On appeal from Superior Court, Law Division, Passaic County.
Antell, Deighan and R. S. Cohen. The opinion of the court was delivered by Antell, P.J.A.D. R. S. Cohen, J.A.D., dissenting.
[225 NJSuper Page 565] Defendant was arrested in possession of 18 vials of "crack," a highly addictive form of cocaine. After a trial by jury he was convicted of possession of a controlled dangerous substance, N.J.S.A. 24:21-20, and possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 24:21-19a(1), and sentenced to concurrent terms of probation on each conviction for a period of three years. He was also ordered to pay a penalty of $25 on each offense to the Violent Crimes Compensation Board. He now appeals from the conviction for possession with intent to distribute on the ground that a police officer, qualified as an expert witness, was allowed to testify to his opinion that defendant possessed the drug with intent to distribute. The officer was asked the following question:
Based upon your experience and assuming these facts to be true, do you have an opinion as to whether Ernest Odom possessed 18 vials of crack for his own use or possessed them with the intent to distribute them?
After a short colloquy during which the court overruled defendant's objection that the witness was incompetent "to testify as to a state of mind," the question was restated as follows:
Do you have an opinion whether those 18 vials of crack were possessed for personal use or for the purpose of distributing them?
The witness answered that he had such an opinion, and then testified that defendant possessed the substance with "[t]he purpose of distributing them with intent to distribute [sic]."
Evid.R. 56(3) provides: "Testimony in the form of opinions or inferences otherwise admissible under these rules is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact."*fn1 So stated, the principle is one which is familiar to our case law. See, for example, State v. Louf, 126 N.J. Super. 321, 344 (App.Div.1973), rev'd in part on other grounds, 64 N.J. 172 (1973); State v. Boiardo, 111 N.J. Super. 219, 238 (App.Div.1970), certif. den. 57 N.J. 130 (1970), cert. den. 401 U.S. 948, 91 S. Ct. 931, 28 L. Ed. 2d 231 (1971); Shutka v. Pennsylvania R.R. Co., 74 N.J. Super. 381, 401 (App.Div. 1962), certif. den. 38 N.J. 183 (1962). In each of these cases, although the court found the opinion testimony admissible, it made a point of stating that the witness did not opine on the ultimate question of civil or criminal liability.
In Shutka the court approved testimony from an expert witness that a railroad crossing did not conform to standards of care governing public travel on public roads. It reasoned that what the jury would ultimately have to decide was whether
defendant had been negligent in the maintenance of the crossing or in the operation of its trains thereon, and whether that negligence was the proximate cause of the accident. The court explained that this determination would require consideration of a number of issues focusing on whether precautions taken by defendant conformed with standards of reasonable care. "The proffered evidence thus involved an opinion upon a matter upon which the ultimate question depended." Id. at 400. The following language of that court at 401-402 is enlightening as to the distinction to be made between the ultimate jury question of liability and the ultimate issue as to which an expert witness may opine:
Of course, a statement by a witness which amounts to little more than an expression of his belief as to how the case should be decided, or as to the amount of damages which should be given, or as to the credibility of certain testimony, is in an entirely different category. There is no necessity for such evidence, and to receive it would tend to suggest that the judge and jury may vest responsibility for decision upon the witnesses. McCormick, Evidence (1954), § 12, pp. 24-28, at p. 25. But the opinion testimony of experts relating to the ultimate issue, i.e., the propriety and safety of a condition or appliance, is allowed in those cases in which such testimony is reasonably necessary to give the court and jury an intelligent understanding of the subject matter in controversy.
In Biro v. Prudential Ins. Co. of America, 110 N.J. Super. 391 (App.Div.1970), the majority opinion, which was reversed by the Supreme Court, allowed a physician to opine, as part of a defense to an action upon a life insurance policy, that the deceased had taken his own life. In his dissenting opinion, which the Supreme Court adopted for its reversal at 57 N.J. 204 (1970), Judge Matthews wrote the following:
I believe that permitting the medical examiner to testify as to the conclusion of suicide, as the majority would, tends to mislead the jury into thinking that he knows something that they do not know. What is at stake here is nothing less than the myth cult of the expert to whom too many individuals are inclined to look for wisdom. My position does not derive from an anti-expert bias, but from a respect for the duties and limits of the jury. I believe that the admission of such a conclusion would confound and distort the delicate balance which is the fact-finding process. The jury is perfectly competent, given the medical and physical evidence, to come to its own conclusion about whether the death was a suicide. The majority also cites the Report of New Jersey
Supreme Court Committee on Evidence, p. 110, (March 1963) as supportive of its conclusion. I draw attention to other language on that same page:
"In Shutka v. Pennsylvania R.R. Co., 74 N.J. Super. 381, 181 A.2d 400 (App.Div.), certif. denied, 38 N.J. 183 (1962), the Appellate Division, citing Uniform Rule 56(4), recently held that it was proper to permit an expert witness to give an opinion on an ultimate fact, the test being whether 'the trier of the facts would thereby be assisted in the solution of the ultimate problem.'"
The Committee also pointed out that
"* * * such questions as 'Was the defendant negligent?' 'Is the accused guilty?' Or 'Did the defendant have reasonable cause to institute the prosecution?' would be impermissible on the basis either that under ...