Opinion
DOCKET NO. A-1612-12T3
04-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHAWN E. PARROTT, a/k/a FRANCISCO PARROTT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton Leibowitz, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 10-05-0555 and 10-05-0556. Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton Leibowitz, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his convictions and sentence for various drug and weapons offenses. For the reasons that follow, we affirm.
I
On August 16, 2012, a jury convicted defendant of fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3) (count one); third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count two); third-degree possession of marijuana with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); and second-degree possession of a firearm while in possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count four). That same day, defendant pled guilty to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-4.1(a), a charge arising out of a separate indictment.
On October 19, 2012, the court sentenced defendant to an aggregate term of ten years, with a six-year period of parole ineligibility. Specifically, on count three, he was sentenced to a mandatory five-year, extended-term of imprisonment with a three-year period of parole ineligibility. Counts one and two merged with count three. On count four, he was sentenced to a consecutive five-year term of imprisonment with a three-year period of parole ineligibility. On the certain persons not to have weapons charge, he was sentenced to a five-year term of imprisonment, with a five-year period of parole ineligibility, to run concurrently with the other sentences imposed.
Before trial, defendant moved to suppress, among other things, evidence of marijuana seized from the execution of a search warrant on his person, car, home, and parents' home, as well as a handgun seized from his home. That motion was denied. Defendant subsequently moved to suppress statements he and his fiancée, D.R., gave to the police immediately following the execution of the search warrant. That motion was denied following a Miranda hearing.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The evidence adduced at the Miranda hearing and at trial pertinent to the issues raised on appeal is as follows. On January 21, 2010, officers from the Elizabeth Police Department executed the search warrant on defendant's person, apartment, car, and parents' home. After stopping and searching him on the street and finding marijuana, defendant was arrested and taken into custody.
The police then searched defendant's home. Officer Christopher Flately testified that when the officers went through the front door of defendant's apartment, their guns were in their holsters but, once inside the apartment, Flately drew his gun. Present in defendant's home were D.R., with whom he cohabited, their son, defendant's sister, and her two children. During the search the police seized, among other things, marijuana and a nine-millimeter handgun. Neither D.R. nor defendant's sister were placed under arrest but, at Flately's request, D.R. agreed to go to the police station and give a statement.
While searching defendant's apartment, other police officers executed the search warrant on defendant's parents' home, located across the street, and seized marijuana and other items. Officer Lawrence Smith, one of the officers who conducted that search, testified that neither parent was placed under arrest.
At the outset of her statement, D.R. acknowledged the police had not threatened or coerced her into giving the statement. During the interview she divulged defendant had been selling drugs and that there was marijuana in their apartment. She disavowed having any knowledge of the gun in the apartment.
Defendant also gave a statement. He admitted he had been selling marijuana for six months, had an ounce of marijuana on him when arrested and, although he planned to smoke some, intended to sell the rest. He further admitted there were ten grams of marijuana in his car, about a pound of marijuana in the attic of his parents' home, and two ounces of marijuana in his apartment. He also had cash derived from selling drugs in his apartment, as well as a handgun.
At the Miranda hearing D.R. testified that when the police came through the front door of the apartment, their guns were drawn. After the police found a handgun, she overheard one officer instruct another to call the Division of Youth and Family Services (DYFS); however, because defendant's sister was able to arrange for a neighbor to watch the children, DYFS was not contacted. D.R. and defendant's sister were then arrested and taken to the police station, where they were placed in a holding cell along with defendant. Later, defendant's parents joined them in the holding cell.
Until June 29, 2012, DYFS was known as the Division of Youth and Family Services, when it was renamed the Division of Child Protection and Permanency. See L. 2012, c. 16, effective June 29, 2012. For simplicity, in this opinion we refer to this agency as DYFS.
D.R. testified that, while in the cell, defendant informed her and his family the police had told him that, unless he gave a statement, "we were all going to go down." Defendant then said "you guys are just going to have to say that everything that was found was mine. I'm not going to let none of you guys go to jail for something that pretty much was [mine]."
D.R. also testified the police coerced her into giving the statement, and that "the threat was DYFS." However, she conceded the police never mentioned DYFS would be contacted unless she gave a statement or otherwise suggested what she should say in her statement. She also admitted she lied when she told the police she was unaware of the gun in the apartment.
