December 9, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY T. ROSS, A/K/A ANTHONY BROWN, ANTHONY JONES,
ANTHONY SMITH, MARK ROSS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 of the subject's credentials.
The subject of defendant's last name was also addressed when defendant was asked by his attorney on direct examination whether he had used the name Anthony Ross at the time of his arrest. Defendant answered:
I never used the name Anthony Ross, but when I had gotten arrested [sic] that day, I had gave [sic] the officer my name, Anthony Smith, but when we had did some files [sic] and did some paperwork, my background came up, he had came across [sic] Anthony Ross. . . . And I had told him several times my name is Anthony Smith, but he said have I used it, Anthony Ross, in the past, and I told him yes, so he said, well, then, we going to charge you [sic] as Anthony Ross at this time.
Next, defendant's attorney asked defendant whether he had had "some prior brushes with the law," to which defendant answered "yes." Defense counsel asked these questions in light of the judge's pretrial ruling pursuant to State v. Sands, 76 N.J. 127, 144-45 (1978), and N.J.R.E. 609, that if defendant took the stand, the State would be permitted to impeach his credibility with two of his four prior convictions. Defendant's testimony proceeded with his explanation that the $842 found by police in his pockets was the money his girlfriend had given him to buy furniture for her three children and that he was innocently walking near the corner of Chestnut and Marion Streets toward his friend's truck when he was stopped and arrested by police for no reason. He insisted that he had not sold CDS to Smith or dropped packages of heroin to the floor of the abandoned house.
On cross-examination, the prosecutor showed defendant the "Contact Sheet" prepared by the Camden County Prosecutor's Office after his arrest. She then asked him whether the subject's last name was listed as "Smith" with a notation "a/k/a Ross" in parentheses next to it, to which defendant answered "yes." Next, the prosecutor asked defendant whether he had ever used the name "Ross:"
Q. And you stated on direct examination that your real name is Anthony Smith, correct?
Q. And you also stated that in the past you've given the last name of Ross?
Q. So, you have given the last name of Ross before.
A. In my past.
Q. But you're saying that you didn't give the last name of Ross on February the 9th, 2008, correct?
A. Not during that time.
Later on, she asked additional questions, this time introducing the subject of names other than Anthony Ross and Anthony Smith. The following questioning occurred:
Q. Have you ever given the name Mark
A. Mark Ross? Probably in my past, yes.
Q. How about Anthony Lindsay?
A. Not that I'm aware of.
Q. Not that you're aware of. Does that mean it's possible? Correct?
Q. And how about the name Anthony Brown? Have you given that name in the past?
A. I believe I did in the past.
Q. And you already told us that you've given the name Anthony Ross in the past as well, correct?
With that, the prosecutor concluded her cross-examination.
Defendant did not interpose any objection to the cross-examination concerning his use of the additional names Mark Ross, Anthony Lindsay and Anthony Brown. At no time did defendant ask the judge to issue a curative instruction concerning his use of various names, nor did the judge issue such an instruction sua sponte.
In her summation, the prosecutor forcefully argued to the jury that defendant's use of an "alias" and his use of several names provided a legitimate basis for the jury to deem his testimony unworthy of belief. The prosecutor argued:
The State submits that the facts as testified to by the Troopers [are] the only thing that makes sense and the story conveyed to you by the defendant, who has two prior third-degree felony convictions and who admitted to you using aliases of Anthony Ross, Mark Ross, Anthony Lindsay and Anthony Brown on several different occasions is not credible.
Ladies and gentlemen, the defendant expects you to believe, according to his testimony, that he did not give the name Anthony Ross in this case and that he did not give an incorrect address when all of the other identifiers such as age, height, weight, and even the tattoo were correct. [(Emphasis added).]
Defendant did not object to the portion of the prosecutor's summation that we have emphasized, nor did defendant ask the judge to issue a curative instruction. The judge's final instructions to the jury did not instruct them that they were prohibited from drawing an inference of guilt from defendant's use of different surnames.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED IN ALLOWING THE EXPERT TO TESTIFY AND ANSWER HYPOTHETICAL QUESTIONS BECAUSE THE TESTIMONY DID NOT ASSIST THE JURY IN UNDERSTANDING THE FACTS AND WAS UNDULY PREJUDICIAL.
II. DEFENDANT WAS DENIED A FAIR TRIAL BY THE DISCLOSURE OF AN ALSO KNOWN AS NAME.
III. DURING HER SUMMATION, THE PROSECUTOR COMMITTED MISCONDUCT AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE 14TH AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (not raised below).
IV. THE EXTENDED TERM SENTENCE IMPOSED BY THE TRIAL COURT WAS UNDULY EXCESSIVE.
In Point I, defendant maintains that the prosecutor's questions to Sutley regarding the purported hand-to-hand transaction witnessed by the State Troopers "went to the ultimate issue . . . and took this issue away from the trier of fact," thereby usurping the jury's responsibility of determining whether the purported hand-to-hand transaction between the person identified as defendant and the female, was, in fact, a CDS transaction. Defendant also maintains that Sutley "presented an opinion that was not supported by the testimony."
In a drug distribution trial, the State is permitted to present the testimony of an expert to describe the methods used by drug traffickers to package and distribute illegal drugs because such information is a specialized subject matter that is beyond the everyday experience of the average juror. Odom, supra, 116 N.J. at 76. Moreover, the State may pose a hypothetical question to a narcotics expert that resembles the facts presented at trial, even if the hypothetical question is "expressed in terms of ultimate issues of fact, namely, whether drugs were possessed with the intent to distribute . . . ." Id. at 81. Although an expert is permitted to testify that the individual described in the hypothetical was involved in the sale of CDS, the expert is prohibited from expressing an opinion that the defendant is guilty of the crime charged. Ibid.
"[A]s long as the expert does not express his opinion of defendant's guilt, but simply characterizes defendant's conduct based on the facts in evidence in light of his specialized knowledge, the opinion is not objectionable even though it embraces ultimate issues that the jury must decide." Id. at 79. Thus, an expert's statement that the drugs possessed were intended for distribution does not "impermissibly constitute" an opinion that the "defendant was guilty of the crime charged." Id. at 81.
Viewing Sutley's testimony in light of the guidelines articulated in Odom, we are satisfied that defendant's arguments in Point I are without merit. Sutley was never asked his opinion of defendant's guilt, but instead confined his opinion to a statement that "Mike" was the primary seller, that "Jane" was the buyer, and that the abandoned home was being used as a stash location. Although his opinion embraced the ultimate issue of whether the CDS was possessed for distribution, such an opinion is permissible. Ibid. We reject the claim defendant advances in Point I.
In Points II and III, which we consider jointly, defendant argues that the disclosure of an "also known as" name and the prosecutor's reference to defendant's "aliases" in her summation denied him a fair trial.
Absent a special showing of relevance, the State is prohibited from making reference to a defendant's alias. State v. Salaam, 225 N.J. Super. 66, 72 (App. Div.), certif. denied, 111 N.J. 609 (1988). "The principal objection to the use of an alias in a criminal proceeding is that an alias implies that the defendant belongs to the criminal class and thereby prejudices the jury." Id. at 73 (internal quotation marks and citation omitted). However, not every stray reference to an irrelevant alias will be grounds for reversal. Ibid. Only where such names have been "intentionally offered as indicia of guilt" will reversal be required. Ibid. Indeed, "the prosecutor's infraction must be clear and unmistakable and must substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his defense." State v. Blanks, 190 N.J. Super. 269, 279 (App. Div. 1983) (citation omitted).
The State denies that the testimony it presented crossed the line established by Salaam, arguing that Rawls's testimony that he learned "Anthony Ross" was really "Anthony Smith" was necessary to link Anthony Ross, the person named in the indictment, to the proofs elicited at trial concerning Anthony Smith. We have no quarrel with that assertion. It is clear, however, that the State's references to defendant's use of the name Anthony Ross went far beyond the clarifying purpose to which the State points.
For example, there was no need for the prosecutor to question defendant about whether he had ever used the name Anthony Ross, as Rawls's testimony was more than sufficient to establish that the person named in the indictment was the same person that Rawls and Plantier observed on the day in question. Moreover, the prosecutor's cross-examination of defendant went much further afield than simply asking defendant if he had used the name Anthony Ross in the past. She proceeded to ask him whether he had ever used the name Mark Ross, whether he had ever used the name Anthony Lindsay, and whether he had ever used the name Anthony Brown. None of these questions were relevant to whether defendant possessed cocaine and heroin on February 9, 2008 with the intention of selling them. The only purpose served by the prosecutor's cross-examination on defendant's use of four other names was to tarnish defendant's credibility and to insinuate before the jury that defendant belonged to the "criminal class," which is the very practice Salaam prohibits. Salaam, supra, 225 N.J. Super. at 73.
The prejudice created by the prosecutor's improper cross-examination regarding defendant's use of four other surnames was exacerbated by her use of the word "aliases" in summation when she pointedly encouraged the jury to rely upon defendant's use of "aliases" as a basis for rejecting his testimony as unworthy of belief. In using the word "aliases" the prosecutor blatantly violated the judge's instruction at the beginning of the trial that she refrain from using that prejudicial term. As is evident from the record, her assurances to the judge that she would avoid the use of the term "alias" and would "not harp" on the issue were hollow promises indeed. The prosecutor's argument in summation that defendant was "not credible" because he had "us[ed]] aliases of Anthony Ross, Mark Ross, Anthony Lindsay and Anthony Brown on several different occasions" is precisely the type of argument the Court prohibited in Salaam, when it observed that a prosecutor is prohibited from "intentionally offer[ing] [such names] as indicia of guilt" or insinuating that the defendant is of the "criminal class." Salaam, supra, 225 N.J. Super. at 73.
We recognize that defendant did not object either to the prosecutor's cross-examination or to her remarks in summation. In the absence of an objection, we will not reverse on that ground unless the error was "clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971). Here, we must evaluate whether the prosecutor's disregard of the limits of Salaam had the clear capacity to deny defendant a fair trial.
Undoubtedly, the State's proofs were fairly strong, as defendant had in his possession a considerable amount of cash and Trooper Rawls recovered a sizable quantity of heroin that defendant dropped to the floor. We also recognize that the jury was already aware defendant had two prior convictions, which the judge told the jurors could be used in their evaluation of his credibility. Nonetheless, the jurors were made aware they were not obliged to alter their view of defendant's credibility merely because of those convictions. The prosecutor's "harping" on defendant's use of four other names no doubt increased the likelihood that defendant's prior convictions would be given damaging, and dispositive, weight in the jury's evaluation of defendant's credibility. For that reason, the error had a "clear capacity to produce an unjust result." Ibid.