February 22, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES MARTINO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-07-01428.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2007
Before Judges A. A. Rodríguez, Collester and C. L. Miniman.
Following a jury trial, defendant Charles Martino was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), and second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2). He was also convicted of the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2. The judge granted the State's motion for an extended term and imposed a twelve-year term with a six-year period of parole ineligibility on the second-degree offense and concurrent terms of four years on the third-degree offense and six months on the disorderly persons offense.*fn1 We reverse.
These are the salient facts. On October 5, 2002, defendant and co-defendants Ahmat B. Amat and Ruben Otero*fn2 were returning from New York City over the George Washington Bridge in a 1992 white Cadillac with Pennsylvania license plates. At a pre-trial hearing on a motion to suppress, Bergen County Police Officer Marcel Schacht testified that he saw the Cadillac speeding, weaving in and out of traffic and tailgating other vehicles. Schacht stopped the Cadillac. Defendant, the driver, could not produce identification. Schacht detected the smell of marijuana emanating from the driver's side. Otero was sitting in the front passenger seat, and Amat was in the back seat. Schacht looked into the Cadillac and saw a "High Times" magazine on the rear seat and a baggie on the front-seat floorboard. Schacht ordered defendant out of the vehicle.
Schacht questioned defendant at the back of the Cadillac. The officer first did a protective pat-down search based on his observation of a bulge in defendant's pants. Defendant was fidgeting with the bulge. Schacht reached in and pulled out a wad of $2,016 in cash that was interspersed with two baggies filled with marijuana.
Another officer arrived to assist. This allowed Schacht to walk to the passenger side of the Cadillac and speak with Otero. As he did so, Schacht 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 defendant. He then turned his attention to Amat, who was removed from the vehicle and also ordered to the guardrail.
Schacht searched the Cadillac and recovered a clear plastic bag with forty-seven Ecstasy pills inside a pouch draped over the driver's seat. The pouch also contained a digital scale and baggies containing marijuana. A white powdery substance, which Schacht identified as cocaine, was found underneath a jacket on the back seat. The weight of the cocaine was later determined to be 4.8 ounces. The three men were arrested.
Schacht testified for the State at trial consistently with his testimony at the suppression hearing. Detective Elliot Cookson testified as an expert witness regarding illegal narcotics and trafficking activity. He was not a fact witness. He opined that defendant and his passengers constructively possessed the narcotics seized with intent to distribute them to others. Specifically, he opined that:
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.
Cookson also opined that narcotics purchased in the New York City area could be sold for a greater amount in Pennsylvania. Subsequently, at side bar, the judge admonished the prosecutor that Cookson "really can't give an opinion as to this case." Instead of posing a hypothetical question, the prosecutor then questioned Cookson about the value of narcotics seized in Pennsylvania as compared to New York.
The prosecutor then asked the following hypothetical question:
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 possession would that be indicative of possession with intent to distribute?
Cookson replied and volunteered:
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, Cookson testified that he felt "100 percent confident in stating that these three individuals all were aware, all had a part in the purchase of these drugs."
After redirect, the judge told the jury that although Cookson was allowed to testify as an expert, he could not give his opinion as to any defendant's guilt or innocence. He said:
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.
The State rested.
Amat testified that he had known defendant and Otero for only a few months. The day of the arrest, Otero telephoned him at home in Wilkes-Barre, Pennsylvania to tell him he was going to New York with defendant. Amat agreed to go with them. They left at about 12:30 p.m. On the way, they shared a blunt of marijuana. Amat 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 defendant's mother. When they got to New York, Otero stopped the car at a house and went inside. When Otero returned, he handed defendant a large wad of money. Then they began the trip home. Amat fell asleep in the back seat. He awoke when Schact pulled the Cadillac over. Amat recalled that after defendant walked to the rear of the vehicle, Otero opened the glove compartment, took out something wrapped in a paper towel and threw it to Amat. Otero told Amat to put the package down his pants. Amat refused and threw the package back. Otero then wrapped it in a jacket, which he put in the rear passenger seat floor. Otero also opened a briefcase and began stuffing things into the pouch behind the driver's seat. Amat had no knowledge that there were drugs in the Cadillac.
Linda Skiva, defendant's mother, testified that she owned the Cadillac and wanted to sell it. She asked her son to ask Otero if he wanted to buy it. Otero agreed. She lent defendant the vehicle to drive Otero to New York City to get $2,000 for the purchase.
The State called Otero as a rebuttal witness. He testified that the day of the arrest, he was at his home playing video games and smoking marijuana with Amat when defendant arrived and asked him for his help in buying cocaine. Otero replied that he could get him whatever he wanted. The three men agreed to drive to New York to purchase cocaine, marijuana and Ecstasy to sell in Wilkes-Barre. They smoked marijuana during the drive to the Washington Heights section of New York City. They each contributed money for a total of $4,000 to purchase the narcotics. According to Otero, he and defendant got out of the car and bought cocaine, marijuana and Ecstasy on a street corner. Otero gave the drugs to defendant, who put them in his jacket pocket. They agreed to split the cocaine and marijuana. Otero would take the Ecstasy pills. Otero said that he never intended to purchase the Cadillac. He denied stopping at his mother's house that night.
In the final charge, the judge instructed the jury:
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.
On appeal, defendant contends:
PROSECUTION'S USE OF A EXPERT WITNESS VIOLATED [DEFENDANT'S] RIGHT TO A FAIR TRIAL BECAUSE IT FAILED TO BE PLACED IN THE FORM OF A HYPOTHETICAL AND IGNORED TRIAL COURT'S ATTEMPT TO LIMIT THE PREJUDICIAL NATURE OF THE OPINION. ERROR IS ILLUSTRATED AND COMPOUNDED IN THE JURY INSTRUCTION (Not Raised Below)
A. Trial Court Failed In Its Gatekeeper Function By Impermissibly Interjecting Request For Expert Testimony Thereby This Issue Is Not Be Viewed By The Plain Error Standard. State V. Nesbitt, 185 N.J. 504, 515 (2006). State V. Odom, 116 N.J. 65 Does Not License The Use Of A Narcotics Expert To Tell A Jury That Which Is Obvious.
We agree. 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, 81 (1989). The manner of packaging, the significance of quantity and purity of the substances, the circumstances surrounding possession and the conduct of the possessor are 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.), certif. denied, 187 N.J. 83 (2006). However, 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. Nesbitt, supra, 185 N.J. at 514; Odum, supra, 116 N.J. at 82. See also Nesbitt, supra, 185 N.J. at 520 (Albin, J., dissenting). Therefore, a hypothetical question should be used by the State to elicit an opinion of an expert that the illegal drugs were possessed for distribution purposes. Nesbitt, supra, 185 N.J. at 514; State v. Summers, 176 N.J. 306, 312-15 (2003); Odum, supra, 116 N.J. at 81-82. The use of a hypothetical question is designed to minimize the risk that the expert's opinion testimony will not be treated by the jury as fact testimony.
For that reason, an expert may not be asked an opinion as to whether the defendant on trial committed the crime. "[A]n expert's testimony that expresses a direct opinion that defendant is guilty of the crime charged is wholly improper." Odum, supra, 116 N.J. at 77. Accord, Summers, supra, 176 N.J. at 314-15. The judge must carefully instruct the jury as to the limitation and proper weight to be given to an expert's opinion. Nesbitt, supra, 185 N.J. at 519; Odum, supra, 116 N.J. at 82. The judge must emphasize to the jurors that the ultimate decision about a defendant's guilt is solely their determination. Ibid.
Here, the Assistant Prosecutor directly asked Cookson whether he had an opinion as to whether these defendants possessed drugs with intent to distribute them. He responded that the defendants had such intent. Both the question and the answer were improper. Furthermore, Cookson later added that he was "100 percent sure" that each of the defendants played a part in the purchase of the drugs.
Because no objection was taken to the questions of the prosecutor or to the court's charge, our review is under the plain error standard. Summers, supra, 176 N.J. at 316; R. 2:10-2.
We find such error here. The improper questioning by the prosecutor to elicit Cookson's opinion as to the guilt of each defendant was especially damaging to defendant's defense that he played no part in any drug transaction and was merely selling his mother's Cadillac.
The judge tried to mitigate the prejudice to defendant. However, the curative instructions could not "unring the bell." In fact, the final charge emphasized the inadmissible testimony, although other parts of the charge 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.
We conclude that, despite the judge's attempt, Cookson's opinion testimony of defendant's guilt was "clearly capable of producing an unjust result" and constituted plain error. R. 2:10-2.
In light of our determination of this issue, it is unnecessary to consider defendant's other contentions on appeal. However, because there will be a new trial, we address the three challenges to the decision on the motion to suppress.
MOTION COURT FAILED TO MAKE FINDINGS OF FACT THAT SUPPORT THE DENIAL OF THE MOTION TO SUPPRESS. R. 1:7-4(a) (Raised In Part Below). DENIAL OF MOTION WAS ERRONEOUS AS A MATTER OF LAW.
CREDIBILITY OF THE STATE'S ONLY WITNESS [AT SUPPRESSION HEARING] IS IMPUGNED ON THE RECORD. STATE V. GIBSON, 318 N.J. Super. 1, 9 (APP. DIV. 1999), THEREBY PERMITTING THIS COURT TO CONSIDER THE MOTION BASED ON THE EVIDENCE SUBMITTED AND FIND THE DEFENDANT.
1. Police Officer Testimony At The Motion Hearing Is Incredible of Belief That He Smelled The Odor of Marijuana Upon Approaching The Driver's Side Of The Vehicle.
2. Credibility of Testimony To Support Terry Frisk Was Impugned On The Record. POLICE LACKED PROBABLE CAUSE TO MAKE THE INITIAL STOP (Not Raised Below) AND REQUEST TO EXIT THE VEHICLE. MOREOVER, POLICE LACKED A VIABLE EXCEPTION TO THE WARRANT REQUIREMENT TO CONDUCT A SEARCH AFTER THE OCCUPANTS WERE ARRESTED.
1. Officer Lacked Probable Cause To Make The Initial Stop.
2. No Exception To The Warrant Requirement Exists For The Police To Effectuate A Search of The Vehicle While All The Occupants Were Under Arrest.
We affirm the decision of the motion judge denying defendant's motion to suppress.
The principles in this area are well-settled. In order to stop a motor vehicle, a police officer need only have a reasonable suspicion that a crime or traffic offense is being or has been committed. State v. Golotta, 178 N.J. 205, 212-13 (2003). A permissible stop, by its very nature, permits an officer to ask the driver to exit the vehicle without additional justification. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed. 2d 331, 337 (1977); State v. Smith, 134 N.J. 599, 615 (1994). The "protective sweep" exception to the warrant requirement permits an officer with a reasonable belief that the person is armed and dangerous to conduct a limited search for weapons. Terry v. Ohio, 392 U.S. 1, 26-27, 88 S.Ct. 1868, 1882-83, 20 L.Ed. 2d 889, 909 (1968); State v. Roach, 172 N.J. 19, 27 (2002). When other circumstances exist, such as a person's refusal to obey lawful orders or nervous or erratic behavior, the officer may take further action "to neutralize any potential threat." Roach, supra, 172 N.J. at 29. When probable cause and exigent circumstances exist, the police may search the vehicle under the "automobile exception" to the warrant requirement. State v. Dunlap, 185 N.J. 543, 549 (2006).
Based on the testimony of Schacht summarized above, we conclude that there is ample evidence on the record to support the motion judge's decision to deny the motion. Schacht testified that he observed the Cadillac commit a number of motor vehicle offenses which caused him to pull the vehicle over. Once defendant failed to produce identification, Schacht asked him to alight the vehicle. Defendant immediately became agitated and nervous and failed to remove his hands from his pockets, constantly fidgeting with a bulge in his pants. Schacht removed the bulge from defendant's pants and found a large quantity of cash interspersed with two baggies of marijuana.
The smell of marijuana and the other indicia of drugs in the Cadillac gave the police probable cause to search the car. See State v. Nishina, 175 N.J. 502, 515-16 (2003). This case also presents a clear set of exigent circumstances, which include the fact that the police were outnumbered on the shoulder of Route 95. This justified the search of the vehicle, which uncovered the remaining narcotics.
Defendant's remaining contentions regarding the motion to suppress, namely that Schacht's testimony at the motion hearing was "incredible of belief," are credibility determinations, best left to the trier of fact, who had the ability to observe Schacht's testimony firsthand. State v. Locurto, 157 N.J. 463, 474 (1999). We see no basis to disturb such findings.
The record supports the judge's conclusion that Schacht acted within the bounds of the Constitution. We therefore affirm the decision denying defendant's motion to suppress.
Defendant also contends:
DEFENSE OPENING TO THE JURY WAS INTERRUPTED WITH A TRIAL COURT DIRECTIVE TO IGNORE THE GUILT OF A THIRD PARTY. THE JURY WAS ULTIMATELY CHARGED WITH CONSTRUCTIVE POSSESSION. THIS CONSTITUTES AN ABSOLUTE INFRINGEMENT TO A FAIR TRIAL AND A DIRECTED VERDICT. (Objected to Below).
A. Interruption Of Defense Opening Because It Mentioned Third Party Guilt Reflects Prosecution's Disregard For Due Process Of Law As Evidence By Our State's Discovery Rules and Subsequent Use of Mr. Otero As Rebuttal Witness Violated [Defendant's] Right To A Fair Trial.
[DEFENDANT] FAILED TO RECEIVE ADEQUATE JURY INSTRUCTIONS THUS DENYING HIM A FAIR AND IMPARTIAL JURY (Raised In Part Below). EXISTENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL IS FOUND ON THE RECORD SUFFICIENT FOR THIS COURT TO FIND A VIOLATION OF STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984); STATE V. FRITZ, 105 N.J. 42, 58 (1987).
From our careful review of the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Given our decision that a new trial is warranted we do not reach the following contention:
INSTANT SENTENCE WAS CLEARLY UNREASONABLE AS TO SHOCK THE JUDICIAL CONSCIENCE UNDER THE INSTANT FACTS DIVULGED AT TRIAL AND KNOWN TO THE SENTENCING JUDGE. STATE V. ROTH, 95 N.J. 334, 363 (1984).
Reverse and remanded to the Law Division, Bergen County, for a new trial. We do not retain jurisdiction.