State v. Summers

• Decision Date: 28 May 2003
• Citation: 823 A.2d 15,176 N.J. 306
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. David SUMMERS, Defendant-Appellant.
• Court: New Jersey Supreme Court

823 A.2d 15

176 N.J. 306

STATE of New Jersey, Plaintiff-Respondent, v. David SUMMERS, Defendant-Appellant.

Supreme Court of New Jersey.

Argued February 19, 2003.

Decided May 28, 2003.

Jodi L. Ferguson, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Casey N. MacDonald, Assistant Prosecutor, argued the cause for respondent (Jeffrey S. Blitz, Atlantic County Prosecutor, attorney).

Hillary K. Horton, Deputy Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (Peter C. Harvey, Acting Attorney General, attorney).

The opinion of the Court was delivered by VERNIERO, J.

A jury convicted defendant of multiple drug charges, including possession and distribution of a controlled dangerous substance (CDS). The question before us is whether the State's expert witness intruded on the jury's fact-finding role by expressing what defendant argues was an impermissible opinion on guilt. Specifically, the expert expressed the view that facts presented in a hypothetical (modeled on identical facts adduced at trial) were indicative of drug distribution. In State v. Odom, 116 N.J. 65, 560 A.2d 1198 (1989), this Court articulated a standard for evaluating an expert's testimony when such a question is presented. The Appellate Division upheld defendant's conviction, finding no violation of Odom. We agree and affirm.

I.

We derive our summary of the essential facts largely from testimony and other evidence adduced at trial. On the evening of April 20, 1999, an Atlantic City narcotics detective, Sam Dickson, conducted a surveillance operation of a known drug area on Texas Avenue near the boardwalk. Facing north in an unmarked police vehicle, Detective Dickson used a pair of binoculars to view the street. At about 8:45 p.m. the detective observed a man, later identified as defendant David Summers, walking southbound toward the officer. Several cars were parked on the street's east side, the side on which the detective's vehicle was parked.

Using his binoculars, Detective Dickson observed defendant stop briefly. Two men greeted defendant. The detective saw one of the men, later identified as co-defendant Peter Dyer, engage defendant in a conversation that lasted only a few seconds (from his vantage point the detective could not determine whether the third man participated in the conversation). Thereafter, the three men crossed over to the street's east side and stood before an abandoned home. Defendant and Dyer then walked to the home's porch area, which Detective Dickson described as "a concrete pad." The detective observed defendant holding out his palm with an object in it. He further observed Dyer proffer to defendant what appeared to be folded currency. The detective was approximately 100 to 150 feet away from the parties when he viewed that exchange.

After receiving certain objects from defendant, Dyer returned to the street's west side with the objects in his right hand. Believing that he had witnessed a drug transaction, Detective Dickson radioed for backup officers and directed them to apprehend defendant and the third man, leaving the detective to apprehend Dyer. The detective exited his car as Dyer approached. Before the detective could identify himself as a police officer, Dyer placed the objects in his mouth. The detective ordered Dyer to open his mouth and spit them out. Dyer complied and spat out four baggies of a white-rocky substance. By then, the other officers had arrived and apprehended defendant and the third man.

Based on a conversation with Dyer, Detective Dickson asked one of the backup officers, Joseph Falcone, whether he (the officer) had recovered a cigarette pack from defendant. Detective Falcone confirmed that he had retrieved the cigarette pack and that when he had opened it, he found the following items: a medium-size bag with the number 1212 and an apple imprinted on it, and 50 smaller plastic bags of identical size and shape with a white rocky substance in them.

Detective Falcone also testified that he had recovered from defendant nine $20 bills, five $10 bills, four $5 bills, six $1 bills, in addition to numerous coins, for a total of $262. The detective also retrieved an activated pager found on defendant. Because the police found no drugs on the third man, they released him at the scene. The white rocky substance found in the baggies later tested positive for cocaine.

A grand jury charged defendant with multiple drug offenses, including possession of CDS in violation of N.J.S.A. 2C:35-10a(1); possession with intent to distribute a CDS in violation of N.J.S.A. 2C:35-5a(1) and -5b(3); distribution of a CDS in violation of N.J.S.A. 2C:35-5a and -5b(3); possession of a CDS with intent to distribute, and distribution of a CDS, within 500 feet of a public housing facility, public park, or public building in violation of N.J.S.A. 2C:35-7.1; and possession of a paging device while in the commission of a crime in violation of N.J.S.A. 2C:33-20. The grand jury also charged Dyer with possession of CDS in violation of N.J.S.A. 2C:35-10a(1).

The State tried defendant separately from Dyer. Detective Donna Price, who had not participated in the surveillance or arrest of defendant, testified at his trial as an expert in narcotics. On direct examination, the assistant prosecutor posed the following hypothetical to Detective Price:

Atlantic City police are conducting a surveillance in the area of the beach block of Texas Avenue. It's approximately 8:45 at night in April of 1999. During the course of their surveillance they see three males. There is one male walking, and then he is approached by two other males. There is a brief conversation between the first male and one of the [other] males, very brief, approximately twenty seconds. After that the males leave one side of the street and go to an abandoned house up on a cement pad. At that point the third male separates himself, and the first male and the second male appear to be in conversation.

At one point the second male has an object in his hand which he shows to the first male. We'll call him S-1. And S-1 looks at what S-2 has in his hand. At that point S-2 hands S-1 the objects, and S-1 hands S-2 money. At that point the two separate. S-1 is later stopped by the police, and while he's being stopped he puts what he got in his mouth. He is told to spit it out, which he does. The police recover four small zip-loc baggies containing cocaine.

The other male, S-2, is then stopped a short distance away, and recovered from him is a cigarette box containing 50 small zip-loc baggies. He has $262 on him, as well as an activated pager. The baggies found on the second male are identical to the baggies found on the buyer.

The second male that was with S-2 is at a distance apart from him and has no drugs on him. The cigarette box is recovered from S-2's person. The other person was not charged; he was released. This happened on the beach block of Texas Avenue in Atlantic City.

Do you have an opinion as to whether S-2 in this hypothetical ... possessed those drugs for his own use or for distribution?

In response, Detective Price expressed her view that S-2 in the hypothetical possessed the drugs for distribution and not for personal use. She based that opinion on the fact that no paraphernalia was found on S-2, that S-2 had $262 in various paper currencies and coins, and that S-2 had a large bag with smaller bags containing cocaine. Notably, defendant did not object either to the form of the question or to the expert's response.

The jury found defendant guilty of all the charges, except the charge pertaining to possession of a paging device. The trial court imposed a nine-year jail sentence. On appeal, defendant argued that the hypothetical posed to Detective Price and the detective's response to it had denied the jury a chance to determine whether defendant possessed CDS with intent to distribute. With one judge dissenting, the Appellate Division rejected that argument and affirmed defendant's conviction and sentence in a reported opinion. State v. Summers, 350 N.J.Super. 353, 795 A.2d 308 (2002). Citing Odom, the panel's majority observed that Detective Price's testimony had helped the jury understand whether defendant possessed the CDS with intent to distribute, and that the testimony did not infringe on defendant's right to have a jury decide his guilt. Defendant appealed to this Court as of right. R. 2:21(a)(2).

II.

The legal principles governing this dispute are well settled and straightforward. Generally,

the opinion of an expert can be admitted in evidence if it relates to a relevant subject that is beyond the understanding of the average person of ordinary experience, education, and knowledge. If the expert's testimony on such a subject would help the jury understand the evidence presented and determine the facts, it may be used as evidence. The witness offered as an expert must, of course, be suitably qualified and possessed of sufficient specialized knowledge to be able to express such an opinion and to explain the basis of that opinion. State v. Kelly, 97 N.J. 178, 208, 478 A.2d 364 (1984). Once it is determined that this testimony will genuinely aid the jury, it can be admitted. Id. at 208 n. 14, 478 A.2d 364. Our Rules of Evidence codify these principles.

[Odom, supra, 116 N.J. at 71, 560 A.2d 1198.]

Whether expert testimony is admissible rests in the trial court's sound discretion. "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." N.J.R.E. 704. Such testimony, however, still is subject to exclusion if the risk of undue prejudice substantially outweighs its probative value. State v. Berry, 140 N.J. 280, 298, 658 A.2d 702 (1995).

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