STATE OF NEW JERSEY VS. LEVAR A. DAVIS (16-06-0388, UNION COUNTY AND STATEWIDE) ( 2021 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-5030-18
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    LEVAR A. DAVIS, a/k/a
    LEVAR DAVIS and CECIL
    JONES,
    Defendant-Appellant.
    ________________________
    Submitted December 1, 2021 – Decided December 16, 2021
    Before Judges Geiger and Susswein.
    On appeal from the Superior Court of New Jersey, Law
    Division, Union County, Indictment No. 16-06-0388.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Molly O'Donnell Meng, Assistant Deputy
    Public Defender, of counsel and on the brief).
    William A. Daniel, Union County Prosecutor, attorney
    for respondent (Meredith L. Balo, Assistant Prosecutor,
    of counsel and on the brief).
    PER CURIAM
    A jury convicted defendant Levar Davis of two counts of possession of a
    controlled dangerous substance (CDS) and two counts of possession of CDS
    with intent to distribute.1 Defendant contends that the State's expert invaded the
    province of the jury by testifying on the ultimate issue whether defendant
    possessed the CDS with intent to distribute and thereby improperly bolstered the
    evidence. We reject defendant’s arguments concerning the expert testimony
    because the opinions offered in this case stayed within permissible bounds.
    Thus, we affirm defendant’s convictions.
    We derive the following facts from the evidence adduced at trial. On
    January 20, 2016, Detective Anthanasios Mikros of the Elizabeth Police
    Department (EPD) obtained a search warrant for a first-floor apartment in
    Elizabeth.2
    Mikros and other members of the EPD Narcotics Division set up
    surveillance by remaining close by in unmarked vehicles.            Ibid.   After
    1
    Defendant's notice of appeal stated he was also appealing an illegal sentence.
    Defendant withdrew that aspect of the appeal following his resentencing and the
    entry of an amended judgment of conviction while this appeal was pending.
    2
    The parties stipulated that the issuance of the search warrant is not evidence
    of guilt of the defendants and that witnesses were not permitted to speculate as
    to why the search warrant was issued.
    A-5030-18
    2
    approximately an hour and a half, the officers observed codefendant Alphonse
    Anderson and another male exit the front door of the apartment. Once Anderson
    and the other male crossed Route 1, assisting units stopped them. Thereafter,
    Mikros directed the EPD Emergency Service Unit (ESU) to execute the search
    warrant. After breaching the door, no one was found in the apartment.
    Mikros searched the bedroom on the right side. He found paperwork
    addressed to defendant and $454 atop a dresser. In a dresser drawer, Mikros
    found two Ziploc bags containing fifteen clear plastic bags of suspected
    marijuana tied in a knot. In the same drawer, he found another Ziplock bag
    containing sixteen clear plastic bags tied in a knot that were filled with suspected
    pentylone and cocaine.
    EPD Lieutenant Robert Kelly searched the bedroom on the left side. In
    the top drawer of a dresser, Kelly found a box containing 450 envelopes of
    suspected heroin, a black pouch containing 16 clear bags containing suspected
    cocaine, and other empty bags.       In the same drawer, Kelly found a sack
    containing $3,255. On top of the dresser, Kelly found paperwork, a paystub,
    and a prescription bottle in Anderson's name.
    Police did not recover any drug paraphernalia inside the apartment, but
    EPD Carmine Gianetti found an Apple iPhone with a small bag of suspected
    A-5030-18
    3
    marijuana on it in the living room. Gianetti found a digital scale, other plastic
    bags, and a bag of uncooked rice in a kitchen cabinet.
    After evidence was found in a bedroom containing his mail, assisting
    officers arrested Anderson. A search incident to arrest revealed he had keys to
    the outer and inner doors to the apartment. Defendant was later stopped and
    arrested and found in possession of a key to the apartment.
    The suspected CDS found in the apartment was tested by forensic chemist
    Suzanne Bryant of the Union County Prosecutor's Office Forensic Laboratory.
    The testing confirmed that the substances seized were CDS and determined the
    respective weights of the CDS. See Table One attached hereto.
    A Union County Grand Jury returned an indictment charging defendant
    with third-degree possession of a controlled dangerous substance (CDS),
    N.J.S.A. 2C:35-10(a)(1) (count one); fourth-degree possession of CDS, N.J.S.A.
    2C:35-5(a)(3) (count two); and two counts of third-degree possession of CDS
    with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), 35-5(b)(3), and 35-5(b)(11)
    (counts three and four).
