August 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARCUS L. COLEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 09-08-676.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 22, 2012
Before Judges J. N. Harris and Fasciale.
Defendant appeals from his convictions, after a jury trial, for second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(2) (Count One); third-degree possession of CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-5a(1) (Count Two); fourth-degree unlawful possession of hollow-nose bullets, N.J.S.A. 2C:39-3f(1) (Count Three); and third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-10a(1) (Count Four). We reverse and remand for a new trial.
On April 16, 2009, at approximately 9:30 p.m., Detective Michael Powell executed a search warrant of a small apartment with the assistance of the Gloucester County S.W.A.T. team. The detective testified on direct examination that defendant was the "target" of the narcotics investigation. Defendant was one of several people, including four adults and two small children, located in the apartment during the search.
The detective entered the residence, searched defendant, and seized from him "several yellow glassine heat-sealed bags with a white rock-like substance in them [and] another green ziplock bag with a substance in it." He then seized an additional bag located near defendant which contained a "digital scale, numerous packaging . . . [of yellow, blue, and clear] glassine bags," and "a clear plastic bag with . . . a white rock [in it]." The detective then continued searching the apartment and located a safe containing another scale, approximately $1,600 in cash, and "hollow-point ammunition." Thereafter, the police arrested defendant and charged him with the drug and weapons offenses.
At the trial in June of 2011, the State called Briea Brenner, a detective in the prosecutor's office, as "an expert in the area of the use and distribution of [CDS]." The prosecutor posed a hypothetical involving a drug investigation that mirrored the factual details of defendant's case, and the judge permitted Detective Brenner to opine, over a defense objection, that the "target" of the hypothetical drug investigation was "[p]robably . . . distribut[ing] drugs." The jury then found defendant guilty of all the charges. The judge granted the State's motion for an extended term and sentenced defendant to an aggregate term of fourteen years in prison with six years of parole ineligibility.*fn1 This appeal followed.
On appeal, defendant raises the following points:
THE ADMISSION OF THE STATE'S DRUG EXPERT'S OPINION WITHOUT AN IMMEDIATE CURATIVE INSTRUCTION WAS PLAIN ERROR[,] THE RESULT OF WHICH WAS TO DEPRIVE THE DEFENDANT OF A FAIR TRIAL.
THE TRIAL COURT ERRED BY NOT EXCLUDING THE JURY'S CONSIDERATION [OF] S2 AND ANY TESTIMONY REGARDING ITS CHARACTER.
We begin by addressing defendant's primary contention that the judge (1) committed error by allowing Detective Brenner to opine that the prosecutor's hypothetical target was "[p]robably . . . distribut[ing] drugs," and (2) failed to issue an immediate curative instruction following Brenner's opinion. Defendant contends that it is undisputed defendant was the target of the drug investigation. He maintained at trial, and maintains now on appeal, that Brenner's opinion testimony, that the target was "[p]robably . . . distribut[ing] drugs," was improper because it rendered an opinion on the defendant's guilt.
The scope of our review of a judge's evidentiary ruling is generally limited to ascertaining whether his or her discretion was mistakenly exercised, provided that the ruling is not inconsistent with applicable law. State v. Burns, 192 N.J. 312, 332 (2007) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)); State v. B.M., 397 N.J. Super. 367, 374 (App. Div. 2008). Error in the admission of evidence will not be deemed harmful if the weight of the evidence against the defendant is great. See State v. Soto, 340 N.J. Super. 47, 65 (App. Div.) (citing State v. Federico, 198 N.J. Super. 120, 131 (App. Div. 1984), aff'd, 103 N.J. 169 (1986)), certif. denied, 170 N.J. 209 (2001), overruled in part on other grounds by State v. Dalziel, 182 N.J. 494, 504 (2005).
"As a general rule, the determination of facts that serve to establish criminal guilt or innocence is the exclusive responsibility of the jury and 'an expert's testimony that expresses a direct opinion that defendant is guilty of the crime charged is wholly improper.'" State v. Hurdle, 311 N.J. Super. 89, 97 (App. Div. 1998) (quoting State v. Odom, 116 N.J. 65, 77 (1989)); see State v. Reeds, 197 N.J. 280, 290 (2009) (reversing conviction where narcotics expert's testimony that all three vehicle occupants were in "constructive possession with the intent to distribute" impermissibly "track[ed] the 'precise terminology' . . . of [the] applicable criminal statute" and expressed a direct opinion on the defendant's guilt (quoting Odom, supra, 116 N.J. at 82)); see also State v. Summers, 176 N.J. 306, 316-17 (2003) (finding that the hypothetical posed to the expert witness too closely mirrored the facts at trial, but upholding the defendant's conviction because the hypothetical did not refer to the defendant by name and did not ask for an opinion as to the defendant's guilt). Nonetheless,"[t]he 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 [N.J.R.E.] 702 standards because such information is a specialized subject matter that is beyond the ken or normal life experience of the average juror." Reeds, supra, 197 N.J. at 290.
In State v. Odom, supra, 116 N.J. at 81-82, the Court established guidelines for the use of hypothetical questions to examine an expert witness in narcotics transactions. Specifically, the Court held that the expert may testify as to whether a quantity of drugs was possessed with the intent to distribute it to others. Id. at 79-80; see State v. Berry, 140 N.J. 280, 297-98 (1995) (indicating that N.J.R.E. 704 allows expert testimony that encompasses ultimate issues, such as whether a defendant possessed CDS with intent to distribute). The Supreme Court recently restated the guidelines for testimony by drug trafficking experts in State v. McLean, 205 N.J. 438, 450-56 (2011) (reversing drug distribution conviction because arresting officer's testimony that he believed he had witnessed a hand-to-hand narcotics transaction improperly expressed an opinion on the defendant's guilt and did not concern a matter beyond jurors' common understanding).
In Odom, supra, 116 N.J. at 82, the Court held that the narcotics expert's testimony should "avoid the precise terminology of the statute defining the criminal offense and its necessary elements," and it must not use defendant's name. The proper method of posing a hypothetical question to a narcotics expert was restated in Reeds:
The [hypothetical] question must be limited to the facts adduced at trial. The prosecutor may ask the expert to express an opinion, based on those facts, whether the drugs were possessed for distribution or for personal consumption. The expert should inform jurors of the information on which the opinion is based, and must avoid parroting statutory terminology whenever possible. Obviously, the expert must walk a fine line. His or her opinion can be expressed in terms of ultimate issues of fact, namely, whether drugs were possessed with the intent to distribute, but it cannot contain an explicit statement that the defendant is guilty of the crime charged under the statute. Finally, trial courts should instruct the jury in respect of the proper weight to be given to the expert's opinion, reminding jurors that the ultimate decision concerning a defendant's guilt or innocence rests solely with them. [Reeds, supra, 197 N.J. at 291-92 (internal quotation marks omitted) (quoting Summers, supra, 176 N.J. at 314-15).]
In this case, the hypothetical question to Brenner failed to comply with the guidelines established in Odom and Reeds. On direct examination, the prosecutor presented the following hypothetical to Detective Brenner:
You're executing a search warrant . . . [and] find the target of your investigation present at the residence. And, in the area around where your target is seated, there's a rock of crack cocaine weighing approximately 21.79 grams, also, a number of unused baggies that are also near where this person is, and a digital scale, altogether.
A further search of the residence yields approximately $1,600 in cash, and another digital scale, and some more plastic, unused baggies. Now, could you think of the reason why our - or your target of your investigation, because we're hypothetically speaking here, would you think of a reason why that target would possess that rock of crack cocaine[?]
Defense counsel objected and stated to the judge that "we all know that the evidence in this case is that [the State's] target was [defendant]." Defense counsel contended, therefore, that the hypothetical violated Odom because it elicited an expert opinion that defendant is guilty of distributing drugs. The judge overruled the objection and stated, "I'm not convinced that [target] means . . . defendant." The prosecutor then resumed his direct examination of Detective Brenner and stated:
Let's start over[.] You are investigating a target for potentially distributing [CDSs]. Assume that you execute a search warrant where the target is located inside the residence. Near where the target is found is a rock of crack cocaine weighing approximately 21.79 grams, along with a number of unused baggies, and a digital scale. At that point, you then complete a search of the residence, and you locate a safe. And, you also locate approximately $1,600 in cash, another digital scale inside, and some more unused baggies. Now, could you think [of] an opinion as to why our hypothetical target in the situation would have possessed all those items, the rock of crack cocaine, and the number of unused baggies, and the digital scales?
Detective Brenner then answered, "Probably to distribute drugs."
Not too long ago, we dealt with an issue similar to the one presented here. In State v. Miraballes, 392 N.J. Super. 342, 359 (App. Div. 2007), we observed that the prosecutor's hypothetical "constituted a summation of the State's entire case and then elicited an [expert] opinion that the '61-year-old Cuban woman' was responsible for the cemetery thefts that constituted the bulk of the charges [against the defendant]." We stated that the hypothetical "basically called on the expert to opine on the credibility of the State's case," and that the "thinly-veiled reference to [defendant as] the '61-year-old Cuban woman' did nothing to dispel any error because it was clear beyond doubt who that person was." Ibid. As such, we concluded that the hypothetical asked for an opinion on the defendant's guilt and that the question and answer were erroneously admitted. Ibid. Combined with a separate hypothetical, in which the prosecutor inserted the defendant's actual name, this error contributed heavily to our reversal and decision that the expert opinions in response to the prosecutor's hypotheticals had the capacity to affect the jury's verdict and were, therefore, not harmless. Id. at 361.
Here, Detective Powell provided undisputed testimony that defendant was the only target of the drug investigation. We emphasize that during Powell's testimony the term "target" was used to describe defendant because, subsequently, during Detective Brenner's testimony, the prosecutor used the same term repeatedly. The "target" in the prosecutor's hypothetical was undoubtedly a "thinly-veiled reference" to defendant. Miraballes, supra, 392 N.J. Super. at 359. As such, Detective Brenner's testimony that the "target" was "[p]robably . . . distribut[ing] drugs" amounted to an impermissible opinion that defendant was guilty of the crime charged. See Odom, supra, 116 N.J. at 77. Just as a prosecutor cannot use a criminal defendant's actual name in a hypothetical, id. at 82, a prosecutor likewise cannot use a term that clearly references the defendant, such as the use of "61-year-old Cuban woman" to indicate the defendant in Miraballes. Here, but for the prosecutor earlier identifying defendant as the only target of the search warrant, the hypothetical would not have been objectionable. We conclude, therefore, that the judge mistakenly exercised her discretion allowing such opinion testimony.
Because of the prejudice to defendant as a result of the prosecutor's flawed hypothetical, we reverse and remand this case for a new trial before an impartial jury on all issues, including defendant's conviction for fourth-degree unlawful possession of hollow-nose bullets.*fn2
Reversed and remanded for a new trial.