State v. Berry

• Decision Date: 04 May 1995
• Citation: 140 N.J. 280,658 A.2d 702
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Charles Marshall BERRY, Defendant-Respondent. STATE of New Jersey, Plaintiff-Respondent, v. Dwayne CANNON, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 280

140 N.J. 280

658 A.2d 702

STATE of New Jersey, Plaintiff-Appellant, v. Charles Marshall BERRY, Defendant-Respondent.

STATE of New Jersey, Plaintiff-Respondent, v. Dwayne CANNON, Defendant-Appellant.

Supreme Court of New Jersey.

Argued May 4, 1994.

Reargued Sept. 27, 1994.

Argued Sept. 27, 1994.

Decided May 4, 1995.

Paul H. Heinzel, Deputy Atty. Gen., for appellant State of New Jersey (Deborah T. Poritz, Atty. Gen., attorney).

Matthew Astore, Deputy Public Defender II, for appellant Dwayne Cannon (Susan L. Reisner, Acting Public Defender, attorney).

M. Virginia Barta, Asst. Deputy Public Defender, for respondent Charles Marshall Berry (Susan L. Reisner, Acting Public Defender, attorney).

Jeffrey Garrigan, Asst. Prosecutor, for respondent State of New Jersey (Carmen Messano, Hudson County Prosecutor, attorney).

Deborah Bartolomey, Deputy Atty. Gen., for amicus curiae, Atty. Gen. in State v. Cannon (Deborah T. Poritz, Atty. Gen., attorney).

The opinion of the Court was delivered by

STEIN, J.

These appeals concern the State's practice of using expert witnesses in drug-distribution cases to explain techniques commonly used by drug dealers. The expert testimony typically is offered to enhance the jury's understanding of the factual evidence proffered by the State to prove the commission of the offenses charged in the indictments.

In State v. Berry, the sole question presented in the State's appeal, here by virtue of a dissent in the Appellate Division, see Rule 2:2-1(a)(2), is whether defendant's convictions for possession of cocaine and possession with intent to distribute were based on sufficient evidential support in the record. In an unpublished disposition the Appellate Division majority reversed the conviction, holding that the State's expert's opinion could not properly have been used "to convert presence in a vehicle into active participation." The dissenter below, pointing out that the State's expert had testified that defendant had " 'without a question, possessed [the drugs] for the sole purpose of selling them,' " concluded that abundant evidence established defendant's guilt. Although the admissibility of the expert's testimony was not directly posed, we listed the case for reargument, together with State v. Cannon, to afford counsel the opportunity to address the issue of admissibility.

In Cannon, the Appellate Division in a published opinion, 271 N.J.Super. 391, 638 A.2d 915 (1994), reversed a pretrial ruling in a drug-distribution prosecution barring the State from introducing expert testimony concerning distribution methods commonly used by street-level drug dealers. We granted defendant's motion for leave to appeal. See Rule 2:2-2.

I Berry

On August 1, 1990, at approximately 3:40 p.m., James Steiger, a New Jersey State Police Officer, stopped a 1984 Buick traveling westbound on Interstate 80. The officer was parked at the Fletcher Avenue U-turn in the Borough of Fort Lee observing southbound express-lane traffic on Interstate Highway 95 and westbound traffic on Interstate Highway 80. As the 1984 Buick passed his vantage point, the officer noticed that the left portion of the front windshield was cracked and that yellow dice were hanging from the rear-view mirror. The officer stopped the car for violating N.J.S.A. 39:3-74 (requiring "unobstructed" windshield) and N.J.S.A. 39:3-75 (prohibiting "unduly fractured" windshield).

The driver, defendant Charles Marshall Berry, told the officer his name and gave him a vehicle-registration card and an insurance card, both of which belonged to Gracie Lyde, whom Berry identified as his girlfriend. Berry could not, however, produce his driver's license. Berry was "extremely nervous" and would not look Officer Steiger "in the eye" when he spoke to him. Moreover, Berry's "hands were trembling." As a result, Officer Steiger asked Berry to exit the car and, after Berry complied, he conducted a pat-down search of Berry. He then asked the passenger in the front seat, A.C., to exit the car. While the officer was speaking to A.C., he noticed that he had a plastic bag in his mouth which the officer directed him to spit out. After he spat the bag to the ground, Officer Steiger saw that "the plastic bag contained a yellow chunky substance [that he] suspected to be crack cocaine." Subsequent laboratory analysis revealed that the rock-like substance found in A.C.'s mouth was 17.90 grams (.63 ounces) of cocaine. The officer then conducted a pat-down search of A.C. and told him to stand next to Berry in front of the car. The officer ordered the passenger in the backseat, L.K., out of the car and conducted a pat-down search of L.K. The officer then arrested all three occupants for possession of cocaine.

Officer Steiger transported defendant and his passengers to the Totowa Barracks, where he ascertained that A.C. and L.K. were juveniles. The officer then conducted a search incident to the arrest of the suspects, and found a "plastic bag containing one-hundred small, clear plastic bags in [A.C.'s] left sock." He also issued two summonses to Berry for the motor-vehicle violations.

Berry was charged on a two-count indictment with violating N.J.S.A. 2C:35-5a(1), b(2) (possession of cocaine with intent to distribute) (count one), and N.J.S.A. 2C:35-10a(1) (possession of cocaine substance) (count two). At trial, Officer Steiger and Sergeant Michael Carlino, a member of the Bergen County Narcotics Task Force, testified for the State. Officer Steiger testified essentially to the facts and circumstances surrounding the arrest. Sergeant Carlino testified that he has been with the Bergen County Prosecutor's Office for "approximately fourteen years, seven of which [he] spent with the Bergen County Narcotic Task Force." He stated that he had been involved in approximately 800 cocaine-related investigations and had made "[h]undreds" of cocaine-related arrests. At the time of trial, he was a supervisor with the Bergen County Narcotics Task Force and supervised approximately thirty undercover investigators. The trial court accepted Sergeant Carlino as an expert in "narcotics and narcotics distribution," and Sergeant Carlino's expert testimony was introduced without objection.

The prosecutor questioned Sergeant Carlino about the distribution of cocaine in the context of a hypothetical set of facts that mirrored the facts and circumstances described in Officer Steiger's testimony. Sergeant Carlino testified that the quantity of cocaine described would typically be broken down into powder form, diluted, and sold in packets ranging in weight from one-tenth of a gram to one-half ounce. He stated that New Jersey drug dealers involved with large quantities of cocaine--ten ounces or more--would probably attempt to purchase the drugs in New York City because the price was lower, and that dealers distributing smaller quantities would buy their cocaine from New Jersey suppliers. Sergeant Carlino testified that the quantity of cocaine described by Officer Steiger could be purchased in New York City for approximately $900, and if that cocaine were broken down and sold in New Jersey in one-tenth of a gram packets its value would be approximately $1800. Sergeant Carlino stated that zip-lock plastic bags of the type found in A.C.'s sock are used to package cocaine for resale as crack.

Sergeant Carlino was asked about the significance, in the hypothesized facts, of there being three occupants in the vehicle, two of whom were juveniles. He testified that drug dealers traveling to New York City to purchase drugs often are accompanied by one or two associates for reasons of safety, and he stated that juveniles are often used as "mules" to carry the drugs so that in the event of apprehension the dealer can avoid serious criminal charges. He testified that juveniles frequently serve as "runners" or "steerers" for drug distributors, but rarely can afford to spend as much as $900 to purchase a large quantity of cocaine. Sergeant Carlino also expressed the opinion that based on the value and high quality of the cocaine, "there's no question that this cocaine was possessed for the sole purpose of resale for distribution."

On cross-examination, defense counsel asked Sergeant Carlino whether "Charles Berry possessed that cocaine with the intent to distribute." The prosecutor objected to that question, contending that it would be improper for Sergeant Carlino to testify about a legal conclusion. On recross-examination, defense counsel again asked whether "with any degree of certainty * * * any particular person possessed those drugs with the intent to distribute?" Sergeant Carlino responded that "all three defendants in the vehicle, without a question, possessed these items for the sole purpose of selling them, repackaging this cocaine into these packets for resale." He then stated, "If you're asking my opinion as to your client or the other two individuals, it was my opinion that they all possessed this cocaine with the intent to resell it." On redirect-examination, "[t]o insure that the question [was] properly placed before the jury," the prosecutor asked Sergeant Carlino whether it was his "opinion that the adult-male driver in the hypothetical question possessed the cocaine in question with the intent to distribute." He answered that he believed that that driver possessed the cocaine with the intent to distribute.

The jury returned a guilty verdict on both counts. The trial court sentenced Berry to ten-years imprisonment on count one, and merged count two into count one. The Appellate Division reversed Berry's convictions, concluding that the evidence was insufficient to sustain the jury's verdict, whereas the dissenting member was of the view that the verdict was amply supported by the State's proofs.

Cannon

Because this appeal concerns a pre-trial evidentiary ruling by the trial court, we summarize the facts primarily on the basis of a proffer by the Assistant Prosecutor...