Opinion
DOCKET NO. A-1697-13T4
10-15-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARRELL LOUISVILLE, a/k/a DARREL CHARLES, DARREL JEAN, RENALD LOUISVILLE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-04-0541. Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, on the brief). The opinion of the court was delivered by NUGENT, J.A.D.
Sentenced to a four-year custodial term after a jury convicted him of drug offenses, defendant Darrell Louisville appeals and argues: the affidavit supporting the search warrant for his residence was not based on probable cause; co- defendant's statement that he lived with defendant was improperly excluded at trial; and the court erred by permitting the jury to consider whether untested substances in four separately packaged bags contained cocaine, as did the tested substance in another bag. Finding no merit in defendant's arguments, we affirm.
A Middlesex County grand jury charged defendant in four counts of a five-count indictment with two counts of third-degree possession of a controlled dangerous substance (CDS), cocaine and ecstasy, N.J.S.A. 2C:35-10(a)(1); one count of third-degree possession with intent to distribute a CDS, cocaine, N.J.S.A. 2C:35-5(a)(1) and 5(b)(3); and one count of fourth-degree possession with intent to distribute a CDS, marijuana, N.J.S.A. 2C:35-5(a)(1) and 5(b)(12). The grand jury charged co-defendant Alfonso Garcia in the fifth count of the indictment with fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1. Following the indictment, defendant unsuccessfully moved to suppress drugs, money, and other evidence seized from his residence by the officers who executed the search warrant. Defendant and co-defendant were tried together.
During trial, the court dismissed the count charging defendant with possessing ecstasy. The jury found defendant guilty on the remaining counts. At sentencing, the court merged the remaining third-degree cocaine possession count with third-degree possession with intent to distribute cocaine and sentenced defendant to a four-year custodial term. The court also sentenced defendant to a concurrent eighteen-month custodial term on the remaining count, which had been amended to fourth-degree possession of marijuana. Lastly, the court imposed appropriate penalties and assessments. This appeal followed.
The affidavit for the warrant to search defendant's residence was prepared by Woodbridge Township Detective Bryan Jaremzcak. After detailing his extensive experience in law enforcement generally, including his considerable training and experience investigating illegal drugs and drug trafficking, the detective averred that in September 2010 an "untested" confidential informant (CI) told him defendant was dealing cocaine from his residence. The detective confirmed defendant's identity and home address by personal surveillance and by reviewing criminal records, motor vehicle records, and Woodbridge Police Department records.
In October 2010, Detective Jaremczak met with the CI to plan a controlled buy from defendant. After the detective searched the CI for contraband and money, and after the CI gave his own money to the detective, the detective gave the CI marked money. The CI was kept under surveillance until he entered the exterior door of defendant's apartment building. After several minutes, the CI exited through the same door. Detective Jaremzcak maintained surveillance of the CI until they arrived at a predetermined location, where the CI turned over suspected cocaine he said he just purchased from defendant. According to the affidavit, the amount of cocaine was consistent with the sum of money Detective Jaremzcak gave the informant. The detective searched the informant again and found neither contraband nor currency. Back at headquarters, the cocaine "tested positive for the presumptive presence of cocaine."
In November 2010, the CI made a second controlled buy from defendant. The same procedures were followed. This time, however, police maintained surveillance of defendant as he exited his residence and went to a predetermined location where he met the CI. Defendant and the CI "met for a brief moment and then parted ways." Detective Jaremzcak maintained surveillance of the CI until they met at a predetermined location where the CI turned over a suspected quantity of cocaine, which the CI said he had just purchased from defendant. According to the affidavit, "[t]he amount of cocaine was consistent with the sum of buy money the informant was provided with." The detective searched the informant and found no contraband or currency. The detective then returned to headquarters where, once again, the CDS "tested positive for the presumptive presence of cocaine."
Based on the detective's affidavit, a judge issued a search warrant for defendant's residence. Law enforcement officers executed the warrant and seized illegal drugs and other evidence.