    Defendant moved to suppress physical evidence seized during an
    investigatory stop and to disclose the identity of the State's confidential
    informant. The trial court denied both motions.
    A-5030-18
    4
    Defendant next filed motions for a Franks3 hearing, to dismiss the
    indictment, and to suppress the evidence seized during the execution of the
    search warrant. The trial court denied all three motions.
    On July 24, 2017, the State filed a motion in limine to bar the defense
    from introducing at trial any evidence that there was a judicially authorized
    search warrant or that defendant was the target of the search warrant. On August
    3, 2017, the court denied the motion in part and granted it in part. The court
    allowed the parties to reference the search warrant but would not permit
    testimony regarding the identity of the target named in the search warrant.
    Defendant moved in limine to bar introduction of a hospital record for
    defendant and the medical records and prescription bottle found in Anderson's
    bedroom, claiming they had not been timely supplied in discovery. The court
    denied the motion.
    The three-day trial commenced on August 1, 2017.            Aside from
    determining whether defendant possessed the CDS, the jury was asked to decide
    whether the drugs possessed by defendant were meant for personal use or
    distribution.
    3
    Franks v. Delaware, 
    438 U.S. 154
    , 156 (1978).
    A-5030-18
    5
    Bryant testified for the State as an expert in forensic chemistry. She
    testified that testing confirmed the seized substances were CDS and determined
    the weight of various CDS seized by police. See Table One.
    The State called Detective Kevin Kolbeck to testify as an expert in the
    field of production, packaging, use, and distribution of CDS. Kolbeck was a
    member of the Union County Prosecutor's Office Narcotics Strike Force for ten
    years and a detective for fourteen years. He received specialized training in
    narcotics investigations including narcotics techniques, undercover operations,
    controlled buys, narcotics packaging, and surveillance. As part of that training,
    Kolbeck attended Top Gun school, which covers operational schemes of low-
    level, mid-level, and high-level narcotics distribution. He had participated in
    "over a thousand" narcotics investigations. Kolbeck was qualified as an expert
    and the court instructed the jury that the Rules of Evidence permitted Kolbeck
    to render opinions which they could choose to believe or disregard depending
    on his credibility.
    On direct examination, Kolbeck was asked to explain the components of
    different level of drug sales. He responded by discussing the various types of
    packaging used at each level (i.e., upper-level drug sales, mid-level drug sales,
    and street-level drug sales).
    A-5030-18
    6
    Next, the prosecutor asked Kolbeck about the various drugs and the way
    they are commonly packaged and sold.          Kolbeck explained the difference
    between powder cocaine and crack cocaine. He explained that typical dosages,
    measured by weight, "depend[] on the seller," but generally range between 0.03
    to 0.07 grams. He also testified as to the approximate price for a typical dose.
    The prosecutor asked: "In what form is crack cocaine typically sold from
    a mid-level dealer to a street-level dealer?" Kolbeck testified that typically,
    mid-level dealers sell powder cocaine to street-level dealers, and the street-level
    dealers "cook it up themselves." She then asked about sales at the street level.
    The prosecutor asked, "what is the typical way that street-level dealers sell
    powder cocaine to a buyer?"       Kolbeck responded, in "[s]mall little Ziploc
    baggies." He indicated that powder cocaine is typically sold in quantities of at
    least a half a gram to a gram.
    Next, the prosecutor asked Kolbeck general questions about heroin,
    including how it is ingested, common weights, pricing, packaging, and the forms
    in which it is sold by mid-level and street-level dealers. The same questions
    were posed regarding pentylone (commonly referred to as "Molly"), and
    marijuana.   In response to a question about how street-level dealers sell
    pentylone, Kolbeck responded it is sold "individually" in "small little knotted
    A-5030-18
    7
    baggies" usually one, two, or three bags at a time. Specific to marijuana,
    Kolbeck testified that mid-level dealers would sell street-level dealers a large
    Ziploc bag which would then be packaged in smaller bags for individual sale to
    marijuana users, known as "dime bags."
    The prosecutor asked Kolbeck, "[i]f someone [who was] using a particular
    residence just to inject or to smoke any of the following drugs, . . . what [do
    you] typically think you would find in the apartment[?]" Kolbeck responded
    that cocaine and heroin users can snort the drug right out of a bag unless they
    use a syringe, crack cocaine and marijuana users typically keep glass pipes and
    bongs, and pentylone users swallow or snort the substance.
    Next, the prosecutor asked: "If someone was a drug addict, would it be
    normal for them to have [fifteen] packaged eighths of marijuana?" Kolbeck
    responded that it would not be normal since the user could buy a larger quantity
    cheaper than buying individual baggies. He explained that the same principal
    applied to crack cocaine, with it being cheaper to buy in wholesale quantities
    than in individual bags.
    Kolbeck testified it would be unusual for someone addicted to heroin to
    have 450 glassine folds of heroin, which is "a lot." He explained that heroin
    A-5030-18
    8
    addicts typically don't have a lot of money and 450 glassine folds of heroin
    would be valued at $2,700 to $4,500 depending on the local street-level price.
    Kolbeck also testified that it would be unusual for a user to have fifteen
    knotted bags of pentylone, explaining that it would be cheaper to buy a gram of
    it and beak off smaller pieces to swallow. Purchasing the pentylone in smaller
    quantities would cost double or triple the street-level price. Kolbeck testified
    that fifteen bags of pentylone would cost between $300 and $375.
    One of the last questions on direct examination was, "if someone were
    using an apartment to package or sell drugs for street-level distribution, what
    would you expect to find inside of the apartment?" Kolbeck stated he would
    expect to find "[p]ackaging material, small little Ziploc baggies, glass vials,
    sandwich baggies, [and] scales . . . used to weigh the marijuana and . . . cocaine
    before its put into the Ziplock baggies." Someone selling heroin would typically
    have empty glassine folds and rice, which removes moisture from powder drugs
    like heroin.   On cross examination, Kolbeck acknowledged there could be
    innocent reasons to have scales, bags, and rice in a kitchen.
    Defendant did not object to any of the questions posed to Kolbeck or to
    any aspect of his testimony at trial.
    A-5030-18
    9
    The jury found defendant guilty of all four counts. Specifically, on count
    one, defendant was found guilty of possession of pentylone and cocaine but not
    guilty of possession of heroin. On count two, defendant was found guilty of
    possession of more than fifty grams of marijuana. On count three, defendant
    was found guilty of possession of pentylone with intent to distribute but not
    guilty of possession of heroin and cocaine with intent to distribute. On count
    four, defendant was found guilty of possession of one ounce or more of
    marijuana with intent to distribute.
    Defendant was sentenced on January 12, 2018. On counts one, three, and
    four, defendant was sentenced to eight-year terms, subject to a four-year period
    of parole ineligibility. On count two, defendant was sentenced to an eighteen-
    month term. All terms were concurrent. The court also imposed the requisite
    fines, penalties, and surcharges. This appeal followed.
    While this appeal was pending, defendant was resentenced.             The
    conviction on count two, which charged possession of marijuana over fifty
    grams, was vacated by the trial court. In addition, count one, which charged
    possession of CDS, was merged for purposes of sentencing into count three,
    which charged possession of CDS with intent to distribute. The sentence on
    count three was reduced to a seven-year term, subject to a forty-two-month
    A-5030-18
    10
    period of parole ineligibility, and the sentence on count four was reduced to a
    concurrent five-year term, subject to a thirty-month period of parole
    ineligibility.
    Defendant raises the following point for our consideration 4:
    POINT I
    BECAUSE THE STATE'S EXPERT TESTIFIED ON
    THE ULTIMATE ISSUE OF DEFENDANT'S STATE
    OF MIND IN A DRUG POSSESSION CASE AND
    THE PROSECUTOR POSED A NUMBER OF
    QUESTIONS DESIGNED TO ELICIT AN OPINION
    THAT THE DEFENDANT POSSESSED DRUGS
    WITH THE INTENT TO DISTRIBUTE, THE JURY'S
    PROVINCE AS FACTFINDER WAS INVADED AND
    THE STATE'S FACT EVIDENCE WAS IMPROERLY
    BOLSTERED.
    During the trial, defendant did not object to the questions posed to
    Kolbeck or his answers. For the first time on appeal, defendant argues that
    Kolbeck improperly testified on the ultimate issue of defendant's state of mind,
    i.e., whether defendant possessed the CDS with intent to distribute it.
    When a party does not object to an alleged trial error or otherwise properly
    preserve the issue for appeal, it may nonetheless be considered by the appellate
    court if it meets the plain error standard of Rule 2:10-2. State v. Singh, 
    245 N.J. 4
     Defendant withdrew Point II of his brief following resentencing.
    A-5030-18
    11
    1, 13 (2021). The plain error standard requires a determination of: "(1) whether
    there was error; and (2) whether that error was 'clearly capable of producing an
    unjust result,' R. 2:10-2; that is, whether there is 'a reasonable doubt . . . as to
    whether the error led the jury to a result it otherwise might not have reached .'"
    State v. Dunbrack, 
    245 N.J. 531
    , 544 (2021) (quoting State v. Funderburg, 
    225 N.J. 66
    , 79 (2016)). If the error of omission does not meet that standard, it "shall
    be disregarded by the appellate court . . . ." R. 2:10-2. "The mere possibility of
    an unjust result is not enough." Funderburg, 225 N.J. at 79.
    "[W]hen counsel does not make a timely objection at trial, it is a sign 'that
    defense counsel did not believe the remarks were prejudicial' when they were
    made." State v. Pressley, 
    232 N.J. 587
    , 594 (2018) (quoting State v. Echols, 
    199 N.J. 344
    , 360 (2009)).       The absence of objections "weighs against [the]
    defendant's claim that errors were 'clear' or 'obvious.' Indeed, '[i]t [is] fair to
    infer from the failure to object below that in the context of the trial the error was
    actually of no moment.'" State v. Nelson, 
    173 N.J. 417
    , 471 (2002) (alterations
    in original) (quoting State v. Macon, 
    57 N.J. 325
    , 333 (1971)).
    Detective Kolbeck testified as an expert in the packaging, sale, and
    distribution of narcotics in a general nature and did not invade the jury's
    province as factfinder. Kolbeck offered the jury contextual information to allow
    A-5030-18
    12
    them to evaluate the evidence presented and reach a conclusion as to whether
    defendant possessed the drugs in his apartment for personal use.
    Defendant argues that Kolbeck's expert testimony improperly "opined on
    [defendant's] state of mind a number of times" and lists nine portions of
    Kolbeck's testimony that allegedly impeded the jury in deciding the ultimate
    issue of whether defendant possessed the drugs in his apartment for personal use
    or with intent to distribute them. The cited questions and answers are:
    Q: [W]hat is the typical way that street-level dealers
    sell powder cocaine to a buyer?
    A: Small little Ziploc baggies . . . It could be also - -
    whatever they could put the -- half a gram to a gram in
    and seal it properly.
    Q: So . . . powder cocaine is typically only sold at least
    half a gram to a gram?
    A: Yes.
    ....
    Q: Okay. And in what form is pentylone sold by the
    mid-level dealers to the street-level dealers?
    A: . . . [I]t could be 50 grams, 100 grams. Ten grams.
    And then again it's packaged into small little knotted
    baggies or . . . capsules.
    Q: Okay. And then from a street-level dealer to a buyer,
    how is that pentylone sold?
    A-5030-18
    13
    A: Individually . . . [o]ne or two, three [capsules].
    ....
    Q: What is the approximate price for a serving or hit of
    marijuana? Or since you just said a . . . dime bag or an
    eighth, what's the approximate price for a dime bag?
    A: Ten dollars. That's [why] they call it a dime bag
    because it's a ten-dollar bag.
    Q: Okay. And then what's the approximate price for an
    eighth?
    A: Approximately $50.
    Q: Okay. And in what form is marijuana typically sold
    from a mid-level dealer to a street-level dealer?
    A: It could be [a] half a pound. It could be . . . ounces.
    And, like I said, it all depends on the street-level
    dealer[,] how much they have and how much they order
    up.
    Q: Okay.
    A: But it be a half a pound. It could be four or five
    ounces.
    Q: And is there a typical form that a buyer from a street-
    level dealer would buy of marijuana?
    A: The street-level dealer would buy . . . larger Ziploc
    baggies . . . [s]old to them from the mid-level dealers.
    ....
    A-5030-18
    14
    Q: [H]ow would a street-level dealer sell marijuana to
    a buyer?
    A: Oh, small little Ziploc baggies. Small -- they're little
    dime bags are very, very small. And then you get into
    your larger Ziploc baggies which would hold . . . the
    eighth and so on.
    ....
    Q: Someone that is personally using crack cocaine,
    what would you expect to find in their apartment?
    A: Small pipes. Like your glass pipes that they use to
    smoke . . . marijuana. And that's . . . typically for . . .
    crack cocaine.
    ....
    Q: What about marijuana, somebody that is smoking
    marijuana, what would you expect to find in their
    apartment?
    A: It would be a bong. It could be pipes. Rolling paper.
    It could be blunts . . . they would cut the blunt in half.
    They would take out the tobacco which you would
    [find] residue and tobacco in the garbage can or on . . .
    the table. And then the marijuana is put inside the blunt
    and then rolled up.
    ....
    Q: If someone was a drug addict, would it be normal for
    them to have [fifteen] packaged eighths of marijuana?
    A: No.
    Q: Why not?
    A-5030-18
    15
    A: Just because of the quantity. It's just like if you go
    to the store and you buy [fifteen] eight-ounce water
    bottles, you're spending much more in regards to just
    buying a gallon. They're spending much more. And
    plus the packaging nowadays it's not an open-sale
    market. Meaning you could just go on the street and
    everybody has cell phones. So instead of going up to
    that individual, you could call them and . . instead of
    ordering [fifteen] bags of eighths, you could say, I
    would like an ounce, or I would like two ounces. That
    mid[-level] dealer or street-level dealer would then
    package it in the proper way and distribute there instead
    of . . . selling [fifteen] Ziploc baggies.
    Q: Okay. What about would it be unusual for someone
    who's a drug addict to possess [sixteen] small [b]aggies
    of rocklike cocaine?
    A: Yes. Because of the same reason. Again, you could
    buy more that's cheaper it if you buy it more wholesale
    than buying [fourteen] bags of . . . crack cocaine.
    ....
    Q: Now, Detective, if someone were using an apartment
    to package or sell drugs for street-level distribution,
    what would you expect to find inside of the apartment?
    A: Packaging material, small little Ziploc baggies, glass
    vials, sandwich baggies, scales which are . . . used to
    weigh the marijuana and to weigh the cocaine before
    it's put into the Ziploc baggies.
    Q: Okay. Is there anything that you would expect to
    find if the sale of heroin were occurring in a residence?
    A-5030-18
    16
    A: Yes. Empty glassine folds that are typically [what]
    it's packaged in. Sometimes you see rice. What rice
    does is the user they want it [to be] powder. They don't
    want it moist. So what [rice] does it sucks out the
    moisture in regard to the heroin. So there's times that
    we find heroin . . . inside of rice because it keeps the
    moisture out. And the users that are typically buying it
    to snort it, they don't want it sticky because then
    obviously they can't snort it and it sticks to . . . the
    glassine folds and they're not able to snort it properly.
    Relying on State v. Cain, 
    224 N.J. 410
    , 429 (2016) and State v. Simms,
    
    224 N.J. 393
    , 396 (2016), which prohibit expert opinions on a defendant's state
    of mind and limit long hypothetical questions, he argues that Kolbeck effectively
    told the jury that defendant possessed more than sixty-eight grams of marijuana
    and more than fifteen grams of pentylone with the intent to distribute when he
    opined that a marijuana or pentylone user would normally only possess one to
    three capsules of pentylone or a dime bag of marijuana at a time and would not
    stockpile greater amounts of the drugs. We disagree because, in this case, the
    drug expert’s testimony stayed within permissible bounds and did not offer an
    opinion on defendant’s state of mind.
    Trial courts have considerable discretion in acting as gatekeepers to
    determine whether to allow expert testimony and the scope of such expert
    testimony. Townsend v. Pierre, 
    221 N.J. 36
    , 52 (2015) (citing State v. Berry,
    
    140 N.J. 280
    , 293 (1995)). If an objection is made, appellate courts use an abuse
    A-5030-18
    17
    of discretion standard in reviewing the admission of expert testimony. 
    Id.
     at 52-
    53. "[A] trial court’s evidentiary rulings are entitled to deference absent . . . a
    clear error of judgment."     State v. Nantambu, 
    221 N.J. 390
    , 402 (2015)
    (alteration in original) (quoting State v. Harris, 
    209 N.J. 431
    , 439 (2012)). Here,
    however, we review for plain error given the absence of objection.
    Expert testimony is permissible "[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," N.J.R.E. 702, if the "testimony concerns a subject
    matter beyond the ken of an average juror," State v. Reeds, 
    197 N.J. 280
    , 290
    (2009). Generally, expert testimony "otherwise admissible is not objectionable
    because it embraces an ultimate issue to be decided by the trier of fact.” N.J.R.E.
    704. Although expert testimony in drug cases is allowable, it is subject to certain
    limitations. Cain, 224 N.J. at 426-27; Simms, 224 N.J.at 403-04.
    [E]xpert testimony on the ultimate issue of whether a
    defendant intended to distribute drugs is permissible
    only if it "will assist the trier of fact to understand the
    evidence or determine a fact in issue," N.J.R.E. 702,
    and "may be excluded if its probative value is
    substantially outweighed by the risk of . . . undue
    prejudice," N.J.R.E. 403; State v. Sowell, 
    213 N.J. 89
    ,
    100 (2013).
    [Cain, 224 N.J. at 421 (alteration in original).]
    A-5030-18
    18
    For example, experts can explain how drug traffickers package and
    process drugs for distribution. Id. at 426. Experts can also explain the quantities
    and concentration of drugs, the value of drugs, the use of identifiable logos and
    drug packaging, 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. (citations omitted).
    The average juror is not knowledgeable about the
    arcana of drug-distribution schemes. Law enforcement
    officers with extensive training, education, and
    experience of the drug world have "specialized
    knowledge [that] will assist the trier of fact to
    understand the evidence or determine a fact in issue."
    N.J.R.E. 702. Experts can help jurors understand the
    indicia of a distribution operation, such as how drug
    traffickers package and process drugs for distribution.
    [Ibid. (alteration in original) (citing State v. Odom, 
    116 N.J. 65
    , 73-75 (1989)).]
    Nevertheless, 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 State v. Nesbitt, 
    185 N.J. 504
    , 512-14 (2016)). "Nor should
    an expert be used to bolster a fact witness's 'testimony about straightforward,
    but disputed, facts.'" 
    Id.
     at 426-27 (citing State v. McLean, 
    205 N.J. 438
    , 455
    (2011)).
    A-5030-18
    19
    The Court directed that "[g]oing forward, 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 intent to distribute is an ultimate issue
    of fact to be decided by the jury." Id. at 429. The Court 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.]
    The Court also limited the use of hypothetical questions. Id. at 429.
    "When the evidence is straightforward and the facts are not in dispute, there is
    no need to resort to a hypothetical." Ibid. And, "[t]o the extent possible,
    questions posed to an expert witness in a drug case should be compact and easy
    to understand and should not take the form of a summation." Id. at 430.
    Measured against these standards, we discern no abuse of discretion, much
    less plain error, in allowing the State's expert testimony in this case. Kolbeck
    A-5030-18
    20
    did not offer any opinion concerning defendant’s state of mind or defendant’s
    intent. The expert testimony was appropriately limited to explaining to the jury
    how CDS is typically packaged, the value of bags of CDS seized, and how a
    street-level drug transaction might occur. Kolbeck was not asked whether
    defendant had or did not have an intention to distribute the CDS. Nor was he
    asked any impermissible hypothetical questions about the facts of the case.
    The State’s expert expressed no conclusion regarding defendant’s intent,
    the ultimate issue on counts three and four. Instead, the State’s expert stayed
    well within the bounds of permissible testimony by a drug expert, providing
    general background information that would allow the jury to understand drug
    transactions in general.   The jury was then left free to make the ultimate
    determination of whether defendant possessed the CDS with the intent to
    distribute. Moreover, the absence of objection and the jury's verdict in this case
    lead us to conclude that Kolbeck's testimony did not lead the jury to a result it
    otherwise might not have reached. Indeed, while the jury found defendant guilty
    of possession of cocaine, it found him not guilty of possession of cocaine with
    intent to distribute.
    Affirmed.
    A-5030-18
    21
    TABLE ONE
    LOCATIONS, SUBSTANCES, AND WEIGHTS OF SEIZED CDS
    Exhibit        Location Found        Substance        Weight
    S-1       Living Room                Marijuana   0.472 grams
    S-6       Anderson's Bedroom         Heroin      13.461 grams
    S-7.1     Anderson's Bedroom         Cocaine     1.278 grams
    S-7.2     Anderson's Bedroom         Cocaine     0.347 grams
    S-16.1    Defendant's Bedroom        Marijuana   68.762 grams
    S-16.2    Defendant's Bedroom        Marijuana   29.757 grams
    S-18.1    Defendant's Bedroom        Pentylone   12.195 grams
    S-18.2    Defendant's Bedroom        Pentylone   3.045 grams
    S-18.3    Defendant's Bedroom        Cocaine     0.429 grams
    A-5030-18
    22
    

Document Info

Docket Number: A-5030-18

Filed Date: 12/16/2021

Precedential Status: Non-Precedential

Modified Date: 12/16/2021