testified that he believed defendant was operating a drug business, nor did he state he believed defendant was a drug dealer. Even if a belief that defendant was a dealer could be inferred from Garcia's statement, defense counsel did not object, and we do not perceive any plain error here. The jury did not convict defendant of possession with intent to distribute heroin. Therefore, any evidence that defendant was operating a business did not prompt the jury to find him guilty of distribution.
Defendant argues that the testimony of detectives Morgan and Garcia that they were investigating the area where he was arrested because it was known for gang activity and violence, and the statements identifying themselves as members of the "gang unit," were so prejudicial to defendant as to require a new trial. We find this argument without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). We add only the following comments.
Evidence that a criminal defendant is a gang member is often prejudicial because the average juror would likely conclude a gang member has engaged in criminal activity. State v. Goodman, 415 N.J. Super. 210, 227-28 (App. Div. 2010), certif. denied, 2 05 N.J. 78 (2011). However, statements made by two detectives that they belong to the Newark Police Department gang unit have little potential for prejudice. In the context of this case, where membership in a gang was not an issue, gangs were not a focal point of the charges, no allegation was made that defendant was a gang member, and defense counsel did not object, we find no error occurred, let alone plain error.
Defendant's argument that the officers' testimony concerning setting up surveillance in a "high crime" and "violent" neighborhood was reversible error is also without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).
IV.
Next, defendant argues that his sentence was excessive due to the imposition of the discretionary persistent offender extended term, the improper balancing of the mitigating and aggravating factors, and impermissible fact-finding made to enhance the sentence. We reject defendant's argument that the judge abused his discretion in sentencing him to an extended term. However, because the judge based his balancing of the mitigating and aggravating factors on an inapplicable factor, we remand for reconsideration of the sentence.
Judges have wide discretion, within statutory limits, in sentencing. Apprendi v. New Jersey, 530 U.S. 466, 481, 120 S. Ct. 2348, 2358, 147 L. Ed. 2d 435, 449 (2000); State v. Natale, 184 N.J. 458, 472 (2005). A judge is required, however, to consider aggravating and mitigating factors, N.J.S.A. 2C:44-1, supported by the evidence, and to determine the appropriate sentence within the statutory range. State v. L.V., 410 N.J. Super. 90, 109, 111-112 (App. Div. 2009), certif. denied, 201 N.J. 156 (2010). The court's findings of fact and application of law underlying the sentence must be grounded in competent, reasonably credible evidence. Id. at 108. See State v. Dalziel, 182 N.J. 494, 501 (2005). A reviewing court may only modify the sentence if the application of the facts to the law constitutes such a clear error of judgment that it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-65 (1984); State v. D.V., 348 N.J. Super. 107, 116 (App. Div. 2002), aff'd 176 N.J. 338 (2003). The reviewing court is not to substitute its judgment for that of the trial court, but only to ask whether a reasonable court could have imposed the sentence. State v. Evers, 175 N.J. 355, 386-87 (2003); State v. Johnson, 118 N.J. 10, 15 (1990).
Defendant does not deny that he was eligible for an extended term but argues that, because he was only convicted of possession of heroin, the judge abused his discretion by imposing it here. We do not agree. Since defendant was convicted of third-degree possession of heroin, the ordinary sentence was three to five years. N.J.S.A. 2C:43-6a(3). However, N.J.S.A. 2C:44-3 permits a judge to sentence a defendant to an extended term of imprisonment if he or she qualifies as a persistent offender. A persistent offender is defined as someone who:
at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.An extended term for a third-degree offense is five to ten years. N.J.S.A. 2C:43-7a(4); Vasquez, supra, 374 N.J. Super. at 266. The judge may also fix a term of not more than half of the sentence imposed during which a defendant is ineligible for parole. N.J.S.A. 2C:43-7b. In light of the defendant's record of five convictions, including two drug convictions, we find the judge did not abuse his discretion in deciding to sentence defendant to an extended term.
[N.J.S.A. 2C:44-3(a).]
In determining the appropriate sentence within the statutory range, the judge must consider certain aggravating and mitigating factors. N.J.S.A. 2C:44-1. Here, the judge found no mitigating factors present. He found that the following aggravating circumstances were present: risk that defendant would commit another offense (aggravating factor three), N.J.S.A. 2C:44-1a(3); the length and seriousness of his prior record (aggravating factor six), N.J.S.A. 2C:44-1a(6); the need to deter him and others from violating the law (aggravating factor nine), N.J.S.A. 2C:44-1a(9); and that imposition of a lesser penalty without imprisonment would be viewed by defendant or others as merely a cost of business (aggravating factor eleven), N.J.S.A. 2C:44-1a(11). We agree that the record shows that the judge correctly found aggravating factors three, six and nine. However, we agree with defendant that the judge erred in finding factor eleven. That factor deals with situations where the imposition of a monetary penalty without a term of imprisonment "would be perceived by the defendant or others merely as part of the cost of doing business." N.J.S.A. 2C:44-1a(11). This factor is not applicable "unless the sentencing judge is balancing a noncustodial term as against a state prison sentence." Dalziel, supra, 182 N.J. at 502. Since this was not the case here, the judge should not have utilized this factor. Because we are not able to discern from the record what sentence the judge would have given defendant if factor eleven had not been included in the balancing of factors, we remand for resentencing.
Affirmed as to the conviction; remanded for resentencing.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION