Opinion
DOCKET NO. A-0149-10T4
07-23-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FERNANDO PEREZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Skillman.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-09-3030.
Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A jury found defendant Fernando Perez guilty of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7; second-degree employing a juvenile in a drug-distribution scheme, N.J.S.A. 2C:35-6; and third-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1). The judge merged defendant's convictions and, for the crime of employing a juvenile in a drug-distribution scheme, sentenced him to a fifteen-year term of imprisonment with a parole ineligibility term of seven-and-one-half years. The judge also imposed the requisite fines, penalties, fees and assessments.
On appeal defendant argues that reversal is required to address errors involving: opinion testimony given by the investigating troopers who were not qualified as experts; testimony about the crime area's notoriety for drug dealing; and the prosecutor's arguments stressing both. Although defense counsel did not object, the opinion testimony was improper and invaded the province of the jury. State v. McLean, 205 N.J. 438 (2011). Setting aside the irrelevant and prejudicial testimony about the neighborhood, admission of this opinion testimony was "clearly capable of producing an unjust result." R. 2:10-2. Accordingly, in the interest of justice, we reverse and remand for a new trial. Ibid.
At about 3:00 p.m. on a clear and dry day in April 2008, State Troopers Ryan Plantier and Thomas M. Rawls were patrolling in a marked troop car in the City of Camden, near the intersection of 6th and Royden Streets, an area within 1000 feet of a public school.
The troopers were assigned to the "high impact team" of the Strategic Investigations Unit and working on "high intensity crime suppression details." In that role, they "assist the [officers of the] Camden Police Department with quality of life crimes for the citizens that live [t]here, and [they] also do proactive work, doing narcotics investigations . . . ."
Plantier was familiar with the area because he had "been involved in numerous narcotics arrests" there. According to him, it is an "area of high drug sales [and] a lot of gun violence." Both troopers had seen hand-to-hand drug transactions and made arrests in the area before; it was one of their "main target areas." They had observed "a lot of drug activity" and "multiple sets" — pairs consisting of one person holding money and directing the buyer to another who keeps the drugs in a "stash" spot, rather than on his person in case "something" happens — in the area.
As the troopers approached the intersection, they were traveling at a speed of twenty-five mph or less. From a distance of about fifty yards, they saw a man approach a teenage girl, who accepted currency he gave her.
The troopers had an unobstructed view of that encounter and the events that followed. Plantier saw the teenage girl step closer and speak to the man but did not hear what was said. Rawls testified that she "directed" that man to defendant but did not describe what he saw or heard that led him to conclude that she had. After speaking to the teenage girl, the man crossed the street and talked to defendant, who was standing by a public trash can. Although there were other people around, the troopers did not see anyone else near the trash can during this incident.
Following a brief conversation with the man, which the troopers did not hear, defendant moved to the trash can, retrieved a pink box, removed "items" from it and returned the box to the trash can. Defendant then handed the man the object or objects he had taken from the box, and the man walked away.
The troopers then heard someone yell "state boys." They had different recollections about what defendant was doing at that time. Plantier recalled defendant being "next to the trash can" at the time of the shout and then crossing the street toward the teenage girl. As Rawls remembered it, defendant was already crossing the street when "state boys" was shouted and then altered his path toward the teenage girl. Neither trooper testified to observing defendant and the teenage girl interact as or after defendant approached her.
At that point, Plantier "radioed another unit in the area" and the troopers left their car. Trooper Joseph Dickerson, whose troop car was behind the one Plantier was driving, assisted Rawls with the arrest of defendant and the teenage girl. Plantier went to the trash can and retrieved the box, which was on top of other trash in the receptacle.
The box was a "Mike & Ike" candy box that contained fifty-three small heat-sealed bags of crack cocaine. The candy box and the drugs were admitted into evidence at trial, and the parties stipulated to the admission of a lab report identifying the substance as cocaine.
Defendant had no drugs and no money on his person but the teenage girl had $175 in cash, which consisted of $20, $10, $5 and $1 bills. The parties stipulated to the admission of the teenage girl's birth certificate, which established that she was sixteen years old when the incident occurred, and they stipulated that defendant was then twenty-two. The opinion testimony given by Plantier and Rawls and the use of that testimony by the prosecutor and defense attorney is discussed below.
Defendant did not present any testimony or evidence. On appeal he raise these issues:
I. THE TESTIMONY OF TWO STATE'S WITNESSES THAT THE NEIGHBORHOOD WAS NOTORIOUS AS A DRUG DISTRIBUTION AND "HIGH CRIME" AREA, WAS IRRELEVANT AND UNDULY PREJUDICAL, IMPLYING "GUILT BY ASSOCIATION," AND REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL. SIMILARLY, THE PROSECUTOR'S OPENING AND CLOSING STATEMENTS THAT THE AREA WAS A "NOTORIOUS DRUG DISTRIBUTION AREA" IN WHICH HOMICIDES HAD RECENTLY OCCURRED CONSTITUTED PROSECUTORIAL MIDCONDUCT. U.S. Const. Amends. V, XIV; N.J. Const. Art. I, [¶] 1. (Not Raised Below).
A. The Testimony of Two State's Witnesses That the Neighborhood Was Notorious As A Drug Distribution And "High Crime" Area, Was Irrelevant And Unduly Prejudicial.
B. The Prosecutor's Opening And Closing Statements That The Area Was A "Notorious Drug Distribution Area" In Which Homicides Had Occurred Recently Constituted Prosecutorial Misconduct.
II. THE TROOPERS' OPINION TESTIMONY IN THIS
CASE OVERSTEPPED THE BOUNDARIES OF STATE V. ODOM, 116 N.J. 65 (1989), BY NOT REFERRING TO THE EVIDENCE IN THE FORM OF A HYPOTHETICAL QUESTION, BY SPECIFICALLY REFERRING TO DEFENDANT AS THE PERSON THEY BELIEVED WAS DISTRIBUTING THE DRUGS AND BY THE COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY. ADDITIONALLY, THE OPINION TESTIMONY WAS UNNECESSARY TO THE STATE'S CASE AND SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403, AS ITS PROBATIVE VALUE WAS FAR OUTWEIGHED
BY THE PREJUDICE CREATED. U.S. Const. Amends VI, XIV; N.J. Const. Art. 1, [¶¶] 1, 9, 10.
A. The Investigating Officers' Opinion Testimony Overstepped The Boundaries Of State v. Odom, By Failing To Refer To The Evidence In The Case In the Form Of A Hypothetical And By Specifically Naming Defendant Within The Witness' Opinion As The Person Distributing The Drugs. Furthermore, The Court Failed To Comply With Odom By Instructing The Jury On This Testimony.
B. The Admission Of Opinion Testimony On An Ultimate Issue Denied Defendant A Fair Trial Because Such Testimony "Was [Not] Needed To Explain The Straightforward Manner In Which Those Transactions At Issue Took Place." State V. Nesbitt, 185 N.J. 504, 516 (2006).
III. THE SENTENCE OF FIFTEEN YEARS' IMPRISONMENT, HALF WITHOUT PAROLE, IS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.
The State presented the opinion testimony to which defendant objects without having either Plantier or Rawls qualified as an expert. In both instances, the opinion testimony was elicited after the trooper had explained what he observed, heard and did. There was no objection to the prosecutor's questions eliciting the troopers' opinions.
In McLean, the Court considered opinion testimony given by an officer who participated in an investigation that led to a defendant's prosecution for possession of CDS and possession of CDS with intent to distribute. 205 N.J. at 447. Like these troopers, the officer in McLean observed the exchange of money for some item he could not identify. Id. at 443-44. He gave testimony describing two such transactions. Ibid. In both transactions, defendant was approached by and spoke to someone, left that person, went into a parking lot, returned, gave the person an object the officer could not see and accepted what appeared to be cash. Ibid. In the midst of the second transaction, the officer, believing that the defendant had a "stash" of drugs in the parking lot, moved to a position where he could see into the parking lot. Id. at 444. From that vantage point, he saw the defendant go to a car parked in the lot, enter it, return to the person and exchange an object for money. Ibid. The car was searched and cocaine and heroin were found. Ibid.
Over objection, the officer in McLean, who had not been qualified as an expert, was permitted to answer when the prosecutor, referring to the transactions, asked, "So based on your own experience sir, and your own training, what did you believe happened at that time?" Id. at 446. The officer stated his belief that he had seen narcotics transactions. Id. at 443.
The defendant in McLean, like defendant in this case, was not charged with possession of CDS based upon the observed transactions. He was charged with possession and possession with intent to distribute the drugs that remained in his "stash." Id. at 444, 447. The Court held that the officer's statement of his belief about the observed transactions did not meet the requirements of "lay opinion" and "invaded the fact-finding province of the jury." Id. at 443; see id. at 463 (explaining that the officer's lay opinion "was impermissible both because it was an expression of a belief in defendant's guilt and because it presumed to give an opinion on matters that were not beyond the understanding of the jury"). The Court held that an officer testifying as a fact witness may not offer a "lay opinion" stating his or her belief that a transaction the officer observed "was a narcotics sale." Id. at 461. Without considering whether the error was harmful, the Court reversed those convictions requiring proof of possession with intent to distribute, but affirmed the convictions for simple possession because the defendant had testified that the drugs in his car were for his personal use. Id. at 463.
Discussing decisions addressing permissible and impermissible opinion testimony, the Court reiterated the principle that police officers, like other witnesses, may give "fact testimony" — testimony describing "what the officer did and saw." Id. at 460. Fact testimony, however, does not "convey information about what the officer 'believed,' 'thought' or 'suspected.'" Ibid.
Only if properly qualified as an expert may a police officer give testimony explaining aspects of illicit drug trade beyond the "understanding of ordinary people on a jury," such as the various roles played by participants, the packaging of the product, the significance of the quantity and the reasons for using juveniles in drug dealing. Id. at 450-52, 461 (relying on precedents establishing the permissibility of such expert testimony). Moreover, when an expert witness permissibly gives a necessary explanation of "the roles played by multiple defendants in a drug distribution scheme," the expert "may offer an opinion about the implications of the behavior that was observed by the fact witness." Id. at 460-61.
To address the potential prejudice inherent in the State's use of experts in criminal trials, the Court has developed additional rules governing admission of expert opinion on ultimate issues. Id. at 454-55. The Court recognized that the risk of undue prejudice can be "'significant if the expert witness is one of the investigating officers and also offers an opinion on an ultimate issue in the case.'" Id. at 454 (quoting State v. Berry, 140 N.J. 280, 301 (1995)). Thus, expert opinion testimony by an investigating officer is properly excluded if its probative value is substantially outweighed by the risk of undue prejudice. N.J.R.E. 403.
To minimize the potential prejudice, expert opinion on ultimate issues in drug prosecutions must be rendered in response to hypothetical questions that avoid use of the defendant's name and references to the elements of the crime. McLean, supra, 205 N.J. at 454-55. And the judge must instruct the jurors that they may reject the expert opinion and must make their own determination as to the defendant's guilt. Ibid.
Fact witnesses may give lay opinion on a more limited basis. Pursuant to N.J.R.E. 701(b), lay opinion, like expert opinion, is inadmissible unless it will assist the jury in "understanding the witness's testimony or in determining a fact in issue." See McLean, supra, 205 N.J. at 456. In other words, lay opinion must concern a matter not within the understanding of the jury; lay opinion may not be offered on facts within the jury's understanding. Id. at 461.
In addition, lay opinion must be relevant. For example, in a civil action for negligence of a landlord in providing inadequately protective apartment doors, we have held that it is not error to admit an officer's lay opinion on the prevalence of crime in a neighborhood based on his prior arrests in the neighborhood. Trentacost v. Brussel, 164 N.J. Super. 9, 21 (App. Div. 1978), aff'd, 82 N.J. 214 (1980). In McLean, the Court cited Trentacost as an example of permissible use of lay opinion "when relevant." 205 N.J. at 459. In contrast, an opinion on the prevalence of crime in an area has no apparent relevance to whether otherwise ambiguous conduct observed in that area is a crime.
Unlike expert opinion, lay opinion must be "rationally based on the perception of the witness." N.J.R.E. 701(a). It may not be based on inadmissible hearsay. McLean, supra, 205 N.J. at 460.
Quite obviously, lay opinion given by an investigating officer poses a risk of prejudice that is at least as significant as an investigating officer's expert testimony. This is especially true where the investigating officer gives a lay opinion that is improperly bolstered with references to the officer's training, experience, knowledge of the area and specialized assignment that convey expertise and thereby invite jurors unschooled in matters of drug trade to assign additional weight to the opinion. See id. at 461 (declining to "allow, as a lay opinion, testimony that [the Court has] found is otherwise inadmissible"). The risk of prejudice from the introduction of opinion evidence is heightened when it should be given by an expert but is not, because the jury is generally not given direction on how to consider what is, in fact, expert testimony. Berry, supra, 140 N.J. at 302.
McLean controls this case. Although the troopers were not qualified as experts, the State elicited their opinions based on their perceptions and their expertise. Rawles was asked for his opinion based on his training and expertise.
Q. Okay. Now based on your training and experience, did the observation — the whole observation from the beginning to end, did that make an impression in your mind?
A. It did.
Q. And what did you believe it to be?
A. Well, the — typically, it appeared to me to be what we refer to as a hand-to-hand transaction. It's an open air drug set, which is typical of that location, and it appeared to be that the female was acting in the role of what we — what is referred to as a director and the defendant was acting in the role as the — the seller, and then the unidentified person was the — the purchaser, the buyer of the narcotics.
Q. Okay. You testified that you observed over a thousand of these hand-to-hand transactions?
A. I have.
Q. What you observed that day around three o'clock, was it consistent with your previous observations of hand-to-hand transactions?
A. It was.
. . . .
Q. And in light of your training and experience and your numerous arrests in drug-related activities, is it common for people — for drug dealers not to have anything on their person when they're arrested?
A. It's — not only is it common, it's quite — it's quite typical of a — of a typical hand-to-hand narcotics transaction. The — the common belief on the street is that the — you know, if there's nothing found, that no drugs or money found on me — on the individual they can't be charged, which — which is simply not the case. It's all based on the totality of the situation.
Q. Okay. And have you seen this practice in the past personally where drug dealers would hide their — the drugs somewhere else other than their person?
A. Yes. Typically, the — the drugs, they tend to keep the drugs as far away from them as possible. So what they'll have is what they quote/unquote refer to as a "stash" location. So once money is secured, they'll go to the stash location, retrieve the item, whatever it is, if it's crack or heroin, and give it to the — the buyer. And then once that transaction's occurred, you know, if something does happen they're — they're away from the stash location.
Plantier was also asked for and gave his opinion based on the totality of his observations and his training and experience.
Q. And based on your training and experience did what you observed make an impression in your mind?
A. It — from my training and experience I believed to be, we witnessed an open air narcotics — hand-to-hand narcotics transaction.
The troopers' opinions on the hand-to-hand transaction between defendant and the unidentified man cannot be distinguished from the officer's opinion on the hand-to-hand transaction in McLean. In McLean, the Court determined that the jurors did not need opinion testimony to understand the implications of the actions the officer observed. 205 N.J. at 462-63. That case, like this case, involved a stash.
Clearly, the transaction in this case, unlike the ones in McLean, also involved a third party, the teenage girl, who accepted the money. That complexity arguably would have warranted expert testimony explaining the teenage girl's role to the jury, but the jurors needed no expert opinion to determine whether defendant handed the man candy, drugs or nothing at all from the Mike & Ike box. The troopers opinions stating their belief that he had distributed narcotics was improper because it was unnecessary to assist them in understanding the hand-to-hand aspect of this transaction. Moreover, the arguably necessary testimony explaining and opining on the role of the teenage girl, if admitted at all, should have been delivered by an officer properly qualified and not involved in the investigation. Additionally, the jurors should have been given an appropriate instruction.
There was additional improper lay opinion presented in this case. The troopers' testimony about the typicality of drug transactions involving pairs in this area of Camden, and the testimony about the frequency of drug crimes was also a form of opinion testimony. In this case, its irrelevance made the testimony inadmissible opinion evidence.
The State urges us to conclude that the opinion testimony in this case did not invade the province of the jury because it was not testimony on the ultimate issue. True, defendant was not on trial for the narcotics sale the troopers "believed" they saw. That obvious fact does not, however, permit us to conclude that the testimony did not invade the province of the jury. As noted above, the defendant in McLean, like defendant in this case, was charged with possessing and possessing with intent to distribute the drugs that remained in his stash after the two observed transactions. He was not charged with any crime committed in participating in the transactions that the officer "believed" were drug deals. Nevertheless, the Court held that the opinion testimony was unnecessary and that it invaded the province of the jury. 205 N.J. at 463. On that basis, the Court reversed the defendant's convictions for possession with intent to distribute.
There is no room to reach a different conclusion here. In this case, as in McLean, the relevance of the hand-to-hand transaction was its tendency to establish that defendant intended to distribute the packets of cocaine that remained in his stash after the observed transaction. That intent was an essential element of the crime of possessing the cocaine with the intent to distribute for which defendant was on trial. In this case, the hand-to-hand transaction was also the only evidence relevant to prove defendant's guilt of knowingly using the juvenile to commit a drug crime. As we understand McLean, it holds that an officer invades the province of the jury by opining that he saw a drug transaction when that drug transaction is used to establish a defendant's intention to distribute the drugs that he still retains. In other words, the jury's province is invaded when the opinion serves to prove an essential element of a different crime for which the defendant is on trial.
For the reasons set forth above, the admission of this opinion testimony was error. The question remains whether defendant's failure to object precludes him from seeking relief on appeal. Generally, the absence of an objection at trial leads reviewing courts to conclude that the improperly admitted material is not sufficiently prejudicial to be clearly capable of producing an unjust result. R. 2:10-2; State v. Walker, 203 N.J. 73, 89-90 (2010). Nevertheless, absent invited error, relief is appropriate where the error's capacity to produce an unjust result is clear. State v. Jenkins, 178 N.J. 347, 358-60 (2004). The opinion evidence admitted in this case had that capacity.
As indicated previously, the Court has recognized that there is undue prejudice inherent in an investigating officer's expression of an opinion on the facts he has observed. And errors that invade the province of the jury are not easily viewed as harmless. See State v. Taffaro, 195 N.J. 442, 445 (2008) (reversing because the trial judge may have influenced the jury by signaling doubt about a witness's credibility). In that regard, McLean is notable for the absence of a discussion of the harmfulness of the error.
Moreover, in this case, the impermissible opinions went to the most critical evidence in the case — defendant's interaction with the man who gave the teenage girl the cash and took something from defendant. With the troopers' opinions that they saw a transaction involving an exchange of money for drugs, the State linked defendant to the Mike & Ike box and the drugs inside it and thereby established a basis for the jurors to find that defendant intended to distribute the drugs that remained in the candy box after his encounter with the man.
Any doubt about the importance of the opinion to the verdict dissipates when the State's opening and closing arguments are considered. In opening, the prosecutor advised the jurors that the events occurred in an area that was "a very notorious drug distribution area[, an] open air drug market . . . where people sell drugs and . . . come to buy drugs." He went on to explain that the troopers had seen people selling drugs there many times in the past, personally made arrests in the area and had received numerous complaints about drug dealing there. Summarizing what the troopers saw, he told the jurors: "The troopers believe[d], in light of their training, in light of their experience, that they just witnessed a hand-to-hand drug transaction."
In summation, the prosecutor again relied on the beliefs of these experienced troopers:
Possession with the intent to distribute. And what that basically means is, for your purposes, was [defendant] out there selling drugs that day, because if he had the drugs and he was selling the drugs, he intended to distribute those 53 bags of cocaine.
. . . .
The troopers — and by the way, the testimony was [that] 6th and Royden is a very high drug area. Drugs are being sold there all the time. The troopers testified that they've done surveillance there. They've made numerous drug arrests there[,] and they've seen, I believe the testimony was, thousands of hand-to-hand transactions before. Thousands, over a thousand hand-to-hand transactions in the past. Not necessarily on that corner, which they testified they did see, but they've seen them. They know what to look for. They know how to recognize them. That does not mean that you should find them more credible because they're police officers, but I can certainly — I certainly think you can consider their training and their experience in this area, and the fact that they know what a hand-to-hand transaction looks like.
They testified that's what they believed they observed. . . .
. . . .
The troopers believe in light of all these circumstances that they have just witnessed criminal activity. They saw a drug transaction. They immediately get out. Trooper Plantier goes — quickly goes to the trash can before anybody else can approach. Looks in, sees the pink box, opens it up and finds bags of cocaine. His suspicions are confirmed. At that point, the defendant was arrested.
Turning to the evidence pertinent to the charges for conspiracy and employing a juvenile in a drug transaction, the prosecutor again focused on the transaction. "It's pretty clear that the defendant was not working alone, and what the troopers saw clearly points you to only one conclusion that [the teenage girl] was there helping him sell drugs by accepting money and directing him — directing the buyers to the defendant."
The State obviously considered the improperly admitted evidence of the troopers' opinions critical to its case. Given the quality of the evidence apart from the troopers' opinions, there is no basis for concluding that these opinions invading the province of the jury did not lead to an unjust result on any of the crimes charged.
The convictions are reversed and the case is remanded for a new trial.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION