On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-01-0014.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Ashrafi.
Defendant Ben McCallum appeals his conviction by a jury and fifteen-year sentence of imprisonment on all eleven counts of an indictment arising from one street-level sale of .29 grams of crack cocaine and possession of an additional 3.78 grams for sale. Because of cumulative plain error in the prosecution's presentation of evidence at the trial, we reverse and remand for a new trial.
Defendant was arrested on September 20, 2007, in a park in Trenton located between Fountain and Sweets Avenues, an area known to the police for illegal drug sales. Two Trenton detectives, Frederick Bender and Travis Maxwell, testified at trial that shortly after noon on that date they were conducting covert surveillance of the park. They saw four men sitting at a park bench with whom they were familiar. They identified the men as defendant Ben McCallum, his brothers Billy and Juquan McCallum, and Ricky Spruill.
At about 1:00 p.m., a woman approached and had a brief conversation with Billy McCallum. Billy walked to a nearby alley and retrieved a plastic bag from under the siding of a house. From that bag, he took a smaller, clear bag containing a light-colored substance. He replaced the bigger bag behind the siding and returned to the park. He handed the woman the smaller bag and received currency in exchange. The woman walked out of the park, but backup police detectives who were stationed nearby were not in a position to stop her and investigate further the nature of the transaction.
About ten minutes later, a white Cadillac approached and parked behind a tan Chrysler next to the park. A man, later identified as Larry Lopez, stepped out of the Cadillac and had a brief conversation with defendant Ben McCallum. Defendant walked to the tan Chrysler, looked around briefly, and opened the driver's door. He reached inside to the dashboard area and removed a clear plastic bag containing a white substance. Observing through binoculars, Detective Maxwell believed from his prior police experience that the substance was rock cocaine. Defendant appeared to take a quantity of the substance from the plastic bag and returned to the park, where he gave an item to Lopez and received paper currency. Lopez then left the area in the Cadillac.
Detective Bender communicated with the backup arrest team, and they stopped the Cadillac a few blocks away. Lopez was cooperative and immediately turned over to the arresting detectives a quantity of cocaine. A State Police laboratory report later confirmed the substance as .29 grams of rock cocaine.
After arresting Lopez, the backup detectives, together with
Bender and Maxwell, entered the park and detained the four men
near the bench. A search of defendant's person produced $340 in
currency, and the police found no paraphernalia for personal use of
cocaine. Detective Bender went to the tan Chrysler and found near the
dashboard a clear plastic bag containing a substance, later identified
at the lab as 3.78 grams of rock cocaine. Detective Bender also
searched under the siding of the house where Billy McCallum had gone
and found there a plastic bag containing eight smaller plastic bags,
each of which contained suspected cocaine. One of the smaller bags was
tested by the lab and confirmed as cocaine with a weight of .87 grams.
From Billy McCallum's person at the time of his arrest, the detectives
recovered $2,047 in currency.
With this evidence, the prosecution obtained an eleven-count indictment against defendant: two counts of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); two counts of third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3); two counts of third-degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-7; two counts of second-degree possession of cocaine with intent to distribute near a public facility, N.J.S.A. 2C:35-7.1; one count of third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and 5b(3); one count of third-degree distribution of cocaine in a school zone, N.J.S.A. 2C:35- 7; and one count of second-degree distribution of cocaine near a public facility, N.J.S.A. 2C:35-7.1.*fn1
At defendant's trial in November 2008, the prosecution presented testimony from Detectives Bender and Maxwell and one of the two backup detectives. In addition, the prosecution called Mercer County Prosecutor's Office Detective Denise Zorzi, who was qualified by the court to testify as an expert "in identification, sale, distribution, packaging, pricing and use of narcotics and in particular cocaine." Detective Zorzi testified on direct examination about the three seized items of cocaine - the bag taken from under the siding, the one from the Chrysler, and the cocaine taken from Lopez. Also hypothetical questions detailing the observations of the several police detectives were posed to her, and she was asked to give her opinion as to the nature of the transactions in the park.
Defendant elected not to testify. He presented one defense witness, a woman who was near the park at the time of his arrest. The witness testified that the police had planted the cocaine they claimed to have seized and had brought false charges against defendant and Billy McCallum.
The jury convicted defendant of all eleven counts of the indictment. Because of defendant's extensive prior record, including four prior drug convictions, the court granted the prosecution's motion for a discretionary extended term sentence under N.J.S.A. 2C:44-3a. The court sentenced defendant to concurrent terms of fifteen years' imprisonment with seven years of parole ineligibility on each of the three second-degree public facility charges. The other counts of conviction were merged with those three charges.
On appeal, defendant contends:
THE DEFENDANT WAS SEVERELY PREJUDICED BY THE TRIAL COURT'S ADMISSION OF IRRELEVANT AND INFLAMMATORY TESTIMONY CONCERNING CRIMES PURPORTEDLY COMMITTED BY THE DEFENDANT'S BROTHER, AND BY INFLAMMATORY TESTIMONY CONCERNING THE DEFENDANT'S PRIOR CONTACTS WITH POLICE (NOT RAISED BELOW).
A. EVIDENCE CONCERNING DEFENDANT'S PRIOR CONTACTS WITH POLICE.
B. EVIDENCE OF THE DEFENDANT'S BROTHER'S CONDUCT.
C. THE NOTED VIOLATIONS NECESSITATE REVERSAL.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING EXPERT TESTIMONY THAT WENT WELL BEYOND THE PERMISSIBLE SCOPE OF SUCH TESTIMONY, AND AMOUNTED TO OPINION AS TO GUILT IN THE PARTICULAR CASE. U.S. CONST., AMEND. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10 (NOT RAISED BELOW).
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ADMINISTERING A "NO ADVERSE INFERENCE"
CHARGE TO THE JURY WITHOUT ASKING THE DEFENDANT OR COUNSEL WHETHER SUCH A CHARGE WAS DESIRED. (NOT RAISED BELOW).
REVERSAL IS REQUIRED BY THE CUMULATION OF PREJUDICIAL ERRORS ...