State v. Summers

• Decision Date: 24 April 2002
• Citation: 795 A.2d 308,350 N.J. Super. 353
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. David SUMMERS, Defendant-Appellant.
• Court: New Jersey Superior Court

795 A.2d 308

350 N.J. Super. 353

STATE of New Jersey, Plaintiff-Respondent, v. David SUMMERS, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted March 25, 2002.

Decided April 24, 2002.

Peter A. Garcia, Acting Public Defender, attorney for appellant (Jodi Ferguson, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Casey N. MacDonald, Assistant County Prosecutor, of counsel and on the brief).

Before Judges PETRELLA, KESTIN, and STEINBERG. The opinion of the court was delivered by STEINBERG, J.A.D

An Atlantic County grand jury returned Indictment No. 99-5-850 charging defendant David Summers as follows: thirddegree unlawful possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a controlled dangerous substance, cocaine, with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count two); third-degree distribution of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35(5)(a)(1), (b)(3) (count three); second-degree possession of a controlled dangerous substance, cocaine, with the intent to distribute within 500 feet of a public housing facility, public park, or public building, N.J.S.A. 2C:35-7.1 (count four); second-degree distribution of a controlled dangerous substance, cocaine, within 500 feet of a public housing facility, public park, or public building, N.J.S.A. 2C:35-7.1 (count five); and fourth-degree use of a remotely activated paging device while engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit an offense enumerated in Chapter 35 of Title 2C, N.J.S.A. 2C:33-20 (count six).

A jury found defendant guilty of the charges set forth in counts one through five, and not guilty of the fourth-degree offense of possession of a paging device. After denying the State's application to sentence defendant to a discretionary extended term, the judge merged counts one through four into count five and imposed a sentence of nine years of incarceration. The appropriate monetary penalties, fees, and assessments were also imposed. In addition, the judge suspended defendant's driver's license for a period of six months. Defendant appeals. We affirm.

According to the State's proofs, on April 20, 1999, Atlantic City Detective Sam Dickson was part of an undercover surveillance operation on Texas Avenue, near the boardwalk. He was parked on the street, sitting in an unmarked police vehicle, when he observed a man walking on Texas Avenue toward him. The man stopped, and two other men approached him. Although the men were 100 to 150 feet away from the officer, Dickson used binoculars to "bring them closer." He observed defendant engage in a conversation with a person subsequently identified as Peter Dyer.¹ Dickson could not tell if the third individual was involved in the conversation.

After this brief conversation, the three men crossed Texas Avenue and stopped in front of a boarded up home at 127 South Texas Avenue. The home appeared to be abandoned. Defendant and the unidentified man walked toward the home while Dyer waited on the sidewalk and faced the home. Dickson then observed defendant and Dyer face each other. Defendant appeared "to have something in the palm of his hand." As defendant "extended" his hand, Dyer looked into defendant's palm. According to Dickson, defendant handed "objects" to Dyer, who, in turn, gave something to defendant. Although Dickson conceded he "only got a very quick glimpse" of the object Dyer gave defendant, he believed it to be paper currency.

Dyer then left, crossing back over to the west side of Texas Avenue holding the objects he had just received from defendant in his right hand. As Dickson continued to watch Dyer, he noticed that from "time to time, Dyer would look down into the palm of his hand." Dyer did not drop anything onto the ground, pick up anything, or stop to talk with anyone as he walked. Believing he had just observed a drug transaction, Dickson radioed back-up officers and gave them a description of the three men as well as their location. Dickson said he would intercept Dyer and asked the back-up officers to stop defendant, as well as the other person. Dyer walked "directly up to [Dickson's] vehicle." Dickson got out of his car, and as he was about to identify himself as a police officer, Dyer looked directly at him and put his right hand up to his mouth. According to Dickson, Dyer put something into his mouth. Dickson identified himself as a police officer and ordered Dyer to open his mouth. Dickson observed several bags on Dyer's tongue and ordered him to spit them out. Dyer spit two bags out. Dickson ordered him to open his mouth again because he saw more than two bags. Dyer complied. Dickson saw two more bags on Dyer's tongue, and ordered him to spit them out as well. Again, Dyer complied.

In response to Dickson's request for back-up, Detective Joseph Falcone and other members of the narcotics unit proceeded to the area. Falcone stopped defendant in front of 127 South Texas Avenue. After he identified himself as a police officer, Falcone conducted a patdown search of defendant. During the course of the pat-down, Falcone found a cigarette box inside defendant's left jacket pocket. The cigarette box contained a plastic bag with a picture of an apple and the numbers 1212 written on the front. Within that bag were fifty small, plastic bags which contained a "white rocky substance." The substance in the bags was later determined to be cocaine, which was packaged in $10 bags with an estimated street value of $500. Falcone also seized $262.20 from defendant. Falcone compared the bags he had seized from defendant with the bags Dickson had recovered and noted they were identical.

On this appeal defendant raises the following arguments:

POINT I

THE ADMISSION OF EXPERT TESTIMONY ON DRUG TRAFFICKING THAT INCLUDED THE OPINION THAT DEFENDANT HAD ENGAGED IN DISTRIBUTION IMPERMISSIBLY INVADED THE PROVINCE OF THE JURY, IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (NOT RAISED BELOW).

POINT II

THE PROSECUTOR'S REMARKS IN SUMMATION, WHICH VOUCHED FOR THE CREDIBILITY OF THE STATE'S WITNESSES, WERE PLAIN ERROR WARRANTING REVERSAL. (NOT RAISED BELOW).

POINT III

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

We first consider defendant's contention that the expert testimony on drug distribution offered by Detective Donna Price invaded the province of the jury necessitating a reversal of his convictions. We reject that contention.

Without objection, the State offered the testimony of Detective Donna Price as an expert on drug distribution. She was asked the following hypothetical question:

Atlantic City police are conducting a surveillance in the area of the beach block of Texas Avenue. It's approximately 8:45 at night in April of 1999. During the course of their surveillance they see three males. There is one male walking, and then he is approached by two other males. There is a brief conversation between the first male and one of the [other] males, very brief, approximately twenty seconds. After that the males leave one side of the street and go to an abandoned house up on a cement pad. At that point the third male separates himself, and the first male and the second male appear to be in a conversation.

At one point this second male has an object in his hand which he shows to the first male. We'll call him S-1. And S-1 looks at what S-2 has in his hand. At that point, S-2 hands S-1 the objects, and S-1 hands S-2 the money. At that point the two separate. S-1 is later stopped by the police, and while he's being stopped he puts what he got into his mouth. He is told to spit it out, which he does. The police recover four small zip-loc baggies containing cocaine.

The other male, S-2, is then stopped a short distance away, and recovered from him in a cigarette box containing 50 small zip-loc baggies. He has $262 on him, as well as an activated pager. The baggies found on the second male are identical to the baggies found on the buyer.

The second male that was with S-2 is at a distance apart from him and has no drugs on him. The cigarette box is recovered from S-2's person. The other person was not charged; he was released. This happened on the beach block of Texas Avenue in Atlantic City.

Do you have an opinion as to whether S-2 in this hypothetical was engaged— possessed those drugs for his own use or for distribution? A. For distribution.

When asked how she arrived at that conclusion, Price replied that she relied upon all of the facts given her in the hypothetical question. She also opined that the fact that defendant had no drug paraphernalia was significant because buyers usually have some type of instrument to inject or ingest the drug that they are buying. When asked if there was any significance to the amount of money confiscated from "the second male," she said, "[T]hat's telling me he was distributing drugs." In addition, when asked if the fact that a larger zip-loc bag having "a little red apple on it," which contained the smaller baggies, altered her opinion as to whether the drugs were possessed for personal use or distribution, she responded, "I would say for distribution." Again, when asked if there was any significance to "the fact that the baggies found on the buyer match[ed] the baggies found on the seller," she responded, "[T]hat would tell me that S-2 was distributing them, if they are the same type of packaging." In addition, when asked the significance of the drugs being found in a cigarette box, the area involved, the fact that the person had fifty small bags, and that the exchange was quick, all led her to conclude "that the person was distributing."

Defendant contends that the expert testimony unfairly infringed on the...