STATE OF NEW JERSEY v. BEN McCALLUM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0857-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BEN McCALLUM,

Defendant-Appellant.

_____________________________________

June 9, 2011

 

Argued December 8, 2010 - Decided

Before Judges Gilroy and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-01-0014.

 

Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Wilensky, of counsel and on the brief).

 

Timothy P. Ward, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Ward, of counsel and on the brief).

 

PER CURIAM

Defendant Ben McCallum appeals his conviction by a jury and fifteen-year sentence of imprisonment on all eleven counts of an indictment arising from one street-level sale of .29 grams of crack cocaine and possession of an additional 3.78 grams for sale. Because of cumulative plain error in the prosecution's presentation of evidence at the trial, we reverse and remand for a new trial.

Defendant was arrested on September 20, 2007, in a park in Trenton located between Fountain and Sweets Avenues, an area known to the police for illegal drug sales. Two Trenton detectives, Frederick Bender and Travis Maxwell, testified at trial that shortly after noon on that date they were conducting covert surveillance of the park. They saw four men sitting at a park bench with whom they were familiar. They identified the men as defendant Ben McCallum, his brothers Billy and Juquan McCallum, and Ricky Spruill.

At about 1:00 p.m., a woman approached and had a brief conversation with Billy McCallum. Billy walked to a nearby alley and retrieved a plastic bag from under the siding of a house. From that bag, he took a smaller, clear bag containing a light-colored substance. He replaced the bigger bag behind the siding and returned to the park. He handed the woman the smaller bag and received currency in exchange. The woman walked out of the park, but backup police detectives who were stationed nearby were not in a position to stop her and investigate further the nature of the transaction.

About ten minutes later, a white Cadillac approached and parked behind a tan Chrysler next to the park. A man, later identified as Larry Lopez, stepped out of the Cadillac and had a brief conversation with defendant Ben McCallum. Defendant walked to the tan Chrysler, looked around briefly, and opened the driver's door. He reached inside to the dashboard area and removed a clear plastic bag containing a white substance. Observing through binoculars, Detective Maxwell believed from his prior police experience that the substance was rock cocaine. Defendant appeared to take a quantity of the substance from the plastic bag and returned to the park, where he gave an item to Lopez and received paper currency. Lopez then left the area in the Cadillac.

Detective Bender communicated with the backup arrest team, and they stopped the Cadillac a few blocks away. Lopez was cooperative and immediately turned over to the arresting detectives a quantity of cocaine. A State Police laboratory report later confirmed the substance as .29 grams of rock cocaine.

After arresting Lopez, the backup detectives, together with Bender and Maxwell, entered the park and detained the four men near the bench. A search of defendant's person produced $340 in currency, and the police found no paraphernalia for personal use of cocaine. Detective Bender went to the tan Chrysler and found near the dashboard a clear plastic bag containing a substance, later identified at the lab as 3.78 grams of rock cocaine. Detective Bender also searched under the siding of the house where Billy McCallum had gone and found there a plastic bag containing eight smaller plastic bags, each of which contained suspected cocaine. One of the smaller bags was tested by the lab and confirmed as cocaine with a weight of .87 grams. From Billy McCallum's person at the time of his arrest, the detectives recovered $2,047 in currency.

With this evidence, the prosecution obtained an eleven-count indictment against defendant: two counts of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); two counts of third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3); two counts of third-degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-7; two counts of second-degree possession of cocaine with intent to distribute near a public facility, N.J.S.A. 2C:35-7.1; one count of third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and 5b(3); one count of third-degree distribution of cocaine in a school zone, N.J.S.A. 2C:35-7; and one count of second-degree distribution of cocaine near a public facility, N.J.S.A. 2C:35-7.1.1

At defendant's trial in November 2008, the prosecution presented testimony from Detectives Bender and Maxwell and one of the two backup detectives. In addition, the prosecution called Mercer County Prosecutor's Office Detective Denise Zorzi, who was qualified by the court to testify as an expert "in identification, sale, distribution, packaging, pricing and use of narcotics and in particular cocaine." Detective Zorzi testified on direct examination about the three seized items of cocaine the bag taken from under the siding, the one from the Chrysler, and the cocaine taken from Lopez. Also hypothetical questions detailing the observations of the several police detectives were posed to her, and she was asked to give her opinion as to the nature of the transactions in the park.

Defendant elected not to testify. He presented one defense witness, a woman who was near the park at the time of his arrest. The witness testified that the police had planted the cocaine they claimed to have seized and had brought false charges against defendant and Billy McCallum.

The jury convicted defendant of all eleven counts of the indictment. Because of defendant's extensive prior record, including four prior drug convictions, the court granted the prosecution's motion for a discretionary extended term sentence under N.J.S.A. 2C:44-3a. The court sentenced defendant to concurrent terms of fifteen years' imprisonment with seven years of parole ineligibility on each of the three second-degree public facility charges. The other counts of conviction were merged with those three charges.

On appeal, defendant contends:

POINT I

 

THE DEFENDANT WAS SEVERELY PREJUDICED BY THE TRIAL COURT'S ADMISSION OF IRRELEVANT AND

INFLAMMATORY TESTIMONY CONCERNING CRIMES PURPORTEDLY COMMITTED BY THE DEFENDANT'S BROTHER, AND BY INFLAMMATORY TESTIMONY CONCERNING THE DEFENDANT'S PRIOR CONTACTS

WITH POLICE (NOT RAISED BELOW).

 

A. EVIDENCE CONCERNING DEFENDANT'S PRIOR CONTACTS WITH POLICE.

B. EVIDENCE OF THE DEFENDANT'S

BROTHER'S CONDUCT.

 

C. THE NOTED VIOLATIONS NECESSITATE REVERSAL.

 

POINT II

 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR

BY ADMITTING EXPERT TESTIMONY THAT WENT WELL

BEYOND THE PERMISSIBLE SCOPE OF SUCH

TESTIMONY, AND AMOUNTED TO OPINION AS TO

GUILT IN THE PARTICULAR CASE. U.S. CONST.,

AMEND. VI, XIV; N.J. CONST. (1947), ART. 1,

PAR. 10 (NOT RAISED BELOW).

 

POINT III

 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR

IN ADMINISTERING A "NO ADVERSE INFERENCE"

CHARGE TO THE JURY WITHOUT ASKING THE

DEFENDANT OR COUNSEL WHETHER SUCH A CHARGE

WAS DESIRED. (NOT RAISED BELOW).

 

POINT IV

 

REVERSAL IS REQUIRED BY THE CUMULATION OF

PREJUDICIAL ERRORS (NOT RAISED BELOW).

 

POINT V

 

THE TRIAL COURT VIOLATED THE REQUIREMENTS OF

STATE V. PIERCE, AND IMPOSED AN EXCESSIVE

SENTENCE, NECESSITATING REDUCTION OR A

REMAND FOR RESENTENCING. U.S. CONST.,

AMEND. VI, XIV.

 

As the listing of argument points indicates, defense counsel at the trial did not make any of the arguments now raised on appeal. Consequently, defendant's contentions are subject to the plain error standard of review. Under that standard, a conviction will be reversed only if an error was "clearly capable of producing an unjust result." R. 2:10-2. The error must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]" State v. Taffaro, 195 N.J. 442, 454 (2008); State v. Macon, 57 N.J. 325, 336 (1971). Defendant must prove that a plain error was clear and obvious and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), overruled in part on other grounds by State v. Boretsky, 186 N.J. 271, 284 (2006).

We need not decide whether any of the alleged errors individually require reversal of defendant's conviction and a new trial. Cumulatively, three errors committed at trial are of sufficient magnitude that the convictions must be reversed. See State v. Wakefield, 190 N.J. 397, 538 (2007) ("where 'legal errors . . . in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial'") (quoting State v. Orecchio, 16 N.J. 125, 129 (1954)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Defendant is entitled to a new trial.

We are hard-pressed to understand why the prosecution was permitted to present evidence of an entirely uncharged transaction and a seizure of drugs attributed not to defendant but to his brother Billy as evidence relevant to defendant's guilt. The prosecution's one-day presentation of evidence was divided almost equally between evidence relevant to defendant's transaction with Lopez, coupled with seizure of contraband from Lopez and the Chrysler, and Billy McCallum's transaction with the unidentified woman, coupled with seizure of contraband from the siding of the house. The surveillance detectives testified in nearly equal detail with respect to each. The prosecution presented in evidence the cocaine seized from the siding, as well as the cocaine seized from Lopez and from the Chrysler. Certified lab reports identifying the contents of all three exhibits were offered and admitted in evidence without objection.

The prosecutor also asked the expert witness about the packaging and pricing of the cocaine seized from the siding and, by means of a lengthy hypothetical question reciting the facts relevant to Billy McCallum, to provide an opinion that the bags of cocaine seized from the siding were being concealed there for sale. The expert then testified, perhaps to the jury's surprise, that the observations relating to Billy and the seizure of the cocaine from the siding resulted in no conclusions that she could draw regarding the involvement of a hypothetical person identified with defendant's actions. Without any plausible connection to the crimes charged against defendant, the evidence pertaining to Billy should not have been admitted in defendant's trial.

In response to defendant's argument first made on appeal that evidence pertaining to Billy's activities should have been excluded, the State asserts the evidence was not offered under N.J.R.E. 404(b), or "to prove defendant's guilt by association." The State justifies that evidence as relevant "to preempt" a "possible and plausible defense" that the police had misidentified the person who had engaged in the transaction with Lopez or retrieved cocaine from the tan Chrysler. This argument might have been more credible if the prosecution had awaited the defense contention of misidentification to be made at trial before offering the disputed evidence. In that event, the prosecution could have made a proffer of the evidence pertaining to Billy McCallum and sought a ruling on its admissibility. But in fact, the prosecutor's opening statement and the direct testimony of Bender and Maxwell immediately described Billy's activities without any ruling by the court on admissibility.

That evidence was not relevant to the charges against defendant in the prosecution's case in chief. Defense cross-examination of the surveillance detectives challenging their identification of defendant was handily deflected by clear and pointed testimony from both witnesses that they knew the brothers and could easily distinguish one from the other by their hair and size defendant having dreadlocks while Billy's hair was short, and defendant being significantly shorter than Billy. There was no need to present evidence of Billy's drug transactions to distinguish one brother from the other.

The evidence against Billy painted a picture of a cabal of family drug peddler's working independently but cohesively in a Trenton park. Such evidence required scrutiny under N.J.R.E. 404(b) and application of the four-part test and a limiting instruction from the court as set forth in State v. Cofield, 127 N.J. 328, 338, 340-41 (1992), and State v. Marrero, 148 N.J. 469, 483 (1997). Apart from N.J.R.E. 404(b), its admission required careful consideration under N.J.R.E. 403 as evidence that had little or no probative value and a high risk of prejudice to defendant. The absence of analysis and limiting instruction, and the sheer scope of the uncharged criminal activity presented in this trial, was prejudicial to the defense.

In the same vein, Detective Bender volunteered prejudicial testimony informing the jury that he was familiar with defendant through prior arrests. In direct testimony, the prosecutor questioned Detective Bender about his ability to recognize defendant. Detective Bender testified about defendant's distinctive hairstyle and said he recognized defendant "on sight." On cross-examination, defense counsel questioned the physical description of defendant contained in Bender's police report:

Q. . . . [L]et me show you

what has been marked S-1. Is that your

police report?

 

A. Yes, it is.

 

Q. Now, in that police report, is

there anywhere where you state that the person you were watching going to the

car or coming back from the car namely,

the Chrysler, had dreads?

 

A. No, I do not.

 

Q. Do you find that to be important

that he had dreads as far as an identification from a police officer

who received training?

 

A. Well, like earlier when I testified, I

stated that I go through that area numerous

times. I've dealt with both, all three

McCallums. I've been there when they

were taken into custody. I've been there

on other investigations. I know them on

sight. I know Ben and Billy are about

Billy is 6-1, 6-2, 200 pounds, short hair.

Ben obviously isn't that tall, and has

dreads.

 

[(Emphasis added).]

 

Defense counsel did not object or ask for a curative instruction when Bender volunteered that defendant and his brothers had been previously "taken into custody" or that they were involved in "other investigations."

Later, during Detective Maxwell's testimony, the prosecutor asked the following with respect to identification of defendant:

Q. Officer Maxwell, prior to September 20, 2007, could you estimate how many times

you would encounter the defendant?

 

A. Maybe ten, I guess.

 

Q. Did you know him by sight?

 

A. Yes.

 

Q. Did you know his name?

 

A. Yes.

 

Q. Is there any chance at all that

you're mistaken as to which McCallum

went to the tan Chrysler to retrieve

crack cocaine?

 

A. Absolutely not.

 

Q. It was this defendant?

 

A. Yes.

 

Immediately after this testimony, defense counsel cross-examined Maxwell on the same subject:

Q. You encountered my client ten

times?

 

A. Approximately. I mean, I haven't

counted every time that I've encountered

him.

 

Q. And these ten times were based on

arrests?

 

A. No.

 

Q. But you encountered him ten times?

 

A. Yes, we patrol that area, the Fountain

Avenue area. That's one of the hot spots, and I've been out there numerous times.

 

Q. And when you encountered him, was

he polite to you when you encountered him,

or was he belligerent?

 

A. Prior to this date?

 

Q. Um-hum.

 

A. I've never had a problem with him.

 

Q. So why would you have the encounters?

 

A. Just investigations that we've conducted in that area. Every time we've conducted or

every time, pretty much I've conducted an

investigation on Fountain Avenue, Ben

McCallum was around or involved in it.

 

[(Emphasis added).]

 

Again, defense counsel made no objection to this testimony and did not request a curative instruction. Defendant now argues it was plain error for these police witnesses to inform the jury that defendant had been arrested in the past or had been involved in many police investigations.

Detective Maxwell's reference to other investigations may be excused as invited error by defense counsel's strategic decision to cross-examine the witness as he did. See State v. Loftin, 146 N.J. 295, 365 (1996). The subject of defendant's prior arrests, however, was first raised unnecessarily by Detective Bender's unresponsive answer to a question about the contents of his police report. It was an improper insertion of information about defendant's prior contacts with the police that suggested a propensity to violate the law. See State v. Tilghman, 345 N.J. Super. 571, 578 (App. Div. 2001); cf. State v. Ramos, 217 N.J. Super. 530, 537-38 (App. Div.) (no prejudice in police witness's testimony that he was familiar with defendant based on his general knowledge of people in the neighborhood), certif. denied, 108 N.J. 677 (1987). Detective Bender should have been instructed not to volunteer prejudicial testimony about prior arrests of defendant.

Next, defendant argues persuasively that the prosecutor's examination of Detective Zorzi violated the strictures of case law limiting testimony from a narcotics expert. Detective Zorzi was asked a lengthy hypothetical question reciting the details of the surveillance of the two transactions, Billy McCallum's actions being designated as "person A" in the hypothetical and defendant as "person B." The witness was then asked:

Q. Based upon your training and experience, what do the facts in this hypothetical tell you that person A is doing in relation to the bag of crack cocaine that was recovered from under the siding of the house?

 

A. Person A was concealing his crack cocaine under the siding of the house, and had bags that were premeasured and ready to for sale at a prearranged price.

 

Q. Now, in your person[al] experience,

would it be unusual for someone to hide a bag of crack cocaine under siding of a house?

 

A. Not at all. It's happened numerous

times in my experience.

 

Q. Why would someone do that?

 

A. To conceal it from the police, to keep it off their person and away from them so that the police do not associate the narcotics with them. Also to conceal it from other people who maybe want to steal either their money or narcotics from them. This way, it is not where anybody would know that it is, it's well hidden.

 

Q. Now, based on the facts in the hypothetical, does that allow you to draw any conclusions about the involvement of person B or the other two people sitting at the bench in relation to that particular bag of crack cocaine?

 

A. Not in relation to that particular bag, no.

 

Q. So at this point, only person A is involved?

 

A. That's correct.

 

Q. Now, let me add some additional facts to the hypothetical.

The prosecutor then recited the surveillance evidence pertaining to the transaction between defendant and Lopez, and concluded the second part of the lengthy hypothetical question as follows:

Now, based on those facts to this point, can you draw any conclusion as to the activity that person B is involved in?

 

A. Person B is engaged in dip sales with the person who has been arrested and his stash of crack cocaine was secreted and concealed inside the tan car.

 

In soliciting these answers, the prosecutor neglected the holdings of several cases that admonished against using a narcotics expert to usurp the jury's fact-finding function. See State v. Reeds, 197 N.J. 280, 296 (2009). Testimony from a narcotics expert must "genuinely aid" the jury, State v. Odom, 116 N.J. 65, 71 (1989), and it must be "limited to that which assists 'the trier of fact [in] understand[ing] the evidence or determin[ing] a fact in issue.'" State v. Nesbitt, 185 N.J. 504, 514 (2006) (quoting State v. Berry, 140 N.J. 280, 291 (1995)).

The Supreme Court recently reviewed the development of case law pertaining to expert testimony in a drug prosecution, State v. McLean, 205 N.J. 438, ___ (2011) (slip op. at 13-21), and it reconfirmed the limitations of such testimony to "relevant subject[s] that [are] beyond the understanding of the average person or ordinary experience, education, and knowledge." Id. at ___ (slip op. at 13) (quoting Odom, supra, 116 N.J. at 71). The Court expressly approved our holdings in State v. Baskerville, 324 N.J. Super. 245, 254-57 (App. Div. 1999), and State v. Singleton, 326 N.J. Super. 351, 354 (App. Div. 1999), which found error in expert testimony explaining a straight-forward hand-to-hand street sale of narcotics. McLean, supra, 205 N.J. at ___ (slip op. at 15).

Here, the testimony of Detective Zorzi improperly and unnecessarily told the jury that a person might conceal drugs to hide it from the police and others and, more important, that a person engaged in conduct associated with defendant's actions was selling cocaine and hiding his stash in the tan Chrysler.

The State argues that the hypothetical questions posed to Detective Zorzi conformed with those approved in State v. Summers, 176 N.J. 306 (2003). We agree that no error was committed in asking Detective Zorzi about the nature of so-called "dip sales" of rock cocaine, as compared to pre-packaged cocaine for sale, and that she properly could testify as to the value of the cocaine seized as relevant to the currency recovered from defendant's person. But the jury had no need to hear reinforcement from an expert that defendant's transaction with Lopez was a sale or that the additional 3.78 grams recovered from the Chrysler was possessed with intent to sell to others. That latter testimony of Zorzi was not based on the quantity or packaging of the cocaine but only an inference drawn from the transaction that was observed with Lopez and the absence of any evidence that defendant had paraphernalia on his person for personal use of the cocaine. The conclusions reached by the expert witness were inferences that the jury could accept or reject based on the factual evidence without the need for opinion testimony.

Because the trial was infused with prejudicial evidence, we are constrained to reverse defendant's conviction and remand to the trial court for a new trial. We need not address any additional issues raised by defendant.

R

eversed and remanded for a new trial.

1 The record before us does not disclose the charges or further proceedings against Billy McCallum. Juquan McCallum and Ricky Spruill were not arrested or charged.