State v. Mclean

Decision Date31 March 2011
Citation205 N.J. 438,16 A.3d 332
PartiesSTATE of New Jersey, Plaintiff–Respondent,v.Kelvin L. McLEAN a/k/a Kevin McLean, Defendant–Appellant.
CourtNew Jersey Supreme Court

OPINION TEXT STARTS HERE

Frank J. Pugliese, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Pugliese and Elizabeth H. Smith, Designated Counsel, on the briefs).Christopher W. Hsieh, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney).Justice HOENS delivered the opinion of the court.

In this matter, we address the permissible scope of lay opinion testimony in the context of prosecutions involving alleged street-level narcotics transactions. More specifically, we consider whether a police officer, who observed defendant Kelvin McLean engage in behavior that the officer believed was a narcotics transaction, should have been permitted to testify about that belief pursuant to the lay opinion rule. See N.J.R.E. 701. Because we conclude that the opinion offered by the officer does not meet the requirements needed to qualify it as a lay opinion, and because we conclude that permitting the officer to testify about his opinion invaded the fact-finding province of the jury, we reverse defendant's conviction and remand for further proceedings.

I.

The facts relevant to the issue before this Court are drawn from the testimony of the witnesses at defendant's trial. On September 7, 2005, three groups of police officers were involved in an undercover surveillance operation in the City of Paterson. The officers were either performing surveillance or serving as back-up units. Detective Altmann and his partner were leading the surveillance by observing the street from their unmarked vehicle. According to Altmann, he saw an individual, later identified as defendant, engage in two transactions. The first occurred shortly before 11:00 a.m. and began when another person approached defendant. After the two conversed briefly, defendant walked into a parking lot, where Altmann could no longer see him. Defendant returned about a minute later and handed one or more small items to the other person, who gave defendant what Altmann said appeared to be paper money. After the other person walked away, Altmann radioed a description of him to the back-up officers, but they were unable to find him.

The second transaction began about ten minutes later and was similar, with defendant engaging in a brief conversation with a different individual and then walking into the parking lot and out of Altmann's view. Altmann testified that he was concerned that there might be “a possible drug stash” nearby, so he and his partner drove to a new surveillance location from which they could see the parking lot. After they arrived and parked, Altmann saw defendant getting out of the front passenger-side door of a white Mercury Sable which was parked in the lot. Defendant then walked back to the individual with whom he had conversed and Altmann, using binoculars, observed what appeared to him to be an exchange of money for a small item. As with the first transaction, Altmann radioed his back-up unit with a description of the individual he had seen interacting with defendant, but a search for him also proved fruitless.

Shortly thereafter, Altmann contacted the back-up units and told them to move in. Two detectives drove into the parking lot, stopped directly in front of the white Mercury Sable, and approached the front of the car from opposite sides. Detective Sergeant Maher saw defendant in the passenger seat and ordered him to step out of the car. As he did, Detective Formentin, who was on the driver's side, saw a small package on the passenger-side floor that he believed contained heroin. He walked around the car and picked up the package, which turned out to be a bundle of ten glassine envelopes, each stamped “Arrival Killer” in green ink and which later were proved to contain heroin. He then searched the rest of the vehicle and, in the glove compartment, he found a plastic bag containing a substance that laboratory tests confirmed to be crack cocaine. After defendant was arrested, police found twenty dollars on his person and $384, comprised entirely of bills in small denominations, in the vehicle.

A.

At defendant's trial, Detective Altmann, who had conducted the surveillance, was the State's first witness. Because it is his testimony that gives rise to the question presented to this Court, we recount it in some detail.

Within the first few minutes of the start of Altmann's testimony, the following exchange took place:

PROSECUTOR: Could you tell us what those observations were?

WITNESS: On that day, September 7th, after Detective Sergeant Bailey and myself set up surveillance of the area of Carroll Street by Governor and Harrison Street over there, we were able to observe an individual later identified as Kevin McLean, engage in two suspected hand-to-hand drug transactions in that area in which he was going into a particular vehicle that was parked on the Harrison Street side of 43–45 Carroll Street. It's a parking lot alongside the building. Which he would go into the front passenger seat of a white Mercury Sable to retrieve his suspected drugs from his suspected drug stash.

