July 20, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES T. PRESTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-12-2927.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 15, 2009
Before Judges Carchman and Parrillo.
Tried by a jury, defendant James T. Preston was found guilty of possession of heroin and cocaine, N.J.S.A. 2C:35-10a(1) (counts 1 and 4); possessing these drugs with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3) (counts 2 and 5); and possessing them with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (counts 3 and 6).*fn1 After merging counts 1 and 2 with count 3, and counts 4 and 5 with count 6, the court imposed on defendant concurrent extended-term sentences of six years, with a three-year period of parole ineligibility. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs, on August 4, 2005, at about 10:00 a.m., Newark Police Detectives Larry Collins and Mark Johns, responding to numerous complaints of drug activity, set up surveillance in the area of Hartford and Norfolk Streets, a known high narcotics location. They positioned themselves in the rear of their undercover blue Dodge van, equipped with tinted windows so no one could see inside, and parked on the east side of Norfolk Street, near the corner of Hartford Street, facing north. It was a sunny day and the officers' view was unobstructed.
From a distance of about 35 feet, the officers observed defendant dressed in a white t-shirt, black shorts and black and tan boots, sitting alone on a wrought iron fence railing at the corner of Hartford and Norfolk Streets. Within a few minutes, a woman approached defendant still seated on the fence. They spoke briefly, defendant reached into his right rear pocket and gave an item to the woman. She, in turn, gave defendant what appeared to be paper currency. The transaction lasted approximately fifteen seconds. Afterwards, the woman walked south on Norfolk Street out of the detectives' view, and defendant returned to sitting on the fence.
A few minutes later, a man, later identified as co-defendant Donnell Bradley, approached defendant while he was still sitting on the fence. The two men spoke briefly and, once again, defendant reached into his right rear pocket, took out an item and handed it to Bradley, who then gave defendant paper currency. This transaction also endured for only ten to fifteen seconds.
Based on their collective experience observing hundreds of narcotics transactions and making numerous undercover "buys" themselves, Collins and Johns decided to arrest Bradley to confirm there had been a drug deal. Accordingly, the detectives followed Bradley in their undercover van, and eventually walked into a liquor store on Norfolk Street that Bradley had just entered. After identifying themselves as police officers and displaying their badges, the detectives detained Bradley.
Detective Johns then searched him and recovered a clear vial with a gold top containing suspected cocaine.
A few minutes later, defendant entered the liquor store and was arrested and searched. Detective Collins recovered fourteen gold top vials containing cocaine from defendant's right rear pocket -- the same pocket the officer saw him reach into twice to make drug transactions. Detective Collins also found six vials with purple tops containing cocaine in defendant's left rear pocket, and in a small front pants pocket, five glassine envelopes stamped "Krispy Crème" in blue ink, containing heroin. Detective Johns also recovered $107 in cash from defendant: three twenty dollar bills; two five dollar bills and thirty-seven one dollar bills.
Defendant offered an entirely different account at trial. While acknowledging he was in the area of Hartford and Norfolk Streets at the time, he claimed to have been visiting his grandmother, who lived on Norfolk. He denied sitting or leaning on the fence and explained that while walking to the liquor store, he spoke to a couple of people, but only exchanged greetings. Once inside the liquor store, he saw a police officer and another person in police custody, whom he did not know. According to defendant, he was then immediately arrested and searched. He denied possessing any drugs and claimed the police found only money in his front left pocket. Defendant also claimed that it is impossible for him to reach into his right rear pocket with his hand because he had been stabbed in November 2004, and as a result, he is "handicapped."*fn2
Evidently crediting the State's version, the jury convicted defendant of six counts of drug-related offenses. This appeal follows, in which defendant raises the following issues:
TESTIMONY BY THE STATE'S FACT WITNESSES VIOLATED MR. PRESTON'S RIGHT TO CONFRONTATION AND PART OF THE STATE'S EXPERT'S TESTIMONY WAS IMPROPER EXPERT OPINION ON THE ULTIMATE FACT ISSUE FOR THE JURY.
A. Collins' and Johns' testimony that they responded to the surveillance site based on citizens' complaints of drug activity there violated defendant's right to confront his accusers. (Not Raised Below) U.S. Const. Amends. VI, XIV; N.J. Const. Art. 1, ¶¶ 1, 10. (Not Raised Below).
B. Detective Holloway's opinion that what Collins and Johns had witnessed were drug transactions, encroached on the jury's exclusive authority to resolve an ultimate factual issue. U.S. Const. Amend. XIV; N.J. Const. (1947) Art. I, ¶¶ 1, 9 and 10.
We discern no reversible error.
Defendant challenges the testimony of the detectives about receiving citizens' complaints of drug activity in the area as inadmissible hearsay, which violated his right to confrontation. Because counsel did not object below, we review the claim under the plain error standard to determine whether any such error had the capacity to cause an unjust result. R. 2:10-2. We perceive no error, much less plain error, in the admission of the challenged evidence.
In State v. Bankston, 63 N.J. 263 (1973), the Court held that an officer's testimony giving rise to the inescapable inference that an informant had given information that the defendant would have narcotics in his possession was hearsay and its admission was not harmless error. Id. at 266-272. There, the testifying police officer had relied upon a non-testifying informant's description to apprehend and arrest the defendant for narcotics possession. Ibid. Here, by marked contrast, the so-called citizen complaints were of general drug dealing in the area and neither suggested nor permitted jurors to infer that the detectives had information about the identity of any person involved in drug dealing, much less of defendant in particular. In other words, unlike Bankston, the complaints about drug activity from the non-testifying citizens here did not implicate defendant directly or inferentially in drug transactions. Therefore, nothing in the detectives' testimonies implied that they had information from out-of-court sources known only to them implicating defendant in drug dealing. See State v. Branch, 182 N.J. 338, 342, 352-53 (2005). Rather, the reference to citizen complaints was made simply to explain why the police chose the Hartford/Norfolk Street location to set up surveillance. See State v. Long, 137 N.J. Super. 124, 133-34 (App. Div. 1975), certif. denied, 70 N.J. 143 (1976). Because the out-of-court reference did not implicate defendant in crime, such testimony did not violate defendant's confrontation rights and was permissible. In any event, it is clear that the eyewitness evidence of defendant's guilt was overwhelming, and therefore, any error in admitting evidence of citizens' complaints was harmless. See State v. Irving, 114 N.J. 427, 446-47 (1989).
Defendant also challenges the expert testimony of Detective Reginald Holloway as opining on the ultimate factual issue reserved exclusively for the jury.*fn3 We disagree. In any event, any error in this regard was harmless beyond a reasonable doubt.
Detective Holloway of the Essex County Sheriff's Department testified as an expert in the field of narcotics. He explained the various forms of cocaine, the packaging of cocaine and heroin for distribution, the street value of the drugs recovered by the police, and the purpose of logos used on bags of drugs.
The expert also addressed the State's hypothetical,*fn4 which properly contained the facts in evidence; did not identify defendant or co-defendant Bradley by name; and did not ask for a conclusion as to defendant's guilt. See State v. Nesbitt, 185 N.J. 504, 513 (2006); State v. Summers, 176 N.J. 306, 315 (2003). Holloway responded that within the context of the hypothetical, he believed that Subject A distributed drugs to Subjects B and C. It is this response that is now being challenged for the first time.
N.J.R.E. 702 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 manner of packaging, the significance of quantity and purity of substances, the circumstances surrounding possession, and the conduct of the possessor are all matters subject to interpretation by a qualified expert to assist the jury. See, e.g., State v. Reeds, 197 N.J. 280, 290 (2009); State v. Odom, 116 N.J. 65, 81 (1989). Here, Detective Holloway properly testified with regard to the various forms of cocaine, the packaging of cocaine and heroin for distribution, the street value of the drugs recovered by the police, and the purpose of logos used on bags of drugs. Given the nature of the multiple drug offenses for which defendant was charged, clearly Holloway's testimony assisted the jury in determining whether the twenty vials containing cocaine and five glassine envelopes containing heroin were possessed for defendant's personal use or for street-level distribution.
Although the expert testified further in response to the State's hypothetical, we perceive no plain error in his answer. In this regard, we note that once an expert is properly qualified and a foundation is established, a hypothetical question may be used by the State to elicit an opinion of an expert that the illegal drugs were possessed for distribution purposes. Reeds, supra, 197 N.J. at 290-91; Nesbitt, supra, 185 N.J. at 512; Summers, supra, 176 N.J. at 312-15; Odom, supra, 116 N.J. at 81-82. While an expert may not express a direct opinion that a defendant is guilty of the crime charged, Reeds, supra, 197 N.J. at 292-93; Summers, supra, 176 N.J. at 314-15; Odom, supra, 116 N.J. at 77, the expert may, however, testify that the controlled dangerous substance seized was possessed with the intent to distribute. Reeds, supra, 197 N.J. at 293; Summers, supra, 176 N.J. at 314. If expert testimony is otherwise competent and admissible, the fact that it may embrace the ultimate fact issue in dispute does not render it inadmissible. Reeds, supra, 197 N.J. at 292-93; Summers, supra, 176 N.J. at 314; Odom, supra, 116 N.J. at 78-79. See also N.J.R.E. 704.
In State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000), a case in which the issue before the jury was whether defendant had distributed drugs, we held that it was error for the expert to opine that drug transactions had, in fact, occurred. Id. at 257-264. There, however, the expert's opinion on the ultimate question was found to be "unduly prejudicial in the circumstances," id. at 258, because it impermissibly "added elements to the State's proofs which rendered the trial unfair." Id. at 257 (emphasis added). Specifically, the fact testimony of the two detectives was "entirely ambiguous," and "left entirely open, without direct evidence of any kind, the question whether an incident or two of drug distribution had occurred." Id. at 261. Thus, we concluded there was no doubt that the expert's opinion "was used to 'carry the prosecution's proof above the requisite line[,] . . . salvag[ing a potentially] insufficient case.'" Id. at 261-62 (quoting United States v. Young, 745 F.2d 733, 766 (2d Cir. 1984) (Newman, J., concurring), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed. 2d 142 (1985)).
Here, by contrast, there were no interstitial gaps that Holloway's answer to the hypothetical helped to fill, and his opinion as to distribution worked no prejudice to defendant in light of independent overwhelming evidence of his guilt. Other evidence clearly demonstrated defendant sold one vial of cocaine to co-defendant Bradley on August 4, 2006, and was in possession of twenty vials of cocaine and five glassine envelopes of heroin when he was arrested. Thus, measured against the substantial overall proofs, we do not find that a reasonable doubt is raised on whether Holloway's statement that Subject A sold drugs to Subjects B and C led the jury to a result it otherwise might not have reached. Summers, supra, 176 N.J. at 315-17.