State v. Reeds

Justice RIVERA-SOTO,

dissenting.

In this case, the prosecution properly elicited the opinion of a police detective qualified as an expert concerning a matter outside the ken of an ordinary person: the idiosyncrasies of a clandestine drug transaction. See ante at 289-93, 962 A.2d at 1093-95. As the Appellate Division succinctly observed, that opinion was elicited based on the following hypothetical facts:

three persons in a borrowed car-, traveling from New York on Route 95 at night are stopped for a motor vehicle infraction and give false names; the smell of burnt marijuana emanates from the car, on the front passenger floor there are loose folds *304 of heroin, six bags of marijuana and fifteen bricks of heroin found under the front seat; and over $900 in cash is found on the three individuals.

The panel noted that, based on those facts,

[t]he detective opined that all three individuals would be in constructive possession of the drugs with the intent to distribute them because there was a large amount of drugs even for three persons, that all three were likely involved in the distribution enterprise, with one possibly acting as the “lookout,” the other as the “money man” and the third as “security;” that the use of false names showed an intent to avoid apprehension and the use of a borrowed ear was typical for drug dealers to avoid seizure of their own vehicle; and the fact that at least one person was smoking marijuana and that the bags of marijuana were found near the heroin showed that those in the car knew the heroin was there.

Tellingly, defendant did not interpose a contemporaneous objection to that expert testimony, thereby denying the trial court the opportunity to correct that to which defendant now tardily objects. 1 See, e.g., State v. Ingram, 196 N.J. 28 , 42, 951 A.2d 1000 (2008) (defendant’s failure to contemporaneously object to summation “render[s] it fair to infer from the failure to object below that in the context of the trial the error was actually of no moment” (quoting State v. Nelson, 173 N.J. 417, 471 , 803 A.2d 1 (2002) (internal quotation marks omitted))); State v. Nero, 195 N.J. 397, 407 , 949 A.2d 832 (2008) (defendant’s failure to object contemporaneously to jury charge requires application of plain error standard (citing R. 2:10-2; State v. Bunch, 180 N.J. 534, 541 , 853 A.2d 238 (2004))).

In fact, defendant did not raise the issue of the scope of the expert’s testimony until the charge conference when, as the Appellate Division noted, he “requested a jury instruction that the expert’s opinion on constructive possession should be disregarded and that such issue is a jury determination.” The panel’s summary of the resolution of defendant’s request, standing alone, disposes of the question on appeal in its entirety:

*305 With the approval of all counsel, the judge instructed that it was for the jury to decide first, whether all the facts assumed in the hypothetical question had been proven, and if the jury found that some facts were not proven, then that could impact on the value and weight of the expert’s testimony and opinion; next, that the testimony of Detective Swan was admitted solely on the issue of whether the drugs were possessed for personal use or for distribution; and also, that the issue of possession and constructive possession was for the jury to decide based upon the evidence adduced at trial.

[(Emphasis supplied).] 2

Moreover, defendant never raised the question of the scope of the expert’s testimony in either his motion for judgment of acquittal, pursuant to R. 3:18-2, or his motion for a new trial, pursuant to R. 3:20-1.

Although defendant never objected to the expert testimony as given; although defendant consented to the jury instruction provided by the court on the issue; and although defendant never questioned the propriety of either of those two events in his post-trial motions, the majority nevertheless concludes that, “[bjecause the expert should not have been permitted to opine on the ultimate issue of whether defendant possessed the drugs found, plain error occurred!,]” ante at 284-85, 962 A.2d at 1089-90, and thus reverses defendant’s convictions and remands the cause for a new trial. I cannot join in that logic or conclusion.

Because defendant did not contemporaneously object to the now-challenged expert testimony, because defendant consented to the jury instruction given on the subject — which evidenced defendant’s consent that whatever ill that testimony suffered from, it *306 had been cured by the cdurt’s instruction to the jury — and because defendant failed to raise the question in his post-trial motions, the better reasoning was expressed by the Appellate Division, and I adopt it here in full:

The hypothetical question posed to Detective Swan was framed and responded to in accordance with the State v. Summers, 176 N.J. 306 , 823 A.2d 15 (2003), and State v. Odom, 116 N.J. 65 , 560 A.2d 1198 (1989), guidelines. The judge gave the appropriate standard jury instruction about independently assessing both the facts contained in the hypothetical and the expert’s opinion. Moreover, any potential prejudice caused by the detective’s use of the term “constructive possession,” which was not objected to by any counsel during his testimony, was dispelled by [the trial courtj’s instruction, which was consented to by all counsel, that the jury itself must resolve the question of whether the drugs were constructively possessed. We must presume the jurors followed this specific admonition and convicted defendant based solely upon the evidence presented in this case. State v. Feaster, 156 N.J. 1, 65 , 716 A.2d 395 (1998), cert. denied sub nom. Kenney v. New Jersey, 532 U.S. 932 , 121 S.Ct. 1380 , 149 L.Ed.2d 306 (2001); State v. Manley, 54 N.J. 259, 270 , 255 A.2d 193 (1969).

When viewed in its totality, I cannot conclude, as the majority does, that “defendant suffered undue prejudice from the evidence in the form of expert testimony opining, in effect, that he constructively possessed the drugs found in the vehicle he was driving” and that “[tjhis ultimate-issue testimony usurped the jury’s singular role in the determination of defendant’s guilt and irredeemably tainted the remaining trial proofs.” Ante at 300, 962 A.2d at 1099. Therefore, because I would affirm the judgment of the Appellate Division that, in turn, affirmed defendant’s convictions, I respectfully dissent.

For reversal and remandment — Chief Justice RABNER and Justices LONG, LaVECCHIA, ALBIN, WALLACE and HOENS — 6.

For affirmance — Justice RIVERA-SOTO — 1.

Significantly, a co-defendant, Mark Whitley, did object to the scope of the expert’s testimony, both during direct examination and during re-direct examination; in addition, co-defendant Whitley addressed the scope of the expert's opinion during the cross-examination of the expert. In contrast, defendant did not interpose his own objection, did not join in his co-defendant’s objections, and did not address the question in his cross-examination of the expert witness.

To the extent the majority describes that jury charge as a "confounding instruction [that] only exacerbated the original error[,]" ante at 297, 962 A.2d at 1098, any such error would have been invited and, hence, not a ground for reversal. See State v. Lykes, 192 N.J. 519 , 539 n. 7, 933 A.2d 1274 (2007) (" 'a defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial. Thus, when a defendant asks the court to take his proffered approach and the court does so, we have held that relief will not be forthcoming on a claim of error by that defendant.' ” (quoting State v. Jenkins, 178 N.J. 347, 358 , 840 A.2d 242 (2004))).