September 19, 2012
By Michael Booth
New Jersey Law Journal
An expert witness in a criminal case may not opine, even obliquely, that the defendant is guilty of the charged crimes, a New Jersey appeals court ruled on Monday.
Since an expert testified that the “target” of an investigation — a thinly veiled reference to the defendant — was probably distributing drugs, the Appellate Division overturned drug and weapon convictions and granted a new trial.
Just as a prosecutor cannot use a criminal defendant’s actual name in a hypothetical, he cannot use a term that clearly points to the defendant, Judges Jonathan Harris and Douglas Fasciale said in State v. Coley, A-0190-11.
Marcus Coley, 39, was arrested at his Glassboro apartment after law enforcement officers, armed with a search warrant, raided the apartment. During the search the officers discovered crack cocaine, digital scales, glassine baggies and hollow-point bullets.
At trial, Assistant Gloucester County Prosecutor Alec Gutierrez called as an expert witness Det. Briea Brenner and outlined a hypothetical situation that nearly mirrored the raid of Coley’s apartment. Coley was not referred to, but Gutierrez repeatedly used the word “target” and jurors already had been told that Coley was the “target” of the investigation.
Gutierrez asked: “Now, could you think [of] an opinion as to why our hypothetical target in the situation would have possessed all those items, the rock of crack cocaine, the number of unused baggies, and the digital scales?”
“Probably to distribute drugs,” Brenner replied.
Coley’s attorney, Wayne Powell, objected, but Superior Court Judge M. Christine Allen-Jackson allowed the question and answer to stand and did not give the jurors a curative instruction before they began their deliberations.
The jury found Coley guilty of second- and third-degree charges of possession with intent to distribute and a weapons violation. Allen-Jackson sentenced Coley to 14 years in prison, with six to be served before he is eligible for parole.
The appeals court judges said that under State v. Odom, 116 N.J. 65 (1989), an expert witness may give the opinion that drugs seized were likely meant for distribution because of the quantity, and that N.J. Rules of Evidence 702 allows an expert witness to testify that packaging equipment and scales are used for drug trafficking.
But the witness may not suggest or offer the opinion that the person charged with possessing those drugs is guilty, and Brenner did just that, the judges said.
The judges cited the state Supreme Court’s recent ruling in State v. McLean, 205 N.J. 438 (2011). There, the court reversed a defendant’s conviction after the arresting officer expressed an opinion about the defendant’s guilt after testifying about how he observed a hand-to-hand transaction.
They also cited State v. Reed, 197 N.J. 280 (2009), where the court said an officer’s testimony that all the occupants in a car were in “constructive possession” of drugs found in the car was improper.
“In this case, the hypothetical question to Brenner failed to comply with the guidelines established in Odom and Reed,” the judges said.
Lastly, the judges said Gutierrez’s hypothetical situation so closely matched the actual circumstances surrounding the search of Coley’s apartment and his subsequent arrest that it impermissibly suggested that Coley was the “target” in the hypothetical situation.
“Here, but for the prosecutor earlier identifying defendant as the only target of the search warrant, the hypothetical would not have been objectionable,” Harris and Fasciale said. “We conclude, therefore, that the judge mistakenly exercised her discretion allowing such opinion testimony.”
Bernie Weisenfeld, a spokesman for Gloucester County Prosecutor Sean Dalton, says the ruling is being reviewed to determine if an appeal to the Supreme Court is warranted.
Powell, a Cherry Hill solo, did not return a telephone call seeking comment.
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