STATE OF NEW JERSEY v. DAMIAN SCOTT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4302-02T44302-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAMIAN SCOTT,

Defendant-Appellant.

______________________________________________________

 

Submitted October 6, 2005 - Decided

Before Judges Stern and Fall.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 02-05-1799.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Melissa R. Vance,

Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Johanna Barba Jones, Deputy

Attorney General, of counsel and on the

brief).

PER CURIAM

Defendant was indicted along with Charles Robinson for third-degree conspiracy to violate narcotics laws, N.J.S.A. 2C:5-2 (count one); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count two); third-degree possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5a(1), b(3) (count three); third-degree distribution of a controlled dangerous substance on or within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count four), and second-degree possession with intent to distribute a controlled dangerous substance within 500 feet of a public housing facility, public park or public building, N.J.S.A. 2C:35-7.1 (count five).

Tried by himself before a jury, defendant was found guilty on all counts. After his motion for a new trial was denied, defendant was sentenced to six years in the custody of the Commissioner of Corrections on count five, the second-degree possession with intent to distribute conviction. On count four, the school zone conviction, defendant was sentenced to a three-year concurrent sentence with three years to be served before parole eligibility. Monetary penalties and assessments were also imposed. Counts one, two and three were merged into count four.

On this appeal defendant argues:

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF

PROPRIETY WHEN SHE VOUCHED FOR THE CREDIBILITY OF

A POLICE OFFICER. (Not Raised Below)

THE EXPERT'S TESTIMONY IMPROPERLY EXCEEDED THE

PROPER TESTIMONY OF AN EXPERT IN A DRUG

DISTRIBUTION CASE. (Not Raised Below)

THE TRIAL JUDGE IMPROPERLY FOUND AN AGGRAVATING

FACTOR, AND THEREFORE SHOULD HAVE SENTENCED

DEFENDANT AS A THIRD-DEGREE OFFENDER AND IMPOSED

A LESSER SENTENCE ON COUNT FIVE.

Our careful review of the record convinces us that these contentions are without merit and warrant only the following discussion. R. 2:11-3(e)(2).

I.

At about 11:30 a.m. on February 28, 2002, Detective Barthelemey Joseph of the Essex County Sheriff's Department was conducting an undercover drug surveillance in the area of Sixteenth Street and Sixteenth Avenue in Newark. At the time of the surveillance, Joseph sat in an undercover vehicle in "plainclothes." Joseph observed two males, later identified as defendant and Charles Robinson, "standing in front of 531-533

. . . 16th Street." Joseph noted that the defendant and Robinson were conversing with each other before they were approached by people suspected to be drug buyers.

Joseph subsequently observed a female approach the defendant and engage him in conversation. Joseph testified that the defendant then stopped the conversation to retrieve something from the alleyway between 527 and 525 Sixteenth Street, and then returned to make an exchange with the woman. Joseph further testified that he saw the woman give defendant "paper currency" in exchange for an object. Defendant put the money in his pocket.

About five minutes after the defendant made the exchange with the female, Joseph saw another male approach Robinson. The two conversed briefly before Robinson went to the same location in the alleyway, retrieved something and returned back to the male, with whom he made an exchange. Joseph believed he observed "a narcotics transaction . . . taking place."

Joseph then contacted the backup officers on the surveillance to describe the appearances of the two suspects. Specifically, Joseph gave them "information about Mr. Damien Scott and Mr. Robinson and also the two unknown people that . . . purchased the narcotics there." After conveying this information, Joseph observed the back-up unit arrive in less than a minute. The unit "detained" the two suspects, and Joseph confirmed that they were the men he had observed during the suspected drug transactions.

Joseph also contacted Detective Vinci and conveyed information about where he believed the "stash" was located. Joseph stated that he did not participate in the actual arrest because he could not "blow" his undercover status. However, Joseph observed a police "photo line-up" that day and confirmed that defendant was wearing the same clothing that Joseph had described when radioing the backup officers.

