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State v. Nelson


February 17, 2009


On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-06-0538.

Per curiam.


Submitted September 22, 2008

Before Judges Lisa, Reisner and Sapp-Peterson.

Defendant Malik Nelson appeals from his 2006 conviction and sentence for third-degree unlawful possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), and second-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2). The court merged Count One into Count Two, and sentenced defendant to a fifteen-year extended term with a seven-year parole disqualifier. We affirm.

The conviction arose out of a surveillance operation conducted on April 30, 2005 around 5:00 p.m. by Officer Thomas Gramp, an eight-year veteran of the Bridgeton Police Department assigned to the Amity Heights Housing Complex (Amity) as a uniformed police officer. At that time, he was showing Amity's camera system to the partner with whom he was working that day because the partner was unfamiliar with the system. On the monitor, he observed defendant exit a vehicle and approach an individual later identified as his cousin. The two men engaged in conversation. Gramp knew defendant as a person with a prior history of engaging in illegal narcotics activities. Gramp also knew that defendant did not reside in the complex. Defendant then approached another person. Gramp did not recognize that person from his surveillance point, but after approaching the men minutes later, he recognized the individual as Joshua Scurry. Scurry was holding a black bag that defendant took from him and opened. Defendant reached into his right pants pocket and removed something and then placed his right hand in the black bag. He removed his hand from the bag and "knotted off or closed up" the bag. Gramp next observed defendant put something else in his back pants pocket. Throughout this entire sequence of events, Gramp testified that defendant never spoke to Scurry. Defendant looked from "side to side, all over the entire parking lot area. And then he handed the bag back to Mr. Scurry."

Based upon his training and experience, Gramp believed that he may have witnessed a drug transaction. He explained that he "could think of no reason why Mr. Nelson would put something into the bag and give the bag back that he just got." He radioed Officer Holliday and asked him to "respond quickly" and hold the subject "with the black bag wearing a black jacket." When Officer Holliday arrived at the scene, he was joined by Gramp and another officer, Patrolman McMullen. Gramp asked defendant if he had put something in the black bag, and defendant denied doing so. Gramp pointed to the security cameras and asked defendant again whether he had placed something in the black bag. Defendant once again denied doing so. Gramp then told defendant to "sit tight for a minute." He then proceeded to ask Scurry, who was being detained by Officer Holliday, what defendant placed in the bag, and Scurry also denied that defendant had placed anything in the bag. At that point, Officer Gramp took the bag from Holliday, untied it, and looked inside, where he saw a clear plastic bag containing suspected cocaine and T-shirts. He then placed defendant and Scurry under arrest.

Prior to trial, defendant and Scurry moved to suppress the evidence seized. The court denied the motion, finding that both the arrest and the seizure of the evidence were lawful.

On March 20, 2006, the State provided timely notice to defendants of its intent to introduce, at the time of trial, the laboratory report confirming that the suspected narcotics seized from the black bag were cocaine. Neither defendant filed an objection to the admissibility of the report within the requisite ten days set forth under N.J.S.A. 2C:35-19(c). However, co-defendant Scurry's attorney objected to the admissibility of the report in a trial memorandum filed on May 22, 2006, the eve of the first scheduled trial date. Scurry objected to the admissibility of the lab report without the testimony of the chemist. No hearing was conducted at that time. When trial commenced on September 26, 2006, defendant's attorney merely "join[ed] in with" Scurry's "application." The objection was based solely upon constitutional grounds pursuant to Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365-66, 158 L.Ed. 2d 177, 194 (2004). Scurry's counsel argued that Scurry had the right to raise, at any time, his sixth amendment right to confront the witness that "produced [the lab] certification." He urged proof that the item seized was cocaine is an essential element the jury must determine from the State's proof "from either the testimony of the . . . chemist, or the laboratory certificate." Defendant joined in Scurry's motion at that time. The court ruled that defendants waived their constitutional right to challenge the admissibility of the lab report because no objection to the admissibility of the report was filed in accordance with the provisions of N.J.S.A. 2C:35-19(c).

Defendants also objected to the testimony of the State's proffered expert, who proposed to testify on the characteristics of possession of drugs with the intent to distribute. The court permitted the testimony over the objection. During the expert's testimony, Scurry's attorney raised a further objection, arguing that the testimony had gone beyond that which was permissible opinion testimony. Defendant's attorney joined in the motion, arguing that

[a]ll of the testimony regarding what's typical and what's usual, you know, may be somewhat informative to the jury, and information that is beyond their common everyday knowledge. But as [Scurry's] counsel pointed out, the question at this point, but for the fact that it's prefaced with this hypothetical, is a question that is asking precisely what happened in this case with, you know, the facts. And then asking this witness to give an opinion as to what happened. Whether there was a possession with intent to distribute. So it's going to the ultimate issue. And I think the jury and only the jury can decide. [(Emphasis added).]

The court agreed and sustained the objection to the question.

The jury convicted defendant of both charges. Defendant moved for a judgment of acquittal. Defendant argued that the State failed to prove beyond a reasonable doubt that defendant possessed cocaine with the intent to distribute, noting that no drugs were found in his possession. The court denied the motion, finding that there was ample evidence before the jury from which it could find that defendant possessed the cocaine and possessed it with the intent to distribute.

At sentencing, the court found that there was a risk that defendant would engage in further criminal activity, N.J.S.A. 2C:44-1(a)(3); the extent and seriousness of his prior criminal record, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court "plac[ed] very little credibility on the defendant's most recent claims that he . . . has substantial substance abuse issues." The present appeal followed.

On appeal, defendant raises the following points for our consideration:
















In Point I, defendant challenges the court's ruling denying his motion to suppress the evidence seized. Defendant contends that police lacked reasonable suspicion of criminal activity to justify an investigatory stop and also lacked probable cause to arrest him. He specifically points to the absence of testimony that officers observed an exchange of currency and the officers' inability to identify any object that appeared to be narcotics.

To justify an intrusion, the police "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968). New Jersey adopted the Terry standard in State v. Branch, 301 N.J. Super. 307, 318 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 318 (1998), finding that an investigatory detention is constitutional "so long as the stop is supported by a reasonable suspicion that criminal activity is afoot." In fact, police officers have an obligation to investigate and respond to suspicious situations. State v. Tucker, 136 N.J. 158, 168 (1994). "'Probable cause exists if at the time of the police action there is a 'well grounded' suspicion that a crime has been or is being committed.'" State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). All that is required is "a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Demeter, 124 N.J. 374, 380-81 (1991) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed. 2d 527, 548 (1983)). Finally, the reasonableness of the officers' actions "must be considered in light of 'the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.'" State v. Dangerfield, 171 N.J. 446, 456 (2002) (citing Terry, supra, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed. 2d at 909).

Here, Officer Gramp observed activity that he found to be very suspicious. He knew that defendant did not live in the Amity complex. Defendant, after talking with his cousin, approached co-defendant Scurry. He took a black plastic bag from Scurry, untied it, appeared to remove something from his right pocket and placed the item in the bag. Defendant then looked around from side to side, reached back into the bag, placed something in his pants pocket, knotted the bag, and then handed it back to Scurry. Throughout this entire event, defendant and Scurry never made eye contact with each other. As Officer Holliday approached the scene, Scurry started to walk away, and when Gramp arrived at the scene and questioned both men about what was placed in the bag, both men denied that anything had been placed in the bag. We agree, as the trial court concluded, that this was highly suspicious behavior that justified the intrusion. State v. Johnson, 171 N.J. 192, 214 (2002).

Likewise, the actions of defendant and Scurry, when viewed under the totality of the circumstances, provided probable cause to arrest defendant, and the fact that Gramp searched the black bag before placing defendant and Scurry under arrest did not alter the validity of the search because both the search and subsequent arrest were part of a "single uninterrupted transaction." See State v. O'Neal, 190 N.J. 601, 614-15 (2007) (quoting Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed. 2d 633, 645-46 (1980) (finding "where the formal arrest followed quickly on the heels of the challenged search," it is not "particularly important that the search preceded the arrest rather than vice versa")). Therefore, the trial court did not err in finding that there was probable cause to arrest and search defendant and Scurry.


In Point II, defendant contends that Detective Michael Donato's testimony as an expert in the area of the methods of possessing drugs with the intent to distribute and distributing drugs impermissibly invaded the province of the jury, resulting in undue prejudice towards him at trial. The challenged testimony called for the expert to opine, based upon a hypothetical set of facts, whether the individuals referenced in the hypothetical were engaged in the distribution of narcotics. Donato testified that possessing a large amount of cash in twenty and ten-dollar denominations, along with the observation of the person delivering a package to another, is indicative of distribution. Although this line of questioning initially proceeded without objection, co-defendant Scurry objected after the following exchange between the assistant prosecutor and Donato:

Q: Okay. But if I were to tell you that S-1 did, in fact, give the cash to S-2 in the denominations that I told you, would your opinion be the same, that S-2 was engaged in the distribution of narcotics, as well?

A: Yes.

Q: Now, how about S-1? The one that is in the seat [sic] of the ounce of --

At this point, Scurry's attorney requested to be heard at side-bar. The ensuing colloquy between counsel and the court occurred:

[SCURRY'S COUNSEL]: Anticipating what I think the question is or where -- I think this is going to the heart of your ruling earlier this morning about listening to testimony -- that the -- that Subject Number One possessed this with the intent to distribute. I mean, that's where this question is going.

[PROSECUTOR]: Well, I mean, it has to do with what --

THE COURT: This is a hypothetical question; is it not?


[SCURRY'S COUNSEL]: So the question is: What is -- basically, what is Subject Number One going to do with this stuff? He's going to sell it.

THE COURT: Well, this is a hypothetical situation. This is not --defendant -- distribution of a controlled substance is -- can't give a net opinion. I understand that it's -- I understand with respect, [Scurry's counsel] -- because the scenario is -- hypothetical situation. There was -- we have Mr. Scurry and Mr. Nelson as they were subject --

[SCURRY'S COUNSEL]: Yeah, I think we're now starting to impede on the jury's -- of deciding the ultimate question. I think that this hypothetical now is getting -- is really violating your ruling earlier. I mean, he is now offering opinion that --in that scenario. They -- that Subject Number One would be possess[ed] with the attempt to distribute.

[DEFENDANT'S COUNSEL]: If I may, I agree with counsel. All of the testimony regarding what's typical and what's usual, you know, may be somewhat informative to the jury, and information that is beyond their common everyday knowledge. But as counsel pointed out, the question at this point, but for the fact that it's prefaced with this hypothetical, is a question that is asking precisely what happened in this case with, you know, the facts. And then asking this witness to give an opinion as to what happened. Whether there was a possession with intent to distribute. So it's going to the ultimate issue. And I think the jury and only the jury can decide.

The court agreed and sustained the objection. On appeal, however, defendant challenges all manner of questioning advanced by the assistant prosecutor, not simply the question that preceded the objection raised by Scurry's attorney.

"Admission of expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors in understanding subjects that are beyond the ken of the average layperson." State v. Nesbitt, 185 N.J. 504, 507 (2006) (citing State v. Odom, 116 N.J. 65, 81 (1989)). Such opinions may be rendered even when the expert has been presented with a hypothetical question "mirroring the facts of the case, even though the hypothetical may be 'expressed in terms of ultimate issues of fact.'" Ibid. (quoting Odom, supra, 116 N.J. at 81. Thus, preliminarily, the court did not err in permitting Detective Donato to testify concerning methods criminals use to distribute illegal narcotics.

While such expert testimony is helpful to the jury's understanding of narcotics activities, it is not boundless, and where the witness is presented with hypothetical facts from which an opinion is sought, "the phrasing of [the particular] hypothetical [question] should not track too precisely the exact language of the criminal statute with which a defendant has been charged." Id. at 517 (citing Odom, supra, 116 N.J. at 82). "Expert testimony that recites the legal conclusion sought in a verdict is not helpful to the jury." Ibid. (citing United States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002)).

In the present matter, the question for which the objection was interposed was, in the first instance, a question unrelated to defendant Nelson. Rather, the hypothetical question that defendant claims mirrored the facts of the case was about S-1, who in the hypothetical would have been Scurry; hence, the objection from Scurry's counsel. When defense counsel joined the objection, he acknowledged that testimony "regarding what's typical and what's usual . . . may be somewhat informative to the jury, and information that is beyond their common everyday knowledge." He then argued that "the question at this point," rather than the earlier question that related solely to whether defendant sold drugs, was mirroring "precisely what happened in this case[.]" (emphasis added).

Nonetheless, we agree that the questions posed to Donato as to whether "S-2" [defendant] and "S-1" [Scurry] sold drugs impermissibly called for the expert to render an opinion on the ultimate issue. See State v. Reeds, ___N.J.___, ____ (2009) (slip op. at 28) (holding hypothetical question posed to expert whether defendant constructively possessed the narcotics exceeded the parameters of acceptable expert testimony because the question went to the ultimate issue and therefore usurped the jury's singular role to determine the guilt of the defendant). We do not, however, conclude that reversal is warranted.

First, as noted earlier, no objection was raised to the question that called for an ultimate opinion as to whether defendant sold drugs. Thus, our standard of review requires that we determine whether the impermissible testimony was "sufficiently prejudicial to have the capacity to bring about an unjust result." State v. Thompson, ___N.J.___, ____ (2009) (slip op. at 7). In that regard, evidence of defendant's guilt was overwhelming. As discussed earlier, the actions of defendant and Scurry in the parking lot were suspicious and consistent with illegal narcotics activities, according to the testimony from witnesses experienced in illegal drug activity. A large quantity of cocaine was discovered in the black bag and defendant was found in possession of $3,790, denominated in two $100 bills, eight $50 bills, 148 $20 bills, 18 $10 bills, eight $5 bills, and ten $1 bills. Second, since defendant did not request a curative instruction, we decline to consider whether the court erred in failing to sua sponte provide a curative instruction to the jury. See State v. Wakefield, 190 N.J. 397, 456 (2007) (holding that "[i]n the absence of a request for a contemporaneous curative instruction at trial, [the] defendant's present complaint in respect of the absence of a curative instruction will not be heard").


In III, defendant contends that the trial court erred by allowing the admission of a laboratory report without a pre-trial hearing and by prohibiting him from subpoenaing the forensic scientist who tested the suspected narcotics and prepared the report the State planned to introduce into evidence at trial. Defendant contends that while he failed to file a timely objection within the statutory framework, he should nonetheless have been afforded the opportunity to cross-examine the witness pursuant to the Sixth Amendment right of confrontation. Defendant concedes that his initial trial counsel received a letter from the State well within the time prescribed by statute indicating its intention to use the laboratory report at the time of trial. He also concedes that his trial counsel did not file an objection to the admissibility of the report during the requisite statutory time period. However, defendant's trial counsel did join Scurry's attorney on the first day of trial in objecting to the admission of the lab report without the opportunity to cross-examine the forensic scientist. Defendant contends his defense counsel's failure "to file an objection letter within the required timeframe should not constitute a waiver of his constitutional rights afforded him by the Sixth Amendment[.]" He further argues that since he failed to make a voluntary, intelligent and knowing waiver, he cannot be deemed to have waived his constitutional and other pertinent rights.

At the core of this argument is defendant's contention that his non-compliance with the procedural requirements set forth in N.J.S.A. 2C:35-19(c) is not a waiver of his Sixth Amendment right of cross-examination of the chemist, a right defendant essentially alleges he is entitled to invoke at any time, including as he did here, at the time of trial. We reject this contention.

N.J.S.A. 2C:35-19(c) provides that:

Whenever a party intends to proffer in a criminal or quasi-criminal proceeding, a certificate executed pursuant to this section, notice of an intent to proffer that certificate and all reports relating to the analysis in question, including a copy of the certificate, shall be conveyed to the opposing party or parties at least 20 days before the proceeding begins. An opposing party who intends to object to the admission into evidence of a certificate shall give notice of objection and the grounds for the objection within 10 days upon receiving the adversary's notice of intent to proffer the certificate. Whenever a notice of objection is filed, admissibility of the certificate shall be determined not later than two days before the beginning of the trial. A proffered certificate shall be admitted in evidence unless it appears from the notice of objection and specific grounds for that objection that the composition, quality, or quantity of the substance submitted to the laboratory for analysis will be contested at trial. A failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objections to the admission of the certificate. The time limitations set forth in this section shall not be relaxed except upon a showing of good cause.

Crawford, supra, held that under the Confrontation Clause of the Sixth Amendment, unless a witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, out-of-court statements that qualify as testimonial are not admissible. 541 U.S. at 59, 124 S.Ct. at 1369; 158 L.Ed. 2d at 197. Two years before Crawford was decided, our Supreme Court decided State v. Simbara, 175 N.J. 37, 50 (2002). There, the defendant challenged the admissibility of the laboratory report without affording the defendant the opportunity to cross- examine the report's preparer. Id. at 42. The trial court agreed and excluded the report. Ibid. We granted the State leave to appeal and reversed the trial court. State v. Simbara, 348 N.J. Super. 213, 222 (2002). We concluded that the laboratory report complied in all respects with N.J.S.A. 2C:35-19, Id. at 218-19, and suggested that the State is never obligated to produce the analyst who tested the suspected narcotics when the certificate satisfies all of the statutory prerequisites to its admissibility. Id. at 222. The Court granted defendant's motion for leave to appeal and reversed. Simbara, supra, 175 N.J. at 42. The Court made clear that compliance with N.J.S.A. 2C:35-19 alone is not dispositive as to the report's admissibility:

The State's proffer of a certificate whose form and content conform to the statute does not itself preclude a defendant's right to confront the certificate's preparer at trial. The statute merely establishes the mechanism by which a trial court ultimately will determine whether a genuine contest exists between the parties in respect of the proffered certificate that would require production of the analyst. The Appellate Division concluded similarly in State in the Interest of C.D. and P.G., 354 N.J. Super. 457, 463. The court explained that "once the defense has objected, N.J.S.A. 2C:35-19 itself vanishes as a determinative to admissibility in evidence of the laboratory certificate." [Id. at 48-49 (citing In re C.D. and P.G., 354 N.J. Super. 457, 463 (2002)).]

Further, the Court noted in its ruling:

A laboratory certificate in a drug case is not of the same ilk as other business records, such as an ordinary account ledger or office memorandum in a corporate-fraud case. Those latter documents have not been prepared specifically for the government's use in a potential criminal prosecution. In contrast, the analyst prepares the laboratory certificate at a prosecuting agency's request for the sole purpose of investigating an accused. Because the certificate is singularly important in determining whether the accused will be imprisoned or set free, we must be sensitive to Sixth Amendment interests whenever a defendant preserves those interests for trial. Yet, we adhere to our belief that in the majority of cases a defendant will not challenge the certificate "either because the focus of the defense is otherwise or because he or she may not wish to suffer the piling-on effect of a live witness when there is no true contest over the nature of the tested substance." [Id. at 49 (citing State v. Miller, 170 N.J. 417, 431 (2002)).]

The Court's reasoning is consistent with the reasoning in Crawford.

Here, the trial court recognized that defendant unquestionably had the right to confront the chemist who performed the testing and prepared the report but found that by failing to timely object to the report's admissibility, defendant waived his right to challenge the admissibility at the time of trial. Thus, the question to be resolved is whether defendant's failure to object constitutes a knowing and voluntary waiver for purposes of protecting defendant's right of confrontation under the Sixth Amendment.

In State v. McKnight, the Court stated that a waiver may take the form of an affirmative act or an omitted act. It explained, 'waiver' is more apt to state a result than to show the way to it. It may describe an election deliberately made with awareness of everything involved; it may also rest upon nothing more than an omission to act. What constitutes a 'waiver' of a constitutional right must depend upon the values involved in each specific setting. [State v. McKnight, 52 N.J. 35, 48 (1968).]

The Court went on to explain the implications of waiver when not affirmatively asserted:

[O]ur rules of court provide that the right to trial by jury in a civil case must be asserted by affirmative demand. . . . The 'waiver,' if one wishes to speak of a loss of the right in such terms, does not depend upon the deliberate choice of the litigant, or even his awareness of the rule requiring the demand. The litigant may be relieved of the error, but not because the Constitution so ordains. So in criminal matters, we have rules within which a defendant must assert his rights, even though they be of constitutional origin. A motion to suppress evidence obtained in violation of the Fourth Amendment must be made before trial . . . notwithstanding that the defendant prefers to raise the issue at another time and insists he does not intend to forego it. If a defendant challenges a confession, he must do so at a time and in a mode we prescribe; he may not reserve the issue for a post-conviction proceeding. A defendant must object to evidence when it is offered, and to the charge to the jury immediately after it is delivered, and although he may be relieved of his failure for 'plain error,' relief depends upon the justice of the case and not upon whether the objection which should have been made has a constitutional tone. A defendant must advance before judgment every available contention, and if he wishes to complain of error in the trial or pretrial process, he must do so by direct appeal. . . . In short, there must be order in the judicial process, and constitutional rights may be lost if they are not advanced in accordance with rules which afford a fair opportunity to press them. [Ibid. (emphasis added).]

Here, defendant, waited until the first day of trial to raise his objection to the admissibility of the laboratory report without the opportunity to cross-examine the analyst. He offered no explanation for his non-compliance with the statutory procedures. Thus, he provided the court with no basis upon which to relax the time constraints for raising such objections. We are therefore satisfied that the trial court properly concluded that defendant had waived any objection to the admissibility of the laboratory report without the necessity of producing the chemist who conducted the tests and prepared the report. We acknowledge that defendant contends that his waiver was not knowing and voluntary. Defendant points to nothing in the record, however, to support this contention. To the extent proof that there was no waiver requires consideration of matters outside the record, such consideration is not appropriate for resolution on direct appeal. See also State v Preciose, 129 N.J. 451, 460-61 (1992) (stating "[o]ur courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal"); see also Pressler, Current N.J. Court Rules, comment 1 on R. 2:5-4 (2009) (stating "it is of course clear that in their review the appellate courts will not ordinarily consider evidentiary material which is not in the record").

Finally, we reject the argument that waiver of the admissibility of the report at the time of trial can only be accomplished through an on-the-record inquiry from the court to ensure that the waiver is knowing and voluntary. As we discussed earlier, the procedural requirements of the statute provide a reasonable vehicle through which a defendant's constitutional right of confrontation may be asserted while simultaneously ensuring an orderly judicial process in criminal proceedings. See N.J.S.A. 2C:35-19(c); Simbara, supra, 175 N.J. at 50.


We have considered the remaining points raised by defendant related to the denial of his motion for a judgment of acquittal and whether the court abused its discretion in sentencing defendant to an extended term in light of the record and applicable legal principles. We conclude that these points are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).



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