STATE OF NEW JERSEY v. TRAVIS DAVIS

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. TRAVIS L. DAVIS, Defendant–Appellant.

DOCKET NO. A–3157–12T4

Decided: April 14, 2014

Before Judges Fuentes, Simonelli and Fasciale. Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney;  Ms. Hubbard, of counsel and on the brief). Gregory S. Mullens, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney;  Mr. Mullens, on the brief).

Defendant appeals from his burglary and drug-related convictions.1  The primary issues on appeal pertain to the admissibility of trial testimony that the State elicited from three witnesses regarding a hand-to-hand drug transaction involving defendant.   The witnesses included Officers Anthony Goodman and Michael Hulings, who testified as fact witnesses, and Sergeant Christopher Robateau, who rendered opinion testimony as an expert in the field of narcotics investigations.   We affirm.

Several police officers were conducting surveillance when defendant engaged in what the officers believed to be a drug deal with two women.   Using binoculars, Officer Goodman observed four men talking outside a building on Fulton Avenue in Jersey City. He watched defendant leave the other men and walk into a nearby basement.   One minute later, defendant re-appeared and two women approached defendant.   Defendant and the women talked briefly, then defendant handed each of them a small object, and they both gave defendant paper currency.   Officer Hulings stopped the women shortly thereafter and seized from each of them a glassine bag, one of which contained heroin, and arrested them.   Defendant took flight, but the police located him nearby and arrested him and seized from his person $235 and eleven bags containing suspected heroin;  the individual bags were stamped with the word “file.”   Thereafter, the officers returned to the basement and ascertained that the lawful resident had not authorized defendant to enter the premises.   With the consent of the resident, the officers entered the building and recovered a “bundle” consisting of ten bags of suspected heroin.2

On appeal, defendant raises the following arguments:

POINT I

THE STATE WITNESSES [IMPROPERLY] INVADED THE PROVINCE OF THE JURY BY OFFERING TESTIMONY AS TO THE ULTIMATE ISSUES OF WHETHER [DEFENDANT] DISTRIBUTED A CONTROLLED DANGEROUS SUBSTANCE AND WHETHER HE POSSESSED A CONTROLLED DANGEROUS SUBSTANCE WITH THE INTENT TO DISTRIBUTE (NOT RAISED BELOW).

A. POLICE OFFICER FACT WITNESSES IMPROPERLY OFFERED OPINION TESTIMONY THAT A DRUG TRANSACTION HAD TAKEN PLACE, DENYING THE JURY THE OPPORTUNITY TO SERVE AS THE JUDGES OF THE FACTS, BUT DENIED [DEFENDANT] A FAIR TRIAL.  (U.S. CONST.   AMENDS.  V, VI AND XIV;  N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10).

B. THE POLICE OFFICER EXPERT WITNESS IMPROPERLY OFFERED OPINION TESTIMONY THAT THE CIRCUMSTANCES OF THE CASE INDICATED THAT [DEFENDANT] INTENDED TO DISTRIBUTE A CONTROLLED DANGEROUS SUBSTANCE.   ADMISSION OF SUCH TESTIMONY NOT ONLY DENIED THE JURY THE OPPORTUNITY TO SERVE AS THE JUDGES OF THE FACTS, BUT DENIED [DEFENDANT] A FAIR TRIAL.  (U.S. CONST.   AMENDS.  V, VI AND XIV;  N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10).

POINT II

THE TRIAL COURT IMPROPERLY GAVE THE INSTRUCTION ON FAILURE TO TESTIFY WITHOUT THE DEFENDANT'S CONSENT, THEREBY DENYING HIM A FAIR TRIAL.  (U.S. CONST.   AMENDS.  V, VI AND XIV;  N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10) (NOT RAISED BELOW).

After carefully considering the record and the briefs, we conclude that defendant's argument contained in Point II is “without sufficient merit to warrant discussion in a written opinion.”   R. 2:11–3(e)(2).   We focus on defendant's contentions in Point I and apply the plain error standard because defendant did not object to the testimony at trial.   R. 2:10–2.  “Under that standard, ‘[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.’ ”  State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

I.

We reject defendant's contention that the lay testimony of Officers Goodman and Hulings essentially amounted to a violation of State v. McLean, 205 N.J. 438 (2011).   To explain the steps he took after making his observations, Officer Goodman offered the following testimony:

Q. What did you believe you were observing?

A. A drug transaction.

Q. Going back to the ladies ․ did they approach [defendant] or [did defendant] approach[ ] the ladies?

A. The ladies approached [defendant].

Q. Okay. Now, going back[,] what exactly did you observe?

A. They approached [defendant], there was a brief conversation between them at which time [defendant] handed each lady a small object, and each lady in return handed [defendant] money.

Q. What, if anything, did you ․ do then?

A. At that time I notified my perimeter units that I just had a sale, and I gave a description.

Officer Hulings gave the following testimony:

Q. What, if anything, did Officer Goodman relay to you?

A. He relayed the description and locations of individuals that he believed he observed engage in a narcotics transaction.

In the context of testimony involving a drug distribution scheme, the New Jersey Supreme Court acknowledged “the boundary line that separates factual testimony by police officers from permissible expert opinion testimony.”   Id. at 460.   Recognizing certain extant and general principles of law, Justice Hoens stated:

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․

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.

[Id. at 460–61 (citations omitted).]

Officers Goodman and Hulings did not overstep this boundary line and therefore we see no McLean violation.   The testimony from these witnesses related to their personal observations and complied with N.J.R.E. 701 (addressing testimony from lay witnesses).

Finally, even if the officers' testimony overstepped the permissible boundary line, which is not the case here, their testimony was not “clearly capable of producing an unjust result.”   See R. 2:10–2 (regarding the plain error standard).   And, the failure to object to the testimony suggests that defense counsel did not believe that the questions were unduly prejudicial or improper.  State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L. Ed.2d 89 (2001).

II.

Defendant contends that the State elicited improper expert opinion testimony from Sergeant Robateau.   A trial court's evidentiary rulings, including the admission of expert testimony, are “entitled to deference absent a showing of an abuse of discretion.”  State v. Brown, 170 N.J. 138, 147 (2001) (citation and internal quotation marks omitted).  “Admission of expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson.”  State v. Nesbitt, 185 N.J. 504, 507 (2006) (citing State v. Odom, 116 N.J. 65, 81 (1989)).   Applying these standards, we see no error.

The State called Sergeant Robateau to testify regarding the sale, packaging, and re-packaging of CDS. On appeal, defendant contends that the following portions of the sergeant's testimony were improper:

Q. Sergeant, in preparation of your testimony, did you have the opportunity to review [Officer] Anthony Goodman's police report of November 27th, 2010 regarding the investigation of [defendant]?

A. I did.

Q. And you also had the opportunity to review the evidence in this matter?

A. I did.

Q. Specifically, let's start with S–1D. I'm going to ask you to refer to the outside, and just to refresh the jury's recollection S–1D in evidence that the heroin recovered from [one of the women].

Q. I'm going to ask you to please take ․ S–1D out of the bag, and just ․ demonstrate to the jury exactly what you were referring to as a glassine bag?

A. So, it has ․ an appearance that when you open this up it looks as though it's a small envelope, but these are the bags that are commonly distributed throughout the City of Jersey City that normally contain heroin.

Q. About how much heroin is actually in that approximately?

A. It's a really small amount, but it's enough of course to have its intended [effects] usually about .02 grams is about the average.

Q. Would that be what's commonly known as a “hit?”

A. Correct, yes.

Q. And when I say hit, I mean that's how much a user would use at the time?

A. What ․ average adults would use.

Q. Now, there's some label on that as well[:  “]file.[”]  I mean specifically ․ it has the word file, can you explain to the jury what that means, if anything?

A. It does, it has the word file on it in blue lettering with a circle around it, that's what's referred to as a logo.   Logos are basically a marketing scheme that's used by dealers, and a logo could be a phrase [in a] song, a recent hit movie.   It's usually based on some kind of trend.   But the idea is that when these things are stamped with a particular [logo] say in this instance it's file it would [g]enerate repeat customers.   And what I mean by that if a buyer or an addict likes a particular logo or brand, they will come back for more, so that's really what it's for.

Q. Now, I'm going to refer you to S–1C in evidence․  I'm going to ask you to look at the evidence card to explain [to the] jury what that was, just to refresh their recollection.

A. Okay. This would be from one bag ․ recovered from [the other woman].

Q. Now, I'm going to show you what's in evidence as S–1A. I'm going to ask you to lay those out on your bench, please count them, and I believe[ ] those are the drugs that were recovered in evidence from [defendant].   And there's a rubber band in there as well, could you explain the use of the rubber band?

A. As I stated previously a full bundle of heroin, which is ten bags, are normally bound together by rubber band.   And that again is to keep consistency, so that they're grouped together by the rubber band and ․ the dealer would know that they have one full bundle left over, and they can make an easy count.   If they have five of these, they know they have fifty.   If they [have] six of them, they know they have sixty.   That, of course, is taking into consideration that they are going to dip into the bundle itself for distribution purposes.   Here I have a total of actually 11 bags.   And that — but that's usually what the rubber band would be ․ utilized for.

Q. Now, have you also had the opportunity to review money that was recovered in this case?

A. I did.

Q. Can you go over a little bit about the denominations, and what that means if anything in drug sales?

A. Getting back to the price of the bags of heroin[,] if [the dealer is] selling the bags of heroin for the full retail value of $10, then you're going to tend to see a lot of tens, twenties, things of multiples of tens.   But, again, as I stated before particularly on the streets of Jersey City the prices are very negotiable.   So, more often than not actually you would find ․ especially if it's a frequent customer, [the dealer is] going to sell these bags for less [than] what their full potential is, which means they'll give a discount from anywhere from 9, 8, even as low [as] $7 a piece.   That would tend to generate of course multiple singles, multiple fives, again from multiple transaction[s] depending on how long [the dealer is] out there.

Q. Now you had the opportunity to review the currency seizure report in this case, specifically the denominations.   If you just go over again what the denominations are?

A. Sure. I'm holding here United States Currency Seizure Report, case name Travis Davis, and it says here that the total amount that was recovered was $235 in cash.   And breaking it down by denominations one 50, two 20s, eleven 10s, five 5s, ten singles.

Q. So ․ based on your training and experience, is it your opinion that 20 of those 29 bills would demonstrate ․ the multiples of ten theory that you're going through?

A. It would be more consistent — again, taking into consideration all the facts of the case that it's consistent with drug proceeds, yes.

Sergeant Robateau did not testify that defendant possessed or distributed heroin.   Rather, he explained the use of glassine bags, the amount of heroin contained in such bags, the use of logos, and the bundling of the bags with rubber bands.   The sergeant then opined that bill denominations of multiples of ten would demonstrate drug proceeds.   The Supreme Court explained that an expert witness testifying in a CDS case may opine as to the following:

[T]he manner of packaging and processing for use or distribution, the significance of various quantities and concentrations of narcotics, the roles of various drug paraphernalia, characteristics of the drugs themselves, the import of circumstances surrounding possession, the conduct of the possessor and the manner in which drugs may be secreted or otherwise possessed for personal use or distribution.

[Odom, supra, 116 N.J. at 81–82 (citation omitted).]

In State v. Sowell, 213 N.J. 89 (2013), the Supreme Court recently reaffirmed the guiding principles to determine the admissibility of expert testimony in drug cases:

The Court's decision in Odom and its progeny provide further direction.   Experts cannot opine directly about a defendant's guilt or innocence.   They cannot express an opinion on the credibility of a witness or party.   They should also refrain from mimicking the precise language of a statute, to the extent possible, to avoid offering legal conclusions.

[The expert may use] carefully phrased hypothetical questions in drug cases.   After the State has presented relevant evidence—including expert testimony about subjects beyond the understanding of the jury—the prosecution may pose a hypothetical that refers only to the evidence and testimony before the jury.   The defendant's name may not be used in the question or response.   In addition, the expert should provide a basis for the opinion expressed, which may only reflect the facts in evidence.  Odom also directs that when trial judges instruct the jury about the weight to be given expert testimony, courts should emphasize that only the jury can make the ultimate decision about a defendant's guilt or innocence.

[Id. at 103–04 (citations omitted).]

The judge gave the jury the proper instructions on how to receive expert testimony including that “the ultimate determination of whether or not the State has proven defendant's guilt beyond a reasonable doubt ․ is to be made only by the jury.”   The subject matter of the sergeant's testimony concerned matters beyond the average ken of the jury, such as how heroin is dealt;  how heroin is packaged for sale;  the amount of heroin that is usually sold;  how it is ingested;  marketing schemes, including logos;  street pricing;  and cash denominations.   As a result, Sergeant Robateau's testimony is permissible under our case law.

We are not persuaded by defendant's contention that the sergeant gave improper testimony about the currency seizure report.   In answering the assistant prosecutor, the sergeant used defendant's name solely to identify the report.   Reference to defendant's name was unnecessary in this context.   We conclude, however, that the sergeant's opinion was in response to a poorly phrased hypothetical question pertaining not to defendant's guilt or whether the bills described in the seizure report were drug proceeds, but rather whether twenty of the twenty-nine bills were consistent with the sergeant's multiple-of-tens theory and therefore would generally demonstrate drug proceeds.

Assuming that the sergeant's reference to the seizure report, which was itself admitted into evidence, was somehow objectionable, there is no question that when the evidence of guilt is overwhelming, the erroneous admission of expert testimony can be regarded as harmless error.   See, e.g., id. at 107.   Here, Officer Goodman observed the hand-to-hand transaction between defendant and the two women;  he identified defendant in court;  Officer Hulings immediately apprehended the two women;  the police seized a glassine bag containing heroin from one of the women and an empty glassine bag from the other;  defendant fled the scene of the crime;  the police seized from defendant $235 in cash and eleven bags of heroin marked with the word “file” on them;  and when the officers returned to the basement, which defendant was unauthorized to enter, they recovered a “bundle” consisting of ten bags of heroin.

Affirmed.

FOOTNOTES

1.  FN1. The judge sentenced defendant on these convictions to an aggregate seven-year prison term with a period of three years of parole ineligibility.   The judge imposed this sentence after a jury found defendant guilty of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35–10a(1) (Count One);  third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35–5b(3) (Count Two);  third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35–7 (Count Three);  second-degree possession of CDS within 500 feet of a park, N.J.S.A. 2C:35–7.1 (Count Four);  third-degree distribution of CDS, N.J.S.A. 2C:35–5a(1) and –5b(2) (Count Eight);  third-degree distribution of CDS within 1000 feet of a school, N.J.S.A. 2C:35–7 (Count Nine);  second-degree distribution of CDS within 500 feet of a park, N.J.S.A. 2C:35–7.1 (Count Ten);  and third-degree burglary, N.J.S.A. 2C:18–2 (Count Twelve).

2.  FN2. Defendant does not contest that the substance recovered was heroin, and defendant stipulated to a laboratory report indicating that the contents of the bags tested positive for heroin.

PER CURIAM

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