Joseph also testified that a park is located within 500 feet where defendant and Robinson were selling drugs. Lastly, Joseph testified that the Fifteenth Avenue School is located within one thousand feet of the location.

Former Detective, now Sergeant, Nicholas Vinci was also assigned to the undercover investigation on South Sixteenth Street. Vinci was the officer responsible for seizing the evidence after Detective Joseph radioed the information to him. After the arrest, Vinci went to the "alleyway between 525 and 527 South 16th Street" and "recovered a clear plastic bag that had sixty-two bags of cocaine" under the siding of the house. Vinci conducted a "field test," which revealed that the substance was cocaine, and then sent the substance to the police laboratory for testing. The specimen tested "positive for cocaine."

Detective Jason Duncan acted as "a backup detective" responsible for taking inventory of the money seized during the arrest. Duncan retrieved two hundred and eighty dollars from defendant's person in denominations of nine twenty-dollar bills, four ten-dollar bills, ten five-dollar bills and ten one-dollar bills. Duncan also seized one hundred and two dollars from co-defendant Robinson in denominations of one fifty-dollar bill, two twenty-dollar bills, one five-dollar bill and seven one-dollar bills.

Detective Reginald Leon Holloway of the Sheriff's Bureau of Narcotics testified, without objection, as "an expert [witness] in the field of street-level narcotics, detection, distribution and sale." Holloway examined the evidence seized, particularly "a clear plastic bag containing a second clear white and blue plastic bag containing a clear Ziploc bag containing various finger nail size small heat sealed Baggies, some with a blue tint, some with a clear tint. . . [e]ach containing powdery substance." Holloway opined that the packaging was "consistent with the packaging of cocaine for illegal sale and distribution." Based on a hypothetical, Holloway also gave his

opinion that the surveillance officer observed what is - what is typical of two possible hand-to-hand illegal narcotic transactions while the items that were recovered from the responding location which were exchanged for currency were recovered from what is commonly referred to as a "stash location."

. . . .

While the items were recovered that were exchanged for currency were indeed cocaine and they recovered sixty-two individually packaged Baggies of cocaine, it is my opinion that they were possessed with the intent to further illegally distribute for monetary gain, [ ].

. . . .

[S]ixty-two individually [-wrapped] plastic Baggies of cocaine coincides with distribution.

An individual or individuals that's looking to make a purchase of that quantity is more so looking to make the purchase in one bulk form. Meaning, one clear plastic bag with various rocks or powder. In making a purchase in that form, the individual or individuals are guaranteed a purer quality of cocaine as opposed to many times when narcotics are packaged in this instance cocaine is packaged individually and many times the distributor will mix the cocaine with a cutting agent in order to stretch their money.

When buying in bulk form, as I stated, you're more likely to get chunks of rocks; so, therefore, you're guaranteed a purer quality. While also purchasing in bulk form, you're looking at a discounted rate, [ ].

Holloway also discussed the defendant's use of a "stash," a common way to "conceal" illegal narcotics from law enforcement officers, other drug dealers, or persons looking to rob drug dealers. Holloway noted that the denominations found on defendant's person were consistent with a "dealer's bankroll," which "allow[s] the dealer or dealers to be in access of change for their customers."

In his defense, defendant presented the testimony of his uncle, Keith Moon. Moon testified that on February 28th, the day in question, he saw defendant on Sixteenth Avenue as Moon was driving to visit defendant's mother. Defendant "flagged [him] down." Moon double parked his car while he had a short conversation with defendant, who asked him to "take him to Public Service". As they were talking, "[c]ops came from everywhere." Moon was asked to "get out" of his vehicle while officers verified his license and registration and performed a search of the car. Moon also saw the officers search defendant while "on the ground." The officers "took [defendant's] boots off" and took money from "inside his boots." After determining that Moon was "okay" the officers told him to "get the F out of here." On cross-examination, Moon admitted that he did not know what defendant "was doing prior to [Moon's] arrival."

Defendant also presented the testimony of Dorthia Moon, his mother. She testified that she gave defendant $300 in cash that morning to pay the electric bill with PSE&G. The money was in various denominations including tens, twenties and singles. Ms. Moon also testified that she did not know who her son was with or what he was doing on February 28th because she was working at UMDNJ.

Defendant testified on his own behalf. He testified that on the morning of February 28th his mother gave him $300 to pay the PSE&G bill. Defendant stayed at his mother's home in Irvington for some time, then "caught the bus" to Nineteenth Street. Defendant stopped at the Chicken Shack to buy cigarettes and a soda before proceeding to Sixteenth Street to meet a "female friend." While on the way, at approximately 11:15 a.m., defendant "bumped into Charles Robinson," whom he described as "a mutual friend" of other friends with whom he had been out drinking in the past. Robinson offered to treat him at the diner and he accepted. As the two walked back towards Sixteenth Avenue, defendant spotted his uncle and "flagged him down."

Defendant was leaning into his uncle's car when he heard Robinson say "oh, my God." At this point, police officers converged on the scene and had defendant kneel on the ground. The officers discovered $280 in defendant's boot and then handcuffed him. Defendant saw the officers leave the alleyway with a Ziploc bag containing drugs. Defendant denied that the money found on his person came from the sale or distribution of illegal drugs.

II.

During closing argument, the prosecutor stated:

Now you heard from Detective Joseph. He was very forthright, very honest and I - I would submit to you most credible. And he testified to you that he was acting in an undercover capacity on February 28th at about 11:30 and that he responded to Sixteenth Avenue and was in an undercover vehicle in plain clothes. He testified that he observed an individual who was ultimately identified as Damian Scott talking with another individual in front of 531-535 Sixteenth Avenue and that - I'm sorry, Sixteenth Street.

. . . .

The defendant tells us that he was just walking down the street going to visit his girlfriend, talking to Charles Robinson, who he says has a history of drug dealing, and agreeing to go to a diner with him. He says - his testimony, though, was unbelievable I would submit to you because he indicated he knew when the police arrived they were looking for drugs.

Now if he's an innocent bystander why would he assume that? Why would he make that conclusion under those circumstances? It just doesn't make sense. And he did. Why? Because he knew he had drugs. He knew where the drugs were. And he pointed out to you in his diagram.

. . . .

There's no reason to explain that other than the fact that he was in possession of them, that he had those drugs with the intent to distribute them and he was, in fact, distributing them, and was - and was observed doing so by Detective Joseph.

He has no reason to lie. He has no reason to fabricate testimony.

In State v. Frost, 158 N.J. 76 (1999), the prosecutor inaccurately stated during his closing argument that "'buy money' could not be introduced at trial." Id. at 85. This statement was "not only inaccurate, . . . [but] misleading as well." Ibid. Furthermore, the prosecutor made inappropriate comments disparaging defense counsel's closing as "lawyer talk" and stating that defense counsel "is banking on that maybe one of you got a ticket last week and you got a bad taste in your mouth towards officers." Id. at 81. The prosecutor also commented that "the police officers would not lie because of the 'magnitude' of charges that could be brought against them." Id. at 85. In reversing defendant's convictions, the Supreme Court stated "[t]he problem with this kind of exhortation is that it unfairly invites the jury to speculate concerning whether the effect of an acquittal would be to terminate the officer's career" and "statements such as those made by the prosecutor are improper because they divert the jurors' attention from the facts of the case before them." Id. at 86.

In Frost, defense counsel "immediately objected to all but one of the prosecutor's improper remarks" and the judge gave no meaningful curative instruction. Ibid. The reversal was based on "the cumulative effect of the prosecutorial improprieties in [the] case," id. at 87, although the Court emphasized that the quantum of evidence against a defendant "could never be a justifiable basis for depriving a defendant of his or her entitlement to a constitutionally guaranteed right to a fair trial." Ibid.

In this case, the prosecutor's isolated comments cannot be said to be "so egregious that it deprived the defendant of a fair trial." Id. at 83. The prosecutor did not state that any officer risked his career if found incredible, or the like. In any event, there was no objection to the prosecutor's comments and we cannot conclude that they constitute plain error in the context of the trial and summations as a whole. R. 2:10-2.

III.

In State v. Odom, 116 N.J. 65 (1989), the Supreme Court stated that "as long as the expert does not express his opinion of defendant's guilt but simply characterizes 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." Id. at 79. The Court further stated, "such an opinion is permissible although it is expressed in terms that parallel the language of the statutory offense when the language also constitutes the ordinary parlance or expression of persons in everyday life." Ibid.

The question [to an expert] 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).]

Defendant argues that Detective Holloway, the State's expert witness, overstepped the bounds of permissible expert opinion by repeatedly stating "it is my opinion that both individuals conspired to violate the illegal narcotics laws" based on their mutual use of the stash location and the defendant's bankroll. Defendant contends that an expert may not discuss "the ultimate question of whether a drug transaction has taken place," and that an expert cannot state "his belief that defendant is guilty with the crime charged." Finally, defendant submits that because the State's case was not strong, the impermissible expert testimony was clearly capable of producing an unjust result. Defendant therefore contends that a new trial is required.

We conclude that the admission of the expert's opinion did not constitute plain error. Detective Holloway was clearly qualified to testify as an expert, and the trial judge's instructions made clear that the jurors could give the testimony the weight they thought it deserved based on the evidence presented. Moreover, Holloway responded to hypothetical questions and the jury could evaluate the proximity of his responses to the evidence found to be credible. Based on the testimony concerning the police officer's observations, the use of the stash location, the fruits of the seizure, the method of packaging and the results of the field laboratory test, the testimony supported Holloway's conclusion that the individuals described in the hypothetical question were engaged in illegal drug distribution and that they were working together.

IV.

On the review of a sentencing decision by the trial court, we must determine:

first, whether the correct sentencing guidelines have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

[State v. Roth, 95 N.J. 334, 365-66 (1984).]

See also State v. Natale, 184 N.J. 458, 489 (2005); State v. Carey, 168 N.J. 413, 430 (2001). It is imperative that we do not substitute our judgment with that of the trial court. Roth, supra, 95 N.J. at 365.

The trial judge inappropriately found that aggravating factor eleven applied, but we are satisfied that it made no difference in this case because sentences below the then-existing presumptive sentences were imposed. See State v. Dalziel, 182 N.J. 494, 502-03 (2005). See also Natale, supra, 184 N.J. at 488-89. This is because the judge expressly considered - and rejected - downgrading the matter for sentencing purposes, under N.J.S.A. 2C:44-1f(2). We cannot say he "clearly erred" in this regard. The ineligibility term was required on the merged school zone offenses. See State v. Dillihay, 127 N.J. 42, 54 (1992); State v. Gonzalez, 123 N.J. 462, 464 (1991).

The trial court judge sentenced defendant based upon numerous factors, and given the standard of review, there is no basis for reversal.

 
The judgment is affirmed.

Defendant testified that $300 was taken from him.

The judge stated:

On the mitigating side we have the strongest factor, his lack of a prior record. I'm giving a great deal of weight and a little bit of weight to mitigating factor number thirteen.

Now, I find that the mitigating factors preponderate over the aggravating factors because of all the weight I'm giving to his lack of contact with the criminal justice system, and that weighs in favor of a custodial term lower than the seven year presumptive term. But, I am not clearly convinced that the mitigating factors substantially outweigh the aggravating factors, and I'm clearly convinced that the interest of justice demands that this defendant be sentenced one degree lower.

It is clear in context that the judge expressly considered and rejected the downgrade.

Defendant does not argue that the merged offenses on counts one, three and four should merge into count two with its required ineligibility term. See State v. Gregory, 336 N.J. Super. 601, 607 (App. Div. 2001); State v. Parker, 335 N.J. Super. 415, 424 (App. Div. 2000).

(continued)

(continued)

16

A-4302-02T4

October 25, 2005