STATE OF NEW JERSEY VS. MARC B. HIGHSMITHÂ (10-09-0978, MERCER COUNTY AND STATEWIDE) ( 2017 )


Menu:
  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R.1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2785-14T2
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    MARC B. HIGHSMITH,
    Defendant-Appellant.
    ___________________________________________
    Argued January 26, 2017 – Decided August 21, 2017
    Before Judges Hoffman and O'Connor.
    On appeal from Superior Court of New Jersey,
    Law Division, Mercer County, Indictment No.
    10-09-0978.
    Tamar Y. Lerer, Assistant Deputy Public
    Defender, argued the cause for appellant
    (Joseph E. Krakora, Public Defender,
    attorney; Ms. Lerer, of counsel and on the
    briefs).
    Stephen E. Parrey, Assistant Prosecutor,
    argued the cause for respondent (Angelo J.
    Onofri, Mercer County Prosecutor, attorney;
    Timothy F. Trainor, Special Deputy Attorney
    General/Acting Assistant Prosecutor, of
    counsel and on the brief).
    PER CURIAM
    In July 2012, a jury convicted defendant Marc B. Highsmith
    of third-degree possession of a controlled dangerous substance
    (cocaine), N.J.S.A. 2C:35-10(a)(1); second-degree possession of
    a controlled dangerous substance with intent to distribute,
    N.J.S.A. 2C:35-5(a)(1); and third-degree possession of a
    controlled dangerous substance with intent to distribute on or
    near school property, N.J.S.A. 2C:35-7.     In April 2014,
    defendant was sentenced to an extended term of ten years, with a
    three-and-a-half-year period of parole ineligibility.
    Defendant appeals these convictions.     For the reasons that
    follow, we reverse all of the convictions and remand for a new
    trial.
    I
    The only witnesses at trial were two called by the State.
    Their pertinent testimony was as follows.
    FBI agent Eric Clark testified that, based upon his
    training and experience, he was familiar with the narcotics
    trade in Trenton.   In 2008, Joseph Baker, Jr., a person
    suspected of selling narcotics, was under investigation.      A
    confidential informant (CI), who had been previously convicted
    of a drug offense in federal court, agreed to purchase cocaine
    from Baker and, in return, the government agreed to recommend
    his sentence be reduced from three to two years.
    2
    A-2785-14T2
    As instructed by the FBI, the CI contacted Baker, who told
    the CI to come to his home, located in Trenton.     After being
    outfitted with a hidden audio and video device and provided with
    $3000 in cash, the CI met with his "runner" and together they
    drove to Baker's home, although only the CI entered the house.
    The runner was unaware the CI was collaborating with the FBI.
    Once inside Baker's home, the CI remained in the kitchen until
    he left.
    The FBI could hear but could not see what was occurring as
    events unfolded, but later viewed the video of the subject
    transaction.   Clark testified about what he viewed on the video
    and proffered opinions interpreting what occurred among those
    present in the kitchen.   At no time was Clark qualified to
    testify as an expert witness.
    Clark noted the CI, Baker, and others were in the kitchen
    when the CI first arrived; defendant entered the kitchen soon
    thereafter.    Clark stated the individuals in the kitchen were
    part of the "organization."     Defendant objected to and the court
    sustained Clark's use of the term "organization."     However,
    Clark later provided, without objection, his opinion about the
    actions of those in the kitchen, an opinion he claimed was based
    upon his training and experience:
    3
    A-2785-14T2
    [W]hat was occurring on the video [in the
    kitchen] was obviously illegal and they had
    accessibility to that space. And to have
    accessibility to that space firmly led us to
    believe that they were in on the conspiracy
    because that is not an area that just anyone
    could walk into because the drugs and the
    money were easily available to anyone who
    walked in the kitchen[.] [S]o they have to
    sort of secure that and protect that.
    And, also, in that kind of operation, they
    only want to let trusted people into that
    space for fear that someone might be
    recording them or taping them.
    Thereafter, the court sustained defendant's objection to a
    question requesting Clark state how crack cocaine was made;
    defendant asserted the question impermissibly requested expert
    testimony.   However, the court then stated it would permit the
    question if Clark acknowledged he had seen and could
    specifically state how crack cocaine is made, to which defendant
    replied, "I will leave that to the court's discretion."
    Upon testifying he had seen and had been informed by those
    in the narcotics trade about how crack cocaine is made, Clark
    stated this drug is made by mixing cocaine, water, and baking
    soda and heating these ingredients.   Clark then added:
    [T]he idea is to take – is to take 100 grams
    of soft cocaine and stretch it to make 100 –
    the approximate number is 140 grams of hard
    cocaine. There is more to sell and it is
    financially profitable for the dealers to
    take the soft and go through this process
    and make it into crack cocaine.
    4
    A-2785-14T2
    After leaving Baker's home, the CI reported back to Clark
    and turned over what he had purchased in Baker's home.
    Subsequent testing revealed the substance purchased was cocaine
    and weighed 124.6 grams, which Clark noted was more than one-
    half of an ounce but less than five ounces.   Clark also
    established there was school property within 1000 feet of
    Baker's home.
    The CI also testified.   Although the State never endeavored
    to and thus the court did not qualify him as an expert witness,
    the CI testified about the narcotics trade and the manufacturing
    of crack cocaine.1   He noted he had been involved in the drug
    trade for over thirteen years and is familiar with how the trade
    works, including cooking and selling crack cocaine.   He also
    opined about the dynamics among those in the kitchen based upon
    1
    Although not frequently called as expert witnesses, likely
    because their criminal records taint their credibility,
    confidential informants or those who have engaged in the
    narcotics trade are not foreclosed from being qualified as
    expert witnesses merely because they may have a criminal record.
    A witness may be qualified as an expert as long as he or she has
    "scientific, technical, or other specialized knowledge [that]
    will assist the trier of fact to understand the evidence or to
    determine a fact in issue[.]" N.J.R.E. 702. A witness may be
    qualified on the basis of his or her knowledge, skill,
    experience, training, or education. Ibid.; see, e.g., United
    States v. Oliver, 
    468 F. Supp. 2d 980
     (C.D. Ill. Jan. 8, 2007),
    in which the court qualified a convicted felon as an expert on
    crack manufacturing and distribution because of his extensive
    experience in cooking and handling crack cocaine. 
    Id. at 984
    .
    5
    A-2785-14T2
    his years of participating in the narcotics trade.     Defendant
    did not object to the CI's testimony.
    When the CI first arrived in the kitchen, he explained
    Baker was crushing cocaine that was in rock form into powder, in
    preparation for the cocaine to be cooked into crack.    The CI
    explained that after cocaine powder is crushed, it is mixed with
    baking soda and water, and then heated on the stove.    A man by
    the name of "Los" then entered the kitchen, who put money on the
    table and started crushing the cocaine as well.   The CI
    testified the money came from the sale of drugs, and indicated
    placing the cash on the table was Los' way of transferring the
    cash to Baker.
    Defendant then entered the kitchen with a box of baking
    soda, but Baker did not use any of that baking soda to cook the
    cocaine he was preparing on the stove.   The CI pointed out
    defendant mentioned to those in the kitchen that he had just
    sold twenty-five bags of crack cocaine in less than ten minutes.
    After heating the cocaine long enough to transform it into
    crack cocaine, Baker dried it with paper towels, weighed and
    placed it in a baggy, and transferred the baggy to a runner.
    The runner gave the baggy to the CI after he left Baker's house;
    in return for the runner's services, she received enough of the
    crack cocaine that had been prepared for her to get high.
    6
    A-2785-14T2
    Before leaving Baker's house, the CI paid Baker the cash
    provided to him by the FBI.
    The CI testified Baker and the others in the kitchen,
    including defendant, were all part of "the drug crew, the drug
    gang."   In a crew are a runner, "workers," and the head of the
    crew or "boss man."   Baker was the "boss man" for this
    particular crew.   The role of a crew is to distribute drugs.
    The CI further stated each member of the crew in the
    kitchen benefitted from the sale of the crack cocaine to the CI,
    specifically, each would get a share of the profits.   When asked
    how he knew that was in fact the arrangement among those in the
    kitchen, the CI replied, "Because I been in gangs for a long
    time."   The CI also noted that only crew members are allowed in
    an area where cocaine is being cooked, because "That's the way
    it works. . . .    I've been doing it for so long, I know."
    In its summation, the State drew heavily from Clark's and
    the CI's testimony in support of its argument defendant
    distributed the subject drugs to the CI, noting such witnesses
    established how crack cocaine is made, that defendant was part
    of the crew that distributed drugs to the CI, and, as a member
    of the crew, he benefitted from the sale of those drugs.
    II
    7
    A-2785-14T2
    On appeal, defendant asserts the following for our
    consideration:
    POINT I – THE WITNESSES' TESTIMONY IN THIS
    CASE OVERSTEPPED THE BOUNDARIES OF
    ACCEPTABLE LAY OPINION TESTIMONY, CONTRARY
    TO STATE V. MCLEAN.
    In his brief, defendant elaborates the witnesses provided
    expert testimony without first being qualified as experts and,
    thus, should not have been permitted to testify about the
    structure of any drug-dealing organization, let alone that
    defendant's mere presence in the kitchen made him a member of
    Baker's drug distribution ring, from which he derived a benefit
    when there was a drug sale.   Defendant argues such testimony
    suggested defendant possessed the crack cocaine in the kitchen
    with the intent to distribute it to the CI.   It was defendant's
    position he was not involved in the sale of the drugs to the CI.
    Defendant further complains the jury was not provided with
    the expert witness charge to place these witnesses' testimony
    into proper context.   See Model Jury Charge (Criminal), "Expert
    Testimony" (2003) (requiring the court to identify to the jury
    each testifying expert and such expert's area of expertise).
    Finally, defendant contends Clark inappropriately testified as
    to the ultimate issue when he stated what occurred in the
    kitchen was "obviously illegal."
    8
    A-2785-14T2
    Defendant maintains any one of these three errors warrants
    a reversal of his convictions and a remand for a new trial.      We
    agree the testimony about which defendant complains exceeded
    what is permissible for fact witnesses, in violation of State v.
    McLean, 
    205 N.J. 438
     (2011).
    Lay opinion testimony is governed by N.J.R.E. 701, which
    permits lay witness "testimony in the form of opinions or
    inferences . . . if it (a) is rationally based on the perception
    of the witness and (b) will assist in understanding the witness'
    testimony or in determining a fact in issue."
    In contrast, an expert witness may testify in the form of
    an opinion provided it "will assist the trier of fact to
    understand the evidence or to determine a fact in issue."
    N.J.R.E. 702.   To be admissible, expert testimony must be about
    a subject that is beyond the understanding of the average person
    of ordinary experience, education, and knowledge.    State v.
    Sowell, 
    213 N.J. 89
    , 99 (2013).
    Our Supreme Court recently commented upon the scope of drug
    expert testimony in criminal cases.   See State v. Cain, 
    224 N.J. 410
    , 426-27 (2016).   The Court noted, "[t]he average juror is
    not knowledgeable about the arcana of drug-distribution
    schemes."   Id. at 426.   Thus, experts may testify about how drug
    traffickers package and process drugs for distribution; the
    9
    A-2785-14T2
    quantities and concentration of drugs; the value of drugs; and
    the function of drug paraphernalia.    Ibid.   "Experts may also
    provide insight into the roles played by individuals in street-
    level drug transactions, and into the various machinations used
    by drug dealers to thwart detection."    Ibid. (citation omitted)
    (citing State v. Nesbitt, 
    185 N.J. 504
    , 515 (2016); State v.
    Berry, 
    140 N.J. 280
    , 301-02 (1995)).
    The McLean Court also noted that, if properly qualified as
    an expert, "an expert may explain the roles played by multiple
    defendants in a drug distribution scheme and may offer an
    opinion about the implications of the behavior that was observed
    by the fact witness."   McLean, 
    supra,
     
    205 N.J. at 460-61
    .    On
    the importance a witness giving expert testimony be qualified as
    an expert, the Court has noted "testimony coming from a law
    enforcement officer claiming to have superior knowledge and
    experience likely will have a profound influence on the
    deliberations of the jury."   Cain, supra, 224 N.J. at 427.
    In addition, drug experts "should not express an opinion on
    matters that fall within the ken of the average juror or offer
    an opinion about the defendant's guilt."   Ibid. (citing Nesbitt,
    supra, 185 N.J. at 512-14).   Thus, "in drug cases, an expert
    witness may not opine on the defendant's state of mind.     Whether
    a defendant possessed a controlled dangerous substance with the
    10
    A-2785-14T2
    intent to distribute is an ultimate issue of fact to be decided
    by the jury."2   Id. at 429.   In that regard, the Court has
    explained:
    We have come to the conclusion that an
    expert is no better qualified than a juror
    to determine the defendant's state of mind
    after the expert has given testimony on the
    peculiar characteristics of drug
    distribution that are beyond the juror's
    common understanding. In drug cases, such
    ultimate-issue testimony may be viewed as an
    expert's quasi-pronouncement of guilt that
    intrudes on the exclusive domain of the jury
    as factfinder and may result in
    impermissible bolstering of fact witnesses.
    The prejudice and potential confusion caused
    by such testimony substantially outweighs
    any probative value it may possess.
    [Id. at 427-28.]
    Here, because defendant did not object to the testimony
    about which he complains, we review the claimed error under the
    plain error standard, whether the error was clearly capable of
    producing an unjust result.    R. 2:10-2; State v. Maloney, 
    216 N.J. 91
    , 104 (2013).   "Reversal of defendant's conviction is
    required only if there was an error 'sufficient to raise a
    reasonable doubt as to whether [it] led the jury to a result it
    otherwise would not have reached.'"    State v. Atwater, 
    400 N.J. Super. 319
    , 336 (App. Div. 2008) (quoting State v. Daniels, 182
    2
    Cain was decided while this matter was on appeal, and we have
    determined Cain has pipeline retroactivity. State v. Green, 
    447 N.J. Super. 317
    , 328 (App. Div. 2016).
    11
    A-2785-14T2
    N.J. 80, 95 (2004)).   Hence, a defendant need not demonstrate
    that but for the error the jury would have reached a contrary
    result.    He must only show that the error raises a reasonable
    doubt that the jury was led to a result it otherwise might not
    have reached.   We are satisfied such an error occurred.
    First, neither Clark nor the CI were qualified by the court
    to testify as experts, yet both provided expert opinions; that
    is, they expressed opinions on topics outside the ken of the
    average person of ordinary experience, education, and knowledge.
    Both may well have been permitted to provide expert opinions
    because of their experience in the world of narcotics sales had
    the State offered them as experts and the court reviewed their
    qualifications, but that never occurred.   Thus, neither was
    permitted to render any expert opinions.
    The CI expressed the expert opinion that those in the
    kitchen were all part of a "drug crew," whose goal was to
    distribute drugs, and each person in the kitchen was going to
    benefit from the sale of the crack cocaine to the CI.      His
    opinion was not derived from his experience with this particular
    crew but from his lengthy experience in the drug trade in
    general.   He also noted only those on the crew were permitted in
    12
    A-2785-14T2
    the kitchen, the specific area where the crack-cocaine was being
    made.3
    While there was evidence defendant had engaged in the sale
    of drugs, there was no evidence – apart from the witnesses'
    testimony – that he was involved in the sale of the drugs to the
    CI.   To show defendant was involved in this sale, the State
    argues the baking soda defendant had in his hand when he entered
    the kitchen was used to make the alleged crack cocaine sold to
    the CI, but the record does not support this claim.
    Clark voiced an opinion consistent with the CI's.   Clark
    stated only those in the kitchen were permitted "in that space"
    because they were "in on the conspiracy," indicating defendant's
    presence alone in the kitchen made him a part of the scheme to
    distribute drugs to the CI.   In addition, Clark opined what
    occurred in the kitchen was "obviously illegal," providing an
    opinion on the ultimate issue, clarified in Cain as forbidden.
    See Cain, supra, 224 N.J. at 429.   Whether or not defendant
    committed any of the charged offenses was a decision to be made
    by only the jury.
    3
    There was evidence that at one point Baker's mother and her
    boyfriend came into the kitchen. The CI explained the mother
    contributed to the operation because she in fact owned the home
    and was permitting Baker to use her kitchen. The CI noted that
    in return, it was very likely she and her boyfriend received
    some of the drug Baker cooked on the stove, if only just enough
    to get high.
    13
    A-2785-14T2
    The witnesses' testimony was clearly capable of raising a
    reasonable doubt the jury was led to a result it otherwise might
    not have reached.   Constructive possession (there was no
    evidence defendant had been in actual possession of the subject
    drugs) of an item may be found when "the circumstances permit a
    reasonable inference that [the defendant] has knowledge of its
    presence, and intends and has the capacity to exercise physical
    control or dominion over it during a span of time."   State v.
    Spivey, 
    179 N.J. 229
    , 237 (2004).
    While the circumstances permitted a reasonable inference
    defendant had knowledge of the presence of the drugs to be sold
    to the CI and that defendant had the capacity to exercise
    physical control over such drugs, there was no evidence he
    intended to exercise physical control or dominion over the drugs
    apart from the witnesses' testimony.   Their testimony suggested
    defendant's mere presence in the kitchen made him a part owner
    of the drugs to be sold to the CI, and thus defendant exercised
    dominion over them.   As for the distribution charge, the
    witnesses' testimony similarly provided evidence defendant's
    presence in the kitchen meant he was a part owner of the drugs
    and was included in Baker's and Los' efforts to prepare and sell
    those drugs to the CI.
    14
    A-2785-14T2
    It is eminently conceivable the jury could have been swayed
    by the witnesses' opinions, thereby prejudicing defendant.
    McLean, supra, 
    205 N.J. at 452
     (noting that when a lay witness
    "crosses the line of permissibility[,] [this] contaminates all
    related proofs with prejudicial qualities not easily cured."
    (quoting State v. Singleton, 
    326 N.J. Super. 351
    , 354 (App. Div.
    1999))).   Given their testimony, we lack confidence in the
    integrity of defendant's guilty verdict.   This is not a matter
    where the evidence of defendant's guilt was overwhelming.     Cf.
    Sowell, supra, 213 N.J. at 107 (improper testimony of the
    State's drug expert was considered harmless error due to the
    defendant's admission, video of the transaction, and the
    arresting officer's observations of the transactions and
    discovery of drugs on the defendant).   Consequently, we conclude
    the prejudicial testimony raises a reasonable doubt the jury was
    led to a result it otherwise might not have reached.
    Accordingly, defendant's convictions must be reversed and the
    matter remanded for a new trial.
    Because of our disposition, we need not reach the remaining
    argument, specifically, whether the court erred by failing to
    provide the charge concerning how the jury is to consider an
    expert's testimony.   However, we note for the benefit of the
    trial court that in all cases where expert testimony is allowed,
    15
    A-2785-14T2
    the court should give a limiting instruction to the jury "that
    conveys to the jury its absolute prerogative to reject both the
    expert's opinion and the version of the facts consistent with
    that opinion."   Berry, supra, 
    140 N.J. at 304
    .
    Reversed and remanded for a new trial.
    16
    A-2785-14T2