Approximately a minute later, the following exchange occurred between the Prosecutor and Altmann:

PROSECUTOR: Now you stated before that you changed your surveillance location and you came around where the triangle is, is that correct?

WITNESS: Yes.

PROSECUTOR: And the reason for doing that was what?

WITNESS: Because we observed Mr. McLean after the first trans—suspected hand-to-hand transaction after speaking with the suspected buyer, he walked into the parking lot area on Harrison Street side of the building going out of our view, returning approximately a minute later and then after the second individual engaged in a conversation with Mr. McLean, he went to the same direction. At that time believing he may have a possible drug stash location in that area, we changed our surveillance location to see if we could see where he was going for his drugs.

PROSECUTOR: Okay. You can sit down, sir. You stated a couple of times that you observed the defendant do two suspected hand-to-hand transactions. What is that?

WITNESS: That—normally what transpires a suspected buyer will engage in a conversation—

DEFENSE COUNSEL: Objection, Judge, as to normally.

WITNESS: I'm sorry?

DEFENSE COUNSEL: He can testify as to what he observed but—

PROSECUTOR: Detective, could you tell us what—

THE COURT: Let me address the objection. Objection sustained.

After another question and answer, the following took place:

PROSECUTOR: Okay. And so by the use of the binoculars, were you able to see what was happening clearly?

WITNESS: I could see what was happening clearly, yes.

PROSECUTOR: Now, in your experience, sir, have you seen that type of conduct before?

WITNESS: Yes.

PROSECUTOR: Okay. And—and—and in your experience, did you at that—well let me—strike that. At that point, did you suspect that this was a hand to hand drug transaction?

DEFENSE COUNSEL: Objection, Judge, as to the question. That's a fact for the jury to decide.

THE COURT: Rephrase your question. Objection sustained.

PROSECUTOR: So based on your own experience sir, and your own training, what did you believe happened at that time?

DEFENSE COUNSEL: Objection, Judge, he's asking for a conclusion, not a fact.

PROSECUTOR: Judge, my response would be that it would go to the reason why he's looking, it's not calling for a conclusion. It's calling for his belief and his suspect—his, you know, his own suspicion that later will or will not be confirmed.

During an extensive colloquy with the court outside of the jury's presence, defendant's counsel continued to argue that it was inappropriate for Altmann to offer testimony about his beliefs or his conclusions, while the prosecutor asserted that the officer could testify based on his experience that he had observed a drug transaction. As part of that debate, the prosecutor argued that N.J.R.E. 701, which governs lay opinion testimony, applied and that therefore the officer should be permitted to testify about his belief that he had seen a drug transaction. The court agreed with the prosecutor, overruling defendant's objection, and holding:

THE COURT: You know, I agree with the argument of the State pursuant to [ N.J.R.E.] 701. It's analogous to the question of whether or not an area is a high crime area. A police officer with experience testifies that based on his experience and the area, having conducted many investigations in the area he concludes that it is a high crime area. I'm going to permit the question.

When, in responding to the prosecutor's next question, the detective referred to defendant by name, defendant's counsel again objected and moved for a mistrial, arguing that the use of defendant's name when responding to a hypothetical violated strict limitations on expert testimony established by this Court in State v. Odom, 116 N.J. 65, 81–82, 560 A.2d 1198 (1989), and in State v. Summers, 176 N.J. 306, 315, 823 A.2d 15 (2003). The court disagreed, reasoning that the question was not a hypothetical and that it was not posed to an expert, and concluding that Odom and Summers were therefore inapposite. Again relying on N.J.R.E. 701, the court denied defendant's motion for a mistrial.

The State presented two other witnesses at defendant's trial, Detective Formentin, who had observed the package of heroin in the car, and Sergeant Maher, who was in one of the back-up units. After the State rested, defendant testified on his own behalf. He presented a different version of events, testifying that he was standing in front of the apartment building, where he was then living with his aunt, because he had gone outside to play dice with some neighbors and to smoke a cigarette....

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