Defendant's mother testified that when the police were in her home, the police informed her and her husband they had to go to the police station or they would be locked up and would lose their home. Officer Smith testified the parents were never threatened, and both he and Officer Flately maintained at the Miranda hearing that neither parent was even at the police station that day.
Defendant testified the police pressured him into giving a statement. Specifically, the police told him that if D.R. and his family were in jail, DYFS would take his child away; but, if he gave a statement, D.R. and his family would not be prosecuted. Thus, he felt compelled to say the gun in his apartment was his when in fact it was not. However, he conceded he lies when it serves his interest. He also admitted the marijuana found in his and his parents' home belonged to him.
At the conclusion of the Miranda hearing the trial court denied defendant's motion to suppress his and D.R.'s statements. The court found defendant did not have standing to suppress D.R.'s statement, and rejected defendant's claim he had been forced to give a statement to spare D.R., his sister, and his parents from being prosecuted or to deter DYFS from removing his child. The court also viewed the videotape of defendant's statement and found his demeanor indicated he had given the statement knowingly and voluntarily. In addition, the court found the police officers were but defendant, his parents, D.R., and other defense witnesses were not credible.
At trial, both defendant's and D.R.'s statements were admitted. D.R. also testified at trial, and claimed that, with defendant's consent, she, defendant's parents, and his sister agreed when in the holding cell to "put the blame on defendant" so they could avoid prosecution. She also testified that not only was she aware of the gun in the apartment, but also that it belonged to her. When confronted with her statement to the police in which she had claimed ignorance of the gun, she admitted the statement was false. She also conceded that when it is in her or her children's best interests, she will lie.
Some of defendant's statement was redacted but those parts of his statement addressed above were not.
At trial the police detailed the property seized from defendant's apartment and his parents' home, to which defendant had access and used to store property. The pertinent evidence police seized from defendant's apartment was: nine plastic bags and a glass jar containing marijuana; the handgun; $2,960 in cash; a small metal scale; a frequency book for a police scanner; and sandwich bags.
The relevant evidence seized from his parent's home was: multiple plastic bags containing marijuana; $920 in cash; two digital scales; a Radio Shack scanner; a box of sandwich bags; and a large garbage bag containing many smaller empty bags.
In all, the police seized an aggregate of 20.62 ounces of marijuana from defendant's person, car, apartment, and parents' home. Specifically, 5.17 ounces was found in his apartment; 13.74 ounces in his parents' home; 1.44 ounces on his person; and 0.27 ounces in his car.
On appeal, defendant raises the following arguments for our consideration:
POINT I - BECAUSE THE MOTION TO SUPPRESS WAS BASED PRIMARILY ON THE TRIAL COURT'S FINDINGS OF CREDIBILITY, THE OFFICERS' SIGNIFICANTLY DIFFERENT TESTIMONY AT TRIAL REQUIRED A REOPENING OF THE MIRANDA HEARING.
A. Trial Counsel's Failure To Move To Reopen The Motion To Suppress Amounted To Ineffective Assistance Of Counsel.
B. The Prosecutor And Trial Court Were Independently Obliged To Take Remedial Action When It Was Revealed That The Officers Had
Given False Testimony At The Miranda Hearing.
POINT II - THE OFFICERS' LAY TESTIMONY ABOUT HOW THE ITEMS SEIZED ARE COMMONLY USED BY DRUG DEALERS AMOUNTED TO IMPROPER EXPERT TESTIMONY, OVERSTEPPING THE BOUNDS OF STATE V. MCLEAN, 205 N.J. 438 (2011).
POINT III - THE PROSECUTOR COMMITTED NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT DURING HIS SUMMATION, DEPRIVING MR. PARROTT OF DUE PROCESS AND A FAIR TRIAL.
A. The Prosecutor's Statements That The Officers Had Witnessed A Sale And That The Quantity Of Marijuana Indicated Distribution Were Not Supported By The Evidence Presented At Trial.
B. The Prosecutor Unfairly Denigrated The Defense And Asserted His Opinion On The Credibility Of The Defense Witnesses.
POINT IV - BECAUSE THE COURT FAILED TO INSTRUCT THE JURY ON THE AFFIRMATIVE DEFENSE TO N.J.S.A. 2C:35-7, THAT CONVICTION MUST BE REVERSED.
