On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-05-1451.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2010 - Decided Before Judges Baxter and Koblitz.
Defendant Anthony T. Ross appeals from his March 18, 2009 conviction on charges of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); two counts of third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(2) and (3) (counts two and three); and third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 (count four). The jury acquitted him of count five, second-degree conspiracy to possess CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(b)(2). After merging counts one, two and three with count four, the judge sentenced defendant to an eight-year term of imprisonment, subject to a four-year period of parole ineligibility. The judge imposed an extended term sentence pursuant to N.J.S.A. 2C:43-6(f) because defendant had a prior drug distribution conviction.
We do not agree with defendant's contention that the testimony of the State's drug distribution expert exceeded the boundaries set by the Supreme Court in State v. Odom, 116 N.J. 65 (1989). We do, however, agree with defendant's argument that the prosecutor's reference in summation to defendant's "aliases" and her cross-examination concerning defendant's use of three other last names was unfairly prejudicial and denied him a fair trial. We reverse defendant's conviction and remand for a new trial.
On February 9, 2008, Trooper Thomas Rawls and Trooper Ryan Plantier of the New Jersey State Police were patrolling in the area of Chestnut and Marion Streets in the City of Camden in a marked patrol vehicle when they observed what they believed to be a hand-to-hand drug transaction between defendant and a female buyer, later identified as Alethia Smith. After making those observations, the troopers stopped, exited their marked vehicle and identified themselves as State Police. Two males, Ronald Hand and Vincent Lewis, as well as Ms. Smith, all turned and walked away. Defendant, in contrast, walked into an abandoned home on the corner and was quickly followed inside by Trooper Rawls, who ordered him to stop. Defendant immediately dropped an item to the floor of the abandoned house, which Rawls retrieved, and determined was heroin. Rawls also observed a digital scale containing suspected CDS residue as well as materials typically used to package crack cocaine.
Rawls called for a drug-sniffing K-9 unit to respond to the scene. Upon entry into the abandoned home, the dog quickly alerted to two areas, finding sixty bags of crack cocaine in a black cylindrical container and a total of 325 bags of heroin under a broken bookcase. Each bag was stamped with the same distinctive marking.
Investigator Michael Sutley of the Camden County Prosecutor's Office was qualified at trial as an expert in the field of street-level drug distribution. After explaining the role of each of the participants in a "drug set," namely the money handler, the "lookout" and the person who actually hands the CDS to the buyer, and after explaining the function of a "stash location," Sutley answered a series of hypothetical questions. In particular, Sutley was asked to assume that a female named "Jane" was found to have a pipe and one bag of CDS on her person, while the male, "Mike," was observed dropping several bags of CDS on the floor of an abandoned house. Sutley was then asked to describe the roles of "Jane" and "Mike," to which he responded buyer and seller, respectively. Sutley also opined that one bag of CDS is consistent with personal use whereas a larger quantity, when stashed in an abandoned house and stamped with a distinctive marking, was consistent with drug distribution.
Joanna Perry testified that she had been living with defendant for four years, explaining that on February 9, 2008 she gave defendant approximately $800 to $850 in cash to buy a bedroom furniture set for her children. She explained that the money belonged to her, and she had given the cash to defendant with the expectation that he would use it to purchase the furniture.
Before the attorneys presented their opening statements, the judge had discussed with counsel the procedure he intended to follow when reading the indictment to the jury during his preliminary instructions. In particular, the judge commented that although defendant had been indicted under the name Anthony
T. Ross, which was the name defendant provided to police at the time of his arrest, further investigation had revealed that defendant's true name was Anthony Smith. The judge told the lawyers and defendant:
I'm going to tell the jury this is State v. Anthony Ross, now known as Anthony Smith. At the time the original indictment was issued, all parties believed his lawful name was Ross. We've now learned his name is Smith. The two can be used interchangeably, something innocuous like that.
Defense counsel stated he had no objection to that procedure, but added that he would object to any characterization of the name Ross as an "alias."
At that point, the prosecutor asked the judge whether she would be permitted to use the phrase "also known as," to which the judge said "you can use that." He reminded the prosecutor to refrain from using the word "alias." The prosecutor assured the judge and defense counsel that she would simply refer to defendant in her questions as "the defendant" and would not "harp on it."
Despite the judge's stated intention to advise the jury that the names "Ross" and "Smith" were interchangeable, the judge made no reference to defendant's surname, or to his use of two different names, in the preliminary instructions he provided to the jury. Neither side reminded the judge to issue such an instruction.
In her opening, without any objection from defendant, the prosecutor told the jury that the case they were about to hear was "the State of New Jersey v. Anthony Smith, who is also known as Anthony Ross . . . and the defendant in this case, Anthony Ross, Anthony Smith, is charged with five offenses."
During her direct examination of Trooper Rawls, the prosecutor asked him whether the individual he observed in the hand-to-hand drug transaction on February 9, 2008 was present in the courtroom. Rawls pointed to defendant. The following colloquy then occurred:
[PROSECUTOR]: And at the time when you learned the identity of the individual that you've now identified as the defendant, Anthony Smith, did you receive a name as to that individual? [RAWLS]: Yes. The name we received was Anthony Ross.
[PROSECUTOR]: And how did you receive that name? [RAWLS]: Through speaking with the subject and through [a] check ...