STATE OF NEW JERSEY v. JEFFREY GUNNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4589-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEFFREY GUNNER,

Defendant-Appellant.

_____________________________

December 14, 2011

Submitted November 28, 2011 - Decided

Before Judges Sabatino, Ashrafi and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-05-1655.

Joseph E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction for third-degree conspiracy to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1).1 The judge sentenced defendant to five years in prison with two years of parole ineligibility. The central question is whether the admission of trial testimony of the investigating state trooper violated the prohibition explained in State v. McLean, 205 N.J. 438, 461 (2011), precluding a police witness not qualified as an expert from testifying that he believed he observed a hand-to-hand drug transaction. Because the New Jersey Supreme Court decided McLean while defendant's appeal was pending, we remand for the trial judge to consider whether McLean applies, and if so, to address the merits of defendant's argument that he is entitled to a judgment of acquittal because the trooper rendered inadmissible lay opinion testimony.

Trooper Joseph Walters testified on direct examination that he conducted surveillance in an area that had a history of violence and drug activity. He observed defendant standing on a street corner and a man, "a seller," standing across the street, "almost diagonal to each other." A female "buyer" approached defendant and exchanged what appeared to be currency. Defendant then pointed to the man across the street, who walked to an abandoned building out of the trooper's view. The man returned to the intersection and gave the woman an object, which "appeared to be drugs." On direct examination, without any objection, the following exchange occurred:

Prosecutor: Okay. Based on what you saw, what do you believe happened?

Trooper: A drug transaction.

Prosecutor: Okay, and what -- how would you characterize [defendant's] participation in that?

Trooper: What we refer to as a director, as not necessarily personally touching the drugs[,] but it's directing that activity[,] and not in this case but a lot of times there's [sic] lookouts and stuff like that[,] and it's all part of the big conspiracy of it.

Prosecutor: And isn't that unusual to have more than one person working a drug area?

Trooper: Almost always especially in what we consider a drug set.

. . . .

Prosecutor: Now after you saw the interaction between the . . . female and the other gentleman on the corner, what did you do?

Trooper: At that point I believe what I saw was a drug transaction and I alerted via radio to the unmarked units who were close by[.]

The police then arrested defendant, seized $120 in cash from him, and located twenty small bags of cocaine underneath a rock in the snow near the abandoned building.

At trial, the State relied heavily on the testimony from Trooper Walters, who was not presented as an expert witness despite his background. Trooper Walters testified that he had eight years of training and experience in narcotics, has performed about twenty to thirty drug arrests, and was familiar with the area under surveillance because he made at least ten arrests at that location. The State also relied on the testimony from two other officers. No other witnesses were produced during the trial.

After the State rested, defendant moved for a judgment of acquittal pursuant to Rule 3:18-1. The judge denied the motion after giving all inferences in favor of the State. After the jury convicted him, defendant moved for a judgment of acquittal notwithstanding the verdict (JNOV), pursuant to Rule 3:18-2, which the judge denied.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S MOTION FOR ACQUITTAL PURSUANT TO R. 3:18-1.

POINT II

THE COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL MADE AFTER THE GUILTY VERDICT FOR CONSPIRACY.

POINT III

THE COURT ERRED BY DENYING DEFENDANT'S PRE TRIAL MOTION TO EXCLUDE FROM EVIDENCE THE COCAINE FOUND DURING HIS ARREST.

POINT IV

THE SENTENCE IMPOSED BY THE TRIAL COURT WAS UNDULY EXCESSIVE.

After considering the record and briefs, we conclude that the arguments advanced by defendant are "without sufficient merit to warrant discussion in a written opinion." Rule 2:11-3(e)(2). We focus, however, on defendant's contention raised for the first time on appeal that Trooper Walters' testimony violated the holding in McLean.2

In the context of a drug distribution scheme, the New Jersey Supreme Court acknowledged "the boundary line that separates factual testimony by police officers from permissible expert opinion testimony." McLean, supra, 205 N.J. at 460. Recognizing certain existent and general principles of law, Justice Hoens stated:

On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. See, e.g., [State v. ]Nesbitt, . . . 185 N.J. [504,] 516, 888 A.2d 472 [(2006)]; [State v. ]Baskerville, . . . 324 N.J. Super. [245,] 254-57, 735 A.2d 39 [(1999)]. Fact testimony has always consisted of a description of what the officer did and saw, including, for example, that defendant stood on a corner, engaged in a brief conversation, looked around, reached into a bag, handed another person an item, accepted paper currency in exchange, threw the bag aside as the officer approached, and that the officer found drugs in the bag. See Nesbitt, supra, 185 N.J. at 516, 888 A.2d 472. Testimony of that type includes no opinion, lay or expert, and does not convey information about what the officer "believed," "thought" or "suspected," but instead is an ordinary fact-based recitation by a witness with first-hand knowledge. In Nesbitt, we concluded that such testimony sets forth facts that are not so outside the ken of jurors that they need an expert to spell out for them whether that defendant engaged in a criminal transaction and that offering an expert in those circumstances would be improper. Id. at 514-15, 888 A.2d 472.

On the other side of the line, we have permitted experts, with appropriate qualifications, to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury. See, e.g., [State v. ]Berry, . . . 140 N.J. [295,] 293-95, 658 A.2d 702 [(1995)]; [State v. ]Odom, . . . 116 N.J. [65,] 76, 560 A.2d 1198 [(1989)]. Therefore, an expert may explain the roles played by multiple defendants in a drug distribution scheme and may offer an opinion about the implications of the behavior that was observed by the fact witness. See Nesbitt, supra, 185 N.J. at 515, 888 A.2d 472; Berry, supra, 140 N.J. at 302-04, 658 A.2d 702. Similarly, an expert may explain the significance of quantities of narcotics or its distinctive packaging, which are matters that would not otherwise be known by an average juror. See Odom, supra, 116 N.J. at 76, 560 A.2d 1198.

[Id. at 460-61.]

In McLean, the State argued that there is a category of testimony that "lies between those two spheres, governed by the lay opinion rule, that authorizes a police officer, after giving a factual recitation, to testify about a belief that the transaction he or she saw was a narcotics sale." Id. at 461. The Court disagreed and stated:

Were we to adopt that approach, we would be transforming testimony about an individual's observation of a series of events, the significance of which we have previously held does not fall outside the ken of the jury, see Nesbitt, supra, 185 N.J. at 514-15, 888 A.2d 472, into an opportunity for police officers to offer opinions on defendants' guilt. To permit the lay opinion rule to operate in that fashion would be to authorize every arresting officer to opine on guilt in every case.

[Ibid.]

Because the Court decided McLean after defendant filed his appeal, defendant did not argue to the trial judge that Trooper Walters' testimony was inadmissible lay opinion testimony. As a result, we remand and direct that the judge determine within sixty days whether McLean applies, and if so, to address the merits of defendant's argument that he is entitled to a JNOV. If the judge applies McLean and concludes that inadmissible lay opinion testimony was admitted, then we invite the judge to determine the consequence of that admission, including whether it warrants a new trial. Either party may then file an appeal from that determination.

Affirmed in part; remanded in part. We do not retain jurisdiction.

1 The jury acquitted defendant of third-degree possession of CDS, N.J.S.A. 2C:35-10a(1); third-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); and third-degree possession with intent to distribute a CDS within 1,000 feet of a school, N.J.S.A. 2C:35-7.

2 On October 20, 2011, defense counsel filed a supplemental brief contending for the first time that Trooper Walters' testimony violated the holding in McClean. The State filed a responsive brief, attempted to distinguish McLean, and contended that even if Walters' testimony was improper, it did not constitute plain error.