September 30, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROGER E. COLEY, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-02-0377.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 14, 2011
Before Judges Cuff and Lihotz.
A jury found defendant Roger E. Coley, Jr., guilty of third degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (Count One); and third degree possession of heroin with intent to distribute, N.J.S.A. 2C:35- 5a(1) (Count Two). After merging Count One with Count Two, defendant was sentenced to an eight-year term of imprisonment with a four-year period of parole ineligibility.*fn1 The appropriate fines, fees, penalties and assessments were also imposed. We reverse the conviction for possession of CDS with intent to distribute and remand for further proceedings. We affirm the possession of CDS conviction.
On the evening of November 28, 2007, defendant Roger E. Coley, Jr., was driving a car in Woodbridge. There was one other occupant of the car. Defendant stopped the car at a red traffic signal. Unknown to him, a police car was nearby. The driver of the police vehicle determined that there were active arrest warrants for the owner of the car. When the traffic light turned green, the driver accelerated eventually reaching fifty-four miles per hour in a twenty-five mile per hour zone. The police officer, Brian McGuirk, activated the overhead lights and siren on the police vehicle and stopped the car. The officer believed at least one other person was in the car.
Immediately after stopping, the driver, later identified as defendant, emerged from the driver's side of the car flailing his arms and yelling, "I don't have a license." Officer McGuirk instructed defendant to return to the car. Although defendant did so, he kept the door ajar. McGuirk requested assistance and, as he awaited the arrival of another officer, defendant emerged from the car and approached him again. At this time, McGuirk drew his weapon and instructed defendant to return to the car.
McGuirk arrested defendant due to outstanding arrest warrants. As the officer commenced applying handcuffs, defendant placed his left hand on top of his head and dropped a small white plastic bag from his right hand. After both wrists were secured, the officer instructed defendant to spread his feet outwards to allow the officer to frisk defendant for weapons. As defendant spread his legs, he moved his right foot forward in an attempt to kick the dropped article under the car and out of the sight of the officer. After the officer placed defendant in the rear passenger seat of the police vehicle, McGuirk informed another officer at the scene to retrieve the article dropped by defendant and kicked under the car. The police officer, who retrieved the small plastic bag, opened it. McGuirk looked inside and saw four, individually wrapped packages, which he believed were heroin.
On appeal, defendant raises the following arguments:
POINT I THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE 14TH AMENDMENT
TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S FACT WITNESS RENDERED EXPERT WITNESS OPINIONS.
POINT II THE TRIAL COURT ERRED BY NOT GRANTING
DEFENDANT'S MOTION PURSUANT TO R. 3:18-1 FOR A JUDGMENT OF ACQUITTAL AND R. 3:18-2 TO SET ASIDE THE VERDICT AS TO THE INTENT TO DISTRIBUTE COUNT IN THE INDICTMENT AND MOTION FOR ANEW TRIAL PURSUANT TO R. 3:20-1.
POINT III THE TRIAL COURT VIOLATED THE
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW BY FAILING TO INSTRUCT THE JURY REGARDING THE USE OF EXPERT TESTIMONY (Partially Raised Below).
POINT IV DEFENDANT WAS DENIED HIS RIGHT TO A
FAIR TRIAL BECAUSE THE TRIAL COURT PERMITTED THE JURY TO CONSIDER IRRELEVANT TESTIMONY OF THE POLICE OFFICER.
POINT V DURING HIS SUMMATION, THE PROSECUTOR
COMMITTED MISCONDUCT AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE 14TH AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (Partially Raised Below).
POINT VI THE TRIAL COURT ERRED BY LIMITING
DEFENSE COUNSEL'S CROSS-EXAMINATION OF THE STATE'S WITNESS, THEREBY DENYING DEFENDANT OF HIS RIGHT TO CONFRONT THE EVIDENCE AGAINST HIM.
POINT VII THE EXTEND[ED] TERM SENTENCE IMPOSED BY
THE TRIAL COURT WAS UNDULY EXCESSIVE.
Over the objection of defense counsel, Officer McGuirk testified that he decided to charge defendant with possession of CDS with intent to distribute because the quantity of heroin he possessed at the scene was indicative of distribution not personal use. The officer explained his opinion as follows:
[the quantity] was consistent with --wasn't consistent with a user typically. I don't mean, that he couldn't have been using. But it's not consistent with an individual who typically has a heroin addiction. Usually, in my experience, I've had individuals, who would be utilizing heroin, would have maybe two decks.
Defendant argues that whether the quantity and packaging were indicative of possession with intent to distribute or consistent with personal use required expert testimony. He contends the State did not qualify McGuirk as an expert and also argues that McGuirk lacked the education and experience to qualify as an expert. Consequently, defendant argues, McGuirk offered impermissible lay opinion testimony about a central issue in the case, and this error requires a new trial on the possession of CDS with intent to distribute charge. We agree and reverse the conviction on this charge.
The State is permitted to introduce expert testimony to prove that a defendant possessed CDS with the intent to distribute, but such evidence is limited to subjects beyond the experience of the average juror. State v. Odom, 116 N.J. 65, 71 (1989). In Odom, the Court allowed a police officer, who qualified as an expert, to testify about how a jury could distinguish between drugs possessed for personal use and drugs possessed with the intent to distribute. Id. at 68.
The Court has also permitted a properly qualified police officer to inform a jury about the methods of drug distribution, State v. Berry, 140 N.J. 280, 303-04 (1995), and the roles played by various individuals in street-level distribution networks, State v. Nesbitt, 185 N.J. 504, 514-16 (2006). On the other hand, care must be taken to avoid usurpation of the jury's fact-finding function; thus, an expert may not state that a defendant is guilty of the charged offense. State v. Summers, 176 N.J. 306, 315-16 (2003).
Expert testimony is not required, however, especially if the transactions at issue occurred in a straightforward manner. Nesbitt, supra, 185 N.J. at 516; State v. Baskerville, 324 N.J. Super. 245, 254-57 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). Moreover, the risk of prejudice is heightened when the officer rendering an expert opinion is also an investigating officer. Berry, supra, 140 N.J. at 301.
To provide an expert opinion, the witness must have the requisite education, training, and experience to speak authoritatively on the subject. N.J.R.E. 702; see also Berry, supra, 140 N.J. at 291. Here, Officer McGuirk was a probationary police officer with limited formal law enforcement education and limited on-the-job exposure to the distribution of narcotics. He lacked the education and experience to qualify as an expert. As such, any opinion he rendered must be considered a lay opinion.
N.J.R.E. 701 governs the admission of lay opinion evidence. It provides:
If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.
The purpose of this rule is to admit only lay opinion that is grounded on an adequate factual foundation. State v. Bealor, 187 N.J. 574, 586 (2006).
Recently, in State v. McLean, 205 N.J. 438, 443 (2011), the Supreme Court examined the admissibility of lay opinion in the context of opinion testimony offered by one of the police officers who conducted the surveillance and arrested the defendant. The Court reaffirmed the "boundary line that separates factual testimony by police officers from permissible expert opinion testimony." Id. at 460. The Court summarized the governing principles as follows:
On the other side of the line, we have 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. See, e.g., Berry, supra, 104 N.J. at 293-95; Odom, supra, 116 N.J. at 76. Therefore, an expert may explain the roles played by multiple defendants in a drug distribution scheme and may offer an opinion about the implications of the behavior that was observed by the fact witness. See Nesbitt, supra, 185 N.J. at 515; Berry, supra, 140 N.J. at 302-04. Similarly, an expert 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. See Odom, supra, 116 N.J. at 76. [Id. at 460-61.]
The Court proceeded to reject the notion that testimony, as offered by Officer McGuirk, is governed by the lay opinion rule. Id. at 461. The Court observed that to allow such testimony would permit "every arresting officer to opine on guilt in every case." Ibid.
The testimony permitted by the trial judge over the objection of defendant is precisely the type of evidence held inadmissible as lay opinion evidence by the Court in McLean. The officer testified well beyond his observation. He also provided testimony designed to provide guidance to the jury in its evaluation of whether defendant possessed the narcotics with the intent to distribute.
We also reject the notion that the error can be considered harmless as argued by the State. The State offered one witness, Officer McGuirk, who rendered an impermissible lay opinion about one of the central issues in the case. Moreover, as recognized in McLean, the distinction between expert and lay opinions and the limits of each has been established and is not a new rule, but has been established for some time. Id. at 460-61.
We, therefore, reverse the possession with intent to distribute CDS conviction (Count Two). We do not disturb the conviction of possession of CDS (Count One). This conviction is based on the factual observations of Officer McGuirk. It is the type of charge that does not require expert testimony and was not tainted by impermissible lay opinion testimony.
Due to this disposition, we need not address defendant's argument that the trial judge should have granted his motion for a judgment of acquittal and should have provided an instruction on the use of expert testimony. Defendant's remaining contentions, including whether the prosecutor's summation exceeded the bounds of propriety and whether the trial judge improperly limited cross-examination of Officer McGuirk, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Reversed in part; affirmed in part; remanded for resentencing on Count One.