August 13, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PONTELL C. BRYANT, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 13, 2008
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 yelled, "You're under arrest," and defendant ran away from him.
As Fine and Elbertson ran after defendant, Fine radioed a message that he was on "foot pursuit." The two officers chased defendant through a lighted area and Fine testified he could see defendant throughout the chase. Fine observed that defendant had his hands closed or cupped as he ran; he did not see defendant throw or drop anything onto the ground during the chase.
As defendant attempted to leap over a fence to escape the pursuing officers, his foot got caught in the fence and he fell face down onto the ground on the other side. Fine testified that defendant kept his left hand at his mid-chest area as he leaped; his right hand was closed and up in the air.
Fine jumped over the fence and landed on defendant as he was getting up; this knocked defendant back onto the ground. Defendant tried to get up on his knees, but Fine and a newly-arrived officer, Patrolman Beard, kept pushing him face-down onto the ground. Defendant kept his hands under his chest, and the police told him to put his hands behind his back. After a struggle with defendant, the police managed to get both his hands behind him and handcuffed him. The police then had defendant roll over on his side and stand up.
Fine looked at the dirt on the ground where defendant had fallen. On that spot, Fine found "a clear plastic sandwich baggie that had a purple piece of wax paper containing a[n] off-white rock-like substance" that Fine believed to be crack-cocaine.
Defendant was arrested and taken to police headquarters where he was searched. He had $100.05 on his person, comprised of three twenty dollar bills, one ten dollar bill, three five dollar bills, twelve one dollar bills and $3.05 in coins. Defendant was not in possession of any drug paraphernalia.
Lieutenant Jeffrey Craig of the Burlington County Prosecutor's Office testified as an expert in the field of "narcotics identification, packaging and . . . distribution." The prosecutor asked Craig the following hypothetical question:
. . . [P]olice locate an individual and that subject is in possession of 1.21 grams of crack-cocaine and the crack-cocaine is packaged and it's packaged in nine separate pieces of . . . waxed paper, all contained in a plastic sandwich bag. . . . .
Lieutenant, I'm handing you what has been marked as S-2, provide that to you to examine it. And, for the purpose of this hypothetical let's assume that that's the crack-cocaine that we're talking about, okay? . . . .
All right. Now here's some additional facts for you to take into consideration as far as there's no . . . pipes found on the person. There's no screens. There's no wire mesh. There's no glass tubes. There's no heat source of any type, no matches, no lighter, anything along those lines. The person in addition has $100 in cash on [him], various denominations including $20 bills, tens, fives, ones and change. Additionally, the subject does not appear to be under the influence of any controlled dangerous substances. Now I would . . . ask you this, Lieutenant, based on your training and experience and applying that to the hypothetical that I've just posed to you, do you have an opinion as to whether that person who possessed that 1.21 grams of crack-cocaine would have that for personal use or whether they would have that for possession, they would be possessing that to sell or distribute to others? [Emphasis added.]
In response, Craig stated that his opinion "would be that those drugs were possessed with intent to distribute." Craig pointed out that the packaging of the drugs was consistent with packaging practices for street sales; the amount of money found was typical of the amount a dealer would have on him as proceeds from prior sales; the fact that the suspect had no drug paraphernalia in his possession militated against concluding that the drugs were for his personal use; and the number of individual drug packages found together in a sandwich baggie was greater than the amount a typical buyer on the street would purchase at one time.
Defendant testified that on the date in question, he had just left a friend's house on the corner of Jones Avenue and St. Mary's Street in the City of Burlington, and had started walking on Jones Avenue to go to his grandmother's home on nearby York Street. Defendant stated that he saw two or three people standing near the middle of the 200 block of Jones Avenue. As he walked past these individuals, defendant heard someone behind him yell something; he then saw those individuals start to run away. Defendant stated that, upon seeing these individuals scatter, he, too, ran because he was afraid that a robbery or some other crime might be in progress. Defendant lived in that neighborhood and testified that he was aware that it was a high crime district, including drug use and distribution. Defendant testified that he was carrying $103 from a Social Security disability check that he had cashed earlier.
Defendant concurred with Fine's testimony as to the chase, the route followed, that he fell face down on the ground when he jumped over a fence and that Fine jumped on top of him. Defendant denied that he had any cocaine in his possession at that time. He testified that the baggie found by Fine was not "directly underneath [his] body[,]" but was approximately fifteen or twenty feet away.
We first address defendant's challenge to the hypothetical question posed by the prosecutor to Detective Craig. Defendant raised no objection to this hypothetical question at trial. Therefore, it is presented as plain error. As such, we must determine whether the judge erred by allowing the question and, if so, whether the error "is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. "[E]xcept in extraordinary circumstances, a claim of error will not be entertained unless it is perfectly clear that there actually was error." State v. Macon, 57 N.J. 325, 333 (1971).
In State v. Odom, 116 N.J. 65 (1989), the Supreme Court held that a properly qualified police officer may render expert testimony on the issue of whether a defendant possessed drugs with the intent to distribute them. Id. at 80-81. The hypothetical question presented to the police expert in that case asked the expert: to assume the following facts as adduced at trial to be true: that a search warrant was executed, that eighteen vials of crack were found in a pillow case in a bed in which defendant was found sleeping, that $24.00 was found in the apartment and that no other drug paraphernalia was found. He was asked based on his experiences and such facts if he had an opinion "whether [defendant] possessed 18 vials of crack for his own use or possessed them with the intent to distribute them." [Id. at 69.]
In response, the officer "stated that it was his opinion that the drugs were possessed with an intent to distribute them." Ibid.
The Supreme Court acknowledged that it has "repeatedly and consistently recognized that a jury's determination of criminal guilt or innocence is its exclusive responsibility. . . . Hence, an expert's testimony that expresses a direct opinion that defendant is guilty of the crime charged is wholly improper."
Id. at 77. However, the Court found in that case that the officer "did not express an opinion that defendant was guilty of the crime charged." Ibid.
The Odom Court rejected defendant's contention that "the opinion went too far because it expressed the view that defendant possessed the drugs with the intent to distribute." Ibid. The Court was satisfied . . . that the detective's opinion was based exclusively on the surrounding facts relating to the quantity and packaging of the drugs and their addictive quality, as well as the absence of drug-use paraphernalia; his explanation of these facts was clearly founded on his experience and specialized knowledge as an expert. The conclusion he drew -- that possession of these drugs was for the purpose of distribution -- was similarly derived from his expertise. We therefore conclude that as long as the expert does not express his opinion of 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.
Moreover, such an opinion is permissible although it is expressed in terms that parallel the language of the statutory offense when that language also constitutes the ordinary parlance or expression of persons in everyday life. . . .
In addition, it appears that the dominant authority throughout the country has ruled that an expert witness may testify that a defendant possessed a controlled dangerous substance with the intent to distribute it, even if the opinion is expressed in the language of the statutory offense. [Id. at 78-79 (citations omitted).]
In State v. Perez, 218 N.J. Super. 478 (App. Div. 1987), a defendant was tried for possession of cocaine with intent to distribute. At trial, the police expert was asked, without objection, the following hypothetical question:
Assume that the date is March 7th, 1985. The time is approximately 1:07 a.m. A white van is on the New Jersey Turnpike traveling southbound. This van is stopped for speeding. When a trooper approaches the vehicle, the passenger opens the door. The driver is asked for his credentials. As the trooper is having some problems conversing with the driver, he sees the passenger take his hands from his lap, put them in his pockets and toss an item to the back of the van. The item is eventually retrieved and it is found to contain 124.6 grams of cocaine of which 56 per cent is pure, or of the total volume, 70 per cent is pure freebase.
Sir, based on those facts, would you have an opinion as to whether or not the item was possessed for personal use or for possession with intent to distribute? [Id. at 482 (emphasis added).]
We concluded that the hypothetical and the expert opinion elicited therefrom were properly admitted to aid the jury in determining the questions at issue. Id. at 485. Although the arresting officer only saw the passenger throw an item into the back seat and did not see what that item was while in the passenger's actual possession, we nonetheless concluded that no error arose from the manner in which the word "possessed" was used in that hypothetical. Ibid.
Fine testified that drugs were found on the ground directly under the spot where defendant's upper body had lain after his fall. This evidence provided a sufficient basis for the phrasing of the State's hypothetical question to Craig.
Under the circumstances, we reject as without merit defendant's contention that the trial judge's jury charge on expert testimony "should have pointed out that the State's hypothetical, and hence the expert's opinion assumed actual possession[.]" As in Odom, supra, we conclude that Craig did not "express his opinion of defendant's guilt but simply characterize[d] defendant's conduct based on the facts in evidence in light of his specialized knowledge[.]" 116 N.J. at 79. Therefore, his opinion "is not objectionable even though it embraces ultimate issues that the jury must decide." Ibid. We find no plain error here.
We next address defendant's argument that trial judge erred by permitting the parties to stipulate that Fine had legal authority to arrest defendant. Prior to trial, counsel and the court conferred regarding the issue of Fine's knowledge that defendant had an outstanding arrest warrant on the date in question. Counsel concurred with the judge's suggestion to inform the jury that "Fine had the legal authority to place [defendant] under arrest." All agreed that this language avoided use of the term "warrant" and made no reference to a specific prior criminal act.
Defendant contends that this stipulation was inherently prejudicial and permitted the jury to hear inadmissible evidence of his "other crimes." Additionally, defendant argues that the trial judge erred by failing to give the jury a carefully tailored instruction as to the permissible use of the stipulation.
We conclude this argument is without merit. Officer Fine testified that he recognized defendant, jogged towards him, called him by name, said, "You're under arrest," and defendant started running away from him. At this point in Fine's testimony, the judge read to the jury the following stipulation: "Both parties agree that Officer Fine had the authority to lawfully arrest Mr. Bryant on May 12, 2003." The trial judge reiterated this statement during his jury charge.
Defendant raised no objection to this stipulation during trial. Therefore, once again, we review this claim under the "plain error" standard of Rule 2:10-2. Macon, supra, 57 N.J. at 333.
We agree with the State that the sole purpose of the stipulation was to make it clear to the jury that Fine was acting lawfully when he pursued defendant. Because Fine did not describe any illegal activity on defendant's part prior to giving chase, the jury might well have questioned what authority the officer had to pursue and detain defendant.
N.J.R.E. 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
The stipulation did not constitute evidence offered to prove that defendant had a "disposition" to commit crimes. Rather, the stipulation was necessary to address material facts relevant to charges in the indictment. Count five charged defendant with violating N.J.S.A. 2C:29-2(a)(2), which defines the fourth-degree offense of resisting arrest or eluding an officer where one "by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." The stipulation challenged here was clearly intended to address that charge.
The judge instructed the jury as follows:
Now, earlier on, I gave you an instruction about the authority to arrest and I'm going to reiterate that instruction at this point.
This jury need not be concerned with the underlying authority for the arrest of [defendant] on May 12, 2003.
As noted, defendant neither objected to nor requested supplementation of this instruction.
Therefore, we conclude the stipulation does not rise to the level of plain error as it could not "have been clearly capable of producing an unjust result[.]" R. 2:10-2.
We turn to defendant's claim of error in the jury instruction on flight. Defendant first argues that such an instruction was not justified. Alternatively, he contends that even if justified, the charge was inadequate because it did not present the jury with defendant's explanation for running from the police.
The judge held a charge conference, at which defense counsel objected to the flight charge on the grounds that it would be "duplicative and . . . confusing." Because defendant was charged with resisting arrest as well as with substantive drug offenses, counsel argued that giving the jury a flight charge would be "doubl[ing] up on the jury instructions." The judge then proposed "to give the flight charge but to limit it to the alleged controlled dangerous substance offenses."
The judge instructed the jury on flight as follows:
Now, let me instruct you as to the law of flight with his connection of consciousness of guilt.
There has been some testimony in the case from which you may infer that the defendant fled shortly after the commission of controlled dangerous substance offenses. The defendant denies any flight.
The question of whether the defendant fled after the commission of the crime is another question for your determination. Mere departure from a place where a crime has been committed does not constitute flight. If you find that the defendant fearing that an accusation or an arrest would be made against him on the controlled dangerous substance charges involved in the indictment, took refuge in flight for the purpose of evading the accusation or arrest on those charges, then you may consider such flight in connection with all other evidence in the case as an indication of proof of consciousness of guilt.
Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving was to evade accusation or arrest for the offenses charged in the indictment.
If after consideration of all the evidence you find that the defendant fearing an accusation or arrest would be made against him on the controlled dangerous substance charges involved in the indictment, took refuge in flight for the purpose of evading the accusation or arrest, then you may consider such flight in connection with all of the other evidence in the case as an indication or proof of consciousness of guilt.
It is for you as judges of the facts to decide whether or not evidence of flight shows a consciousness of guilt and the weight to be given such evidence in light of all other evidence in the case.
We conclude this instruction was justified and proper. The jury heard Fine's testimony that defendant fled when Fine called out to him. The jury also heard defendant's testimony explaining why he fled. The charge instructed the jury to consider "all of the evidence . . . in the case."
The trial judge's flight instruction properly focused the jury on the question of flight in connection with the drug offenses. As such, that instruction was in accord with defendant's contention that a flight instruction "is only appropriate when the evidence establishes that a defendant's motive for leaving the scene was to avoid apprehension for offenses charged in the indictment." See State v. Wilson, 57 N.J. 39, 49 (1970). Here, as in that case, "the jury was required to find not only 'departure' but the motive which would turn the departure into flight." Ibid. Defendant's contention that the "logical connection between flight and consciousness of guilt has been seriously questioned[,]" is meritless in light of the trial judge's instruction that the jury not consider defendant's flight as evidence of consciousness of guilt unless it determined that "defendant's purpose in leaving was to evade accusation or arrest for the offenses charged in the indictment."
Nor do we find error in the judge's failure to remind the jury of defendant's explanation for his departure from the scene. The court did not specifically instruct the jury that "if it finds the defendant's explanation [of flight] credible, it should not draw any inference of the defendant's consciousness of guilt from the defendant's departure." State v. Mann, 132 N.J. 410, 421 (1993). However, the charge as given instructed the jury on three occasions to consider "all other evidence in the case" in weighing this issue. We do not find this charge to constitute reversible error.
Finally, we reject as without merit defendant's argument that the trial judge's "unnecessary" charge on constructive possession was error. Once again, this point is raised as plain error. R. 2:10-2. Defendant claims the judge should have instructed the jury only as to actual possession.
The judge instructed the jury:
A person may possess cocaine even though it was not physically on its [sic] person at that time of arrest if, in fact, . . . at some time prior to his arrest he had control or dominion over it. Possession must be conscious, knowing possession, either actual or constructive. . . . .
"Constructive possession" means possession in which the possessor does not physically have the item on his person, but is aware that the item is present and is able to exercise intentional control or dominion over it.
So, someone who has knowledge of a character of an item and knowingly has the power and the intention at any given time to exercise control over it either directly or through another person or persons, is then . . . in constructive possession of that item.
Here, the State presented evidence that at the time defendant was apprehended, he was found lying on top of a plastic bag containing cocaine. Therefore, the jury instruction fit the evidence of record. Because defendant was not physically holding the cocaine at that point, either in his hand or on his person, the jury could properly have found that defendant was in constructive possession of the drugs. No further discussion of this issue is warranted. R. 2:11-3(e)(2).