State v. Odom

• Decision Date: 10 June 1988
• Citation: 225 N.J.Super. 564,543 A.2d 88
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Ernest ODOM, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 564

225 N.J.Super. 564

543 A.2d 88

STATE of New Jersey, Plaintiff-Respondent, v. Ernest ODOM, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted April 12, 1988.

Decided June 10, 1988.

Alfred A. Slocum, Public Defender, for defendant-appellant (Roderick Taylor Baltimore, Asst. Deputy Public Defender, on the brief).

John P. Goceljak, Sp. Deputy Atty. General-in-charge, Acting Passaic County Prosecutor, for plaintiff-respondent (Vickie Harrell-Burke, Sp. Deputy Atty. Gen., Acting Asst. Prosecutor, on the brief).

Before Judges ANTELL, DEIGHAN and R.S. COHEN.

The opinion of the court was delivered by

ANTELL, P.J.A.D.

Defendant was arrested in possession of 18 vials of "crack," a highly addictive form of cocaine. After a trial by jury he was convicted of possession of a controlled dangerous substance, N.J.S.A. 24:21-20, and possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 24:21-19a(1), and sentenced to concurrent terms of probation on each conviction for a period of three years. He was also ordered to pay a penalty of $25 on each offense to the Violent Crimes Compensation Board. He now appeals from the conviction for possession with intent to distribute on the ground that a police officer, qualified as an expert witness, was allowed to testify to his opinion that defendant possessed the drug with intent to distribute. The officer was asked the following question:

Based upon your experience and assuming these facts to be true, do you have an opinion as to whether Ernest Odom possessed 18 vials of crack for his own use or possessed them with the intent to distribute them?

After a short colloquy during which the court overruled defendant's objection that the witness was incompetent "to testify as to a state of mind," the question was restated as follows:

Do you have an opinion whether those 18 vials of crack were possessed for personal use or for the purpose of distributing them?

The witness answered that he had such an opinion, and then testified that defendant possessed the substance with "[t]he purpose of distributing them with intent to distribute [sic]."

Evid.R. 56(3) provides: "Testimony in the form of opinions or inferences otherwise admissible under these rules is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact." ¹ So stated, the principle is one which is familiar to our case law. See, for example, State v. Louf, 126 N.J. Super. 321, 344, 314 A.2d 376 (App.Div.1973), rev'd in part on other grounds, 64 N.J. 172, 313 A.2d 793 (1973); State v. Boiardo, 111 N.J. Super. 219, 238, 268 A.2d 55 (App.Div.1970), certif. den. 57 N.J. 130, 270 A.2d 33 (1970), cert. den. 401 U.S. 948, 91 S.Ct. 931, 28 L.Ed.2d 231 (1971); Shutka v. Pennsylvania R.R. Co., 74 N.J. Super. 381, 401, 181 A.2d 400 (App.Div. 1962), certif. den. 38 N.J. 183, 183 A.2d 88 (1962). In each of these cases, although the court found the opinion testimony admissible, it made a point of stating that the witness did not opine on the ultimate question of civil or criminal liability.

In Shutka the court approved testimony from an expert witness that a railroad crossing did not conform to standards of care governing public travel on public roads. It reasoned that what the jury would ultimately have to decide was whether defendant had been negligent in the maintenance of the crossing or in the operation of its trains thereon, and whether that negligence was the proximate cause of the accident. The court explained that this determination would require consideration of a number of issues focusing on whether precautions taken by defendant conformed with standards of reasonable care. "The proffered evidence thus involved an opinion upon a matter upon which the ultimate question depended." Id. at 400, 181 A.2d 400. The following language of that court at 401-402, 181 A.2d 400 is enlightening as to the distinction to be made between the ultimate jury question of liability and the ultimate issue as to which an expert witness may opine:

Of course, a statement by a witness which amounts to little more than an expression of his belief as to how the case should be decided, or as to the amount of damages which should be given, or as to the credibility of certain testimony, is in an entirely different category. There is no necessity for such evidence, and to receive it would tend to suggest that the judge and jury may vest responsibility for decision upon the witnesses. McCormick, Evidence (1954), § 12, pp. 24-28, at p. 25. But the opinion testimony of experts relating to the ultimate issue, i.e., the propriety and safety of a condition or appliance, is allowed in those cases in which such testimony is reasonably necessary to give the court and jury an intelligent understanding of the subject matter in controversy.

In Biro v. Prudential Ins. Co. of America, 110 N.J. Super. 391, 265 A.2d 830 (App.Div.1970), the majority opinion, which was reversed by the Supreme Court, allowed a physician to opine, as part of a defense to an action upon a life insurance policy, that the deceased had taken his own life. In his dissenting opinion, which the Supreme Court adopted for its reversal at 57 N.J. 204, 271 A.2d 1 (1970), Judge Matthews wrote the following:

I believe that permitting the medical examiner to testify as to the conclusion of suicide, as the majority would, tends to mislead the jury into thinking that he knows something that they do not know. What is at stake here is nothing less than the myth cult of the expert to whom too many individuals are inclined to look for wisdom. My position does not derive from an anti-expert bias, but from a respect for the duties and limits of the jury. I believe that the admission of such a conclusion would confound and distort the delicate balance which is the fact-finding process. The jury is perfectly competent, given the medical and physical evidence, to come to its own conclusion about whether the death was a suicide. The majority also cites the Report of New Jersey Supreme Court Committee on Evidence, p. 110, (March 1963) as supportive of its conclusion. I draw attention to other language on that same page:

"In Shutka v. Pennsylvania R.R. Co., 74 N.J. Super. 381, 181 A.2d 400 (App.Div.), certif. denied, 38 N.J. 183 (1962), the Appellate Division, citing Uniform Rule 56(4), recently held that it was proper to permit an expert witness to give an opinion on an ultimate fact, the test being whether 'the trier of the facts would thereby be assisted in the solution of the ultimate problem.' "

The Committee also pointed out that

" * * * such questions as 'Was the defendant negligent?' 'Is the accused guilty?' Or 'Did the defendant have reasonable cause to institute the prosecution?' would be impermissible on the basis either that under 56(1)(b) they are not 'helpful,' or under Rule 45. (at 110)."

I believe there can be properly added to the above list questions such as "Was this second degree murder?" and "Was this suicide?"

In Chavanne by Chavanne v. Clover Financial Corp., 206 N.J. Super. 72, 501 A.2d 1024 (App.Div.1985), the court ruled that the severity of residual scarring on plaintiff's face should not have been the subject of opinion testimony by a physician where the facts of the injury could be appreciated by the jury's observation without the need for expert assistance.

Because we reach a result which is in conflict with State v. Perez, 218 N.J.Super. 478, 485, 528 A.2d 56 (App.Div.1987), ² we will comment briefly on the out-of-state cases relied upon for guidance by that court at page 484 of its opinion.

In State v. Avila, 166 Conn. 569, 353 A.2d 776 (1974), the Supreme Court of Connecticut approved expert testimony that the quantity of heroin found in defendant's possession could have been cut and repackaged into 22,400 glassine bags of a size suitable for street sale. The expert did not actually testify that defendant possessed for the purpose of distribution. This determination was left to the jury based on the circumstances surrounding possession, and the court concluded that the opinion testimony could be received as an aid to the jury.

In State v. Grayton, 163 Conn. 104, 302 A.2d 246 (1972), cert. den. 409 U.S. 1045, 93 S.Ct. 542, 34 L.Ed.2d 495 (1972), the same court found no reversible error in the admission of testimony by a police lieutenant that a "half-load" of heroin "is a common quantity used in the trafficking of heroin, and that heroin is brought from the city of New York to Waterbury in units of that size." 302 A.2d 250. Again, the witness did not opine that defendant intended to distribute.

In State v. Olsen, 315 N.W.2d 1 (Iowa 1982), the witness did not testify that the seized marijuana was possessed for sale; the holding of that decision was only that he might "testify on the pattern or modus operandi of a certain offense and compare the facts of the case to it." Id. at 6-7.

The distinction is that, on the one hand, the witness is asked for an opinion based upon certain evidence as it relates to a well-defined modus operandi and on the other, an opinion on the guilt or innocence of the defendant. The former is proper; the latter is not. [Id., at 7.]

In Commonwealth v. Nichols, 4 Mass.App. 606, 356 N.E.2d 464, 468 (1976) the court found no error in receiving the opinion testimony of an experienced narcotics officer "to the effect that the size of the tinfoil containing traces of heroin which had been found in the defendant's apartment was an indication that the foil had once contained a large quantity of heroin." Here too, the court stopped short of admitting the witness's opinion that the defendant intended to distribute.

In State v. Keener, 110 Ariz. 462, 520 P.2d 510 (1974), a conviction was affirmed where a police officer testified that the quantity of drugs possessed by defendant indicated an intent to sell rather than for personal use. The court...