State v. Yasin Simms(074209) , 224 N.J. 393 ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Yasin Simms (A-14-14) (074209)
[NOTE: This is a companion case to State v. Scott M. Cain (A-8-14) (074124), also filed today.]
Argued October 26, 2015 -- Decided March 15, 2016
ALBIN, J., writing for a unanimous Court.
The issue in this appeal is whether the hypothetical question posed by the State to its narcotics expert
witness elicited an ultimate-issue opinion that invaded the jury’s exclusive role as trier of fact and impermissibly
bolstered the State’s fact evidence.
On September 15, 2009, while conducting a drug surveillance of a public housing project in Atlantic City,
Detective Michael Ruzzo of the Atlantic City Police Department observed a four-door silver car park alongside a
curb near the project. The driver of the car, later identified as Sean Atkinson, reclined in his seat so that his head
was no longer visible, although he occasionally popped his head up to look around. Detective Ruzzo then radioed
Police Detectives William Warner and James Barrett, who were nearby, stating that he had in his sight a male
“waiting in the area to possibly buy C.D.S.” Shortly afterwards, a red car pulled directly in front of the silver car, so
that the two vehicles faced each other nose-to-nose. Defendant, the driver of the red car, exited and approached the
silver vehicle. Detective Ruzzo observed defendant lean into the open passenger’s window of the silver car and
hand “an object” to Atkinson in exchange for what the detective believed was “one bill of currency.” Just as
Detective Ruzzo radioed for Detectives Warner and Barrett “to move in,” the two detectives arrived on the scene.
Detective Warner saw defendant lean into the silver car and then walk away. He did not see an exchange
between Atkinson and defendant. As defendant walked in the direction of Detectives Warner and Barrett, who had
exited their vehicle, he placed “something” in his back pocket. The detectives then took defendant into custody.
Detective Warner next approached the driver’s side window of the silver car and observed “a bundle of heroin on
the passenger-side seat.” Atkinson was arrested, and ten packets of heroin stamped with the logo “Sweet Dreams”
were seized from the car. In the meantime, Detective Ruzzo walked toward the red car and observed Monae
Butcher in the front passenger seat “stuffing something down the rear of her pants.” Detective Ruzzo ordered
Butcher out of the car and called a female officer to assist after Butcher denied having any contraband on her.
Butcher then pulled from the back of her pants thirteen bags of heroin, also stamped with the logo “Sweet Dreams.”
The police later recovered a $100 bill from defendant’s rear pocket and an additional $56 from his person.
At trial, the prosecutor presented Detective Kevin Lockett of the Atlantic County Prosecutor’s Office as an
expert “in the field of narcotics use and distribution as well as the accompanying aspects of narcotics distribution.”
The prosecutor posed a lengthy hypothetical question to the drug expert which included the assumed fact that
Detective Ruzzo actually observed defendant hand a buyer ten packets of heroin for cash. That assumed fact,
however, was not based on an actual fact because the detective observed only an unidentified object in defendant’s
hands. The expert, moreover, expressed the opinion that the co-defendant conspired with defendant to distribute
drugs, which was another way of saying that defendant conspired with the co-defendant. Defendant did not object
to the hypothetical question or to the response, and he did not present any witnesses.
The jury convicted defendant of possession of heroin, possession of heroin with the intent to distribute,
distribution of heroin, possession of heroin with intent to distribute within a school zone (all third degree), and
second-degree possession of heroin with intent to distribute within 500 feet of a public housing facility. Defendant
was found not guilty of third-degree conspiracy to distribute heroin. The trial court imposed an aggregate sentence
of ten years with a five-year period of parole ineligibility for possession of heroin with intent to distribute within a
school zone and possession of heroin with intent to distribute within 500 feet of a public housing facility.
Defendant appealed. The Appellate Division affirmed defendant’s convictions and sentences. The panel
rejected defendant’s arguments that the testifying police officers improperly offered opinion testimony that a drug
transaction had taken place and that the prosecutor improperly assumed as a fact in the hypothetical question that
defendant distributed drugs to Atkinson.