POINT V - THE COURT IMPROPERLY CHARGED THE JURY WITH A BROADER DEFINITION AND INACCURATE EXAMPLE OF POSSESSION THAN THAT AGREED UPON DURING THE CHARGE CONFERENCE, DENYING DEFENDANT THE OPPORTUNITY TO ADDRESS THIS THEORY OF POSSESSION IN SUMMATIONS AND OVERSIMPLIFYING THE CONCEPT OF JOINT POSSESSION.
POINT VI - THE OMISSION OF ANY INSTRUCTION REGARDING THE CREDIBILITY OF PARROTT'S OUT-OF-COURT STATEMENTS REQUIRES THE REVERSAL OF HIS CONVICTIONS.
POINT VII - THE CUMULATIVE IMPACT OF THE ERRORS DENIED PARROTT A FAIR TRIAL.
POINT VIII - BECAUSE THE COURT WAS MISTAKEN ABOUT THE PERMISSIBLE SENTENCING RANGE FOR A MANDATORY EXTENDED TERM, AND BECAUSE MITIGATING FACTOR ELEVEN WAS AMPLY SUPPORTED IN THE RECORD, THE CASE SHOULD BE REMANDED FOR RESENTENCING.
A. Because The Court Was Mistaken About The Lowest Sentence Parrott Could Receive For A Mandatory Extended Term, And Because The Court Stated Its Intention Was To Sentence Parrott At The Bottom Of The Permissible Range, A Remand Is Required For Resentencing.
B. Because Mitigating Factor Eleven Is Amply Supported By The Record, The Case Must Be Remanded For Resentencing.
A
Addressing defendant's first argument point, for the first time on appeal defendant argues a new Miranda hearing is justified because Officers Flately's and Smith's trial testimony varied with that given at the Miranda hearing. Defendant contends that, during the trial, Officers Flately and Smith testified their guns were drawn when they entered defendant's apartment to execute the search warrant when, at the Miranda hearing, they claimed their guns had not been. Defendant also notes that, at the Miranda hearing, these officers testified defendants' parents were not at the police station the day of defendant's arrest but, during trial, they testified the parents were present.
Defendant maintains the trial court would not have found the officers credible and would have rejected their assertion the police had not coerced defendant and D.R. into giving statements if the court knew of the alleged discrepancy in the officers' testimony; therefore, a remand for a new Miranda hearing was warranted. We reject this argument.
First, Officer Flately never testified his gun was drawn when he entered defendant's apartment. At both the Miranda hearing and at trial, Flately maintained he drew his gun after he entered the apartment. Second, Officer Smith did not participate in the execution of the search warrant and never testified he entered defendant's apartment, let alone that he had or did not have his gun drawn when he went through the front door. Third, whether or not Flately or any other officer had his or her gun drawn when entering the apartment is utterly immaterial to the issues in this case.
In contrast to what they stated at the Miranda hearing, during the trial Flately and Smith did testify the parents were present at the police station the day defendant was arrested. However, the officers' knowledge of whether the parents were or were not at the police station is also immaterial. An inconsistency on an immaterial point is just that — immaterial. Defendant's argument the discrepancy in the officers' testimony is sufficient to reopen the Miranda hearing is without merit. See State v. Battle, 165 N.J. Super. 521, 531 (App. Div. 1979).
B
In his second argument point defendant principally argues Flately and another officer, James Diorio, opined, without being qualified as experts, that certain items seized pursuant to the search warrant are commonly used by drug dealers. Defendant maintains, among other things, the failure to have the officers qualified as experts unduly prejudiced him, see State v. McLean, 205 N.J. 438, 460-61 (2011); State v. Nesbitt, 185 N.J. 504, 515-16 (2006). The specific testimony about which he complains is as follows.
During his direct examination Flately testified that: he has encountered drug dealers that use police scanners to help avoid being detected by the police; Ziploc bags were seized from defendant's apartment because such bags are commonly used to package marijuana; and the false bottom can was seized from defendant's apartment because many drug dealers use such cans to hide drugs and money.
Defendant also complains about the following testimony elicited by the State from Officer Diorio: the police seized from the parents' home a kind of plastic bag from which the air is removed and the contents sealed by a machine, a type of bag Diorio has seen used in "larger scale marijuana packaging operations"; and a blunt, defined by Diorio as a cigar from which the tobacco has been removed and replaced by marijuana, was seized from defendant's parents' home.
First, defendant failed to object to the testimony challenged, making it "'fair to infer from [that] failure . . . that in the context of the trial the error was actually of no moment.'" State v. Nelson, 173 N.J. 417, 471 (2002) (quoting State v. Macon, 57 N.J. 325, 333 (1971)). Second, defendant must demonstrate plain error, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2. "Reversal of defendant's conviction is required only if there was error 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95 (2004)).
Here, there was ample evidence of defendant's guilt, none of which was tainted by any improper testimony that may have been elicited from these officers. The subject indictment specifically charged defendant with possession of fifty or more grams of marijuana; possession of one ounce or more of marijuana with intent to distribute; and possession of marijuana in a quantity of one ounce or more with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7.
By his own admission defendant was in possession of far more than an ounce of marijuana. He had an ounce of marijuana on his person alone when arrested. Although he claimed he was going to consume some of the marijuana found on his person, he admitted he intended to sell the rest. The jury was at liberty to reject the assertion he was going to smoke any marijuana and instead find he intended to sell the entire ounce.
One ounce is equivalent to 28.3495 grams. Stedman's Medical Dictionary App. 5 (28th ed. 2005). Thus, on just the possession charge, defendant had more than fifty grams. See N.J.S.A. 2C:35-10(a)(3).
At the time, defendant was within 1,000 feet of school property. He also admitted to being in possession of a firearm. Compounding his own statement is the physical evidence of marijuana found on him and in his home, car, and parents' home. Moreover, in her statement to the police, D.R. disclosed defendant had been selling drugs, and her claim at trial she owned the gun found in the apartment was resoundingly impeached. Finally, there was no credible evidence defendant's statement to the police was involuntary or coerced.
Accordingly, any alleged error in the officers' testimony was clearly harmless, making a new trial unwarranted under the plain error standard. R. 2:10-2.
C
After carefully reviewing the record and applicable legal principles, we conclude the remaining points, none of which but for argument point five was raised before the trial court, are of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Notwithstanding, we make the following comments about defendant's claim the court erred when it imposed a mandatory five-year, extended-term of imprisonment, with a three-year period of parole ineligibility, for the charge of third-degree possession with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7.
Having been previously convicted of violating N.J.S.A. 2C:35-7(a), defendant does not dispute he was eligible for a mandatory extended term under N.J.S.A. 2C:43-6(f). He does point out, however, that at the time of sentencing the court expressed its intention to sentence defendant at "the bottom of the range on the extended term." Defendant argues the bottom of the sentencing range for a third-degree offense is three years, see N.J.S.A. 2C:43-6(a)(3), and, thus, the court intended to impose a three-year term of imprisonment for this offense but mistakenly ordered a five-year term. We disagree. The record reveals the court intended to and did impose the minimal extended term of five years.
N.J.S.A. 2C:43-6(f) provides that upon a defendant's second conviction of certain designated drug offenses, he "shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by [N. J.S.A. 2C:43-7(c)]." N.J.S.A. 2C:43-6(f). N.J.S.A. 2C:43-7(c) refers to N.J.S.A. 2C:43-7(a), which provides that the enhanced sentencing range on a third-degree crime "shall be fixed by the court between five and [ten] years[.]" N.J.S.A. 2C:43-7(a)(4).
The language in N.J.S.A. 2C:43-6(f) and N.J.S.A. 2C:43-7(a) clearly indicates these statutes are mandatory. "Indeed, the Legislature emphasized that [N. J.S.A.] 2C:43-6(f) required a mandatory extended term by noting its awareness that 'extended terms are ordinarily discretionary with the court.'" State v. Thomas, 188 N.J. 137, 150 (2006) (quoting N.J.S.A. 2C:43-6(f)). N.J.S.A. 2C:43-6(f) does not authorize the trial court to sentence outside of the mandatory enhanced range.
We reviewed the language in State v. Robinson, 217 N.J. 594 (2014), on which defendant relies in support of his argument. We do not regard the dicta in Robinson, which is factually inapposite to the matter at hand, requires a different result. --------
Here, the State applied for an extended sentence pursuant to N.J.S.A. 2C:43-6(f) on the subject offense. The trial court was bound to apply a mandatory extended sentence between five to ten years. Consistent with its expressed intention to impose the lowest sentence possible on the extended term, the court did just that — it imposed a term of five years with a three-year term of parole ineligibility. We discern no error in that decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION