STATE OF NEW JERSEY v. STEVEN B. MCNEIL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1923-06T41923-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN B. MCNEIL,

Defendant-Appellant.

 

Submitted October 28, 2008 - Decided

 
Before Judges Winkelstein, Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, 00-09-0709-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On September 12, 2000, a Burlington County grand jury indicted defendant, Steven McNeil, charging him with third-degree distribution of a controlled dangerous substance (CDS) within 1000 feet of school property, N.J.S.A. 2C:35-7 (count one); third-degree possession of a CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count two); third-degree distribution of a CDS, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count three); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count four); and third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (count five). Prior to trial, at the State's request, the judge dismissed counts two and four.

A jury convicted defendant of the remaining counts. The trial court merged the convictions on counts three and five into the conviction on the first count and imposed an extended eight-year prison term, with four years of parole ineligibility, to be served consecutively to a sentence defendant was serving for unrelated convictions.

On appeal, defendant raises the following points for our consideration:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO GIVE THE JURY A COMPLETE INSTRUCTION ON THE LAW OF CREDIBILITY, INCLUDING THE LAW OF PRIOR INCONSISTENT STATEMENTS. (Not Raised Below)

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S KEY WITNESS USURPED THE FUNCTION OF THE JURY BY RENDERING AN INADMISSIBLE CONCLUSION ON THE ULTIMATE ISSUE IN THE CASE. (Not Raised Below)

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL EXPERT OPINIONS THAT SHOULD HAVE BEEN EXCLUDED.

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO SHOW THAT ITS WITNESSES HAD FIRST-HAND KNOWLEDGE OF THE FACTS. (Not Raised Below)

POINT V

THE STATE'S RELIANCE ON ABSENTEE WITNESSES TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION. (Not Raised Below)

POINT VI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF EVIDENCE OF GUILT BY ASSOCIATION. (Not Raised Below)

POINT VII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S USE OF CRIMINAL DISPOSITION EVIDENCE TO PROVE ITS CASE. (Not Raised Below)

POINT VIII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE JURORS ACCURATELY AND COMPLETELY ON THE LAW OF SCHOOL ZONE DRUG CRIMES. (Not Raised Below)

POINT IX

THE SENTENCE IS EXCESSIVE.

We affirm.

In May 1999, the Burlington City police conducted a drug surveillance operation in the area of York and Clarkson Streets, commonly known as the New Yorkshire area of the City. From a location several blocks away, the police monitored the area through a video camera that they operated by radio control and had installed on a telephone pole. Police officers were stationed to be able to arrest buyers when they left the scene after the officer viewing the video called in a description.

At 5:33 p.m. on May 25, 1999, Officer Michael Hymes was watching the surveillance video when he saw a woman on a bicycle approach the area. Having lived in the area for fifteen years, Hymes knew the woman to be Bonnie Fletcher. She spoke to a man who then walked away. A man Hymes knew to be defendant then approached Fletcher, spoke to her, and exchanged money with her. Defendant walked across the street and Fletcher followed him. Within fifty yards of Holy Light Academy, an elementary school, defendant then engaged in "dipping" putting loose drugs into Fletcher's hand.

Fletcher rode away on her bicycle. Hymes gave the arrest team her description, and Officers Scott Kelly and Alan Snow arrested her several blocks from the site of the transaction. Kelly told Fletcher that she had been seen purchasing drugs and asked if she had "anything." Fletcher reached under her shirt and retrieved crack cocaine. It was "loose," meaning that it was not in a baggie.

The jury viewed the surveillance video. Fletcher testified that the video showed her handing defendant money in return for cocaine. She did not, however, know defendant and could not identify him; nor did she know the man with whom she first spoke.

Defendant's primary defense was identification. He claimed that he was not the individual who sold the CDS to Fletcher.

We begin our discussion with defendant's argument that the judge should have given the jury the prior inconsistent statement charge. Because defendant failed to raise this issue at trial, we address it under the plain error standard. That is, we disregard the error "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

Officer Hymes testified that defendant was a "fixture" in the neighborhood in which they both lived. Hymes knew defendant's "street name" to be "Magic." On defendant's arrest report, however, Hymes wrote that defendant's street name was "Smooth." Officer Kelly testified that "Smooth" was the street name of defendant's brother, James McNeil. When confronted with that discrepancy at trial, Hymes testified that he had no question as to defendant's identification because he personally knew defendant from the neighborhood and recognized him at the transaction site and on the surveillance video.

On these facts, defendant claims that the court should have provided the jury with the following charge:

Evidence, including a witness' statement or testimony prior to the trial, showing that at a prior time a witness has said something which is inconsistent with the witness' testimony at the trial may be considered by you for the purpose of judging the witness' credibility. It may also be considered by you as substantive evidence, that is, as proof of the truth of what is stated in the prior contradictory statement.

[Model Jury Charge (Criminal), Prior Contradictory Statements of Witnesses (Not Defendant) (1994).]

This charge, according to defendant, would have allowed the jury to use the prior statement as substantive evidence that it was James McNeil, not defendant, who committed the crimes.

Although the judge did not provide the jury with the prior charge, he did give the following instruction:

As the judges of the facts, you are to determine the credibility of the witnesses in determining whether the witness is worthy of belief and, therefore, credible. You may take into consideration the following:

The appearance and demeanor of the witness, the manor [sic] in which he or she may have testified, the witnesses' interest in the outcome of the trial, if any. His or her means of obtaining knowledge of the facts. The witnesses' power of discernment, meaning their judgment, their understanding. His or her ability to reason, observe, recollect and relate. The possible bias, if any, in favor of the side for whom the witness testified. The extent to which, if at all, each witness has [been] either corroborated or contradicted, supported or discredited by other evidence. Whether the witness testified with an intent to deceive you. The reasonableness or unreasonableness of the testimony the witness has given. Whether the witness made any inconsistent or contradictory statements. And any and all other matters in evidence which serve to support or discredit his or her testimony.

Through this analysis as judge of the facts, you weigh the testimony of each witness and then determine the weight to give to it.

Through that process, you may accept all of it, a portion of it, or none of it.

If you believe that any witness or party wilfully [sic] or knowingly testified falsely to any material fact in the case with an intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it or you may, in your discretion, disregard all of it.

[emphasis added.]

"Appropriate and proper [jury] charges . . . are essential for a fair trial," State v. Green, 86 N.J. 281, 287 (1981), and erroneous jury instructions are "poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979). In determining whether there was error, jury charges are to be read as a whole. State v. Gartland, 149 N.J. 456, 473 (1997).

Here, reading the charge as a whole, we conclude that the court's failure to provide the model inconsistent statements charge did not possess a clear capacity to bring about an unjust result. Though Hymes misidentified defendant's street name on the police report, in that report he included defendant's legal name. Hymes knew defendant personally and identified him as the person in the surveillance video, not simply by viewing it, but by observing him at the scene. Furthermore, as part of its credibility charge, the court did, in fact, instruct the jury to consider whether the witnesses made any inconsistent or contradictory statements, and to determine the weight to be afforded to the evidence. Under the totality of the evidence, the court's failure to instruct the jurors that they could use the inconsistency as substantive evidence was harmless.

We next turn to defendant's argument that when Hymes identified him as the person in the video, he usurped the jury's function by rendering an inadmissible conclusion on the ultimate issue in the case. We also address this argument on the plain error standard.

Defendant claims that Hymes was in no better position than the jurors to determine whether defendant was the person in the video. That argument is without merit, however, because Hymes did not simply view the video to identify defendant. He was present at the crime scene, personally knew defendant, and was able to identify him on the video based on having seen him at the crime scene.

Next, we address defendant's argument that Hymes gave expert testimony without being qualified as an expert. During Hymes's testimony, the prosecutor asked him to explain how drugs are sold in Burlington City. Defense counsel objected, saying, "I don't know whether we're trying to qualify Mr. Hymes as an expert or what, but I don't see how that's relevant to this operation." The judge ruled that Hymes was not testifying as an expert, but rather, based upon his experience and knowledge as a police officer.

Generally, "the nature and purpose of the possession of illegal drugs is a subject within the specialized knowledge of experts and not something generally known by" jurors. State v. Odom, 116 N.J. 65, 73 (1989). Police officers, when testifying as experts with special knowledge, may therefore provide an opinion relating to the quantity and packaging of drugs. Id. at 78-79. To provide that testimony, the police officer witness should be "suitably qualified and possessed of sufficient specialized knowledge to be able to express [an expert opinion] and to explain the basis of that opinion." State v. Moore, 122 N.J. 420, 458-59 (1991) (quoting Odom, supra, 116 N.J. at 71).

Here, although the State should have sought to qualify Hymes as an expert before he testified as to what constituted a "typical" drug transaction and how drugs could be packaged, the failure to do so did not constitute harmful error for two reasons. First, though Hymes was not formally qualified as an expert, he nevertheless had sufficient experience and training to have qualified as an expert with regard to drug transactions in Burlington City. He had more than twenty years experience as a police officer, having participated in narcotics surveillance work hundreds of times. Hymes worked numerous narcotics investigations and spoke to multiple drug dealers to learn how drugs were sold in Burlington City.

The second reason why the failure to qualify Hymes as an expert does not warrant a new trial is that the record contained overwhelming evidence of defendant's guilt. The jurors viewed the video of the transaction. Hymes identified defendant on the video and from his own prior contacts with him. The exchange of money for loose crack was described in the testimony. The video showed Fletcher buying the CDS from defendant, and when the police stopped her, she produced the CDS from under her shirt. She admitted that she was the person in the video and that she had purchased drugs from the man who was later identified as defendant. Put simply, the evidence was so overwhelming that defendant sold Fletcher the drugs that the error in not qualifying Hymes as an expert before he described how drug transactions typically took place in Burlington City was not clearly capable of producing an unjust result. R. 2:10-2; Macon, supra, 57 N.J. at 337-38.

Next, defendant argues that the court should not have permitted Hymes to testify that the New Yorkshire area of Burlington City was a high narcotics trafficking area because the State never established that he had first-hand knowledge "of all the neighborhoods in the City and that he personally observed a significantly higher incidence of drug trafficking in one area compared with another." We reject that argument.

A police officer, as a lay witness, can testify that a neighborhood is a "high crime" area if it is based on his personal experience. Trentacost v. Brussel, 164 N.J. Super. 9, 19-20 (App. Div. 1978) (police officer who investigated between seventy-five and one hundred crimes in a particular neighborhood over a three-year period could offer lay opinion that neighborhood was a high crime area), aff'd, 82 N.J. 214 (1980); see also State v. Artwell, 177 N.J. 526, 531 (2003) (officers permitted to testify that they were conducting surveillance in high crime area of Camden); State v. Summers, 176 N.J. 306, 315 (2003) (expert witness testified that the drugs that the defendant possessed were intended for distribution based on a number of factors, including that the area was a high crime area). Here, Hymes had the requisite personal experience to testify that the area where the drug transaction took place was a high drug trafficking area.

Hymes had been a police officer in Burlington City for more than twenty years; he participated in several narcotics surveillance operations and had conversations with multiple drug dealers about the local drug trade. He worked on hundreds of narcotics cases. He reviewed the logs of the two-week surveillance operation. During that period of time, approximately 200 hand-to-hand drug transactions had taken place in the area. He personally witnessed fifty of them. Based on Hymes's observations during that two-week surveillance period, plus his experience in narcotics transactions, there was no error in permitting him to testify that the section of the City in which the transaction took place was a high narcotics trafficking area.

Defendant next contends that Hymes's testimony that the New Yorkshire area was known for drug dealing was based on information from witnesses that defendant never had an opportunity to confront. That argument is also without merit. Hymes's knowledge of drug traffic in the area was based on his living and working there, reviewing the logs of the transactions during the surveillance period, and personally observing many of those transactions. The challenged testimony was not based on Hymes's conversations with individuals who did not testify at trial.

Next, defendant contends that the jury could have inferred his "guilt by association" based on Hymes's testimony that he was arrested in that high drug trafficking area. We reject that argument. Constitutional protections regarding guilt by association refer to the danger of being tried with another defendant, not the danger of being associated with a particular geographic area. See State v. Freeman, 64 N.J. 66, 68-69 (1973).

In a similar argument, defendant also claims that his due process rights were violated when Hymes testified that he was a "fixture" in the area because the jury could have inferred that if he was a fixture in a high drug trafficking area, he must be guilty of selling drugs. We reject that argument. Hymes did not testify that defendant was a known drug dealer, or that, aside from this particular instance, he had had any contact with defendant with regard to narcotics transactions. See State v. Ramos, 217 N.J. Super. 530, 537-38 (App. Div.), certif. denied, 108 N.J. 677 (1987). Nor was Hymes's testimony that defendant was a fixture in the area evidence of his character, or a character trait, which would be inadmissible under N.J.R.E. 404(a).

We next address defendant's claim that with respect to the possession of CDS with the intent to distribute within 1000 feet of school property charge, the court should have instructed the jury that for the distribution to have occurred in a school zone, the "school property" would have to be known to be used for school purposes. We agree with the State that no such instruction was required.

Defendant correctly points out that to convict an individual of N.J.S.A. 2C:35-7, the State must prove that "there are indicia from which a reasonably objective person could know that the school property was used regularly, consistently, and actually for school purposes." State v. Ivory, 124 N.J. 582, 592 (1991). Defendant claims, then, that the court should have provided the jury with the following charge:

In addition to determining whether the property is school property, you must determine the purpose for which it is used. You must decide whether the property is regularly, consistently, and actually used for school purposes, and whether the property's appearance would give an objectively reasonable person reason to know that it was used regularly, consistently, and actually for school purposes.

[Model Jury Charge (Criminal), Distributing or Dispersing [CDS] Near or on School Property Used For School Purposes n.1 (1992).]

This charge, however, is necessary only "[w]here there is a question whether the property was used for school purposes." Ibid. The charge is based on the Supreme Court's decision in Ivory, supra, 124 N.J. at 592, which addressed "ambiguous" situations where school properties are not "immediately identifiable." The requested jury instruction is therefore only used "when [a] defendant contests whether an objectively reasonable person would know the property was used for school purposes." State v. White, 360 N.J. Super. 406, 412 (App. Div. 2003).

Here, defendant did not contest whether the property was used for school purposes, nor did he request this charge at trial. No ambiguity existed regarding the property's use for school purposes. Hymes testified that the drug transaction took place within fifty yards of the Holy Light Academy, a private elementary school. There was no evidence that this was anything other than a traditional school property, whose use was readily apparent to the ordinary person. It was not a non-traditional school property, such as the community center that was used for school purposes in White, supra, 360 N.J. Super. at 412, or the school athletic fields situated separately from the school as in Ivory, supra, 124 N.J. at 584. Because there was no ambiguity, there was no need for the charge that defendant now argues was necessary.

In his final point, defendant contends that his sentence was excessive because the judge improperly sentenced him to an extended term, improperly weighed the aggravating and mitigating factors, and improperly made his sentence consecutive to another sentence that he was already serving on unrelated crimes.

"It is well settled that when reviewing a trial court's sentencing decision, '[a]n appellate court may not substitute its judgment for that of the trial court.'" State v. Evers, 175 N.J. 355, 386 (2003) (quoting State v. Johnson, 118 N.J. 10, 15 (1990)). We "may review and modify a sentence [only] when the trial court's determination was 'clearly mistaken.'" Evers, supra, 175 N.J. at 386 (quoting State v. Jabbour, 118 N.J. 1, 6 (1990)).

 
Here, the sentencing court was not clearly mistaken. The court properly weighed the aggravating and mitigating factors. Defendant had the requisite predicate offense for an extended prison term. The court also properly weighed the appropriate factors set forth in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), before imposing a consecutive sentence. In sum, the court properly grounded its findings in competent, credible evidence; applied the correct legal principles; and the sentence does not shock the judicial conscience. State v. Roth, 95 N.J. 334, 363-64 (1984).

Affirmed.

(continued)

(continued)

17

A-1923-06T4

December 12, 2008