The opinion of the court was delivered by
Defendant, Brian Green, appeals from his conviction for possession of less than fifty grams of marijuana in violation of N.J.S.A. 2C:35-10(a)(4), a disorderly persons offense, and for possession of more than one ounce but less than five pounds of marijuana with intent to distribute in violation of N.J.S.A. 2C:35-5(b)(11), a third-degree offense. He further appeals from his sentence of six years in State prison with three years of parole ineligibility. Defendant raises the following issues on appeal:
In a supplemental pro se letter brief defendant raises the following additional arguments: the identity of the confidential informant who advised police that he had purchased drugs from the defendant should have been disclosed; the affidavit in support of the search warrant, which allowed the police to search the defendant's home and automobile, was defective; and it was error to merge the disorderly person conviction with the third-degree conviction.
For the following reasons, we conclude the State's drug expert's testimony invaded the fact-finding role of the jury. Its admission at trial was plain error and we reverse and remand for a new trial.
The record discloses the following facts. The police obtained information from a confidential informant that defendant was selling drugs from a motor vehicle and his residence. The confidential informant did not testify at trial, and the court did not require the informant's identity be disclosed as requested by defendant.
After obtaining a search warrant for the vehicle and defendant's residence, the police stopped defendant and a co-defendant in the vehicle and searched them. The search of the automobile, defendant and co-defendant yielded no drugs or contraband, but the police obtained keys to defendant's residence. Several police officers went to defendant's residence to perform the authorized search. They entered the building through a door on the ground-level, which opened onto a stairway. The officers ascended the stairs to enter the residence. The layout of the second floor and the occupants of each bedroom were the subject of substantial testimony at trial because those facts implicated the critical issue of who possessed the drugs the police seized from the dwelling.
The landlord, who operated a restaurant on the first floor and owned the building, testified he rented four separate bedrooms on the second floor to different individuals. He testified defendant, co-defendant Tristian A. Gooden,
The landlord testified the tenants shared a common hallway, kitchen, bathroom, and hall closet. The second floor was described during the trial as a residence, an apartment, and a rooming house. Each tenant was charged and separately paid rent.
The police officers who searched the premises testified they found the doors to all rooms open and unlocked, except, for what was described as bedroom number four, where they found Boyce. According to the police, Boyce was the only person present when they entered the living quarters. No drugs or drug paraphernalia were found in his bedroom.
In what was identified at trial as bedroom two, the police found no sheets, pillows, clothing or personal items to suggest the room was occupied. Under the bed, police found an "Ed Hardy" bag, which contained "a large quantity of marijuana along with individually packaged bags of marijuana and new and used Ziploc bags used to package marijuana." The marijuana in the "Ed Hardy" bag weighed 15.8 ounces. This was the largest cache of marijuana found on the premises. Also found were loose, unused, purple Ziploc bags and two bullets sitting on the dresser.
The landlord identified bedroom two as the room rented by the man who stopped paying rent sometime before the search. Defendant's witness, who identified herself as defendant's girlfriend, testified this was defendant's room, although, the landlord testified defendant had always occupied what was designated as bedroom one and paid a slightly higher rent for it because it was the largest.
In bedroom one, a wallet was found in the dresser containing items with defendant's name on them and $377 in cash. The room also contained a pink notebook, which had names listed followed by numbers which appeared to be a ledger. The room contained a refrigerator; the freezer section held seven one gallon Ziploc freezer bags containing residue of a brownish green plant. This substance was identified by the State's chemist as marijuana residue. There was a box of unused clear sandwich bags on top of the refrigerator. Finally, there was a knotted plastic bag found containing 28.9 grams of marijuana.
In bedroom three, the search revealed an apparently occupied room with a made bed, clothing, and other personal items. There was testimony from the landlord that co-defendant Gooden was living in room three at the time of the search.
In the dresser were various documents containing co-defendant Gooden's name and a Ziploc bag containing several small Ziploc bags. Hidden in the area between the drop ceiling and the old ceiling was a
The search did not reveal any items of interest in the kitchen or bathroom; however, in the common hall closet there were two plastic bags holding 2.2 grams and 6.2 grams
At trial, the officers who conducted the search described what they found in each room. The State presented expert testimony from a chemist who testified all plant product and residue was marijuana, and there was marijuana residue on one of the scales. The State also called a narcotics expert to describe drug distribution practices to the jury. The expert, Detective Brendan Sullivan, gave his opinion on "intent to deliver" versus "simple possession" of marijuana. Sullivan is an employee of the Union County Prosecutor's Office and worked for five years in the narcotics unit.
Sullivan told the jury he previously testified approximately twenty-five times in court as an expert on "whether a person possessed narcotics for distribution rather than for personal use." Sullivan also stated he testified as an expert on "narcotics use, packaging, and distribution." He was asked if he ever declined a request to serve as an expert, and he testified he had declined to testify previously on more than one occasion, when asked by assistant prosecutors to render an opinion in distribution cases. Sullivan stated he declined to render an expert opinion in those cases, because he determined in those cases, after reviewing the State's files, the narcotics possessed were for personal use.
Once qualified, Sullivan opined as follows in response to the prosecutor's questions:
The jury acquitted co-defendant Gooden and convicted defendant of possession with intent to distribute marijuana. N.J.S.A. 2C:35-5(b)(11).
On appeal, defendant first argues the admission of Sullivan's testimony was "plain error." He asserts the testimony was prejudicial, crossed the boundaries established by the Supreme Court for testimony by drug experts, and infringed upon the jury's fact-finding function. Because defendant did not raise this argument below, this issue is reviewed under the "plain error" standard, which provides reversal is mandated only for errors "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Accordingly, the test to apply is whether the possibility of injustice is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336, 273 A.2d 1 (1971).
The Supreme Court recently addressed the struggle our courts encounter governing
[Id. at 426, 133 A.3d 619 (citation omitted).]
Cain also underscored the need to assure drug expert testimony did not intrude upon the jury's fact-finding, explaining:
Previously, the Court suggested in Odom that one way to prevent the intrusion into the jury's fact-finding role was to use hypothetical questions, without a defendant's name and without describing the crime in statutory language. Odom, supra, 116 N.J. at 82, 560 A.2d 1198. In Cain, the Supreme Court, frustrated by the misuse of these hypothetical questions, went further and changed their long standing position, declaring:
We must determine whether this change as to what a drug expert can opine was meant to be applied retroactively to this case and others tried before Cain, pending on appeal. When examining the retroactive effect of a new rule of law, the Supreme Court has instructed:
We can ascertain the Court did not intend to give the new rule complete retroactive effect since the Court used the words "going forward," nor did the Court intend the new rule to be applied purely prospectively, as the Court sent Cain back for retrial. Cain, supra, 224 N.J. at 429, 436, 133 A.3d 619. The question before us is whether the second or the third option set forth in Knight applies. We look to the Supreme Court's guidance in State v. Earls 214 N.J. 564, 70 A.3d 630 (2013) to answer this question.
The Court in Earls identified three factors to be evaluated when considering whether a holding should apply retroactively:
We consider each of these factors in turn. As to the first factor, the purpose of the new rule is to prevent drug experts from intruding into the jury's exclusive province by expressing an opinion, implicitly or explicitly, on defendant's guilt. Applying the new rule to cases still on appeal would serve this purpose.
As to the second factor, weighing the degree of reliance placed on the old rule by those who administered it, since Odom was decided in 1989, the Court reiterated a drug expert may not usurp the jury's function or opine on the guilt of defendants. See Cain, supra, 224 N.J. at 423, 133 A.3d 619 (explaining the Court "slowly retreated from some of the broader implications of Odom"). The clarification of that point now provided by Cain cannot be deemed a surprise, considering the Court's prior discussions criticizing drug expert opinions offered through the use of hypothetical questions to uniformly track very specific facts presented during trial. Although prosecutors have relied upon their ability to use hypothetical questions, their reliance was not entirely justified in view of the Court's pronouncements in prior cases. In State v. Nesbitt, 185 N.J. 504, 514, 888 A.2d 472 (2006), the Court disapproved of a hypothetical question saying, "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." In State v. Reeds, 197 N.J. 280, 293, 962 A.2d 1087 (2009), the Court cautioned prosecutors and trial courts that "Odom's continued application is not without boundaries." The "new rule" was imposed to prevent circumvention of the existing law, that is to curtail drug experts from opining on defendant's guilt.
As to the third factor, applying the rule retroactively there is no evidence presented that it would unduly burden the justice system. Cain does not impact decisions or actions that were already decided on appeal. It also does not impact irreversible actions taken by law enforcement officers in reliance on prior law. Nor does it require new Attorney Guidelines. There will be no unfair prejudice to the State in reversing cases pending appeal that involve improper hypothetical questions. We routinely remand cases for new trials where error has prevented defendants from receiving a fair trial.
After analyzing the three factors set forth by the Court in Earls, we conclude, unless we are instructed to the contrary,
Here, we find "plain error," and particularly because the question of whether Green had "intent to distribute" was based solely on circumstantial evidence and not on any observed sale of the marijuana, as the State did not call the confidential informant as a witness.
Compounding the error, the State elicited testimony from the expert that before the expert gives his opinions in distribution cases, he reviews "the State's file and the facts" and would not testify if he determined that the drugs were for personal use. This improper buttressing informed the jury that notwithstanding the hypothetical question, the expert had predetermined the drugs were for distribution, not just possession for personal use; a factual determination that rests solely in the province of the jury.
For the reasons set forth above, we conclude defendant is entitled to a new trial, but we briefly address one other issue raised by defendant. In the State's opening, the jury was told "the Plainfield Police Department ... came upon information that led them to believe that
Reversed and remanded.