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State v. Tatum

December 23, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RYSHAN TATUM, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-05-0999.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 7, 2009

Before Judges Lisa, Baxter and Coburn.

A jury found defendant guilty of second degree possession of a controlled dangerous substance ("CDS") with intent to distribute. N.J.S.A. 2C:35-5(b)(2). The judgment of conviction required imprisonment for sixteen years with an eight-year period of parole ineligibility. On appeal, we reversed because the judge had refused to permit defendant to call two expert witnesses. State v. Tatum, No. A-3702-04T4 (App. Div. July 6, 2007). The Supreme Court granted defendant's petition for certification, vacated our judgment, and summarily remanded to the trial court to conduct an N.J.R.E. 104(a) hearing to determine if the testimony of the psychologist[] . . . and the substance abuse evaluator, Terry McCorkell, would be of assistance to the jury . . . .

The Court further ordered, in pertinent part, that if the trial court finds that the testimony of either expert "would be of assistance to the jury," it shall vacate the conviction and set the case for retrial.

On remand, the only expert witness offered was Terry McCorkell, the substance abuse evaluator. He testified that he has been certified by the State of New Jersey as a Certified Alcoholism and Drug Counselor ("CADC") since 1999 and has thirteen years of substance abuse counseling. His CADC certification required about 270 hours of substance abuse counseling education, 4,000 hours of field work, and oral and written examinations. CADC recertification requires sixty hours of continuing education every two years. He is a 1976 summa cum laude graduate of Fairleigh Dickinson University. Among other things, he worked from 1998 to 2002 as a substance abuse counselor and evaluator for the Monmouth County Sheriff's Department. Since then, he has been employed as a substance abuse evaluator for the Monmouth County Drug Court. In that capacity, by the time he evaluated defendant, he had evaluated about two hundred candidates for the drug court. By the time of this hearing, he had evaluated several hundred more candidates for the drug court.

McCorkell interviewed defendant on behalf of the drug court on September 25, 2003. The interview, which lasted one-and-a-half hours, resulted in a report which, in part, reads as follows:

Client meets DMS-IV [sic] 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.

At the hearing, McCorkell testified that in the month preceding the interview, defendant admitted that he drank alcohol to intoxication on twenty-five occasions, smoked marijuana on twenty occasions, used cocaine twice, and spent about $400 on drugs. He also said that in the past year he used cocaine twice a week on average. Based on the information received during the interview, McCorkell concluded that defendant was a drug addict when he was arrested. He reached that conclusion by accepting what defendant said and applying to it the criteria for chemical dependency for alcohol, cannabis, and cocaine found in the Diagnostic and Statistical Manual of Mental Disorders, (fourth edition, 1994) ("DSM-IV"), published by the American Psychiatric Association. Although McCorkell was never specifically asked if drug counselors normally rely on the information received from the applicant, he did implicitly indicate that his methodology in so doing was standard in his profession. For example, when asked about applying the DSM-IV criteria, he said that "[e]very substance abuse evaluator in the country uses this assessment." Implicit in that answer was that the criteria were applied to the information received from the applicant. McCorkell also relied on the additional criteria contained in the Addiction Severity Index, which he described as a "widely used assessment tool."

Although the judge found that McCorkell qualified as an "expert in alcohol and substance abuse counseling with an expertise in therapy and counseling," he concluded that McCorkell's testimony would not have been of assistance to the jury, or that even if it would, it would not have affected the result of the case. We disagree with the first proposition and find the second proposition irrelevant under the Supreme Court's remand order. Therefore, we vacate the judgment of conviction and remand for a new trial.

In general, when reviewing evidentiary rulings, we apply an abuse of discretion standard. State v. Torres, 183 N.J. 554, 567 (2005). However, because appellate courts are well suited to reviewing expert testimony in light of scientific literature and applicable judicial decisions, they "need not be as deferential to the trial court's ruling on the admissibility of expert scientific evidence as [they] should be with the admissibility of other forms of evidence." Ibid. Moreover, no deference is to be accorded when the trial judge fails to apply the proper test governing admissibility. State v. Darby, 174 N.J. 509, 518 (2002).

Under the applicable rule of evidence,

If 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 ...


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