State v. Cannon

• Decision Date: 18 March 1994
• Citation: 271 N.J.Super. 391,638 A.2d 915
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Dwayne CANNON, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 391

271 N.J.Super. 391

638 A.2d 915

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

Superior Court of New Jersey Appellate Division.

Argued Feb. 22, 1994.

Decided March 18, 1994.

Jeffrey Garrigan, Asst. Prosecutor, argued the cause for appellant (Carmen Messano, Hudson County Prosecutor, attorney; Mr. Garrigan, Assistant Prosecutor, of counsel and on the letter-brief).

Matthew Astore, Deputy Public Defender II, argued the cause for respondent (Susan L. Reisner, Acting Public Defender, attorney; Mr. Astore, of counsel and on the letter-brief).

Before Judges PETRELLA, BAIME ¹ and VILLANUEVA.

The opinion of the court was delivered by

VILLANUEVA, J.A.D.

We granted the State's motion for leave to appeal from a pretrial ruling in a drug distribution case barring the testimony of the State's expert witness regarding methods employed by street-level drug dealers. We reverse.

This case arises out of an incident which occurred on February 5, 1993, at Wilkerson Avenue and Martin Luther King Drive in Jersey City. Members of the Jersey City Police Department Narcotics Task Force set up a visual surveillance at that intersection. Sergeant Phil Zacche observed the defendant, Dwayne Cannon, standing on the northwest corner. He observed another individual, Ronald Quarters, approach the corner on a bicycle and engage in a brief conversation with the defendant. Both individuals then went west on Wilkerson Avenue a short distance, at which time McQuarters handed defendant currency. In exchange for the currency, defendant handed over several vials of suspected cocaine to McQuarters.

McQuarters left the area proceeding south on Martin Luther King Drive. Zacche radioed the description of the suspect and his direction to perimeter units who stopped McQuarters and searched him. The search revealed four vials of cocaine.

Prior to receiving radio confirmation from perimeter units regarding the sale, Zacche observed defendant hand the currency received from McQuarters to a male wearing a shiny green jacket with a black hood and jeans. This male immediately left the area proceeding south on Martin Luther King Drive. Zacche radioed the description and direction of this individual to perimeter units but this individual was never located. Defendant was later arrested and searched. The search revealed no further narcotics nor currency.

Defendant was indicted for possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10a(1); possession of a controlled dangerous substance, cocaine, with the intent to distribute the same, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); possession of a controlled dangerous substance, cocaine, with the intent to distribute the same, while within 1,000 feet of school property, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7; distributing a controlled dangerous substance, cocaine, to Ronald McQuarters, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); and distributing a controlled dangerous substance, cocaine, to Ronald McQuarters, while within 1,000 feet of school property, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-7. The last count of the indictment charged McQuarters with possessing a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10a(1).

On August 3, 1993, during jury selection, a pretrial N.J.R.E. 104(a) hearing was conducted concerning the proffered testimony of an expert witness for the State, Detective Richard Vogel. The trial judge barred this testimony in the State's "affirmative case." The judge found that (1) what occurred was "within the common fund of knowledge of the jury;" (2) there would be prejudice to the defendant which "far outweighs that probative value" by making the expert an advocate for the prosecution; and (3) because if, as the prosecution predicted, the defense presented proof of some other explanation for the transfer of the money, then expert testimony would be appropriate on rebuttal by the State to rebut the defense's explanation for the transfer of the funds. We granted the State's motion for leave to appeal.

N.J.R.E. 702, which became effective July 1, 1993, states:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

This rule imposes the same standard as former Evid.R. 56(2), which it replaced. It incorporates the general criteria for admissibility of expert testimony articulated by State v. Kelly, 97 N.J. 178, 208, 478 A.2d 364 (1984), which requires that "the intended testimony must concern a subject matter that is beyond the ken of the average juror."

This requirement by the Supreme Court has been reaffirmed in subsequent decisions, namely, Landrigan v. Celotex Corporation, 127 N.J. 404, 413, 605 A.2d 1079 (1992); State v. Zola, 112 N.J. 384, 414, 548 A.2d 1022 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed.2d 205 (1989); and State v. Odom, 116 N.J. 65, 81, 560 A.2d 1198 (1989).

In State v. Odom, the Court held that expert testimony is admissible under this requirement not only to explain the significance of the appearance, quantities, purity, packaging and value of the illegal drugs involved in the case, but also to explain whether possession of those drugs under specific circumstances was probably for personal use or for distribution. Odom, supra, 116 N.J. at 76, 560 A.2d 1198. The court stated that:

The jury, though enlightened by the expert's explanation of the significance of surrounding facts, does not thereby become expert in the field. Thus, under these circumstances, the subject of intent or purpose in connection with the possession of unlawful drugs is a matter of specialized knowledge of experts. In this case, we are satisfied that the testimony of the expert covered a subject beyond the understanding of average persons and was genuinely helpful to the jury in understanding the evidence presented and determining important issues of fact.

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