STATE OF NEW JERSEY v. DARRYL PROCTOR
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3589-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARRYL PROCTOR, a/k/a TONY
K. PROCTOR, a/k/a FUQUAN
PROCTOR,
Defendant-Appellant.
______________________________________________________
January 5, 2010
Submitted November 10, 2009 - Decided
Before Judges Wefing, Grall and Messano.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment Nos. 06-06-2070 and 06-06-2071.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Daniel Brown,
Designated Counsel, on the brief).
Paula T. Dow, Essex County Prosecutor,
attorney for respondent (LeeAnn Cunningham,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Following a jury trial, defendant Darryl Proctor was
convicted of: third-degree possession of heroin, N.J.S.A.
2C:35-10(a)(1); second-degree possession of heroin with intent
to distribute, N.J.S.A. 2C:35-5(b)(2); third-degree possession
of heroin with intent to distribute within 1,000 feet of school
property, N.J.S.A. 2C:35-7; second-degree possession of heroin,
with the intent to distribute within 500 feet of public housing,
N.J.S.A. 2C:35-7.1; fourth-degree violation of the regulatory
provisions relating to firearm purchase permits, N.J.S.A. 2C:39-
10; second-degree possession of a handgun for an unlawful
purpose, N.J.S.A. 2C:39-4(a); second-degree possession of a
firearm while committing a narcotics offense, N.J.S.A. 2C:39-
4.1; and fourth-degree tampering with evidence, N.J.S.A. 2C:28-
6. Following a brief second trial before the same jury pursuant
to a separate indictment, defendant was convicted of second-
degree certain persons not to possess firearms, N.J.S.A. 2C:39-
7(b).
After appropriate mergers, the trial judge sentenced
defendant to ten years imprisonment on the second-degree
possession of heroin with intent to distribute conviction; a
concurrent five-year sentence with a two-year period of parole
ineligibility on the school-zone conviction; a concurrent
eighteen-month sentence on the regulatory conviction; a
concurrent eighteen-month sentence on the tampering conviction;
and a consecutive eight-year sentence on the possession of a
firearm during the commission of a narcotics offense conviction.
A-3589-07T4
2
On the second indictment, the judge imposed a consecutive
sentence of ten years with a five-year period of parole
ineligibility.
Defendant raises the following issues on appeal:
POINT I
THE TRIAL COURT ERRED BY PERMITTING THE
STATE TO OFFER IMPROPER EXPERT TESTIMONY
THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO
A FAIR TRIAL. (Not Raised Below)
POINT II
THE TRIAL COURT ERRED BY ALLOWING THE JURY
TO HEAR TESTIMONY ABOUT THE ISSUANCE AND
EXECUTION OF AN [SIC] SEARCH WARRANT FOR THE
DEFENDANT'S PURPORTED RESIDENCE WITHOUT
PROVIDING THE JURY WITH A CURATIVE
INSTRUCTION THEREBY PREJUDICING THE
DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not
Raised Below)
POINT III
THE ADMITTANCE INTO EVIDENCE OF DEFENDANT'S
CRIMINAL CONVICTION CONSTITUTED A CLEAR
ABUSE OF DISCRETION AND VIOLATED THE
DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT IV
THE TRIAL COURT'S RESTRICTIONS ON MR.
PROCTOR'S TESTIMONY DEPRIVED HIM OF HIS
RIGHT TO TESTIFY ON HIS OWN BEHALF AND OF
HIS RIGHT TO A FAIR TRIAL. (Not Raised
Below)
POINT V
PROSECUTORIAL MISCONDUCT DURING SUMMATION
DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR
TRIAL. (Not Raised Below)
A-3589-07T4
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A. THE PROSECUTOR'S COMMENTS TO THE
JURY DURING SUMMATION, WHICH SUGGESTED THAT
THE TESTIMONY OF THE STATE'S POLICE
WITNESSES WAS INHERENTLY CREDIBLE PREJUDICED
DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not
Raised Below)
B. THE PROSECUTOR'S COMMENTS DURING
SUMMATION EXPRESSING HER PERSONAL OPINION
ABOUT THE MERITS OF THE CASE VIOLATED
DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not
Raised Below)
C. THE PROSECUTOR'S COMMENTS DURING
SUMMATION WHICH SUGGESTED TO THE JURY THAT
THE DEFENDANT HAD A BURDEN OF PROOF VIOLATED
DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not
Raised Below)
POINT VI
THE TRIAL COURT ERRED BY REQUIRING MR.
PROCTOR TO APPEAR BEFORE THE JURY IN
HANDCUFFS THEREBY DEPRIVING HIM OF HIS RIGHT
TO A FAIR TRIAL. (Not Raised Below)
POINT VII
THE TRIAL COURT ERRED IN FAILING TO CONFIRM
WITH MR. PROCTOR THAT HE INTENDED TO WAIVE
HIS RIGHT TO BE PRESENT IN COURT FOR THE
RETURN OF THE VERDICT AND, INSTEAD,
ACCEPTING DEFENSE COUNSEL'S WAIVER OF HIS
CLIENT'S APPEARANCE. (Not Raised Below)
POINT VIII
CUMULATIVE ERRORS DENIED THE DEFENDANT THE
RIGHT TO A FAIR TRIAL. (Not Raised Below)
POINT IX
THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPOSING MANIFESTLY EXCESSIVE SENTENCES
BASED UPON UNSUPPORTED AGGRAVATING FACTORS
A-3589-07T4
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AND BY FAILING TO CONSIDER APPLICABLE
MITIGATING FACTORS. (Not Raised Below)
We have considered these arguments in light of the record and
We reverse.1
applicable legal standards.
I.
On December 13, 2005, Sergeant Albert Rivera, Jr. and
officers of the Essex County Anti-Crime Partnership, "a multi-
agency" law enforcement "task force," executed a search warrant
at
690 South 20th Street, Newark. A trained narcotics dog
signaled the presence of drugs in the bedroom and bathroom. The
officers came upon defendant as he was exiting the bathroom, and
twelve glassine envelopes of suspected heroin were found
floating in the toilet bowl. Rivera also found an additional
seven-hundred and fifty2 glassine envelopes in the bathroom, the
majority of which were in a cabinet underneath the sink, with
the remainder on the floor.
In addition to the drugs, the officers found a bullet-proof
vest in a bedroom closet that also housed a safe. Inside the
safe, the officers found a loaded .32 caliber revolver, $5,791
1
In light of our decision, we do not address the points raised
in defendant's pro se supplemental brief, except to say that
they lack sufficient merit to warrant discussion. See R. 2:11-
3(e)(2).
2
Another officer testified that his report indicated seven-
hundred and fifteen bags of heroin were found.
A-3589-07T4
5
in cash, and the title to a 1998 Ford Expedition in defendant's
name and listing
690 South 20th Street as his residence.
Two women, defendant's girlfriend and daughter, were also
After being advised of his Miranda3 rights,
in the apartment.
defendant "voluntarily blurted" out to Rivera, "they had nothing
to do with it, it's all mine." Cross-examination revealed that
defendant's statement was not contained in any of the police
reports of the incident, and Rivera acknowledged that he did not
tell the prosecutor of this fact until the week of trial.4
Defendant's vehicle was parked in front of the premises,
and defendant executed a consent form permitting the officers to
search the Ford Expedition. In the driver's side door, the
officers recovered two packages containing twenty glassine
envelopes of heroin similar to those recovered in the apartment.
Detective Reginald Holloway of the Essex County Sheriff's
Department was called by the State as an expert in the field of
narcotics distribution. We discuss in greater detail below his
testimony; it suffices to say that Holloway opined that the
heroin found by the officers was intended for distribution and
not for personal use.
3
Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).
4
The judge conducted a N.J.R.E. 104 hearing prior to determining
the statement was admissible.
A-3589-07T4
6
Defendant testified and generally denied having any
knowledge of the drugs, gun, or bullet-proof vest. He claimed
that the apartment was his girlfriend's, and that he lived in
East Orange. He further claimed that he and his girlfriend
maintained a sporadic relationship, and that he had spent the
night before his arrest with her in the apartment. Defendant
admitted that he owned the Ford Expedition, but denied knowing
that any drugs were in the car, and he further denied making any
statements to the officers when arrested.
II.
We now turn to defendant's legal arguments. Rather than
discuss them separately, we consider the issues regarding
Holloway's testimony (Point I) and evidence regarding the search
warrant and prior drug activities at the address (Point II),
together with the alleged improprieties of the prosecutor (Point
V). While we acknowledge the relative strengths of the State's
case, we must conclude that cumulatively the errors that
occurred denied defendant a fair trial and clearly had the
capacity to bring about an unjust result. See R. 2:10-2.
We recite Holloway's testimony at length. After qualifying
as an expert in the field of narcotics distribution, Holloway
looked at the plastic bag containing the evidence seized from
the apartment and testified that glassine envelopes "are the
A-3589-07T4
7
number one items utilized for the packaging and . . .
distribution of heroin." The prosecutor then asked:
Q. Are you familiar with the area of 690
South 20th Street in the City of Newark as
it was in December of 2005?
A. Yes, I am, ma'am.
Q. And how are you familiar with it . . . ?
A. [A]s I indicated, the -- approximately
ten plus years ago when I was transferring
to the Bureau of Narcotics, when I served in
the capacity as an undercover, I made
narcotic purchases from said location.
While being a backup detective, I'm still
making presently narcotic surveillances in
said location while I'm making narcotic
arrests.
(Emphasis added.)
Holloway was also familiar with the area from his "upbringing."
Holloway opined that a single glassine envelope "in the
area of
690 South 20th Street in Newark" was worth between $7-
$10. The prosecutor then posed a hypothetical question:
Q. [P]olice officers execute a search
warrant at the home of a person we'll call
Subject A. Subject A is at home when the
officers arrive with two other females.
Police find 12 envelopes of heroin inside of
a toilet bowl in the bathroom. They find an
additional 750 envelopes of heroin inside of
the bathroom cabinet.
Police also find a safe inside of a
closet. Inside the safe they recover a
loaded revolver, over $5,000 in cash, and a
certificate of title to a vehicle parked
outside of the residence. The certificate
A-3589-07T4
8
of title shows that the vehicle belongs to
Subject A.
Once the police are inside the closet,
they also find a bulletproof vest. Once the
police recovered the narcotics, they place
Subject A under arrest and give him his
MIRANDA warnings. Subject A indicates that
he understands these MIRANDA warnings.
At that point, without the police
asking any questions, Subject A states that
the drugs were his and nobody else had
anything to do with it. Police then ask for
Subject A's consent to enter the vehicle for
which they found the certificate of title.
Subject A gives the police his consent and
inside the vehicle they recover an
additional 20 envelopes of heroin.
Based on these facts, can you render an
opinion as to the recovered narcotics?
Holloway rendered the following opinion:
A. [A]s far as the . . . 12 glassine
envelopes in the toilet, Subject A was
attempting or had attempted or had flushed
narcotics. In flashing [sic] glassine
envelopes of heroin, they're light so
they'll float. It's quite possible there
might have been a larger quantity, so either
Subject A had flushed items while the 12
never dissolved, went down, or Subject A was
attempting to flush the 12.
But, ma'am, its my opinion that the
recovered 12 within the toilet, the
recovered 700 plus under the bathroom sink
cabinet, I believe, as well as the 20 or the
narcotics recovered from within the vehicle,
it's my opinion that Subject A possessed the
items with the intent to distribute for
monetary game [sic].
The prosecutor continued:
A-3589-07T4
9
Q. Can you render an opinion based on the
amount of money recovered from the
apartment?
A. Well . . . as a result of the recovered
narcotics and Subject A's admission that the
narcotics belonged to him or her solely and
with the narcotics being recovered from
within a lock box, a safe, which is commonly
possessed by individuals involved within the
illegal distribution of narcotics, it's my
opinion that the recovered currency were
[sic] the proceeds or are [sic] the proceeds
of various illegal narcotic transactions.
Q. Now is it common for . . . people who
distribute illegal narcotics to have loaded
guns in their possession?
A. It's very common . . . .
Q. Why is that?
A. [F]irst of all for protection, for
their protection, . . . the protection of
others involved within the illegal
distribution of narcotics . . . [or] family
members . . . .
....
Q. [I]s it common . . . for people
involved in narcotic distribution schemes to
have bulletproof vests in their possession?
A. It is common . . . .
Q. Is it common for individuals who are
drug users and who are not involved in [the]
illegal drug distribution scheme to have 782
envelopes of heroin in their home, a loaded
gun, as well as a bulletproof vest?
A. That's very uncommon . . . .
Q. And why is that?
A-3589-07T4
10
A. [B]ecause individuals that are users,
. . . [would not] have that quantity of
narcotics around . . . . [T]he individual
would go out here and they would . . .
overdose on such a quantity.
Holloway's reference to
690 South 20th Street as a scene of
other narcotic activity was repeated in the prosecutor's
summation, when she reminded the jurors,
I asked [Holloway] were you familiar with
the area of
690 South 20th Street and he
said he was. I said how. He said, ["]I've
done numerous . . . investigations in that
area, I've made arrests over there.["]
References implying drug activity at the premises, not the
subject of the trial, began even earlier. In her opening
statement, the prosecutor told the jury:
[M]embers of the Essex County Anti-Crime
Partnership obtained a search warrant from
Judge Joseph Isabella who is a Judge here in
Essex County. That search warrant was for
690 South 20th Street, . . . located in the
City of Newark, which is where the defendant
. . . lived at that time.
(Emphasis added.)
The State's first witness, Rivera, began his testimony by
telling the jurors:
On that day at approximately 10:30 a.m.
myself along with the members of my squad,
we executed a Court authorized search
warrant at the [defendant's] residence, 690
South 20th Street in Newark, New Jersey.
(Emphasis added.)
A-3589-07T4
11
The prosecutor began her direct examination of nearly every
other police witness by asking why he was at the premises, and
each responded that he was there to execute a search warrant.
In her summation, the prosecutor began by telling the
jurors,
[T]here's three things that I think could
happen in this case, three scenarios.
....
And those scenarios are, number one,
that the police lied, number two, that the
police made up the whole thing, and number
three is that the police were right and that
the defendant is guilty.
....
These are police officers . . . that
have participated in hundreds of arrests
. . . since December 13th of 2005 until now.
They've done this so many times.
[T]his day is a big deal in the life of
the defendant and it's important to the
police officers as well. However, they have
no reason to lie . . . .
They have no reason to come in here and
tell you anything that isn't the truth,
because . . . as much as we would like to
get a guilty verdict, it's not something
which is essential for them. They have no
reason to come in here and to perjure
themselves and to say things to you that are
not true that could impact on their own
reputations.
A-3589-07T4
12
Discussing the fact that defendant's admission was not contained
in the police reports, the prosecutor asked the jury to consider
[W]hether or not the police made up the
statement, and . . . I want you to consider
. . . that we're talking about veterans.
These are not rookies. We're not talking
about cops that just started on the job that
particular day.
We had two sergeants testifying. I
think they both said they had about 20 years
of experience on the job. We're not talking
about people who are just . . . gung ho
. . . and get whoever they can . . . .
These people are trying to do what they
believe is right.
Turning her attention to the fact that only defendant, and not
the two women, were arrested, the prosecutor reminded the jury
that Rivera testified that "the reason they arrested the
defendant and nobody else was because arresting the defendant
was consistent with their views of the case."5 As to defendant's
oral admission, the prosecutor said,
[F]rankly, I would not want to be here
before you trying to defend cops who had
gone in and after someone makes a comment
like that would go in and arrest everybody.
That is not how it should have been done.
And that's why you have people who are
veterans . . . listening to what was said
5
We fail to find any such testimony from any of the State's
witnesses. Later in her summation, the prosecutor again
repeated that arresting only defendant was "consistent with the
police view of the case," and "the facts are consistent with the
police's view of the case."
A-3589-07T4
13
and doing what they believed to be the right
thing . . . .
The prosecutor turned her attention to the drugs found in
the car and the legal concept of constructive possession.
Despite that fact that defendant denied any knowledge as to any
of the drugs, but admitted owning the vehicle, the prosecutor
told the jury: "[W]e have the defendant admitting that he knew
that there was [sic] drugs in the car." She followed, "There
was nothing that was said that . . . someone else uses the car.
There was nothing like that."
Reaching the conclusion of her summation, the prosecutor
again reminded the jury of the fact that the officers "ha[d]
made . . . hundreds of arrests since" they arrested defendant
and wrote their reports. Discussing the omission of defendant's
admission in any of the reports, she said,
And the thing is if they're going to lie
about it, if they're going to come up with
an elaborate concoction, they could have
done it way back then.
They could've said . . . why don't we
just add this in here just to . . . really
get him, put that into your . . . report.
They didn't do it. If they were those kind
of cops, they would have arrested his wife
They wouldn't care.
and daughter, too.
They're not those kind of cops.
defendant raises
We first consider the arguments
regarding the prosecutor's summation, which he contends urged
A-3589-07T4
14
the jury to find the police officers "inherently credible,"
personally vouched for their credibility, and implied that
defendant had a "burden of proof" at trial. These arguments
require us to once again tread on familiar ground. As Justice
Coleman noted ten years ago in State v. Frost,
158 N.J. 76, 88
(1999), "'instances of prosecutorial excesses . . . seem to come
to [our appellate courts] with numbing frequency.'" (quoting
State v. Watson,
224 N.J. Super. 354, 362 (App. Div.), certif.
denied,
111 N.J. 620, cert. denied,
488 U.S. 983,
109 S. Ct. 535,
102 L. Ed. 2d 566 (1998)).
We start with basic principles. Prosecutors are permitted
to deliver vigorous closing statements. State v. Timmendequas,
161 N.J. 515, 587 (1999). "'A prosecutor is not expected to
conduct himself in a manner appropriate to a lecture hall. He
is entitled to be forceful and graphic in his summation to the
jury, so long as he confines himself to fair comments on the
Ibid. (quoting State v. DiPaglia, 64 N.J.
evidence presented.'"
288, 305 (1974) (Clifford, J., dissenting)). "[T]he primary
duty of a prosecutor is not to obtain convictions but to see
that justice is done." Timmendequas, supra,
161 N.J. at 587
(citing State v. Ramseur,
106 N.J. 123, 320 (1987)).
Prosecutorial misconduct can be grounds for reversal "when
it is 'so egregious as to deprive defendant of a fair trial.'"
A-3589-07T4
15
State v. Echols,
199 N.J. 344, 360 (2009) (quoting State v.
Wakefield,
190 N.J. 397, 437 (2007)). When considering whether
the conduct was "'so egregious'" the reviewing court "must
'consider the tenor of the trial and the responsiveness of
counsel and the court to the improprieties when they occurred.'"
Echols, supra,
199 N.J. at 360 (quoting Timmendequas, supra,
161 N.J. at 575). "'Generally, if no objection was made to the
improper remarks, the remarks will not be deemed prejudicial.
Failure to make a timely objection indicates that defense
counsel did not believe the remarks were prejudicial at the time
they were made.'" Echols, supra,
199 N.J. at 360 (quoting
Timmendequas, supra,
161 N.J. at 576) (citation omitted).
While granted "considerable leeway in closing arguments[,]"
Frost, supra,
158 N.J. at 82, "it is improper for a prosecutor
to contend in summation that the police had no motive to lie."
183 N.J. 308, 331-32 (2005). That basic
State v. R.B.,
principle has been reflected in an unbroken line of cases that
stretches back more than forty years. See Frost, supra,
158 N.J. at 85 (noting that a "prosecutor's suggestion that the
police officers would not lie because of the 'magnitude' of
charges that could be brought against them" was improper); State
v. Goode,
278 N.J. Super. 85, 90 (App. Div. 1994) (noting it was
improper for prosecutor to state that the "police had no motive
A-3589-07T4
16
to lie"); State v. Staples,
263 N.J. Super. 602, 606-07 (App.
Div. 1993) (noting the impropriety of suggesting the police
witnesses were believable because of their status as policeman
and because an acquittal could significantly jeopardize their
professional careers); State v. Engel,
249 N.J. Super. 336, 379
(App. Div.) (noting that it was improper for the prosecutor to
state that the investigators were "'good men who leave their
family [and] work day and night'" and would not "'jeopardize
their careers'" over defendants), certif. denied,
130 N.J. 393
(1991) (quoting United States v. Young,
470 U.S. 1,12,
105 S. Ct. 1038, 1044-1045,
84 L. Ed. 2d 1, 10-11); State v. West,
145 N.J. Super. 226, 233 (App. Div. 1976) (reversing and remanding
for trial where the prosecutor stated that "the police
officer's career would be finished in a minute" if he lied),
certif. denied,
73 N.J. 67 (1977); State v. Jones,
104 N.J.
Super. 57, 65 (App. Div. 1968) (holding it improper to imply
that police testimony should be accepted "not because of its
believability but because the witnesses [a]re policemen"),
certif. denied,
53 N.J. 354 (1969).
A related limitation prohibits the prosecutor from vouching
for the credibility of any witness. See State v. Bradshaw,
195 N.J. 493, 510 (2008) ("Nor should the prosecutor vouch for the
credibility of a witness."); accord State v. Walden, 370 N.J.
A-3589-07T4
17 Super. 549, 560 (App. Div.) (noting that as to comments on a
witness's credibility "[a] prosecutor may . . . not personally
vouch for the witness") (citations omitted), certif. denied,
182 N.J. 148 (2004); State v. Scherzer,
301 N.J. Super. 363, 445
151 N.J. 466 (1997); State v.
(App. Div.), certif. denied,
Jenkins,
299 N.J. Super. 61, 70 (App. Div. 1997) ("It is clearly
improper for a prosecutor to give a jury his or her personal
opinion regarding a case."); Staples, supra,
263 N.J. Super. at
605 ("A prosecutor may not express a personal belief or opinion
as to the truthfulness of his or her witness's testimony.").
"[A]s representatives of the State, [such comments] have a
tendency to be given great weight by jurors[,]" Walden, supra,
370 N.J. Super. at 558, permitting the jury to view the
prosecutor as a "crime expert" and adopt the prosecutor's
opinion over its own independent judgment. Jenkins, supra,
299 N.J. Super. at 70 (citing State v. Thornton,
38 N.J. 380, 398
(1962), cert. denied,
374 U.S. 816,
83 S. Ct. 1710,
10 L. Ed. 2d 1039 (1963)).
In this case, the comments of the prosecutor were highly
improper. She repeatedly told the jury that police officers had
"no reason to lie and to go after this particular defendant,"
and that they "ha[d] no reason to come in here and tell you
anything that isn't the truth," "perjure themselves and . . .
A-3589-07T4
18
say things to you that are not true and could impact on their
reputations." She emphasized that the officers were "veterans
. . . not rookies" and that two of them "had about 20 years
experience on the job." They were police officers "trying to do
what they believe[d] [wa]s right."
Attempting to refute the defense, i.e., that defendant did
not live at the apartment and that the contraband may have been
someone else's, perhaps his girlfriend's or daughter's, the
prosecutor justified the arrest of only defendant by claiming it
was the "right" thing to do, and the officers were "not those
kind [sic] of cops." She repeatedly told the jury that
arresting only defendant was "consistent" with the officers'
evaluation of the evidence.
While defense counsel attacked the officers' credibility,
and response to such attacks is generally permissible, State v.
Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000), the
prosecutor's comments in this case far exceeded what was
legitimate rebuttal. Instead, she urged the jury to believe
these "veteran" officers because they had no motive to lie, and
no reason to "perjure themselves" or ruin "their reputations."
Since there were no objections to any of these comments, we
would routinely review them under the plain error standard. See
R. 2:10-2. The Court has recently held that standing alone,
A-3589-07T4
19
such comments do not amount to plain error. See R.B., supra,
183 N.J. at 331-32 n. 4 (cautioning against an overbroad reading
of Frost, and noting that standing alone, comments regarding
officers lacking any motive to lie do not amount to reversible
error). However, in this case, the objectionable comments must
be reviewed as part of the "much larger mosaic" of other
improprieties that defendant has raised on appeal.6 See Ibid.
In her opening statement, the prosecutor told the jury that
before the police arrived at
690 South 20th Street on the day in
question, they had "obtained a search warrant from Judge Joseph
Isabella who is a Judge here in Essex County." Rivera, the
State's first witness, began his testimony by telling the jury
he was there to execute "a Court authorized search warrant."
Almost every officer who testified thereafter indicated the same
thing. Citing our decision in State v. Alvarez,
318 N.J. Super.
137, 147-48 (App. Div. 1999), defendant argues that the jury may
have inferred that a neutral arbiter issuing the search warrant
considered evidence not presented to the jury, and, thus,
received "sufficient independent proof" of defendant's guilt.
6
We do not view the prosecutor's fleeting comment regarding
defendant's failure to claim "someone else use[d]" his car as an
explanation for the presence of drugs in the vehicle as one that
unfairly shifted the burden of proof to defendant.
A-3589-07T4
20
"[A] properly instructed jury will not presume guilt based
on the issuance of a search warrant." State v. Marshall,
148 N.J. 89, 240, cert. denied,
522 U.S. 850,
118 S. Ct. 140,
139 L. Ed. 2d 88 (1997). The fact that a search warrant was issued may
Thus, as
"establish that the police acted properly." Ibid.
long as the existence of the warrant does not have the potential
to mislead the jury, it is not improper to refer to it. Ibid.
Likewise, in State v. McDonough,
337 N.J. Super. 27, 34
(App. Div.), certif. denied,
169 N.J. 605 (2001), we found that
"the passing reference" to an arrest warrant "did not imply that
the State had presented any evidence to the issuing judge that
was not also heard by the jury." We noted that the jury in that
case "heard extensive evidence concerning the evidence obtained
in the lengthy police investigation that preceded issuance of
the warrants." Ibid. Therefore, we held that Marshall applied;
"the jury does not have to be 'shielded from knowledge that . .
. warrants have been issued in a criminal matter because the
prior judicial determination of probable cause may influence the
jury to assume guilt.'" Id. at 35 (quoting Marshall, supra,
148 N.J. at 240); see also State v. Williams,
404 N.J. Super.
147, 168-69 (App. Div. 2008) ("[T]he reference for the warrant
was fleeting and was at best harmless error when considering the
overwhelming forensic proof against defendant.").
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However, in State v. Milton,
255 N.J. Super. 514, 519 (App.
Div. 1992), we considered the prejudicial effect that resulted
in the State's introduction of evidence that the officers
possessed two warrants, a no-knock search warrant, as was the
case here, and a search warrant for the defendant's person.
In its opening statement, the State made reference to the
warrant for the defendant's person, and also elicited testimony
from its investigator about it. Ibid. Defense counsel objected
and "moved for a mistrial . . . ." Ibid. We concluded that the
State's reference to the search warrant for the defendant's
person supplied "[t]he natural inference . . . that sufficient
independent proof had been presented to a neutral judge to
believe that [the] defendant would be found in possession of
drugs." Id. at 520. Thus, defendant was denied a fair trial.
Id. at 520-21.
Two years after Marshall was decided, we decided Alvarez,
where the defendant was arrested after the execution of a search
warrant. Alvarez, supra,
318 N.J. Super. at 140-141. There, in
addition to a search warrant, the police possessed an arrest
warrant issued by the parole board. Id. at 141. The judge gave
a limiting instruction, eliminating any reference to the parole
board arrest warrant, but he permitted the State to mention that
the arrest warrant was the reason for the police presence at the
A-3589-07T4
22
defendant's residence. Ibid. We held that "the repetitive
references to the arrest warrant for [the] defendant" amounted
to plain error because they suggested that a judicial officer
believed there was evidence of criminality at the defendant's
Id. at 148.
residence.
We make the following observations about this case that
lead us to conclude that the facts presented more closely align
with our holdings in Milton and Alvarez than the other cases
cited. First, there was never any limiting jury instruction
asked for, or provided, regarding the references to the "court
ordered" search warrant for the premises. Second, the trial
commenced with a reference to the warrant, which was repeated by
the State's first witness and by nearly every State's witness
thereafter. Thus, references to the search warrant were neither
fleeting, nor was the jury ever told of the limited probative
value of the evidence.
Third, we consider these references in light of the other
impermissible evidence that the prosecutor adduced from Holloway
regarding his experiences at the same address. The State's
to describe his narcotic
expert witness was permitted
investigative activity, including undercover purchases and
subsequent surveillances, involving
690 South 20th Street and
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23
the immediate area. The prosecutor specifically referenced this
aspect of Holloway's testimony in her summation.
"[A] police officer may not imply to the jury that he
possesses superior knowledge, outside the record, that
State v. Branch,
182 N.J. 338, 351
incriminates the defendant."
(2005). We have specifically noted that such evidence in the
context of police expert testimony involving drug distribution
is improper. See State v. Boston,
380 N.J. Super. 487, 492
(App. Div. 2005) (describing testimony about the nature of the
area and the officer's prior experience in making arrests at
that location in the context of improper expert opinion in drug
trafficking case), certif. denied,
186 N.J. 243 (2006).7
Lastly, the prosecutor's summation specifically sought to
explain why only defendant was arrested by repeating that such a
decision was "consistent" with the officers' view of the
evidence in the case. We do not think it unlikely that the jury
could infer that these "veteran" officers, responding to a
location where prior drug offenses had occurred, pre-armed with
a judicially-issued no-knock search warrant, were similarly pre-
armed with information, never adduced as evidence at trial, that
defendant was the one likely person who might be found at the
7
Indeed, this case involves the same prosecutor's office and the
same expert witness as Boston.
A-3589-07T4
24
apartment in possession of the contraband, and the only person
guilty of the offenses.8 Seen in this light, the jury may have
improperly disregarded the fact that defendant's verbal
admission was not contained in any police report of the
incident.
We turn then to defendant's argument regarding the
impropriety of Holloway's expert testimony. Again we tread on
well-worn ground. Expert testimony is admissible if "(1) the
intended testimony concerns a subject matter beyond the ken of
an average juror; (2) the field is at a state of the art such
that an expert's testimony would be reliable; and (3) the
witness has expertise sufficient to offer the intended
testimony." State v. Reeds,
197 N.J. 280, 290 (2009) (citing
State v. Jenewicz,
193 N.J. 440, 454 (2008); N.J.R.E. 702).
"[E]xpert testimony about the methods employed by drug
traffickers to package and to distribute illegal drugs . . .
[is] permissible under Rule 702." Reeds, supra,
197 N.J. at
290. The testimony is "permissible to assist the jury in
8
We hasten to add that we express no opinion regarding the
propriety of charging only defendant, and not the other
occupants of the apartment, with the offenses, since we have
only the trial record and nothing else to review. We accept
that the officers appropriately exercised their discretion in
making this determination. Our comments are limited to the
possible impact the improper testimony and references to the
search warrant may have had upon the jury and its consideration
of the evidence in its entirety.
A-3589-07T4
25
understanding the evidence . . . ." State v. Singleton,
326 N.J. Super. 351, 354 (App. Div. 1999); State v. Odom,
116 N.J.
65, 76 (1989) (noting that expert testimony aids a jury's
understanding and may be necessary "to explain the significance
of the properties, packaging, and value of illegal drugs"). An
expert can respond "to a hypothetical even when such testimony
'embraces an ultimate issue to be decided by the trier of fact,'
N.J.R.E 704, so long as the probative value of the . . .
testimony is not substantially outweighed by the risk of causing
undue prejudice, N.J.R.E. 403." Reeds, supra,
197 N.J. at 292.
Such expert testimony, however, "is not without
Id. at 293. An expert cannot directly opine about
boundaries."
a defendant's guilt, Odom, supra,
116 N.J. at 77; nor may the
State "use . . . a narcotics expert to tell a jury that which is
obvious." State v. Nesbitt,
185 N.J. 504, 514 (2006); see State
v. Baskerville,
324 N.J. Super. 245, 263 (App. Div. 1999)
(noting that the State "was not entitled . . . to an enhanced
proof opportunity, through expert opinion on the ultimate
question, to salvage a potentially insufficient case"), certif.
denied,
162 N.J. 10 (2000).
"Trial courts are expected to perform a gatekeeper role in
determining whether there exists a reasonable need for an
expert's testimony, and what the parameters of that testimony
A-3589-07T4
26
may be." Nesbitt, supra,
185 N.J. at 514. "The failure of a
defendant to object to expert testimony does not relieve the
Id. at
trial court of its gatekeeper responsibilities . . . ."
515.
Defendant argues Holloway's testimony was improper because
it involved opinions that were not beyond the average juror's
understanding, because it impermissibly "bolster[ed]" the
State's case, and because the hypothetical posed "was tainted by
its essential congruence with the factual issue the jury was
called upon to resolve." Boston, supra,
380 N.J. Super. at 493.
We cannot agree that Holloway's testimony was impermissible in
all respects, or that the hypothetical question posed violated
the parameters defined by Odom and its progeny.
Holloway provided the jury with his expert opinion
regarding the preferred packaging of drugs, their street value,
the fact that the quantity was indicative of distribution and
not personal use, that the smaller quantity of drugs found in
defendant's car evidenced street-level distribution, and the
routine nexus between firearms and drug trafficking. Such
opinions have been recognized as properly within the realm of
expert testimony. See Odom, supra,
116 N.J. at 81-82. Although
the hypothetical essentially repeated the evidence already
before the jury, it was limited to the facts adduced at trial.
A-3589-07T4
27
See State v. Summers,
176 N.J. 306, 314 (2003) (citing Odom,
supra,
116 N.J. at 80-82). It did not provide the jury with an
Reeds, supra,
197 N.J. at 295.
impermissible legal conclusion.
That being said, we seriously question whether other
aspects of Holloway's testimony involved opinions about facts
that were beyond the ken of average jurors, or reasonable
inferences that the average juror could reach without any expert
testimony. For example, that the drugs found in the toilet were
the remnants of an ill-fated attempt to dispose of evidence was
fairly obvious to the average person, and an expert was not
needed to explain that to the jury. Holloway's suggestion that
other drugs had already been disposed of by defendant, implying
he originally possessed more than were found, was unsupported by
the record. The expert testimony was further tainted by the
references Holloway made to prior and subsequent drug
transactions and investigations at the premises.
The State's case was formidable; in our opinion, that only
demonstrates how unlikely it was that the jury could not have
determined on its own without expert testimony that an
individual possessing over seven-hundred bags of heroin intended
to distribute some or most of them. The increasing trend in the
preponderance of narcotics prosecutions of relying upon expert
A-3589-07T4
28
testimony to explain obvious facts to the jury, and draw
implicit legal conclusions for it, is a worrisome development.
While we would not reverse defendant's conviction based
solely upon the admission of improper expert testimony, or
solely upon the impropriety of the repeated references to the
search warrant, or solely upon the impropriety of the
prosecutor's comments, taken collectively, these errors raise a
reasonable doubt in our minds that the trial was conducted
fairly. State v. Orrechio,
16 N.J. 125, 129 (1954). We
therefore are compelled to reverse.
III.
We comment on the balance of defendant's arguments in order
to provide guidance if the matter is tried again.
Defendant contends that the judge mistakenly abused her
discretion in permitting evidence of his 1989 conviction for
aggravated manslaughter for impeachment purposes pursuant to
N.J.R.E. 609. Defendant argued the conviction was remote. The
State contended that defendant was sentenced to twenty years
imprisonment, with a ten-year period of parole ineligibility,
and that the instant offense was committed within the term of
the original sentence. The judge determined the conviction was
for a "significant crime," and permitted the evidence to be
admitted.
A-3589-07T4
29
When defendant commenced his testimony, defense counsel
asked about his prior conviction. Defendant responded, "I took
a plea bargain . . . in that case, a plea bargain that shouldn't
have been accepted because I didn't admit to the crime, so the
plea should have never been . . . accepted." The judge excused
the jury, and engaged in a lengthy discussion with defendant.
She instructed him that his response should be limited to the
fact that he pled guilty to first-degree aggravated
manslaughter, chiding defendant that "you're not going to now
sit here and say you're not guilty [of] th[at] charge[]." She
told defendant that any answer "beyond the scope" of her ruling
would "subject [him] to a contempt hearing."
After first indicating that he no longer wished to continue
testifying before the jury, defendant was given the opportunity
to confer with his attorney, and resumed his testimony. He now
argues that the judge improperly "restrict[ed] his testimony . .
. with the threat of contempt and incarceration . . . ." We
find both aspects of defendant's argument unavailing.
"Ordinarily evidence of prior convictions should be
admitted and the burden of proof to justify exclusion rests on
the defendant." State v. Sands,
76 N.J. 127, 144 (1978).
Evidence of a prior conviction is inadmissible if the conviction
N.J.R.E. 609. "Remoteness cannot ordinarily be
is remote.
A-3589-07T4
30
determined by the passage of time alone. The nature of the
convictions will . . . be a significant factor. Serious crimes
. . . should be considered as having a weightier effect" and
ordinarily mitigate in favor of admission. Ibid. We review the
trial judge's decision under an abuse of discretion standard.
Sands, supra,
76 N.J. at 144.
Defendant was convicted of first-degree manslaughter which
is obviously a "serious" crime. The initial sentence of twenty-
years had not expired when the crimes he was now charged with
occurred. We find that the judge did not mistakenly exercise
her discretion in admitting this evidence for impeachment
purposes.
Nor do we think the judge erred in instructing defendant
that any testimony regarding his prior conviction was limited.
The State correctly argues that when a person knowingly enters a
guilty plea, that person has waived his right to contest the
See State v. Knight,
183 N.J. 449,
admissibility of his plea.
471 (2005). Defendant was not entitled to explain away his
conviction by claiming some legal infirmity at the time he pled
guilty. The judge properly warned him, outside the presence of
the jury, how he should continue when the jury returned.
After the jury returned its guilty verdicts in the first
trial, trial commenced on the second indictment that charged
A-3589-07T4
31
defendant with violating N.J.S.A. 2C:39-7. While the judge and
counsel were discussing the procedure to be employed outside the
presence of the jury, defendant was apparently placed in
handcuffs.
Although defense counsel asked if that was necessary, he
did not object when the judge, yielding to the request of a
sheriff's officer present in court, concluded it was necessary
for "safety reasons." The jury was brought back into the
courtroom and the trial began.
After brief opening statements, no additional evidence was
adduced except for proof of defendant's prior convictions.9 The
entire trial, including the charge, consists of seven pages of
transcript. Defendant contends it was plain error for the jury
to observe him handcuffed during the second trial.
Generally, courts should refrain from placing a defendant
in restraints "because the jury is likely to consider such a
defendant as being in the opinion of the judge a dangerous man,
and one not to be trusted, even under the surveillance of
officers." State v. Artwell,
177 N.J. 526, 534 (2003)
(quotations omitted). To ensure effective appellate review, a
9
Defendant was convicted of possession of a weapon on the same
date he was convicted of aggravated manslaughter. In the first
trial, the State did not seek to introduce the weapons
609.
conviction under N.J.R.E.
A-3589-07T4
32
trial court should conduct a hearing outside the presence of the
jury and place on the record its reasons for taking such action.
Id. at 537-38. In addition, the judge "must 'instruct the jury
in the clearest and most emphatic terms that it give such
restraints no consideration whatever in assessing the proofs and
determining guilt.'" Id. at 538 (quoting State v. Roberts,
86 N.J. Super. 159, 168 (App. Div. 1965)).
Although we doubt defendant was prejudiced by the judge's
decision since the same jury that had just convicted him of very
serious crimes was now considering his fate on the second
indictment, the procedure should not have been employed unless
the judge proceeded in the manner required by Artwell. If the
issue arises again, a complete record must be made, and if the
judge, in the sound exercise of her discretion finds the
restraint to be necessary, she must appropriately instruct the
jury. In this case, although indicating she intended to do so,
the charge contained no such instruction.
When the jury reached its verdict in the second trial,
defendant refused to leave the holding cell and appear in court.
The judge questioned defense counsel, who indicated that
"defendant does not wish to come out to hear this verdict, and
so I'm waiving his appearance." The judge responded, "We'll
waive his appearance." She proceeded to receive the jury's
A-3589-07T4
33
verdict without defendant being present. Defendant now argues
it was improper for the court to accept his counsel's
representations as to the waiver of his right to be present at
trial, and the judge should have made personal inquiry of him
before proceeding.
A defendant can waive his right to be present at trial.
R. 3:16(b). "A waiver may be found . . . from . . . the
defendant's conduct evidencing a knowing, voluntary, and
unjustified absence after . . . trial has commenced in
defendant's presence." R. 3:16(b)(2). We think it obvious that
defendant voluntarily waived his right to be present for the
verdict, and we find no error in this regard.
In light of our decision, we do not address defendant's
sentencing arguments.
Reversed and remanded for a new trial.
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34
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