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State v. Berry

May 4, 1995


On appeal from the Superior Court, Appellate Division (State v. Berry). On appeal from the Superior Court, Appellate Division, whose opinion is reported at 271 N.J. Super. 391 (1994) (State v. Cannon).

The opinion of the Court was delivered by Stein, J. Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, and Garibaldi join in this opinion. Justice Coleman did not participate.

The opinion of the court was delivered by: Stein

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).



Argued May 4, 1994 -- Reargued September 27, 1994 (A-15)

Argued September 27, 1994 (A-42-94)

Decided May 4, 1995

STEIN, J., writing for a unanimous Court.

The issue in these appeals is the admissibility of expert testimony by the State in drug-distribution cases to explain techniques commonly used by drug dealers.

Charles Marshall Berry was stopped while driving on Interstate 80. Berry was unable to produce a valid driver's license and appeared extremely nervous. The officer asked Berry and his two passengers to exit the vehicle; he then conducted patdown searches. The officer noticed that one of the passengers had a plastic bag in his mouth. The plastic bag contained a yellow chunky substance that the officer suspected was cocaine. Later laboratory analysis revealed the substance to be 17.90 grams (.63 ounces) of cocaine. The officer arrested all three occupants of the vehicle.

Berry and his two passengers were transported to the Totowa Barracks, where it was learned that the passengers were juveniles. A search at the Barracks disclosed a plastic bag containing one-hundred smaller, clear plastic bags in the sock of the same juvenile who had had the cocaine in his mouth.

Berry was charged with possession of cocaine and possession with intent to distribute. At trial, the trial court qualified an officer of the Bergen County Prosecutor's Office as an expert in "narcotics and narcotics distribution." This officer was presented with a hypothetical set of facts that mirrored the facts and circumstances testified to by the arresting officer. The officer stated his Conclusion that based on the value and high quality of seized cocaine, there was no question that it was possessed for resale and distribution.

The officer was asked the significance of the presence of the two juveniles in a vehicle. He testified that drug dealers traveling to New York City to purchase drugs often use juveniles as "mules" to carry the drugs in the hope of avoiding serious criminal charges in the event of apprehension. On cross-examination, the officer testified that all three occupants of the vehicle possessed the cocaine with intent to repackage and resell it.

The Appellate Division reversed Berry's convictions, concluding that the expert's opinion could not be used to convert Berry's presence in the vehicle into active participation. One member Dissented, and the State filed an appeal as of right.

In the second appeal, Dwayne Cannon had been observed by members of the Jersey City Police Department Narcotics Task Force receiving money for what appeared to be several vials of cocaine. The police later stopped and searched the purchaser finding four vials of cocaine. Cannon was then observed handing the money he had received to an unidentified male who immediately left the area. The unidentified male was never located. Cannon was arrested and searched, but police found neither money nor drugs.

Cannon was charged with drug offenses. The trial court conducted a pretrial hearing to determine whether the State would be permitted to offer the expert testimony of a police officer regarding the use of a "money man" by street-level drug dealers. The proposed testimony would explain that a "money man" is used by drug dealers to avoid the risk of being apprehended while in possession of both drugs and large sums of money.

The trial court determined that the State could not offer the expert testimony during its direct case because the scope of the proposed testimony was not beyond the jury's common knowledge. The trial Judge also found that the prejudicial impact of the proposed expert testimony outweighed its probative value.

The Appellate Division reversed, observing that the act of passing money to a third person would be meaningless to jurors unless they were aware of its significance in the drug trade. It stated that expert testimony is helpful for the jury to understand the operating methods of drug traffickers. The Court granted defendant's motion for leave to appeal.

HELD: Expert testimony in drug prosecutions generally is to be admitted provided the trial court is satisfied that the testimony will assist the jury in resolving material factual issues. That general rule should be tempered by the trial court's heightened awareness that in certain circumstances the probative value of such expert testimony might be substantially outweighed by the risk of undue prejudice.

1. Expert opinion is admissible if the general subject matter at issue, or its specific application, is one with which an average juror might not be sufficiently familiar, or if the trial court determines that the expert testimony would assist the jury in comprehending the evidence and determining issues of fact. (pp. 10-16)

2. The general rule in the federal courts favors admissibility of expert testimony explaining operating methods of drug dealers in the prosecution of drug-distribution offenses. A number of state courts have applied similar reasoning in concluding that such testimony would be likely to enhance the jury's ability to understand the evidence adduced. Despite the general acceptance of the admissibility of such expert testimony in the prosecution of drug cases, the federal courts have noted their apprehension about the inappropriate uses of such testimony when it would result in material prejudice. (pp. 16-22)

3. Expert testimony that encompasses ultimate issues to be decided by the trier of fact is also authorized under N.J.R.E. 704. In drug prosecutions, however, the risk of prejudice has prompted courts to exercise caution in determining whether expert testimony touching on ultimate issues is admissible. In such cases, the trial court should carefully instruct the jury in the context of the evidence about its duty to decide whether to accept or reject the opinion of the expert witness. (pp. 22-28)

4. In resolving the Berry appeal, there can be little question that an average juror would be unfamiliar with the finer points of drug acquisition and distribution techniques described by the police officer. Nor can there be any doubt that the officer's testimony would assist the jury in understanding the evidence and in resolving material factual issues. The expert's opinion on the issue of possession might have constituted an opinion that defendant is guilty of the crime charged, and exclusion might have been warranted had the opinion been elicited during direct testimony. The opinion was sought, however, by defense counsel, and trial errors originating with defense counsel will not present grounds for reversal on appeal except in the most extreme cases. Based on the record, including the expert testimony, the Court is persuaded that the jury had before it ample evidence to support Berry's convictions. (pp. 28-30)

5. In respect of the appeal in Cannon, trial courts ordinarily are entitled to wide latitude in exercising discretionary authority to exclude evidence because of its potentially prejudicial impact. Due to the novelty and importance of the evidentiary issue presented here, both generally and in drug prosecutions, the Court is compelled to intervene and order that the expert testimony be admitted. Jurors in general are totally unfamiliar with the techniques used by street-level drug dealers, and the jury's ability to understand the trial testimony will be enhanced by an understanding that at least a fair number of dealers use a "money man" to limit their exposure to prosecution. The trial court's concern about the risk of prejudice can be addressed by a qualifying instruction to the jury that conveys that it is the jury's prerogative to reject both the expert's opinion and the version of the facts consistent with that opinion. (pp. 30-32)

The judgment of the Appellate Division in Berry is REVERSED, the convictions are reinstated, and the matter is REMANDED to the trial court for further proceedings. In Cannon, the judgment of the Appellate Division is AFFIRMED.



These appeals concern the State's practice of using expert witnesses in drug-distribution cases to explain techniques commonly used by drug dealers. The expert testimony typically is offered to enhance the jury's understanding of the factual evidence proffered by the State to prove the commission of the offenses charged in the indictments.

In State v. Berry, the sole question presented in the State's appeal, here by virtue of a Dissent in the Appellate Division, see Rule 2:2-1(a)(2), is whether defendant's convictions for possession of cocaine and possession with intent to distribute were based on sufficient evidential support in the record. In an unpublished Disposition the Appellate Division majority reversed the conviction, holding that the State's expert's opinion could not properly have been used "to convert presence in a vehicle into active participation." The Dissenter below, pointing out that the State's expert had testified that defendant had "'without a question, possessed [the drugs] for the sole purpose of selling them,'" concluded that abundant evidence established defendant's guilt. Although the ...

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