STATE OF NEW JERSEY v. ALICIA WILLARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALICIA WILLARD, a/k/a ALICIA T. WILLARD,

ALICIA TINA WILLARD, ALICIA ADAMS,

Defendant-Appellant.

October 15, 2013

Submitted October 1, 2013 Decided

Before Judges Alvarez and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-10-1791.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief; Matthew Tallia, on the brief).

PER CURIAM

Following a July 2010 jury trial, defendant Alicia Willard appeals her conviction for third-degree possession of a controlled dangerous substance (CDS), specifically heroin, N.J.S.A.2C:35 10a(1) (count one); third-degree possession of CDS (heroin) with intent to distribute, N.J.S.A.2C:35 5a(1) and -5b(3) (count two); third-degree possession of CDS (heroin) with intent to distribute in a school zone, N.J.S.A.2C:35 5a and -7 (count three); and third-degree conspiracy, N.J.S.A.2C:35 5 and N.J.S.A.2C:5-2 (count four).

I.

On August 14, 2009, Lieutenant Paul Schuster of the New Brunswick Police Department's (NBPD) Anti-Crime Unit (ACU), was engaged in street surveillance in the area of Lee Avenue and Baldwin Street in New Brunswick. Schuster had positioned his surveillance vehicle on Baldwin Street, in close proximity to its intersection with Lee Avenue.

At around 6:00 p.m., Schuster observed (using binoculars) defendant and co-defendant, Patricia Jeter, approach a silver Honda and engage the driver in conversation. Schuster, who had taken part in several thousand narcotics investigations during his thirty-six years with the NBPD, observed Jeter reach into her pants and pull out what appeared to be a bundle of heroin packets. Jeter then passed the packets to the driver of the vehicle, who in turn passed cash to defendant. The silver Honda then drove away from the scene. Schuster and backup officers unsuccessfully attempted to locate and stop the vehicle, without success.

After meeting with his backup unit, Schuster returned to his original location to search the area for defendant and Jeter. In the interim, Schuster ascertained that both defendant and Jeter had outstanding arrest warrants. Around 8:00 p.m., Schuster and other members of the ACU observed that defendant and Jeter had returned to the same intersection where they had been observed earlier. Defendant and Jeter were then arrested, placed in a police van, and transported to police headquarters.

While being transported in the back of the van, Detective Joshua Alexander noticed that Jeter was squirming in her seat and attempting to reach into her pants. Alexander suspected Jeter was attempting to dispose of contraband, and he advised her to stop squirming. At headquarters, Jeter again began to squirm around, reached into her pants, and threw a bag on the ground containing seven packets of heroin.1 While searching defendant incident to his arrest, the police found $284 in cash.

Upon considering these proofs, on July 16, 2010, the jury found defendant guilty of all four counts of the indictment. Following an unsuccessful application to drug court, defendant was sentenced to an aggregate prison term of four years with a three-year period of parole ineligibility. This appeal ensued, in which defendant raises the following argument for our consideration:

POINT I

THE POLICE OFFICERS' OPINION TESTIMONY HERE IMPROPERLY INVADED THE PROVINCE OF THE JURY IN VIOLATION OF STATE V. McLEAN, 205 N.J. 438 (2011), AND WAS PLAIN ERROR. U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, 1, 9, 10 (Not Raised Below).

II.

In State v. McLean, supra, 205 N.J.at 460-63, decided on March 31, 2011, about ten months after defendant's trial,2the Supreme Court announced certain important restrictions upon the ability of prosecutors to present lay opinion testimony from police officers who have not been proffered by the State as expert witnesses. In McLean, the Court specifically considered testimony given by a police officer who had participated in an investigation that led to the defendant's prosecution for possession of CDS and possession of CDS with intent to distribute. Id. at 443-47. The officer testified that he had observed the defendant engage in two transactions, and in both instances some unidentified item had been exchanged for money. Id. at 443-44. Over defense counsel's objection, the prosecutor asked the officer, "[s]o based on your own experience sir, and your own training, what did you believe happened at that time?" Id. at 446. The trial court permitted the officer, who had not been qualified as an expert witness, to testify that, based on his experience, he believed he had observed a drug transaction. Ibid.

The Court held in McLean that the police officer's statement was inadmissible as a lay opinion, because it was an expression of a belief in the defendant's guilt and because it offered an opinion on matters that were not beyond the understanding of the jury. Id. at 463. See also N.J.R.E. 701 (confining admissible lay opinion testimony to opinions or inferences that are "(a) rationally . . . based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue"). The Court ruled that an officer testifying as a lay or fact witness may not testify about his belief that a transaction he witnessed was a narcotics sale. Id. at 461. "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. As the Court explained:

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.

[Id. at 460.]

The Court further noted in McLean that admissible fact testimony by a police officer cannot express what the officer "believed," "thought," or "suspected." Ibid. Only if a police officer is properly qualified as an expert witness may he or she give testimony explaining the implications of observed behaviors that may be beyond the understanding of an average juror. Id. at 460-61; see N.J.R.E. 702 (authorizing the admission of expert testimony by "a witness qualified as an expert by knowledge, skill, experience, training, or education").

As another key aspect of its analysis, the Court concluded in McLean that the references to the lay witness police officer's "training and experience, coupled with the request that he testify about his belief as to what had happened, impermissibly asked for an expert opinion from a witness who had not been qualified to give one." Id. at 462. Because of that harmful error, the Court reversed McLean's convictions of the intent-to-distribute offenses, but left intact his conviction of two possessory offenses. Id. at 463.

In the present case, defendant contends that Schuster's testimony constituted improper opinion testimony under McLean that a narcotics transaction had taken place involving defendant, Jeter, and the driver of the silver Honda. We disagree.

According to McLean, if the officers testified to witnessing a hand-to-hand transaction without characterizing it as a narcotics transaction, the testimony would have been permissible. Id. at 460. That is precisely what occurred here. The prosecutor did not attempt to qualify Schuster as an expert witness. Nor did the prosecutor ask Schuster to express a belief in defendant's guilt by opining that the hand-to-hand transaction constituted a "narcotics transaction," as occurred in McLean. Rather, on direct examination, Schuster was merely asked to describe what he had personally observed. While defendant focuses his argument on that portion of Schuster's testimony that he "believed" what he observed Jeter hand the driver "to be heroin," it is clear from a reading of the trial transcript that Schuster's belief was predicated on his own personal observations. Unlike McLean, where the officer testified that he observed the exchange of money for some small unidentified item, here Schuster specifically testified "I could see the heroin being passed by Miss Jeter into the driver. I saw the cash coming out to Miss Willard."

In McLean, the Court explained prejudice as follows: "[W]hen the expert offers an opinion that a drug transaction occurred [,] he crosses the line of permissibility and contaminates all related proofs with prejudicial qualities not easily cured." Id. at 452 (quoting State v. Singleton, 326 N.J. Super. 351, 354 (App. Div. 1999)).

In the present case, in contrast to McLean, the prosecutor did not seek to elicit an opinion from Schuster as to whether he believed defendant and Jeter engaged in a drug transaction with the driver of the silver Honda. Rather, it was defense counsel who, on cross-examination, elicited such opinion:

Q. [Defense Counsel]: When you saw this transaction occur, [] which you believe to be a drug transaction, at that point, in your mind, you had probable cause to arrest Miss Willard and Miss Jeter; is that correct?

A. [Schuster]: Yeah.

To the extent that there was any error, we conclude that defense counsel, who did not object to Schuster's testimony on direct examination, invited this error on cross-examination. State v. Harper, 128 N.J. Super. 270, 277 (App. Div.) ("Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal."), certif. denied, 65 N.J. 574 (1974). Applying the invited error doctrine to criminal matters "is designed to prevent defendants from manipulating the system." State v. Jenkins, 178 N.J. 347, 359 (2004).

Defendant further contends that Alexander's testimony that he believed Jeter was trying to hide something in the van, based on his training and experience, also constituted improper opinion testimony. Here, we again note that Alexander's testimony was based on his own personal observations of Jeter squirming in the back of the police van. We further note that defendant's trial counsel also did not object to this testimony. This omission is perhaps understandable because McLean had not yet been decided. Nevertheless, because defendant failed to object,consequently defendant must demonstrate plain error, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotations omitted); see also State v. Daniels, 182 N.J. 80, 95, (2004); Macon, supra, 57 N.J. at 333; R. 2:10-2. See also State v. Sharpless, 314 N.J. Super. 440, 456 (App. Div.) (holding that defendant waived any potential objection by not objecting to the detective's testimony at trial), certif. denied, 157 N.J. 542 (1998), overruled on other grounds by State v. Richards, 351 N.J. Super. 289, 303 (App. Div. 2002).

Given Schuster's testimony that he personally observed Jeter hand heroin to the vehicle's driver, who in turn handed cash to defendant, Jeter's continued squirming upon her arrival at police headquarters, followed by her throwing a bag containing seven packets of heroin on the floor, and the discovery of $284 in cash on defendant, we find any error in Alexander's testimony harmless, and conclude that a new trial is not warranted under the plain error standard.

1 At trial, the evidence seized was stipulated to be heroin.

2 The State does not argue that the Court's holding in McLean should not be given retroactive application. In any event, since we determine that the holding in McLean was not violated here, we need not consider whether that holding should apply retroactively.