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State of New Jersey v. Kelvin L. Mclean A/K/A Kevin Mclean

March 31, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KELVIN L. MCLEAN A/K/A KEVIN MCLEAN, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Hoens

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. Kelvin L. McLean a/k/a Kevin McLean (A-98-09)

Argued November 8, 2010 -- Decided March 31, 2011

HOENS, J., writing for a majority of the Court.

In this appeal the Court considers whether a police officer, who observed defendant engage in behavior that the officer believed was a narcotics transaction, should be permitted to testify about that belief pursuant to N.J.R.E. 701, the lay opinion rule.

On September 7, 2008, three groups of police officers were involved in an undercover surveillance operation in the City of Paterson. Detective Altmann and his partner were leading the surveillance by observing the street from their unmarked vehicle. According to Altmann, he saw an individual, later identified as defendant Kelvin McLean, engage in two transactions involving the exchange of small items for what appeared to be paper money. In each transaction, defendant engaged in a brief conversation with another person after which he walked into a parking lot and returned. After the first transaction, the officers changed their surveillance location to get a better view of the parking lot and observed defendant getting out of the front passenger-side door of a white Mercury Sable. After the second transaction, Altmann contacted the back-up units and told them to move in. The officers recovered a bundle of ten glassine envelopes, which later proved to contain heroin, a plastic bag in the vehicle containing crack cocaine, twenty dollars on defendant, and $384 in the vehicle, comprised entirely of bills in small denominations.

At defendant's trial, Detective Altmann was the State's first witness. It is his testimony that gives rise to the question before the Court. The prosecutor asked Altmann if he suspected "that this was a hand-to-hand drug transaction," to which defense counsel objected. During an extensive colloquy with the court outside of the jury's presence, defendant's counsel continued to argue that it was inappropriate for Altmann to offer testimony about his beliefs or his conclusion, while the prosecutor asserted that the officer could testify based on his experience that he had observed a drug transaction. As part of that debate, the prosecutor argued that N.J.R.E. 701, which governs lay opinion testimony, applied and that therefore the officer should be permitted to testify about his belief that he had seen a drug transaction. The court agreed with the prosecutor, overruling defendant's objection. In responding to the prosecutor's next question, the detective referred to defendant by name. Defense counsel again objected and moved for a mistrial, arguing that the use of defendant's name when responding to a hypothetical violated strict limitations on expert testimony established by this Court in State v. Odom, 116 N.J. 65 (1989) and State v. Summers, 176 N.J. 306 (2003). The court disagreed, reasoning that the question was not a hypothetical and that it was not posed to an expert, and concluding that Odom and Summers were therefore inapposite. Again relying on N.J.R.E. 701, the court denied defendant's motion for a mistrial.

Defendant testified on his own behalf. He admitted that the drugs in the car were his, but that they were for his personal use and not for sale. He further testified that the cash found on his person and in the car was a combination of money his aunt had given him and his winnings in a dice game. After deliberations, the jury found defendant guilty of third-degree possession of a controlled dangerous substance (cocaine), third-degree possession of a controlled dangerous substance (heroin), third-degree possession of a controlled dangerous substance (heroin) with intent to distribute, and third-degree possession of a controlled dangerous substance (heroin) with intent to distribute within 1000 feet of a school property.

Before the Appellate Division, defendant argued, in relevant part, that because Detective Altmann was testifying as a fact witness, he "impermissibly intruded on the jury's fact-finding role by expressing an opinion on guilt." The panel concluded that Altmann's testimony properly fit within the scope of the lay opinion rule because it was "based upon his observations, which were a rational basis for his conclusion that drug transactions had occurred." Although relying on the lay opinion rule, the panel also concluded that Altmann's training and knowledge as a police officer permitted him to characterize the activities that he saw as drug transactions. The Appellate Division therefore rejected defendant's argument that the officer's testimony impermissibly invaded the province of the jury and affirmed his conviction and sentence.

The Supreme Court granted defendant's petition for certification to consider whether Altmann's testimony was a permissible lay opinion.

HELD: The opinion offered by the officer does not meet the requirements needed to qualify it as a lay opinion and permitting the officer to testify about his opinion invaded the fact-finding province of the jury.

