STATE OF NEW JERSEY v. DARRELL RASHAWN HALL, a/k/a DEQUAN BROWN, PEQUAN HALL TAHEIR N. HALL, KEYON WADE

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5052-06T45052-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARRELL RASHAWN HALL, a/k/a

DEQUAN BROWN, PEQUAN HALL,

TAHEIR N. HALL, KEYON WADE,

Defendant-Appellant.

___________________________________

 

Submitted December 3, 2008 - Decided

Before Judges Stern, Payne and Lyons.

On appeal from Superior Court, Law Division, Mercer County, Indictment No. 05-05-0451.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Abby P. Schwartz, Assistant

Deputy Public Defender, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor,

attorney for respondent (Jennifer Moran, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction for second-degree possession with the intent to distribute crack cocaine, into which his conviction for simple possession was merged. He was sentenced to an extended term of twelve years with five years to be served before parole eligibility, and monetary penalties including a Drug Enforcement and Demand Reduction (DEDR) penalty of $3,000.

On this appeal, defendant argues:

POINT I

BECAUSE THE STOP AND SEIZURE OF DEFENDANT WAS NOT SUPPORTED BY "REASONABLE AND ARTICULABLE" SUSPICIONS OF CRIMINAL ACTIVITY, NO LESS PROBABLE CAUSE, THE MOTION TO SUPPRESS EVIDENCE WAS ERRONEOUSLY DENIED. U.S. CONST. AMEND. IV, XIV; N.J. CONST. (1947) ART. I, PAR. 7.

POINT II

DETECTIVE ASTBURY'S TESTIMONY, WHEREIN HE INDICATED THAT THE UNIT THAT HE WORKED WITH WAS A UNIT THAT TARGETED NARCOTICS, GANG ACTIVITY, AND WEAPONS, WAS TOTALLY IRRELEVANT AND HIGHLY PREJUDICIAL, SUCH THAT IT DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL. (Not Raised Below.)

POINT III

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE DETECTIVE ASTBURY REPEATEDLY OFFERED INADMISSIBLE EXPERT OPINION TESTIMONY AND TESTIFIED AS TO THE ULTIMATE ISSUE, AND THE COURT FAILED TO GIVE ANY INSTRUCTION ON ASTBURY'S TESTIMONY. (Not Raised Below.)

POINT IV

DETECTIVE WATTERS OF THE PROSECUTOR'S OFFICE EXCEEDED THE SCOPE OF PERMISSIBLE EXPERT TESTIMONY BY TESTIFYING TO FACTS THAT WERE IRRELEVANT, PREJUDICIAL WITHOUT ANY PROBATIVE VALUE. ADDITIONALLY, HE GAVE HIS OPINION THAT DEFENDANT WAS GUILTY. THIS TESTIMONY VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below.)

POINT V

AS THE $3,000.00 DEDR PENALTY IS ILLEGAL, IT MUST BE EITHER MODIFIED BY THIS COURT OR REMANDED TO THE TRIAL COURT FOR A NEW JUDGMENT OF CONVICTION.

We find that the first four points do not warrant reversal of the conviction. The State acknowledges that the DEDR penalty must be reduced to $2,000 as defendant's conviction was for a second-degree crime. See N.J.S.A. 2C:35-15(b). Accordingly, we remand to the Law Division to correct the judgment in this regard.

I.

The evidence presented on the motion to suppress included the following.

At approximately 11:30 p.m. on January 4, 2005, Detective Jason Astbury, who had approximately seven years of experience with the Trenton Police Department, three and a half as a detective, was patrolling in an unmarked police vehicle near the intersection of Perry and North Montgomery Streets, with his partner Detective John Carrigg. Astbury knew the location as "a high narcotics area" and "high gang area," and spotted defendant standing in front of the porch of a house located at 143 Perry Street facing toward the street. Astbury observed defendant "staring down into his right hand, looking at a white colored object, using [several overhead working] streetlights to examine the object."

As Astbury's vehicle approached, defendant observed the officer and "became visibly startled and quickly shoved the item into his front, right jacket pocket," and walked up the stairs of the house behind him. Believing that defendant was "attempting to conceal illegal narcotics," Astbury exited the vehicle and ordered him to stop. Defendant immediately complied, but dropped a silver razor blade as the type used by narcotics dealers to "chip off pieces of crack cocaine" for sale. As a result, Astbury placed defendant under arrest for possession of drug paraphernalia. The detective conducted a "search incidental to arrest" and found "a plastic sandwich bag tied in a knot containing a chunk of an off-white rock-like substance" later confirmed as crack cocaine, in defendant's right, front jacket pocket. He also found $119 in "several bundles throughout [defendant's] pockets."

