November 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANA T. MURDOCK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Number 05-01-0173.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2008
Before Judges Carchman and R. B. Coleman.
Following a jury trial, defendant Dana Murdock was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); first-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(6); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(3); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5; and second-degree possession of a CDS with intent to distribute while on or within 500 feet of a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1. At sentencing, Judge Kreizman found that the mitigating factors outweighed the aggravating factors and as to the first-degree offense, he reduced it to a second-degree offense, sentencing defendant to a prison term of five years with a twenty-month period of parole ineligibility*fn1. As to the remaining third-degree offenses, the judge sentenced defendant to concurrent three-year terms. As to the second-degree offense, defendant was sentenced to a five-year concurrent term. Defendant appeals. As to the second-degree possession of a CDS with intent to distribute while on or within 500 feet of a public housing facility, a public park, or a public building (Count Five), we reverse, vacate that portion of the judgment and remand for entry of an amended judgment; in all other respects, we affirm.
The facts are not seriously in dispute. In the early morning hours of August 12, 2004, and following a Dead Concert*fn2 that had been held earlier that evening, Hazlet Township Police Officer Adam Cullen, while patrolling on Route 35 South, observed a U-Haul truck with a broken tail light, traveling in the left lane at a speed of 32 mph in a 50 mph zone. Cullen stopped the vehicle within 500 feet of Veterans Park. After the officer approached the truck, co-defendant Travis Pastori, rolled his window down, and Cullen smelled an odor of burnt marijuana coming from the interior of the vehicle. Defendant, who was driving the truck, failed to produce a driver's license and told the officer that she was driving because her friend was "drunk and passed out in the back of the truck." Since the officer could see no other occupants in the cab of the truck, he asked defendant to open the back of the truck so he could check on the other passengers. Cullen discovered two other people, later identified as co-defendants Rachel DiSavoia and Michael Dean, sleeping on a mattress in the back of the truck. After DiSavoia and Dean exited the truck, Officer Kevin Geoghan arrived with his canine partner, a narcotics-trained dog named Memphis. Using his dog, Geoghan conducted a "sniff" in the rear of the vehicle.
The "sniff" yielded a silver pipe commonly used for smoking marijuana, and a sandwich baggie. Geoghan and the dog conducted a "sniff" of the front passenger compartment. By his trained response, Memphis detected the presence of narcotics, and Officer Geoghan proceeded to search the front cab in the areas the dog had alerted him to look for CDS. Geoghan found a wicker basket on the front seat containing $1,260 in cash.
Geoghan next found a brown bookbag containing a social security card belonging to co-defendant Pastori, two clear bags containing greenish brownish leafy vegetation, zigzag rolling papers and a blue glass pipe with residue on it. The ensuing search of the entire truck revealed, among other things and in various places throughout the truck, defendant's California driver's license, clear capsules containing a tan substance, a pink plastic bag containing a white powder substance, blue pills, fresh breath drop containers with liquid contents, an additional $523 in cash, a number of glass pipes, a plastic baggie containing a greenish brown leafy vegetation, two hypodermic syringes with needles, a box of plastic baggies, a scale with fifty-gram weights, more greenish-brown leafy vegetation, a large plastic bag containing twelve smaller bags of mushrooms, a second bag with five smaller bags of mushrooms, defendant's medical paperwork, a niacin container containing eighty empty capsules and a glass jar with unknown contents.
After testing at the New Jersey State Police Laboratory, the mushrooms tested positive for psilocybin*fn3, the liquid in the breath container tested positive for 2.07 grams of lysergic acid diethylamide (LSD), and the clear capsules with tan content tested positive for MDMA (Ecstasy). Defendant and her co-defendants were subsequently charged and tried. At trial, defendant readily admitted to possessing the LSD and psilocybin (mushrooms) for personal use but denied ownership of the ecstasy. Defendant was convicted on all charges while co-defendants DiSavoia, Dean and Pastori were acquitted.
On appeal, defendant raises the following arguments:
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 WHEN A STATE'S WITNESS RENDERED EXPERT OPINIONS WITHOUT AN ADEQUATE FOUNDATION IN THE RECORD (PARTIALLY 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 WHEN A DEFENSE WITNESS WAS NOT QUALIFIED AS AN EXPERT NOTWITHSTANDING AN ADEQUATE FOUNDATION IN THE RECORD (PARTIALLY 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 TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE (PARTIALLY 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 PROSECUTORIAL MISCONDUCT (NOT RAISED BELOW)
THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE (INTENT TO DISTRIBUTE CDS WITHIN 500 FEET OF A PUBLIC PARK CONTROLLED BY A LOCAL GOVERNMENT UNIT) BEYOND A REASONABLE DOUBT (NOT RAISED BELOW)
Defendant contends that the State's narcotics expert witness, James Powers, rendered an opinion without first laying an adequate foundation in the record regarding his qualifications. Specifically, defendant argues that Powers did not testify as to what he actually learned in the numerous narcotics seminars, training programs and classes he has attended. Powers opined that the amount of these substances found in defendant's possession was highly indicative of intent to distribute. Defendant argues that the jury relied on his testimony.
As a general rule, a trial judge's "evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997). We will not substitute our judgment for that of the trial judge "unless the trial [judge]'s ruling was so wide of the mark that a manifest denial of justice resulted." Ibid. (internal citations omitted).
Expert testimony is governed by N.J.R.E. 702 which provides:
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.
The Rule establishes three elements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. State v. Jenewicz, 193 N.J. 440, 454 (2008) (internal citations omitted).
Where expert testimony is concerned, New Jersey takes a liberal approach in favor of admissibility. Jenewicz, supra, 193 N.J. at 456. The policy behind the use of expert testimony is to assist the average juror in understanding a subject that is not one of common knowledge. State v. Kelly, 97 N.J. 178, 209 (1984) (citing Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App. Div. 1961)). However, before expert testimony may be presented, there must be a showing that the "expert witness" has sufficient expertise to render an opinion on the intended subject matter. Kelly, supra, 97 N.J. at 211 (citing to State v. Cavallo, 88 N.J. 508, 516 (1982)). We will generally abide by the tenet that the sufficiency of an expert's qualifications "is a matter best left to a trial [judge]'s discretion, and is to be reversed only for manifest error." State v. Krivacska, 341 N.J. Super. 1, 33 (App. Div. 2001) (citing State v. Moore, 122 N.J. 420, 459 (1991)).
Here, Judge Kreizman found Powers to be sufficiently qualified by way of scientific training to testify as an expert. In addition, Powers had been qualified as an expert in court on three prior occasions. Defendant was provided ample opportunity to cross-examine Mr. Powers regarding his training and what he "learned" from it. Indeed, Powers did testify to specific experiences he had with each of the substances at issue, including LSD. In sum, there is extensive evidence in the record to support the trial judge's determinations regarding this witness' expertise, and no manifest error can be found.
Defendant contends, for the first time, that she should have been qualified as an expert to testify concerning LSD and mushrooms based on her extensive personal recreational use of the drugs. Defendant advances a concept, not entirely novel, that her drug abuse is a form of expertise in and of itself. See, e.g., Jenewicz, supra, 193 N.J. 440 (holding witness qualified as expert due, in part, to personal knowledge of drug abuse effects and practices).
We reject this argument for two reasons specifically germane to this trial. First, defendant was never offered as an expert other than by an allusory reference during summation when counsel said, without objection, "I submit to you, ladies and gentlemen, the real LSD and the real mushrooms expert in this case was not Detective Powers but Dana Murdock." Equally, as important, defendant, during her direct testimony, testified, without limitation, as to use and packaging of drugs. While she was never offered as an "expert," her testimony challenged some of the underlying premises and conclusions reached by Powers and presented the issue squarely to the jury for its consideration. We find no merit to defendant's argument on this issue.
As to Points III and IV, the judge's charge and the prosecutor's comments, we otherwise find no merit to either assertion. R. 2:11-3(e)(2). In the first instance, the judge adhered to the model charge and nothing in this case required a deviation or expansion of the charge. As to the prosecutor's comments, we have carefully reviewed the record and find that they were appropriate argument and did not cross any line of impropriety.
Finally, defendant challenges her conviction for possession with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1(a). The statute provides that:
[a]ny person who violates subsection a. of N.J.S.A. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while in, on or within 500 feet of the real property comprising a public housing facility, a public park, or a public building is guilty of a crime of the second degree, except that it is a crime of the third degree if the violation involved less than one ounce of marijuana.
[N.J.S.A. 2C:35-7.1(a) (emphasis added).]
Defendant contends that Count Five should be vacated on the grounds that the State failed to prove each and every element of the offense. Specifically, the prosecution failed to establish whether the public park was "owned or controlled by a State, county or local government unit" as required under N.J.S.A. 2C:35-7.1(f). The State concedes that there was no evidence presented at trial to establish the ownership or control element of the offense. Additionally, we observe the circumstances of the stop. See State v. Lewis, 185 N.J. 363, 374 (2005) (stating "[t]here must be some connection between the drugs and the zone to permit a reasonable inference that defendant . . . possessed the drugs with intent to distribute them within the drug-free zone."). Certainly, there was no nexus other than the serendipitous stop of the truck within five-hundred feet of the park. The State also agrees with defendant that the conviction on Count five should be vacated. Accordingly, we vacate the conviction on this count and remand for the amendment of the judgment to reflect this determination.
Count Five of the judgment is vacated and the matter is remanded to the Law Division for an amended judgment of conviction. In all other respects, the judgment is affirmed.