December 20, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AHMAT B. AMAT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, 03-07-1428-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 14, 2007
Before Judges Collester and Lyons.
Tried to a jury, defendant Ahmat B. Amat was convicted of possession of a controlled dangerous substance (cocaine), contrary to N.J.S.A. 2C:35-10(a)(1), and possession of a controlled dangerous substance (cocaine) in a quantity of over one ounce with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2). On May 6, 2005 he was sentenced to a State prison term of four years on the charge of possession of cocaine and a concurrent sentence of ten years with five years to be served without parole eligibility on the charge of possession of a cocaine in a quantity of more than one-half ounce with intent to distribute. Also imposed were a total of $150 in Violent Crimes Compensation Board penalties, $225 in Safe Streets Assessments, a $30 LEOPA fine, $3,000 in DEDR penalties, $100 lab fee and twelve months loss of driver's license. Defendant appeals his convictions and sentence.
The State concedes that if defendant's convictions are affirmed, his sentence must be remanded for further proceedings because his conviction for possession of cocaine should have merged into his conviction for possession of cocaine with intent to distribute, and the corresponding penalties and fines should be amended to reflect $2,000 in DEDR penalties, a $50 lab fee, a $25 Victim of Crimes Compensation Board assessment, and a $75 Safe Neighborhood Services Fund assessment. See State v. Dillihay, 127 N.J. 42, 52 (1992). Moreover, the State also agrees to a remand for re-sentencing because the ten-year sentence for possession with intent to distribute exceeded the then presumptive term of available for a second-degree crime. State v. Natale II, 184 N.J. 458 (2005).
The salient facts at trial were as follows. Officer Marcel Schact of the Bergen County Police Department Patrol Division was on duty patrolling Route 4 in a marked patrol car on the evening of October 5, 2002. Officer Schact testified that at about 9:30 p.m. he noticed a white 1992 Cadillac with Pennsylvania license plates speeding on the roadway, weaving in and out of traffic and tailgating other vehicles. He caught up to the Cadillac on the express lane of Route 95 south and activated his patrol car lights to pull the vehicle over to the side. The officer contacted dispatch about the stop and walked to the driver's side of the Cadillac holding a flashlight. There were three men in the car. The person later identified as Charles Martino was the driver, Rafael Otero was sitting in the front passenger seat, and defendant was in the back seat. Officer Schact looked into the Cadillac and saw a "High Times" magazine on the rear seat and a baggie on the front seat floorboard. The officer also detected the odor of burnt marijuana.
When asked by the officer for his driving credentials, Martino was unable to produce any identification. Officer Schact ordered Martino out of the Cadillac, and the two walked to the rear of the car. At this point Martino kept putting his hands in his pockets despite Schact's telling him not to do that. Fearing that Martino might be armed, the officer patted him down and felt a large bulge in his left pocket. He removed the bulge, which turned out to be marijuana and $2,016 in cash.
After Officer James Mullin arrived to assist, Officer Schact walked to the passenger side of the Cadillac and spoke with Rafael Otero, the front-seat passenger. As he did so, Officer Schact saw a plastic bag full of cigar shavings on the front floorboard. He ordered Otero out of the car and told him to sit on the guardrail next to Martino. He then turned his attention to defendant in the back seat, who as it turned out, also had no identification. Defendant was removed from the vehicle and also ordered to the guardrail. At this point Schact searched the Cadillac. He found a clear plastic bag with forty-seven pills of Ecstasy inside a pouch draped over the driver's seat which also contained a digital scale and baggies containing marijuana. A white powdery substance which Schact identified as cocaine was found underneath a jacket in the back seat where defendant had been sitting. The weight of the cocaine was 4.8 ounces.
Otero entered a guilty plea prior to trial pursuant to a plea agreement. Defendant and Martino maintained not guilty pleas and went to trial. The State's case-in-chief consisted of the testimony of Officer Schact and Detective Elliot Cookson, who testified as an expert witness as to illegal drugs and illegal drug activity. While Martino exercised his right not to testify, defendant testified on his own behalf that he had known Martino and Otero for only a few months and that they had socialized a few times at a local tavern. He said that on October 5, 2002, Otero telephoned him at home to tell him he was going to New York with Martino, and defendant agreed to go along. They left Wilkes-Barre, Pennsylvania at about 12:30 p.m., and on the way they shared a blunt of marijuana. Defendant testified he believed that they were going to Otero's mother's house in New York City to pick up $2,000 to purchase the Cadillac from Martino's mother. He said that when they got to New York, Otero stopped the car at a house and went inside. When he returned, he handed Martino a large wad of money.
Defendant related that they started back to Wilkes-Barre, and he fell asleep in the back seat. He awoke when Officer Schact pulled the car over. Defendant said that after Martino got out of the car and walked to the rear with the officer, Otero opened the glove compartment, took out something wrapped in a paper towel and threw it to defendant in the back seat while telling him to put the package down his pants. Defendant said he refused and threw the package back. Otero then wrapped it in a jacket which he put in the rear passenger seat floor. He also opened a briefcase and began stuffing things into the pouch behind the driver's seat. Defendant claimed he had no knowledge of any of the drug items found in the car by the police officers.
Also testifying for the defense was Linda Skiva, Martino's mother. She stated that she owned the Cadillac and wanted to sell it. When no offers were made, she asked her son to ask Otero if he wanted to buy it. She said Otero agreed, and she lent Martino the car on February 5 to drive Otero to New York City get $2,000 for the purchase.
The State called Rubin Otero as a rebuttal witness. He stated that he entered a guilty plea to the charges in exchange for a sentence of five years with a three-year period of parole ineligibility to run concurrent with a nine-year federal sentence. He related that on October 12, 2002, he was at his home playing video games and smoking marijuana with Amat when Martino arrived and asked him for his help in buying cocaine. Otero replied that he could get him whatever he wanted, and then all three men agreed to drive to New York to purchase cocaine, marijuana and Ecstasy to sell in Wilkes-Barre. With Martino driving, the men smoked marijuana during the three or four-hour drive to Washington Heights to purchase the drugs. When they arrived they each contributed money totaling $4,000 for the purchase. Otero said that he and Martino got out of the car and bought cocaine, marijuana and Ecstasy on a street corner, while defendant remained in the car. Otero said he gave the drugs to defendant who put them in his jacket pocket. They agreed that all three would split the cocaine and marijuana but Otero alone would take the Ecstasy pills. The expectation was that this would make a profit when reselling the drugs. Finally, Otero said that it was never his intention to purchase the Cadillac, and he denied that he stopped at his mother's house after driving to New York.
On appeal defendant Amat makes the following arguments:
POINT I -- THE DEFENDANT'S CONVICTION MUST BE REVERSED, SINCE THE TRIAL COURT ERRED IN PERMITTING IMPROPER EXPERT TESTIMONY BEFORE THE JURY AND/OR IMPROPERLY CHARGED THE JURY HOW IT COULD USE SUCH EXPERT TESTIMONY THEREBY DEPRIVING DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. XIV; N.J. CONST. OF 1947, ART. I, 9 AND 10.)
POINT II -- DEFENDANT WAS DENIED A FAIR TRIAL BY THE IMPROPER ADMISSION OF INFLAMMATORY EVIDENCE WHICH, WITHOUT PROPER LIMITING INSTRUCTIONS, HAD THE CLEAR CAPACITY TO UNDULY PREJUDICE THE JURY, IMPROPERLY IMPEACH HIS CREDIBILITY AND CONSTITUTED PROSECUTORIAL MISCONDUCT SO EGREGIOUS AS TO DENY DEFENDANT A FAIR TRIAL.
POINT III -- THE DEFENDANT'S CONVICTION MUST BE REVERSED SINCE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO U.S. CONST. AMEND. VI.
POINT IV -- THE DEFENDANT'S CONVICTION MUST BE REVERSED, SINCE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO VACATE THE VERDICT.
POINT V -- THE WITHIN SENTENCE MUST BE VACATED AND THE MATTER MUST BE REMANDED FOR RE-SENTENCING IN LIGHT OF STATE V. NATALE, 184 N.J. 458 (2005) AND SINCE THE SENTENCE IMPOSED ON DEFENDANT IS EXCESSIVE AND ILLEGAL.
A. THE TRIAL COURT ERRED IN IMPOSING A $3,000 DEDR PENALTY INSTEAD OF A $2,000 PENALTY.
B. THE TRIAL COURT FAILED TO APPROPRIATELY MERGE COUNT I INTO COUNT 11. FAILED TO CONSIDER AGGRAVATING AND MITIGATING FACTORS WHEN SENTENCING AHMAT AMAT AND FAILED TO STATE FINDINGS OF FACT SUPPORTING THE SENTENCE IMPOSED.
Defendant's major argument relates to the expert testimony of Detective Cookson, who was qualified as an expert without objection in the field of "drug identification, drug prices, distribution, and concealment of drugs and an expert in all-around drugs." The assistant prosecutor commenced her direct examination as follows:
Q: Detective, did you have an opportunity to review the case in connection with defendant, Charles Martino and Ahmat?
A: Yes, ma'am.
Q: Okay. Did you have an opportunity as a result of your review of that case to render an opinion as to whether or not the drugs were possessed with the intent to distribute?
A: Yes. Based upon my training, experience and education and working in an undercover capacity I felt that the amount of cocaine and Ecstasy found in this case and marijuana were possessed with the intent to distribute.
The officer then went on to give reasons for his opinion, which was based on the amount of each drug possessed and the fact that drugs purchased in New York could be sold for a greater amount in Pennsylvania. After the luncheon recess the questioning continued without objection until the court interrupted. The colloquy was as follows:
Q: Detective Cookson, you were testifying before the break about your opinion as to this case and your opinion is possession with intent to distribute drugs.
THE COURT: Excuse me one moment. Let me see counsel at side bar. (SIDE BAR CONFERENCE ON THE RECORD)
THE COURT: He really can't give an opinion as to this case. He can give an opinion as to what he observes is consistent with drugs but he can't give an opinion. It's improper for him to say its his opinion these defendants were possessing drugs with intent to distribute. . .
COUNSEL: Judge, I believe he's already offered that opinion.
PROSECUTOR: Yes, he has.
THE COURT: I will instruct --
PROSECUTOR: Then there is no reason for him to be here if we can't use his opinion.
THE COURT: I just want to be sure it doesn't seem to the jury that "I conclude that these two defendants were possessing the drugs with intent to distribute."
The prosecutor then directed the witness's testimony to the quantity of drugs and the value of each in Pennsylvania as compared to New York as well as further profit on the sale if a cutting agent was used. The testimony continued as follows:
Q: So, Detective, in your opinion, a case where there are three individuals who are traveling on 95 south coming from the direction of New York who are found with Ecstasy, cocaine, marijuana and large quantities in their automobile would that be indicative of possession with intent to distribute?
A: Yes, ma'am. As I said earlier, this is substantial amount of cocaine as well as Ecstasy. And from what I've seen, these guys pool their money together and make trips to New York City. You're not going to bring someone who has no idea what's going on because you're going to go to the city and you're going to do a drug deal on a street corner. Everyone has a role. You're not going to bring someone who doesn't know what's going on because you want that person to look out for you because the deals go down in apartments, side streets. ... You need someone to look out for cops, make sure no one is going to rob you because these deals take place in alleyways and apartments.
On cross-examination by counsel for defendant, Cookson was challenged as to his statements that the persons in a car traveling from Pennsylvania to New York were each involved in the drug purchase.
Q: So you're saying that this jury should conclude beyond a reasonable doubt that all three of these men went to New York to buy drugs and that they performed different roles. One was security, one was company, the other guy was the buyer. Is that what you want them to conclude beyond a reasonable doubt?
A: Yes, sir.
Q: You're saying it can't be any other way? Is that what your saying?
A: I'm saying people go to New York to buy drugs that at a cheaper price and they don't go alone. They prefer to have protection.
Q: . . . Are you saying, sir, that there is no way that one of the people in that car just went along for the ride?
A: I feel they all had their own part.
Q: With what degree of certainty do you feel that each person had his own part?
A: One hundred percent.
Q: A hundred percent. Are you telling us that you know for a fact that all three of them were involved in the purchase of the drugs? Is that what you're saying, sir?
A: I'm telling you I feel 100 percent confident in stating that these three individuals all were aware, all had a part in the purchase of these drugs.
On redirect examination, the prosecutor asked Cookson whether the opinions he expressed that the drugs were possessed with the intent to distribute were his own or were imposed upon him by the prosecutor. At this point the court interrupted to say that while Cookson was allowed to testify as an expert he could not give his opinion as to any defendant's guilt or innocence.
Ladies and gentlemen, let me make this very clear, Detective Cookson is testifying as an expert. His opinion, although it may sound like that, he is not allowed to give you his opinion as to whether or not these defendants are guilty of anything. That is solely your job. So what he is talking about is just general matters, something to help you understand the significance of certain facts that have been developed in the evidence and I'll give you an instruction at greater length.
In his subsequent charge to the jury the trial judge used the standard language of the Model Jury Charge on expert testimony with certain modifications relating to Cookson's testimony:
The expert's testimony and evidence may be considered in packaging and possessing and concentrations of narcotics, the rolls of various drug paraphernalia, characteristics of the drugs, themselves, the import of circumstances surrounding possession, the conduct of the possessor and the manner in which the drugs may be secreted or otherwise possessed for personal use and/or distribution. Any conclusions this expert drew such as possession of these drugs was for the purpose of distribution was derived solely from his expertise and were not statements but rather expressions of his opinion as to these defendants' guilt or innocence in light of his specialized knowledge. It is the role of the jury and not the expert to make the determination of guilt or innocence. You are not bound by such expert's opinion but you should consider each opinion and give it the weight to which you deem it entitled whether it be great or slight.
As I earlier advised you, Detective Cookson was not a fact witness. As an expert witness he provided opinions. Any opinion expressed by Detective Cookson which seemed to indicate his opinion as to a defendant's guilt must be disregarded by you. Whether a defendant is guilty or not guilty is for you and only for you the jury to decide. The ultimate determination as to whether the State has proved the defendant guilty or not guilty is to be made only by the jury. [Emphasis supplied.]
Expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist the jury in aspects of drug possession and drug activity not generally known to persons of ordinary understanding. State v. Odum, 116 N.J. 65, 79 (1989). It is now common practice for narcotics detectives to testify as experts in prosecutions for possession of controlled dangerous substances with the intent to distribute in order to prove a defendant's intent. Matters such as the manner of packaging, the significance of quantity and purity of the substances, the circumstances surrounding possession, and the conduct of the possessor are examples of matters subject to interpretation by a qualified expert to assist the jury. See, e.g., State v. Nesbitt, 185 N.J. 504, 515-16 (2006); Odum, supra, 116 N.J. at 81; State v. Walker, 385 N.J. Super. 388, 406-08 (App. Div.) 187 N.J. 83 (2006).
Our courts have recognized the danger inherent in such testimony when a police officer with superior knowledge and experience and cloaked with the authority of the State testifies to indicate his own verdict on the guilt of the defendant.
Odum, supra, 116 N.J. at 82. For this reason the Supreme Court maintains that hypothetical questions should be used by the State to elicit an opinion of an expert that the illegal drugs were possessed for distribution purposes. Odum, supra, 116 N.J. at 81-82; Nesbitt, supra, 185 N.J. at 514; State v. Summers, 176 N.J. 306, 312-15 (2003). The use of a hypothetical question is designed to minimize the risk that the expert's testimony will be treated as to his opinion that a defendant is guilty.
An expert may not be asked his or her opinion as to whether the defendant committed the crime. "[A]n expert's testimony that expresses a direct opinion that defendant is guilty of the crime charged in wholly improper." Odum, supra, 116 N.J. at 77. Accord, Summers, supra, 176 N.J. at 314-15; ). State v. Landeros, 20 N.J. 69, 74 (1955); State v. Herrera, 385 N.J. Super. 486, 493 (App. Div. 2006); State v. Boston, 380 N.J. Super. 487, 493-94 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006). The trial judge must carefully instruct the jury as to the proper weight to be given to an expert's opinion and underscore that the ultimate decision about a defendant's guilt is solely their determination. Nesbitt, supra, 185 N.J. at 519; Odum, supra, 116 N.J. at 82.
In the instant case the assistant prosecutor did not use a hypothetical question and directly asked Cookson whether after his review of the case he had an opinion as to whether in this case the drugs were possessed with intent to distribute, and he responded in the affirmative based on his training, experience and education in the field of narcotics. Both the question and the answer were totally improper. Moreover, the efforts by defense counsel to neutralize or negate this testimony enabled Cookson to say he was "100 percent sure" that each of the defendants played a part in the purchase of the drugs. The court attempted to ameliorate any prejudice from Cookson's testimony by telling the jury during the prosecutor's redirect examination that Cookson "is not allowed to give you his opinion as to whether or not these defendants are guilty of anything." Later in his charge, the judge first told the jury that any conclusions drawn by Cookson as to whether possession of the drugs was for the purpose of distribution were "expressions of his opinion as to these defendants' guilt or innocence in light of his specialized knowledge," and later charged that any opinion of Cookson as to guilt of a defendant must be disregarded. Since no objection was taken to the questions of the prosecutor or to the court's charge, our review is under the plain error standard. See, e.g., State v. Corby, 28 N.J. 106 (1958); R. 2:10-2.
Here the improper questioning by the prosecutor to elicit Cookson's opinion as to the guilt of defendant was especially damaging to defendant's defense that he was unaware of the planned purchase and played no part in any drug transaction. The trial judge tried to ameliorate the obvious prejudice to the defendant flowing from Cookson's testimony, but the instructions gave further emphasis to the inadmissible testimony that the expert had an opinion that both defendants were guilty. In other parts of the charge the judge correctly stated that the decision as to a defendant's guilt or innocence was strictly for the jury and to ignore any opinion to the contrary. The charge was confusing and particularly inadequate in light of improper expert testimony.
We find that despite the court's charge, Cookson's opinion testimony of defendant's guilt was clearly capable of producing an unjust result and constituted plain error. In light of our determination on this issue, it is unnecessary for us to consider defendant's other arguments on appeal.
Reversed and remanded for a new trial.
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