The Supreme Court granted defendant’s petition for certification. 220 N.J. 40 (2014). In addition, the
Court requested that the parties “file supplemental briefs addressing the rationale and need for hypothetical
questions in the trial of a drug case, and the circumstances under which such questions may be used.”
HELD: The erroneously assumed fact in the hypothetical question -- that the object in defendant’s hand was a
bundle of heroin packets -- unfairly buttressed the State’s case. It was for the jury to decide the identity of the object
based on an examination of the totality of the evidence. The ultimate-issue testimony on conspiracy, moreover,
impermissibly intruded into the jury’s singular role as trier of fact.
1. Expert testimony is admissible “[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 (emphasis added). Expert testimony
that “embraces an ultimate issue to be decided by the trier of fact,” N.J.R.E. 704, is not admissible unless the subject
matter is beyond the ken of the average juror. State v. Nesbitt, 185 N.J. 504, 515-16, 519 (2006). Expert testimony
is not necessary to tell the jury the “obvious” or to resolve issues that the jury can figure out on its own. In addition,
a prosecutor may not “summarize straightforward but disputed evidence in the form of a hypothetical and then elicit
an expert opinion about what happened.” State v. Sowell, 213 N.J. 89, 102 (2013). (pp. 12-13)
2. Detective Warner’s testimony that Detective Ruzzo radioed at one point that he “was possibly observing a C.D.S.
transaction” and at another point that “there was a C.D.S. transaction taking place” violated the precepts articulated
in State v. McLean, 205 N.J. 438 (2011). The facts here, like in McLean, were simple and straightforward, and the
jurors were fully capable of grasping the meaning of easy-to-understand facts and making their own deductions
without the assistance of an expert in a simple drug-distribution case. (pp. 13-14)
3. The hypothetical question in this case required the drug expert to assume facts that were not established through
testimony and the assumed facts answered the very issue the jury was charged to resolve -- whether defendant
handed packets of heroin to the driver of the silver car in exchange for money. The jury was expected to resolve the
disputed issue by “sorting through all the evidence and using their common sense to make simple logical
deductions.” State v. Cain, __ N.J. __ , __ (2016) (slip op. at 21-22). The assumed facts in the hypothetical
undermined the jury’s exclusive role as finder of fact. Jurors are able to assess the evidence “on their own, based
upon common knowledge, experience, and logic.” Sowell, supra, 213 N.J. at 105. (pp. 14-17)
4. The expert’s opinion in this case directly bolstered not only the State’s case against the co-defendant, but also the
case against defendant by implicating him as the co-conspirator. If the co-defendant conspired with defendant, then
defendant must have conspired with the co-defendant. The expert’s mimicking the statutory language of conspiracy
and his conclusion that defendant conspired to distribute heroin was, in effect, a pronouncement of guilt, and a
repeat of the type of expert testimony that we disapproved in State v. Reeds, 197 N.J. 280 (2009). (pp. 17-19)
5. A hypothetical question in a drug case should not be used as a prosecutorial tool to sum up an entire case in a
single question for the purpose of eliciting an expert’s opinion on a defendant’s guilt. Cain, supra, __ N.J. at __ (slip
op. at 27). The practice of assuming in a hypothetical question an unnamed “individual” when every detail of the
question makes clear the reference is to the defendant serves no purpose and will not dissipate the prejudice of
inappropriate opinion testimony. Id. at __ (slip op. at 25). Straightforward facts that are not in dispute should not
require a hypothetical, even when expert testimony may be of assistance to the jury. However, when facts are in
dispute, and expert opinion testimony is appropriate, hypotheticals may play a useful role because the expert will be
required to assume a fact that ultimately a jury will decide. Id. at __ (slip op. at 26). The hypothetical in this case,
and the expert testimony that followed, trespassed into the exclusive domain of the jury. (pp. 19-22)
The judgment of the Appellate Division is REVERSED, defendant’s conviction is VACATED, and the
matter is REMANDED to the trial court for proceedings consistent with the Court’s opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and SOLOMON; and
JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’s opinion. JUSTICE FERNANDEZ-VINA
did not participate.
