STATE OF NEW JERSEY VS. MARSHA G. BERNARD STATE OF NEW JERSEY VS. ANDREW DAVIS (14-01-0003, CAMDEN COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-3811-15T2
A-4893-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARSHA G. BERNARD, a/k/a
MARSHA GAY BERNARD,
Defendant-Appellant.
_____________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDREW DAVIS, a/k/a FLIPPA
MAFIA, FLIPPA MOGGELA,
DJ, and JOHN,
Defendant-Appellant.
_____________________________
Submitted February 6, 2019 (A-3811-15) and Argued
telephonically February 8, 2019 (A-4893-15) –
Decided May 1, 2020
Before Judges Ostrer, Currier and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 14-01-0003.
Joseph E. Krakora, Public Defender, attorney for
appellant Marsha G. Bernard (Richard Sparaco,
Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent in A-3811-15 (Sarah Lichter, Deputy
Attorney General, of counsel and on the brief).
Robin Kay Lord argued the cause for appellant Andrew
Davis.
Sarah Lichter, Deputy Attorney General, argued the
cause for respondent in A-4893-15 (Gurbir S. Grewal,
Attorney General, attorney; Sarah Lichter, of counsel
and on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
In these back-to-back appeals, consolidated for purposes of this opinion,
defendants Andrew Davis and Marsha Bernard challenge their convictions of
first-degree conspiracy to distribute cocaine and financially facilitate criminal
activity, N.J.S.A. 2C:5-2, N.J.S.A. 2C:21-25, and N.J.S.A. 2C:35-5; first-degree
distribution of cocaine, N.J.S.A. 2C:35-5; and lesser-included second-degree
financial facilitation of criminal activity (money laundering), N.J.S.A. 2C:21-
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25. The jury could not reach a verdict on Davis's first-degree charge of being a
leader of a narcotics trafficking network, N.J.S.A. 2C:35-3; and Davis appeals
from the court's order, granting the State's motion to retry him. Defendants also
challenge their sentences – an aggregate twenty-one years, with six years of
parole ineligibility for Bernard, and an aggregate twenty-five years, with twelve
years of parole ineligibility for Davis.
We affirm.
I.
The State contended that Davis and Bernard, with the help of others,
imported eighteen kilos of cocaine into New Jersey and then distributed the
drugs here. The State alleged Davis led the operation and directed Bernard and
other co-conspirators, including Davis's brother Kemar, 1 to mail the cocaine
from California, receive the packages in New Jersey, deliver cocaine to dealers,
and collect money. The case against Davis and Bernard consisted of the
testimony of former associates, who stated they distributed drugs for Davis;
police officers who described their surveillance of drug transactions involving
or connected to defendants, and the seizure of drugs and cash; and extensive
1
To avoid confusion, we will refer to Kemar by his first name, and Andrew
Davis by his last name; and we mean no disrespect in doing so.
A-3811-15T2
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recorded conversations, in which Davis and Bernard discussed their drug
distribution activities. In most of the calls, the participants spoke Jamaican
Patois, an English-based dialect that required translation or interpretation to be
understood by English speakers unfamiliar with its pronunciation, sentence
structure, and vocabulary.
The State presented evidence regarding several separate transactions
involving one or both defendants. In August 2012, in the course of intercepting
phone calls of another suspected drug distributor, George Jones, Millville Police
learned that Jones had arranged to purchase a large amount of cocaine from his
"Jamaican supplier." Police also learned that an associate, Gregory Spence, was
directed to pick up the cocaine and deliver it to Jones at a Holiday Inn.
Testifying for the State, Spence said that on the appointed date, he picked
up Kemar at the airport, and went to Davis's apartment, where four boxes of
cocaine were received. Davis told him to take "ten" to "G," meaning ten
kilograms to George Jones. When Spence returned to meet Jones at the hotel,
police arrested both of them and recovered ten kilograms of cocaine from
Spence's car and over $400,000 from Jones's hotel room. Spence testified he
had transported cocaine and conducted transactions on Davis's behalf since
2011; and he gave drug sale proceeds to Bernard when Davis was unavailable.
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In the months following the hotel seizure, based on information obtained from
a confidential informant, State Police Detective Erik Hoffman obtained warrants
to retrieve and record communications of Davis's and Kemar's cellphones.
In early January 2013, an officer assigned to interdict drugs at Los
Angeles International Airport (LAX) conversed with Kemar as he walked
through the terminal. As we discuss in greater detail in connection with
defendants' suppression motion, police ultimately uncovered over $140,000 in
cash hidden in Kemar's suitcase. In the months that followed, investigators
obtained additional warrants to intercept calls to and from Kemar's and Bernard's
cellphone.
In February 2013, Davis called Kemar to ask about a package that was
supposed to arrive at a Vineland address from California. Kemar called the post
office, falsely identified himself as Peter Williams, the sender, and was told that
the package was en route. Police intercepted the package and discovered several
kilos of cocaine hidden inside CD cases covered in wrapping paper. When
Kemar again called the post office, the postal employee, as directed by police,
told him the package could not be delivered due to an insufficient address.
Kemar reported this to Davis, who told him to obtain a fake driver's license in
the name of Peter Williams, so he could retrieve the package as its sender. After
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repeated calls, a postal employee eventually told Kemar the package was in a
"dead mail recovery center" in Atlanta. Kemar told Davis that he "don't like
how that sound[ed]." When informed of that, Davis instructed him to abandon
the package and change his phone number.
The State also presented evidence of multiple phone calls in February and
March 2013 involving Kemar, Bernard, and Davis, pertaining to a drug buyer's
complaint that a kilo of cocaine was "handicapped" and "bent." The calls
reflected defendants' involvement in the distribution of drugs, particularly to the
buyer.
Another Davis cohort, Shellyann Brown, testified that, beginning in April
2012, she received or picked up packages for Davis and gave them to Bernard,
who paid her for her service. In March 2013, Kemar talked to Brown about
another package she was supposed to receive in Hamilton from California.
Police intercepted the package, found cocaine inside, and asked the post office
to update the tracking information to "status not updated." Later, Brown was
informed the package leaked and was deemed hazardous. In subsequent
conversations, Kemar and Davis disbelieved the report and suspected someone
had stolen the package. Brown thereafter gave Kemar a different address to use.
After a package was sent there, police watched Brown give it to Bernard.
A-3811-15T2
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Davis called Bernard and told her to open the package and take "one" to
Angel Rivera and "two" to James McBride. Bernard asked Sidonie McLeod to
make the delivery to McBride at a Kmart in Moorestown. Police watched
McLeod do so, but did not intercede. Bernard told Davis that McBride paid
"forty-nine" for the "two" McLeod gave him.
Also in March 2013, Bernard contacted Rivera and asked him to meet in
the parking lot of the Red Lobster restaurant near the Cherry Hill Mall. Bernard
brought a shopping bag from one of the mall's stores to the parking lot and
handed it to Rivera, who put it in his car and entered the restaurant. Police
arrested him in the restaurant, and recovered the shopping bag. They found
cocaine inside, covered in birthday wrapping paper, and a receipt in Bernard's
name from the store that produced the shopping bag.
Later that month, Kemar and Davis talked about the expected delivery of
another package from California to a Princeton address Brown provided. Police
watched the delivery. After she received it, Brown called Bernard, who picked
it up. Bernard then called McBride to say she would deliver it to him around
7:00 that night. During that call, McBride said that Davis told him to "come
see" Bernard.
A-3811-15T2
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Bernard gave the package to McLeod to take to McBride. Police followed
McLeod, watched her hand the box to McBride, and then arrested the two. The
package contained cocaine and bore the delivery address Brown gave Kemar.
Bernard was arrested the same day, as were Brown and Kemar, who was in
California at the time. Davis was later arrested in California.
Defendants were indicted along with Kemar, Brown, and several others,
but defendants were tried together. As we noted, the jury found defendants
guilty of conspiracy, cocaine distribution, and money laundering, but was hung
on the leader charge against Davis. We will review the details of the court's
sentence when we discuss defendants' excessive-sentence arguments.
