July 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERREL BRIDGES, A/K/A TYREE KELLY, TERRELL LO, AZIZ A. WILLIAMS, TERRELL B. WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-10-3670.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 13, 2011
Before Judges Sapp-Peterson and Simonelli.
Following a jury trial, defendant Terrel Bridges was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1); third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7; and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b(4). The trial judge sentenced defendant to an aggregate ten-year term of imprisonment with five years of parole ineligibility, and imposed the appropriate assessments, penalties, and fees.
On appeal, defendant raises the following contentions:
THE TRIAL COURT'S REFUSAL TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S MOTION TO SUPPRESS DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FULL AND FAIR DETERMINATION OF HIS MOTION
EXPERT TESTIMONY THAT DEFENDANT HAD ENGAGED IN "AN ILLEGAL HAND-TO-HAND TRANSACTION FOR NARCOTICS" AND THAT THIS CONCLUSION
WAS BASED ON "REVIEWING ALL THE EVIDENCE IN THIS INVESTIGATION" IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO THE MAXIMUM TEN-YEAR TERM WITH FIVE YEARS OF PAROLE INELIGIBILITY BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE We hold that defendant is entitled to an evidentiary hearing on his motion to suppress because of a material factual dispute as to how the police recovered the narcotics found in defendant's car. We also hold that defendant is entitled to a new trial because the State's expert's testimony improperly invaded the province of the jury to decide the ultimate question of defendant's guilt. Accordingly, we reverse and remand for an evidentiary hearing on defendant's motion to suppress and a new trial.
I.We derive the following facts from the evidence presented at trial. At approximately 1:30 p.m. on July 31, 2007, Detectives Reginald Holloway, Darryl Robinson, and Tracey Bennett of the Essex County Sheriff's Department Bureau of Narcotics were conducting surveillance from a van in the area of Renner Avenue and Goodwin Avenue in Newark. The site, known for its narcotics activity, is within 1000 feet of a school.
Using binoculars, the detectives saw an African-American woman approach an African-American male, later identified as defendant, who was standing on Goodwin Avenue. After a brief conversation between the two, defendant walked over to the driver's side door of a 1995 Pontiac Bonneville, opened the door, bent down, reached inside the car with his right arm, closed the door, and returned to the woman. Defendant then handed the woman an item or items for what "appeared to be paper currency[.]" The woman then left the area and walked out of the detectives' view. The police never apprehended her or recovered the item exchanged. Based on their training and experience, the detectives believed they had witnessed an illegal hand-to-hand narcotics transaction orchestrated by defendant who utilized a stash location -- that is, the vehicle -- to conceal and hide the narcotics.
Detectives Robinson and Bennett detained defendant. Detective Holloway went to defendant's car, saw that the driver's side window was down, peeked into the car through the window, and saw two magazine wrappers "in the driver's side lower door pocket, the funnel part of the pocket[.]" Based on his training and experience in field narcotics, Detective Holloway knew these magazine wrappers, called "brick wrappers," are "utilized . . . to seal decks of heroin." He opened the car door and recovered both brick wrappers. The top brick wrapper was broken open, and Detective Holloway saw glassine envelopes bound together by a rubber band and stamped "general" in red ink and "blood money" in green ink. One brick wrapper contained fifty "decks" and the other contained forty-two "decks." Defendant was then placed under arrest and administered hisMiranda*fn1 warnings. He gave the detectives a false name. Following defendant's arrest, the police recovered $53 from him. A field test revealed that the glassine envelopes contained heroin.
Defendant filed a motion to suppress the narcotics recovered from the car, arguing that the plain view doctrine did not apply to the search. Defense counsel filed a counterstatement of facts that merely stated that defendant "contests and otherwise disputes the facts alleged within the State's briefing papers, the relevant police reports, and any and all testimony before the Grand Jury." Also, defense counsel did not clearly articulate defendant's argument -- that Detective Holloway had to physically intrude through the open car window into defendant's car to see the narcotics, which constituted an illegal search. At the motion hearing, counsel asked to supplement the record "to support an evidentiary hearing." The judge denied the request, finding it constituted "a second bite at the apple and all."
Relying on State v. Green, 346 N.J. Super. 87, 90-91 (App. Div. 2001) and State v. Hewins, 166 N.J. Super. 210, 214 n.2 (Law Div. 1979), aff'd, 178 N.J. Super. 360 (App. Div. 1981),the judge found that defendant's counterstatement of facts did not establish material facts in dispute warranting an evidentiary hearing. The judge concluded "the police reports indicate that the detective observed two magazine wraps visible in the driver's side door pocket through the open window of the car door. No material dispute of fact has been presented . . . ."
At the second motion hearing, defense counsel clarified defendant's argument -- that the plain view exception did not apply because it was impossible for Detective Holloway to see the narcotics in the driver side lower door pocket in plain view without physically intruding into the car's interior and opening the door. Disregarding this argument, the judge denied the motion, concluding that
[Detective Holloway] had the right to be where he was at the time he seized the evidence, and he had a right to be where he was at the time he saw the evidence through the window -- I'm speaking about the drug evidence now in the car, not the money. . . . The officer was in a legal position to view the contraband. The officer has observed actions by the defendant which created probable cause to arrest the defendant.
When approaching the vehicle, he viewed the contraband in the driver's side door through a window. . . . [I]t has been held in State v. Foley[, 218 N.J. Super. 210 (App. Div. 1987),] that an observation into the interior of an automobile by a police officer located outside the automobile is not a search within the meaning of the Fourth Amendment. Under thesecircumstances, the detective's view into the car did not violate the Fourth Amendment.
It has been held in Foley that police observations made without physical intrusion into a protected area need not meet the Coolidge (phonetic) inadvertence requirement. Therefore, seeing that obvious contraband in plain view, they had the constitutional right to seize it. So, themotion is denied for those reasons.
The matter proceeded to trial. The jury found defendant guilty on all counts as aforesaid. This appeal followed.
II.Defendant contends in Point I that the judge erred in failing to conduct an evidentiary hearing on his motion to suppress. He argues he presented a material factual dispute as to whether Detective Holloway could have viewed the narcotics in plain view, that is, without physically intruding into the car. We agree.
Our review of a trial judge's factual determination is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we "'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)).
When we are satisfied that the findings of the trial court could reasonably have been reached on the record, "[our] task is complete and [we] should not disturb the result, even though [we have] the feeling [we] might have reached a different conclusion were [we] the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). Nevertheless, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then [we] should review 'the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting Johnson, supra, 42 N.J. at 162). "[We] owe no deference to the trial court in deciding matters of law. When a question of law is at stake, [we] must apply the law as [we] understand it." Ibid. (citations omitted).
We first conclude that the judge should have granted defense counsel's request at the first motion hearing to supplement the record to more clearly articulate defendant's argument. See Hewins, supra, 166 N.J. Super. at 214 (where the court offered the defendant leave to expand his statement of facts before determining whether a material fact was in dispute). Also, once defense counsel clarified defendant's argument at the second motion hearing, the judge should have considered it. See State v. Aikens, 401 N.J. Super. 298, 308 (App. Div. 2008) ("'Where there is a dispute as to materialfacts on a motion to suppress . . . the trial court should not restrict the State or defendant in the presentation of all relevant evidence so that, if appellate review is had, the record will be complete, and a final adjudication can be made.'" (quoting State v. Hope, 85 N.J. Super. 551, 555 (App. Div. 1964)).
If the judge had considered defendant's argument, he would have realized that Foley, supra, does not apply to the facts of this case. Unlike here, the police officer in Foley was located outside the automobile in a toll booth and saw the narcotics in plain view as defendant stopped to pay the toll. Foley, supra, 218 N.J. Super. at 214. The officer made no intrusion at all into the vehicle. See id. at 215. Here, defendant argued that Detective Holloway was outside of defendant's car and could not have seen the narcotics in the lower door pocket without physically intruding into the vehicle. This clearly created a material factual dispute as to whether the plain view doctrine applied. Where "material facts are disputed, testimony thereon shall be taken in open court." R. 3:5-7(c). "It is clear that under the rules and case law, if there is a dispute of material fact, the law requires the trial court to take testimony to resolve the dispute and decide the motion." Hewins, supra, 166 N.J. Super. at 213.
The judge also misapplied Green, supra, 346 N.J. Super. at 90-91. In Green, we affirmed the trial court's denial of the defendant's motion to suppress without an evidentiary hearing, concluding that even accepting defendant's version of the facts, the search did not violate defendant's Fourth Amendment rights since it either resulted from a routine border search or was based on reasonable suspicion. Id. at 101-02. Here, by contrast, if the judge had accepted defendant's version of the facts, the search would not be lawful. Therefore, unlike in Green, where the court determined "there was no dispute as to the material facts and a full evidentiary hearing was not necessary" as a result of the search being lawful even if one accepted the defendant's version of the facts, id. at 101-02, here, the judge should have held a hearing because the defendant's version of the facts would have presented an unlawful search. See State v. Kadonsky, 288 N.J. Super. 41, 45-46 (App. Div.) (where material facts are disputed, as where there are factual allegations to support the claim that a search was illegal, Rule 3:5-7(c) requires a hearing on a motion to suppress), certif. denied, 144 N.J. 589 (1996).
We conclude the record does not support the judge's decision to deny an evidentiary hearing. A material factual dispute existed, which required a hearing.
III.Defendant contends in Point II that the judge erred in permitting Detective Robert Liput, the State's expert in street-level narcotics, to testify that defendant had engaged in an illegal drug transaction. We agree.
The State had to prove that defendant engaged in an illegal narcotics transaction with the buyer. Because the police never apprehended the buyer or the item or items defendant handed her, and because no one actually saw narcotics exchange hands, the narcotics seized from defendant's car was the only evidence showing that defendant may have engaged in a narcotics transaction. Thus, the State attempted to prove, through Detective Liput, that the item or items exchanged between defendant and the buyer was a portion of the drugs subsequently recovered from defendant's car. To do so, the prosecutor asked the detective a hypothetical question that mirrored the facts in evidence as to how the narcotics transaction occurred. The detective then opined as follows:
Given the factors in the hypothetical, I would be able to render an expert opinion due to my experience and training.
My opinion would be that person "A" [defendant] was dealing in street-level narcotics. He responded to the car, which was his stash location. Then walked back to person "B" [the buyer] and, you know, did an illegal hand-to-hand transaction for narcotics, in money for narcotics. So, that "A" did possess the narcotics, you know, with the intent to distribute them. And, again, the $53 was proceeds from the illegal narcotic sales. [(Emphasis added).]
Defendant did not object to this testimony. Accordingly, we review it under the plain error standard; that is, whether the testimony was "clearly capable of producing an unjust result . . . ." R. 2:10-2. Plain error is not simply any error, but one that must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). We conclude that plain error occurred here.
An expert witness may not usurp the jury's function by expressing a direct opinion on the defendant's guilt or otherwise invading the province of the jury to decide the ultimate question. State v. McLean, 205 N.J. 438, 453 (2011); State v. Papasavvas, 163 N.J. 565, 612 (2000). "[I]t is impermissible for an expert to express his or her opinion 'in such a way as to emphasize that the expert believes the defendant is guilty of the crime charged under the statute.'" Papasavvas, supra, 163 N.J. at 612 (quoting State v. Odom, 116 N.J. 65, 80 (1989)). So long as the expert, however, "'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 612-13 (quoting Odom, supra, 116 N.J. at 79).
The facts of this case are strikingly similar to those in State v. Baskerville, 324 N.J. Super. 245 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). In Baskerville, while conducting surveillance, detectives saw a buyer approach the defendant, id. at 247, who then walked to a car parked nearby, reached under the undercarriage of the car, pulled out "something" from a brown paper bag, replaced the bag under the car, walked back to the buyer who handed the defendant what the detectives "believe[d] was paper money in exchange for whatever defendant had retrieved from under the car, id. at 247, n.1, 248. The detectives "could not clearly discern the physical details of any of the objects involved" in the transaction. Id. at 262.
The question in Baskerville was whether the defendant had, in fact, distributed narcotics. Id. at 257. The State's expert testified that "drug transactions had, in fact, occurred . . . ." Ibid. We found this testimony was "fatally beyond the pale of the permissible," and "added elements to the State's proofs which rendered the trial unfair." Ibid. We concluded that by "characterizing the interaction between defendant and others," the expert testimony "usurp[ed] the jury's function" and improperly bolstered the credibility of the police fact witnesses. Id. at 258
Here, as in Baskerville, the question was whether defendant had distributed narcotics. Detective Liput did more than merely opine whether the seller in the hypothetical scenario possessed the narcotics for personal use or distribution purposes. He opined that the transaction was "an illegal hand-to-hand transaction for narcotics," and "the $53 was proceeds from the illegal narcotic sales." This testimony went to the ultimate issue of defendant's guilt in an area not beyond the ken of the average juror, thus invading the province of the jury to decide the ultimate question. Accordingly, Detective Liput's testimony as to the illegality of the transaction constituted plain error requiring a new trial. Having concluded this matter must be reversed and remanded, we need not address defendant's challenge to his sentence.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.