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State v. Proctor

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 5, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DARRYL PROCTOR, A/K/A TONY K. PROCTOR, A/K/A FUQUAN PROCTOR, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-06-2070 and 06-06-2071.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 10, 2009

Before Judges Wefing, Grall and Messano.

Following a jury trial, defendant Darryl Proctor was convicted of: third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(2); third-degree possession of heroin with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7; second-degree possession of heroin, with the intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1; fourth-degree violation of the regulatory provisions relating to firearm purchase permits, N.J.S.A. 2C:39-10; second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree possession of a firearm while committing a narcotics offense, N.J.S.A. 2C:39-4.1; and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6. Following a brief second trial before the same jury pursuant to a separate indictment, defendant was convicted of second-degree certain persons not to possess firearms, N.J.S.A. 2C:39-7(b).

After appropriate mergers, the trial judge sentenced defendant to ten years imprisonment on the second-degree possession of heroin with intent to distribute conviction; a concurrent five-year sentence with a two-year period of parole ineligibility on the school-zone conviction; a concurrent eighteen-month sentence on the regulatory conviction; a concurrent eighteen-month sentence on the tampering conviction; and a consecutive eight-year sentence on the possession of a firearm during the commission of a narcotics offense conviction.

On the second indictment, the judge imposed a consecutive sentence of ten years with a five-year period of parole ineligibility.

Defendant raises the following issues on appeal:

POINT I

THE TRIAL COURT ERRED BY PERMITTING THE STATE TO OFFER IMPROPER EXPERT TESTIMONY THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below)

POINT II

THE TRIAL COURT ERRED BY ALLOWING THE JURY TO HEAR TESTIMONY ABOUT THE ISSUANCE AND EXECUTION OF AN [SIC] SEARCH WARRANT FOR THE DEFENDANT'S PURPORTED RESIDENCE WITHOUT PROVIDING THE JURY WITH A CURATIVE INSTRUCTION THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below)

POINT III

THE ADMITTANCE INTO EVIDENCE OF DEFENDANT'S CRIMINAL CONVICTION CONSTITUTED A CLEAR ABUSE OF DISCRETION AND VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT IV

THE TRIAL COURT'S RESTRICTIONS ON MR. PROCTOR'S TESTIMONY DEPRIVED HIM OF HIS RIGHT TO TESTIFY ON HIS OWN BEHALF AND OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)

POINT V

PROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)

A. THE PROSECUTOR'S COMMENTS TO THE JURY DURING SUMMATION, WHICH SUGGESTED THAT THE TESTIMONY OF THE STATE'S POLICE WITNESSES WAS INHERENTLY CREDIBLE PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below)

B. THE PROSECUTOR'S COMMENTS DURING SUMMATION EXPRESSING HER PERSONAL OPINION ABOUT THE MERITS OF THE CASE VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below)

C. THE PROSECUTOR'S COMMENTS DURING SUMMATION WHICH SUGGESTED TO THE JURY THAT THE DEFENDANT HAD A BURDEN OF PROOF VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below)

POINT VI

THE TRIAL COURT ERRED BY REQUIRING MR. PROCTOR TO APPEAR BEFORE THE JURY IN HANDCUFFS THEREBY DEPRIVING HIM OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)

POINT VII

THE TRIAL COURT ERRED IN FAILING TO CONFIRM WITH MR. PROCTOR THAT HE INTENDED TO WAIVE HIS RIGHT TO BE PRESENT IN COURT FOR THE RETURN OF THE VERDICT AND, INSTEAD, ACCEPTING DEFENSE COUNSEL'S WAIVER OF HIS CLIENT'S APPEARANCE. (Not Raised Below)

POINT VIII

CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL. (Not Raised Below)

POINT IX

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS. (Not Raised Below)

We have considered these arguments in light of the record and applicable legal standards. We reverse.*fn1

I.

On December 13, 2005, Sergeant Albert Rivera, Jr. and officers of the Essex County Anti-Crime Partnership, "a multi-agency" law enforcement "task force," executed a search warrant at 690 South 20th Street, Newark. A trained narcotics dog signaled the presence of drugs in the bedroom and bathroom. The officers came upon defendant as he was exiting the bathroom, and twelve glassine envelopes of suspected heroin were found floating in the toilet bowl. Rivera also found an additional seven-hundred and fifty*fn2 glassine envelopes in the bathroom, the majority of which were in a cabinet underneath the sink, with the remainder on the floor.

In addition to the drugs, the officers found a bullet-proof vest in a bedroom closet that also housed a safe. Inside the safe, the officers found a loaded .32 caliber revolver, $5,791 in cash, and the title to a 1998 Ford Expedition in defendant's name and listing 690 South 20th Street as his residence.

Two women, defendant's girlfriend and daughter, were also in the apartment. After being advised of his Miranda*fn3 rights, defendant "voluntarily blurted" out to Rivera, "they had nothing to do with it, it's all mine." Cross-examination revealed that defendant's statement was not contained in any of the police reports of the incident, and Rivera acknowledged that he did not tell the prosecutor of this fact until the week of trial.*fn4

Defendant's vehicle was parked in front of the premises, and defendant executed a consent form permitting the officers to search the Ford Expedition. In the driver's side door, the officers recovered two packages containing twenty glassine envelopes of heroin similar to those recovered in the apartment.

Detective Reginald Holloway of the Essex County Sheriff's Department was called by the State as an expert in the field of narcotics distribution. We discuss in greater detail below his testimony; it suffices to say that Holloway opined that the heroin found by the officers was intended for distribution and not for personal use.

Defendant testified and generally denied having any knowledge of the drugs, gun, or bullet-proof vest. He claimed that the apartment was his girlfriend's, and that he lived in East Orange. He further claimed that he and his girlfriend maintained a sporadic relationship, and that he had spent the night before his arrest with her in the apartment. Defendant admitted that he owned the Ford Expedition, but denied knowing that any drugs were in the car, and he further denied making any statements to the officers when arrested.

II.

We now turn to defendant's legal arguments. Rather than discuss them separately, we consider the issues regarding Holloway's testimony (Point I) and evidence regarding the search warrant and prior drug activities at the address (Point II), together with the alleged improprieties of the prosecutor (Point V). While we acknowledge the relative strengths of the State's case, we must conclude that cumulatively the errors that occurred denied defendant a fair trial and clearly had the capacity to bring about an unjust result. See R. 2:10-2.

We recite Holloway's testimony at length. After qualifying as an expert in the field of narcotics distribution, Holloway looked at the plastic bag containing the evidence seized from the apartment and testified that glassine envelopes "are the number one items utilized for the packaging and . . . distribution of heroin." The prosecutor then asked:

Q: Are you familiar with the area of 690 South 20th Street in the City of Newark as it was in December of 2005?

A: Yes, I am, ma'am.

Q: And how are you familiar with it . . . ?

A: [A]s I indicated, the -- approximately ten plus years ago when I was transferring to the Bureau of Narcotics, when I served in the capacity as an undercover, I made narcotic purchases from said location. While being a backup detective, I'm still making presently narcotic surveillances in said location while I'm making narcotic arrests.

(Emphasis added.)

Holloway was also familiar with the area from his "upbringing."

Holloway opined that a single glassine envelope "in the area of 690 South 20th Street in Newark" was worth between $7-$10. The prosecutor then posed a hypothetical question:

Q: [P]olice officers execute a search warrant at the home of a person we'll call Subject A. Subject A is at home when the officers arrive with two other females. Police find 12 envelopes of heroin inside of a toilet bowl in the bathroom. They find an additional 750 envelopes of heroin inside of the bathroom cabinet.

Police also find a safe inside of a closet. Inside the safe they recover a loaded revolver, over $5,000 in cash, and a certificate of title to a vehicle parked outside of the residence. The certificate of title shows that the vehicle belongs to Subject A.

Once the police are inside the closet, they also find a bulletproof vest. Once the police recovered the narcotics, they place Subject A under arrest and give him his MIRANDA warnings. Subject A indicates that he understands these MIRANDA warnings.

At that point, without the police asking any questions, Subject A states that the drugs were his and nobody else had anything to do with it. Police then ask for Subject A's consent to enter the vehicle for which they found the certificate of title. Subject A gives the police his consent and inside the vehicle they recover an additional 20 envelopes of heroin.

Based on these facts, can you render an opinion as to the recovered narcotics? Holloway rendered the following opinion:

A: [A]s far as the . . . 12 glassine envelopes in the toilet, Subject A was attempting or had attempted or had flushed narcotics. In flashing [sic] glassine envelopes of heroin, they're light so they'll float. It's quite possible there might have been a larger quantity, so either Subject A had flushed items while the 12 never dissolved, went down, or Subject A was attempting to flush the 12.

But, ma'am, its my opinion that the recovered 12 within the toilet, the recovered 700 plus under the bathroom sink cabinet, I believe, as well as the 20 or the narcotics recovered from within the vehicle, it's my opinion that Subject A possessed the items with the intent to distribute for monetary game [sic].

The prosecutor continued:

Q: Can you render an opinion based on the amount of money recovered from the apartment?

A: Well . . . as a result of the recovered narcotics and Subject A's admission that the narcotics belonged to him or her solely and with the narcotics being recovered from within a lock box, a safe, which is commonly possessed by individuals involved within the illegal distribution of narcotics, it's my opinion that the recovered currency were [sic] the proceeds or are [sic] the proceeds of various illegal narcotic transactions.

Q: Now is it common for . . . people who distribute illegal narcotics to have loaded guns in their possession?

A: It's very common . . . .

Q: Why is that?

A: [F]irst of all for protection, for their protection, . . . the protection of others involved within the illegal distribution of narcotics . . . [or] family members . . . .

Q: [I]s it common . . . for people involved in narcotic distribution schemes to have bulletproof vests in their possession?

A: It is common . . . .

Q: Is it common for individuals who are drug users and who are not involved in [the] illegal drug distribution scheme to have 782 envelopes of heroin in their home, a loaded gun, as well as a bulletproof vest?

A: That's very uncommon . . . .

Q: And why is that?

A: [B]ecause individuals that are users, . . . [would not] have that quantity of narcotics around . . . . [T]he individual would go out here and they would . . . overdose on such a quantity.

Holloway's reference to 690 South 20th Street as a scene of other narcotic activity was repeated in the prosecutor's summation, when she reminded the jurors, I asked [Holloway] were you familiar with the area of 690 South 20th Street and he said he was. I said how. He said, ["]I've done numerous . . . investigations in that area, I've made arrests over there.["]

References implying drug activity at the premises, not the subject of the trial, began even earlier. In her opening statement, the prosecutor told the jury:

[M]embers of the Essex County Anti-Crime Partnership obtained a search warrant from Judge Joseph Isabella who is a Judge here in Essex County. That search warrant was for 690 South 20th Street, . . . located in the City of Newark, which is where the defendant . . . lived at that time. (Emphasis added.)

The State's first witness, Rivera, began his testimony by telling the jurors:

On that day at approximately 10:30 a.m. myself along with the members of my squad, we executed a Court authorized search warrant at the [defendant's] residence, 690 South 20th Street in Newark, New Jersey. (Emphasis added.)

The prosecutor began her direct examination of nearly every other police witness by asking why he was at the premises, and each responded that he was there to execute a search warrant.

In her summation, the prosecutor began by telling the jurors,

[T]here's three things that I think could happen in this case, three scenarios.

And those scenarios are, number one, that the police lied, number two, that the police made up the whole thing, and number three is that the police were right and that the defendant is guilty.

These are police officers . . . that have participated in hundreds of arrests . . . since December 13th of 2005 until now. They've done this so many times.

[T]his day is a big deal in the life of the defendant and it's important to the police officers as well. However, they have no reason to lie . . . .

They have no reason to come in here and tell you anything that isn't the truth, because . . . as much as we would like to get a guilty verdict, it's not something which is essential for them. They have no reason to come in here and to perjure themselves and to say things to you that are not true that could impact on their own reputations.

Discussing the fact that defendant's admission was not contained in the police reports, the prosecutor asked the jury to consider

[W]hether or not the police made up the statement, and . . . I want you to consider . . . that we're talking about veterans. These are not rookies. We're not talking about cops that just started on the job that particular day.

We had two sergeants testifying. I think they both said they had about 20 years of experience on the job. We're not talking about people who are just . . . gung ho . . . and get whoever they can . . . . These people are trying to do what they believe is right.

Turning her attention to the fact that only defendant, and not the two women, were arrested, the prosecutor reminded the jury that Rivera testified that "the reason they arrested the defendant and nobody else was because arresting the defendant was consistent with their views of the case."*fn5 As to defendant's oral admission, the prosecutor said,

[F]rankly, I would not want to be here before you trying to defend cops who had gone in and after someone makes a comment like that would go in and arrest everybody. That is not how it should have been done.

And that's why you have people who are veterans . . . listening to what was said and doing what they believed to be the right thing . . . .

The prosecutor turned her attention to the drugs found in the car and the legal concept of constructive possession. Despite that fact that defendant denied any knowledge as to any of the drugs, but admitted owning the vehicle, the prosecutor told the jury: "[W]e have the defendant admitting that he knew that there was [sic] drugs in the car." She followed, "There was nothing that was said that . . . someone else uses the car. There was nothing like that."

Reaching the conclusion of her summation, the prosecutor again reminded the jury of the fact that the officers "ha[d] made . . . hundreds of arrests since" they arrested defendant and wrote their reports. Discussing the omission of defendant's admission in any of the reports, she said,

And the thing is if they're going to lie about it, if they're going to come up with an elaborate concoction, they could have done it way back then.

They could've said . . . why don't we just add this in here just to . . . really get him, put that into your . . . report.

They didn't do it. If they were those kind of cops, they would have arrested his wife and daughter, too. They wouldn't care.

They're not those kind of cops.

We first consider the arguments defendant raises regarding the prosecutor's summation, which he contends urged the jury to find the police officers "inherently credible," personally vouched for their credibility, and implied that defendant had a "burden of proof" at trial. These arguments require us to once again tread on familiar ground. As Justice Coleman noted ten years ago in State v. Frost, 158 N.J. 76, 88 (1999), "'instances of prosecutorial excesses . . . seem to come to [our appellate courts] with numbing frequency.'" (quoting State v. Watson, 224 N.J. Super. 354, 362 (App. Div.), certif. denied, 111 N.J. 620, cert. denied, 488 U.S. 983, 109 S.Ct. 535, 102 L.Ed. 2d 566 (1998)).

We start with basic principles. Prosecutors are permitted to deliver vigorous closing statements. State v. Timmendequas, 161 N.J. 515, 587 (1999). "'A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall. He is entitled to be forceful and graphic in his summation to the jury, so long as he confines himself to fair comments on the evidence presented.'" Ibid. (quoting State v. DiPaglia, 64 N.J. 288, 305 (1974) (Clifford, J., dissenting)). "[T]he primary duty of a prosecutor is not to obtain convictions but to see that justice is done." Timmendequas, supra, 161 N.J. at 587 (citing State v. Ramseur, 106 N.J. 123, 320 (1987)).

Prosecutorial misconduct can be grounds for reversal "when it is 'so egregious as to deprive defendant of a fair trial.'"

State v. Echols, 199 N.J. 344, 360 (2009) (quoting State v. Wakefield, 190 N.J. 397, 437 (2007)). When considering whether the conduct was "'so egregious'" the reviewing court "must 'consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred.'" Echols, supra, 199 N.J. at 360 (quoting Timmendequas, supra, 161 N.J. at 575). "'Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made.'" Echols, supra, 199 N.J. at 360 (quoting Timmendequas, supra, 161 N.J. at 576) (citation omitted).

While granted "considerable leeway in closing arguments[,]" Frost, supra, 158 N.J. at 82, "it is improper for a prosecutor to contend in summation that the police had no motive to lie." State v. R.B., 183 N.J. 308, 331-32 (2005). That basic principle has been reflected in an unbroken line of cases that stretches back more than forty years. See Frost, supra, 158 N.J. at 85 (noting that a "prosecutor's suggestion that the police officers would not lie because of the 'magnitude' of charges that could be brought against them" was improper); State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994) (noting it was improper for prosecutor to state that the "police had no motive to lie"); State v. Staples, 263 N.J. Super. 602, 606-07 (App. Div. 1993) (noting the impropriety of suggesting the police witnesses were believable because of their status as policeman and because an acquittal could significantly jeopardize their professional careers); State v. Engel, 249 N.J. Super. 336, 379 (App. Div.) (noting that it was improper for the prosecutor to state that the investigators were "'good men who leave their family [and] work day and night'" and would not "'jeopardize their careers'" over defendants), certif. denied, 130 N.J. 393 (1991) (quoting United States v. Young, 470 U.S. 1,12, 105 S.Ct. 1038, 1044-1045, 84 L.Ed. 2d 1, 10-11); State v. West, 145 N.J. Super. 226, 233 (App. Div. 1976) (reversing and remanding for trial where the prosecutor stated that "the police officer's career would be finished in a minute" if he lied), certif. denied, 73 N.J. 67 (1977); State v. Jones, 104 N.J. Super. 57, 65 (App. Div. 1968) (holding it improper to imply that police testimony should be accepted "not because of its believability but because the witnesses [a]re policemen"), certif. denied, 53 N.J. 354 (1969).

