October 5, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VINCENT H. OSBY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-04-00358.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2012
Before Judges Nugent and Haas.
Tried before a jury on a four-count indictment, defendant was convicted of third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS, cocaine, with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); third-degree possession of CDS, cocaine, with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count three); and fourth-degree possession of radio to intercept emergency communications while committing or attempting to commit a crime, N.J.S.A. 2C:33-22 (count four). The trial judge merged count one into count two and sentenced defendant to four years in prison on count two; to a concurrent four-year term, with a three-year period of parole ineligibility on count three; and to a concurrent eighteen-month term on count four. The judge also ordered defendant to pay mandatory fines and penalties.
On appeal, defendant raises the following contentions:
OFFICER DUFFIELD'S OPINION TESTIMONY THAT ITEMS FOUND DURING THE SEARCH OF THE HOME ARE COMMONLY USED IN NARCOTICS DISTRIBUTION SHOULD NOT HAVE BEEN ADMITTED SINCE DUFFIELD WAS NEVER QUALIFIED AS AN EXPERT AND, ABSENT AN INSTRUCTION CONCERNING EXPERT TESTIMONY, HIS TESTIMONY DEPRIVED THE JURY OF INFORMATION CONCERNING ITS ROLE AS THE ULTIMATE TRIER OF FACT AND, THEREBY, DEPRIVED MR. OSBY OF DUE PROCESS AND A FAIR TRIAL. (U.S. CONST., AMENDS. VI AND XIV; N.J. CONST., (1947), ARTICLE I, PAR. 9, 10). (RAISED BELOW).
THE PROSECUTOR'S STATEMENTS DURING SUMMATION COMMENTED UPON FACTS NOT IN EVIDENCE, THEREBY DEPRIVING MR. OSBY OF DUE PROCESS AND A FAIR TRIAL (U.S. CONST., AMENDS. VI AND XIV; N.J. CONST., (1947), ARTICLE I, PAR. 9, 10 (NOT RAISED BELOW).
THE TRIAL COURT'S RULING THAT DEFENDANT COULD NOT TESTIFY AS TO RONALD GROSS' NARCOTICS ACTIVITIES PREVENTED MR. OSBY FROM PRESENTING HIS DEFENSE AND, THEREBY, DENIED HIM A FAIR TRIAL. (U.S. CONST., AMENDS. VI AND XIV; N.J. CONST., (1947), ARTICLE I, PAR. 9, 10). (RAISED BELOW).
THE SENTENCE WAS EXCESSIVE AS THE COURT FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS IN SENTENCING MR. OSBY TO A FOUR YEAR SENTENCE WITH A THREE YEAR PERIOD OF PAROLE INELIGIBILITY.
After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions.
The State developed the following proofs at trial. In the afternoon of February 6, 2009, Detective Harold Duffield of the Millville Police Department was conducting a drug surveillance operation of a residence on Buck Street in Millville. The residence was across the street from a parochial school. Duffield was positioned about 150 feet away from the residence and, with the use of binoculars, he had a clear view of the residence. He had already obtained a search warrant for the residence.
At 2:09 p.m., Duffield observed a man, later identified as defendant, exit the residence onto the porch. Defendant made a hand-to-hand exchange of items with another man, who had approached the porch and left after the exchange. Over the next ninety minutes, Duffield observed three additional hand-to-hand exchanges between defendant and individuals who came to the porch and then immediately left. Duffield observed one of the individuals hand "currency" to defendant.
After the fourth exchange, Duffield notified his supervisors of his observations. Shortly thereafter, about twenty New Jersey State Troopers arrived to "make sure the residence was safe" before Duffield entered the residence. Trooper John Sheeran went into the kitchen and observed cocaine and drug paraphernalia in plain view on the table and countertop. Defendant and four other individuals, defendant's fiancee June Rogers, and her two sons and a nephew, were present in the home.
After the residence was secured, Duffield entered the kitchen and saw two clear plastic bags of a white, rock-like substance that later tested positive for cocaine. The largest piece of cocaine weighed 7.144 grams. Duffield also found a boX of plastic sandwich bags, a digital scale and a razor blade. There appeared to be cocaine residue on the blade. Inside a cigar box on the kitchen counter, Duffield found another scale, more cocaine, a marijuana grinder and additional razor blades. Finally, Duffield found a scanner on the kitchen table and a second scanner on the dining room hutch. The scanner in the dining room was on and was tuned into the Millville Police radio frequency at the time the police entered the residence.
