January 5, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT GLOVER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-02-0651.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2008
Before Judges Parrillo, Lihotz and Messano.
Tried by a jury, defendant Robert Glover was found guilty of third-degree possession of a controlled dangerous substance (CDS), Xanax, N.J.S.A. 2C:35-10(a)(1) (Count 1); third-degree possession of Xanax with the intent to distribute, N.J.S.A. 2C:35-5(a)(1)(b)(3) (Count 2); and second-degree possession of Xanax with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (Count 4).*fn1 He was sentenced to a six-year term with a three-year parole bar on Count 4 and two concurrent three-year terms with an 18-month parole bar on Counts 1 and 2. Appropriate fees and penalties were also imposed. Defendant appeals. Save for a remand for resentencing to reflect the merger of Counts 1 and 2 with Count 4, we affirm the judgment of conviction in all other respects.
According to the State's proofs, on October 5, 2006, at around 9:15 p.m., Detective Richard Webber and other members of the Newark Police Narcotics Enforcement Team (NET) responded to the Carlton Hotel on information that an individual was selling Xanax pills on the sixth floor. The hotel, which is located within 500 feet of Military Park, a public park, is a low-rent residence consisting of 200 rooms that rent by the day or week. It is a location notorious for narcotic sales and about which there are chronic complaints of drug activity.
The officers arrived at the hotel in unmarked vehicles and plain clothes, and when they entered the lobby did not identify themselves as police officers. Officers Webber and Jarvier Rivera took the elevator up to the sixth floor while other NET members followed by walking up the adjacent stairwell. When Webber and Rivera exited the elevator on the sixth floor, they saw defendant standing in the hallway in front of room #622. When defendant saw the pair, who were no more than ten feet away at the time, he said, in a loud voice, "I got them sticks." The officers, who knew from their training that "sticks" referred to Xanax pills, then approached defendant, showed him their badges, and stated "Newark Police." Looking shocked and nervous, defendant put his right hand into his pocket. When asked to remove his hand, defendant complied, revealing an orange prescription bottle with no label and containing seventy white Xanax pills. When defendant admitted having no prescription for the pills, he was placed under arrest, and $58 was recovered from his person.
Expert testimony at trial established that Xanax tablets are called "sticks" because of their shape. In Detective Holloway's experience, the pills are not individually packaged for sale but are normally sold in hand-to-hand transactions from a pill bottle. In his opinion, they sell for $10 to $30 per pill.
On appeal, defendant raises the following issues:
I. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT PERMITTED POLICE OFFICER WEBBER TO TESTIFY IN VIOLATION OF NEW JERSEY'S HEARSAY RULES AND DEFENDANT'S CONSTITUTIONAL RIGHT UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO CONFRONT THE WITNESSES AGAINST HIM THAT AN INFORMANT HAD TOLD HIM A PERSON WAS SELLING XANAX IN THE HALLWAY OF THE CARLTON HOTEL ON THE EVENING OF OCTOBER 5, 2006 (NOT RAISED BELOW).
II. IT WAS PLAIN ERROR TO ALLOW DETECTIVE HOLLOWAY TO TESTIFY AS AN EXPERT IN THIS CASE GENERALLY BECAUSE HIS TESTIMONY WAS MORE PREJUDICIAL THAN PROBATIVE AND ALLOWING HIM TO TESTIFY THAT DEFENDANT WAS ADVERTISING TO PASSERBYS THAT HE WAS IN POSSESSION OF XANAX TABLETS TO DISTRIBUTE FOR MONETARY GAIN INVADED THE PROVINCE OF THE JURY AND PROVIDED AN ENHANCED PROOF OPPORTUNITY FOR THE STATE (NOT RAISED BELOW).
A. THE LEGAL STANDARDS APPLIED TO USE OF EXPERT TESTIMONY IN DRUG CASES.
B. THE TESTIMONY OF OFFICER HOLLOWAY SHOULD HAVE BEEN EXCLUDED BECAUSE IT BOLSTERED THE TESTIMONY OF THE ARRESTING OFFICERS, IT DID NOT AID THE JURY IN UNDERSTANDING A NUANCED DRUG DISTRIBUTION SCHEME, AND HOLLOWAY EXPRESSED AN OPINION ON THE ULTIMATE ISSUE IN THE CASE THAT SEEMED TO BE BASED ON KNOWLEDGE OF THE DEFENDANT BEYOND THE EVIDENCE AT TRIAL.
C. THIS TESTIMONY WAS HIGHLY PREJUDICIAL TO DEFENDANT'S CASE.
III. N.J.S.A. 2C:35-7.1 VIOLATES THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION BY IMPROPERLY SHIFTING THE BURDEN OF PROVING AN ELEMENT OF THE CRIME - I.E., THAT THE DEFENDANT DID NOT INTEND TO DISTRIBUTE A CDS FOR PROFIT - TO THE DEFENDANT AND REQUIRING HIM TO DISPROVE THIS ELEMENT BY A PREPONDERANCE OF THE EVIDENCE (NOT RAISED BELOW).
A. THE STATE IS REQUIRED TO PROVE EVERY ESSENTIAL ELEMENT OF AN OFFENSE BEYOND A REASONABLE DOUBT.
B. DEFENDANT'S CASE DIFFERS IN IMPORTANT RESPECTS FROM THE BODY OF AFFIRMATIVE DEFENSE CASES THAT INVOLVE 'MENTAL' ELEMENTS AND ELEMENTS THAT LIE UNIQUELY WITHIN THE ABILITY OF THE DEFENDANT TO PROVE.
IV. BECAUSE DEFENSE COUNSEL'S PERFORMANCE AT TRIAL WAS CONSTITUTIONALLY INADEQUATE, THIS COURT SHOULD FIND THAT DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND REVERSE HIS CONVICTIONS.
A. THE DEFENSE STRATEGY WAS INSUPPORTABLE.
B. THERE WAS NO STRATEGIC REASON FOR FAILING TO CHALLENGE WEBBER'S HEARSAY (POINT ONE, SUPRA), HOLLOWAY'S EXPERT TESTIMONY (POINT TWO, SUPRA,), OR THE CONSTITUTIONALITY OF THE AFFIRMATIVE DEFENSE TO N.J.S.A. 2C:35-7.1 (POINT THREE).
C. DEFENSE COUNSEL UNDERMINED HER CHOSEN STRATEGY AND STRENGTHENED THE STATE'S CASE WITH HER CROSS-EXAMINATION OF HOLLOWAY AND HER CLOSING ARGUMENT.
D. DEFENSE COUNSEL DESTROYED DEFENDANT'S CREDIBILITY WITH THE JURY.
E. DEFENSE COUNSEL VIOLATED DEFENDANT'S ATTORNEY-CLIENT PRIVILEGE AT SENTENCING.
F. COUNSEL'S UNPROFESSIONAL CONDUCT RENDERED THIS TRIAL FUNDAMENTALLY UNFAIR.
V. THE CUMULATIVE ERROR IN THIS CASE RESULTED IN AN UNJUST RESULT IN THIS CASE WHICH THIS COURT SHOULD NOT COUNTENANCE.
VI. THIS COURT SHOULD REMAND DEFENDANT'S CASE FOR RESENTENCING BECAUSE THE TRIAL COURT SHOULD HAVE MERGED THE SECTION 5 COUNT WITH THE SECTION 7.1 COUNT, SHOULD HAVE IMPOSED A FIVE YEAR SENTENCE FOR THIS SECOND DEGREE CRIME, AND SHOULD NOT HAVE IMPOSED SEPARATE LABORATORY FEES FOR THREE CONVICTIONS WHEN ONLY ONE LABORATORY ANALYSIS WAS CONDUCTED.
We address these issues in the order raised.
Defendant argues, for the first time on appeal, that Webber's testimony that the police responded to the Carlton Hotel because of information about drug activity there is hearsay and violated his constitutional right to confrontation. We disagree. Not only did defendant not object to this testimony, but counsel cross-examined the officer about the source of the information that led him to the location. In any event, for the following reasons, the admission of this testimony offended neither the hearsay rule nor the confrontation clause.
The hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to a scene of the crime by stating that he did so "upon information received." State v. Kemp, 195 N.J. 136, 154 (2008); State v. Branch, 182 N.J. 338, 350 (2005); State v. Irving, 114 N.J. 427, 446 (1989); State v. Bankston, 63 N.J. 263, 268 (1973). Rather, the violation occurs when the officer reveals specific information obtained from a non-testifying declarant to incriminate the defendant in the crime charged. State v. Luna, 193 N.J. 202, 217 (2007); Branch, supra, 182 N.J. at 350; Bankston, supra, 63 N.J. at 268-69. This is because a police officer cannot imply superior knowledge to his own by offering the words of an informant as to a defendant's guilt in his testimony. Kemp, supra, 195 N.J. at 155; Branch, supra, 182 N.J. at 351; Bankston, supra, 63 N.J. at 271.
In Bankston, where the Court determined the error was not harmless thus necessitating a reversal of the defendant's conviction, testimony about the information relayed to the police officer was specific in nature and particular to the defendant:
The prosecutor then asked, "Detective, you have already indicated that one of the persons fit the description that you were looking for, is that correct?" and the witness responded affirmatively. Thereafter Genzone again referred to defendant as "the person we were looking for, the description of the person that we were looking for." And when Detective Walsh subsequently testified he said that before entering the tavern he saw four black males inside, "one of them fitting the description that we had obtained."
[63 N.J. at 267.]
So, too, in Luna, the hearsay information described the perpetrators of the crime, the number of individuals involved and the fact they were armed with guns. 193 N.J. at 216-17. Not having to address whether such error was harmful because the conviction was reversed on other grounds, the Court nevertheless advised that on remand, "the testimony should be limited in a manner that allows the witnesses to provide context but not secondhand details about the crime or the defendants." Id. at 217. The Court stated that the witnesses could testify that they took certain actions based upon information received, but could not repeat the specific details of the crime which they heard from another non-testifying person or from a radio transmission. Ibid.
On the other hand, in State v. Long, 137 N.J. Super. 124 (App. Div. 1975), certif. denied, 70 N.J. 143 (1976), we held that police officer testimony that he went to a specific location because a confidential informant had told him that people at that address were selling cocaine was not plain error. Id. at 133. We found the focus of the information received was on location and not the identity of any particular individual involved in the reported transactions; dealt only in general terms with the address where unknown "people" were selling cocaine; and "did not directly[,] or by necessary inference[,] implicate [the] defendant." Id. at 134.
Here, as in Long, the information received simply mentioned the location of suspected drug activity. It did not specifically refer to, identify, or otherwise incriminate defendant as the perpetrator of any crime. Thus, Webber's testimony about the information of possible drug dealings at the Carlton Hotel neither suggested nor permitted jurors to infer that the police had information, outside the record, about the identity of any person involved in the reported transactions. As such, because the evidence "did not directly[,] or by necessary inference implicate[,] the defendant," Long, supra, 137 N.J. Super. at 134, its admission violated neither the hearsay rule nor the Constitution's confrontation clause.
Even if its admission were error, we are satisfied it was harmless in view of the strength of the State's proofs. When the police arrived at the sixth floor of the Carlton Hotel, they observed and heard defendant offering Xanax pills for sale. Defendant was found in possession of seventy Xanax pills in an unmarked prescription bottle. Clearly, given the weight of this evidence, Webber's testimony about the information which led him to this location did not have a clear capacity to bring about an unjust result.
Defendant next argues, again for the first time, that the court erred in admitting Detective Holloway's expert opinion. Specifically, he contends the testimony provided no aid to the jury, besides impermissibly bolstering the fact-based testimony of other police officers, and was highly prejudicial. Defendant also argues that the hypothetical question posed by the State failed to address the facts of the case. We disagree with these contentions.
