Opinion
DOCKET NO. A-4302-12T4
02-03-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MATTHEW G. NABER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Whipple. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-05-0808. Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason Boudwin, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his convictions for 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); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); and third-degree possession of cocaine and/or marijuana with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7. We affirm.
I.
During a burglary investigation of an apartment (the "apartment"), a detective noticed an open jewelry box filled with what appeared to be "little bags of crack[-]cocaine," and spotted what looked like "a plastic bag filled with individually wrapped . . . marijuana in little green plastic bags" in an open dresser drawer. The police then obtained a search warrant and seized from the apartment a digital scale with white residue, fifty-eight dollars, and additional crack-cocaine and marijuana.
The police determined that defendant resided in the apartment based on a utility bill located in the kitchen area. When defendant returned to the apartment, they arrested him on an open warrant and charged him with possession of narcotics. A grand jury subsequently indicted defendant charging him with fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3) (Count One); 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) (Count Two); third-degree possession of cocaine, N.J.S.A. 2C:35- 10a(1) (Count Three); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Four); and third-degree possession of cocaine and/or marijuana with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (Count Five).
Count One was dismissed prior to trial.
Defendant filed a motion to suppress the drugs seized from his apartment. He contended primarily that the evidence must be suppressed because the State failed to produce crime scene photographs during discovery. The judge denied defendant's motion concluding that the failure to produce the photographs was not as a result of bad faith, the photographs were not sufficiently material to the defense, and defendant was not prejudiced.
The matter then proceeded to trial. Defendant moved for a mistrial arguing that the judge improperly told the jury the defense was not ready to call witnesses, when defendant had no witnesses to present. The judge denied the motion, indicating that the comment "was not so egregious" when placed in context and that defendant received a fair trial. The jury found defendant guilty on Counts Two through Five.
At sentencing, the judge merged Counts Two through Four into Count Five, granted the State's motion for an extended prison term, and sentenced defendant to an extended-term of ten years in prison with five years of parole ineligibility.
Defendant raises the following points on appeal:
POINT I
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR WHEN SHE INFORMED THE JURORS THAT THERE WOULD BE DEFENSE WITNESSES IN A CASE WHEN THE DEFENSE HAD NO WITNESSES, AND THEN REFUSED TO GRANT [DEFENDANT'S] MISTRIAL MOTION AND FAILED TO PROVIDE A CURATIVE INSTRUCTION.
POINT II
THE COURT ERRED IN FAILING TO PROVIDE JURORS WITH AN ADVERSE-INFERENCE CHARGE AFTER THE POLICE FAILED TO PRESERVE THEIR CRIME-SCENE PHOTOGRAPHS OF [DEFENDANT'S] APARTMENT.
POINT III
BECAUSE [DEFENDANT] COMMITTED A NON-VIOLENT OFFENSE, THE COURT ERRED IN IMPOSING THE MAXIMUM EXTENDED TERM FOR HIS SCHOOL-ZONE DRUG CONVICTION.
II.
We reject defendant's contention that the judge erred in denying his motion for a mistrial.
Granting a motion for a mistrial "is an extraordinary remedy to be exercised only when necessary to prevent an obvious failure of justice." State v. Yough, 208 N.J. 385, 397 (2011) (citation and internal quotation marks omitted). Therefore, we "will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice." State v. Jackson, 211 N.J. 394, 407 (2012) (citation and internal quotation marks omitted).
It is well-established that "'[a] defendant is entitled to a fair trial but not a perfect one.'" State v. Loftin, 146 N.J. 295, 397 (1996) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 605 (1953)). The decision of "whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters peculiarly within the competence of the trial judge." Yough, supra, 208 N.J. at 397 (citation and internal quotation marks omitted).
Here, defense counsel indicated to the judge that the defense would not call any witnesses. However, after the State rested, the judge told the jury that
the [S]tate has presented to you all the witnesses that they are going to as it concerns their case. They have, what we call, rested.Defense counsel immediately requested a sidebar, and told the judge that "now I feel like there's an expectation I'm calling somebody. . . . [Y]ou said we didn't have our witnesses ready for today." The judge removed the jury from the courtroom and defense counsel indicated that she did not
That means that now the defense, if they choose to, will begin their case. My understanding is the defense . . . witnesses . . . [are] not quite ready to go today. Again, we moved quite quickly today. So they were not prepared to go any further.
want the jury to leave with the impression that we were going to be calling witnesses when we indicated that we were not. . . . I have no problem bringing the jury back out and resting on the record and then having them instructed that the only thing we're coming back to do tomorrow is close and charge them.The judge elicited from defendant that he understood his right not to testify, called the jury back in, and the defense rested in front of the jury before they were dismissed for the evening.
The following morning, defense counsel made a motion for a mistrial based upon the judge's assertion to the jury "that the reason for any delay was defense related and/or related to any unavailability of witnesses, which creates a presumption that the defense is calling witnesses, which . . . denied [defendant] a right to a fair trial[.]" The judge denied the motion, stating:
The standard, as it concerns a mistrial, has to be the same as it concerns motions for a new trial. There must be some showing of a miscarriage of justice or some prejudice to . . . the defendant that the defendant failed to get a fair trial.
. . . .
I am simply going to again make a finding that in the standard for a mistrial [it] is left within the discretion of the [c]ourt and this [c]ourt feels that what was said
was not so egregious that the jury is so tainted that it can't set what was said aside and give [defendant] a fair trial.
The judge later charged the jury that
[t]he burden of proving . . . each element . . . beyond a reasonable doubt, rests upon the State and that burden never shifts to the defendant. The defendant in a criminal case has no obligation or duty to prove his innocence, or offer any proof relating to his innocence.
. . . .
You will notice that [defendant] has elected not to testify at trial. It is his constitutional right to remain silent. You must not consider for any purpose or in any manner in arriving at your verdict the fact that [defendant] did not testify. . . .
There is no reason to disturb the trial court's decision denying defendant's motion for a mistrial because the judge's comment did not result in a "manifest injustice." Jackson, supra, 211 N.J. at 407. Defense counsel immediately objected to the judge's remark to the jury, and the defense rested before the jury shortly thereafter, which was defendant's requested remedy. The judge also properly charged the jury that defendant had no obligation or duty to prove his innocence, and that his choice not to testify could not be considered during their deliberations. We presume that the jury followed these instructions. State v. Smith, 212 N.J. 365, 409 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
III.
We conclude the judge did not abuse her discretion by denying defendant's request to provide the jury with an adverse-inference instruction related to the missing photographs depicting the location of the narcotics recovered from the apartment.
Our Supreme Court has defined the adverse-inference charge in the criminal context to be
analogous to the spoliation inference which may be drawn when evidence has been concealed or destroyed in civil cases. The spoliation inference[,] like the adverse-inference charge[,] allows a jury in the underlying case to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her.
[State v. Dabas, 215 N.J. 114, 140 n.12 (2013) (internal citation and quotation marks omitted).]
An adverse-inference instruction is considered a sanction for the violation of a discovery rule, and we review legal issues related to the use of discovery sanctions de novo. Id. at 131-32. However, "if the trial court had the legal authority to give the adverse-inference charge, we must then answer whether the trial court abused its discretion in not doing so." Id. at 132; see also State v. Marshall, 123 N.J. 1, 134 (1991) (indicating that "[t]he choice of sanctions appropriate for discovery-rule violations is left to the broad discretion of the trial court"), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). We have defined abuse of discretion to mean that "the trial court's decision must be so wide of the mark that a manifest denial of justice resulted." State v. Scherzer, 301 N.J. Super. 363, 424 (App. Div.), certif. denied, 151 N.J. 466 (1997).
Here, defendant argues that an adverse-inference instruction was necessary because the police failed to produce the crime scene photographs during discovery. We disagree. It is undisputed that the police took photographs of the apartment, but credible evidence shows that the photographs were deleted from the police department's computer system. The judge stated:
I visited what [adverse-inference] was. And it has absolutely nothing to do with this particular situation. It doesn't relate in any way, fashion, or form.
