December 26, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
DEBERAL ROGERS, a/k/a DEBERAL A. ROGERS, DEBORAL ROGERS and DEBRA ROGERS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 11, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-05-0758.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Fisher and Grall.
The grand jurors for Middlesex County charged defendant Deberal Rogers and Lameen A. Hill with third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1); second-degree possession of a controlled dangerous substance with intent to distribute one-half ounce or more of cocaine, N.J.S.A. 2C:35-5a(1), b(2); conspiracy to distribute cocaine, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35—5; and possession of cocaine with intent to distribute it in a school zone, N.J.S.A. 2C:35-7. Prior to defendant's trial, the State dismissed the conspiracy and school zone charges and Hill pled guilty to third-degree possession of cocaine pursuant to a plea bargain that called for the State to dismiss all other charges against him. Consequently, Hill testified for the State at defendant's trial, which was held before Hill was sentenced.
The jury found defendant guilty of third-degree possession and second-degree possession of a controlled dangerous substance with intent to distribute. Following the verdict, the judge denied defendant's motion for a new trial, granted the State's motion for an extended sentence subject to a period of parole ineligibility, merged defendant's convictions, and sentenced her to a ten-year term of imprisonment, five to be served without possibility of parole for the second-degree crime. The extended term sought by the State was mandatory because of defendant's 1999 conviction for distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5b(3). See N.J.S.A. 2C:43-6f. Defendant appeals and raises these issues:
I. DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE STATE'S WITNESSES REPEATEDLY OFFERED INADMISSIBLE EXPERT OPINION TESTIMONY AS TO WHETHER ITEMS SEIZED WERE USED FOR NARCOTICS PACKAGING AND DISTRIBUTION AND TESTIFIED AS TO THE ULTIMATE ISSUE OF GUILT, THEREBY DEPRIVING DEFENDANT OF HER RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 1 AND 10). (Not Raised Below).
II. THE TRIAL COURT'S FAILURE TO CHARGE THE JURY ON HOW TO PROPERLY ASSESS BOTH THE CREDIBILITY OF A WITNESS WITH PRIOR CONVICTIONS AND A CO-DEFENDANT WHO IS COOPERATING WITH THE STATE DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS 1 AND 10). (Not Raised Below).
III.REPEATED REFERENCES TO THE SEARCH WARRANT WERE IRRELEVANT, UNNECESSARY, AND RESULTED IN PREJUDICE TO DEFENDANT, CREATING THE INFERENCE THAT ANOTHER COURT, WHICH HAD ISSUED THE WARRANT, HAD FOUND EVIDENCE OF CRIMINAL ACTIVITY AT THE RESIDENCE. (Not Raised Below).
IV. THE CUMMULATIVE IMPACT OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL.
V. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO THE MAXIMUM PAROLE DISQUALIFIER WHEN IT IMPOSED THE MINIMUM BASE TERM.
We have determined that the arguments advanced in support of Points II, III and IV have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). But for the reasons that follow, we conclude that the State's wholly improper presentation of opinion testimony from an investigating officer amounts to plain error warranting reversal of defendant's conviction for possession with intent to distribute.
The State's evidence consisted of testimony from Hill and the officers who executed a warrant authorizing the search of an apartment in Perth Amboy. On an afternoon in March 2009, Detective Mohamed Mohamed, of the Perth Amboy Police Department, parked in the lot of an apartment complex where he could see the door leading to one of the apartments. He saw several people — three to five different individuals — go to the door of the apartment and leave within a minute. The officer did not see who opened the door, and neither he nor any of the officers assigned to assist him detained or followed any of the visitors.
The detective had been outside in his unmarked police car for about two hours when defendant left the apartment complex in a Lexus with "a couple of children" and another woman. Other officers followed them to a doctor's office, and the officers arrested defendant as she left the office and took her back to the apartment. While defendant was gone, Detective Mohamed, who had stayed behind to watch the apartment, had seen other people come to the apartment and leave.
When the officers returned with defendant, Detective Mohamed used defendant's key to open the door to the apartment. The officers found four children and five adults inside.
One of the adults was Hill. By Hill's account, he went to the apartment to use the computer — something he did about four times a week. He was a friend of defendant's brother and had grown up with defendant and her brother. In fact, Hill allowed defendant to use the Lexus, which belonged to his cousin, to go to the doctor's office that afternoon. Two of the adults were defendant's parents, and another was her sister-in-law. There was no evidence establishing what connection the other adult, a woman, had with the apartment or with defendant.
Because there were outstanding warrants authorizing the arrest of Hill and both of defendant's parents, they were placed under arrest and the other women were allowed to leave. Before Hill was searched incident to his arrest, he told an officer he had cocaine, removed it from his underwear and surrendered the contraband.
During the subsequent search of the apartment, the officers found and seized 1.2 ounces of cocaine — some powder and some crack cocaine. They also seized over $13, 000 in cash, three digital scales and a box of plastic sandwich bags. The cocaine was found between the mattress and box springs of a bed in the only bedroom that contained "adult items." All of the clothing in that room was women's clothing. The parties stipulated that the substance found under the mattress was cocaine and to its aggregate weight. The cash was also found in that bedroom. The money was in the pockets of clothing — the pocket of a fur coat and the pocket of a pair of pink sweat pants. Hill acknowledged knowing where defendant's bedroom was, but he said he had never gone into that room.
The digital scales were found outside the bedroom. One was in a cabinet in the hallway near the bedroom where the cocaine was found. The other two scales and the plastic bags were found in the kitchen.
Hill acknowledged that he had been present when defendant had "a couple knocks" on her door, but he disclaimed any knowledge of defendant distributing drugs. Hill also explained that he did not "get into people's business" and had not seen who responded to the knocking. During his testimony, Hill admitted that he had pled guilty to possessing the cocaine he gave to the police who searched the apartment. He also admitted that he had prior convictions, including two for distribution of controlled dangerous substances, and he told the jurors about the prison sentences he served for those crimes. He said: "Every time I am in trouble, I go to jail for my stuff. I've been down there three times. I took jail for my stuff, never nobody else's stuff." Hill claimed that the cocaine he had with him that day was for his own use.
Hill denied any knowledge of the digital scales retrieved from the apartment. But he said a person would use scales of that type to weigh cocaine or anything else you could put on them.
None of the officers who testified at defendant's trial were qualified as experts. Nevertheless, two explained that digital scales like those they found are used to weigh drugs, and one officer noted that the scales would not hold anything that was a little bit bigger than a "pea." Two officers also explained that plastic sandwich bags are used to package drugs for sale.
The prosecutor directly elicited opinion testimony from a third officer, Sergeant Muntone, and defense counsel did not object to admission of his "expert" testimony. The pertinent questions and answers were as follows:
[Prosecutor:] Thank you, your Honor.
Q Sergeant, can you tell me where you are employed?
A I'm employed by the Middlesex County Prosecutor's Office.
Q How long have you been with the Prosecutor's Office?
A Next month, it will be 26 years.
Q Is that how long you have been a police officer?
A That's correct.
Q Currently, what is your assignment in the Prosecutor's Office?
A I'm a Sergeant in the Narcotics, Gang, and Organized Crime Task Force.
Q As obvious a question as this is, what specialties does that unit focus on?
A Primarily, our investigations are narcotic-related. . . .
Q Now, I don't think I asked you, how long have you been in that unit?
A Out of my 26, almost 26 years, I've been in narcotics for over 22 years.
Q I take it, then, you've had courses and trainings, or seminars, in the field of narcotics investigations?
Q And, in terms of the investigations, I take it, you've done — How many narcotics investigations have you been involved in?
A I've been involved in over four thousand narcotics investigations, over one thousand arrests. I've testified as an expert in Superior Court in excess of 85 occasions.
Q You became involved in an investigation of a Deberal Rogers; is that correct?
A That's correct.
Q What was your role in that investigation?
A I received a phone call from [one of the officers that was] basically, wanting to . . . execut[e] a search warrant.
[Defense Counsel:] Objection, your Honor. Hearsay.
Q Don't tell me what other people told you. Specifically, you were asked to do what?
A We were there to assist the Perth Amboy Police Department.
. . . . [Discussion of evidence seized omitted.]
Q With regard to that combination of items, based on your training and your experience, and the amount of cocaine that you have there, is that for personal use or for sale or distribution?
A Based on my training and experience, when you take the items, in their totality, now, many of you might have these Glad bags in your home. So, this, in and of itself, means very little. But when you put it in concert with the drugs, and the scales (indicating), it bolsters it. My opinion would be that these items — these items were possessed with the intent to distribute.
This testimony was improper. Although defense counsel did not object, appellate courts "may, in the interest of justice, notice plain error not brought to the attention of the trial court, " and do not disregard it if the error "is of such a nature and capacity as to have been clearly capable of producing an unjust result." R. 2:10-2. Plain error is error that 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.
The manner in which the opinion testimony was admitted and addressed at trial was plainly improper. In State v. McLean, 205 N.J. 438 (2011), the Supreme Court considered and disapproved of the practice of eliciting opinion testimony from an officer involved in the investigation that led to a defendant's prosecution for drug distribution. Id. at 443, 461-63. Like the prosecutor in McLean, the prosecutor in this case elicited the opinion testimony with "a question that referred to the officer's training, education and experience, [and] in actuality called for an impermissible expert opinion." Id. at 463. In McLean, the testimony was admitted over objection, and the Court reversed the conviction for several reasons, including that the expert opinion on the point was not necessary to help the jurors understand the evidence. Id. at 443, 445-46, 461-63.
The problem in this case is not that the opinion testimony was addressed within the common knowledge of the jurors. If properly presented, expert opinion would have been permissible to explain the relevance of the amount of cocaine possessed, the digital scales and the plastic sandwich bags found in the apartment, to the question whether the drug was possessed for personal use or for distribution. The trial court could well have concluded that these were matters "beyond the understanding of the jury" warranting expert testimony. State v. Sowell, 213 N.J. 89, 102 (2013). Indeed, the Supreme Court has held that "an expert in the use and distribution of unlawful drugs can assist the jury by offering his opinion based on special knowledge and experience about the characteristics that serve to identify drugs that are being held for sale or distribution." State v. Odom, 116 N.J. 65, 80-81 (1989).
The problem here is that the Supreme Court established a framework for admission of such testimony in Odom that was not followed. Because the prosecutor did not seek to have the Sergeant Muntone qualified as an expert, this opinion testimony was introduced through the prosecutor's assessment of the adequacy of his qualifications and the need for the testimony — an approach undermining the trial court's role as gatekeeper. Sowell, supra, 213 N.J. at 99-100; see N.J.R.E. 104.
The Supreme Court has also determined that the expert opinion in drug prosecutions always involves some risk of prejudice, which is "significant if the expert witness is one of the investigating officers and also offers an opinion on an ultimate issue in the case." State v. Barry, 140 N.J. 280, 301 (1995). The balance of probative and prejudicial value of testimony is also a question for the trial court as gatekeeper. N.J.R.E. 403. Despite the Court's 1995 decision in Barry, this prosecutor directly asked an investigating officer to express an opinion on an ultimate issue.
In order "to reduce the risk that an expert's opinion will cross the line into an impermissible one by directly opining on guilt, " in Odom and McLean, the Court directed "the use of a hypothetical question that recites the relevant facts as the basis for the expert's opinion." McLean, supra, 205 N.J. at 454 (discussing Odom, supra, 116 N.J. at 82). But the prosecutor in this case did not pose this question as a hypothetical, he framed the question to ask for the officer's opinion on the reason the drugs admitted into evidence in this case were possessed.
The Court has further advised that experts responding to hypothetical questions should avoid "mimicking the precise language of a statute." Sowell, supra, 213 N.J. at 103 (citing Odom, supra, 116 N.J. at 79, 82). But in this case the "expert's" response was framed to recite the critical statutory language. Sergeant Muntone said, "My opinion would be that these items — these items were possessed with the intent to distribute." See N.J.S.A. 2C:35-5a(1).
Finally, and perhaps most importantly, the method the prosecutor employed to elicit this opinion testimony effectively circumvented another important protection against an expert invading the role of the jury — that is a careful instruction to the jury on "how to consider and use such testimony in their deliberations." Odom, supra, 116 N.J. at 81. This jury was given no guidance on how to consider Sergeant Muntone's opinion testimony.
We recognize that defense counsel failed to raise any of these objections at trial and that the prosecutor was either unaware of, or ignored, the limitations on expert testimony discussed by the Supreme Court in Barry and Odom. But "even if a defendant does not object, the trial judge has the responsibility both to exclude" improper opinion "testimony and to monitor the use of hypothetical questions when the testimony is warranted." Sowell, supra, 213 N.J. at 104 (citing State v. Nesbitt, 185 N.J. 504, 514-15 (2006)).
There is no question that when the evidence of guilt is overwhelming, the erroneous admission of expert testimony can be regarded as harmless error. Id. at 107. But that is not the case here. True, there was significant evidence to support a finding that defendant knowingly possessed the cocaine. Its location when the officers entered the apartment supports that conclusion. In contrast, there was adequate, but far from overwhelming, evidence supporting a finding that the drugs hidden under defendant's mattress were held for distribution rather than personal use. There was significant evidence that several persons, including Hill, were in her apartment before and after she left for the doctor's office. Moreover, the jury had absolutely no guidance on how to consider this investigating officer's opinion testimony on a material element of second-degree distribution.
For all of the foregoing reasons, we conclude that admission of the opinion testimony was clearly capable of producing an unjust result. R. 2:10-2. Accordingly, reversal of defendant's conviction for possession with intent to distribute the cocaine is required. Because defendant's conviction for possession with intent to distribute must be vacated, there is no reason to address defendant's objections to the sentence imposed for that crime.
In contrast, we affirm defendant's conviction for simple possession. Sergeant Muntone's opinion testimony had no relevance to defendant's conviction for simple possession. Moreover, as noted at the outset of this opinion, defendant's additional claims of error have no merit. Thus, while those claims would have implicated both convictions if meritorious, that is not the case.
Affirmed in part; reversed in part; and remanded for further proceedings.