NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5398-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DERRICK T. BECKETT, a/k/a TYRONE OWENS,
Defendant-Appellant. _____________________________
Argued January 22, 2019 – Decided August 26, 2019
Before Judges Messano and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 16-03-0201.
John S. Furlong argued the cause for appellant (Furlong & Krasny, attorneys; Andrew Ferencevych, of counsel and on the brief).
Timothy Francis Trainor, Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Mercer County Prosecutor, attorney; Timothy Francis Trainor, on the brief).
PER CURIAM Following a five-day jury trial, defendant Derrick Beckett was convicted
of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A.
2C:35-10(a)(1) (count one); third-degree possession of CDS with intent to
distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two); fourth-degree
possession of CDS, N.J.S.A. 2C:35-10(a)(3) (count three); third-degree
possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-
5(b)(11) (count four); second-degree possession of a firearm while committing
a CDS offense, N.J.S.A. 2C:39-4.1(a)1 (count six); and second-degree certain
persons not to possess a firearm, N.J.S.A. 2C:39-7(b)(1) (count eight). 2
Defendant was sentenced to an aggregate term of ten years' imprisonment with
an eight-year period of parole ineligibility.
The convictions stemmed from police executing a search warrant at
defendant's home, where he resided with his fiancée and his four children,
resulting in the seizure of contraband consisting of crack cocaine, marijuana,
plastic bags, digital scales, a loaded handgun, ammunition, and currency. After
1 On the State's motion, the trial court amended the statutory reference in the indictment to correct a typographical error. 2 Defendant was convicted on count eight following a bifurcated trial before the same jury. Counts five and seven of the indictment were dismissed on the State's motion.
A-5398-16T4 2 the seizure, defendant gave a Mirandized 3 statement to police, during which he
admitted possessing the items found and selling the drugs for profit. However,
at trial, he admitted possessing the cocaine only for personal use, denied
possessing the remaining contraband, and claimed his confession was coerced.
Defendant now appeals from his convictions, raising the following points
for our consideration:
POINT ONE
THE TRIAL COURT ERRED IN ADMITTING DEFENDANT'S STATEMENT BECAUSE IT WAS INVOLUNTARILY OBTAINED BY ARRESTING DEFENDANT'S FIANC[ÉE] AND THREATENING TO CHARGE HER.
POINT TWO
THE TRIAL COURT IMPROPERLY ADMITTED EXPERT OPINION TESTIMONY THROUGH A POLICE LAY WITNESS.
POINT THREE
THE TRIAL COURT ERRED WHEN IT ADMITTED REPEATED REFERENCES TO THE EXISTENCE OF A SEARCH WARRANT.
POINT FOUR
THE TRIAL COURT ERRONEOUSLY ALLOWED THE STATE TO INTRODUCE EXTRANEOUS
3 Miranda v. Arizona, 384 U.S. 436 (1966). A-5398-16T4 3 INFORMATION REGARDING DEFENDANT'S PRIOR CONVICTIONS.
After considering the arguments in light of the record and applicable law, we
affirm.
I.
We summarize the facts from the trial record to give context to the issues
raised on appeal. On September 16, 2015, following a narcotics investigation,
Detective William Sanchez-Monllor of the Trenton Police Department obtained
a search warrant to search defendant's home located on Adeline Street in
Trenton. In the afternoon of September 23, 2015, eleven officers accompanied
Sanchez-Monllor to execute the warrant, including Mercer County Prosecutor's
Office Detective Anthony Abarno, and Trenton Police Department Detective
Daniel Simpkins and Officer Timothy Long. As the officers approached the
residence, defendant opened the front door. After explaining to defendant that
they had a search warrant for the residence, the officers immediately handcuffed
defendant and his fiancée, Rasheeda Thomas, and placed the two children who
were present, a ten year old and a two year old, on the living room couch. Next,
the officers secured the living room and searched defendant, recovering $501 in
various denominations. The officers then proceeded to conduct a systematic
protective sweep of the house for officer safety, followed by a complete search
A-5398-16T4 4 of the house "from top to bottom" in an attempt "to locate any contraband." The
search lasted approximately two to three hours. 4
Once the protective sweep was completed, a K-9 unit arrived at the scene
and gave a positive indication for narcotics in the closet of the third-floor
bedroom and the basement hallway. In the third-floor bedroom closet, Abarno
found a locked safe. While attempting to forcibly open the safe, Long found a
"black safe key" "on top of the door ledge" of the closet that unlocked the safe.
Inside the safe, Abarno found a heat-sealed Ziploc bag with smaller plastic bags
containing suspected marijuana, two boxes of sandwich bags, a "baggie with
smaller clear plastic baggies," two "operational" digital scales, a "loaded" "black
Ruger" ".9mm handgun with two magazines[,]" two boxes of ".9mm
ammunition," and one box of ".380 caliber" "ammunition." Long also found a
burgundy vest in the third-floor bedroom closet with $40 and "some personal
mail" addressed to defendant at the subject residence. In the closet of a second-
floor bedroom, Simpkins found a BB gun. Additionally, "inside a black . . .
doggie-bag type [purse]" located "inside the cellar door, leading to the
4 Although Sanchez-Monllor took photographs during the raid, the photographs were inadvertently deleted, and Sanchez-Monllor was unable to recover them for trial. He was extensively cross-examined on this misstep during the trial. A-5398-16T4 5 basement," Long found forty-one small Ziploc bags containing "white rock-like
substances suspected to be crack cocaine[.]"
Based on the contraband recovered,5 defendant was arrested and
transported to the Trenton Police Department for questioning. Thomas was also
transported to the police station. Although Thomas was detained and
handcuffed to a metal bench at the police station, she was released after
defendant was interviewed by the detectives. The videotaped interview of
defendant, conducted by Sanchez-Monllor and Abarno at police headquarters,
was played for the jury during the trial. During the interview, after Abarno
explained the charges and advised defendant of his Miranda rights, defendant
acknowledged understanding his rights, and agreed to waive his rights and give
a statement. Next, defendant confirmed that he lived at the subject residence
with his fiancée, his four children, and several dogs. Further, he admitted that
he sold the crack cocaine found in his house at "[t]en dollars a bag" in order to
make "a little extra money." However, defendant denied possessing the BB gun,
and explained that it belonged to his eleven-year-old son.
5 At trial, the parties stipulated that lab testing confirmed that the items seized consisted of less than one-half ounce of cocaine and more than one ounce but less than five pounds of marijuana. Lab testing also determined that the .9mm Ruger was operable. Additionally, no fingerprint evidence was recovered from the BB gun or the ammunition. A-5398-16T4 6 Regarding the safe, initially, defendant claimed the safe and its contents
belonged to his stepfather, Boyce Clark. Defendant denied ever opening the
safe or even knowing the combination for the lock. However, after the
detectives informed defendant that they had "found [the] key to the safe on the
top ledge of the closet" in defendant's bedroom, defendant admitted that he
placed "[a]bout a pound" of "weed" inside the safe, which he also sold to make
"[e]xtra money." Defendant also admitted that he used the digital scale in the
safe to measure the "weed" and that he used the plastic bags to package the
marijuana for sale at "$25 a bag[.]" In addition, defendant stated that although
the gun and ammunition found in the safe belonged to his stepfather, he
acknowledged that it "was in [his] possession[,]" and that he had previously
"tested [the gun] a couple of times."
At the end of the interview, defendant acknowledged that he had told the
detectives the truth and was neither pressured nor coerced into providing a
statement. Abarno described the interview as "pleasant" and denied making any
promises to defendant or any agreement to release Thomas if he confessed.
Sanchez-Monllor also denied making any promises to defendant either before or
after he was interviewed at police headquarters. However, Sanchez-Monllor
A-5398-16T4 7 admitted speaking to defendant while they were at his house before the formal
interview was conducted.
Defendant and Thomas6 testified at the trial and provided an entirely
different account of what transpired during and after the execution of the search
warrant. Thomas testified that after defendant let the officers into the house,
they allowed her to call her sister-in-law to pick up all four children. After her
sister-in-law left with the children, an officer brought her back into the house,
and told her she was under arrest. While the officers were reading Thomas her
Miranda rights, searching her, and handcuffing her, she asked what she was
"being arrested for." When the officer replied that she was being arrested based
on what they found in the safe, defendant "yelled from the kitchen" where he
had been taken that he would "sign whatever [he] need[ed] to sign" to avoid her
being "lock[ed] . . . up."
Thomas testified that when an officer asked her who the safe belonged to,
she responded that it belonged to defendant's stepfather. Thomas denied
knowing what was in the safe or knowing what was found in the house. After
an officer explained that she would be released after defendant gave a statement,
Thomas was transported to police headquarters, leaving defendant behind at the
6 By the time of the trial, defendant and Thomas were married. A-5398-16T4 8 house. At headquarters, Thomas was seated on a bench, still handcuffed. After
about two hours, the officers removed the handcuffs and placed her in a cell with
defendant, who assured her that "everything was going to be okay." After about
another hour, defendant was taken from the cell by one of the officers. When
he returned, he told Thomas she would be released because "[h]e did what they
needed him to do." Later, Thomas was, in fact, released.
