State v. Tucker

Decision Date03 August 2022
Docket NumberDOCKET NO. A-0937-21
Citation473 N.J.Super. 329,280 A.3d 824
Parties STATE of New Jersey, Plaintiff-Respondent, v. Terrell TUCKER, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

473 N.J.Super. 329
280 A.3d 824

STATE of New Jersey, Plaintiff-Respondent,
v.
Terrell TUCKER, Defendant-Appellant.

DOCKET NO. A-0937-21

Superior Court of New Jersey, Appellate Division.

Argued May 18, 2022
Decided August 3, 2022


Simon Wiener, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Simon Wiener, of counsel and on the briefs).

Patrick R. McAvaddy, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Patrick R. McAvaddy, on the brief).

Before Judges Gilson, Gooden Brown and Gummer.

The opinion of the court was delivered by

GOODEN BROWN, J.A.D.

473 N.J.Super. 335

By leave granted, defendant Terrell Tucker appeals from an October 1, 2021 Law Division order amplifying a June 16, 2021 order which denied defendant's motion to dismiss an indictment charging defendant with numerous drug-related offenses, including possession of controlled dangerous substances (CDS) with intent to distribute. At the grand jury proceeding, Officer Patrick Egan described the circumstances surrounding defendant's arrest, including exchanges the police observed between defendant and other individuals, as well as the cache of illicit narcotics recovered by law enforcement at the scene. Near the end of Egan's testimony, the prosecutor asked Egan if he believed, based on his training and experience, that defendant had possessed the narcotics with the intent to distribute them. Egan replied

280 A.3d 828

in the affirmative and described the considerations that informed his opinion.

In a subsequent motion to dismiss the indictment, citing State v. Cain, 224 N.J. 410, 429, 133 A.3d 619 (2016), in which our Supreme Court held that expert witnesses in drug cases "may not opine on the defendant's state of mind," defendant argued that Egan's testimony improperly interfered with the grand jury's decision-making function. The motion judge denied the motion, concluding

473 N.J.Super. 336

the State had presented sufficient evidence to support a prima facie case, and Egan's testimony did not subvert the grand jury process. Defendant then moved for amplification of the judge's findings, seeking clarification on whether the judge found that the holding in Cain applied to grand jury proceedings. The judge ultimately determined it was unnecessary to reach the question of whether Cain applied because the State had presented sufficient evidence to establish a prima facie case.

On appeal, defendant raises the following arguments for our consideration:

THE TRIAL COURT ERRED BY DENYING [DEFENDANT'S] MOTION TO DISMISS THE INDICTMENT BECAUSE OFFICER EGAN'S IMPROPER OPINION TESTIMONY ABOUT [DEFENDANT'S] STATE OF MIND CLEARLY INFRINGED UPON THE GRAND JURY'S FUNCTION. N.J. CONST. ART. 1, ¶ 8 ; U.S. CONST. AMEND. V.

A. This Court Should Review De Novo, Asking Whether The State's Solicitation Of State-Of-Mind Testimony Improperly Influenced The Grand Jury's Decision-Making.

B. The Reasoning In State v. Cain, Which Prohibits Expert State-Of-Mind Testimony In Drug Cases, Applies To Petit And Grand Juries Alike And Protects The Grand Jury's Proper Functioning.

C. Specifically, The State's Choice To Solicit State-Of-Mind Testimony Harmed The Ability Of The Grand Jury In [Defendant's] Case To Make An Informed Decision About Whether To Indict.

We hold that the rationale in Cain prohibiting expert witnesses in drug cases from opining on a defendant's state of mind applies equally to grand jury proceedings. Because Egan's expert testimony regarding defendant's state of mind impermissibly encroached upon the grand jury's decision-making function, we reverse in part.

I.

We glean these facts from the grand jury proceeding during which Egan, a ten-year veteran of the Jersey City Police Department, was the sole testifying witness. After describing his extensive training and experience conducting narcotics investigations and his involvement in "hundreds" of narcotics related arrests, Egan testified that at approximately 5:13 p.m. on October 28, 2020,

473 N.J.Super. 337

Jersey City police officers observed defendant engage in "suspected narcotics activity" near 96 Grant Avenue.1 Specifically, officers saw defendant converse with and then direct individuals to head west on Grant Avenue, at which point defendant would enter an alleyway between 96 and 98 Grant Avenue and emerge soon after to rejoin the individuals and exchange an item for currency.

280 A.3d 829

Ultimately, the officers stopped defendant near the alleyway and detected "a strong odor of marijuana emanating from his person." The officers then searched defendant and recovered twenty-three baggies of marijuana and sixty-five dollars of suspected drug sale proceeds. A search of the alleyway, where defendant was the only person seen entering and exiting during the relevant time frame, revealed a drug stash consisting of "19 Ziploc baggies of [suspected] crack cocaine," "[100] folds of [suspected] heroin stamped ‘Dope Dick,’ " and "37 folds of [suspected] heroin stamped ‘Bang.’ " Subsequent laboratory testing confirmed that the items recovered from the scene contained marijuana, cocaine, a mix of heroin and fentanyl, and pure fentanyl. Egan testified that the alleged drug sales occurred within 1,000 feet of a public school and 500 feet of a public library.

Near the end of Egan's testimony, the prosecuting attorney asked Egan if he believed defendant had possessed the drugs with the intent to distribute them. The exchange occurred as follows:

[PROSECUTOR]: ... Now, finally, Officer, is it your opinion, based on your training and experience and the facts of this case, that defendant[ ] ... possessed ... the suspected cocaine, heroin and marijuana with the intent to distribute it?

[EGAN]: Yes.

[PROSECUTOR]: Okay. And what specifically about this led you to believe that ... defendant[ ] intended to sell [narcotics]?

....

[EGAN]: Our observations, the packaging of all the narcotics and just the entire incident; how they would be approached, how they would engage somebody in
473 N.J.Super. 338
conversation and then there would be an exchange of currency, and then the recovery of the drugs themselves.

Following Egan's testimony, the grand jurors asked no questions when given an opportunity to do so.

The grand jury returned an indictment charging defendant with third-degree possession of CDS (cocaine and heroin), N.J.S.A. 2C:35-10(a)(1) (counts one and two); third-degree possession of CDS (cocaine and heroin) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (counts three and four); third-degree possession of CDS (cocaine, heroin, and marijuana) with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7(a) (counts five, six, and eight); fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(12) (count seven); second-degree possession of CDS (cocaine and heroin) with intent to distribute within 500 feet of a public building, N.J.S.A. 2C:35-7.1(a) (counts nine and ten); and third-degree possession of marijuana with intent to distribute within 500 feet of a public building, N.J.S.A. 2C:35-7.1(a) (count eleven).

Defendant moved to dismiss the indictment in its entirety, arguing, among other things, that the State had impermissibly interfered with the grand jury's decision-making role by eliciting testimony from Egan that he believed defendant possessed the drugs with the intent to distribute them. Defendant asserted that the State's failure to qualify Egan as an expert witness made the impermissible testimony even more egregious. Following oral argument, the judge acknowledged in a written opinion issued on June 16, 2021,2 that

280 A.3d 830

Egan's testimony initially "gave [him] pause" in light of the Supreme Court's decision in Cain.

However, after reviewing the governing legal principles applicable to dismissal motions, the judge denied defendant's motion to dismiss counts one through six, and counts nine and ten, finding that:

473 N.J.Super. 339
the opinion testimony of the officer in this case, viewed in context with the fact testimony provided, did not impermissibly ‘taint’ the proceeding nor strip
...

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