On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-08-1087.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Yannotti and LeWinn.
On August 12, 2003, a Burlington County grand jury issued an indictment charging defendant Pontell C. Bryant with the following: second-degree possession of cocaine with intent to distribute on or within certain public property, N.J.S.A. 2C:35-7.1 (count one); third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count two); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count three); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count four); fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2) (count five); third-degree resisting arrest by force, N.J.S.A. 2C:29-2(a)(3) (count six); fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1(a) (count seven); and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count eight). Following a four-day trial, a jury convicted defendant of counts one through five and eight, but acquitted him of counts six and seven. On May 5, 2006, defendant was sentenced to an aggregate term of seven years with a three-and-a-half-year period of parole ineligibility.
On appeal, defendant raises the following claims of trial error for our consideration:
By improperly incorporating possession of the drugs as an assumed "fact" in the hypothetical posed to its drug expert, the prosecution elicited an unnecessary expert opinion that invaded the jury's exclusive province and impermissibly bolstered the State's fact evidence on the ultimate issue of possession. U.S. Const. Amend. XIV; N.J. Const. (1947) Art. I. ¶¶ 1, 9, 10. (Not raised below).
A. Possession of the drugs was an ultimate issue of fact for the jury to determine --not a "fact" that the State's fact witness had established in his testimony.
B. By eliciting an expert opinion using a hypothetical question that assumed possession of the drugs, the prosecution was able to improperly bolster the testimony of its fact witness.
C. Since there was no need for expert testimony on the issue of whether defendant actually possessed the cocaine, the expert opinion elicited by the State infringed on the jury's exclusive authority to make fact findings.
D. The instruction the trial judge gave on expert testimony was inadequate to counter the risk that the jury would find possession based on the expert's testimony rather than the State's fact evidence.
The inclusion of inadmissible evidence at trial, and errors in the trial court's jury instructions also deprived Mr. Bryant of a fair trial. (Partially raised below).
A. The parties' stipulation that the police had authority to arrest Mr. Bryant was both unnecessary and inadmissible evidence because its inherently prejudicial impact on Mr. Bryant far outweighed any probative value it might have had in this case.
1. The parties' stipulation that Officer Fine had lawful authority to arrest Mr. Bryant was inadmissible "other crimes" evidence.
2. Even if the stipulation had been admissible, the trial court failed to give a required instruction limiting the jury's use of that piece of evidence.
B. The jury charge on flight was not justified, and even if it had been, the instruction that the trial court actually gave failed to include defendant's explanations as to why he departed.
1. A jury instruction on flight was not justified in this case.
2. The charge that the trial court gave omitted two essential components: defendant's explanation for why he ran, and an instruction that the jury draw no inference of guilt from flight if it found defendant's explanation credible.
C. The trial court's unnecessary instruction on constructive possession, which further obscured the gap in the State's evidence of possession, had the capacity to produce an unjust result in the trial on Counts 1 to 4. (Not raised below).
We have reviewed the record in light of the contentions raised and find no error warranting reversal. Therefore, we affirm.
On March 12, 2003, at approximately 12:25 a.m., Burlington City Police Officers John Fine and Robert Elbertson were on foot patrol in a section of Burlington City that is known to be "plagued with open-air narcotic trafficking." While on the 300 block of Jones Avenue, Fine saw an individual leaving a house on the corner of Jones Avenue and St. Mary's Street. Fine recognized this individual as defendant.*fn1 After defendant exited the home, Fine saw him walk towards the 200 block of Jones Avenue in the opposite direction from where the officers were positioned.
Fine testified that he went across the street and when he was approximately thirteen to twenty feet away from defendant, called out: "Hey, Pontell, come here." Fine stated that defendant turned around and said, "oh, oh, shit." Fine then ...