STATE OF NEW JERSEY v. PETER E. LITTLE
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2447-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PETER E. LITTLE, a/k/a LITTLE
PETER, and LITTLE PETE,
Defendant-Appellant.
______________________________
Submitted April 10, 2018 – Decided May 22, 2018
Before Judges Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Cape May County, Indictment No.
15-11-0902.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alyssa A. Aiello, Assistant
Deputy Public Defender, of counsel and on the
brief).
Jeffrey H. Sutherland, Cape May County
Prosecutor, attorney for respondent (Gretchen
A. Pickering, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant Peter E. Little appeals from his conviction for
third-degree possession of a controlled dangerous substance,
N.J.S.A. 2C:35-10(a)(1) (two counts) and third-degree possession
of CDS with intent to distribute,
N.J.S.A. 2C:35-5(a)(1), -5(b)(3)
(one count), arguing:
POINT I
NO EXCEPTION TO THE WARRANT REQUIREMENT
JUSTIFIED THE STATIONHOUSE SEARCH OF THE BAG,
WHICH DEFENDANT WAS PREVENTED FROM GIVING TO
HIS FRIEND BEFORE HE WAS ARRESTED ON MUNICIPAL
WARRANTS AND TAKEN TO THE POLICE STATION.
A. THE INVENTORY OF DEFENDANT'S BAG DID
NOT MEET THE STANDARD FOR A VALID
INVENTORY SEARCH, AND WAS CONDUCTED AS
PRETEXT FOR AN INDISCRIMINATE SEARCH.
B. THE INVENTORY OF DEFENDANT'S BAG WAS
NOT VALID AS A SEARCH INCIDENT TO ARREST.
POINT II
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION TO SUPPRESS STATEMENTS.
POINT III
THE DRUG EXPERT'S TESTIMONY ON THE ULTIMATE
ISSUE OF INTENT VIOLATED DEFENDANT'S RIGHTS
TO DUE PROCESS AND A FAIR TRIAL, AND WAS
CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT.
POINT IV
IMPROPER COMMENTS MADE BY THE PROSECUTOR IN
SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY AND
DEPRIVED DEFENDANT OF A FAIR TRIAL.
2 A-2447-16T4
POINT V
[THE] TRIAL COURT DID NOT ADEQUATELY EXPLAIN
ITS DECISION TO IMPOSE THE MAXIMUM EXTENDED
BASE TERM AND MAXIMUM PERIOD OF PAROLE
INELIGIBILITY.
We agree the admission of the expert's testimony, compounded by
the assistant prosecutor's comments thereon during summation,
warrant reversal and a remand for a new trial.
I
As Wildwood police officers John Dadura1 and Andrew Kolimaga
approached defendant with the intent to arrest him on two
warrants,2 defendant attempted to hand a black plastic bag he was
carrying to a man with whom he had been walking. An on-the-scene
pat-down search revealed a tin foil pipe in the right-side pocket
of defendant's pants. En route to the police station, defendant
initiated a conversation with the officers and admitted to having
"dope" in his bag. Kolimaga searched the bag at the station,
finding heroin, Suboxone, suspected cocaine, and other items.
Although the trial judge upheld the search of the bag as an
inventory search following defendant's lawful arrest, defendant's
1
Dadura is also referred to as Dedora in parts of the record.
2
Kolimaga testified he did not know details about defendant's
warrants but stated he later learned "the warrant was for failure
to appear."
3 A-2447-16T4
current arguments that it was neither a valid search incident to
arrest nor a valid inventory search were not made to the judge.
Defendant challenged the search only as the product of an unlawful
arrest. His counsel explained:
With respect to the suppression component, the
defense isn’t taking issue necessarily with
whether an inventory search is good incident
to a lawful arrest. I think that that is, as
[the assistant prosecutor] put it, well
settled. Our issue is whether or not the
officer at the time of the arrest had a good-
faith basis to make the arrest and whether
that arrest is lawful as a result.
We will not consider the propriety of the arrest because that
issue was not included in defendant's appellate brief, State v.
Amboy Nat'l Bank Account No. XXX-XXXX-2,
447 N.J. Super. 142, 148
n.1 (App. Div.), certif. denied,
228 N.J. 249 (2016); we also
decline to consider defendant's arguments raised for the first
time on appeal concerning the propriety of the bag search, State
v. Robinson,
200 N.J. 1, 20 (2009). The State has the burden of
proving that such searches and seizures are "justified by one of
the '"well-delineated exceptions" to the warrant requirement.'"
State v. Shaw,
213 N.J. 398, 409 (2012) (quoting State v. Frankel,
179 N.J. 586, 598 (2004)). Defendant's limited argument to the
motion judge prevented the State from fully developing the warrant
exceptions now the subject of defendant's arguments.
4 A-2447-16T4
II
Defendant's admission to the officers that he possessed
"dope," made while en route to the stationhouse, and prior to the
administration of Miranda3 warnings, was – as the judge found –
captured on the patrol car's MVR.4 The conversation appears in an
uncertified transcript provided by the parties5:
[DEFENDANT]: Please sir, isn’t it, shit man,
please sir.
OFFICER ONE: (Inaudible)
OFFICER TWO: Yeah.
OFFICER ONE: Can you see what it's for?
OFFICER TWO: No
[DEFENDANT]: Is it something small? What if
I, I get in trouble for with the stuff I have
on me, I'm ain't gonna lie, it's not mine, I
just picked it up for someone, just doing a
favor.
OFFICER TWO: (Inaudible)
[DEFENDANT]: Huh?
OFFICER ONE: (Inaudible) I'm sorry what you
say Peter?
3
Miranda v. Arizona,
384 U.S. 436, 444 (1966).
4
MVR is an acronym for mobile video recording.
5
Both parties quoted portions of the recoding in their merits
briefs. We were not provided with the MVR.
5 A-2447-16T4
[DEFENDANT]: I have stuff in that bag is not
mine but I
OFFICER ONE: Oh what is it?
[DEFENDANT]: It's a, it's dope.
OFFICER ONE: Alright.
[DEFENDANT]: Am I gonna get another charge and
be stuck here?
OFFICER ONE: We'll deal with that when we get
out, I gotta see what you got.
OFFICER ONE: Alright.
[DEFENDANT]: It's a couple of bags of dope
and.
OFFICER ONE: It looks like failure to appear
warrant.
[DEFENDANT]: Oh please all this for that.
Please is there anyway.
OFFICER ONE: (Inaudible) The dispatch is
running
OFFICER TWO: The dispatch is running. They
executed the warrant.
OFFICER ONE: Okay 10-4
[DEFENDANT]: Please sir can you just at least
throw that, it's not even mine, I just I was
being stupid I tried to help somebody out.
OFFICER ONE: Once we get back to the station,
I'll see what's in there we'll, we'll do what
we can.
[DEFENDANT]: I understand, please.
OFFICER ONE: (Inaudible)
6 A-2447-16T4
[DEFENDANT]: I'll help you out whatever I you
got to do bro, It's not a, It's not a problem,
I just got jammed up, I did somebody a favor.
I'm sorry I must drive yous crazy. It means
I'm going to County right.
OFFICER ONE: Eight-five-three back door
available? Thank you
[DEFENDANT]: Will I be able to pay the warrant
myself?
OFFICER ONE: Ah is it payable?
OFFICER TWO: ah this is just an NCI
OFFICER ONE: I don't know yet, we don't have
the full details of it.
[DEFENDANT]: Please, can you's please work
with me, like I said I, I don't care what I
have to do, I'm tryna stay out of trouble.
OFFICER ONE: We'll see, we'll let you make a
separate call to see if you can get the bail
for it.
[DEFENDANT]: Is it expensive though.
OFFICER ONE: Ah I don't know.
[DEFENDANT]: Please I beg you, like I said,
I'm tryna stay out of trouble.
OFFICER ONE: Yeah once we get in I'll print
out all the paperwork I'll see what's going
on.
[DEFENDANT]: Please!
OFFICER ONE: What's going on?
The trial judge found the statement was volunteered by
defendant in a probable attempt to "mitigate any further police
involvement," and the officers "had perhaps what I would call half
7 A-2447-16T4
an ear as to what [defendant] was actually saying in the back [of
the patrol car]. . . . This was not an . . . interrogation by
Officer Kolimaga or Officer [Dadura]." The judge concluded Miranda
warnings were not required "because it was not an interrogation."
When reviewing a trial judge denial of a motion to suppress
a defendant's statements, we must "engage in a 'searching and
critical' review of the record." State v. Hreha,
217 N.J. 368,
381-82 (2014) (quoting State v. Pickles,
46 N.J. 542, 577 (1966)).
We defer to findings supported by sufficient credible evidence in
the record, particularly when they are grounded in the judge's
feel of the case and ability to assess the witnesses' demeanor and
credibility. Robinson,
200 N.J. at 15; State v. Elders,
192 N.J.
224, 243-44 (2007). This standard of review applies even when the
motion judge's "factfindings [are] based solely on video or
documentary evidence," such as recordings of custodial
interrogations by the police. State v. S.S.,
229 N.J. 360, 379
(2017). We will not reverse a motion judge's findings of fact
based on his or her review of a recording of a custodial
interrogation unless the findings are clearly erroneous or
mistaken. Id. at 381. We review issues of law de novo. Id. at
380; Shaw,
213 N.J. at 411.
We agree with the trial judge that defendant initiated the
conversation with the officers. Contrary to defendant's
8 A-2447-16T4
contention, Kolimaga's question – "Oh what is it?" – was not, in
the context of the exchange, one that he should have known to be
"reasonably likely to elicit an incriminating response" so as to
render it the "functional equivalent" of an interrogation. See
Rhode Island v. Innis,
446 U.S. 291, 301 (1980); State v. Mallozzi,
246 N.J. Super. 509, 514-16 (App. Div. 1991); State v. Ward,
240 N.J. Super. 412, 417-19 (App. Div. 1990).
The record supports the judge's finding that the officers
were not paying full attention to defendant when he first spoke;
they were engaged in an unrelated matter and did not address
defendant – who had yet to even mention the bag – until Kolimaga6
asked defendant, "I'm sorry[,] what [did] you say Peter?" That
question effectively began the conversation; so the first
statement made by defendant and heard by the officers was, "I have
stuff in that bag [that] is not mine but I." Defendant did not –
to that point – clearly say that he had anything incriminating in
the bag. His claim that the contents were not his, when considered
with his prior attempt to hand the bag to the man he was with
prior to his arrest, does not present a circumstance where
Kolimaga's question was reasonably likely to elicit an
incriminating response as that given by defendant – "it's dope."
6
We surmise Kolimaga is identified as Officer One in the
transcript because that officer asked, "Oh what is it?"
9 A-2447-16T4
Tellingly, the officers never asked defendant another question
about the bag or its contents.
The judge correctly denied the motion to suppress defendant's
statement as it was not the product of police interrogation.
III
The State's expert in narcotics investigation and
distribution testified on direct examination, without objection:
Q. . . . . Did you have a chance to watch the
MVR recording in this case?
A. Yes.
Q. And did you have a chance to review either
the statements made on the recording or review
the transcript that had the statements of
[defendant] on that recording?
A. Yes.
Q. One, both?
A. I actually watched the video.
Q. In the video, the MVR, [defendant]
indicates that the drugs were not his; do you
recall that?
A. Yes.
Q. And that he is doing a favor for a friend,
and he just got caught doing that?
A. Yes.
Q. Did you make any interpretations from those
statements with regard to his — potentially
the possession of drugs or possession with the
intent to distribute the drugs?
10 A-2447-16T4
A. Yes. I mean, from that statement, it sounds
like he had the drugs with the intent to go
distribute them to somebody.
Q. In your experience during the course of
your investigation, have you seen essentially,
people who are drug users who also sell drugs?
A. Yes.
Q. Have you seen people who are what's called
drug couriers?
A. Yes.
Q. Could you tell the jury what a drug courier
would be?
A. Drug courier is somebody that would help
facilitate the distribution of drugs by,
essentially, taking a large amount of drugs
from a drug dealer to deliver it to another
area or another person and give that to them
and collect the money for them.
We review defendant's contention that the expert's testimony
denied him due process rights and a fair trial under the plain
error standard and will reverse only "if the error is 'clearly
capable of producing an unjust result.'" State v. Rose,
206 N.J.
141, 157 (2011) (quoting R. 2:10-2).
We have grave doubts whether the expert's testimony
interpreting defendant's statement is even within the realm of his
expertise. In any event, contrary to the State's argument that
the expert's interpretation of defendant's statement just
"[a]rguably . . . treads upon the prohibition" in State v. Cain,
that type of testimony plainly contravened our Supreme Court's
11 A-2447-16T4
prohibition against the State's use of expert testimony as evidence
of a defendant's state of mind.
224 N.J. 410, 429 (2016). The
Court explained:
[A]n expert is no better qualified than a
juror to determine the defendant's state of
mind after the expert has given testimony on
the peculiar characteristics of drug
distribution that are beyond the juror's
common understanding. In drug cases, such
ultimate-issue testimony may be viewed as an
expert's quasi-pronouncement of guilt that
intrudes on the exclusive domain of the jury
as factfinder and may result in impermissible
bolstering of fact witnesses. The prejudice
and potential confusion caused by such
testimony substantially outweighs any
probative value it may possess.
[Id. at 427-28.]
"Whether [a] defendant [has] the requisite state of mind to
commit the offense — the intent to distribute — [is] an ultimate
issue of fact to be decided by the jury." Id. at 420. The
expert's statement, "it sounds like he had the drugs with the
intent to go distribute them to somebody," was directly contrary
to the prohibition on testimony about a defendant's intent to
distribute, the ultimate issue in this case.
The expert's testimony was not isolated. The prosecutor, in
his summation, highlighted the expert's segue from interpreting
defendant's words to his testimony about drug couriers:
You also have intent. And the problem
with intent is, they don't -- I don't have the
12 A-2447-16T4
powers to see into people's minds. I can't
tell what you're thinking. Okay. Nor should
I, and legally they don't let me try that stuff
either, but you have to gain, you have to
figure out intent by different ways. And you
do it every day in your own lives. You take
all the facts, you take the words that people
say, you look at their actions, you look at
how they interact with others, and then you
make decisions based upon that, right?
Well that's the -- I'm going to ask you
to use those same powers here as you do every
day. Let's look at the -- the words he says.
Okay. Did [defendant] possess those drugs
with purpose of putting them in his body?
Well, that day -- the day that he gets
caught by the police, he tells them right away
-- first thing -- drugs aren’t mine. He says
it a couple times. Says I'm doing a friend a
favor and from the context of the conversation
-- you heard [the expert] say -- he's seen it;
he looked at it. It appears to him to be a
situation where it's a drug courier. He's
delivering drugs for the purpose of delivering
from one location to another, a transfer.
Although there was no objection, the statement was "clearly
capable of producing an unjust result," R. 2:10-2, particularly
in light of the defendant's trial strategy to admit possession and
challenge only intent to distribute, making defendant's intent the
13 A-2447-16T4
only trial issue.7 As the Cain Court held, "expert testimony
coming from a law enforcement officer claiming to have superior
knowledge and experience likely will have a profound influence on
the deliberations of the jury."
224 N.J. at 427; see also State
v. Reeds,
197 N.J. 280, 300 (2009) (concluding the expert's
"ultimate-issue testimony usurped the jury's singular role in the
determination of defendant's guilt and irredeemably tainted the
remaining trial proofs").
IV
Defendant also argues that a portion of the prosecutor's
summation – to which no objection was raised – deprived defendant
of a fair trial. Commenting on defendant's strategy to concede
possession and deny the intent to distribute, the prosecutor said:
[Defense counsel,] at the very beginning
of the case and, kind of, also at the end,
kind of, gives you what I'm going to call some
sort of concession. She says that, hey,
listen, we're -- we're conceding possession
7
Defense counsel in summation admitted defendant possessed the
bag containing heroin but pointed to evidence of defendant's
possession for use: empty bags containing residue; defendant's
possession of Suboxone – prescribed for opiate addiction; and that
defendant "would be the worst drug dealer ever" as he was
roaming around the streets of Wildwood with a
black plastic bag, [walking] with a cop's
[(Dadura's)] brother, just roaming around the
streets with [sixty-five] bags of heroin, no
money in his pocket, no cell phone, [and the
heroin] in rice with men's clothing stacked
on top of it.
14 A-2447-16T4
with regard[] to Count I and Count II. You
know, clearly my guy is in possession, and the
theory there is, I guess, some sort of take a
little bit of responsibility perhaps. But I
want you to look at it this way. She didn't
really concede anything that wasn't already
taken. The evidence in this case was already
extremely overwhelming that [defendant] on
September 19th, 2015, was in possession of
those drugs. You weren't going to find him
not guilty with regard to that, so they've
given up very little on that.
But there's a strategy there. The
strategy is, hey, listen, we'll take a little
bit of responsibility. Maybe the jury won't
worry about Count III, but that's the trick
here. That's what they don't want you to pay
attention to. They want you to take the easy
road and not consider Count III, but Count III
is the most important [c]ount. It's the count
in which I'm going to ask you to hold
[defendant] responsible for his actions. The
actions of being involved in the business of
distributing heroin, a very dangerous drug on
our streets. It's a schedule 1 drug, as you
heard from [the expert]. The most serious
scheduled drug you can have.
. . . .
Now, of course it's very dangerous and
sometimes people overdose on it, but that
doesn't take away from the fact that it's
extremely profitable and that's why people do
it.
In this case, it -- I think -- I'm just
going to ask you, when you think about that
concession, I want you to think about it also
as an opportunity to attempt to avoid
responsibility, that responsibility for being
a drug dealer.
15 A-2447-16T4
In evaluating whether prosecutorial misconduct requires
reversal, we determine whether the conduct "was so egregious that
it deprived the defendant of a fair trial." State v. Frost,
158 N.J. 76, 83 (1999). In other words, "the prosecutor's conduct
must have been 'clearly and unmistakably improper,' and must have
substantially prejudiced defendant's fundamental right to have a
jury fairly evaluate the merits of his defense." State v.
Timmendequas,
161 N.J. 515, 575 (1999) (quoting State v. Hightower,
120 N.J. 378, 411 (1990); State v. Williams,
113 N.J. 393, 452
(1988)). Prejudice to the defendant is measured by considering
"whether defense counsel made a timely and proper objection,
whether the remark was withdrawn promptly, and whether the court
ordered the remarks stricken from the record and instructed the
jury to disregard them." State v. Ramseur,
106 N.J. 123, 322-23
(1987).
Usually, if no objection is made during summation, the remarks
will not be considered prejudicial. Id. at 323. That is, if the
defendant did not raise the issue of the prosecutor's remarks at
trial, this court reviews the objection under a "plain error"
standard. R. 2:10-2. A corollary to this rule is that the failure
to object can be interpreted to mean defense counsel did not
consider the error to be significant in the context of the trial.
State v. Macon,
57 N.J. 325, 333 (1971); see also State v. Ingram,
16 A-2447-16T4
196 N.J. 23, 42 (2008). In particularly troubling circumstances,
however, the prosecutor's comments may rise to the level of plain
error, regardless of whether the defense objects. See, e.g.,
State v. Goode,
278 N.J. Super. 85, 90 (App. Div. 1994) (observing
where, among other things, the prosecutor improperly and
persistently reiterated a theme "that the jurors, through their
participation in this matter, could alleviate in some manner the
narcotics problem threatening our society"); State v. Sherman,
230 N.J. Super. 10, 19 (App. Div. 1988) (noting that the prosecutor's
improper remarks during summation "converted the proceedings from
a trial of issues by which a fact-finder may weigh evidence fairly
into a vehicle for exacting personal revenge upon defense
counsel").
Prosecutors are afforded wide latitude in presenting
summations. State v. DiFrisco,
137 N.J. 434, 474 (1994). Yet,
"while a prosecutor must advocate a position vigorously, there are
boundaries to such conduct." State v. Hawk,
327 N.J. Super. 276,
281 (App. Div. 2000). A prosecutor is obligated "not to obtain
convictions, but to see that justice is done." Ramseur,
106 N.J.
at 320. Further, it is as much the prosecutor's duty "to refrain
from improper methods calculated to produce a wrongful conviction
as it is to use every legitimate means to bring about a just one."
State v. Farrell,
61 N.J. 99, 105 (1972) (quoting Berger v. United
17 A-2447-16T4
States,
295 U.S. 78, 88 (1935)). The prosecutor must ensure the
comments in summation "are reasonably related to the scope of the
evidence presented." Timmendequas,
161 N.J. at 587.
The prosecutor's comments about trial strategy and the other
comments — about the dangerousness of heroin — had "the capacity
to anger and arouse the jury," State v. Marshall,
123 N.J. 1, 161
(1991), and were improper. However, the prosecutor's improper
comments were not repeated throughout summation; defendant only
identifies one segment of the transcript, which takes up two-
pages. Counsel's failure to object further evidences that the
impropriety of the comments were minor in the context of the entire
summation. Alone, these comments would not be plain error and
would not require a new trial; but viewed in conjunction with the
expert's testimony and the prosecutor's comments thereon, we deem
the comments on defendant's trial strategy plain error.
V
Inasmuch as we are constrained to reverse and remand for a
new trial or further proceedings prior thereto, we need not address
defendant's sentencing arguments.
Reversed and remanded.
18 A-2447-16T4
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