Opinion
DOCKET NO. A-2496-11T1
2013-10-07
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TERREL F. GOLDSMITH, a/k/a GOLDSMITH FUQUAN, TERRELL GOLDSMITH, FUQUAN HARDWICK, SHAREEF HATTEN, TERRELL HATTEN, RAHEEM JONES, FUQUAN SMITH, BARRY BELL, RAHEEM FLOYD, RON FRENCE, JAMAR LEWIS, SAFEE MITCHELL, TYRONE PARKS, and JUNE WELLS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Waugh, and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-09-2470.
Joseph E. Krakora, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Terrel F. Goldsmith appeals his conviction for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), and third-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1), as well as the resulting sentence of incarceration for seven years with a three-and-a-half-year period of parole ineligibility. We reverse.
I.
We discern the following facts and procedural history from the record on appeal.
Newark Police Detectives Henry Suarez and Philip Turzani, both assigned to the narcotics unit, testified that they were dispatched to the area of South 16th Street in response to citizen complaints about drug dealing in the area on July 1, 2009. The detectives were dressed in plain clothes and were driving an unmarked police car. They arrived at the area around 12:45 a.m.
The detectives observed a green Audi parked on South 16th Street. They were approximately seventy feet from the Audi. Suarez testified at the suppression hearing that they had an unobstructed view, and that the street was illuminated by the streetlights and adjacent house lights.
According to the detectives, a black male was in the driver's seat and a female was in the front passenger's seat. Both detectives identified Goldsmith as the driver of the Audi and co-defendant Latoya Paige as the passenger.
The detectives testified that they observed Goldsmith waving at people to come over to his car. A black male, dressed in dark clothing, approached Goldsmith and engaged in a brief conversation, after which Goldsmith reached into the vehicle, retrieved something, and handed it to the man. The unknown male then walked past the officers in their unmarked police vehicle. They observed a second black male approach the passenger side of the Audi. At the suppression hearing, Suarez testified the second black male was wearing a white shirt and blue jeans. He engaged in a similarly brief conversation with Paige, obtained something from Paige in return for some paper currency, and left the area.
As the detectives started to exit their vehicle to approach the Audi, Goldsmith pulled away from his parking spot and drove in a southerly direction. Suarez made a U-turn, followed the Audi, and stopped Goldsmith several blocks later. As Suarez pulled alongside the Audi, Turzani displayed his badge and directed Goldsmith to park the Audi. Goldsmith complied.
Suarez approached the vehicle on the driver's side with his flashlight in hand, while Turzani approached the vehicle on the passenger's side. Suarez asked for Goldsmith's license, registration, and insurance card. According to Suarez, as Goldsmith reached for his documents in his back pocket, he observed the handle of a gun in Goldsmith's waistband. Suarez testified that he notified Turzani of the presence of the weapon using police code. He then ordered Goldsmith to show his hands by putting them out the window.
Suarez directed Goldsmith to step out of the vehicle, after which he handcuffed him and, according to Suarez, retrieved the gun from his waistband. Turzani ordered Paige out of the vehicle and placed her under arrest. Turzani estimated that the arrests occurred approximately fifteen minutes after he and Suarez observed the two transactions described above.
According to Turzani, he observed a napkin containing white material, which he believed to be cocaine, in the middle of the car's console. Both detectives testified that they observed seventy baggies of cocaine in the car.
In September, Goldsmith and Paige were indicted for the following offenses: second-degree conspiracy to commit the crime of possession of CDS, N.J.S.A. 2C:5-2 (count one); third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), b(3) (count three); third-degree possession of CDS with the intent to distribute within a school zone, N.J.S.A. 2C:35-7 (count four); and second-degree possession of CDS with the intent to distribute within 500 feet of a public housing, contrary to N.J.S.A. 2C:35-7.1 (count five).
The indictment also charged Goldsmith with second-degree unlawful possession of a handgun without a permit to carry, N.J.S.A. 2C:39-5(b) (count six); third-degree receiving stolen property, a Glock 21 semi-automatic handgun, N.J.S.A. 2C:20-7 (count seven); second-degree possession of a weapon while committing a violation of N.J.S.A. 2C:35-5 and 2C:35-7, N.J.S.A. 2C:39-4.1 (count eight); fourth-degree unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3(f) (count nine); and fourth-degree possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count ten).
Goldsmith filed a motion to suppress the evidence. On July 22, 2010, the motion judge held an evidentiary hearing and denied Goldsmith's motion. In January 2011, a different judge heard and denied Goldsmith's motion for discovery concerning Turzani's personnel file.
Goldsmith's first jury trial took place later in January. The trial judge held a Sands/Brunson hearing and barred use of Goldsmith's 1997 conviction for resisting arrest as too remote for impeachment purposes. However, the judge found that his 1999 conviction for possession of CDS with the intent to distribute within 1000 feet of a school could be used for impeachment purposes, provided it was "sanitized."
State v. Brunson, 132 N.J. 377 (1993); State v. Sands, 76 N.J. 127 (1978).
On January 25, the jury found Goldsmith not guilty of counts one (second-degree conspiracy to possess), four (third-degree possession of CDS with intent to distribute in a school zone), five (second-degree possession of CDS with intent to distribute near public housing), and nine (fourth-degree unlawful possession of hollow point bullets). The jury was unable to reach a verdict on the remaining charges. On the State's motion, the judge dismissed count seven (third-degree receiving stolen property) and ten (fourth-degree possession of a large capacity ammunition magazine).
Goldsmith was retried on counts two, three, six, and eight, during August and September of 2011. Both detectives testified at trial that they had witnessed an illegal hand-to-hand transaction. Turzani also testified that thirty-one dollars was confiscated from Goldsmith. The detectives explained that the denominations of money found on Goldsmith were commonly used during drug transactions. Turzani opined that bags of cocaine usually sold from two to five dollars each. Suarez opined that the cocaine bags were sold from seven to ten dollars each.
Goldsmith testified on his own behalf. He explained that he was on his first date with Paige on the night of the arrest. He and Paige went to see a movie at approximately 9:15 p.m., but left early to spend time at his home. According to Goldsmith, they left his home before midnight to take Paige home.
Goldsmith testified that they were ordered to pull over by detectives in a gray car at 11th Street and Avon. Suarez initially asked for his driving credentials, after which Turzani told him and Paige to exit the car. Once they were out of the Audi, Turzani began searching it.
When Goldsmith asked why he had been stopped, he was advised not to worry about it and to comply with the officers' requests. Goldsmith testified that, after Turzani stopped searching the car, he sat on the hood of Goldsmith's car and made a telephone call. Turzani then asked Goldsmith and Paige to wait across the street with Suarez. Approximately fifteen minutes later, a white vehicle stopped and four police officers got out. One of the officers placed him in handcuffs.
Goldsmith testified that he was taken to police headquarters, where he was told that he had been arrested on an existing arrest warrant. According to Goldsmith, he was not told he had been arrested for possession of a gun or drugs. Goldsmith testified that other police officers came to talk to him approximately thirty minutes after he arrived at police headquarters.
Goldsmith explained that the money confiscated during the arrest was from his job as a messenger. He acknowledged a prior conviction based on a guilty plea, but asserted that he was not guilty of the charges in this case.
On cross-examination, when asked the degree of his prior conviction, Goldsmith responded that it was possession of CDS. When the prosecutor asked him whether it was just a possession, he responded in the affirmative. Following a sidebar conference, the prosecutor asked Goldsmith whether he was convicted of possessing CDS. Goldsmith responded that he could no longer remember the actual charge.
Detective Douglas Marshall of the major crimes unit testified on rebuttal that he and other detectives went to police headquarters to "debrief" Goldsmith on information relating to the weapon. According to Marshall, the major crimes unit is called whenever someone is arrested with an illegal handgun.
The jury returned guilty verdicts on count two (third-degree possession of CDS) and three (third-degree possession of CDS with the intent to distribute). The jury found Goldsmith not guilty on count six (second-degree unlawful possession of a handgun without a permit) and count eight (second-degree possession of a weapon while committing a narcotics offense).
At sentencing in October, the trial judge merged count two into count three and granted the State's motion for sentencing to a mandatory extended-term sentence pursuant to N.J.S.A. 2C:43-6(f). He imposed a seven-year term with three-and-a-half years without parole eligibility. This appeal followed.
II.
Goldsmith raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED.
POINT II: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE DEFENDANT'S MOTION FOR THE COURT TO CONDUCT AN IN CAMERA REVIEW OF DETECTIVE TURZANI'S PERSONNEL FILE IN ORDER TO PERMIT THE DEFENDANT TO PROPERLY IMPEACH HIS CREDIBILITY AS A WITNESS.
POINT III: THE DEFENDANT WAS DENIED A FAIR TRIAL BECAUSE THE STATE INTRODUCED IMPERMISSIBLE EXPERT OPINION TESTIMONY AND IMPROPER LAY OPINION TESTIMONY WHICH INVADED THE FACT-FINDING PROVINCE OF THE JURY. THE COURT FAILED ITS GATEKEEPER ROLE IN PRECLUDING ADMISSION OF THIS IMPERMISSIBLE TESTIMONY SUA SPONTE. [Not raised below.]
POINT IV: THE STATE DEPRIVED THE DEFENDANT THE RIGHT TO A FAIR TRIAL BY COMMENTING UPON AND INTRODUCING EVIDENCE IN VIOLATION OF HIS FIFTH AMENDMET RIGHT TO REMAIN SILENT AND STATE LAW PRIVILEGE AGAINST SELF-INCRIMINATION. [Not raised below.]
POINT V: THE DEFENDANT WAS DEPRIVED OF A FAIR TRIAL WHEN THE PROSECUTOR WAS ALLOWED TO CROSS-EXAMINE THE DEFENDANT ABOUT THE DETAILS OF HIS PRIOR CONVICTION FOR POSSESSION WITH INTENT TO DISTRIBUTE CDS WHICH WAS THE SAME CRIME FOR WHICH HE WAS ON TRIAL IN VIOLATION OF SUPREME COURT JURISPRUDENCE ON SANITIZATION.
POINT VI: THE JURY'S GUILTY VERDICTS ON THE DRUG OFFENSES ARE BASED ON THE IMPROPERLY ADMITTED UNSANITIZED EVIDENCE. THE JURY'S ACQUITTAL ON THE WEAPONS OFFENSE WAS NOT AN EXERCISE OF LENITY. THE GUILTY VERDICTS BASED ON SUCH IMPROPERLY ADMITTED EVIDENCE CANNOT STAND. [Partially raised below.]
POINT VII: THE PROSECUTOR'S REMARKS AND ACTIONS DURING THE COURSE OF THE TRIAL CONSTITUTED PROSECUTORIAL MISCONDUCT DEPRIVING THE DEFENDANT OF A FAIR TRIAL. [Not raised below.]
POINT VIII: THE COURT IMPOSED AN EXCESSIVE SENTENCE WHICH DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING GUIDELINES.
A.
We begin our analysis with Goldsmith's arguments concerning pretrial rulings: (1) the denial of his motions to suppress and (2) for discovery concerning Turzani's personnel file.
i.
Goldsmith argues that the motion judge erred in denying his motion to suppress the evidence. He contends that the detectives did not have a lawful basis for the traffic stop and that the judge should not have found Suarez to be a credible witness.
The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:
[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).Our review of the trial judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of
justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.
[State v. Elders, 192 N.J. 224, 243-44 (2007).]
State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2011), outlines a different standard for cases involving videos of police interrogations. Because there were no videos in this case, that standard is not applicable.
Under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). The same is true of the warrantless seizure of a person or property. Terry v. Ohio, 392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889, 905-06 (1968) (seizure of a person); State v. Hempele, 120 N.J. 182, 218-19 (1990) (seizure of property).
The seizure of a person occurs in a police encounter if the facts objectively indicate that "the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)) (internal quotation marks omitted). In applying that test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects.'" Id. at 165 (quoting N.J. Const. art. I, ¶ 7).
The Supreme Court has defined a field inquiry as "the least intrusive" form of police encounter, occurring when a "police officer approaches a person and asks 'if [the person] is willing to answer some questions.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (alteration in original) (quoting Nishina, supra, 175 N.J. at 510). During such an inquiry, "the individual approached 'need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Privott, 203 N.J. 16, 24 (2010) (quoting State v. Maryland, 167 N.J. 471, 483 (2001)).
In contrast to a field inquiry, an investigatory stop, also known as a Terry stop, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry, supra, 392 U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904.
The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126 (2002) (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).
In denying the motion to suppress, the motion judge found that Suarez was a credible witness and that, based on his training and experience, he was qualified to conclude that he had witnessed drug transactions involving Goldsmith, Paige, and the two unknown males. The judge further found that the detectives had a sufficient basis for the stop of Goldsmith's Audi. The judge also credited Suarez's testimony that he observed the gun when Goldsmith was reaching for his driving credentials and that the drugs were found in plain view.
Goldsmith argues that the second jury's acquittal with respect to the weapons offenses suggests that it did not find Suarez credible. Whether that is accurate is not relevant to our analysis. The factfinder at the suppression hearing was the motion judge, and he did find Suarez credible. In addition, the standard of proof on a motion to suppress is preponderance of the evidence, as opposed to the standard of proof at trial — beyond a reasonable doubt. State v. Gibson, 429 N.J. Super. 456, 465 (App. Div. 2013).
Giving the factual findings of the motion judge the required deference, Elders, supra, 192 N.J. at 243-44, we conclude that he did not err in denying the motion to suppress.
ii.
We next address Goldsmith's argument that the judge who decided his application for discovery concerning Turzani's personnel file abused his discretion in refusing to review the documents in camera prior to deciding the motion. We review a trial court's rulings on a defendant's discovery motion for abuse of discretion. State v. Enright, 416 N.J. Super 391, 404 (App. Div. 2010), certif. denied, 205 N.J. 183 (2011).
As part of a criminal defendant's constitutional right to confrontation, a defendant may attack a prosecution witness's credibility by revealing possible biases, prejudices, or ulterior motives as they relate to the issues in the case. State v. Harris, 316 N.J. Super. 384, 397 (App. Div. 1998). The question of "whether police personnel records should be disclosed involves a balancing between the public interest in maintaining the confidentiality of police personnel records" against a defendant's right of confrontation. Id. at 397-98. The State has a duty to learn of any evidence favorable to the defendant known to others acting on the government's behalf in the case, including the police. State v. Jones, 308 N.J. Super. 15, 42-43 (App. Div. 1998). However, that duty cannot be triggered by mere speculation that a government file may contain exculpatory material. Ibid.
The defendant "must advance 'some factual predicate which would make it reasonably likely'" that the records contain some relevant information, and establish that the defendant is not merely engaging in a fishing expedition. Harris, supra, 316 N.J. Super. at 398 (quoting State v. Kaszubinski, 177 N.J. Super. 136, 139 (Law Div. 1980)). Disclosure of police personnel records will be permitted where they may reveal prior bad acts that have particular relevance to the issues at trial. Ibid.
The motion judge determined that Goldsmith had presented an inadequate factual basis to support his request that Turzani's records be reviewed in camera. Goldsmith relied primarily on the fact that he had made a complaint against Turzani and that his attorney was aware of two others who also made some sort of complaint, one involving the theft of funds.
In light of the minimal factual support for Goldsmith's motion, we find no basis to conclude that the judge abused his discretion in denying the motion.
Our holding does not preclude Goldsmith from seeking such discovery in connection with any retrial, if an appropriate factual basis is available and presented to the trial judge.
--------
B.
We now turn to Goldsmith's contentions concerning errors during the second trial: (1) the opinion evidence concerning whether there was a drug transaction; (2) the cross-examination concerning his prior criminal conviction despite the pretrial ruling on sanitization of that evidence; and (3) the evidence concerning Goldsmith's interrogation by the major crimes unit.
With respect to evidential rulings, our standard of review is abuse of discretion. "Trial judges are entrusted with broad discretion in making evidence rulings." State v. Muhammad, 359 N.J. Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003). "A reviewing court should overrule a trial court's evidentiary ruling only where a clear error of judgment is established." State v. Loftin, 146 N.J. 295, 357 (1996) (citations and internal quotation marks omitted).
Some of the issues raised by Goldsmith were not raised before the trial judge. In those instances, we apply the plain error rule, which requires reversal only if the error was "clearly capable of producing an unjust result." R. 2:10-2. The possibility of producing an unjust result must be "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. Macon, 57 N.J. 325, 336 (1971).
i.
Goldsmith argues that, even though his trial counsel did not to object to the testimony, the trial judge should have prevented the State from offering opinion evidence by Turzani and Suarez concerning the nature of what they witnessed taking place on July 1, 2009. He relies on the Supreme Court's decision in State v. Sowell, 213 N.J. 89, 99-100 (2013), in which the Court held that, "[a]s gatekeepers, trial judges must ensure that expert evidence is both needed and appropriate, even if no party objects to the testimony." The State responds that the testimony was appropriate and, in any event, did not amount to plain error.
The following testimony by Turzani is at issue:
Q. Now, officer, how long . . . had you been investigating, urn, street-level narcotics transactions?
A. A total of . . . approximately 12-and-a-half years.
Q. And can you approximate for the jury how many actual drug transactions you've observed?
A. Thousands. Of street-level hand-to-hand narcotic activity, thousands.
Q. And how many times have you come into contact with illegal drugs?
A. Numerous -- thousands, thousands of cases.
Q. And how many arrests at that point had you made for illegal drug transactions, illegal street-level drug transactions?
A. The same, thousands[.]
. . . .
Q. - - had you received training with respect to identifying the characteristics of a street-level drug transaction?
A. Yes.
Q. In your training and experience, what did you think you observed that day?
A. I observed a narcotic . . . transaction.
Q. And the size of the object that was handed by Mr. Goldsmith to the unidentified individual, was that consistent with, um crack cocaine, a bag of crack cocaine?
A. Yes.
Q. And what you saw being handed back to Mr. Goldsmith in return, was that consistent with a bill?
A. Yes.
. . . .
Q. Now, you're an experienced narcotics officer. You testified earlier that you've observed thousands of drug transactions . . . been part of almost as many arrests. Those denominations - - three $5 bills and 16 singles, $1 bills . . . does that have any significance . . . . to you as [an] experienced narcotics officer?
A. Yes, it would designate that he's selling narcotics.
Q. How? What does that mean?
A. Most . . . drug addicts that walk up to people that are buying them . . . they're usually $5 bags or maybe even less. Sometimes $2 to $5 they charge them . . . .
. . . .
Q. Um, your training and experience . . . those bags are worth between $2 and $5?
A. That's what they sell it for on the street, yes.
. . . .
Q. Were the drugs field-tested?
A. Yes, by Detective Webber.
. . . .
Q. The field test confirms that at least one of the bags was, indeed, crack cocaine?
A. Yes.
Goldsmith also objects to the following testimony by Suarez:
Q. Now . . . at this point, how long had you been a narcotics detective?
A. Four-and-a-half years.
Q. Now, how many narcotics investigations had you been a part of at this point in your career?
A. At that point, I was part of hundreds of narcotic investigations.
Q. Now, had you actually observed hand-to-hand illegal drug transactions on the street?
A. Yes, I have.
Q. Approximately how many have you observed?
A. Hundreds of transactions.
Q. Now, when you witnessed this activity at the driver's side window of the Audi, what did you think?
A. Well, I -- we, myself and my partner, we definitely thought that a crime was going to be committed, something was going to happen. The driver of the vehicle was calling people over for a reason.
Q. Now, what did you actually observe take place between the man -- the unidentified man wearing all black walking to the driver's side of the vehicle -- and the man sitting in the driver's seat of the vehicle?
A. Well, at that time, . . . they engaged in[] a brief conversation. And then I observed the driver of the vehicle, the guy was sitting on the driver's seat, he reach[ed] for something in the middle of the vehicle, hand[ed] it to the person that was standing outside his vehicle, the person dressed all in black, hand[ed] him an object. And then this person hand[ed] some paper currency to the driver.
Q. Now, the object that you saw the driver hand the other individual, can you describe the size?
A. No, I couldn't. It was -- we were too far.
. . . .
Q. Now, with your training and experience as a narcotics detective, did you not believe you just witnessed a drug transaction, an illegal drug transaction?
A. Yes, we did.
We agree with Goldsmith that the testimony at issue should have been excluded by the trial judge, even in the absence of an objection. Both officers gave opinion testimony based on their alleged expertise in narcotics investigation without having been qualified as experts pursuant to N.J.R.E. 702. More importantly, they both testified, again based on their expertise, that they had witnessed Goldsmith and Paige engage in drug transactions, which was an issue to be determined by the jury. Sowell, supra, 213 N.J. at 99-102; State v. McLean, 205 N.J. 438, 460-63 (2011); State v. Odom, 116 N.J. 65, 77 (1989).
A qualified police officer can testify at trial in the form of opinion concerning issues such as whether certain quantities or packaging of narcotics is indicative of possession for personal use or for distribution. Odom, supra, 116 N.J. at 76-82. That portion of the detectives' testimony would have been admissible had it been presented following their qualification as experts.
However, the detectives should not have been permitted to testify that they witnessed drug transactions. The jury was capable of making that determination based on the nature of (1) the conduct testified to by the detectives and (2) the drugs and currency found at the time of the arrest, about which there could have been expert testimony had the witnesses been properly qualified. Sowell, supra, 213 N.J. at 100-02.
Although the defense presented at trial was that Goldsmith was not even at the location where the purported drug transaction took place, the jury was not required to credit that part of the defense case. That being the case, the testimony of two police "experts" that the transactions they witnessed were drug purchases was "clearly capable of producing an unjust result," such that there is "a reasonable doubt" as to whether the jury would have reached the same result without the improper opinion testimony.
Consequently, the convictions must be reversed.
ii.
We now turn to the issue of whether the trial judge erred in permitting the prosecutor to cross-examine Goldsmith on the nature of his prior conviction.
N.J.R.E. 609 permits the use of prior convictions for impeachment purposes "unless excluded by the judge as remote or for other causes." Goldsmith had two prior convictions. One was excluded as remote. The other, more recent conviction was for an offense similar to the distribution offense for which he was being tried. Under those circumstances, "the prosecution [is permitted to] 'introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted.'" State v. Harris, 209 N.J. 431, 441-42 (2012), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001) (quoting Brunson, supra, 132 N.J. at 391). If, however, a defendant testifies falsely about a prior conviction, further questioning concerning the nature of the conviction may be permissible. See State v. Buffa, 51 N.J. Super. 218, 227 (App. Div. 1958), aff'd, 31 N.J. 378, cert. denied, 364 U.S. 916, 81 S. Ct. 279, 5 L. Ed. 2d 228 (1960).
The following testimony took place during Goldsmith's cross-examination:
Q. Now you told the jury earlier with respect to your conviction in 1999, um, . . .
A. Ninety-six.
Q. Nineteen-ninety-six?
A. I pleaded guilty in '99 though. The charge was in '96, I pleaded guilty in '99.
. . . .
Q. It was a third-degree offense right?
A. Possessing C.D.S.
Q. And you were sentenced to . . .
A. Three with a one.
Q. It was just possession of C.D.S.?
A. Yes.
[(Emphasis added).]
The prosecutor's initial question concerning the degree of the offense was proper under Harris and Brunson. Had Goldsmith simply answered in the affirmative, the prosecutor would not have been allowed to go into the nature of the offense. However, Goldsmith's answer was not responsive to the question about the degree of his prior conviction. While the answer was accurate as far as it went, it was incomplete because the prior offense involved possession with intent to distribute and not mere possession.
Rather than insisting on an answer to the question he had asked, the degree of the prior offense, the prosecutor asked Goldsmith whether it was "just possession." The prosecutor knew that it was not, yet he invited Goldsmith to testify that it was.
It was only after Goldsmith answered in the affirmative, thereby giving an inaccurate rather than an incomplete answer, that the prosecutor asked for a conference at sidebar. He then argued that Goldsmith's second answer, the one he had invited, had "opened the door" to questions about the nature of the offense. After the trial judge learned the actual nature of Goldsmith's prior conviction, the colloquy at sidebar then continued:
[DEFENSE COUNSEL:] At a minimum the jury now knows at the time he's looking. He's the one that baited defendant - -The prosecutor then continued his cross-examination:
[PROSECUTOR:] I didn't bait him.
[DEFENSE COUNSEL:] - - and deliberately asked him what he was arrested for . . . .
. . . .
[THE COURT:] He said he didn't ask him that.
[PROSECUTOR:] I said you pleaded . . . to a third-degree crime.
[THE COURT:] That's exactly what he said. And then your guy popped it out of his mouth unresponsively.
[DEFENSE COUNSEL:] No problem, Judge. I'll correct it.
. . . .
[DEFENSE COUNSEL:] [T]hat's what he recalls
[PROSECUTOR:] Well, it's a half truth.
[DEFENSE COUNSEL:] So, you do it. That's what he recalls.
[PROSECUTOR:] Yeah.
[DEFENSE COUNSEL:] I don't have a problem with it. Let's go.
[THE COURT:] Alright. He doesn't have a problem with it. He opened the door, you can cross-examine on it.
[(Emphasis added).]
Q. Now, isn't it true, . . . that you pled guilty to possession of CDS with intent to distribute within 1,000 feet . . . of a school? Isn't that what you pled guilty to?
A. I don't remember.
Prosecutors have a duty to refrain from employing "improper methods calculated to produce a wrongful conviction." State v. Wakefield, 190 N.J. 397, 436 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)). Thus, prosecutors must "refrain from any conduct lacking in the essentials of fair play, and where [] conduct has crossed the line and resulted in foul play, the reversal of the judgment below will be ordered." Wakefield, supra, 190 N.J. at 437 (quoting State v. Siciliano, 21 N.J. 249, 262 (1956)). "[T]o justify reversal, the prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of [her] defense." Id. at 438 (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)).
Given the highly prejudicial nature of the prior conviction, the prosecutor should have asked for the conference before he asked the follow-up question. Instead, he asked a leading question based on a premise he knew to be inaccurate. That caused Goldsmith to turn his earlier incomplete answer into an inaccurate one, but only by agreeing to the prosecutor's erroneously premised question. In doing so, the prosecutor precluded the possibility of returning the focus of the interrogation to the degree of the offense without getting into the highly prejudicial details of the offense. The prosecutor knew that the nature of the conviction was to be sanitized, yet he did not ask for the judge's guidance until after he had set the hook with his second question. It was the prosecutor who was primarily responsible for inducing Goldsmith to "open the door" by asserting that it was "just" possession.
Admittedly, defense counsel further complicated matters by telling the judge that he "would deal with it." Nevertheless, the trial judge should have precluded any further examination on the issue based on the prosecutor's role in exacerbating the problem. Had the judge limited the prosecutor to insisting on an answer to his question about the charge of the offense, the jury would not have known that the prior conviction involved distribution, and Goldsmith would have had to live with his mistake in bringing up the fact that his prior conviction was for a drug offense.
The significant likelihood of prejudice resulting from the testimony that his prior conviction was for distribution is illustrated by the fact that the jury convicted him of the drug offenses but acquitted him of the weapons offenses. We conclude that the disclosure of the full nature of Goldsmith's prior conviction is a second basis for reversal.
iii.
Because we remand for retrial, we briefly mention Goldsmith's argument that his Fifth Amendment right to remain silent was infringed when the State offered testimony concerning the major crimes unit's protocol on the interrogation of defendants in cases involving weapons. We find the argument to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). There was no testimony that Goldsmith refused to cooperate or that he invoked his right to remain silent. We find no error, and certainly no plain error "clearly capable of producing an unjust result." R. 2:10-2.
C.
In light of our decision to reverse on the basis of the opinion testimony by the police officers and the introduction of the nature of Goldsmith's prior conviction, we need not reach the remaining arguments raised on appeal.
III.
Reversed and remanded
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION