March 14, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEON EDWARD BERRY, JR., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ZAKIYA T. AKINS, DEFENDANT-APPELLANT.*FN1
On appeal from the Superior Court of New Jersey, Law Division, Warren County, 04-12-0477-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 7, 2007
Before Judges Cuff, Winkelstein and Fuentes.
Following a jury trial, co-defendants Leon Berry and Zakiya Akins were convicted of third-degree money laundering, N.J.S.A. 2C:21-25a, and disorderly persons possession of under fifty grams of marijuana, N.J.S.A. 2C:35-10a(4). The judge sentenced Akins to a two-year period of probation, with a concurrent fourteen-day term of incarceration, representing time served; and Berry to a five-year prison term, with a two-year period of parole ineligibility on the money laundering conviction, and to time served on the marijuana possession conviction. On appeal, each defendant raises the same three issues:
THE TESTIMONY OF THE STATE'S EXPERT WITNESS WAS IMPROPERLY ADMITTED BY THE TRIAL COURT
THE EXPERT WITNESS'S TESTIMONY IMPROPERLY EXCEEDED FACTS SET FORTH IN THE ORIGINAL HYPOTHETICAL POSED BY THE PROSECUTOR
THE WITHDRAWAL OF THE MOTION TO SUPPRESS BY DEFENDANT'S ATTORNEY CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL
We affirm, but do so without prejudice to each defendant to raise an ineffective assistance of counsel argument in a post-conviction relief application.
The facts are derived from the trial evidence. On July 24, 2004, Pennsylvania State Police Corporal Brian Vennie was patrolling the Delaware River joint toll bridge on Interstate Route 80 between Monroe County, Pennsylvania, and Warren County, New Jersey. At approximately 8 p.m., he stopped a vehicle traveling seventy-five miles-per-hour in a fifty mile-per-hour zone. Though the officer's "zone of radar" was in Pennsylvania, the stop occurred in New Jersey. Berry was the driver and Akins, the owner of the vehicle, was the passenger.
After stopping the car, Vennie approached the driver's side and detected a strong odor emanating from the vehicle which, from his prior experience, he knew to be the smell of burnt marijuana. Upon initial contact with Berry, the officer noticed small ashes on Berry's shirt, near his chest; from the officer's experience, he believed the ashes were from a marijuana cigarette. Vennie also noticed, on the floor behind the driver's seat, a "baggie" of rubber bands of the type he believed were typically used to package marijuana. He did not observe any marijuana packaged in that cluster of rubber bands. The officer also saw a backpack on the backseat.
After speaking with Berry and asking him to move the vehicle to a safer location, the officer asked Berry and Akins for identification, which they each provided. While speaking with them, the officer observed a small amount of leafy green vegetable matter, which appeared to be marijuana residue, on the center console of the vehicle.
The officer issued Berry a traffic citation. He then directed Akins to the rear of the vehicle, where he spoke with her about the items he had seen inside her vehicle. At this point, he noticed that her eyes were yellowed, "glassy," and bloodshot, and that she smelled of marijuana. She told him she had been smoking marijuana in the car. Vennie then spoke with Berry, who also admitted to smoking marijuana in the vehicle.
The officer asked defendants if he could search the vehicle to see if they had any additional marijuana and they agreed to the search. Before Vennie began the search, two United States Park Service Rangers arrived.
Upon inspection of the interior of the car, Vennie noticed that the backpack that he had seen earlier had been moved from the rear seat to between the front seats. When he opened it he saw "wads" of money, wrapped in rubber bands and plastic bags. He then closed the backpack and stepped away from the vehicle, without searching under the seats, because once he saw the money, he "knew there was something more going on . . . than just someone smoking a small amount of marijuana."
After discovering the money in the bag, Vennie contacted the New Jersey State Police. Subsequently, two New Jersey State troopers, David Wright and Eric Reuter, arrived. The officers decided to transport defendants and tow the vehicle to the State Police barracks. Before placing Berry in his patrol vehicle, Vennie searched him, finding in his pocket a several-inch-thick wad of loose bills of various denominations.
