Opinion
DOCKET NO. A-5127-11T2 DOCKET NO. A-0592-12T2
02-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KARRIEM A. ROYSTER, a/k/a RAHEEM JENKINS, PHILLIP MAURO, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. EARL MARSHALL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellants in A-5127-11 and A-0592-12 (Alison Perrone, Designated Counsel on the brief for appellant in A-5127-11; Jay Wilensky, Assistant Deputy Public Defender, on the brief for appellant in A-0592-12). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondents in A-5127-11 and A-0592-12 (Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel in A-5127-11 and A-0592-12; Nicholas Norcia, Assistant Prosecutor, on the brief in A-5127-11; Roberta DiBiase, Senior Assistant Prosecutor, on the brief in A-0592-12).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-07-1184. Joseph E. Krakora, Public Defender, attorney for appellants in A-5127-11 and A-0592-12 (Alison Perrone, Designated Counsel on the brief for appellant in A-5127-11; Jay Wilensky, Assistant Deputy Public Defender, on the brief for appellant in A-0592-12). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondents in A-5127-11 and A-0592-12 (Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel in A-5127-11 and A-0592-12; Nicholas Norcia, Assistant Prosecutor, on the brief in A-5127-11; Roberta DiBiase, Senior Assistant Prosecutor, on the brief in A-0592-12). PER CURIAM
An Ocean County grand jury returned Indictment No. 09-07-1184, charging defendants Karriem A. Royster, Earl Marshall and eleven others with various crimes involving the distribution of controlled dangerous substances (CDS). Marshall was charged with being the leader of a cocaine trafficking network, N.J.S.A. 2C:35-3 (count one); conspiracy to possess cocaine and marijuana with intent to distribute, N.J.S.A. 2C:5-2, 2C:35-5(a)(1) and 2C:35-5(b)(1) and -5(b)(10)(b) (counts two and seven, respectively); possession of CDS with intent to distribute and possession of CDS, N.J.S.A. 2C:35-5(a)(1) and 2C:35-10(a) (counts nine through thirteen); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7b (count twenty-three). Royster was charged with conspiring with Marshall in counts two and seven and charged alone with third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) (count fifteen).
Defendants were tried jointly before a jury. Marshall was found guilty of all counts. Royster was convicted of both conspiracy counts, but acquitted of possession with intent to distribute CDS.
The trial on the certain persons offense, count twenty-three, was bifurcated. Marshall subsequently pled guilty pursuant to a plea bargain in which the State agreed to dismiss counts eleven, twelve and thirteen, charging Marshall with third-degree possession of CDS, and limit the sentence on count twenty-three to five years imprisonment with five years of parole ineligibility. The plea was entered conditionally pursuant to Rule 3:9-3(f).
The judge granted the State's motion for a mandatory extended term as to Marshall, see N.J.S.A. 2C:43-6(f), and sentenced him to life imprisonment with a thirty-year period of parole ineligibility, on count one, leading a narcotics trafficking network. The judge imposed concurrent nine-year custodial sentences on counts two, seven, nine and ten, and a concurrent five-year term, with a five-year period of parole ineligibility, on the certain persons conviction. As to Royster, the judge granted the State's motion to impose a discretionary extended term as a persistent offender, N.J.S.A. 2C:44-3(a). He sentenced defendant to a sixteen-year term of imprisonment with an eight-year period of parole ineligibility.
We have consolidated defendants' appeals for the purpose of issuing a single opinion. In A-0592-12, Marshall raises the following issues for our consideration:
POINT IRoyster presents the following points on appeal in A-5127-11:
THE STATE WAS PERMITTED TO PRESENT IMPROPER AND EXCESSIVE OPINION TESTIMONY THAT INFRINGED ON THE EXCLUSIVE PROVINCE OF THE JURY TO FIND FACTS, NECESSITATING REVERSAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PARA. 9
POINT II
THE TRIAL COURT PERMITTED IMPROPER AND HIGHLY PREJUDICIAL TESTIMONY, INCLUDING CLEAR VIOLATIONS OF THE RULES RESTRICTING EVIDENCE OF PRIOR BAD ACTS AND THE BANKSTON RULE, AND FAILED TO ADEQUATELY REMEDIATE THE VIOLATIONS, NECESSITATING REVERSAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PARA. 9
POINT III
THE STATE FAILED TO PROVE THAT DEFENDANT MET THE CRITERIA FOR BEING A LEADER OF A NARCOTICS TRAFFICKING NETWORK, NECESSITATING REVERSAL AND DISMISSAL OF THAT CHARGE.
POINT IV
THE TRIAL COURT, AS THE RESULT OF AN ABUSE OF PROSECUTORIAL DISCRETION, IMPOSED A SHOCKINGLY EXCESSIVE SENTENCE, NECESSITATING A REMAND FOR RESENTENCING.
POINT ONEWe have considered these arguments in light of the record and applicable legal standards. We agree with defendants that the admission of expert opinion testimony, without notice to defendants, qualification of the experts or appropriate instructions for the jury, was improper. We further conclude that these errors were clearly capable of producing an unjust result. R. 2:10-2. We are therefore constrained to reverse Royster's conviction and remand the matter to the Law Division for a new trial.
TESTIMONY BY DETECTIVE KINGSTON AND AGENT RUTA REGARDING THEIR OPINIONS AS TO THE MEANING OF THE WIRETAPPED CONVERSATION IN THIS CASE IS INADMISSIBLE AS IT IMPROPERLY INVADED THE PROVINCE OF THE JURY, THEREBY DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
POINT TWO
THE ADMISSION OF HEARSAY THAT THE INVESTIGATION IN THIS CASE WAS BASED ON CORROBORATED INFORMATION FROM A CONFIDENTIAL INFORMANT DENIED DEFENDANT A FAIR TRIAL AND HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION.
POINT THREE
THE IMPROPER ADMISSION OF HEARSAY EVIDENCE THAT DEFENDANT FLED FROM THE POLICE COMBINED WITH THE COURT'S ERRONEOUS FLIGHT CHARGE, GIVEN BASED ON THIS HEARSAY EVIDENCE, DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.
POINT FOUR
THE TRIAL COURT ERRONEOUSLY ADMITTED HIGHLY PREJUDICIAL TESTIMONY UNDER THE CO-CONSPIRATOR EXCEPTION TO THE HEARSAY RULE, DEPRIVING DEFENDANT OF HIS DUE-PROCESS RIGHT TO A FAIR TRIAL AND NECESSITATING REVERSAL.
POINT FIVE
DEFENDANT'S SIXTEEN-YEAR EXTENDED TERM IS NOT SUPPORTED BY A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS.
We have omitted the sub-point headings in defendant's brief.
As to Marshall, we reverse his conviction for leading a narcotics network and two counts of conspiracy. We affirm the convictions on counts nine and ten. As a result of Marshall's conditional plea, he "shall be afforded the opportunity to withdraw" his guilty plea to the certain persons offense, in which event the three counts dismissed by the State as part of the plea agreement shall be reinstated. R. 3:9-3(f). We remand the matter to the Law Division for further proceedings.
I.
The trial record reveals that in fall 2008, the Ocean County Prosecutor's Office Special Operations Group (SOG) conducted an investigation of marijuana and cocaine trafficking in the southern Ocean County area. Detective James Kingston, of SOG, and Joseph Ruta, a special agent with the Bureau of Alcohol, Tobacco, and Firearms, led the investigation, focusing on several individuals, including defendants, and co-defendants Michael Kreybig, Max Malick, Noel Matos, Robert Gunnell, and Paul Addonizio. The State contended that defendants were involved in two conspiracies: one, with Kreybig, to distribute marijuana; a second, with the other co-defendants, to distribute cocaine. Pursuant to court-approved wiretap orders, conversations were intercepted and recorded from three telephone facilities belonging to Marshall, Kreybig, and Gunnell in October and November 2008.
A fourth facility associated with Gunnell was also subject to the wiretap order but there were no intercepts introduced at trial from this facility.
Kingston was one of the first witnesses called by the State at trial. After detailing his extensive investigative experience, Kingston told the jury that "through the investigation," SOG "identified . . . that . . . Marshall was bringing quantities of marijuana to distribute to . . . Kreybig" and "quantities of cocaine" to Malick, Matos, Gunnell and Addonizio. Kingston further stated that "quantities of the marijuana and sometimes cocaine would go to Karriem Royster as well." The prosecutor then asked:
Q. Prior to conducting a wiretap, as a general matter, what did your investigation entail?Both defense counsel objected and moved for a mistrial. The prosecutor acknowledged fault in not leading the witness and consented to the judge giving the jury a limiting instruction. The judge then told the jury to disregard any reference to confidential informants.
A. It entailed information that we received from a confidential informant. We then took that information, corroborated some, if not most, of it, and then conducted controlled purchases of either cocaine [or] marijuana —
Defense counsel again objected to Kingston identifying the subscriber information for the telephone facilities that were tapped, arguing the testimony was hearsay. The judge overruled the objections and permitted Kingston to identify phone numbers frequently used by defendants and others charged in the indictment, through the detective's familiarity with their voices and the overall investigation. Defense counsel raised another objection when Kingston testified that in his experience, subscriber information provided by telephone companies was sometimes incorrect.
Relying upon State v. McLean, 205 N.J. 438 (2011), defendants argued that Kingston had not been qualified as an expert witness, nor had the State supplied a report from him in discovery. Counsel anticipated that Kingston would be offering expert testimony regarding the meaning of certain words and phrases in the intercepts. The prosecutor seemingly acknowledged that, in supplying information regarding "subscriber information," Kingston would be offering "opinion" testimony "beyond the ken of the average juror." He argued, however, that because Kingston had listened to the intercepts himself and had extensive experience, McLean did not prohibit the detective from offering "lay opinion" testimony regarding the meaning of certain words and phrases in the conversations.
After considering the respective legal arguments, the judge distinguished McLean on its facts and requested that the parties brief the issue. In a lengthy oral decision placed on the record the next trial day, the judge stated:
I will authorize Detective Kingston to testify on his opinion, his lay opinion which will be rationally based on his perceptions. I will not permit a narrative to describe and suggest what generally the conversations entailed. I will require him to point specifically to certain language . . . in the conversations and he'll be permitted to give his opinion with regard to what he believes based on his listening to the tapes and speaking with the co[-]defendants and being involved in the investigation and search, what he believes that language is.
I have to say that I don't know how the State . . . would be able to meet [its] burden, would be able to prosecute a case where code or . . . street slang was used . . . . I think New Jersey courts should consider this issue given the increase in use of wiretaps and recorded conversations of all kinds during the course of
investigation. I think that it's something that should be cleared up.Citing a specific instance in which the State sought to have Kingston interpret the word "three" in one of the conversations as meaning "three grams" of CDS, the judge reasoned:
I think that it inures to the benefit of the defendants, in any event. If it was left at [three] and the jury with the cryptic language used during the course of this tape was left to speculate as to what it meant, they may very well believe it was something more than [three] grams, they can believe it was [three] ounces or [three] kilos, for that matter.Nearly one hundred intercepts were played for the jury.
We assume the judge's reference to the difficulty in prosecuting such a wiretap case stems from a belief that an investigating officer, like Kingston in this case, is barred from offering expert opinion testimony. Beginning with State v. Berry, 140 N.J. 280, 301 (1995), the Court has made clear that the "risk of undue prejudice" from expert testimony in drug prosecutions "can be significant if the expert witness is one of the investigating officers and also offers an opinion on an ultimate issue in the case." See also McLean, supra, 205 N.J. at 454; State v. Torres, 183 N.J. 554, 580 (2005). However, none of those decisions imposed an outright ban on such testimony, and all have recognized the trial judge's ability to fashion adequate safeguards. See Torres, supra, 183 N.J. at 580 (discussing the ability to limit the scope of the expert's testimony and provide clear instructions to the jury on its right to reject the expert's opinion and the facts upon which it is based). Moreover, in this case, Kingston and Ruta offered no opinion "on the ultimate issue in the case."
Several days later, the judge authored a written opinion to "amplify" his oral opinion on the admissibility of lay opinion testimony describing the meaning of certain phrases in the intercepts.
Addonizio and Kreybig, both of whom had pled guilty to reduced charges pursuant to plea bargains, testified on behalf of the State. Addonizio admitted dealing cocaine for Marshall and also identified intercepted conversations he had with Marshall, as well as the voices contained in other intercepts as being those of his co-defendants, including Royster. Kreybig testified that he sold approximately five pounds of marijuana per week for Marshall. He, too, identified certain intercepted conversations he had with defendants. Both Addonizio and Kreybig interpreted certain words and phrases in those conversations that evidenced their involvement with co-defendants in the distribution of narcotics.
The testimony of Addonizio and Kreybig was frequently interrupted as both Kingston and Ruta were repeatedly re-called as witnesses to supply explanations for various terms used in the intercepts. Additionally, the prosecutor played dozens of intercepted conversations between Marshall, Gunnell, Matos and Royster, and asked both agents to explain various terms contained therein.
For example, Addonizio identified the voices in one intercept as those of defendants. The same intercept was later played for the jury during one of Kingston's numerous appearances as a witness. The detective testified that Royster's use of the phrase, "I got some shorts," in his conversation with Marshall meant that Royster had half-gram or gram quantities of cocaine. Royster is heard in the intercept stating, "I think he gettin[g] like three-fifty, three hundred you know what I'm sayin[g]," noting "I think he goin[g] like fifteen." Kingston testified that defendants were discussing another individual's selling price for marijuana, which Kingston described as $300 to $350 for a quarter-pound of marijuana and $1,500 for a whole pound.
During another intercept, Kingston was asked to explain Marshall's reference to a "taxi." The detective explained that this referred to an investigation that had been conducted in Ocean County months earlier in which a taxi company was being used as a front for narcotics distribution.
Defendants also lodged objections when Kingston was asked to explain, for example, a conversation in which Marshall told Addonizio that he "ain't gonna be coming down." Defense counsel argued the language required no explanation, because its meaning was within the ken of the average juror. The judge overruled the objection, and permitted Kingston to explain that the phrase meant Marshall was not going to drive to Ocean County from his home in northern New Jersey.
The State's case was bolstered by visual surveillance of meetings between Royster and Gunnell. The surveillance coincided with conversations between them and others, corroborating that the intercepted phone conversations were discussions involving drug dealing. The State also conducted visual surveillance of Kreybig's residence on November 5, 2008. An investigator testified to seeing Marshall park his SUV across the street, remove a large duffel bag from the vehicle and enter Kreybig's home.
Kreybig described the raid conducted at his residence shortly thereafter. Investigators seized the duffel bag and more than nine pounds of marijuana from inside the home, and more than forty grams of cocaine from Marshall's vehicle. On the same day, police executed a search warrant at a home frequented by Royster, and where he had been seen on other occasions with Gunnell. Although Royster was not present, the investigators found marijuana in a drawer in the bedroom alongside documents identifying Royster, as well as a digital scale and plastic baggies elsewhere in the house.
After police executed the search warrants, Royster attempted to contact Marshall. In an intercepted message left on Marshall's phone, Royster said, "[n]othing I could do yo, I got to get Robbie number. Damn come on I'm gonna run JD." Royster attempted to contact Marshall repeatedly thereafter, and in one conversation, he referenced being on the phone with Addonizio as police arrived at Addonizio's home. Defendants did not testify or call any witnesses at trial.
II.
Both defendants argue that, although neither Kingston nor Ruta was qualified as an expert, the State did not furnish any advance notice that they would be called as experts and no expert report was provided in discovery, both were permitted to offer extensive expert opinion testimony. Defendants contend that the judge erred in admitting this testimony as "lay opinion."
The State counters by arguing that the opinions were based on the investigators' personal perceptions of the intercepted conversations, their knowledge of the investigation and the statements made by cooperating co-defendants. According to the State, both Kingston's and Ruta's opinions about the meanings of cryptic conversations were "lay opinions" admissible pursuant to N.J.R.E. 701. The State agrees with the conclusion expressed in the judge's written opinion that because "the offered testimony [did] not go to the ultimate issue but only to interpreting ambiguous recorded conversations, McLean . . . d[id] not apply."
We ordinarily review the trial court's evidentiary rulings to determine whether there was a mistaken exercise of discretion. State v. J.D., 211 N.J. 344, 354 (2012). However, when the trial court "fails to apply the proper test in analyzing the admissibility of proffered evidence[,]" our review is de novo. Villanueva v. Zimmer, 431 N.J. Super. 301, 310 (App. Div.) (quoting Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012)), certif. denied, 216 N.J. 430 (2013); see also State v. Darby, 174 N.J. 509, 518 (2002) (applying de novo review when the trial judge failed to recognize evidence was subject to N.J.R.E. 404(b) analysis). In this case, we apply de novo review to the trial judge's determination that Kingston's and Ruta's opinions were lay opinions admissible pursuant to N.J.R.E. 701.
N.J.R.E. 701 provides:
If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.Perception is "the acquisition of knowledge through use of one's sense of touch, taste, sight, smell or hearing." McLean, supra, 205 N.J. at 457.
In McLean, a police officer who observed certain behavior was permitted to opine that the defendant had engaged in a drug transaction. Id. at 443. The Court determined that "the opinion offered by the officer d[id] not meet the requirements needed to qualify it as a lay opinion," pursuant to N.J.R.E. 702. Ibid. The Court noted "the boundary line that separates factual testimony by police officers from permissible expert opinion testimony," explicating that "[o]n 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." Id. at 460. "On the other side of that line" is expert testimony, permitted to "explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury." Ibid. (emphasis added). The Court rejected the State's theory on appeal that "there [was] a category of testimony that lies between those two spheres, governed by the lay opinion rule, that authorizes a police officer, after giving a factual recitation, to testify about a belief that the transaction he or she saw was a narcotics sale." Id. at 461. The Court reasoned that the "significance" of such factual testimony "does not fall outside the ken of the jury." Ibid.
We acknowledge that McLean is factually inapposite to this case. However, the subject matter of Kingston's and Ruta's testimony was outside the ken of an average juror, and therefore not the proper subject of lay opinion. A lay witness is permitted to "'give an opinion on matters of common knowledge and observation'" based on his perception. State v. Bealor, 187 N.J. 574, 586 (2006) (emphasis added) (quoting State v. Johnson, 120 N.J. 263, 294 (1990)); see also McLean, supra, 205 N.J. at 457-58 (collecting cases demonstrating "[t]raditional examples of permissible lay opinions"); Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 701 (2015) (same). In other words, it is the common experiences of lay people that define the boundaries of permissible lay opinion. If the subject matter is within the ken of average jurors, a lay witness may render an opinion based upon his or her own perceptions.
This is contrasted with expert opinion, the subject of N.J.R.E. 702. That rule provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.Expert opinion testimony is permitted if the subject matter is beyond the ken of the average juror. State v. Kelly, 97 N.J. 178, 208 (1994). "If the matter is within the competence of the jury, expert testimony is not needed." State v. Sowell, 213 N.J. 89, 99 (2013) (citing State v. Odom, 116 N.J. 65, 76 (1989)).
[(Emphasis added).]
It is beyond cavil that both Kingston's and Ruta's explanations about the meaning of cryptic and slang expressions heard in the intercepts dealt with subject matter that was outside the common knowledge of the average juror. Obviously, the State understood this, because it went to great length to have Kingston, and to a lesser extent, Ruta, explain their experience and training to the jury. Because opinions about the meaning of cryptic slang heard on intercepted phone calls are not opinions about "matter[s] of common knowledge and observation," they are not lay opinions at all. Bealor, supra, 187 N.J. at 586; see also State v. Nesbitt, 185 N.J. 504, 521 (2006) (Albin, J., dissenting) ("I do not question the need for expert testimony on arcane subjects that would enlighten the jury. An average juror will not know the meaning of code language used by drug distributors . . . .").
The two cases primarily relied on by the trial judge do not compel a different conclusion. In State v. Johnson, 309 N.J. Super. 237 (App. Div.), certif. denied, 156 N.J. 387 (1998), a lay witness was permitted to explain the meaning of an expression, "'get paid,'" which the defendant had used during a conversation between the two. Id. at 263. We upheld the trial court's decision permitting the witness to explain the term meant "getting money or sex" as admissible lay opinion. Ibid.
We question whether opinion testimony was necessary to explain such a common term. See Biunno, Weissbard & Zegas, supra, comment 1 on N.J.R.E. 701 (questioning the admissibility of lay opinion in these circumstances to "determine the common sense meaning" of the defendant's words). In any event, like the witness in Johnson, Kreybig and Addonizio explained their understanding of conversations they actually had with defendants. Defendants have not challenged the admissibility of that testimony.
However, neither Kingston nor Ruta were participants in the intercepted conversations. They instead relied upon their experience, training and knowledge of the entire investigation to explain the meaning of defendants' words. This qualitative distinction makes all the difference.
Our colleagues in Johnson cited a number of federal court decisions as persuasive. Id. at 263. One of which, United States v. Garcia, 994 F.2d 1499 (10th Cir. 1993), was relied upon by the trial judge in this case. In Garcia, an "FBI language specialist," who translated recorded conversations and opined as to their meaning, testified that a reference in one conversation to "your old man" referred to the defendant. Garcia, supra, 994 F.2d at 1502, 1505. The court noted that this particular testimony was not "opinion as to jargon used in the drug trade which may be explained by expert opinion testimony." Id. at 1506 (emphasis added). The court emphasized, however, that because "no specialized knowledge is necessary to understand" the term, "expert testimony on this point was unnecessary." Ibid. Instead, the court held that the testimony was admissible as lay opinion. Id. at 1506-07. In our opinion, Garcia supports defendants' position in this case.
Our colleagues in Johnson also cited two other federal cases, United States v. Delpit, 94 F.3d 1134, 1145 (8th Cir. 1996), and United States v. Lowe, 9 F.3d 43, 47 (8th Cir. 1993), cert. denied, 510 U.S. 1181, 114 S. Ct. 1229, 127 L. Ed. 2d 573 (1994). Johnson, supra, 309 N.J. Super. at 263. Like Garcia, both cases actually involved expert opinion testimony regarding the meaning of cryptic slang, and both support defendants' position in this case.
We turn to the much more difficult issue, that is, whether the admission of Kingston's and Ruta expert opinion testimony was "clearly capable of producing an unjust result." R. 2:10-2. "In determining whether the admission of disputed evidence was harmless, we focus on 'whether in all the circumstances there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits[.]'" State v. Kemp, 195 N.J. 136, 149 (2008) (quoting State v. Macon, 57 N.J. 325, 338 (1971)).
As to Royster, we conclude the improper admission of the extensive expert testimony raises a reasonable doubt as to whether it denied defendant a fair trial. There were significantly fewer intercepted conversations involving Royster than those involving Marshall or the other co-defendants. This was possibly due to the fact that Royster's phone was not tapped. However, the lesser number of intercepts only heightens the significance of Kingston's and Ruta's testimony.
Additionally, although some physical evidence was seized from a residence associated with Royster, the jury acquitted him of the possessory offense and convicted him only of the conspiracies. While the evidence in that regard included the testimony of Addonizio and Kreybig, it relied extensively upon the interpretations provided by Kingston and Ruta to the intercepted conversations in which neither Addonizio nor Kreybig were involved. We are, therefore, constrained to reverse Royster's convictions.
Assessing the impact of the improperly admitted expert opinion testimony as to Marshall is more difficult. There were several intercepts of Marshall's conversations with Kreybig and Addonizio, as well as their testimony before the jury regarding the nature and extent of the conspiracies. However, to prove Marshall was the "leader of a narcotics trafficking network," N.J.S.A. 2C:35-3, the State was required to prove
"(1) that the defendant conspired with at least two others; (2) that the defendant was an organizer, supervisor, financier, or manager; (3) that the defendant engaged in the conspiracy for profit; and (4) that the conspiracy included a scheme or course of conduct unlawfully to manufacture, distribute, dispense, or transport a controlled dangerous substance . . . ."Defendant must have "occupie[d] a high-level position, that is, a position of superior authority or control over other persons, in a scheme or organization of drug distribution . . . and that in that position the defendant exercised supervisory power or control over others engaged in an organized drug-trafficking network." Alexander, supra, 136 N.J. at 570-71.
[State v. Ellis, 424 N.J. Super. 267, 274 (App. Div. 2012) (emphasis added) (quoting State v. Alexander, 136 N.J. 563, 568 (1994)).]
Therefore, the expert testimony was critical in demonstrating Marshall's "status or position," a material element of the crime. Ellis, supra, 424 N.J. Super. at 274. The expert interpretations of conversations between Marshall and Royster were similarly critical in assessing their joint participation in the conspiracies charged in counts two and seven.
The expert testimony regarding the intercepted conversations, however, was not significant with respect to proving that Marshall possessed cocaine and marijuana with the intent to distribute them on November 5, 2008, as charged in counts nine and ten. When search warrants were executed, Marshall was found to be in possession of significant amounts of both. The State offered expert opinion testimony regarding the evidence actually seized. In other words, there was sufficient evidence to prove Marshall's guilt beyond a reasonable doubt, even if all the intercepted calls and the expert opinion testimony about them were excluded.
As a result, we are compelled to reverse Marshall's convictions on counts one, two and seven. We affirm the convictions on counts nine and ten.
III.
We consider the remaining points raised on appeal for the sake of completeness and to provide guidance in the event the matter is tried again.
A.
Royster contends that providing the jury with instructions on flight was improper. He argues that "the flight charge was largely premised upon inadmissible hearsay." We agree.
The following exchange occurred during Royster's counsel's cross examination of Agent Ruta:
Q. [W]hat I'm asking for or what I'm looking to ask you is what your answer would be as to Karriem Royster in terms of the basis for voice identification?The judge overruled Royster's objection, reasoning that defendant had "opened the door."
A. The basis would be the same as would be for identifying Mr. Marshall.
Q. Same three? The same three things?
A. Except for, the only difference with Mr. Royster is that we did not get a chance to speak with him on November 5[] because he fled from his house before we had a chance to speak with him.
Q. Are you aware, are you aware of him fleeing? You have direct knowledge of that?
A. Do I have direct knowledge? That was relayed to me.
"Evidence of flight or escape from custody by an accused generally is admissible as demonstrating consciousness of guilt, and is therefore regarded as probative of guilt." State v. Mann, 132 N.J. 410, 418 (1993). To find flight, the jury must conclude there was both departure and "'the motive which would turn the departure into flight.'" State v. Latney, 415 N.J. Super. 169, 176 (App. Div. 2010) (quoting State v. Wilson, 57 N.J. 39, 49 (1970)). The propriety of admitting the evidence and delivering the instruction depends upon:
[T]he degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.Whether there is sufficient evidence in the record to support a flight charge is left to the sound discretion of the trial judge. State v. Long, 119 N.J. 439, 499 (1990).
[Ibid. (quoting Mann, supra, 132 N.J. at 420).]
We disagree with the judge's assessment of the above colloquy. Ruta had previously testified as to three bases for his conclusion that Marshall's voice was heard during the intercepts, one of which was that he recognized Marshall's voice because he heard it when Marshall was arrested and gave "pedigree" information. Defense counsel was challenging Ruta's ability to distinguish his client's voice on the intercepted call. However, instead of simply saying he had not heard Royster's voice to use as a point of comparison, Ruta volunteered that he was unable to do so because defendant fled, a fact of which he had no personal knowledge.
The hearsay information, i.e., that someone "relayed" to Ruta that defendant fled, was therefore improperly before the jury. Critically, there was no other testimony in the record that defendant was indeed at the subject address and fled when he became aware that search warrants were being executed.
In arguing that a flight instruction was appropriate, the State also relied upon defendant's own words, captured in a series of calls he made to Marshall's phone contemporaneous with the execution of search warrants. However, stating one's intention to run, absent actual proof that one fled, is insufficient evidence upon which the jury can infer flight.
We venture no opinion on whether the State can marshal sufficient evidence at any subsequent trial such that a flight charge would be warranted. We only opine that Ruta's statement should have been excluded, and, based upon the rest of the evidence actually adduced at trial, it was inappropriate to provide the jury with instructions on flight.
B.
The remaining points raised on appeal require little discussion.
Both defendants contend that Kingston's testimony regarding information obtained from confidential informants and corroborated by controlled purchases of CDS violated N.J.R.E. 404(b), and the principles first enunciated in State v. Bankston, 63 N.J. 263 (1973). As noted, the judge gave an immediate curative instruction to the jury. Marshall also cites the testimony of a detective explaining that he was surveilling Royster because he had "received information that [Royster] would be delivering a quantity of CDS" to Gunnell. The judge overruled defense counsel's timely objection.
We need not address the issue in detail. We agree that in both instances, the testimony was improper and certainly should not be repeated in the event there is a new trial.
Royster argues that the judge erroneously admitted hearsay pursuant to the co-conspirator exception to the hearsay rule, N.J.R.E. 803(b)(5), because there was insufficient independent evidence of Royster's involvement in a conspiracy. See State v. Savage, 172 N.J. 374, 402 (2002) (explaining the exception applies to a statement made in furtherance of the conspiracy, during the course of the conspiracy and that there must be "'evidence, independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it'") (quoting State v. Phelps, 96 N.J. 500, 509-10 (1984)). The argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Marshall contends that the evidence was insufficient to support his conviction of being a leader of a narcotics trafficking network. In light of our decision, we do not address this argument or the sentencing arguments each defendant raises.
In summary, in A—5127-11, we reverse and remand the matter to the Law Division for further proceedings. In A-0592-12, we affirm Marshall's conviction as to counts nine and ten; we reverse the judgment with respect to the remaining counts. We remand the matter to the Law Division to accord Marshall the opportunity to withdraw his guilty plea to count twenty-three in accordance with Rule 3:9-3(f), and for further proceedings consistent with this opinion.
We direct the parties' attention to our decision in State v. Young, 379 N.J. Super. 498, 508 (App. Div.) citing State v. Espino, 264 N.J. Super. 62, 70-71 (App. Div. 1993)), certif. granted and remanded, 188 N.J. 349 (2006). In Young, we held that when a conviction for a certain count is vacated on direct appeal, the court may "review what remains of its original sentence plan and . . . reconstruct the sentence to ensure that the punishment fits both the crime and the criminal." id. at 508-09. The defendant's double jeopardy and due process rights are not violated, as long as the resentencing does not result in an aggregate sentence greater than the original sentence. Ibid. --------
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION