August 12, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JORGE FELICIANO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 29, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-10-2749.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, on the brief).
Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Pogany, on the brief).
Before Judges Graves and Espinosa.
In a four-count indictment, defendant Jorge Feliciano was charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a) (count one); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two); third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); second-degree possession of cocaine with intent to distribute within 500 feet of a public housing complex, N.J.S.A. 2C:35:7.1 (count four); and a disorderly persons offense, possession of drug paraphernalia, N.J.S.A. 2C:36-2. Following a jury trial, defendant was acquitted of counts two, three, and four (the distribution charges), but he was convicted of count one (possession). The court found defendant not guilty of the disorderly persons offense and sentenced him to a three-year period of probation with sixty hours of community service. Mandatory penalties and assessments were also imposed.
Defendant presents the following argument on appeal:
THE OFFICERS' OPINION TESTIMONY IN THIS CASE OVERSTEPPED THE BOUNDARIES OF STATE V. MCLEAN,  (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART 1, PARS. 1, 9, 10). (Partially Raised Below).
We conclude from our examination of the record that the officers' opinion testimony was harmless, and we affirm.
The State presented testimony from Timothy Carey, an agent with the Department of Homeland Security (DHS), who was involved in surveillance of a home on Highland Avenue in Newark on August 26, and 27, 2008. The home appeared to be a single family residence, but Carey later learned "there were multiple people in multiple apartments" residing at the home. Carey testified that on August 26, 2008, while conducting surveillance, he saw "people coming and going" from the home:
[W]e did see three younger Hispanic males occasionally come in and out of the residence [and] we did not know who they were at the time. Occasionally, people would drive into the driveway and they would meet people in the driveway. Occasionally, sometimes [they] would go in the front door. Sometimes . . . the males would come down the driveway and meet individuals on the street and talk to people in vehicles.
. . . Occasionally, someone would walk out, nothing was in that person's hands. As they approached the vehicles, they would reach, and I couldn't see exactly where if it was in a coat pocket or a pants pocket, something was in their hand, I could not tell what it was, they would reach into the passenger side window of the vehicle, because they pulled off to the right, I could not see what had transpired, they would retract from the vehicle and then go back up the driveway.
According to Carey, he observed the same behavior on August 27, 2008. Carey, over defense counsel's objection, testified that "[b]ased on [his] knowledge, training, [and] experience . . . [the interaction] appeared to possibly be a narcotics transaction." Carey identified defendant as one of the males who was "talking to vehicles and individuals on the street." DHS Agent Dexter Shaw provided similar testimony: "I believed that it was possibly some narcotics trafficking going on at that point, but I could not observe that."
At approximately 12:00 a.m. on August 28, 2008, Carey and two other officers, with their badges displayed, knocked on the front door of the Highland Avenue home. A young Hispanic female opened the door and allowed the officers into the house. The officers then walked down a shared hallway that led to the driveway and a three-car garage behind the house. All three bays of the garage were closed at the time. Carey and the other officers announced their presence as they approached the garage, and defendant exited the garage through a side door. Several other individuals also exited the garage.
Carey spoke with defendant and obtained consent to search the garage, his apartment, and his car. According to Carey, defendant said he resided in the house and had access to "part of the garage, " but other areas belonged to other people who lived in the house. Carey testified that he explained the consent form to defendant, and defendant signed the form.
Carey testified that during the search of the garage, he recovered a "[c]lear plastic baggie with white powder inside the baggie." Carey further stated that based on his "training and experience" he "believed [the baggie] contained cocaine." After locating the suspected cocaine, Carey read defendant his Miranda rights and continued to search the garage. According to Carey, the officers eventually found "three other bags of suspected cocaine" in the area of the garage that "defendant had indicated was his area." Carey testified that defendant admitted the cocaine was his:
I said, listen, we found what we believe to be cocaine. And I said, not a small amount of cocaine. And I said, I'm not sure if it's cocaine. And he said, well, the other one's going to get in trouble, and I don't want my girlfriend to get in trouble. And I said, what do you mean by that. He said, I don't want her in trouble, the cocaine [is] mine.
Detective Thomas Primo of DHS also searched the garage. Primo testified that "based on [his] training and experience" he believed the white powder in the bags recovered from the garage was cocaine.
After searching the garage, Carey testified the officers searched defendant's apartment. According to Carey, "on top of [a glass] table was a rolled up dollar bill . . . . And also there was residue powder distributed on top of the [glass] table." Carey said he believed the residue to be narcotics. During the search of the apartment, the officers seized a plastic bottle of lactose, a glass candle, a plastic mixing bowl, a scale, and $2376. According to Carey, defendant denied he was a drug dealer.
DHS Agent Jeff Thompson was also present during the search of the apartment. Thompson testified he asked defendant "about the powder" on the glass table, and defendant said, "it belonged to him, and that he had been using cocaine earlier in the day, and that it was in fact cocaine." In addition, Thompson testified he believed the "white powdery substance" on the table was cocaine.
Carey testified the four bags seized from the garage were tested, and the lab report indicated the bags contained 28.1142 grams of cocaine. The report was admitted into evidence at the close of the State's case.
Detective Reginald Holloway of the Essex County Sheriff's Office testified as an expert in the "field of narcotics." Holloway testified the plastic bottle of lactose recovered from the apartment could be used as a "mixing agent" to "lessen the . . . purity of the cocaine, while at the same, allowing the distributor to expand on his or her profit." Holloway additionally testified the scale and mixing bowl could be used by "someone who is selling or distributing drugs."
Defendant testified on his own behalf. Defendant said he was living at the house on Highland Avenue with his girlfriend Leza Gonzalez. Defendant maintained that on August 26 and 27, 2008, he was at work and not at home from approximately 9:00 a.m. until after 9:00 p.m.
Defendant also testified the officers placed him in handcuffs before going to his apartment. Defendant denied there was residue on the glass table and denied he was a drug user. Defense counsel asked defendant if the cocaine was his:
Q. Now, you're shown the bag . . . and the cocaine. Now, with respect to those items . . . are they yours?
Q. Now, you made a statement to the agents, and you admitted that these were your drugs. Why did you do that?
A. Because of the pressure that I was under and the physical force used against me.
Q. Now, my question to you once again [is] why did you admit that the drugs were yours?
A. The pressure that I was under and they were threatening that they were going to take my girlfriend, both.
Q. Well . . . how did the topic of your girlfriend come into play with respect to . . . the drugs?
A. Because she was the one who had that place rented and the . . . garage, and so they wanted to take her away.
Defendant additionally testified he was handcuffed to a chair in the apartment and was thrown to the floor by one of the officers.
Gonzalez testified on defendant's behalf and confirmed he did not return to the apartment until "about 9:30 [or] 9:40 [p.m.]" on August 27, 2008. She also denied there was a "white powdery substance" on the glass table.
During summations, defense counsel argued, "In determining whether or not my client possessed that cocaine it's not enough that he controlled it or had rented that area." The State argued that even though defendant did not have the drugs "on him, " he "still possessed the drugs, " and there was "no question that the drugs that were found . . . are cocaine."
Defendant first argues that the court erred in permitting Carey and Shaw, who were not qualified as experts, to testify "based on their knowledge, training and experience, that they believed narcotics transactions were occurring" at the Highland Avenue house. In McLean, supra, 205 N.J. at 461, the Court rejected the State's argument that a police officer may give lay opinion testimony "about a belief that the transaction he or she saw was a narcotics sale." A reference to the officer's "training and experience, coupled with [a] request that he [or she] testify about his [or her] belief as to what happened" asks for an expert opinion. Id . at 462. The Court explained "the boundary line" between factual testimony and expert opinion testimony as follows:
On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. Fact testimony has always consisted of a description of what the officer did and saw, including, for example, that defendant stood on a corner, engaged in a brief conversation, looked around, reached into a bag, handed another person an item, accepted paper currency in exchange, threw the bag aside as the officer approached, and that the officer found drugs in the bag. Testimony of that type includes no opinion, lay or expert, and does not convey information about what the officer "believed, " "thought, " or "suspected, " but instead is an ordinary fact-based recitation by a witness with first-hand knowledge. In Nesbitt we concluded that such testimony sets forth facts that are not so outside the ken of jurors that they need an expert to spell out for them whether that defendant engaged in a criminal transaction and that offering an expert in those circumstances would be improper.
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. 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. Similarly an expert may explain the significance of quantities of narcotics or its significance of quantities of narcotics or its distinctive packaging, which are matters that would not otherwise be known by an average juror.
[Id. at 460-61 (internal citations and quotation marks omitted).]
In our view, the lay testimony by Carey and Shaw regarding possible narcotics trafficking at the Highland Avenue house is precisely the type of testimony that was rejected by McLean. Nevertheless, the jury rejected the testimony by Carey and Shaw that defendant was involved in "drug trafficking" and acquitted the defendant of the distribution charges. Under these circumstances, the improper testimony was clearly harmless. See R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result.").
Defendant also challenges the officers' lay testimony that offered "a conclusion that the white powder was, in fact, cocaine." Because there was no objection to this testimony at trial, we infer that defense counsel did not consider the testimony to be significant in the context of the trial. State v. Macon 57 N.J. 325 333 (1971) In addition because there was overwhelming evidence that the substance was cocaine this testimony was not "clearly capable of producing an unjust result" R 2:10-2 Here a lab report was admitted into evidence identifying the substance as cocaine defense counsel referred to the substance as cocaine during summation and defendant admitted he "told the officers that the drugs were [his]" Thus any possible error did not have the capacity to affect the outcome of the trial and we find no basis to overturn defendant's conviction for possession of cocaine.