August 6, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DONDURAN BOATMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-02-0175.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2008
Before Judges Sapp-Peterson and Messano.
On February 2, 2005, a grand jury indicted defendant on charges of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (Count One); third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and 2C:55-5(b)(3) (Count Two); third-degree distribution of a controlled dangerous substance within 1,000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); and second-degree distribution of a controlled dangerous substance within 500 feet of a public park, N.J.S.A. 2C:35-7.1(a). The charges arose out of a surveillance operation led by Lieutenant Paul Schuster (Schuster) of the New Brunswick Police Department.
At trial Schuster testified that on December 17, 2004, he proceeded to Throop and Baldwin Streets, an area that borders Feaster Park. According to Schuster, he had conducted surveillance operations in this area "[m]any times over the years." Over the objection of defense counsel, he indicated that the area was significant because "[t]hat is one of the areas that we would get complaints about on a regular basis about alleged drug activity so we would do surveillances there." Schuster also stated that hundreds of arrests had been made in this area over the years. As soon as he set up the surveillance operation, Schuster testified that he observed defendant, whom he knew, along with a group of men in the area of 87 Baldwin Street (87 Baldwin). Within a few minutes, Schuster observed an unidentified person, later identified as Benito Reyes, hand defendant money. Defendant then proceeded down an alley that was next to 87 Baldwin and out of the surveillance view. When defendant returned thirty seconds later, Schuster observed him toss a small light-colored object to Reyes. Reyes looked at the item and placed it in his right pocket and walked away down Baldwin Street. Reyes was arrested shortly thereafter and the suspected narcotics were seized from his right pocket. Defendant was thereafter arrested.
Schuster also testified that at the station, he questioned defendant about the items seized from him, three packages of suspected heroin from the collar zipper of a camouflage jacket defendant had been wearing and $330 in cash. At this point, defense counsel objected. At sidebar, counsel argued that he did not "recall seeing a signed Miranda*fn1 card in discovery." He indicated to the court, "I think the lieutenant testified that he thought [defendant] was mirandized. I don't know whether he was or not." The prosecutor indicated that there were two conversations between Schuster and defendant. The first conversation related to cocaine, during which defendant purportedly responded non-verbally. There was a second conversation related to heroin where the defendant responded verbally. The prosecutor indicated that his question concerned the heroin. Defense counsel lodged no further objection at that point and Schuster testified that he "asked [defendant] about the items found at headquarters, and [defendant] said, well, you know I do a little something now and then."
The jury convicted defendant of all charges. The trial court granted the State's motion for an extended term and sentenced defendant to an aggregate seven-year term with a forty-two-month period of parole ineligibility, along with the appropriate fines and penalties. The present appeal followed.
Defendant raises the following points for our consideration on appeal:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EXPERT OPINION EVIDENCE WITHOUT A PROPER FOUNDATION (Not Raised Below).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ERRONEOUS ADMISSION AND USE OF UNDULY PREJUDICIAL OTHER-CRIME EVIDENCE. (Not Raised Below).
A. THE TRIAL COURT IMPROPERLY ADMITTED OTHER-CRIME EVIDENCE.
B. THE TRIAL COURT FAILED TO RESTRICT THE USE OF THE DISPOSITION EVIDENCE WITH A PROPER LIMITING INSTRUCTION.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY ERRONEOUS, PREJUDICIAL AND INCOMPLETE INSTRUCTIONS ON THE LAW OF CONTROLLED DANGEROUS SUBSTANCES. (Not Raised Below).
A. THE INSTRUCTION WAS SO VAGUE, CONFUSING AND CONTRADICTORY THAT A REASONABLE PERSON WAS INCAPABLE OF UNDERSTANDING AND APPLYING THE LAW.
B. THE TRIAL COURT ERRONEOUSLY ALLOWED THE JURORS TO DETERMINE FOR THEMSELVES WHAT CONSTITUTES AS AN ATTEMPT TO DISTRIBUTE CDS WITHOUT ANY EXPLANATION OR LEGAL GUIDANCE.
THE STATE'S RELIANCE ON ABSENTEE WITNESSES TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION (Not Raised Below).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CONFESSIONS NOTWITHSTANDING THE STATE'S RELIANCE ON INCULPATORY ORAL STATEMENTS TO PROVE ITS CASE. (Not Raised Below).
THE MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED.
We have considered these arguments in light of the trial record and applicable legal standards and, with the exception of Point II, conclude that they are of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We begin our discussion by noting that defense counsel raised no objection at trial to Lieutenant Schuster's testimony that he knew defendant prior to conducting the surveillance operation on December 17, 2004, that the area of 87 Baldwin Street, where he observed defendant, was significant for narcotics activities, and that defendant admitted to "doing a little something now and then." Because defendant did not object to any of this testimony at trial, his claim on appeal must be evaluated under the plain error standard of review. R. 2:10-2. We may reverse on the basis of unchallenged errors only if we find the error was "clearly capable of producing an unjust result." Ibid.
Our review of the record under this standard convinces us that the testimony elicited from Schuster was irrelevant and highly prejudicial and thus 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). Schuster's testimony that he conducted surveillance operations in the area "[m]any times over the years[,]" that he had made "[s]everal hundred" arrests in that location over the years, the fact that police "would get complaints about [this area] on a regular basis about alleged drug activity[,]" and that he knew defendant prior to December 17, 2004, unfairly prejudiced defendant by implication. See State v. Boston, 380 N.J. Super. 487, 492-93 (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 Schuster to testify in this manner, the jury was permitted to impermissibly infer that defendant was engaged in narcotics activities and present at that location to engage in narcotics activities. This testimony should not be repeated at any re-trial.
In view of our reversal, we also observe that the testimony related to defendant's admission that he did a "little something now and then" should not have been permitted without the court first conducting, outside of the presence of the jury, a N.J.R.E. Rule 104 hearing. N.J.R.E. 104(c); State v. Martinez, 387 N.J. Super. 129, 137 (App. Div.), certif. denied, 188 N.J. 579 (2006); see also State v. Hampton, 61 N.J. 250, 270 (1972).
Reversed and remanded for a new trial. We do not retain jurisdiction.