On April 17, 2012, the Appellate Division ruled that an expert opinion related to the possession of cocaine by the defendant with intent to distribute cocaine was improper because it was expressed in a manner directly commenting on the defendant’s guilt. Generally, the opinion of an expert in a drug distribution case should be expressed in hypothetical terms. However, in Jones, the expert specifically used the defendant by name in his testimony and expressed a direct opinion as to defendant’s obvious guilt. The Appellate Division found this to be plain error and vacated defendant’s conviction. This case provides an excellent review of the parameters for the use of expert testimony in a criminal drug distribution prosecution.
- In 2010, Defendant was apprehended by a police officer who informed Defendant that he had a search warrant authorizing the search of his person.
- Defendant was searched at the Salem police station. The police officer located ninety-nine bags of cocaine and four oxicodone pills in defendant’s groin area.
- Defendant appealed from his conviction on charges of possession of cocaine with intent to distribute and 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.
- Defendant asserted that the oxycodone testimony established nothing other than the criminal propensity that N.J.R.E. 404(b) forbids.
- The appellate division held 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 expert improperly discussed the four oxycodone tablets found in defendant’s possession, because the prosecution may not introduce evidence of other crimes of the accused unless the evidence is introduced for some other purpose rather than to suggest that defendant is a person of criminal character;
- The oxycodone evidence prejudiced the defendant;
- The limiting instruction that the judge gave did nothing to eradicate the prejudice.
- 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.
- The appellate division reversed defendant’s conviction and remand for a new trial, as these errors were clearly capable of producing an unjust result.
At trial, the State called Lieutenant Haslett of the Salem County Prosecutor’s Office as an expert. 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.
Several factors supported the expert’s conclusion that defendant possessed the cocaine with the intention of selling it:
1) The amount of cocaine was equal in each of the 99 bags;
2) There were no pipes, spoons, straws, or other paraphernalia indicative of use;
3) the exact location where defendant was arrested is “a well-known open-air drug market;
4) the location of the narcotics on defendant’s person (his groin area);
a. The expert explained that generally when individuals are arrested who have purchased cocaine for their own personal use, they have [the cocaine] in a readily accessible area because obviously they want to use [it],” whereas defendant “was found with narcotics highly secreted on his body.”
5) the fact that defendant had hidden the cocaine in his groin area was typical of a person who intends to sell the cocaine, not a person who possesses it for personal use. The expert testified that a dealer will want to hide the narcotics [because] if [he is] arrested or stopped on the street, and for whatever reason patted down, that large amount of narcotics if it was in his pocket.
6) The defendant’s possession of the four oxycodone tablets was indicative of possession the cocaine with the intention of selling it, because dealers of controlled substances usually possess multiple types of substances.
- The judge gave the jury a limiting instruction stating that they can only use the oxycodone evidence in their assessment as to whether defendant possessed the cocaine with the intent to distribute.
- The jury found the defendant guilty of possession with intent to distribute.
- The defendant was sentenced to a 13-year prison term.
- On appeal, defendant asserted 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.
- Defendant asserted that the oxycodone testimony established nothing other than the criminal propensity that N.J.R.E. 404(b) forbids.
- The court relied on several New Jersey cases which stated that where an expert’s testimony directly opines on defendant’s guilt, it crosses the line of permissibility. The court has established a framework for expert opinions by requiring a use of a hypothetical question that recites the relevant facts as the basis for the expert’s opinion. State v. Odom, 116 N.J. 65, 79-83 (1989).
The following factors show a violation of the framework established in Odom.
1) The state did not show any evidence that defendant was observed making a sale of narcotics. Instead, the state relied entirely on the jury’s willingness to accept its expert’s opinion that defendant possessed cocaine with the intention of selling it.
2) The prosecutor did not pose her questions to the expert in a hypothetical format.
3) The expert used the precise terminology of the statute defining the criminal offense and its necessary elements.
4) The expert repeatedly used the defendant’s name, referring to him as “Mr. Jones,” rather than speaking in hypothetical terms.
5) The expert expressed a direct opinion as to defendant’s guilt , commenting the cocaine was possessed not for person use, but with the intention to distribute.
- During the expert’s testimony, defendant did not raise an objection and the court held that the plain error rule applied.
- The court held that the error was clearly capable of producing an unjust result and reversed on the ground of the plain error rule.
- The appellate division overturned the defendant’s conviction.