1. The familiar standards governing expert opinion testimony are found in three separate rules. See N.J.R.E. 702, 703, 705. An expert is one who is qualified "by knowledge, skill, experience, training, or education" and who is therefore permitted to offer testimony in the form of an opinion that "will assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702. Experts, unlike other witnesses, are permitted to rely on information that would otherwise be hearsay, and to present it to the jury, if others in their field of expertise reasonably and customarily do so. N.J.R.E. 703; see N.J.R.E. 705 (governing disclosure by experts and manner of questioning experts). The Court has held, in its seminal decision, that because expert opinions in narcotics prosecutions are governed by N.J.R.E. 702, such testimony is limited to "relevant subject[s] that [are] beyond the understanding of the average person of ordinary experience, education, and knowledge," State v. Odom, supra, 116 N.J. at 71. Expert testimony is not admissible if the transactions at issue occurred in a straightforward manner. Moreover, experts may not, in the guise of offering opinions, usurp the jury's function by, for example, opining about defendant's guilt or innocence or about the credibility of parties or witnesses. Unless confined to their proper role, expert opinions may present the risk of undue prejudice to defendants. As for the use of hypothetical questions, although permissible, their use is not unbounded. The Court has imposed a number of safeguards, including that defendant's name not be included in the question or answer and that the judge should instruct the jury that they are not bound by the expert's opinion because the decision about guilt is theirs alone. (Pp. 11-21)

2. Lay opinion testimony can only be admitted if it falls within the narrow bounds of testimony that is based on the perception of the witness and that will assist the jury in performing its functions either by helping to explain the witness's testimony or by shedding light on the determination of a disputed factual issue. Perception rests on the acquisition of knowledge through use of one's sense of touch, taste, sight, smell or hearing. Although our appellate court, in explaining lay opinion testimony, has referred as well to the officer's training and experience, the analysis of admissibility has been, as it must be, firmly rooted in the personal observations and perceptions of the lay witness in the traditional meaning of Rule 701. There are, however, limits that have traditionally been imposed on lay opinion testimony. For example, unlike expert opinions, lay opinion testimony is limited to what was directly perceived by the witness and may not rest on otherwise inadmissible hearsay. (Pp. 21-27)

3. The Court has established the boundary line that separates factual testimony by police officers from permissible expert opinion testimony. On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. On the other side, the Court has permitted experts with appropriate qualifications, to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury. In this appeal, the State suggests, and the appellate panel agreed, that there is a category of testimony that lies between those two spheres, governed by the lay opinion rule. The Court does not agree. To permit the lay opinion rule to operate in that fashion would be to authorize every arresting officer to opine on guilt in every case. The testimony of the police detective -- because it was elicited by a question that referred to the officer's training, education and experience -- in actuality called for an impermissible expert opinion. To the extent that it might have been offered as a lay opinion, it was impermissible both because it was an expression of a belief in defendant's guilt and because it presumed to give an opinion on matters that were not beyond the understanding of the jury. In the final analysis, the approach taken to this testimony by the trial court and the Appellate Division would effectively authorize an officer both to describe the facts about what he or she observed and to opine in ways that the Court has precluded previously. The Court declines to permit the lay opinion rule to be so utilized. (Pp. 27-32)

The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part. Defendant's convictions for the two possessory offenses are affirmed and the matter is REMANDED for a new trial on the charges of third-degree possession of a controlled dangerous substance (heroin) with intent to distribute, and third- degree possession of a controlled dangerous substance (heroin) with intent to distribute within 1000 feet of a school property.

JUSTICE RIVERA-SOTO filed a separate opinion, CONCURRING in part and DISSENTING in part, stating that the reasoning employed by the Appellate Division in ruling that the challenged testimony was admissible as a proper lay opinion is unassailable in the context of this garden-variety drug prosecution.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN and JUDGE STERN join in JUSTICE HOENS's opinion. JUSTICE RIVERA-SOTO filed a separate opinion, concurring in part and dissenting in part.

Argued November 8, 2010 --

On certification to the Superior Court, Appellate Division.

JUSTICE HOENS delivered the opinion of the Court.

In this matter, we address the permissible scope of lay opinion testimony in the context of prosecutions involving alleged street-level narcotics transactions. More specifically, we consider whether a police officer, who observed defendant Kelvin McLean engage in behavior that the officer believed was a narcotics transaction, should have been permitted to testify about that belief pursuant to the lay opinion rule. See

N.J.R.E. 701. Because we conclude that the opinion offered by the officer does not meet the requirements needed to qualify it as a lay opinion, and because we conclude that permitting the officer to testify about his opinion invaded the fact-finding province of the jury, we reverse defendant's conviction and remand for further proceedings.

I.

The facts relevant to the issue before this Court are drawn from the testimony of the witnesses at defendant's trial. On September 7, 2005, three groups of police officers were involved in an undercover surveillance operation in the City of Paterson. The officers were either performing surveillance or serving as back-up units. Detective Altmann and his partner were leading the surveillance by observing the street from their unmarked vehicle. According to Altmann, he saw an individual, later identified as defendant, engage in two transactions. The first occurred shortly before 11:00 a.m. and began when another person approached defendant. After the two conversed briefly, defendant walked into a parking lot, where Altmann could no longer see him. Defendant returned about a minute later and handed one or more small items to the other person, who gave defendant what Altmann said appeared to be paper money. After the other person walked away, Altmann radioed a description of him to the back-up officers, but they were unable to find him.

The second transaction began about ten minutes later and was similar, with defendant engaging in a brief conversation with a different individual and then walking into the parking lot and out of Altmann's view. Altmann testified that he was concerned that there might be "a possible drug stash" nearby, so he and his partner drove to a new surveillance location from which they could see the parking lot. After they arrived and parked, Altmann saw defendant getting out of the front passenger-side door of a white Mercury Sable which was parked in the lot. Defendant then walked back to the individual with whom he had conversed and Altmann, using binoculars, observed what appeared to him to be an exchange of money for a small item. As with the first transaction, Altmann radioed his back-up unit with a description of the individual he had seen interacting with defendant, but a search for him also proved fruitless.

Shortly thereafter, Altmann contacted the back-up units and told them to move in. Two detectives drove into the parking lot, stopped directly in front of the white Mercury Sable, and approached the front of the car from opposite sides. Detective Sergeant Maher saw defendant in the passenger seat and ordered him to step out of the car. As he did, Detective Formentin, who was on the driver's side, saw a small package on the passenger- side floor that he believed contained heroin. He walked around the car and picked up the package, which turned out to be a bundle of ten glassine envelopes, each stamped "Arrival Killer" in green ink and which later were proved to contain heroin. He then searched the rest of the vehicle and, in the glove compartment, he found a plastic bag containing a substance that laboratory tests confirmed to be crack cocaine. After defendant was arrested, police found twenty dollars on his person and $384, comprised entirely of bills in small denominations, in the vehicle.

A.

At defendant's trial, Detective Altmann, who had conducted the surveillance, was the State's first witness. Because it is his testimony that gives rise to the question presented to this Court, we recount it in some detail.

Within the first few minutes of the start of Altmann's testimony, the following exchange took place:

PROSECUTOR: Could you tell us what those observations were?

WITNESS: On that day, September 7th, after Detective Sergeant Bailey and myself set up surveillance of the area of Carroll Street by Governor and Harrison Street over there, we were able to observe an individual later identified as Kevin McLean, engage in two suspected hand-to-hand drug transactions in that area in which he was going into a particular vehicle that was parked on the Harrison Street side of 43-45 Carroll Street. It's a parking lot alongside the building. Which he would go into the front passenger seat of a white Mercury Sable to retrieve his suspected drugs from his suspected drug stash.

Approximately a minute later, the following exchange occurred between the Prosecutor and Altmann:

PROSECUTOR: Now you stated before that you changed your surveillance location and you came around where the triangle is, is that correct?

WITNESS: Yes.

PROSECUTOR: And the reason for doing that was what?

WITNESS: Because we observed Mr. McLean after the first trans --- suspected hand-to-hand transaction after speaking with the suspected buyer, he walked into the parking lot area on Harrison Street side of the building going out of our view, returning approximately a minute later and then after the second individual engaged in a conversation with Mr. McLean, he went to the same direction. At that time believing he may have a possible drug stash ...


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