August 31, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRES TORRES A/K/A DRE TORRES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-01-0032.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2012
Before Judges Grall and Alvarez.
Defendant Andres Torres and co-defendant Craig Lea were charged with second-degree conspiracy to possess a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2; third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1); second-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5(b)(2); third-degree possession with intent to distribute a CDS in a school zone, N.J.S.A. 2C:35-7; and second-degree possession with intent to distribute within 500 feet of West Side Park, a public park, and West Side Village, a public housing facility, N.J.S.A. 2C:35-7.1. Defendant, but not Lea, was also charged with fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a). Defendant was tried alone.
The first jury to consider the case found defendant guilty of resisting but was unable to reach a verdict on the drug charges. Defendant's re-trial on the drug charges commenced two months later, and the second jury found defendant guilty of all crimes charged. The court sentenced defendant to an eight-year term of imprisonment with a four-year period of parole ineligibility for possession of CDS within a public housing zone, merged his convictions for the other drug offenses with that conviction, and sentenced him to a concurrent term of eighteen months for resisting.*fn1 The court also imposed the appropriate fines, fees, penalties and assessments.
On appeal defendant argues:
I. THE TRIAL COURT ERRED BY ALLOWING THE POLICE OFFICER WHO CONDUCTED THE SURVEILLANCE AT ISSUE TO TESTIFY THAT HE BELIEVED THAT HE HAD WITNESSED MR. TORRES ENGAGE IN A NARCOTICS TRANSACTION. (NOT RAISED BELOW).
II. THE ADMITTANCE INTO EVIDENCE OF MR. TORRES'S REMOTE CRIMINAL CONVICTIONS CONSTITUTED A CLEAR ABUSE OF DISCRETION AND VIOLATED MR. TORRES'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).
III. THE PROSECUTOR'S CROSS-EXAMINATION OF MR. TORRES AND COMMENTS IN SUMMATION CONCERNING MR. TORRES'S POST-ARREST SILENCE VIOLATED HIS RIGHT AGAINST SELF-INCRIMINATION AND DEPRIVED HIM OF A FAIR TRIAL. (NOT RAISED BELOW).
IV. IMPROPER COMMENTS OF THE PROSECUTOR IN OPENING AND CLOSING ARGUMENT DEPRIVED MR. TORRES OF A FAIR TRIAL.
V. THE TRIAL COURT ERRED IN FAILING TO GRANT MR. TORRES'S MOTION FOR A NEW TRIAL BECAUSE STATEMENTS MADE BY A NON-TESTIFYING POLICE WITNESS WERE IMPROPERLY ADMITTED BY THE TRIAL COURT AND DIRECTLY IMPLICATED MR. TORRES IN THE OFFENSES CHARGED IN THE INSTANT INDICTMENT.
VI. CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).
VII. THE COURT IMPOSED AN ILLEGAL SENTENCE ON MR. TORRES. (NOT RAISED BELOW).
VIII. THE TRIAL COURT IMPOSED A MANIFESTLY
EXCESSIVE SENTENCE ON MR. TORRES. (NOT RAISED BELOW).
We conclude that the errors raised in Points I and V require reversal.
All of the events upon which defendant's convictions are based occurred within 1000 feet of the Harriet Tubman School, and within 500 feet of both West Side Park and West Side Village. At approximately 1:00 p.m., Detective Tracy Bennett of the Essex County Sheriff's Bureau of Narcotics (BON) went to that area to investigate narcotics activity.
Bennett saw three men approach co-defendant Lea, who was standing at the entrance to the park. Lea looked around nervously, held up his right hand and signaled to defendant, who was sitting on the steps of his wife's home. Defendant walked to a vacant lot and met Lea there. After a brief conversation, defendant returned to the residence, went inside and within minutes came outside and returned to the vacant lot. There, defendant gave Lea a white item that was about three inches long. Bennett could not tell what defendant gave Lea, and he did not see Lea give defendant anything. Bennett saw Lea return to the entranceway of the park. There, Bennett saw Lea give the white item to the three men and accept currency in return.
The prosecutor asked Bennett for his opinion as follows: "Based on your experience, 13 years in the BON, hundreds of surveillance and undercover purchases, did you believe that that exchange of a white item for currency was anything in particular?" Bennett responded: "Yes, I believed it to be a narcotics transaction."
The prosecutor followed up: "After observing that narcotics transaction did you communicate anything to the other officers?" Bennett responded, "Yes, I advised them of what I observed to be a narcotics transaction. And I told them to be prepared to get in the area so we can [sic] get ready to move in." The prosecutor continued, "After observing that transaction was there any particular target or targets then that you would focus on?" Bennett replied, "Yes there was." In response to the prosecutor's next question - "Who was that?" - Bennett said, "Mr. Lea and Mr. Torres."
Bennett described a second transaction that followed the pattern of the first, until Bennett saw defendant on the steps of the house and told his "back-up" to start moving in. According to Bennett, defendant then turned around, walked down South Street, and went down a driveway. Bennett lost sight of him, but the back-up officers also went down the driveway.
Detectives Robert Liput and Ignacio Mendez, also of the BON, provided the back-up. Mendez did not testify at trial, but Liput provided an account of what "they" saw, when they reached the rear of the building.*fn2 Defendant, who matched Bennett's description of the target, was standing on the back steps of the residence. The detectives identified themselves as police officers and defendant "fled into [the] doorway." Liput ran to the front, saw defendant come outside and detained him. Liput explained that before he detained defendant, Mendez told him that he saw defendant "throw down a plastic bag, which contained heroin." Later, Mendez gave Liput the "156 bags of heroin that he observed [defendant] throwing."
Defendant's wife, from whom he had been separated for thirteen years, was in the house. The officers asked for permission to search the house, and she consented. During the search, the detectives found 2700 glassine bags of heroin in a cardboard box on a table at the base of the stairs.
Defendant agreed to give the officers a statement, which was video-recorded and played for the jury at trial. In that statement, defendant explained that he went to his wife's house that day to help her get her children to school and do various things for her. When he was arrested he was "trying to make it back into the house because [he] had drugs in the house and was trying to get them out of the view because [he] had them in plain view and if [his wife] entered the house, she would have seen them before [he] got there." He had between forty-nine and fifty-two bricks of heroin there. At the conclusion of the interview defendant acknowledged that he had been treated "very well."
The defense was a general denial of guilt coupled with a claim that his confession was false. At trial, defendant testified that he made the statement because the officers threatened to prosecute his wife unless he took responsibility for the drugs. He also denied possessing any drugs earlier on the day of his arrest. He further explained that he went to the house after the police arrived and drew their weapons because he wanted to get his cell phone, car keys, and wallet. According to defendant, he took the blame for the drugs in the house only because the police told him they would "lock up" his wife if he did not.
During defendant's cross-examination, he acknowledged that in 2001 he had been convicted of two second-degree crimes and sentenced to consecutive eight-year terms of imprisonment. The testimony was elicited in accordance with the trial court's prior determination that this "sanitized" evidence of his conviction was admissible solely for the purpose of its relevance to defendant's credibility.
Although defendant did not object at trial, he contends that the prosecutor improperly elicited inadmissible lay-opinion testimony. "[We] may, in the interest of justice, notice plain error not brought to the attention of the trial court," but must disregard it unless "it is of such a nature and capacity as to have been clearly capable of producing an unjust result." R. 2:10-2. A plain error possesses "a clear capacity to bring about an unjust result," and substantially prejudices a defendant's "fundamental right to have the jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 576-77 (1999) (quoting State v. Irving, 114 N.J. 427, 444 (1989)), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); R. 2:10-2.
In State v. McLean, 205 N.J. 438 (2011), the Court considered opinion testimony given by an officer who participated in an investigation that led to McLean's prosecution for possession of CDS and possession of CDS with intent to distribute. Id. at 447. Like Detective Bennett, the officer in McLean observed the exchange of money for some item he could not identify and gave testimony describing two such transactions. Id. at 443-44. In both instances, McLean was approached by and spoke to someone, left that person, went into a parking lot, returned, gave the person an object the officer could not see and then accepted what appeared to be cash. Ibid. In the midst of the second transaction, the officer, believing that McLean had a "stash" of drugs in the parking lot, moved to a position where he could see into the parking lot. Id. at 444. From that vantage point, he saw the defendant go to a car parked in the lot, enter it, return to the person and exchange an object for money. Ibid. The car was searched and cocaine and heroin were found. Ibid.
Over objection, the officer in McLean, who had not been qualified as an expert, was permitted to answer when the prosecutor asked, "So based on your own experience sir, and your own training, what did you believe happened at that time?" Id. at 446. The officer responded by saying he believed he had seen drug transactions. Id. at 443.
In McLean, the Court reiterated the principle that police officers, like other witnesses, may give "fact testimony" - testimony describing "what the officer did and saw." Id. at 460. The Court stressed that permissible fact testimony does not "convey information about what the officer 'believed,' 'thought' or 'suspected.'" Ibid. The Court reasoned that the officer's statement of his belief about the nature of the transactions he observed did not meet the requirements of "lay opinion" and "invaded the fact-finding province of the jury." Id. at 443; see id. at 463 (explaining that the officer's lay opinion "was impermissible both because it was an expression of a belief in defendant's guilt and because it presumed to give an opinion on matters that were not beyond the understanding of the jury"). The Court held that an officer testifying as a fact witness may not offer a "lay opinion" stating his or her belief that a transaction the officer observed "was a narcotics sale." Id. at 461.
Bennett's testimony, quoted above, cannot be distinguished from the testimony in McLean. The prosecutor erred in eliciting Bennett's opinion and bolstering that opinion by phrasing the question to highlight the officer's experience and training.
The question is whether the admission of the impermissible testimony warrants reversal in this case. In McLean, the Court reversed defendant's conviction without expressly addressing the harmfulness of the judge's error in denying defendant's objection. Id. at 463.
The Court did, however, explain the prejudice. Id. at 452. It quoted, with approval, a decision of this court in which we reasoned, "'when the expert offers an opinion that a drug transaction occurred he crosses the line of permissibility and contaminates all related proofs with prejudicial qualities not easily cured.'" Ibid. (quoting State v. Singleton, 326 N.J. Super. 351, 354 (App. Div. 1999)).
The Court also cited State v. Reeds, 197 N.J. 280 (2009). McLean, supra, 205 N.J. at 455. In Reeds, the defendant was charged with constructive possession and the expert's opinion was stated in those terms. 197 N.J. at 284. The Court reasoned that "defendant suffered undue prejudice from the evidence in the form of expert testimony opining, in effect, that he constructively possessed the drugs found in the vehicle he was driving. This ultimate-issue testimony usurped the jury's singular role in the determination of defendant's guilt and irredeemably tainted the remaining trial proofs." 197 N.J. at 300. The Court concluded, "the admission of the constructive-possession testimony, and the confounding effect from the instruction provided to the jury, caused trial error that was clearly capable of producing an unjust result in defendant's trial." Id. at 300-01; see id. at 298 (noting that the instruction was "not only ineffective in curing the problem, but also confounding for the jury because it allowed the testimony to be considered when the jury assessed defendant's guilt").
We recognize that Bennett did not state his opinion on a transaction for which defendant was being prosecuted. Defendant was not charged with a crime based on the transaction Bennett observed; he was charged with possessing the drugs found in his wife's home after that transaction. That fact does not distinguish this case from McLean. McLean, like defendant, was charged with possession and possession with intent to distribute the drugs that remained in his "stash" after he made the transactions the officer observed. Id. at 444, 447.
In both cases, the opinion testimony tended to establish elements of the crimes at issue - control over the remaining drugs and the defendants' intent to distribute them. In short, the opinion testimony in both cases contaminated the related proofs, resulting in prejudice not easily cured. Moreover, no instruction designed to cure or limit the prejudice was given in either case. Thus, as in Reeds, the opinion was clearly capable of producing an unjust result.
For all of the foregoing reasons, we conclude that McLean controls and requires reversal of defendant's conviction for the drug offenses.
There was additional error warranting reversal of defendant's convictions for these crimes. We refer to the admission of Detective Liput's testimony stating that Mendez told him he saw defendant throw a bag of drugs on the ground. That evidence was hearsay and it was improperly admitted for the truth of the matter asserted - that defendant had the drugs in his possession and threw them down. We reject the State's claim that this testimony was admissible to explain the circumstances of the arrest and not offered for the truth of the matter asserted. An officer explaining why he did what he did may not "repeat what some other person told him concerning a crime by the accused." State v. Bankston, 63 N.J. 263, 268-69 (1973).
Moreover, this testimony tended to establish a connection between defendant and the heroin found in his wife's home. Indeed, apart from the inferences available from the testimony about defendant's going in an out of the home in response to Lea's motioning to him, there was no other evidence linking him to the drugs in the house.
Any testimony about observations made by Mendez had to come from him. N.J.R.E. 602. True, Mendez testified at the Miranda hearing and defense counsel had an opportunity to cross-examine him at that time. But assuming the State could have established that Mendez was unavailable to testify at defendant's second trial, N.J.R.E. 804(a)(4), the State could have admitted the testimony he gave at the Miranda hearing, not what he told Liput. N.J.R.E. 804(b)(1)(A). The State does not argue that Mendez's statement to Liput is admissible as substantive evidence of defendant's guilt on some other ground.
We also reject the State's claim that defense counsel invited or acquiesced in this error. Defense counsel's willingness to proceed with the first trial despite the absence of Mendez does not amount to an agreement to the admission of the missing witness's out-of-court statements.
While the prosecutor carefully refrained from mentioning either the impermissible opinion evidence or the inadmissible hearsay in his summation, the erroneous admission of this evidence had the clear capacity to produce an unjust result. The damage was done, and no curative or limiting instructions were given. Without question there was adequate competent evidence to support defendant's convictions, but "we cannot say the proof was so overwhelming as to foreclose a real possibility that the jury gave decisive weight to the improper hearsay testimony" in considering whether the State established that he committed the drug offenses. Id. at 272-73.
Our conclusion that the impermissible lay opinion and inadmissible hearsay require reversal makes it unnecessary to address defendant's additional claims of error or his objections to his sentence.
Defendant's conviction for resisting is affirmed. His convictions for the drug offenses are reversed, and the matter is remanded for a new trial on those charges.