STATE OF NEW JERSEY VS. KENNETH TORRES(11-06-0538, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 NO. A-5185-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KENNETH TORRES,
Defendant-Appellant.
__________________________________________
Submitted February 9, 2017 – Decided July 6, 2017
Before Judges Lihotz and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 11-06-0538.
Joseph E. Krakora, Public Defender, attorney
for appellant (Frank M. Gennaro, Designated
Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent
(Danielle R. Pennino, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Kenneth Torres appeals from a December 19, 2014
judgment of conviction, entered after a jury trial. The jury
found defendant guilty of fourth-degree possession of marijuana,
N.J.S.A. 2C:35-10(a)(3), but acquitted him of second-degree
possession of marijuana with intent to distribute, N.J.S.A.
2C:35-5(b)(10)(b). The court sentenced defendant to three years
of probation.
After reviewing the record and applicable legal principals,
we affirm.
I
The relevant evidence adduced at trial was as follows. Co-
defendant Daniel Rivera rented one of the three bedrooms in his
apartment to defendant. Although defendant always kept his
bedroom locked, Rivera did have a key.
In October 2010, the police were authorized to and did
search the apartment. The police found marijuana in four small
Ziploc bags in a shoe in defendant's bedroom; in the aggregate,
the amount of marijuana found in the shoe weighed less than a
pound. Also discovered in defendant's room was a Ziploc bag
containing marijuana; the amount of marijuana in this bag was
not clear. In addition, $2000 in cash inside of a light bulb
fixture and $2248 in cash in a safe were found.
The police also located marijuana bundled in trash or
Ziplock bags in the other rooms of the apartment. The quantity
discovered outside of defendant's bedroom indicated such
2
A-5185-14T4
marijuana was for distribution. Varying amounts of cash were
also found. The State's expert in narcotics testified a person
who uses marijuana for personal consumption generally does not
possess more than five pounds at any one time. If one possesses
more than six pounds of marijuana, likely such marijuana is for
distribution.
During his testimony, defendant admitted the marijuana in
the shoe belonged to him and was for his personal consumption.
Other than the marijuana found in the shoe, defendant disavowed
knowledge or ownership of the marijuana found in his bedroom or
elsewhere in the apartment. Defendant admitted the $2246 in
cash found in his safe belonged to him, but asserted the cash
were tips he earned as a barber. He claimed he did not know of
the cash stored in the light bulb fixture. Defendant also
mentioned he spent little time in the apartment, preferring to
spend his free time with his girlfriend. As referenced above,
defendant was acquitted of possession of marijuana with intent
to distribute, but convicted of possession of this drug.
Before the trial, defendant filed a motion for leave to
introduce evidence Rivera sold Ecstasy to an informant in two
separate controlled buys. Defendant's purpose was to show
Rivera was engaging in drug-dealing and, thus, it was more
likely the large amounts of marijuana found in the apartment
3
A-5185-14T4
belonged to Rivera and were earmarked for distribution.
Sensitive to the fact such evidence would prejudice Rivera,
defendant sought to be tried separately.
The court denied the motion to admit the evidence and sever
the trials, finding the proffered evidence irrelevant and its
probative value substantially outweighed by the risk of
confusing the issues or misleading the jury, see N.J.R.E. 403.
The court stated:
[T]he mere fact that one party may have sold
ecstasy does not mean that they were, at any
time, selling or distributing marijuana.
And, it's that broad brush problem that 403
is talking about, is tending to confuse the
issue.
The issue on trial – while there is a
possession of ecstasy charge, there's no
distribution of ecstasy charge. Therefore,
it's not even relevant. The distribution of
ecstasy does not tend to prove the
distribution of marijuana.
So, I don't see it being admissible in
either case, whether it's severed or whether
it's not severed. Because, it will tend to
confuse the jury and mislead the jury away
from the real issue. Who was in possession
of marijuana and who was distributing the
marijuana. . . .
And, I think this is capable of misleading
the jury, or leading the jury away from the
central issue that they have to determine,
which is the possession and the possession
with intent to distribute marijuana.
4
A-5185-14T4
Turning to another issue pertinent to this appeal, when he
exhausted his preemptory challenges during jury selection, the
court declined defendant's request to excuse for cause those
prospective jurors who were or had family members in law
enforcement. At the time defendant made this request, eight of
the jurors seated in the box were connected to law enforcement.
Specifically, two of the jurors were working as corrections
officers; two had family members working as corrections
officers; one was a retired corrections officer; one was a "RICO
specialist" for the county jail; one had a brother-in-law
working as a state trooper in Vermont; and one had family
members working in various prisons in the county.
Before they were seated, each of these jurors had been
vetted by responding to the jury selection questionnaire for
criminal trials. See Administrative Office of the Courts
Directive # 4-07 (May 16, 2007). Each of the eight subject
jurors was specifically asked if his or her connection to law
enforcement would affect his or her ability to be fair and
impartial; each replied in the negative. There were other
jurors connected to law enforcement who were similarly vetted;
those who stated they could not be impartial were removed for
cause.
5
A-5185-14T4
Relevant to another issue on appeal, before any witnesses
were called, the court ordered there be no mention of the police
having engaged in a surveillance of the apartment before it was
searched, conducted controlled buys of drugs from Rivera, or
secured a search warrant of the apartment. Notwithstanding this
order, during the cross-examination of a detective called by the
State, the following exchange occurred:
DEFENDANT'S COUNSEL: [D]uring the week of
September 19, 2010, how did you assist
[Officer Shaw] in observing [the defendants'
residence]?
DETECTIVE: I assisted [Shaw] by observing
[the residence] and the informant . . . the
target, rather[,] do a controlled buy.
Because the detective made reference to one of the
controlled buys, both defense attorneys immediately requested a
mistrial. Defendant also argued the jury might speculate he was
the target the detective referenced, unduly prejudicing him.
Defendant further pointed out because of the court's earlier
ruling, he was precluded from introducing evidence it was the
co-defendant who was in fact the target, the person from whom
the police purchased drugs as part of a controlled buy.
The court denied defendants' motions for mistrial,
determining instead a curative instruction would suffice. That
instruction stated in pertinent part:
6
A-5185-14T4
[T]he last witness who was testifying
mentioned some things or some elements that
are not part of this case. It doesn't
involve these defendants. It shouldn't be
considered by you in any way.
There was a reference to a controlled buy.
There was no controlled – there were no
controlled buys in this case. There [are]
no charges against any of these defendants
with regard to any direct sales of anything,
whether it be a controlled substance or
whether it be anything.
And you're not to consider the fact that the
officer testified that he had observed a
controlled buy. He did not identify any
particular individual and it's not these
individuals.
Later in his testimony the detective volunteered he wrote
his police report on the same day as the search warrant.
Defendant asked for a mistrial, but the court declined, noting
the witness's mention of the search warrant was merely a
"passing reference."
II
On appeal, defendant raises the following arguments for our
consideration:
POINT I – THE TRIAL COURT'S DENIAL OF
DEFENDANT'S MOTION TO PERMIT THE ADMISSION
OF EVIDENCE OF THE CONTROLLED BUYS WHICH
CONSTITUTED THE PROBABLE [CAUSE] FOR THE
SEARCH WARRANT WAS ERROR WHICH DENIED
DEFENDANT A FAIR TRIAL.
POINT II – THE TRIAL COURT'S REFUSAL TO
EXCUSE PROSPECTIVE JURORS WHO WERE PART OF
7
A-5185-14T4
THE LAW ENFORCEMENT COMMUNITY DENIED
DEFENDANT A FAIR TRIAL.
POINT III – THE TRIAL COURT'S DENIAL OF
DEFENDANT'S MOTION FOR A MISTRIAL WAS ERROR
WHICH DENIED DEFENDANT A FAIR TRIAL.
We are unpersuaded by any of these arguments and affirm.
We find it unnecessary to engage in a detailed legal
analysis of the substantive flaws underlying each argument.
Even if the court erred in the manner defendant asserts, none of
the errors had any effect upon the outcome here; every alleged
error was blatantly harmless.
Under the "harmless error" rule, "[a]ny error or omission
shall be disregarded by the appellate court unless it is of such
a nature as to have been clearly capable of producing an unjust
result." R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971).
This rule recognizes that not every error possibly resulting in
an injustice requires reversal. Rather, "[t]he possibility must
be real, one sufficient to raise a reasonable doubt as to
whether the error led the jury to a result it otherwise might
not have reached." Macon, supra, 57 N.J. at 336.
Here, defendant admitted at trial he was the owner of the
marijuana found in the shoe in his room. According to the
State's expert on narcotics and drug distribution, the quantity
found in the shoe was insufficient to be deemed held for
8
A-5185-14T4
distribution. The amount of marijuana in the shoe was for
personal consumption only.
Consistent with defendant's admission and the expert's
testimony, defendant was convicted of possession of marijuana.
However, he was acquitted of the more serious charge of
possession of marijuana with the intent to distribute. Plainly,
the jury credited defendant's testimony, accepting he had
nothing to do with any of the marijuana found in the apartment
but for that found in his shoe.
Defendant sought to introduce evidence showing defendant
was the target of the controlled buys in order to prove Rivera
was a drug dealer. However, even if such evidence had been
admitted, the outcome would have been the same. Although we
fail to see how such evidence would have exculpated defendant
from the distribution charge, as this evidence would not have
established defendant was not selling drugs, the larger point is
defendant was not convicted of possession of marijuana with
intent to distribute.
The detective's references to a "target," a controlled buy,
and the search warrant during his testimony were similarly
harmless. At best, those references related to the distribution
charge and not to the charge for mere possession, a charge
defendant candidly admitted was true.
9
A-5185-14T4
We do not take lightly defendant's complaint the court
declined to remove for cause those jurors who either were or had
family members in law enforcement. While not necessarily
mandating a reversal, we do recognize "prudence counsels that a
court, on request of a defendant in a criminal case, should be
inclined to excuse a member of the law-enforcement community."
State v. Reynolds, 124 N.J. 559, 566 (1991). However, under
these factual circumstances, where the jury acquitted defendant
of the charge for which he protested his innocence and convicted
him of the one for which he admitted his guilt, we cannot say
this error, or any of the other errors about which defendant
complains, "led the jury to a result it otherwise might not have
reached." Macon, supra, 57 N.J. at 336.
Affirmed.
10
A-5185-14T4