Defendant testified that as soon as he opened the door, the officers
handcuffed him, searched him, sat him down in the kitchen, and "asked
[him] . . . [if] there [was] anything in th[e] house that [they] should know
about." In response, defendant "told them where the crack cocaine was" located.
Defendant explained that the crack belonged to him and was for his own
"[p]ersonal use." He testified the currency found in his pocket when he was
searched was "[f]or rent." According to defendant, after the search of the house
began, one of the officers "[c]ame downstairs" and "said . . . we got him." After
showing defendant everything found in the house, including the contents of the
safe, the officer informed defendant that if he did not "own up to everything"
and accept responsibility, they were going to "lock . . . up" his fiancée and "call
DYFS" for his children.
A-5398-16T4 9 Defendant testified that he told the officers the safe belonged to his
stepfather. According to defendant, before his stepfather was incarcerated, his
stepfather brought the safe to the house and "put[] it up in the third[-]floor cubby
hole," because defendant had agreed to keep the safe for him. Defendant denied
going into the safe, knowing what was in the safe, or knowing the combination
to the safe. He also denied knowing the whereabouts of the key for the safe.
However, defendant explained that he ultimately agreed to accept responsibility
for everything found in the house, including the safe, in order to spare his fiancée
and his children.
According to defendant, after he was transported to police headquarters,
he was surprised to see Thomas there because he had agreed to confess to avoid
her being arrested. Defendant talked to a sergeant, who assured him that she
would not be "locked up" if he confessed. When he was being escorted to the
interview room, he reaffirmed the agreement with another officer, and was
assured that "everything [was] going to be okay, as long as [he] sign[ed] the[]
papers." Defendant testified that after the interview, he again inquired about
Thomas to ensure that the agreement would be honored. Defendant
acknowledged that during the interview, the officers were courteous, and did not
yell or use foul language. However, he was adamant that his confession was
A-5398-16T4 10 coerced by the promises made by the officers. He maintained that the crack
recovered during the raid was for personal use, but denied ownership of any of
the other contraband seized. He asserted that he gave a false confession to
exonerate his fiancée and protect his children.
After the jury returned the guilty verdicts, defendant was sentenced on
July 25, 2017. A conforming judgment of conviction was entered on August 4,
2017, and this appeal followed.
II.
In Point One, defendant argues that the trial court erred in admitting his
videotaped statement to detectives because although "[he] received [Miranda]
warnings, he did not knowingly, intelligently, and voluntarily waive his rights."
According to defendant, his "statement was induced by police[] threats to
incarcerate [his fiancée]." Defendant asserts "[h]e was faced with a Hobson's
choice: remain silent and have his fiancé[e] also charged[,] leaving their four
children without a caretaker; or incriminate himself to secure [her] release."
At the pre-trial Miranda hearing, the State presented Abarno as its sole
witness, who testified consistent with his trial testimony. According to Abarno,
he and Sanchez-Monllor conducted a videotaped interview of defendant in an
interview room at the Trenton Police Department. First, after eliciting pedigree
A-5398-16T4 11 information, Abarno advised defendant of the charges using the Mercer County
Uniform Complaint Arrest Warrant Notification Form, which was signed by
defendant and Abarno, and witnessed by Sanchez-Monllor. Next, Abarno read
the Mercer County Rights Form to defendant, advising him of his Miranda
rights. After Abarno confirmed that defendant could read and write English,
defendant acknowledged understanding his rights, and signed the waiver form,
along with Abarno and Sanchez-Monllor, indicating his willingness to waive his
rights and provide a statement.
Prior to questioning defendant about the specific items found during the
raid, Abarno explained he wanted to have an "honest" conversation with
defendant and wanted defendant to "tell [him] the truth," and let him know if
any of the items were not his. At the end of the interview, Abarno again
confirmed that defendant had "told [him] . . . the truth[.]" After verifying that
defendant "underst[oo]d what coerced mean[t,]" Abarno asked defendant
whether he had been "pressured or coerced in any way to give this statement"
and defendant responded "[n]o, sir." According to Abarno, based on his thirteen
years of training and experience as a law enforcement officer, defendant was not
under the influence of drugs or alcohol during the interview. On the contra ry,
defendant was "coherent" and "understood the questions."
A-5398-16T4 12 Abarno testified the entire interview, which lasted approximately fourteen
minutes, was videotaped, from beginning to end, and denied questioning
defendant prior to the videotaped interview. When cross-examined about
defendant inquiring at the end of the interview whether his fiancée was "going
home[,]" Abarno responded that such an inquiry was "not uncommon" when
"there[] [were] multiple people in the house" who were "separate[d]" in the
aftermath of a raid. Abarno pointed out that defendant had similarly inquired
about his "dogs." Abarno vehemently denied having any discussion with
defendant about his fiancée being released or charges against her being
dismissed either before or during the videotaped interview.
Following oral argument, the court determined that the videotaped
statement was admissible at trial. In addition to viewing the videotaped
statement, the court reviewed the fully executed Mercer County Uniform
Complaint Arrest Warrant Notification Form and the Mercer County Rights
Form. According to the court, on the videotaped statement, defendant
"indicate[d] . . . he was not pressured, [and] he was not promised anything." The
court also pointed out that defendant was "[a]ctually . . . polite, calm[,] and
courteous throughout the statement[.]" Applying the applicable legal principles,
the court determined "it was clear that [defendant's] statement was voluntarily
A-5398-16T4 13 given after the appropriate [Miranda] rights were provided." The court
concluded the State "prove[d] beyond a reasonable doubt [that] defendant
received the proper constitutional rights warning[,]" and "waived his rights."
The court found "[t]he waiver was knowing[], intelligent[], [and] voluntar[y] in
light of the totality of the circumstances[.]" Further, according to the court, the
"statement [was] voluntary and not [the] product of any coercion or official
misconduct."
We begin our analysis with the governing principles. "The right against
self-incrimination is guaranteed by the Fifth Amendment to the United States
Constitution and this state's common law, now embodied in statute, N.J.S.A.
2A:84A-19, and evidence rule, [Rule] 503 [7]." State v. S.S., 229 N.J. 360, 381-
82 (2017) (quoting State v. Nyhammer, 197 N.J. 383, 399 (2009)). "The
administration of Miranda warnings ensures that a defendant's right against self-
incrimination is protected in the inherently coercive atmosphere of custodial
interrogation." State v. A.M., 237 N.J. 384, 397 (2019). To that end, a person
subject to custodial interrogation "must be adequately and effectively apprised
of his [or her] rights." Nyhammer, 197 N.J. at 400 (quoting Miranda, 384 U.S.
at 467).
7 N.J.R.E. 503. A-5398-16T4 14 Before any evidence acquired through a custodial interrogation can be
used against a defendant, "[t]he burden is on the prosecution to demonstrate not
only that the individual was informed of [their] rights, but also that [they] . . .
knowingly, voluntarily, and intelligently waived those rights[.]" Id. at 400-01.
Thus, "the State shoulders the burden of proving . . . that a defendant's
confession was actually volunteered and that the police did not overbear the will
of the defendant." State v. Hreha, 217 N.J. 368, 383 (2014). In turn, the trial
court must determine whether the State has satisfied its heavy burden by proof
"beyond a reasonable doubt[,]" State v. Yohnnson, 204 N.J. 43, 59 (2010)
(alteration in original) (quoting State v. Presha, 163 N.J. 304, 313 (2000)), based
upon an evaluation of the "totality of the circumstances[.]" Nyhammer, 197 N.J.
at 405.
A "totality-of-the-circumstances" analysis requires the court to consider
such factors as a defendant's "age, education and intelligence, advice as to
constitutional rights, length of detention, whether the questioning was repeated
and prolonged in nature[,] and whether physical punishment or mental
exhaustion was involved." Id. at 402 (quoting Presha, 163 N.J. at 313).
Pertinent to this appeal, in evaluating the totality of the circumstances, "[a] court
may conclude that a defendant's confession was involuntary if interrogating
A-5398-16T4 15 officers extended a promise so enticing as to induce that confession." Hreha,
217 N.J. at 383. "Factors relevant to that analysis include, but are not limited
to, 'the nature of the promise, the context in which the promise was made, the
characteristics of the individual defendant, whether the defendant was informed
of [their] rights, and whether counsel was present.'" Id. at 383-84 (quoting State
v. Pillar, 359 N.J. Super. 249, 271 (App. Div. 2003)).
Moreover, these factors "should be assessed qualitatively, not
quantitatively, and the presence of even one of those factors may permit the
conclusion that a confession was involuntary." Id. at 384. However, while an
investigator's "manipulative or coercive" statements may deprive a defendant
"of his ability to make an unconstrained, autonomous decision to confess[,]"
State v. DiFrisco, 118 N.J. 253, 257 (1990) (quoting Miller v. Fenton, 796 F.2d
598, 605 (3d Cir. 1986)), "[e]fforts by a law enforcement officer to persuade a
suspect to talk 'are proper as long as the will of the suspect is not overborne.'"
State v. Maltese, 222 N.J. 525, 544 (2015) (quoting State v. Miller, 76 N.J. 392,
403 (1978)).
"Generally, on appellate review, a trial court's factual findings in support
of granting or denying a motion to suppress must be upheld when 'those findings
are supported by sufficient credible evidence in the record.'" S.S., 229 N.J. at
A-5398-16T4 16 374 (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). Moreover, "a trial
court's factual findings should not be overturned merely because an appellate
court disagrees with the inferences drawn and the evidence accepted by the trial
court or because it would have reached a different conclusion." Ibid. Indeed,
"[a]n appellate court should not disturb a trial court's factual findings unless
those findings are 'so clearly mistaken that the interests of justice demand
intervention and correction.'" Ibid. (quoting Gamble, 218 N.J. at 425). This
deferential standard of appellate review also applies to the trial court's "factual
findings based on a video recording or documentary evidence[.]" Id. at 381.
However, "[b]ecause legal issues do not implicate the fact-finding expertise of
the trial courts, appellate courts construe the Constitution, statutes, and common
law 'de novo—with fresh eyes—owing no deference to the interpretive
conclusions' of trial courts, 'unless persuaded by their reasoning.'" Id. at 380
(quoting State v. Morrison, 227 N.J. 295, 308 (2016)).
Applying these principles, we are satisfied that the court's factual findings
are supported by sufficient credible evidence in the record and its legal
conclusions are sound. Defendant, who acknowledged being able to read and
write English, was adequately and effectively apprised of his Miranda rights
prior to questioning. Additionally, the questioning was neither repeated nor
A-5398-16T4 17 prolonged, and did not involve physical punishment nor mental exhaustion.
Thus, based on the totality of the circumstances, defendant knowingly,
voluntarily, and intelligently waived his rights, and provided a voluntary
statement, confessing to the charges. As the court found, defendant's belated
claim of coercion was aptly discredited by his videotaped statement in which he
denied being pressured, coerced, or promised anything by police to induce his
confession.
III.
In Point Two, defendant argues the court "improperly admitted expert
opinion testimony from a police lay witness[,]" Detective William Sanchez-
Monllor. Defendant asserts that despite multiple objections, the court permitted
Sanchez-Monllor to "offer[] his opinion in the form of expert testimony after
testifying regarding his considerable experience." Defendant continues that
Sanchez-Monllor "expressed his opinion on a critical issue: whether defendant
possessed drugs and packaging for personal use or distribution purposes [,]"
thereby "depriv[ing] defendant of his right to a fair trial."
Over defendant's repeated objections, Sanchez-Monllor, a seven-year
veteran officer, testified that, based on his extensive education, training, and
experience, which included conducting "over 300" narcotics investigations, the
A-5398-16T4 18 heat-sealed bag containing marijuana that was found in the safe and forty-one
bags of crack cocaine, the exact amount recovered from defendant's basement,
were not consistent with personal use. Sanchez-Monllor also testified that in his
experience, the sandwich bags were used "to package marijuana" and the scales
were "used to weigh out certain amount[s] of narcotics . . . into smaller specific
sizes [f]or distribution." The State elicited the testimony without having
Sanchez-Monllor qualified as an expert.
"Lay witnesses may present relevant opinion testimony in accordance
with Rule 701 which permits 'testimony in the form of opinions or
inferences . . . if it . . . is rationally based' on the witness' 'perception' and 'will
assist in understanding the witness' testimony or in determining a fact in issue.'"
State v. Lazo, 209 N.J. 9, 22 (2012) (alterations in original) (quoting N.J.R.E.
701). On the other hand, pursuant to Rule 702, a qualified expert may testify in
the form of an opinion "[i]f scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in
issue[.]" N.J.R.E. 702. However, as a prerequisite to its admissibility, expert
testimony should "relate[] to a relevant subject that is beyond the understanding
of the average person of ordinary experience, education, and knowledge." State
v. Odom, 116 N.J. 65, 71 (1989). Thus, it is incumbent upon the proffering
A-5398-16T4 19 party to show: "(1) the intended testimony concerns a subject matter beyond the
ken of an average juror;" (2) the expert's testimony would be "reliable;" and (3)
the proffered witness has sufficient expertise. State v. Reeds, 197 N.J. 280, 290
(2009).
With certain limitations, if properly qualified as an expert, our Supreme
Court has permitted the State to produce "[l]aw enforcement officers with
extensive training, education[,] and experience of the drug world" to "help jurors
understand the indicia of a distribution operation, such as how drug traffickers
package and process drugs for distribution." State v. Cain, 224 N.J. 410, 426
(2016). Similarly, the Court has allowed expert testimony to "shed light on the
significance of the quantities and concentrations of drugs," and "the function of
drug paraphernalia[.]" Ibid. (citing United States v. Mejia, 448 F.3d 436, 441,
449 (D.C. Cir. 2006)); State v. Sowell, 213 N.J. 89, 100-05 (2013).
However, in State v. McLean, 205 N.J. 438 (2011), the Court described
the boundary line that separates factual testimony by police officers from
permissible lay or expert opinion testimony as follows:
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. 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
A-5398-16T4 20 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. 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.
[Id. at 460 (citations omitted).]
While noting that a lay witness may offer an opinion that entails some
processing of the facts perceived and some reliance upon the witness' own
experience and training, the Court explained that the opinion must be "limited
to testimony that will assist the trier of fact either by helping to explain the
witness' testimony or by shedding light on the determination of a disputed
factual issue." Id. at 457-59. The Court stressed that lay opinions "may not
intrude on the province of the jury by offering, in the guise of opinions, views
on the meaning of facts that the jury is fully able to sort out without expert
assistance" or "to express a view on the ultimate question of guilt or innocence."
Id. at 461. In contrast, "a question that referred to the officer's training,
education[,] and experience, in actuality called for an impermissible expert
opinion." Id. at 463.
A-5398-16T4 21 The admissibility of opinion evidence lies within the discretion of the trial
court, State v. LaBrutto, 114 N.J. 187, 197 (1989), which is responsible to
perform a gatekeeping function to ensure opinion testimony is both needed and
appropriate. State v. Nesbitt, 185 N.J. 504, 514-15 (2006). We review the
admission of such evidence for an abuse of discretion, State v. Feaster, 156 N.J.
1, 82 (1998), granting substantial deference to the court's decision, unless it
constitutes a clear error of judgment or was so wide of the mark that a manifest
denial of justice results. See State v. Koedatich, 112 N.J. 225, 313 (1988).
Here, we agree with defendant that Sanchez-Monllor's testimony
constituted impermissible expert testimony because he was not qualified as an
expert witness at trial. Moreover, the State failed to provide an expert report.
See R. 3:13-3(b)(1)(I) (requiring the State to provide a defendant with an expert
report or "statement of the facts and opinions to which an expert is expected to
testify" prior to trial). However, the inquiry does not end there. "[E]ven though
an alleged error was brought to the trial judge's attention, it will not be grounds
for reversal if it was 'harmless error.'" State v. J.R., 227 N.J. 393, 417 (2017)
(quoting State v. Macon, 57 N.J. 325, 337-38 (1971)). The harmless error
standard, Rule 2:10-2, requires us to determine if there is "some degree of
possibility that [the error] led to an unjust" result. State v. R.B., 183 N.J. 308,
A-5398-16T4 22 330 (2005) (alteration in original) (quoting State v. Bankston, 63 N.J. 263, 273
(1973)). However, "[c]onvictions after a fair trial, based on strong evidence
proving guilt beyond a reasonable doubt, should not be reversed because of a
technical or evidentiary error that cannot have truly prejudiced the defendant or
affected the end result." J.R., 227 N.J. at 417 (alteration in original) (quoting
State v. W.B., 205 N.J. 588, 614 (2011)).
In State v. Kittrell, 279 N.J. Super. 225, 236 (App. Div. 1995), we held
that a police witness who presented a purported lay opinion should have testified
as an expert, since his opinion was based on his extensive experience and
specialized knowledge of drug-related crimes. We concluded the evidentiary
error was harmless since "enough evidence was presented to qualify [the
detective] as an expert." Ibid. Likewise, in State v. Hyman, 451 N.J. Super.
429, 457 (App. Div. 2017), although we found that the lead detective "should
have been qualified as an expert and testified as one," we held the error was
harmless because the witness "possessed sufficient education, training, and
experience to qualify as an expert in the field of drug trafficking" and the
"defendant [did] not claim prejudicial surprise." Id. at 459.
We reach the same conclusion here. Because Sanchez-Monllor's
testimony during trial demonstrated sufficient education, training, and
A-5398-16T4 23 experience to qualify as an expert in the field of drug trafficking, we are satisfied
that the error was harmless. In addition, any error was rendered harmless by
defendant's admissions during his videotaped statement that he possessed the
drugs for distribution.
IV.
In Point Three, defendant argues that despite his objections "[t]he State
improperly solicited testimony regarding the existence of a search warrant on
multiple occasions." According to defendant, as a result of the State's references
to a search warrant of defendant's home and the trial judge's failure to provide
any limiting instruction, defendant was denied his right to a fair trial.
"To be sure, the prosecutor has the right to convey to the jury that the
police were authorized to search a home." Cain, 224 N.J. at 433. "The jury
should not be left guessing whether the police acted arbitrarily by entering a
home without a search warrant." Ibid.; see also State v. Marshall, 148 N.J. 89,
240 (1997) ("[T]he fact that a warrant was issued might necessarily be put before
a jury in order to establish that the police acted properly."). On the other hand,
"repeated statements that a judge issued a search warrant for a defendant's
home—when the lawfulness of the search is not at issue—may lead the jury to
A-5398-16T4 24 draw the forbidden inference that the issuance of a warrant by a judge supports
the rendering of a guilty verdict." Cain, 224 N.J. at 433.
In State v. Alvarez, 318 N.J. Super. 137, 147 (App. Div. 1999), where the
credibility of the officers was not at issue, we reversed the defendant's firearms
convictions because of the prejudicial impact of the prosecutor's "three
references to an arrest warrant for [the] defendant [and] six references to a search
warrant (described as being issued by a judge)." Similarly, in State v. Milton,
255 N.J. Super. 514, 519 (App. Div. 1992), we reversed the defendant's drug
convictions where "[t]he prosecutor referred to a search warrant for the person
of the defendant both in his opening statement and by eliciting evidence of its
existence through the testimony of the State's investigator." There, we
distinguished between a search warrant for the premises and one for the person,
and we rejected the State's argument that the objectionable references were
"essential . . . to prove that the officers were not acting arbitrarily . . . since
presentation to the jury of the fact that a search warrant for the premises had
been issued fully satisfied the State's needs." Id. at 520.
In Cain, the Court condemned the prosecutor's reference to "the existence
of a search warrant no less than fifteen times in the opening statement,
summation, and during questioning of witnesses." 224 N.J. at 435. The Court
A-5398-16T4 25 noted that "[s]ome of those references specifically informed the jury that a
Superior Court judge issued the warrant." Ibid. The Court found that "[t]he
constant drumbeat that a judicial officer issued a warrant to search defendant's
home had little probative value, but did have the capacity to lead the jury to
draw an impermissible inference that the court issuing the warrant found the
State's evidence credible." Id. at 436. The Court explained that while "[a] search
warrant can be referenced to show that the police had lawful authorit y in
carrying out a search to dispel any preconceived notion that the police acted
arbitrarily[,]" the prosecutor "may not repeatedly mention that a search warrant
was issued by a judge if doing so creates the likelihood that a jury may draw an
impermissible inference of guilt." Id. at 435.
Here, the prosecutor asked two officers whether they remembered the
address where the search warrant had been executed, and a third whether he
arrived at defendant's house to execute a search warrant. Additionally, during
summation, the prosecutor stated that a search warrant was executed. Defendant
did not object to any of those references. See State v. Timmendequas, 161 N.J.
515, 576 (1999) ("Generally, if no objection was made to the improper remarks,
the remarks will not be deemed prejudicial."). However, defendant objected to
the following questioning of Sanchez-Monllor on direct examination:
A-5398-16T4 26 [Prosecutor]: Did you develop enough information to go to a judge and request a search warrant?
[Detective]: Yes, sir.
[Prosecutor]: And what did you request a search warrant for?
[Detective]: We requested a search warrant for the premise[s] of . . . defendant.
[Prosecutor]: Okay. Now, do you remember what day you obtained that search warrant?
[Detective]: I do not recall the actual day, sir. . . .
[Prosecutor]: . . . [W]as it in September?
[Detective]: Yes, sir. It was in September.
[Prosecutor]: If I showed you a copy of the warrant, would that help refresh your recollection?
Thereafter, at sidebar, the court indicated its intention to give a "charge at
the end of the case that the mere issuance of a search warrant . . . [was] not
evidence of guilt." However, the court failed to give such a charge at any point
in the trial. Nonetheless, the search warrant references in this case do not suffer
the infirmities our Supreme Court criticized in Cain, nor the defects we
condemned in Milton and Alvarez. The search warrant was not repeatedly
described as being issued by a judge, and the references did not go beyond what
A-5398-16T4 27 was necessary to inform the jury that the officers were acting with lawful
authority. Indeed, the repeated references were necessitated by the fact that the
search warrant was executed by numerous officers, four of whom testified at the
trial. Of necessity, during questioning, each officer was initially directed to his
involvement in the execution of the search warrant to lay the foundation for his
direct examination. Further, there was no reference to a warrant to search
defendant himself, as no such warrant existed. Additionally, in his summation,
the prosecutor did not comment on the sufficiency of the warrant or the probable
cause, but simply that a search warrant was executed on defendant's residence.
Thus, we find no error notwithstanding the court's failure to give a limiting
instruction.
In Point Four, defendant argues that in cross-examining him, the
prosecutor "exceeded the limitations set forth by the evidence rules and case
law" when he questioned him on his prior convictions. We disagree.
Rule 609(a) permits the admission of a witness' prior conviction for
impeachment purposes. N.J.R.E. 609(a). If the witness is a defendant in a
criminal case and the prior conviction is "the same or similar to one of the
offenses charged" or "the court determines that admitting the nature of the
A-5398-16T4 28 offense poses a risk of undue prejudice," the State may only present the crime's
degree, the date of conviction, and the sentence imposed. N.J.R.E. 609(a)(2).
This rule is intended to ensure that a prior offender does not appear to be "a
citizen of unassailable veracity," while also protecting a defendant against "the
risk of impermissible use by the jury of prior-conviction evidence." State v.
Brunson, 132 N.J. 377, 391 (1993).
"[W]hether a prior conviction may be admitted into evidence against a
criminal defendant rests within the sound discretion of the trial judge." State v.
Sands, 76 N.J. 127, 144 (1978). "Ordinarily[,] evidence of prior convictions
should be admitted and the burden of proof to justify exclusion rests on the
defendant." Ibid. If more than ten years have passed since the prior conviction
or the witness' release from confinement, evidence of that conviction is only
admissible if the court determines that its probative value outweighs its
prejudicial effect, with the burden of proof on the proponent of the evidence.
N.J.R.E. 609(b)(1). In determining whether such a conviction is admissible, the
court may consider whether there have been intervening convictions; the
number, nature, and seriousness of the intervening offenses; whether the
conviction involved a crime of dishonesty or fraud; how remote the conviction
is in time; and the seriousness of the crime. N.J.R.E. 609(b)(2).
A-5398-16T4 29 Here, the court permitted the prosecutor to cross-examine defendant
regarding the degree, date of conviction, and sentence imposed on his four prior
convictions, all of which were third-degree offenses. Defendant was first
convicted on March 26, 2004, and sentenced to four years' imprisonment on one
offense, and four years' imprisonment with an eighteen-month parole
disqualifier on the other. On April 14, 2010, defendant was sentenced on two
separate convictions to five years' imprisonment with a twenty-four-month
parole disqualifier on each. Regarding the latter convictions, when the
prosecutor asked defendant whether "[his] sentence would have been finished in
either late 2014 or early 2015," defense counsel objected. After the court
overruled the objection, defendant responded that he "completed [his] last
sentence in late 2013."
On appeal, defendant argues that "[the] testimony was highly prejudicial"
because "[i]t implie[d] defendant [had] not been released from prison for a
lengthy time" before he was charged with the present offenses and "[n]either the
evidence rules nor case law permit the State to question defendant regarding
release from custody." Defendant continues that the error was "compound[ed]"
by the court's omission of the limiting charge to properly guide the jury
A-5398-16T4 30 "regarding the limited uses of prior conviction testimony." We find no merit in
either of defendant's contentions.
First, we are satisfied that the prosecutor's question encompassed
permissible sentencing information. "[S]entencing information may be
presented to a jury at the discretion of the trial court when a defendant's
convictions are sanitized pursuant to Brunson[.]" State v. Hicks, 283 N.J. Super.
301, 310 (App. Div. 1995). "Indeed, where a defendant's record has been
sanitized pursuant to Brunson, sentencing information becomes more critical as
it represents the most accessible means by which the lay jury can measure the
severity of a prior conviction." Id. at 309. "Thus, the choice of whether or not
sentences should be imparted to the jury is a matter best left to the trial court
under [Rule] 403[8] . . . , a decision only reviewable for abuse of discretion,"
which does not exist in this case. Ibid. Secondly, contrary to defendant's
argument, the record shows that the court provided the jury with a verbatim
recitation of the Model Jury Charge regarding the limited use of evidence of
defendant's prior convictions. See Model Jury Charge (Criminal), "Credibility-
Prior Conviction of a Defendant" (rev. Feb. 24, 2003). Therefore, defendant's
8 N.J.R.E. 403. A-5398-16T4 31 arguments that the prosecutor exceeded proper bounds in cross-examining him
on his prior convictions must fail.
Affirmed.
A-5398-16T4 32