[Adverse-inference] . . . has to do with when a witness has not been called and the requestor can ask that the jury . . . can be told that they can . . . raise an inference or assume . . . an [inference] in that the witness wasn't called because the information that they would have given would have been damaging to the party who should have called them.
[T]hat is the only instance that I could find in my research that . . . had anything to do with [adverse-inference].
. . . .
Again, it relates solely to lack of calling a witness. Has nothing to do with documentary evidence. And especially in . . . the form that it's taken here with regard to it having been destroyed.
There was, in addition, nothing to suggest that the evidence that was not presented during the course of this trial had been intentionally destroyed.
And as I indicated in the original motion, I did not feel that . . . the "documents" that are being referred to as evidence were photographs that were used to substantiate the probable cause to get a warrant in this particular case.
I made a decision at that point in time that [the photographs were] not evidence, that the warrant, by virtue of it having been signed by . . . a judge is presumed valid, and therefore I was not going to suppress that evidence that was actually confiscated during the course of the search and that was seen during the initial investigation by the police officers as a result of being called for a burglary in progress.
Although the judge did not apply the proper legal standard, she nonetheless arrived at the correct conclusion. The judge failed to recognize the application of State v. W.B., 205 N.J. 588, 608-09 (2011), which held that "if notes of a law enforcement officer are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse[-]inference charge molded . . . to the facts of the case." (Emphasis added). See also Dabas, supra, 215 N.J. at 119 (finding that the defendant was entitled to an adverse-inference instruction because W.B. "left no doubt that law enforcement officers must preserve their handwritten interview notes even before the State is required to tender discovery to the defense"). Thus, despite the trial judge's statement to the contrary, an adverse-inference instruction may be appropriate in cases where documentary evidence is destroyed. This, however, is not one of those cases.
Unlike W.B., supra, 205 N.J. at 607, where the investigating detective purposefully destroyed her interview notes after writing the final report because "she was taught by her superiors not to retain the . . . notes," the lost crime scene photographs in this case were not intentionally destroyed. Also, any purported prejudice could not have resulted in a manifest denial of justice. Scherzer, supra, 301 N.J. Super. at 424.
The jury heard the investigating officers' testimonies as to the location of the narcotics found in the apartment, and learned that the crime scene photographs were lost through computer error. Although the photographs were not produced at trial, the narcotics confiscated from the scene were. These narcotics were the actual evidence of significance to the case, not the crime scene photographs. The narcotics, along with the scale, money, and baggies, were overwhelming evidence that the drugs found in the apartment belonged to defendant and that he had an intent to distribute them. See Loftin, supra, 146 N.J. at 397 (upholding a finding of guilt even in the face of trial errors when the trial "produced overwhelming evidence of defendant's guilt").
IV.
Defendant's argument that the judge erred by sentencing him to the maximum term allowable is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following brief remarks.
Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence imposed which is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). In sentencing, the trial court "first must identify any relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, ___ N.J. ___ (2014) (slip op. at 25). The court must then "determine which factors are supported by a preponderance of [the] evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215.
We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid. Furthermore, when a court is sentencing an individual to an extended-term under the persistent offender statute, N.J.S.A. 2C:44-3, the decision to sentence the defendant within that extended-term range "remains in the sound judgment of the [sentencing] court" subject to review under "an abuse of discretion standard." State v. Pierce, 188 N.J. 155, 169 (2006).
Here, the judge did not abuse her discretion by sentencing defendant within the allowable extended-term range. She found aggravating factors three (risk of reoffending), six (extent of defendant's criminal record), and nine (need for deterrence), based upon defendant's "long term involvement with drugs[,] . . . extensive juvenile and criminal history, and [defendant's failure] to respond affirmatively to prior periods of probation and incarceration." She also made the requisite factual findings to reject the mitigating factors requested by defendant. See State v. Bieniek, 200 N.J. 601, 609 (2010) (noting that while a judge does not need to "explicitly reject each and every mitigating factor argued by a defendant," there must be "reasons for imposing [the] sentence that reveal the court's consideration of all applicable mitigating factors in reaching its sentencing decision").
There is no reason to second-guess the trial court's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 364; see also Bieniek, supra, 200 N.J. at 612 (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION