STATE OF NEW JERSEY v. GEOVANNY SALAS-VIZCIANO

NOT FOR PUBLICATION WITHOUT THE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.

GEOVANNY SALAS-VIZCIANO,

Defendant-Appellant.

____________________________________________________

Submitted May 13, 2014 Decided May 27, 2014

Before Judges Fisher and O'Connor.

On appeal from the Superior Court of New Jersey,Law Division,Union County, Indictment No. 09-12-1080.

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

Grace H.Park, ActingUnion County Prosecutor, attorney for respondent (Ann R. Rubin, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

At the conclusion of a three-day trial, defendant was convicted of drug distribution offenses. We reverse and remand for a new trial because: the prosecutor was permitted, over defendant's objection, to elicit a police officer's opinion regarding the credibility of the defense theory; defendant was prohibited from eliciting testimony that suggested the guilt of another person; and the prosecutor's summation intimated there was information outside the record of defendant's guilt.

Defendant was indicted and charged with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), second-degree CDS possession with the intent to distribute, N.J.S.A. 2C:35-5, and third-degree CDS possession in a school zone with the intent to distribute, N.J.S.A. 2C:35-7. At trial, the State presented the testimony of Detective Athanasi Mikros and Sergeant Todd Kelly, as well as the State's expert, Detective Brendan Sullivan. This testimony revealed that, on July 9, 2009, at approximately 4:30 p.m., Detective Mikros was driving in what he described as a "high crime" area in Elizabeth when he observed defendant enter a Chevrolet Impala and drive from Elizabeth Avenue to East Jersey Street, whereupon the codefendant entered the vehicle. Defendant then drove off and did not stop until reaching a location on Zamorski Drive that Detective Mikros acknowledged was "on the very very outside edge of a 1000-foot school zone." Detective Mikros, who was in possession of a search warrant, pulled up behind defendant's vehicle and called other officers to converge as well, for purposes of executing the search warrant.

Detective Mikros testified that two cellphones were found in defendant's possession and another in the vehicle's center console. Defendant also had in his possession $33 in cash, as well as a torn, unusuable $50 bill; defendant did not have on his person any drugs or drug paraphernalia. One of the other responding officers, Sergeant Kelly, located a "trap" a secret compartment underthe vehicle's dashboard where the airbag would normally be found. Sergeant Kelly used tools to wedge open the trap and therein found two sandwich bags containing what later proved to be cocaine as well as a small digital scale. Nofingerprints wereobtained fromthe baggies or the scale. Defendant's home was later searched; no contraband was found.

Neither defendant nor codefendant testified or called any witnesses. The jury acquitted the codefendant of all charges and convicted defendant of all charges. After appropriate mergers, the judge sentenced defendant on the second-degree CDS conviction to an eight-year prison term subject to a thirty-month period of parole ineligibility.

Defendant appeals, arguing:

I. THE QUESTION POSED TO THE STATE'S EXPERT WITNESS WHICH ASKED, IN NON-HYPOTHETICAL FORM, WHETHER THE EXPERT HAD EVER SEEN A PERSON IN THE CIRCUMSTANCES OF THIS CASE WHO WAS NOT AWARE THAT THERE WAS COCAINE SECRETLY HIDDEN IN A COMPARTMENT IN HIS CAR SERVED TO DENY DEFENDANT A FAIR TRIAL BY HAVING THE EXPERT OFFER AN OPINION, IN THE WRONG FORM, ABOUT A TOPIC THAT WAS NOT BEYOND THE KEN OF THE AVERAGE JUROR, AND WHICH WAS BEYOND THE STATED EXPERTISE OF THE WITNESS.

II. THE JUDGE IMPROPERLY PRECLUDED DEFENDANT FROM INTRODUCING TESTIMONY REGARDING THIRD-PARTY GUILT SPECIFICALLY THAT THE STATE HAD ACCUSED THE PRIOR OWNER OF THE VEHICLE OF FIRST-DEGREE DRUG DISTRIBUTION, A MATTER WHICH SIGNIFICANTLY BOLSTERED DEFENDANT'S CLAIM THAT, AS SOMEONE WHO HAD ONLY OWNED THE CAR FOR A FEW MONTHS, DEFENDANT HAD NO IDEA THAT COCAINE WAS STASHED INSIDE A SECRET COMPARTMENT IN THE CAR.

III. THE STATE'S REFERENCES TO THE EXISTENCE OF A SEARCH WARRANT FOR THE DEFENDANT'S CAR WERE REVERSIBLE ERROR IN LIGHT OF THE PROSECUTOR'S ARGUMENT TO THE JURY THAT "COMMON SENSE" SHOULD LEAD THE JURY TO CONCLUDE THAT POLICE DID NOT APPROACH DEFENDANT THAT DAY ON A WHIM OR AS A MATTER OF "COINCIDENCE," THEREBY IMPLYING THAT INFORMATION OUTSIDE THE RECORD SUPPORTED A FINDING OF GUILT (Not Raised Below).

We find merit in all these arguments and reverse and remand for a new trial.

I

Detective Sullivan was called to testify, pursuant to his expert report, that the cocaine concealed in defendant's vehicle was possessed with the intent to distribute and not for mere personal use. Defendant did not object and does not now challenge the admissibility of the opinion rendered in response to the hypothetical question that mirrored the facts of the case. Defendant did object and does argue on appeal, however, that he was prejudiced by an inappropriate question and answer that preceded the hypothetical question.

As relevant to this argument on appeal, the following transpired at trial during the prosecutor's examination of Detective Sullivan:

Q. Have you ever seen a case in which someone owned a vehicle, had a trap in a vehicle, had over 100 grams of cocaine in the trap

[DEFENSE COUNSEL]: Judge, objection.

Q. in addition to the cocaine.

[DEFENSE COUNSEL]: Pure speculation.

THE COURT: Prosecutor, what's the basis? This is not hypothetical.

[ASSISTANT PROSECUTOR]: It's not a hypo-thetical. It's just I'm going to his exper-ience. I'm just asking him the experience in the case.

THE COURT: I m going to allow it.

[ASSISTANT PROSECUTOR]: I'll start over.

Q. Have you ever seen a case in which a person ow[n]ed a vehicle, had a trap in the vehicle, had over 100 grams of cocaine in the trap. Along with that they had a digital scale in that trap and that person did not know that those items were there; the trap, the drugs, or the scale?

A. I have never experienced that, no.

In this appeal, defendant argues that this examination was "outrageous," and the State "concedes that the prosecutor should not have asked" this question.

In essence, the question sought Detective Sullivan's opinion about the value of defendant's factual position in the case that he had only recently obtained ownership of the vehicle and did not know drugs were concealed therein. We agree that the judge erred in overruling defendant's objection and in permitting this testimony. The State argues, however, that when similar questions were put to Detective Sullivan later during the elicitation of his expert opinion, the judge sustained defendant's objections and properly instructed the jury to confine its understanding of Detective Sullivan's responses to whether an individual possessing such items "would have them for his personal use or would have them for the intent to distribute them." In the State's view, these later circumstances negated any prejudice caused by the earlier pre-hypothetical answer that is the subject of this appeal. We disagree.

The later sustained objections and the judge's instruction related to the scope of the hypothetical questions and the answers given to those questions by Detective Sullivan. The judge did not then, or ever after, refer to the earlier testimony of which defendant complains. Moreover, the earlier improper testimony was designed to go to the heart of defendant's theory that defendant had only recently obtained the vehicle and did not know drugs were concealed within. We reject the State's suggestion that the question and answer conceded by the State to be improper should be excused in these circumstances. The testimony in question exceeded the proper bounds of expert testimony in these circumstances, see State v. Baskerville, 324 N.J. Super. 245, 257 (App. Div. 1999), and was capable of producing an unjust result.1

II

In his second point, defendant argues that the trial judge erroneously precluded testimony regarding the prior owner of defendant's vehicle. We agree that defendant should have been permitted to offer this evidence, which tended to suggest the guilt of some other person.

During the cross-examination of Detective Mikros, defense counsel asked about a motor-vehicle abstract which showed defendant had only owned the vehicle for a few months prior to the search and arrest in question. Examination outside the presence of the jury established that the vehicle's title was transferred to defendant on February 3, 2009, and that the prior owner was, at the time of trial, under indictment for first-degree CDS offenses. Defendant sought to place this information before the jury in arguing that the trap in the vehicle, and the drugs concealed within, could have been there prior to the vehicle's transfer to him. Although defendant would likely have been put to the task of engaging additional evidentiary mechanics to put these facts before the jury, the judge foreclosed that opportunity, concluding that the third-party-guilt theory to which these facts would be relevant that the jury might reasonably doubt defendant's guilt because there was a likelihood that the CDS in the trap belonged to the prior owner was, in the judge's words, "sheer speculation." We find this conclusion to be erroneous.

Defendant's third-party-guilt theory was not speculative. The circumstances that supported the theory not only included the transfer of the vehicle to defendant five months earlier. Defendant sought to enhance that theory by reference to the fact that the same prosecutor who sought his conviction had taken the position and so convinced a grand jury that the prior owner was a drug trafficker.

An accused is constitutionally entitled to prove his innocence, or persuade the fact finder of a reasonable doubt about his guilt, by suggesting someone else committed the crime charged. State v. Jiminez, 175 N.J. 475, 486 (2003); see also State v. Koedatich, 112 N.J. 225, 297 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). As explained years ago by Chief Justice Weintraub, "[i]t would seem in principle to be sufficient if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case." State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960). To be admissible, this evidence of another's guilt need not be conclusive, and it "need not [constitute] substantial proof of a probability that the third person committed the act." Jiminez, supra, 175 N.J. at 486. On the other hand, the theory cannot be speculative. Instead, "[s]omewhere in the total circumstances there must be some thread capable of inducing reasonable men to regard the event as bearing upon the State's case." Sturdivant, supra, 31 N.J. at 179 (quoted with approval in Jiminez, supra, 175 N.J. at 487).

Here, defendant sought to buttress his argument to the jury that there was a reasonable doubt about his guilt with evidence that he had only recently come into possession of the vehicle, that the CDS was hidden in a trap inside the vehicle, and that the CDS belonged to the prior owner. This theory was not speculative. Nothing but ownership of the vehicle tied defendant to the CDS. No fingerprints were lifted from the baggies containing the CDS or the scale found in the trap. No witness for the State testified that either defendant or his companion at the time were observed engaging in a CDS transaction. Defendant had only a small amount of cash on his person when arrested. Additional testimony revealed that a search of defendant's residence uncovered no contraband. The fact that the prior owner was under indictment for CDS distribution enhanced the "thread" between this theory of third-party guilt and the testimony defendant sought to elicit from the officer. Defendant's theory was far from speculative; in the language of Sturdivant, the theory, which would have been more fully illuminated by the testimony in question, had a "rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case." 31 N.J. at 179.

III

In his third point, defendant argues that the references to the existence of a warrant to search defendant's vehicle, when considered in the context of the prosecutor's summation, implied to the jury that there was information outside the record to support a finding of guilt.

As defendant recognizes, this argument was not urged in the trial court. On more than one occasion, the jury heard from witnesses that the police were armed with a warrant to search defendant's vehicle. There were no objections. In addition, when the prosecutor again referenced this circumstance during his summation, defense counsel did not object. Notwithstanding, we agree with defendant particularly in light of the other contentions on appeal already discussed that a new trial is warranted because the summation brazenly suggested the existence of other information outside the record that supported the charges when the prosecutor argued:

Was this all just one big coincidence? Was this an arbitrary stop that day? Did you hear the police say they just picked a name out of a hat and say hey let's go after these guys? You didn't hear that. What did we talk about when we first met? Common sense.

Whether a reference to a search warrant is capable of producing an unjust result is not a novel issue. In State v. McDonough, 337 N.J. Super. 27, 32-33 (App. Div.), certif. denied, 169 N.J. 605 (2001), we recognized that our earlier decisions found that such a reference requires a new trial. See State v. Alvarez, 318 N.J. Super. 137, 145-48 (App. Div. 1999); State v. Milton, 255 N.J. Super. 514, 520 (App. Div. 1992). We observed in McDonough, however, that the Supreme Court had rejected application of a per se rule in State v. Marshall, 148 N.J. 89, 239-40, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). McDonough, supra, 337 N.J. Super. at 32-33. Ultimately, as we observed, whether a new trial is required in such a circumstance turns not just on whether there was a mention of a warrant but whether the evidence of, or counsel's argument about, a warrant had a tendency to imply that the State had presented evidence to the warrant-issuing judge that convinced that judge the defendant was likely to be in possession of contraband. Id. at 34.

Although the testimony here, which included references to a search warrant for defendant's vehicle, may not have directly suggested the existence of evidence of defendant's guilt outside the record, certainly the prosecutor's summation tied it all together, calling upon the jury to use its common sense in considering whether the police just coincidentally decided to stop defendant's vehicle that day. Undoubtedly, the prosecutor's argument was intended to suggest to the jury that there was other evidence outside the record which suggested defendant's guilt.2

We lastly note and the State does not argue to the contrary that there is nothing in the judge's final instructions to the jury that would have negated the potential prejudicial effect of the jury's assumption that the existence of a search warrant for defendant's vehicle meant that the issuing judge had come to the conclusion that defendant was in possession of contraband or that there was some other evidence, outside the record, to further suggest defendant's guilt.

IV

Because we are satisfied the three circumstances urged by defendant in this appeal collectively prejudiced his right to a fair trial, we need not determine whether they would prompt that same result when considered in isolation.

Reversed and remanded for a new trial.

1It is also important to recognize that this troubling question and answer occurred during a very brief trial. That is although the trial actually spanned three days this and all other testimony, all three closing statements, and the jury charge, occurred in a single day.

2We note also that Detective Mikros, who identified himself as working in the Narcotics Bureau, testified early in direct examination that he was "familiar" with defendant, having seen him "[t]hirty times" before. Without further explanation, the jury was left free to speculate aided by the prosecutor's summation that this stop of defendant's vehicle was no coincidence as to why this narcotics detective may have seen defendant so many times before.