2
SUPREME COURT OF NEW JERSEY
A-14 September Term 2014
074209
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
YASIN SIMMS,
Defendant-Appellant.
Argued October 26, 2015 – Decided March 15, 2016
On certification to the Superior Court,
Appellate Division.
Alicia J. Hubbard, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).
John J. Santoliquido, Assistant Prosecutor,
argued the cause for respondent (James P.
McClain, Atlantic County Prosecutor,
attorney).
Steven A. Yomtov, Deputy Attorney General,
argued the cause for amicus curiae Acting
Attorney General of New Jersey (John J.
Hoffman, Acting Attorney General, attorney).
JUSTICE ALBIN delivered the opinion of the Court.
In State v. Cain, __ N.J. __ (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
1
the jury as trier of fact. After the jury is informed of “the
significance of drug packaging and weight, scales and cutting
agents, stash sites, the role of confederates, and other
activities consistent with drug trafficking,” “the average juror
is well-equipped to make the final determination whether a
defendant possessed the requisite mental state to commit a drug
offense.” Cain, supra, __ N.J. at __ (slip op. at 2).
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. Id. at __ (slip op. at 22). Such
testimony is not necessary to assist the jury. Nor are unduly
long and complex hypothetical questions that serve as mid-trial
summations and unfairly bolster the State’s case.
The case before us involves a joint trial of defendant and
a co-defendant, both charged with and convicted of a number of
drug offenses. The lengthy hypothetical question posed to the
drug expert included the assumed fact that the detective
actually observed defendant hand a buyer drugs for cash. That
assumed fact, however, was not based on an actual fact because
the detective observed only an unidentified object in
defendant’s hands. The expert, moreover, expressed the opinion
that the co-defendant conspired with defendant to distribute
drugs, which was another way of saying that defendant conspired
2
with the co-defendant. The Appellate Division affirmed
defendant’s various drug convictions.
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. The erroneously assumed
fact in the hypothetical question -- that the object in
defendant’s hand was a bundle of heroin packets -- unfairly
buttressed the State’s case. It was for the jury to decide the
identity of the object based on an examination of the totality
of the evidence. The ultimate-issue testimony on conspiracy,
moreover, impermissibly intruded into the jury’s singular role
as trier of fact. We are therefore compelled to reverse the
judgment of the Appellate Division, vacate defendant’s
convictions, and remand for a new trial.
I.
A.
Defendant Yasin Simms and co-defendant Monae Butcher were
tried jointly on various drug charges enumerated in an Atlantic
County indictment. At trial, the State elicited the following
testimony relevant to this appeal.
On September 15, 2009, while conducting a drug surveillance
of a public housing project in Atlantic City, Detective Michael
Ruzzo of the Atlantic City Police Department observed a four-
3
door silver car park alongside a curb near the project. The
driver of the car, later identified as Sean Atkinson, reclined
in his seat so that his head was no longer visible, although he
occasionally popped his head up to look around. Detective Ruzzo
then radioed Atlantic City Police Detectives William Warner and
James Barrett, who were nearby, stating that he had in his sight
a male “waiting in the area to possibly buy C.D.S.”
Shortly afterwards, a red car pulled directly in front of
the silver car, so that the two vehicles faced each other nose-
to-nose. Defendant, the driver of the red car, exited and
approached the silver vehicle. Detective Ruzzo observed
defendant lean into the open passenger’s window of the silver
car and hand “an object” to Atkinson in exchange for what the
detective believed was “one bill of currency.” Just as
Detective Ruzzo radioed for Detectives Warner and Barrett “to
move in,” the two detectives arrived on the scene.1
Detective Warner saw defendant lean into the silver car and
then walk away. He did not see an exchange between Atkinson and
defendant. As defendant walked in the direction of Detectives
Warner and Barrett, who had exited their vehicle, he placed
1 Detective Warner testified that Detective Ruzzo radioed that he
“was possibly observing a C.D.S. transaction” and that, after
the red car pulled up, “there was a C.D.S. transaction taking
place.” No objection was raised to this testimony.
4
“something” in his back pocket. The detectives then took
defendant into custody.
Detective Warner next approached the driver’s side window
of the silver car and observed “a bundle of heroin on the
passenger-side seat.” Atkinson was arrested, and ten packets of
heroin stamped with the logo “Sweet Dreams” were seized from the
car.
In the meantime, Detective Ruzzo walked toward the red car
and observed Monae Butcher in the front passenger seat “stuffing
something down the rear of her pants.” He also took notice of
an infant in the back seat. Detective Ruzzo ordered Butcher out
of the car and called a female officer to assist after Butcher
denied having any contraband on her. Before the female officer
undertook a search, Butcher pulled from the back of her pants
thirteen bags of heroin, also stamped with the logo “Sweet
Dreams.”
The police later recovered a $100 bill from defendant’s
rear pocket and an additional $56 from his person.
B.
At trial, the prosecutor presented Detective Kevin Lockett
of the Atlantic County Prosecutor’s Office as an expert “in the
field of narcotics use and distribution as well as the
accompanying aspects of narcotics distribution.” The prosecutor
posed the following hypothetical question:
5
I ask you to assume that all the facts I
am giving you are true.
Assume that, assume that a vehicle, a
silver vehicle, pulls up to the curb on a side
street of [a public housing project] in
Atlantic City. Assume that the occupant, the
sole occupant, of that car, then bends his
seat back, reclines it back so his head is
invisible and waits there while at times
picking his head up thusly.
Assume that a short time later, another
car approaches and a red car parks head-to-
head at a curb. Assume that there are two
occupants of that red car, a female and a male.
Assume that the male is driving and the female
is a passenger.
Assume that the male driver leaves the
red car and walks up to the silver car. Assume
that the male leans into the passenger side of
the silver car, hands the driver of the silver
car ten packets of heroin and receives from
the man in the silver car $100.
Assume that the male walks away from the
car about ten or 15 steps and is arrested by
police. Assume that on his person is a hundred
dollar bill and $56 in a separate pocket,
separate location of currency. Assume that
the $56 is in the denominations of two
twenties, three fives and one $1 bill.
Assume that the female passenger is
sitting facing forward, the arrest a very
short distance, possibly from me to you.
Assume that the female passenger of the red
car who arrived with the male is sitting
watching the arrest. Assume that the female
passenger stuffs 13 bags, 13 bags, packets, of
heroin into the rear of her pants, the rear of
her pants.
Assume that there is a total -- between
the ten in the silver car and the 13 bags on
the female passenger -- there’s a total of 23
6
bags of heroin.
. . . .
Assume that the items in S-19 are the
same as, appear the same as, for purposes of
this hypothetical, assume that the 23 bags
recovered appear as the bags in S-19. And I
want you to take them out and put them all out
one-by-one in front of you.
Assume that the ten bags that the male
handed to the driver of the silver car in
exchange for $100 and the 13 bags in the -- in
the female’s pants appeared the same as those
bags. Are you able to [form] an opinion as to
whether the female in possession of the 13
bags -- I’m sorry. I missed -- I missed two
facts.
Assume additionally that there was
nothing else in the -- in the pocket that held
the hundred dollar bill that the male took
from the sale. And assume that no use
paraphernalia of any kind is in the possession
of either the male or the female; no
hypodermic syringes, no straws, no CDs with
lines cut up; no use paraphernalia.
. . . .
Based on the facts that I have given you,
are you able to form an opinion as to whether
the 13 bags the female possessed, are you able
to form an opinion as to whether the female
possessed those 13 bags for personal use or
distribution.
Detective Lockett responded: “Based on the facts that
you’ve given me, that’s consistent with the distribution. Based
on those facts, . . . it appears consistent that the female may
have conspired with the male or conspired with the male to
distribute C.D.S. That would be my opinion on it.” Defendant
7
did not object to the hypothetical question or to the response.
Defendant did not present any witnesses.
C.
The jury convicted defendant of third-degree possession of
heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of
heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(3); third-degree distribution of heroin,
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); third-degree
possession of heroin with intent to distribute within a school
zone, N.J.S.A. 2C:35-7; and second-degree possession of heroin
with intent to distribute within 500 feet of a public housing
facility, N.J.S.A. 2C:35-7.1. Defendant was found not guilty of
third-degree conspiracy to distribute heroin, N.J.S.A. 2C:5-2
and N.J.S.A. 2C:35-5(b)(3).2
In light of defendant’s prior convictions, the trial court
imposed an extended term sentence of ten years with a five-year
period of parole ineligibility for possession of heroin with
intent to distribute within a school zone and a concurrent term
of ten years with a five-year period of parole ineligibility for
possession of heroin with intent to distribute within 500 feet
of a public housing facility. The court also imposed applicable
2 The jury convicted Butcher only of third-degree possession of
heroin. She was acquitted of conspiracy to distribute heroin
and a number of possession-with-intent-to-distribute charges.
8
fines and penalties. The remaining charges were merged.
Defendant appealed.
II.
The Appellate Division affirmed defendant’s convictions and
sentences. The panel rejected defendant’s arguments that the
testifying police officers improperly offered opinion testimony
that a drug transaction had taken place and that the prosecutor
improperly assumed as a fact in the hypothetical question that
defendant distributed drugs to Atkinson.
We granted defendant’s petition for certification. State
v. Simms, 220 N.J. 40 (2014). In addition, we requested that
the parties “file supplemental briefs addressing the rationale
and need for hypothetical questions in the trial of a drug case,
and the circumstances under which such questions may be used.”
We also granted the Attorney General leave to participate as
amicus curiae.
III.
A.
Defendant argues that Detective Ruzzo’s radio calls that he
“was possibly observing a C.D.S. transaction” and that “there
was a C.D.S. transaction taking place” -- admitted through
Detective Warner’s testimony -- constituted impermissible
opinion on an ultimate issue of fact.
Next, defendant contends that the prosecutor’s hypothetical
9
question to the drug expert improperly assumed a fact not in
evidence. Defendant points out that although Detective Ruzzo
observed defendant hand only “an object” to Atkinson, the
hypothetical asked the expert to assume that defendant gave ten
packets of heroin to Atkinson for $100. Defendant maintains
that it was for the jury to determine whether such a sale
occurred.
Defendant, moreover, posits that because defendant was
tried jointly with Butcher, he was prejudiced by the expert’s
opinion testimony that Butcher had conspired with defendant to
distribute heroin. He maintains that disputed facts should have
been reserved for the jury’s determination.
Finally, defendant submits that (1) the use of the
hypothetical to elicit ultimate-issue testimony from a drug
expert, in this and other drug prosecutions, does not assist the
jury in understanding the evidence, but rather invades its
exclusive province as factfinder and (2) that an expert’s
opinion, which amounts to a declaration of guilt, causes
prejudice that far outweighs the probative value of the
testimony.3
B.
The State counters that Detective Ruzzo’s characterization
3 Defendant also argues that his sentence was excessive, but we
need not reach that issue.
10
of his observations of defendant -- as relayed through Detective
Warner’s testimony -- did not constitute opinion testimony.
According to the State, Detective Ruzzo’s call to Detective
Warner that a “C.D.S. transaction was taking place” was simply a
request that Warner enter the area for the purpose of detaining
defendant and Atkinson, and therefore Detective Ruzzo’s
description was “the essence of fact testimony.”
The State concedes “that its hypothetical question to its
expert witness slightly exceeded the facts in evidence by
referring to a sale of heroin.” The State, however, claims that
the misstep did not draw an objection and did not constitute
plain error.
The State also maintains that the hypothetical question,
which elicited from the expert an opinion that the co-defendant
was engaged in a drug-distribution scheme, could not have
adversely affected defendant because the jury acquitted the co-
defendant of the drug-distribution charges.
Last, the State asserts that an expert witness should be
permitted “to testify directly on the criminal nature of a drug
defendant’s conduct . . . premised on [the expert’s] general
knowledge of the illegal drug trade,” provided it is made clear
that the expert’s opinion does not rest “on any special
knowledge of the defendant’s state of mind.” The State
“recommends that the use of hypothetical questions be permitted
11
but not required to elicit the opinion testimony.”
C.
The Attorney General, as amicus curiae, acknowledges that
expert testimony is not necessary to assist the jury in
determining “whether a simple narcotics transaction has taken
place” and that “a detailed hypothetical precisely mirroring the
State’s evidence” should be impermissible where the defendant
engages in a two-person drugs-for-cash deal. The Attorney
General states, however, that carefully “crafted hypotheticals .
. . . are a critical tool for the jury in understanding the
evidence,” allowing the expert to synthesize disparate facts and
place them in context to explain the operation of a drug-
distribution scheme.
IV.
A.
Expert testimony is admissible “[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 (emphasis added). Expert testimony that “embraces
an ultimate issue to be decided by the trier of fact,” N.J.R.E.
704, is not admissible unless the subject matter is beyond the
ken of the average juror. State v. Nesbitt, 185 N.J. 504, 515-
16, 519 (2006).
From our evidence rules, we have established guiding
12
principles to ensure the proper use of opinion testimony in drug
cases. Expert testimony is not necessary to tell the jury the
“obvious” or to resolve issues that the jury can figure out on
its own. Id. at 514. In other words, “[e]xpert testimony
should be limited to areas that are beyond the understanding of
the jury.” State v. Sowell, 213 N.J. 89, 102 (2013). A
prosecutor may not “summarize straightforward but disputed
evidence in the form of a hypothetical and then elicit an expert
opinion about what happened.” Ibid. Such an “approach
improperly bolsters the State’s proofs with expert testimony and
can usurp the jury’s sole responsibility to find the facts.”
Ibid.
B.
In this case, Detective Ruzzo observed defendant lean into
a car window and hand the driver “an object” in exchange for
what appeared to be “one bill of currency.” Shortly afterwards,
ten packets of heroin with the logo “Sweet Dreams” were found on
the passenger’s seat of that car. Almost simultaneously, the
police arrested the co-defendant, who was sitting in defendant’s
car in possession of thirteen packets of heroin stamped with the
same logo.
Detective Warner testified that Detective Ruzzo radioed at
one point that he “was possibly observing a C.D.S. transaction”
and at another point that “there was a C.D.S. transaction taking
13
place.” That testimony violated the precepts articulated in
State v. McLean, 205 N.J. 438 (2011).
In McLean, we reversed the defendant’s possession-with-
intent-to-distribute convictions because a testifying police
officer, who observed the defendant hand only an item to an
individual in exchange for money during a surveillance,
expressed the opinion that a drug transaction had occurred. Id.
at 443, 463. We came to that conclusion because the jurors were
fully capable of grasping the meaning of easy-to-understand
facts and making their own deductions without the assistance of
an expert in a simple drug-distribution case. Id. at 461.
The facts here, like in McLean, were simple and
straightforward, and the jury was fully capable of deciding
whether defendant engaged in an act of drug distribution. No
objection, however, was made to that testimony, which also
constituted hearsay. N.J.R.E. 801(c) (“‘Hearsay’ is a
statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.”). We do not have to decide whether the
admission of that testimony constituted plain error, however,
because more serious errors plagued this trial.
C.
The hypothetical question in this case required the drug
expert to assume facts that were not established through
14
testimony and that were hotly contested. Indeed, the assumed
facts answered the very issue the jury was charged to resolve --
whether defendant handed packets of heroin to the driver of the
silver car in exchange for money.
The prosecutor asked the jury to assume that the driver of
the red car (defendant) walks up to a silver car and “leans into
the passenger side of the silver car, hands the driver of the
silver car ten packets of heroin and receives from the man in
the silver car $100.” The trial testimony, however, did not
support this portion of the hypothetical. As noted earlier,
Detective Ruzzo saw only an object in defendant’s hand. The
ultimate issue to be decided by the jury was whether the
“object” was in fact the “ten packets of heroin.” The jury was
expected to resolve the disputed issue by “sorting through all
the evidence and using their common sense to make simple logical
deductions.” Cain, supra, __ N.J. at __ (slip op. at 21-22).
The assumed facts in the hypothetical undermined the jury’s
exclusive role as finder of fact.
The issue here is similar to one presented in Sowell,
supra. There, a corrections officer observed an individual take
from her front pocket an “item” and place it in the hands of the
defendant-inmate during a prison visit. 213 N.J. at 94. The
defendant then put the “item” in a bag of potato chips, which he
laid under the seat next to him. Ibid. Afterwards, corrections
15
officers had the defendant empty the contents of the potato chip
bag. The contents included a balloon containing thirty decks
(glassine envelopes) of heroin. Ibid. The defense vigorously
challenged the State’s version of events. Id. at 97.
Nevertheless, the prosecutor posed a hypothetical question to a
drug expert reciting all the details observed by the corrections
officers and then had the expert render an opinion “[t]hat a
transaction or an exchange of narcotics took place” in the
prison. Id. at 96-97.
We found that the expert’s opinion did not meet the
standard for admissibility of expert testimony. Id. at 104-07.
That was so because “a straightforward transaction in which one
person receives a packet of drugs from another and hides it in a
bag of chips requires no expert interpretation.” Id. at 105.
In such a case, jurors are able to assess the evidence “on their
own, based upon common knowledge, experience, and logic.” Ibid.
We warned that “the prosecution cannot call an expert to fill in
gaps and clarify a transaction that jurors can understand on
their own.” Ibid. We did not reverse the defendant’s
convictions only because of the overwhelming evidence of guilt,
which included the defendant’s admissions and a videotape of the
exchange. Id. at 107.
Even though defendant made no objection to the
prosecutorial error highlighted here, that error was exacerbated
16
by the expert’s ultimate-opinion testimony, to which we turn
now.
D.
The expert witness in this case, Detective Lockett,
expressed the opinion that the thirteen packets of heroin found
in the possession of the co-defendant sitting in defendant’s car
were not only consistent with distribution, but also that it
appeared that she had “conspired with the male to distribute
C.D.S.” No one disputes that the male referred to was
defendant. The expert’s opinion directly bolstered not only the
State’s case against the co-defendant, but also the case against
defendant by implicating him as the co-conspirator. Surely, if
the co-defendant conspired with defendant, then defendant must
have conspired with the co-defendant. The expert’s mimicking
the statutory language of conspiracy and his conclusion that
defendant conspired to distribute heroin was, in effect, a
pronouncement of guilt, and a repeat of the type of expert
testimony that we disapproved in State v. Reeds, 197 N.J. 280
(2009).
In that case, the defendant was convicted of possession of
heroin and possession with intent to distribute. Id. at 289.
At trial, in response to a hypothetical question posed by the
prosecutor, the police expert offered the opinion that the
defendant and the two occupants in the defendant’s car
17
constructively possessed heroin with intent to distribute based
on the quantity of heroin found in the car after a police stop.
Id. at 286-88. We held that “the expert’s constructive
possession opinion was tantamount to a legal conclusion,
resulting in a veritable pronouncement of guilt on the two
possession crimes.” Id. at 297. We also observed that “by
mimicking the language of the statute . . . the expert’s
testimony on constructive possession of drugs” was neither
probative nor helpful to the jury. Id. at 296-97. In reversing
the defendant’s conviction on the basis of plain error, we
concluded that the expert’s “ultimate-issue testimony usurped
the jury’s singular role” as finder of fact and “was clearly
capable of producing an unjust result.” Id. at 300-01.
There is no meaningful difference between the flawed expert
testimony in Reeds and the expert testimony challenged in this
case. In both cases, by tracking the statutory language, the
experts rendered an ultimate-issue opinion expressing a belief
in the guilt of the defendants. As in Reeds, here, the use of a
narcotics expert was not necessary to tell the jury the
“obvious” in the case of “a straightforward” vehicle search.
See id. at 293, 299 (quoting Nesbitt, supra, 185 N.J. at 514).
As in Reeds, the prejudicial testimony here did not draw an
objection.
Nevertheless, the cumulative effect of the errors in the
18
present case were “clearly capable of producing an unjust
result,” R. 2:10-2, requiring a reversal of defendant’s
convictions. See State v. Weaver, 219 N.J. 131, 155 (2014)
(noting duty of this Court to reverse conviction “[w]hen legal
errors cumulatively render a trial unfair”).
V.
The parties and amicus Attorney General filed briefs
“addressing the rationale and need for hypothetical questions in
the trial of a drug case, and the circumstances under which such
questions may be used.” Our response to that issue in Cain
obviates the need for a detailed discussion here. But certain
principles enunciated in Cain bear repeating because they have
direct application to the facts before us.
“To the extent possible, questions posed to an expert
witness in a drug case should be compact and easy to understand
. . . . [S]implicity in sentence structure will be helpful to
the witness and the jury.” Cain, supra, __ N.J. at __ (slip op.
at 27). A hypothetical question in a drug case should not be
used as a prosecutorial tool to sum up an entire case in a
single question for the purpose of eliciting an expert’s opinion
on a defendant’s guilt. Ibid. The practice of assuming in a
hypothetical question an unnamed “individual” when every detail
of the question makes clear the reference is to the defendant
serves no purpose and will not dissipate the prejudice of
19
inappropriate opinion testimony. Id. at __ (slip op. at 25).
After the jury is informed about the significance of evidence
that requires the assistance of expert testimony, such as
quantity and packaging of drugs, and other indicia of drug
distribution not commonly understood by lay persons, jurors are
capable of processing the information received at trial, of
drawing inferences, and making logical deductions in carrying
out their duties as the ultimate finders of fact. Id. at __
(slip op. at 20-22).
Straightforward facts that are not in dispute should not
require a hypothetical, even when expert testimony may be of
assistance to the jury. Id. at __ (slip op. at 25). For
instance, in this case, the ten bags of heroin found in
Atkinson’s car and the thirteen bags of heroin seized from the
co-defendant each bore the logo “Sweet Dreams.” Without the use
of a hypothetical, the expert could have explained the purpose
of stamping a logo on drug packaging and whether a particular
logo can be attributed to a singular dealer or drug operation.
See United States v. Mejia, 448 F.3d 436, 441 (D.C. Cir. 2006)
(noting expert’s testimony on significance of “drug logos
associated with the packaging of cocaine”), cert. denied, 549
U.S. 1137, 127 S. Ct. 989, 166 L. Ed. 2d 747 (2007). However,
when facts are in dispute, and expert opinion testimony is
appropriate, hypotheticals may play a useful role because the
20
expert will be required to assume a fact that ultimately a jury
will decide. See Cain, supra, __ N.J. at __ (slip op at 26).
The hypothetical in this case, like the hypothetical in
Cain, supra, __ N.J. at __ (slip op. at 37-39), and the expert
testimony that followed, trespassed into the exclusive domain of
the jury. The jurors did not need the assistance of an expert
to determine whether defendant handed the packets of heroin to
the driver of the silver car after the detective testified that
defendant passed “an object” in exchange for currency. The
inferences to be drawn from those facts were for the jury, after
a review of all of the evidence in the case. Whether defendant
and the co-defendant conspired to distribute drugs was an
ultimate issue of fact for the jury, not a proper subject for
expert testimony. The hypothetical in this case, like in Cain,
served as a mid-trial summation, allowing the prosecutor to
improperly bolster the straightforward facts of the State’s case
with expert testimony.
When the ultimate issue of fact in a drug case is the
defendant’s state of mind or an issue that the average juror can
resolve without assistance, expert testimony is not permissible.
The discussion here and in Cain should provide guidance in the
appropriate use of hypotheticals and expert testimony in drug
cases.
VI.
21
For the reasons expressed, we reverse the judgment of the
Appellate Division and vacate defendant’s convictions. We
remand to the trial court for proceedings consistent with this
opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
ALBIN’s opinion. JUSTICE FERNANDEZ-VINA did not participate.
22
SUPREME COURT OF NEW JERSEY
NO. A-14 SEPTEMBER TERM 2014
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
YASIN SIMMS,
Defendant-Appellant.
DECIDED March 15, 2016
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE/
CHECKLIST VACATE/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA ----------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6