Defendant was tried before a jury and found guilty of second-degree possession of a controlled dangerous substance (CDS) (cocaine) with intent to distribute. Part of his appeal concerned the testimony of an SPCA law enforcement officer or humane law enforcement officers (HLEO) who dealt with Defendant’s dogs.
At the suppression hearing, a detective testified that he removed Defendant from the home, handcuffed him, and placed him in the back seat of a police cruiser. Then, an SPCA officer, a certified humane law enforcement officer with the SPCA, approached Defendant and asked if he was the owner of the dogs. She told him she was there to remove the dogs from the property and bring them to a shelter. She asked Defendant “if he was interested in releasing the dogs.”
The SPCA officer asked Defendant about releasing the dogs because, if he agreed, this would provide the dogs an opportunity “to get freed up so they’re not held in the shelter environment for months or years.” She stated, however, that defendant told her he “was not interested.” But then Defendant changed his mind. He said he wanted to release the dogs to the SPCA, and signed the necessary forms.
At the trial, the State presented testimony from, inter alia, the SPCA officer. Defendant didn’t testify and presented no witnesses. The jury found defendant guilty on several counts.
Defendant argued on appeal that the trial judge erred by permitting the SPCA officer to provide the jury with what he claimed were highly prejudicial expert opinions, when she wasn’t qualified as an expert. He claimed that because the State relied on the SPCA officer‘s testimony to prove he owned, possessed, or kept live animals for fighting or baiting, his conviction on that count should be reversed and that charge remanded for a new trial.
The record showed that before the SPCA officer testified, defense counsel objected to her testimony, and the judge conducted a Rule 104 hearing. At the hearing, the SPCA officer testified that she was a certified humane law enforcement agent, employed by the County SPCA. She explained that as such, she was responsible for enforcing New Jersey’s criminal statutes governing cruelty and neglect of animals. The SPCA officer stated that she completed training at the County Police Academy, where she learned how to investigate suspected dog-fighting.
The SPCA officer further testified that she had been trained to look for particular types of wounds on the animals and she had become familiar with homemade medical supplies. She also had become familiar with devices that are used to strengthen and condition dogs and learned how these devices worked. She testified that she investigated several allegations of dog-fighting.
The judge ruled the State could present the SPCA officer as a lay witness, but she wouldn’t be qualified as an expert. The judge also ruled the State could not elicit from the SPCA officer any opinions on the issue of whether she believed defendant used the dogs for fighting.
The SPCA officer testified that when she arrived at the property, she spoke with the state troopers who were at the scene. She then went to the backyard, where she saw six pit bull dogs in a pen. She said one of the adult dogs was tied to an “excessively heavy chain,” and she observed various other devices in the backyard. SPCA officer saw a “dog walker” behind a shed, and she explained that this device “is used for conditioning.” She stated that a person will strap a dog to the device and encourage it to “go around and around” while carrying weights to increase the dog’s “endurance.”
She also observed a “spring pull,” which consists of “a tire hanging in a tree which also is used to encourage a dog to jump and grab hold” to “strengthen its jaws.” She saw a “slatmill” in the shed, which is a type of treadmill used to train dogs that “makes the dog just keep going and running.” She also saw what appeared to be “blood splatter” underneath the slatmill.
The SPCA officer further testified that she observed a male dog with injuries, including “a few older injuries, a lot of puncture marks,” and “[w]ounds to the face and the ear.” A female dog also had injuries, which included “some old healed wounds and some fresher, healing wounds.” The SPCA officer said the dog’s chest and front legs were covered with a colored spray. She described the spray as a type of “wound care spray.”
On appeal, Defendant argued that the SPCA officer‘s testimony concerning the dog-training devices and injuries was essentially expert testimony that exceeded the ken of the average juror. Defendant also argued that the SPCA officer‘s testimony on these issues exceeded the bounds of permissible lay witness opinion testimony. Defendant argued that the State was required to qualify the SPCA officer as an expert before eliciting her testimony about the dog-training devices, blood splatter, and dog wounds.
In its per curiam opinion, the Court explained that opinion testimony by persons who aren’t qualified as experts is governed by Rule 70. The rule states that “[i]f a witness is not testifying as an expert, the witness'[s] testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness'[s] testimony or in determining a fact in issue.”
Rule 701 thus requires that the lay witness’s opinion must be based on the witness’s “perception,” and any such perception must be based on the acquisition of knowledge through use of one’s sense of touch, taste, sight, smell or hearing, the Court explained.
On the other hand, expert testimony is governed by Rule 702, which states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”
Rule 702 thus requires that expert testimony be based on a witness’s specialized knowledge and it must assist the jurors understand “subject matter that is beyond the ken of the average juror.”
The Court was convinced that the judge erred by allowing the SPCA officer to testify as to the uses of the dog-training devices she observed at the property. She wasn’t qualified as an expert, and her opinions regarding the uses of the devices were expert testimony on technical matters which are “beyond the ken of the average juror.”
These opinions also exceeded the limits on lay opinion testimony because they were based on SPCA officer‘s “training, education and experience-not [her] ‘own senses,’ perceptions and observations,” the appellate court held. However, the trial judge’s error in allowing the SPCA officer to testify about the purposes of the dog-training devices was harmless.
The Court held that the SPCA officer‘s testimony on the uses of the dog-training devices was not critical to the jury’s verdict on the charge in question because the State presented more than enough other evidence from which the jury could find that defendant owned, possessed, or kept the dogs for the purpose of fighting or baiting, in violation of state statute.
The State presented a qualified as an expert who testified that the dogs had wounds that were “typical” of injuries sustained during fighting. In addition, the detective said he observed scrapes and scratches on the dogs’ bodies. Moreover, SPCA officer testified that she observed wounds on the dogs and what appeared to be “blood splatter” on a training device found on the property.
Thus, the Court held that the erroneous admission of SPCA officer‘s testimony on the purposes of the dog-training devices was harmless and didn’t warrant reversal of defendant’s conviction.
The sentence was affirmed.