Attacking and/or Neutralizing the State’s Intent to Distribute Expert

Because of the more severe jail exposure that a defendant faces when convicted for distribution or intent to distribute as opposed to simple possession, it is extremely important that any person found to possess CDS for personal use, but charged with intent to distribute, that they retain a New Jersey criminal defense attorney that has the experience in vigorously defending people charged with these types of crimes.

In almost every controlled dangerous substance case in New Jersey in which the defendant has a quantity (usually 10 dime bag, packages or vials) of drugs, individually packaged, the State will charge the defendant with possession with intent to distribute.  This is true when there is absolutely no evidence that the defendant possessed the narcotics with intent to distribute other than the testimony of an expert witness for the State.  These “experts” usually are county detective, who will testify as an “expert witness” in any given case.  In essence, they will give an opinion, based on a hypothetical fact pattern, which follows the defendant’s facts, that this “hypothetical defendant”, possessed the drugs with intent to distribute.  Ultimately, the prosecutor is allowed to ask the question as to whether the drugs were possessed for distribution or personal consumption.  Under no circumstances can the expert give an ultimate opinion as to the guilt or innocence of the accused, or use his name in the hypothetical.

Sounds confusing?  Don’t feel bad, because it seems from the case law, the rulings of the trial judges with this issue, different ideas from prosecutors and defense attorneys; nobody seems to know what the law really means, and how it should be applied.  The problem is, that these so called “State experts”, are usually the lynch pin in intent cases, and juries are very persuaded with such testimony, and accordingly, many defendants whom are drug addicts and possess drugs as user are being convicted as sellers.

The question that defense attorneys face is how to challenge these experts.  In practicing criminal defense for 22 years it is one of the hardest tasks that a defense attorney has in a drug case because the juries do not understand the difference between the hypothetical person used in the hypothetical question, and the defendant seated at the defense counsel.

The typical hypothetical question (as asked in State v. Reed, 197 N.J. 280 (2009), is:

Q. [Prosecutor]: Assume hypothetically that three individuals are driving in a borrowed vehicle. Let’s call the driver S-1, suspect one. Front passenger, suspect two. And assume there is a rear passenger behind the front passenger which we'll call suspect three, S-3.
A. [Detective]: Okay.
Q. And they’re traveling from New York City on Route 95 so that you know that they're coming out of New York. And the individuals are traveling in the vehicle at night, approximately a little before 9 p.m. on a weeknight. They’re driving in an erratic fashion, pulled over. The front passenger and the rear passenger, back passenger at some point are asked their names and they give false names. An officer who asks the front passenger for their paper work smells marijuana in the vehicle and notices in the vehicle an open container of beer.
After that, later found in the vehicle, in the front passenger section, right between—on the floor in front of the seat but where their feet would be are found loose folds of what’s determined to be heroin and also scattered on the floor are— by the feet of the front passenger are six bags of marijuana and underneath the seat are found fifteen bricks of heroin, determined to be heroin, as well as found additionally is a sixteenth brick. That sixteenth brick had been opened so that there were forty bags and seven or eight various loose folds.
On the back passenger assume is found cigars or brown cigarettes, Phillies. And on the persons of the individuals are found a totality of currency of nine hundred fourteen dollars.
A. Okay.
Q. Assuming all those hypothetical facts, do you have an opinion as to why the drugs, specifically the heroin, totaling several hundred bags or folds, would be possessed?
A. My opinion they would be possessed with the intent to distribute.

Q. And would that opinion be as to suspects one, two and three?
A. All constructive possession with the intent to distribute.
New Jersey Evidence Rule 702 permits the admissibility of expert testimony, “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”
This rule only allows the expert to testify as to specialized knowledge and not has to his personal opinion as to any fact or issue that the jury can readily determine without an expert.  Thus, if the expert gives an opinion as to a hand transaction, exchange of money, or other facts which one does not need to be an expert to understand, the opinion must be excluded.
Therefore, the prosecutor has the burden of proving three elements before the expert will be allowed to testify.
     1.   The intended testimony concerns a subject matter beyond the ken of an average juror;

2.   The field is at a state of the art such that an expert’s testimony would be reliable; and

3.   The witness has expertise sufficient to offer the intended testimony.

Defense counsel must be very alert as to how the hypothetical question is formulated and the facts in the hypothetical can only be facts adduced at trial.  Of course if an important piece of evidence or fact which is favorable to the defense was left out, that fact can be pointed out in cross-examination, such as the tolerance of this defendant to drugs, etc.
Example.  “Now this hypothetical person that you are talking about, the amount of cocaine found on his person’s would not be a lot for a person with a day habit of 42 bags of heroin a day.”
Example.  “Every junkie or user of illegal drugs have different levels of tolerance.
Example.  “Some have very high tolerance.”
Example.  “What were the markings on the package?”
Accordingly, the hypothetical question must concern itself with: (1) the manner of packaging and processing for use or distribution, (2) the significance of various quantities and concentrations of narcotics, (2) the roles of various drug paraphernalia, (3) characteristics of the drugs themselves, (4) the import of circumstances surrounding possession, (5) the conduct of the possessor and the manner in which drugs may be secreted or otherwise possessed for personal use or [distribution].

State v. Reed, 197 N.J. 280 (2009) a conviction was reserved because the drug expert testified that everyone in the vehicle possessed the narcotics with intent to distribute.  Clearly, that was improper because it was beyond the scope of the expert’s knowledge.  How could he or she know that fact, without guessing?  Whether someone is in constructive possession of CDS is for the jury to decide.

Recently, another intent to distribute case was reversed in State v. Ronald L. Jones, Jr., (Appellate Division, decided April 17, 2012).  In that case the expert used the defendant’s name in the hypothetical, as well as talked about other drugs on his person’s which were not charged.

In State v. McLean, 205 N.J. 438, 461-63 (2011) a drug conviction was reversed when the arresting officer testifying that when he witnessed a hand-to-hand transaction in which the defendant was involved in that it was his opinion that the defendant was engaged in a hand-to-hand drug transaction.

Also, in State v. Baskerville, 324 N.J. Super. 245, 256-57 (App. Div. 1999), testimony that the officer saw an exchange of money for small item, which the officer  believed to be a drug transaction was likewise found to be improper, because it invaded the province of the jury to decide what the transaction was, and not the officer. 

Law Office of Vincent J. Sanzone, Jr.

April 20, 2012

CriminalDefenseNJ.com

Elizabeth, New Jersey

Tel. No. (908) 354-7006

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