A related limitation prohibits the prosecutor from vouching for the credibility of any witness. See State v. Bradshaw, 195 N.J. 493, 510 (2008) ("Nor should the prosecutor vouch for the credibility of a witness."); accord State v. Walden, 370 N.J. Super. 549, 560 (App. Div.) (noting that as to comments on a witness's credibility "[a] prosecutor may . . . not personally vouch for the witness") (citations omitted), certif. denied, 182 N.J. 148 (2004); State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997); State v. Jenkins, 299 N.J. Super. 61, 70 (App. Div. 1997) ("It is clearly improper for a prosecutor to give a jury his or her personal opinion regarding a case."); Staples, supra, 263 N.J. Super. at 605 ("A prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness's testimony."). "[A]s representatives of the State, [such comments] have a tendency to be given great weight by jurors[,]" Walden, supra, 370 N.J. Super. at 558, permitting the jury to view the prosecutor as a "crime expert" and adopt the prosecutor's opinion over its own independent judgment. Jenkins, supra, 299 N.J. Super. at 70 (citing State v. Thornton, 38 N.J. 380, 398 (1962), cert. denied, 374 U.S. 816, 83 S.Ct. 1710, 10 L.Ed. 2d 1039 (1963)).

In this case, the comments of the prosecutor were highly improper. She repeatedly told the jury that police officers had "no reason to lie and to go after this particular defendant," and that they "ha[d] no reason to come in here and tell you anything that isn't the truth," "perjure themselves and . . . say things to you that are not true and could impact on their reputations." She emphasized that the officers were "veterans . . . not rookies" and that two of them "had about 20 years experience on the job." They were police officers "trying to do what they believe[d] [wa]s right."

Attempting to refute the defense, i.e., that defendant did not live at the apartment and that the contraband may have been someone else's, perhaps his girlfriend's or daughter's, the prosecutor justified the arrest of only defendant by claiming it was the "right" thing to do, and the officers were "not those kind [sic] of cops." She repeatedly told the jury that arresting only defendant was "consistent" with the officers' evaluation of the evidence.

While defense counsel attacked the officers' credibility, and response to such attacks is generally permissible, State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000), the prosecutor's comments in this case far exceeded what was legitimate rebuttal. Instead, she urged the jury to believe these "veteran" officers because they had no motive to lie, and no reason to "perjure themselves" or ruin "their reputations."

Since there were no objections to any of these comments, we would routinely review them under the plain error standard. See R. 2:10-2. The Court has recently held that standing alone, such comments do not amount to plain error. See R.B., supra, 183 N.J. at 331-32 n. 4 (cautioning against an overbroad reading of Frost, and noting that standing alone, comments regarding officers lacking any motive to lie do not amount to reversible error). However, in this case, the objectionable comments must be reviewed as part of the "much larger mosaic" of other improprieties that defendant has raised on appeal.*fn6 See Ibid.

In her opening statement, the prosecutor told the jury that before the police arrived at 690 South 20th Street on the day in question, they had "obtained a search warrant from Judge Joseph Isabella who is a Judge here in Essex County." Rivera, the State's first witness, began his testimony by telling the jury he was there to execute "a Court authorized search warrant." Almost every officer who testified thereafter indicated the same thing. Citing our decision in State v. Alvarez, 318 N.J. Super. 137, 147-48 (App. Div. 1999), defendant argues that the jury may have inferred that a neutral arbiter issuing the search warrant considered evidence not presented to the jury, and, thus, received "sufficient independent proof" of defendant's guilt.

"[A] properly instructed jury will not presume guilt based on the issuance of a search warrant." State v. Marshall, 148 N.J. 89, 240, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). The fact that a search warrant was issued may "establish that the police acted properly." Ibid. Thus, as long as the existence of the warrant does not have the potential to mislead the jury, it is not improper to refer to it. Ibid.

Likewise, in State v. McDonough, 337 N.J. Super. 27, 34 (App. Div.), certif. denied, 169 N.J. 605 (2001), we found that "the passing reference" to an arrest warrant "did not imply that the State had presented any evidence to the issuing judge that was not also heard by the jury." We noted that the jury in that case "heard extensive evidence concerning the evidence obtained in the lengthy police investigation that preceded issuance of the warrants." Ibid. Therefore, we held that Marshall applied; "the jury does not have to be 'shielded from knowledge that . . . warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt.'" Id. at 35 (quoting Marshall, supra, 148 N.J. at 240); see also State v. Williams, 404 N.J. Super. 147, 168-69 (App. Div. 2008) ("[T]he reference for the warrant was fleeting and was at best harmless error when considering the overwhelming forensic proof against defendant.").

However, in State v. Milton, 255 N.J. Super. 514, 519 (App. Div. 1992), we considered the prejudicial effect that resulted in the State's introduction of evidence that the officers possessed two warrants, a no-knock search warrant, as was the case here, and a search warrant for the defendant's person. In its opening statement, the State made reference to the warrant for the defendant's person, and also elicited testimony from its investigator about it. Ibid. Defense counsel objected and "moved for a mistrial . . . ." Ibid. We concluded that the State's reference to the search warrant for the defendant's person supplied "[t]he natural inference . . . that sufficient independent proof had been presented to a neutral judge to believe that [the] defendant would be found in possession of drugs." Id. at 520. Thus, defendant was denied a fair trial. Id. at 520-21.

Two years after Marshall was decided, we decided Alvarez, where the defendant was arrested after the execution of a search warrant. Alvarez, supra, 318 N.J. Super. at 140-141. There, in addition to a search warrant, the police possessed an arrest warrant issued by the parole board. Id. at 141. The judge gave a limiting instruction, eliminating any reference to the parole board arrest warrant, but he permitted the State to mention that the arrest warrant was the reason for the police presence at the defendant's residence. Ibid. We held that "the repetitive references to the arrest warrant for [the] defendant" amounted to plain error because they suggested that a judicial officer believed there was evidence of criminality at the defendant's residence. Id. at 148.

We make the following observations about this case that lead us to conclude that the facts presented more closely align with our holdings in Milton and Alvarez than the other cases cited. First, there was never any limiting jury instruction asked for, or provided, regarding the references to the "court ordered" search warrant for the premises. Second, the trial commenced with a reference to the warrant, which was repeated by the State's first witness and by nearly every State's witness thereafter. Thus, references to the search warrant were neither fleeting, nor was the jury ever told of the limited probative value of the evidence.

Third, we consider these references in light of the other impermissible evidence that the prosecutor adduced from Holloway regarding his experiences at the same address. The State's expert witness was permitted to describe his narcotic investigative activity, including undercover purchases and subsequent surveillances, involving 690 South 20th Street and the immediate area. The prosecutor specifically referenced this aspect of Holloway's testimony in her summation.

"[A] police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." State v. Branch, 182 N.J. 338, 351 (2005). We have specifically noted that such evidence in the context of police expert testimony involving drug distribution is improper. See State v. Boston, 380 N.J. Super. 487, 492 (App. Div. 2005) (describing testimony about the nature of the area and the officer's prior experience in making arrests at that location in the context of improper expert opinion in drug trafficking case), certif. denied, 186 N.J. 243 (2006).*fn7

Lastly, the prosecutor's summation specifically sought to explain why only defendant was arrested by repeating that such a decision was "consistent" with the officers' view of the evidence in the case. We do not think it unlikely that the jury could infer that these "veteran" officers, responding to a location where prior drug offenses had occurred, pre-armed with a judicially-issued no-knock search warrant, were similarly pre-armed with information, never adduced as evidence at trial, that defendant was the one likely person who might be found at the apartment in possession of the contraband, and the only person guilty of the offenses.*fn8 Seen in this light, the jury may have improperly disregarded the fact that defendant's verbal admission was not contained in any police report of the incident.

We turn then to defendant's argument regarding the impropriety of Holloway's expert testimony. Again we tread on well-worn ground. Expert testimony is admissible if "(1) the intended testimony concerns a subject matter beyond the ken of an average juror; (2) the field is at a state of the art such that an expert's testimony would be reliable; and (3) the witness has expertise sufficient to offer the intended testimony." State v. Reeds, 197 N.J. 280, 290 (2009) (citing State v. Jenewicz, 193 N.J. 440, 454 (2008); N.J.R.E. 702). "[E]xpert testimony about the methods employed by drug traffickers to package and to distribute illegal drugs . . . [is] permissible under Rule 702." Reeds, supra, 197 N.J. at 290. The testimony is "permissible to assist the jury in understanding the evidence . . . ." State v. Singleton, 326 N.J. Super. 351, 354 (App. Div. 1999); State v. Odom, 116 N.J. 65, 76 (1989) (noting that expert testimony aids a jury's understanding and may be necessary "to explain the significance of the properties, packaging, and value of illegal drugs"). An expert can respond "to a hypothetical even when such testimony 'embraces an ultimate issue to be decided by the trier of fact,' N.J.R.E 704, so long as the probative value of the . . . testimony is not substantially outweighed by the risk of causing undue prejudice, N.J.R.E. 403." Reeds, supra, 197 N.J. at 292.

