April 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ARTHUR SCHELLINGER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-09-1943.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2007
Before Judges R. B. Coleman and Lyons.
Defendant Arthur Schellinger and co-defendant Tim McGeachy (McGeachy) were charged under Atlantic County Indictment No. 05-09-1943, with possession of cocaine, N.J.S.A. 2C:35-10a(1). The indictment contained multiple counts; however, it only named defendant in count one, possession of cocaine. On October 17, 2006, defendant's case proceeded to trial before a jury which found him guilty as charged. The court sentenced defendant to prison for four years, with credit for 343 days time served. On February 26, 2007, defendant filed a Notice of Appeal.
The facts relevant to this appeal are as follows. On May 3, 2005, Atlantic City Police Officer James Armstrong (Armstrong), in the course of surveying an area of Atlantic City known for narcotics sales, observed McGeachy suspiciously walking back and forth between two streets. Shortly thereafter, Armstrong saw defendant approach McGeachy, at which time the two men had a brief conversation. The two men then walked to the corner of the street and spoke again. There, defendant handed McGeachy an undetermined amount of money. After receiving the money from defendant, McGeachy entered a nearby house while defendant remained on the street. Within a few minutes, McGeachy returned and again conversed with defendant as the two men walked back towards their original location. Next, the two men entered the parking lot of a store and proceeded toward an alleyway. At that time, Armstrong, who had followed the men in his patrol car, witnessed McGeachy hand defendant an item that defendant placed in the front right pocket of his pants.
Believing that the two men had engaged in a narcotics transaction, Armstrong exited his vehicle and instructed the men to stop and place their hands where he could see them. Defendant reached into his pocket, removed a small clear bag and threw it to the ground. Armstrong arrested both men. Upon searching defendant, Armstrong found two glass crack pipes and a copper "brillo pad." A search of McGeachy did not reveal anything of evidentiary value; however, Armstrong did not find this unusual because he believed that McGeachy was acting as a middleman to defendant's drug purchase, receiving a share of the drugs, instead of a monetary fee, in exchange for taking defendant to purchase the drugs.
At trial, Armstrong testified to the events that transpired and explained that he had made over three-hundred arrests for drug-related crimes in that specific area, which is well known for drug sales because a drug rehabilitation clinic is located nearby. Armstrong further stated that he completed a one-month internship with the Atlantic County Prosecutor's Narcotics Strike Force, an eighty-hour course with the Drug Enforcement Agency (DEA) and an eighty-hour narcotics course run by the New Jersey Attorney General. In addition, Armstrong provided other statements indicating that he had an expertise in narcotics sales.
On appeal, defendant raises the following arguments:
POINT I: DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE COURT ERRED IN PERMITTING THE DETECTIVE TO OFFER INADMISSIBLE OPINION TESTIMONY, IN VIOLATION OF DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).
POINT II: THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND RIGHT AGAINST SELF-INCRIMINATION WHEN THE PROSECUTOR IN SUMMATION COMMENTED ON THE DEFENDANT'S FAILURE TO TESTIFY. U.S. CONST. AMEND. V, VI and XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (NOT RAISED BELOW).
Initially, we note that defendant did not raise either of these arguments at trial. Therefore, we will not reverse the determination of the trial court unless it constitutes plain error. R. 2:10-2. Plain error is error that is capable of producing an unjust result. State v. Brown, 190 N.J. 144, 160 (2007).
Defendant asserts that Armstrong's specific opinions about drug dealing, when considered in connection with his expertise and training, went beyond the opinion of a lay witness. N.J.R.E. 701 provides: "If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue."
N.J.R.E. 702 states: "If 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."
Generally, "lay opinion may not cross into the realm of expert testimony." Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 701 (2008); see also Alpine Country Club v. Demarest, 354 N.J. Super. 387, 394 (App. Div. 2002) ("Lay testimony may not usurp the function of expert opinion."). "Nonetheless . . . if the witness possesses sufficient qualifications to have testified as an expert, any error allowing the lay 'opinion' may be deemed harmless." Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 701 (2008).
For example, in State v. Kittrell, 279 N.J. Super. 225, 235 (App. Div. 1995), the court addressed whether a narcotics detective's statements regarding defendant's beeper, particularly statements that beepers are used in the course of drug trafficking, exceeded the bounds of lay opinion. The court found that "the detective's testimony exceeded the bounds of proper lay opinion testimony and crossed over into the realm of expert testimony." Id. at 236. Thus, the detective should have been qualified as an expert. Ibid. "The testimony involved 'specialized knowledge' based upon the detective's 'experience, training [and] education.'" Ibid. (citing N.J.R.E. 702). The court, however, held that such an error was harmless because "a proper foundation had been laid as to the detective's thousands of drug related arrests as well as his experience and training in this area for over sixteen years." Ibid.
The facts of Kittrell, supra, closely resemble the facts of this appeal. Although Armstrong was not tendered or qualified as an expert, enough evidence was presented at trial to qualify him as an expert. Specifically, Armstrong testified that he was an Atlantic City Police Officer for ten years; he has made over three-hundred narcotics related arrests in the area where defendant was arrested; and, he completed a one-month internship with the County Narcotics Strike Force, an eighty-hour course with the DEA and an eighty-hour narcotics course run by the New Jersey Attorney General. Thus, admitting Armstrong's opinion testimony was harmless.
Defendant also argues:
Although Armstrong may have had the requisite experience to testify as an expert, that by no means justified the admission of his opinion testimony in this case. Defense counsel was surely hampered in his ability to cross-examine Armstrong as to his qualifications to offer an opinion, because any inquiry into this area could prejudice the defense by bolstering the officer's credibility.
Thus, defense counsel's failure to cross-examine Armstrong and failure to object to his testimony appears to have been a conscious tactical determination intended to avoid further testimony that would in fact bolster Armstrong's credibility. It would, then, be illogical for this court to further consider whether the admission of expert opinion by a witness not formally qualified as an expert was error when, as part of his trial strategy, counsel for defendant made a knowing determination not to pursue it. Based on the applicable standard of Rule 2:10-2 and Brown, supra, and the reasoning of Kittrell, defendant has not demonstrated that the trial court committed plain error.
Additionally, we do not find persuasive defendant's second point: that the prosecutor's summation violated defendant's right against self-incrimination. Defendant maintains that the following excerpt from the State's summation infringed upon his Fifth Amendment right not to testify:
Members of the jury, it should be obvious to you that the Defendant possessed that cocaine while Officer Armstrong, who the Defense has not indicated had a motive to lie, really came in here and told you that he saw [Mr. McGeachy], who went to that building on South Kentucky Avenue, who spent some time in there and then came back, after receiving cash from Mr. Schellinger, met him on the corner, they traveled the three blocks back to Ocean Avenue, left Pacific Avenue, down Ocean into an alley and the sale was consummated.
That is the uncontroverted testimony in this case.
In State v. Sinclair, the Court provided the following guidance:
The prosecutor has the right to make fair comment on the evidence and to argue to the jury the significance of the testimony presented, but when he begins to discuss the significance of what testimony was not presented and if it does not clearly appear that persons other than defendant could have been called, there is a danger that he may reflect upon a defendant's Fifth Amendment right to remain silent. Every time a prosecutor stresses a failure to present testimony, the facts and circumstances must be closely examined to see whether the defendant's right to remain silent has been violated. We do not mean to preclude the legitimate inferences from non-production of evidence to which the prosecutor may fairly refer.
[49 N.J. 525, 548-49 (1967) (internal citations omitted).]
Sinclair, supra, held that repeated remarks by the State that the evidence was "uncontradicted," when only defendant could deny that evidence, "raise[d] a danger that the jury would draw an improper inference from defendant's failure to take the stand." Id. at 549.
Prosecutorial misconduct may serve as grounds for reversal of a criminal conviction only when it is "so egregious as to deprive defendant of a fair trial." State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001); State v. Frost, 158 N.J. 76, 82 (1999). In determining whether prosecutorial misconduct denied defendant a fair trial, the reviewing court must consider (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. [Frost, supra, 158 N.J. at 83.]
The defense counsel's "failure to object suggests that [it] did not believe the remarks were prejudicial at the time they were made." Id. at 84. Moreover, failing to object prevents the court from the opportunity to take corrective action. Ibid. Consequently, if defense counsel did not object to any of the prosecutor's summation remarks, defendant must demonstrate plain error under R. 2:10-2. Timmendequas, supra, 161 N.J. Super. at 576.
We cannot conclude that the State's single reference to "uncontroverted testimony" prejudiced defendant. Even if the prosecutor's statement was improper, the judge's charge to the jury would have eliminated any perceived prejudice. The judge instructed the jury as follows:
As you know, Mr. Schellinger elected not to testify at this trial. It is his Constitutional right to remain silent. You must not consider, for any purpose or in any manner, in arriving at your verdict the fact that Defendant did not testify. That fact should not enter into your deliberations or discussions in any manner at any time. Mr. Schellinger is entitled to have a jury consider all evidence presented at trial. He is presumed innocent if he chooses not to testify.
This instruction "effectively eradicated whatever prejudicial impact the prosecutor's remarks may have generated." State v. Ruiz, 127 N.J. Super. 350, 355 (App. Div. 1974), aff'd, 68 N.J. 54 (1975).
Based on the foregoing, defendant's judgment of conviction is affirmed.
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