Opinion
DOCKET NO. A-4301-12T2
05-26-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARKEES KING, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephen J. Natoli, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-18-0735 and 12-02-00279. Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephen J. Natoli, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
In 2010, at the age of nineteen, defendant pleaded guilty to a drug distribution offense and was sentenced to 364 days in the Hudson County Jail and three years of probation. He was released from jail in January 2011 after serving 174 days in custody. Nine months later, while on probation, he was again found to be selling illegal drugs on the street in Jersey City.
Defendant was arrested and subsequently charged in an eleven-count indictment along with two co-defendants. In 2012, a jury convicted him of all eleven counts. As a repeat offender, he was sentenced to eight years in State prison with four years to be served before he might be paroled. He now appeals his conviction, alleging evidentiary errors at his trial. We find no reversible error and affirm the conviction.
The evidence at defendant's trial showed the following facts. On the morning of September 19, 2011, Jersey City police officers set up surveillance outside a three-story private residence on Grant Avenue located in a "very high narcotic area." Sergeant Stephen Trowbridge was supervising the "perimeter police units" of the surveillance team. Officer Anthony Goodman was concealed near the Grant Avenue house observing activities on the street and reporting what he saw to the perimeter officers.
At 10:15 a.m., Goodman saw defendant standing on the sidewalk in front of the house talking to some men. When the group dispersed, defendant entered the house. At about 10:30, Goodman saw defendant looking out a second-floor window. At the same time, he observed a man later identified as Edward Wright standing on the sidewalk across the street and looking-up towards the second-floor window.
A short time later, Wright walked across the street and stopped at the entrance steps to the house. Defendant came out and stood on the top step. Wright threw money onto the steps, and defendant then handed Wright a small object. Goodman alerted the perimeter police units that he "just had a sale." At about the same time, Goodman observed a second man engage in what he believed was "a sale" of drugs and reported that observation to the other police officers. Defendant then re-entered the house on Grant Avenue.
After Wright left the area of the house and was a few blocks away, the police arrested him and found on his person a glassine bag marked "Ninja," which tested positive as containing heroin. The police were not able to find the second man reported by Officer Goodman. Defendant was arrested when he came out of the house. A search incident to his arrest revealed he was in possession of a small amount of marijuana and $132 in cash in various denominations.
After the arrests of Wright and defendant, Sergeant Trowbridge and other officers were granted entry to the Grant Avenue house by a first-floor tenant. Trowbridge looked inside a barbecue grill in the first-floor hallway and saw a handgun concealed there. Trowbridge then went to the second floor and saw a partially open apartment door. From the hallway, he looked into the apartment and saw only a couch and "debris thrown about." He believed the apartment was vacant. Trowbridge entered and saw a television with a video gaming system, backpacks, sneakers, clothing, and another couch. He looked through the rooms to see if anyone was in the apartment but found no one. Instead, he found and seized forty glassine bags of heroin stamped "Ninja," thirty-five Ziploc baggies of marijuana, and several hundred dollars in cash.
Since the police could not connect the gun to defendant or his co-defendants, they were not charged with any weapons offenses.
At the trial, Jersey City Police Sergeant Christopher Robateau was qualified as an expert in the field of packaging and distribution of illegal drugs. He testified that in his opinion the heroin and marijuana found in the apartment were possessed for sale, not for personal use. The prosecution also presented testimony that the Grant Avenue house is within 500 feet of a public library and within 1,000 feet of a public school.
The jury convicted defendant of: (count one) third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1); (count two) third-degree possession of less than one-half ounce of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)(3); (count three) third-degree possession of heroin with intent to distribute while within 1,000 feet of a school, N.J.S.A. 2C:35-7; (count four) second-degree possession of heroin with intent to distribute while within 500 feet of a public building, N.J.S.A. 2C:35-7.1; (count five) fourth-degree possession of less than one ounce of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)(12); (count six) third-degree possession of marijuana with intent to distribute while within 1,000 feet of a school, N.J.S.A. 2C:35-7; (count seven) third-degree possession of marijuana with intent to distribute while within 500 feet of a public building, N.J.S.A. 2C:35-7.1; (count eight) third-degree distribution of less than one-half ounce of heroin to Edward Wright, N.J.S.A. 2C:35-5(a)(1), -5(b)(3); (count nine) third-degree distribution of heroin to Edward Wright while within 1000 feet of a school, N.J.S.A. 2C:35-7; (count 10) second-degree distribution of heroin to Edward Wright while within 500 feet of a public building, N.J.S.A. 2C:35-7.1; (count eleven) third-degree conspiracy to distribute heroin, N.J.S.A. 2C:5-2.
At defendant's sentencing hearing on December 21, 2012, the court granted the State's motion pursuant to N.J.S.A. 2C:43-6(f) to sentence defendant to a mandatory extended term as a repeat drug distribution offender. The court merged the counts of the conviction that were based on the same conduct and sentenced defendant as follows: (count four) eight years in prison with four years of parole ineligibility; (count six) a concurrent term of five years in prison with three years of parole ineligibility; and (count ten) a concurrent term of five years in prison with three years of parole ineligibility.
On appeal, defendant argues:
POINT I
GOODMAN'S AND TROWBRIDGE'S 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). (Not Raised Below)
POINT II
THE STATE'S EXPERT WITNESS IMPROPERLY INVADED THE PROVINCE OF THE JURY BY OFFERING TESTIMONY AS TO THE ULTIMATE ISSUE OF WHETHER DEFENDANT POSSESSED THE DRUGS RECOVERED WITH THE INTENT TO DISTRIBUTE. (Not Raised Below)
POINT III
THE TESTIMONY OF TWO STATE'S WITNESSES THAT THE NEIGHBORHOOD WAS NOTORIOUS FOR DRUG USE AND DISTRIBUTION WAS IRRELEVANT AND UNDULY PREJUDICIAL. THE PREJUDICE WAS COMPOUNDED BY THE PROSECUTOR'S CLOSING REMARKS WHICH ALSO CHARACTERIZED THE NEIGHBORHOOD IN SIMILAR VEIN. EACH INSTANCE IMPLIED GUILT BY ASSOCIATION AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL. (U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART 1, PARS. 1). (Not Raised Below)
POINT IV
THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANTS REVERSAL OF HIS CONVICTION. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART 1, PARS. 1, 10). (Not Raised Below).
Because defendant did not raise any of these issues during the trial, our standard of review requires that we find plain error under Rule 2:10-2 before we may reverse the conviction. Under that standard, we must conclude that an error was "clearly capable of producing an unjust result," ibid., or in other words, that it was "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached . . . ." State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Defendant must prove that a plain error was clear and obvious and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997 ).
Here, defendant alleges plain error in the testimony of Officer Goodman describing his communication to the perimeter units in terms of defendant and Wright engaging in "a sale" of illegal drugs. He also alleges plain error in the testimony of both Goodman and Sergeant Trowbridge explaining why the police did not arrest a "buyer" closer to the location of the surveillance, specifically, to avoid revealing the police activity to the "dealer." Essentially, defendant argues that the use of those terms informs the jury of the police witnesses' opinion of defendant's guilt, which is the type of testimony prohibited by State v. McLean, 205 N.J. 438 (2011).
Defendant seeks to extend the holding of McLean to the particular words used by the police witnesses rather than the entirety of their answers to the questions they were asked. Especially in the absence of an objection by trial counsel that could have addressed any asserted prejudicial effect of the words used by Goodman and Trowbridge, we find no plain error.
In McLean, a case factually similar to this case, the Supreme Court held inadmissible the testimony of a police officer on surveillance that the defendant had engaged in "two suspected hand-to-hand drug transactions" and also would "retrieve his suspected drugs from his suspected drug stash" inside a car parked nearby. Id. at 445. Unlike in this case, the police in McLean had not been able to apprehend either of the two persons to whom the defendant had allegedly sold illegal drugs, and they had not seized the drugs that were allegedly purchased. Id. at 443-44.
The Court stated that the officer had not been qualified as an expert in drug transactions to provide his opinion regarding the nature of the exchange between the defendant and the other persons that he had observed. Id. at 461-62. Furthermore, the challenged testimony would not have been admissible under N.J.R.E. 702 even from a qualified expert witness because the officer's observations and the conclusions to which they led "were not outside the common understanding of the jurors." McLean, supra, 205 N.J. at 462 (citing State v. Nesbitt, 185 N.J. 504, 514-16 (2006)).
The Court also held in McLean that the officer's challenged testimony was not admissible as lay opinion testimony under N.J.R.E. 701 because such lay opinions cannot be admissible when similar expert testimony is not, and they too would not assist the jury in understanding the facts as actually observed by the officer. McLean, supra, 205 N.J. at 462-63.
While this case bears similarities to McLean, its specific facts are distinguishable. First, Officer Goodman's testimony that he "radioed . . . perimeter units that I just had a sale" was not presented to the jury as the officer's conclusion about the nature of the transaction he observed. Rather, it was responsive to a question on direct examination asking what Goodman did after he observed Wright throw money on the steps and defendant hand him a small object. Thus, the question itself was posed less prejudicially than the questions that elicited the officer's inadmissible opinion testimony in McLean.
Second, the subsequent references by Officer Goodman and Sergeant Trowbridge to "buyer" and "dealer" were not presented as either facts about this case or as the officers' conclusions regarding the interactions of defendant with Wright and the second unidentified man. They were abstract references to drug dealing activity and the reasons for the responsive tactics of the police officers.
Third, unlike in McLean, Wright was apprehended by the police a few minutes after meeting with defendant, and a baggie containing heroin was seized from him. The baggie had the same markings as forty additional baggies of heroin seized from the second-floor apartment where defendant was observed just before his encounter with Wright. Officer Goodman's conclusion about what he observed in the encounter was much less significant in the totality of the evidence presented to the jury than the officer's opinion testimony was in McLean.
Fourth, defense counsel raised no objection to the testimony and, in fact, pursued cross examination that contained the same shorthand references to the observations made by Officer Goodman and the tactics employed by Sergeant Trowbridge. Defense counsel's use of the same language in formulating questions indicates there was no perception that the jury would abdicate to the police officers its duty to determine what the facts were and whether those facts proved defendant's guilt beyond a reasonable doubt. Nothing in the direct or cross examinations of the officers implied to the jury that it should simply trust in the officers' experience and judgment in concluding that defendant was guilty of the charges.
Had defense counsel objected to the words used by the officers, the court could have cautioned the jury that Goodman's belief that he had observed sales of illegal drugs was not evidence, or that the general references to "buyer" and "dealer" were not evidence that defendant was guilty of the crimes. The court could have emphasized to the jury that it alone bore the function of determining the facts and conclusions to be drawn from those facts, not the police officers who could only convey factual testimony about what they had observed or the reasons they took certain actions.
The absence of an objection and the totality of the evidence in this case lead us to conclude that the use of the disputed words was not particularly prejudicial or likely to lead "the jury to a result it otherwise might not have reached . . . ." Macon, supra, 57 N.J. at 336. It was not plain error. R. 2:10-2.
Similarly, there was no plain error in the testimony of the two officers that they set up surveillance in a high-crime area. Citing several Florida cases, defendant requests that we hold as a matter of first impression in this State that such a reference is irrelevant, prejudicial, and inadmissible, and that it constitutes reversible error in a criminal prosecution. We decline to do so.
E.g., Fleurimond v. State, 10 So.3d 1140, 1145 (Fla. Dist. Ct. App. 2009); Wheeler v. State, 690 So.2d 1369, 1371 (Fla. Dist. Ct. App. 1997).
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The general reference to criminal activity in the neighborhood was relevant to establishing the bona fides of the police investigative actions. It gave no indication that the police had information from an undisclosed source that defendant himself was engaged in selling drugs. See State v. Bankston, 63 N.J. 263, 271 (1973) (testimony of a police officer that an informant "had told the [police] that [the] defendant was committing a crime" was "clearly hearsay"); State v. Luna, 193 N.J. 202, 217 (2007) ("testimony should be limited in a manner that allows the witnesses to provide appropriate context but not secondhand details about the crime or the defendants"); State v. Roach, 146 N.J. 208, 224-25 (distinguishing between police testimony about out-of-court information that specifically implicates defendant and that directs the police to an investigative location), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). The officers' passing reference to a high-crime area was not plain error that prejudiced defendant's right to a fair trial.
Next, defendant argues that the State's drug distribution expert, Sergeant Robateau, was permitted to testify improperly about the specific evidence in this case and, in effect, to present his opinion to the jury that defendant was guilty of possession with intent to distribute the heroin and marijuana found in the apartment.
Robateau testified about his knowledge of the street drug trade in Jersey City. He testified about the packaging and quantity of heroin and marijuana available for sale to individual users. He explained the purpose of the "Ninja" markings as a marketing device, and made reference to the denominations of cash found on defendant and in the apartment as indicative of sales activity. He also testified about the baggies in which the drugs in this case were found, indicating that, in his experience, the quantity found in the apartment would not be economical to buy for personal use.
Defendant argues plain error in that the prosecutor's questioning of Robateau on those subjects was not couched in terms of hypothetical facts but was based directly on the evidence in this case. He argues that the manner the questions were posed was contrary to the limitations placed on drug distribution experts by State v. Odom, 116 N.J. 65 (1989), and State v. Sowell, 213 N.J. 89, 107 (2013). Having reviewed the transcript of Robateau's testimony, we do not find sufficient merit in defendant's argument to warrant extensive discussion of defendant's contentions in a written opinion. R. 2:11-3(e)(2). While a few of Robateau's answers may have contravened the restrictions on expert testimony discussed in Odom and Sowell, there were no objections made to those questions and answers, and the overall tenor of the expert testimony was an explanation of drug sales activities in the abstract rather than the expert's assessment of the evidence the police had gathered against defendant.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION