STATE OF NEW JERSEY VS. DANIEL T. PARRISH (17-09-2045, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-0135-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANIEL T. PARRISH,
a/k/a DANIEL PARRISH,
BURNIS PARRISH, and
DANIEL T. PARRISE,
Defendant-Appellant.
________________________
Submitted October 7, 2021 – Decided December 2, 2021
Before Judges Alvarez and Haas.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 17-09-2045.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the brief).
Cary Shill, Acting Atlantic County Prosecutor, attorney
for respondent (John J. Lafferty, IV, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Tried by a jury, defendant Daniel Parrish was convicted of four counts of
third-degree drug possession, N.J.S.A. 2C:35-10(a)(1) (counts one, three, five,
and nine), all occurring on different dates. The substances were either heroin or
a combination of heroin and fentanyl. The jury was unable to reach a verdict on
the remaining charges: three counts of third-degree drug distribution, N.J.S.A.
2C:35-5(a)(1), one count of third-degree drug possession with intent to
distribute, N.J.S.A. 2C:35-5(a)(1),1 and one count of drug-induced death,
N.J.S.A. 2C:35-9. On December 18, 2018, the trial judge sentenced defendant
as a persistent offender, N.J.S.A. 2C:44-3(a), to four years' imprisonment with
two years' parole ineligibility on count one; four years concurrent on count three;
seven years with three and a half years of parole ineligibility on count five
consecutive to count one and concurrent with counts three and eight; and on
count nine, four years concurrent with counts one and five. Defendant appeals
and we affirm.
The following circumstances were developed at trial. The Egg Harbor
Township Police Department conducted controlled buys of heroin on November
1
The distribution charges, including possession with intent to distribute,
corresponded to the drug possession offenses.
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6, 2016, and December 6, 2016. The confidential informant/purchaser was
Michael Reed; the seller, defendant. The drugs were stamped with the logo
"Head Games."
On December 10, 2016, Reed accompanied Joseph Robinson to buy heroin
from defendant. Robinson gave Reed the money for the purchase. Reed
purchased five bags of similarly stamped heroin. Each man consumed one bag;
Robinson kept the other three and took them home.
About 4:00 p.m. that afternoon, Robinson sent his girlfriend a text
message, which she did not see until a couple of hours later. After seeing the
text, she unsuccessfully attempted to contact him. When she finished work at
approximately 10:30 p.m., she drove to Robinson's home. She found him
seemingly unconscious on the floor with a needle in his arm.
The emergency medical technician (EMT) who responded to Robinson's
home testified at trial that Robinson showed no signs of life. Based on the
rigidity of Robinson's limbs, the EMT opined he had been dead for hours. He
saw empty wax folds stamped "Head Games" on the floor. The EMT described
at length the symptoms and treatment of opioid overdoses. He was trained to
deal with drug overdoses and had seen approximately 100 cases. However, he
was not qualified as an expert.
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On December 13, 2016, police executed a search warrant at defendant's
residence. They recovered 178 bags of heroin cut with fentanyl and stamped
"Head Games."
At a pretrial Sands/Brunson2 hearing, the judge ruled that only defendant's
2006 conviction and his two 2013 convictions would be admissible if he chose
to testify. The older convictions were excluded.
At trial, defendant testified that the 178 bags of heroin and fentanyl were
for his and his brother's personal consumption. He categorically denied
currently selling drugs. Defendant also denied "knowing" Reed, insisting he
was only acquainted with him from the neighborhood and from hiring him to cut
his grass in the summer. He denied seeing Reed at all on December 10, 2016,
claiming that he last saw Reed in the summer. Defendant denied ever seeing or
knowing Robinson.
Defendant said that when officers pulled him over the day of his arrest
and told him about the search warrant, he directed them to the location where
the drugs were hidden. He was then living at his mother's home and did not
want her house destroyed by officers searching the premises. On the stand,
2
State v. Sands, 76 N.J. 127, 144 (1978); State v. Brunson, 132 N.J. 377, 390-
92 (1993).
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defendant openly acknowledged being a drug addict for years and owning the
178 bags of heroin.
Defendant's testimony was confusing at times. During direct examination,
while discussing his prior guilty pleas, he said he always took "responsibility"
for his wrongdoing. Defendant also seemed to say that he had never sold
drugs—though in context, he most likely meant he had never sold drugs to Reed.
When cross-examined on the subject, however, defendant stated that he had
never denied that he dealt drugs in the past. When pressed, defendant stood fast
in the position that he had not sold drugs since 2013, although he may have paid
Reed for lawn mowing services by giving him drugs. He again denied
communicating with Reed after the summer and claimed Reed did not have his
phone number.
During summation, the prosecutor made comments to which defendant
now objects as prejudicial prosecutorial misconduct. They included
impermissible speculation as to the police investigation. We quote the
comments later in the opinion.
At sentencing, the judge discussed the impact of State v. Yarbough, 100
N.J. 627 (1985), on her decision to impose consecutive sentences. She granted
the State's extended term application and sentenced defendant on count five in
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the second-degree range based on his criminal history as a persistent offender.
See N.J.S.A. 2C:43-7. The judge's sentencing decision is described in greater
detail in the relevant portion of this decision.
On appeal, defendant raises the following issues:
POINT I
[THE EMT] PROVIDED IMPROPER LAY OPINION
AS TO ISSUES WHICH REQUIRED EXPERT
TESTIMONY.
POINT II
THE PROSECUTOR'S CROSS-EXAMINATION OF
DEFENDANT IMPROPERLY DISCLOSED TO THE
JURY THAT CONVICTIONS ADMITTED TO
IMPEACH HIS CREDIBILITY WERE FOR
DISTRIBUTION OF CONTROLLED DANGEROUS
SUBSTANCES.
POINT III
THE PROSECUTOR'S COMMENTS DURING
SUMMATION CONSTITUTED MISCONDUCT
WHICH DENIED DEFENDANT A FAIR TRIAL.
POINT IV
THE AGGREGATE SENTENCE OF [ELEVEN]
YEARS WITH THE MAXIMUM PAROLE
DISQUALIFIER, INCLUDING BOTH AN
EXTENDED TERM OF IMPRISONMENT AND A
CONSECUTIVE TERM IS AN EXCESSIVE
SENTENCE.
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I.
This case is unusual in that the jury could not reach a verdict as to the drug
distribution charges but found defendant guilty of drug possession. We address
defendant's first three points of error in tandem as they would only be relevant
had defendant been convicted of the drug distribution offenses and the drug -
induced death charge. Since the jury did not reach a verdict on those crimes, we
only briefly address the arguments. They are not relevant in any material respect
to the drug possession offenses.
The State proffered the EMT's testimony about the drug-induced death.
He testified about his training and experience treating overdose victims and
about Robinson's condition when he responded to the scene. He explained that
Robinson's condition suggested he had been dead for "hours." Surely, this
testimony did not affect the jurors' decisions regarding defendant's drug
possession convictions.
Similarly, the prosecutor's unchallenged examination into defendant's past
as a drug dealer—which may have been triggered by a misunderstanding of
defendant's direct testimony—would have had limited effect on defendant's
convictions for drug possession. The examination seemingly did not prejudice
defendant—the jury could not reach a decision on the drug distribution crimes.
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The lack of prejudice is all the more striking in light of defendant's admission
that he gave Reed drugs, although he insisted it was only in the summer and in
payment for grass cutting services.
Defendant also contends the prosecutor made improper remarks in
summation by making the following statements:
Why are we here? We are here, because Daniel Parrish
is a drug dealer. That is his business. The Egg Harbor
Township Police Department wouldn't have engaged in
a week's long investigation into a hopeless drug addict
like he claimed to be.
Defendant claims the prosecutor proceeded to misstate the law. The
prosecutor argued Reed—who gave the victim the drugs after paying
defendant—was not guilty of drug-induced death because he only acted as an
intermediary, not a distributor.
