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State v. Tatum


July 6, 2007


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 03-05-0999-I.

Per curiam.


Submitted May 16, 2007

Before Judges Cuff, Winkelstein and Baxter.

In May 2004, defendant was tried and convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), count one,*fn1 but the jury was unable to reach a verdict as to count two, second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(2).*fn2 Defendant was retried and convicted on the second count in September 2004. At trial, he admitted possessing cocaine for his own use, but he denied that he possessed it with the intent to distribute it.

At sentencing, the court merged count one into count two, and imposed a sixteen-year custodial term with an eight-year period of parole ineligibility. The judge also imposed appropriate fees and penalties.

On appeal, defendant challenges the trial court's denial of his suppression motion; he asserts that the court violated his constitutional right to compulsory process by precluding him from calling expert witnesses to support his claim that he possessed the CDS for his own personal use rather than for distribution; and he claims the trial court failed to give an appropriate limiting instruction concerning the $1221 in cash that was found in his possession at the time of his arrest and failed to instruct the jury that it could reject stipulations that were read into the record. Defendant also challenges his sentence.

We conclude that defendant's challenge to the denial of his suppression motion is without merit and that the trial judge properly denied his motion. We agree, however, with his argument that his constitutional right to compulsory process was violated when the court precluded him from calling experts to testify concerning his drug addiction. Consequently, we reverse defendant's conviction for possession with the intent to distribute. The remaining issues are moot.


The charges against defendant arose out of events that occurred in December 2002. On December 19, Freehold Borough patrolman Christopher Colaner submitted an affidavit to obtain a warrant to search apartment #219 at 40 Jackson Street, Rugmill Towers, in Freehold, believed to be rented to defendant. The affidavit stated that, based on information gained from a confidential informant, police surveillance, and department information, police believed Rugmill Towers to be a "documented drug trafficking area within the Borough of Freehold." The affidavit stated:

This officer is . . . aware of resident information indicating drug parties taking place inside the building, as well as known drug users selling stolen property door to door, then purchasing CDS prior to leaving the complex. Resident information and officer observations have shown the use of lookouts in and around the building lobby, with the lookouts being able to give warning to any persons involved in illegal activity tak[ing] place within the complex. Further investigation has revealed drug users to enter the building from the front door during non-security officer hours and to access rear fire doors in order to [sic] aforementioned stairwells to travel to and from the seller's apartment.

The affidavit further related that defendant was "known to be a convicted CDS dealer and target of numerous police investigations," and he was "an associate of several other main CDS dealers in and around Freehold." Apartment #219 was commonly known throughout the Rugmill Towers Complex as the "complex party spot and location to connect with CDS dealer(s)." Colaner had observed "known and convicted CDS dealers" who were "currently active in the sales of CDS" present at the apartment with defendant. Defendant had resist[ed] police arrest in the past, while having used physical force during a past arrest in Freehold Township. On repeated occasions, [defendant] has resisted police arrest in Freehold Borough while attempting to elude patrols. Some of [defendant's] associates are also known to be involved in carrying guns and to frequent his apartment.

The affidavit described controlled buys of CDS from defendant by a confidential informant. "[Defendant] conducts the distribution of CDS from his apartment, . . . keeping his main stash at his apartment and [traveling] with the negotiated amount to the meet location."

Colaner requested a no-knock warrant based on his "concern for the safety of the officers executing the Search Warrant as well as [to] prevent[] the destruction of evidence." The affidavit stated that

[Drug enforcement officers] are specifically aware of numerous gun calls being currently handled within this jurisdiction with investigations pointing toward drug dealers having been possessing and firing these weapons. The specific location holds a threat of possible evidence destruction, obstruction, resisting, and use of weapons. The use of lookouts could also compromise pre-warrant execution while making notification to the dealer of a police presence.

Your deponent is also concerned that if a no-knock warrant is not issued, officers will be forced to stand fast in a wide open corridor that provides no cover or concealment for awaiting officers. The target residence has only one entrance and exit, while a knock and announce could prepare the target to take the defensive measures and cause law enforcement officers to enter through the one doorway that becomes a high level danger zone. Your deponent is also aware of [defendant] having resisted arrest on several previous encounters with police and to have physically struggled with those arresting officers.

Based on the affidavit, the court issued a no-knock warrant.

On December 19, 2002, at approximately 10:45 p.m., Colaner and approximately eight other officers executed the warrant. Colaner entered the apartment first. He observed four persons, including defendant, seated in the living room, and ordered them to get down on the floor, where other officers secured them. Colaner read defendant his Miranda*fn3 rights and searched his person, discovering a "large sum" of money in his pocket.

When Colaner asked defendant if drugs were in the apartment, he responded that cocaine was in the kitchen. He pointed out a child's "sippy cup" in the kitchen cabinet next to an electronic digital scale. Detective Sergeant Ward opened the cup and discovered two bags of what was later determined to be 37.62 grams of cocaine. He seized the cup and the scale. Defendant was arrested and transported to police headquarters, where police seized the money, totaling $1221, from his person.

After re-advising defendant of his Miranda rights, Detective Michael George obtained a signed statement from him. Defendant admitted that he had "30 grams of powder cocaine" worth about "a thousand dollars" in his apartment, stored in the kitchen cabinet. When asked whether he sold the drugs, he answered, "No. I wouldn't call it that."

Prior to the first trial, defendant moved to suppress the evidence seized as a result of the search warrant. He claimed the affidavit submitted by Colaner misled the court, in that it contained incorrect information, and failed to establish a reason for a no-knock warrant as opposed to a standard warrant. The judge denied defendant's motion, finding that a no-knock entry was required to prevent the destruction of the evidence, to protect the officer's safety, and to effectuate the arrest or seizure of evidence. The residence was known to be associated with drug dealers. Furthermore, the officer was aware that the defendant was involved in transporting and street sales of narcotics and that he had a criminal history for resisting arrest.

Additionally, the officer had reason to suspect that other persons seen loitering in the hallways outside the residence, who were known to be convicted drug dealers, were being used as lookouts. Therefore, the officer had reason to fear for the safety of the officers executing a search warrant and also to be concerned that evidence might be destroyed prior to their being able to make entry into the apartment.

Finally, there is an indication that people seen frequenting the apartment in the past had been known to carry weapons.

Both the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens from unreasonable searches and seizures. State v. Jones, 179 N.J. 377, 388 (2004). A search conducted pursuant to a warrant is presumed to be valid, and a defendant challenging the validity of such a search has the burden of proving "'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" Ibid. (quoting State v. Valentin, 93 N.J. 126, 133 (1983)).

An appellate court will afford deference to the trial court's discretionary determination in issuing the warrant. Ibid. On appeal, we determine "'whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Barone, 147 N.J. 599, 615 (1997) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

In examining a search warrant, a court must "consider the totality of the circumstances to determine whether a warrant was issued consistent[] with the dictates of the Constitution." State v. Marshall, 148 N.J. 89, 193-94, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). "To mount a successful challenge to the warrant's supporting affidavit, defendant must prove by a preponderance of the evidence that the affiant intentionally or with reckless disregard for the truth included material, untrue information." Id. at 193.

Generally, when executing a search of a person's dwelling, police must knock and announce their presence before entering.

Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 1918, 131 L.Ed. 2d 976, 982 (1995). This requirement is not, however, absolute. State v. Johnson, 168 N.J. 608, 616 (2001). New Jersey law generally mirrors federal jurisprudence with respect to the knock and announce requirement. Id. at 617. To justify a no-knock warrant provision of a warrant, a police officer must, first, "have a reasonable, particularized suspicion that a no-knock entry is required to prevent the destruction of evidence, to protect the officer's safety, or to effectuate the arrest or seizure of evidence." Id. at 619. Second, the officer must "articulate the reasons for that suspicion and may base those reasons on the totality of the circumstances." Ibid. Finally, the officer needs to "articulate a minimal level of objective justification to support the no-knock entry, meaning it may not be based on a mere hunch." Ibid. The Court in Johnson, supra, observed that while these exceptions might be seen to "swallow the rule," especially in drug investigations where officer safety and destruction of evidence are always an issue, there are no "blanket exceptions," even in drug investigations, to the knock and announce rule. Id. at 617.

The grounds for the no-knock warrant in this case were officer safety and the destructibility of the evidence. "To satisfy the destructibility-of-evidence exception . . . the police must articulate some reason specific to the crime, to the person under investigation, or to some other permissible factor, that leads them reasonably to believe that destruction of evidence is more than a hypothetical possibility." Id. at 620. The easily destructible nature of drug evidence is insufficient, in itself, to warrant a no-knock provision. Jones, supra, 179 N.J. at 397-98.

Here, we agree with the trial court that the affidavit was sufficient to justify both the warrant and its no-knock provision. The affidavit states that known drug dealers were observed to frequent the apartment, and that officers were aware of the use of "lookouts in and around the building lobby, . . . [who were] able to give warning to any persons involved in illegal activity tak[ing] place within the complex." The affidavit contains well-articulated reasons specific to the apartment for the officers' belief that destruction of evidence was more than a hypothetical possibility. Johnson, supra, 168 N.J. at 620.

The affidavit refers to the potential dangers to the police officers as a result of the layout of the apartment. It states that many complaints had been made by residents living in fear because of the sale of illegal drugs in the apartment complex, that defendant had resisted arrest in the past, and that his "associates" were known to carry guns and frequent the apartment. According to the affidavit, the concern was that if a no-knock warrant [was] not issued, officers [would] be forced to stand fast in a wide open corridor that provide[d] no cover or concealment for awaiting officers.

The target residence ha[d] only one entrance and exit, while a knock and announce could prepare the target to take defensive measures and cause law enforcement officers to enter through the one doorway that [would become] a high level danger zone.

The affidavit further indicated that officers had conducted two controlled buys with defendant, that defendant had resisted arrest in the past, and had "struggled with those arresting officers" during those encounters.

While defendant argues that the affidavit is pretextual, he has not demonstrated that Colaner "intentionally or with reckless disregard for the truth included material, untrue information." Marshall, supra, 148 N.J. at 193. The totality of the circumstances as expressed in the affidavit gave rise to probable cause to issue a search warrant and include a no-knock provision.


Prior to the first trial, defendant requested that he be permitted to call Terry McCorkell, the Substance Abuse Evaluator from the Monmouth County Drug Court program, as an expert to testify on his behalf. McCorkell had evaluated defendant with regard to his application, later denied, for admission to the Drug Court program. McCorkell's report said:

Client meets DMS-IV criteria for chemical dependency for alcohol, cannabis, and cocaine. . . . Client's reports about his mental health history warrant a referral for a psychological evaluation to rule out any underlying issues such as depression or any conduct disorder. . . . His addiction to these chemicals has caused him to lose jobs and has contributed to his multiple experiences with the criminal justice system. ASAM PPC-2R criteria calls for Level III.2-D Detoxification treatment followed by Level III.5 (long-term) inpatient treatment. Placement in a program that can address his addiction, criminal thinking, and possible mental health issues will best meet his clinical needs.

The trial judge denied the motion to permit McCorkell to testify on the grounds that McCorkell's opinion was submitted late, and that it was based simply upon information he obtained from defendant. The judge said:

[B]asically there's nothing to stop your client to get on the stand and say, you know, I'm an addict. . . . [H]e can testify to that. The information that Mr. McCorkell gets is from your client, aside from that, it really is late notice. And I know that Mr. McCorkell is not really going to be available today either.

Defendant proceeded to trial without an expert to support his position that his possession of the CDS was for his own use, not for sale. In contrast, the State offered the testimony of Detective Barry Graves as an expert in the field of narcotics.

When asked by the prosecutor, in the form of a hypothetical question, to consider the facts surrounding the seizure of the narcotics from defendant's apartment, Graves provided an opinion that the amount of cocaine, thirty-seven grams, in conjunction with the fact that it was found next to the scale, was consistent with possession with the intent to distribute. Graves said:

One of the facts I'm relying on, is the amount. The amount is not consistent, you're talking 37 grams. Over an ounce is not consistent with a person who uses this cocaine for personal use. Because of the amount, most people who use it for personal use wouldn't have that much on them.

Secondly, you have the scale, which is another indicator. Which is right next to the narcotics, indicating to me that a person would go, remove the narcotics, put it on the scale, weigh it out, and then sell it to a person. A person who uses it for personal use, they don't, there's no need for them to weigh out what they use for personal use.

The jury convicted defendant of possession of CDS. It was unable, however, to reach a verdict on the possession with the intent to distribute charge.

After the State determined to retry the charge of possession with the intent to distribute, a second judge was assigned to defendant's case. At a status conference the following June, that judge agreed with the prior judge that defendant could not utilize McCorkell as an expert. The judge reasoned that McCorkell's evaluation . . . was not an adversarial situation. It was one done to assist the court in attempting to determine if [defendant] was amenable to some type of rehabilitation other than incarceration. . . . It was never intended to be utilized by either the State or the defense for purposes of argument at trial.

The judge did, however, provide defendant with an opportunity to retain another expert to testify that defendant was an addict to show that he held the drugs for his own use rather than for sale.

Accordingly, defendant obtained the services of Dr. Dennis Cadigan, a psychologist. Dr. Cadigan interviewed defendant and prepared a report. Prior to the second trial, the State moved to preclude Dr. Cadigan from testifying, arguing that his opinion was a net opinion - that he would simply tell the jury that defendant was credible when defendant said he was an addict. Defendant, who was seeking to prove that he had a severe addiction and that the drugs were for his personal use, argued that the expert should be permitted to testify, subject to a limiting instruction by the court.

The judge agreed with the State. He focused on the portion of Cadigan's report in which he stated: "in my clinical judgment I believe [defendant] was being honest." The judge concluded that the opinion should be barred because it was a net opinion, would be of no assistance to the jury, and encroached on the jury's role in assessing the witness's credibility. The judge also indicated, however, that in the future there may be a reason to hold an N.J.R.E. 104 hearing to further address the issue. The record does not show that such a hearing was ever conducted.

At the second trial, Detective Graves testified substantially as he did at the first trial. He again opined that based on the amount of CDS seized from defendant's apartment, the CDS would have been possessed with the intent to distribute it.

The admission or exclusion of evidence is within the discretion of the trial court. State v. Torres, 183 N.J. 554, 567 (2005). A trial court's rulings on discretionary decisions are entitled to deference and will not be reversed absent a showing of abuse of discretion involving a clear error in judgment. State v. Marrero, 148 N.J. 469, 483-84 (1997). An appellate court should not substitute its judgment for that of the trial court unless the trial court's finding was "so wide of the mark that a manifest denial of justice resulted." State v. Kelly, 97 N.J. 178, 216 (1984).

"If . . . 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 . . . may testify . . . in the form of an opinion. . . ." N.J.R.E. 702. Expert testimony is permissible when (1) the intended testimony . . . concern[s] a subject matter that is beyond the ken of the average juror; (2) the field testified to [is] at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness [has] sufficient expertise to offer the intended testimony. [Kelly, supra, 97 N.J. at 208.]

An expert may not, however, generally render an opinion as to the credibility of a witness. Credibility is an issue that is particularly within the jury's ken and with respect to which jurors ordinarily require no expert assistance. State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991), aff'd, 130 N.J. 554 (1993). Expert testimony regarding whether a defendant is testifying in a truthful manner impermissibly usurps the jury's role in assessing witness credibility. State v. Vandeweaghe, 177 N.J. 229, 239 (2003).

Nevertheless, because a psychiatric interview is "a crucial diagnostic tool," State v. Whitlow, 45 N.J. 3, 20 (1965), the aforementioned policies that preclude a jury from hearing the results of such an interview, which may contain the examiner's opinion of the interviewee's credibility, must be balanced against a defendant's Sixth Amendment right to present witnesses on his behalf.

The Sixth Amendment to the United States Constitution provides that an accused in a criminal prosecution has the right "to have compulsory process for obtaining witnesses in his favor." Through the due process clause of the Fourteenth Amendment, that right applies to the states. Washington v. Texas, 388 U.S. 14, 17-18, 87 S.Ct. 1920, 1922-23, 18 L.Ed. 2d 1019, 1022-23 (1967).

In virtually identical language to the United States Constitution, the New Jersey Constitution also guarantees the right of compulsory process to a criminal accused.

N.J. Const. of 1947 art. I, ¶ 10. [State v. Fort, 101 N.J. 123, 128 (1985).]

Thus, a criminal defendant's right "to present relevant evidence at trial is of constitutional dimension and involves his fundamental privilege to call a witness in his own behalf and present his defense." State v. Harold, 183 N.J. Super. 485, 493 (App. Div. 1982). Both the federal and state constitutions "guarantee criminal defendants a meaningful opportunity to present a complete defense." State v. Garron, 177 N.J. 147, 168 (2003) (internal quotation omitted), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004); see also State v. Alfano, 305 N.J. Super. 178, 187 (App. Div. 1997) (observing that both the state and federal constitutions "guarantee defendants in a criminal prosecution the right of confrontation and compulsory process to obtain witnesses on their behalf" (citing U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10)). As the United States Supreme Court has made clear, "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers v. Mississippi, 410 U.S. 284, 302, 98 S.Ct. 1038, 1049, 35 L.Ed. 2d 297, 312 (1973).

The right to call witnesses by a criminal defendant is not, however, absolute. Those rights "'may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process,' such as established rules of evidence and procedure designed to ensure the fairness and reliability of criminal trials." Garron, supra, 177 N.J. at 169 (quoting Chambers, supra, 410 U.S. at 295, 93 S.Ct. at 1046, 35 L.Ed. 2d at 309). Nonetheless, "when the mechanistic application of a state's rules of evidence or procedure would undermine a truth-finding function by excluding relevant evidence necessary to a defendant's ability to defend against the charged offenses, the Confrontation and Compulsory Process Clauses must prevail." Ibid. When rules of evidence do not conform to constitutional requirements, constitutional protections override literal application of those rules. State v. Bunyan, 154 N.J. 261, 266 (1998).

Applying these general principles to the facts here, we conclude that the trial judges' decisions that precluded defendant from calling expert witnesses to testify to his drug addiction were reversible error with regard to his conviction for possession with the intent to distribute.

We begin with the most recent trial, in which the court precluded Dr. Cadigan from testifying. The judge determined, after reviewing the doctor's report, that all the doctor had to offer was an opinion that defendant was telling the truth. We disagree. In addition to rendering an opinion that defendant was being honest, the report also referenced defendant's "chronic state of depression, his dependency on drugs, [and] the clear negative identification with his drug dependent father and the possibilities for rehabilitation." Given the constitutional right of a defendant in a criminal trial to present a defense and call witnesses to support that defense, barring the expert simply on the basis of the report was, in our opinion, a misapplication of the judge's discretion.

Though an opinion lacking in foundation and consisting of bare conclusions unsupported by factual evidence is inadmissible as a net opinion, see Johnson v. Salem Corp., 97 N.J. 78, 91 (1984), an expert is entitled to testify about the "logical predicates for and conclusions from statements made in the [expert's] report." McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div.), certif. denied, 108 N.J. 219 (1987). Here, Dr. Cadigan referenced defendant's chronic state of depression and drug dependency. At the very least, the trial court should have held an N.J.R.E. 104(a) hearing to determine if the psychologist's testimony would be of assistance to the jury. Defendant did not deny possessing the illegal drugs. His defense to the possession with the intent to distribute charge was that he possessed the drugs for his own use, rather than for sale or distribution. The psychologist's testimony was critical to that defense.

At both trials, the State presented the testimony of Detective Graves, an expert in drug distribution. Based on the facts surrounding the seizure of the cocaine from defendant's apartment, Detective Graves expressed an opinion that the drugs were held with a purpose to distribute them. Thus, the jury was provided the State's expert's testimony on the issue of intent to distribute, but defendant was denied a similar opportunity. As we have expressed in the past, the "jury should have . . . expert opinions on both sides to weigh and balance." See Hall v. Zuckerman, 202 N.J. Super. 455, 459 (App. Div. 1985); see also Phillips v. Gelpke, ___ N.J. ___, ___ (2007) (slip op. at 13) ("a lay finder of fact should be permitted to have the assistance of an expert's explanatory testimony when making determinations in areas of specialized knowledge").

We are cognizant that potential problems may arise when a jury is permitted to hear the testimony of a mental health professional who renders an opinion based upon an interview with a defendant. Nonetheless, while the testimony based upon an interview of a criminal defendant may be problematic, given the potential for the witness to simply "parrot and place before the jury defendant's version" of the facts, we "have consistently held that a psychiatrist in a criminal case may testify as to what a defendant told him or her if the expert relied on the statements in formulating an opinion about the defendant's mental or psychiatric condition, and such hearsay declarations 'constituted a necessary element in the formulation of [the] opinion.'" State v. King, 387 N.J. Super. 522, 548-49 (App. Div. 2006) (quoting State v. Lucas, 30 N.J. 37, 79 (1959)).

Indeed, in both Lucas and State v. Maik, 60 N.J. 203, 207-08 (1972), overruled on other grounds, State v. Krol, 68 N.J. 236 (1975), the Supreme Court indicated that when a psychiatrist's opinion rests upon a defendant's statement, it is for the jury to determine the value of that opinion, just as it does with other expert testimony that is based upon facts or data not admissible in evidence pursuant to N.J.R.E. 703. A "psychiatric interview is a crucial diagnostic tool, [and] the judicial aim must be to make it an effective instrument of justice." Whitlow, supra, 45 N.J. at 20.

In State v. Burris, 298 N.J. Super. 505 (App. Div.), certif. denied, 152 N.J. 187 (1997), we attempted to do just that. There, the defendant broke into her mother's home and shot and killed her. Id. at 508. Her defense at trial was that the shooting was an accident. The defendant "attempted to show that [she] accidentally fired the gun while engaged in a heated argument with her mother." Ibid. Because the defendant then stole her mother's car and credit card and went on a shopping spree, the defense had a difficult task explaining to the jury how, if the shooting was an accident, the defendant subsequently acted in a "cool and calculated manner." Id. at 508-09. The State contended that the conduct was inconsistent with an accident. Id. at 509.

To rebut that contention, the defense called a psychologist and a psychiatrist. Both experts clinically interviewed the defendant and based their opinions on their interviews as well as test results and the defendant's personality features. Ibid. The trial court ruled that the testimony would be permitted only after the defendant testified. Id. at 510. We reversed.

We concluded that though the experts' opinions may have rested largely on inadmissible hearsay, N.J.R.E. 703 permits expert witnesses to rely on facts or data not otherwise admissible in evidence. Id. at 511-12. Thus, the experts' testimony was admissible. We further concluded, however, that where an expert's testimony could be used "as a means to defeat the normal prohibition against the admission of hearsay," the hearsay statements should be permissible, but only when accompanied by "an appropriate limiting charge by the trial court, to the effect that [they] should not be considered by the jury as substantive evidence relating to the question of guilt or innocence of the accused, but only as evidence tending to support the ultimate expert conclusion of the psychiatrist." Id. at 512-13 (quoting Lucas, supra, 30 N.J. at 79); see also King, supra, 387 N.J. Super. at 548-49.

Here, the court neither explored the basis for the expert opinion in an N.J.R.E. 104 hearing, nor provided defendant with an opportunity to present the expert, subject to the appropriate limiting instructions. We are not suggesting that the court permit the expert to testify on direct examination that he found defendant "honest" or "credible," although that may be implicit in the expert's opinion when based on a clinical interview. We are suggesting that, depending on the evidence at an N.J.R.E. 104 hearing, the expert be permitted to testify as to his findings based on that interview.

The court simply barred the expert's testimony. Due process requires more. "The demands of due process are never more seriously tested than when a defendant in a criminal case is, for any reason, denied an opportunity to present a witness whose testimony has ostensible exculpatory value." State v. Dimitrov, 325 N.J. Super. 506, 510 (1999), certif. denied, 163 N.J. 79 (2000). Here, like in Dimitrov, "the reasons articulated by the trial judge for barring defendant's witness fell short." Ibid. This abuse of discretion warrants a new trial on count two of the indictment.

We turn next to the proposed testimony of Terry McCorkell, the Drug Court program Substance Abuse Evaluator. Prior to the first trial, the judge precluded his testimony because the defense had not timely provided an expert's report, and further, because the court did not believe McCorkell's testimony would be of assistance to the jury. The judge remarked that defendant himself could testify that he was an addict and did not need an expert to convey that testimony to the jury.

We reject those conclusions for several reasons. First, to assert that defendant himself could testify is a violation of defendant's right to remain silent. State v. Muhammad, 182 N.J. 551, 567 (2005); State v. P.Z., 152 N.J. 86, 101 (1997); State v. Hopkins, 231 N.J. Super. 581, 584 (App. Div. 1988). Second, considering that the expert was critical to the defense, the failure to timely provide an expert's report could have been cured with a brief adjournment. Finally, for the reasons we have discussed with regard to the proposed testimony of Dr. Cadigan, we conclude that given the constitutional right of a defendant to call witnesses on his own behalf, the failure to permit McCorkell to testify, or at least explore, through an N.J.R.E. 104 hearing, whether he was qualified to testify and whether his testimony would have aided the jury, was an abuse of discretion.*fn4

We are mindful that McCorkell is an employee of the court system as part of the Drug Court program as a Substance Abuse Evaluator. See State v. Matthews, 378 N.J. Super. 396, 398-99 (App. Div.) (explaining the role of Drug Courts), certif. denied, 185 N.J. 596 (2005). According to the Drug Court manual issued by the Administrative Office of the Courts, the Substance Abuse Evaluator is part of a team of professionals who "present a coordinated response to offender behavior." Administrative Office of the Courts, Manual for Operating of Adult Drug Courts in New Jersey 28 (July 22, 2002). The role of a Substance Abuse Evaluator is to conduct clinical evaluations of Drug Court applicants, administer various criteria to make appropriate findings, conduct drug testing, supervise probation officers, and make recommendations. Id. at 33.

One of the reasons the second trial judge upheld the initial decision to prohibit McCorkell from testifying was because, in the judge's opinion, McCorkell's evaluation of defendant was "never intended to be utilized by either the State or the defense for purposes of argument at trial." The trial judge effectively concluded that the expert's report and subsequent testimony was privileged. We disagree.

"'[T]he policy of the law is to allow all competent, relevant evidence to be produced, subject only to a limited number of exceptions.'" State v. Shahamet, 228 N.J. Super. 340, 344 (App. Div. 1988) (quoting Lazorick v. Brown, 195 N.J. Super. 444, 456 (App. Div. 1984)). Privileges are disfavored in the law, and those that are recognized often yield to a stronger public interest. State v. Szemple, 263 N.J. Super. 98, 101 (App. Div. 1993), superseded by statute, N.J.S.A. 2A:84A-23 (regarding cleric-penitent privilege), as recognized in State v. Ballard, 331 N.J. Super. 529, 552 (App. Div. 2000); In re Gail D., 217 N.J. Super. 226, 230 (App. Div. 1987). As the New Jersey Supreme Court noted in Dixon v. Rutgers, 110 N.J. 432, 446 (1988), "since privileges conceal the truth rather than advancing its ascertainment, courts have traditionally tended to restrict rather than create or extend them." The United States Supreme Court has taken a similar position: "Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth." United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed. 2d 1039, 1065 (1974).

It is not for the trial court, nor for this court, to create a new privilege. "[T]he adoption of a privilege restricting the flow of evidence is a substantial policy decision uniquely within the competence of the Supreme Court or the Legislature." In re Gail D., supra, 217 N.J. Super. at 232.

Here, absent any expressed privilege, McCorkell's testimony should not have been precluded based on his status as a court employee. See State v. Blue, 124 N.J. Super. 276, 283 (App. Div. 1973) (permitting probation officer to testify and use of presentence reports by criminal defendant at trial to impeach credibility of State's witness); cf. Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1112, 39 L.Ed. 2d 347, 355 (1974) (holding that the state's policy interest in protecting the confidentiality of juvenile records must give way to a defendant's constitutional right to confront witnesses); Alfano, supra, 305 N.J. Super. at 187 (whether to allow the prosecuting attorney to be called as a witness was within discretion of trial court). Under the facts here, any policy considerations against allowing a member of the Drug Court program team to testify must give way to defendant's right to defend the charges against him.

Defendant's conviction for possession with the intent to distribute is reversed. We remand for further proceedings consistent with this opinion.

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