STATE OF NEW JERSEY v. BARRY BERRY STATE OF NEW JERSEY v. KENNETH DANIELS STATE OF NEW JERSEY v. LEVELL BURNETT (17-06-1583, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1068-18
A-1594-18
A-1884-18
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. March 7, 2022
APPELLATE DIVISION
BARRY BERRY,
Defendant-Appellant.
________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KENNETH DANIELS,
a/k/a KENDAL BURNETT,
Defendant-Appellant.
________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEVELL BURNETT,
a/k/a LAVELLE BURNETT,
Defendant-Appellant.
________________________
Argued (A-1884-18) and Submitted (A-1068-18 and
A-1594-18) December 1, 2021 – Decided March 7, 2022
Before Judges Whipple, Geiger and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 17-06-
1583.
Tamar Y. Lerer, Assistant Deputy Public Defender,
argued the cause for appellant Levell Burnett (Joseph
E. Krakora, Public Defender, attorney; Tamar Y.
Lerer, of counsel and on the briefs).
Joseph E. Krakora, Public Defender, attorney for
appellant Barry Berry (John A. Albright, Designated
Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant Kenneth Daniels (Frank M. Gennaro,
Designated Counsel, on the brief).
Caroline C. Galda, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent State of New Jersey (Theodore N.
Stephens II, Acting Essex County Prosecutor,
attorney; Caroline C. Galda, of counsel and on the
briefs).
Appellant Kenneth Daniels filed a pro se supplemental
brief.
The opinion of the court was delivered by
SUSSWEIN, J.A.D.
A-1068-18
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Co-defendants Kenneth Daniels, Levell Burnett, and Barry Berry appeal
from their jury trial convictions for drug and firearms offenses. All three were
charged and convicted with being leaders of a narcotics trafficking network,
N.J.S.A. 2C:35-3, which is commonly referred to as the "kingpin" offense.
Because they were tried together and raise several common issues regarding
asserted trial errors, we calendared their appeals back-to-back. We now
consolidate their appeals for the purpose of issuing a single opinion.
At trial, a key issue was whether defendants were "high-level" members
of a drug trafficking conspiracy. The State did not present testimony from any
of the persons the prosecutor claimed to be unindicted co-conspirators, that is,
individuals who were supervised or managed by defendants. Accordingly,
there was no testimony from a cooperating witness concerning the inner
workings of the criminal enterprise. Instead, the State relied on wiretapped
telephone calls between defendants to establish their roles within the drug
trafficking conspiracy.
After carefully reviewing the record in light of the applicable legal
principles, we conclude that the State failed to produce sufficient evidence that
Berry occupied a high-level position within the network. Accordingly, the
trial court erred in denying Berry's motion for a judgment of acquittal on the
leader charge. As to Daniels and Burnett, we conclude that—given the
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unusual circumstances of this kingpin prosecution—the jury instructions
provided by the trial court did not adequately define the term "high level." We
therefore reverse their leader convictions and remand for a new trial on that
charge. With respect to all three defendants, we affirm their convictions for
offenses other than the kingpin offense.
I.
We briefly summarize the facts adduced at trial that pertain to the issues
raised on appeal. The investigation by the Essex County Prosecutor's Office
(ECPO) Narcotics Task Force leading to this prosecution began on March 19,
2015, when Daniels was arrested for stealing a car. He was incarcerated in the
Essex County Jail during the six weeks following his arrest. During that
period, the ECPO obtained a wiretap order for a series of recorded telephone
calls involving Berry and Burnett. The jailhouse calls contained discussions
relating to firearms and narcotics distribution. The ECPO also obtained
communication data warrants for information from the Facebook accounts of
the three co-defendants. That information included a post of a photograph of
Daniels and Burnett together. A posted "selfie" of Daniels appeared to have
been taken inside a residence on South 8th Street in Newark.
On April 28, 2015, ECPO Narcotics Task Force Detective Mark
Dempsey was conducting a surveillance of the South 8th Street residence
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because he had been informed that a person of interest in the ongoing
investigation was expected to be at that location. Dempsey saw Burnett leave
the residence and apprehended him. Detectives then executed a search warrant
at that address, seizing nine glassine envelopes of heroin, a handgun that was
found under a mattress, and drug paraphernalia. The officers also found
documents that bore Daniels' name. Police also seized handwritten
correspondence from Daniels to Burnett.
On October 21, 2015, Orange Police Department Detective Craig Barnett
observed a white SUV idling in an area known to police as a "hot spot" for
drug sales and gun violence. The detective recognized Berry, who was sitting
in the driver's seat of the SUV. The detective and his partner parked their car
in a nearby vacant lot and watched Berry using binoculars.
Berry and the passenger were sitting in the SUV talking with the
windows down and the passenger-side door open. After a while, two
individuals approached the vehicle. The detectives observed one of the
individuals give cash to the passenger in exchange for an item the passenger
removed from the center console. The individuals then walked away. Shortly
thereafter, the detectives observed a second apparent transaction when a
woman approached the SUV and handed the passenger cash in exchange for an
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object that was removed from the console. Detective Barnett noticed that
Berry appeared to be operating as a "lookout."
The detectives next observed a woman come out of a nearby liquor store
and approach the SUV. The passenger moved into the backseat and Berry
moved into the passenger seat. The woman who had exited the liquor store got
into the driver's seat and began to drive off. The detectives initiated a motor
vehicle stop. An ensuing search found a bag in the console that contained
eighty-one glassine envelopes of heroin. Berry was charged with possession
of heroin with intent to distribute and other related offenses. A subseq uent
search of his person at the police station revealed $295 in small
denominations.
On December 23, 2015, police executed an arrest warrant for Berry at a
residential building on Sanford Avenue in Newark, New Jersey. Berry was
arrested in the basement apartment. Narcotics fell out of his pants as they
were arresting him. Police then obtained and executed a search warrant for the
apartment. The search revealed a handgun with fourteen rounds of
ammunition, a twelve-gauge shotgun with seven shells, and 550 glassine
envelopes of heroin. Police officers also found $804 in cash and three forms
of identification that bore Berry's name, listing his address at the Sanford
Avenue residence.
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The State at trial played twenty-four intercepted jailhouse telephone
conversations. Seventeen of the calls were placed by Daniels to Berry or
Burnett. Two of those calls were placed by Daniels to other people. Two of
the intercepted calls were placed by Burnett to Daniels. Five calls were placed
by Berry.
The State used unique prisoner identification numbers assigned to each
defendant that each caller must use when they place a call. To identify the
person who was contacted from the jail, the State produced Facebook records
that had phone numbers associated with defendants' accounts.
The State argued that the calls show drug distribution activity and
introduced expert testimony as to the meaning of several slang words and
phrases used in the illicit drug trade. The State's expert, Detective Leon
Holloway, opined that references in the calls to "dubs," "nicks," "dimes," and
"jugs" referred to quantities of narcotics. Holloway testified that numbers
mentioned in the calls related to the price of heroin. He also testified that
discussions concerning "grinding," "hustling," and "working" referred to
selling narcotics. Daniels stated in one of the calls that he had "sticks under
[his] bed." Holloway opined that was slang for a weapon.
The calls also referred to product that needed to be "cheffed up" before
people could "reflip" it and "sell [] shot" and for how much. In an effort to
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raise money faster, Daniels instructed his associates to sell the narcotics in
double portions by "mak[ing] [it] all dubs and get rid of them shits . . . ."
Daniels referred to a person known as "Mod" who was late in making
payments that he owed. They discussed threatening him into compliance and
using physical force if necessary.
Daniels testified at trial in his own defense and claimed the calls he
made while he was in jail show that he was attempting to raise money for bail
by collecting debts with help from Burnett. The State argued that those debts
were associated with drug distribution. The State also argued that Daniels
sought to raise additional funds by continued drug distribution.
In addition to the jailhouse calls, the State presented evidence found at
the South 8th Street address in Newark. The investigators found a gun in a
bedroom of the house, which was the same room where Daniels' identification
was found. Nine envelopes of heroin were found in another bedroom.
On June 9, 2017, an Essex County grand jury indicted Berry, Burnett,
and Daniels on seven counts: first-degree leader of a narcotics trafficking
network, N.J.S.A. 2C:35-3 (Count One); third-degree conspiracy to distribute
controlled dangerous substances (CDS), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5
(Count Two); third-degree possession of heroin, N.J.S.A. 2C:35-10(a) (Count
Three); third-degree possession of heroin with intent to distribute, N.J.S.A.
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2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (Count Four); third-degree
possession of heroin with intent to distribute within 1,000 feet of school
property, N.J.S.A. 2C:35-7(a) (Count Five); second-degree conspiracy to
possess firearms, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:39-5 (Count Six); and
second-degree possession of a firearm while in the course of a drug
distribution offense, N.J.S.A. 2C:39-4.1 (Count Seven).
Defendant Berry was additionally charged under the same indictment
with Counts Eight through Sixteen: third-degree possession of heroin,
N.J.S.A. 2C:35-10(a) (Count Eight); third-degree possession of heroin with
intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (Count Nine); third-
degree possession of heroin with intent to distribute within 1,000 feet of school
property, N.J.S.A. 2C:35-5 and 2C:35-7 (Count Ten); third-degree possession
of cocaine, N.J.S.A. 2C:35-10(a) (Count Eleven); third-degree possession of
cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (Count
Twelve); third-degree possession of cocaine with intent to distribute within
1,000 feet of school property, N.J.S.A. 2C:35-5 and 2C: 35-7(a) (Count
Thirteen); third-degree possession of heroin, N.J.S.A. 2C:35-10(a) (Count
Fourteen); third-degree possession of heroin with intent to distribute, N.J.S.A.
2C:35-5(a)(1) and (b)(3) (Count Fifteen); and third-degree possession of
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heroin with intent to distribute within 1,000 feet of school property, N.J.S.A.
2C:35-5 and 2C:35-7(a) (Count Sixteen).
Defendants Burnett and Daniels were additionally charged with
possession of a stolen firearm, N.J.S.A. 2C:20-7(a) (Count Seventeen). Count
Seventeen was dismissed before trial.
Defendants were tried over the course of seven days.
Daniels was convicted on all counts with which he was charged. On
October 19, 2018, he was sentenced to life imprisonment with a twenty-five-
year period of parole ineligibility. The trial court also imposed a consecutive
sentence of ten years for possession of a firearm in the course of a drug
distribution offense, and a concurrent five-year sentence for possession with
intent to distribute CDS while within 1,000 feet of school property.
Daniels raises the following contentions for our consideration:
POINT I:
THE EXPERT TESTIMONY OF SERGEANT
HOLLOWAY WAS IMPROPERLY ADMITTED
BECAUSE HIS TESTIMONY STRAYED BEYOND
THE EXPLANATIONS OF THE METHODS OF
DRUG DISTRIBUTION AND SLANG TERMS AND
INTERPRETED COMMON TERMS THAT WERE
NOT BEYOND THE KEN OF THE JURY.
POINT II:
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THE TELEPHONE CALLS RECORDED ON THE
JAIL TELEPHONE WERE IMPROPERLY
ADMITTED.
POINT III:
DEFENDANT'S FACEBOOK PAGES WERE
IMPROPERLY ADMITTED BECAUSE THEY
WERE NOT AUTHENTICATED AND DID NOT
QUALIFY AS BUSINESS RECORDS FOR
PURPOSES OF N.J.R.E. 803(C)(6).
POINT IV:
THE TRIAL COURT'S FAILURE TO PROPERLY
INSTRUCT THE JURY AS TO THE ELEMENTS OF
LEADER OF A NARCOTICS TRAFFICKING
NETWORK AND AS TO THE NEED FOR
UNANIMITY REQUIRES REVERSAL OF THE
LEADER CONVICTION.
POINT V:
THE SENTENCE OF LIFE IMPRISONMENT PLUS
TEN YEARS, WITH [THIRTY] YEARS PAROLE
INELIGIBILITY CONSTITUTES CRUEL AND
UNUSUAL PUNISHMENT.
In addition to his counseled appeals brief, Daniels submitted a pro se
supplemental brief in which he contends:
POINT I:
DEFENDANT'S FOURTH AND FOURTEENTH
AMENDMENTS WERE VIOLATED WHEN THE
COURT ISSUED A TRANSFER CUSTODY ORDER
BASED ON ESSEX COUNTY PROSECUTORS
OFFICE'S EX PARTE WITNESS APPLICATION
PURSUANT TO N.J.S.A 2A: 67-12, IN VIOLATION
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OF THE DUE PROCESS CLAUSE AND
DEFENDANTS RIGHTS UNDER N.J. CONST. 1947
ART 1. PAR 1.
A. THE EX PARTE APPLICATION ISSUED BY
THE ESSEX COUNTY PROSECUTORS OFFICE
PURSUANT TO N.J.S.A. VIOLATED DUE
PROCESS LAW AND THE DEFENDANTS
RIGHTS UNDER ART 1. PAR 10 N.J. CONST
1947.
POINT II:
THE COURT ERRED WHEN IT RELIED ON A
GOOD CAUSE SHOWN ANALYSIS TO
AUTHORIZE THE TRANSFER CUSTODY ORDER
IN VIOLATION OF DEFENDANTS DUE PROCESS
RIGHTS AND ART 1. PAR 7. N.J. CONST. 1947.
Burnett was convicted of five of the seven counts charged: first-degree
leader of a narcotics trafficking network, (Count One); third-degree conspiracy
to distribute a CDS, (Count Two); third-degree possession of heroin, (Count
Three); third-degree possession with intent to distribute heroin, (Count Four);
and possession with intent to distribute heroin near a school, (Count Five).
Counts Two, Three, and Four merged with Count Five and were dismissed.
Counts Six, Seven, and Seventeen were dismissed. He was sentenced on
November 9, 2018. He was sentenced to the mandatory term of life
imprisonment with twenty-five years of parole ineligibility for Count 1 (the
leader charge) to be served concurrently with a term of five years, with three
years of parole ineligibility, for Count 5.
A-1068-18
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Burnett raises the following contentions for our consideration:
POINT I:
THE FAILURE TO PROPERLY DEFINE TWO
ELEMENTS OF THE LEADER CHARGE AND TO
PROVIDE A SPECIFIC UNANIMITY
INSTRUCTION ON THAT CHARGE REQUIRE
REVERSAL OF DEFENDANT'S CONVICTION.
A. THE FAILURE TO DEFINE A "HIGH-LEVEL"
POSITION IN THE DRUG-TRAFFICKING
NETWORK REQUIRES REVERSAL OF
DEFENDANT'S CONVICTION.
B. THE FAILURE TO PROPERLY DEFINE
CONSPIRACY IN THE CONTEXT OF THE
LEADER CHARGE REQUIRES REVERSAL OF
DEFENDANT'S CONVICTION.
C. THE FAILURE TO TELL THE JURY THAT IT
HAD TO UNANIMOUSLY AGREE ON WHO
DEFENDANT CONSPIRED WITH AND
SUPERVISED NECESSITATES REVERSAL OF
HIS CONVICTION. (NOT RAISED BELOW)
D. EACH OF THESE INSTRUCTIONAL ERRORS
NECESSITATE REVERSAL OF DEFENDANT'S
CONVICTION.
POINT II:
THE JAIL CALLS SHOULD NOT HAVE BEEN
ADMITTED BECAUSE THERE IS NO PROOF OF
CONSPIRACY INDEPENDENT OF THE CALLS.
POINT III:
THE INTERPRETATION OF THE JAIL CALLS BY
"AN EXPERT IN NARCOTICS TRAFFICKING"
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WAS INAPPROPRIATE UNDER N.J.R.E. 702 AND
403 AND NECESSITATES REVERSAL OF
DEFENDANT'S CONVICTION UNDER N.J.S.A.
2C:35-3.
A. BECAUSE HOLLOWAY DID NOT HAVE
SUFFICIENT EXPERTISE IN THE
INTERPRETATION OF SLANG, HIS
TESTIMONY FAILED TO MEET THE FIRST
PRONG OF N.J.R.E. 702.
B. BECAUSE HOLLOWAY DID NOT APPLY A
SOUND METHODOLOGY TO HIS EXPERTISE,
HIS INTERPRETATION WAS NOT RELIABLE
AND HIS TESTIMONY FAILED TO MEET THE
SECOND PRONG OF N.J.R.E. 702.
C. BECAUSE HOLLOWAY'S TESTIMONY WAS
NOT HELPFUL TO THE TRIER OF FACT, HIS
TESTIMONY FAILED TO MEET THE THIRD
PRONG OF N.J.R.E. 702.
D. BECAUSE MUCH OF HOLLOWAY'S
TESTIMONY WAS IRRELEVANT AND
PREJUDICIAL, ITS ADMISSION VIOLATED
N.J.R.E. 403.
E. THE ERRONEOUS ADMISSION OF
HOLLOWAY'S TESTIMONY NECESSITATES
REVERSAL OF DEFENDANT'S CONVICTION.
POINT IV:
THE MOTIONS TO SUPPRESS SHOULD HAVE
BEEN GRANTED. THE ERRONEOUS ADMISSION
OF THE EVIDENCE FOUND IN DEFENDANT'S
HOME REQUIRES REVERSAL OF HIS
CONVICTIONS.
POINT V:
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THE CROSS-EXAMINATION OF THE CO-
DEFENDANT WAS BEYOND SCOPE OF DIRECT,
VIOLATED N.J.R.E. 403, 404(B), 608, AND 611,
AND NECESSITATES REVERSAL OF
DEFENDANT'S CONVICTION UNDER N.J.R.E.
2C:35-3.
POINT VI:
THE CUMULATIVE EFFECT OF THESE ERRORS
WAS TO DENY DEFENDANT DUE PROCESS
AND A FAIR TRIAL.
POINT VII:
THE SENTENCE IS UNCONSTITUTIONAL.
Berry was convicted on all counts with which he was charged. He was
sentenced to life in prison with a twenty-five-year period of parole ineligibility
for the leader charge (Count One), a concurrent five-year term with a three-
year period of parole ineligibility (Count 5), and a ten-year term of
imprisonment, with a five-year period of parole ineligibility, to be served
consecutively to Count One (Count Seven). The remaining charges were
merged and dismissed.
Berry raises the following contentions for our consideration:
POINT I:
THE LOWER COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR JUDGMENT OF
ACQUITTAL ON THE "KINGPIN" CHARGE
BECAUSE THE STATE [PROFFERED]
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ABSOLUTELY NO EVIDENCE THAT
[DEFENDANT] EXERCISED ANY CONTROL OR
AUTHORITY OVER HIS ALLEGED CO-
CONSPIRATORS, CO-DEFENDANTS DANIELS
AND BURNETT, WHICH IS AN ESSENTIAL
MATERIAL ELEMENT REQUIRED TO SUSTAIN
A CONVICTION.
POINT II:
THE NARCOTICS TRAFFICKING LEADER
CHARGE FAILED TO DEFINE MATERIAL
ELEMENTS OF THE OFFENSE INCLUDING THE
REQUIRED SUPERVISORY STATUS OF EACH
DEFENDANT AND HOW THAT STATUS
RELATES TO THE CONSPIRACY
NECESSITATING REVERSAL. (Not Raised Below)
A. THE CHARGE ERRONEOUSLY ALLOWED
THE JURY TO FIND THAT DEFENDANT WAS
A "KINGPIN" WITHOUT THE DEFENDANT
ACTUALLY OCCUPYING A HIGH-LEVEL
POSITION IN THE NETWORK; SUPERVISORY
CONTROL OVER THE OTHER TWO CO-
CONSPIRATORS IS A MATERIAL ELEMENT
OF THE OFFENSE.
B. THE CHARGE ERRONEOUSLY PERMITTED
THE JURY TO FIND THAT ALL THREE
DEFENDANTS WERE "KINGPINS" WHEN
THERE WAS ONLY ONE; I.E. THE CHARGE
IMPERMISSIBLY ALLOWED FOR A VERDICT
THAT WAS NOT UNANIMOUS. (Not Raised
Below)
POINT III:
SERGEANT HOLLOWAY'S GROSSLY IMPROPER
NARRATION OF THE JAIL CALLS TO INJECT
INTO THE CASE HIS "EXPERT" ULTIMATE-
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ISSUE-OPINION THAT DEFENDANTS WERE
ENGAGED IN DRUG-DISTRIBUTION ACTIVITIES
[PRONOUNCED] THE DEFENDANTS' GUILT
AND USURPED THE JURY'S EXCLUSIVE
FUNCTION AS TRIER OF FACT REQUIRING
REVERSAL.
POINT IV:
THE LOWER COURT ERRED IN THE ADMISSION
OF THE RECORDED JAIL CALLS UNDER THE
N.J.R.E. 803(B) HEARSAY EXCEPTION FOR CO-
CONSPIRATOR STATEMENTS BECAUSE THE
STATE DID NOT PRESENT ANY INDEPENDENT
EVIDENCE OF A CONSPIRACY.
POINT V:
THE LOWER COURT ERRED IN PERMITTING
THE STATE TO ELICIT EXTRAORDINARILY
PREJUDICIAL OTHER CRIMES/BAD ACTS
EVIDENCE FROM CO-DEFENDANT DANIELS ON
CROSS-EXAMINATION WHICH DID NOT
SATISFY THE CRITERIA FOR ADMISSIBILITY
UNDER N.J.R.E. 404(B) AND STATE V. COFIELD,
127 N.J. 328 (1992).
POINT VI:
THE AGGREGATE LIFE SENTENCE WITH
THIRTY-YEAR PAROLE DISQUALIFIER IS
UNCONSTITUTIONALLY CRUEL AND
UNUSUAL, AND DISPARATE IN PROPORTION
TO OTHER "KINGPIN" SENTENCES IMPOSED IN
ESSEX COUNTY.
II.
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We first address Berry's contention that the trial court erred by failing to
grant his motion for a judgment of acquittal on the leader charge. 1 We begin
by acknowledging the legal principles governing our analysis. In State v.
Ellis, 424 N.J. Super. 267 (App. Div. 2012), we summarized the legal standard
for appellate review of the denial of a motion for judgment of acquittal:
At the close of the State's case . . ., the court shall . . .
order the entry of a judgment of acquittal . . . if the
evidence is insufficient to warrant a conviction. R.
3:18-1. However, a trial court must deny the
defendant's motion if "'viewing the State's evidence in
its entirety . . . and giving the State the benefit of all
its favorable testimony as well as all of the favorable
inferences which reasonably could be drawn
therefrom, a reasonable jury could find guilt . . .
beyond a reasonable doubt." State v. Wilder, 193 N.J.
398, 406, 939 (2008) (quoting State v. Reyes, 50 N.J.
454, 458–59, 236 (1967)). On appeal, we utilize the
same standard as the trial court in determining
whether a judgment of acquittal was warranted. State
v. Felsen, 383 N.J. Super. 154, 159 (App. Div. 2006).
[424 N.J. Super. at 273.]
We find further guidance in the Supreme Court's recent decision in State
v. Lodzinski, 249 N.J. 116 (2021), where the Court considered the closely
1
At the close of the State's case, all three defendants moved pursuant to Rule
3:18-1 for a judgment of acquittal on all counts. Daniels and Burnett do not
appeal from the denial of their acquittal motions. See Woodlands Cmty. Ass'n
v. Mitchell, 450 N.J. Super. 310, 319 (App. Div. 2017) (quoting Sklodowsky
v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011))
("An issue not briefed on appeal is deemed waived.").
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analogous standard of review of the denial of a motion for a judgment of
acquittal notwithstanding a guilty verdict pursuant to Rule 3:18-2. In a 4-3
decision, the Court in Lodzinski reaffirmed that, "a reviewing court must view
the entirety of the direct and circumstantial evidence presented by the State
and the defendant and give the State the benefit of all the favorable evidence
and all the favorable inferences drawn from that evidence, and then determine
whether a reasonable jury could find guilt beyond a reasonable doubt." Id. at
144 (citing State v. Williams, 218 N.J. 576, 594 (2014); Reyes, 50 N.J. at 458–
59). The Majority opinion nonetheless cautions,
In evaluating the sufficiency of the evidence, we
recognize that jurors "may draw an inference from a
fact whenever it is more probable than not that the
inference is true," and that "the veracity of each
inference need not be established beyond a reasonable
doubt." See State v. Brown, 80 N.J. 587, 592 (1979).
However, giving the State the benefit of reasonable
inferences does not "shift or lighten the burden of
proof, or become a bootstrap to reduce the State's
burden of establishing the essential elements of the
offense charged beyond a reasonable doubt." Ibid.;
accord State v. Perez, 177 N.J. 540, 549–50 (2003).
Speculation, moreover, cannot be disguised as a
rational inference. Cf. State v. LaFera, 42 N.J. 97,
119 (1964). An accused "may not be condemned upon
surmise, conjecture or suspicion." Ibid.[Id. at 144–145.]
We add that our review of a motion for a judgment of acquittal is de
novo. See State v. Jones, 242 N.J. 156, 168 (2020). We assess the sufficiency
A-1068-18
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in the record anew, and therefore owe no deference to the findings of the trial
court. See Williams, 218 N.J. at 593–94.
We next apply this standard of review to the trial record as it pertains
specifically to Berry. As we have noted, all three defendants moved under
Rule 3:18-1 for a judgment of acquittal on all counts. In denying defendants'
motions with respect to the leader count, the trial judge found that the jail calls
could allow a reasonable jury to find all three defendants guilty. We reproduce
the relevant portions of the trial court's oral ruling:
The defendants have moved for a judgment of
acquittal pursuant to Rule 3:18-1. In State [v.] Reyes,
50 N.J. at 454, the Supreme Court stated that the
broad test for determination of such an application is
whether the evidence at this point is sufficient to
warrant a conviction of the charge involved.
More specifically, the Court must determine whether
viewing the State's evidence in its entirety, be that
direct or circumstantial evidence, and giving the State
the benefit of all its favorable testimony, as well as all
of the favorable inference[s] which reasonably could
be drawn therefrom, a reasonable jury could find guilt
of the charge beyond a reasonable doubt.
So, it's a very low standard at this point as someone
mentioned. It's obviously not the proof beyond a
reasonable doubt standard that the jury will have to
contend with.
On count one, the charge of leader of a drug
trafficking network, certain phone calls have been
admitted into evidence and played for the jury.
A-1068-18
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Based on the phone numbers that were dialed, which
could be found to belong to the defendants based on
their Facebook accounts and based on the unique
inmate PIN number used to dial out the calls, as well
as the content of those calls, the State has set forth
evidence with which a reasonable jury could find guilt
of the charge beyond a reasonable doubt.
During the calls, there are discussions that can be
inferred to be regarding a drug trafficking network,
such as collecting money from certain individuals;
packaging and distribution of drugs; the mention of
various individuals who appear to be under the
authority of the defendants in the organization; orders
being given out; discussion about firearms;
supervision of lower-level individuals and so forth.
....
Given the evidence that has been admitted, which
includes not only the physical evidence that I alluded
to, but also the telephone calls and their content, and
giving the State the benefit of all its favorable
testimony as well as all favorable inferences which
reasonably could be drawn therefrom, a reasonable
jury could find guilt of these charges beyond a
reasonable doubt.
Accordingly, the motion to these defendant[s] for a
judgment of acquittal shall be denied.
We highlight the court's finding that "[d]uring the calls, there are
discussions that can be inferred to be regarding a drug trafficking network . . .
the mention of various individuals who appear to be under the authority of the
defendants in the organization; orders being given out." The "mention" of (1)
those various individuals "who appear to be under the authority of the
A-1068-18
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defendants in the organization" and (2) of unspecified "orders being given out"
is the only evidence the trial court alludes to that relates to whether defendants
exercised a leadership role within the network.
Notably, the judge's ruling did not elaborate on the specific roles played
by each individual defendant. Rather, the judge issued a single common ruling
without distinguishing among the three defendants. That analysis was
insufficient, especially with respect to Berry's motion, given that the three
defendants clearly operated at different levels of authority within the criminal
operation. In any event, as we have noted, we owe no deference to the
findings of the trial court in deciding whether Berry's motion for a judgment of
acquittal should have been granted. See Williams, 218 N.J. at 593–94.
Under the "kingpin" statute, N.J.S.A. 2C:35-3,
[a] person is a leader of a narcotics trafficking
network if he conspires with two or more other
persons in a scheme or course of conduct to
unlawfully manufacture, distribute, dispense, bring
into or transport in this State . . . any controlled
dangerous substance classified in Schedule I or II . . .
as a financier, or as an organizer, supervisor or
manager of at least one other person.
We discuss the elements of the kingpin offense in greater detail in
Section III, where we consider whether the jury instructions were adequate in
the unusual circumstances of this multi-leader case. For present purposes, it is
sufficient to note that the State must prove beyond a reasonable doubt that
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22
Berry was a "high-level" member of the network, that is, "one who occupies a
significant or important position in the organization and exercises substantial
authority and control over its operations." State v. Alexander, 136 N.J. 563,
575 (1994).
The State argues that a reasonable jury could conclude that all three
defendants were leaders of what the State characterizes as a "chain
conspiracy." See State v. Roldan, 314 N.J. Super. 173 (App. Div. 1998). We
are unpersuaded. The State relies on Roldan for the proposition that, within
the chain, there was "successive communication and cooperation" between
"participants at different levels in the chain [because they] know that the
success of those at each level hinges upon the success of the others and
therefore cooperate for their mutual benefit." Id. at 182 (citation omitted).
The State's reliance on Roldan is misplaced. In Roldan, the defendant was
charged with conspiracy to commit the offenses of distribution of cocaine,
possession of cocaine with the intent to distribute, and possession of cocaine.
Id. at 177. He was not charged with violation of N.J.S.A. 2C:35-3. The leader
offense is unlike conspiracy under N.J.S.A. 2C:5-2. The kingpin offense
focuses not just on the existence of a conspiratorial relationship but also the
level of a defendant's role within the hierarchy of a drug trafficking
organization.
A-1068-18
23
There is no question that under the statutory framework, more than one
person can be a leader within a single drug trafficking network. But not every
participant in a drug trafficking conspiracy fits the definition of a high -level
member. Presumably, every participant performs a function necessary to the
successful operations of the network. A drug trafficking network could not
operate profitably, for example, without the services of low-level couriers who
transport and deliver illicit drugs. The nation's current supply chain cris is
resulting from the Coronavirus (COVID-19) pandemic underscores the vital
importance, for example, of truckers and off-loaders. But the persons who
perform those essential delivery services could hardly be characterized as
high-level members of a corporate organization. The COVID-19 crisis
reminds us that essential workers are not necessarily high-ranking ones.
Our review of the record leads us to conclude that, even giving the State
the benefit of all reasonable inferences, the evidence was insufficient to
establish beyond a reasonable doubt that Berry exercised a high-level role as
that term is defined in the governing case law. Indeed, the State's own
characterization of the organization belies the notion that Berry was a leader.
The State's brief responding to Berry's appeal explains:
During summation, the State argued that the evidence
showed the existence of a narcotics trafficking
operation primarily headed by co-defendant Daniels,
in which co-defendant Burnett acted as an "enforcer."
A-1068-18
24
Burnett was "giving the orders that he [got] from
[Daniels] to the people below." The State argued that
[Berry] also acted as a supervisor by holding a
superior position over associates such as "Mod, Esso,
Spaz, and Wheezy," and making sure that they were
following Daniels's instructions.
We find it noteworthy that the State's brief provides citations to the
prosecutor's summation, but not to testimony, specific excerpts of the recorded
telephone conversations, or other trial evidence to support the trial prosecutor's
argument in summation that Berry "acted as a supervisor by holding a superior
position over associates such as 'Mod, Esso, Spaz, and Wheezy,' and making
sure that they were following Daniels's instructions." The prosecutor's
summation, of course, is not evidence, see State v. Timmendequas, 161 N.J.
515, 578 (1999), and his brief interpretive arguments regarding Berry's role
provide no basis upon which we might sustain the denial of defendant's motion
for acquittal.
Our own review of the transcripts of the recorded telephone
conversations and other trial evidence leads us to conclude that there is
insufficient support for the proposition that Berry exercised substantial
authority and control over any of those other persons. Rather, it appears that
Berry's role essentially was to forward messages and instructions from
Daniels, who was incarcerated and thus had limited capacity to communicate
directly with persons outside the jail. We do not doubt that Berry's role of
A-1068-18
25
transmitting instructions from other conspirators played an important function
within the drug trafficking operation during the period when Daniels was
incarcerated. But that function does not evince a high-level supervisory or
managerial role within the meaning of N.J.S.A. 2C:35-3, even when giving the
State the benefit of all reasonable inferences.
We add that the trial evidence against Berry, aside from the jailhouse
calls, does not support a reasonable inference that he "occupie[d] a high-level
position of authority in the scheme of distribution." See State v. Wright, 143
N.J. 580, 583 (1996). The evidence seized from Berry's Sanford Avenue
residence, for example, clearly shows his involvement in drug trafficking, but
not his supervisory role within the organization. So too, testimony concerning
Berry's activities in the SUV on October 21, 2015 suggests that he was directly
involved in street-level drug distribution but does not support a reasonable
inference that he exercised supervision over the other persons in the vehicle.
We decline to speculate on what transpired inside the SUV with respect to the
supervision of confederates based on police surveillance using binoculars. See
Lodzinski, 249 N.J. at 144–45 ("Speculation, moreover, cannot be disguised as
rational inference.").
In sum, were we to infer from the scant evidence of Berry's role that he
exercised substantial authority and control over the drug trafficking operation,
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26
see Alexander, 136 N.J. at 575, the practical effect would be to "shift or
lighten the burden of proof, or become a bootstrap to reduce the State's burden
of establishing the essential elements of the offense charged beyond a
reasonable doubt." Lodzinski, 249 N.J. at 144 (quoting Brown, 80 N.J. at
592). Accordingly, we conclude that the trial court should have granted
Berry's motion for a judgment of acquittal on the kingpin charge.
III.
We turn next to defendants' contention that the trial court failed to
adequately instruct the jury on the material elements of the leader offense.
The judge read verbatim from the model jury charge. Ordinarily, that would
be sufficient. However, in the unusual circumstances of this leader
prosecution—where all three defendants were charged as leaders—more was
required. Here, the jury instruction required more careful explanation of what
constitutes a "high-level" member of the conspiracy. By failing to include
important explanatory language from the governing case law, we conclude that
the jury instruction was inadequate. This is especially so considering that the
jury posed a direct question to the court that shows the jury was confused as to
the meaning of the term "high level." We therefore are constrained to reverse
A-1068-18
27
and vacate Burnett's and Daniels' leader convictions and remand for a new
trial.2
We begin our analysis by acknowledging certain foundational principles
regarding jury instructions. "Appropriate and proper charges to a jury are
essential for a fair trial." State v. Carrero, 229 N.J. 118, 127 (2017) (quoting
State v. Daniels, 224 N.J. 168, 180 (2016)). Proper jury instructions are
"crucial to the jury's deliberations on the guilt of a criminal defendant." State
v. Jordan, 147 N.J. 409, 422 (1997). In its jury instructions, a "trial court must
give 'a comprehensible explanation of the questions that the jury must
determine, including the law of the case applicable to the facts that the jury
may find.'" State v. Baum, 224 N.J. 147, 159 (2016) (quoting State v. Green,
86 N.J. 281, 287–88 (1981)).
2
We recognize that the State's theory was that the narcotic trafficking
operation was "primarily headed by co-defendant Daniels." However, not
every drug distribution conspiracy supports a leader charge. See Ellis, 424
N.J. Super. at 274 (citing Cannel, N.J. Criminal Code Annotated, cmt. 1 on
N.J.S.A. 2C:35-3 (2011)) ("[T]he clear legislative intent is that the 'kingpin'
provision 'be read narrowly and not applied to every drug sale operation.'").
We add that the jury's question regarding how they were to determine what
constitutes a "high-level" role was not limited to any particular defendant. We
therefore conclude that because multiple persons were charged with being
leaders of the same operation, Daniels no less than Burnett and Berry was
entitled to a jury instruction that fully explained what it means to be a high -
level member of the network.
A-1068-18
28
"[B]ecause correct jury charges are especially critical in guiding
deliberations in criminal matters, improper instructions on material issues are
presumed to constitute reversible error." State v. Jenkins, 178 N.J. 347, 361
(2004) (citing Jordan, 147 N.J. at 421–22). Appellate courts apply a harmless
error analysis when a defendant has objected to a jury charge. 3 Ibid.; see also
R. 2:10-2. "Under that standard, there must be some degree of possibility that
[the error] led to an unjust result. The possibility must be real, one sufficient
to raise a reasonable doubt as to whether [it] led the jury to a verdict it
3
On May 29, 2018, the trial court heard oral arguments on Burnett's motion to
modify the leader of narcotics trafficking network model jury charge. Burnett
argued that (1) the leader statute is unconstitutionally vague on its face and as
applied in this case, and (2) alternatively, the trial court should edit the model
jury charge to make it more consistent with New Jersey Supreme Court and
Appellate Division precedent—Alexander, 136 N.J. at 563; Afanador, 151 N.J.
41 (1997), and Ellis, 424 N.J. Super. at 267. The trial court denied the motion.
Burnett renewed the argument to edit the model charge and incorporate
language from those cases after the trial court received the note from the jury
seeking clarification as to the elements of the leader offense. We are satisfied
that Burnett properly raised this issue before the trial court, and therefore we
review under the harmless error standard. However, even assuming for the
sake of argument that defendants failed to raise the same contentions before
the trial court they now raise on appeal, we conclude that the plain error
standard is also met. The plain error standard "requires demonstration of 'legal
impropriety in the charge prejudicially affecting the substantial rights of the
defendant and sufficiently grievous to justify notice by the reviewing court and
to convince the court that of itself the error possessed a clear capacity to bring
about an unjust result.'" State v. Montalvo, 229 N.J. 300, 321 (2017) (citing
State v. Chapland, 187 N.J. 275, 289 (2006)). We conclude the trial court's
failure to tailor the model instruction, especially given the question posed by
the jury, of itself possessed a clear capacity to bring about an unjust result.
A-1068-18
29
otherwise might not have reached." Baum, 224 N.J. at 159 (quoting State v.
Lazo, 209 N.J. 9, 26 (2012)). Therefore, an appellate court must first
"determine whether the trial court erred." Jenkins, 178 N.J. at 361 (quoting
State v. Brims, 168 N.J. 297, 306 (2001)). If so, we must proceed to determine
"if the mistake 'was clearly capable of producing an unjust result such that a
reasonable doubt is raised as to whether the error led the jury to a result it
otherwise might not have reached.'" Ibid."The test to be applied . . . is whether the charge as a whole is
misleading, or sets forth accurately and fairly the controlling principles of
law." Baum, 224 N.J. at 159 (quoting State v. Jackmon, 305 N.J. Super. 274,
299 (App. Div. 1997)). Model jury charges are often helpful to trial judges in
performing the important function of charging a jury. State v. Concepcion,
111 N.J. 373, 379 (1988). A jury charge is presumed to be proper when it
tracks the model jury charge verbatim because the process to adopt model jury
charges is "comprehensive and thorough." State v. R.B., 183 N.J. 308, 325
(2005). Although following a model jury charge is an important consideration
in appellate review, it is not dispositive of whether the charge was adequate.
Cf. State v. Whitaker, 402 N.J. Super. 495, 513–14 (App. Div. 2008) (quoting
State v. Angoy, 329 N.J. Super. 79, 84 (App. Div. 2000)) (explaining that
"[w]hen a jury instruction follows the model jury charge, although not
A-1068-18
30
determinative, 'it is a persuasive argument in favor of the charge as
delivered'").
As the Supreme Court in Conception stressed, while model jury charges
are often useful, "[a]n instruction that is appropriate in one case may not be
sufficient for another case. Ordinarily, the better practice is to mold the
instruction in a manner that explains the law to the jury in the context of the
material facts of the case." 111 N.J. at 379. "That requirement [to mold the
instruction] has been imposed in various contexts in which the statement of
relevant law, when divorced from the facts, was potentially confusing or
misleading to the jury." State v. Robinson, 165 N.J. 32, 42 (2000). In such
instances, "the trial court was required to explain an abstract issue of law in
view of the facts of the case." Id. at 43.
"[N]ot every failure [to tailor jury instructions] is fatal." State v.
Tierney, 356 N.J. Super. 468, 482 (App. Div. 2003) (quoting State v. Bilek,
308 N.J. Super. 1, 10 (App. Div. 1998)). When the facts are neither complex
nor confusing, a court does not have to provide an intricate discussion of the
facts in the jury charge. Ibid. (citing State v. Morton, 155 N.J. 383, 422
(1998)); see also State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999)
(holding that although a more precise molding of the jury instructions to the
A-1068-18
31
facts would have been preferable, the charge was sufficient because "as a
whole, [it] was consistent with the factual theories advanced by the parties ").
We next consider the material elements of the leader offense that needed
to be explained to the jury. The kingpin crime was enacted as part of the
Comprehensive Drug Reform Act of 1986 (CDRA), N.J.S.A. 2C:35-1 to -24.
As explained in the CDRA's declaration of policy and legislative findings, the
purpose of the leader offense is to target and severely punish "upper echelon
members of organized narcotics trafficking networks . . . ." N.J.S.A. 2C:35-
1.1(c). This first-degree crime prescribes a sentence of life imprisonment. In
Ellis, we held that given the gravity of the penalty, "the clear legislative intent
is that the 'kingpin' provision 'be read narrowly and not applied to every drug
sale operation.'" 424 N.J. Super. at 274 (citing Cannel, N.J. Criminal Code
Annotated, cmt. 1 on N.J.S.A. 2C:35-3 (2011)).
In State v. Feliciano, 224 N.J. 351, 381–82 (2016), the Supreme Court
summarized the four separate elements of the leader offense:
(1) that defendant conspired with two or more
persons; (2) that the purpose of the conspiracy
included a scheme or course of conduct to unlawfully
manufacture, distribute, dispense . . . or transport . . .
[heroin]; (3) that defendant was a financier or that
defendant was an organizer, supervisor or manager of
at least one other person; and (4) that defendant
occupied a high-level position in the conspiracy.
[Id. at 381 (emphasis added).]
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32
In Alexander, the Court made clear that "the status or the position of the
defendant . . . is a material element of the crime." Alexander, 136 N.J. at 570.
As we explained in Ellis, the Supreme Court "adopt[ed] a restrictive
interpretation of this element . . . ." 424 N.J. Super. at 274. Specifically, the
Court in Alexander held that the jury must find that
the defendant occupies a high-level position, that is, a
position of superior authority or control over other
persons, in a scheme or organization of drug
distribution (or manufacturing or dispensing or
transporting) and that in that position the defendant
exercised supervisory power or control over others
engaged in an organized drug-trafficking network.
[136 N.J. at 570–71.]
The Court also stressed that "the role of a defendant as a leader or drug
kingpin turns more on the nature of that person's authority, the magnitude or
extent of control, and the number of persons over whom that power is
exercised." Id. at 575; see also State v. Afanador, 151 N.J. at 55. A
defendant's position or status, then, "must be at a superior or high level in
relation to other persons in the drug trafficking network and that the
defendant's role must be that of a 'leader' in the drug organization or system . .
. ." Id. at 136; see also Wright, 143 N.J. at 583 ("[A] proper instruction
should, in addition to reciting the statutory language of N.J.S.A. 2C:35 -3, at
A-1068-18
33
least inform the jury that it must find that the defendant occupies a high -level
position of authority in the scheme of distribution . . . .").
Importantly for purposes of the present appeal, we emphasized in Ellis
that, "[i]n other words, the position within the organization must be
'significant' and 'important,' wielding substantial authority and contro l over its
operations." 424 N.J. Super. at 275. We reached that conclusion based upon
clear and explicit direction in Alexander that "[a] 'high-level' or 'upper-
echelon' 'leader' of such an organization is one who occupies a significant or
important position in the organization and exercises substantial authority and
control over its operations." 136 N.J. at 575 (emphases added). 4
In this case, the judge delivered the following instruction with respect to
defendants' leadership roles within the drug trafficking network:
The fourth element the State must prove beyond a
reasonable doubt is that the defendant held a high-
level position in the drug trafficking conspiracy. In
other words, the State must prove that the defendant
occupied a position of superior authority or control
over other persons in a scheme or organization of drug
distribution, or manufacturing, or transportation, and
4
We note that after Alexander was decided, the Legislature amended N.J.S.A.
2C:35-3 to clarify that a leader must conspire "with two or more persons" and
that, unless he or she is alleged to be a financier, must serve "as an organizer,
supervisor or manager of at least one other person." L. 1997, c. 343. That
revision does not alter what must be proved to establish that a defendant
occupies a significant or important position in the organization and exercises
substantial authority and control over at least one other person.
A-1068-18
34
that in that position the defendant exercised
[supervisory] power or control over others engaged in
the drug trafficking conspiracy. The defendant,
however, does not have to be the only, or even the
primary financier, organizer, supervisor or manager,
and it is no defense that defendant was subject to the
supervision or management of another, nor that
another person or persons were also leaders of the
narcotics trafficking network.
As we have noted, the judge read verbatim from the model jury charge.
See Model Jury Charges (Criminal), "Leader of Narcotics Trafficking
Network" (N.J.S.A. 2C:35-3) (rev. Oct. 23, 2000). However, the model charge
does not include language from Alexander that explains, "[a] 'high-level' or
'upper-echelon' 'leader' of such an organization is one who occupies a
significant or important position in the organization and exercises substantial
authority and control over its operations." 136 N.J. at 575 (emphases added).
In the unusual circumstances of this case, we believe this additional
explanatory language was necessary. In this particular application, the
adjectives "significant," "important," and "substantial" are not superfluous or
redundant. Rather, given the distinctive circumstances of this multi-leader
prosecution, the highlighted modifiers are, dare we say, significant, important,
A-1068-18
35
and substantial in explaining whether any or all of these three defendants
occupied a high-level position in the drug trafficking network. 5
This is especially so because the jury expressed confusion on this very
point of law. During the course of its deliberations, the jury asked the
following question: "[w]ith regards to the leader of narcotics trafficking
network; in defining high level element, . . . number [four], the wording seems
similar a little to element [three].6 Clarifying question: is it possible to be a
supervisor, element [three], but not high-level for element [four]?"
The trial judge responded to the jury question by explaining: "[Three]
and [four] on the surface do they sound similar? Yeah, I would agree with
you. They sound similar but they [sic] are [four] separate elements to this
5
We do not go so far as to rule that this additional language from Alexander
must be charged to the jury in all leader cases. The error in this case was not
just the failure to read a few critical words from Alexander but also the failure
to mold the jury instructions to address the varying levels of authority of each
individual defendant. We nonetheless recommend that the Model Jury Charge
Committee consider the advisability of revising the model instruction for the
leader offense to incorporate this language from Alexander or at least to
include a footnote or notation explaining that this language in Alexander
provides further instruction on what it means to hold a high-level position in
the drug trafficking conspiracy.
6
The third element of the leader charge is "that defendant was an organizer,
supervisor or manager of at least one other person." Feliciano, 224 N.J. at
381.
A-1068-18
36
offense and you have to consider each one separately." The judge then re-read
the leader jury instruction that he had previously delivered, verbatim. 7
7
The trial judge re-instructed the jury on the elements of leader of a narcotics
trafficking network and provided explanations as to the first two elements. As
to the third and fourth elements, the judge once again read verbatim from the
model jury charge:
The third element the State must prove beyond a
reasonable doubt is that the defendant acted as a
financier, or as an organizer, supervisor, or manager
of at least one other person. A financier is a person
who with the intent of deriving profit provides money,
or credit, or other thing of value in order to purchase a
controlled dangerous substance, or an immediate
precursor, or otherwise to finance the operations of a
drug trafficking network . . . . [T]he State need not
prove any intended profit was actually realized.
The trial court omitted the final sentence of the model charge that "[i]t It is not
a defense to this charge that the profit, if any, involved in this scheme was
intended to be made in another location." The trial court continued with the
instruction:
[An] organizer is a person who purposely arranges,
devises, or plans a drug trafficking conspiracy. A
supervisor is one who purposely receives [sic] the
operation of a drug trafficking conspiracy. A manager
is one who purposely directs the operation of a drug
trafficking conspiracy.
....
The fourth element the State must prove beyond a
reasonable doubt is that the defendant held a high-
level position in the drug trafficking conspiracy. In
other words, the State must prove that the defendant
A-1068-18
37
"When a jury requests clarification, the trial judge is obligated to clear
the confusion." State v. Conway, 193 N.J. Super. 133, 157 (App. Div. 1984)
(citing United States v. McCall, 592 F.2d 1066, 1068 (9th Cir. 1979)). In State
v. Parsons, we noted that, "[j]ury questions present a glimpse into a jury's
deliberative process." 270 N.J. Super. 213, 224 (App. Div. 1994). We
explained:
A question from a jury during its deliberations means
that one or more jurors need help and that the matter is
of sufficient importance that the jury is unable to
continue its deliberations until the judge furnishes that
help. An appropriate judicial response requires the
judge to read the question with care to determine
precisely what help is needed.
[Id. at 221.]
___________________
occupied a position of superior authority or control
over other persons in a scheme or organization of drug
distribution, or manufacturing, or transportation and
that in that position the defendant exercised,
supervised power or control over others engaged in
the drug trafficking conspiracy. The defendant,
however, does not have to be the only or even the
primary financier, organizer, supervisor, or manager,
and it is no defense that defendant was subject to the
supervision or management of another, nor that
another person or persons were also leaders of the
narcotics trafficking network.
....
A-1068-18
38
In this instance, we believe the jury question shows that the jury was
focusing on whether defendants were high-level members of the network. The
trial court's instruction that elements three and four have to be considered
separately is certainly correct. However, by agreeing with the jury that the
terms "supervisor" and "high level" are similar, the court may have unwittingly
suggested that being a supervisor is sufficient to establish that a defendant
occupied a high-level position within the organization.
Furthermore, merely re-reading the initial jury instruction did not
address what we deem to be the fundamental import of the jury's question,
which is whether being a supervisor is sufficient to meet the test of holding a
high-level position. The answer to that question is no. The two elements must
be considered separately because the fourth element requires more than a jury
finding that a defendant is a supervisor. As Alexander makes clear, a leader
must exercise "substantial authority and control over its operations." 136 N.J.
at 575 (emphases added). Not every supervisor in the chain of command of a
drug trafficking network is categorically deemed to be a leader of that
organization. We add that the leader offense focuses on the qualitative level of
supervision that is exercised and not just the number of persons who are
supervised. See supra note 4 (discussing legislative amendments to N.J.S.A.
A-1068-18
39
2C:35-3 to clarify that a leader need only supervise or manage a single
person).
Importantly for purposes of our decision, the State acknowledges that
the gravamen of the defense argument is that the trial court did not provide
adequate instruction on what "high level" means. We reproduce verbatim the
State's response to that defense contention:
On appeal, [Burnett] 8 alleges that since the jury was
not given the definition of a material element—what it
means to be "high level"—that the instruction was
inadequate. However, this is not true. "High level"
was defined for the jury not only once, but twice, and
the definition itself was taken verbatim from the
Supreme Court's language in Alexander. See
Alexander, 136 N.J. at 575 (defining "high-level" as
"one who occupies a significant or important position
in the organization and exercises substantial authority
and control over its operations").
8
Daniels raised the same claim, and the State made an essentially identical
argument in its brief responding to Daniels' contention:
[T]he distinction between [occupying a position of
superior authority or control over other persons] and
[leader of a narcotics trafficking network] was
highlighted for the jury not only [once] but twice.
"High level" was defined for the jury using the
Supreme Court's language in Alexander. See
Alexander, 136 N.J. at 575 (defining a "high-level"
member of a drug trafficking network as "one who
occupies a significant or important position in the
organization and exercises substantial authority and
control over its operations.").
A-1068-18
40
We read the State's response as a tacit acknowledgment that the language
in Alexander that is quoted in the State's parenthetical needed to be read to the
jury. But, contrary to the State's assertion, that language was not read to the
jury. We have scoured the jury charge delivered by the judge and conclude
that the jury was never told that "high level" means "one who occupies a
significant or important position in the organization and exercises substantial
authority and control over its operations." Rather, the judge read the model
jury charge, which does not contain this amplification of the phrase "high
level."
As we have noted, in the specific context of this prosecution, where
there was no cooperating witness to explain the inner workings of the network
and the roles that each defendant played, we view the phrases "significant or
important" and "substantial authority and control over its operations" to be an
important part of the definition of "high level." Those words were needed in
this case to help explain to the jury how to distinguish supervisors and
superiors from true leaders.
We stress that the error that constrains us to reverse the leader
convictions is not just the trial court's failure to recite a few adjectives from
the case law. Rather, the crux of the error was the failure to tailor the model
jury charge in a way that addressed the trial proofs regarding the distinct roles
A-1068-18
41
played by each individual defendant. The three defendants may have been
tried jointly, but each was entitled to a jury instruction molded to the facts
pertaining to his own involvement in the criminal organization. We emphasize
that unlike a traditional conspiracy prosecution under N.J.S.A. 2C:5-2, which
presents essentially a yes or no question as to whether a defendant is a
conspirator, the leader offense focuses on a defendant's role within the
conspiracy. As we noted in Section II, a person can be a participant in a
"chain" conspiracy, to use the State's characterization, and not be a leader
within the meaning of N.J.S.A. 2C:35-3.
This was not a situation where the facts were neither "complex nor
confusing" as to obviate the need for molded instructions. See Tierney, 356
N.J. Super. at 482. On the contrary, the very nature of this multi-level leader
prosecution highlights the importance of providing a comprehensive definition
of the term "high level" that could be applied to each defendant. In this
instance, moreover, the trial court's "statement of relevant law, when divorced
from the facts, was potentially confusing or misleading to the jury," Robinson,
165 N.J. at 42, as shown by the jury's incisive question to the court. That
question underscores the need for a carefully tailored jury charge that
incorporates the language in Alexander that the State on appeal mistakenly
claims was delivered. We therefore conclude that the jury instruction was
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inadequate and that the error "was clearly capable of producing an unjust result
such that a reasonable doubt is raised as to whether the error led the jury to a
result it otherwise might not have reached." Jenkins, 178 N.J. at 361 (quoting
Brims, 168 N.J. at 306). Accordingly, we reverse and vacate the leader
convictions and remand for a new trial for Burnett and Daniels. 9
IV.
Because we reverse and vacate defendants' leader convictions, we need
not address several of defendants' contentions regarding other trial errors and
the sentences imposed on their leader convictions. We do, however, proceed
to address contentions that are relevant to a retrial of Burnett and Daniels on
the leader charge, or that relate directly to defendants' convictions for unlawful
possession of firearms and possession with intent to distribute CDS. We first
address defendants' contentions relating to the admissibility of the intercepted
jailhouse telephone calls, starting with the contention that the calls were
hearsay evidence and were not admissible under the co-conspirator exception
to the hearsay rule, N.J.R.E. 803(b)(5).
9
Burnett additionally contends that the court erred by failing to instruct the
jury that "it had to unanimously agree on who defendant conspired with and
supervised[.]" So too, Daniels argues that the trial court failed to properly
instruct the jury on the need for unanimity. In view of our holding that the
failure to adequately define "high level" and to tailor the model jury charge
require reversal, we need not address the unanimity argument at length. We
are satisfied that the model jury instruction was adequate on that issue.
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A.
As a general matter, "in reviewing a trial court's evidential ruling, an
appellate court is limited to examining the decision for abuse of discretion."
State v. Kuropchak, 221 N.J. 368, 385 (2015) (quoting Hisenaj v. Kuehner,
194 N.J. 6, 12 (2008)). Under this standard, "'[c]onsiderable latitude is
afforded a trial court in determining whether to admit evidence,'" and "an
appellate court should not substitute its own judgment for that of the trial
court, unless 'the trial court's ruling "was so wide of the mark that a manifest
denial of justice resulted."'" Id. at 385 (alteration in original) (first quoting
State v. Feaster, 156 N.J. 1, 82 (1998); and then quoting State v. Marrero, 148
N.J. 469, 484 (1997)).
The hearsay rule generally provides that "'[a] statement, made other than
by the witness while testifying, offered to prove the truth of the content of the
statement is hearsay evidence and is inadmissible unless it falls within one of
the hearsay exceptions.'" State v. Savage, 172 N.J. 374, 402 (2002) (quoting
State v. Phelps, 96 N.J. 500, 508 (1984)). "The co-conspirator exception to the
hearsay rule, embodied in N.J.R.E. 803(b)(5), provides that statements made
'at the time the party and the declarant were participating in a plan to commit a
crime' and 'made in furtherance of that plan,' are admissible into evidence
against another member of the conspiracy." Ibid. (quoting N.J.R.E. 803(b)(5)).
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Under this exception, "[w]here two or more persons are alleged to have
conspired to commit a crime, any statement made by one during the course of
and in furtherance of the conspiracy is admissible in evidence against any
other member of the conspiracy." State v. Harris, 298 N.J. Super. 478, 487
(App. Div. 1997) (first citing N.J.R.E. 803(b)(5); and then citing Phelps, 96
N.J. at 508).
In Phelps, the Supreme Court recognized that admitting evidence of a
co-conspirator's statement may advance the goal of discerning where the truth
lies, considering that a conspiratorial agreement may be "effectuated throug h
unwritten statements passed from one to another." 96 N.J. at 509. The Court
noted, "[i]t has been said, 'silence, furtiveness and secrecy shroud the conduct
and speech of co[-]conspirators.'" Ibid. (citation omitted). Thus, "[a] [c]o[-
]conspirator's hearsay may be essential to establishing the existence of an
illicit agreement." Ibid. (citation omitted).
A hearsay statement is admissible under the co-conspirator exception if
the following conditions are met: "(1) the statement must have been made i n
furtherance of the conspiracy; (2) the statement must have been made during
the course of the conspiracy; and (3) there must be 'evidence, independent of
the hearsay, of the existence of the conspiracy and defendant's relationship to
it.'" Savage, 172 N.J. at 402 (quoting Phelps, 96 N.J. at 509–10).
A-1068-18
45
A statement is considered to have been made "in furtherance of the
conspiracy" if the statement "serves a 'current purpose such as to promote
cohesiveness, provide reassurance to a co-conspirator, or prompt one not a
member of the conspiracy to respond in a way that furthers the goal of the
conspiracy.'" State v. James, 346 N.J. Super. 441, 457 (App. Div. 2002)
(quoting State v. Taccetta, 301 N.J. Super. 227, 253 (App. Div. 1997)).
As for the third element, "[t]he trial court must make a preliminary
determination of whether there is independent proof of the conspiracy."
Savage, 172 N.J. at 403 (citing N.J.R.E. 104(b)). "[T]he trial court must
determine whether there is independent evidence 'substantial enough to
engender a strong belief in the existence of the conspiracy and of [the]
defendant's participation.'" Ibid. (quoting Phelps, 96 N.J. at 519). "The
requisite independent evidence may take many different forms, 'such as books
and records, testimony of witnesses, or other relevant evidence. There may be
a combination of different types of proof.'" Ibid. (quoting Phelps, 96 N.J. at
511). "[T]he prosecution has the burden of satisfying the third part of the test
by a fair preponderance of the evidence." State v. Farthing, 331 N.J. Super.
58, 84 (App. Div. 2000) (citations omitted).
In Phelps, our Supreme Court put forth a three-prong test to determine
whether co-conspirator statements are admissible under the exception to the
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hearsay rule. 96 N.J. at 509. "First, the statement must have been made in
furtherance of the conspiracy. Second, the statement must have been made
during the course of the conspiracy. Lastly, our courts have held that there
must be evidence, independent of hearsay, of the existence of the conspiracy
and defendant's relationship to it." Id. at 509–10 (citations omitted).
This independent evidence may be considered if "such declaration is
reliable and . . . there is other evidence substantial enough to engender a belief
in the conspiracy's existence and the defendant's participation in it." Id. at
518–19. In Phelps, the independent evidence that corroborated the defendant's
participation in a bookmaking conspiracy was co-conspirators' notebooks,
which listed names that corresponded with people recorded in wiretapped
phone calls. Id. at 506.
"Before admitting such statements, however, a trial court must find that
they were made in furtherance of and during the course of the conspiracy and
that 'a fair preponderance of evidence' independent of the hearsay statements
supports the existence of the conspiracy and of defendant's relationship to it."
State v. Clausell, 121 N.J. 298, 337 (1990) (quoting Phelps, 96 N.J. at 509–
10). The State must thus show that "it is more probable than not that
defendant participated in an existing conspiracy in order for the hearsay to be
admitted." Phelps, 96 N.J. at 517–18.
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Defendants' contentions on appeal focus principally on the third element
of the co-conspirator exception. The trial court convened a Rule 104 10 hearing
and issued a written opinion concluding that all three elements of the exception
were satisfied. With respect to the third element, the court found that "[t]he
defendants each have made incriminating admissions themselves with regard
to the conspiracy. Also, physical evidence connected to each defendant was
recovered during the investigation of these offenses, such as controlled
dangerous substances (CDS), packaging materials for the CDS, and firearms."
After reviewing the record, including the Facebook evidence, seized
CDS, and firearms, we find no basis upon which to overturn the trial court's
ruling that there was sufficient independent evidence to satisfy the
requirements of the co-conspirator exception. See Harris, 298 N.J. Super. at
488 (concluding there was ample evidence of that defendant's participation in
the conspiracy "wholly apart from the hearsay declarations").
We further note that the trial judge found that another exception to the
hearsay rule applied: N.J.R.E. 803(b)(1). That rule provides that a statement
offered against a party-opponent is excluded from the rule against hearsay and
may be admitted in evidence if the statement is "the party-opponent's own
statement, made either in an individual or in a representative capacity[.]" Ibid.
10
See N.J.R.E. 104(a).
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We affirm the trial court's ruling that the jailhouse telephone recordings were
admissible substantially for the reasons set forth in the trial court's written
opinion.
B.
We need only briefly address Daniels' contention that the jailhouse
telephone calls were tainted by information unlawfully obtained from his cell
phone. He argues that police unlawfully obtained his consent to search the cell
phone because the request for consent came after his custodial interro gation
was terminated when he asserted his right to consult with an attorney. He
contends the seizure of the contact information from the cell phone aided the
State's ensuing investigation by identifying parties whose conversations were
recorded on the jail telephones.
We need not address the legal issue of whether a valid consent to search
can be obtained from an arrestee who has invoked the Fifth Amendment right
to counsel 11 because Daniels' argument proceeds from a false factual premise.
11
As we explained in State v. Chappee, the privilege against self-
incrimination is analytically distinct from the constitutional protection against
unreasonable searches and seizures. 211 N.J. Super. 321, 333 (1986). We
further noted that "'[t]he absence of Miranda warnings does not vitiate consent
to a seizure of personal property, because the Miranda protections are
addressed to constitutional rights that are distinct from Fourth Amendment
rights." Ibid. (quoting Hubbard v. Jeffes, 653 F.2d 99, 101–02 (3d Cir. 1981)).
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A Law Division judge 12 determined after a suppression motion hearing that in
fact, Daniels had not invoked his right to counsel but rather had waived that
right after being advised of his Miranda13 rights. The trial judge found there
was no basis to disturb the findings of the suppression motion judge. Nor do
we. See State v. Gamble, 218 N.J. 412, 424 (2014) ("Appellate courts
reviewing a grant or denial of a motion to suppress must uphold the fa ctual
findings underlying the trial court's decision so long as those findings are
supported by sufficient credible evidence in the record.").
V.
Defendants raise various contentions regarding expert testimony by
Sergeant Leon Holloway, who narrated the jailhouse telephone calls and
opined as to the meaning of certain terms and jargon. The trial judge
convened a Rule 104 hearing and decided that Holloway was qualified as an
expert and could present testimony regarding terms and slang used in the drug
trade that would not be known by the average juror. The court also permitted
Holloway to opine on: drug organization structures and the different functions
that are performed within a drug trafficking organization; the packaging of
12
Daniels' suppression motion concerning the consent search of his cell phone
was heard by the Morris County Criminal Presiding Judge because defendant
had pending charges in that county.
13
Miranda v. Arizona, 384 U.S. 436 (1966).
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CDS; the prices of different CDS; drug distribution and debt collection
practices; and the role of firearms in drug trafficking networks. The judge
precluded Holloway from testifying as to terms that are not beyond the ken of
the average juror. The judge also precluded Holloway from offering an
opinion as to a defendant's state of mind, e.g., whether a defendant intended to
distribute CDS.
Unlike lay opinion testimony, expert testimony is given by an
individual who possesses specialized knowledge about a particular subject.
N.J.R.E. 702. That specialized expertise is then used to "address matters
outside a juror's understanding." State v. Hyman, 451 N.J. Super. 429, 443
(App. Div. 2017). N.J.R.E. 702, which governs expert testimony, states "[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, a witness qualified
as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise."
The party offering expert testimony must establish three foundational
requirements:
(1) the intended testimony must concern a subject
matter that is beyond the ken of the average juror;
(2) the subject of the testimony must be at a state of
the art such that an expert's testimony could be
sufficiently reliable; and
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(3) the witness must have sufficient expertise to
explain the intended testimony.
[State v. Harvey, 151 N.J. 117, 169 (1997) (quoting
State v. Kelly, 97 N.J. 178, 208 (1984)).]
Significantly, the decision by the trial court that a witness is competent
to testify as an expert is entitled to deference absent a showing of abuse of
discretion. See Carey v. Lovett, 132 N.J. 44, 64 (1993).
A.
As we have noted, a witness "offered as an expert must . . . be suitably
qualified and possessed of sufficient specialized knowledge to be able to
express such an opinion and to explain the basis of that opinion." State v.
Odom, 116 N.J. 65, 71 (1989). The expert must have specialized knowledge
and expertise through education, experience, formal or informal training, or
any combination. See State v. Smith, 21 N.J. 326, 334 (1956).
Burnett contends that Holloway was not a qualified expert in narcotics
trafficking, asserting: (1) he does not possess a degree in criminology,
sociology, or any other related social science; (2) he has not attended a high -
intensity drug-trafficking-area course in ten years; and (3) his expertise in the
subject area came from his participation in controlled buys and his surveillance
of hand-to-hand drug transactions, along with watching YouTube videos, and
reading an urban dictionary rather than academic literature.
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These contentions do not warrant extensive discussion. R. 2:11-
3(e)(2). The record shows that Holloway has almost thirty years of experience
in law enforcement, twenty-one of which were spent assigned to narcotics
enforcement units. He has been involved in more than 15,000 narcotics
investigations throughout his law enforcement career and has testified as an
expert witness in narcotics cases more than 800 times in Superior Court and
once in federal court. In addition, Holloway has authored hundreds of reports
in those investigations and cases.
Based on that extensive experience in the field of narcotics, the trial
court correctly found that Holloway "is familiar with the jargon of the drug
trade given his experience in the field, which continues to this day." The trial
court in no way abused its discretion in finding that Holloway was qualified as
an expert witness to interpret coded language and drug slang.
Burnett next argues that Holloway did not apply a sound methodology
to his expertise, and thus failed to meet the requirements of N.J.R.E. 702 that
"the field testified to must be at a state of the art such that an expert's
testimony could be sufficiently reliable." Kelly, 97 N.J. at 208. We reject
Burnett's contention that Holloway's expertise is based on "anecdotal,
haphazard on-the-job training" and that he failed to employ any "scientific
methodology." N.J.R.E. 702 expressly provides that a witness may be
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qualified as an expert" by knowledge, skill, experience, training, or education."
(emphasis added). See Smith, 21 N.J. at 334 (explaining that "an expert may
be qualified by study without practice or practice without study . . . ").
B.
All three defendants contend that the trial court erred in allowing
Holloway to opine on the meaning of terms and phrases that defendants used
during the recorded telephone conversations. They argue the language they
used was not beyond the ken of the jury. We disagree.
The law is well-settled that in narcotics prosecutions, expert testimony
can be utilized so long as the subject matter to be discussed by the expert is not
within the average juror's common understanding. State v. Cain, 224 N.J. 410,
420 (2016); see also State v. McLean, 205 N.J. 438, 459 (2011). In State v.
Doriguzzi, we held that "[a] factfinder should not be allowed to speculate
without the assistance of expert testimony in an area where the average person
could not be expected to have sufficient knowledge or experience." 334 N.J.
Super. 530, 538 (App. Div. 2000). In Hyman, we held that an expert on
narcotics trafficking can testify about "drug slang or code words [that] remain
beyond the average juror's understanding." 451 N.J. Super. at 446. However,
a drug dealer's "facially coherent conversations" do not require expert
interpretation. Id. at 446–47. An expert's opinions, moreover, should not
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"stray from interpreting drug code words, and pertain to the meaning of
conversations in general and the interpretation of 'ambiguous statements t hat
were patently not drug code.'" Ibid. (quoting State v. Dukagjini, 326 F.3d 45,
55 (2d Cir. 2003)).
The question of whether such expert testimony is permissible under
N.J.R.E. 702 is left to the trial court to resolve in its function as a gatekeeper.
Id. at 447 (citing State v. Nesbitt, 185 N.J. 504, 514 (2006)). The trial court
must determine whether this opinion testimony will assist the jury in
understanding "drug slang or code words . . . beyond the average juror's
understanding[.]" Ibid. That discretionary decision is subject to a deferential
standard of appellate review. Id. at 441.
Defendants challenge Holloway's testimony concerning the following
terms/phrases and interpretations:
Holloway opined the phrase "shit drying up" means
"no activity" and that "[defendants] want to keep the
flow of the distribution taking place."
Holloway opined the phrase "[t]ake his money, pin it,
flip it. Keep turning over" referred to "the money
that's being brought in from the illegal transactions,"
and that the defendants wanted to "keep it going."
Holloway opined the term "grind" meant "to put in
work" and "push the product."
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Holloway opined the term "hustle" meant "[m]aking it
happen." He also opined that the word "hustle" could
mean "putting in work" or "hardworking."
Holloway opined that the term "sticks" has multiple
meanings and could refer to firearms or Xanax pills.
He opined that in this case, the term referred to
firearms longer than a handgun.
Holloway opined that the phrase "I'mma tighten him
up today" could mean either a verbal or physical
altercation.
We have reviewed the transcripts of the telephone calls and agree that
the conversations that were played for the jury were not "facially coherent
conversation[s]." See Hyman, 451 N.J. Super. at 446. We also agree with the
trial court that the terms and phrases defendants used were a form of drug
slang or coded language beyond the ken of the average juror. The expert
testimony was thus helpful in providing appropriate context to allow the jurors
to understand the meaning of those conversations. Ibid. We add that the trial
judge appropriately instructed the jury that it could disregard any portion of
Holloway's testimony it found to be not credible. See Espinal v. Arias, 391
N.J. Super. 128, 138 (App. Div.) ("While the trial judge must determine
whether the expert's training and experience are sufficient to permit the expert
to state an opinion, it remains the jury's function to determine the worth of that
opinion.").
C.
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Defendants also contend that Holloway improperly opined on their
state of mind and the ultimate issue of their guilt. That contention also lacks
merit. In addition to opining on the meaning of drug slang, experts may opine
on matters "such as quantity and packaging of drugs, and other indicia of drug
distribution not commonly understood by lay persons." State v. Simms, 224
N.J. 393, 408 (2016); see also Hyman, 451 N.J. Super. at 446. An expert
witness in a drug case, however, may not render an opinion about the
defendant's state of mind. Cain, 224 N.J. at 429. "Whether [a] defendant had
the requisite state of mind to commit the offense . . . [is] an ultimate issue of
fact to be decided by the jury." Id. at 420.
The State first played the recorded telephone calls without
interpretation. The State then replayed the recordings and had Holloway
narrate, interrupting recordings to offer opinions on the meaning of certain
terms and phrases. Defendants contend that the format of Holloway's
testimony was improper under the principles established in Cain and Simms.
Defendants' reliance on these cases is misplaced. In Cain, the
prosecutor asked a witness a long hypothetical question that incorporated
every fact from the record. Cain, 24 N.J. at 431. The only difference between
the hypothetical and the record was that the prosecutor left out the defendant's
name and replaced it with the term "individual." Ibid. At the end of the
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hypothetical, the prosecutor asked the witness whether, in his opinion, the
hypothetical just posed would lead him to believe that the "individual"
possessed the narcotics in question for personal use or with the intent to
distribute. Ibid. The witness then answered that he believed the "individual"
possessed the narcotics with the intent to distribute. Ibid. The Court found
that this long-winded hypothetical crossed the permissible bounds of expert
testimony by allowing the witness to opine on the defendant's state of mind,
which is within the exclusive province of the jury. Id. at 429.
In Simms, the defendant was observed by police handing an unknown
object to another individual in exchange for currency. Simms, 224 N.J. at 405.
The State again used a long hypothetical question that included the assumed
fact that heroin was exchanged in the hand-to-hand transaction for currency.
Ibid. While the surrounding circumstances indicated that the object was
heroin, this was an issue of fact for the jury to decide. Ibid. As in Cain, the
Court found that the question improperly usurped the role of the jury and
impermissibly allowed the witness to opine on the defendant's state of mind.
Ibid.
While defendants in the present case acknowledge that the State did not
use an impermissible hypothetical question, they argue that Holloway reached
the same impermissible result—directly opining on defendants' guilt—by
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interpreting the language defendants used in the recorded conversations.
Specifically, defendants argue that Holloway improperly opined on defendants'
guilt when he interpreted Daniels statement that he did not "want that shit to
dry up" as meaning "no activity" and that "[t]hey want to keep the flow of the
distribution taking place."
Defendants also challenge Holloway's interpretation of the phrase "pin
it, flip it, keep turning it over." Holloway opined that this means "the money .
. . being brought in from the illegal transactions, keep it going . . . . Let's keep
the street, the block, working. Let's keep that . . . smooth, even-going flow.
The money that's being brought in, turn that over, buy more product."
We are satisfied that Holloway was merely translating slang so that the
jury could understand the conversations; we do not believe Holloway's
interpretations constitute an impermissible opinion either as to defendants'
state of mind or their ultimate guilt with one exception. We are concerned that
Holloway at one point used the term "illegal" to describe the transactions.
That was not appropriate. We do not believe, however, that fleeting
description rises to the level of reversible error viewed in context with the
entirety of the sergeant's testimony and the other evidence of illicit drug
distribution activity adduced by the State.
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Finally, defendants challenge Holloway's interpretation of the term
"sticks" as meaning a weapon longer than a handgun. Defendants argue it was
inappropriate for Holloway to interpret this term because defendants were
charged with unlawful possession of weapons. We disagree. Importantly,
Holloway did not testify that any defendant possessed a firearm. Rather, he
merely explained that the term "sticks" has multiple meanings and could refer
to a type of firearm.
In sum, we find no abuse of discretion by the trial judge in permitting
Holloway's expert testimony.
VI.
We need only briefly discuss Daniels' contention that the trial court
erred in admitting into evidence Facebook records that showed names, phone
numbers, and postings associated with defendants' accounts. Photos posted on
Daniel's Facebook account were used at trial to show that he had been present
at the South 8th Street address. Photos also showed Daniels with Burnett and
Berry. The records also were used to confirm defendants' nicknames.
Daniels argues the records were not properly authenticated and thus do
not qualify under the business records exception to the hearsay rule, N.J.R.E.
803(c)(6). The trial court convened a Rule 104 hearing at which the State
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60
explained that it had obtained the records via Facebook's dedicated law
enforcement portal, which is designed to respond to requests from police.
The admissibility of business records is governed by N.J.R.E.
803(c)(6). Before a writing offered as a business record may be admitted, the
proponent must authenticate the record. State v. Marrocelli, 448 N.J. Super.
349, 364 (App. Div. 2017); see also State v. Brunson, 132 N.J. 377, 393
(1993). The authentication requirements are flexible. State v. Hannah, 448
N.J. Super. 78, 88 (App. Div. 2000). Authentication requires only a prima
facie showing of authenticity of the proffered record. See State v. Tormasi,
443 N.J. Super. 146, 156–157 (App. Div. 2015). The record may be
authenticated by direct or circumstantial proof. Hannah, 448 N.J. Super. at 90.
The trial judge decided to admit the records even though the State at
the Rule 104 hearing was unable to provide a certification from the Facebook
custodian of records. However, at trial, the State presented a "a certificate of
authenticity of domestic records of regularly conducted activity from
Facebook." The certificate was signed by Facebook's custodian of records.
We are thus satisfied that by the time the records were actually admitted into
evidence, the State had presented sufficient authentication so that the
Facebook records were admissible under the business records exception to the
hearsay rule.
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VII.
We turn to Burnett's contention that his motions to suppress evidence
found during a warrant search of the South 8th Street residence were
improperly denied. Burnett filed two motions to suppress: one claiming the
warrant was overbroad because it did not specify which apartment to search in
the multi-family building, and another contending that the warrant application
failed to establish probable cause to believe that weapons would be found. We
affirm substantially for the reasons set forth in the motion court's thorough and
cogent thirteen-page written opinion denying those motions. Accordingly, we
need not re-address defendant's arguments at length. We add the following
comments.
"A search based on a properly obtained warrant is presumed valid."
State v. Sullivan, 169 N.J. 204, 211 (2001) (citing State v. Valencia, 93 N.J.
126, 133 (1983)). "When a search is conducted pursuant to a warrant, the
defendant has the burden of proving the invalidity of that search, namely, 'that
there was no probable cause supporting the issuance of the warrant or that the
search was otherwise unreasonable.'" Ibid. (quoting Valencia, 93 N.J. at 133).
In considering such a challenge, "[w]e accord substantial deference to the
discretionary determination resulting in the issuance of the [search] warrant."
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Id. at 211–212 (alterations in original) (quoting State v. Marshall, 123 N.J. 1,
72 (1991)).
Furthermore, an appellate court reviewing a motion to suppress will
"reverse only when the trial court's determination is 'so clearly mistaken that
the interests of justice demand intervention and correction.'" Gamble, 218 N.J.
at 425 (quoting State v. Elders, 192 N.J. 224, 244 (2007)). We owe no
deference, however, to legal conclusions based on established facts, and we
review questions of law de novo. State v. Watts, 223 N.J. 503, 516 (2015).
The affidavit in support of the search warrant stated that the building at
the South 8th Street address had been subject to "continuous surveillance" for
"approximately the past two weeks," and while multiple "visitors have come
and gone from the residence," no other residents appeared to be coming and
going other than Burnett. The affidavit further stated that title records showed
that the building was owned by Rehab Home Improvement and that it had
otherwise been abandoned—there were no utility accounts associated with the
address, and no mail service was being provided there. The affidavit further
averred that investigators believed Burnett to be the sole "resident[]" of the
multi-family property, and that it could be "reasonably described as his home."
The motion court found that "[t]he evidence detailed in [the detective's]
affidavit is sufficient to establish that the building was either abandoned, and
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no warrant was required, or, at most, . . . [Burnett] was the sole occupant." We
agree with the motion court that in these circumstances, "[a]s the building's
sole occupant, it was reasonable to infer that [Burnett] had access to the vacant
units and could use them to store contraband." Cf. State v. Rodriguez, 198
N.J. Super. 569, 574 (App. Div. 1985) (rejecting the argument that the warrant
was "too general," and noting that "[i]t is reasonable to infer that an owner-
occupier of a two family house who has one apartment vacant has access to
that apartment and may stash contraband upon any portion of the entire
premises").
VIII.
Finally, we address the contentions raised by Burnett and Berry that the
trial court erred in allowing the prosecutor to cross-examine Daniels on
matters beyond the scope of his direct examination. Daniels exercised his
right to testify on his own behalf. He claimed that the recorded telephone
conversations referred to efforts to collect debts so as to raise money to post
bail and not to drug distribution activity. Daniels also denied unlawfully
possessing a firearm found under the bed at the South 8th Street address.
Burnett and Berry contend that the prosecutor on cross-examination
improperly asked Daniels who he was speaking to in a phone call, which
revealed impeachment evidence that was not the subject of a criminal
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conviction, and improperly strayed into irrelevant and prejudicial testimony
relating to the way Daniels had been apprehended for stealing a car. After
carefully reviewing the record, we conclude (1) the trial court did not commit
reversible error in controlling the scope of the prosecutor's cross -examination,
and (2) the judge delivered adequate limiting instructions to the jury. We
emphasize that much of the prejudice Burnett and Berry allude to on appeal is
mitigated if not rendered moot by our decision to reverse and vacate their
leader convictions. 14
Because we affirm substantially for the reasons explained by the trial
judge in addressing defendants' objections at trial, we need not re-address the
circumstances of Daniels' cross-examination at length. We add the following
comments. The judge warned Daniels during the waiver colloquy that if he
elected to testify in his own defense, the jury would be told the date, degree,
and sentence of his prior convictions. The court explained that it would
instruct the jury that it would be permitted to consider his prior convictions as
they relate to his credibility, but not as evidence of a predisposition toward
14
In the event that Burnett is again tried jointly with Daniels for the leader
offense on remand, we expect that the issues relating to the scope of Daniels'
cross-examination will not recur since the trial judge on remand will be aware
of these potential issues and will be able to take appropriate precautions. We
offer no opinion on whether the events that transpired at trial suggest that on
remand, Burnett and Daniels should be tried separately.
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criminality. The trial judge also cautioned Daniels that if he elected to testify
and mentioned that he had been shot while being apprehended for stealing a
car, he would "open a door" to rebuttal from the State that a Grand Jury found
the police shooting to be justified.
At trial, the judge ruled that because Daniels testified on direct
examination as to the purpose of his calls—to raise bail money—and his lack
of contact with Berry, the State would be permitted to cross-examine Daniels
on his credibility as a witness. In his final instructions to the jury, the trial
reiterated the limited purposes for which the jury would be permitted to
consider the evidence of defendant's prior convictions. 15
15
Those instructions read in pertinent part:
Now, you've heard evidence that Kenneth Daniels has
previously been convicted of crimes. This evidence
may only be used in determining the credibility or
believability of the defendant's testimony. You may
not conclude that the defendant committed any of the
crimes charged in this case or is more likely to have
committed any of the crimes charged simply because
he committed a crime on another occasion.
A jury has a right to consider whether a person who
has previously failed to comply with society's rules,
has demonstrated through a criminal conviction would
[be] more likely to ignore the oath requiring
truthfulness on the witness stand than a person who
has never been convicted of any crime. You may
consider in determining this issue the nature and
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The situation became more complex when the court allowed the
prosecutor to pose questions regarding criminal acts not evidenced by a
conviction. To put the issue before us in context, we note that Daniels was
incarcerated in jail pending disposition of a stolen vehicle charge—a charge
that was not before the present jury. During the prosecutor's cross -
examination of Daniels regarding the content and purpose of the jail telephone
calls, Daniels blurted out that he had been shot by the police. The cour t
immediately instructed the jury to disregard that testimony. 16
Daniels thereafter mentioned the shooting multiple times, despite
repeated warnings from the judge not to do so. Daniels claimed that the
present prosecution was part of a police conspiracy to retaliate against him
___________________
degree of the prior convictions and when they
occurred.
Now, our law permits a conviction to be received in
evidence only for the purpose of affecting the
credibility of the defendant and for no other purpose.
You are not, however, obligated to change your
opinion as to the credibility of the defendant simply
because of prior convictions. You may consider such
evidence, along with all the other factors we
previously discussed, in determining the credibility of
the defendant.
16
After defendant's repeated comments, the trial judge instructed: "Jurors, I
will tell you again to disregard the last comment by Mr. Daniels as to being
shot or anything else along those lines. That is not before you in this case.
You must disregard it; it cannot play any part in your verdict."
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because "there's a pending lawsuit against the police officer who shot me." In
light of Daniels' repeated references to the shooting incident and his contention
that he had been shot in the back without justification, the judge determined
that Daniels had "opened the door" and on that basis, the judge allowed the
prosecutor to ask clarifying questions about the shooting incident on cross -
examination.17 The prosecutor's questions established that Daniels had been
driving a stolen vehicle, that he had attempted to elude police, and that he was
driving toward a State Trooper who was attempting to stop him when the
Trooper fired upon him. The State also elicited on cross-examination that the
incident resulted in a wound to Daniels' shoulder for which he was treated at a
hospital and discharged in less than three hours.
Burnett and Berry argue that Daniels' testimony elicited on cross-
examination constitutes inadmissible other crimes evidence under N.J.R.E.
404(b), which provides that "evidence of other crimes, wrongs or acts is not
admissible to prove a person's disposition in order to show that on a particular
occasion the person acted in accordance with such disposition." The State
acknowledges that the trial court did not analyze the evidence under the
17
The trial judge found that this testimony "open[ed] the door to it [cross-
examination] in an [effort] to curry sympathy to the jury. There's no other
reason he raised it."
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standard set forth in State v. Cofield, 127 N.J. 328 (1992). 18 We agree with the
State, however, that this is an unusual situation not contemplated in Cofield.
We are satisfied that the testimony elicited on cross-examination regarding the
shooting incident was not used to show that Daniels had a certain disposition
or acted in accordance with any such disposition, much less that Burnett or
Berry had any such disposition. Nor was the cross-examination testimony
used to show "proof of motive, opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or accident when such matters are
relevant to a material issue of dispute." N.J.R.E. 404(b). Accordingly, the
traditional analysis of other crimes/wrongs evidence does not apply in these
unusual circumstances.
18
Cofield establishes a four-part test for admission of other crimes evidence
under N.J.R.E. 404(b):
1. The evidence of the other crime must be admissible
as relevant to a material issue;
2. It must be similar in kind and reasonably close in
time to the other offense charged;
3. The evidence of the other crime must be clear and
convincing;
4. The probative value of the evidence must not be
outweighed by its apparent prejudice.
[127 N.J. at 338 (citation omitted).]
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Rather, we agree with the trial court that Daniels "opened the door," thus
allowing admission of evidence that otherwise would be inadmissible. See
State v. B.M., 397 N.J. Super. 367, 381 (App. Div. 2008) ("The doctrine of
opening the door allows a party to elicit otherwise inadmissible evidence when
the opposing party has made unfair prejudicial use of related evidence."). We
thus conclude that the trial court did not err 19 in permitting the prosecutor on
cross-examination to challenge Daniels on his account of the shooting incident
and his claim of a police conspiracy to fabricate evidence against him.
To the extent we have not addressed them, any remaining contentions
raised by defendants, including Daniels' contention regarding the transfer of
jail custody, lack sufficient merit to warrant discussion in this opinion, R.
2:11-3(e)(2), especially in view of our decision to reverse defendants'
convictions for leader of narcotics trafficking network and to vacate the life
sentences imposed on those convictions.
19
We note that as a general proposition, when a trial court does not subject
the proffered evidence to the four-part Cofield test, an appellate court assesses
the admissibility of that evidence applying a de novo standard of review. See
State v. Rose, 206 N.J. 141, 158 (2011). Even applying de novo review, we
believe the scope of Daniels' cross-examination was appropriate in the face of
Daniels' claims and does not provide a basis upon which to overturn Burnett's
and Berry's convictions for the non-leader offenses.
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Affirmed in part and reversed in part. We remand for further
proceedings consistent with this opinion. We do not retain jurisdiction.
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