After the car was towed to the State Police Barracks, New Jersey State Police Detective Jeffrey Shotwell retrieved the suspected marijuana residue from the vehicle, secured it and submitted it for testing, which revealed that the substance was, in fact, marijuana.*fn2 After obtaining a warrant, Shotwell conducted a full search of the vehicle. When he and another officer spoke with Berry at the barracks, Berry's only statement was, "I ain't saying nothing that's going to get me shot."
Det. Shotwell and Detective Sergeant William Eppell of the Warren County Prosecutor's Office inventoried the money found in the car and on Berry's person. Prior to counting it, they laid clean pieces of white paper on the table, in order to catch anything that might fall off the money; any substance collected on the paper would then be sent to a lab for analysis. The total amount of money in the backpack was $41,693, in the following denominations: 35 one hundred-dollar bills, 96 fifty-dollar bills, 1,389 twenty-dollar bills, 410 ten-dollar bills, 251 five-dollar bills, and 258 one-dollar bills. The money from Berry's person totaled $525, comprised of 101 five-dollar bills and one twenty-dollar bill. The white paper placed on the table collected a brownish substance, which testing revealed to be .03 grams of marijuana.
At trial, the State offered the testimony of Captain Robert Bunn of the Warren County Prosecutor's Office, whom the court qualified as an expert in the field of narcotics trafficking. After defendants' counsel objected to Bunn's testimony, the court, after reviewing Bunn's report, found that he was qualified to testify "through his training and experience as to how drug networks work." The judge said, "I'm not certain that I understand how drug dealers handle their money. I'm not sure the jury understands that either. . . . Whether or not this is a drug network, I don't know. That's for somebody else to figure out." The court concluded: "[Captain Bunn's] knowledge . . . may be helpful to the trier of fact."
At the close of the evidence and following summations, the court charged the jury regarding Captain Bunn's testimony. The judge stated:
You are not bound by such expert's opinion, but you should consider the opinion and give it the weight to which you deem it is entitled, whether it be great or slight or you may reject it entirely.
In examining such opinion you may consider the reason given for it, if any. And you may also consider the qualifications and credibility of the expert who gave the testimony.
It's always within the special function of the jury to determine whether the facts on which the answer or testimony of an expert is based actually exist. The value or weight of the opinion of the expert is dependent upon and is no stronger than the facts upon which it is based.
. . . You may . . . determine . . . that the facts that form the basis of the opinion are true or are not true or are true in part only.
And in light of such finding, you should decide what effect such determination has upon the weight to be given to the expert's opinion. Your acceptance or rejection of the expert opinion will depend, therefore, to some extent on your finding as to the truth of the facts relied upon by the expert.
The ultimate determination of whether or not the State has proven defendant guilty beyond a reasonable doubt is to be made by you, the jury, and not the expert.
Captain Bunn testified extensively to his training and experience. As of the date of trial, he had been a police officer for thirty-one years, and had been involved in hundreds of narcotics investigations. Throughout his career, he received continuous training in law enforcement techniques, with a special emphasis on narcotics investigation. He was a member of various professional law enforcement organizations, including those specializing in narcotics investigation and enforcement.
After the judge qualified Bunn as an expert, the prosecutor posed a hypothetical question incorporating the facts elicited from the previous witnesses. The prosecutor asked Bunn to assume that a male driver and female passenger traveling in an eastbound motor vehicle were stopped for speeding on Interstate 80, east of the Delaware Water Gap bridge; that the trooper smelled marijuana emanating from the car, saw ashes on the driver's shirt, saw marijuana on the vehicle's center console, and was informed by both passengers that they had been smoking marijuana; and that the trooper saw a backpack and a plastic bag containing rubber bands in the backseat. The witness was to further assume that the backpack contained a large sum of United States currency, broken down into denominations as indicated, supra; that the driver was found in possession of $525; and that law enforcement officials collected .03 grams of marijuana from the money when it was counted.
The witness then offered his opinion that the currency was the proceeds of narcotics sales to be used to purchase more narcotics in bulk quantities. He based his opinion, in part, on the denominations of the money. He explained that the denominations of the cash were typical of narcotics sales proceeds because most drugs, in their standard for-sale increments, can be purchased for less than $100, and here, the majority of the bills found were in twenty, ten, five or one-dollar denominations; very few were one hundred or fifty-dollar bills. The witness also testified to the street level value of narcotics in the Scranton area, where, he testified, defendants were traveling from and where the vehicle owner resided.
Bunn explained that narcotics can be purchased in New York City for substantially lower prices and in much higher quantities than elsewhere because the City's metropolitan area is a center-point for drugs imported into the northeast. He noted that typically, as in the hypothetical, drugs move west towards the suburbs and money moves east towards the city. He also found that the packaging of the money was significant, noting that use of the unsecured backpack was an "unusual way to carry money"; individuals with legitimate professional reasons for carrying large sums of money typically carry that money in "briefcases, locked cases, . . . [or] locked containers."
Against this factual background, we first examine whether Captain Bunn's testimony was properly admitted in evidence. The admission or exclusion of evidence is within the discretion of the court. State v. Torres, 183 N.J. 554, 567 (2005); see also State v. Nesbitt, 185 N.J. 504, 514 (2006) (describing trial court's "gatekeeper role" with respect to expert testimony). Accordingly, we review for abuse of discretion. State v. Harvey, 151 N.J. 117, 166 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed. 2d 683 (2000).
"The starting point for determining the admissibility of expert testimony is" N.J.R.E. 702, which provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Torres, supra, 183 N.J. at 567 (quoting N.J.R.E. 702). The rule sets forth three requirements for admissibility: (1) the intended testimony concerns a subject "beyond the ken" of the average juror; (2) the field testified to is at a state of the art that an expert's testimony could be sufficiently reliable; and (3) the witness has sufficient expertise to offer the intended testimony. Id. at 567-68.
The first requirement is met if the expert's testimony would help the jurors understand the evidence and determine the facts in those areas falling outside the jurors' common knowledge. Id. at 568, 573. The second requirement is met where the field of expertise is generally accepted, so that an expert's testimony would be sufficiently reliable. Id. at 568. Reliability may be established by: (1) "'the testimony of knowledgeable experts'"; (2) "'authoritative scientific literature'"; and (3) "'persuasive judicial decisions'" acknowledging the "'general acceptance'" of such testimony. Ibid. (quoting State v. Kelly, 97 N.J. 178, 224 (1984)). The final requirement for admissibility is "that the expert is qualified by knowledge, skill, experience, training, or education." Id. at 572.
Even where a court finds expert testimony admissible, under certain circumstances, the judge must still, pursuant to N.J.R.E. 403, carefully evaluate whether the evidence, though relevant, should be excluded because its prejudicial effect substantially outweighs its probative value. Id. at 580. In those cases, only when the trial court commits a clear error of judgment in applying N.J.R.E. 403 will we disturb the court's decision. Harvey, supra, 151 N.J. at 184.
One of those circumstances that generally requires an N.J.R.E. 403 analysis is where, like here, the testimony in a drug case embraces an ultimate issue to be decided by the jury. See State v. Berry, 140 N.J. 280, 297-98 (1995) (N.J.R.E. 704 authorizes expert opinions encompassing ultimate issues). In drug prosecutions, expert testimony touching upon an ultimate issue often consists of testimony that a defendant's possession of drugs in a certain manner is indicative of intent to sell the drugs, or that certain seemingly innocuous conduct is in fact criminal. See Nesbitt, supra, 185 N.J. at 508-10; Berry, supra, 140 N.J. at 298-300, 304; State v. Odom, 116 N.J. 65, 68-69 (1989); State v. Baskerville, 324 N.J. Super. 245, 254-56 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). The danger of unfair prejudice can be lessened with a "limiting instruction that impress[es] [up]on the jury its right to reject the opinion of an expert." Berry, supra, 140 N.J. at 300.
Ultimate issue expert opinion testimony "generally is to be admitted provided the trial court is satisfied that the testimony will assist the jury in resolving material factual issues," and so long as the court has a "heightened awareness" of the potential for prejudice. Id. at 301. Concerns about unfairly prejudicial ultimate issue expert testimony can adequately . . . be addressed by the trial court's qualifying instruction to the jury, framed in the context of the specific testimony adduced at trial . . . convey[ing] to the jury its absolute prerogative to reject both the expert's opinion and the version of the facts consistent with that opinion, or to rely on that opinion in resolving the material factual issues. [Id. at 304.]
The admission of expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors understand subjects that are beyond the ken of the average layperson. Nesbitt, supra, 185 N.J. at 507. In Nesbitt, the defendant was charged with selling crack-cocaine to an undercover officer, but did not personally hold the drugs, give them to the officer, or accept payment. Id. at 508-09. Instead, the defendant directed a confederate, who stood next to him on the street corner during the transaction, to handle the money and drugs. Id. at 508. The Court found that expert testimony regarding the manner in which drug dealers sell their drugs and act in concert with others to do so "assisted the jury in understanding how defendant's statements and actions, in combination with the words and actions of [the defendant's confederate], could be indicative of drug distribution." Id. at 515. The Court observed that the testimony "could have been perceived as helpful to the jury in understanding the nature of the [hand-to-hand] exchange [of drugs for cash], which involved a drug purchaser . . . defendant, and his confederate." Id. at 516 (emphasis added).
The Court, in Berry, supra, stated, with regard to the State's expert testimony on drug distribution methods:
We regard Sergeant Carlino's direct testimony . . . as . . . expert testimony offered to assist the jury's understanding of techniques used by some New Jersey drug dealers in acquiring cocaine in New York City for distribution in this State. The specific facts included in Carlino's testimony, about which the jury undoubtedly was uninformed, concerned the availability of cocaine at a lower cost in New York City, the street value of the cocaine in question if distributed in New Jersey, the purpose for which drug dealers use zip-lock plastic bags of the type found in . . . . [the] sock [of the defendant's confederate], and the reasons why drug dealers use juveniles as "mules" to carry drugs on their person in the course of transport from New York City to New Jersey. There can be little question that an average juror would be unfamiliar with those finer points of drug acquisition and distribution techniques. Nor can there be any doubt that Sergeant Carlino's direct testimony would assist the jury in understanding the evidence and in resolving material factual issues. [140 N.J. at 301-02 (emphasis added).]
The Berry Court also sanctioned the admission of expert testimony regarding the use by street level drug dealers of a "money man," similar to the confederate described in Nesbitt, supra, 185 N.J. at 508, to "limit their exposure to prosecution." 140 N.J. at 304. The Court held that "such testimony generally should be admitted if it will assist the jury in resolving material factual issues." Ibid.; see also Torres, supra, 183 N.J. at 562, 573, 579 (concluding that Attorney General's Office investigator could testify as to operation and hierarchy of Hispanic street gangs because the structure and procedure of such gangs was beyond the ken of the ordinary juror).
The expert testimony here is not substantively distinguishable from the testimony in Nesbitt and Berry. The trial judge, while not conducting an N.J.R.E. 104 hearing, adequately fulfilled his gatekeeping function by reviewing the expert's report to glean the substance of the proposed trial testimony. In doing so, the judge found that the testimony had the potential to assist the trier of fact.
Defendants, in their briefs, contend that the court, by finding that Bunn's testimony "may be helpful" to the jury, as opposed to finding that his opinion "will" be helpful, abdicated the N.J.R.E. 702 standard, which requires that the testimony "shall assist" the trier of fact. That argument is unfounded. In Nesbitt, supra, 185 N.J. at 516, the Court found expert testimony properly admitted where it "could have been perceived as helpful to the jury." Whether the expert testimony actually does assist the jury is the prerogative of the jury. The trial court cannot be the arbiter of what the jury will find helpful in reaching its decision; the court can, as the trial court here noted, only determine what "may be helpful to the trier of fact."
