SYLLABUS
(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).
Argued October 25, 2005 -- Decided January 12, 2006
LaVECCHIA, J., writing for the Court.
In this appeal, the Court considers the admissibility of testimony by a State expert about drug possession and distribution techniques that included a response to a hypothetical question based on facts similar to those put forward by the State at trial.
On July 20, 2000, Trenton Police Officer David Neiderman was patrolling in an unmarked vehicle as part of an undercover operation targeting prostitution. He came upon a male and female standing on the corner, and the female waved to him. Neiderman suspected prostitution and alerted his arrest team. He drove back to the corner and both individuals approached the car. The man, who turned out to be defendant Anthony Nesbitt, asked Neiderman “what do you need?” Realizing that this was a potential narcotics transaction, Neiderman replied “ten,” meaning he wanted ten dollars worth of crack cocaine. Nesbitt told the woman to “give him ten,” and she removed a yellowish rock-like substance from a brown paper wrapping she had been holding. The substance appeared to be crack cocaine. The woman showed the rock-like object to Nesbitt and asked him “this much?” He replied “yes.” The woman handed the substance to Neiderman and received ten dollars from him.
As Neiderman drove away, he notified the arrest team. They quickly moved in and arrested Nesbitt and the woman. Among other things, Nesbitt was charged with possession of CDS with intent to distribute within 1,000 feet of school property.
At trial, the State introduced testimony from Officer Neiderman and from Detective Veldon Harris of the Prosecutor’s Office, who was qualified as an expert in narcotics. On direct testimony, the assistant prosecutor asked Harris a hypothetical question based on detailed facts corresponding to the facts recited by Neiderman. Harris concluded that the individuals described in the hypothetical were “complicit in distributing drugs.” Defendant did not object to this testimony at trial.
On appeal, Nesbitt argued that the hypothetical impermissibly invaded the province of the jury and invited the expert to express a view on the ultimate issue of Nesbitt’s guilt. The Appellate Division upheld the conviction, finding that neither the admission of the narcotics expert’s testimony, nor the wording of the hypothetical, rose to the level of “error, much less plain error.”
The Supreme Court granted Nesbitt’s petition for certification.
HELD: There was no error in allowing the expert to testify about methods used by confederates in street-level drug sales. Although the expert’s answer elicited by the hypothetical question improperly relied on terminology from the criminal statute, it did not constitute plain error.
1. In State v. Odom, 116 N.J. 65 (1989), this Court held that the State has flexibility to educate jurors on the latest tactics designed by drug dealers to shield themselves from responsibility for their illegal actions. Expert testimony, including opinions that embrace ultimate issues, is permitted when the testimony has value in assisting the jury’s understanding of facts and their significance, and when the trial court finds that that testimony is not unduly prejudicial. (pp. 8-14)
2. In this case, Nesbitt did not personally hold the drugs, did not give the drugs to the officer, and did not accept payment from the officer. Those facts take the matter outside of the ken of the average layperson in respect of the question whether Nesbitt was an accomplice to the distribution of crack cocaine. Thus, there was no error in allowing the subject matter of Harris’s testimony. (pp. 14-16)
3. This Court has warned that the phrasing of a hypothetical should not track too precisely the exact language of the criminal statute with which a defendant is charged. Expert testimony that recites the legal conclusion sought in a verdict is not helpful to the jury. Nesbitt was charged with violating N.J.S.A. 2C:35-5(a)(1), which states that “it shall be unlawful for any person to knowingly or purposely . . . distribute . . . a controlled dangerous substance,” and N.J.S.A. 2C:2-6, entitled “Liability for conduct of another; complicity.” The expert specifically testified that in his opinion the hypothetical individual who corresponded to Nesbitt “was complicit in distributing drugs.” The word “complicit” appears in the title and body of N.J.S.A. 2C:2-6, and is by definition aligned with the principles of accomplice liability. The State should have avoided its use. Nonetheless, the poorly phrased hypothetical did not have the capacity to bring about an unjust result. The hypothetical never referred explicitly to Nesbitt and was limited to the facts presented at trial. The trial court instructed the jury on the proper weight to be given to the expert’s opinion, and reminded the jurors that the ultimate decision on guilt was solely their determination. As a result, the Court finds no plain error. (pp. 16-20)
4. The conviction is affirmed. Defendant’s sentence on the extended term, however, was set above the presumptive sentence applicable at the time to the extended-term range. The matter must be remanded for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005). (pp. 20-21)
The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part.
JUSTICE ALBIN has filed a separate, DISSENTING opinion, in which JUSTICE LONG joins, expressing the view that the testimony of the State’s expert, an authority claiming to have superior knowledge and experience, had the capacity to cause an unjust result and constituted plain error.
CHIEF JUSTICE PORITZ and JUSTICES ZAZZALI, WALLACE, and RIVERA-SOTO join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion in which JUSTICE LONG joins.
SUPREME COURT OF NEW JERSEY
A-
114 September Term 2004
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY NESBITT,
Defendant-Appellant.
Argued October 25, 2005 – Decided January 12, 2006
On certification to the Superior Court, Appellate Division.
Alison S. Perrone, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars,
Public Defender, attorney).
Carol M. Henderson, Deputy Attorney General, argued the cause for respondent (Peter C.
Harvey, Attorney General of New Jersey, attorney).
JUSTICE LaVECCHIA delivered the opinion of the Court.
Charged as an accomplice, defendant was convicted by a jury of multiple
drug charges including third-degree distribution of a controlled dangerous substance (CDS) on or
near school property. During trial the State presented an expert witness who testified
about methods of operation utilized in street-level drug sales. His testimony culminated in
a hypothetical question that assumed detailed facts corresponding to the facts adduced at
trial. The expert was asked whether the individual described in the hypothetical was
“complicit in distributing drugs” and to explain the facts on which he based
his opinion. Although defendant did not object to the testimony at the time,
he argued on appeal that the testimony impermissibly invaded the province of the
jury. Moreover, even if the expert’s testimony about drug distribution methods was admissible,
defendant contended that the hypothetical presented by the State too closely tracked specialized
language from the statute under which he was charged and invited the expert
to express a view on the ultimate issue of defendant’s guilt. That, defendant
argued, was contrary to the standards established for such testimony in State v.
Odom,
116 N.J. 65 (1989), and reaffirmed in State v. Summers,
176 N.J. 306 (2003). Defendant also challenged his sentence.
The Appellate Division upheld defendant’s conviction, finding that neither the admission of the
narcotics expert’s testimony, nor the wording of the hypothetical, rose to the level
of “error, much less plain error.” The Appellate Division remanded the matter to
correct a sentencing error. Defendant filed a petition for certification, which we granted.
183 N.J. 256 (2005).
Admission of expert testimony on drug possession and distribution techniques is permissible when
reasonably required to assist jurors in understanding subjects that are beyond the ken
of an average layperson. Odom, supra, 116 N.J. at 81. Odom also permits
the State to ask a narcotics expert a hypothetical question mirroring the facts
of the case, even though the hypothetical may be “expressed in terms of
ultimate issues of fact.” Ibid. Although an expert is not needed to state
that which is obvious, the circumstances underlying defendant’s drug charges may not have
been obvious to the laypersons of the jury. We conclude that there was
no error in allowing the expert to testify about methods used by confederates
in street-level drug sales or in allowing the expert to testify about a
hypothetical situation that involved numerous detailed facts similar to the facts put forward
by the State at trial. Finally, although the wording of the expert’s answer
elicited by the hypothetical question did not adhere to our admonition in Odom
and Summers to avoid use of precise terminology found in the statute under
which defendant is charged, we conclude, as did the Appellate Division, that no
plain error occurred.
I.
The facts, summarized below, are derived from the testimony and evidence adduced at
trial. On July 20, 2000, Trenton Police Officer David Neiderman was patrolling in
an unmarked police vehicle as part of an undercover operation targeting prostitution. As
he drove down a street, he noticed a male and a female standing
on a corner; the female appeared to wave at him. At the time,
Neiderman suspected prostitution and so alerted his arrest team. He then drove back
to the corner where the individuals had been standing and pulled over next
to them. Both individuals approached the car. The man asked Neiderman “what do
you need?” Realizing then that this was a potential narcotics transaction, Neiderman replied
“ten,” meaning that he wanted ten dollars worth of crack cocaine. The man
then looked at the woman and said to her, “give him ten.” In
response, the woman removed a yellowish rock-like substance from a brown paper wrapping
she had been holding. The substance appeared to be crack cocaine. Showing the
rock-like object to the man, she asked him “this much?” The man replied
“yes.” The woman then handed Neiderman the object and received ten dollars from
him. As Neiderman drove away, he notified his arrest team. They quickly moved
in and arrested the two individuals, who were identified as defendant Anthony Nesbitt,
and Lenora McCoy.
Defendant was charged with third-degree possession of a CDS (cocaine), contrary to N.J.S.A.
2C:35-10a(1) and 2C:2-6 (Count 1); third-degree possession of a CDS with intent to
distribute, contrary to N.J.S.A. 2C:35-5a(1); 2C:35-5b(3) and 2C:2-6 (Count 2); third-degree possession of
a CDS with intent to distribute within 1,000 feet of school property, contrary
to N.J.S.A. 2C:35-7; 2C:35-5a(1); 2C:35-5b(3); and 2C:2-6 (Count 3); third-degree distribution of a
CDS, contrary to N.J.S.A. 2C:35-5a(1); 2C:35-5b(3); and 2C:2-6 (Count 4); and third-degree distribution
of a CDS within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7;
2C:35-5a(1); 2C:35-5b(3); and 2C:2-6 (Count 5).
At trial, the State introduced testimony from Officer Neiderman and from Detective Veldon
Harris of the Mercer County Prosecutor’s Office, who was qualified as an expert
in narcotics. Harris provided general information about street-level drug sales and then the
following exchange occurred.
Q: Detective Harris, for the purposes of the next
question, it is a hypothetical, I want you to assume the following facts:
I want you to assume it is 1:46 a.m., and that the location
is Locust and Chambers Street in the City of Trenton. I want you
to assume further there are two individuals in that location. I’ll refer to
them as individual A and individual B. I want you to assume further
that individual A flags down a vehicle. Assume further that when that vehicle
pulls over, that both individual A and individual B approach the vehicle, and
that the following conversation takes place:
That individual B says to the person in the vehicle, what do you
need? Assume further that the person in the vehicle says ten. Assume then
that individual B directs individual A to give the person in the vehicle
$10 worth of crack. Assume then that individual A then shows a quantity
of CDS, crack cocaine, to individual B and asks, this much? Assume then
that individual B answers, yes. And that then that person, individual A, serves
the crack cocaine in exchange for money to the person in the vehicle.
Would you be able to form an opinion about whether or not person
B was complicit (sic) in the distribution of those drugs to the person
in the vehicle?
A: Yes, I would.
Q: And what would your opinion be?
A: That person was complicit in distributing drugs.
Q: And on what facts do you base that opinion?
A: I base that on the opinion that that individual approached the vehicle,
that individual asked the person what they needed, that individual then instructed A,
the person A to give the crack cocaine to the person in the
vehicle, and the person that pulled out the drugs then asked the other
individual, is this how much, and they said yes. And then the drugs
are then given to the person in the vehicle.
Q: Now, if I told you that Individual A was found to have a
crack pipe on them at the time of their arrest and no additional
drugs, would that affect your opinion?
A: No, it would not.
Q: If I told you that at the time of person B’s arrest, that
individual had no drugs and no money on them, is that part of
your opinion?
A: Yes.
Q: And why is that part of your opinion?
A: Well, that individual, obviously, was utilizing someone else to sell the drugs,
so you’re not going to find drugs on that person. Also, as far
as money, the individual had the money, the money was given back to
the person who actually sold the drugs, and this is commonly done in
a street-level distribution network when you are utilizing a runner.
As noted previously, defense counsel did not object to the above testimony.
The jury convicted defendant on three counts: third-degree possession of a CDS (Count
1); third-degree distribution of a CDS (Count 4); and third-degree distribution of a
CDS within 1,000 feet of school property (Count 5). At sentencing, the trial
court merged Count 1 into Count 4 and then reviewed defendant’s criminal record
and presentence report. Looking to N.J.S.A. 2C:44-1a, the court found three aggravating factors
and no mitigating factors.
See footnote 1
The court also determined that defendant was subject to
a mandatory extended term pursuant to N.J.S.A. 2C:43-6f. The court concluded that the
aggravating factors substantially outweighed the mitigating factors and sentenced defendant on Count 5
to a nine-year term of incarceration with a four-and-a-half-year period of parole ineligibility.
Defendant also was sentenced to a flat five-year term on Count 4, to
be served concurrently with the sentence on Count 5.
In an unpublished opinion, the Appellate Division affirmed defendant’s conviction, remanding only for
entry of an amended judgment of conviction merging Counts 4 and 5. The
panel rejected defendant’s argument that the trial court erred in permitting expert testimony
about street-level drug trafficking. Further, the panel examined the hypothetical question posed to
Detective Harris in light of Summers and Odom. The panel concluded that no
plain error was committed when the trial court allowed the unchallenged hypothetical because
the question: (1) was limited to the facts in evidence; (2) did not
refer to defendant explicitly; and (3) did not ask the expert to express
an opinion about the legality of the transaction.
II.
We reaffirmed in Summers, supra,
176 N.J. 306, that Odom, supra,
116 N.J. 65, is the foundational New Jersey case on expert testimony incorporating the use
of hypothetical questions about drug possession and distribution activities. At Odom’s trial on
charges of possession of a CDS with intent to distribute, the prosecutor asked
the State’s expert to assume the following facts about a hypothetical individual (which
were consistent with the facts adduced at trial): (1) a search warrant was
executed; (2) eighteen vials of crack were found in a pillowcase in the
individual’s bed; and (3) in the apartment the police found twenty four dollars
and no drug paraphernalia. Odom, supra, 116 N.J. at 68. Based on those
facts, the State asked the expert to opine whether the individual in the
hypothetical possessed the confiscated drugs for personal use or whether he possessed the
drugs with the intent to distribute them. Id. at 69. The trial court
overruled defense counsel’s objection that the expert was not qualified to testify in
respect of the defendant’s state of mind. The expert responded “that it was
his opinion that the drugs were possessed with an intent to distribute them,”
and explained the basis for his opinion. Ibid. The jury found Odom guilty
and the Appellate Division reversed. Id. at 70. A majority of the panel
concluded that the expert’s opinion was (1) not helpful to the jury, (2)
unduly prejudicial to the defendant, and (3) tantamount to expressing a view about
the defendant’s guilt. Ibid.
This Court reversed, finding that the expert’s testimony concerning drug distribution was
“reasonably required to assist the jury” because the testimony “covered a subject that
was within the specialized knowledge of the expert, and thus beyond the understanding
of persons of average knowledge, education, and experience.” Id. at 81. Writing for
the Court, Justice Handler stated that “as long as the expert does not
express his opinion of defendant’s guilt but simply characterizes defendant’s conduct based on
the facts in evidence in light of his specialized knowledge, the opinion is
not objectionable even though it embraces ultimate issues that the jury must decide.”
Id. at 79. Thus, even though the expert at Odom’s trial expressed his
opinion “in terms of ultimate issues of fact . . . [his] opinion
did not impermissibly constitute the expression of a view that defendant was guilty
of the crime charged.” Id. at 81.
Importantly, the Court provided guidelines in Odom concerning the use of expert witness
testimony regarding the possession and distribution of illegal narcotics.
[I]n proffering the opinion of an expert in this kind of case, the
hypothetical question should be carefully phrased to refer only to the testimony and
evidence adduced
about the manner of packaging and processing for use or distribution, the significance
of various quantities and concentrations of narcotics, the roles of various drug paraphernalia,
characteristics of the drugs themselves, the import of circumstances surrounding possession, the conduct
of the possessor and the manner in which drugs may be secreted or
otherwise possessed for personal use or distrubution [sic].
Once this foundation has been laid, the expert should then be presented with
a hypothetical question through which he or she can advise the jury of
the significance of these facts on the issue of possession. Having set forth
this information in the form of a hypothetical, the expert may be asked
if, based on these assumed facts, he or she has an opinion whether
the drugs were possessed for personal use or for the purpose of distribution.
It is also essential that the jury be advised, following the presentation
of the expert’s opinion, of the basis for that opinion. The hypothetical question
should clearly indicate that it is the witness’ opinion that is being sought
and that that opinion was formed assuming the facts and circumstances adduced only
at trial. It is important that the witness, and the jury, understand that
the opinion cannot be based on facts that are not in evidence.
In addition, to the extent possible, the expert’s answer should avoid the
precise terminology of the statute defining the criminal offense and its necessary elements.
While ordinary expression and plain language should not be distorted, statutory language should
be paraphrased. Further, the defendant’s name should not be used.
[Id. at 81-82 (citation omitted).]
The Court also reminded trial courts to instruct juries on the proper weight
to be given to an expert opinion and to emphasize that the ultimate
decision about a defendant’s guilt rests solely with the jury. Id. at 82.
In Summers, supra,
176 N.J. 306, 317 (2003), we stated that there was
“no compelling reason to reexamine” our earlier decision in Odom. In Summers, the
defendant sought review of the previously settled question whether an expert witness for
the prosecution intrudes on the jury’s fact-finding role when “the expert expresse[s] the
view that facts presented in a hypothetical (modeled on identical facts adduced at
trial) were indicative of drug distribution.” Id. at 308. The hypothetical in Summers
was four paragraphs long and mirrored the exact facts of the case. Id.
at 310-11. The defendant did not object to the expert’s testimony at trial
and, therefore, the plain error standard controlled on appeal. Id. at 316.
Notwithstanding that the hypothetical hewed even more closely to the facts underlying the
defendant’s charges than the hypothetical in Odom, we upheld Summers’ conviction because the
general guidelines set out in Odom had been followed. Id. at 315-16. Although
the expert’s statement embraced ultimate issues, the hypothetical did not refer to the
defendant by name and did not ask for an opinion as to the
defendant’s guilt. Id. at 315. The trial court also “reduced the chance of
improper prejudice by instructing the jury that it could accept all, part, or
none of the [expert’s] testimony, and that it alone had to decide questions
of guilt.” Id. at 317. We concluded that no error had occurred, adding
that even if we were to assume the presence of error based on
the hypothetical’s wording, no plain error could be found from the admission of
the expert’s testimony in the context of the totality of the evidence supportive
of Summers’ guilt. Id. at 316-17.
Since Odom, the use of a hypothetical has been an accepted means by
which the specialized knowledge of an expert may be placed before the laypersons
of the jury in order to inform them about the nuanced techniques utilized
by drug peddlers who seek to shield themselves from liability by concealing or
obfuscating their drug possession and distribution activities. See, e.g., State v. Berry,
140 N.J. 280 (1995) (allowing use of hypothetical in trial on charge of possession
with intent to distribute CDS in order to educate jury on how juveniles
were being utilized in drug sale activities). That said, Odom should not be
misconstrued to signal our willingness to accept, carte blanche, the use of hypothetical
questions asked of law enforcement experts in all drug charge settings. To be
admissible, expert testimony must be about “a subject matter that is beyond the
ken of the average juror,” State v. Kelly,
97 N.J. 178, 208 (1984),
and limited to that which assists “‘the trier of fact [in] understand[ing] the
evidence or determin[ing] a fact in issue,’” Berry, supra, 140 N.J. at 291
(quoting predecessor to N.J.R.E. 702). Odom does not license the use of a
narcotics expert to tell a jury that which is obvious.
Trial courts are expected to perform a gatekeeper role in determining whether there
exists a reasonable need for an expert’s testimony, and what the parameters of
that testimony may be. Consistent with Evidence Rule 702, a trial court must
be satisfied that the expert’s knowledge and experience is reasonably required to inform
the jury on a matter that may be beyond the jurors’ ken and
will help jurors understand the evidence or determine a fact in issue. Further,
when the expert’s testimony will include an opinion on an ultimate issue, see
N.J.R.E. 704, a trial court must be satisfied that use of a hypothetical
question is reasonably required and not unduly prejudicial. The failure of a defendant
to object to expert testimony does not relieve the trial court of its
gatekeeper responsibilities in either respect.
In sum, the Court in Odom provided the State with flexibility to educate
jurors on the latest tactics designed by drug dealers to shield themselves from
responsibility for their illegal actions. Expert testimony, including opinions that embrace ultimate issues,
is permitted when the testimony has value in assisting the jury’s understanding of
facts and their significance, and when the trial court finds that that testimony
is not unduly prejudicial.
III.
A.
In the instant matter, defendant did not personally hold the drugs, did not
personally give the drugs to the officer, and did not personally accept the
payment from the officer. Those facts take this matter outside of the ken
of the average layperson in respect of the question whether defendant was an
accomplice to the distribution of crack cocaine. Detective Harris’s testimony did not explain
the plainly obvious to the jury.
We do not presume that ordinary members of the public who are called
on to serve as jurors are versed in the many ways in which
a seller of crack cocaine can act in concert with others in the
business of distributing drugs on the street. The State’s expert assisted the jury
in understanding how defendant’s statements and actions, in combination with the words and
actions of McCoy, could be indicative of drug distribution. State v. Berry,
140 N.J. 280 (1995), provides guidance as to when expert testimony concerning aspects of
drug transactions is permissible. Berry involved two consolidated cases with different defendants, Berry
and Cannon. As to defendant Berry, the Court allowed expert testimony that enabled
the jury to understand evidence in support of accomplice liability by specifically discussing,
among other practices, the use of “juveniles as ‘mules’ to transport drugs.” Id.
at 302. As to defendant Cannon, the Court reversed the trial court’s decision
barring expert testimony in answer to a hypothetical question. Id. at 303-04. The
Court recognized the value to a jury in learning about street dealers’ practice
of using a “money man” to limit their exposure to prosecution for drug
distribution. Id. at 304.
The failure of defendant to have interposed an objection to the expert’s testimony
limits our review to a search for plain error, Rule 2:10-2; such error
is not present here. This case is distinguishable from State v. Boston,
380 N.J. Super. 487 (App. Div. 2005); State v. Singleton,
326 N.J. Super. 351
(App. Div. 1999); and State v. Baskerville,
324 N.J. Super. 245 (App. Div.
1999), certif. denied,
163 N.J. 10 (2000). In each of those cases plain
error occurred in the admission of an expert’s testimony because no expert was
needed to explain the straightforward manner in which the transactions at issue took
place. Stated simply, each defendant was observed directly handing something to the alleged
purchaser and receiving what appeared to be payment in return. Because there was
no need for an expert to explain any unusual aspect of those transactions,
plain error was found to have occurred by virtue of the admission of
expert testimony on an ultimate issue that was for the jury.
In the present matter, we hold that Detective Harris’s testimony could have been
perceived as helpful to the jury in understanding the nature of the exchange,
which involved a drug purchaser (Officer Neiderman), defendant, and his confederate McCoy. Moreover,
even had there been an objection prior to the expert’s testimony and use
of a hypothetical, we would find no error in allowing the subject matter
of Harris’s testimony.
B.
The wording of the hypothetical question raises a closer question. Although it is
permissible for a State’s narcotics expert to be asked a hypothetical question through
which the jury can be informed of the significance of the facts adduced
at trial, there are parameters within which we expect the State, and the
courts as gatekeepers, to act.
Our concern about expert testimony encompassing an ultimate issue led us to state
in Odom, and to underscore in Summers, that the phrasing of a hypothetical
should not track too precisely the exact language of the criminal statute with
which a defendant has been charged. Odom, supra, 116 N.J. at 82 (stating
that “the expert’s answer should avoid the precise terminology of the statute defining
the criminal offense and its necessary elements.”). Expert testimony that recites the legal
conclusion sought in a verdict is not helpful to the jury.
See footnote 2
United States
v. Barile,
286 F.3d 749, 760 (4th Cir. 2002). In navigating between permissible
expert opinion that may embrace ultimate issues and opinion testimony that contains improper
legal conclusions, other courts addressing this subject have found it useful to consider
whether the disputed question that was posed to the expert “tracks the language
of the legal principle at issue or of the applicable statute, and .
. . whether any terms employed have specialized legal meaning,” ibid (citation omitted).
As our Court did in Odom, those appellate courts have counseled lower courts
to paraphrase legal terms. See, e.g., Torres v. County of Oakland,
758 F.2d 147, 151 (6th Cir. 1985) (noting specialized legal meaning of “discrimination” in Title
VII cases and suggesting possible rephrasing of expert’s hypothetical question)
See footnote 3
; see also Fed.
R. Evid. 704 advisory committee’s notes (offering examples of proper and improper questions
to expert about ultimate issue of mental capacity to execute will).
Defendant was charged with violating N.J.S.A. 2C:35-5(a)(1), which states that “it shall be
unlawful for any person to knowingly or purposely . . . distribute .
. . a controlled dangerous substance” and N.J.S.A. 2C:2-6, entitled “Liability for conduct
of another; complicity.” The expert specifically testified that in his opinion the hypothetical
individual who corresponded to defendant “was complicit in distributing drugs.”
The word “complicit” appears in the title and body of N.J.S.A. 2C:2-6, and
is by definition aligned with the principles of accomplice liability.
See footnote 4
The State should
have avoided its use. The phraseology of the State’s hypothetical did not adhere
to this Court’s guidance in Odom that counseled against use of precise terminology
from the criminal statutes, preferring instead paraphrased common language when possible. Notwithstanding defendant’s
valid criticism of the hypothetical’s phrasing, under the plain error standard, we agree
with the Appellate Division that the poorly phrased hypothetical did not have the
capacity to bring about an unjust result.
There was sufficient competent evidence of defendant’s statements and activities in respect of
the sale of crack cocaine to Officer Neiderman. Moreover, the hypothetical never referred
explicitly to defendant and was limited to facts presented at trial. The trial
court instructed the jury on the proper weight to be given to an
expert’s opinion, and reminded the jurors that the ultimate decision about defendant’s guilt
was solely their determination. Finally, we note that the trial court gave an
appropriate instruction on accomplice liability that permitted the jury to make that ultimate
determination aided by a clear and correct statement of the law. In view
of the entirety of this trial, we perceive no miscarriage of justice. Accordingly,
we find no plain error. In the future, trial courts should be sensitive
to such hypotheticals and, as part of the trial court’s gatekeeping function, should
see to it that, when possible, legal terminology is paraphrased.
IV.
In conclusion, we affirm defendant’s conviction. This matter cannot be completely disposed of,
however, because we must reverse on sentencing. Defendant received a mandatory extended term
on Count 5 and was sentenced to nine years of incarceration. Because defendant’s
sentence on the extended term was set above the presumptive sentence applicable at
the time to the extended-term range, the matter must be remanded to permit
re-sentencing. State v. Natale,
184 N.J. 458 (2005).
The judgment of the Appellate Division is affirmed in part, and reversed in
part. The cause is remanded for further proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES ZAZZALI, WALLACE, and RIVERA-SOTO join in JUSTICE LaVECCHIA’s
opinion. JUSTICE ALBIN filed a separate, dissenting opinion in which JUSTICE LONG joins.
SUPREME COURT OF NEW JERSEY
A-
114 September Term 2004
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY NESBITT,
Defendant-Appellant.
JUSTICE ALBIN, dissenting
In this case, an experienced police detective, qualified by the court as an
expert in the field of narcotics distribution, offered his opinion that defendant was
an accomplice to the crime of possession with intent to distribute a controlled
dangerous substance. Cloaked with the mantle of authority, the police expert delivered to
the jury his own verdict that defendant was guilty of the crime charged.
Such testimony coming from an authority claiming to have superior knowledge and experience
must have had a profound impact on the thinking of the jury. See
United States v. Fosher,
590 F.2d 381, 383 (1st Cir. 1979) (discussing “aura
of special reliability and trustworthiness” surrounding expert testimony); State v. Wheeler,
416 So. 2d 78, 82 (La. 1982) (explaining that risk of prejudice to defendant is
exacerbated “when the witness expressing the opinion is one, such as a police
officer, in whom jurors and the public repose great confidence and trust”). I
cannot agree that such testimony did not have the capacity to cause an
unjust result. It was for the jury, not a law enforcement expert, to
make the credibility and factual calls that decided guilt or innocence. For that
reason, I must part from the majority, which finds Detective Harris’s testimony harmless
error. I therefore dissent.
Although clearly prejudicial, Detective Harris’s testimony did not draw an objection from defense
counsel. Ante at ___ (slip op. at 2). Such a procedural default ordinarily
would weigh heavily against defendant, see R. 1:7-2, R. 2:10-2, but in these
circumstances I find counsel’s lapse perfectly understandable. The precedents of this Court have
signaled acceptance of the almost unlimited use of expert testimony to supplant the
common knowledge of jurors in drug cases.
The Court has relied on legal fictions to justify the expanded use of
police expert testimony in drug cases that would not fly in other cases.
In our leading decisions on the subject, we have held that a police
narcotics expert cannot express an opinion that a defendant is guilty of possession
of drugs with intent to distribute, but can opine that a defendant possessed
the drugs with intent to distribute. State v. Summers,
176 N.J. 306, 314-16
(2003); State v. Odom,
116 N.J. 65, 78-81 (1989). There is no semantic
difference between those two expert opinions, except by the commandments of this Court.
See Summers, supra, 176 N.J. at 318 (Albin, J., dissenting). In addition, the
majority in this case states that “the phrasing of a hypothetical should not
track too precisely the exact language of the criminal statute with which a
defendant has been charged.” Ante at ___ (slip op. at 17) (citing Odom,
supra, 116 N.J. at 82). However, the majority still would permit a police
expert to testify that, in his opinion, the defendant possessed drugs with intent
to distribute when that defendant is charged with possession with intent to distribute.
See ante at ___ (slip op. at 8-14).
I do not question the need for expert testimony on arcane subjects that
would enlighten the jury. An average juror will not know the meaning of
code language used by drug distributors or the importance to be attached to
the packaging, quantity, and quality of drugs. An expert could edify jurors concerning
the customary use of scales and other drug paraphernalia by drug traffickers, as
well as the methods used by drug dealers to ply their trade. See
Summers, supra, 176 N.J. at 322-23 (Albin, J., dissenting). In those instances, the
specialized knowledge and training of the expert is of assistance to the jury
in understanding the evidence before it. See N.J.R.E. 702 (“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 education, may testify thereto in the form
of an opinion or otherwise.”).
However, the jury is capable of making simple deductions from straightforward facts based
on commonsense and ordinary life experience. After an expert explains the significance of
the methods and means of drug dealing -- matters outside common knowledge --
jurors are well equipped to answer questions such as whether the defendant possessed
drugs with intent to distribute, or whether the defendant was an accomplice in
a drug transaction, without further expert guidance. This is not rocket science. As
the majority notes, jurors do not need experts to explain the obvious. Ante
at ___, ___ (slip op. at 3, 13). Jurors have the capacity to
reason through to correct conclusions, as they do in other cases, including highly
complex ones. They can do so in drug cases as well. I continue
to adhere to my dissent in Summers. See 176 N.J. at 318-24; see
also Thomas M. Fleming, J.D., Annotation, Admissibility, in Criminal Prosecution, of Expert Opinion
Allegedly Stating Whether Drugs Were Possessed with Intent to Distribute -- State Cases,
83 A.L.R.4th 629 (2005) (showing that substantial minority of jurisdictions bars expert opinion
testimony that defendant possessed drugs with intent to distribute).
I am confident that the common wisdom of ordinary jurors will not allow
otherwise guilty drug offenders to escape the net of justice. It is not
necessary to strain the operation of our evidence rules to convict drug traffickers.
There is consolation to be found in the majority’s conclusion that the police
expert’s testimony here went too far. Ante at ___ (slip op. at 19).
In the best light, the message from the majority opinion will be that
there are limits to the use of expert opinion testimony in drug cases.
That would be a positive step forward in our jurisprudence.
However, I would find that the admission of Detective Harris’s testimony was plain
error. In failing to object to Detective Harris’s testimony, defense counsel may have
believed -- based on this Court’s case law -- that there were few
restrictions limiting the use of police expert testimony in drug cases.
Because I cannot agree that this defendant received a fair trial, I would
reverse the Appellate Division. I therefore dissent.
Justice Long joins in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-114 SEPTEMBER TERM 2004
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY NESBITT,
Defendant-Appellant.
DECIDED January 12, 2006
Chief Justice Poritz PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Albin
CHECKLIST
Footnote: 1
The court found the following aggravating factors under N.J.S.A. 2C:44-1a: (3) the
risk that the defendant will commit another offense; (6) the extent of defendant’s
prior criminal record and the seriousness of the offenses of which he has
been convicted; and (9) the need for deterring the defendant and others from
violating the law.
Footnote: 2
The Fourth Circuit reasoned that
[e]xpert testimony that merely states a legal conclusion is less likely to assist
the jury in its determination. See Woods v. Lecureux,
110 F.3d 1215, 1220
(6th Cir. 1997) (“It is, therefore, apparent that testimony offering nothing more than
a legal conclusion—-i.e., testimony that does little more than tell the jury what
result to reach—-is properly excluded under the Rules.”); Weinstein’s Federal Evidence § 704.04[2][a] (2d
ed. 2001) (“The most common reason for excluding opinion testimony that gives legal
conclusion is lack of helpfulness . . . . The testimony supplies the
jury with no information other than the witness’s view of how the verdict
should read.”).
[United States v. Barile,
286 F.3d 749, 760 (4th Cir. 2002)(footnote omitted).]
Footnote: 3
The expert in Torres was asked “whether ‘Torres had been discriminated against
because of her national origin.’” Torres, supra, 758 F.
2d at 151. The court
“emphasize[d] that a more carefully phrased question could have elicited similar information and
avoided the problem of testimony containing a legal conclusion.” Ibid. The court noted
that “defendants could have asked [the expert] whether she believed Torres’ national origin
‘motivated’ the hiring decision.” Ibid. The court explained that the term “motivated” would
“directly address the factual issue of [Torres’ supervisor’s] intent without implicating any legal
terminology.” Ibid (citation omitted).
Footnote: 4
“Complicity” is defined as: “an association or participation in or as if
in guilt,” Webster’s Third New International Dictionary 465 (1971); “[i]nvolvement as an accomplice
in a crime or wrongdoing,” Webster’s II New College Dictionary 230 (1995); “[t]he
act or state of being an accomplice,” Funk and Wagnalls New Comprehensive International
Dictionary of the English Language 268 (1973 Encyclopedic Edition); “[a]ssociation or participation in
a criminal act; the act or state of being an accomplice,” Black’s Law
Dictionary 279 (7th ed. 1999).