Davis presents the following points for our consideration:
POINT ONE
THE COURT'S JURY INSTRUCTION THAT THE
STATE'S TRANSLATIONS OF PHONE CALLS
CONDUCTED IN JAMAICAN PATOIS WERE
CORRECT IMPROPERLY INVADED THE
PROVINCE OF THE JURY, THEREBY DEPRIVING
DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
POINT TWO
THE MONEY LAUNDERING CONVICTION MUST
BE VACATED BECAUSE THE STATE FAILED TO
PROVE THAT DEFENDANT COMMITTED AN
ACT OF MONEY LAUNDERING SEPARATE FROM
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THE DRUG SALES BY WHICH THE MONEY WAS
OBTAINED.
POINT THREE
THE ORDER DENYING DEFENDANT'S MOTION
TO DISMISS COUNT TWO, FIRST-DEGREE
LEADER OF A NARCOTICS TRAFFICKING
NETWORK, AND GRANTING THE STATE'S
MOTION FOR RETRIAL MUST BE REVERSED
BECAUSE RETRIAL ON THAT COUNT IS
PRECLUDED BY THE DOUBLE JEOPARDY
CLAUSE OF THE NEW JERSEY CONSTITUTION.
POINT FOUR
THE COURT'S FAILURE TO DECLARE A
MISTRIAL OR AT A MINIMUM TO VOIR DIRE
THE JURY AFTER A JUROR INFORMED THE
COURT THAT SHE COULD NO LONGER
DELIBERATE "WITH A CLEAR HEAD," DENIED
THE DEFENDANT HIS STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO DUE PROCESS OF
LAW AND A FAIR TRIAL.
POINT FIVE
THIS COURT SHOULD REVERSE THE DENIAL OF
DEFENDANT'S MOTION TO SUPPRESS
ELECTRONIC EVIDENCE BECAUSE THE
CAPTURE OF DEFENDANT'S CELL PHONE
CONVERSATIONS FROM DECEMBER 13, 2012
ONWARD UNLAWFULLY UTILIZED THE CELL
PHONE TOWER FACILITY OF A FOREIGN
NATION (JAMAICA).
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POINT SIX
THE POLICE DID NOT HAVE SUFFICIENT BASIS
TO DETAIN KEMAR DAVIS, AND ALL EVIDENCE
RESULTING FROM THE WARRANTLESS
SEARCH OF HIS LUGGAGE SHOULD HAVE BEEN
SUPPRESSED.
POINT SEVEN
A QUALITATIVE WEIGHING OF THE
AGGRAVATING AND MITIGATING FACTORS
DOES NOT SUPPORT THE IMPOSITION OF AN
AGGREGATE SENTENCE OF 25 YEARS WITH 12
YEARS OF PAROLE INELIGIBILITY.
Bernard presents the following points for our consideration:
POINT I – THE EVIDENCE SEIZED FROM KEMAR
DAVIS AT LOS ANGELES INTERNATIONAL
AIRPORT SHOULD HAVE BEEN SUPPRESSED.
POINT II – THE COURT ERRED IN NOT
GRANTING DEFENDANT'S MOTION TO
DISCLOSE IDENTITY OF CONFIDENTIAL
INFORMANT.
POINT III – THE TRIAL COURT INVADED THE
PROVINCE OF THE JURY AS FACT-FINDERS IN
ITS JURY INSTRUCTION THAT THE COURT HAS
ALREADY FOUND THAT THE TRANSCRIPTS OF
THE INTERCEPTED PHONE CALLS WERE A
CORRECT TRANSLATION.
POINT IV – THE TRIAL COURT SHOULD HAVE
GRANTED DEFENDANT'S MOTION FOR A
MISTRIAL DUE TO THE STATE'S FAILURE TO
PROVIDE DISCOVERY OF STATEMENTS MADE
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BY DEFENDANT THAT LATER FORMED THE
BASIS FOR THE OPINION THAT THE
DEFENDANT'S VOICE WAS ON THE RECORDED
CONVERSATIONS.
POINT V – DEFENDANT'S SENTENCE OF
TWENTY-ONE YEARS WITH SIX YEARS PAROLE
INELIGIBILITY WAS EXCESSIVE BECAUSE
THESE CONSTITUTED HER FIRST ARREST AND
CONVICTIONS.
We first address the jury instruction and suppression issues, which both
defendants raise.
II.
Defendants argue the court usurped the jury's fact-finding role, and denied
defendants a fair trial, by instructing the jury that the transcript translating the
wire-tapped conversations presented at trial were "correct." We disagree.
Defendants invited the process by which the court found, after hearing from its
own expert, what was the correct transcription of the taped conversations. And,
even if defendants did not invite the court's finding, we are unconvinced the
judge's instruction on the transcript's correctness denied defendants a fair trial.
See R. 2:10-2. That is so for two reasons. First, the judge also instructed the
jury that it should decide whether the transcripts were correct. Second,
defendants identified no alleged errors in the transcript that caused them
prejudice.
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A.
As already noted, the State significantly relied on recorded conversations
involving defendants and Kemar speaking Patois. The dialect is English-based,
but employs special idioms and usages that may not be understood by non-
speakers. There is no accepted Patois-to-English dictionary. Words in Patois
develop and change over time (as do most languages).
The State proposed before trial to allow the jury to use the transcripts,
prepared by a State Police Patois expert, as aids when listening to the recorded
conversations. But, unlike in a case involving purely English recordings, the
aid was not intended merely to assure that the jury did not miss a word; it was
intended to assure that the jury understood the meaning of the words used.
However, the transcript did not involve a word-for-word translation. Rather, it
apparently constituted an interpretation as well.2
2
We cannot ascertain the extent to which interpretation exceeded word-for-
word translation, in part because the record does not include the actual
recordings, or a word-for-word transcription of them. Furthermore, defendants
have not identified any Patois words derived from a non-English language,
which required an intermediate translation into English, before a final
translation as to its meaning. In that respect, the translation was unlike a Spanish
recording that first had to be translated into English words, some of which
themselves had to be translated because they were drug code or slang. See
United States v. Gonzalez, 365 F.3d 656, 660-61 (8th Cir. 2004).
A-3811-15T2
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Davis's counsel stated that he "requested . . . that the Court appoint an
interpreter for purposes of the Driver hearing."3 Arguably, Davis's counsel
expressly agreed to be bound by the court-appointed expert's interpretation.
During the pre-hearing colloquy, Davis's counsel said that once the State and
defense were heard on a particular disputed portion of the interpretation, the
"court interpreter . . . would be the final say."
Once appointed, the expert reviewed each State-prepared transcript that
the State proposed to present at trial. After hearing the original wire-tapped
conversation or reviewing the captured text message, the expert offered her
view. In many cases, the expert approved of the State's translation; in some
cases, the interpreter suggested minor modifications after hearing from counsel.
None of the changes appeared to alter drastically the recorded conversation's
overall meaning, and some translations seemed apparent from the context. For
example, the expert explained that "drop" meant to "deliver" something; "shoot"
3
State v. Driver, 38 N.J. 255 (1962). A court at a Driver hearing typically
determines the admissibility of a sound recording – as distinct from its
translation – in light of such factors as whether "(1) the device was capable of
taking the conversation or statement, (2) its operator was competent, (3) the
recording is authentic and correct, (4) no changes, additions or deletions have
been made, and (5) in instances of alleged confessions, that the statements were
elicited voluntarily and without any inducement." Id. at 287. See also State v.
Nantambu, 221 N.J. 390, 395 (2015) (stating "reliability is the decisive factor in
determining the admissibility of a recording").
A-3811-15T2
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meant "send"; "my mind just run on you" meant "I was thinking about you";
"milk out" meant "used up"; "ray ray" meant "whatever, whatever"; "buff up"
meant "break" or "destroy"; and to "reach" meant to arrive at a locati on. The
trial court made clear that defendants retained the right to present their own
expert to testify at trial about disputed sections of the transcript. However,
defendants did not do so.
Before trial, the judge stated that he intended to instruct the jury that a
court-appointed, Jamaican Patois interpreter reviewed and in some cases revised
the transcripts, and "[f]ollowing this court-supervised evaluation, those
transcripts have been determined to be accurate translations of the recordings."
Both defense counsel objected on the grounds that, by sharing its finding, the
court infringed on defendants' right of confrontation. The court rejected Davis's
counsel's request that the court use the charge on oral statements, and rejected
Bernard's counsel's request that the court substitute "permissible" for "accurate."
Without waiving his objections, Davis's counsel suggested the court substitute
"correct" for "accurate," which the court did. The judge later stated he would
instruct the jury that "[w]hat the words mean [was] something that they [would]
have to consider."
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At trial, before the State began to play selected calls for the jury, the court
instructed the jury:
Members of the jury, a copy of the tape has been
marked into evidence. That is the evidence that you
should consider.
The State's evidence in th[i]s case includes numerous
phone calls and text messages intercepted through
various wiretaps, many of which are in Jamaican Patois,
a slang or jargon that has developed in that country.
Using investigators fluent in Patois, the State has
prepared transcripts of these recordings and messages.
Prior to trial at a hearing, those transcripts were
reviewed and, in some instances, revised by a Court-
appointed interpreter who is fluent in Patois.
Following this Court's supervised evaluation, the
transcripts have been determined to be a correct
translation of the recordings.
After a sidebar conversation, the court added:
Again, you're being provided with what we refer to as
"listening aids" that you're – they're going to play tapes,
which substantially will be in Patois.
These are for your guidance to listen to the tapes. The
tapes control what you listen to.
At another side bar, defense counsel objected to Hoffman stating what he found
important in certain recorded statements. The court then added the instruction:
A-3811-15T2
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At the end of the day, the jury has to make a
determination of all of the facts. You are the finder of
facts, and you have to analyze the tapes that will be
played to you. And, that is ultimately your province.
And, that's the important thing for you to consider as
we go forward.
The court overruled defendants' continuing objection, stating they could call
their own expert to challenge the transcripts' accuracy.
The transcripts were not formally entered into evidence and were not
permitted into the jury room. At trial, the State's Patois expert testified about
the translations and defendants cross-examined him as to their accuracy. He
agreed that Patois is an evolving dialect and that the meaning and interpretation
of words may vary depending on several factors. He also conceded that he left
Jamaica at age nine and had only visited there infrequently in the twenty -six
years since. He testified that his translations of the intercepted calls were
"interpretations of what was being said" because a word-for-word translation
into English would be "impossible." He agreed there are multiple ways of saying
the same thing in Patois and that some Patois words have several meanings. He
said he tried to put the words used by the speakers in the calls into context.
Defense counsel also cross-examined other witnesses about the nature of
Patois as a variable, fluid dialect. For example, Spence testified that there were
no Patois dictionaries and that the dialect was not taught in Jamaican schools.
A-3811-15T2
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State Police Detective Hoffman said that he relied on the State Police expert's
interpretations, and that it was "not for [him]" to consider whether the
differences in sentence structures between Patois and English were significant.
Counsel and the judge returned to the issue of the court's instruction
multiple times during trial, with defense counsel objecting to the court stating
its finding regarding the translations. The judge rejected the suggestion to
substitute "fair" for "correct" (but, as noted below, he did use that word in one
instance). He stated he would add a sentence to instruct the jury that it was the
final arbiter of the recordings' meaning.
In summation, Davis's counsel stated that the jurors should focus on the
words spoken on the tapes, because the translated transcripts were "not
evidence." She emphasized that Patois is a highly variable "slang language"
without dictionaries, and urged jurors to make their own determination as to the
content of the phone calls because the interpretations and translations were not
necessarily "what really was said."
In its final instructions, the court repeated its mid-trial instruction, stating
both that the court found the transcript "correct," but the jury was the final
arbiter of the facts:
The State's evidence in this case included numerous
phone calls and text messages through various wiretaps,
A-3811-15T2
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many of which are in Jamaican Patois, a slang or jargon
that has developed in that country.
Using investigators fluent in Patois, the State has
prepared transcripts of these recordings and messages.
Prior to trial, at a hearing, these transcripts were
reviewed and, in some instances, revised by a Court-
appointed interpreter who is fluent in Patois.
Following this Court's supervised evaluation, the
transcripts have been determined to be a correct
translation of the recordings.
However, as finders-of-fact, it is up to you, and you
alone, as the sole and exclusive judges of the facts in
evidence, to determine what was said and by whom, as
well as the meaning of the words and the intent of the
speakers.
Later, the court instructed the jury how to properly evaluate defendants'
alleged oral statements, and "consider[] whether or not the statements . . . is [sic]
as the State alleges." In so doing, the court characterized the transcripts as "fair"
as opposed to "accurate." The judge stated, "I specifically instruct you that it is
the tapes, themselves, that are the evidence and not the transcripts, which, after
pre-trial consideration, have been determined to be a fair aide [sic] in your
deliberation[s]."
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B.
Well-settled principles govern a claimed error in a jury instruction.
"[A]dequate and understandable jury instructions" are essential to a fair trial.
State v. Afanador, 151 N.J. 41, 54 (1997). For that reason, "[e]rroneous
instructions are poor candidates for rehabilitation as harmless, and are ordinarily
presumed to be reversible error." Ibid. Nonetheless, in order to reverse where
a defendant has objected to a charge, "there must 'be some degree of possibility
that [the error] led to an unjust result. The possibility must be real, one sufficient
to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise
might not have reached.'" State v. Baum, 224 N.J. 147, 159 (2016) (quoting
State v. Lazo, 209 N.J. 9, 26 (2012)). "[A]ny alleged error also must be
evaluated in light 'of the overall strength of the State's case.'" State v. Burns,
192 N.J. 312, 341 (2007) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).
We also review a jury instruction as whole, State v. Delibero, 149 N.J. 90,
107 (1997), particularly if the judge erred in one part of the charge, but correctly
instructed the jury elsewhere, State v. McKinney, 223 N.J. 475, 496 (2015). A
court may find an error harmless based on "'the isolated nature of the
transgression and the fact that a correct definition of the law on the same charge
is found elsewhere in the court's instructions.'" Baum, 224 N.J. at 160 (quoting
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State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997)); see also State v.
Medina, 147 N.J. 43, 55 (1996) (declining to reverse based on judge's erroneous
explanation of State's burden of proof where "[i]mmediately after delivering the
offending clause, the court provided a more accurate explanation of the State's
burden"). The court may also determine that reversal is unwarranted if
instructions are "not so much incorrect as they were capable of being improved."
Delibero, 149 N.J. at 106. Finally, a court may disregard a flaw in the judge's
instruction if the defendant invited or encouraged it. See State v. A.R., 213 N.J.
542, 561-62 (2013) (stating that, absent a fundamental injustice, an appellate
court may not reverse based on trial court errors that defense counsel induced or
encouraged, or to which counsel consented); State v. Ramseur, 106 N.J. 123,
282 (1987) (applying the invited error doctrine to the defendant's request for
specific jury instructions).
As a procedural matter, it was appropriate for the court to conduct a
hearing to determine the accuracy of the transcripts. Our courts have recognized
that "a transcript may be used as an aid for understanding a tape recording."
State v. DeBellis, 174 N.J. Super. 195, 199 (App. Div. 1980). However,
characterizing a transcript as a mere aid makes sense only when the jury can on
its own discern the recording's meaning. "[A] jury cannot very well follow the
A-3811-15T2
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tapes where they conflict with translations if the jury does not understand the
language of tapes. In such circumstances, it may make more sense to treat
translations of transcripts of non-English-language conversations, as well as the
tapes, as 'evidence.'" In re Audibility of Certain Recorded Conversations, 691
F. Supp. 588, 592 (D. Conn. 1988); see also United States v. Fuentes-Montijo,
68 F.3d 352, 355 (9th Cir. 1995) ("[W]hen faced with a taped conversation in a
language other than English and a disputed English translation transcript, the
usual admonition that the tape is the evidence and the transcript only a guide is
. . . nonsensical[.]").4
One court has held that using a transcript is "analogous to the use of expert
testimony as a device aiding a jury in understanding other types of real
evidence." United States v. Onori, 535 F.2d 938, 947 (5th Cir. 1976); see also
United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir. 1985) (explaining that a
jury must rely on a transcript as substantive evidence where it cannot understand
the foreign language recording). In this respect, the translation of a foreign
language recording is akin to an expert interpretation of drug code and other
4
The court also stated that describing the transcript as a mere aid "has the
potential for harm," where at least one juror speaks the foreign language in a
recording, and could translate the recording differently from the experts, and
may also serve as a jury-room expert. Id. at 355. Notably, in this case, jury
selection assured that no Jamaican Patois speaker was empaneled.
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expressions a jury may not understand. See State v. Hyman, 451 N.J. Super.
429, 446 (App. Div. 2017) (discussing need for opinion testimony to illuminate
"drug slang or code words [that] remain beyond the average juror's
understanding"). The court's preliminary hearing assured that the transcript
presented to the jury met a reasonable standard of accuracy. As the First Circuit
Court of Appeals has observed, "Where inaccuracies in the transcript combine
with possible bias in the transcription process, a transcript may be excluded from
evidence." United States v. Font-Ramirez, 944 F.2d 42, 48 (1st Cir. 1991).
Many federal appellate courts have endorsed a procedure by which the
trial judge encourages the parties to stipulate to a single transcription; and if that
is not possible, then the prosecution should be permitted to offer its qualified
expert's opinion about the recording's meaning, followed by the defendant's
expert's opposing view. See e.g., United States v. Rengifo, 789 F.2d 975, 983
(1st Cir. 1986) (stating the district court should "try to obtain a stipulated
transcript from the parties" and "[f]ailing such stipulation, each party should be
allowed to introduce its own transcript of the recording provided that it is
properly authenticated"); United States v. Llinas, 603 F.2d 506, 509 (5th Cir.
1979) (stating that if the court cannot secure the parties' stipulation to a common
transcript, "then each side should produce its own version of a transcript or its
A-3811-15T2
22
own version of the disputed portions" and may introduce evidence supporting
its version or challenging the opponent's (quoting United States v. Wilson, 578
F.2d 67, 70 (5th Cir. 1978))); see also Gonzalez, 365 F.3d at 660; United States
v. Zambrana, 841 F.2d 1320, 1336 (7th Cir. 1988); Cruz, 765 F.2d at 1023
(following Llinas).
The court here opted instead to appoint its own expert, to ascertain
whether the transcript was accurate and presentable to the jury. We find no error
in doing so, where defense counsel expressly requested that procedure, and the
State consented.
Federal cases hold that a defendant may not complain about the court's
decision to admit a transcript, or to permit a jury to consider it, if the defendant
has not presented evidence to challenge the government's evidence supporting
its version. See United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998)
(holding that the district court correctly concluded that "defendants had not
placed the accuracy of the transcripts in issue" where defendants "submitted no
competing translations"); Zambrana, 841 F.2d at 1335 (stating defendant may
not complain about use of government's transcript "[b]ecause defendants had
ample opportunity to either challenge specific portions of the government's
transcript or to prepare an alternate version"); Cruz, 765 F.2d at 1023 (stating
A-3811-15T2
23
that defendant "'cannot complain on appeal that the jury's fact-finding function
was usurped when he failed to present evidence which would have aided the
jurors in fulfilling [the] function'" of assessing the transcript's accuracy (quoting
Llinas, 603 F.3d at 510)).
However, at issue in cases like Franco, Zambrana, and Cruz was the
threshold admissibility of the transcripts. The court rejected defense arguments
that the prosecution's transcripts should not have been presented to the jury at
all because of alleged inaccuracies. Franco, 136 F.3d at 628; Zambrana, 841
F.2d at 1335; Cruz, 765 F.2d at 1023; see also Font-Ramirez, 944 F.2d at 48
(holding the court appropriately admitted a transcript where the defendant "did
not offer an alternative transcript and did not point out any specific inaccuracies
in the government's transcript").
Even if a defendant does not present an alternative translation, he or she
may still challenge the accuracy of the transcript the government presents to the
jury. To require a defendant to present an expert or an alternative translation,
as a pre-condition to contesting the accuracy of the government's translation,
would improperly impose upon the defendant a burden to produce evidence.
However, a defendant "has no burden to come forward with one scintilla of
A-3811-15T2
24
evidence." State v. Loftin, 146 N.J. 295, 389 (1996) (approving jury instruction
that defendant has no burden to present evidence).
Multiple federal circuit courts of appeal have held that the interpretation
of a foreign-language recording is a fact issue for the jury. See Gonzalez, 365
F.3d at 661; Zambrana, 841 F.2d at 1337 (stating "it is more properly the
function of the finder-of-fact to weigh the evidence presented by the parties as
to the accuracy of the proffered translation and to determine the reliability of
the translation on the basis of that evidence"); see also Franco, 136 F.3d at 628;
Rengifo, 789 F.2d at 983.
Where a transcript's accuracy is disputed, federal courts have held that the
trial judge should instruct the jury that it is obliged to resolve the factual dispute.
See Gonzalez, 365 F.3d at 661-62 (reviewing Eighth and Seventh Circuit model
criminal jury charges, which direct the jury to determine the accuracy of the
transcript); Franco, 136 F.3d at 626 (affirming conviction where trial court
instructed that the transcripts were "evidence subject to objections" and
"transcripts or portions of the transcripts may have to be evaluated by you for
accuracy, and you may accept, reject, or partially accept and reject the
transcript's accuracy"); Rengifo, 789 F.2d at 983 (stating that "[w]hen the jury
receives two transcripts of the same recording, it should . . . be instructed
A-3811-15T2
25
that there is a difference of opinion as to the accuracy of the transcripts and that
it is up to them to decide which, if any, version to accept").
The judge in this case duly recognized that the interpretation of the
recorded wire-tapped conversations was a fact issue; and that it was the jury's
role, ultimately, to resolve that issue. The court appropriately instructed the jury
that "as finders-of-fact, it is up to you, and you alone, as the sole and exclusive
judges of the facts in evidence, to determine what was said and by whom, as
well as the meaning of the words and the intent of the speakers."
The court's misstep was to share with the jury the court's own preliminary
finding. Doing so risked influencing the jury in making its own finding. See
State v. Ross, 229 N.J. 389, 416 (2017) (Timpone, J., dissenting) (noting the
potential harm "[w]hen a judge drifts from being a pillar of neutrality"). Just as
a judge should not disclose its preliminary finding as to the admissibility o f a
defendant's statement as voluntary, see State v. Hampton, 61 N.J. 250, 272
(1972), the judge here should not have told the jury that he found the transcript
to be "correct" and "fair." 5
5
We recognize that in Fuentes-Montijo, the court rejected a defendant's
challenge to a trial judge's instruction that directed the jury to accept an English
transcript of Spanish recordings presented at trial. 68 F.3d at 353. The trial
judge stated, "You are not free to reject the accuracy of the interpretation of the
A-3811-15T2
26
Nonetheless, we decline to reverse on this basis. Davis's counsel
evidently agreed to be bound by the court's expert. Davis may not argue now
that the court improperly instructed the jury that the court found the expert's
version correct and fair. However, even if Davis's counsel meant only to agree
the State could use the court's expert's version at trial, without waiving the right
to challenge it before the jury, the charge as a whole did not deny Davis or
Bernard a fair trial.
Although the judge's statement about his finding risked unduly
influencing the jury, the statement was true. And the judge clearly instructed
the jury that assessing the transcript's accuracy was ultimately a question for the
jury. Taken as a whole, the instruction was inartful, but not incorrect.
Most importantly, defendants failed to demonstrate that the judge's
statement caused them prejudice. They failed to identify any inaccuracies in the
transcript that the judge's statement may have dissuaded the jury from finding.
tape recordings differently than the interpretation given by the certified court
interpreter in the transcripts." Id. at 354. However, the case does not persuade
us that a trial judge generally should declare a transcript accurate. The Court of
Appeals noted that, absent the instruction, one or more bilingual juro rs could
have shared that with the jury "unknown to the parties." Id. at 355. Secondly,
the defendant arguably stipulated that the transcripts were true and accurate. Id.
at 353.
A-3811-15T2
27
Nor have they shown that any such inaccuracies were so significant that they
could have affected the verdict in light of other evidence of guilt. Other courts
have declined to disturb convictions where a defendant complained generally
that the jury considered an inaccurate transcript, but failed to identify the
inaccuracies or how they prejudiced the defendant. See Fuentes-Montijo, 68
F.3d at 355 (finding no abuse of discretion in instructing the jury that the
transcripts were accurate where defendants failed to identify inaccuracies that
likely affected the verdict); United States v. Pena-Espinoza, 47 F.3d 356, 360
(9th Cir. 1995) (affirming where court was "left with largely conclusory
allegations of possible inaccuracy and no indication that the court's ruling
[allowing readers of translations] likely affected the jury's verdict"); cf. Franco,
136 F.3d at 628 (holding there was no reversible error in allowing the transcripts
in the jury room "when there is no cognizable dispute concerning the accuracy
of the translation").
In sum, we reject defendants' argument that the court's jury instruction
denied them a fair trial, requiring reversal.
A-3811-15T2
28
III.
Defendants contend the court erred in declining to suppress over $140,000
in currency seized from Kemar at LAX. 6 They assert an officer detained Kemar
without reasonable suspicion.
We reject these arguments. Applying our deferential standard of review,
see State v. Elders, 192 N.J. 224, 243 (2007), we discern no basis to disturb the
trial court's fact-findings reached after a testimonial hearing, including its
finding that Kemar voluntarily spoke to the officer and consented to a search of
his luggage. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1974) (stating
that voluntariness of consent is a factual issue). As we review issues of law de
novo, see State v. Gamble, 218 N.J. 412, 425 (2014), we independently conclude
that Kemar was not unlawfully detained under the circumstances. See United
States v. Mendenhall, 446 U.S. 544, 554-55 (1980) (opinion of Stewart, J.)
(stating that characterization of incident as an investigatory stop is a legal
question); United States v. Montilla, 928 F.2d 583, 588 (2d Cir. 1991) (stating
"the Supreme Court's own practice suggests strongly that it views the seizure
issue as a legal question"); United States v. Maragh, 894 F.2d 415, 417-18 (D.C.
6
In a supplemental brief, the State concedes that defendants had standing to file
their motion.
A-3811-15T2
29
Cir. 1990); State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999) (stating
that a court conducts plenary review of court's application of the law to the facts
in a suppression motion).
The sole suppression hearing witness was Los Angeles Sheriff's Office
detective Steve Anderson. He was assigned to an LAX task force to stop drug
couriers. He explained that if he had no prior tip about an arriving courier, he
would simply approach people and ask to speak to them. Sometimes, he did so
randomly. Other times, he had a hunch the person was involved in criminal
activity, as when he approached Kemar. Kemar arrived on a flight from
Philadelphia, a major drug destination; he repeatedly looked over his shoulder
as he left the secure arrival area and entered baggage claim; he evidently made
multiple calls on his cellphone; and he appeared nervous.
Dressed in plain clothes with his weapon concealed, Anderson introduced
himself as a narcotics officer, displayed his badge and identification, and asked
Kemar if he would agree to answer "security questions." Anderson assured
Kemar that he was "not in any trouble, was not under arrest," but he did not
expressly tell him he could refuse to answer. Anderson testified that he would
not have restrained Kemar if he had refused, or walked away; but, Kemar
consented.
A-3811-15T2
30
Kemar said he traveled to Los Angeles on a one-way ticket that his sister
bought the previous week. He said he was there to visit friends and family, but
he did not know who would pick him up, where he would stay, or when he would
leave. Asked if he possessed a large amount of money, Kemar said he had a few
hundred dollars. Anderson noticed several hundred-dollar bills in Kemar's
wallet when he produced his driver's license, but did not think that was
significant for a traveler.
Anderson asked Kemar if he could check his bag, which Kemar had
retrieved from the baggage carousel. Kemar agreed. A sergeant standing
several feet away performed the search. He discovered that Kemar's bag
enclosed a second bag; and there was fresh glue and a bulge in the bag's interior
walls. That indicated someone had opened and resealed them, perhaps to secrete
cash or contraband. Anderson also noticed a bulge in Kemar's coat pocket the
size of another wallet. Anderson again asked Kemar about money he was
carrying. Kemar then said he had about $5000 in the pocket.
At that point, Anderson testified he had more than a hunch that Kemar
was involved in criminal activity. He asked Kemar if he would accompany him
and the sergeant to their office just beyond the terminal building. Kemar agreed,
A-3811-15T2
31
maintaining a calm demeanor. Anderson testified that if Kemar had not agreed,
he would have seized the bag, although he did not tell Kemar that.
With Kemar carrying his bag, and free of any restraints, they drove in a
police sedan 200 yards to the office. Once there, an officer opened the bag's
sealed walls and discovered over $140,000. Although Kemar said he packed his
own bag, he denied owning the money or knowing it was there. He signed a
form disclaiming ownership, and Anderson let him leave with his luggage, but
not the cash inside.
In denying the suppression motion, the court credited Anderson's factual
recitation, and found that Kemar voluntarily consented to answer Anderson's
questions, to permit the officer to search his bag, and to accompany Anderson
to his office. Applying California law, citing State v. Mollica, 114 N.J. 329,
347 (1989), the court held that Anderson did not detain or seize Kemar when he
approached him, asked him questions, and obtained permission to search his
bag. Kemar consented voluntarily, and California law did not require Anderson
to tell Kemar he could refuse.
Both defendants contend that Anderson's interaction with Kemar
constituted a detention – if not when he initially approached, then after he asked
A-3811-15T2
32
if he possessed a lot of cash – and Anderson lacked a reasonable and articulable
suspicion of a crime to justify that intrusion. We disagree.
We first address the applicable law. Although both defendants rely on
New Jersey case law, New Jersey law does not govern our analysis. That is
because, "[w]ith regard to law-enforcement activities, a state constitution
ordinarily governs only the conduct of the state's own agents or others ac ting
under color of state law." Id. at 345. "[I]t does not offend [New Jersey's]
constitutional principles . . . to allow the transfer of criminal evidence from the
officers of another jurisdiction . . . when the evidence has been obtained lawfully
by the former without any assistance by the latter." Id. at 352 (allowing evidence
seized by federal officials in compliance with the Fourth Amendment, but not
the New Jersey Constitution). There was no proof at the hearing that Anderson
was working with New Jersey law enforcement when he seized the cash.
Rather, we look to federal jurisprudence, since the Supremacy Clause
requires us to exclude evidence obtained in another state in violation of the
Fourth Amendment. See State v. Evers, 175 N.J. 355, 378 (2003). We would
not be obliged to enforce California law with the exclusionary rule even if it
were more stringent than federal law, Evers, 175 N.J. at 376-77 (declining to
exclude evidence obtained in violation of California statute), especially since
A-3811-15T2
33
California's constitution bars its own courts from suppressing evidence seized
contrary to California but not federal law. See Cal. Const., Art. I, § 28(d); In re
Lance W., 694 P.2d 744, 752 (Cal. 1985) (stating California constitutional
amendment eliminated exclusionary remedy "except to the extent . . . federally
compelled"). Enforcing California law would not further the purposes of the
exclusionary rule under New Jersey's constitution. See Mollica, 114 N.J. 352-
53.
Turning to the merits, the dispositive issue is whether, under federal
constitutional law, the law enforcement officers illegally detained Kemar when
he permitted the officers to search his luggage. We shall not disturb the court's
fact-finding that Kemar voluntarily consented to the search. Voluntariness of
consent is determined based on "the totality of all the circumstances."
Schneckloth, 412 U.S. at 227. Under federal law, the State is not required to
prove that the officer advised the suspect, or the suspect already knew, that he
or she was entitled to refuse, although knowledge is a factor in determining
voluntariness. Id. at 229-30, 248-49.7 But, if Kemar consented while illegally
7
We appreciate that "New Jersey's Constitution . . . provides greater protections
than the federal constitution when it comes to consent searches." State v. Shaw,
237 N.J. 588, 619 (2019). For example, New Jersey requires proof of knowledge
to establish voluntary consent. See State v. Johnson, 68 N.J. 349, 353-54 (1975).
A-3811-15T2
34
detained, then the detention would taint the consent, and the fruits of the search
would have to be suppressed. See Florida v. Royer, 460 U.S. 491, 507-08 (1983)
(plurality opinion) (holding that "consent was tainted by the illegality [of a
detention] and was ineffective to justify the search"); Id. at 509 (Powell, J.,
concurring) (agreeing with the plurality that search "cannot be viewed as
consensual" when given during illegal arrest).
Officers may detain or seize a person upon a reasonable and articulable
suspicion of criminal activity, but the "detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop." Id. at 498-500.
However, as the State concedes, before the officers found what appeared to be
a hidden compartment in Kemar's luggage, Anderson operated only on a hunch
about Kemar. The question, then, is whether Anderson was permitted, absent
reasonable suspicion, to approach and question Kemar as he did. Put another
way, we must decide whether Anderson unlawfully seized or detained Kemar at
any point before Kemar consented to the luggage search. Applying federal law,
we conclude Anderson did not.
But, we shall not exclude evidence on that ground, because Kemar did not enjoy
those protections.
A-3811-15T2
35
"[M]ere police questioning" in a public place "does not constitute a
seizure" requiring reasonable suspicion under the Fourth Amendment. Florida
v. Bostick, 501 U.S. 429, 434 (1991). "So long as a reasonable person would
feel free 'to disregard the police and go about his business,' the encounter is
consensual" and the officer need not have reasonable suspicion regarding the
person's activities to continue the interaction. Id. at 434 (quoting California v.
Hodari D., 499 U.S. 621, 628 (1991)); see also Mendenhall, 446 U.S. at 554
(opinion by Stewart, J.,) (stating that "a person has been 'seized' within the
meaning of the Fourth Amendment only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was
not free to leave"). 8
8
We recognize, as have other courts, that most people will not feel free to deny
an officer's requests under circumstances that the Supreme Court has declined
to characterize as a detention. See, e.g., United States v. Thame, 846 F.2d 200,
202 (3d Cir. 1988). However, it has been suggested that we not take the Supreme
Court test too literally. See 4 Wayne R. LaFave, Search & Seizure § 9.4(a) (5th
ed. 2012) (stating that "what is needed is an interpretation of the Mendenhall-
Royer test grounded in the proposition that police, without having later to justify
their conduct by articulating a certain degree of suspicion, should be allowed 'to
seek cooperation, even where this may involve inconvenience or embarrassment
for the citizen, and even though many citizens will defer to this authority of the
police because they believe – in some vague way – that they should'" (citation
omitted)).
A-3811-15T2
36
"[E]ven when officers have no basis for suspecting a particular individual,
they may generally ask questions of that individual; ask to examine the
individual's identification; and request consent to search his or her luggage – as
long as the police do not convey a message that compliance with their requests
is required." Bostick, 501 U.S. at 434-35 (internal citations omitted); see also
Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984) (per curiam) (stating "[t]he initial
contact between the officers and respondent, where they simply asked if he
would step aside and talk with them" implicated "no Fourth Amendment
interest").
Viewing the totality of circumstances, several factors support the
conclusion that Kemar was free to leave or to terminate the interaction with the
officers. Anderson did not display a weapon, accuse Kemar of a crime, use a
commanding tone of voice, or intimidate Kemar with the presence of several
officers (at least before he consented to the search). He told Kemar he was not
under arrest and not in trouble.
In Mendenhall, the agents – as did Anderson – approached a traveler in a
public concourse, wearing plain clothes, and not displaying weapons; they
identified themselves as law enforcement officers and then asked, not
demanded, to see the traveler's identification and ticket. 446 U.S. at 547-48.
A-3811-15T2
37
Justice Stewart concluded that "no seizure occurred." Id. at 555. As in Kemar's
case, absent were circumstances that "might indicate a seizure," such as "the
threatening presence of several officers, the display of a weapon by an officer,
some physical touching of the person of the citizen, or the use of language or
tone of voice indicating that compliance with the officer's request mi ght be
compelled." Id. at 554. Nor did the interaction become a detention after the
agents inquired about discrepancies in the traveler's documents, she agreed to
the agents' request that she accompany them to the office to answer further
questions, and she there consented to a search of her person and luggage. Id. at
548, 557-59. She was not told she had to go; and her ticket and identification
had been returned. Id. at 557-58.
By contrast, the Supreme Court found that narcotics agents seized an air
traveler when they approached him at the airport concourse, told him they were
narcotics agents, accused him of transporting drugs, asked for and then retained
his ticket and driver's license, retrieved and held the person's luggage, and then
asked him to go to a room forty feet away without indicating he was free to
depart. Royer, 460 U.S. at 494-95, 501.
Applying Mendenhall and Royer, the Third Circuit concluded that a
police-citizen interaction at Philadelphia's 30th Street Station, which has
A-3811-15T2
38
striking parallels to the case before us, did not constitute an investigative stop.
Thame, 846 F.2d at 201. A city police officer, followed by a drug enforcement
agent and an Amtrak investigator, approached the defendant as he reached the
train station lobby from the train platform. Id. After the officer identified
himself, Thame agreed to speak to him, to give his name, and to show his train
ticket, which bore a different person's name. Id. Thame explained it was a
friend's ticket, and showed other identification that had his correct name. Id.
The officer showed the identification to the drug enforcement agent, then
returned it to Thame. Id. at 202. The officer then asked Thame if he could
search his bag and Thame refused, because it contained "sensitive material." Id.
at 202. But, Thame consented to a dog sniff, which the officer proposed as an
alternative. Id. The officer then asked Thame if he would mind accompanying
them to the Amtrak office, which would be more private and out of the way. Id.
Thame carried his own bag to the office, where a dog twice alerted to drugs . Id.
A warrant was then obtained for the search. Id.
The court rejected Thame's argument that he was seized the moment he
refused to consent to the search. Id. at 204. "Unlike the defendants in
Mendenhall, Royer, and Rodriguez, Thame did not consent to a search after he
moved to another area in response to the officers' request, but rather was only
A-3811-15T2
39
asked to move to the Amtrak police office after he consented to the sniff test."
Id. at 203. Likewise, in this case, Kemar had already agreed to a search of his
luggage when Anderson suggested that they go to the office 200 yards away.
Thus, even if Kemar were unlawfully detained in the office, the consent to search
was not tainted because Kemar gave it during the consensual encounter in the
baggage claim area.
In any event, we are satisfied that Anderson had a reasonable and
articulable suspicion to detain Kemar by the time he asked Kemar to accompany
him to the office. In Royer, the Court agreed that police had sufficient suspicion
to justify an investigative detention based on: the defendant traveled under a
false name; he paid cash for a one-way ticket; he checked his bag under a
different name; and aspects of his appearance and conduct were consistent with
those of a drug courier. 460 U.S. at 502. The Court noted that "had Royer
voluntarily consented to the search of his luggage while he was justifiably being
detained on reasonable suspicion, the products of the search would be admissible
against him." Ibid.
The circumstances involving Kemar provide comparable support for
detaining him in the office, to complete the search to which he had already
consented. The sergeant discovered fresh glue and a bulge, indicating
A-3811-15T2
40
something was secreted in the luggage wall; Kemar misstated how much cash
he was carrying, but ultimately admitted he possessed $5000 on his person;
Kemar traveled on a one-way ticket, recently purchased, from a drug source city;
he said he was there to visit friends and family, but he provided no details about
where or how long he would stay; and he repeatedly looked over his shoulder
and made multiple phone calls as he entered the baggage claim area. Applying
his significant experience and training, Anderson stated that these factors
created more than just a hunch that Kemar was a drug courier. We agree.
Therefore, the trial court did not err in denying defendants' motion to
suppress the fruits of the search of Kemar's luggage. As the trial court found,
he voluntarily consented to the search; and, we conclude, no unlawful detention
tainted that consent.
IV.
Davis argues his double-jeopardy rights bar retrial on the leader-of-a-
narcotics-trafficking network charge, on which the jury was hung. He invokes
the "same conduct" or "same evidence" test for determining whether a
subsequent prosecution is for the "same offense" as the one for which a
defendant has been convicted. See U.S. Const. amend. V (stating that no person
"shall be subject for the same offence to be twice put in jeopardy of life or
A-3811-15T2
41
limb"); N.J. Const. art. I, ¶ 11 (stating "[n]o person shall, after acquittal, be tried
for the same offense"). 9 We review his argument de novo. Miles, 229 N.J. at
90.
The "same evidence test" is an "an alter ego" of the "same conduct test,"
id. at 101 (2017) (Albin, J., dissenting), and it bars subsequent prosecution "if it
relie[s] on the same evidence used to prove an earlier charge," id. at 93. See
also State v. DeLuca, 108 N.J. 98, 107 (1987) (stating that "[i]f the same
evidence used in the first prosecution is the sole evidence in the second, the
prosecution of the second offense is barred") (emphasis added); State v. Colon,
374 N.J. Super. 199, 217 (App. Div. 2005) (quoting DeLuca). The "same
evidence" test applies to crimes committed on or before the date of the Cour t's
opinion in Miles, when it abandoned that test. 229 N.J. at 86. Instead, the Court
held, consistent with the United States Supreme Court jurisprudence, that going
forward the "same elements" test, first enunciated in Blockburger v. United
9
Although our State Constitution refers only to trial after acquittal, our courts
have interpreted it to be "coextensive with the guarantee of the federal
Constitution." State v. Miles, 229 N.J. 83, 92 (2017). Yet, our Supreme Court
has in the past interpreted its double-jeopardy guarantee as more protective of
the federal guarantee. Id. at 101-03 (Albin, J., dissenting).
A-3811-15T2
42
States, 284 U.S. 299 (1932), would be "the sole test for determining what
constitutes the 'same offense' for purposes of double jeopardy." Ibid.10
We recognize that in successfully proving the conspiracy count, and the
distribution-or-possession-with-intent-to-distribute count, the State relied on
evidence that Davis directed others, including Bernard and Kemar – evidence it
would presumably utilize in retrying the leader count. However, we need not
delve into whether the State would, in the subsequent prosecution, rely solely
on the evidence it presented in the first. That is because a retrial after a hung
jury would not offend the double jeopardy clause.
"[T]he failure of the jury to reach a verdict is not an event which
terminates jeopardy." Richardson v. United States, 468 U.S. 317, 325 (1984);
State v. Cruz, 171 N.J. 419, 425-26 (2002) (reaching the same conclusion under
the New Jersey Constitution); State v. Travers, 229 N.J. Super. 144, 149 (App.
Div. 1988) (stating that "a prerequisite to the operation of" the double jeopardy
bar "is the termination of the former prosecution upon which the claim of double
jeopardy is predicated"). Although "[i]n some sense a defendant is in jeopardy
10
Davis does not argue that he satisfies the "same elements" test. Under that
test, "if each statute at issue requires proof of an element that the other does not,
they do not constitute the same offense and a second prosecution may proceed."
Miles, 229 N.J. at 93.
A-3811-15T2
43
when required to be retried following a mistrial because of a deadlocked jury [,]
. . . the jeopardy to which the defendant is exposed is considered a continuation
of original jeopardy, which was not terminated by the mistrial." State v. Abbati,
99 N.J. 418, 426 (1985).
In support of this hung jury rule, the Supreme Court has cited the public's
interest in the sound administration of justice. "[A] failure of the jury to agree
on a verdict [is] an instance of 'manifest necessity' which permit[s] a trial judge
to terminate the first trial and retry the defendant, because 'the ends of public
justice would otherwise be defeated.'" Richardson, 468 U.S. at 323-24 (quoting
United States v. Perez, 22 U.S. 579, 580 (1824)). Barring a retrial after a hung
jury "'would create an insuperable obstacle to the administration of justice in
many cases in which there is no semblance of the type of oppressive practices
at which the double-jeopardy prohibition is aimed.'" Id. at 324 (quoting Wade
v. Hunter, 336 U.S. 684, 688-89 (1949)).
If a jury acquits a defendant of a charge, and in so doing, determines that
the government has failed to establish facts that are essential elements of the
hung count, then principles of collateral estoppel and double jeopardy would bar
retrial of the hung count. Yeager v. United States, 557 U.S. 110, 119 (2009)
(stating that "'when an issue of ultimate fact has once been determined by a valid
A-3811-15T2
44
and final judgment' of acquittal, it 'cannot again be litigated' in a second trial for
a separate offense" (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970))); see
also State v. Snellbaker, 272 N.J. Super. 129, 136 (App. Div. 1994) (stating that
where jury hangs on greater charge, the New Jersey Constitution "might well
bar prosecution 'after acquittal' at least of an elemental lesser-included offense,
even if both charges had been originally moved simultaneously in the same
proceeding"). However, Davis was not completely acquitted of any charge. 11
Even if the conspiracy count for which Davis was convicted were
considered a lesser-included offense of the leader charge about which the jury
was hung – a point the State disputes – double-jeopardy principles do not bar
retrial of the leader charge. As we observed in Snellbaker:
[W]here a jury is deadlocked on indictable offenses
simultaneously moved with lesser or lesser-included
charges on which [the] defendant is convicted, the
reprosecution of the greater offense is not barred
because the "retrial . . . is not a successive prosecution"
and "[t]he jury's failure to reach a verdict on [one] count
is not an event that terminates jeopardy."
[Id. at 135 (quoting Commonwealth v. McCane, 539
A.2d 340, 346 (Pa. 1988)).]
11
We acknowledge that the jury found that the money laundering involved the
second-degree range of at least $75,000, but not the first-degree range of
$500,000 or more as charged.
A-3811-15T2
45
Other courts agree. See also United States v. Bordeaux, 121 F.3d 1187, 1193
(8th Cir. 1997) (stating that "where the jury expressly indicates that it is unable
to reach an agreement on the greater charge, a conviction on a lesser included
offense does not constitute an implied acquittal of the greater offense and
presents no bar to retrial on the greater offense"); People v. Fields, 914 P.2d
832, 838 (Cal. 1996) (holding that double-jeopardy principles did not bar retrial
of greater offense on which jury expressly deadlocked, where jury returned
conviction on lesser charge; but statute barred retrial); Hunt v. State, 622 A.2d
155, 157 (Md. App. 1993) (stating that under the Fifth Amendment's double -
jeopardy clause, "when an individual is indicted on two offenses, one being a
lesser-included offense of the other, and the jury is hopelessly deadlocked as to
the greater offense but has entered a judgment on the lesser-included offense,
the government is not precluded from prosecuting the greater offense").
Had the State waited to indict Davis on the leader charge until after his
trial and conviction of the other charges, we would be compelled to apply the
relevant tests to ascertain whether the subsequent trial was for the same offense.
See Brown v. Ohio, 432 U.S. 161 (1977) (stating that double-jeopardy clause
barred sequential prosecution of greater offense of auto theft after defendant
pleaded guilty to lesser charge of joyriding); State v. Dively, 92 N.J. 573, 582-
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83 (1983) (holding that double jeopardy barred trying a driver for death by auto
after he pleaded guilty to reckless driving, which was an essential element of the
more serious charge). Such sequential prosecutions would raise the kind of
oppression that the double-jeopardy clause is designed to prevent. But, the State
tried the charges together.
In sum, we reject Davis's argument that double-jeopardy principles bar
retrial of the leader charge, about which the jury was unable to reach a
unanimous verdict.
V.
Defendants' remaining points require relatively brief comment.
A.
We reject Davis's contention that his money laundering conviction must
be reversed. Davis argues the State failed to prove that he separately concealed,
disguised, or legitimized the proceeds of the drug transactions. However, the
statutory provisions upon which the State relied, N.J.S.A. 2C:21-25(a) and
25(b)(1), do not require that showing.
Under subsection (a), a person is guilty of money laundering if he or she
"transports or possesses property known or which a reasonable person would
believe to be derived from criminal activity." N.J.S.A. 2C:21-25(a). N.J.S.A.
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2C:21-25(d) states that a property is "known to be derived from criminal activity
if the person knows that the property involved represents proceeds from some
form . . . of criminal activity." N.J.S.A. 2C:21-25(d); see State v. Harris, 373
N.J. Super. 253, 265 (App. Div. 2004) (noting that N.J.S.A. 2C:21-25 "'reach[es]
well beyond'" laundering behavior and criminalizes "'any possession of property
known to be derived from criminal activity'" (quoting Cannel, New Jersey
Criminal Code Annotated, cmt. on N.J.S.A. 2C:21-23 (2004))).
Subsection (b)(1) does require two transactions. It makes it a crime if a
person "engages in a transaction involving property known or which a
reasonable person would believe to be derived from criminal activity . . . with
the intent to facilitate or promote the criminal activity . . . ." N.J.S.A. 2C:21-
25(b)(1). But, the element does not require a separate predicate act, nor does it
require concealment. Harris, 373 N.J. Super. at 262-63. It can be satisfied by
plowing the proceeds back into the criminal operation that generated them. Id.
at 266 (affirming conviction under subsection (b)(1) where the defendant
received proceeds from fraudulent real estate transactions, and then "assisted
her accomplices in using those proceeds to fund further fraudulent
transactions").
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By contrast N.J.S.A. 2C:21-25(b)(2) includes the element of concealment,
by making it a crime if a person
b. engages in a transaction involving property known or
which a reasonable person would believe to be derived
from criminal activity
....
(2) knowing that the transaction is designed in
whole or in part:
(a) to conceal or disguise the nature,
location, source, ownership or control of
the property derived from criminal
activity; or
(b) to avoid a transaction reporting
requirement under the laws of this State or
any other state or of the United States . . . .
See Harris, 373 N.J. Super. at 265-66 (rejecting argument that State needed to
prove the defendant concealed or "washed" criminal proceeds, as the State did
not charge her under N.J.S.A. 2C:21-25(b)(2)). In sum, we shall not disturb
Davis's money laundering conviction.
B.
We also reject Davis's argument that the court should have declared a
mistrial when one juror, after sixteen hours of deliberation, sent a note stating,
"Your Honor, I don't want to continue to be part of the deliberations. This is
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causing some high frustration levels on my part with other members of the jury
and I don't feel that I can continue to deliberate with a clear head."
The comment pertained to the jury's deliberative process. See State v.
Valenzuela, 136 N.J. 458, 471-72 (1994) (holding the trial court erred in
removing a juror after she stated that fellow jurors were "ganging up" on her,
they had a "different opinion" of the case and they called her a "hindrance" and
"very confused"). The comment did not reflect that the juror was unable to
continue because of matters personal to her, unrelated to her interaction with the
other jurors. See State v. Jenkins, 182 N.J. 112, 124-25 (2004); Valenzuela, 136
N.J. at 472-73. The court appropriately dismissed the jury for the day, to allow
a "cooling off." When the jury returned several days later to resume
deliberations, the juror expressed no further concerns about the ability to
continue. We discern no error.
C.
Davis's argument that the court erred by denying his motion to suppress
phone calls recorded by investigators while he was in Jamaica lacks sufficient
merit to warrant extended discussion. R. 2:11-3(e)(2). As the listening post was
in New Jersey, it matters not that some of the calls originated from, or connected
to, Davis's phone in Jamaica. See State v. Ates, 217 N.J. 253, 270 (2014)
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(holding New Jersey law, like federal law, authorizes wiretaps "when the
listening post – and thus the interception – is within the court's jurisdiction, even
if the phone is located elsewhere"); see also United States v. Cano-Flores, 796
F.3d 83, 86 (D.C. Cir. 2015) (holding that, since listening post was in Texas,
district court had jurisdiction to authorize wiretapping calls involving devices
in Mexico).
D.
We turn to Bernard's remaining arguments. We discern no abuse of
discretion in the court's denial of her motion to disclose the identities of two
confidential informants. See State v. Milligan, 71 N.J. 373, 384 (1976)
(establishing abuse-of-discretion standard of review). Bernard had the burden
to overcome the informant's privilege. N.J.R.E. 516. She did not demonstrate
that the State disclosed the confidential informants' identity, N.J.R.E. 516(a), or
that disclosure was essential to a fair trial, N.J.R.E. 516(b). Bernard has not
established that the informants were essential witnesses to a basic issue in the
case, or were active participants in the crime for which she was prosecuted. See
Milligan, 71 N.J. at 383-84. It is not enough to allege without support that the
informants might have exculpated her. Id. at 392 (rejecting as speculative claim
that informant would impeach State police witness).
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E.
Bernard also contends she was entitled to a mistrial because the State did
not disclose, before trial, that Hoffman was familiar with Bernard's voice
because he conversed with her about her children and other matters unrelated to
the charged offenses, after he arrested her. Citing Rule 3:13-3(b)(1)(B), she
contends these statements were "admissions or declarations against penal
interest made by the defendant that are known to the prosecution but not
recorded," and the State was obliged to disclose a summary of them before trial.
She argues that had she known in advance that Hoffman would rely on this
conversation to identify her voice on the recordings, she would have sought a
"voice lineup"; she would have moved to suppress the statements because they
were made without Miranda12 warnings; and she would have approached plea
negotiations differently.
First, it is unclear that the fact that Bernard chatted with Hoffman about
her children was an admission or declaration against penal interest,
notwithstanding that it helped enable Hoffman to identify her voice. On its face,
the discovery rule pertains to the substance of statements a defendant made, not
12
Miranda v. Arizona, 384 U.S. 436 (1966).
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a law enforcement officer's observations about the tone of the defendant's voice,
or other physical characteristics.
Second, we are unpersuaded that, even if the State violated its discovery
obligation, the court would have been compelled to order a mistrial under the
circumstances. A court exercises broad discretion in determining what remedy,
if any, it should impose for a failure to provide discovery, State v. Heisler, 422
N.J. Super. 399, 415 (App. Div. 2011), and, in particular, whether a mistrial is
warranted, State v. Harris, 181 N.J. 391, 518 (2004). "[A] mistrial should be
granted 'only in those situations which would otherwise result in manifest
injustice.'" Harris, 181 N.J. at 518 (quoting State v. DiRienzo, 53 N.J. 360, 383
(1969)).
Bernard does not persuade us that she would have pursued a different trial
strategy had the discovery been provided. Id. at 519 (stating "[d]enials of
mistrial motions have been overturned where 'a different trial strategy would
have been employed' but for the discovery violation" (quoting State v. Blake,
234 N.J. Super. 166, 175 (App. Div. 1989))). Bernard does not deny that she
was already aware, before trial, that Hoffman arrested her, and that she spoke,
even briefly to him. Furthermore, in identifying Bernard on the recordings,
Hoffman also relied on other circumstantial evidence, including people calling
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Bernard by her name in the conversations. Bernard provides no competent
evidence that she would have pleaded guilty, and under what terms, if only this
particular discovery were provided pretrial. Nor are we persuaded that a
Miranda motion would have succeeded in suppressing the voice identification.
See United States v. Mohammed, 693 F.3d 192, 197 (D.C. Cir. 2012) (stating
that "voice identification is not the type of incriminating information Miranda
protects," and rejecting the defendant's argument that "his statements were used
against him because [the officer] was only able to identify [the defendant's]
voice on the recordings at trial from having heard it first during the
interrogation").
In sum, any failure to disclose did not work a manifest injustice
compelling a mistrial.
VI.
Finally, we shall not disturb the sentences imposed on defendants. After
merging the conspiracy count, the court sentenced Davis to seventeen years with
eight years of parole ineligibility, and Bernard to fifteen years with six years of
parole ineligibility, for first-degree distribution or possession with intent to
distribute cocaine. On the money laundering count, the court imposed a term of
eight years with four years of parole ineligibility on Davis, and six years with
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no parole ineligibility period on Bernard. Consistent with the mandate of
N.J.S.A. 2C:21-27(c), the money laundering sentences were consecutive to the
drug distribution sentence. Thus, Davis must serve twelve years before parole
eligibility on a twenty-five-year aggregate term; Bernard must serve six years
on a twenty-one-year aggregate term.
With respect to Davis and Bernard, the court gave great weight to three
aggravating factors: the risk defendant would reoffend, N.J.S.A. 2C:44 -1(a)(3);
the substantial likelihood of involvement in organized criminal activity,
N.J.S.A. 2C:44-1(a)(5); and the need to deter the defendant and others, N.J.S.A.
2C:44-1(a)(9).
The court found two mitigating factors for both defendants, but weighed
them differently. The court found factors seven, no history of prior delinquency
or criminal activity or had led a law abiding life for a substantial period of time
before committing the present offenses, N.J.S.A. 2C:44-1(b)(7), and factor
eleven, imprisonment would entail excessive hardship to the defendant or the
defendant's dependents, N.J.S.A. 2C:44-1(b)(11). However, noting that Davis
had a prior contact with the criminal justice system, the court gave factor seven
only slight weight; but gave it moderate weight in Bernard's case. The court
gave factor eleven slight weight as to both defendants. The court concluded
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that, for Davis, the aggravating factors substantially outweighed the mitigating
factors; for Bernard, the court found that the aggravating factors simply
outweighed the mitigating.
Although these are certainly substantial sentences, we discern no basis to
disturb the court's exercise of sentencing discretion. The sentencing guidelines
were not violated; the court based its findings of aggravating and mitigating
factors upon "competent and credible evidence in the record"; and the court's
application of the guidelines does not make "the sentence clearly unreasonable
so as to shock the judicial conscience." See State v. Fuentes, 217 N.J. 57, 70
(2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).
Affirmed.
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