Such expert testimony, however, "is not without boundaries." Id. at 293. An expert cannot directly opine about a defendant's guilt, Odom, supra, 116 N.J. at 77; nor may the State "use . . . a narcotics expert to tell a jury that which is obvious." State v. Nesbitt, 185 N.J. 504, 514 (2006); see State v. Baskerville, 324 N.J. Super. 245, 263 (App. Div. 1999) (noting that the State "was not entitled . . . to an enhanced proof opportunity, through expert opinion on the ultimate question, to salvage a potentially insufficient case"), certif. denied, 162 N.J. 10 (2000).

"Trial courts are expected to perform a gatekeeper role in determining whether there exists a reasonable need for an expert's testimony, and what the parameters of that testimony may be." Nesbitt, supra, 185 N.J. at 514. "The failure of a defendant to object to expert testimony does not relieve the trial court of its gatekeeper responsibilities . . . ." Id. at 515.

Defendant argues Holloway's testimony was improper because it involved opinions that were not beyond the average juror's understanding, because it impermissibly "bolster[ed]" the State's case, and because the hypothetical posed "was tainted by its essential congruence with the factual issue the jury was called upon to resolve." Boston, supra, 380 N.J. Super. at 493. We cannot agree that Holloway's testimony was impermissible in all respects, or that the hypothetical question posed violated the parameters defined by Odom and its progeny.

Holloway provided the jury with his expert opinion regarding the preferred packaging of drugs, their street value, the fact that the quantity was indicative of distribution and not personal use, that the smaller quantity of drugs found in defendant's car evidenced street-level distribution, and the routine nexus between firearms and drug trafficking. Such opinions have been recognized as properly within the realm of expert testimony. See Odom, supra, 116 N.J. at 81-82. Although the hypothetical essentially repeated the evidence already before the jury, it was limited to the facts adduced at trial.

See State v. Summers, 176 N.J. 306, 314 (2003) (citing Odom, supra, 116 N.J. at 80-82). It did not provide the jury with an impermissible legal conclusion. Reeds, supra, 197 N.J. at 295.

That being said, we seriously question whether other aspects of Holloway's testimony involved opinions about facts that were beyond the ken of average jurors, or reasonable inferences that the average juror could reach without any expert testimony. For example, that the drugs found in the toilet were the remnants of an ill-fated attempt to dispose of evidence was fairly obvious to the average person, and an expert was not needed to explain that to the jury. Holloway's suggestion that other drugs had already been disposed of by defendant, implying he originally possessed more than were found, was unsupported by the record. The expert testimony was further tainted by the references Holloway made to prior and subsequent drug transactions and investigations at the premises.

The State's case was formidable; in our opinion, that only demonstrates how unlikely it was that the jury could not have determined on its own without expert testimony that an individual possessing over seven-hundred bags of heroin intended to distribute some or most of them. The increasing trend in the preponderance of narcotics prosecutions of relying upon expert testimony to explain obvious facts to the jury, and draw implicit legal conclusions for it, is a worrisome development.

While we would not reverse defendant's conviction based solely upon the admission of improper expert testimony, or solely upon the impropriety of the repeated references to the search warrant, or solely upon the impropriety of the prosecutor's comments, taken collectively, these errors raise a reasonable doubt in our minds that the trial was conducted fairly. State v. Orrechio, 16 N.J. 125, 129 (1954). We therefore are compelled to reverse.

III.

We comment on the balance of defendant's arguments in order to provide guidance if the matter is tried again.

Defendant contends that the judge mistakenly abused her discretion in permitting evidence of his 1989 conviction for aggravated manslaughter for impeachment purposes pursuant to N.J.R.E. 609. Defendant argued the conviction was remote. The State contended that defendant was sentenced to twenty years imprisonment, with a ten-year period of parole ineligibility, and that the instant offense was committed within the term of the original sentence. The judge determined the conviction was for a "significant crime," and permitted the evidence to be admitted.

When defendant commenced his testimony, defense counsel asked about his prior conviction. Defendant responded, "I took a plea bargain . . . in that case, a plea bargain that shouldn't have been accepted because I didn't admit to the crime, so the plea should have never been . . . accepted." The judge excused the jury, and engaged in a lengthy discussion with defendant. She instructed him that his response should be limited to the fact that he pled guilty to first-degree aggravated manslaughter, chiding defendant that "you're not going to now sit here and say you're not guilty [of] th[at] charge[]." She told defendant that any answer "beyond the scope" of her ruling would "subject [him] to a contempt hearing."

After first indicating that he no longer wished to continue testifying before the jury, defendant was given the opportunity to confer with his attorney, and resumed his testimony. He now argues that the judge improperly "restrict[ed] his testimony . . . with the threat of contempt and incarceration . . . ." We find both aspects of defendant's argument unavailing.

"Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." State v. Sands, 76 N.J. 127, 144 (1978). Evidence of a prior conviction is inadmissible if the conviction is remote. N.J.R.E. 609. "Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will . . . be a significant factor. Serious crimes . . . should be considered as having a weightier effect" and ordinarily mitigate in favor of admission. Ibid. We review the trial judge's decision under an abuse of discretion standard. Sands, supra, 76 N.J. at 144.

Defendant was convicted of first-degree manslaughter which is obviously a "serious" crime. The initial sentence of twenty-years had not expired when the crimes he was now charged with occurred. We find that the judge did not mistakenly exercise her discretion in admitting this evidence for impeachment purposes.

Nor do we think the judge erred in instructing defendant that any testimony regarding his prior conviction was limited. The State correctly argues that when a person knowingly enters a guilty plea, that person has waived his right to contest the admissibility of his plea. See State v. Knight, 183 N.J. 449, 471 (2005). Defendant was not entitled to explain away his conviction by claiming some legal infirmity at the time he pled guilty. The judge properly warned him, outside the presence of the jury, how he should continue when the jury returned.

After the jury returned its guilty verdicts in the first trial, trial commenced on the second indictment that charged defendant with violating N.J.S.A. 2C:39-7. While the judge and counsel were discussing the procedure to be employed outside the presence of the jury, defendant was apparently placed in handcuffs.

Although defense counsel asked if that was necessary, he did not object when the judge, yielding to the request of a sheriff's officer present in court, concluded it was necessary for "safety reasons." The jury was brought back into the courtroom and the trial began.

After brief opening statements, no additional evidence was adduced except for proof of defendant's prior convictions.*fn9 The entire trial, including the charge, consists of seven pages of transcript. Defendant contends it was plain error for the jury to observe him handcuffed during the second trial.

Generally, courts should refrain from placing a defendant in restraints "because the jury is likely to consider such a defendant as being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of officers." State v. Artwell, 177 N.J. 526, 534 (2003) (quotations omitted). To ensure effective appellate review, a trial court should conduct a hearing outside the presence of the jury and place on the record its reasons for taking such action. Id. at 537-38. In addition, the judge "must 'instruct the jury in the clearest and most emphatic terms that it give such restraints no consideration whatever in assessing the proofs and determining guilt.'" Id. at 538 (quoting State v. Roberts, 86 N.J. Super. 159, 168 (App. Div. 1965)).

Although we doubt defendant was prejudiced by the judge's decision since the same jury that had just convicted him of very serious crimes was now considering his fate on the second indictment, the procedure should not have been employed unless the judge proceeded in the manner required by Artwell. If the issue arises again, a complete record must be made, and if the judge, in the sound exercise of her discretion finds the restraint to be necessary, she must appropriately instruct the jury. In this case, although indicating she intended to do so, the charge contained no such instruction.

When the jury reached its verdict in the second trial, defendant refused to leave the holding cell and appear in court. The judge questioned defense counsel, who indicated that "defendant does not wish to come out to hear this verdict, and so I'm waiving his appearance." The judge responded, "We'll waive his appearance." She proceeded to receive the jury's verdict without defendant being present. Defendant now argues it was improper for the court to accept his counsel's representations as to the waiver of his right to be present at trial, and the judge should have made personal inquiry of him before proceeding.

A defendant can waive his right to be present at trial.

R. 3:16(b). "A waiver may be found . . . from . . . the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after . . . trial has commenced in defendant's presence." R. 3:16(b)(2). We think it obvious that defendant voluntarily waived his right to be present for the verdict, and we find no error in this regard.

In light of our decision, we do not address defendant's sentencing arguments.

Reversed and remanded for a new trial.


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