On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 10-04-0139.
The opinion of the court was delivered by: Baxter, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter, Nugent and Carchman.
The opinion of the court was delivered by BAXTER, J.A.D.
In this appeal from his conviction on charges of possession of cocaine with intent to distribute, defendant challenges the admission of other-crime evidence under N.J.R.E. 404(b), asserting that the admission of evidence that he also possessed oxycodone was unfairly prejudicial in light of the fact that he was not charged with that offense. He asserts that the oxycodone testimony established nothing other than the criminal propensity that N.J.R.E. 404(b) forbids. We agree with defendant's contention, and hold that where the oxycodone evidence was admitted for the ostensible purpose of aiding the jury in determining whether defendant possessed the cocaine for personal use, or instead with the intention of selling it, the probative value of the oxycodone evidence was outweighed by its prejudice, thereby requiring its exclusion. The error was compounded by a limiting instruction that failed to advise the jury of any permissible purpose for which the oxycodone evidence could be used.
Defendant's right to a fair trial was further eroded by the admission of expert testimony on drug distribution that violated the proscriptions applicable to such testimony, as the questions were not posed in hypothetical format, the expert repeatedly referred to defendant by name, the expert's opinion was phrased in language identical to the title of the criminal statute, and the expert impermissibly expressed an opinion on defendant's guilt.
We reverse defendant's conviction and remand for a new trial, as these errors were clearly capable of producing an unjust result.
On January 22, 2010, Detective Darryl Saunders of the Salem County Prosecutor's Office apprehended defendant while defendant was walking on Broadway in Salem. Saunders testified that he advised defendant that he, Saunders, had obtained a search warrant authorizing a search of defendant's person. At the Salem police station, Saunders escorted defendant to the bathroom, and directed him to remove his clothing. Once defendant disrobed, Saunders located ninety-nine bags of cocaine, and four oxycodone pills, in defendant's groin area.
The State also called Lieutenant Timothy Haslett of the Salem County Prosecutor's Office. Haslett explained that he had been employed in the narcotics field for approximately ten years, had received advanced training in narcotics and narcotics distribution, and had been qualified as an expert in that field on numerous occasions. The judge permitted him to provide expert testimony on narcotics distribution. Because it is Haslett's testimony that gives rise to the claims defendant presents on appeal, we describe that testimony in some detail.
At the outset of Haslett's testimony, the prosecutor asked Haslett to render an opinion on whether the ninety-eight bags of cocaine*fn1 found in defendant's possession were possessed for his personal use or instead with the intention to distribute. Haslett responded:
My expert opinion was that the bags were possessed with the intent to distribute same.
Asked to elaborate, Haslett explained to the jury that he typically begins his analysis by reviewing the lab reports because it is important "to see how much of a particular substance I'm dealing with." After noting that all ninety-eight bags of cocaine were "similar [in] size, weight, shape," Haslett opined that defendant did not possess the cocaine for personal use. He explained that because each such bag costs $10 when purchased "on the street," purchasing ninety-eight bags of cocaine would cost $980 "if you were a user." Haslett proceeded to explain that buying ninety-eight bags individually would make no sense from an economic perspective, which contributed to his conclusion that defendant did not possess the ninety-eight bags of cocaine for personal use. He explained:
Now, that would be highly, highly uneconomical. Because I know based on my experience, the many arrests I've made, the many interviews that I've done, that half of an ounce of cocaine, which is approximately 14.17 grams costs about $600.
Mr. Jones was found to be in possession of 98 bags, each weighing an estimated .12 grams, which equals 11.7 grams of cocaine, which is less than half an ounce.
Hence, he would have overpaid hundreds of dollars to purchase cocaine in that manner.
If Mr. Jones merely wanted to use cocaine, he would go out, buy a half ounce of cocaine for $600 and use it.
Mr. Jones was in possession of individual bags which were destined for sale. No user of cocaine in his right mind would overspend over $300 for cocaine. It just wouldn't make any sense. They would go out, buy a half ounce of cocaine and use it.
These bags are packaged in street level distribution amounts, i.e., an individual drug dealer would go out in the street and he'll sell them by the bag or two bags ...