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State v. Cannon

Decided: March 18, 1994.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
DWAYNE CANNON, DEFENDANT-RESPONDENT



On appeal from Superior Court of New Jersey, Law Division, Hudson County.

Petrella, Baime*fn1 and Villanueva. The opinion of the court was delivered by Villanueva, J.A.D.

VILLANUEVA

We granted the State's motion for leave to appeal from a pretrial ruling in a drug distribution case barring the testimony of the State's expert witness regarding methods employed by street-level drug dealers. We reverse.

This case arises out of an incident which occurred on February 5, 1993, at Wilkerson Avenue and Martin Luther King Drive in Jersey City. Members of the Jersey City Police Department Narcotics Task Force set up a visual surveillance at that intersection. Sergeant Phil Zacche observed the defendant, Dwayne Cannon, standing on the northwest corner. He observed another individual, Ronald Quarters, approach the corner on a bicycle and engage in a brief conversation with the defendant. Both individuals then went west on Wilkerson Avenue a short distance, at which time McQuarters handed defendant currency. In exchange for the currency, defendant handed over several vials of suspected cocaine to McQuarters.

McQuarters left the area proceeding south on Martin Luther King Drive. Zacche radioed the description of the suspect and his direction to perimeter units who stopped McQuarters and searched him. The search revealed four vials of cocaine.

Prior to receiving radio confirmation from perimeter units regarding the sale, Zacche observed defendant hand the currency received from McQuarters to a male wearing a shiny green jacket with a black hood and jeans. This male immediately left the area proceeding south on Martin Luther King Drive. Zacche radioed the description and direction of this individual to perimeter units but this individual was never located. Defendant was later arrested and searched. The search revealed no further narcotics nor currency.

Defendant was indicted for possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10a(1); possession of a controlled dangerous substance, cocaine, with the intent to distribute the same, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); possession of a controlled dangerous substance, cocaine, with the intent to distribute the same, while within 1,000 feet of school property, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7; distributing a controlled dangerous substance, cocaine, to Ronald McQuarters, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); and distributing a controlled dangerous substance, cocaine, to Ronald McQuarters, while within 1,000 feet of school property, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7. The last count of the indictment charged McQuarters with possessing a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10a(1).

On August 3, 1993, during jury selection, a pretrial N.J.R.E. 104(a) hearing was conducted concerning the proffered testimony of an expert witness for the State, Detective Richard Vogel. The trial Judge barred this testimony in the State's "affirmative case." The Judge found that (1) what occurred was "within the common fund of knowledge of the jury;" (2) there would be prejudice to the defendant which "far outweighs that probative value" by making the expert an advocate for the prosecution; and (3)

because if, as the prosecution predicted, the defense presented proof of some other explanation for the transfer of the money, then expert testimony would be appropriate on rebuttal by the State to rebut the defense's explanation for the transfer of the funds. We granted the State's motion for leave to appeal.

N.J.R.E. 702, which became effective July 1, 1993, 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 ...


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