May 12, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL CARTER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-05-0722.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 2, 2008
Before Judges Payne and Messano.
Defendant Michael Carter appeals from the judgment of conviction and the sentence imposed after a jury convicted him of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), third-degree possession of cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-5(a) and 2C:35-7, and third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3). At sentencing, the trial judge merged all counts into the school zone conviction and sentenced defendant to five years imprisonment with a three-year parole disqualifier. The appropriate financial penalties and driver's license suspension were also imposed.
On appeal defendant raises the following issues for our consideration:
[THE] TESTIMONY OF A STATE'S WITNESS[,] WHO WAS NEVER QUALIFIED AS AN EXPERT AND WHO OFFERED HIS OPINION ON THE ULTIMATE ISSUE FOR THE JURY TO DECIDE, CONSTITUTED PLAIN ERROR. (Not Raised Below)
DEFENDANT'S PRO SE MOTION TO SUPPRESS THE SEIZURE OF EVIDENCE FROM [A CO-DEFENDANT] SHOULD HAVE BEEN HEARD AND DECIDED ON THE MERITS.*fn1
THE SENTENCE WAS EXCESSIVE.
We have considered these arguments in light of the trial record and applicable legal standards. We reverse and remand for a new trial.
On the day of trial, but before jury selection commenced, defendant moved to suppress evidence that was seized from co-defendant Yolanda Scruggs.*fn2 Defense counsel, who was new to the case, advised the court that defendant wished to pursue the motion, but prior counsel "told him there was no basis for [it]." The judge denied the request, indicating only that the "application [was] being made . . . moments before the panel selection for th[e] trial and the indication being that prior counsel in their judgment reviewed the matter, [and] determined it not to be meritorious." A jury was then selected and the trial began.
The State's first witness was Detective Mike Sutton of the New Brunswick police department, an eleven-year veteran who had received training in narcotics investigations. On April 2, 2004, he was conducting surveillance at the intersection of Remsen Avenue and Seaman Street, a location he described as "a high drug trafficking area," with "open air drug sales," and "the scene of numerous arrests in the past." Sutton observed Scruggs, "a female known to [him]" walk into the area. When asked why she caught his attention, Sutton testified, "[f]rom my past experience with  Scruggs I felt she was up there in the area probably looking to buy drugs."
Sutton, who was using binoculars, saw defendant also walk into his area of sight, and he observed Scruggs and two other unidentified individuals approach defendant. He saw one of the individuals hand defendant money, and he saw defendant "spit several bags of suspected cocaine into his hand." He saw the unnamed man put the item he took from defendant's hand into his mouth. Scruggs and the third individual also handed defendant money and took something from his hand, Scruggs placing it in her pants, the other person placing it in her mouth. The prosecutor then asked and Sutton responded:
Q: And based on your training and experience in narcotics investigations what did you believe had just occurred?
A: It was a drug transaction. The defendant spitting it into his hand. The other -- buyers buying it and putting it into their mouth is a way that they are able to hide it and then also destroy the evidence. They'll swallow it if they get stopped.
I saw  Scruggs take it out and put it in her pocket.
Q: Now based on what you saw, who did you believe was selling?
Q: And who was buying?
A: . . . [T]he male, the female, and  Scruggs.
Sutton radioed to his backup units and provided a physical description of Scruggs and her direction of travel. He was advised over the radio that she had been arrested. Sutton also observed other officers arrest defendant, and when asked if anything was recovered from him, responded, "I think he had cash on him." The prosecutor then asked, "[I]n your experience is it unusual to not find narcotics on someone you believe to have made a drug transaction?" Defense counsel objected and at sidebar told the judge, "I realize that the prosecutor prefaced her question with his experience and brought it in that way, but this is definitely calling for an opinion . . . on basically the ultimate . . . issue." The judge sustained the objection "for the reason that it does call for an opinion." After cross-examination, the prosecutor conducted re-direct of Sutton, and asked,
Q: What drug sales did you observe?
A: I observed a drug sale between [defendant],  Scruggs, and the other two individuals that were with  Scruggs at the time.
Q: Did you observe the defendant  to be selling drugs?
A: Yes, ma'am.
Q: How did you indicate that you knew  Scruggs?
A: I knew  Scruggs from previous encounters.
Q: And is that why you watched her?
A: Yes, ma'am.
Q: And while watching her, did she buy drugs?
A: She did.
Q: And who did she buy those drugs from?
A: [Defendant] * * * *
Q: And when you observed [Scruggs], what did you believe that she was in the area to do?
A: I believe she approached [defendant] to see if he had any CDS, any drugs.
Lastly, on re-redirect, the prosecutor asked yet again, "Did you observe a drug sale?" Sutton responded in the affirmative.
We can briefly summarize the balance of the State's case, which is not particularly germane to the issues on appeal. Officer Mark Pappas, one of the backup officers assisting Sutton, testified that he arrested Scruggs based upon the description he received from Sutton. She handed him one bag of crack cocaine. Detective Christopher Plowucha was also on the detail and he arrested defendant and seized $127 from him. There was some further testimony regarding the chain of custody of the drugs seized from Scruggs, and defendant stipulated to the laboratory report that found the item to be cocaine weighing .09 grams. The State rested.
Defendant testified in his own behalf. He claimed to live in the area and was in a deli on the corner of the intersection on the morning in question. Defendant claimed that two "cops" came in the store and started to choke him, telling him to "spit it out." Defendant denied selling anyone drugs on the day in question, emphatically stating, "I don't sell drugs." Defendant admitted having been convicted of a crime and receiving a five year probationary sentence. He claimed that the money he possessed when arrested was given to him by his mother so he could pay his fines. The defense rested after defendant's testimony. After the jury charge and deliberations, the jury returned the guilty verdicts we referenced above.
Defendant argues that Sutton was never qualified as an expert and therefore it was improper to allow him to offer opinion testimony to the jury. Moreover, defendant contends that even if Sutton were properly qualified, the opinions he rendered were inadmissible because they failed to provide evidence regarding the methodology of street drug transactions and instead simply contained Sutton's personal opinion about his observations, thus infringing upon the fact finding function that is solely for the jury.
While we might otherwise overlook the clear failure on the prosecutor's part to properly qualify an expert witness, and the judge's apparent acquiescence to the procedure despite sustaining an earlier objection, we agree with defendant that the testimony of Sutton, as a whole, was improper and unfairly prejudicial given the dearth of other evidence in the case as to defendant's guilt.
The proper role of expert opinion testimony in drug prosecutions has spawned much analysis by our Supreme Court and by us. Most recently, the Court re-affirmed the propriety of expert testimony offered by the State in such instances. "Admission of expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson." State v. Nesbitt, 185 N.J. 504, 507 (2006). However, the Court also reaffirmed the limits upon such testimony, citing the "guidelines" provided in State v. Odom, 116 N.J. 65 (1989). Nesbitt, supra, 185 N.J. at 512.
Once an expert is properly qualified, he "should then be presented with a hypothetical question through which he or she can advise the jury of the significance of the facts" at issue. Odom, supra, 116 N.J. at 82. Even if the hypothetical facts mirror the testimony already presented with specificity, the Court has held the evidence is admissible if the hypothetical does not refer to the defendant by name and does not ask for an opinion as to the defendant's guilt. State v. Summers, 176 N.J. 306, 315 (2003). Once the expert has opined, [i]t is also essential that the jury be advised, following the presentation of the expert's opinion, of the basis for that opinion. The hypothetical question should clearly indicate that it is the witness' opinion that is being sought and that that opinion was formed assuming the facts and circumstances adduced only at trial. It is important that the witness, and the jury, understand that the opinion cannot be based on facts that are not in evidence. [Odom, supra, 116 N.J. at 82.]
And, of particular relevance to this case, the Court has held, "Odom does not license the use of a narcotics expert to tell a jury that which is obvious." Nesbitt, supra, 185 N.J. 514.
The numerous ways in which these basic guidelines were violated in this case are obvious and the issue does not require much discussion. It suffices to say that Sutton was never qualified as an expert witness, he was never asked a hypothetical question, and he was frequently permitted to express an opinion about defendant's guilt-albeit without saying the word "guilty." Moreover, except for telling the jury that drugs are secreted in the mouths of those who buy or sell them, his testimony provided no evidence regarding the modus operandi of street narcotic sales and did little "to assist jurors in understanding [a] subject that [is] beyond the ken of an average layperson." Id. at 507.
Although defense counsel lodged only one objection during Sutton's testimony on the issues, and it was sustained, the testimony was repeatedly permitted thereafter by the trial judge. The prejudicial effect of the opinion testimony overwhelmed any probative value it presented beyond Sutton's testimony as a fact witness, and it served only to emphasize and provide more credibility to that testimony. See State v. Baskerville, 324 N.J. Super. 245, 263 (App. Div. 1999) (noting that the State "was not entitled . . . to an enhanced proof opportunity, through expert opinion on the ultimate question, to salvage a potentially insufficient case") certif. denied, 162 N.J. 10 (2000). "Trial courts are expected to perform a gatekeeper role in determining whether there exists a reasonable need for an expert's testimony, and what the parameters of that testimony may be." Nesbitt, supra, 185 N.J. at 514. "The failure of a defendant to object to expert testimony does not relieve the trial court of its gatekeeper responsibilities." Id. at 515. We therefore view the impermissible testimony as requiring reversal, even if it is judged by the plain error standard.
Because of our determination, we feel it necessary to address another issue, not raised on appeal, but which we comment upon for purposes of guidance if the case is tried again. Sutton was repeatedly permitted to testify about his prior knowledge of Scruggs and his belief that she was in the area, which he described as a "high drug trafficking area" and "the scene of numerous arrests in the past," to buy drugs.
This evidence is entirely impermissible. "[A] police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." State v. Branch, 182 N.J. 338, 351 (2005). Taken in conjunction with the evidence regarding prior arrests the officer made in the area, and phrased in the context of his opinion, Sutton's testimony regarding his prior contacts with Scruggs unfairly prejudiced defendant by implication. See State v. Boston, 380 N.J. Super. 487, 492 (App. Div. 2005) (describing testimony about the nature of the area and the officer's prior experience in making arrests at that location in the context of improper expert opinion in drug trafficking case), certif. denied, 186 N.J. 243 (2006). By allowing Sutton to testify in this manner, the jury was told that he knew Scruggs from prior experience, that she was a drug user, and that she was there, in his personal belief, to purchase drugs, presumably from defendant. The testimony should not be repeated at any re-trial.
We need not address defendant's other two points on appeal in light of our holding. Since the exigency of a trial no longer exists, defendant should be permitted to file his motion to suppress, if he so desires, in a timely fashion and subject to the judge's control of the calendar. We leave resolution of the merits of the issue presented to the trial judge. We also need not address defendant's sentencing arguments.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.