September 9, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUAN PABLO ORTIZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-11-1427.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 8, 2011
Before Judges Ashrafi, Nugent and Kestin.
Defendant, Juan Pablo Ortiz, appeals from a February 3, 2010 judgment convicting him of three crimes involving a controlled dangerous substance (CDS): first-degree possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(1) (count 2); third-degree possession, N.J.S.A. 2C:35-10a(1) (count
1); and third-degree possession with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 and -5a (count
3). In respect of the sentence, the judgment, among its other provisions, provides for a merger of the third-degree possession conviction into the other two convictions. On the first-degree crime, the court sentenced defendant to a prison term for twelve years, with six years to be served before defendant would be eligible for parole. On the third-degree school zone conviction, the court imposed a concurrent sentence of imprisonment for five years, with three years to be served before parole eligibility.
The indictment named both defendant and Melvin Mendez-Rodriguez in all three crimes charged. By the time of trial, Mendez-Rodriguez had fled.
During the five-day trial, the court heard four witnesses on behalf of the State; defendant testified on his own behalf. Before each of the two police fact witnesses testified, the officer was cautioned by the court, out of the jury's presence, in accordance with a stipulation noted on the record before opening statements were delivered, to avoid any reference to "an informant's tip" the police had received that a quantity of drugs would be coming to the area from New York in a vehicle of a particular description with two occupants.
The facts depicted by the State's witnesses disclose that, on Tuesday, July 17, 2007, at about 11:30 p.m., a group of sheriff's officers were conducting narcotics-related patrols in a Paterson neighborhood, within 1,000 feet of a public school. They observed a Plymouth minivan bearing New York license plates, with two occupants, come into the area and stop, blocking a driveway in front of a residence. "The vehicle's lights were turned off, but nobody entered or exited." As the officers approached, another vehicle pulled up and stopped between the police and the minivan. The officer who was describing the scene noted:
[O]nce the car pulled away, we realized that there were now two people standing between us and the parked van, and there was a . . . third now actually on the passenger-side of the van. So, the two males had gotten out [on] the driver's side or the passenger side, but we weren't sure where the third male came from.
The officer identified defendant as the person who was "standing at the passenger side of the minivan." He stated that defendant had been in the minivan a moment earlier, along with one of the other two men, Mendez-Rodriguez, the driver and registered owner of the vehicle who, later inquiry disclosed, had an address in the Bronx. Defendant also had a New York address, in Manhattan.
As the police approached the three men, commanding "stop, police[,]" defendant ran south from the scene. The other two men were detained. One of the officers pursued defendant, stopped him, detained him, and returned with him to the scene. After questioning the third male -- who had alighted from the vehicle that had driven up as the police approached -- and others in the area who identified him, the police determined that he was not involved with the two from the minivan and had legitimate personal business in the adjacent house; and he was released.
The testifying officer then looked into the minivan and saw "on the floor, in front of the passenger seat . . . a package that was suspected to be cocaine, a kilogram of narcotics." Another witness, qualified by the court as an expert in the field of forensic science, who had tested the contents of the package in the State Police laboratory, opined that the package contained a kilogram (35.27 ounces) of cocaine. The police also recovered four cell phones from the vehicle.
Cross-examination of the officer revealed that the drugs were packaged in [a] green cellophane plastic wrapper, and it was partially in a black plastic bag, like a small bag . . . . like little small ones, if you ever go to a grocery store, the smaller -- like maybe one quart, two quart. Not like a shopping bag you would get from a grocery store that would contain a lot of items.
The officer was "not sure if [the bag] was transparent or not." He had answered in the affirmative to a question whether "the kilo of cocaine was partially in a black plastic bag?" and added:
It wasn't concealed or folded over. It was visible from the outside. It was like half in the bag. . . . The whole package wasn't concealed inside the bag. The bag was open, or like partially out, I'm not sure exactly how it was displayed but it was visible from the driver-side window.
On further cross-examination, the officer testified that the black plastic bag had not been retained by the police, and nothing was found in the minivan that had an apparent connection to defendant. Counsel's questions to the officer concerning the possibility that the bag could have been tested for fingerprints produced no acknowledgement that that was possible.
At the conclusion of the officer's testimony, defendant moved as follows:
Judge, it appears that we have a destruction of evidence issue here. So, under State v. Clawans, 38 N.J. 162 (1962), I think that at the very least there should be an adverse inference given for the destruction of the plastic bag. It is material. They failed to preserve it. Apparently failed to preserve it, it hasn't been produced. It is material because whether or not the passenger in the vehicle would have been able to know it was cocaine would depend on the packaging to a certain extent. So, at the very least[,] I think there should be an adverse inference. But I must also move to dismiss the case for destruction of such an important piece of evidence.
The State responded "that there was nothing of evidential worth of that particular bag." The argument emphasized that "[t]his particular case is about a kilo of cocaine and the bag doesn't add or take away from it."
In reflecting on the argument, the judge stated his understanding of the Clawans decision:
[It] relates more to the failure to call a witness, and I think what [defense counsel] was driving at, because the focus of his argument was the failure to preserve the black bag, and, therefore, I believe the focus of his argument would be more along the lines of destruction of evidence or spoliation of evidence. And there are other cases that deal with that issue . . . .
I know there is like a four-pronged, a five-pronged analysis, and I know that when evidence is not properly preserved, it could be in a criminal or a civil case among the remedies that are available to the court, depending on the degree of the violation, it could range from nothing to an adverse inference charge to an outright dismissal.
So, I am going to look into that, and I'm going to ask each of you to look into the law, and prior to your arguments, some time [after the intervening weekend], I will make a ruling on that.
The thrust of your argument is clear that the black bag may have contained important evidence, it may have theoretically contained exculpatory evidence, and it is crystal clear at this point that the detectives did not preserve it.
The trial court's ultimate ruling on this issue, denying defendant's motion, was delivered at the close of trial just prior to summations and the court's charge to the jury. See, infra, pp. 20-21.
The other police fact witness to testify was a detective in the Passaic County Sheriff's Department. He came to the scene after the suspects were already in custody. He testified: "As I looked into the van, I observed a rectangular shaped, [sic] wrapped in a cellophane wrapping and a masking tape on the passenger-side floor." He "immediately retrieved this item[,]" as well as four cellular telephones. He went on to testify regarding the appearance of the package, its contents, and the chain of custody, i.e., about the field test he conducted, his recordation and preservation of this evidence, the transmission of the evidence to the State Police laboratory, and its return.
In response to defense counsel's inquiry on cross-examination, "what exactly did you see on the floor of the minivan?", the detective replied: "I observed this black shopping bag here and this is like out there." The court described the witness's gestures: "he put his right hand on the right side, not on the top of the package but about an inch or two away from it." The court went on: "Now, just so that everyone understands what you're trying to say. Was the package . . . in the black bag in whole or in part, or was it out of the black bag?" The witness responded: "I would say it was half and half, your honor." In a further attempt to clarify, the court asked: "So, you're saying that the package was approximately half in and half out of the black bag?" The witness responded: "Yes, sir."
Counsel then continued with his cross-examination: "What happened to the black bag?" The witness replied: "It's probably in the van, the vehicle." He acknowledged, both on cross-examination and re-direct-examination, his "determination that . . . the black bag didn't have any evidentiary value [and that he] didn't preserve it[.]" In response to a later question, he described the bag. "It was a small black plastic bag, it's got like a handle. Something like when you go to a corner TV store, or like to a bodega, you pick up like a bottle of soda and chips or cigarettes and they just put them in those little bags . . . ." He also acknowledged that he took no photographs of the package or the bag or asked any of the other "six to nine" officers on the scene to verify his impressions.
Also prior to opening statements, counsel and the court had engaged in a colloquy regarding defendant's objection to the State's proposed use, regarding the drug evidence, of a detective sergeant in the Paterson Police Department as an expert witness in narcotics trafficking. The court observed that defendant had previously indicated he would contend that, although he may have been in the passenger seat of the vehicle, he had no knowledge of or connection with the drugs that had been found; and that "the defense is not one of -- yes, I know it's cocaine, but I didn't intend to distribute it, it was for my own personal use." The judge stated:
[I]f that's the case, then it really doesn't matter what the substance was, and what the street value is, how it's broken down, things of that nature.
But for the jury to be able to decide if the State has proven [the three charges] . . . the jury has to know a little about the nature of the packaging, the nature of the size, the nature of the amount, the quantity of it, and whether or not that is something for personal use.
[The expert witness's] testimony is relevant in that regard, because the State has the burden of proof.
Allowing that the jury might need assistance in determining whether the drugs were for personal use rather than possessed, as charged, with intent to distribute, the court ruled:
I will let the detective testify as to the quantity and whether or not that type of quantity is consistent with personal use or more consistent with being part of the distribution.
Beyond that, I'm not sure I'm going to allow much more of his testimony. And before I have him even testify, I am going to conduct a[n N.J.R.E.] 104 hearing. I want to hear exactly what it is he's going to say, to make sure there is nothing that I believe is prejudicial.
The proposed expert was the last witness to testify for the State. Prior to his testimony, the court conducted the N.J.R.E. 104 hearing out of the jury's presence. Preceding that hearing, the judge summarized his earlier "tentative" or "preliminary" ruling that he would permit the anticipated testimony about the weight of the package, that it contained uncut drugs that "would be mixed at some point along the distribution line with a cutting agent, . . . the ratio of the cutting agent, . . . [a description of] how big the package or volume of cocaine would be, . . . whether that particular quantity was consistent with personal use and he could explain why." The judge also summarized his earlier ruling on the subjects that would not be permitted as part of the expert's testimony, including the "street value" of the drug. He noted that, after rereading State v. Odom, 116 N.J. 125 (1989), and other cases addressing the question, that his earlier limitation regarding "street value" was erroneous: "I am now inclined to allow the testimony about the street value, because I think its probative value may be more important. . . . and it is relevant and it may outweigh its prejudicial impact."
Following the brief N.J.R.E. 104 hearing, the judge heard further argument from counsel for the parties and ruled that the expert witness would be permitted to testify about the "street value" of the drugs. The trial then adjourned for an extended weekend.
The next session began with the testimony of the police detective sergeant who was the proposed expert witness. Based on the voir dire, the court found the witness to be "qualified as an expert in the field of narcotics, and that would include testimony as to the distribution, packaging and value of what we sometimes call 'street value' of narcotics[.]"
The witness testified about the dimensions of the package, the weight of the drugs in both kilograms and pounds, and typical procedures for packaging such an item, opining that people who traffic in a kilo of cocaine are "[u]sually . . . within a group of people." He testified about the practices of drug dealers in packaging drugs in small quantities for resale, often "cutting" or diluting the strength of the drug as a way of making larger profits. He opined that the kilo of drugs in evidence had been purchased at a likely price of $26,000 to $28,000 and, if re-packaged in smaller quantities in the strength that existed, would yield approximately $66,000 in sales; and that, if it were "cut," some larger amount would be realized, depending on the extent of the dilution.
The prosecutor then began to pose a hypothetical question:
Two residents of the City of New York, they were in the area of East 25th Street and 15th Avenue, Paterson[.]
So, somewhere back in July about 11:00 at night, they're traveling in a vehicle with New York State license plates. They park blocking a driveway in a residential area. Local businesses, if any, are presumably closed until morning.
At this point, defense counsel objected to the hypothetical. The jury was excused, and counsel argued that the level of specificity being used came close to having the expert express an opinion on the ultimate facts of the case for the ultimate issue that the jury is going to decide.
I don't have a problem with the expert testifying in his considerable experience and training that a kilogram is consistent with distribution. So, part of the facts I don't have a problem with, it's the level of specificity.
Following some further exploration with counsel and the witness, in another N.J.R.E. 104 hearing, the judge addressed the prosecutor:
I'm not going to permit you to ask a hypothetical or call for an opinion as to whether or not the occupants in the vehicle knowingly or purposely had the drug or were aware of the existence of the drug.
Because that would be the ultimate question that the jury is being called upon to decide.
The judge instructed the witness: "[Y]ou can't tell us if the occupants in the car were in possession." Further in that brief N.J.R.E. 104 hearing, the court endeavored to determine whether the details of the hypothetical objected to by defendant would be significant to the witness's opinion. In response to the court's inquiry, the witness testified it was not significant to his opinion that the cocaine was possessed for distribution that the occupants of the vehicle were residents of New York, that it was 11:00 p.m., that local businesses were closed, or that a driveway was blocked. The witness stated that, even without those factors, "[i]f there was still a kilogram in the car, I would say it would still be intent to distribute."
The court announced it would sustain the objection. "He's not giving an opinion as to whether or not this defendant, under these unusual and unique circumstances, was in knowing possession. That's for the jury to decide, and they don't need an expert to decide that." The judge stated: "I don't think the real jury issue in this case is the issue of possession[,]" and he directed the prosecutor to "re-ask the question by saying consider the size, the shape, the amount of cocaine, its value, the way it's packaged," and then to inquire of the witness if he has "an opinion within a reasonable degree of certainty as to whether or not the owner or possessor of that property was possessing it for personal use or to distribute it."
After the jury returned, the court announced: "I'm going to sustain the objection. I'm going to ask you to rephrase the question Mr. [Prosecutor]."
The prosecutor then asked the witness:
Sergeant, I'm going to ask you if you have an opinion, within a reasonable degree of certainty, as to regarding [the package], whether anyone who would possess [the package], would they be possessing that for their own personal use, or would they be possessing that with the purpose of ultimately distributing that?
The witness answered that he "ha[d] an opinion, and [his] opinion would be that it was ultimately for distribution purposes."
Defense counsel did not object to the rephrased question. He cross-examined the expert witness on the details of his testimony.
After the witness's testimony concluded, some matters were addressed out of the presence of the jury, the State formally offered its exhibits in evidence, and rested. The defense then presented its only witness, defendant himself.
Defendant testified that he knew the co-defendant, Mendez, from the Dominican Republic, where they had gone to school together. They also knew each other in the United States, where defendant had come to live in 1998. He initially resided and worked in Florida, where he had had a single contact with Mendez. Defendant moved from Florida to New York "[a]pproximately three years . . . ago[,]" where he again met Mendez. He testified that he had seen Mendez twice before the arrest in this matter. "We don't have a real . . . friendship, relationship."
On July 17, 2007, defendant was working with another man painting an apartment, finishing the job between 9:00 and 9:30 p.m. Defendant's wife called and asked him to bring her something to eat. As defendant was walking into a restaurant to order the food, he ran into Mendez, who offered him a ride home.
Defendant accepted Mendez's offer. After they were both in the minivan, Mendez received a cell phone call, and he asked defendant to accompany him to New Jersey so he could pick up some paperwork from a friend. When they arrived in Paterson, Mendez asked defendant to get out of the minivan so that he could speak to someone. Defendant never saw the package containing the drugs, did not feel it with his foot, and would have asked about it if he had seen it.
Defendant was outside the vehicle as requested, speaking to his wife on the phone. "[A] minivan arrived. And two people got out. . . . [W]eapons were pointed at me. And I continued walking, and they continued to insist." He ran away from the scene because he saw people approaching with guns and thought there was a possible fight going on. After he realized they were police officers, he stopped running and raised his hands.
The next day of trial began with proceedings out of the presence of the jury including motions, rulings, and a conference about the jury charge. Counsel then delivered their summations and the court charged the jury. The following day, November 13, 2009, the jury delivered its verdict finding defendant guilty of possessing five ounces or more of a CDS with intent to distribute, and of the other crimes charged. Entry of judgment and sentencing, as recounted above, occurred in due course.
Defendant raises the following issues for our consideration in his appeal from the convictions and the sentence:
DEFENDANT WAS PREJUDICED BY THE HYPOTHETICAL QUESTION POSED TO THE STATE'S EXPERT WITNESS WHICH REQUIRED THE WITNESS TO OPINE ON THE ULTIMATE QUESTION OF DEFENDANT'S GUILT OR INNOCENCE.
THE COURT BELOW ERRED IN REFUSING TO GIVE AN ADVERSE INFERENCE CHARGE REGARDING SPOLIATION OF EVIDENCE.
DEFENDANT'S CONVICTION MUST BE SET ASIDE AS THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
IN IMPOSING A THREE-YEAR PERIOD OF PAROLE INELIGIBILITY FOR DEFENDANT'S CONVICTION FOR COUNT THREE OF THE INDICTMENT, THE COURT BELOW ERRED IN FAILING TO CONSIDER THE FACTORS SET FORTH IN N.J.S.A. 2C:35-7(b).
THE TRIAL COURT ERRED IN FAILING TO CREDIT DEFENDANT WITH ALL APPLICABLE MITIGATING FACTORS AND IN FAILING TO SENTENCE DEFENDANT CONSISTENT WITH A CONVICTION FOR A CRIME ONE DEGREE LOWER THAN THAT FOR WHICH HE WAS CONVICTED.
We affirm, but remand for modification of the sentence.
The argument premised on a flaw in the proceedings surrounding the hypothetical question is meritless. Defendant contends that because the judge did not tell the jury to disregard the first hypothetical question -- and instead only announced that he was sustaining the objection, and then told the prosecutor to rephrase the question -- the jury must be taken to have assumed that the second question was a continuation of the first question. He argues that the jury's verdict was thus based on inappropriate testimony, as the jury heard the expert render an opinion based on a hypothetical question that had been deemed improper.
We reject that argument. Defendant's claim that the jury believed the rephrased question to have been a continuation of the previous question is speculative and without support in the record. The plain meaning of a ruling sustaining the objection, along with a directive to "rephrase the question," is that the previous question was no longer pending.
Defendant also argues that the prosecutor did not properly rephrase the hypothetical question, and therefore did not comply with the trial court's direction. Because defense counsel did not object to the rephrased question, plain error review is indicated, i.e., error "clearly capable of producing an unjust result[.]" R. 2:10-2.
Defendant does not challenge the admissibility of the expert's testimony. "[T]he opinion of an expert can be admitted in evidence if it relates to a relevant subject that is beyond the understanding of the average person of ordinary experience, education, and knowledge." State v. Odom, 116 N.J. 65, 71 (1989); accord State v. McLean, 205 N.J. 438, 450 (2011). Expert testimony on drug distribution is generally admissible because jurors normally require "the insight of an expert to explain the significance of the properties, packaging, and value of illegal drugs." Odom, supra, 116 N.J. at 76. When asking a hypothetical question, the prosecutor should carefully phrase it "to refer only to the testimony and evidence adduced" at trial. Id. at 81. An expert may be asked if "he or she has an opinion whether the drugs were possessed for personal use or for the purpose of distribution." Id. at 82. See also McLean, supra, 205 N.J. at 449-56.
We discern no plain error in the rephrased question. The prosecutor's rephrasing was not improper. He asked the witness whether someone in possession of a kilogram of cocaine would possess it for personal use or for distribution purposes. This is an allowable question under Odom and McLean; and did not, on the record before us, lead to an unjust result. The question was also essentially consistent with the court's direction to re-frame the hypothetical to ask the expert to consider the package's size, shape, amount of cocaine, and its value in determining whether it would be possessed for distribution or personal use. The size, dimensions, quantity, and value of the package and its contents were already in evidence when the re-framed question was posed.
Defendant's spoliation-of-evidence argument relates to the missing black bag that contained the package of cocaine the police found in the passenger compartment of the minivan occupied by defendant moments earlier. We agree with the trial judge that "the existence or non-existence of this bag is trivial. . . . I don't believe there is any prejudice, because he didn't testify to anything related to the bag." The issue is governed by the standards of State v. Washington, 165 N.J. Super. 149, 155 (App. Div. 1979) ("[W]hen there has been a loss or destruction of physical evidence in a criminal trial, the court must determine whether defendant has thereby been denied due process and a fair trial."). Defendant has made no showing that "there was bad faith or connivance on the part of the government and . . . defendant was prejudiced by the loss or destruction of the evidence." Ibid. His assertion that the bag, itself, was critical to the defense because its "size, shape and opaqueness" may have led to jury to conclude that defendant could not have known about its contents, has no power in the face of the police testimony that the package of drugs was only partially covered by the bag, and the absence of any countervailing testimony. We note, in passing, that defendant's argument based on Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), is meritless. This is not a "suppression of evidence" case.
Both the contention that the verdict was against the weight of the evidence and the argument based on cumulative error are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). There was ample evidence in the record to support the verdict. And, the record reflects the trial judge's admirably meticulous efforts throughout to protect defendant's rights and assure him a fair trial. We discern no error of significance, let alone cumulative error.
We also discern no error in the trial judge's declination, on the basis of his finding that the aggravating factors outweighed the mitigating factors, to sentence defendant for a crime one degree lower than that for which he had been convicted. See N.J.S.A. 2C:44-1f(2). The sentence imposed was well within the bounds of trial court discretion. It does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).
We nevertheless remand for resentencing. The judge should correct the judgment of conviction to reflect a merger of the school-zone conviction (count three) with the first-degree possession conviction (count two), as he has already done with respect to the simple possession conviction (count one). See State v. Dillihay, 127 N.J. 42, 45 (1992); State v. Brana, 127 N.J. 64 (1992). The result of a merger of all into the first-degree crime will affect the monetary penalties imposed and, might possibly, as well, have an impact upon ultimate parole consideration.
Such a modification of the judgment of conviction will render moot defendant's remaining argument. The sentence in this matter was imposed on February 3, 2010, some three weeks after an amendment to N.J.S.A. 2C:35-7 was enacted, effective immediately -- codified as N.J.S.A. 2C:35-7b -- requiring consideration of several newly articulated standards in sentencing defendants convicted of distributing, dispensing or possessing CDS within 1,000 feet of school property. In the light of the trial judge's scrupulous attention to detail in all other aspects of the trial, it appears he may have been unaware of this very recent amendment. However, with the merger correction we have mandated, it will be unnecessary for the trial court to address the impact of the new statutory provisions.
The convictions are affirmed. The matter is remanded for resentencing, i.e., to modify the merger provision of the judgment and recast the sentence as required.
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