February 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRELL WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-04-0471.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Parker, R. B. Coleman and Lyons.
Defendant Terrell Williams appeals from a judgment of conviction entered after a jury found him guilty of third degree conspiracy to possess a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2 (downgraded from second degree) and third degree possession of a CDS, N.J.S.A. 2C:35-10a(1). After reviewing the record in light of the arguments raised by defendant on this appeal, we affirm the convictions but remand for re-sentencing.
The charges against defendant arose from the execution of a search warrant by the New Brunswick Police Department Anticrime Unit at 94 Comstock Street on January 20, 2002. On that date, Lieutenant Paul Schuster of the New Brunswick Police Department was supervising surveillance at the premises. After observing co-defendant Kelly Evans exit the house, Lieutenant Schuster instructed other officers to stop and detain Evans. Evans fled but was apprehended and arrested. Then, officers entered 94 Comstock Street, which Schuster originally believed to be a one-family house. However, upon entering to execute the warrant, they learned that defendant's uncle resided in a separate apartment on the first floor and defendant occupied the second floor apartment. The search was limited to common areas, the basement and the second floor.
When Schuster encountered defendant in the second floor apartment, he advised him of his constitutional rights and presented the search warrant. The ensuing search yielded three plastic baggies containing what was later identified as cocaine. In addition, in the common area immediately outside of the apartment, 118 bags of cocaine were found rolled in a carpet.
Defendant was charged along with Evans, in Middlesex County Indictment No. 02-04-0471 with conspiracy, N.J.S.A. 2C:5-2 (count one); third degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (count two); second degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (count three); third degree possession with intent to distribute a CDS on or near school property, N.J.S.A. 2C:35-7 (count four); third degree possession of a CDS with intent to distribute in or near a public park, N.J.S.A. 2C:35-5a (count five); and possession of a firearm while engaged in CDS distribution related activity, N.J.S.A. 2C:39-4.1 (count seven).*fn1
After a six day jury trial,*fn2 the jury found defendant guilty of count one, as amended, and count two. As to defendant only, counts three, four, five and seven were dismissed. Prior to sentencing, the court granted the State's motion for an extended term and, and at the sentencing hearing, merged convictions for the conspiracy and possession of CDS. The court imposed a six-year prison term plus fines and penalties.
Defendant subsequently filed a timely appeal, in which he has raised the following arguments:
THE PROSECUTOR'S COMMENTS TO THE JURY SUGGESTING THAT THE TESTIMONY OF POLICE OFFICERS WAS INHERENTLY CREDIBLE PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
THE EXPERT OPINION ELICITED BY THE STATE IMPERMISSIBLY RECITED A LEGAL CONCLUSION, THEREBY DENYING DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY ENGAGING IN AN EX PARTE, OFF-THE-RECORD COMMUNICATION WITH THE DELIBERATING JURY PANEL.
THE TRIAL COURT ERRED BY ALLOWING EXTENSIVE TESTIMONY ABOUT THE EXISTENCE AND EXECUTION OF A SEARCH WARRANT FOR DEFENDANT'S RESIDENCE WITHOUT PROPERLY INSTRUCTING THE JURY (NOT RAISED BELOW).
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY ENGAGING IN IMPERMISSIBLE FACT-FINDING WHICH VIOLATED DEFENDANT'S RIGHT TO TRIAL BY JURY (NOT RAISED BELOW).
Defendant failed to raise below all but one of the issues he now raises on appeal. Therefore, our review of those issues, Points One, Two, Four, Five and Six, is under the plain error rule.*fn3 R. 2:10-2. That rule provides that "[a]ny error or omission shall be disregarded by the appellate court unless it is of a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court." As the Court has noted, "[w]e may reverse on the basis of unchallenged error if we find the error was 'clearly capable of producing an unjust result.'" State v. Brown, 190 N.J. 144, 160 (2007) (citing R. 2:10-2). We find no such error in this case.
Defendant first argues that a statement made by the prosecutor during summation constituted prosecutorial misconduct that deprived defendant of a fair trial. "The standard for reversal based upon prosecutorial misconduct is well-settled in the law . . . . [P]rosecutorial misconduct is not grounds for reversal . . . unless the conduct was so egregious as to deprive defendant of a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999). We have recognized that a prosecutor may not express a personal belief as to a witness's credibility or suggest that a police officer would be penalized if a jury did not believe his or her testimony. State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). More succinctly, the Court has stated that "it is improper for a prosecutor to contend in summation that the police had no motive to lie." State v. R.B., 183 N.J. 308, 331-32 (2005); see also State v. Frost, 158 N.J. 76, 85 (1999) (citing various cases demonstrating that it is inappropriate for a prosecutor to comment about a police officer's credibility).
In the present case, the assistant prosecutor made the following comment to the jury:
[Defense counsel] made a really good argument I thought for the State's case in discussing the credibility of certain witnesses. She said if the police lie to you, they can lose their jobs, their pensions, their security. You have to ask yourself whether that's worth one conviction. Defendant contends that comment suggested to the jurors that they should accept testimony by the police simply because of their status as police officers and the risk that they might lose status and benefits if they lied, rather than based on their believability. We disagree. In State v. Engel, 149 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 379 (1991), we acknowledged that a prosecutor may respond to remarks made during defense counsel's summation to defend the integrity of his or her case. Such is the situation before us.
During her summation, counsel for one of the defendants attacked the credibility of the testifying police officer. She said:
The question is who has a reason to be less than truthful in this case? Who? Not [defendant's uncle]. He doesn't have an interest in this. He lived downstairs. He has no reason to lie or to tell the truth.
But the police have something to lose. They have a lot to lose: Their credibility, their jobs, their pension, their security, their health care. But they don't have any rules. They can be hurt professionally. I could go on. I mean there are so many things that I wish I could tell you.
In light of those statements, it was not inappropriate for the prosecutor to respond to defense counsel's remarks during summation. Engel, supra, 149 N.J. Super. at 379.
Furthermore, defense counsel's failure to object to the statement implies that the comment was not in fact prejudicial. Frost, supra, 158 N.J. at 83-84 ("Generally, if no objection is made to improper remarks, they will not be deemed prejudicial . . . . The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made."). In context, the prosecutor's remarks were fair comments that do not constitute prosecutorial misconduct. They did not deprive defendant of a fair trial.
Next, defendant contends that portions of the testimony of the State's expert were impermissible because they included legal conclusions that wrongfully influenced the jury's decision. That contention is not supported by the record or by the applicable case law.
The admissibility of an expert's opinion rests in the sound discretion of the trial court. State v. Summers, 176 N.J. 306, 312 (2003). In State v. Odom, 116 N.J. 65, 71 (1989), the Court explained that "the opinion of an expert can be admitted in evidence if it relates to a relevant subject that is beyond the understanding of the average person of ordinary experience, education, and knowledge." Thus, "[i]f the expert's testimony on such a subject would help the jury understand the evidence presented and determine the facts, it may be used as evidence." Ibid.
Courts typically agree that expert testimony concerning drug-trade practices is admissible because many jurors require insight as to the defendant's purpose for possessing the drugs -whether defendant intends to distribute them or whether defendant intends to possess them for personal use. Summers, supra, 176 N.J. at 312. In Odom, the Court stated that so long as an expert does not express his or her opinion as to defendant's guilt, "but simply characterizes defendant's conduct based on the facts in evidence in light of his specialized knowledge, the opinion is not objectionable even though it embraces ultimate issues that the jury must decide." 116 N.J. at 79. An expert's opinion is permissible even if the expert uses terms that parallel the language of the statutory offense if such language is used in the "ordinary parlance or expression of persons in everyday life." Ibid.
The Court further explained in Odom that a prosecutor must be cautious, asking hypothetical questions that refer only to the testimony and evidence presented to the jury. Id. at 81-82. "Having set forth this information in the form of a hypothetical, the expert may be asked if . . . he or she has an opinion whether the drugs were possessed for personal use or for the purpose of distribution." Id. at 82.
In this case, defendant specifically takes issue with the following line of questioning:
Q: I'm going to ask you to assume that police in New Brunswick conduct a search of a residence and inside a pocket of a sweater hanging in closet the police find three plastic baggies. I'm going to show you S-32 for identification, a bag of baggies, and inside one baggie is a rock of crack cocaine, S, like S-3 for identification, and inside one of the other baggies is [sic] eleven plastic individually packaged rocks of cocaine, S-5, and then inside a third baggie in the same pocket are the seventeen plastic bags of crack cocaine inside another one of those plastic baggies such as S-4 which I'm handing to you right now. So you've got three baggies with three different amounts of crack cocaine in the same sweater. And assume further that in a different pocket in that same sweater is found an amount of cash, $560 cash.
Those facts alone, can you give an opinion as to whether that amount of cocaine was possessed for personal use or with the intent to distribute?
A: Possessed with the intent to distribute.
Q: I'm going to show you what's been marked S-2 for identification, and assume further that, again, in one of these plastic baggies, S-2, there are 118 individually packaged rocks of crack cocaine found in an area immediately outside the apartment door. That amount alone with no cash, nothing else, that amount of crack cocaine, can you give this jury an opinion as to whether that amount would be possessed with intent to distribute or for personal use?
A: It would be with the intent to distribute.
We perceive no impropriety, and certainly none that would warrant a reversal.
The expert provided his opinion that defendant possessed the drugs with the intent to distribute within the context of the prosecutor's hypothetical question. Based on the cases cited above, the expert's testimony was admissible even though it paralleled applicable statutory language because that language is used in everyday life. See Odom, supra, 116 N.J. at 79. Additionally, the expert did not offer an opinion as to defendant's guilt. Moreover, in spite of the expert's opinion that the person in the hypothetical situation possessed the CDS with the intent to distribute, defendant was not convicted of possession with intent to distribute. This indicates that the expert's opinion did not unduly or unfairly influence the jury's verdict.
Next, we address defendant's argument that the court erred by allowing testimony concerning the issuance of a search warrant to search his premises. Defendant suggests that "the prejudice that flows from evidence of a search warrant is that it allows a jury to infer that a neutral judge was presented with sufficient independent proof that drugs would be found on the defendant or in his home." In advancing that suggestion, defendant cites State v. Milton, 255 N.J. Super. 514, 520 (App. Div. 1992) and State v. Alvarez, 318 N.J. Super. 137, 148 (App. Div. 1999). In Milton, the panel made the following observation: the defendant was unquestionably prejudiced by the mention of the existence of a warrant to search his person. The natural inference from the mention of the warrant itself, confirmed by the cautionary instruction of the trial judge, was that sufficient independent proof had been presented to a neutral judge to believe that defendant would be found in possession of drugs. The trial judge's explanation to the jury that the burden of proof for a search warrant was less than that required for conviction at trial served to support this prejudicial inference.
In this case, the prosecutor elicited testimony from Schuster that a search warrant had been issued for 94 Comstock Street. Thus, defendant asserts that he was unduly prejudiced by this testimony. Defendant's reliance on Milton and Alvarez is misplaced. In State v. Marshall, the Court distinguished Milton, noting that in Milton, the prosecutor's reference to a search warrant had the capacity to mislead the jury. 148 N.J. 89, 240 (1997), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88. In addition, the Court expressly repudiated the proposition that the jury should be shielded from knowledge that search warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt. The Court declared:
We are aware of no authority in support of such a rule. We are satisfied that a properly instructed jury will not presume guilt based on the issuance of a search warrant. We note, moreover, that the fact that a search warrant was issued might necessarily be put before a jury in order to establish that the police acted properly. [Ibid.]
In this case, the reference to the search warrant was not misleading. Moreover, the trial court provided the jury with a proper limiting instruction, explaining that the evidence pertaining to the search warrant was introduced for the purpose of demonstrating that the police had the authority to enter defendant's home, and not for the purpose of proving defendant's guilt.
Similarly, defendant argues that the testimony of the municipal judge who issued the search warrant exacerbated the prejudicial effect of other references to the search warrant. We disagree. The State presented the judge's testimony to rebut defendant's assertion that the search warrant had not been validly signed or issued. The issuing judge merely provided testimony as to the authenticity of the warrant. In addition, the trial court gave a limiting instruction that appropriately informed the jury of the purpose of this testimony. Therefore, the court reduced or eliminated any risk that the jury might improperly infer that the issuance of the search warrant was sufficient to prove defendant's guilt or that it was offered for that purpose.
Defendant next argues that the trial court erred by engaging in an ex parte communication with the jury. "While it is clear that ex parte communications by judge to jury are erroneous and improper, the distinction between those ex parte occurrences that require reversal and those that may be excused as harmless is not so clear." State v. Basit, 378 N.J. Super. 125, 131 (App. Div. 2005). Basit, supra, explained that "when the record fails to replicate what occurred during the ex parte proceeding, and when the appellate court is 'unable to say' whether the effect of the ex parte proceeding 'was prejudicial or otherwise,' then reversal is required." Ibid. (quoting State v. Auld, 2 N.J. 426, 433 (1949)). Here, the ex parte communication was relatively innocuous. It occurred when the trial judge excused the jury though defendant or his counsel were not present. The judge told the jurors, "please close your papers, close your mind. Go home and come back tomorrow at nine o'clock."
Although the better practice is to assemble the defendant and all counsel to excuse the jury in their presence, the failure to adhere strictly to that practice does not require reversal of defendant's conviction. The judge merely excused the jury for the evening. It is not alleged and no reasonable person can comprehend that his words could have prejudiced defendant. As such, defendant's argument does not warrant further discussion. R. 2:11-3(e)(2).
Defendant also argues that the combined effect of all the alleged errors warranted reversal of his conviction. In State v. Orecchio, 16 N.J. 125, 129 (1954), and more recently in State v. Wakefield, 190 N.J. 397, 538 (2007), the Court recognized that the aggregate effect of legal errors could prejudice a defendant's rights to an extent that a new trial is required. However, this is not one of those cases. As detailed above, none of the alleged errors presented on appeal prejudiced defendant in any unjust or unfair way. Neither do they collectively. Defendant's argument to the contrary is without merit. R. 2:11-3(e)(2).
Finally, defendant argues that the matter should be remanded for re-sentencing in accordance with State v. Pierce, 188 N.J. 155 (2006). Because the State does not oppose such a remand, there is no need to comment further on this matter. Defendant may be re-sentenced "within the expanded range of sentences available from the bottom of the ordinary-term to the top of the extended-term range." Id. at 171. The trial court should determine the appropriate level without regard to any presumptive term. Id. at 170.
Defendant's conviction is affirmed; the matter is remanded for re-sentencing in accordance with Pierce.