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).
State of New Jersey v. Rahmann Reeds (A-103-07)
Argued November 3, 2008 -- Decided January 22, 2009
LaVECCHIA, J., writing for a majority of the Court.
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.