State v. Covil
| Decision Date | 22 January 2020 |
| Docket Number | A-35/36 September Term 2018,081267 |
| Citation | 223 A.3d 153,240 N.J. 448 |
| Parties | STATE of New Jersey, Plaintiff-Appellant/Cross-Respondent, v. Roger COVIL, Defendant-Respondent/Cross-Appellant. |
| Court | New Jersey Supreme Court |
Paul H. Heinzel, Assistant Prosecutor, argued the cause for appellant/cross-respondent (Michael H. Robertson, Somerset County Prosecutor, attorney; Paul H. Heinzel, Trenton, and Alexander C. Mech, Hackensack, Assistant Prosecutor, of counsel and on the briefs).
Daniel S. Rockoff, Assistant Deputy Public Defender, argued the cause for respondent/cross-appellant (Joseph E. Krakora, Public Defender, attorney; Daniel S. Rockoff, of counsel and on the briefs).
Valeria Dominguez, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Valeria Dominguez, of counsel and on the brief).
Defendant Roger Covil was convicted of first-degree possession with intent to distribute five ounces or more of cocaine. The Appellate Division reversed defendant's conviction, and this Court granted cross-petitions for certification filed by the State and defendant.
This appeal presents two issues. First, we consider defendant's challenge to the trial court's admission of the opinions of the State's drug expert witnesses. Responding to hypothetical questions that tracked the evidence admitted at trial, one expert witness testified about the significance of packaging materials and currency in the distribution of cocaine, and the other testified about the use of cellphones in drug distribution.
Two years after defendant's trial, the Court decided State v. Cain, 224 N.J. 410, 133 A.3d 619 (2016), and State v. Simms, 224 N.J. 393, 133 A.3d 609 (2016). Those decisions limited the State's use of hypothetical questions in the presentation of drug expert testimony in criminal trials. Reversing defendant's conviction in this case, the Appellate Division retroactively applied Cain and Simms, and held that the trial court committed error when it admitted the testimony of the State's expert witnesses.
As the language of Cain makes clear, the new rule stated in Cain and Simms was intended to apply prospectively to guide future trials, not retroactively to proceedings conducted prior to those decisions. At the time of defendant's trial, the governing law authorized the use of hypothetical questions such as the questions posed to the State's experts in this case. The Court accordingly reverses the Appellate Division's judgment with respect to that issue.
Second, we address defendant's argument that the trial court violated his constitutional rights and principles of fundamental fairness when it admitted into evidence a notice of motion for a writ of replevin and supporting certification that he served in a civil forfeiture action that had been stayed at his attorney's request. In those pleadings, defendant asserted that he owned $71,519 in currency that had been seized from his person and his residence, claimed that he lawfully obtained those funds, and demanded the return of those funds.
As we just held in State v. Melendez, three provisions of the civil forfeiture statute -- N.J.S.A. 2C:64-3(d), -3(e), and -3(f) -- could operate to compel a criminal defendant to choose between asserting his due process right to claim property subject to forfeiture and invoking his Fifth Amendment privilege against self-incrimination, thus implicating the United States Supreme Court's ruling in Garrity v. New Jersey, 385 U.S. 493, 496-500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). 240 N.J. 268, 278–82, 222 A.3d 639, 2020 WL 86613 (2020). To protect the Fifth Amendment right of such a claimant, we found that an answer filed in a civil forfeiture action pursuant to N.J.S.A. 2C:64-3(f) is inadmissible in the claimant's criminal trial. Id. at 281–84, 222 A.3d 639.
In contrast to the defendant in Melendez, who was required to serve an answer in the civil forfeiture action in order to defend his interest in the disputed property, defendant in this case was not compelled to file any pleadings in the civil forfeiture action against him when he served his motion for a writ of replevin because the forfeiture action had been stayed at his attorney's behest. In addition, during defendant's criminal trial, his counsel affirmatively relied on defendant's certification in the civil forfeiture action as uncontroverted proof that defendant obtained the seized currency through lawful means.
In light of the distinctions between Melendez and the present case, we find no error in the trial court's admission of defendant's notice of motion for a writ of replevin and certification.
We therefore reverse the Appellate Division's judgment and reinstate defendant's conviction.
Based on information obtained in a drug investigation, Detective John Walsh of the Somerset County Prosecutor's Office was directed to inspect a package at a United Parcel Service (UPS) facility.1 The UPS package label bore the return address of a business in Phoenix, Arizona. The package was addressed to "Kathy Land" at 308 Coventry Lane in Somerset, a residence in an apartment complex. Detective Walsh arranged for a K-9 unit to conduct a drug detection sniff of the UPS package. A drug detection dog reacted to the package in a manner that, according to the dog's handler, indicated the presence of drugs.
Police officers obtained a search warrant authorizing them to open the package, and examine its contents, and to search 308 Coventry Lane if the package, once delivered to that address, was brought into the residence. Pursuant to the warrant, an officer opened the package and field-tested its contents. The field test indicated the presence of cocaine.
The officer then resealed the package and gave it to a UPS driver, accompanied by a police officer posing as a UPS trainee, for delivery to 308 Coventry Lane. Prior to the delivery of the package, officers observed defendant walking around the apartment complex looking at vehicles in the parking lot.
The UPS driver and the police officer posing as a UPS trainee delivered the package to 308 Coventry Lane. The UPS driver rang the doorbell at the front door of the residence. The driver and the officer waited for a response, then left the package near the front entrance of the home.
Ten minutes later, defendant walked to the front entrance of 308 Coventry Lane, picked up the package, and carried it into the residence. Less than a minute later, he emerged from the residence, still holding the package. According to officers conducting surveillance in the apartment complex, defendant began to tear the UPS label off the package as he walked away from the residence. When officers approached defendant, identified themselves, and instructed him to stop, defendant threw the package into a line of trees and attempted to run away. After defendant ran about ten yards, officers placed him under arrest. A search of defendant incident to his arrest revealed three cellphones and $656 in cash. Laboratory testing later indicated that the package contained 1006.6 grams of cocaine.
Pursuant to the search warrant, officers searched 308 Coventry Lane. They found a "Seal-A-Meal" vacuum storage system and three boxes of "Food Saver" heat-sealable bags in a hall closet, a roll of shrink wrap in the basement, and two bags of rubber bands in a bedroom. In the same bedroom, officers found $70,863 in United States currency in denominations ranging from $100 bills to $5 bills, as well as two cellphones, a cellphone charger, and financial and personal documents bearing defendant's name.
Defendant later stipulated that 308 Coventry Lane was his residence and that the room in which the currency and documents were found was his bedroom.
Defendant was indicted on three charges: first-degree possession with intent to distribute five ounces or more of cocaine, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(1) ; second-degree conspiracy to distribute cocaine, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(1), N.J.S.A. 2C:5-2 ; and fourth-degree resisting arrest by flight, contrary to N.J.S.A. 2C:29-2(a).
To convict defendant of the first-degree charge, the State had the burden to prove beyond a reasonable doubt that he "knowingly or purposely" possessed five ounces or more of cocaine with the intent to distribute it. N.J.S.A. 2C:35-5(a)(1), (b)(1).
Shortly after defendant was indicted, the State filed a civil forfeiture action pursuant to N.J.S.A. 2C:64-3. In that action, the State sought forfeiture of the $71,519 in currency seized in the search incident to defendant's arrest and the execution of the search warrant at 308 Coventry Lane. In its civil forfeiture complaint, the State alleged that the currency at issue was associated with drug transactions.
In accordance with N.J.S.A. 2C:64-3(c), the State served the summons and forfeiture complaint on defendant, identifying him as a person "known to have a property interest" in the currency subject to forfeiture. The summons advised defendant that in order to contest the State's action, he was required to file a "written answer or motion and proof of service" within thirty-five days of service.
Represented by the attorney who served as his counsel in his criminal matter, defendant filed an answer to the complaint in the civil forfeiture action, stating a general denial of the allegations in the complaint. He also moved to stay that action pending the resolution of his criminal matter. With the State's consent, the judge assigned to the civil forfeiture action stayed discovery as to defendant in that action and the forfeiture trial "until related criminal proceedings against [defendant] have been concluded by the entry of final judgment or until further Order of the Court."
Notwithstanding the order staying the civil forfeiture action, defendant, then incarcerated, prepared and served on the State in...
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...317, 324–29, 147 A.3d 876 (App. Div. 2016), overruled in part on other grounds by State v. Covil , Docket No. 081267, 240 N.J. 448, 469-73, 223 A.3d 153, 2020 WL 355592, *12–13 (N.J. January 22, 2020) ; State v. Wells , 257 Or. App. 808, 811–14, 308 P.3d 274 (2013).12 Even if we applied the......
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