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State v. Hyman

Superior Court of New Jersey, Appellate Division

August 16, 2017

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
ELEX HYMAN, Defendant-Appellant.

          Argued November 9, 2016

         On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-11-2077.

          John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief).

          William Kyle Meighan, Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Mr. Meighan, on the briefs) .

          Appellant filed a pro se supplemental brief.

          Before Judges Ostrer, Leone and Vernoia.

          OPINION

          OSTRER, J.A.D.

         A jury found defendant Elex Hyman guilty of possessing cocaine with intent to distribute and conspiring to do so, both second-degree offenses. N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), -5(b)(2). On appeal, defendant principally argues the court erred in admitting as lay opinion testimony under N.J.R.E. 701 the lead investigative detective's interpretation of drug-related slang and code words that defendant and others used in recorded wiretapped conversations.

         We agree the detective's testimony interpreting the slang and code words was in the nature of expert opinion. However, the court's error was harmless in view of the detective's qualifications to testify as an expert, and the overwhelming evidence of defendant's guilt. We therefore affirm the conviction.

         I.

         As part of an ongoing investigation of cocaine distribution, the Ocean County Prosecutor's Office obtained wiretap orders in January 2010, authorizing the State to intercept conversations from telephone numbers used by co-defendants Daniel Rogers and Travell Nickey. Thereafter, the State overheard conversations on February 5 and 7, 2010, in which defendant agreed to purchase 200 grams of cocaine from Rogers, with Nickey serving at times as an intermediary. The State also intercepted conversations indicating that Rogers intended to drive to defendant's home to deliver a 100-gram package of cocaine. Officers later observed Rogers arrive and briefly meet with defendant outside his home.

         Based on the intercepted communications and the surveillance, officers obtained a warrant to search defendant's home. In the search that followed on February 20, 2010, police seized 50.5 grams of cocaine from a laundry room shelf; the wiretapped cell phone; a money counter; a digital scale; and over $3000 in cash. In a Mirandized statement, [1] defendant admitted that the seized cocaine was his.

         Defendant was tried separately from eight other defendants, including Nickey and Rogers, who allegedly participated in the conspiracy to manufacture, distribute or possess with the intent to distribute cocaine. After a N.J.R.E. 104 hearing, and over a defense objection, the court permitted the State to elicit, as lay opinion, the lead investigating detective's interpretation of drug-related jargon.

         In the N.J.R.E. 104 hearing, Detective David Fox testified he had been involved in hundreds of drug-related investigations, including close to twenty wiretap investigations, and he had become familiar with certain drug-related jargon. He testified that some terms were "universal" to the drug culture, and others unique to a particular drug network. However, in this case, all the terms used had come up in past investigations.

         The court expressed concern that Fox's testimony came close to addressing the "ultimate issue" and suggested the State limit his testimony solely to his understanding of what the different slang phrases meant:

I will allow Detective Fox to be questioned as originally I thought, that being that he's going to be ask[ed] to interpret certain phrases in the transcripts and that are played for the jury. And that's his purpose and I've heard enough to be able to indicate, in my opinion, that he qualifies to give testimony as a lay opinion in that the detective is using his own senses to acquire knowledge of the street slang or street language related to drug and illegal activities, and that he can give the jury some guidance because it is outside of their knowledge and outside of the Court's knowledge as to what those terms refer to.
And I am going to, however, limit and I will sustain any objection if we get into any areas where he's giving an opinion concerning what the mental state of the individual or any of the individuals on the recordings or in the transcripts are, because I don't think that that's, he's not being qualified as an expert and I don't think he should be allowed to do that.

         Consistent with the court's direction, the prosecutor did not ask Fox to offer an opinion expressly attributing a state of mind or intent to the overheard speaker. However, after playing each recording for the jury, which followed along with a transcript, the prosecutor asked Fox to provide, based on his "training and experience and knowledge of this investigation, " his "interpretation of" a word or a phrase "as . . . used in" or "in the context of" the recorded conversation.

         Fox opined: "that shit is good" referred to the quality of cocaine; a "buck, " used repeatedly, meant "100 grams of cocaine"; "two one's" and "two 100s" referred to "two separate individual packages of 100 grams of cocaine"; "make it one and a half" meant "150 grams of cocaine, one individual pack for 100 grams of cocaine, one for 50 grams of cocaine"; "up top" referred to the New York area; "he still want?" meant whether a person was "[s]till looking to purchase a quantity of cocaine"; "you good?" inquired "if somebody still has a current supply of cocaine"; and "hit you up" (which is transcribed as "hitchu up") meant calling another when ready to purchase cocaine.

         Assuming the accuracy of those interpretations, the conversations supported the State's contention that defendant agreed to purchase 100 grams of cocaine on two occasions. On cross-examination, Fox rejected suggestions that many of the words used had their common meaning outside the criminal milieu, and that defendant was discussing a potential loan of $100 or $200 dollars.

         Defendant testified briefly in his own defense solely to challenge whether a particular phone number belonged to Nickey. However, on cross-examination, defendant admitted that State witnesses had accurately identified him, Nickey, and Rogers on the recordings. He also answered affirmatively when asked whether, on February 5, 2010, he "had agreed to purchase 100 grams of cocaine from Mr. Rogers with Mr. Nickey's assistance and he met you at your house . . . for that purpose . . . ." He conceded that he did so again two days later.

         The jury found defendant guilty of the conspiracy and the substantive offense noted above. The court granted the State's motion for an extended term, based on a prior possession-with-intent-to-distribute conviction, and imposed a fourteen-year term on the substantive charge, with a six-year period of parole ineligibility. The court imposed a five-year concurrent term on the conspiracy charge.

         Defendant raises the following points on appeal:

POINT I
THE JUDGE FAILED TO QUALIFY FOX AS AN EXPERT WITNESS DESPITE TESTIMONY THAT WAS BEYOND THE KEN OF THE AVERAGE JUROR, AND PERMITTED FOX TO TESTIFY IMPROPERLY AS A LAY WITNESS. MOREOVER, THE JUDGE ERRED IN DEVISING A HYBRID JURY INSTRUCTION THAT INCORPORATED PART OF THE EXPERT WITNESS JURY CHARGE, BUT NONETHELESS REFERRED TO FOX AS A LAY WITNESS, THEREBY CONVEYING THAT LA[Y] OPINION HAD THE AUTHORITY OF EXPERT OPINION. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. 1, PARS. 1, 9, 10). (Partially raised below).
A. The Judge Failed To Qualify Fox As An Expert Witness Despite Testimony That Was Beyond The Ken Of The Average Juror, And Fox Provided Testimony That Exceeded The Scope Of Permissible Lay Opinion.
B. The Judge Concocted A Hybrid Jury Instruction To Cover Only Fox's Testimony, But Still Characterized Him As A Lay Witness, Despite Incorporating A Few Sentences From the Expert Witness Model Charge.
POINT II
THE SENTENCING IMPOSED WAS MANIFESTLY EXCESSIVE AND THE JUDGE FAILED TO MERGE THE CONSPIRACY TO POSSESS WITH INTENT TO DISTRIBUTE CONVICTION INTO THE UNDERLYING POSSESSION WITH INTENT TO DISTRIBUTE CONVICTION.

         Defendant presents the following additional point in a pro se supplemental brief:

DEFENDANT IS ENTITLED TO A REVERSAL OF HIS CONVICTION AND A NEW TRIAL BASED ON THE FACT THAT DEFENSE COUNSEL WAS INELIGIBLE TO PRACTICE LAW IN THE STATE OF NEW JERSEY AT THE TIME OF HIS REPRESENTATION IN THIS MATTER, IN VIOLATION OF THE DEFENDANT'S RIGHT TO COUNSEL GUARANTEED BY THE U.S. CONSTITUTION, AMEND. VI, AND NEW JERSEY CONSTITUTION, ART. I, ¶ 10.

         II.

         We apply a deferential standard of review to the trial court's evidentiary rulings. "The necessity for, or propriety of, the admission of expert testimony, and the competence of such testimony, are judgments within the discretion of the trial court." State v. Zola, 112 N.J. 384, 414 (1988), cert, denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed.2d 205 (1989); see also Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010) (stating, "the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion").[2] However, when the trial court applies the wrong legal test when analyzing admissibility, we review the issue de novo. Konop v. Rosen, 425 N.J.Super. 391, 401 (App. Div. 2012).

         A.

         We first discuss fundamental principles governing lay and expert opinion testimony, noting that the proponent of opinion evidence bears the burden to establish its admissibility. State v. Torres, 183 N.J. 554, 567 (2005).

         Lay opinion testimony is governed by N.J.R.E. 7 01, which states:

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.

         The witness's perception must "rest[] on the acquisition of knowledge through use of one's sense of touch, taste, sight, smell or hearing." State v. McLean, 205 N.J. 438, 457 (2011) (citations omitted); see also N.J.R.E. 602 ("Except as otherwise provided by Rule 703 (bases of opinion testimony by experts), a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.").

         Examples include opinions about a vehicle's speed, based on seeing or hearing it go by; and a person's intoxication, based on seeing, hearing, and smelling the person. Ibid, (citations omitted). As the McLean Court explained, police officers may also offer lay opinions on such subjects as a person's narcotics intoxication, ibid, (citing State v. Bealor, 187 N.J. 574, 588-89 (2006)); the point of impact between vehicles involved in a collision, id. at 459 (citing State v. LaBrutto, 114 N.J. 187, 197-99 (1989)); and "whether a neighborhood [was] a ...


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