Defendants were convicted of money laundering under N.J.S.A. 2C:21-25a, which states: "[a] person is guilty of a crime if the person . . . transports or possesses property known or which a reasonable person would believe to be derived from criminal activity." Knowledge that the property is derived from criminal activity may be inferred where the transportation or possession of the property is "inconsistent with the ordinary or usual means of transportation or possession of such property." N.J.S.A. 2C:21-26. The testimony here, like the testimony permitted in Berry and Nesbitt, addresses the manner in which drug dealers conduct their operations, and explains how seemingly innocuous conduct may be indicative of culpability, informing the jury's consideration of whether defendants were guilty of violating the statute. The first requirement for admissibility of an expert opinion is thus met.
The testimony offered here also meets the second requirement for admissibility of an expert opinion, as it is the type of testimony now commonly provided by experts. While the testimony here was offered to help the jury understand the facts in the context of a charge of money laundering, rather than a charge of possession with the intent to distribute, the character of Bunn's testimony is no different than the character of the testimony examined in Berry and Nesbitt. And, while no reported decision in this jurisdiction has addressed whether an expert may render an opinion concerning a money laundering charge, other jurisdictions have admitted testimony related to that charge, using substantially the same analysis as the Berry and Nesbitt Courts. See United States v. Daccarett, 6 F.3d 37, 58 (2d Cir. 1993) (court permitted DEA agent to testify as expert on subject of money laundering); United States v. All Funds on Deposit in any Accounts Maintained at Merrill Lynch, Pierce, Fenner & Smith, 801 F. Supp. 984, 997 (E.D.N.Y. 1992) ("[s]ophisticated drug money-laundering activities . . . are a proper subject for expert testimony").
The final requirement for admission of the expert's testimony is that the expert be qualified by knowledge, skill, expertise, training or education. That has been demonstrated here. The witness testified extensively to the various training and education programs he had attended, his long history of service in law enforcement, and his varied experience with narcotics and narcotics trafficking investigations.
Expert testimony that touches on an ultimate issue generally should be admitted over objections that it is prejudicial, so long as the court is aware of the danger for prejudice, finds that the testimony will assist the jury in resolving a factual issue, and provides the jury with a limiting instruction. See Berry, supra, 140 N.J. at 301, 304. The court here found that the testimony would be helpful, and, aware of the potential prejudice, issued an appropriate limiting instruction.
Captain Bunn's testimony was offered to help the jury understand how the facts could be applied to the requirements of N.J.S.A. 2C:21-25a. His testimony provided assistance to the jury in understanding how drug trafficking, and ultimately money laundering, is conducted. He provided the jury with an overview of drug dealers' modus operandi and, based upon defendants' mode of packaging and transporting the money, characterized their conduct as consistent with this modus operandi. We do not presume that most citizens who are called to serve as jurors are knowledgeable of how drug dealers transport either drugs or proceeds from the sale of drugs. See Nesbitt, supra, 185 N.J. at 515. Captain Bunn did not express his opinion of defendant's guilt and, even though his opinion embraced the ultimate issue. Under the circumstances, we find no abuse of discretion by the trial judge in permitting its admission.
Defendants also argue that Captain Bunn's opinion was a net opinion. "The net opinion rule provides that an expert's bare conclusions, unsupported by factual evidence[,] are inadmissible. . . . [It] requires the expert witness to give the why and wherefore of his expert opinion, not just a mere conclusion." Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 102 (App. Div. 2001) (citations and quotations omitted).
Here, Captain Bunn provided the necessary why and wherefore to support his opinion, which was based primarily on facts in the record. After stopping defendants' vehicle, Cpl. Vennie smelled marijuana, which both defendants admitted to smoking in the car. What appeared to be marijuana ashes were on the center console, and on Berry's chest. The plastic bags and the rubber bands in the car were of the type generally used in marijuana packaging. The backpack had been moved from the rear of the vehicle to the front console between the time of the initial stop and the time Vennie searched the vehicle. The officer observed in the unsecured backpack bundles of various denominations of money, totaling over $40,000, wrapped in rubber bands and plastic bags. The money contained traces of marijuana. The totality of the evidence provided a sufficient basis for the expert's opinion concerning drug trafficking and money laundering.
That takes us to the next issue raised by defendants, that to support his opinion, Captain Bunn used facts not included in the hypothetical question posed by the assistant prosecutor; specifically, that defendants were traveling from Scranton, Pennsylvania to New York City.
The State is permitted to ask a narcotics expert a hypothetical question mirroring the facts of the case. Nesbitt, supra, 185 N.J. at 507. In proffering the opinion of an expert, the hypothetical question should be carefully phrased to refer only to the testimony and evidence adduced. Id. at 512. After the prosecutor lays a factual foundation, he or she should then present the expert with a hypothetical question through which the expert can inform the jury of the significance of these facts to the issue at hand. Ibid. Having set forth this information in the form of a hypothetical, the prosecutor may ask the expert if, based on these assumed facts, he or she has an opinion on the matter at issue. Ibid. It is important that the witness and the jury understand that the opinion cannot be based on facts not in evidence. Id. at 513. The expert should also, to the extent possible, avoid mirroring the statutory language. Ibid.
Defendants object to the expert's testimony that they were traveling from Scranton to New York. Because defendants did not raise this objection at trial, we evaluate their argument under the "plain error standard," which requires a defendant to "convince [this court] that there was an error clearly capable of producing an unjust result." State v. Summers, 176 N.J. 306, 316 (2003); R. 2:10-2.
We conclude that the captain's testimony in response to the hypothetical question was not clearly capable of producing such a result. The hypothetical was extensive, including much of the evidence previously adduced at trial. The witness's testimony about "New York" and "Scranton" was not an unreasonable inference to be drawn from the posed hypothetical, which indicated that the vehicle had traveled from Pennsylvania into New Jersey, and was headed eastbound on Interstate 80 toward New York City, a narcotics center point. The hypothetical also included information that the car contained a substantial sum of money, but a negligible amount of drugs, indicating that the occupants of the vehicle were traveling to make a drug purchase. Thus, based on his knowledge of drug trafficking patterns, and that New York is a major drug market where many dealers travel with substantial sums of money to purchase drugs in large quantities, the witness could have concluded that the vehicle was traveling from Scranton, which is located near Wilkes Barre, Pennsylvania, where Akins lived, to New York.
Even if it were "error," however, for the judge to permit the expert to so testify, it was not "plain error." The court specifically instructed the jury that it had the discretion to accept or reject the testimony as it saw fit. And, given the weight of the remainder of the evidence, this testimony was not clearly capable of producing an unjust result.
Finally, we turn to defendants' claims of ineffective assistance of counsel based on trial counsel's failure to follow through with their suppression motions. Though defense counsel had originally moved before trial to suppress the physical evidence recovered from the vehicle, they later withdrew those motions, believing them to have an "insufficient legal basis."
While ineffective assistance of counsel claims may be raised on direct appeal, those claims that require additional testimony beyond the trial record are better addressed on post-conviction relief applications than on direct appeal. See State v. Abdullah, 372 N.J. Super. 252, 277 (App. Div. 2004), aff'd in part and rev'd in part on other grounds, 184 N.J. 497 (2005); see also State v. Johnson, 365 N.J. Super. 27, 33-34 (App. Div. 2003) (trial counsel's failure to move for suppression may form basis of post-conviction ineffective assistance of counsel claim), certif. denied, 179 N.J. 372 (2004).
Here, because we perceive that to determine the ineffective assistance of counsel claim, the testimony of trial counsel and further development of the facts relating to the search of defendants' vehicle may be necessary, we deny the ineffective assistance of counsel claims without prejudice to defendants to raise them in a post-conviction relief application.