STATE OF NEW JERSEY v. RALPH SOWELL (2011)

Following a jury trial, defendant Ralph Sowell was convicted of third degree conspiracy to violate narcotics laws pursuant to N.J.S.A. 2C:5-2;  third degree possession of heroin pursuant to N.J.S.A. 2C:35-10a;  and third degree possession with intent to distribute heroin pursuant to N.J.S.A. 2C:35-5a(1) and -5b(3).¹  Judge Thomas R. Vena imposed a ten-year term with a five-year parole disqualifier.   We affirm.

Defendant, an inmate at Northern State Prison, received a visit from Bonita Pitt on January 10, 2004.   Department of Corrections (DOC) Sergeant Salvatore D'Amico testified that he monitored the inmate visitation session through a security camera system.   He saw what he believed to be a drug transaction occurring between defendant and Pitt. D'Amico asked fellow officers to seize defendant and a potato chip bag that had been discarded.   D'Amico continued to monitor the live video feed.   He saw DOC Lieutenant Blevins seize defendant, and DOC Sergeant Eric Thompson recover the potato chip bag.   D'Amico went to the location where defendant was detained and emptied the chip bag onto a desk.   D'Amico found thirty decks of heroin nested inside two balloons from the chip bag.

D'Amico testified that he observed Pitt and defendant on the live video feed sitting on the backs of their chairs and then leaning forward.   He saw Pitt reach into her front left pocket, take an item out and place it in defendant's hand.   D'Amico testified that defendant placed the item into a bag of potato chips as he leaned back.

At trial, the State played the video of the interaction between defendant and Pitt, as well as the seizure of defendant and the bag of potato chips.   D'Amico described the events as the tape played for the jury.   On cross-examination, D'Amico acknowledged that Pitt appeared to be kissing defendant on the cheek at the time that the exchange took place.   According to D'Amico, Pitt took an item from her pocket and leaned into defendant.   D'Amico described Pitt's behavior prior to leaning into defendant as “trying to [surveil] the area to see if anybody was watching.”

Investigator Leonard Randolph testified that he took a statement from Pitt after giving her Miranda ² warnings.   According to Randolph, Pitt “stated that the contents of the balloons was heroin, and that [an] individual by the name of Kevin agreed to pay her $100 to bring the balloons into the jail.”   Randolph corroborated Pitt's story by finding an entry on the visitor card for an individual named Kevin.

DOC Investigator Manuel Alfonso qualified as an expert “in the field of narcotics investigations within the Northern State Prison.”   Alfonso was asked the following hypothetical questions:

Q: Okay. Officer, I'm going to provide you with a hypothetical and I would ask that you assume that the facts are true for purposes of this hypothetical.   Okay.

[Assume that a]n officer observes subject A sitting across from subject B. Subject B reaches into a pocket.   Subject A has a bag of potato chips in their hand.   Both subject A and subject B lean forward.   Subject A has the bag of chips wide open.   Subject B leans forward and drops the item that's in the hand into the bag of chips.   Both subjects then lean back into their original positions.   Subject A looks inside the bag and continues - and continues in - in his or her original position.   Can you render an opinion?

A: Yes I can.

Q: Okay. And what is that opinion?

A: That an exchange of narcotics took place.

Q: And what is the basis of that opinion?

A: Well, I base that on the facts that you've given.   Mostly the covert act of kissing, and then moving the hand at the same time in order to draw attention away from the hand.   The placement of the bag in - in between the legs, and the hand dropping something into the bag and the nonchalant attitude, I guess, of them backing off.

Q: Detective, building on that hypothetical, if subject A and B both lean back into their original positions and subject A, observing an officer approaching, places a bag underneath the seat next to him.   Can you render an opinion?

A: Yes.

Q: And what is that?

A: That the subject was attempting to get rid of the stash.

Q: Investigator, further building on that hypothetical, if upon an inspection of that bag, there is a balloon within a second balloon containing 30 decks of heroin, can you render an opinion?

A: Yes.

Q: And what is that opinion?

A: That a transaction or an exchange of narcotics took place, and was enclosed in the perfect packaging for introduction.

Defendant did not object to this testimony.

On appeal, defendant contends that:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING EXPERT TESTIMONY THAT WENT WELL BEYOND THE PERMISSIBLE SCOPE OF SUCH TESTIMONY, AND WHICH CONSTITUTED AN OPINION AS TO GUILT IN THE PARTICULAR CASE. U.S. CONST.   AMEND XIV;  N.J. CONST.   ART. 1, ¶ 10 (Not Raised Below).

A. The Expert Testimony Exceeded The Permissible Scope Of Such Testimony Because It Constituted An Opinion Of Guilt On A Matter Not Beyond The Ken Of An Ordinary Juror.

B. By Encompassing “Facts” Not Contained In The Hypothetical Question, The Expert's Answer Constituted An Impermissible Opinion Of Guilt.

C. The Improper Expert Testimony Necessitates Reversal.

We are not persuaded that a reversal is warranted.

Expert opinion testimony is permissible where it “will assist the trier of fact to understand the evidence or to determine a fact in issue.”  N.J.R.E. 702.   Such opinion testimony is admissible “if it relates to a relevant subject that is beyond the understanding of the average person of ordinary experience, education, and knowledge.”  State v. Odom, 116 N.J. 65, 71 (1989).  “If the expert's testimony on such a subject would help the jury understand the evidence presented and determine the facts, it may be used as evidence.”   Ibid. Moreover, the party proffering the expert testimony must “show that (1) the intended testimony concerns a subject matter beyond the ken of an average juror;  (2) the field is at a state of the art such that an expert's testimony would be reliable;  and (3) the witness has expertise sufficient to offer the intended testimony.”  State v. Reeds, 197 N.J. 280, 290 (2009) (citing State v. Jenewicz, 193 N.J. 440, 454 (2008)).   Thus, an expert's opinion is objectionable when it exceeds the expert's area of expertise and is within the understanding of an ordinary person.  Odom, supra, 116 N.J. at 76.

The Supreme Court has cautioned that expert opinion on hypothetical questions can “slip dangerously close to usurpation of the jury's role by essentially telling the jurors how to resolve a case.”  Reeds, supra, 197 N.J. at 292.   Thus, “when the expert offers an opinion that a drug transaction occurred, [the expert] crosses the line of permissibility and contaminates all related proofs with prejudicial qualifies not easily cured.”  State v. Singleton, 326 N.J.Super. 351, 354 (App.Div.1999).   The Supreme Court further cautions that:

The [hypothetical] question must be limited to the facts adduced at trial.   The prosecutor may ask the expert to express an opinion, based on those facts, whether the drugs were possessed for distribution or for personal consumption.   The expert should inform jurors of the information on which the opinion is based, and must avoid parroting statutory terminology whenever possible.   Obviously, the expert must walk a fine line.   His or her opinion can be “expressed in terms of ultimate issues of fact, namely, whether drugs were possessed with the intent to distribute,” but it cannot contain an explicit statement that “the defendant is guilty of the crime charged under the statute.”   Finally, trial courts should instruct the jury in respect of the proper weight to be given to the expert's opinion, reminding jurors that the ultimate decision concerning a defendant's guilt or innocence rests solely with them.

[State v. Summers, 176 N.J. 306, 314-15 (2003) (citations omitted) (quoting Odom, supra, 116 N.J. at 80-82)).]

However, expert testimony regarding “the methods employed by drug traffickers to package and to distribute illegal drugs for sale has been long recognized as permissible pursuant to [N.J.R.E.] 702 because such information is a specialized subject matter that is beyond the ken or normal life experience of the average juror.”  Reeds, supra, 197 N.J. at 290 (citing Odom, supra, 116 N.J. at 76).   Hypothetical questions often go hand-in-hand with expert testimony.   Such questions are approved as an appropriate vehicle through which an expert could testify with respect to inferring intent or purpose when drugs are possessed under certain circumstances.  Reeds, supra, 197 N.J. at 291.

During trial, a hypothetical question posed to an expert is admissible, where the question is “expressed in terms that parallel the language of the statutory offense when that language also constitutes the ordinary parlance or expression of persons in everyday life.”  Odom, supra, 116 N.J. at 79 (citing State v. Morton, 74 N.J.Super. 528, 531-32 (App.Div.1962), aff'd, 39 N.J. 512 (1963);  State v. Rucker, 46 N.J.Super. 162, 166 (App.Div.), certif. denied, 25 N.J. 102 (1957)).

Applying these standards to the facts in this case, we conclude that most of the hypothetical questions called for opinions that an average juror can form without the need for expert testimony.   These questions are:  (a) whether an exchange of narcotics occurred between Pitt and defendant;  and (b) whether defendant discarded the potato chip bag upon seeing an officer approach in an attempt “to get rid of the stash.”

The expert's last opinion that the narcotics were “enclosed in the perfect packaging for introduction,” was a proper subject for expert testimony.   The average juror would not have the necessary knowledge or expertise to determine methods for packaging illicit narcotics in order to surreptitiously pass them to an inmate.

Despite the conclusion that part of Alfonso's testimony was an improper area for expert testimony, we decide not to reverse the conviction.   Judged against the plain error standard, the decision to allow Alfonso's testimony was not an error that is clearly capable of producing an unjust result.   See R. 2:10-2.   In short, his expert opinion was mostly unnecessary, and not an enhancement of the testimony of fact witnesses.   We note that the State presented videotaped evidence tending to prove that defendant and Pitt leaned close together and Pitt passed something to defendant.   The heroin was found in a chip bag located next to the defendant.   This was corroborated by D'Amico's observation.   Most importantly, Pitt's statement to Investigator Randolph that she received $100 to bring the heroin to jail eliminates any prejudice resulting from Alfonso's expert opinion.

We also reject defendant's argument that the judge erred in admitting testimony from the State's expert that incorporated facts from the case outside the hypothetical.   The question to Alfonso referenced facts adduced from the evidence.   This is clearly within the guidelines established by the Court in Odom. 116 N.J. at 82.

Defendant also contends that:

THE TRIAL COURT ERRED, TO DEFENDANT'S PREJUDICE, IN REFUSING TO ALLOW A BRIEF DELAY FOR THE DEFENDANT TO OBTAIN THE PRESENCE OF A WITNESS U.S. CONST.   AMEND.  VI, XIV;  N.J. CONST.   ART. 1, PAR. 10.

Defendant argues that “[t]he trial court's abrupt denial of an opportunity for defendant to secure the presence of a witness clearly ran afoul of the balance struck in [State v. Garcia 195 N.J. 192 (2008) ] and [State v. Bellamy, 329 N.J.Super.   371 (App.Div.2000) ].”   Therefore, although defendant did not request a continuance or make a proffer as to the witnesses' testimony, the judge should have granted a continuance.

At the end of defendant's case, defense counsel told the judge that he had one more witness, Padria Hill. The judge asked if she was in the courthouse.   Counsel indicated that she was not.   The judge said:  “Well then you have no more witnesses.   The time for you to call your witnesses are now.   Either call a witness and put the witness on the stand or rest your case.”   Counsel rested.

“Both the Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee to the accused the right ‘to have compulsory process for obtaining witnesses in his favor.’ ”   Garcia, supra, 195 N.J. at 201-202.   As the Court in Garcia noted, “[t]hat guarantee provides a criminal defendant with nothing less than ‘a meaningful opportunity to present a complete defense.’ ”  Ibid. (quoting State v. Garron, 177 N.J. 147, 168 (2003)).   In addition the Garcia Court held that “courts must strike a fair and careful balance between honoring the constitutional right to compulsory process, which is integral to ensuring a fair trial, and the interest in the effective administration of a criminal trial.”  195 N.J. at 203.  “[W]hen balancing a short delay in the start of trial against defendant's legitimate ability to present a viable defense, ․ we believe the integrity of the criminal process must prevail over the administrative disruption.”  Bellamy, supra, 329 N.J.Super. at 378 (citing State v. Middleton, 299 N.J.Super. 22, 33 (App.Div.1997)).

However, the Court in Garcia noted that a defendant's compulsory process “does not mean that a defendant may violate with impunity rules of court that require the production of a witness list, or that he may issue a subpoena, for a witness long known to him, so late in a criminal trial that a significant delay in the proceedings will be incurred.”  195 N.J. at 203 (citing Taylor v. Illinois, 484 U.S. 401-02, 108 S.Ct. 649, 98 L. Ed.2d 806 (1988)).  “Whether defendant was deprived of his constitutional right to ‘a meaningful opportunity to present a complete defense’ depends on the testimony that [the witness] would have given had he been called to the stand.”  Id. at 205-06 (quoting Garron, supra, 177 N.J. at 168).

“Where the issue involves the trial court's exercise of discretion, the appellate court will not interfere unless the trial judge has ‘pursue[d] a manifestly unjust course.’ ”   Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2.10-2 (2011) (alteration in original) (quoting Gillman v. Bally Mfg. Corp., 286 N.J.Super. 523, 528 (App.Div.), certif. denied, 144 N.J. 174 (1996)).  “That is to say, the appellate court will defer to the trial court's exercise of discretion unless its mistaken exercise prejudiced the substantial rights of a party.”   Pressler & Verniero, supra, comment 4 on R. 2.10-2 (citing Union Cnty. Imp. Auth. v. Artaki, 392 N.J.Super. 141, 149 (App.Div.2007)).

Here, Hill was not included in defendant's list of witnesses.   There is no evidence that defendant ever subpoenaed her.   Defendant did not seek a continuance to secure the witness at trial, nor did he make a proffer as to the potential testimony of Hill. We perceive no abuse of discretion on the part of the judge, nor a denial of defendant's right to compulsory process of witnesses.

Finally defendant contends that:

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

He argues that his sentence was excessive because, in taking into account the length of his criminal record, the judge did not conduct a “qualitative weighing” of the statutory aggravating factors.   We disagree.

Defendant was forty-six years old at the time of sentencing.   He had a history of fourteen indictable convictions, including murder, robbery, terroristic threats, unlawful possession of a weapon and possession of CDS with intent to distribute.   Defendant has been sentenced to State Prison several times, and has repeatedly violated his parole after release.

The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a:  (3) the risk that defendant will commit another offense;  (6) the extent and seriousness of defendant's prior criminal record;  and (9) the need for specific and general deterrence.   The judge found none of the mitigating factors listed in N.J.S.A. 2C:44-1b.

From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence.   See State v. Johnson, 42 N.J. 146, 161 (1964).   The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors.   See State v. O'Donnell, 117 N.J. 210, 215 (1989).   We perceive no clear showing of an abuse of discretion.   See Pressler, supra, comment 3.1 on R. 2:10-3 (2011) (quoting State v. Velazquez, 54 N.J. 493, 495 (1969)).   The sentence does not shock our judicial conscience.   See State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.

FOOTNOTES

FN1. Co-defendant Bonita Pitt was convicted of the conspiracy and possession of heroin, at the same trial..  FN1. Co-defendant Bonita Pitt was convicted of the conspiracy and possession of heroin, at the same trial.

FN2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966)..  FN2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

PER CURIAM