At trial, the parties stipulated to the lease between defendant and his landlord for his apartment residence. Detective Jaremczak testified he and other officers searched defendant's residence on a November evening in 2010. After the detective identified the street address, he was asked by the prosecutor who lived there, and he replied, "[defendant] and at that time his girlfriend." When the officers entered defendant's apartment, six people were present: defendant, his girlfriend and their baby, defendant's brother and his girlfriend, and co-defendant. All but co-defendant emerged from the bedroom. Co-defendant Garcia attempted to escape through a bathroom window, but police officers restrained and arrested him.
The police searched the entire premises. During the search, the police seized from a closet near the apartment's front door two bags containing a total of approximately 6.9 grams of crack cocaine, a blue pill the police suspected was ecstasy, a bag containing 8.2 grams of marijuana, "an air soft pistol with two mags and black holster," and $475 in cash. The police found another bag of marijuana in a dining room television stand. This bag contained 5.2 grams.
The police also seized seven cell phones from the dining room table and four bags of crack cocaine from the top of the bedroom dresser. The four bags each weighed approximately 1.1 grams. From the dining room table, police seized paperwork with defendant's name and address, including a Comcast cable bill. Lastly, the police seized from the kitchen a digital scale, baking soda, and sandwich bags.
Detective Carlos Villegas was the detective who searched the closet and found the cocaine, marijuana, money, pill, and pistol. He described the cocaine as "cookies of crack." The detective filled out a currency form for the seized money. Procedure required the person who claimed the money to sign the form. Co-defendant signed the form.
The police also searched defendant and co-defendant but found nothing. Detective Jaremczak asked co-defendant Garcia what property in the apartment was his; co-defendant replied "'some clothes and some of the marijuana was his.'" Co-defendant did not say where his clothes were. The detective assumed Garcia "had a couple of shirts or whatever laying around." Co-defendant "said 'he was staying there for a little.'"
Although the prosecutor did not object to the cross-examination about co-defendant's statements concerning his clothes and staying in the apartment, he later asked the court outside of the presence of the jury to strike co-defendant's responses as hearsay. The court instructed the jury to disregard co-defendant's statement that he was staying at the apartment.
Defense counsel argued that Garcia's statement that he was "living here" was admissible hearsay. The trial court ruled that the statement was inadmissible because "it's not against [Garcia's] penal interest that he was hanging out at the house." The trial judge determined Garcia's statement that "some of the pot" was his was admissible, but not his statement that he was "living here."
A New Jersey State Police forensic chemist testified he tested the green vegetation in one bag and it was positive for marijuana. He did not test the vegetation in the other bag. The total gross weight of both bags was 12.894 grams. There are 28.35 grams in an ounce.
The chemist also tested the powder recovered from one bag found in the front closet. It tested positive for cocaine. The chemist did not test all the suspected cocaine because, collectively, the total weight of the six pieces was seven grams. The chemist explained that the grading or degree of the crime of cocaine possession varies depending upon the quantity of cocaine a suspect possesses. Possessing less than one-half ounce of cocaine is a lesser degree crime than possessing more than one-half ounce. If the total weight of all cocaine seized from a suspect is less than one-half ounce, the chemist would not test all of the individual units seized; possessing a trace amount is the same degree offense as possessing nearly one-half ounce. Approximately 20,000 drug cases come to the police labs each year and if the labs had to test every individual unit in every drug case, the case load would be extreme. The expert estimated the State would need perhaps fifty times its current resources to accommodate such an increase.
The State also qualified a narcotics investigator as an expert in narcotics redistribution. Based upon the evidence seized from defendant's residence, the way some of the drugs were packaged, and other factors such as the use of ammonia and baking soda, generally, to produce crack cocaine, the expert opined that the cocaine seized by police was possessed for redistribution.
The expert explained that the four bags of crack seized from the bedroom dresser were consistent with dosages possessed for use by a user. The larger pieces found in the closet were not consistent with mere possession. "The little pieces, the small four pieces you could see they're tied up in a little knot in a clear plastic bag, these are already set for distribution purposes. The larger pieces that weigh eight grams or so, these are not yet re-packaged for distribution."
The expert also testified that the sandwich bags in which the larger pieces of cocaine were contained "match[ed] the sandwich bags that the little pieces have in them. So, what they do is they'll break . . . a chunk off, they'll weigh it if they have a scale, they'll tie it — they'll bring it down to the end, they'll make a knot and they'll tie it off and then they'll cut the knot."
The defendants presented no evidence. Based on the State's proofs, the jury found defendant guilty of the three offenses we have previously enumerated. The judge sentenced defendant to an aggregate four-year custodial term. This appeal followed.
Defendant presents the following points for our consideration:
POINT I
THE SEARCH OF DEFENDANT'S HOME WAS ILLEGAL BECAUSE THE TIP OBTAINED FROM AN UNTESTED INFORMANT FAILED TO MEET THE STANDARD FOR PROBA[B]LE CAUSE AS THE INFORMANT'S VER[AC]ITY AND POLICE CO[RROBO]RATION WERE INSUFFICIENT.
POINT II
EXCLUSION OF GARCIA'S STATEMENT THAT HE WAS LIVING AT THE HOUSE WAS FATALLY PREJUDICIAL TO DEFENDANT'S DEFENSE AND SHOULD HAVE BEEN PROPERLY ADMITTED ON THE RECORD AS A STATEMENT AGAINST INTEREST.
POINT III
THE TRIAL JUDGE'S RULING TO ALLOW THE JURY TO DRAW[] AN INFERENCE THAT THE FOUR BAGGIES FOUND IN THE BEDROOM CONTAINED CRACK COCAINE WENT BEYOND HIS DISCRETION BECAUSE THE PREJUDICE WHICH ENSUED OUTWEIGHED ANY PROBATIVE VALUE.
In his first point, defendant challenges the trial court's finding of probable cause to issue the search warrant. He contends that the court's finding of probable cause based on the controlled buys is erroneous for two reasons: first, no officer witnessed defendant either possessing drugs or handing drugs to the CI; second, though the "affidavit claimed to have verified the identity and address of defendant through [m]otor [v]ehicle and [p]olice [r]ecords," no "bills or anything that showed defendant was the owner/possessor of the residence [were] recovered [until] after the police conducted their search." We disagree with defendant's arguments.
A search executed pursuant to a warrant is presumed valid, and it is the defendant's burden to prove "'there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" State v. Keyes, 184 N.J. 541, 554 (2005) (quoting State v. Jones, 179 N.J. 377, 388 (2004)). "'[P]robable cause is a flexible, nontechnical concept' that requires balancing 'the governmental need for enforcement of the criminal law against the citizens' constitutionally protected right of privacy.'" Id. at 553-54 (quoting State v. Kasabucki, 52 N.J. 110, 116 (1968)).
"When determining whether probable cause exists, courts must consider the totality of the circumstances, and they must deal with probabilities." Schneider v. Simonini, 163 N.J. 336, 361 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001) (citing Illinois v. Gates, 462 U.S. 213, 230-31, 238, 103 S. Ct. 2317, 2328, 2332, 76 L. Ed. 2d 527, 543-44 (1983). In reviewing a trial court's finding of probable cause, we generally accord substantial deference to the trial court's sound discretion in issuing a search warrant and ordinarily resolve any doubt as to the validity of the warrant by sustaining the search. Keyes, supra, 184 N.J. at 554.
Although the Supreme Court has rejected the notion "that a controlled drug buy conclusively establishes probable cause[,]" the Court has also explained, "[t]o be sure, a controlled drug buy typically will be persuasive evidence in establishing probable cause." State v. Sullivan, 169 N.J. 204, 216-217 (2001). In this case, the detective's verification of defendant's identity and address and the two controlled buys — one made as police surveilled defendant and the CI — established probable cause.
Defendant's apparent belief that officers must actually observe a suspect in possession of drugs before their corroboration of an untested informant's tip will establish probable cause overlooks the probable cause standard. Police need not determine through first-hand observation that a suspect is selling drugs to establish probable cause. In determining whether probable cause exists, courts must consider the totality of circumstances and must deal with probabilities, not absolute certainties.
Defendant's argument concerning the records the officers used to verify defendant's address is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant has failed to sustain his burden of proving that the presumptively valid warrant was issued without probable cause.