Duffield brought defendant into the kitchen to speak to him. Duffield gave defendant his Miranda *fn1 warnings. Defendant told Duffield that "all the drugs in the house were his and that he did not want [Rogers] to get in any trouble." A search of defendant's person revealed a small bag of marijuana and $340 in cash.
At 5:25 p.m., defendant was taken to the police station and he gave a taped interview. He again admitted that all of the drugs in the residence were his and that he sold cocaine for profit. The marijuana, however, was for his personal use. Defendant provided precise estimates of how much cocaine was in the home and he accurately described what the police would find in the cigar box. He made these admissions prior to Duffield telling him what the police had found.
Defendant explained that "the plastic baggies are actually there for me to dispense the drugs you know and put them in things when I sell them actually," and that the scale was used "[t]o actually weigh it." He further explained that the razor blades were "[t]o cut it." Defendant told Duffield that he purchased cocaine for resale for approximately $1,100 an ounce and that he sold it for twice that amount. The taped interview was played for the jury at trial.
Testifying for the defense, Rogers asserted that defendant had been going out on the porch during the day to smoke, because he was not allowed to smoke inside the house. She did not see him speak to anyone outside, except for a UPS delivery person. Rogers and her two sons testified that they had never seen the cocaine, scale or other paraphernalia before the police arrived at the residence. Rogers claimed that the marijuana found in the house belonged to her nephew; the baggies found in the kitchen were used by her to hold snacks; the $340 found in defendant's pants pocket was the remainder of a tax refund she had previously given him; and she purchased the scanner the day before the raid so she could monitor the activities of her son, who had previously been arrested.
During his testimony, defendant claimed he lied to Duffield in his statement so his family members would not be arrested.
He alleged he had obtained the information about how much cocaine costs from his cousin, Ronald Gross, who he had observed selling cocaine on previous occasions. He also asserted that Gross had been in the residence earlier in the day, but that he had left an hour or two before the raid. Defendant claimed that he did not see the cocaine in the kitchen before the police arrived, even though he testified he was cooking food in the kitchen when the search began.
Defendant argues that Detective Duffield, who testified as a lay witness, improperly expressed an opinion that the items found in the kitchen could be used to package and distribute drugs. He asserts that this testimony impermissibly invaded the fact-finding province of the jury. According to defendant, the following testimony should not have been permitted because it violated the ground rules established in State v. McLean, 205 N.J. 438, 449 (2011) and State v. Odom, 116 N.J. 65, 70-71 (1989):
Q. Now, S-14, S-15, and S-16, the sandwich bags, the razor blade and the digital scale, what significance did they have to you?
A. To me, they're all - - they all play a different part in the sales of narcotics.
Q. Okay. And specifically the razor blade?
A. The razor blade would, essentially, be used to - - this is a solid piece of cocaine. The razor blade would, essentially, be used to carve off the amount of drugs that the potential buyer would want.
Q. And S-14, the box of sandwich bags, why is that significant?
A. The sandwich bags are used to package a lot of times whatever CDS drugs that are sold to the potential buyers.
Q. Okay. And what about the scale?
A. The scale is a Dual-Ford (phonetic). It could potentially be used to be - - to weigh the drugs whether you're the person selling or the person buying.
Because defendant did not object to this testimony at the time of trial, however, we will not reverse on this ground unless the error was "clearly capable of producing an unjust result." R. 2:10-2.
Since its decision in Odom, supra, the Supreme Court has held that expert opinions in narcotics prosecution cases are limited to relevant subjects that are beyond the understanding of the average juror. McLean, supra, 205 N.J. at 450. Expert opinion is generally inadmissible if the alleged drug transaction occurred in a straightforward manner that the average juror can readily understand. Id. at 452. Where factual testimony is sufficient to potentially enable the jury to draw the inference of distribution, further comment in the form of expert opinion is improper. Ibid.
Here, consistent with those principles, Duffield testified as a lay witness. The State did not seek to offer him as an expert. Even though expert opinion testimony is inadmissible in the context of a "straightforward" hand-to-hand exchange of drugs for money, id. at 449-52, lay opinion testimony, as defined in N.J.R.E. 701, is nevertheless admissible when offered to describe "what was directly perceived by the witness[.]" Id. at 460. The "personal observations and perceptions of the lay witness" are admissible so long as the police officer is not offering an opinion," id. at 459, provided the factual testimony is limited to setting forth "what [the officer] perceived through one or more of the senses." Id. at 460. Such testimony is "an ordinary fact-based recitation" that does not "convey information about what the officer 'believed,' 'thought' or 'suspected[.]'" Ibid.
We agree with defendant that when Duffield testified the sandwich bags, razor blade and digital scale "all play a different part in the sales of narcotics" and then described how each item would be used, his testimony encompassed more than a neutral recitation of what he saw, because, as the Court explained in McLean, such "neutral" testimony must be confined, for example, to simply restating that the officer observed a defendant handing an item to another individual after receiving paper currency. Ibid. Here, Duffield did more. He embellished his testimony by adding his opinion as to how the three items could be used in a drug sale.
On the other hand, Duffield's testimony did not contain all of the elements that rendered the testimony inadmissible in McLean. In particular, in McLean, after the detective testified as to his fact-based observations, and stated "he saw [the defendant] engage in two suspected hand-to-hand drug transactions," the prosecutor repeatedly referred to the detective's "experience." Id. at 462-63. The prosecutor in McLean then posed the following question, "So based on your own experience, sir, and your own training, what did you believe happened at that time?" Id. at 446. The Court deemed such references to the officer's "experience" improper. Id. at 446.
Unlike in McLean, where the officer's answer was immediately preceded by testimony about his two decades of experience in law enforcement, id. at 446, 463, Duffield's testimony about his thirteen years of experience as a police officer, and his seven years working in the narcotics unit, came at the very beginning of his testimony. His experience was not included in his testimony as to how the three items could be used as part of a drug sale.
In addition, Duffield never specifically opined as to how the three items were specifically used in this case. His brief testimony was couched in terms of possibilities. He never mentioned defendant's name, did not refer to the statutory language of the charges contained in the indictment, and never testified that the presence of the items established defendant's guilt on the distribution charge. Odom, supra, 116 N.J. at 82 (prohibiting a proffered expert in a narcotics case from expressing a direct opinion of the defendant's guilt, specifically referring to the elements of the offense, or tying the hypothetical to the specific facts of the case).
Because the testimony here did not encompass all of the features that rendered such testimony inadmissible in McLean or Odom, we are not prepared to hold that Duffield's testimony violated the teaching of those cases. Furthermore, even if this testimony was inadmissible, it was not, as required by Rule 2:10-2, "clearly capable of producing an unjust result." We so conclude because of the strength of the State's case.
As we have noted, the State played defendant's taped statement to the jury. In that statement, defendant provided details as to how he used the plastic bags, razor blades and scale to package the cocaine. Thus, Duffield's testimony concerning how the three items could be used was not as strong as defendant's own admissions as to how the items were used. The prosecutor did not refer to Duffield's testimony concerning the paraphernalia in his closing statement. He only discussed the admissions defendant had made concerning the three items.
Duffield testified as to the four hand-to-hand transactions he had observed and defendant admitted to Duffield that he was selling cocaine out of his home. Defendant also specifically, and accurately, told Duffield how much cocaine would be found in the home at the conclusion of the search.
So viewed, any error resulting from Duffield's testimony as to the possible uses for the plastic bags, razor blade and scale was rendered harmless by the powerful evidence in the record that defendant was selling cocaine. Unquestionably, the jury could have reached such a conclusion entirely independently of Duffield's testimony. For that reason, any error in the admission of Duffield's testimony on that subject was not plain error, and was not clearly capable of producing an unjust result.
Defendant argues that, because he raised the issue of Duffield testifying as to the possible use of the three items before the Grand Jury, in connection with his motion to dismiss the indictment, the plain error standard should not be applied. This argument lacks merit. Defendant's motion to dismiss the indictment was denied on December 2, 2009 by a judge, who did not even preside at the trial, which did not begin until April 28, 2010. Rule 1:7-2 requires that a party object to a contested action when it occurs in order to reserve a question for appeal. Defendant did not object at the time Duffield testified. His failure to specifically object to this testimony at trial suggests defense counsel did not believe the questions were unduly prejudicial at that time. State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Indeed, defendant's attorney referred to these items as "drug paraphernalia" in his summation. Therefore, defendant's prior motion to dismiss the indictment before a different judge did not "preserve his objection" at the time of trial.
Defendant also complains that the trial judge referred to Duffield as "an experienced narcotics officer" during his testimony and that this statement "reinforced the idea to the jury that Duffield had special expertise." Again, however, defendant raised no objection to this comment at trial and the comment was made to explain why the judge had overruled defendant's objection to Duffield explaining that regardless of whether the drug is in a "powder" or "rock" form, it is still commonly called "cocaine." There was nothing improper about this comment.
Finally, we reject defendant's argument that the judge should have given the jury an instruction on expert testimony as it pertained to Duffield. Again, defendant never requested such an instruction and, for the reasons set forth above, we perceive no plain error in the judge not including such an instruction in the general jury charge.
Defendant next contends that three comments made by the prosecutor during the course of his summation deprived him of a fair trial. To justify a reversal, the prosecutor's comments "must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right" to a fair trial. Timmendequas, supra, 161 N.J. at 575. In determining whether the prosecutor's comments warrant reversal of a conviction, we consider "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Smith, 167 N.J. 158, 182 (2001). Here, defendant did not object to any of the three comments. Therefore, the plain error standard of review is again applicable. R. 2:10-2.
The first comment complained of here concerned the scanner that was found on the dining room hutch tuned into the Millville Police Department frequency. Although there was no testimony presented at trial concerning how a scanner works, the prosecutor commented as follows:
Now, about the radios in this case. Now, some of you may think, well, fine. You know, anybody can have a radio. My dad has a scanner. But one thing that's interesting about this particular police scanner, the one that I turned on and showed Detective Duffield, was that it is set to the frequency for the Millville Police Department. Normally, a scanner is rotating to pick up police, fire, rescue, different agents. But this one was set specifically to the Millville Police Department.
This comment, while improper because it included information not in evidence, was not clearly capable of producing an unjust result under the circumstances of this case. In order to obtain a conviction under N.J.S.A. 2C:33-22, the State did not need to prove that the scanner was on, or that it was tuned into any particular frequency. Under the statute, all that is necessary to establish guilt is that the State prove beyond a reasonable doubt that defendant knowingly possessed a scanner capable of receiving a "transmission made on or over any police, fire or emergency medical communications system" and that he did so while in course of committing or attempting to commit a crime. Ibid. The prosecutor's brief remark concerning how scanners generally work had no bearing on the verdict and did not constitute plain error.
The other two comments concern the prosecutor commenting that defendant was engaging in a "drug distribution scheme" and that he was selling drugs from his home. Specifically, in commenting as to why the jury should find that defendant was telling the truth when he confessed to Duffield on the date of his arrest, the prosecutor stated:
But why not be honest? Why not be honest? And it's something we should all hope that people are, is honest. Now, he was caught in the middle of this drug distribution scheme. He was caught red-handed. He was seen by Detective Duffield out on that porch making those transactions and, when they went into the house, they found everything that was needed in order to sell those drugs.
Later, the prosecutor stated:
Now, photographs. Why weren't photographs taken of the surveillance? Now, it's important in law enforcement that you don't want people to know where you're surveilling from. If they did know, they would do it in a different spot where you wouldn't be able to see them. If Mr. Osby knew that Detective Duffield was in a location, that he was able to be viewed, he would have gone to a different location to sell these drugs. He wouldn't have done it right out on the front porch.
Neither of these comments was improper. They represent fair comment, based upon reasonable inferences, drawn from the testimony presented at trial. Timmendequas, supra, 161 N.J. at 587. The absence of a contemporaneous objection to these comments, and to the comment concerning the scanner, further suggests "that defense counsel did not believe the remarks were prejudicial at the time they were made," id. at 576, and the failure to object deprived the trial judge of the opportunity to take appropriate curative action. Ibid. The comments were not inflammatory, highly emotional or likely to distract the jury from a fair consideration of the evidence. They fall far short of the standard of "conduct . . . so egregious that it deprives the defendant of a fair trial" necessary to establish plain error. State v. Loftin, 146 N.J. 295, 386 (1996) (internal citation and quotation marks omitted).
Defendant argues that the trial judge improperly prevented him from developing testimony to support his contention that his cousin, Ronald Gross, was actually the owner of the drugs found in the residence. The record, however, does not support this contention.
In his taped confession, defendant had explained how much he paid for the cocaine he purchased for resale and the profit he expected to make when he sold it. Defense counsel asked defendant to explain the source of that information in the following series of questions and answers:
Q. Okay. And later on in the statement, you made a reference to how much money you get the drugs for?
Q. Do you remember how much you said?
A. I think I said 1100 or 1300.
Q. And where did you get those numbers from?
A. Numerous different peoples but I had asked Mr. Gross, Ronald, [how] much he normally pays for an ounce and his answer was 1100.
At that point, the judge sustained the prosecutor's objection on the ground of hearsay. Defense counsel then asked whether defendant had "any observation" of Gross "being part of that trade." The prosecutor objected on the grounds of relevancy, and defense counsel asked for a sidebar. The judge decided to permit defendant to testify as to whether he observed Gross selling drugs on the day of the raid or on other dates. In response to the prosecutor's continued objection, the judge explained:
Well, he's already testified that it's relevant as to the issue of how the defendant knew the weight, how the defendant knew the cost, and there's testimony that he knew that from Mr. Gross. I think it's fair that counsel can bring out some basis for his knowing that. I don't think - I agree with you that we're not going to get into a trial within a trial of Mr. Gross but I'm going to give him some latitude to bring out how he knew to discuss this with Mr. Gross.
The judge continued:
Well, it is an issue in the case as to - -the defense is asserting a defense that he lied to the officer when he told this information, that that's going to be the crucial issue in this case for the jury really to decide, was he lying or not.
You're probably going argue in your closing, at least I assume you are, that the details of this date are something that the jury should look at. The details of this statement are very relevant because of the defense, the way they're presenting their defense in this case. I'm going to allow some, you know, limit areas into how he would have known the cost of the drugs, but I don't want to get into a situation where we're trying Mr. Gross here. You know, you have a right to cross examine him about that knowledge.
The sidebar concluded and defense counsel resumed questioning defendant:
Q. All right. Mr. Osby, when had you observed Ronald Gross selling?
A. I observed on numerous amounts, occasions.
Q. Okay. Do you know - - I said when. Do you know when that occurred?
THE COURT: The details of the dates - - he answered that he observed him sell drugs. I don't need anything - - and he testified that he got the information from Mr. Gross about the cost. [DEFENSE COUNSEL]: That's correct.
Q. You got the information about the cost of a gram from Mr. Gross?
Q. Okay. All right. And did you feel that, after you gave the statement, that your family would be released?
A. Yes. That was my main objective. Yes. Defense counsel then moved on to other topics.
The apparent purpose of this testimony was to support defendant's claim that he had made up his confession and that he had obtained details about the price charged for cocaine from Gross, not from his personal experience. For the first time on appeal, however, defendant argues that, by asking these questions, his attorney was actually trying to establish that Gross was the person guilty of the crime and he now complains that the trial judge prevented him from establishing this defense.
This argument lacks merit. On its face, the testimony only concerned the source of defendant's knowledge of the cost of cocaine. The judge's ruling, which merely required defense counsel to provide specific dates concerning past drug sales by Gross, was based upon that understanding and defense counsel did nothing to dispel that understanding. Counsel never objected and he never told the judge at sidebar that his questions may have had another purpose. He only asked defendant about his knowledge of the cost of cocaine and, as soon as the point was made that defendant had obtained this information from Gross, counsel moved on to a new topic. It is well established that a judge is not required "to sort through the advocacy of inquiry of witnesses to speculate as to the precise defenses being framed, especially when a simple statement by counsel will suffice." State v. Melton, 136 N.J. Super. 378, 382 (App. Div. 1975). Under these circumstances, there was no error, much less plain error, in the judge's ruling.
Finally, defendant argues that his sentence was excessive. "Appellate review of sentencing decisions is . . . narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, an appellate court is obligated to affirm. State v. Cassady, 198 N.J. 165, 180 (2009).
Defendant argues that the judge did not give adequate consideration to mitigating factor eleven, "the imprisonment of the defendant would entail excessive hardship to himself or his dependents." N.J.S.A. 2C:44-1b. However, that factor was clearly not applicable here. Defendant argues that he had a hernia and needed surgery. Notably, however, defendant had been complaining about this condition since the time of his motion to dismiss the indictment, and sentencing had already been adjourned once to accommodate his surgery. However, defendant kept putting off the surgery. There is nothing in the record to support defendant's contention that he will not receive satisfactory medical treatment while incarcerated. State v. Wilson, 421 N.J. Super. 301, 311 (App. Div. 2011), certif. denied and appeal dismissed, 209 N.J. 98 (2012)(finding that the defendant had failed to establish that his medical needs arising from multiple sclerosis could not be addressed in prison). We are unpersuaded that it is either necessary or appropriate for us to intervene and adjust this sentence, particularly where we determine that it does not shock the judicial conscience.