STATE OF NEW JERSEY v. JEFFREY M. MARSH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5159-03T45159-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY M. MARSH,

Defendant-Appellant.

____________________________

 

Submitted May 2, 2006 - Decided July 20, 2006

Before Judges Coburn and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, 03-03-1038-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Robert D. VanPelt, Designated

Counsel, of counsel and on the brief).

Vincent P. Sarubbi, Camden County Prosecutor,

attorney for respondent (Linda A. Shashoua,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Tried to a jury, defendant Jeffrey Marsh was convicted of the third-degree crimes of distribution of cocaine, contrary to N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count one); possession of cocaine with the intent to distribute in a school zone, contrary to N.J.S.A. 2C:35-7 (count two); and conspiracy to distribute cocaine, contrary to N.J.S.A. 2C:5-2 and 2C:35-5(a)(1) (count three). After granting the State's motion for an extended term sentence based on defendant's prior second degree drug conviction, the judge merged the first and third counts of the indictment into the conviction for possession with intent to distribute in a school zone and sentenced defendant to a term of nine years with a four-year period parole ineligibility.

On appeal defendant presents the following arguments:

POINT I - THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AND THEREFORE VIOLATED DEFENDANT'S DUE PROCESS RIGHTS BECAUSE THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO WARRANT A CONVICTION OF THE CRIME CHARGED.

POINT II - THE TRIAL COURT IMPROPERLY ADMITTED LAY OPINION TESTIMONY REGARDING THE ISSUE AS TO WHETHER JEFFREY MARSH AND WALTER HOUSER WERE "WORKING TOGETHER."

POINT III - THE SENTENCE IMPOSED BY THE COURT WAS MANIFESTLY EXCESSIVE.

POINT IV - IN ORDER TO IMPOSE THE EXTENDED TERM THE JUDGE WAS REQUIRED TO MAKE, AND IN FACT MADE, SEPARATE AND ADDITIONAL FACTUAL FINDINGS THAT WERE BASED UPON FACTS WHICH WERE NOT REFLECTED IN THE JURY VERDICT OR ADMITTED BY THE DEFENDANT, THEREBY VIOLATING DEFENDANT'S CONSTITUTIONAL RIGHT TO TRIAL BY JURY AND DUE PROCESS OF LAW.

On January 24, 2002, Investigator Christina DeCristofor of the Camden County Prosecutor's Office received a call from Toni Lockenmeyer. Investigator DeCristofor was working undercover and had purchased cocaine from Lockenmeyer two weeks earlier. During the conversation DeCristofor agreed to meet Lockenmeyer to buy more cocaine. She asked Investigator Ricardo Solis to accompany her and pose as her boyfriend. They drove an unmarked car and carried $300 in cash. DeCristofor wore a transmitter so that back-up officers could monitor the transaction. After picking up Lockenmeyer, they were directed to a bar named "Billy's Place" where Lockenmeyer said she would meet her boyfriend, "Konkie," later identified as co-defendant Walter Houser, who would take them to get the cocaine. After they arrived at Billy's Place, Houser and defendant Marsh joined them and sat in the back seat. They told the others that they were going to "Matt's house" in Mount Ephraim to get the drugs. Investigator DeCristofor later testified that during the trip there were conversations about the quality, the price and the quantity of cocaine that DeCristofor could buy in the future.

When they arrived at Matt's house, Houser said that only he and defendant could get the drugs because Matt did not want anyone else in his apartment. DeCristofor handed $300 to Marsh, and he and defendant entered the apartment house which was within 1000 feet of a high school. Five minutes later they returned, and Houser tossed a bag of cocaine into Investigator Solis' lap. Solis testified that during their return trip, defendant and Houser both said they could arrange future drug purchases. Subsequently, the substance obtained in the transaction was analyzed by the New Jersey State Police Laboratory as 7.25 grams of cocaine.

Defendant's first argument that the trial judge erred in denying his motion for acquittal at the end of the State's case totally lacks merit. State v. Reyes, 50 N.J. 454, 464 (1967); see also State v. Palacio, 111 N.J. 543, 550 (1988); State v. Moffa, 42 N.J. 258, 263 (1964); State v. Spivey, 179 N.J. 229, 236 (2004).

He next contends that the trial judge improperly admitted lay opinion testimony by DeCristofor that in her opinion Marsh and Houser were "working together." Defense counsel objected to the testimony on grounds that the issue was a factual one for the jury to determine. The trial judge stated:

I know. In fact, that [is] their ultimate determination. But, this is an area that doesn't need expert testimony. It seems to me that its something that particularly somebody in her position is qualified to give a lay opinion. So I'm going to allow it.

Both DeCristofor and Solis testified that based on their experience of participating in over 1,000 narcotics investigations, their observations of the body language of both Houser and defendant as well as their comments about drug purchases, it was their opinion that Marsh and Houser were "working together." We agree with defendant that it was error to admit this testimony. On a trial judge's discretionary evidentiary ruling the standard of review is whether there was a mistaken exercise of discretion. State v. Cook, 179 N.J. 533, 568-69 (2004); Verdicchio v. Ricca, 179 N.J. 1, 34 (2004). N.J.R.E. 701 allows lay witnesses to offer limited opinions on matters of common knowledge and observation. State v. Johnson, 120 N.J. 263, 294 (1990); State v. LaBrutto, 114 N.J. 187, 197 (1989). N.J.R.E. 701 provides:

If a witness is not testifying as an expert, the witness' testimony in the form of opinion or inference may be admitted if it (a) is rationally based on the perception of the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.

With respect to the requirement that the opinion of the lay witness be based on perception, it is sufficient that the witness has actual knowledge acquired through his or her senses of the matter to which testimony is given. LaBrutto, supra, 114 N.J. at 197-98 (lay opinion of a police officer based on his observations as to the point of impact of a collision). But see Neno v. Clinton, 167 N.J. 573, 581-85 (2001) (unlike an expert witness, a lay witness may not express an opinion about fault based on hearsay statements of two witnesses). Moreover, a non-expert may give an opinion on matters of common knowledge and observation. See State v. Guerrido, 60 N.J. Super. 505, 510-12 (App. Div. 1960) (lay witness may testify as to whether person is intoxicated). See State v. Johnson, 309 N.J. Super. 231, 262-64 (App. Div.), certif. denied, 156 N.J. 387 (1998) (permitting a lay witness to opine on the meaning of phrase used on the street and in prison). Since the opinion testimony was based upon observations made by the officers, the first prong of N.J.R.E. 701 was satisfied.

The second qualification for admission of lay opinion testimony is that it must be of aid to the trier of the facts in understanding the witness' general testimony or in determining a fact in issue. LaBrutto, supra, 114 N.J. at 198. A conclusion by a lay witness which is not within his direct ken or as to which the jury is as capable as the witness to form a conclusion is deemed incompetent and inadmissible. See Brindley v. Fireman's Ins. Co. of Newark, 35 N.J. Super. 1, 8 (App. Div. 1955). So a police officer testifying as a fact witness is not permitted to offer an opinion as to a defendant's credibility or guilt. State v. Frisby, 174 N.J. 583, 593-94 (2002) (disallowing testimony of a State's witness); State v. Marshall, 123 N.J. 1, 191-92 (1991) (disallowing testimony of a detective as to the value of the testimony of another witness); State v. Clausell, 121 N.J. 298, 337-38 (1990) (testimony by a police composite artist that the widow of the decedent was a "very good witness" held inadmissible).

In this case the officers' testimony that Marsh and Houser were "working together" constituted a statement of the defendant's guilt as a co-conspirator, principal or accomplice. Here the jury was just as capable as the police officers to draw an inference based on the facts that the two defendants were "working together," and, therefore, we find the testimony was inadmissible.

However, in a criminal trial, an error in the admission of evidence will not be deemed harmful unless it is shown that a fundamental right of the defendant was impaired. State v. Soto, 340 N.J. Super. 47, 65 (App. Div.), certif. denied, 170 N.J. 209 (2001). Here there was no such showing. The judge explained in his charge that matters of fact and inferences to be drawn were solely in the domain of the jury. Moreover, the State's other evidence of defendant's guilty can only be described as overwhelming. Therefore, we find that the error was harmless. Ibid.

We now turn to defendant's sentence. After a review of the sentencing hearing, we conclude that the trial judge properly considered and weighed the aggravating factors and rejected mitigating factors put forth by the defendant. In reviewing a sentence we must consider whether the aggravating or mitigating factors found by the trial judge were based upon competent credible evidence in the record. State v. Kirk, 145 N.J. 159, 175-76 (1996); State v. Roth, 95 N.J. 334, 365-67 (1984). We may not impose or substitute our judgment in place of that of the lower court. State v. Burton, 309 N.J. Super. 280, 290 (App. Div.), certif. denied, 156 N.J. 417 (1998). The test is whether on the basis of the evidence no reasonable sentencing court could have imposed the sentence under review. Burton, supra, 309 N.J. Super. at 290-91. We find no basis to upset the sentence as excessive.

Finally, defendant argues that by imposing a mandatory extended term and basing a sentence above the presumptive term upon aggravating factors (3), (6) and (9), the court violated the principles enunciated in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); State v. Natale II, 184 N.J. 458 (2005). We disagree. Here the judge imposed a sentence solely based on the defendant's criminal history, which does not require additional fact-finding. Natale II, supra, 184 N.J. at 488-89; State v. Abdullah, 184 N.J. 497, 506 n. 2 (2005); State v. Franklin, 184 N.J. 516 (2005).

 
Affirmed.

(continued)

(continued)

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A-5159-03T4

July 20, 2006