Opinion
DOCKET NO. A-4012-12T1
01-15-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LOUIS RAGSDALE, Defendant-Appellant.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Jason Magid, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Natalie A. Schmid Drummond, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Camden county, Indictment No. 11-01-0075. Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Jason Magid, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Natalie A. Schmid Drummond, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his convictions for second degree resisting arrest/eluding, N.J.S.A. 2C:29-2(b), (count one); third degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), (count two); second degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1), 5(b)(2) (count three); and fourth degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count four), and the mandatory extended term sentence imposed. We affirm.
I.
This case originated with a motor vehicle stop that was recorded. The video of that stop was received in evidence and played for the jury without objection.
At approximately 11:00 P.M. on September 27, 2010, New Jersey State Police Trooper Jeffrey Bowman attempted to initiate a motor vehicle stop of a Hyundai Elantra after the driver failed to use a signal while making a left turn at a stop sign. Bowman activated the troop car camera, "started to call the stop in" to the dispatch center and turned on the emergency lights. The vehicle initially came to the shoulder but then "accelerated and took off." Bowman activated the siren, notified dispatch and the shift supervisor, and pursued the vehicle. The chase ended shortly thereafter when the driver stopped abruptly, causing Bowman to drive into the back of the Elantra.
The driver left the Elantra and fled on foot. Bowman followed for forty-five to ninety seconds, but returned to the vehicles after he lost sight of the driver.
Bowman provided a description of the driver to the dispatcher and responding officers, describing him as a black male, approximately six-feet tall, between 200 and 250 pounds, stocky or muscular build, shaved head, thick unkempt beard, and wearing a light blue shirt and dark blue or black pants.
Bowman looked into the Elantra's front driver's side window — which had been left open — with a flashlight. On the driver's seat in "plain view," he saw a sandwich bag and exclaimed, "Wow, there's a really big bag of cocaine right here." Bowman seized the bag as evidence and sent it to a state laboratory for testing.
A transcript of the videotape was not provided in the record. We rely upon the prosecutor's description of this statement in his summation.
Bowman recovered a cell phone at the scene on the ground underneath the driver's side door. After a search warrant and communication data warrant were obtained for the phone, it was identified as a prepaid device subscribed to by defendant's girlfriend, M.F. Further investigation revealed that the Elantra was registered to M.F. and that she and "Louis Ragdale" had been issued tickets for failure to wear a seatbelt while in the vehicle. Bowman obtained a photograph of Ragsdale and instantly recognized him as the driver of the Elantra. Defendant was arrested several days later at M.F.'s apartment.
We use initials to protect the privacy of M.F., who was not charged with any offense.
At trial, the State presented Bowman as a fact witness; it did not seek to qualify him as an expert. Bowman identified defendant as the driver of the Elantra. Bowman testified he was "[a] hundred percent sure" of his identification and there was no doubt in his mind.
During the course of his testimony, Bowman stated,
At that point there, I've seen this bag of cocaine that's in plain view on the front seat. The plain view doctrine says that we're allowed to enter any vehicle and seize any item we know is contraband that's in plain view, and it doesn't get more plain view than sitting on the driver's front seat.
He claimed he immediately recognized the substance as "cocaine" based upon his "training and experience" from having "arrested over a hundred people for drug crimes," many of which had involved cocaine.
Bowman also opined on the implications of the amount of cocaine found, stating, "I immediately recognized it as a very significant amount of cocaine. It's not unlike [sic] the everyday user." He explained he initially thought the bag contained about twenty ounces of cocaine, but later learned from the lab analysis it was actually around five ounces; he reasoned that it "looked bigger than it was." Bowman also stated five ounces was "still a very significant amount of cocaine"; "it's a second degree crime . . . so it's a lot of cocaine"; "you don't see five ounces of cocaine every day, it shocks you."
Defense counsel did not object to Bowman's statements identifying the substance as cocaine or discussing the amount at any time. However, he objected when the State sought to move the bag of cocaine into evidence following Bowman's statements because the exhibit had not been properly identified as cocaine. Based upon the State's representation that the chemist who analyzed the substance would testify that the substance was cocaine, the court permitted the witness to hold up the cocaine for the jury to see what Bowman had seized. Defense counsel had no objection, stating he had no problem "[a]s long as he's holding it up, that's what he actually saw, not necessarily identifying it as cocaine."
The State subsequently presented the testimony of Diana Casner, a forensic scientist for the State Police Office of Forensic Sciences, who was qualified by the court as an expert in forensic chemistry. She conducted the lab analysis for the substance recovered from the Elantra and testified the lab tests revealed the substance was 4.39 ounces of cocaine. At the conclusion of Casner's testimony, the State moved the bag of cocaine and the lab report into evidence without objection from defense counsel.
Michael Sutley, a Camden County drug task force officer assigned to the U.S. Drug Enforcement Administration, was qualified by the court as an expert in the distribution of CDS. He testified that the weight of drugs is indicative of whether its intended purpose is distribution or personal use. He opined, based on his training and experience, that, in New Jersey, four-and-a-half ounces of cocaine is indicative of distribution. Sutley explained that because possession of five ounces of cocaine is a first-degree crime, dealers distribute a slightly lesser amount. He also stated that the "street" value of four-and-a-half ounces of cocaine was $5000, and a typical cocaine user would not have that much in their possession or spend that amount to acquire it.
After the jury convicted defendant, the State timely filed a motion for defendant to be sentenced to a mandatory extended term sentence on count three, possession of a CDS with intent to distribute, based upon his prior conviction for the same charge in 2006. The court granted the State's motion and, as a result, defendant was subject to a sentence of ten to twenty years imprisonment on that count.
The court found the following three aggravating factors: three (risk of re-offense), N.J.S.A. 2C:44-1(a)(3); six (prior criminal record), N.J.S.A. 2C:44-1(a)(6); and nine (need for deterrence), N.J.S.A. 2C:44-1(a)(9). It found no mitigating factors. To justify its application of the aggravating factors, the court cited defendant's criminal history, the nature of the CDS convictions as "crime[s] with a profit motive" and the "destructive" effect of such crimes on the community. Defendant's prior convictions and sentences were identified at sentencing: (1) two years probation for unlawful possession of a handgun in 1994, (2) five years imprisonment for school zone offense in 1995, to run concurrently to violation of probation, (3) four years imprisonment for aggravated assault in 1998, to run concurrently with parole violations, and (4) nine years imprisonment with three years of parole ineligibility for second degree possession of a CDS with intent to distribute in 2006. The court determined the aggravating factors outweighed the non-existent mitigating factors.
The trial judge opined that "due to [defendant]'s record something a bit more than the absolute minimum [was] required," but rejected the State's argument that a fifteen-year sentence was appropriate. The court merged count two with count three and sentenced defendant to the following concurrent sentences: five years imprisonment on count one; twelve years imprisonment with a four-year period of parole ineligibility on count three; and eighteen months imprisonment on count four.
Defendant presents the following arguments for our consideration in his appeal:
POINT I
BOWMAN'S OPINION TESTIMONY IN THIS CASE OVERSTEPPED THE BOUNDARIES OF STATE v . MCLEAN. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART 1, PARS. 1, 9, 10). (PARTIALLY RAISED BELOW).
POINT II
THE IMPROPER BOLSTERING OF BOWMAN'S TESTIMONY DEPRIVED MR. RAGLAND OF DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART 1, PAR. 10) (NOT RAISED BELOW).
POINT III
MR. RAGSDALE'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.
After reviewing these arguments in light of the record and applicable legal principles, we conclude that the argument raised as plain error, R. 2:10-2, in Point II lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and that defendant's challenge to his sentence lacks merit. We agree with defendant that Bowman's testimony exceeded the scope of permissible lay testimony, but conclude that error was harmless under the circumstances here.
II.
At trial, no objection was asserted when Bowman testified he saw a bag of cocaine in plain view, that he immediately recognized the substance as cocaine, and that it was a very significant amount, constituting a second-degree offense. In addition, the videotape of the motor vehicle stop, in which Bowman reportedly exclaimed there was a large bag of cocaine in the Elantra, was admitted into evidence and played for the jury without objection or any request for a redaction. As a result, we review the argument raised in Point I for plain error, R. 2:10-2.
In State v. McLean, 205 N.J. 438 (2011), the Supreme Court described "the boundary line that separates factual testimony by police officers from permissible expert opinion testimony" as follows:
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. Testimony of that type includes no opinion, lay or expert, and does not convey information about what the officer "believed," "thought" or "suspected," but instead is an ordinary fact-based recitation by a witness with first-hand knowledge.
[205 N.J. at 460 (emphasis added) (citations omitted).]
As in McLean and our opinion in State v. Brockington, 439 N.J. Super. 311 (App. Div. 2015), Bowman was presented as a fact witness, not as an expert witness qualified to offer an opinion as to whether the substance he recovered was cocaine, the amount of the substance, or that the amount involved constituted a second-degree offense. The scope of his testimony was governed by N.J.R.E. 701, which permits a lay witness's "testimony in the form of opinions or inferences . . . if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." As we noted in Brockington, "[t]he average person cannot discern whether a package contained . . . cocaine based on no more than the observations [Bowman] described." 439 N.J. Super. at 322.
We note it was inappropriate for Bowman to gratuitously offer an explanation of the plain view doctrine and to characterize the amount seized as a second-degree offense. Instructions regarding the law are the exclusive province of the court and, in any case, any issue regarding the legality of the seizure is not a jury question. --------
Far from validating this transgression, the references to Bowman's experience in effecting prior arrests involving cocaine reflect an effort to transform his testimony into a hybrid form of opinion testimony that is not authorized by our Rules of Evidence. In McLean, the Court rejected the argument "that there is a category of tesimony that lies between [expert and lay opinions] that authorizes a police officer, after giving a factual recitation, to testify about a belief that the transaction he or she saw was a narcotics sale." 205 N.J. at 461. As we observed in Brockington, supra, 439 N.J. Super. at 322-23, (quoting McLean, supra, 205 N.J. at 461), the Court reasoned that such an approach would "transform[ ] testimony about an individual's observation of a series of events . . . into an opportunity for police officers to offer opinions on defendants' guilt." The McLean Court explained,
[T]he police officer in this matter was not qualified to testify as an expert. As a result, the reference in the question to his training and experience, coupled with the request that he testify about his belief as to what had happened, impermissibly asked for an expert opinion from a witness who had not been qualified to give one.
[McLean, supra, 205 N.J. at 461-62.]
Having found that Bowman's testimony exceeded the scope of permissible lay testimony, the question remains whether this error "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. In McLean and Brockington, the improper testimony included opinions that substances observed but never recovered were cocaine or heroin. In contrast, the improper opinion here was limited to a discrete amount that was recovered by the police and tested by Casner, who testified that the seized substance was cocaine. Moreover, in Brockington, the prejudice from the improper lay opinion testimony was exacerbated because the officer's opinion was incorporated as fact in the hypothetical presented to the expert and was treated as such in the prosecutor's summation. Brockington, supra, 439 N.J. Super. at 319. Here, the substance in question was proven to be cocaine by competent expert testimony and Sutley, the State's expert, expressed an opinion regarding the likelihood that the cocaine was possessed with the intent to distribute that was not dependent upon Bowman's improper opinion in any way. In summation, the prosecutor explicitly relied upon Casner's testimony as proof that the substance was cocaine and Sutley's testimony as proof that it was possessed with the requisite intent, and did not rely upon Bowman's improper opinion testimony.
Because there was no objection to the testimony challenged on appeal, "[r]eversal of defendant's conviction is required only if there was an error 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95 (2004)). In this case, there was competent evidence to prove defendant's guilt that was untainted by the improper lay opinion and did not exacerbate any potential prejudice from its admission. Therefore, we cannot conclude that the admission of Bowman's improper lay opinion led the jury to either an unjust result or one it otherwise would not have reached.
III.
Finally, we address defendant's challenge to his sentence. Defendant does not dispute that the trial court was required to impose a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f). See State v. Thomas, 188 N.J. 137, 149 (2006) (stating that if the sentencing court determines the defendant has the predicate prior drug conviction, it is required by statute "to impose an enhanced-range sentence when the prosecutor applies for such relief"). The mandatory extended term imposed, twelve years with a four-year period of parole ineligibility, was well within the applicable range of ten to twenty years imprisonment with parole ineligibility of up to one-half of the sentence imposed. N.J.S.A. 2C:43-6(f); N.J.S.A. 2C:43-7(a)(3). Defendant does not argue that the court misapplied the aggravating factors or failed to recognize pertinent mitigating factors. He contends the sentence is excessive "[i]n consideration of the facts of both the offense and those specific to [him], and especially in light of the character letters submitted on his behalf and the statement of his pastor at sentencing." However, defendant does not identify any facts or statements, or provide any law to support his blanket assertion that "a lesser sentence was clearly warranted."
In reviewing a sentencing decision, we
(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case make the sentence clearly unreasonable so as to shock the judicial conscience.
[State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Defendant has identified no deficiencies in the trial judge's fact-finding or compliance with sentencing principles and we discern none. Accordingly, the sentencing decision is entitled to our deference, State v. O'Donnell, 117 N.J. 210, 215 (1989), and will not be disturbed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION