State v. Scott M. Cain(074124) , 224 N.J. 410 ( 2016 )

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
interest of brevity, portions of any opinion may not have been summarized.)
State v. Scott M. Cain (A-8-14) (074124)
[NOTE: This is a companion case to State v. Yasin Simms (A-14-14)(074209), also filed today.]
Argued October 26, 2015 – Decided March 15, 2016
ALBIN, J., writing for a unanimous Court.
In this appeal arising from a prosecution for offenses including possession with intent to distribute heroin
and cocaine, the Court revisits the decision in State v. Odom, 116 N.J. 65 (1989), which held that an expert witness
in a drug-distribution case could testify to the ultimate issue of fact, and therefore opine whether a defendant
possessed drugs with the intent to distribute. The Court now determines that such ultimate-issue expert testimony is
not appropriate in a drug-distribution case.
On July 16, 2008, detectives from the Hackensack Police Department were conducting a surveillance of the
house where defendant Scott M. Cain lived with his mother. The officers observed a hand-to-hand exchange
between defendant and an individual on the porch. The officers, who were in an unmarked vehicle, followed the
individual. When the individual noticed that he was being followed, he dropped an object on the ground; the
officers retrieved the dropped item, which was crack cocaine. On July 28, 2008, an officer observed a hand-to-hand
transaction between defendant and another individual in front of defendant’s house. Through further investigation,
the officers recovered two glassine envelopes containing heroin. Both individuals testified that they purchased the
drugs from defendant. The officers executed a search warrant at defendant’s house and seized quantities of crack
cocaine, powdered cocaine, and heroin, as well as a digital scale and Ziploc baggies.
At trial, a detective from the Bergen County Prosecutor’s Office was qualified as an expert witness in the
area of drug use and drug distribution. The prosecutor posed a hypothetical question to the detective, which
mirrored nearly all of the evidence against defendant that the State presented at trial, and then asked whether the
witness had an opinion as to whether defendant possessed the narcotics for personal use or with the intent to sell.
The detective responded that, in his opinion, the drugs were possessed with the intent to distribute. He also testified
about the value and packaging of the drugs, their location, and other indicia of drug distribution. The jury found
defendant guilty of the drug offenses, including possession with intent to distribute cocaine and heroin. The trial
court granted the State’s application for an extended-term sentence, and sentenced defendant to a sixteen-year term
of imprisonment with an eight-year period of parole ineligibility for second-degree possession of cocaine with intent
to distribute.
Defendant appealed. In an unpublished opinion, the Appellate Division affirmed defendant’s convictions,
but reversed the sentence and remanded for a new sentencing hearing. The panel found that the trial court did not
commit plain error by allowing the use of a hypothetical question to the expert witness. The panel held that the
expert did not improperly express an opinion regarding defendant’s guilt, but merely characterized defendant’s
conduct based on the record, and therefore did not intrude into the jury’s exclusive province as trier of fact. The
panel also rejected defendant’s argument that the prosecutor’s repetitive references to the search warrant constituted
plain error. This Court granted defendant’s petition for certification. 219 N.J. 631 (2014).
HELD: The testimony of the law-enforcement drug expert expressing an opinion on defendant’s state of mind,
more particularly, whether he intended to distribute drugs, exceeded appropriate bounds and encroached on the
jury’s exclusive domain as finder of fact. In future drug cases, an expert witness may not opine on the defendant’s
state of mind. Whether a defendant possessed a controlled dangerous substance with the intent to distribute is an
ultimate issue of fact to be decided by the jury. Defendant’s conviction is reversed and the matter is remanded for a
new trial.
1. Under N.J.R.E. 702, expert testimony is permissible if scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a contested fact. Expert testimony, otherwise
admissible, is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. An expert’s
opinion is not admissible unless the testimony concerns a subject matter beyond the ken of an average juror. Expert
testimony is permissible only if it will assist the trier of fact to understand the evidence or to determine a fact in
issue, and may be excluded if its probative value is substantially outweighed by the risk of undue prejudice. (pp. 12-
13)
2. The seminal case on the scope of expert testimony in drug-distribution cases is State v. Odom, which upheld
defendant’s conviction for possession of cocaine with the intent to distribute based, in part, on a police detective’s
expert testimony that the defendant possessed crack cocaine with the intent to distribute. However, Odom stated
seemingly irreconcilable principles by permitting expert testimony regarding defendant’s culpable state of mind --
whether a defendant possessed drugs with the intent to distribute -- while also stating that testimony from the same
expert which expresses a direct opinion on defendant’s guilt on the crime charged is improper. In subsequent
decisions applying Odom, the Court has attempted to curtail the misuse of expert testimony that has intruded into the
jury’s exclusive role as ultimate fact-finder, and reiterate that an expert’s testimony may not recite the legal
conclusion sought in a verdict. (pp. 1-2, 13-20)
3. Expert testimony can assist jurors to understand matters such as the indicia of a drug distribution operation, how
drug traffickers package and process drugs for distribution, the function of drug paraphernalia, and the roles played
by individuals in street-level drug transactions. An expert should not express an opinion on matters that fall within
the ken of the average juror or offer an opinion about the defendant’s guilt, and should not be used to bolster a fact
witness’s testimony about straightforward but disputed facts. Once the jury is informed about the peculiar
characteristics of a drug-distribution scheme, the jurors are well-equipped to make the final determination of
whether a defendant had the requisite mental state to commit a drug offense; that decision does not require special
expertise. (pp. 2, 20-21)
4. Despite Odom’s cautionary words, a hypothetical question that elicits a response from the expert opining that the
defendant possessed drugs with the intent to distribute not only improperly mimics the statutory language, but also
implicitly expresses the expert’s opinion that the defendant is guilty. In drug cases, such ultimate-issue testimony
may be viewed as an expert’s quasi-pronouncement of guilt that intrudes on the exclusive domain of the jury, and
may impermissibly bolster the testimony of fact witnesses. The Court concludes that an expert is no better qualified
than a juror to determine the defendant’s state of mind. (pp. 22-23)
5. The Court also concludes that hypothetical questions should be used in drug cases only when necessary. When
the evidence is straightforward and the facts are undisputed, there is no need to resort to a hypothetical. However, if
disputed facts are part of a question, the expert necessarily will be asked to assume the truth of certain facts through
a hypothetical question. The hypothetical question asked of the law-enforcement drug expert was an improper
attempt to elicit an affirmation of defendant’s guilt by an expert, unfairly bolstered the prosecution’s case, and
intruded into the exclusive domain of the jury by providing an opinion on the ultimate issue of fact. The probative
value of the detective’s testimony on this point was substantially outweighed by its prejudicial impact. The taint of
the hypothetical and the response had the capacity to infect all of the charges, and was clearly capable of producing
an unjust result. (pp. 26-31)
6. The repeated references by the prosecutor to the search warrant for defendant’s home issued by the court went
well beyond what was necessary to inform the jury that the officers were acting with lawful authority. These
repeated references had little probative value, but had the capacity to lead the jury to draw an impermissible
inference that the court issuing the warrant found the State’s evidence credible. However, in light of the ruling
reversing the conviction based on the opinion testimony by the drug expert, the Court does not determine whether
these comments constitute plain error. (pp. 31-35)
The judgment of the Appellate Division is REVERSED, defendant’s drug convictions are VACATED,
and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, and SOLOMON, and
JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’S opinion. JUSTICE FERNANDEZ-VINA
did not participate.
2
SUPREME COURT OF NEW JERSEY
A-8 September Term 2014
074124
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SCOTT M. CAIN,
Defendant-Appellant.
Argued October 26, 2015 – Decided March 15, 2016
On certification to the Superior Court,
Appellate Division.
Brian F. Plunkett, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).
Elizabeth R. Rebein, Assistant Prosecutor,
argued the cause for respondent (John L.
Molinelli, Bergen County Prosecutor,
attorney).
Steven A. Yomtov, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney).
JUSTICE ALBIN delivered the opinion of the Court.
In State v. Odom, 116 N.J. 65, 80-81 (1989), we held that
an expert witness in a drug-distribution case could testify to
the ultimate issue of fact -- whether a defendant possessed
drugs with the intent to distribute. We cautioned, however,
1
that the expert’s testimony should not amount to a pronouncement
of guilt. Allowing an expert to offer an opinion on a
defendant’s guilty state of mind in a drug case while
prohibiting the same expert from offering an opinion on
defendant’s guilt are not easily reconcilable principles. In a
series of cases since Odom, we have attempted to curtail the
misuse of expert testimony that has intruded into the jury’s
exclusive role as finder of fact. Odom’s approval of expert
testimony on the state of mind of a defendant in drug cases also
has spawned lengthy and intricate hypothetical questions that
have the appearance of a prosecutorial summation. We therefore
must revisit whether such ultimate-issue expert testimony is
appropriate in a drug-distribution case.
Expert testimony in many drug-distribution cases provides
necessary insight into matters that are not commonly understood
by the average juror, such as the significance of drug packaging
and weight, scales and cutting agents, stash sites, the role of
confederates, and other activities consistent with drug
trafficking. However, once the jury is informed about the
peculiar characteristics of a drug-distribution scheme, the
average juror is well-equipped to make the final determination
whether a defendant possessed the requisite mental state to
commit a drug offense. That determination does not require
special expertise; it requires the sound judgment of jurors, who
2
rely on their life experiences, common sense, and collective
reasoning in rendering a verdict.
In the case before us, the prosecutor posed a hypothetical
question to a law-enforcement drug expert. The question
extended onto three trial transcript pages and elicited the
expert’s opinion that defendant intended to distribute drugs.
Defendant was found guilty of committing a number of drug
offenses. The Appellate Division affirmed those convictions.
We reverse and hold that the expert’s testimony --
following the lengthy and intricate hypothetical question --
exceeded appropriate bounds and encroached on the jury’s
exclusive domain as finder of fact. The hypothetical not only
resembled a mid-trial summation encapsulating every minor detail
of the case, but also permitted the expert to opine on
defendant’s state of mind -- whether he intended to distribute
drugs. Expert testimony opining on that ultimate issue of fact
was not necessary to assist the jury. The jurors were perfectly
capable of deciding that issue on their own.
We conclude that the use of the expert testimony in this
case had the clear capacity to cause an unjust result. We also
note that any probative value to the prosecutor’s repetitive
references to a judge-issued search warrant for defendant’s home
was outweighed by its prejudicial impact. We therefore vacate
defendant’s drug convictions and remand for a new trial.
3
I.
Defendant Scott M. Cain was charged in a seven-count Bergen
County indictment with third-degree distribution of cocaine,
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); third-degree
distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A.
2C:35-5(b)(3); first-degree maintenance of a facility for the
manufacture of controlled dangerous substances, N.J.S.A. 2C:35-
4; second-degree possession of cocaine with the intent to
distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3);
third-degree possession of heroin with the intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); third-degree
possession of cocaine, N.J.S.A. 2C:35-10(a)(1); and third-degree
possession of heroin, N.J.S.A. 2C:35-10(a)(1). The charges
arose from defendant’s alleged involvement in two separate drug
sales and the storing of drugs in the house where he resided.
During a four-day jury trial, the State elicited the
following evidence in support of its case.
On July 16, 2008, Detective Demetrius Carroll and Officer
James Smith of the Hackensack Police Department were conducting
a surveillance of 369 DeWolf Place in Hackensack, a house where
defendant lived with his mother. That day, the officers
observed a hand-to-hand exchange between defendant and Donald
Hinson on the porch of the house. The officers followed Hinson
in an unmarked vehicle. When Hinson noticed that he was being
4
followed, he dropped an object on the ground. The officers
stopped and arrested Hinson, and recovered the dropped item --
.20 grams of crack cocaine. Hinson testified at trial that
defendant sold him the drugs.
On July 28, 2008, while conducting surveillance of
defendant’s residence, Officer Smith observed defendant and
Jeffrey Beckham engage in a hand-to-hand transaction in front of
the house. Officer Smith and a fellow officer later stopped
Beckham to conduct a “field investigation.” The officers first
questioned Beckham and then seized a cigarette box and plastic
bag that he was holding. The officers discovered two glassine
envelopes containing .02 grams of heroin. Beckham was arrested,
and later testified at trial that he purchased the drugs from
defendant.
On August 6, 2008, officers of the Hackensack Police
Department executed a warrant to search 369 DeWolf Place.
Present in the house at the time were defendant’s mother,
defendant’s girlfriend, and the girlfriend’s young son. During
the search, the police seized: (1) 3 grams of crack cocaine
from defendant’s bedroom dresser drawer; (2) a bag of
approximately 15 grams of powdered cocaine, 100 purple Ziploc
baggies, and a digital scale from defendant’s bedroom closet;
and (3) 10 glassine envelopes with a red logo containing heroin
from a china hutch in the foyer.
5
At trial, Detective Brett Rothenberger of the Bergen County
Prosecutor’s Office was qualified as an expert witness in the
area of drug use and drug distribution. The prosecutor posed a
hypothetical question, covering three transcript pages,
mirroring nearly all of the evidence presented by the State
against defendant, including defendant’s alleged drug
transactions with Hinson and Beckham. The following question
was tacked on to the end of the lengthy “hypothetical” facts:
“[D]o you have an opinion as to whether those narcotics were
possessed for personal use or possessed with the idea to sell?”
Detective Rothenberger responded that, in his opinion, the drugs
were possessed with the intent to distribute. The form of the
hypothetical question left no doubt that the subject was
defendant. In addition to opining about defendant’s state of
mind, Detective Rothenberger testified about the value and
packaging of the drugs, the location of the drugs, and other
indicia consistent with drug distribution.
Throughout the course of the trial, the prosecutor
repeatedly referenced that the search of defendant’s residence
was authorized by a warrant issued by the court. In his opening
statement, the prosecutor told the jury that “[a] search warrant
was then obtained, authorized by a Superior Court judge.” The
prosecutor returned to that theme, stating that information
about the drug transactions with Hinson and Beckham was included
6
in “an affidavit for a search warrant” and that “[a] search
warrant [was] brought to a judge” because “[b]efore you can go
into somebody’s home under those circumstances, you need the
authority of a Superior Court judge.” In the course of
questioning witnesses, the prosecutor repeatedly elicited that a
warrant was secured to search defendant’s residence and
occasionally elicited that a Superior Court judge issued the
warrant.
The jury found defendant guilty on all counts except the
charge of maintaining a facility for the manufacture of
controlled dangerous substances. The trial court granted the
State’s application for an extended-term sentence and imposed a
sixteen-year term of imprisonment with an eight-year period of
parole ineligibility for second-degree possession of cocaine
with the intent to distribute. The court imposed concurrent
prison terms for three other convictions: four years for third-
degree distribution of cocaine, four years for third-degree
distribution of heroin, and four years for third-degree
possession of heroin with the intent to distribute. The
remaining charges were merged into the second-degree intent-to-
distribute conviction. Last, the court ordered that defendant
pay all applicable penalties and fines.
Defendant appealed.
II.
7
In an unpublished opinion, the Appellate Division affirmed
defendant’s convictions, but reversed the sentence because the
record did not support the trial court’s finding of aggravating
factor number two, N.J.S.A. 2C:44-1(a)(2) (considering “gravity
and seriousness of harm inflicted on the victim”). The panel
remanded for a new sentencing hearing.
The panel found that the trial court did not commit plain
error by allowing the use of a hypothetical question. According
to the panel, the expert did not express an opinion regarding
defendant’s guilt, but merely characterized defendant’s conduct
based on the record, and therefore did not intrude into the
jury’s exclusive province as trier of fact.
The panel also rejected defendant’s argument that the
prosecutor’s repetitive references to the search warrant
constituted plain error. The panel believed that references to
the warrant explained that the police were authorized to search
defendant’s home and did not suggest that the judge who issued
the warrant acted on evidence not introduced at trial.
We granted defendant’s petition for certification. State
v. Cain, 219 N.J. 631 (2014). In addition, we requested that
the parties “file supplemental briefs addressing the rationale
and need for hypothetical questions in the trial of a drug case,
and the circumstances under which such questions may be used.”
We also granted the Attorney General leave to participate as
8
amicus curiae.
III.
A.
Defendant argues that because the hypothetical packed all
of the prosecutor’s evidence into a single question, the expert
was allowed to give his “stamp of approval” to the State’s case
and to express a belief, inferentially, that defendant was
guilty of the crime. Defendant contends that because the
hypothetical included the assumption that defendant had sold
drugs to two buyers, the question began with the premise that
defendant was a drug dealer. He asserts that the expert’s
testimony should have been limited to assisting the jury’s
understanding of “the unfamiliar practices of the drug trade,”
such as “the significance of packaging, quantities, values, the
properties of illegal drugs, the presence or lack of use
paraphernalia,” and other indicia of drug trafficking. He also
asserts that the propriety of hypothetical questions “should be
resolved at a pre-trial hearing” and that expert testimony whose
prejudice exceeds its probative value should be excluded under
N.J.R.E. 403.
Additionally, defendant submits that the prosecutor’s
repeated and gratuitous references to the police possessing a
“court authorized warrant” to search defendant’s residence
“communicated to the jury that a ‘Superior Court Judge’ ‘in [the
9
same] building’ had already heard the same evidence” and
determined that the State’s evidence “was credible and
reliable.” Defendant concludes that he was denied a fair trial
because he “had a right to have the jurors decide his guilt or
innocence untainted by the knowledge that a judge thought that
the evidence was sufficient to justify a search of [his
residence].”
B.
The State urges that we uphold defendant’s convictions and
reaffirm our rulings in Odom and successor cases that
“hypothetical questions are an appropriate tool . . . when
presenting the testimony of a drug distribution expert in cases
where a defendant’s mental state is at issue.” The State
contends that the hypothetical in this case conformed to case
law because “it focused on the issue of the intent to
distribute,” “did not ask the expert to opine [on] who possessed
the CDS,” and “appropriately factored into the hypothetical that
two prior distributions occurred.” Additionally, the State
argues that holding a pre-trial hearing to determine the
propriety of a hypothetical question is not practicable because
the facts to be incorporated into the question depend on trial
testimony. The State suggests that counsel should object “to
the hypothetical question when it is posed.”
The State submits that references to the search warrant
10
during trial were necessary to explain that the police had legal
authority to enter defendant’s home. The State claims that
testimony about the warrant did not imply “that a judge had
already determined guilt” and that “any fleeting references” to
the search warrant did not have the capacity to deny defendant a
fair trial.
C.
The Attorney General, appearing as amicus curiae, submits
that expert testimony elicited by properly posed “hypotheticals
still play[s] an important role in drug prosecutions.” The
Attorney General notes that, since Odom, “well-established
principles have emerged governing the use of hypotheticals” and
that, in more recent cases, “explicit limitations and
restrictions have been placed to curb potential abuse.” The
Attorney General states that hypotheticals remain “a critical
tool for the jury in understanding the evidence at trial” and
that “[n]o special justification has been presented to
eliminate” their use in drug cases. The Attorney General is
confident that “any problems that have arisen in the past
concerning this area of our jurisprudence will be remedied” by
the recent guidance given by this Court.
IV.
A.
Defendant was charged with possession with intent to
11
distribute the drugs seized from his home. Whether defendant
had the requisite state of mind to commit the offense -- the
intent to distribute -- was an ultimate issue of fact to be
decided by the jury.
The parties do not dispute that expert testimony is
necessary to assist the jury in understanding the significance
of packaging, weight, and concentration of drugs; drug
paraphernalia; the manner in which drugs are concealed; and the
peculiar characteristics of a drug-trafficking operation. The
issue is whether, after the jury is informed about the esoteric
features of a drug-distribution scheme, the jury needs the
expert’s assistance in determining the defendant’s state of mind
or whether the jurors are capable of rendering a decision on
that ultimate issue of fact by using their common sense and
experience to draw rational inferences from the evidence.
The beginning point of our inquiry must be our rules of
evidence. Under N.J.R.E. 702, expert testimony is permissible
“[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.” (Emphasis added). Expert testimony
“otherwise admissible is not objectionable because it embraces
an ultimate issue to be decided by the trier of fact.” N.J.R.E.
704 (emphasis added). Importantly, however, an expert’s opinion
is not admissible unless the “testimony concerns a subject
12
matter beyond the ken of an average juror.” State v. Reeds, 197
N.J. 280, 290 (2009) (citing State v. Jenewicz, 193 N.J. 440,
454 (2008)). Expert testimony is not necessary to tell the jury
the “obvious.” State v. Nesbitt, 185 N.J. 504, 514 (2006).
Thus, expert testimony on the ultimate issue of whether a
defendant intended to distribute drugs is permissible only if it
“will assist the trier of fact to understand the evidence or to
determine a fact in issue,” N.J.R.E. 702, and “may be excluded
if its probative value is substantially outweighed by the risk
of . . . undue prejudice,” N.J.R.E. 403; State v. Sowell, 213
N.J. 89, 100 (2013).
If the witness possesses the requisite criteria to qualify
as an expert, he may testify “in the form of an opinion.”
N.J.R.E. 702. That opinion may be elicited by questions, which
“need not be hypothetical in form unless in the judge’s
discretion it is so required.” N.J.R.E. 705.
B.
The seminal case on the scope of expert testimony in drug-
distribution cases is State v. Odom, 116 N.J. 65 (1989). In
Odom, this Court upheld the defendant’s conviction of possession
of cocaine with the intent to distribute based, in part, on a
police detective’s expert testimony that the defendant possessed
eighteen vials of crack with the intent to distribute. Id. at
78-79. In doing so, the Court stated “that as long as the
13
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.
In reaching that conclusion, Odom set forth seemingly
irreconcilable principles that have bedeviled both practitioners
and courts. It stated, on the one hand, that “an opinion
[embracing ultimate issues] is permissible although it is
expressed in terms that parallel the language of the statutory
offense when that language also constitutes the ordinary
parlance,” id. at 79, and on the other hand, that “to the extent
possible, the expert’s answer should avoid the precise
terminology of the statute defining the criminal offense and its
necessary elements,” id. at 82. Although the Court in Odom
concluded that the expert’s opinion -- that the defendant
possessed cocaine with intent to distribute (the elements
necessary for conviction) -- was properly admitted, id. at 81,
it also concluded “an expert’s testimony that expresses a direct
opinion that defendant is guilty of the crime charged is wholly
improper,” id. at 77.
The Odom Court also advised that the expert should be posed
a hypothetical question, incorporating evidence adduced at
trial, and that “the defendant’s name should not be used.” Id.14
at 82. The Court maintained that an expert could explain to the
jury the significance of the facts through carefully phrased
hypothetical questions and then “the trial court should
carefully instruct the jury on the weight to be accorded to and
the assessment of expert opinion testimony.” Ibid.State v. Summers, 176 N.J. 306, 312-17 (2003), involved the
application of the principles of Odom. In that case, after the
police observed the defendant engage in a suspected drug sale
with a buyer, both were taken into custody. Id. at 309. The
police caught the buyer placing four baggies of cocaine in his
mouth and recovered from the defendant a cigarette pack
containing fifty small baggies of cocaine -- identical to those
found on the buyer -- along with $262 and a pager. Id. at 309-
10. At trial, the prosecutor asked a law enforcement drug
expert a hypothetical question, which contained details about
the surveillance and the items recovered from the suspects. Id.
at 310-11. The hypothetical designated the buyer as S-1 and the
defendant as S-2. Id. at 311. The prosecutor then asked the
expert: “Do you have an opinion as to whether S-2 in this
hypothetical . . . possessed those drugs for his own use or for
distribution?” Ibid. (alteration in original). The expert
expressed the view that S-2 possessed the drugs for
distribution. Ibid. The defendant was found guilty of multiple
drug offenses, including possession, possession with the intent
15
to distribute, and distribution of a controlled dangerous
substance. Ibid.In upholding the defendant’s conviction, the Court
indicated that although the expert testified that the defendant
possessed the drugs with the intent to distribute, the expert
did not cross the line by explicitly stating that “the defendant
is guilty of the crime charged.” Id. at 314-15 (quoting Odom,
supra, 116 N.J. at 80).
Summers simply followed the directives of Odom. The
prosecutor substituted a symbol, S-2, for the name of the
defendant, as Odom proposed. But the use of the symbol S-2 was
clearly understood as referring to the defendant, otherwise the
hypothetical would have been meaningless. Moreover, Summers,
like Odom, did not explain the distinction between a law
enforcement drug expert opining that a defendant possessed the
drugs with the intent to distribute and the expert opining that
the defendant is guilty of the offense of possession of drugs
with the intent to distribute.
After Summers, in a series of cases, this Court slowly
retreated from some of the broader implications of Odom. In
State v. Nesbitt, 185 N.J. 504, 507-10, 518 (2006), the Court
disapproved of a hypothetical question that led the police
expert to answer that B (the hypothetical’s substitute for the
defendant’s name) “was complicit in distributing drugs.” In
16
that case, at the direction of the defendant, an accomplice
handed an undercover police officer crack cocaine in exchange
for ten dollars. Id. at 508. The defendant was convicted of
distribution of a controlled dangerous substance and related
offenses. Id. at 510.
Although we found that the admission of the expert
testimony did not constitute plain error, we expressed concern
that “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.”
Id. at 514. We maintained that “an expert is not needed to
state that which is obvious,” id. at 507, that “expert testimony
must be about ‘a subject matter that is beyond the ken of the
average juror,’” id. at 514 (quoting State v. Kelly, 97 N.J.
178, 208 (1984)), and that “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,” id. at 508. We noted that
“[e]xpert testimony that recites the legal conclusion sought in
a verdict is not helpful to the jury,” id. at 517 (citing United
States v. Barile, 286 F.3d 749, 760 (4th Cir. 2002)), and
reminded our courts that they “are expected to perform a
gatekeeper role in determining whether there exists a reasonable
need for an expert’s testimony,” id. at 514.
17
In State v. Reeds, 197 N.J. 280, 284-85 (2009), we reversed
the defendant’s conviction of possession of heroin with the
intent to distribute and the lesser charge of possession
because, in response to a hypothetical question, a police expert
testified that the defendant and two other occupants of a car
constructively possessed with the intent to distribute drugs
found in the vehicle. We held that “the expert’s constructive
possession opinion was tantamount to a legal conclusion,
resulting in a veritable pronouncement of guilt on the two
possession crimes.” Id. at 297. We noted, moreover, that “by
mimicking the language of the statute . . . the expert’s
testimony on constructive possession of drugs” was neither
probative nor helpful to the jury. Id. at 296-97. We stated
that “Odom’s continued application is not without boundaries”
and again “cautioned that ‘Odom does not license the use of a
narcotics expert to tell a jury that which is obvious.’” Id. at
293 (quoting Nesbitt, supra, 185 N.J. at 514). We concluded
that the expert’s “ultimate-issue testimony usurped the jury’s
singular role in the determination of defendant’s guilt and
irredeemably tainted the remaining trial proofs.” Id. at 300.
In State v. McLean, 205 N.J. 438, 443, 463 (2011), we
reversed the defendant’s possession-with-intent-to-distribute
convictions because a police officer, based on his surveillance
observations of the defendant handing an item to an individual
18
in exchange for money, gave opinion testimony that a narcotics
transaction had occurred. We rejected the argument that the
officer’s testimony was permissible as either a lay or an expert
opinion. Id. at 461-62. We made clear that “expert testimony
[is] not admissible if the transactions at issue occurred in a
straightforward manner,” id. at 452 (citing Nesbitt, supra, 185
N.J. at 516), and that “experts may not, in the guise of
offering opinions, usurp the jury’s function by . . . opining
about defendant’s guilt or innocence,” id. at 453. In short, we
determined that expert testimony has no place when the jury is
fully able to grasp the meaning of facts without assistance.
Id. at 461.
More recently, in State v. Sowell, 213 N.J. 89, 93 (2013),
we critiqued the improper use of expert testimony in a drug
prosecution against the defendant, a prison inmate. In that
case, the State presented evidence that during a prison visit,
an individual passed to the defendant a bag of potato chips that
was later found to contain a balloon filled with thirty “decks”
of heroin. Id. at 94-95. The defendant contested that such an
exchange occurred. Id. at 93. A Department of Corrections
investigator, qualified as a drug expert, was given a
hypothetical question tracking the State’s evidence and
responded “[t]hat an exchange of narcotics took place.” Id. at
96.
19
We stated that “[i]t is not appropriate to summarize
straightforward but disputed evidence in the form of a
hypothetical and then elicit an expert opinion about what
happened” because such an “approach improperly bolsters the
State’s proofs with expert testimony and can usurp the jury's
sole responsibility to find the facts.” Id. at 102. We also
indicated that the expert’s “testimony invaded the jury’s role
as the ultimate fact finder.” Id. at 93. We refrained from
reversing the defendant’s convictions “only because of the
overwhelming evidence of [his] guilt,” id. at 107, but “urge[d]
trial judges, in their role as gatekeepers, to be vigilant and
bar this type of testimony,” id. at 108.
C.
The value of expert testimony in drug cases, in general, is
not at issue in this case. The average juror is not
knowledgeable about the arcana of drug-distribution schemes.
Law enforcement officers with extensive training, education, and
experience of the drug world have “specialized knowledge [that]
will assist the trier of fact to understand the evidence or to
determine a fact in issue.” N.J.R.E. 702. Experts can help
jurors understand the indicia of a distribution operation, such
as how drug traffickers package and process drugs for
distribution. See Odom, supra, 116 N.J. at 73-75. Experts can
shed light on the significance of the quantities and
20
concentrations of drugs, the value of drugs, the use of
identifiable logos on drug packaging, and the function of drug
paraphernalia, e.g., scales, baggies, and cutting agents. See
ibid.; Sowell, supra, 213 N.J. at 100-05; United States v.
Mejia, 448 F.3d 436, 441, 449 (D.C. Cir. 2006) (noting expert’s
testimony on significance of “drug logos associated with the
packaging of cocaine”), cert. denied, 549 U.S. 1137, 127 S. Ct.
989, 166 L. Ed. 2d 747 (2007). Experts may also provide insight
into the roles played by individuals in street-level drug
transactions, see State v. Berry, 140 N.J. 280, 301-02 (1995),
and into the various machinations used by drug dealers to thwart
detection, see Nesbitt, supra, 185 N.J. at 515. There are
undoubtedly other areas where a drug expert can offer needed
assistance to a jury.
Equally clear is that an expert should not express an
opinion on matters that fall within the ken of the average juror
or offer an opinion about the defendant’s guilt. Id. at 512-14.
Nor should an expert be used to bolster a fact witness’s
“testimony about straightforward, but disputed, facts.” McLean,
supra, 205 N.J. at 455. The jury brings a breadth of collective
experience, knowledge, and wisdom to the task. Expert testimony
is not necessary to explain to jurors the obvious. It is not a
substitute for jurors performing their traditional function of
sorting through all of the evidence and using their common sense
21
to make simple logical deductions.
Despite Odom’s cautionary words, posing a hypothetical to
an expert that elicits an answer that the defendant possessed
drugs with the intent to distribute not only mimics the
statutory language, but also implicitly expresses the expert’s
opinion that the defendant is guilty. See Summers, supra, 176
N.J. at 323 (Albin, J., dissenting) (“An expert, who advises the
jury that the defendant possessed drugs with intent to
distribute, is, in essence, telling the jury that the State has
proven all the elements of the crime[,] . . . [and] has
announced his own verdict, whether or not he uses the word
‘guilty.’”).
Additionally, expert testimony coming from a law
enforcement officer claiming to have superior knowledge and
experience likely will have a profound influence on the
deliberations of the jury. See United States v. Fosher, 590
F.2d 381, 383 (1st Cir. 1979); State v. Wheeler, 416 So. 2d 78,
82 (La. 1982).
As this case proves, despite our efforts in Nesbitt, Reeds,
McLean, and Sowell to deter in the misuse of expert testimony,
the problem persists. Candor requires that we admit that the
root of the problem is contradictory language in Odom.
We have come to the conclusion that an expert is no better
qualified than a juror to determine the defendant’s state of
22
mind after the expert has given testimony on the peculiar
characteristics of drug distribution that are beyond the juror’s
common understanding. In drug cases, such ultimate-issue
testimony may be viewed as an expert’s quasi-pronouncement of
guilt that intrudes on the exclusive domain of the jury as
factfinder and may result in impermissible bolstering of fact
witnesses. The prejudice and potential confusion caused by such
testimony substantially outweighs any probative value it may
possess.
Federal Rule of Evidence 704(b), unlike its New Jersey
counterpart, specifically prohibits an expert witness in a
criminal case from stating “an opinion about whether the
defendant did or did not have a mental state or condition that
constitutes an element of the crime charged or of a defense.”
That rule makes clear that “[t]hose matters are for the trier of
fact alone.” Id. Accordingly, federal courts in drug cases do
not permit an expert witness to testify about a defendant’s
mental state. See id.; see, e.g., United States v. Watson, 260
F.3d 301, 310 (3d Cir. 2001) (“Of course, narcotics experts may
testify about drug dealing, but they are in no way qualified to
testify about a defendant’s mental condition.”); United States
v. Boissoneault, 926 F.2d 230, 233 (2d Cir. 1991) (“Once [the
expert witness] had testified as to the likely drug transaction-
related significance of each piece of physical evidence, the
23
jury was competent to draw its own conclusion as to
[defendant’s] involvement in the distribution of cocaine.”).
Indeed, other jurisdictions do not permit expert testimony
on defendant’s state of mind in drug cases. See, e.g., State v.
Campbell, 626 A.2d 287, 291 (Conn. 1993) (holding that trial
court erred in allowing expert testimony that “defendant
possessed the drugs with the intent to sell or with intent to
use them personally”); Fluellen v. State, 703 So. 2d 511, 513
(Fla. Dist. Ct. App. 1997) (finding that trial court erred by
admitting officer’s testimony “that the quantity of cocaine
possessed by the [defendant] indicated that the [defendant]
possessed the drug with the intent to sell, rather than for
personal use. . . . because it exceeded the limitations of
expert testimony”); State v. Shumpert, 554 N.W.2d 250, 254 (Iowa
1996) (finding that expert testimony admissible because expert
“did not testify about whether [defendant] possessed the
requisite intent to deliver,” but rather “expressed his opinion
that the manner of packaging was consistent with the manner of
packaging associated with drug dealing”); People v. Williams,
638 N.Y.S.2d 705, 705 (App. Div.) (holding that expert’s
testimony that defendant possessed crack cocaine with “intent to
sell the drugs . . . invad[ed] the exclusive province of the
jury in determining an ultimate issue of fact”), appeal denied,
667 N.E.2d 352 (N.Y. 1996).
24
We now join those jurisdictions that limit the scope of
expert testimony in drug cases. Going forward, in drug cases,
an expert witness may not opine on the defendant’s state of
mind. Whether a defendant possessed a controlled dangerous
substance with the intent to distribute is an ultimate issue of
fact to be decided by the jury.
D.
We also believe that hypothetical questions should be used
only when necessary in drug cases. For instance, no one is
fooled when a hypothetical tracks the evidence and substitutes
the name of a defendant for a symbol, such as S-2. See Summers,
supra, 176 N.J. at 311. The symbolic fig leaf serves no
purpose. If the jury could not deduce that S-2 is the
defendant, the information conveyed through the expert would be
meaningless. When the evidence is straightforward and the facts
are not in dispute, there is no need to resort to a
hypothetical. For example, an expert can explain the purpose of
logos on drug packaging without having to respond to a
hypothetical question. See State v. Simms, __ N.J. __ (2016)
(slip op. at 20). Questions can incorporate the evidence of
record, such as the quantity of drugs, packaging materials,
scales, and money discovered, and the expert can render an
opinion on their significance in a drug-distribution operation.
25
The use -- and abuse -- of hypothetical questions has been
the subject of much criticism by legal scholars and courts.
Some fault hypothetical questions because they are overly
partisan, unnecessarily lengthy, often complex, and frequently
awkward, Mason Ladd, Expert Testimony, 5 Van. L. Rev. 414, 427
(1951), and others because they allow an “attorney to make a
closing argument mid-stream,” The New Wigmore, § 3.4 at 94
(2004) (citing Charles McCormick, Handbook of the Law of
Evidence § 16 at 33-34 (1954)). See also People v. Vang, 262
P.3d 581, 589 (Cal. 2011). Some have even called for the
abolition of the hypothetical question. See The New Wigmore,
supra, § 3.4 at 94 (citing 1 Wigmore on Evidence § 686 at 1094
(2d ed. 1923)); Ladd, supra, 5 Van. L. Rev. at 427. We see no
reason to go that far here.
We cannot presume that hypothetical questions will not be
useful in all circumstances merely because they are abused in
some circumstances. Drug cases, like other cases, will involve
disputed facts. If disputed facts are part of a question, the
expert necessarily will be asked to assume the truth of certain
facts, and therefore the question will be hypothetical in
nature.
Additionally, our evidence rules contemplate that
hypothetical questions may be necessary. N.J.R.E. 705
(“Questions calling for the opinion of an expert witness need
26
not be hypothetical in form unless in the judge’s discretion it
is so required.”). To the extent possible, questions posed to
an expert witness in a drug case should be compact and easy to
understand and should not take the form of a summation. We do
not suggest that the question cannot be of a compound nature
because a variety of factors may collectively form the basis for
an expert opinion, but simplicity in sentence structure will be
helpful to the witness and the jury. We do not offer a dogmatic
approach. In the end, we must rely on the sound discretion of
our trial judges to follow the guidance given here.
We reject defendant’s argument that hypothetical questions
should be vetted pretrial. The formulation of questions will
depend on the development of the evidence at trial. In some
instances, it may be appropriate to conduct a hearing out of the
presence of the jury pursuant to N.J.R.E. 104 to ensure the
fairness and propriety of a hypothetical question. Whether to
employ such a procedure is left to the discretion of the trial
court as gatekeepers of the evidence.
V.
The hypothetical question posed to drug expert Detective
Rothenberger, reproduced in full in the appendix, spanned three
pages of transcript and recited nearly every detail of the case.
The hypothetical starts by asking the expert to assume that an
“individual” -- clearly defendant -- sold drugs to two buyers
27
outside of his home. The hypothetical then continues by
recounting every detail concerning the search of defendant’s
house and calls for the expert to give an opinion whether the
drugs recovered were possessed with the intent to distribute:
[Prosecutor]: [R]oughly a week and a half
later or so, the search warrant authorized by
the Court is acted upon the same residence .
. . .
Assume further that when the search
warrant is acted upon the individual observed
selling is outside the house. . . . When [the
police] enter the home located within the home
. . . is first of all at a china hutch near
that entrance is in a teacup, a small object,
ten glassine envelopes . . . established to be
heroin.
Further assume that located in a bedroom
upstairs there is found in a dresser a rock of
crack cocaine, estimated weight slightly over
3 grams. Assume further that in that same
room in a closet within a box, and again within
another container within that box is a bag of
white powder cocaine. Assume that the weight
of that white powder is . . . slightly over 15
grams. . . . [I]n that same box with that
powder cocaine are 100 little baggies, purple
in color. Assume further that next to those
items in that same container is a digital
scale about the size of your hand.
. . . [I]n that same room is a box of
plastic sandwich bags, and assume, please if
you would, that the two drug purchasers
surveilling on those two previous occasions
have also stated that they in fact made those
drug purchases from the individual at that
house. . . .
Given those hypothetical facts, do you
have an opinion as to whether . . . those
narcotics were possessed for personal use or
28
possessed with the idea to sell, and please
give an opinion as to each narcotic.
[Detective Rothenberger]: Well I do have an
opinion . . . it’s possession with intent to
distribute.
First, the hypothetical is the classic mid-trial summation,
allowing the prosecutor to package his entire case in a single
question and elicit affirmation of defendant’s guilt from an
expert. Second, the literary device of assuming a hypothetical
“individual” without identifying the defendant by name is a
thinly veiled guise that serves no purpose and fails to
dissipate any potential prejudice. Third, the hypothetical
unfairly bolstered the prosecution’s case by asking the law
enforcement expert to assume that defendant was a drug dealer.
After the detective explained to the jury the significance
of the items found in defendant’s home -- the quantity and
packaging of the drugs, the scale, and the role of cutting
agents in a distribution scheme -- the jury had the tools to do
its job. Surely, if the jury believed that defendant sold drugs
on two prior occasions, it was capable of drawing the inference
on its own, in conjunction with other evidence, that the drugs
found in his home were possessed with the intent to distribute.
The jury did not need the assistance of a law enforcement
officer with drug expertise to figure out that a drug dealer
might hide drugs in his home. The detective’s opinion on the
29
ultimate issue of fact -- whether defendant had the requisite
intent to distribute -- did not require expert assistance. The
expert testimony intruded into the exclusive domain of the jury.
The probative value of the detective’s testimony on this point
was substantially outweighed by its prejudicial impact. See
N.J.R.E. 403.
Although clearly prejudicial, Detective Rothenberger’s
testimony did not draw an objection from defense counsel.
Such a procedural default ordinarily would weigh heavily against
defendant under the plain-error standard. R. 2:10-2 (“Any error
or omission shall be disregarded by the appellate court unless
it is of such a nature as to have been clearly capable of
producing an unjust result . . . .”). The less-than-clear
standard governing our jurisprudence on ultimate-issue testimony
in drug cases, however, makes counsel’s default somewhat
understandable.
The inclusion of the “assumed” drug sales in the
hypothetical had a potential domino effect. It unfairly
bolstered the State’s case on the charge of possession with
intent to distribute. In turn, the buttressed possession-with-
intent-to-distribute charge made more persuasive the State’s
version that defendant sold drugs outside his home, a point
defendant vigorously contested. Accordingly, the taint of the
hypothetical and the answer it elicited had the capacity to
30
infect all of the charges and were “clearly capable of producing
an unjust result.” See R. 2:10-2.
VI.
A.
We next turn to whether the repeated references to a search
warrant for defendant’s house unfairly implied that the judge
issuing the warrant credited the same evidence later presented
at trial.
To be sure, the prosecutor has the right to convey to the
jury that the police were authorized to search a home. Every
juror surely knows that the police typically cannot search a
home without a warrant. The jury should not be left guessing
whether the police acted arbitrarily by entering a home without
a search warrant. See State v. Marshall, 148 N.J. 89, 240,
cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88(1997) (“[T]he fact that a warrant was issued might necessarily
be put before a jury in order to establish that the police acted
properly.”).
On the other hand, repeated statements that a judge issued
a search warrant for a defendant’s home -- when the lawfulness
of the search is not at issue -- may lead the jury to draw the
forbidden inference that the issuance of a warrant by a judge
supports the rendering of a guilty verdict.
In Marshall, supra, the Court stated that it was not aware
31
of authority supporting “the proposition that the jury should be
shielded from knowledge that search warrants have been issued in
a criminal matter because the prior judicial determination of
probable cause may influence the jury to assume guilt.” Ibid.
Significantly, however, Marshall did not suggest that it would
be permissible for the prosecution to attempt to impute guilt to
the defendant by repeatedly mentioning a search warrant.
Surely, the prosecutor should not in any way imply that because
a Superior Court judge issued a warrant based on evidence
supplied by law enforcement authorities, the same evidence
presented at trial has received a judicial endorsement.
This is the point made clear in State v. Alvarez, 318 N.J.
Super. 137 (App. Div. 1999). In that case, the Appellate
Division overturned the defendant’s firearms convictions because
of the prejudicial impact of “three references to an arrest
warrant for defendant [and] six references to a search warrant
(described as being issued by a judge),” all coming “directly
out of the mouth of the prosecutor.” Id. at 147. Because the
credibility of the officers was not at issue in that case, the
panel saw “no reason why either of the[] warrants needed to be
injected into th[e] case.” Id. at 148. Writing for the
appellate panel, then-Judge (later Justice) Long noted that the
prejudicial effect of the warrant references was magnified
because “the prosecutor managed to insert into his questions the
32
fact that a judge issued the search warrant, thus suggesting
that a judicial officer with knowledge of the law and the facts
believed that evidence of criminality would be found in
defendant’s room.” Ibid. The panel analogized Alvarez to State
v. Milton, 255 N.J. Super. 514, 519 (App. Div. 1992), a case
where the Appellate Division “reversed a conviction due to an
improper reference to a search warrant for defendant’s person.”
Alvarez, supra, 318 N.J. at 147. The Alvarez panel noted that
in Milton, “[t]he natural inference from the mention of the
warrant itself, confirmed by the cautionary instruction of the
trial judge, was that sufficient independent proof had been
presented to a neutral judge to believe that defendant would be
found in possession of drugs.” Ibid. (quoting Milton, supra,255 N.J. Super. at 520). Accordingly, the Alvarez panel found
that the numerous references to the warrants constituted plain
error, warranting reversal. Id. at 148. We agree substantially
with the reasoning of Judge Long in Alvarez.1 It would be wrong
for the jury to infer guilt from a judge’s issuance of a
warrant.
1 In State v. McDonough, 337 N.J. Super. 27, 34-35 (App. Div.),
certif. denied, 169 N.J. 605 (2001), an appellate panel
questioned whether Milton and Alvarez could be reconciled with
Marshall. Nevertheless, the panel recognized that a defendant
is prejudiced when references to a warrant have a capacity to
mislead the jury into believing the State has evidence of
defendant’s guilt beyond what was presented at trial. Id. at
35.
33
A search warrant can be referenced to show that the police
had lawful authority in carrying out a search to dispel any
preconceived notion that the police acted arbitrarily. A
prosecutor, however, may not repeatedly mention that a search
warrant was issued by a judge if doing so creates the likelihood
that a jury may draw an impermissible inference of guilt.
B.
Here, the prosecutor mentioned the existence of a search
warrant no less than fifteen times in the opening statement,
summation, and during questioning of witnesses. Some of those
references specifically informed the jury that a Superior Court
judge issued the warrant. A few examples will suffice:
A search warrant was then obtained, authorized
by a Superior Court Judge and a search of the
place that he was selling drugs from was
conducted.
[Prosecutor’s Opening Statement.]
As I mentioned to you, that information then
was entered into an affidavit for a search
warrant. A search warrant brought to a judge.
Before you can go into somebody’s home under
those circumstances, you need the authority of
a Superior Court judge, and he received it.
[Prosecutor’s Opening Statement.]
[Prosecutor]: [W]hy were you surveilling [the
home] if you already had a search warrant
authorizing you to go in?
[Questioning of Officer Carroll.]
[Prosecutor]: [Y]ou applied for a search
warrant of 369 Dewolf Place?
[Witness]: A search warrant application
was made. Yes.
34
[Prosecutor]: All right. And that
application came before a Superior Court Judge
in this building. Is that right?
[Witness]: That is correct, [s]ir.
[Prosecutor]: Was it granted?
[Witness]: Yes it was, [s]ir.
[Questioning of Detective Smith.]
But now when they execute that Court
authorized search warrant, they’re finding the
same kind of drugs that have been distributed
on two prior occasions.
[Prosecutor’s Summation.]
The repeated references to the search warrant -- one issued
by a Superior Court judge -- went well beyond what was necessary
to inform the jury that the officers were acting with lawful
authority. The constant drumbeat that a judicial officer issued
a warrant to search defendant’s home had little probative value,
but did have the capacity to lead the jury to draw an
impermissible inference that the court issuing the warrant found
the State’s evidence credible. See N.J.R.E. 403 (“[R]elevant
evidence may be excluded if its probative value is substantially
outweighed by the risk of . . . undue prejudice.”). Defendant,
however, did not raise an objection at trial to the references
that he now claims denied him a fair trial. Because of our
earlier finding that the admission of the erroneous expert
testimony requires reversal and a new trial, we do not have to
reach the issue of whether the search-warrant references
constituted plain error.
VII.
35
For the reasons expressed, we reverse the judgment of the
Appellate Division affirming defendant’s convictions. We remand
to the trial court for further proceedings consistent with this
opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, and
SOLOMON, and JUDGE CUFF (temporarily assigned) join in JUSTICE
ALBIN’S opinion. JUSTICE FERNANDEZ-VINA did not participate.
36
Appendix
The full hypothetical question asked during the trial is
reproduced below:
[Prosecutor]: Now, let’s assume that there’s
an individual residing in a home. And on the
middle of the month someone approaches that
home and engages in what appears to be a hand-
to-hand drug transaction. That person -- that
drug transaction occurs just outside the home
as opposed to inside. And the person who
approached the house, leaves the house and it
is stopped within seconds in a short distance
from that house, having met somebody there.
After that hand-to-hand drug transaction
and that stop, that person is found to be in
possession of crack cocaine, in a quantity of
-- assuming for this hypothetical .20 grams.
Further assume, if you would, stopped by
police. Further assume, if you would that
approximately two weeks after that first drug
buy. A second individual, a different
individual approaches that same house, and the
same individual in that house. A similar
transaction occurs, hand-to-hand drug
transaction. Are you familiar with that --
[Detective Rothenberger]: Yes, sir.
[Prosecutor]: Hand --
[Detective Rothenberger]: Yes, sir.
[Prosecutor]: Okay. A similar transaction
occurs. That second buyer stopped a short
distance away from the home again by law
enforcement, who on both occasion [sic] are
surveilling the residence. That second
individual is found to be in possession of
heroin. Of the amount of heroin is .02 grams.
Assume further in these set of
hypothetical facts that roughly a week and a
37
half later or so, the search warrant
authorized by the Court is acted upon the same
residence where law enforcement has been
surveilling and those two purchases were made
by those two different people.
Assume further that when the search
warrant is acted upon the individual observed
selling is outside the house. That there are
three additional occupants within the house.
They are an elderly woman, they are a woman in
her later twenties and her young son about
eight years old. When they enter the home
located within the home, assume further, is
first of all at a china hutch near that
entrance is in a teacup, a small object, ten
glassine envelopes suspected to be heroin, and
established to be heroin.
Further assume that located in a bedroom
upstairs there is found in a dresser a rock of
crack cocaine, estimated weight slightly over
3 grams. Assume further that in that same
room in a closet within a box, and again within
another container within that box is a bag of
white powder cocaine. Assume that the weight
of that white powder is over half an ounce,
15, slightly over 15 grams. Please assume
further that in that same box with that powder
cocaine are 100 little baggies, purple in
color. Assume further that next to those
items in that same container is a digital
scale about the size of your hand.
Lastly assume, well not lastly, but also
assume that in that same room is a box of
plastic sandwich bags, and assume, please if
you would, that the two drug purchasers
surveilling on those two previous occasions
have also stated that they in fact made those
drug purchases from the individual at that
house.
Given those hypothetical facts, do you
have an opinion as to whether or not the
narcotics found in the home of the -- the
hypothetical home; do you have an opinion as
38
to whether those narcotics were possessed for
personal use or possessed with the idea to
sell, and please give an opinion as to each
narcotic.
[Detective Rothenberger]: Well I do have an
opinion . . . it’s possession with intent to
distribute, and I’ll explain why, sir.
39
SUPREME COURT OF NEW JERSEY
NO. A-8 SEPTEMBER TERM 2014
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SCOTT M. CAIN,
Defendant-Appellant.
DECIDED March 15, 2016
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE/
CHECKLIST VACATE/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA ----------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6