The admissibility of expert testimony turns on "whether the witnesses offered as experts have peculiar knowledge or experience not common to the world which renders their opinions founded on such knowledge or experience any aid to the court or jury in determining the questions at issue." State v. Odom, 116 N.J. 65, 70 (1989) (quoting State v. Zola, 112 N.J. 384, 414 (1988) (quoting Rempfer v. Deerfield Packing Corp., 4 N.J. 135, 141-42 (1950)). Thus, "[i]f 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." N.J.R.E. 702. In other words, if testimony from an expert would be beneficial since the subject matter is one which the average juror might not be sufficiently familiar with, then the expert opinion is admissible. State v. Berry, 140 N.J. 280, 293 (1995). Of course, "[t]he proposed expert witness must be adequately qualified and possess sufficient knowledge and experience to express an opinion and explain its basis to the jury." Ibid.
The nature and purpose of the possession of illegal drugs is a subject within the specialized knowledge of experts and not something generally known by persons of ordinary understanding. State v. Summers, 176 N.J. 306, 312 (2003); Odom, supra, 116 N.J. at 71. In prosecutions for possession of controlled dangerous substances with the intent to distribute, a defendant's intent or purpose in connection with his or her possession of unlawful drugs is an appropriate subject of expert testimony. Summers, supra, 176 N.J. at 312; Odom, supra, 116 N.J. at 76; State v. Boston, 380 N.J. Super. 487, 494 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006); State v. Singleton, 326 N.J. Super. 351, 354 (App. Div. 1999); State v. Baskerville, 324 N.J. Super. 245, 263 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). "[A]n expert in the use and distribution of unlawful drugs can assist the jury by offering his opinion based on special knowledge and experience about the characteristics that serve to identify drugs that are being held for sale or distribution." Odom, supra, 116 N.J. at 80-81.
While "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact[,]" N.J.R.E. 704, it is, nevertheless, impermissibly prejudicial for the expert to render an opinion on the ultimate guilt of the defendant, Odom, supra, 116 N.J. at 76; Boston, supra, 380 N.J. Super. at 494-95, or that a drug transaction had actually occurred. Singleton, supra, 326 N.J. Super. at 354. It is also error to admit expert testimony when not needed "to explain the straightforward manner in which the transaction at issue took place[,]" State v. Nesbitt, 185 N.J. 504, 516 (2006), or when offered simply to bolster the credibility of a fact witness' version of events. Berry, supra, 140 N.J. at 297.*fn2
"Further, when the expert's testimony will include an opinion on an ultimate issue, see N.J.R.E. 704, a trial court must be satisfied that use of a hypothetical question is reasonably required and not unduly prejudicial." Nesbitt, supra, 185 N.J. at 514-15. On this score, the expert opinion should be elicited through a hypothetical question that is carefully phrased to refer only to the testimony introduced at trial and defendant's name must not be used. Id. at 512-14; Summers, supra, 176 N.J. at 314; Odom, supra, 116 N.J. at 81-82. The expert must provide a basis for the opinion based upon the facts in evidence that have been included in the hypothetical question. Summers, supra, 176 N.J. at 314; Odom, supra, 116 N.J. at 82. Moreover, the trial judge must instruct the jury that it is not bound by the expert's opinion but, rather, it is free to either accept or reject the opinion. Summers, supra, 176 N.J. at 315; Berry, supra, 140 N.J. at 304; Odom, supra, 116 N.J. at 82.
Governed by these principles, Detective Holloway's expert testimony was properly admitted. In the first place, it is undisputed that the witness was qualified in the field of narcotics and provided information to the jury about Xanax tablets, their identification, use, methods of distribution, packaging and value not otherwise within the jurors' common knowledge or experience. When asked the following question:
If a subject were standing in a hallway of the Carlton Hotel located at 24 East Park Street and was stating in a loud, clear voice: Got them sticks, in your expert opinion, what would you believe the individual is doing in that hallway?
Holloway replied that, "he's advertising to passer-bys -- people walking by -- well he's informing individuals that he is in possession of Xanax tablets to distribute for monetary gain." The question was limited to facts in evidence, did not mention defendant, and contained all the information essential for the expert to render an opinion. In his response, the expert expressed no opinion as to defendant's guilt or that an illegal transaction had occurred. Rather, the focus of Holloway's testimony was on whether defendant's actions in the hallway were indicative of an intent to distribute CDS. Moreover, the expert witness was not one of the investigating officers in this case, thus reducing any potential prejudice. See State v. Torres, 183 N.J. 554, 580 (2005); Berry, supra, 140 N.J. at 301. And, finally, the trial judge properly instructed the jury on the purpose and appropriate use of the expert's testimony. Under the circumstances, both the hypothetical question posed and the expert's response fell well within the proper guidelines.
Once again, for the first time, defendant challenges the constitutionality of the affirmative defense to the crime of distributing, dispensing or possessing CDS with the intent to distribute within 500 feet of public housing facilities, parks or buildings. N.J.S.A. 2C:35-7.1(d). The statute provides that it is an affirmative defense if the distribution, dispensing or possession of the CDS with intent to distribute was not for profit and did not involve any juveniles. N.J.S.A. 2C:35-7.1(d). Defendant alleges that this affirmative defense impermissibly shifts the burden of proof with respect to proving an element of the offense from the State to him and is thus unconstitutional. Separate and apart from the question whether defendant has standing to challenge the constitutionality of the statutory affirmative defense he did not raise below or is not even applicable under the facts of this case, State v. Morales, 224 N.J. Super. 72, 75, n.1, 78 (Law Div. 1987), we disagree with defendant's fundamental premise.
The Due Process Clause of the Constitution requires the State to prove, beyond a reasonable doubt, each element of a crime charged to a defendant. In re Winship, 397 U.S. 358, 364 (1970); State v. Delibero, 149 N.J. 90, 99 (1997); N.J.S.A. 2C:1-13(a). The State, however, does not have the burden of disproving any and all affirmative defenses. Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed. 2d 281, 292 (1977). Even if a defense may excuse conduct, it is not the burden of the State to disprove that defense beyond a reasonable doubt as it is with the elements of the crime. Dixon v. United States, 548 U.S. 1, 126 S.Ct. 2437, 165 L.Ed. 2d 299 (2006).
There are, of course, limits to the State's authority to create affirmative defenses "by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes[,]" and, thus, shifting the burden of proof to the defendant. Patterson, supra, 432 U.S. at 210, 97 S.Ct. at 2327, 54 L.Ed. 2d at 292. Constitutional concerns are implicated when the element of a crime charged is the same as, or practically similar to, the affirmative defense to that crime.
"[I]n the situation where the element of the offense and the so-called 'affirmative defense' pose the same ultimate issue and a state places the burden of persuasion on the defendant with respect to that ultimate issue[,] . . . the sole significance of the defendants' [sic] evidence concerning the so-called 'affirmative defense' is to create a reasonable doubt about the existence of an element of the offense. . . ."
In this kind of situation, the constitutional problem is not eliminated by including an instruction in the charge that the State has the ultimate burden of proving every element of the offense beyond a reasonable doubt. When such a standard instruction is coupled with one placing a burden on the defendant to prove his defense by a preponderance of the evidence, the predictable result is more than merely confusion. In order to attribute some significance to the defendants' [sic] burden, a rational juror's only option is to conclude that the defendants' [sic] evidence concerning the subject matter of the "affirmative defense" is to be considered only if the jury finds it persuasive, i.e., finds that the facts sought to be proved are more likely true than not true. It is clear from Martin [v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed. 2d 267 (1987),] that this is constitutionally impermissible. [State v. Emmons, 397 N.J. Super. 112, 121 (App. Div. 2007) (quoting Humanik v. Beyer, 871 F.2d 432, 440-41 (3rd Cir.), cert. denied, 493 U.S. 812 (1989)), certif. denied, 195 N.J. 421 (2008).]
The elements of the present offense, which the State must prove beyond a reasonable doubt, are that: 1) defendant possessed, or had under his control, CDS, 2) defendant had the purpose to distribute the CDS, and 3) that when defendant possessed the CDS with the purpose to distribute it, he was within 500 feet of a public park. N.J.S.A. 2C:35-7.1(a); Model Jury Charges, Criminal, N.J.S.A. 2C:35-7.1. On the other hand, the affirmative defense in N.J.S.A. 2C:35-7.1(d) -- the operative facts of which are that the offense was not committed for profit but simply for recreational use and did not involve juveniles -- provides an exception for liability for the public parks drug crime. Significantly, the elements of the offense are distinct from the elements of the affirmative defense. The latter's operative facts clearly are not elements that the State must prove to obtain a conviction under N.J.S.A. 2C:35-7.1, and, therefore, do not relieve the State of its burden of proving all the elements of the crime beyond a reasonable doubt. In other words, in establishing the affirmative defense, defendant is not required to negate any facts of the crime which the State must otherwise prove. Since the affirmative defense does not shift to the defendant the burden of disproving any element of the State's case, it is constitutional and does not violate the Due Process Clause. Dixon, supra, 548 U.S. at 6-7, 100 S.Ct. at 2241-42, 165 L.Ed. 2d at 308; Patterson, supra, 432 U.S. at 207, 97 S.Ct. at 2325, 53 L.Ed. 2d at 290.
Defendant argues that his trial attorney provided ineffective assistance due to her failure to raise certain claims, her strategic decisions, and her violation of the attorney-client privilege. Such claims, particularly those concerning trial strategy and involving further fact-finding outside the record, are reserved for post-conviction relief, as they are ill-suited for plenary review on direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992); State v. Dixon, 125 N.J. 223, 262 (1991). We, therefore, decline the invitation to resolve them here. We simply mention on this point that several of the complaints raised in defendant's ineffective assistance of counsel claim -- including the failure to object to Holloway's testimony, failure to object to Webber's hearsay statements and failure to raise a challenge to the constitutionality of N.J.S.A. 2C:35-7.1 -- have already been determined by us to be without merit so that counsel's alleged shortcomings in this regard satisfy neither the performance nor prejudice prong of the Strickland/Fritz test.*fn3
Defendant argues, in the alternative, that even if the claims he raises do not, individually, rise to the level of reversible error, the cumulative effect of each alleged error rendered the trial fundamentally unfair. We disagree. For reasons already stated, there was no error, much less plain error, committed below. We are satisfied defendant received a fundamentally fair trial. State v. Jenewicz, 193 N.J. 440, 473 (2008).
We agree, as does the State, with defendant's contention that, for sentencing purposes, the two third-degree drug crimes of drug possession and possession of CDS with the intent to distribute should merge with his second-degree conviction for possession of CDS with intent to distribute within 500 feet of a public park. State v. Gregory, 336 N.J. Super. 601, 608 (App. Div. 2001); State v. Parker, 335 N.J. Super. 415, 420-26 (App. Div. 2000); State v. Wright, 312 N.J. Super. 442, 455 (App. Div.), certif. denied, 156 N.J. 425 (1998). We disagree, however, with defendant's further contention that his six-year term with a three-year parole bar was excessive. On the contrary, the sentence imposed reflects a proper balancing of the aggravating factors on the one hand, N.J.S.A. 2C:44-1(a)(3), (6) and (9), and on the other hand, defendant's mental health which the court considered as a mitigating circumstance.
The matter is remanded for sentencing to reflect the merger of defendant's drug convictions on Counts 1 and 2 with his conviction on Count 4 and that only one lab fee assessment be imposed. In all other respects, the judgment of conviction is affirmed.