Defendant testified at the suppression hearing that on the night of his arrest, he was "standing in the doorway" of his residence at 143 Perry Street "playing with [his cell] phone" while waiting for a taxi cab. According to defendant, while waiting for the cab, he first saw Detective Astbury's vehicle "flying down Perry Street," drive around the building, and stop at the light at the intersection of Montgomery and Perry Streets. Defendant recognized that Astbury and his partner were police officers, despite their unmarked vehicle, and when defendant noticed them staring at him, he decided to "go in the house before they start their BS, whatever." A few minutes later, Astbury and his partner ran into defendant's house, claiming that they had seen defendant running into the house "with guns" and asking where the guns were hidden.

Defendant denied having any guns, but testified the two officers "drag[ged]" him out of the house and arrested him after a brief struggle. Defendant additionally testified at the suppression hearing that, when Astbury and his partner entered the house, his girlfriend, Tonya Adams, was there and she, too, "started wrestling with the cops." Defendant denied dropping a razor blade or anything else. According to defendant, he lived at 143 Perry and wasn't trying to unlawfully "gain entry."

The motion judge concluded "that the testimony of defendant was not credible, and that the testimony of Detective Astbury was believable." The judge further concluded "that the officer did have the ability to see the object in question, and . . . that it matched the description of a chunk of crack cocaine." Based on the totality of circumstances, the judge determined "that the police officer did have a reasonable and articulable suspicion to believe that the defendant was violating the drug law by being in possession of a controlled dangerous substance," and upon seeing him drop a razor blade, "he had probable cause at that point, taken together with his other observations, to arrest defendant for violation of that statute," and conduct a "search incident to the arrest for possession of the razor blade." Both briefs on this appeal state that the judge found that the search of defendant was justified as "incident to a lawful arrest," but do not state their understanding regarding under what statute the judge found the arrest to be justified possession of CDS or possession of a razor blade, or both.

The testimony of Astbury at trial paralleled his testimony on the motion to suppress, and Detective Thomas Watters of the Mercer County Prosecutor's Office testified as an expert on defendant's intent. A photographer also testified as to the lighting conditions at the scene.

Defendant did not testify at the trial, but Tonya Adams testified that defendant lived with her at 143 Perry Street at the time of his arrest, and that she had just called a cab to take defendant to visit his grandmother.

II.

We must defer to the motion judge's credibility determination unless clearly erroneous. State v. Locurto, 157 N.J. 463, 474 (1999); See also Bronson v. Affinity Fid. Credit Union, ___ N.J. ___, (slip op. at 19-20) (2009). As the record on the motion to suppress justified the judge's findings, we must affirm its denial.

Astbury, a trained narcotics detective, observed defendant holding a white-colored object and conceal it while fleeing. Those observations along with defendant's presence in a high crime area late at night, combined with defendant's abrupt flight upon apparent recognition of the police officers, constituted an objective basis for Astbury's reasonable and particularized suspicion that defendant was committing or was about to commit a criminal offense sufficient to justify an investigative stop of defendant, even if not to arrest him at that point. State v. Williams, 192 N.J. 1, 9 (2007); State v. Pineiro, 181 N.J. 13, 25-27 (2004); State v. Maryland, 167 N.J. 471, 486-87 (2001); State v. Citarella, 154 N.J. 272, 280-81 (1998); State v. Arthur, 149 N.J. 1, 7-8 (1997); State v. Davis, 104 N.J. 490, 504 (1986); State v. Anaya, 238 N.J. Super. 31, 36 (App. Div. 1990).

In any event, when defendant dropped the type of razor blade the trained officer believed to be used to cut crack cocaine, Astbury had probable cause to seize the razor and arrest defendant at least for possession of drug paraphernalia. State v. Pineiro, supra, 181 N.J. at 27-29; State v. Johnson, 171 N.J. 192, 213-20 (2002); State v. Fariello, 71 N.J. 552, 568-69 (1976). The plastic bag containing crack cocaine and cash were then found in defendant's pockets pursuant to a valid search incident to arrest. State v. Eckel, 185 N.J. 523, 529-30 (2006) (citing Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969)).

III.

Defendant argues for the first time on appeal that Detective Astbury's trial testimony describing his experience and assignment at the time of defendant's arrest to a unit targeting narcotics was irrelevant and unduly prejudicial. Detective Astbury testified on direct examination:

Q Now, what's your assignment within the police department?

A I am assigned to the Trenton Anti-Crime Unit.

Q Can you tell the jurors briefly what the Trenton Anti-Crime Unit does?

A The unit was designed to combat illegal narcotic activity, gang activity, anything associated with gangs, weapons violations.

Q And you've been assigned to that unit for you've been doing that work for about three and a half years; is that fair to say?

A That's correct.

. . . .

Q When in the three and a half years that you have worked for the Trenton Anti-Crime team, Anti-Crime Unit, how many narcotics arrests have you been engaged in?

A Investigations, approximately 5 to 700.

Q You also do other things too in that unit, you look into weapons offenses; is that correct?

A That's correct.

Q Approximately how many weapons investi-gations have you done?

A Approximately 350.

He later explained his reason for patrolling the vicinity of defendant's residence:

It's a high-narcotic area. We received a lot of complaints from citizens about illegal narcotics. We were in that area trying to suppress any illegal narcotic activity.

Astbury also stated on re-direct examination that it was a "high-narcotic/high weapon area [with] a lot of gang activity. We receive numerous complaints from citizens about the area."

Defendant correctly indicates that such testimony was not directly probative on the issue of whether defendant himself was engaged in any criminal activity. There was also some possibility of prejudice stemming from guilt by association. However, there was no objection and the testimony explained to the jury why Astbury was patrolling in the vicinity that night. Cf. State v. Koedatich, 112 N.J. 225, 312-13 (1988) (background information regarding circumstances leading up to arrest permissible unless unduly prejudicial); R. 2:10-2.

IV.

Defendant also argues for the first time on appeal that Astbury repeatedly and impermissibly offered expert testimony directed to the ultimate issue at trial. Specifically, he challenges Astbury's testimony insofar as Astbury repeatedly emphasized his "training and experience" as he described his observations and reactions thereto, such as knowing the significance of the razor blade.

Generally, lay opinion testimony is permissible so long as 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." N.J.R.E. 701. Consistently with the rule, for the most part, Detective Astbury's testimony explaining his observations in light of his "training and experience" allowed the jury to believe the officers acted reasonably.

Moreover, police officers may testify to matters within their experience even if such testimony may typically require expert testimony. State v. LaBrutto, 114 N.J. 187, 198-99 (1989) (citing Trentacost v. Brussel, 164 N.J. Super. 9, 19-20 (App. Div. 1978), aff'd, 82 N.J. 214 (1980) (permitting police officers' observation that tenant lived in high-crime area)). In any event, there was no objection, and any error was harmless given Astbury's experience and expertise were developed before the jury and he could have been qualified as an expert on the matters in contest. State v. Kittrell, 279 N.J. Super. 225, 235-36 (App. Div. 1995).

V.

Finally, defendant argues, as plain error, that the testimony of Detective Watters, who was qualified as an expert at trial, was irrelevant and prejudicial and expressed an opinion as to defendant's guilt. Defendant specifically takes issue with the detective's testimony regarding the locations in Trenton where different drugs are typically sold:

Trenton is broken down into -- it's kind of like a supermarket is the best way to refer to it. Certain areas of the city are known for certain drugs. The area of Perry Street, 143 Perry Street, it's known primarily for heroin and marijuana. You can go out there, we can buy crack. We can, primarily, if I'm going to look to heroin, I'm going to Perry and Montgomery, Stockton and Academy.

Heroin dealers are going to go around Centre Street area, we're going to go around Passaic Street, which I'm getting ahead of myself. But Passaic Street was never a heroin area, that was always a crack cocaine area.

We can go down to Passaic Street and buy heroin. Crack is still the prevalent drug, but we can buy heroin there. So we can go down to Perry Street and find crack cocaine. It's primarily heroin or marijuana area, but you can buy crack cocaine down there also.

Q How about the 200 block of Walnut?

A The 200 block of Walnut, Walnut Avenue, we refer to it as the Wilbur section, that's a cocaine area, we can go down there. Primarily, I'm going to find crack cocaine out there, powder cocaine out there. We're going to find marijuana out there. You might find some heroin out there. Primarily, it's going to be like a crack cocaine, powder cocaine, marijuana area.

During his summation, the prosecutor connected this portion of Watters' testimony with Tonya Adams' testimony that, at the time of his arrest, defendant was leaving to visit his grandmother on the 200 block of Walnut Street. According to the State's summation, defendant possessed crack cocaine with the intent to distribute it on the 200 block of Walnut Avenue "[t]hat's where they sell crack cocaine."

Detective Watters' testimony was relevant as it related the significance of defendant's destination on Walnut Street, a subject beyond the knowledge of the average juror so as to require expert testimony of the type given by Detective Watters. State v. Reeds, 197 N.J. 280, 290-93 (2009); State v. Nesbitt, 185 N.J. 504, 507-08 (2006); State v. Odom, 116 N.J. 65, 80-81 (1989). Moreover, while defendant correctly indicates that an expert may not express his opinion of a defendant's guilt, Odom, supra, 116 N.J. at 79, a review of the record confirms that Detective Watters never did so. He testified as an expert, without objection, that the quantity possessed was "not consistent with personal use. It's an amount that is consistent with distribution," that "[a] typical razor blade can be used to break the crack cocaine or chip the crack cocaine off," and that, based on the evidence, as he understood it, in his opinion the cocaine was "possessed with the intent to distribute." See Reeds, supra, 197 N.J. at 291; Odom, supra, 116 N.J. at 78-79.

VI.

 
We find that no other issue or contention warrants discussion. R. 2:11-3(e)(2). The judgment of conviction is affirmed, but the matter is remanded for correction of the DEDR penalty.

Defendant testified that he resided at 143 Perry Street, although a different residence, 266 Walnut Avenue, was listed as his address on his arrest and prior presentence reports.

No objection was raised as to the form of the question or charge on expert testimony.

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A-5052-06T4

June 12, 2009