Opinion
DOCKET NO. A-2003-12T3
03-18-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WAYNE J. DAVENPORT, JR., a/k/a WAYNE J. DAVENPORT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment Nos. 11-03-0117 & 11-04-0234.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Tried before a jury on a four-count Salem County Indictment, No. 11-03-0117, defendant Wayne Davenport, Jr. was convicted of third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree distribution of CDS, cocaine, N.J.S.A. 2C:35-5b(5) (count two); third-degree distribution of CDS, cocaine, within 1000 feet of a school, N.J.S.A. 2C:35-7 (count three); and second-degree distribution of CDS, cocaine, within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count four). Following the trial, defendant entered into a plea agreement in connection with a separate Salem County Indictment, No. 11-04-0234. In accordance with the agreement, defendant pled guilty to a single count of third-degree possession of CDS, marijuana, with intent to distribute, N.J.S.A. 2C:35-5b(11).
The three remaining counts of this indictment were dismissed.
On count four of Indictment No. 11-03-0117, the trial judge sentenced defendant to ten years in prison, with a five-year period of parole ineligibility. The judge merged count one into count two and sentenced defendant to concurrent five-year terms on counts two and three. On Indictment No. 11-04-0234, the judge sentenced defendant to a consecutive four-year flat term. Thus, defendant's aggregate sentence was fourteen years. Appropriate fines and penalties were also assessed.
On appeal, defendant has raised the following contentions:
POINT I
[DEFENDANT'S] RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WAS VIOLATED BY THE DETECTIVES' TESTIMONY THAT [DEFENDANT] HAD BEEN TARGETED BECAUSE HE WAS A KNOWN DRUG DEALER. (Not Raised Below).
POINT II
THE COURT'S IDENTIFICATION CHARGE WAS FLAWED BECAUSE THE JUDGE OMITTED ALL OF THE LANGUAGE ADDRESSED [TO] THE FACT THAT BOTH THE IN- AND OUT-OF-COURT IDENTIFICATIONS WERE SUGGESTIVE. (Not Raised Below).
POINT III
BECAUSE [DEFENDANT'S] ALIBI WITNESS ACKNOWLEDGED SPEAKING TO [DEFENDANT] ABOUT HIS TESTIMONY, THE JUDGE SHOULD NOT HAVE ALLOWED "REBUTTAL" TESTIMONY FROM A SHERIFF'S OFFICER THAT [DEFENDANT] SPOKE TO THE WITNESS FROM A HOLDING CELL. IN THE ALTERNATIVE, THE JUDGE SHOULD HAVE SANITIZED THE TESTIMONY BECAUSE THE FACT THAT [DEFENDANT] AND HIS ALIBI WITNESS WERE INCARCERATED WAS IRRELEVANT. (Partially Raised Below).
POINT IV
THE JUDGE SHOULD HAVE INSTRUCTED THE JURORS THAT, IF THEY CONCLUDED THAT [DEFENDANT] YELLED TO HIS ALIBI WITNESS, THEY NEEDED TO DECIDE WHETHER THAT REFLECTED [DEFENDANT'S] CONSCIOUSNESS OF GUILT OR MERELY REFLECTED THE CONCERN OF AN INNOCENT MAN THAT HIS ALIBI WITNESS WOULD ACCURATELY ESTABLISH THE ALIBI. (Not Raised Below).
POINT V
THE COURT ERRED DEPRIVED [SIC] [DEFENDANT] OF DUE PROCESS AND A FAIR TRIAL WHEN HE SUGGESTED THAT [DEFENDANT] WAS CONFINED FOR OFFENSES IN ADDITION TO THOSE CHARGED IN THE INDICTMENT BEFORE THE JURY, AND THE JUDGE SHOULD HAVE INSTRUCTED THE JURORS THAT THEY NEED NOT FIND THAT THE ALIBI WAS LESS CREDIBLE BECAUSE THE ALIBI WITNESS WAS INCARCERATED AT THE TIME OF [DEFENDANT'S] TRIAL. (Not Raised Below).
POINT VI
THE COURT ERRED IN IMPOSING THE MAXIMUM SENTENCE ON THE PUBLIC-HOUSING-ZONE OFFENSE AND IN FAILING TO MERGE VARIOUS CONVICTIONS.
A. It Was Inconsistent For the Judge, Without Explanation, to Choose Not to Impose a Parole Disqualifier on the School-Zone Offense, But to Impose the Maximum Parole Disqualifier on the Public-Zone Offense.
B. The Imposition of the Maximum Sentence on the Public-Zone Offense is Excessive Because the Offense was Non-Violent and the Informant, Not the Defendant, Chose the Location of the Drug Distribution.
C. The Court Erred in Failing to Merge All of the Drug Offenses in Indictment [No.] 11-03-[0]117-I.
After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction and sentence, but remand for entry of an amended Judgment of Conviction to reflect that defendant's convictions on counts two and three of Indictment No. 11-03-0117 should have merged with the conviction under count four for second-degree distribution of CDS, cocaine, within 500 feet of public housing, N.J.S.A. 2C:35-7.1
I.
The State developed the following proofs at trial. Detective Otis Myers of the Deptford Township Police Department was assigned to work with Investigator Elliott Hernandez of the Salem County Prosecutor's Office to make "undercover [drug] buys" in Penns Grove. On January 15, 2010, Investigator Hernandez told Detective Myers that defendant was "the target of the investigation" because the investigator "had information that [defendant] was involved in narcotics." A confidential informant contacted defendant to arrange a meeting with Detective Myers in a parking lot. Before leaving for the meeting, Investigator Hernandez showed Detective Myers a photograph of defendant and gave him money to make the purchase.
In the middle of the afternoon, the informant drove Detective Myers to "the meet location that had already been negotiated." When they arrived, the informant saw defendant in the parking lot. After the car was parked, defendant walked over and got into the rear passenger seat behind Detective Myers. The detective "turned around and the three of us began in conversation." The detective testified that he was only "[t]wo-and-a-half, three feet" from defendant as they talked, the interior of the car was "well lit," and nothing obstructed his view of defendant.
Defendant asked Detective Myers "what I was looking for" and the detective "told him exactly what I was looking for." In response, defendant took "a small rock -- white rock-like substance" out of his pocket, broke off a piece, and handed it to the detective. The detective gave defendant money in return. Defendant then got out of the car and left the scene. Detective Myers and the informant "went to a debriefing location[,]" where the detective turned the cocaine over to Investigator Hernandez, who again showed him the photograph of defendant. The detective confirmed that the man in the photograph was the individual who sold him the cocaine. Detective Myers also identified defendant in court. Because of other ongoing investigations, the police did not immediately arrest defendant.
A subsequent New Jersey State Police laboratory report certified that the substance defendant gave to Detective Myers was cocaine.
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Defendant did not testify. Although defendant did not provide timely notice of his intent to assert an alibi, see Rule 3:12-2(a), the judge conducted an N.J.R.E. 104 hearing and permitted him to call his friend, Tyson Pierce, as a witness. Pierce testified that defendant picked him up from work at 10:30 a.m. on January 15, 2010 and the two men then spent the day together at defendant's apartment. Pierce stated that he remained with defendant at the apartment until "a little after 5:00" p.m.
After conducting a second N.J.R.E. 104 hearing, the judge permitted the State to call Sergeant Mark Smith of the Salem County Sheriff's Office as a rebuttal witness. Sergeant Smith testified that, on the day Pierce testified, he heard defendant make a comment to Pierce "[i]n the back room. Our squad room[.]" Sergeant Smith stated that defendant was in a "holding cell" and made the comment while Pierce "was being brought in from the rear elevator; it's a[n] inmate elevator." In recounting what he heard defendant say, the sergeant testified, "I don't recall the date, it was either 14th or 15th, but it was directed to [Pierce]. The example is, 'The 14th, 3:45 - - the 14th, 3:45.' [Defendant] said it three times."
II.
We have thoroughly considered the arguments raised by defendant in Points I, II, III, IV, and V of his brief in light of the record and applicable legal principles and conclude they lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following comments.
In Point I, defendant argues for the first time on appeal that he was denied a fair trial as a result of Detective Myers's testimony that defendant was "the target of the investigation" because Investigator Hernandez "had information that [defendant] was involved in narcotics." Relying upon State v. Bankston, 63 N.J. 263 (1973), defendant asserts that he had no opportunity to confront the "hearsay testimony that [defendant] was a known drug dealer." This argument lacks merit.
In Bankston, our Supreme Court confirmed that the hearsay rule is not violated when a police officer explains that he approached a suspect or went to a crime scene based "upon information received," because such testimony explains his subsequent conduct and shows that the officer was not acting in an arbitrary manner. Id. at 268; accord State v. Luna, 193 N.J. 202, 217 (2007). Although the Bankston Court cautioned that both the hearsay rule and a defendant's Sixth Amendment right to be confronted by the witnesses against him or her are violated if the officer becomes more specific and repeats what an absent witness told the officer linking the defendant to a crime, Bankston, supra, 63 N.J. at 268-69, that did not occur here. Detective Myers identified Investigator Hernandez as the source of the information about defendant and defendant had an opportunity to confront both officers at trial concerning their testimony.
In Point II, defendant argues that the judge's instructions to the jury on the question of identification were "flawed." Again, we disagree. Because defendant did not object to the jury charge, we review the claimed error under the plain error standard. R. 2:10-2. "In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). A "[d]efendant is required to challenge instructions at the time of trial." State v. Morais, 359 N.J. Super. 123, 134 (App. Div.) (citing R. 1:7-2), certif. denied, 177 N.J. 572 (2003). Failure to do so creates a "presum[ption] that the instructions were adequate." Id. at 134-35.
Reviewed under that standard, we discern no error, let alone plain error. Contrary to defendant's contention, Detective Myers's identification of defendant was not based upon an inappropriately "suggestive" procedure. The detective met with defendant face-to-face in a "well lit" car during the middle of the afternoon and his identification was clearly based upon his observation of defendant at that meeting. The judge's instructions to the jury on the issue of identification followed the model jury charge and no special or supplemental instructions on this issue were required under the circumstances of this case.
Defendant next argues in Points III, IV, and V that the judge erred in permitting the State to call Sergeant Smith as a rebuttal witness in response to defendant's untimely production of Pierce as an alibi witness. Smith overheard defendant coach Pierce on his testimony while the two men were in the holding cell area. The judge conducted a N.J.R.E. 104 hearing and thoroughly considered defendant's objection to allowing Sergeant Smith's testimony. In overruling defendant's objection, the judge stated that the incident in the holding area was "of [defendant's] creation. And, I think once that occurs the State has the right to present it, and the fact that he's in custody comes out. He can't hide behind that." Therefore, the judge found that defendant had to make a choice. If he decided to call Pierce, the State would have the opportunity to call Sergeant Smith in response.
The judge stated that he would also provide an appropriate limiting instruction to the jury if defendant decided to proceed with his alibi defense. The judge charged the jury as follows:
As you know, there's been some testimony of a conversation, which allegedly occurred between [defendant] and Mr. Pierce yesterday in the Salem County Courthouse holding area.
This information is not to be used to show, in any way, that [defendant] is a bad person, or that he is disposed to commit crimes. An innocent person can be in
custody, simply by reason of an inability to make bail on a given charge. . . .
Whatever caused [defendant] to be in custody is irrelevant to your deliberations in this case, and you should not speculate about it. You should not consider this in your deliberations in any way. This evidence is before you, solely for the limited purpose of the issue of Mr. Pierce's credibility.
Defendant argues that the judge should not have permitted Sergeant Smith to testify and also complains that his and Pierce's incarcerated status was improperly revealed to the jury. We disagree.
A trial court's discretionary decision concerning whether to admit or exclude evidence is reviewed under an abuse of discretion standard. State v. Ramseur, 106 N.J. 123, 266 (1987). Rebuttal testimony "is permissible when necessary because of new subjects introduced on direct or cross-examination of defense witnesses." State v. Cook, 330 N.J. Super. 395, 418 (App. Div.), certif. denied, 165 N.J. 486 (2000). Determining "[w]hat is proper rebuttal evidence and whether it should be admitted" is a decision that rests "within the sound discretion of the trial judge, and the exercise of that discretion will not be disturbed in the absence of gross abuse." State v. Sanducci, 150 N.J. Super. 400, 402 (App. Div.), certif. denied, 75 N.J. 524 (1977).
We discern no error in the admission of Sergeant Smith's rebuttal testimony. Once defendant decided to present Pierce as an alibi witness, the State was properly permitted to attack his credibility through Sergeant Smith's testimony that defendant had coached him just before he testified on defendant's behalf. We also discern no error in the admission of defendant's and Pierce's incarcerated status. The reference was fleeting and, critically, the judge delivered a well-crafted limiting instruction thereby eliminating any prejudice. We must assume that the jury followed this instruction. State v. Muhammad, 145 N.J. 23, 52 (1996). Contrary to the arguments defendant raises for the first time on appeal, a "consciousness of guilt" charge was not necessary and the judge's instruction did not imply that defendant "was confined for offenses in addition to those charged in the indictment before the jury[.]"
Finally, defendant argues in Point VI that the ten-year sentence imposed for count four of Indictment No. 11-03-0117, second-degree distribution of cocaine within 500 feet of public housing, was excessive. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500-01 (2005). In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record and applied the correct sentencing guidelines enunciated in the Code. Because there is neither clear error on the judge's part in his adherence to the sentencing guidelines, nor a sentence imposed which, under the circumstances, shocks the conscience, there is no reason for appellate intervention concerning the sentence imposed for count four. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989).
Defendant also argues that his convictions for count two of Indictment No. 11-03-0117, third-degree distribution of cocaine, and count three, third-degree distribution of cocaine within 1000 feet of a school, should have merged with his conviction for second-degree distribution of cocaine within 500 feet of public housing under count four. The State agrees, as do we. Therefore, we remand for entry of an amended Judgment of Conviction to reflect the merger.
The conviction and sentence are affirmed but for the need to merge counts two and three of Indictment No. 11-03-0117 with count four. We remand for entry of an amended Judgment of Conviction. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION