July 11, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERNEST PANNELL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-01-0007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2011
Before Judges Graves and Messano.
Defendant Ernest Pannell was charged in a three-count indictment with third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (count two); and third-degree possession of cocaine with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three). Following a jury trial, defendant was acquitted of count three but convicted of counts one and two.
At sentencing on August 15, 2005, the trial court granted the State's motion to impose an extended term of imprisonment under N.J.S.A. 2C:43-6(f) because defendant was "a repeat drug offender." After merging count one with count two, the court sentenced defendant to an eight-year prison term with four years of parole ineligibility. Appropriate statutory penalties and assessments were also imposed.
On appeal, defendant presents the following arguments:
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE DETECTIVE BROWN OFFERED EXPERT OPINION TESTIMONY WITHOUT BEING QUALIFIED AS AN EXPERT; THE ASSISTANT PROSECUTOR IMPROPERLY RELIED UPON THIS "EXPERT" TESTIMONY IN SUMMATION; AND THE COURT FAILED TO GIVE ANY CAUTIONARY JURY INSTRUCTION ON THIS TESTIMONY. (Not Raised Below).
DETECTIVE BROWN'S TESTIMONY, WHEREIN HE INDICATED THAT HIS NARCOTICS ENFORCEMENT TACTICAL TEAM FOCUSED ON APPREHENDING INDIVIDUALS USING TAXICABS TO TRANSPORT ILLEGAL NARCOTICS, WAS TOTALLY IRRELEVANT AND HIGHLY PREJUDICIAL, SUCH THAT IT DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL. (Not Raised Below).
PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below).
We have considered these contentions in light of the record and applicable law, and we affirm.
The facts are not complicated. During defendant's trial, the State presented testimony from two members of the Newark Narcotics Enforcement Team (the team). Officer Lee Brown testified he was a member of the Newark Police Department for eight years and during that time, he had made "[m]ore than a thousand" controlled dangerous substance arrests. Officer Samantha Robinson was a seven-year veteran of the police department, and she testified that she had made "[h]undreds" of controlled dangerous substance arrests.
On the morning of September 28, 2004, the two officers were in plain clothes in an unmarked vehicle along with two other undercover officers. Detective Lima*fn1 was driving the unmarked police vehicle, Robinson was seated in the rear seat, and Brown was a front-seat passenger. Brown testified that the team was specifically focusing on taxicabs and busses because it was "making a lot of arrests with the ATTF, Auto Theft Task Force, with narcotics in vehicles."
At approximately 10:00 a.m. that morning, Brown observed that a taxicab had stopped at the corner of Seventh Street and Fourteenth Avenue and that a passenger, subsequently identified as defendant, was speaking to another individual standing on the curb. As the unmarked police vehicle approached, the individual standing on the curb "backed away," defendant "slouched down" in the back seat of the cab, and the taxicab "took off at a high rate of speed." In response, the police activated their lights and sirens and pursued the vehicle, which pulled over four blocks later.
Officer Robinson and another member of the team then walked to the front of the taxicab to speak with the driver, while Officers Lima and Brown "approached the rear of the vehicle." As Robinson was talking with the driver, Brown testified he was "looking in the back seat of the vehicle" and saw defendant drop a small plastic bag on the floor. The plastic bag contained twenty-six "little Ziplock bags," which contained cocaine. Defendant was then arrested and searched, and the police recovered $3005 in cash. Defendant told the police that he was going to court "to pay his fines."
Defendant did not testify at trial, but the taxicab driver, John Montflery, testified on defendant's behalf. Montflery said he was driving defendant to the Newark Municipal Courthouse on Green Street when he was stopped by the police. Montflery also testified that he was not issued a ticket for speeding or careless driving, and he denied that defendant ever spoke to anyone standing outside the taxi.
During his summation, defendant's attorney argued that the taxicab driver was "the most credible" witness and that the testimony of the State's witnesses was "incredible, outrageous and unthinkable." He also told the jury that the police officers "lied to you. They absolutely lied to you."
In his first point, defendant argues that his convictions must be reversed because Brown, a lay witness, "offered his opinion about the packaging of drugs for sale," and the prosecutor improperly relied upon the testimony to argue there was "no doubt that [the drugs received from the taxicab] were packaged for distribution."
Specifically, defendant challenges the following testimony by Officer Brown:
[PROSECUTOR]: You said that . . . you've seen these kinds of bags before packaged with these little cookies*fn2 before, correct?
[OFFICER BROWN]: Yes. [PROSECUTOR]: And why are they packaged this way?
[OFFICER BROWN]: They're sold individually at street cost and this . . . is what they use . . . because they're so small, they put so many of them in a bag. Like usually 30 to a bag.
[PROSECUTOR]: And they're sold out of the bigger bag?
[OFFICER BROWN]: Yes.
According to defendant, this testimony by Brown was inadmissible because he was not qualified as an expert witness under N.J.R.E. 702. In response, the State contends that Brown's testimony was permissible lay opinion testimony pursuant to N.J.R.E. 701. In addition, the State argues that even if the testimony was improper, it was not sufficiently prejudicial to require a new trial.
We agree with defendant that Brown's testimony regarding the packaging of drugs for sale was inadmissible because he was not qualified as an expert witness. See State v. McLean, 205 N.J. 438, 461 (2011) (noting that experts with appropriate qualifications "may explain the significance of quantities of narcotics or its distinctive packaging which are matters that would not otherwise be known by an average juror") (citing State v. Odom, 116 N.J. 65, 76 (1989)).
Nevertheless, because there was no objection to Brown's testimony, we infer that defense counsel did not consider the testimony to be significant in the context of the trial. State v. Macon, 57 N.J. 325, 333 (1971). In addition, the State presented eyewitness testimony that defendant dropped the drugs on the floor of the taxicab; the "little Ziplock bags," which were identified as "twenty-six bags of cocaine" were admitted into evidence during the trial; and, when defendant was searched, the police found $3005 in cash. Thus, the State presented substantial evidence to establish defendant's guilt, and the defense was that the police officers had fabricated their testimony. Under these circumstances, we conclude that the improper testimony by Brown was not "clearly capable of producing an unjust result." R. 2:10-2.
Additionally, defendant claims that he did not receive a fair trial because Brown's testimony that the team was targeting taxicabs was irrelevant, and it created an unfair inference that defendant was a drug dealer. In response, the State argues that Brown's testimony was relevant to explain why Brown initially noticed the taxicab and to show that "Officer Brown was not acting in an arbitrary manner."
Defendant's argument cannot be viewed in a vacuum. In his opening statement, defense counsel told the jury that Officer Brown would testify "that he found the drugs at the feet of my client in the taxicab," and that Brown's testimony would be "incredible, outrageous, and unthinkable." Moreover, in his summation, defense counsel argued that there was no valid reason for the police to stop the taxicab: "[Defendant] has the right to be in a taxicab without having the taxicab stop[ped] for no reason. There [was] no reason, ladies and gentlemen, the police could not [articulate] one reason." Thus, the challenged testimony was relevant to explain why Brown initiated the motor vehicle stop, and we find no plain error. State v. Bankston, 63 N.J. 263, 268 (1973) (noting that when a police officer approaches a suspect based upon information received, such testimony is admissible "to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct").
In his final point, defendant argues that he is entitled to a new trial because the prosecutor improperly vouched for the credibility of the State's witnesses. This argument is clearly without merit. R. 2:11-3(e)(2). The prosecutor's summation was an appropriate response to defense counsel's attack on the officer's credibility. State v. Murray, 338 N.J. Super. 80, 88 (App. Div.), certif. denied, 169 N.J. 608 (2001).