Defendant next argues the trial court improperly excluded co-defendant's statement that he was staying at the apartment, a statement defendant deems admissible under the statement-against-interest exception to the hearsay rule. Defendant contends co-defendant's statement concerning staying at the apartment, considered with both his admission that some of the marijuana was his and his claim to the cash seized from the closet, tended to exculpate defendant. Defendant maintains that because the statement was exculpatory, the trial court's exclusion of the statement could not have been harmless error.
"[A] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2000) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). As such, "an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." Ibid. (internal citation and quotation marks omitted).
A statement against interest is admissible, if relevant, as an exception to the hearsay rule. N.J.R.E. 803(c)(25). A statement against interest is defined as
[a] statement which was at the time of its making so far contrary to the declarant's
pecuniary, proprietary, or social interest, or so far tended to subject declarant to civil or criminal liability, or to render invalid declarant's claim against another, that a reasonable person in declarant's position would not have made the statement unless the person believed it to be true. Such a statement is admissible against an accused in a criminal action only if the accused was the declarant.
[Ibid.]
"The statement-against-interest exception is based on the theory that, by human nature, individuals will neither assert, concede, nor admit to facts that would affect them unfavorably. Consequently, statements that so disserve the declarant are deemed inherently trustworthy and reliable." State v. White, 158 N.J. 230, 238 (1999). Whether a statement is in fact against the declarant's interest must be determined from the circumstances of each case. Brown, supra, 170 N.J. at 149.
Here, we cannot conclude the trial court's ruling was so wide of the mark that a manifest denial of justice resulted. Id. at 147. Defendant's argument is premised on the propositions that drugs were "found in a common area . . . where anyone had access[,]" and Garcia's statement "subjected him to criminal liability because when he made it "he was liable for the same offenses defendant was charged with." Yet, co-defendant's statement that he had been staying at the apartment was not facially self-incriminating and there was no evidence co-defendant believed that merely staying at the apartment exposed him to such criminal liability. See State v. McGuire, 419 N.J. Super. 88, 138 (App. Div.), certif. denied, 208 N.J. 335 (2011).
Moreover, the jury heard evidence that defendant both admitted to possessing some of the marijuana and claimed the money found in the closet. If the jury were inclined to acquit defendant on the basis that co-defendant possessed the marijuana and cocaine exclusively, it is hardly likely the jury would have been dissuaded from doing so based on a belated jury instruction to disregard co-defendant's statement that he had been staying at the apartment. Stated differently, even if the court had erred by charging the jury to disregard the statement, the error was not "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.
In his final point, defendant argues the trial court committed prejudicial error by permitting the jurors to infer the four small bags seized from the bedroom — never tested at the police lab — contained cocaine. According to defendant, the court's ruling effectively shifted the burden to defendant to prove the substance in the bags was not cocaine. Defendant also argues that the probative value of the evidence, namely, the four baggies in the bedroom, was far outweighed by the risk of undue prejudice. N.J.R.E. 403.
Defendant's argument overlooks that the State can prove its case through circumstantial evidence:
[T]he existence of and dealing with narcotics may be proved by circumstantial evidence; there need be no sample placed before the jury, nor need there be testimony by qualified chemists as long as the evidence furnished ground for inferring that the material in question was narcotics.
[State v. Jester, 68 N.J. 87, 90-91 (1975) (quoting United States v. Agueci, 310 F.2d 817, 828 (2d Cir. 1962)).]
In Jester, the Supreme Court also explained that "[i]f a random sample from the bulk is obtained and if that sample tests positively for heroin, that is sufficient to support the conclusion that the unsold residue is of the identical substance, absent any evidence to the contrary." Id. at 91.
Here, there was ample circumstantial evidence from which the jury could have inferred beyond a reasonable doubt that the four baggies in the bedroom contained cocaine. That evidence consisted not only of the laboratory testing establishing that one of the "cookies" in the closet contained cocaine, but also of the testimony of the State's expert. The expert described how crack cocaine in user dosages is made from larger quantities and packaged. The expert also testified that the baggies in the bedroom were of the same material as that containing the "cookies" in the closet. The inference that the four baggies contained cocaine was further supported by the existence of the scale, baking soda, and plastic bags in the kitchen. Defendant's remaining arguments on this point are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION