Opinion
DOCKET NO. A-3343-12T4
04-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DERRICK K. PARRISH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 10-03-449 and 11-03-422. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Derrick K. Parrish appeals from his convictions for multiple drug offenses as well as his sentence. The charges arose from the execution of a search warrant in connection with a narcotics investigation targeting defendant. After being convicted by a jury on nine counts, defendant pleaded guilty to two additional counts charged in a separate indictment. The court sentenced defendant to an aggregate term of sixteen years with an eight-year period of parole ineligibility.
On appeal, defendant argues the trial court committed plain error by failing to question each juror individually after the court received a report of juror misconduct and by allowing the State's expert witness to proffer irrelevant testimony. Defendant further argues that the judge improperly merged his convictions and imposed a manifestly excessive sentence.
Finding no trial errors warranting reversal, we affirm defendant's conviction and sentence but remand for the limited purpose of correcting the judgments of conviction to correct the merger of offenses pursuant to State v. Dillihay, 127 N.J. 42, 45 (1992).
I
On November 20, 2009, Lakewood police officers executed a search warrant at an apartment on Prospect Street that is located directly across the street from a private school. Defendant and three others were found inside the apartment. After being informed of his Miranda rights, defendant led the officers to several areas in the apartment where various quantities of cocaine, heroin, and marijuana were hidden. He told the officers the drugs belonged to him and that he possessed them for distribution rather than personal use. The officers recovered the drugs, along with a digital scale, $610 in cash, and empty baggies. An Ocean County grand jury returned Indictment No. 10-03-449, charging defendant with nine counts of drug offenses, all arising from these seizures.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant was subsequently arrested and charged in Indictment No. 11-03-422 with two counts of third-degree possession of CDS (heroin and clonazepam), N.J.S.A. 2C:35-10(a)(1) (counts one and two); second-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count four); and third-degree possession with intent to distribute heroin in a school zone, N.J.S.A. 2C:35-7 (count five).
Prior to the start of his jury trial on Indictment No. 10-03-449, defendant moved to suppress the evidence seized in connection with the search warrant and his statements to police. After hearing oral argument, the trial court denied both motions.
On the second day of the three-day trial, a juror told the sheriff's officer that "something uncomfortable was said in the jury room." At sidebar, the following exchange took place:
JUROR NO. 12: Several things have been said in the jury room, but the thing that made me the most uncomfortable was when three of the people that came out from smoking, one of them in particular said that we won't be here for sentencing which really bothered me because I felt like we don't know that there's go[ing] to be a sentencing.
THE COURT: Okay.
JUROR NO. 12: Just made me uncomfortable.
THE COURT: All right.
JUROR NO. 12: And comments have been made about certain counsel. I just really believe that when you said not to talk about, not to talk about it.
THE COURT: All right. Nothing was said specifically about the case, they were just talking about, had comments about sentencing and about attorneys, the various attorneys? Is that it?
JUROR NO. 12: Yes.
THE COURT: All right. What you heard, do you think you can still be fair in this matter?
JUROR NO. 12: I feel I can be fair.
THE COURT: Okay. Anything else you want to tell us?
JUROR NO. 12: No.
The sidebar conference continued after the juror rejoined her fellow jurors. The judge described the juror as "sensitive" and stated it did not appear the jurors discussed the actual substance of the case. The judge asked defense counsel if he wanted to be heard, and counsel responded, "No." The judge then explained he planned to re-instruct the jury that they were prohibited from discussing the case until deliberations began. The judge asked defense counsel if he had "any suggestion with regard to that" or "anything further." Defense counsel did not object or ask the court to take any further action.
Sergeant Kenneth S. Hess of the Ocean County Prosecutor's Office testified as an expert witness for the State. During direct examination, the prosecutor asked Hess to describe the effects each of the seized drugs had on the user. Hess testified that powdered cocaine "acts as a stimulant, it keeps that individual very energized with an extreme feeling of being able to take on the world . . . . It gives them a lot of feelings of being able to take anything on and stay up for an extended period of time." Hess distinguished powdered cocaine from crack cocaine, which he said has a "[s]imilar but much more intense" effect on the user. He described crack cocaine as a "very, very addictive substance" due mainly to its almost immediate effect. As to marijuana, Hess stated that it "gives that individual a feeling of being relaxed, tends to make them very calm, sometimes often sleepy," but could also cause paranoia in some users. Finally, Hess described heroin as having "a very, very calming effect on that individual, puts them into a state . . . described . . . as almost what they call a nod, where they're really brought down, their awareness level has really decreased and gives them a feeling of extreme euphoria." Defense counsel did not object to the question posed or any of this testimony.
The jury found defendant guilty on all nine counts. Defendant subsequently pleaded guilty to counts four and five of Indictment No. 11-03-422 pursuant to a plea agreement. The State agreed to recommend a flat seven-year sentence on the second-degree charge of possession with intent to distribute, concurrent to a five-year/three-year minimum parole ineligibility sentence on the third-degree school zone offense. The question whether this sentence would be consecutive or concurrent to the sentence on Indictment No. 10-03-449 was left entirely to the discretion of the court.
In imposing sentence on Indictment 10-03-449, the court merged counts one and two into count three, counts four and five into count six, and counts seven and eight into count nine. The court sentenced defendant on count three to an extended term of sixteen years with a parole ineligibility period of eight years. On counts six and nine, the court imposed four-year sentences, each with a three-year period of parole ineligibility, to run concurrent to defendant's sentence on count three.
On Indictment No. 11-03-422, the court merged count four into count five and imposed a seven-year sentence with a three-year period of parole ineligibility, to run concurrent to defendant's sentence on Indictment No. 10-03-449.
On appeal, defendant argues the following points:
POINT I
THE TRIAL COURT ERRED BY FAILING TO QUESTION EACH JUROR INDIVIDUALLY AS TO JUROR MISCONDUCT. (NOT RAISED BELOW).
POINT II
THE INTRODUCTION OF IRRELEVANT AND PREJUDICIAL EVIDENCE BY THE STATE DEPRIVED MR. PARRISH OF A FAIR TRIAL. (NOT RAISED BELOW).
POINT III
THE MATTER MUST BE REMANDED FOR RE-IMPOSITION OF SENTENCE. (NOT RAISED BELOW).
POINT IV
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
The evidence of defendant's guilt was compelling. We therefore find no grounds for reversal in the issues he raises as plain error and further conclude his sentence was not excessive.
II
Defendant argues, for the first time on appeal, that the court committed plain error when it failed to question each juror individually after being informed that a juror commented that the jury would not be present for sentencing. Here, defense counsel did not ask the court to question each juror individually and did not object to the trial court's proposed course of action. He affirmatively consented to it. When no objection is made at trial, we limit our review to those errors "clearly capable of producing an unjust result." R. 2:10-2. We find no merit to the claim of error here.
Taken in the light most favorable to defendant's argument, the juror's comment that the jurors would not be present for sentencing could be characterized as an expression of opinion that the defendant would be convicted, a matter of "premature jury deliberations." "[T]he procedure developed in response to the problem of jury exposure to outside influences, such as trial publicity, [is also applied] to the problem of premature jury deliberations." State v. McLaughlin, 310 N.J. Super. 242, 256 (App. Div.), certif. denied, 156 N.J. 381 (1998). When faced with the possibility of juror misconduct, the trial judge must "first examine the information to determine if it has the capacity to prejudice the defendant. . . ." State v. Scherzer, 301 N.J. Super. 363, 487 (App. Div.), certif. denied, 151 N.J. 466 (1997). If it does, "[t]he court is obliged to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby." State v. R.D., 169 N.J. 551, 558 (2001). "The determination of the appropriate course of action . . . is a matter left to the trial court's broad discretion." McLaughlin, supra, 310 N.J. Super. at 256. While the "extent of the court's inquiry [will] depend[] upon the nature of the allegations," ibid., "an adequate inquiry on the record is necessary for the purposes of appellate review." Scherzer, supra, 301 N.J. Super. at 488.
Here, the trial court questioned the juror at sidebar, in the presence of defense counsel and the prosecutor. Although the juror complained the comments in question made her "uncomfortable," she confirmed "[n]othing was said specifically about the case." After defense counsel and the prosecutor declined to be heard on the matter, the trial court opined that the comments did not reflect that the jurors had discussed the substance of the case. The judge suggested remedying the situation by addressing the entire panel and reminding them that they were not to discuss the case until instructed to do so. The judge asked if counsel had any other suggestions or desired anything further to address the matter. Defense counsel simply replied, "Thank you." The trial court instructed the panel as a whole and was satisfied that they could proceed fairly and impartially.
The record therefore fails to show that the trial court abused its discretion in following a procedure consented to by defense counsel. Bearing in mind the very substantial evidence of defendant's guilt, we find no error, let alone an error clearly capable of producing an unjust result.
III
Defendant argues the trial court erred in allowing the State's expert to give irrelevant testimony as to the effects of cocaine, heroin, and marijuana on the user. He claims that this testimony "left a perception of criminality — that [defendant] was guilty of creating a systemic drug problem," which resulted in undue prejudice. Since there was no objection to this testimony at trial, this argument is also subject to review as plain error. R. 2:10-2. We find no error warranting reversal of defendant's conviction.
"'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. "In determining whether evidence is relevant, the inquiry should focus on the logical connection between the proffered evidence and a fact in issue." State v. Bakka, 176 N.J. 533, 545 (2003) (citation and internal quotation marks omitted). To be deemed relevant, "evidence must have 'probative value, which is the tendency of the evidence to establish the proposition that it is offered to prove.'" State v. Darby, 174 N.J. 509, 520 (2002) (quoting State v. Koskovich, 168 N.J. 448, 480 (2001)).
Here, the State argues the testimony contrasting the effects of crack cocaine and powdered cocaine "provided context for [Hess's] later testimony that most cocaine users use one form of cocaine exclusively," which leads to the inference that defendant did not possess the drugs for personal use. The State does not proffer a similar argument regarding Hess's testimony on the effects of heroin and cocaine. Defendant maintains that the effects of the various drugs on a user was not probative of any fact at issue — namely, whether defendant possessed the CDS with the intent to distribute.
We agree with defendant that the testimony was largely irrelevant; however, we do not find that its admission was "clearly capable of producing an unjust result." R. 2:10-2. The testimony as to the effects of the drugs was not extensive, not presented in a way to inflame the emotions of the jury, and did not tie defendant to a systemic societal drug problem.
Importantly, defense counsel's failure to object to this testimony at trial reflects the absence of a prejudicial effect. See State v. Nunez, 436 N.J. Super. 70, 77 (App. Div. 2014) ("Generally, a party's failure to object to testimony at trial may indicate that counsel perceived no prejudice." (citation and internal quotation marks omitted)); State v. Smith, 262 N.J. Super. 487, 516 (App. Div.) ("[D]efendant's claim that the jury was misled loses force in face of the fact that defense counsel perceived no prejudice in the context of the trial."), certif. denied, 134 N.J. 476 (1993).
Even if this testimony should have been excluded, such error is harmless in light of the substantial evidence of defendant's guilt. The drugs were recovered pursuant to a valid search warrant from locations defendant identified. Defendant admitted ownership and denied the drugs were for his personal use. See, e.g., State v. Rose, 112 N.J. 454, 536 (1988) (finding the admission of evidence which had the "clear capacity to inflame and prejudice the jury" was harmless "in view of the compelling evidence of guilt"). We are satisfied the verdict would have been the same even if the testimony was excluded. Accordingly, we conclude that admission of the expert's testimony was harmless.
IV
Defendant next contends the trial court erred by merging his convictions for possession with intent to distribute into his convictions for possession with intent to distribute in a school zone. Defendant does not, however, argue that this error resulted in an improper sentence.
N.J.S.A. 2C:35-5 sets forth the general prohibitions against the manufacturing, distribution, or dispensing of controlled dangerous substances (the Section 5 offenses). N.J.S.A. 2C:35-7 identifies the "school zone" cases in which prohibited drug offenses occur within 1000 feet of a school (the Section 7 offenses). Because only first-degree Section 5 offenses carry a period of parole ineligibility while all Section 7 school zone offenses require a term of parole ineligibility, a potential conflict between legislative intent and federal double jeopardy principles was posed by the anti-merger provision of Section 7, which provides in pertinent part:
Notwithstanding the provisions of N.J.S.[A.] 2C:1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction for a violation of subsection a. of N.J.S.[A.] 2C:35-5 (manufacturing, distributing or dispensing) . . . .
[N.J.S.A. 2C:35-7(c).]
In State v. Gonzalez, 123 N.J. 462, 464 (1991), the Supreme Court held that general merger principles apply to require the merger of third- and fourth-degree Section 5 offenses into Section 7 offenses. The merger question regarding first- or second-degree Section 5 convictions was resolved in Dillihay, supra, where the Court held:
[C]onvictions for school-zone offenses must merge into convictions for related first- or second-degree Section 5 offenses, but that in such cases a mandatory minimum sentence no less severe than that required by the school-zone statute should nevertheless be imposed on defendants convicted of a Section 5 offense.
[127 N.J. at 45.]
This construction preserved the "primary objective . . . that the mandatory sentence would survive the merger of a school-zone offense with a Section 5 offense that did not carry a mandatory minimum." Id. at 52. The Court recognized that typically the offense with less elements merges into the offense with more elements; however, the Court "depart[ed] from that principle," assuming the Legislature preferred that the "more severe" conviction survive. Id. at 54-55.
Therefore, if a Section 5 conviction is for a third- or fourth-degree offense, it will merge into a section 7 school zone conviction, Gonzalez, supra, 123 N.J. at 464, but, if the Section 5 conviction is for a first- or second-degree offense, the reverse is true and the Section 7 school zone offense will merge into the Section 5 offense. Dillihay, supra, 127 N.J. at 45. We agree with defendant that the trial court misapplied the Supreme Court's instructions regarding the merger of his convictions.
On Indictment No. 10-03-449, the jury convicted defendant of:
Count one: third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1);
Count two: second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2);
Count three: third-degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7;
Count four: third-degree possession of heroin, N.J.S.A. 2C:35-10a(1);
Count five: third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3);
Count six: third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7;
Count seven: fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3);
Count eight: third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11); and
Count nine: third-degree possession of marijuana with intent to distribute in a school zone, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.
Therefore, applying Gonzalez, supra, 123 N.J. at 464 and general merger principles, the third-degree offenses in counts four and five should merge into count six and the third- and fourth-degree charges in counts seven and eight should merge into count nine. The trial judge correctly merged these third-degree offenses.
It is well-settled that "convictions for possession merge into the convictions for the simultaneous possession with intent to distribute the same substance." State v. Selvaggio, 206 N.J. Super. 328, 330 (App. Div. 1985).
Pursuant to Dillihay, supra, 127 N.J. at 45, the third-degree offenses in counts one and three should have merged into the second-degree offense charged in count two. However, instead, the trial court incorrectly merged the second-degree Section 5 offense into the Section 7 school zone offense charged in count three.
The two counts of Indictment No. 11-03-422 that were the subject of defendant's guilty plea were a second-degree possession of heroin with intent to distribute charge, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count four) and a third-degree possession of heroin with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count five). Again, Dillihay required count five to be merged into count four. The trial court's statement that count four merged into count five was error.
On Indictment No. 11-03-422, the court also erred by stating that a third-degree, instead of a second-degree, conviction survived the merger. Nevertheless, the sentence was in the range for a second-degree offense and was subject to the mandatory minimum period of parole ineligibility. We deem the court's verbal error to be corrected by the judgment of conviction, which correctly states that the surviving conviction is a second-degree offense.
These merger errors did not affect the correctness of the actual sentences imposed because, as Dillihay states, when the school zone offense is merged into a related first- or second-degree offense, "a mandatory minimum sentence no less severe than that required by the school-zone statute should nevertheless be imposed on defendants convicted of a Section 5 offense." Dillihay, supra, 127 N.J. at 45. Therefore, although the trial court erred in stating the second-degree Section 5 offenses merged into the Section 7 school zone offenses, the court correctly imposed the mandatory minimum parole ineligibility periods prescribed by Section 7.
The matter is remanded for correction of the judgments of conviction consistent with this opinion.
V
Lastly, defendant argues the court abused its discretion by finding that the three aggravating factors outweighed the sole mitigating factor, resulting in a manifestly excessive sentence. We disagree.
An appellate court "must not substitute its judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). On review, we must affirm a trial court's sentence unless: (1) the sentence violates the sentencing guidelines; (2) the court's findings as to the aggravating and mitigating factors were not "based upon competent credible evidence in the record;" or (3) considering the specific facts of the case, imposition of a sentence within the guidelines "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).
At the outset, a sentencing court must "determine . . . whether aggravating or mitigating factors apply." State v. Bieniek, 200 N.J. 601, 608 (2008). In doing so, the court must state "the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence . . . ." R. 3:21-4(g). The court then balances the applicable factors, engaging in a qualitative, rather than quantitative, assessment in light of the specific facts of the case. Fuentes, supra, 217 N.J. at 72-73. A reviewing court will not disturb a sentence, "even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).
In sentencing defendant, the trial judge found aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk defendant will commit another offense. The judge based this finding on defendant's "substance abuse, continuous course of conduct, [and] criminal nature." Due to defendant's numerous convictions, the judge applied aggravating factor six, N.J.S.A. 2C:44-1(a)(6), the nature and extent of defendant's prior record. The judge noted that he was not "double counting with regard to the prior record" because defendant had prior convictions that were not used to calculate the extended term pursuant to N.J.S.A. 2C:43-6(f). The judge also found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need for deterrence. The judge gave "some weight" to mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), due to the fact defendant had young children.
Defendant does not challenge the trial court's finding of aggravating factors three, six, and nine, traditionally referred to as the "recidivism factors." See State v. Thomas, 188 N.J. 137, 142, 149 (2006). Instead, he claims the trial court placed too much weight on these factors, resulting in an improper balancing of the aggravating and mitigating factors. This argument has no merit. Defendant committed the instant offenses while on probation and has engaged in a lifetime of criminal conduct, evidenced by numerous prior convictions. Thus, the judge's reasoning that these aggravating factors outweighed the one applicable mitigating factor was grounded in competent, reasonable evidence in the record.
Defendant also argues the court should have found mitigating factor twelve because the officers testified that defendant was "extremely cooperative," taking "ownership [of] the narcotics" and "t[elling] us and escort[ing] us to locations where the narcotics were found." However, a defendant's willingness to implicate only himself does not definitively entitle him to factor twelve consideration. The "cooperation" contemplated by N.J.S.A. 2C:44-1b(12) typically refers to a defendant's assistance in identifying other offenders or otherwise aiding the State in solving other crimes. See State v. Read, 397 N.J. Super. 598, 613 (App. Div.) (questioning "whether a confession qualifies as 'cooperation' within the intent of this subsection, at least in the absence of any indication the confession identified other perpetrators or assisted in solving other crimes"), certif. denied, 196 N.J. 85 (2008).
Defendant did not argue at sentencing and does not argue on appeal that he cooperated in the prosecution of anyone else. Accordingly, the trial court did not abuse its discretion by not finding mitigating factor twelve.
One officer testified that defendant had given him the name of his drug supplier, but the information did not prove to be credible.
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We affirm the convictions and remand for the limited purpose of the correcting the judgments of conviction to reflect the correct mergers. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION