On appeal from the Superior Court, Appellate Division, whose opinion is reported at
For reversal -- Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Handler, J.
[116 NJ Page 67] In this criminal appeal, the defendant was convicted of the possession of controlled dangerous substances with the intention
to distribute. In the course of the trial, a police officer was qualified as an expert and permitted to testify that in his opinion the facts and circumstances surrounding the possession of the controlled dangerous substance indicated that they were possessed by the defendant not for personal use but with an intent to distribute them. A divided panel of the Appellate Division reversed the conviction. The majority held that this type of testimony was improper because it related directly to the issue of the ultimate guilt of the defendant. The dissenting judge disagreed, concluding that the testimony appropriately assisted the jury in understanding the evidence presented. The State appealed the decision to this Court as of right under Rule 2:2-1(a)(2). We are thus called on to resolve the divergent views reflected in the opinions below.
At approximately 11:30 a.m. on January 31, 1986, Detective Timothy Jordan of the Paterson Police Department executed a search warrant at premises on North Main Street. Detective Jordan, along with Detectives Humphrey and Vaio, entered the attic apartment where they found defendant, Ernest Odom, and C.W., a juvenile. Defendant and C.W. were informed that the detectives were executing a search warrant. In the ensuing search, Detective Humphrey found a clear plastic bag containing eighteen vials of cocaine in crack form in the pillowcase on the bed. No other drugs or drug paraphernalia were found. The defendant was subsequently charged with possession of a controlled dangerous substance, cocaine, and possession of the same drug with intent to distribute.
At trial, the State offered Detective Sergeant Ronald Tierney as an expert in illegal narcotics. Defense counsel objected to the detective testifying, claiming the detective was unqualified because his experience was based on hearsay and his testimony would not assist the jury.
Detective Tierney had been a member of the Paterson Police force for sixteen and one-half years and had served with the narcotics squad for nine and one-half years. He had participated in over 8,000 investigations and had made approximately 4,000 narcotics arrests. The detective had also been involved in over 400 crack investigations and had spoken with crack dealers on over fifty occasions. He had arrested over 100 individuals distributing crack and had executed twenty search warrants where crack and crack paraphernalia were seized. In the past he had been qualified 1,000 times as an expert in trials involving narcotics distribution. The trial court found Detective Tierney qualified to testify as an expert.
The detective then testified about the packaging of crack, its street value, characteristics, and use. He was asked to assume the following facts, as adduced at trial, to be true: that a search warrant was executed, that eighteen vials of crack were found in a pillowcase in a bed in which defendant was found sleeping, that $24.00 was found in the apartment and that no other drug paraphernalia was found. He was asked based on his experiences and such facts if he had an opinion "whether Ernest Odom possessed 18 vials of crack for his own use or possessed them with the intent to distribute them." Defense counsel objected that the detective was incompetent to testify regarding state of mind. The court overruled the objection and the detective was again asked, "Do you have an opinion whether those 18 vials of crack were possessed for personal use or for the purpose of distributing them?" Detective Tierney stated that it was his opinion that the drugs were possessed with an intent to distribute them.
He then explained the basis for his opinion. He detailed the procedures for crack processing and packaging, the estimated value of a vial of crack, and the addictive impact of the drug. The detective also stated that the lack of paraphernalia relating to personal drug use was another factor considered in forming his opinion, noting that the distribution of crack required no paraphernalia.
Subsequently, defendant testified that he was a crack addict. He claimed he purchased all eighteen vials the night before for his personal use. According to defendant, he usually smoked the crack, using two pipes, which he kept in the closet but which were not found when the police searched the apartment. Thereafter, defendant was found guilty as charged.
As noted, the Appellate Division, in a reported decision, reversed defendant's conviction for possession of cocaine with intent to distribute and remanded the matter for a new trial. State v. Odom, 225 N.J. Super. 564 (1988). The majority found that the detective's opinion regarding defendant's purpose in possessing the drugs was not only unhelpful to the jury but that its probative value was outweighed by its potential for prejudice. Id. at 572. The majority concluded that while expert testimony regarding the "use of and traffic in controlled dangerous substances" was permissible, an expert was precluded from expressing an opinion whether the circumstances of a particular case established an intent to distribute because that constituted a determination of the truth of the charge. Id. at 573. The dissent, on the other hand, concluded that expert testimony in this area would be helpful to jurors and that a hypothetical question concerning intent was permissible. Id. at 575-76.
We have stated recently that the opinion of a duly-qualified expert may be presented to a jury if it will genuinely assist the jury in comprehending the evidence and determining issues of fact. The admissibility of expert testimony turns not on
whether the subject matter is common or uncommon or whether many persons or few have knowledge of the matter, but [on] whether the witnesses offered as experts have peculiar knowledge or experience not common to the world which renders their opinions founded on such knowledge or experience any aid to the court or jury in determining the questions at issue.
[ State v. Zola, 112 N.J. 384, 414 (1988) (quoting Rempfer v. Deerfield Packing Corp., 4 N.J. 135, 141-42 (1950)).]
Thus, the opinion of an expert can be admitted in evidence if it relates to a relevant subject that is beyond the understanding of the average person of ordinary experience, education, and knowledge. If the expert's testimony on such a subject would help the jury understand the evidence presented and determine the facts, it may be used as evidence. The witness offered as an expert must, of course, 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. Kelly, 97 N.J. 178, 208 (1984). Once it is determined that this testimony will genuinely aid the jury, it can be admitted. Id. at 208 n. 14. Our Rules of Evidence codify these principles. Evid.R. 56(2).
In ruling that the expert's opinion was inadmissible the majority below believed that whether defendant's possession of drugs was with the intent to distribute was not an appropriate subject of expert testimony. 225 N.J. Super. at 573. The court's ruling can be viewed as entailing two criticisms of the expert opinion in this case. One is that the testimony of the expert covered a subject that was not beyond the understanding of average persons and, therefore, was not needed to assist the jury in its comprehension of the evidence. The other is that the opinion of the expert encompassed the determination of the truth of the criminal charge, which is solely the responsibility of the jury, and, therefore, cannot be the subject of an expert's opinion testimony. These criticisms raise distinct but related issues.
The majority below apparently believed that the opinion of the expert on whether the drugs were possessed with intent to distribute embraced an inference that could readily be drawn by the jury applying its own common sense and ordinary experience. In thus concluding that the expert testimony on this subject was not needed to assist the jury and was therefore improper, the court below appears to have departed from other Appellate Division decisions, i.e., State v. Perez, 218 N.J. Super. 478
In Perez, the defendant was convicted of possession of cocaine with intent to distribute. At trial a police expert was asked the following hypothetical based on the facts of the case:
Assume that the date is March 7th, 1985. The time is approximately 1:07 a.m. A white van is on the New Jersey Turnpike travelling southbound. This van is stopped for speeding. When a trooper approaches the vehicle, the passenger opens the door. The driver is asked for his credentials. As the trooper is having some problems conversing with the driver, he sees the passenger take his hands from his lap, put them in his pockets and toss an item to the back of the van. The item is eventually retrieved and it is found to contain 124.6 grams of cocaine of which 56 per cent is pure, or of the total volume, 70 per cent [sic] is pure freebase.
Sir, based on those facts, would you have an opinion as to whether or not the item was possessed for personal use or for ...