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).
The issue in this appeal is whether expert testimony about constructive possession of drugs found in a vehicle exceeded the parameters of acceptable expert testimony in a drug prosecution trial.
On August 14, 2002, two Bergen County police officers stopped a vehicle traveling on Route 95 from the George Washington Bridge. Defendant Rahmann Reeds allegedly had been driving excessively fast and erratically. Mark Whitley and Isaac Outen were passengers in the vehicle. The officers detected the smell of burnt marijuana, noticed a burnt marijuana joint in the center console, and observed several packages of heroin on the front seat passenger floor. Upon searching the vehicle, the officers uncovered fifteen unopened bricks of heroin and one opened brick. All totaled, the bricks contained 798 small packages of heroin. In addition, the officers found six bags of marijuana in the interior front passenger area.
At trial, the State presented several witnesses, including Detective David Swan, an expert in narcotics distribution and possession. In responding to a hypothetical question, Detective Swan opined, over co-defendant Whitley's attorney's objection, that all defendants were in constructive possession of the narcotics. During the charge conference, counsel for all three defendants asked the court to provide a limiting instruction informing the jurors to consider Detective Swan's opinion only to determine whether the defendants possessed the drugs for personal use or for distribution; and not to consider his opinion in determining whether the drugs were constructively possessed because that was an issue of fact for the jury. The trial court issued a limiting instruction addressing the hypothetical question and the weight of the expert's opinion based on whether or not the facts assumed in the hypothetical were proven.
The jury convicted Reeds of third-degree possession of heroin and second-degree possession of heroin with the intent to distribute. Reeds moved for a new trial based on the State's purported failure to prove various elements of the charged offenses. That motion was denied. The court sentenced Reeds to fifteen years' incarceration with a six-year period of parole ineligibility.
Reeds raised several issues on appeal. The Appellate Division, applying the "plain error" standard, determined that the hypothetical line of questioning by Detective Swan was permissible. The appellate panel further determined that the court's limiting instruction during its charge to the jury quelled any potential prejudice that may have resulted from Detective Swan's testimony about defendant's constructive possession of the drugs found in the car.
The Supreme Court granted limited certification to address the issue of whether Detective Swan's testimony exceeded the bounds of acceptable hypothetical testimony.
HELD: Defendant suffered undue prejudice from the evidence in the form of expert testimony opining, in effect, that he constructively possessed the drugs found in the vehicle he was driving. This ultimate-issue testimony usurped the jury's singular role in the determination of defendant's guilt and irredeemably tainted the remaining trial proofs, producing an unjust result in defendant's trial.
1. The Court's analysis begins with the Rules of Evidence, specifically Rule 702, which governs the admissibility of expert testimony and provides that "[i]f 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 may testify thereto in the form of an opinion or otherwise." It is incumbent on the professing party to show that (1) the intended testimony concerns a subject matter beyond the ken of an average juror; (2) the field is at a state of the art such that an expert's testimony would be reliable; and (3) the witness has expertise sufficient to offer the intended testimony. The use of expert testimony about the methods employed by drug traffickers to package and to distribute illegal drugs for sale has been long recognized as permissible under Rule 702 standards because such information is a specialized subject matter that is beyond the ken or normal life experience of the average juror. The Court has also approved the use of a hypothetical question as an appropriate vehicle through which an expert could testify in respect of inferring intent or purpose when drugs are possessed under certain circumstances, even when such testimony "embraces an ultimate issue to be decided by the trier of fact," N.J.R.E. 704, so long as the probative value of the circumscribed testimony is not substantially outweighed by the risk of causing undue prejudice, N.J.R.E. 403. Because it is the exclusive responsibility of the jury to determine guilt, there is always the concern about the potential for an expert's opinion on a hypothetical question to slip dangerously close to usurpation of the jury's role by essentially telling the jurors how to resolve a case. (Pp. 11-17)
2. In this matter, the trial court did not err by allowing an expert to testify that a drug possessor's likely intent and purpose in possessing heroin in the amount and circumstances present here was to engage in distribution. Such testimony reasonably was determined to be helpful to jurors in understanding a specialized area that was beyond their ken. There was another portion to the expert's testimony, however, that must be separately analyzed because it carries a substantial potential for prejudice. Specifically, the Court must assess the admissibility of the further testimony by the expert about whether all or any persons traveling in the car in which these drugs were found constructively possessed the drugs. In response to the hypothetical, the expert reached to address the factual issue about who in the car could be found to be in possession of the drugs. That should not have been permitted. Although expert testimony may be employed when a defendant's drug charge involves possession that may be constructive, courts have used care in defining the parameters of permissible expert testimony to ensure that the expert does not answer for the jury the actual question of whether the drugs or other items in issue were constructively possessed. In this case, the expert's constructive possession opinion was tantamount to a legal conclusion, resulting in a veritable pronouncement of guilt on the two possession crimes for which defendant was charged, which clearly was unduly prejudicial. Moreover, the resulting jury instruction did not cure the prejudice, but instead confounded the jury. (Pp. 18-23)
3. Defendant asserts that this case should be decided based on the harmless-error standard of review because co-defendant Whitley's attorney objected to the constructive-possession question and answer and because defendant's counsel requested that the trial court instruct the jury to disregard the constructive-possession testimony. Defendant's counsel never objected to the testimony and even acceded to the jury instruction issued by the court. Ordinarily, when counsel fails to object to offensive testimony, the Court would apply the plain error standard of review. The Court need not perseverate over which standard of review ought to control in this setting, however, because under either standard the Court would reverse this conviction. Allowance of the constructive possession testimony was plainly erroneous and the resulting prejudice was not harmless. The testimony in respect of constructive possession usurped the jury's role as the ultimate fact-finder and irredeemably tainted all of the evidence presented. Further, the court's limiting instruction during the jury charge was not only ineffective in curing the problem, but was also confounding for the jury because it allowed the testimony to be considered when the jury assessed defendant's guilt. This ultimate-issue testimony usurped the jury's singular role in the determination of defendant's guilt and irredeemably tainted the remaining trial proofs, producing an unjust result. (Pp. 23-28)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial.
JUSTICE ALBIN filed a separate, CONCURRING opinion, in which JUSTICE LONG joins, stating that although he is heartened by the majority's opinion, the Court's well-articulated reasons for rejecting Detective Swan's expert testimony cannot be squared with previous Supreme Court holdings.
JUSTICE RIVERA-SOTO filed a separate, DISSENTING opinion, concluding that the prosecution properly elicited the opinion of a police detective qualified as an expert concerning a matter outside the ken of an ordinary person: the idiosyncrasies of a clandestine drug transaction.
CHIEF JUSTICE RABNER and JUSTICES WALLACE and HOENS join in JUSTICE LaVECCHIA's opinion. JUSTICE ALBIN filed a separate, concurring opinion, in which JUSTICE LONG joins. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion.
The opinion of the court was delivered by: Justice LaVECCHIA
A jury convicted defendant, Rahmann Reeds, of third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), and second-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35- 5(a)(1) and (b)(2) (possessing quantity of one-half ounce or more, but less than five ounces). In this appeal, defendant contends that the State's expert's testimony on drug possession and distribution methods exceeded permissible limits. Specifically, defendant points to a portion of the expert's testimony that responded to a hypothetical question. The hypothetical reflected the facts of defendant's arrest. In response, the expert opined that defendant had been in "constructive possession" of the drugs recovered by the police from the car in which he was driving. Defendant claims that the testimony violated State v. Odom, 116 N.J. 65 (1989), and subsequent cases, because (1) the subject matter of the expert's testimony, addressing who was in possession of the drugs found in the car, was not beyond the ken of average jurors; and (2) the expert's opinion impermissibly invaded the jury's province by addressing the ultimate issue of defendant's guilt.
We agree that the expert's testimony in this matter went too far and exceeded permissible limits. That this Court has recognized a beneficial and appropriate role for a drug expert's testimony that explains unfamiliar drug trafficking methods to jurors was not meant to signal that there are no appreciable limits to such expert testimony. The expert may not usurp the province of the jury to decide the ultimate issue of defendant's guilt. Here, the expert's assessment that defendant constructively possessed the drugs found in the car remained part of the record to be considered by the jury. The question of constructive possession of the drugs found in the car was one that the jury was capable of and required to assess itself, by drawing inferences and applying common logic and knowledge. Because the expert should not have been permitted to opine on the ultimate issue of whether defendant possessed the drugs found, plain error occurred. Accordingly, we are compelled to reverse defendant's convictions and to remand for a new trial.
To understand the import of the expert's testimony in defendant's trial, we summarize the facts that were adduced at trial.
On August 14, 2002, two Bergen County police officers stopped a vehicle travelling on Route 95 from the George Washington Bridge. The driver, defendant, allegedly had been driving excessively fast and erratically. Mark Whitley and Isaac Outen were passengers in the vehicle. When asked by one of the officers for his driving credentials, defendant provided a false name and explained that he did not have a license or an insurance card. During that colloquy with defendant, the officer smelled the odor of burnt marijuana and observed an open beer bottle in the rear portion of the interior cabin of the vehicle, near where Outen was seated. The officer made defendant exit the vehicle and, in response to further questioning, defendant admitted that his license was suspended and explained that the car was borrowed.
Returning to question the two passengers still in the car, the officer began with Whitley, the front seat passenger, when he noticed a burnt marijuana joint in the center console. After the officer had Whitley exit the vehicle, the officer saw several packages of heroin on the floor where Whitley's feet had been. The officer searched the area under the front passenger seat and found fifteen unopened bricks of heroin, each containing five bundles of ten heroin packages. He also found an additional opened brick of heroin. All totaled, the bricks contained 798 small packages of heroin. In addition, the officer found six bags of marijuana in the interior front passenger area.
A grand jury returned indictments against defendant, Whitley, and Outen for third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one); against defendant, Whitley, and Outen for second-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count two); and against defendant and Outen for third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4) (count three).*fn1
The defendants were tried together. During the four-day trial, the State presented several witnesses, including Detective David Swan, an expert in narcotics distribution and possession.*fn2 During direct examination of Detective Swan by the prosecutor, the following exchange occurred:
Q: [Prosecutor] [A]ssume hypothetically that three individuals are driving in a borrowed vehicle. Let's call the driver S-l, suspect one. Front passenger, suspect two. And assume there is a rear passenger behind the front passenger which we'll call suspect three, S-3.
A: [Detective Swan] Okay.
Q: And they're traveling from New York City on Route 95 so that you know that they're coming out of New York. And the individuals are traveling in the vehicle at night, approximately a little before 9:00 PM on a week night. They're driving in an erratic fashion, pulled over. The front passenger and the rear passenger, back passenger at some point are asked their names and they give false names.
An officer who asks the front passenger for their paperwork smells marijuana in the vehicle and notices in the vehicle an open container of beer.
After that[,] later found in the vehicle, in the front passenger section, right between -- on the floor in front of the seat but where their feet would be are found loose folds of what's determined to be heroin and also scattered on the floor are -- by the feet of the front passenger are six bags of marijuana and underneath the seat are found fifteen bricks of heroin, determined to be heroin, as well as found additionally is a sixteenth brick. That sixteenth brick had been opened so that there were forty bags and seven or eight various loose folds.
On the back passenger assume is found cigars or brown cigarettes, Phillies. And on the persons of the individuals are found a totality of currency of nine hundred fourteen dollars.
Q: Assuming all those hypothetical facts, do you have an opinion as to why the drugs, specifically the heroin, totaling several hundred bags or folds, would be possessed?
A: My opinion they would be possessed with the intent to distribute.
Q: And would that opinion be as to suspects one, two and three?
A: All constructive possession with the intent to distribute.
Q: And in your training and experience, have you ever had an experience where three individuals would have been located in a vehicle under these hypothetical facts ...