Defendant also asserts that the prosecutor erred during closing remarks by
thrice referring to defendant's past drug dealing. This, he contends, essentially
negated the judge's sanitization of the prior convictions.
Clearly, the prosecutor improperly bolstered the State's case by stating
that officers would not have investigated defendant if he was only a drug user
as opposed to a drug dealer. That remark was indisputably prejudicial. See
State v. Rivera, 437 N.J. Super. 434, 446 (App. Div. 2014). It was a statement
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of belief as to a defendant's guilt based on reasons not found in the evidence. A
prosecutor may not speculate about a police department's motivation to
investigate a citizen. That said, the comment related to drug dealing, not
possession.
Even if we agreed that all the prosecutor's comments during summation
were mistaken or improper, the comments are not relevant. To warrant reversal,
we must find that, within context, the improper comments denied defendant a
fair trial. State v. Murphy, 412 N.J. Super. 553, 560 (App. Div. 2010).
Considering the record as a whole, and the unusual circumstance that the jury
convicted defendant of possession but failed to reach a verdict on any
distribution count, we cannot find that the misconduct so prejudiced defendant
so as to deprive him of a fair trial. State v. Frost, 158 N.J. 76, 83 (1999). The
misconduct is not relevant to the appealed convictions.
II.
Appellate courts review sentencing determinations deferentially. State v.
Fuentes, 217 N.J. 57, 70 (2014). The reviewing court must not substitute its
judgment for that of the sentencing court. Ibid. (citing State v. O'Donnell, 117
N.J. 210, 215 (1989)). We affirm a sentence unless (1) the sentencing guidelines
were violated; (2) the aggravating and mitigating factors found by the sentencing
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court were not based upon competent and credible evidence in the record; or (3)
"the application of the guidelines to the facts of [the] case makes the sentence
clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95
N.J. 334, 364–65 (1984). To facilitate appellate review, the sentencing court
must "state reasons for imposing such sentence including . . . the factual basis
supporting a finding of particular aggravating or mitigating factors affecting
sentence[.]" R. 3:21–4(h); Fuentes, 217 N.J. at 73; see also N.J.S.A. 2C:43–2(e)
(requiring sentencing court to provide statement on record of "factual basis
supporting its findings of particular aggravating or mitigating factors affecting
sentence.").
Because of defendant's criminal history, the judge gave great weight to
aggravating factor three, the risk defendant would reoffend, and six, the extent
and seriousness of his criminal history. N.J.S.A. 2C:44-1(a)(3), (6). She also
gave great weight to aggravating factor nine, the need to deter, because to date
no sentence has deterred defendant from committing crimes. N.J.S.A. 2C:44-
1(a)(9).
The judge gave slight weight to mitigating factors one and two, that
defendant's drug possession neither caused nor threatened serious harm, and that
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defendant did not contemplate that his drug possession would cause or threaten
serious harm. N.J.S.A. 2C:44-1(b)(1), (2).
The judge found the aggravating factors clearly and substantially
outweighed the mitigating. The judge called defendant "the type of repetitive
offender not likely to be rehabilitated and [who] should be incarcerated under a
consecutive term and for the public's safety."
Pursuant to State v. Dunbar, 108 N.J. 80, 89 (1987), as modified by State
v. Pierce, 188 N.J. 155 (2006), the Code's extended sentencing scheme requires
application of a four-step process in order to determine whether an extended
term is necessary to protect the public. Dunbar, 108 N.J. at 90-92. The judge
carefully followed the analysis.
The imposition of consecutive versus concurrent terms is controlled by
Yarbough. 100 N.J. at 643-44. Here, the judge carefully discussed that standard
and analyzed the relevant factors before deciding consecutive terms were
warranted for at least two of the four drug possession crimes, considering the
lapse in time between the offenses. The sentence does not shock our conscience.
See Roth, 95 N.J. at 365.
Affirmed.
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