Opinion
DOCKET NO. A-0489-14T1
02-07-2020
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT L. EVANS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Margaret Ruth McLane, Assistant Deputy Public Defender, on the briefs). Gurbir S. Grewal, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, and Elizabeth Katherine Tornese, Assistant Cumberland County Prosecutor, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Before Judges Fisher and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 12-05-0572. Joseph E. Krakora, Public Defender, attorney for appellant (Margaret Ruth McLane, Assistant Deputy Public Defender, on the briefs). Gurbir S. Grewal, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, and Elizabeth Katherine Tornese, Assistant Cumberland County Prosecutor, on the briefs). PER CURIAM
To appreciate what is now before us in this long-lived appeal and our disposition of the remaining issues, we must start with a brief description of the appeal's history.
I
We first heard defendant's appeal a few years ago; at that time, defendant argued about the denial of a suppression motion, various other issues relating to the jury trial, and the aggregate forty-year prison term, with a twenty-year period of parole ineligibility, imposed. State v. Evans, 449 N.J. Super. 66, 73-74 (App. Div. 2017). Defendant specifically argued that: (1) the judge erred in denying his motion to suppress the drugs and evidence seized from his person as the result of a strip search and from an automobile he was driving when stopped by police; (2) he was deprived of due process and a fair trial because the State's expert testimony was "not helpful and embraced the ultimate issue," and, to compound the error, the judge gave "inadequate expert witness jury instructions" on the significance of the expert testimony; (3) the prosecutor engaged in misconduct in his description of the expert's opinion; (4) he was denied a fair trial because of the conduct of voir dire of potential jurors; (5) the cumulative effect of these claimed errors deprived him of a fair trial; and (6) the sentence was excessive. Id. at 74-75. By way of our prior opinion, we vacated defendant's convictions because we found that the "plain feel" exception to the warrant requirement did not apply to the strip search; as a result, we reversed the denial of defendant's motion to suppress evidence seized from him, id. at 73, and remanded for a hearing to determine whether the search warrant obtained for defendant's automobile "is free of the taint from the unlawful strip search," id. at 76. We found no merit in defendant's arguments in Points III, IV and V. Ibid. And, because of our holding regarding the searches and seizures, we concluded it was unnecessary to reach either Point II, in which defendant attacked the State's expert testimony in numerous ways, or Point VI, in which defendant argued that his sentence was excessive. Ibid.
The Supreme Court granted certification, State v. Evans, 230 N.J. 505, 508 (2017), as their later decision described it, to "consider whether the 'plain feel' doctrine justified a warrantless strip search under the circumstances of this case in light of the 'Strip Search Act,' N.J.S.A. 2A:161A-1 to -10." State v. Evans, 235 N.J. 125, 127 (2018). For the reasons described in its opinion, the Court reversed our disposition of the search and seizure issues and "reinstate[d]" defendant's convictions. Id. at 141. The Court also remanded the matter to us "for consideration of Points II and VI, . . . which the panel did not reach in light of its resolution of the suppression issue." Ibid.
II
On receipt of the mandate, we provided the parties with an opportunity to brief the impact of State v. Cain, 224 N.J. 410 (2016), which was decided after our prior decision in this matter, on defendant's Point II. The parties provided timely submissions, which included arguments about whether Cain should be applied prospectively or retroactively. In seeking the benefit of Cain, which was decided during the pendency of his appeal, defendant relied on State v. Green, 447 N.J. Super. 317, 328 (App. Div. 2016), in which we held that Cain would be given pipeline retroactivity, meaning that it would apply to "all future cases, the case in which the rule is announced, and any cases still on direct appeal." See State v. Knight, 145 N.J. 233, 249 (1996). On the other hand, the State argued Green was wrongly decided and advised it had petitioned for certification in State v. Covil, No. A-0802-14 (App. Div. Apr. 30, 2018), which ruled on the same retroactivity issue by following Green. Soon after our receipt of the parties' supplemental briefs, the Supreme Court granted certification in Covil. 236 N.J. 241 (2018). In light of that development, we advised the parties that - unless they persuasively argued otherwise - we would await the Court's Covil decision before taking any further steps in fulfilling the Court's mandate in this case. The parties acceded to our suggestion.
The Supreme Court has now decided the issue, holding that its Cain and Simms decisions were "intended to apply prospectively to guide future trials, not retroactively to proceedings conducted prior to those decisions." State v. Covil, ___ N.J. ___, ___ (Jan. 22, 2020) (slip op. at 3). As in Covil, defendant's trial occurred in 2014, prior to the Court's decisions in Cain and Simms, so defendant is not entitled to the chief holding in those cases, that "in drug cases, an expert witness may not opine on the defendant's state of mind" and "[w]hether a defendant possessed [CDS] with the intent to distribute is an ultimate issue of fact to be decided by the jury." Cain, 224 N.J. at 429; see also Simms, 224 N.J. at 408 (reiterating Cain's holding and concluding that "[a] hypothetical question in a drug case should not be used as a prosecutorial tool to sum up an entire case in a single question for the purpose of eliciting an expert's opinion on a defendant's guilt").
State v. Simms, 224 N.J. 393 (2016).
We thus consider the expert testimony offered in defendant's 2014 trial, not in light of the Court's new rule described in Cain and Simms, but in light of prior precedents, like State v. Odom, 116 N.J. 65, 69 (1989), where the prosecutor summed up the evidence against the defendant in a hypothetical question and inquired whether the facts assumed indicated the defendant possessed CDS for personal use or with the intent to distribute. In considering the propriety of such testimony, the Court held that:
as long as the expert does not express his opinion of [the] defendant's guilt but simply characterizes [the] defendant's conduct based on the facts in evidence in light of his specialized knowledge, the opinion is not objectionable even though it embraces ultimate issues that the jury must decide.In subsequent decisions prior to Cain and Simms, the Court approved of such hypothetical questions while cautioning against the use of expert testimony: that "state[s] [the] obvious," State v. Nesbitt, 185 N.J. 504, 507-08 (2006); that is "tantamount to a legal conclusion, resulting in a veritable pronouncement of guilt," State v. Reeds, 197 N.J. 280, 297-301 (2009); or that "intrude[s] on the province of the jury by offering, in the guise of opinions, views on the meaning of facts that the jury is fully able to sort out without expert assistance," State v. McLean, 205 N.J. 438, 461 (2011). Odom, as well as these other pre-Cain decisions, represent the state of our jurisprudence when the State elicited expert testimony during defendant's 2014 trial.
[Id. at 79.]
III
In his Point II, defendant presents a multi-faceted attack on the expert testimony elicited here:
THE EXPERT'S [TESTIMONY], WHICH WAS NOT HELPFUL AND EMBRACED THE ULTIMATE ISSUE, COMBINED WITH THE COURT'S INADEQUATE EXPERT WITNESS JURY INSTRUCTIONS DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW (Not Raised Below).
A. Introduction.
B. The State's Expert Overstepped The Limits Of Odom And His Ultimate Issue Testimony Severely Prejudiced The Defense.
C. The Use Of The Hypothetical Was Improper Because It Did Not Assist The Jury And The Risk Of Undue Prejudice Far Outweighed Any Probative Value.
D. The State's Expert Should Not Have Been Permitted To Testify That Drug Dealers Carry Guns Because It Was Not Helpful To The Jury And Interfered With The Jury's Ability To Separately Consider The Drug Possession And Gun Possession Charges.
E. The State's Expert Improperly Introduced Irrelevant And Highly Prejudicial Testimony Implying That Defendant Was A Mid- To Upper-Echelon
We find no merit in these arguments.Dealer Where There Was No Evidence To Support That Opinion.
F. Conclusion.
We also allowed supplemental briefs in the wake of Covil that have been received and considered.
We start by observing that defense counsel did not object to the eliciting of the expert's responses to the prosecutor's hypothetical. As a result, defendant must convince us not only that the admission of the expert testimony was erroneous but was also capable of producing an unjust result. R. 2:10-2; State v. Daniels, 182 N.J. 80, 95 (2004).
For further information as to the nature of the motor vehicle stop, the search of defendant and his vehicle, and what was discovered and seized during those searches, we refer the reader to our earlier published opinion, 449 N.J. Super. 66, and the Supreme Court's subsequent decision, 234 N.J. 125. There is no point in burdening the record further by reiterating what has already been reported.
The record reveals that the prosecutor was emphatic from the outset, counseling the witness against straying from the contents of her hypothetical:
Q. I'm going to ask you to listen to just what I tell you. Don't go outside my hypothetical. And at the end of that, I'm going to ask you to render an opinion. Are you okay with that?The witness responded affirmatively to that admonition, and the prosecutor then presented this hypothetical:
[Emphasis added.]
Q. Officer, you do . . . a motor vehicle stop on a car. There's one occupant in the car. You take the person out of the car on an unrelated investigation and you search that individual.
And on that person, you find 16.11 grams of crack cocaine and it was broken down. There's one bag that is 12.84 grams and it's one rock, and then there's another bag of crack cocaine that weighs approximately 3.27 grams, and that's a smaller rock.
Additionally, you also find nine baggies of what you believe to be heroin that are packaged in individual bags, approximately .01 grams in the bags.
You also, in the pocket of . . . the individual, you find $2,245. That's the extent of what you find. Can you tell us, in your opinion, were those narcotics for personal use?
A. In my opinion, no.
Q. And why? What's the basis of that opinion?
A. Basically, like I explained before, 16.11 grams of crack cocaine is a little over a half ounce. It's not a typical user purchase.
A typical user purchases approximately a $20 bag at .2 grams. As well as a typical user of heroin purchases one to two bags at a time, not nine.
Q. Now, does the absence of paraphernalia weigh into your opinion?
A. Yes, ma'am.
Q. And how does that weigh into your opinion?
A. The typical user of crack cocaine would have a glass tube or a crack pipe, used to ingest that crack cocaine.
As well as a typical user of heroin, whether they s[n]ort or shoot the heroin, would either have an injectable or a needle, or a straw to snort the co - or the heroin.
Q. Does the fact that the currency was located weigh into your opinion for personal use?
A. Yes, ma'am.
Q. And how does that weigh into your opinion?
A. In my experience, the typical user doesn't have $2,245.
Q. Okay. Let me ask you, Officer; in your opinion, were these narcotics for distribution?
A. Yes, ma'am.
Q. And can you explain your opinion and the basis of your opinion?
A. Basically, all those items in the amount that they were, coupled with that amount of currency. Yeah, a typical user wouldn't have that amount of currency or that amount of narcotics on them for all the reasons I explained earlier.
A typical user purchases just enough to get high at that particular time. They know the more product that they
have on them, the[] more likelihood they are to get arrested and be charged.
The penalties go up for the more amount of narcotics they have on them and they don't have the wherewithal or the means to have that much currency or product on them at the same time.
[Emphasis added.]
This testimony was proper under the legal principles applicable during that trial. Indeed, it adhered to the admonitions in the Court's post-Odom, pre-Cain decisions that the expert not render an opinion tantamount to a declaration of guilt. The questioning's obvious purpose was to do no more than aid the jury in understanding why a hypothetical person in those circumstances could be viewed as distributing rather than using the CDS in his possession. Indeed, as the State argues, the amount of CDS in defendant's possession was not so great as to render obvious that the CDS was possessed with an intent to distribute. Had the trunk of defendant's vehicle been jammed full of packages of heroin or crack cocaine, defendant would likely have been well within his rights - as expressed by Odom - to seek exclusion of expert testimony, because in that instance it would be obvious he was distributing, not using. But, here, a jury could be understandably uncertain as to the significance of the particular amounts possessed when compared to the charges lodged against defendant. Under Odom, the expert testimony in this situation and the hypothetical as posed was clearly permissible. This was likely the reason defense counsel did not object.
Defendant also focuses on the phrase "these narcotics" in the prosecutor's question whether, in the expert's opinion, "these narcotics [were] for distribution." Defendant claims that this reveals the examiner's attempt to have the witness opine about the ultimate issue in this case; in other words, defendant would have us believe that "these narcotics" referred to those found in defendant's possession, not the narcotics referred to in the hypothetical. We disagree. As demonstrated by the examination we quoted at length above, the prosecutor was undoubtedly referring to the narcotics mentioned in the hypothetical and not otherwise.
We assume the argument also extends to the reference to "those narcotics" earlier in the examination.
Defendant also contends that the judge's instructions to the jury about this testimony "failed to sufficiently emphasize that despite [the expert's] testimony" the ultimate determination of whether the State provided sufficient evidence of defendant's guilt of the crimes charged was for the jury. We again disagree. The judge instructed the jurors that the "weight and validity" of the expert's opinion was a matter for their consideration and that, among other things, just because the expert was allowed to give the opinion did not mean that the jury had to accept it. While the judge may not have utilized the model jury charge regarding expert testimony, we are satisfied that his instructions at the time the witness testified were consistent with Odom's requirement that judges provide instructions to juries about such testimony and their use of it. 116 N.J. at 82. We again note that trial counsel did not object to the instructions given nor argue they were insufficient.
We also find no merit in that part of Point II, in which defendant complains of the eliciting of expert testimony about the tendency of drug dealers to carry weapons. Again, defendant did not object. The question itself is one on which the jury could benefit from the assistance of an expert. And, again, the judge properly instructed the jury as to its use of this expert testimony.
In short, we reject the argument that the admission of the expert testimony was erroneous and deprived defendant of a fair trial. To the extent we have not expressly addressed each of Point II's subparts, it is because we find those other arguments are of insufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
IV
We lastly address Point VI, in which defendant argues that the judge imposed an excessive sentence:
DEFENDANT'S SENTENCE IS EXCESSIVE AND MUST BE VACATED BECAUSE THE COURT FAILED TO CONDUCT ANY YARBOUGH ANALYSIS, FAILED TO ADDRESS MITIGATING FACTORS, ENGAGED IN IMPERMISSIBLE DOUBLE COUNTING, AND IMPOSED THE MAXIMUM SENTENCE ON ALL COUNTS.
A. The Court Erroneously Imposed A Consecutive Sentence On Count Eight.
B. The Court Failed To Address Any Mitigating Factors Requested By The Defense.
C. The Court Engaged In Impermissible Double Counting By Imposing An Extended Term And The Maximum Legal Sentence.
D. The Sentence Is Manifestly Excessive.
State v. Yarbough, 100 N.J. 627 (1985). --------
In sentencing defendant, the judge first considered the applicable aggravating factors. He found applicable factors three, six, nine, and eleven, N.J.S.A. 2C:44-1(a)(3), (6), (9), (11), and he gave them great weight because of defendant's noteworthy criminal record, because defendant "continued his criminal activity" while under indictment, and because, in the judge's view, nothing but a severe punishment would deter this defendant. The judge found no mitigating factors, and expressed that he was clearly convinced the aggravating factors substantially outweighed the non-existent mitigating factors.
For these and other reasons, and after merging the possessory convictions into the distribution convictions for sentencing purposes, the judge imposed a sentence containing the following terms:
• a twenty-year extended prison term, subject to a ten-year period of parole ineligibility, on the conviction for second-degree CDS possession (cocaine) with the intent to distribute;
• a concurrent five-year prison term, subject to a two-and-one-half-year period of parole ineligibility, on the conviction for CDS possession (heroin) with the intent to distribute;
• a consecutive ten-year prison term, subject to a five-year period of parole ineligibility, on the conviction for second-degree possession of a weapon while committing CDS offenses;
• a concurrent ten-year prison term, subject to a five-year period of parole ineligibility, on the conviction for second-degree unlawful possession of a firearm;
• a consecutive ten-year prison term, subject to a five-year period of parole ineligibility, on the second-degree certain persons conviction;
• a concurrent eighteen-month prison term on the hollow-point bullet conviction.These dispositions amount to an aggregate forty-year prison term, subject to a twenty-year period of parole ineligibility.
On appeal, defendant does not appear to quarrel with the judge's finding or application of the aggravating factors, and as to this aspect only seems to argue that the judge should have explained why he did not find or apply the many mitigating factors urged on defendant's behalf at sentencing. In his appeal brief, defendant does not identify for us those particular mitigating factors that he believes the sentencing judge should have applied. Going by defense counsel's arguments at the time of sentencing, it appears defendant argued that: his conduct did not cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(1); he did not contemplate that his conduct would cause serious harm, N.J.S.A. 2C:44-1(b)(2); there were substantial grounds tending to excuse his conduct, claiming that defendant had a drug problem, N.J.S.A. 2C:44-1(b)(4); his prior criminal record was "minim[al]," N.J.S.A. 2C:44-1(b)(7); his conduct was a result of circumstances unlikely to recur, N.J.S.A. 2C:44-1(b)(8); his attitude indicated he was unlikely to commit another offense, N.J.S.A. 2C:44-1(b)(9); and his imprisonment would entail excessive hardship to himself or his dependents, and N.J.S.A. 2C:44-1(b)(11).
A sentencing judge should explain why proposed aggravating and mitigating factors do or do not apply in a given instance. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Kruse, 105 N.J. 354, 359-60 (1987). But, the reasons for the judge's rejection of the offered mitigating factors was contained in his findings on the aggravating factors. That is, while defense counsel argued at sentencing that the crimes defendant committed did not cause serious harm and that defendant's criminal record was not so serious as to warrant significant punishment, the judge found the opposite because he applied those aggravating factors which were essentially the mirror images of all the mitigating factors urged by defense counsel. In other words, we can assume from this record that the judge did not find and apply the mitigating factors defendant urged for the same reasons he applied the four aggravating factors. Consequently, we need not remand for the judge to state the obvious.
That lastly leaves for our consideration defendant's contentions that the sentencing judge: (1) failed to explain why he imposed a consecutive term on the certain-persons conviction; (2) engaged in "impermissible double counting" by imposing the maximum sentence on the extended term; and (3) otherwise imposed an excessive sentence.
To be sure, on the first of these last three subparts of defendant's Point VI, we agree that the judge provided no rationale or explanation for the imposition of a consecutive term on the certain-persons conviction. We express no view as to the propriety of that ruling, only that the judge's silence about the Yarbough factors leaves us with no clear understanding of why the judge felt it appropriate to impose consecutive prison terms on two of the three weapons offenses that resulted from defendant's possession of the same weapon at the same time.
On the second, we agree that we and the parties are entitled to an understanding of why the judge imposed both an extended term and the maximum prison term allowed.
So, we will remand for the trial judge's reconsideration of these circumstances and for his rationale in imposing: consecutive terms; the length of the prison terms made consecutive; and the maximum term on the conviction for which an extended term was ordered. Because this remand may result in a different overall sentence, we do not now reach the question whether the aggregate sentence was excessive. Defendant may raise that argument again on appeal once the remand proceedings are completed.
* * *
To summarize, we have considered and ruled on defendant's Points II and VI as directed by the Supreme Court's mandate. For the reasons set forth above, we affirm defendant's convictions, but we remand for reconsideration and further findings on the sentence imposed.
Affirmed in part, remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION