The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2656-12T3
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
Plaintiff-Respondent, September 21, 2016
v. APPELLATE DIVISION
BRIAN A. GREEN, a/k/a BRYAN
GREEN, BRYAN A. GREEN,
ANTHONY GREEN, DANNY GREEN,
Defendant-Appellant.
___________________________________
Submitted September 17, 2015 – Decided September 21, 2016
Before Judges Lihotz, Nugent and Higbee.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No.
11-02-00124.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jay L. Wilensky, Assistant
Deputy Public Defender, of counsel and on
the briefs).
Grace H. Park, Acting Union County
Prosecutor, attorney for respondent
(Nasheena D. Porter, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
HIGBEE, J.A.D.
Defendant, Brian Green, appeals from his conviction for
possession of less than fifty grams of marijuana in violation of
N.J.S.A. 2C:35-10(a)(4), a disorderly persons offense, and for
possession of more than one ounce but less than five pounds of
marijuana with intent to distribute in violation of N.J.S.A.
2C:35-5(b)(11), a third-degree offense. He further appeals from
his sentence of six years in State prison with three years of
parole ineligibility. Defendant raises the following issues on
appeal:
POINT I
THE STATE PRESENTED HIGHLY IMPERMISSIBLE
EXPERT TESTIMONY THAT INFRINGED UPON THE
JURY'S FACT-FINDING FUNCTION, AND DENIED THE
DEFENDANT A FAIR TRIAL, NECESSITATING
REVERSAL. U.S. CONST. AMEND. VI; N.J.
CONST. ART. 1, PAR. 9. (PARTIALLY RAISED
BELOW).
POINT II
THE STATE PRESENTED EVIDENCE THAT THE
DEFENDANT POSSESSED BULLETS, WHICH WAS BOTH
IRRELEVANT AND HIGHLY PREJUDICIAL,
NECESSITATING REVERSAL. (NOT RAISED BELOW).
POINT III
THE STATE PRESENTED IRRELEVANT AND
MISLEADINGLY INCOMPLETE EVIDENCE TO THE
GRAND JURY, NECESSITATING DISMISSAL OF THE
INDICTMENT. (PARTIALLY RAISED BELOW).
POINT IV
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THE STATE VIOLATED THE BANKSTON DOCTRINE BY
STATING IN ITS OPENING THAT THE POLICE HAD
RECEIVED INFORMATION WHICH LED THEM TO
BELIEVE THAT DRUGS WERE BEING SOLD AT THE
SCENE OF THE SEIZURE, NECESSITATING
REVERSAL. U.S. CONST. AMENDS. VI, XIV; N.J.
CONST. ART. 1, PAR. 9.
POINT V
THE TRIAL COURT IMPOSED AN EXCESSIVE
SENTENCE, NECESSITATING REDUCTION.
A. The Parole Disqualifier Is
Disproportional, And Therefore
Excessive.
B. The Court Erred In Imposing An
Extended Term, Or A Sentence Above The
Extended-Term Minimum.
In a supplemental pro se letter brief defendant raises the
following additional arguments: the identity of the confidential
informant who advised police that he had purchased drugs from
the defendant should have been disclosed; the affidavit in
support of the search warrant, which allowed the police to
search the defendant's home and automobile, was defective; and
it was error to merge the disorderly person conviction with the
third-degree conviction.
For the following reasons, we conclude the State's drug
expert's testimony invaded the fact-finding role of the jury.
Its admission at trial was plain error and we reverse and remand
for a new trial.
3 A-2656-12T3
The record discloses the following facts. The police
obtained information from a confidential informant that
defendant was selling drugs from a motor vehicle and his
residence. The confidential informant did not testify at trial,
and the court did not require the informant's identity be
disclosed as requested by defendant.
After obtaining a search warrant for the vehicle and
defendant's residence, the police stopped defendant and a co-
defendant in the vehicle and searched them. The search of the
automobile, defendant and co-defendant yielded no drugs or
contraband, but the police obtained keys to defendant's
residence. Several police officers went to defendant's
residence to perform the authorized search. They entered the
building through a door on the ground-level, which opened onto a
stairway. The officers ascended the stairs to enter the
residence. The layout of the second floor and the occupants of
each bedroom were the subject of substantial testimony at trial
because those facts implicated the critical issue of who
possessed the drugs the police seized from the dwelling.
The landlord, who operated a restaurant on the first floor
and owned the building, testified he rented four separate
bedrooms on the second floor to different individuals. He
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testified defendant, co-defendant Tristian A. Gooden,1 and Edward
K. Boyce2 rented three separate rooms and were still living in
the residence when the search took place. Each paid rent weekly
every Sunday. At one time, two other men lived together in a
fourth bedroom, but one left several months earlier. The other
stayed and paid the rent for some time, but then stopped. The
landlord was unsure if this man still occupied the room at the
time of the search.
The landlord testified the tenants shared a common hallway,
kitchen, bathroom, and hall closet. The second floor was
described during the trial as a residence, an apartment, and a
rooming house. Each tenant was charged and separately paid
rent.
The police officers who searched the premises testified
they found the doors to all rooms open and unlocked, except, for
what was described as bedroom number four, where they found
Boyce. According to the police, Boyce was the only person
present when they entered the living quarters. No drugs or drug
paraphernalia were found in his bedroom.
1
Gooden was charged with the same drug offenses as defendant
and was tried with defendant. He was acquitted of all charges
by the jury. He did not testify.
2
Originally, Boyce was charged but the charges were dismissed.
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In what was identified at trial as bedroom two, the police
found no sheets, pillows, clothing or personal items to suggest
the room was occupied. Under the bed, police found an "Ed
Hardy" bag, which contained "a large quantity of marijuana along
with individually packaged bags of marijuana and new and used
Ziploc bags used to package marijuana." The marijuana in the
"Ed Hardy" bag weighed 15.8 ounces. This was the largest cache
of marijuana found on the premises. Also found were loose,
unused, purple Ziploc bags and two bullets sitting on the
dresser.3
The landlord identified bedroom two as the room rented by
the man who stopped paying rent sometime before the search.
Defendant's witness, who identified herself as defendant's
girlfriend, testified this was defendant's room, although, the
landlord testified defendant had always occupied what was
designated as bedroom one and paid a slightly higher rent for it
because it was the largest.
3
Defendant was charged initially with possession of bullets,
but those charges were dismissed. The bullets should not have
been mentioned at trial, but Detective O'Brien briefly mentioned
during his testimony he found some bullets in room two.
Although improperly elicited by the prosecutor, this testimony
was not sufficiently prejudicial by itself to warrant a new
trial, but should be avoided in any retrial. The error adds to
the cumulative effect of the other trial errors.
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In bedroom one, a wallet was found in the dresser
containing items with defendant's name on them and $377 in cash.
The room also contained a pink notebook, which had names listed
followed by numbers which appeared to be a ledger. The room
contained a refrigerator; the freezer section held seven one
gallon Ziploc freezer bags containing residue of a brownish
green plant. This substance was identified by the State's
chemist as marijuana residue. There was a box of unused clear
sandwich bags on top of the refrigerator. Finally, there was a
knotted plastic bag found containing 28.9 grams of marijuana.
In bedroom three, the search revealed an apparently
occupied room with a made bed, clothing, and other personal
items. There was testimony from the landlord that co-defendant
Gooden was living in room three at the time of the search.
In the dresser were various documents containing co-
defendant Gooden's name and a Ziploc bag containing several
small Ziploc bags. Hidden in the area between the drop ceiling
and the old ceiling was a digital scale, a box of clear sandwich
bags, and a bag holding plastic bags that contained a green
leafy residue. Another officer who created the evidence log
also identified plastic wrap found in room three.
The search did not reveal any items of interest in the
kitchen or bathroom; however, in the common hall closet there
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were two plastic bags holding 2.2 grams and 6.2 grams4 of
marijuana, respectively, as well as another digital scale.
At trial, the officers who conducted the search described
what they found in each room. The State presented expert
testimony from a chemist who testified all plant product and
residue was marijuana, and there was marijuana residue on one of
the scales. The State also called a narcotics expert to
describe drug distribution practices to the jury. The expert,
Detective Brendan Sullivan, gave his opinion on "intent to
deliver" versus "simple possession" of marijuana. Sullivan is
an employee of the Union County Prosecutor's Office and worked
for five years in the narcotics unit.
Sullivan told the jury he previously testified
approximately twenty-five times in court as an expert on
"whether a person possessed narcotics for distribution rather
than for personal use." Sullivan also stated he testified as an
expert on "narcotics use, packaging, and distribution." He was
asked if he ever declined a request to serve as an expert, and
he testified he had declined to testify previously on more than
one occasion, when asked by assistant prosecutors to render an
opinion in distribution cases. Sullivan stated he declined to
4
The exact quantity of marijuana found in each bag in the
closet was described differently at times during the trial but
the total amount never exceeded nine grams.
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render an expert opinion in those cases, because he determined
in those cases, after reviewing the State's files, the narcotics
possessed were for personal use.
Once qualified, Sullivan opined as follows in response to
the prosecutor's questions:
[PROSECUTOR]: Detective, at this time
I'm going to place before you and the jury a
hypothetical question and after the
hypothetical question I will ask you certain
general questions relating to the
hypothetical question. Assume that a legal
search had been executed on --
[CO-DEFENDANT'S ATTORNEY]: Objection,
Your Honor.
[THE COURT]: It's not necessary for
the -- for the opinion to -- to delve into
whether or not a search was legal. Just go
into the facts of the case. I'll sustain
the objection. Rephrase the question.
[PROSECUTOR]: Assume that a search had
been executed on an apartment. Assume that
in one bedroom there was found a clear
plastic bag with 28.9 grams of marijuana.
In the same bedroom there was a wallet with
$377 in it. The currency was in 22 1-dollar
bills, 7 5-dollar bills, 10 10-dollar bills,
6 20-dollar bills, and 2 50-dollar bills.
Assume further that seven multi-colored
gallon Ziplock bags with marijuana residue
are found in the freezer in that room.
Assume that a pink ledger with names and
numbers and quantities are found in the
room. Assume that two cell phones are
found.
Now assume in a second bedroom in the
same apartment hidden in a drop ceiling is
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found a Max 5000 scale, white shopping bags
with marijuana residue in them, and green
shrink wrap. Assume there were also found
in this bedroom a package of numerous small
Ziplock bags.
Assume that in an adjacent room which
is open is found a black Ed Hardy bag with
15.8 ounces of marijuana packaged in a
gallon bag similar to the 7 bags found in
one of the bedrooms that contained marijuana
residue and it also contains numerous small
Ziplock bags.
Assume also that in a common closet in
the hallway there is found a black bag that
contained another Max 5000 scale together
with numerous small Ziplock baggies. Assume
in the same closet that the -- that 2 clear
plastic bags containing 6.2 grams and 2.2
grams of marijuana is found. Also, assume
that nothing else relevant to the search
warrant is found in the --
[CO-DEFENDANT'S ATTORNEY]: Objection,
Your Honor.
[THE COURT]: Sustained.
[PROSECUTOR]: I'm sorry.
[THE COURT]: Strike the last portion.
[PROSECUTOR]: Also assume that nothing
else relevant is found in the apartment.
Based on the facts I've given you in this
hypothetical do you have an opinion as to
whether --
[CO-DEFENDANT'S ATTORNEY]: The
marijuana --
[PROSECUTOR]: Do you have an opinion
as to whether the drugs that were found in
the apartment were possessed for personal
use or for distribution purposes?
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[CO-DEFENDANT'S ATTORNEY]: Objection.
Intent to distribute.
[PROSECUTOR]: I'm sorry.
[THE COURT]: I'll allow the --
[CO-DEFENDANT'S ATTORNEY]: It's --
[THE COURT]: -- question as phrased.
[CO-DEFENDANT'S ATTORNEY]: Okay.
[PROSECUTOR]: Or intent to distribute.
[SULLIVAN]: Yes. It would be my
opinion that possessors of these items --
given the totality of the circumstances the
possessor of these items did in fact possess
them with the intent to distribute them.
. . . .
[PROSECUTOR]: So based on all these
factors you just mentioned, what is your
opinion as to whether or not the drugs and
paraphernalia found in this hypothetical
apartment were for personal use or for
possession with intent to distribute?
[SULLIVAN]: I completely am of the
opinion that these -- this was possessed
with the intent to distribute. And,
furthermore, that this was a classic street
level marijuana distribution operation.
The jury acquitted co-defendant Gooden and convicted
defendant of possession with intent to distribute marijuana.
N.J.S.A. 2C:35-5(b)(11).
On appeal, defendant first argues the admission of
Sullivan's testimony was "plain error." He asserts the
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testimony was prejudicial, crossed the boundaries established by
the Supreme Court for testimony by drug experts, and infringed
upon the jury's fact-finding function. Because defendant did
not raise this argument below, this issue is reviewed under the
"plain error" standard, which provides reversal is mandated only
for errors "of such a nature as to have been clearly capable of
producing an unjust result." R. 2:10-2. Accordingly, the test
to apply is whether the possibility of injustice is "sufficient
to raise a reasonable doubt as to whether the error led the jury
to a result it otherwise might not have reached." State v.
Macon, 57 N.J. 325, 336 (1971).
The Supreme Court recently addressed the struggle our
courts encounter governing the use of drug expert testimony. In
State v. Cain, 224 N.J. 410, 426-27 (2016), the Court explained
the role a drug expert plays in providing information about drug
distribution:
Experts can help jurors understand the
indicia of a distribution operation, such as
how drug traffickers package and process
drugs for distribution. Experts can shed
light on the significance of the quantities
and concentrations of drugs, the value of
drugs, the use of identifiable logos on drug
packaging, and the function of drug
paraphernalia, e.g., scales, baggies, and
cutting agents.
[Id. at 426 (citation omitted).]
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Cain also underscored the need to assure drug expert
testimony did not intrude upon the jury's fact-finding,
explaining:
In State v. Odom, 116 N.J. 65, 80-81
(1989), we held that an expert witness in a
drug-distribution case could testify to the
ultimate issue of fact — whether a defendant
possessed drugs with the intent to
distribute. We cautioned, however, that the
expert's testimony should not amount to a
pronouncement of guilt. Allowing an expert
to offer an opinion on a defendant's guilty
state of mind in a drug case while
prohibiting the same expert from offering an
opinion on defendant's guilt are not easily
reconcilable principles. In a series of
cases since Odom, we have attempted to
curtail the misuse of expert testimony that
has intruded into the jury's exclusive role
as finder of fact.
[Id. at 413.]
Previously, the Court suggested in Odom that one way to
prevent the intrusion into the jury's fact-finding role was to
use hypothetical questions, without a defendant's name and
without describing the crime in statutory language. Odom,
supra, 116 N.J. at 82. In Cain, the Supreme Court, frustrated
by the misuse of these hypothetical questions, went further and
changed their long standing position, declaring:
We now join those jurisdictions that
limit the scope of expert testimony in drug
cases. Going forward, in drug cases, an
expert witness may not opine on the
defendant's state of mind. Whether a
defendant possessed a controlled dangerous
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substance with the intent to distribute is
an ultimate issue of fact to be decided by
the jury.
[Cain, supra, 224 N.J. at 429.]
We must determine whether this change as to what a drug
expert can opine was meant to be applied retroactively to this
case and others tried before Cain, pending on appeal. When
examining the retroactive effect of a new rule of law, the
Supreme Court has instructed:
This Court has four options in any case
in which it must determine the retroactive
effect of a new rule of criminal procedure.
The Court may decide to apply the new rule
purely prospectively, applying it only to
cases in which the operative facts arise
after the new rule has been announced.
Alternatively, the Court may apply the new
rule in future cases and in the case in
which the rule is announced, but not in any
other litigation that is pending or has
reached final judgment at the time the new
rule is set forth. A third option is to
give the new rule "pipeline retroactivity,"
rendering it applicable in all future cases,
the case in which the rule is announced, and
any cases still on direct appeal. Finally,
the Court may give the new rule complete
retroactive effect, applying it to all
cases, including those in which final
judgments have been entered and all other
avenues of appeal have been exhausted.
[State v. Knight, 145 N.J. 233, 249 (1996)
(citations omitted).]
We can ascertain the Court did not intend to give the new
rule complete retroactive effect since the Court used the words
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"going forward," nor did the Court intend the new rule to be
applied purely prospectively, as the Court sent Cain back for
retrial. Cain, supra, 224 N.J. at 429, 436. The question
before us is whether the second or the third option set forth in
Knight applies. We look to the Supreme Court's guidance in
State v. Earls 214 N.J. 564 (2013) to answer this question.
The Court in Earls identified three factors to be evaluated
when considering whether a holding should apply retroactively:
(1) the purpose of the rule and whether it
would be furthered by a retroactive
application, (2) the degree of reliance
placed on the old rule by those who
administered it, and (3) the effect a
retroactive application would have on the
administration of justice.
[Id. at 590 (quoting Knight, supra, 145 N.J.
at 251).]
We consider each of these factors in turn. As to the first
factor, the purpose of the new rule is to prevent drug experts
from intruding into the jury's exclusive province by expressing
an opinion, implicitly or explicitly, on defendant's guilt.
Applying the new rule to cases still on appeal would serve this
purpose.
As to the second factor, weighing the degree of reliance
placed on the old rule by those who administered it, since Odom
was decided in 1989, the Court reiterated a drug expert may not
15 A-2656-12T3
usurp the jury's function or opine on the guilt of defendants.
See Cain, supra, 224 N.J. at 423 (explaining the Court "slowly
retreated from some of the broader implications of Odom"). The
clarification of that point now provided by Cain cannot be
deemed a surprise, considering the Court's prior discussions
criticizing drug expert opinions offered through the use of
hypothetical questions to uniformly track very specific facts
presented during trial. Although prosecutors have relied upon
their ability to use hypothetical questions, their reliance was
not entirely justified in view of the Court's pronouncements in
prior cases. In State v. Nesbitt, 185 N.J. 504, 514 (2006), the
Court disapproved of a hypothetical question saying, "Odom
should not be misconstrued to signal our willingness to accept,
carte blanche, the use of hypothetical questions asked of law
enforcement experts in all drug charge settings." In State v.
Reed 197 N.J. 280, 293 (2009), the Court cautioned prosecutors
and trial courts that "Odom's continued application is not
without boundaries." The "new rule" was imposed to prevent
circumvention of the existing law, that is to curtail drug
experts from opining on defendant's guilt.
As to the third factor, applying the rule retroactively
there is no evidence presented that it would unduly burden the
justice system. Cain does not impact decisions or actions that
16 A-2656-12T3
were already decided on appeal. It also does not impact
irreversible actions taken by law enforcement officers in
reliance on prior law. Nor does it require new Attorney
Guidelines. There will be no unfair prejudice to the State in
reversing cases pending appeal that involve improper
hypothetical questions. We routinely remand cases for new
trials where error has prevented defendants from receiving a
fair trial.
After analyzing the three factors set forth by the Court in
Earls, we conclude, unless we are instructed to the contrary,
the Court intended pipeline retroactivity to apply to the Cain
decision.
We further conclude that expert testimony in this case had
the clear capacity to cause an unjust result. As Justice Albin
wrote in State v. Simms, 224 N.J. 393, 396 (2016)
In State v. Cain, 224 N.J. 410 (2016)
we determined that in drug-distribution
cases, an expert's opinion on the
defendant's state of mind—whether the
defendant possessed drugs with the intent to
distribute—encroaches on the exclusive
domain of the jury as trier of fact. . . .
Expert testimony that a defendant
possessed a controlled dangerous substance
with the intent to distribute is nothing
less than a pronouncement of guilt by
mimicking the statutory elements of the
offense. Such testimony is not necessary to
assist the jury. . . .
17 A-2656-12T3
We conclude that the admission of the
expert testimony constituted plain error
because it violated principles set forth in
this Court's recent jurisprudence, including
principles on which we further elaborated in
Cain.
[(Citation omitted) (decided the same day as
Cain.]
Here, we find "plain error," and particularly because the
question of whether Green had "intent to distribute" was based
solely on circumstantial evidence and not on any observed sale
of the marijuana, as the State did not call the confidential
informant as a witness.
Compounding the error, the State elicited testimony from
the expert that before the expert gives his opinions in
distribution cases, he reviews "the State's file and the facts"
and would not testify if he determined that the drugs were for
personal use. This improper buttressing informed the jury that
notwithstanding the hypothetical question, the expert had
predetermined the drugs were for distribution, not just
possession for personal use; a factual determination that rests
solely in the province of the jury.
For the reasons set forth above, we conclude defendant is
entitled to a new trial, but we briefly address one other issue
raised by defendant. In the State's opening, the jury was told
"the Plainfield Police Department . . . came upon information
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that led them to believe that there were drugs being sold"
(emphasis added) at defendant's residence. Defendant argues
this was improper as any such testimony would have been
inadmissible under State v. Bankston, 63 N.J. 263, 268-69
(1973). Bankston holds it is a violation of both the hearsay
rule and the Sixth Amendment for a police officer to testify
what he was told by some other unidentified person concerning a
crime being committed. Id. at 268. We find the reference in
the State's opening about information received by the police
that drugs were being distributed from the premises troubling,
as did the trial judge who issued a cautionary instruction
advising the jury that opening statements are not evidence.
However, in light of our reversal, we need not determine whether
this statement constituted error or if any error was adequately
cured by the judge's instruction to the jury. Neither do we
need to address defendant's arguments as to sentencing. We find
the other arguments raised by defendant lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Reversed and remanded.
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