State v. Roger Covil (081267) (Somerset County & Statewide) ( 2020 )

SYLLABUS
This syllabus is not part of the Court’s opinion. 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
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Roger Covil (A-35/36-18) (081267)
Argued September 9, 2019 -- Decided January 22, 2020
PATTERSON, J., writing for the Court.
This appeal presents two issues. First, the Court considers defendant Roger
Covil’s challenge to the admission of the opinions of the State’s drug expert witnesses --
as elicited through hypothetical questions -- in light of State v. Cain, 224 N.J. 410 (2016),
and State v. Simms, 224 N.J. 393 (2016), which limited the State’s use of hypothetical
questions in the presentation of drug expert testimony in criminal trials but which were
decided two years after defendant’s trial. Second, the Court addresses defendant’s
argument that the trial court violated his constitutional rights and principles of
fundamental fairness when it admitted into evidence a notice of motion for a writ of
replevin and supporting certification that he served in a civil forfeiture action that had
been stayed at his attorney’s request. The Court considers that question against the
backdrop of its recent holding in State v. Melendez, ___ N.J. ___ (2020), that an answer
filed in a civil forfeiture action is inadmissible in the claimant’s criminal trial.
Defendant was arrested when he received a package suspected of containing
cocaine. A search of defendant incident to his arrest revealed three cellphones and $656
in cash. Laboratory testing later indicated that the package contained cocaine. The
officers searched defendant’s residence pursuant to a warrant and found a vacuum meal
storage system, three boxes of heat-sealable bags, a roll of shrink wrap, two bags of
rubber bands, $70,863, two cellphones, a cellphone charger, and financial and personal
documents bearing defendant’s name. Defendant was indicted on first-degree possession
with intent to distribute five or more ounces of cocaine and two other charges.
Shortly after defendant was indicted, the State filed a civil forfeiture action
seeking forfeiture of the $71,519 in currency seized. Defendant filed an answer to the
complaint in the civil forfeiture action, stating a general denial of the allegations in the
complaint. And, with the State’s consent, the judge assigned to the civil forfeiture action
stayed discovery as to defendant in that action and the forfeiture trial.
Notwithstanding the stay, defendant prepared and served on the State a notice of
motion for the issuance of a writ of replevin and a supporting certification, in which he
asserted that the currency in dispute was his property and demanded its return.
1
In a pretrial proceeding in defendant’s criminal case, the trial court considered the
admissibility of the testimony of the State’s expert witnesses, Detective Omar Belgrave
and Detective Jeffrey Dockery. The trial court admitted their testimony and authorized
the State to pose to each expert a hypothetical question based exclusively on the trial
evidence. The trial court later ruled that the notice of motion for a writ of replevin and
certification were also admissible with minor redactions.
Defendant was tried over seven days and was convicted of first-degree possession
with intent. Defendant appealed.
Citing State v. Green, 447 N.J. Super. 317, 328 (App. Div. 2016), the Appellate
Division afforded this Court’s decisions in Cain and Simms pipeline retroactivity and
applied the principles of those cases to this appeal. It held that the State’s expert opinion
testimony improperly addressed the question of whether defendant possessed cocaine
with intent to distribute, thereby usurping the jury’s constitutional role as factfinder, and
it reversed defendant’s conviction. The Appellate Division did not reach defendant’s
constitutional challenge to the admission of the notice of motion for a writ of replevin
and certification but stated that, if the State were to retry defendant, the trial court should
reexamine its decision with respect to that issue.
The Court granted the State’s petition for certification, 236 N.J. 241 (2018), and
granted defendant’s cross-petition limited to two issues: “(1) the use of defendant’s
answer filed in the civil forfeiture action, and (2) the testimony of the State’s expert and
the court’s response thereto,” 236 N.J. 241, 241-42 (2018).
HELD: The new rule stated in Cain and Simms was intended to apply prospectively to
guide future trials, not retroactively to proceedings conducted prior to those decisions. At
the time of defendant’s trial, the governing law authorized the use of hypothetical
questions such as the questions posed to the State’s experts in this case. And in light of
the distinctions between Melendez and the present case, there was no error in the trial
court’s admission of defendant’s notice of motion for a writ of replevin and certification.
1. In State v. Odom, the Court cautioned that a hypothetical question posed to elicit drug
expert testimony should be “carefully phrased” and required that it “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”; the Court also required that the expert
advise the jury “of the basis for that opinion.” 116 N.J. 65, 81-82 (1989). The Court
imposed some restrictions on what experts could say and directed trial courts to instruct
jurors on the weight due the expert’s opinion and to “emphasize[] that the determination
of ultimate guilt or innocence is to be made only by the jury.” Ibid. The Court applied
and refined the principles stated in Odom in several decisions. The Court reviews those
decisions and explains that the rule of Odom, as explained in those later decisions,
provided the governing standard at the time of defendant’s trial. (pp. 19-22)
2
2. While defendant’s appeal was pending, the Court decided Cain and Simms. The
Court reviews Cain and notes that the following principle is stated in that decision to
guide courts and counsel in drug prosecutions: “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.” 224 N.J. at 429. In Simms, the
Court reiterated that holding and applied the principles set forth in Cain to exclude expert
testimony in response to a lengthy hypothetical question on the existence of a conspiracy
to distribute drugs. 224 N.J. at 403-09. Cain and Simms thus restricted the use of
hypothetical questions that Odom and its progeny had permitted. (pp. 23-25)
3. The Court reviews the principles that guide retroactivity analysis and notes that Cain
provided express guidance as to the appropriate application of the new rule it announced
through the use of the phrase “going forward.” Cain, 224 N.J. at 429. The Cain Court
stressed that it “now join[ed]” jurisdictions that limit the use of hypothetical questions in
the presentation of drug expert evidence. Ibid. It stated a new rule for future trials and
explained its decision to reverse the conviction in the case before it, notwithstanding the
otherwise prospective application of its new rule. Id. at 426-29, 431-33. Thus, in Green -
- on which the appellate court here relied -- the Appellate Division misconstrued the
language of Cain. The Court reaffirms that the rule stated in Cain and Simms was
intended to apply only to the appeals in those two cases and to cases tried after the date of
those decisions. (pp. 25-29)
4. The Court reviews the testimony of Belgrave and Dockery. Each testified within the
parameters of Odom and its progeny, and their testimony was followed by a proper
limiting instruction. There was no error in the trial court’s application of the law on drug
expert testimony that governed at the time of defendant’s trial. (pp. 29-32)
5. To avoid a conflict between a defendant’s privilege against self-incrimination and
right to assert an interest in property, the Court concluded in Melendez that a claimant’s
answer filed in a civil forfeiture action pursuant to N.J.S.A. 2C:64-3(d) should not be
admitted in his or her criminal trial. ___ N.J. at ___ (slip op. at 18-20). (pp. 32-34)
6. When defendant served his notice of motion and certification, he was not required by
any statute to do so. This appeal thus raises none of the Fifth Amendment concerns
addressed in Melendez. Moreover, defendant affirmatively used those documents in his
own defense at trial. The trial court’s admission of the notice of motion for a writ of
replevin and certification did not constitute error. (pp. 34-35)
The judgment of the Appellate Division is REVERSED and defendant’s
convictions are REINSTATED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-
VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-35/36 September Term 2018
081267
State of New Jersey,
Plaintiff-Appellant/Cross-Respondent,
v.
Roger Covil,
Defendant-Respondent/Cross-Appellant.
On certification to the Superior Court,
Appellate Division .
Argued Decided
September 9, 2019 January 22, 2020
Paul H. Heinzel, Assistant Prosecutor, argued the cause
for appellant/cross-respondent (Michael H. Robertson,
Somerset County Prosecutor, attorney; Paul H. Heinzel
and Alexander C. Mech, Assistant Prosecutor, of counsel
and on the briefs).
Daniel S. Rockoff, Assistant Deputy Public Defender,
argued the cause for respondent/cross-appellant (Joseph
E. Krakora, Public Defender, attorney; Daniel S.
Rockoff, of counsel and on the briefs).
Valeria Dominguez, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Gurbir S. Grewal, Attorney General, attorney; Valeria
Dominguez, of counsel and on the brief).
1
JUSTICE PATTERSON delivered the opinion of the Court.
Defendant Roger Covil was convicted of first-degree possession with
intent to distribute five ounces or more of cocaine. The Appellate Division
reversed defendant’s conviction, and this Court granted cross-petitions for
certification filed by the State and defendant.
This appeal presents two issues. First, we consider defendant’s
challenge to the trial court’s admission of the opinions of the State’s drug
expert witnesses. Responding to hypothetical questions that tracked the
evidence admitted at trial, one expert witness testified about the significance of
packaging materials and currency in the distribution of cocaine, and the other
testified about the use of cellphones in drug distribution.
Two years after defendant’s trial, the Court decided State v. Cain, 224
N.J. 410 (2016), and State v. Simms, 224 N.J. 393 (2016). Those decisions
limited the State’s use of hypothetical questions in the presentation of drug
expert testimony in criminal trials. Reversing defendant’s conviction in this
case, the Appellate Division retroactively applied Cain and Simms, and held
that the trial court committed error when it admitted the testimony of the
State’s expert witnesses.
2
As the language of Cain makes clear, the new rule stated in Cain and
Simms was intended to apply prospectively to guide future trials, not
retroactively to proceedings conducted prior to those decisions. At the time of
defendant’s trial, the governing law authorized the use of hypothetical
questions such as the questions posed to the State’s experts in this case . The
Court accordingly reverses the Appellate Division’s judgment with respect to
that issue.
Second, we address defendant’s argument that the trial court violated his
constitutional rights and principles of fundamental fairness when it admitted
into evidence a notice of motion for a writ of replevin and supporting
certification that he served in a civil forfeiture action that had been stayed at
his attorney’s request. In those pleadings, defendant asserted that he owned
$71,519 in currency that had been seized from his person and his residence,
claimed that he lawfully obtained those funds, and demanded the return of
those funds.
As we just held in State v. Melendez, three provisions of the civil
forfeiture statute -- N.J.S.A. 2C:64-3(d), -3(e), and -3(f) -- could operate to
compel a criminal defendant to choose between asserting his due process right
to claim property subject to forfeiture and invoking his Fifth Amendment
privilege against self-incrimination, thus implicating the United States
3
Supreme Court’s ruling in Garrity v. New Jersey, 385 U.S. 493, 496-500
(1967). ___ N.J. ___, ___ (2020) (slip op. at 12-17). To protect the Fifth
Amendment right of such a claimant, we found that an answer filed in a civil
forfeiture action pursuant to N.J.S.A. 2C:64-3(f) is inadmissible in the
claimant’s criminal trial. Id. at ___ (slip op. at 17-20).
In contrast to the defendant in Melendez, who was required to serve an
answer in the civil forfeiture action in order to defend his interest in the
disputed property, defendant in this case was not compelled to file any
pleadings in the civil forfeiture action against him when he served his motion
for a writ of replevin because the forfeiture action had been stayed at his
attorney’s behest. In addition, during defendant’s criminal trial, his counsel
affirmatively relied on defendant’s certification in the civil forfeiture action as
uncontroverted proof that defendant obtained the seized currency through
lawful means.
In light of the distinctions between Melendez and the present case, we
find no error in the trial court’s admission of defendant’s notice of motion for
a writ of replevin and certification.
We therefore reverse the Appellate Division’s judgment and reinstate
defendant’s conviction.
4
I.
Based on information obtained in a drug investigation, Detective John
Walsh of the Somerset County Prosecutor’s Office was directed to inspect a
package at a United Parcel Service (UPS) facility.1 The UPS package label
bore the return address of a business in Phoenix, Arizona. The package was
addressed to “Kathy Land” at 308 Coventry Lane in Somerset, a residence in
an apartment complex. Detective Walsh arranged for a K-9 unit to conduct a
drug detection sniff of the UPS package. A drug detection dog reacted to the
package in a manner that, according to the dog’s handler, indicated the
presence of drugs.
Police officers obtained a search warrant authorizing them to open the
package, and examine its contents, and to search 308 Coventry Lane if the
package, once delivered to that address, was brought into the residence.
Pursuant to the warrant, an officer opened the package and field-tested its
contents. The field test indicated the presence of cocaine.
The officer then resealed the package and gave it to a UPS driver,
accompanied by a police officer posing as a UPS trainee, for delivery to 308
Coventry Lane. Prior to the delivery of the package, officers observed
1
The facts are summarized based on the trial record.
5
defendant walking around the apartment complex looking at vehicles in the
parking lot.
The UPS driver and the police officer posing as a UPS trainee delivered
the package to 308 Coventry Lane. The UPS driver rang the doorbell at the
front door of the residence. The driver and the officer waited for a response,
then left the package near the front entrance of the home.
Ten minutes later, defendant walked to the front entrance of 308
Coventry Lane, picked up the package, and carried it into the residence. Less
than a minute later, he emerged from the residence, still holding the package.
According to officers conducting surveillance in the apartment complex,
defendant began to tear the UPS label off the package as he walked away from
the residence. When officers approached defendant, identified themselves, and
instructed him to stop, defendant threw the package into a line of trees and
attempted to run away. After defendant ran about ten yards, officers placed
him under arrest. A search of defendant incident to his arrest revealed three
cellphones and $656 in cash. Laboratory testing later indicated that the
package contained 1006.6 grams of cocaine.
Pursuant to the search warrant, officers searched 308 Coventry Lane.
They found a “Seal-A-Meal” vacuum storage system and three boxes of “Food
Saver” heat-sealable bags in a hall closet, a roll of shrink wrap in the
6
basement, and two bags of rubber bands in a bedroom. In the same bedroom,
officers found $70,863 in United States currency in denominations ranging
from $100 bills to $5 bills, as well as two cellphones, a cellphone charger, and
financial and personal documents bearing defendant’s name.
Defendant later stipulated that 308 Coventry Lane was his residence and
that the room in which the currency and documents were found was his
bedroom.
II.
A.
Defendant was indicted on three charges: first-degree possession with
intent to distribute five ounces or more of cocaine, contrary to N.J.S.A. 2C:35-
5(a)(1) and (b)(1); second-degree conspiracy to distribute cocaine, contrary to
N.J.S.A. 2C:35-5(a)(1) and (b)(1), N.J.S.A. 2C:5-2; and fourth-degree resisting
arrest by flight, contrary to N.J.S.A. 2C:29-2(a).
To convict defendant of the first-degree charge, the State had the burden
to prove beyond a reasonable doubt that he “knowingly or purposely”
possessed five ounces or more of cocaine with the intent to distribute it.
N.J.S.A. 2C:35-5(a)(1), (b)(1).
7
B.
Shortly after defendant was indicted, the State filed a civil forfeiture
action pursuant to N.J.S.A. 2C:64-3. In that action, the State sought forfeiture
of the $71,519 in currency seized in the search incident to defendant’s arrest
and the execution of the search warrant at 308 Coventry Lane. In its civil
forfeiture complaint, the State alleged that the currency at issue was associated
with drug transactions.
In accordance with N.J.S.A. 2C:64-3(c), the State served the summons
and forfeiture complaint on defendant, identifying him as a person “known to
have a property interest” in the currency subject to forfeiture. The summons
advised defendant that in order to contest the State’s action, he was required to
file a “written answer or motion and proof of service” within thirty-five days
of service.
Represented by the attorney who served as his counsel in his criminal
matter, defendant filed an answer to the complaint in the civil forfeiture action,
stating a general denial of the allegations in the complaint. He also moved to
stay that action pending the resolution of his criminal matter. With the State’s
consent, the judge assigned to the civil forfeiture action stayed discovery as to
defendant in that action and the forfeiture trial “until related criminal
8
proceedings against [defendant] have been concluded by the entry of final
judgment or until further Order of the Court.”
Notwithstanding the order staying the civil forfeiture action, defendant,
then incarcerated, prepared and served on the State in that action a notice of
motion for the issuance of a writ of replevin pursuant to Rule 4:61-1, and a
supporting certification.2 As his attorney later advised the trial court in the
criminal matter, defendant neither consulted with his counsel regarding his
plan to serve the notice of motion and certification nor informed his counsel of
that plan. Defense counsel learned of the existence of those pleadings when
the State sent him a copy of them.
In his certification, defendant asserted that the currency in dispute was
his property and demanded its return, along with the return of enumerated
items that had been seized by police officers but were not the subject of the
State’s civil forfeiture action. Defendant represented that the currency and
other property were “derived from a number of legitimate sources, including,
but not limited to, gambling winnings, personal loans, business loans and the
sale of personal belongings.” Defendant contended that there was “no credible
nexus between the property seized and any unlawful acts alleged by the State.”
2
Although defendant served the notice of motion for a writ of replevin and
certification on the State in the civil forfeiture action, there is no indication in
the record that he filed those pleadings with the court in that action .
9
C.
In a pretrial proceeding in defendant’s criminal case, the trial court
considered the admissibility of the testimony of the State’s expert witnesses.
The State designated Detective Omar Belgrave as an expert witness about the
significance of the quantity, packaging, and monetary value of the narcotic s
seized, the significance of contemporaneous possession of drug paraphernalia,
and the significance of the quantity and denomination of the currency seized.
The State designated Detective Jeffrey Dockery as an expert witness on the
significance of defendant’s possession of cellphones.
Defendant objected to the proposed testimony of both experts. At
defendant’s request, the trial court conducted an N.J.R.E. 104(c) hearing to
determine the admissibility of Dockery’s testimony. It held oral argument as
to the admissibility of the testimony of both experts.
Citing State v. McLean, 205 N.J. 438 (2011), State v. Reeds, 197 N.J.
280 (2009), and State v. Odom, 116 N.J. 65 (1989), the trial court admitted the
testimony of Belgrave and Dockery. The court authorized the State to pose to
each expert a hypothetical question based exclusively on the trial evidence and
stated that it would give the jury a limiting instruction on the use and
significance of the expert testimony.
10
In another pretrial proceeding, the State sought to admit into evidence
the notice of motion for a writ of replevin and certification. The State sought
leave to redact the certification to remove from the document defendant’s
contention that his property was derived from legitimate sources, as well as
other portions of the certification. Defendant objected, contending that if
those documents were to be admitted at all, they should be admitted in
unredacted form. The trial court ruled that the notice of motion for a writ of
replevin and certification were admissible with minor redactions; defendant’s
assertion that his property was derived from legitimate sources was included in
the version of the certification that was admitted into evidence at his criminal
trial.
D.
Defendant was tried before a jury over seven days.
Prior to the State’s presentation of Belgrave’s expert testimony, the trial
court conferred with counsel regarding the hypothetical question to be posed to
the witness. Defendant reiterated his objection to the use of a hypothetical
question on the issue of his alleged intent to distribute cocaine. At defendant’s
request, the court amended the hypothetical question. The court qualified
Belgrave as an expert in narcotics identification, trafficking, and distribution.
11
After a preliminary inquiry to lay a foundation for Belgrave’s opinion,
the State posed the following hypothetical question to the expert witness:
A package containing 1006.6 grams of cocaine is
delivered to a person’s apartment. The person picks up the
package, police search the package, the person, and the
person’s apartment. The package contains 1006.6 grams
of cocaine, wrapped in plastic. Seized from the person is
$656, in the following denominations: 32 $20.00 bills,
and 16 $1 bills. No personal use drug paraphernalia is
seized from the person or his apartment. Two bags of
rubber bands are seized in the person’s bedroom. In the
person’s bedroom closet is $70,863 in cash, in the
following denominations: 330 $100 bills; 147 $50 bills;
1,449 $20.00 bills; 108 $10 bills; 89 $5 bills; and 32 $.25
coins. In the basement is seized one roll of plastic shrink
wrap. In the hallway closet is a Seal-a-Meal vacuum
storage system, and three boxes of Food Saver heat
sealable bags. So my question for you, is based upon these
hypothetical facts, do you have an opinion as to whether
the cocaine in this hypothetical is possessed with intent to
distribute?
Belgrave responded, “[m]y opinion is [that] in this hypothetical, is yes,
that cocaine was possessed with the intent to distribute.” He then explained
the basis for his response. On cross-examination, defendant challenged the
foundation and substance of Belgrave’s opinion.
Prior to Dockery’s testimony, defendant renewed his objection to the use
of a hypothetical question in the State’s inquiry of Dockery, and also objected
to the scope of the State’s proposed question. At the trial court’s direction,
12
counsel for the State and defendant conferred on the wording of the
hypothetical question. The court qualified Dockery as an expert on the use of
cellphones in the distribution of drugs.
After laying a foundation for Dockery’s expert opinion, the State posed
the following hypothetical question:
A package containing 1006.6 grams of cocaine is in a
person’s possession; the person has three cell phones
on his person; one is a New Jersey area code with a
known subscriber, the other two are prepaid phones
with no subscriber information, and limited, if any, call
history or contact information. The person has two cell
phones in his bedroom, they are prepaid phones, they
have limited if any call history, or contact information.
Based on those hypothetical facts, do you have an
opinion as to whether the possession of five cell phones
in this hypothetical question is indicative of conduct
commonly associated with possession with intent to
distribute cocaine?
Dockery responded that he considered the conduct described in the
hypothetical to be “consistent with how phones would be used in the mann er to
. . . distribute narcotics, for several reasons.” He then explained the basis for
his conclusion. Defense counsel cross-examined Dockery about his opinion
and the basis for that opinion.
The trial court gave a limiting instruction to the jury with respect to both
of the State’s expert witnesses. It cautioned the jury that it was not bound by
either expert’s opinion and that it should consider each opinion and give it the
13
weight to which the jury deemed that opinion to be entitled. The court noted
that “whether that weight be great or slight is for you to determine, or you may
reject [the opinion].”
The trial court admitted into evidence the notice of motion for a writ of
replevin and certification that defendant served in the civil forfeiture action ,
with minor redactions in accordance with the court’s pretrial ruling. Neither
party presented testimony regarding that evidence. Defense counsel, however,
affirmatively relied on defendant’s notice of motion and certification in his
opening statement, asserting that defendant would not have sought the return
of his money were he a drug dealer, as the State alleged he was. Defense
counsel reiterated that point in summation, and further argued that defendant’s
certified statement that he legally earned the money constituted unrebutted
evidence that defendant derived the money not from drug distribution, but
from legal sources.
In its final charge to the jury, the trial court instructed the jury not to
infer from the fact that evidence was seized that it was associated with
criminal activity.
14
The jury convicted defendant of first-degree possession with intent to
distribute five ounces or more of cocaine. 3 After denying defendant’s motion
for a judgment of acquittal pursuant to Rule 3:18-2 and his motion for a new
trial pursuant to Rule 3:20-1, the trial court imposed a discretionary extended
term of twenty-two years’ incarceration with eighty-eight months’ parole
ineligibility in accordance with N.J.S.A. 2C:43-6(f).
E.
Defendant appealed his conviction. Relying on Cain and Simms, which
were decided after briefing in defendant’s appeal but prior to argument before
the Appellate Division, defendant asserted that the trial court erred when it
admitted the expert testimony of Belgrave and Dockery. He also contended
that the trial court’s admission of the notice of motion for a writ of replevin
and the certification constituted reversible error.
Citing the decision of another panel in State v. Green, 447 N.J. Super.
317, 328 (App. Div. 2016), the Appellate Division afforded this Court’s
3
Prior to the jury’s deliberations, the trial court granted defendant’s motion
under Rule 3:18-1 and dismissed the charges of conspiracy to distribute
cocaine and resisting arrest by flight. The trial court, as factfinder, convicted
defendant of the disorderly persons offense of possession with intent to use
drug paraphernalia, contrary to N.J.S.A. 2C:36-2, and merged that offense with
defendant’s first-degree offense for purposes of sentencing.
15
decisions in Cain and Simms pipeline retroactivity.4 In Green, the Appellate
Division determined -- “unless we are instructed to the contrary” -- that this
Court “intended pipeline retroactivity to apply to the Cain decision.” Ibid.
The Green panel acknowledged the use of the term “[g]oing forward” in Cain
but viewed that term to mean only that the Court did not intend to apply Cain
to cases in which final judgment had been entered and all appeals had been
exhausted. Id. at 327 (citing Cain, 224 N.J. at 429).
Finding Green dispositive as to retroactivity, the Appellate Division in
this case applied the principles of Cain and Simms to this appeal. It held that
the State’s expert opinion testimony improperly addressed the question of
whether defendant possessed cocaine with intent to distribute, thereby
usurping the jury’s constitutional role as factfinder. The Appellate Division
concluded that the trial court’s error deprived defendant of a fair trial and
reversed defendant’s conviction.
The Appellate Division rejected defendant’s challenge to the trial court’s
denial of his motion to suppress the contents of the UPS package. It did not
reach defendant’s constitutional challenge to the trial court’s admission of the
4
The term “pipeline retroactivity” denotes the application of a new rule of
criminal procedure to “all future cases, the case in which the rule is
announced, and any cases still on direct appeal.” State v. Knight, 145 N.J.
233, 249 (1996); accord State v. Henderson, 208 N.J. 208, 301-02 (2011);
State v. Dock, 205 N.J. 237, 256 (2011).
16
notice of motion for a writ of replevin and certification served in the civil
forfeiture action. The Appellate Division stated, however, that in the event
that the State were to retry defendant, the trial court should reexamine its
decision with respect to that issue.
The Court granted the State’s petition for certification, 236 N.J. 241
(2018), and granted defendant’s cross-petition limited to two issues: “(1) the
use of defendant’s answer filed in the civil forfeiture action, and (2) the
testimony of the State’s expert and the court’s response thereto,” 236 N.J. 241,
241-42 (2018). We also granted the Attorney General’s motion to participate
as amicus curiae.
III.
The State urges the Court to apply Cain prospectively and asserts that,
even if the Court affords that decision pipeline retroactivity and finds error in
the trial court’s admission of the expert testimony, that error was harmless.
The State contends that the Court should review the trial court’s admission of
defendant’s notice of motion for a writ of replevin and certification under the
doctrine of invited error and should affirm the trial court’s admission of the
evidence.
Defendant argues that the Court should afford Cain pipeline retroactivity
and apply that decision in this appeal. He also contends that the State’s
17
hypothetical questions to its experts violated the case law that governed prior
to Cain. Defendant argues that the admission of the notice of motion for a writ
of replevin and certification violated his constitutional rights, as well as
principles of fundamental fairness, and deprived him of a fair trial.
Amicus curiae the Attorney General views the plain language of Cain to
express the Court’s intent that the principles of that decision apply only
prospectively. The Attorney General asserts that the trial court’s admission of
the notice of motion for a writ of replevin and certification did not violate
defendant’s constitutional rights and agrees with the State that if that decision
constituted error, any such error was harmless.
IV.
A.
We first address whether the trial court erred when it held that the expert
testimony of Belgrave and Dockery, elicited by means of hypothetical
questions based on the trial evidence, met the standard of N.J.R.E. 702. That
rule authorizes the admission of expert testimony “in the form of an opinion”
“[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.” Ibid. To
satisfy N.J.R.E. 702, the expert testimony must “concern[] a subject matter
beyond the ken of an average juror.” Cain, 224 N.J. at 420 (quoting Reeds,
18
197 N.J. at 290). “Although expert testimony may ‘embrace[] an ultimate
issue to be decided by the trier of fact,’ N.J.R.E. 704, the testimony can be
excluded if ‘the risk of . . . undue prejudice, confusion of issues, or misleading
the jury’ substantially outweighs its probative value, N.J.R.E. 403.” State v.
Sowell, 213 N.J. 89, 100 (2013) (alteration and ellipsis in original).
In cases decided over a span of three decades, this Court applied
N.J.R.E. 702 to drug expert testimony elicited by hypothetical questions
premised on the evidence presented at trial. We review those decisions in turn.
1.
In Odom, the Court addressed a drug expert’s testimony in response to a
hypothetical question. 116 N.J. at 71, 76-82. There, the prosecutor
summarized the evidence against the defendant in the hypothetical question
and inquired whether the facts presented in the question indicated drug
possession for personal use or drug possession with intent to distribute . Id. at
69. With no objection from the defendant, the expert stated his opinion that
the cocaine found “[was] possessed with intent to distribute,” and gave the
basis for his opinion. Ibid.
Affirming the defendant’s conviction, the Court held that “as long as the
expert does not express his opinion of [the] defendant’s guilt but simply
characterizes defendant’s conduct based on the facts in evidence in light of his
19
specialized knowledge, the opinion is not objectionable even though it
embraces ultimate issues that the jury must decide.” Id. at 79. The Court
cautioned that the hypothetical question should be “carefully phrased” and
limited to the evidence presented
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 distribution.
[Id. at 81-82 (quoting State v. Odom, 225 N.J. Super.
564, 573 (App. Div. 1988)).]
The Court approved the use of “a hypothetical question through which
[the expert] can advise the jury of the significance of these facts on the issue of
possession” and authorized the State to ask a drug expert “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.” Odom, 116 N.J. at 82. The
Court required that the hypothetical question “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 also found it
essential that, following the statement of the expert’s opinion, he or she advise
the jury “of the basis for that opinion.” Ibid. The Court prohibited the expert
20
from using “the precise terminology of the statute defining the criminal
offense and its necessary elements,” and from stating the defendant’s name.
Ibid. Finally, the Court directed trial courts to instruct juries on the weight
that jurors should give to the expert’s opinion and to “emphasize[] that the
determination of ultimate guilt or innocence is to be made only by the jury.”
Ibid.
The Court applied the holding of Odom in several decisions, refining the
principles stated in that case. In State v. Summers, the Court upheld the
admission of expert testimony elicited by the question of whether an individual
described in the hypothetical possessed the drugs in question for purposes of
distribution. 176 N.J. 306, 312-16 (2003). Then, in State v. Nesbitt, the Court
declined to find plain error in the admission of the State’s expert testimony but
cautioned against the use of expert testimony “to state that which is obvious”
and reiterated that the trial court must act as gatekeeper to determine “whether
there exists a reasonable need for an expert’s testimony.” 185 N.J. 504, 507-
08, 514-15 (2006). Thereafter, in Reeds, the Court reversed the defendant’s
conviction because the expert had offered an opinion on the defendant’s
constructive possession of drugs that was “tantamount to a legal conclusion,
resulting in a veritable pronouncement of guilt on the two possession crimes,”
21
thus usurping the jury’s exclusive authority to determine guilt or innocence.
197 N.J. at 297-300.
Lastly, in McLean, the Court cautioned that courts should not permit
experts to
intrude on the province of the jury by offering, in the
guise of opinions, views on the meaning of facts that
the jury is fully able to sort out without expert
assistance and that expert opinions may not be used to
express a view on the ultimate question of guilt or
innocence.
[205 N.J. at 461.]
The distinction between proper and improper drug expert testimony was
illustrated by the Court’s holding in Sowell; there, the Court allowed the
presentation of expert opinion about “the value of heroin, how it is packaged,
how drugs are smuggled into prison, [and] whether thirty envelopes of heroin
reflect distribution or personal use.” 213 N.J. at 104. The Court barred expert
testimony, however, regarding a question within the understanding of the
average juror: whether a drug transaction has taken place when “one person
handed an object to another, who placed it in a bag of potato chips in which
officers found heroin moments later.” Ibid.
The rule of Odom, as explained in those later decisions, provided the
governing standard at the time of defendant’s trial.
22
2.
While defendant’s appeal in this case was pending, the Court decided
Cain and Simms. In Cain, the State posed a protracted hypothetical question
to a drug expert regarding the import of surveillance observations and seized
evidence on the question of intent to distribute. 224 N.J. at 431; accord
Simms, 224 N.J. at 406-09. Reversing the defendant’s conviction, the Court
reiterated the admissibility of drug expert opinion so that jurors may
understand “the arcana of drug-distribution schemes.” Cain, 224 N.J. at 426;
see also Simms, 224 N.J. 407-09. The Court also recognized that hypothetical
questions may be appropriate in particular settings, such as cases in which
critical facts are in dispute, Cain, 224 N.J. at 430, but observed that
an expert is no better qualified than a juror to determine
the defendant’s state of 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.
[Id. at 427-28.]
23
The Court stated the following principle to guide courts and counsel in
drug prosecutions:
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.
[Id. at 429 (first emphasis added).]
The Court noted that “[i]n the end, we must rely on the sound discretion of our
trial judges to follow the guidance given here.” Id. at 430.
In Simms, the Court reiterated the holding of Cain and applied the
principles set forth in that case to exclude expert testimony in response to a
lengthy hypothetical question on the existence of a conspiracy to distribute
drugs. 224 N.J. at 403-09. The Court concluded that “[a] hypothetical
question in a drug case should not be used as a prosecutorial tool to sum up an
entire case in a single question for the purpose of eliciting an expert’s opinion
on a defendant’s guilt.” Id. at 408. The Court held that the expert in Simms
had rendered an “ultimate-issue opinion” on the defendant’s guilt. Id. at 407.
Notwithstanding the defendant’s failure to object to the hypothetical question,
the Court held that the trial court’s error had been “clearly capable of
24
producing an unjust result,” warranting reversal of the defendant’s conviction.
Ibid. (quoting R. 2:10-2).
Cain and Simms thus restricted the use of hypothetical questions that
Odom and its progeny had permitted. We now turn to the question of whether
Cain and Simms apply retroactively to this appeal.
B.
In determining the retroactivity of a rule, a court’s threshold
consideration is whether the holding constitutes a “new rule” in that it “‘breaks
new ground or imposes a new obligation on the States or Federal
Government.’” State v. Feal, 194 N.J. 293, 308 (2008) (quoting State v. Lark,
117 N.J. 331, 339 (1989)). If a new rule has been announced, the court must
choose among four options with respect to its application:
The Court may decide to apply the rule purely
prospectively, applying it only to cases in which the
operative facts arise after the new rule has been
announced. Alternatively, the Court may apply the new
rule in future cases and in the case in which the rule is
announced, but not in any other litigation that is
pending or has reached final judgment at the time the
new rule is set forth. A third option is to give the new
rule ‘pipeline retroactivity,’ rendering it applicable in
all future cases, the case in which the rule is announced,
and any cases still on direct appeal. Finally, the Court
may give the new rule complete retroactive effect,
applying it to all cases, including those in which final
judgments have been entered and all other avenues of
appeal have been exhausted.
25
[State v. Knight, 145 N.J. 233, 249 (1996) (citing State
v. Burstein, 85 N.J. 394, 402-03 (1981)).]
In choosing the appropriate application of a new rule, the court weighs
three factors: “(1) the purpose of the rule and whether it would be furthered by
a retroactive application, (2) the degree of reliance placed on the old rule by
those who administered it, and (3) the effect a retroactive application would
have on the administration of justice.” State v. Cummings, 184 N.J. 84, 97
(2005) (quoting Knight, 145 N.J. at 251).
In Cain, the Court provided express guidance as to the appropriate
application of the new rule it announced through the use of the phrase “going
forward,” which clearly reflects the intention that the new principles would
govern future trials. Cain, 224 N.J. at 429.
In State v. Dock, 205 N.J. 237, 252 (2011), the Court addressed the
import of the phrase “going forward” with respect to the question of
retroactivity. There, the defendant argued that this Court’s presumptive ban on
the use of physical restraints on witnesses, announced eight years earlier in
State v. Artwell, 177 N.J. 526, 539 (2003), should apply retroactively to his
case, in which a witness had appeared before the jury in handcuffs. Dock, 205
N.J. at 251-52. Before determining whether Artwell’s holding as to physical
restraints on witnesses was intended to be retroactive, the Court in Dock
26
contrasted that holding with a second rule announced in Artwell: a prospective
prohibition on defense witnesses wearing prison garb before a jury. Id. at 252.
It observed:
At the outset, it is critical to differentiate between what
Artwell holds and what it does not. In Artwell, a
defense witness was compelled to testify before the jury
in both prison garb and in restraints. 177 N.J. at 530.
In respect of the former, the Court concluded that,
“going forward, a trial court may not require a
defendant’s witness to appear at trial in prison garb.”
Id. at 539. Thus, the Court made clear that its ruling
proscribing defense witnesses testifying in prison garb
was prospective only.
[Dock, 205 N.J. at 252.]
The Court thus confirmed that when the phrase “going forward” is used
to state a new rule governing criminal trials, that rule applies prospectively to
cases other than the appeal before the Court. Ibid.; see also State v. Green,
239 N.J. 88, 106 (2019) (stating that “[t]o guard against the risk of mugshot
exposure,” enhanced identification practices would be required “going
forward”); State v. Miles, 229 N.J. 83, 101 (2017) (“[G]oing forward, for
offenses committed after the issuance of this opinion, we hold that the same -
elements test will serve as the singular framework for determining wheth er two
charges are in fact the same offense for purposes of double-jeopardy
analysis.”); State v. Lunsford, 226 N.J. 129, 155 (2016) (directing that, “going
27
forward, the State must apply for a court order under N.J.S.A. 2A:156A-29(e)
to obtain telephone billing or toll records”); State v. Mohammed, 226 N.J. 71,
89 (2016) (holding that, “going forward,” the trial court, along with counsel,
has a duty to follow prescribed procedures when the court observes or is
notified of juror inattentiveness at trial); State v. Feliciano, 224 N.J. 351, 356
(2016) (holding that, “going forward,” when police officers begin to monitor a
new telephone facility under a provision of the New Jersey Wiretap Act, they
“must notify a wiretap judge within 48 hours of the switch and obtain
authorization to begin monitoring the new facility”); State v. Witt, 223 N.J.
409, 450 (2015) (directing that the rule of law stated in that case was a new
rule to be “given prospective application from the date of this opinion” and
holding that, “[g]oing forward, searches on the roadway based on probable
cause arising from unforeseeable and spontaneous circumstances are
permissible”).
As used in Cain, the term “going forward” clearly conveys the same
intent. The Court stressed that it “now join[ed]” jurisdictions that limit the use
of hypothetical questions in the presentation of drug expert evidence . Cain,
224 N.J. at 429. It stated a new rule for future trials and explained its decision
to reverse the conviction in the case before it, notwithstanding the otherwise
prospective application of its new rule. Id. at 426-29, 431-33. Thus, in Green
28
-- on which the appellate court here relied -- the Appellate Division
misconstrued the language of Cain on the question of retroactivity. See Green,
447 N.J. Super. at 326-28.5
We reaffirm that the rule stated in Cain and Simms was intended to
apply only to the appeals in those two cases and to cases tried after the date of
those decisions. We now consider whether the trial court’s determination to
allow the hypothetical questions and their responses comported with the
standards that applied before the Court decided Cain and Simms.
C.
When it found that the expert testimony of Belgrave and Dockery
concerned subjects not within the jury’s common knowledge and experience,
and admitted that testimony at defendant’s trial, the trial court properly applied
5
At oral argument, counsel appearing on behalf of the Attorney General’s
Office informed the Court that the Attorney General is aware of six cases in
which the Appellate Division applied Cain and Simms retroactively in
accordance with Green and reversed the defendants’ convictions. She
indicated that, to the best of her knowledge, two of those cases have been
retried. Counsel for the Attorney General stated that if this Court overruled
Green, the Attorney General would not take the position that defendants
granted new trials pursuant to Green are no longer entitled to that relief. She
stated that if any such cases were retried, Cain and Simms would govern the
admission of drug expert testimony in those trials. The Court appreciates the
Attorney General’s commitment to handle any such cases in accordance with
those representations.
29
the principles of Odom and the other case law that governed when this case
was tried.
Belgrave, qualified as an expert in narcotics identification, trafficking,
and distribution, addressed a subject “within the specialized knowledge of the
expert.” Odom, 116 N.J. at 81. The State questioned the expert to lay a
foundation for the hypothetical question, as Odom required. See ibid.; see also
Sowell, 213 N.J. at 99-100; Nesbitt, 185 N.J. at 515. The hypothetical
question that the State posed was limited to the evidence adduced at trial
regarding the volume and packaging of the cocaine delivered in the UPS
package, the paraphernalia and currency seized, and the absence of personal-
use paraphernalia. See Odom, 116 N.J. at 81; see also Sowell, 213 N.J. at 107;
McLean, 205 N.J. at 455; Summers, 176 N.J. at 314-15. The hypothetical
question made clear to the jury that Belgrave responded only to the facts
presented. See Odom, 116 N.J. at 81; see also Sowell, 213 N.J. at 107;
McLean, 205 N.J. at 455; Summers, 176 N.J. at 314-15. After Belgrave’s
response to the hypothetical question, the State further inquired about the basis
of his opinion, as Odom mandated. See Odom, 116 N.J. at 71, 82; see also
Sowell, 213 N.J. at 103, 106; Nesbitt, 185 N.J. at 513; Summers, 176 N.J. at
315. In a limiting instruction, the trial court explained to the jury how it
should evaluate the expert’s testimony. See Odom, 116 N.J. at 82; see also
30
Sowell, 213 N.J. at 103-04; McLean, 205 N.J. at 455; Summers, 176 N.J. at
315.6
Dockery, qualified as an expert on the use of cellphones in the
distribution of controlled dangerous substances, similarly testified within the
parameters of Odom and its progeny. The hypothetical question posed to
Dockery, which was drafted by the State and edited by both counsel, was
limited to the trial evidence regarding defendant’s possession of cocaine and
his use of multiple cellphones; that question made clear that the expert should
address only the evidence identified in the hypothetical. See Odom, 116 N.J.
at 79-83; see also Sowell, 213 N.J. at 107; McLean, 205 N.J. at 455; Reeds,
197 N.J. at 293; Summers, 176 N.J. at 314-15. After Dockery stated that the
conduct described in the hypothetical was “consistent with how phones would
be used in the manner to . . . distribut[e] narcotics, for several reasons,” the
6
Defendant asserted for the first time on appeal that the trial court violated
N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328, 336 (1992), when it
permitted Belgrave to testify that the currency identified in the State’s
hypothetical question “obviously is either proceeds or monies that’s going to
be used to purchase more cocaine.” At trial, defendant objected to “the
characterization” in the expert witness’s testimony, but did not cite N.J.R.E.
404(b) or Cofield, and accordingly this Court reviews the trial court’s decision
for plain error. R. 2:10-2. We view the witness’s testimony about the
significance of the currency to be an explanation of his opinion regarding the
hypothetical facts in compliance with Odom, not other-crimes evidence against
defendant admitted in violation of N.J.R.E. 404(b), and accordingly do not find
plain error.
31
State questioned him on the basis for his opinion. See Odom, 116 N.J. at 71,
82; see also Sowell, 213 N.J. at 103, 106; Nesbitt, 185 N.J. at 513; Summers,
176 N.J. at 315. Finally, the trial court gave the jury a proper limiting
instruction. See Odom, 116 N.J. at 82; see also Sowell, 213 N.J. at 103-04;
McLean, 205 N.J. at 455; Summers, 176 N.J. at 315.
In short, we find no error in the trial court’s application of the law on
drug expert testimony that governed at the time of defendant’s trial and
therefore reverse the Appellate Division’s judgment reversing defendant’s
conviction and granting him a new trial.
V.
A.
We turn now to defendant’s argument that the trial court violated
defendant’s state and federal constitutional rights and principles of
fundamental fairness when it admitted into evidence defendant’s notice of
motion for a writ of replevin and certification.
Defendant specifically asserts that the admission of those documents
violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution and Article I, Paragraphs 1, 9, and 10 of the New
Jersey Constitution. Defendant contends that because a provision of the civil
forfeiture statute, N.J.S.A. 2C:64-3(d), requires a claimant to answer a civil
32
forfeiture complaint before moving to stay the forfeiture action, he was
compelled to waive his privilege against self-incrimination in order to assert
his due process right to that property. In addition, defendant relies on the
Appellate Division’s opinion in State v. Melendez, 454 N.J. Super. 445, 475
(App. Div. 2018), aff’d and modified, ___ N.J. at ___, in which that court
found that the admission of the defendant’s answer in his criminal trial
violated principles of fundamental fairness. Defendant contends that his notice
of motion for a writ of replevin and certification are analogous to the answer
that the defendant in Melendez filed in accordance with N.J.S.A. 2C:64-3(d).
In Melendez, this Court affirmed and modified the Appellate Division’s
judgment. Melendez, ___ N.J. at ___ (slip op. at 22). We recognized that
when a civil forfeiture action is filed during the pendency of a criminal
prosecution of a potential claimant to that property, N.J.S.A. 2C:64-3(d)
requires that the claimant file an answer before moving to stay the forfeiture
action. Id. at ___ (slip. op. at 12-15). We held that, like the defendant police
officers in Garrity -- who were forced to choose between forfeiting their jobs
and incriminating themselves in an investigation of police misconduct --
claimants in a civil forfeiture action who are defendants
in a parallel criminal case also face an untenable
choice: to forfeit their property or incriminate
themselves. To defend against a forfeiture case,
claimants who are also criminal defendants must file an
33
answer that states their interest in the property. In other
words, to assert their constitutional right not to be
deprived of property without due process, they have to
link themselves to alleged contraband and give up their
constitutional right against self-incrimination.
Alternatively, they can refuse to answer and lose their
property.
[Id. at ___ (slip op. at 17-18).]
This Court held in Melendez that “a defendant’s choice to file an answer
under those circumstances is not freely made. It is fraught with coercion.” Id.
at ___ (slip op. at 18). To avoid a conflict between a defendant’s privilege
against self-incrimination and his or her right to assert an interest in property
that is the subject of a civil forfeiture complaint, the Court concluded that a
claimant’s answer filed in a civil forfeiture action pursuant to N.J.S.A. 2C:64-
3(d) should not be admitted in his or her criminal trial. Id. at ___ (slip op. at
18-20).
B.
We note a significant distinction between the civil forfeiture answer
filed by the defendant in Melendez and the notice of motion for a writ of
replevin and certification at issue here. When defendant served his notice of
motion and certification, he was not required by N.J.S.A. 2C:64-3(d) or any
other civil forfeiture statute to file a pleading in order to protect his rights to
the disputed property. His attorney had already filed an answer setting forth a
34
general denial and had secured a stay of the civil forfeiture action, thus
obviating the need for defendant to file any pleading in that action while his
criminal case was pending. Nonetheless, defendant sought to reopen the
forfeiture action and demanded that the State return the disputed property.
This appeal thus raises none of the Fifth Amendment concerns that we
addressed in Melendez. See Melendez, ___ N.J. at ___ (slip op. at 17-20).
Moreover, defendant affirmatively used the notice of motion for a writ
of replevin and certification in his own defense at trial. In his opening and
summation, defense counsel relied on those statements, and he stated in
summation that they constituted unrebutted evidence that defendant lawfully
obtained the currency found on his person and in his home.
Accordingly, we conclude that the trial court’s admission of defendant’s
notice of motion for a writ of replevin and certification did not constitute error.
VI.
The judgment of the Appellate Division is reversed, and defendant’s
conviction is reinstated.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
PATTERSON’s opinion.
35