On appeal from the Superior Court, Appellate Division, whose opinion is reported at 350 N.J. Super. 353 (2002).
A jury convicted David Summers of multiple drug charges, including possession and distribution of a controlled dangerous substance. The question before the Court is whether the State's expert witness intruded on the jury's fact-finding role by expressing what Summers argues was an impermissible opinion on guilt.
On April 20, 1999, an Atlantic City narcotics detective, Sam Dickson, conducted a surveillance operation of a known drug area on Texas Avenue near the boardwalk. Sitting in an unmarked police vehicle, Dickson used a pair of binoculars to view the street. Dickson observed a man, later identified as Summers, walking toward his car. Two men greeted Summers, and one man, co-defendant Peter Dyer, engaged Summers in a conversation that lasted a few seconds. The three men crossed over to the other side of the street and stood before an abandoned home. Summers and Dyer walked to the home's porch, where Dickson observed Summers holding out his palm with an object in it. Dyer then proffered what appeared to be folded currency. After receiving certain objects from Summers, Dyer returned to the other side of the street and started walking toward Dickson's car.
Dickson, believing he had just witnessed a drug transaction, radioed for backup officers and directed them to apprehend Summers and the third man, leaving Dickson to apprehend Dyer. As Dyer saw Dickson approach, he placed the objects in his mouth. The detective ordered Dyer to spit them out. Dyer complied and spat out four baggies of a white rocky substance. The other officers arrived and apprehended Summers and the third man.
Based on a conversation with Dyer, Detective Dickson asked one of the backup officers whether he had recovered a cigarette pack from Summers. The officer confirmed he had retrieved the cigarette pack, which contained a medium-size bag containing 50 smaller plastic bags of identical size and shape with a white rocky substance in them. The white rocky substance found in the baggies later tested positive for cocaine. Summers also had in his possession $262 in cash and an activated pager.
A grand jury charged Summers with multiple drug offenses, including possession of CDS with intent to distribute. Summers was tried separately from Dyer.
Detective Donna Price, who had not participated in the surveillance or arrest of Summers, testified at Summers' trial as an expert in narcotics. On direct examination, the assistant prosecutor posed a hypothetical to Detective Price describing the transaction witnessed by Detective Dickson, but identifying the participants as "S-1" and "S-2." The assistant prosecutor asked Detective Price whether she had an opinion as to whether S-2, the individual in the hypothetical whose conduct mirrored that of Summers, "possessed those drugs for his own use or for distribution?" Detective Price expressed her view that S-2 possessed the drugs for distribution and not for personal use. She based that opinion on the fact that no drug paraphernalia was found on S-2, that S-2 had $262 in various paper currencies and coins, and that S-2 had a large bag with smaller bags containing cocaine. Notably, counsel for Summers did not object either to the form of the question or to the expert's response.
The jury found Summers guilty of possession with intent to distribute and other charges, and the trial court sentenced him to a nine-year term. On appeal, Summers argued that the hypothetical posed to Detective Price and her response denied the jury a chance to determine whether Summers possessed CDS with intent to distribute. With one judge dissenting, the Appellate Division rejected that argument and affirmed the conviction and sentence. State v. Summers, 350 N.J. Super. 353 (2002). Summers appealed to this Court as of right.
The testimony of the State's expert did not infringe on the right of Summers to have a jury decide his guilt.
1. Testimony in the form of an expert opinion that is otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the jury. Such testimony is, however, subject to exclusion if the risk of undue prejudice substantially outweighs its probative value. Courts widely agree that expert testimony about drug-trade practices is admissible. The seminal case in New Jersey in this area of the law is State v. Odom, 116 N.J. 65 (1989), in which the jury convicted defendant of possessing CDS with the intent to distribute. In that case, the prosecutor asked the State's expert to assume a set of facts consistent with those adduced at trial. Based on those facts, the prosecutor asked the expert to express a view on whether the defendant possessed the drugs for his own use or with the intent to distribute them. Over defense counsel's objection, the expert testified that in his opinion, the drugs were possessed with the intent to distribute them. This Court affirmed defendant's conviction, setting forth guidelines for the appropriate use of a hypothetical question in a drug case. The question must be limited to the facts adduced at trial. The prosecutor may ask the expert's opinion, based on those facts, whether the drugs were possessed for distribution or personal consumption. The expert should inform jurors of the information on which the opinion is based, and must avoid parroting statutory terminology whenever possible. Finally, trial courts should instruct the jury in respect of the proper weight to be given to the expert's opinion, reminding jurors that the ultimate decision concerning a defendant's guilt or innocence rests solely with them. (pp. 7-12)
2. Applying those tenets, the assistant prosecutor limited her hypothetical to facts presented at trial. The expert witness did not refer to Summers explicitly, nor did she refer to statutory law or express a view that an illegal drug transaction in fact occurred. She also recounted the basis of her opinion. Although it was declarative in nature and embraced ultimate issues that the jury had to decide, the detective's testimony fell within Odom's parameters. (pp. 12-13)
3. Because Summers did not object to the expert testimony at trial, his appellate arguments must be considered under the plain-error standard of review. That is, in order for Summers to prevail, he must convince the Court that there was an error clearly capable of producing an unjust result. Even if one assumes that an error had occurred, this Court agrees with the Appellate Division that Summers has not satisfied the plain-error test. The State produced substantial evidence of Summers' guilt, apart from the expert's testimony. Jurors heard testimony from four other State witnesses aside from Detective Price, and examined numerous exhibits demonstrating Summers' culpability in the crimes charged. Measured against the entire evidence, the asserted error in Detective Price's testimony would not warrant reversal. (pp. 13-14)
4. The Court is not persuaded that the risk of undue prejudice from the expert's testimony substantially outweighed its probative value. Detective Price's opinion was highly probative of the distribution offenses and necessary to assist members of the jury, who presumably were unschooled in the drug trade. Moreover, the trial court reduced the chance of prejudice by instructing the jury that it could accept all, part, or none of the detective's testimony, and that the jury alone had to decide questions of guilt. (pp. 14-15)
5. Finally, the Court sees no compelling reason to re-examine Odom, which is grounded firmly in New Jersey precedent and has been reflected in the Court's Rules of Evidence for many years. (p. 16)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE ALBIN has filed a separate, dissenting opinion, in which JUSTICE LONG joins, expressing the view that the majority's decision hinges on an imaginary distinction. He believes that there is no real difference between an expert witness testifying that a defendant is guilty of possession of drugs with intent to distribute, and that a defendant possessed the drugs with intent to distribute. He would hold that the prosecution's expert testified to the ultimate issue of guilt in an area not beyond the ken of the average layperson, thereby intruding on the jury's exclusive province to determine guilt or innocence.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LaVECCHIA, and ZAZZALI join in JUSTICE VERNIERO's opinion. JUSTICE ALBIN, joined by JUSTICE LONG, has filed a separate, dissenting opinion.
The opinion of the court was delivered by: Verniero, J.
A jury convicted defendant of multiple drug charges, including possession and distribution of a controlled dangerous substance (CDS). The question before us is whether the State's expert witness intruded on the jury's fact-finding role by expressing what defendant argues was an impermissible opinion on guilt. Specifically, the expert expressed the view that facts presented in a hypothetical (modeled on identical facts adduced at trial) were indicative of drug distribution. In State v. Odom, 116 N.J. 65 (1989), this Court articulated a standard for evaluating an expert's testimony when such a question is presented. The Appellate Division upheld defendant's conviction, finding no violation of Odom. We agree and affirm.
We derive our summary of the essential facts largely from testimony and other evidence adduced at trial. On the evening of April 20, 1999, an Atlantic City narcotics detective, Sam Dickson, conducted a surveillance operation of a known drug area on Texas Avenue near the boardwalk. Facing north in an unmarked police vehicle, Detective Dickson used a pair of binoculars to view the street. At about 8:45 p.m. the detective observed a man, later identified as defendant David Summers, walking ...