On certification to the Superior Court, Appellate Division.
(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).
In this appeal, the Court considers the admissibility of testimony by a State expert about drug possession and distribution techniques that included a response to a hypothetical question based on facts similar to those put forward by the State at trial.
On July 20, 2000, Trenton Police Officer David Neiderman was patrolling in an unmarked vehicle as part of an undercover operation targeting prostitution. He came upon a male and female standing on the corner, and the female waved to him. Neiderman suspected prostitution and alerted his arrest team. He drove back to the corner and both individuals approached the car. The man, who turned out to be defendant Anthony Nesbitt, asked Neiderman "what do you need?" Realizing that this was a potential narcotics transaction, Neiderman replied "ten," meaning he wanted ten dollars worth of crack cocaine. Nesbitt told the woman to "give him ten," and she removed a yellowish rock-like substance from a brown paper wrapping she had been holding. The substance appeared to be crack cocaine. The woman showed the rock-like object to Nesbitt and asked him "this much?" He replied "yes." The woman handed the substance to Neiderman and received ten dollars from him.
As Neiderman drove away, he notified the arrest team. They quickly moved in and arrested Nesbitt and the woman. Among other things, Nesbitt was charged with possession of CDS with intent to distribute within 1,000 feet of school property.
At trial, the State introduced testimony from Officer Neiderman and from Detective Veldon Harris of the Prosecutor's Office, who was qualified as an expert in narcotics. On direct testimony, the assistant prosecutor asked Harris a hypothetical question based on detailed facts corresponding to the facts recited by Neiderman. Harris concluded that the individuals described in the hypothetical were "complicit in distributing drugs." Defendant did not object to this testimony at trial.
On appeal, Nesbitt argued that the hypothetical impermissibly invaded the province of the jury and invited the expert to express a view on the ultimate issue of Nesbitt's guilt. The Appellate Division upheld the conviction, finding that neither the admission of the narcotics expert's testimony, nor the wording of the hypothetical, rose to the level of "error, much less plain error."
The Supreme Court granted Nesbitt's petition for certification.
HELD: There was no error in allowing the expert to testify about methods used by confederates in street-level drug sales. Although the expert's answer elicited by the hypothetical question improperly relied on terminology from the criminal statute, it did not constitute plain error.
1. In State v. Odom, 116 N.J. 65 (1989), this Court held that the State has flexibility to educate jurors on the latest tactics designed by drug dealers to shield themselves from responsibility for their illegal actions. Expert testimony, including opinions that embrace ultimate issues, is permitted when the testimony has value in assisting the jury's understanding of facts and their significance, and when the trial court finds that that testimony is not unduly prejudicial. (pp. 8-14)
2. In this case, Nesbitt did not personally hold the drugs, did not give the drugs to the officer, and did not accept payment from the officer. Those facts take the matter outside of the ken of the average layperson in respect of the question whether Nesbitt was an accomplice to the distribution of crack cocaine. Thus, there was no error in allowing the subject matter of Harris's testimony. (pp. 14-16)
3. This Court has warned that the phrasing of a hypothetical should not track too precisely the exact language of the criminal statute with which a defendant is charged. Expert testimony that recites the legal conclusion sought in a verdict is not helpful to the jury. Nesbitt was charged with violating N.J.S.A. 2C:35-5(a)(1), which states that "it shall be unlawful for any person to knowingly or purposely . . . distribute . . . a controlled dangerous substance," and N.J.S.A. 2C:2-6, entitled "Liability for conduct of another; complicity." The expert specifically testified that in his opinion the hypothetical individual who corresponded to Nesbitt "was complicit in distributing drugs." The word "complicit" appears in the title and body of N.J.S.A. 2C:2-6, and is by definition aligned with the principles of accomplice liability. The State should have avoided its use. Nonetheless, the poorly phrased hypothetical did not have the capacity to bring about an unjust result. The hypothetical never referred explicitly to Nesbitt and was limited to the facts presented at trial. The trial court instructed the jury on the proper weight to be given to the expert's opinion, and reminded the jurors that the ultimate decision on guilt was solely their determination. As a result, the Court finds no plain error. (pp. 16-20)
4. The conviction is affirmed. Defendant's sentence on the extended term, however, was set above the presumptive sentence applicable at the time to the extended-term range. The matter must be remanded for resentencing in accordance with State v. Natale,
The opinion of the court was delivered by: Justice LaVECCHIA
Charged as an accomplice, defendant was convicted by a jury of multiple drug charges including third-degree distribution of a controlled dangerous substance (CDS) on or near school property. During trial the State presented an expert witness who testified about methods of operation utilized in street-level drug sales. His testimony culminated in a hypothetical question that assumed detailed facts corresponding to the facts adduced at trial. The expert was asked whether the individual described in the hypothetical was "complicit in distributing drugs" and to explain the facts on which he based his opinion. Although defendant did not object to the testimony at the time, he argued on appeal that the testimony impermissibly invaded the province of the jury. Moreover, even if the expert's testimony about drug distribution methods was admissible, defendant contended that the hypothetical presented by the State too closely tracked specialized language from the statute under which he was charged and invited the expert to express a view on the ultimate issue of defendant's guilt. That, defendant argued, was contrary to the standards established for such testimony in State v. Odom, 116 N.J. 65 (1989), and reaffirmed in State v. Summers, 176 N.J. 306 (2003). Defendant also challenged his sentence.
The Appellate Division upheld defendant's conviction, finding that neither the admission of the narcotics expert's testimony, nor the wording of the hypothetical, rose to the level of "error, much less plain error." The Appellate Division remanded the matter to correct a sentencing error. Defendant filed a petition for certification, which we granted. 183 N.J. 256 (2005).
Admission of expert testimony on drug possession and distribution techniques is permissible when reasonably required to assist jurors in understanding subjects that are beyond the ken of an average layperson. Odom, supra, 116 N.J. at 81. Odom also permits the State to ask a narcotics expert a hypothetical question mirroring the facts of the case, even though the hypothetical may be "expressed in terms of ultimate issues of fact." Ibid. Although an expert is not needed to state that which is obvious, the circumstances underlying defendant's drug charges may not have been obvious to the laypersons of the jury. We conclude that there was no error in allowing the expert to testify about methods used by confederates in street-level drug sales or in allowing the expert to testify about a hypothetical situation that involved numerous detailed facts similar to the facts put forward by the State at trial. Finally, although the wording of the expert's answer elicited by the hypothetical question did not adhere to our admonition in Odom and Summers to avoid use of precise terminology found in the statute under which defendant is charged, we conclude, as did the Appellate Division, that no plain error occurred.
The facts, summarized below, are derived from the testimony and evidence adduced at trial. On July 20, 2000, Trenton Police Officer David Neiderman was patrolling in an unmarked police vehicle as part of an undercover operation targeting prostitution. As he drove down a street, he noticed a male and a female standing on a corner; the female appeared to wave at him. At the time, Neiderman suspected prostitution and so alerted his arrest team. He then drove back to the corner where the individuals had been standing and pulled over next to them. Both individuals approached the car. The man asked Neiderman "what do you need?" Realizing then that this was a potential narcotics transaction, Neiderman replied "ten," meaning that he wanted ten dollars worth of crack cocaine. The man then looked at the woman and said to her, "give him ten." In response, the woman removed a yellowish rock-like substance from a brown paper wrapping she had been holding. The substance appeared to be crack cocaine. Showing the rock-like object to the man, she asked him "this much?" The man replied "yes." The woman then handed Neiderman the object and received ten dollars from him. As Neiderman drove away, he notified his arrest team. They quickly moved in and arrested the two individuals, who were identified as defendant Anthony Nesbitt, and Lenora McCoy.
Defendant was charged with third-degree possession of a CDS (cocaine), contrary to N.J.S.A. 2C:35-10a(1) and 2C:2-6 (Count 1); third-degree possession of a CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1); 2C:35-5b(3) and 2C:2-6 (Count 2); third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7; 2C:35-5a(1); 2C:35-5b(3); and 2C:2-6 (Count 3); third-degree distribution of a CDS, contrary to N.J.S.A. 2C:35-5a(1); 2C:35-5b(3); and 2C:2-6 (Count 4); and third-degree distribution of a CDS within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7; 2C:35-5a(1); 2C:35-5b(3); and 2C:2-6 (Count 5).
At trial, the State introduced testimony from Officer Neiderman and from Detective Veldon Harris of the Mercer County Prosecutor's Office, who was qualified as an expert in narcotics. Harris provided general information about street-level drug sales and then the following exchange occurred.
Q: Detective Harris, for the purposes of the next question, it is a hypothetical, I want you to assume the following facts: I want you to assume it is 1:46 a.m., and that the location is Locust and Chambers Street in the City of Trenton. I want you to assume further there are two individuals in that location. I'll refer to them as individual A and individual B. I want you to assume further that individual A flags down a vehicle. Assume further that when that vehicle pulls over, that both individual A and individual B approach the vehicle, and that the following conversation takes place: That individual B says to the person in the vehicle, what do you need? Assume further that the person in the vehicle says ten. Assume then that individual B directs individual A to give the person in the vehicle $10 worth of crack. Assume then that individual A then shows a quantity of CDS, crack cocaine, to individual B and asks, this much? Assume then that individual B answers, yes. And that then that person, individual A, serves the crack cocaine in exchange for money to the person in the vehicle. Would you be able to form an opinion about whether or not person B was complicit (sic) in the distribution of those drugs to the person in the vehicle?
Q: And what would your ...