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

NOT FOR PUBLICATION WITHOUT THE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.
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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:
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[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.
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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.
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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.
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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
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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."
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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
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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
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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).
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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
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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.
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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.
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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,
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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.
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