State v. Bernard
| Decision Date | 01 May 2020 |
| Docket Number | DOCKET NO. A-4893-15T1,DOCKET NO. A-3811-15T2 |
| Parties | 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. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Submitted February 6, 2019 (A-3811-15) and Argued telephonically February 8, 2019 (A-4893-15) 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:21-25. 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.
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 extensiverecorded 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.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. Afterrepeated 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.
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.
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:
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