April 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BRIAN A. HOLMES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-02-0593.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 24, 2009
Before Judges Gilroy and Chambers.
Defendant Brian A. Holmes was convicted by a jury of third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); second degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count two); third degree possession of CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count three); and conspiracy to possess CDS with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(a)(1) (count four). The trial court sentenced him to seventeen years in prison with an eight year period of parole ineligibility on count two, and counts one and four were merged with count two. On count three, defendant received a concurrent sentence of five years imprisonment. The requisite assessments, fees, and penalties were imposed.
On appeal, defense counsel raises the following issues:
THE STATE'S DRUG EXPERT OVERSTEPPED THE BOUNDARIES OF STATE V. ODOM WHEN HE BASED HIS OPINION THAT DEFENDANT HAD DISTRIBUTED NARCOTICS ON POLICE REPORTS, LAB REPORTS AND THE ACTUAL EVIDENCE IN THE CASE. (Not Raised Below).
THE JUDGE ERRED IN BARRING DEFENDANT FROM ARGUING THAT THE STATE HAD FAILED TO PRODUCE THE TESTIMONY OF HIS ALLEGED CO-DEFENDANT, FAILING TO CONDUCT AN ANALYSIS PURSUANT TO STATE V. CLAWANS.
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY, AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below)
THE 17-YEAR EXTENDED-TERM SENTENCE, WITH AN EIGHT-YEAR PAROLE DISQUALIFIER, IS EXCESSIVE BECAUSE THE NEED TO DETER COULD HAVE BEEN SATISFIED BY A LESSER SENTENCE.
Defendant raises the following issues in his pro se brief:
EXPERT WITNESS OVER STEPPED BOUNDARIES, ALSO TRIAL JUDGE ERRED IN ALLOWING EXPERT TESTIMONY WITHOUT PROPERLY HAVING A HEARING OUTSIDE THE PRESENCE OF JURY TO ESTABLISH IF SUCH TESTIMONY FROM EXPERT WITNESS WOULD OUTWEIGH ITS PROBATIVE VALUE.
THE DEFENDANT WAS DENIED THE RIGHT OF DUE PROCESS, PROPER CONFRONTATION, A RIGHT TO CROSS-EXAMINATION FROM THE STATE NOT PRODUCING A CO-DEFENDANT WHO THE STATE BELIEVES (COULD HURT OR HARM [ITS] CASE).
THE 17 YR. SENTENCE IS EXCESSIVE DUE TO NON CONVICTION OF SCHOOL ZONE (NO PRIORS) PRIOR CDS CONVICTIONS MERGED INTO 1.
We affirm for the following reasons.
At trial, the State presented two witnesses. Camden Police Officer Jason Stetzer testified that on November 21, 2005, in an area known for its drug activity, he observed a man on a bike approach a person later identified as Mark Skinner. The two spoke and Skinner, using his hand, directed the man to defendant. The man then approached defendant in an alleyway and handed defendant paper currency. Defendant removed a bag located between a fence and wall in the alleyway and took from it a small orange item which he then handed to the man. The police stopped defendant and Skinner. In a search of the alleyway, including the bag between the fence and the wall, the police recovered 203 bags of cocaine, with a net weight of 1.31 ounces. Joseph Gersic, an investigator with the Camden County Prosecutor's Office, provided expert testimony on the illegal distribution of narcotics. The parties stipulated that the incident took place within 1,000 feet of a school. They also stipulated to the chain of custody and the admission into evidence of the New Jersey State Police Laboratory Report. Defendant did not testify nor did he present any witnesses. Based on these proofs, the jury found defendant guilty as previously stated.
In this appeal, defendant correctly argues that the State violated the requirement of State v. Odom, 116 N.J. 65 (1989), when it elicited an opinion from its expert, Gersic, without phrasing the question in the form of a hypothetical question. Specifically, the assistant prosecutor asked Gersic the following questions:
Q: Based on your review of the documents in this case as well as the evidence in this case, do you have an opinion as to whether or not the narcotics recovered in the alley around the 1900 Block of Broadway were intended for distribution as opposed to being used for personal use?
Q: What do you base that opinion on?
A: My experience, the police reports, and observing the evidence.
These questions elicited expert opinion without using the format of a hypothetical question. State v. Odom requires that to elicit expert opinion testimony regarding distribution of CDS, the State must question the witness through a hypothetical question that refers only to assumed facts reflected in the evidence adduced at trial. Id. at 81-82; see State v. Reeds, 197 N.J. 280, 290-93 (2009). Specifically, the Court in Odom stated:
It is therefore important that trial courts and trial attorneys clearly understand the standards governing such expert testimony and that juries be carefully instructed on how to consider and use such testimony in their deliberations.
The majority below in part described such standards. It pointed out that in proffering the opinion of an expert in this kind of case, the hypothetical question should be carefully phrased to refer only to the testimony and evidence adduced
about the manner of packaging and processing for use or distribution, the significance of various quantities and concentrations of narcotics, the roles of various drug paraphernalia, characteristics of the drugs themselves, the import of circumstances surrounding possession, the conduct of the possessor and the manner in which drugs may be secreted or otherwise possessed for personal use or distribution. [State v. Odom, 225 N.J. Super. 564, 573 (1988).]
Once this foundation has been laid, the expert should then be presented with a hypothetical question through which he or she can advise the jury of the significance of these facts on the issue of possession.
Having set forth this information in the form of a hypothetical, the expert may be asked if, based on these assumed facts, he or she has an opinion whether the drugs were possessed for personal use or for the purpose of distribution. [State v. Odom, supra, 116 N.J. at 81-82.]
This procedure was not followed. However, since defense counsel did not object to the questions, reversal is warranted only if these questions constitute plain error, that is, error "clearly capable of producing an unjust result." R. 2:10-2.
After a careful review of the record, we conclude that the State's failure to frame the question in terms of a hypothetical question does not constitute plain error. The questions were preceded by testimony from the expert that a mere user of crack cocaine typically would have only two to four bags of the drug in his possession while individuals distributing the drug would have larger quantities. The expert also provided a detailed explanation about the packaging of crack cocaine for distribution, including the size and packaging of bags sold to individuals for their individual use and the bundling of those small bags into larger packets for the street level sellers of the drug. He also testified that the packaging for the drugs recovered in this case was consistent with typical packaging for crack cocaine held by street level distributors of the drug and was not typical of bags held by individuals for their personal use. The objectionable questions flowed from this line of inquiry, and although the questions were technically improper, the information they sought to elicit, namely that the CDS found in the alley was for distribution, was already supported by other admissible evidence.
Further, the improper questioning was immediately followed by the following proper hypothetical question:
Q: Investigator, let me ask you a hypothetical question. If you were to observe an individual - two individuals standing on a corner, then you were to observe another individual ride up on a bicycle, engage one of the men in a brief conversation, and that man then points in the direction of another man, and after that individual points to him, the man on the bicycle rides down to that individual, he then engages him in a brief conversation and hands that individual money - currency, and once that individual receives the money he then goes to an area, retrieves a small item and then gives that item to the individual on the bicycle, the man on the bicycle then drives away. Based on that hypothetical, what would that depict?
A Through my training and experience, that would show me that it was an open air hand to hand drug transaction utilizing a multi-person operation.
Where the State has improperly questioned its expert, reversal of the conviction is required only where that testimony was "sufficiently prejudicial to have the capacity to bring about an unjust result." State v. Thompson, 405 N.J. Super. 76, 81 (App. Div. 2009). When evaluating whether this standard has been met, we must "consider the other evidence of defendant's guilt, apart from the expert's improper testimony, and the role that testimony played in the overall trial of the case." Id. at 82. Reversal is not required due to an improper hypothetical question, where the evidence is otherwise overwhelming. Id. at 82-83.
Here the State presented powerful evidence of defendant's guilt. A police officer observed defendant participate in a drug transaction in which he handed a bag that appeared to be drugs to another in exchange for currency. A search of the place where defendant had obtained the bag sold revealed 203 other similar bags later determined to contain CDS. Defendant submitted no evidence to provide another explanation for these observations and facts. Given this overwhelming evidence of defendant's guilt, the error in the State's questioning does not require reversal.
Further, the information elicited in the improper questions was already in the record through other testimony from the expert witness and was thereafter elicited through a proper hypothetical question as well. Accordingly, the mistake in the questioning was not capable of producing an unjust result.
Defendant contends that the trial court's instruction to the jury regarding defendant's election not to testify at trial was improperly phrased and penalized him for exercising his right to remain silent. At the request of the defense, the trial court provided the jury with the Criminal Model Jury Charge instruction on Defendant's Election Not to Testify as follows:
As you know, members of the jury, Mr. Holmes elected not to testify at trial. So it is clear, it is his constitutional right to remain silent. You must not consider for any purpose or in any manner in arriving at your verdict the fact that [defendant] did not testify. That fact should not enter into your deliberations or discussions in any manner, at any time.
He is entitled to have you consider all of the evidence presented at trial. He is presumed innocent even if he chooses not to testify.
Defendant contends that the use of the word "even" in the last sentence "unmistakenly and inescapably telegraphs the message that the defendant should have testified. It tells the jury that, as improbable as it may seem, the defendant should be treated fairly despite his dereliction" in not testifying. Defendant suggests that the word "even" be replaced with the phrase "regardless of whether or not", so that the sentence would read: "the defendant is presumed innocent regardless of whether or not he chooses not to testify."
Because defendant did not raise this argument before the trial court, it is subject to the plain error standard set forth in Rule 2:10-2. A mistake in a jury charge constitutes plain error requiring reversal when the mistake is sufficiently prejudicial to the substantial rights of the defendant "that of itself the error possessed a clear capacity to bring about an unjust result." State v. Adams, 194 N.J. 186, 207 (2008) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). When determining whether this standard has been met, the charge must be read as a whole, and the error "must be evaluated in light of the totality of the circumstances - including all the instructions to the jury, [and] the arguments of counsel."
Ibid. (quoting State v. Marshall, 123 N.J. 1, 145 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993)) (alteration in original). Nonetheless, the law recognizes that "clear and correct jury instructions are fundamental to a fair trial." Ibid. Errors in a jury charge in a criminal case are "poor candidates for rehabilitation under the plain error theory." Ibid. (quoting State v. Jordan, supra, 147 N.J. at 422).
Further, the charge on defendant's election not to testify implicates the Fifth Amendment right to remain silent and thus involves an issue of constitutional dimensions. U.S. Const. amend. V; State v. Haley, 295 N.J. Super. 471 (App. Div. 1996) (concluding that failure to provide a jury instruction on the defendant's election not to testify when requested by the defense was reversible error despite the fact the defense did not object to the jury charge at trial). The language in the model jury charges do not have the force of any law, but are merely guidelines. See State v. Green, 318 N.J. Super. 361, 376 (App. Div. 1999).
Against this standard, we conclude that no plain error occurred here. We recognize that the use of the word "even" in this sentence, if analyzed by itself, may arguably be construed to imply an expectation that a defendant would usually testify. However, we are not convinced that the word when viewed in the context of the rest of the passage would be understood to have this meaning. Nonetheless, in order to avoid any potential problem with a charge of constitutional magnitude, we recommend that the Supreme Court Committee on Model Jury Charges, Criminal, review this passage and consider modifying the sentence so that it is indisputably evenhanded without using the word "even."
The remaining issues are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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