August 5, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANTONIO THOMPSON, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2013
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-02-0216.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief.)
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Amy Devenny, Assistant Prosecutor, of counsel and on the brief).
Before Judges Harris and Hoffman.
Tried by a jury, defendant Antonio Thompson appeals from his conviction of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), and first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(3). He also appeals from the imposition of an extended term of imprisonment of thirty years, with fifteen years of parole ineligibility.
On appeal defendant raises the following arguments:
THE TRIAL JUDGE ERRED IN FAILING TO GRANT THE MOTIONS TO REVEAL THE CONFIDENTIAL INFORMANT AND TO SUPPRESS THE EVIDENCE. IN BOTH INSTANCES, THE TRIAL JUDGE ABUSED HIS DISCRETION AND DENIED THE DEFENDANT HIS RIGHT TO DUE PROCESS. U.S. CONST. AMENDS. IV, XIV; N.J. CONST. ART. 1, PARA 7.
THE STATE'S HYPOTHETICAL AND THE RESULTANT EXPERT OPINION RENDERED USURPED THE JURY'S SINGULAR ROLE IN THE DETERMINATION OF DEFENDANT'S GUILT AND IRREDEEMABLY TAINTED THE REMAINING TRIAL PROOFS.
THE TRIAL JUDGE IMPOSED AN EXCESSIVE SENTENCE WITHOUT ANY SPECIFICITY AS TO HOW HE ARRIVED AT THE FINAL NUMBERS.
For the reasons that follow, we affirm defendant's conviction and sentence.
The following facts are derived from the motion and trial record. In November 2007, the Mercer County Prosecutor's Office Special Investigations Unit (SIU) conducted an investigation into the illegal sale of cocaine out of a hotel room in West Windsor. The SIU initiated the investigation after receiving a tip from a confidential informant. Thereafter, the SIU arranged for two controlled purchases of narcotics by the confidential informant from the occupant of room 320 of the hotel.
The SIU obtained a search warrant for room 320 of the hotel based upon the two controlled purchases. On November 29, 2007, SIU officers proceeded to the hotel to execute the search warrant, where they arrested defendant in the lobby on an active arrest warrant from Lawrence Township. Pursuant to a search incident to arrest, the officers found $952 in cash on defendant's person, as well as a hotel room key.
The officers then proceeded to room 320, where behind a reclining chair, the officers found a white bag containing a shoe box. Inside the shoebox, the officers found a large quantity of crack cocaine and powder cocaine. The cocaine was found in four separate bags, which weighed 1.38 ounces, 3.08 ounces, 7.91 ounces, and 9.20 ounces respectively. In the shoebox with the CDS, officers also found a digital scale, a spoon with residue, and a package of batteries. There was also another digital scale in the room, as well as a box of sandwich bags.
Officers also recovered a wallet containing multiple items bearing defendant's name, including a driver's license, various credit cards, and various casino cards. In addition, officers found personal items belonging to the defendant around the room. In the nightstand, officers found receipts for room 320 bearing an address in Trenton. There were also phone bills in defendant's name with the address of the hotel, and other pieces of mail for him at both the Trenton and hotel addresses. Officers also recovered a photograph of defendant in a cardboard frame. In addition, officers found $5, 000 cash in the pocket of a piece of clothing hanging in the closet.
Officer Thomas Wilkins of the Mercer County Prosecutor's Office was qualified as an expert in evidence recovery and fingerprint recovery, comparison, and identification. Officer Wilkins testified that the evidence collected at the hotel was examined, including a train schedule he found in the bottom of the white bag. Officer Wilkins testified that he recovered a fingerprint from the train schedule, which he subsequently matched to defendant's known left-thumb print.
Upon completion of Officer Wilkins' analysis, the evidence was sent to the New Jersey State Police Laboratory for testing. The lab report indicated the submitted specimens were in fact cocaine, with a total reported weight of 21.5 ounces.
Detective Denise Zorzi of the Mercer County Prosecutor's Office was qualified as an expert in the identification of drugs and the ways in which drugs are packaged and illegally sold for profit throughout New Jersey, and specifically Mercer County. Detective Zorzi testified that in her opinion, under similar circumstances, drugs of the quantity found in defendant's hotel room would not be for personal use, but would be possessed with the intent to be distributed.
At the conclusion of Detective Zorzi's testimony, the State rested. Defendant made a motion for a judgment of acquittal, which was denied. The defense then rested without calling any witnesses. At the conclusion of the trial, the jury found defendant guilty of both counts of the indictment, and found the CDS to be in an amount exceeding five ounces.
In Point I, defendant challenges the judge's denial of his motion to obtain the name of the confidential informant, as well as denial of his motion to suppress the evidence seized from Room 320. Regarding the identity of the confidential informant, the judge concluded that the informant was not a material witness because defendant was charged only with possession of the drugs seized from Room 320; defendant was not charged with either of the two controlled buys which provided the basis for the search warrant. The judge therefore concluded that "defendant has failed to show that disclosure of the [informant's] identity is likely to be relevant and helpful to the defense." Defendant fails to explain how the identity of the informant would have been reasonably helpful to the defense. We discern no indication of any mistaken exercise of discretion by the judge.
Defendant's claim that the search warrant was invalid similarly lacks merit. Defendant only points to the participation of a new informant as the basis to invalidate the warrant. Based upon the record, this argument is unpersuasive. Upon receiving information that drugs were being sold from Room 320, the SIU set up two controlled buys between the confidential informant and the occupant of Room 320. In each instance, the informant was searched before entering Room 320 to confirm that the informant did not possess any drugs. Each time, detectives kept the informant under constant surveillance as the informant entered the hotel, traveled to Room 320, and emerged a short time later. Still under constant surveillance, the informant returned back to the detectives, and turned over the drugs the informant purchased, later confirmed to be cocaine.
On review of 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." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). The record contains sufficient credible evidence to support the judge's findings and his decision to deny defendant's suppression motion.
Defendant, for the first time on appeal, contends in Point II that the State presented improper expert testimony from Detective Zorzi, claiming that the testimony impermissibly addressed the ultimate issue of defendant's guilt and thereby invaded the province of the jury. Specifically, defendant argues the hypothetical advanced by the State in regard to whether the amount of narcotics possessed by the defendant was for distribution purposes was improper. Because defendant did not raise this contention at trial, we review it under the plain error standard to determine whether the testimony was sufficiently prejudicial to have the capacity to produce an unjust result. State v. Gore, 205 N.J. 363, 382-83 (2011).
During Detective Zorzi's testimony, the State posed hypothetical questions aimed at ascertaining whether, in her opinion, the quantity of narcotics found in the hotel room would be for personal use or distribution purposes. At sidebar, the trial court cautioned the assistant prosecutor to proceed carefully so as to not confuse the jury into thinking the detective was "verifying that [the drugs] were for possessing with intent." Upon receiving the instruction from the trial court, the State elicited testimony from Detective Zorzi that, consistent with her training and experience, it was her opinion that bags of narcotics seized by police, similar to the ones in evidence, would be consistent with possession for distribution purposes. Detective Zorzi further testified that a quantity of cocaine similar to the total quantity of all four bags, taken together, would be for distribution, and not personal use. In addition, Detective Zorzi testified that if a quantity of narcotics, similar to the total quantity of all four bags in evidence, was found along with two scales, a box of sandwich baggies, $5, 000 in cash, her opinion that the narcotics were for distribution purposes would be bolstered.
Expert testimony is admissible where the subject matter at issue may not be sufficiently familiar to the average juror or where it would "assist the [jurors] to understand the evidence or to determine a fact in issue[.]" State v. Berry, 140 N.J. 280, 289 (1995) (quoting N.J.R.E. 702). The requirement that expert testimony "assist the [jurors]" has been interpreted broadly to encompass testimony helpful to their understanding of the evidence presented. Id. at 290-91. The admissibility of expert testimony does not depend on "'whether the subject matter is common or uncommon or whether many persons or few have knowledge of the matter[.]'" Id. at 291 (quoting Rempfer v. Deerfield Packing Corp. 4 N.J. 135, 141-42 (1950)). Expert opinion testimony is permissible even where it embraces the ultimate issue to be determined by the jury, so long as the testimony does not express an "'opinion of defendant's guilt but simply characterizes defendant's conduct based on the facts and evidence in light of [the expert's] specialized knowledge[.]'" State v. Summers, 176 N.J. 306, 314 (2003) (quoting State v. Odom, 116 N.J. 65, 79 (1989)); N.J.R.E. 704. The admissibility of such testimony rests in the sound discretion of the trial court. Summers, supra, 176 N.J. at 312.
Expert testimony about drug-trade practices is generally admissible because such information is a specialized subject matter that is beyond the ken or normal life experience of the average juror. State v. Reeds, 197 N.J. 280, 290 (2009); Odom, supra, 116 N.J. at 76. A narcotics expert is permitted to assist the jurors to understand how the defendant's statement and actions, in conjunction with the words and actions of other drug purchasers and sellers, could be indicative of narcotics distribution. See Nesbitt, supra, 185 N.J. at 515; Berry, supra, 140 N.J. at 301-02. However, the expert is not permitted to opine about the ultimate issue of the defendant's guilt. Reeds, supra, 197 N.J. at 285.
Detective Zorzi did not opine as to whether defendant was guilty of any of the drug charges, as did the State's narcotics experts in Reeds, supra, 197 N.J. at 287, a case on which defendant relies. Her testimony did not usurp the jury's function to determine the ultimate issue of defendant's guilt on any charge, nor did it in any way suggest that defendant was guilty. Further, there was other overwhelming evidence of defendant's guilt, including defendant possessing a key to Room 320, the quantity of drugs found there, along with two digital scales, baggies, and $5, 000 in cash. Accordingly, no error, let alone plain error, occurred as a result of Detective Zorzi's testimony.
In his final point, defendant claims sentencing error, arguing that his sentence is excessive and that the trial court "merely noted the fairly standard factors" and failed to detail his findings. We disagree on both grounds.
Defendant's sentencing occurred on January 25, 2011. Prior to sentencing, the State filed a motion for an extended term sentence on the grounds defendant was a repeat drug offender, pursuant to N.J.S.A. 2C:43-6f. Under this statute, the extended term becomes mandatory upon application by the prosecutor.
Ibid. With imposition of an extended term, the range for a first-degree possession with intent to distribute CDS is twenty years to life, with one-third to half served without parole. Ibid.; N.J.S.A. 2C:43-7a(2). The trial court determined it was obligated, pursuant to N.J.S.A. 2C:43-6f, to impose an extended term sentence on defendant, given that he was convicted of a school zone offense in 1995.
The trial court found the existence of aggravating factors three, the risk defendant will commit another offense, N.J.S.A. 2C:44-1a(3); six, the extent of defendant's criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1a(6)); and nine, the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). The trial court found no mitigating factors.
For sentencing purposes, count one of the indictment, third-degree possession of CDS, merged with count two, first-degree possession of CDS with intent to distribute. The trial court sentenced defendant to thirty years' incarceration with a fifteen-year period of parole ineligibility, in accordance with the extended term range. N.J.S.A. 2C:43-7a(2).
When reviewing defendant's sentence we may not substitute our own judgment for that which is left in the sound discretion of the trial judge. State v. Kirk, 145 N.J. 159, 175 (1996). With that in mind, we are satisfied defendant's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984). Affirmed.