*1 A.2d PLAINTIFF-RESPONDENT, JERSEY, STATE OF NEW NESBITT, ANTHONY DEFENDANT-APPELLANT. Decided January Argued 2006. October *3 Perrone, Counsel, Designated argued the Alison S. cause for (Yvonne Defender, appellant Segars, attorney). Public Smith Henderson, General, Deputy Attorney argued Carol M. (Peter Harvey, Attorney respondent cause for C. General of New Jersey, attorney).
Justice
of the Court.
LaVECCHIA delivered
Charged
accomplice,
as an
defendant was convicted
a
multiple
charges
drug
including third-degree
a
distribution of
(CDS)
dangerous
property.
controlled
or near school
substance
on
an
During
presented
expert
trial the State
witness who testified
operation
about
drug
methods of
utilized
street-level
His
sаles.
hypothetical question
in a
culminated
that assumed
corresponding
detailed facts
to the
facts adduced
trial. The
expert
hypo
was asked whether the individual described in the
“complieit
distributing drugs”
thetical was
explain
and to
opinion. Although
facts on which he
his
based
defendant did not
time,
object
argued
appeal
at the
he
on
that the
testimony impermissibly
province
jury.
invaded the
More
over,
expert’s testimony
if
even the
about
distribution meth
admissible,
ods was
defendant contended that
presented by
closely
too
specialized language
State
tracked
charged
from the statute under which he was
and invited the
exрress
guilt.
a view on the ultimate
issue
defendant’s
That,
argued,
contrary
was
to the standards established
Odom,
65,
for such
State
116 N.J.
Admission of
techniques
permissible
reasonably
distribution
required
when
jurors
subjects
in understanding
beyond
assist
that are
the ken of
Odom,
average layperson.
supra,
I. below, facts, from the summarized are derived The 20, 2000, July Trenton Police adduced at trial. On and evidence police patrolling in an unmarked Neiderman was Officer David prostitution. operation targeting part of an undercover vehicle as street, a a noticed a male and female As he drove down he corner; appeared at him. At the standing female tо wave on a time, suspected prostitution and so alerted his arrest Neiderman to the corner where the individuals team. He then drove back standing Both individuals pulled over next to them. had been you car. The man asked Neiderman “what do approached the Realizing potential a narcotics transac- then this was need?” tion, “ten,” replied meaning that ten dollars he wanted Neiderman The man then looked at the woman and worth of crack cocaine. her, “give response, him the woman removed said to ten.” wrapping yellowish paper a brown she rock-like substance from holding. appeared to be сrack cocaine. had been substance man, him Showing object to the she asked “this the rock-like replied “yes.” The handed Neid- much?” The man woman then object from him. As Neider- erman the and received ten dollars They away, quickly moved man drove he notified his arrest team. individuals, who identified as defen- in and the two were arrested Anthony McCoy. Nesbitt and Lenora dant third-degree charged possession of a CDS Defendant was with (Count 2C:35-10a(l) 1); (cocaine), contrary to N.J.S.A and 2C:2-6 distribute, con- third-degree possession of a CDS with intent *5 2C:35-5b(3) (Count 2C:35-5a(l); 2); trary and to N.J.S.A 2C:2-6 third-degree possession of a with intent to distribute within CDS 1,000 2C:35-7; property, contrary feet of school to N.J.S.A (Count 2C:35-5b(3); 3); 2C:35-5а(l); third-degree and 2C:2-6 CDS, 2C:35-5a(l); contrary distribution of a to N.J.S.A. 2C:35- (Count 5b(3); 4); third-degree and 2C:2-6 and distribution of a 1,000 contrary property, feet of school to N.J.S.A. CDS within (Count 5). 2C:35-7; 2C:35-5a(l); 2C:35-5b(3); and 2C:2-6 trial, At from Officer Neiderman the State introduced County Prosecu- and from Detective Veldon Harris the Mercer Office, qualified in Harris tor’s who was as narcotics. provided general and information about street-level sales following exchange then the occurred. it is I Detective for the of the next
Q: Harris, question, hypothetical, purposes following want to assume the facts: you I it is and that the location is Locust and want assume 1:46 you a.m., Street in the of Trenton. I want to assume further there arе you Chambers City in location. I’ll as individual A and individual two individuals that refer them flags B. I want to assume further that individual A down a vehicle. Assume you A B further that when that vehicle that both individual and individual over, pulls following that the conversation takes vehicle, and approach place: B in the do Assume vehicle, That individual to the what need? says person you B further that the in the vehicle ten. Assume then that individual says person give individual A to in the vehicle worth of crack. Assume directs person $10 that individual A then shows a crack to individual CDS, cocaine, then quantity B this B And that asks, and much? Assume then that individual answers, yes. exchange that crack in for A, then individual serves the cocaine mоney person, in the vehicle. person to form an about or not B was Would be able whether you opinion person (sic) drugs the distribution of those the vehicle? person complicit A: I would. Yes, And what would be? your
Q: opinion distributing drugs. A: That was person complicit And on what facts do base that Q: you opinion? vehicle,
A: I base that on the that individual that approached what that individual then instructed needed, individual asked person they give vehicle, A to the crack cocaine to the in the and the A, the person person drugs is this how individual, out the then asked the other person pulled drugs given are then said And then much, they yes. person the vehicle. a crack if I told that Individual A was found to have them Now, pipe *6 Q: you drugs, additional would that affect the time of their arrest and no your opinion? A: it would not. No, drugs If I told that at the time of B’s that individual had no arrest,
Q: you person of and no on is that money them, part your opinion? A: Yes. is that of And
Q: why part your opinion? utilizing drugs, A: that was someone else to sell the so Well, individual, obviously, going drugs as far as the Also, not to find you’re person. money, given individual had the the was back to the who money money, person drugs, sold the and this is done in a street-level distribution actually commonly utilizing a runner. network when are you object previously, As noted defense counsel did not to the above testimony. third-degree
The convicted defendant on three counts: (Count 1); possession third-degree distribution of a CDS of CDS (Count 4); 1,000 third-degree and of a within distribution CDS (Count 5). property sentencing, of At the trial court feet school merged Count into Count and then reviewed defendant’s presentence report. Looking criminal record and to N.J.S.A. 2C:44-la, aggravating the court found three factors and no miti gating factors.1 The court also determined defendant was subject mandatory pursuant to a term extended N.J.S.A. aggravating 2C:43-6f. The court concluded that the factors sub stantially outweighed mitigating and factors sentenced defen nine-year dant on Count 5 to a term of incarceration with a four- and-a-half-year period parole ineligibility. Defendant also was five-year sentenced to a flat term on Count be served concurrently with the sentence on 5. Count following aggravating under 1The court found factors NJ.S.A. 2C:44—la: (6) (3) offense; the risk that the defendant will commit another the extent of criminal record and the he defendant's seriousness of offenses which prior (9) deterring convicted; has been and the need for the defendant and others violating law. from Division affirmed opinion, Appellate unpublished In an conviction, only entry of an amended remanding for defendant’s reject- panel merging 4 and 5. The judgment conviction Counts permitting trial court erred argument that the ed defendant’s Further, trafficking. street-level about Har- question posed to Detective panel examined the panel that no concluded light of Summers Odom. ris court the trial allowed was committed when error (1) limited to question: was unchallenged hypothetical because (2) explicitly; and evidence; did not refer the facts legality (3) express about did not ask the of the transaction.
II.
Summers,
306, 823 A.2d
supra, 176 N.J.
We reaffirmed
*7
65,
1198,
Odom,
is the foundational
supra,
N.J.
560 A.2d
that
of
testimony incorporating the use
Jersey
expert
on
New
case
drug possession and distribution
questions about
hypothetiсal
with
charges
possession
of
of a CDS
At
trial on
activities.
Odom’s
expert distribute,
prosecutor asked the State’s
the
intent
(which
following
hypothetical
individual
facts about
assume the
trial):
(1) a search
at
with the facts adduced
were consistent
(2)
in a
executed;
found
eighteen vials of crack were
warrant was
(3)
bed;
apartment
the
in the
individual’s
and
pillowcase
the
drug paraphernalia.
no
twenty-four dollars and
police found
facts,
68,
Odom,
Based on those
supra,
at
This Court that the con cerning drug “reasonably required distribution was to assist thе jury” subject because the “covered a that was within the specialized knowledge expert, beyond and thus the under standing persons average knowledge, education, of of experi and Court, ence.” Id. at Writing A.2d 1198. for the Justice long expert Handler stated that “as express as the does not his opinion guilt simply defendant’s but characterizes defendant’s conduct light specialized based the facts in evidence of his knowledge, opinion objectionable not though even it em braces ultimate issues must decide.” Id. at Thus, though A.2d 1198. expert even at Odom’s trial ex pressed opinion his “in terms of ultimate issues of fact ... [his] opinion impermissibly did not exрression constitute the of a view guilty defendant was charged.” the crime Id. A.2d 1198.
Importantly, provided guidelines the Court concerning Odom the use of regarding possession witness and illegal distribution of narcotics. proffering [I]n of an in this ease, kind should be to refer question carefully phrased and only evidence
adduced
packaging
processing
about
the manner of
for use or
distribution,
significance of various
and concentrations of
quantities
narcotics,
the roles of
drugs
various
characteristics of the
paraphernalia,
themselves,
import
surrounding
of circumstances
the conduct of the
possession,
and the
possessor
*8
drugs
mаnner in which
be secreted or
may
otherwise
for
use
possessed
personal
[sic].
or distrubution
Once this foundation has
laid,
been
the
should then be
with a
presented
through
jury
signifi-
which he or she can
hypothetical question
advise the
of the
Having
cance
these facts on
issue of
the
set forth this
possession.
information in
the form of a
the
hypothetical,
be asked
based on
expert may
if,
these assumed
drugs
he or she has an
facts,
whether the
opinion
were
for
use
possessed
personal
or for the
of distribution.
purpose
following
jury
the
advised,
presentation
essential
that
be
It is also
should
question
for that
The hypothetical
of the basis
opinion.
opinion,
expert’s
sought
being
that that
is
is the witness’
that it
opinion
indicate
clearly
assuming
at trial.
It
circumstances adduced only
the facts and
was formed
opinion
jury,
cannot be
that the
and the
understand
witness,
opinion
that the
important
on facts that are not in evidence.
based
answer should avoid
precise
extent
addition,
expert’s
In
possible,
defining
terminology
and its
elements.
necessary
criminal offense
of the statute
language
distorted, statutory
should not be
and plain
ordinary expression
While
should not be
language
the defendant’s name
Further,
should be paraphrased.
used.
(citation omitted).]
[Id.
In N.J. to reexamine” our compelling “no reason that there was stated Summers, sought defendant decision Odom. earlier an wit question whether previously settled review fact-finding role jury’s prosecution intrudes on the for the ness presented in a that facts expert expressed] the view when “the trial) (modeled at were on identical facts adduced hypothetical 15. The 823 A.2d Id. indicative of distribution.” paragraphs long and mirrored was four hypothetical in Summers 310-11, A.2d 15. The Id. at facts of the ease. the exact and, testimony at trial object expert’s did not appeal. Id. at therefore, standard controlled error 316, 823A.2d 15. closely even more
Notwithstanding
that the
hewed
hypotheti
charges than the
underlying the defendant’s
to the facts
general
Odom,
conviction because
upheld
we
Summers’
cal
315-16, Id. at
had been followed.
guidelines set out Odom
ultimate
expert’s statement embraced
Although the
A.2d 15.
by name
issues,
hypothetical did not refer to the defendant
guilt. Id. at
as to the defendant’s
and did not ask for
chance of
also “reduced the
A.2d 15. The trial court
all,
accept
it could
by instruсting the
improper prejudice
*9
part,
[expert’s] testimony,
or none of the
and that it alone had to
317,
questions
guilt.”
decide
Id. at
Since
the use of a
has been an
by
specialized
means
knowledge
expert may
which the
of an
be
placed
laypersons
jury
before the
in order to inform them
techniques
about the
drug peddlers
nuaneed
utilized
who seek
liability by
shield themselves from
concealing
obfuscating
or
drug possession
See,
their
and distribution
e.g.,
activities.
v.
State
Berry,
280,
(1995)
(allowing
N.J.
658A.2d 702
hypothet
use of
charge
ical in
possession
trial on
with intent to distribute CDS
jury
juveniles
in order to
being
educate
on how
were
utilized in
activities).
said,
sale
That
Odom should not be misconstrued
signal
willingness
accept,
blanche,
our
carte
the use of
hypothetical questions asked of
experts
law enforcement
in all
drug charge
admissible,
settings.
expert testimony
To be
must be
subject
about “a
beyond
matter that is
average
the ken of the
juror,”
Kelly,
178, 208,
(1984),
State
Trial courts are gatekeeper a role in determining whether there exists a reasonable need for an ex pert’s testimony, parameters and what testimony may of that be. Consistent with Evidence Rule a trial court must be expert’s knowledge satisfied that the experience reasonably required to inform may beyond on a matter that be jurors’ jurors help ken and will understand the evidence or Further, determine a fact in expert’s issue. when issue, see N.J.R.E. opinion on an ultimate include an will question is that use of a must satisfied trial court be of a unduly The failure prejudicial. reasonably required and not *10 testimony relieve the trial does not object expert defendant respect. responsibilities in either gatekeeper court of its flexibility to sum, provided the State with in Odom In the Court by drug dealers to designed latest tactics jurors on the educate illegal actions. for their responsibility from shield themselves issues, ultimate testimony, including opinions that embrace Expert assisting jury’s testimony value in has permitted is when the the trial significance, and when understanding and their of facts unduly prejudicial. not is court finds that III. A. matter, personally not hold did In the instant officer, and did not give drugs to the drugs, personally not did take officer. Those facts payment from the personally accept the layperson respect in average ken of the matter outside of the this accomplice to the an question defendant was -whether testimony did not Harris’s cocaine. Detective of crack distribution jury. to the explain plainly obvious public who ordinary presume members not doWe ways many in in the jurors are versed on to serve as are called in the with others can act concert of crack cocaine which a seller expert The State’s distributing drugs on the street. business understanding statements jury how defendant’s assisted McCoy, actions of actions, words and with the in combination Berry, 140 N.J. State v. drug distribution. indicative of could be expert (1995), guidance as to when 280, provides A.2d 702 658 permissible. drug concerning aspects of transactions defendants, with different consolidated cases Berry involved two Berry, allowed the Court As to defendant Berry and Cannon. jury evidence to understand testimony that enabled 516
support
accomplice liability by specifically
discussing, among
practices,
“juveniles
other
the use of
as
transport
‘mules’ to
drugs.”
302,
Cannon,
Id. at
The failure of
interposed
objection
defendant to have
expert’s testimony
error,
limits our
to a
plain
review
search for
2:10-2;
Rule
present
such error is not
here. This ease is distin
Boston,
guishable
from State v.
N.J.Super.
In the we hold that Detective Harris’s testimo- ny perceived could helpful have been jury as to the in understand- ing exchange, of naturе drug purchaser which involved a (Officer Neiderman), defendant, and his McCoy. confederate Moreover, objection prior even had there been an expert’s to the hypothetical, and use a of we would find no error in allowing subject matter of testimony. Harris’s
B. wording hypothetical of the question raises a closer question. Although permissible it is for a expert State’s narcotics
517 through jury hypothetical question which can be asked a be trial, significance facts at there are of the adduced informed State, parameters expect the the courts as within which we and gatekeepers, to act. testimony enсompassing an ulti concern about
Our Odom, us to and to underscore Sum mate issue led state mers, too phrasing a should not track that the of precisely language of the criminal with which the exact statute Odom, 82, supra, 560 charged. has been (stating expert’s 1198 that “the answer should avoid A.2d precise terminology defining offense the statute the criminal elements.”). necessary Expert testimony that recites the and its legal jury.2 sought helpful is not conclusion in a verdict (4th Cir.2002). Barile, v. F.3d United States may permissible expert opinion embrace navigating between that opinion testimony improper legal that issues and contains ultimate conclusions, it addressing subject other this have found courts disputed question posed to to consider whether the that was useful legal principle at issue or of language “tracks statute, any employed ... have applicable whether terms ibid, (citation omitted). specialized legal As our Court meaning,” Odom, appellate have lower courts did in those courts counseled Oakland, See, legal e.g., County Torres v. paraphrase terms. (6th Cir.1985) (noting specialized legal meaning 758 F.2d possible and suggesting cases “discrimination” Title VII 2 The Fourth Circuit reasoned that legal to assist states a conclusion is less likely merely [e]xpert Lecureux, F.3d in its determination. See Wоods (“It nothing (6th Cir.1997) offering is, therefore, apparent *12 legal than tell conclusion—i.e., a does little more more than testimony Rules."); result excluded under what reach—is properly (2d 2001) ("The § most 704.04[2][a] s Federal ed. Weinstein’ Evidence legal excluding gives conclusion reason for common opinion jury with no informa- lack of helpfulness____The supplies read.''). other than the witness's view of how verdict should tion omitted).] (4th Cir.2002)(footnote Barile, 760 States 286 F.3d [United
518 rephrasing expert’s hypothetical of question)3; see also Fed. advisory R.Evid. 704 (offering examples committee’s notes of proper improper questions about ultimate of issue will). capacity mеntal to execute charged Defendant was violating 2C:35-5(a)(l), with N.J.S.A. which states that “it any person shall be unlawful for knowingly purposely or ... ... dangerous distribute a controlled substance” 2C:2-6, “Liability and N.J.S.A another; entitled for conduct of complicity.” expert specifically testified that in his hypothetical individual corresponded who to defendant “was complieit distributing drugs.” “complieit” appears
The word
body
in the title and
of N.J.S.A.
2C:2-6,
aligned
and is
definition
principles
with the
of accom
plice liability.4 The State should have avoided its use. The
phraseology
of the State’s
did not
adhere
this
guidance
Court’s
against
Odom that
precise
counseled
use оf
terminology
statutes,
from
preferring
the criminal
para
instead
phrased
language
possible.
common
when
Notwithstanding de
fendant’s valid criticism of
hypothetical’s
phrasing, under the
standard,
agree
error
we
Appellate
with the
Division that the
3 The
in Torres was asked "whether
'Torres had
been discriminated
”
against
origin.'
because
her
Torres,
national
There was cocaine to of crack respect of the sale activities ments and Moreover, referred hypothetical never the Neiderman. Officer presented at trial. limited to facts and was explicitly to defendant proper weight to be jury on the the trial court instructed The jurors that the the opinion, and reminded given expert’s to an solely guilt their determi- was about defendant’s ultimаte decision appropriate gave an Finally, that the trial court we note nation. jury to make liability permitted accomplice instruction on statement by a clear and correct aided that ultimate determination trial, perceive no entirety of this we law. In view In Accordingly, find no error. justice. we miscarriage of future, be sensitive such trial courts should function, gatekeeping should see and, part of the trial court’s as terminology paraphrased. that, legal possible, it when
IV. matter conviction. This conclusion, defendant’s we affirm however, of, must because we disposed completely cannot be mandаtory extended sentencing. received on Defendant reverse years of incarceration. to nine 5 and was sentenced term on Count set above extended term was sentence defendant’s Because at the time to the extended- applicable presumptive sentence permit re-sentenc remanded to range, matter must be term (2005). Natale, A.2d 724 N.J. ing. State part, is affirmed Appellate Division judgment of the proceedings for further part. The cause is remanded reversed opinion. with this consistent ALBIN, dissenting.
Justice detective, qualified ease, police experienced In this distribution, his offered of narcotics expert in field court as an posses- crime of accomplice to the was an opinion that defendant sion dangerous with intent to distribute a controlled substance. authority, police Cloaked with the mantle of delivered guilty his own verdict that defendant was of the crime charged. testimony coming Such authority claiming from an *14 superior knowledge have experience pro- must have had a impact thinking found jury. on the See United States Fosher, (1st Cir.1979) 381, 590 F.2d (discussing 383 “aura of special reliability surrounding expert and trustworthiness” testi- mony); Wheeler, 78, (La.1982) State v. 416 So.2d 82 (explaining prejudice that risk of to defendant is exacerbated “when the expressing one, opinion police officer, witness such as a in jurors trust”). public repose great whom and the confidence and I agree testimony cannot that such capacity did not have the unjust cause an jury, result. It was for the not a law enforcement expert, to credibility make the guilt and factual calls that decided reason, or innocence. For that part I must from majority, which finds Detective Harris’s harmless error. I there- fore dissent.
Although clearly prejudicial, Detective Harris’s did objection not draw an 507, from defense counsel. Ante at A.2d at 473-74. a procedural ordinarily Such weigh default would heavily against defendant, 1:7-2, 2:10-2, see R. R. but in these lapse perfectly circumstances I find counsel’s understandable. precedents signaled of this Court acceptance have almost expert testimony unlimited use of supplant the common knowledge jurors drug cases. legal
The Court has relied on
justify
expanded
fictions to
police expert testimony
use of
drug
fly
cases that would not
other cases.
In
leading
subject,
our
decisions on the
we have held
police
that a
expert
express
narcotics
cannot
that a
guilty
possession
defendant is
drugs
distribute,
with intent to
opine
but can
possessed
drugs
with intent to
Summers,
306,
distribute.
314-16,
State v.
176 N.J.
I do
average juror
jury. An
will not
subjects
enlighten the
that would
or
language
distributors
meaning of cоde
used
know the
packaging, quantity, and
attached to the
importance
to be
edify jurors concerning the
drugs.
expert could
quality of
An
by drug
drug paraphernalia
customary use of scales and other
*15
traffickers,
by drug
ply
to
used
dealers
as well as the methods
322-23,
Summers, supra,
at
However,
making simple deductions from
capable of
ordinary life
straightforward facts
on commonsense
based
significance of the
expert explains the
experience. After an
common
drug dealing—matters outside
of
methods and means
questions such as
equipped to answer
knowledge—jurors are well
distribute,
drugs
possessed
with intent
the defendant
whether
transaction,
accomplice
drug
in a
defendant was
or whether the
science. As
expert guidance. This is not rocket
further
without
notes,
majority
jurors
experts
explain
do not need
507-08, 514,
obvious. Ante at
I am ordinary jurors confident that the common wisdom will guilty not drug escape allow otherwise offenders to the net of justice. necessary It is operation not to strain the of оur evidence drug rules convict traffickers. There is consolation to be found majority’s police expert’s conclusion that here 518-19, went too far. Ante at 888 A. 2d at In 480-81. the best light, message majority from the will be that there are expert opinion limits to the drug use cases. That positive step jurisprudence. would be a forward our However, I would find that the admission of Detective Harris’s failing object was error. to Detective testimony, may Harris’s defense counsel have believed—based on this Court’s case law—that limiting there were few restrictions police expert testimony use of cases. agree
Because I cannot trial, that this defendant received a fair I Appellate would reverse the Division. I therefore dissent. joins opinion.
Justice LONG in this part/reversal For *16 part—Chief Justice PORITZ affirmance LaVECCHIA, ZAZZALI, and Justices WALLACE and RIVERA-SOTO—5.
For reversal—Justices and ALBIN—2. LONG