1-22-09 State v. Reeds (A-103-07)

1-22-09 State v. Rahmann Reeds (A-103-07)
Defendant suffered undue prejudice from the evidence in the form of expert testimony opining, in effect, that he constructively
possessed the drugs found in the vehicle he was driving. This ultimate-issue testimony usurped the jury’s singular role in the
determination of defendant’s guilt and irredeemably tainted the remaining trial proofs, producing an unjust result in defendant’s trial.

Pat down during traffic stop requires belief person is armed and dangerous ARIZONA v. JOHNSON

Pat down during traffic stop requires belief person is armed and dangerous ARIZONA v. JOHNSON

SUPREME COURT OF THE UNITED STATES
certiorari to the court of appeals of arizona

No. 07–1122. Argued December 9, 2008—Decided January 26, 2009
In Terry v. Ohio, 392 U. S. 1 , this Court held that a “stop and frisk” may be conducted without violating the Fourth Amendment ’s ban on unreasonable searches and seizures if two conditions are met. First, the investigatory stop (temporary detention) must be lawful, a requirement met in an on-the-street encounter when a police officer reasonably suspects that the person apprehended is committing or has committed a crime. Second, to proceed from a stop to a frisk (patdown for weapons), the officer must reasonably suspect that the person stopped is armed and dangerous. For the duration of a traffic stop, the Court recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California, 551 U. S. 249 .

While patrolling near a Tucson neighborhood associated with the Crips gang, police officers serving on Arizona’s gang task force stopped an automobile for a vehicular infraction warranting a citation. At the time of the stop, the officers had no reason to suspect the car’s occupants of criminal activity. Officer Trevizo attended to respondent Johnson, the back-seat passenger, whose behavior and clothing caused Trevizo to question him. After learning that Johnson was from a town with a Crips gang and had been in prison, Trevizo asked him get out of the car in order to question him further, out of the hearing of the front-seat passenger, about his gang affiliation. Because she suspected that he was armed, she patted him down for safety when he exited the car. During the patdown, she felt the butt of a gun. At that point, Johnson began to struggle, and Trevizo handcuffed him. Johnson was charged with, inter alia, possession of a weapon by a prohibited possessor. The trial court denied his motion to suppress the evidence, concluding that the stop was lawful and that Trevizo had cause to suspect Johnson was armed and dangerous. Johnson was convicted. The Arizona Court of Appeals reversed. While recognizing that Johnson was lawfully seized, the court found that, prior to the frisk, the detention had evolved into a consensual conversation about his gang affiliation. Trevizo, the court therefore concluded, had no right to pat Johnson down even if she had reason to suspect he was armed and dangerous. The Arizona Supreme Court denied review.

Held: Officer Trevizo’s patdown of Johnson did not violate the Fourth Amendment ’s prohibition on unreasonable searches and seizures. Pp. 5–9.

(a) Terry established that, in an investigatory stop based on reasonably grounded suspicion of criminal activity, the police must be positioned to act instantly if they have reasonable cause to suspect that the persons temporarily detained are armed and dangerous. 392U. S.,at 24. Because a limited search of outer clothing for weapons serves to protect both the officer and the public, a patdown is constitutional. Id., at 23–24, 27, 30–31. Traffic stops, which “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry,” Berkemer v. McCarty, 468 U. S. 420 , are “especially fraught with danger to police officers,” Michigan v. Long, 463 U. S. 1032 , who may minimize the risk of harm by exercising “ ‘unquestioned command of the situation,’ ” Maryland v. Wilson, 519 U. S. 408 . Three decisions cumulatively portray Terry’s application in a traffic-stop setting. In Pennsylvania v. Mimms, 434 U. S. 106 (per curiam), the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment ,” id., at 111, n. 6, because the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle, id., at 110–111. Citing Terry, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous. 434 U. S., at 112. Wilson, 519 U. S., at 413, held that the Mimms rule applies to passengers as well as drivers, based on “the same weighty interest in officer safety.” Brendlin, 551 U. S., at 263, held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on the side of the road.” A passenger’s motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver. 519 U. S., at 414. And as “the passengers are already stopped by virtue of the stop of the vehicle,” id., at 413–414, “the additional intrusion on the passenger is minimal,” id., at 415. Pp. 5–7.

(b) The Arizona Court of Appeals recognized that, initially, Johnson was lawfully detained incident to the legitimate stop of the vehicle in which he was a passenger, but concluded that once Officer Trevizo began questioning him on a matter unrelated to the traffic stop, patdown authority ceased to exist, absent reasonable suspicion that Johnson had engaged, or was about to engage, in criminal activity. The court portrayed the interrogation as consensual, and, Johnson emphasizes, Trevizo testified that Johnson could have refused to exit the vehicle and to submit to the patdown. But Trevizo also testified that she never advised Johnson he did not have to answer her questions or otherwise cooperate with her. A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. An officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop’s duration. See Muehler v. Mena, 544 U. S. 93 . A reasonable passenger would understand that during the time a car is lawfully stopped, he or she is not free to terminate the encounter with the police and move about at will. Nothing occurred in this case that would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free “to depart without police permission.” Brendlin, 551 U. S., at 257. Trevizo was not required by the Fourth Amendment to give Johnson an opportunity to depart without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her. Pp. 7–9.

217 Ariz. 58, 170 P. 3d 667, reversed and remanded.

Ginsburg, J., delivered the opinion for a unanimous Court.

State v. Reeds (A-103-07) The issue in this appeal is whether expert testimony about constructive possession of drugs.

1
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
interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. Rahmann Reeds (A-103-07)

Argued November 3, 2008 -- Decided January 22, 2009

LaVECCHIA, J., writing for a majority of the Court.

The issue in this appeal is whether expert testimony about constructive possession of drugs found in a
vehicle exceeded the parameters of acceptable expert testimony in a drug prosecution trial.

On August 14, 2002, two Bergen County police officers stopped a vehicle traveling on Route 95 from the
George Washington Bridge. Defendant Rahmann Reeds allegedly had been driving excessively fast and erratically.
Mark Whitley and Isaac Outen were passengers in the vehicle. The officers detected the smell of burnt marijuana,
noticed a burnt marijuana joint in the center console, and observed several packages of heroin on the front seat
passenger floor. Upon searching the vehicle, the officers uncovered fifteen unopened bricks of heroin and one
opened brick. All totaled, the bricks contained 798 small packages of heroin. In addition, the officers found six
bags of marijuana in the interior front passenger area.

At trial, the State presented several witnesses, including Detective David Swan, an expert in narcotics
distribution and possession. In responding to a hypothetical question, Detective Swan opined, over co-defendant
Whitley’s attorney’s objection, that all defendants were in constructive possession of the narcotics. During the
charge conference, counsel for all three defendants asked the court to provide a limiting instruction informing the
jurors to consider Detective Swan’s opinion only to determine whether the defendants possessed the drugs for
personal use or for distribution; and not to consider his opinion in determining whether the drugs were
constructively possessed because that was an issue of fact for the jury. The trial court issued a limiting instruction
addressing the hypothetical question and the weight of the expert’s opinion based on whether or not the facts
assumed in the hypothetical were proven.

The jury convicted Reeds of third-degree possession of heroin and second-degree possession of heroin with
the intent to distribute. Reeds moved for a new trial based on the State’s purported failure to prove various
elements of the charged offenses. That motion was denied. The court sentenced Reeds to fifteen years’
incarceration with a six-year period of parole ineligibility pursuant to the No Early Release Act (NERA).

Reeds raised several issues on appeal. The Appellate Division, applying the “plain error” standard,
determined that the hypothetical line of questioning by Detective Swan was permissible. The appellate panel further
determined that the court’s limiting instruction during its charge to the jury quelled any potential prejudice that may
have resulted from Detective Swan’s testimony about defendant’s constructive possession of the drugs found in the
car.

The Supreme Court granted limited certification to address the issue of whether Detective Swan’s
testimony exceeded the bounds of acceptable hypothetical testimony.

HELD: Defendant suffered undue prejudice from the evidence in the form of expert testimony opining, in effect,
that he constructively possessed the drugs found in the vehicle he was driving. This ultimate-issue testimony
usurped the jury’s singular role in the determination of defendant’s guilt and irredeemably tainted the remaining trial
proofs, producing an unjust result in defendant’s trial.

1. The Court’s analysis begins with the Rules of Evidence, specifically Rule 702, which governs the admissibility of
expert testimony and provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training or education may testify thereto in the form of an opinion or otherwise.” It is incumbent on the
2
professing party to show that (1) the intended testimony concerns a subject matter beyond the ken of an average
juror; (2) the field is at a state of the art such that an expert’s testimony would be reliable; and (3) the witness has
expertise sufficient to offer the intended testimony. The use of expert testimony about the methods employed by
drug traffickers to package and to distribute illegal drugs for sale has been long recognized as permissible under
Rule 702 standards because such information is a specialized subject matter that is beyond the ken or normal life
experience of the average juror. The Court has also approved the use of a hypothetical question as an appropriate
vehicle through which an expert could testify in respect of inferring intent or purpose when drugs are possessed
under certain circumstances, even when such testimony “embraces an ultimate issue to be decided by the trier of
fact,” N.J.R.E. 704, so long as the probative value of the circumscribed testimony is not substantially outweighed by
the risk of causing undue prejudice, N.J.R.E. 403. Because it is the exclusive responsibility of the jury to
determine guilt, there is always the concern about the potential for an expert’s opinion on a hypothetical question to
slip dangerously close to usurpation of the jury’s role by essentially telling the jurors how to resolve a case. (Pp. 11-
17)

2. In this matter, the trial court did not err by allowing an expert to testify that a drug possessor’s likely intent and
purpose in possessing heroin in the amount and circumstances present here was to engage in distribution. Such
testimony reasonably was determined to be helpful to jurors in understanding a specialized area that was beyond
their ken. There was another portion to the expert’s testimony, however, that must be separately analyzed because it
carries a substantial potential for prejudice. Specifically, the Court must assess the admissibility of the further
testimony by the expert about whether all or any persons traveling in the car in which these drugs were found
constructively possessed the drugs. In response to the hypothetical, the expert reached to address the factual issue
about who in the car could be found to be in possession of the drugs. That should not have been permitted.
Although expert testimony may be employed when a defendant’s drug charge involves possession that may be
constructive, courts have used care in defining the parameters of permissible expert testimony to ensure that the
expert does not answer for the jury the actual question of whether the drugs or other items in issue were
constructively possessed. In this case, the expert’s constructive possession opinion was tantamount to a legal
conclusion, resulting in a veritable pronouncement of guilt on the two possession crimes for which defendant was
charged, which clearly was unduly prejudicial. Moreover, the resulting jury instruction did not cure the prejudice,
but instead confounded the jury. (Pp. 18-23)

3. Defendant asserts that this case should be decided based on the harmless-error standard of review because co-
defendant Whitley’s attorney objected to the constructive-possession question and answer and because defendant’s
counsel requested that the trial court instruct the jury to disregard the constructive-possession testimony.
Defendant’s counsel never objected to the testimony and even acceded to the jury instruction issued by the court.
Ordinarily, when counsel fails to object to offensive testimony, the Court would apply the plain error standard of
review. The Court need not perseverate over which standard of review ought to control in this setting, however,
because under either standard the Court would reverse this conviction. Allowance of the constructive possession
testimony was plainly erroneous and the resulting prejudice was not harmless. The testimony in respect of
constructive possession usurped the jury‘s role as the ultimate fact-finder and irredeemably tainted all of the
evidence presented. Further, the court’s limiting instruction during the jury charge was not only ineffective in
curing the problem, but was also confounding for the jury because it allowed the testimony to be considered when
the jury assessed defendant’s guilt. This ultimate-issue testimony usurped the jury’s singular role in the
determination of defendant’s guilt and irredeemably tainted the remaining trial proofs, producing an unjust result.
(Pp. 23-28)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial.

JUSTICE ALBIN filed a separate, CONCURRING opinion, in which JUSTICE LONG joins, stating
that although he is heartened by the majority’s opinion, the Court’s well-articulated reasons for rejecting Detective
Swan’s expert testimony cannot be squared with previous Supreme Court holdings.

JUSTICE RIVERA-SOTO filed a separate, DISSENTING opinion, concluding that the prosecution
properly elicited the opinion of a police detective qualified as an expert concerning a matter outside the ken of an
ordinary person: the idiosyncrasies of a clandestine drug transaction.

3
CHIEF JUSTICE RABNER and JUSTICES WALLACE and HOENS join in JUSTICE
LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate, concurring opinion, in which JUSTICE LONG
joins. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion.

1

SUPREME COURT OF NEW JERSEY
A-103 September Term 2007


STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHMANN REEDS, a/k/a DENNIS
COAST, RAHMANN ABDUL REEDS,

Defendant-Appellant.


Argued November 3, 2008 – Decided January 22, 2009

On certification to the Superior Court,
Appellate Division.

Alison S. Perrone, Designated Counsel,
argued the cause for appellant (Yvonne Smith
Segars, Public Defender, attorney; Ms.
Perrone and Roger L. Camacho, Designated
Counsel, on the brief).

Catherine A. Foddai, Senior Assistant
Prosecutor, argued the cause for respondent
(John L. Molinelli, Bergen County
Prosecutor, attorney).

Robyn B. Mitchell, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Anne Milgram,
Attorney General, attorney).


JUSTICE LaVECCHIA delivered the opinion of the Court.
A jury convicted defendant, Rahmann Reeds, of third-degree
possession of heroin, N.J.S.A. 2C:35-10(a)(1), and second-degree
possession of heroin with intent to distribute, N.J.S.A. 2C:35-
2
5(a)(1) and (b)(2) (possessing quantity of one-half ounce or
more, but less than five ounces). In this appeal, defendant
contends that the State’s expert’s testimony on drug possession
and distribution methods exceeded permissible limits.
Specifically, defendant points to a portion of the expert’s
testimony that responded to a hypothetical question. The
hypothetical reflected the facts of defendant’s arrest. In
response, the expert opined that defendant had been in
“constructive possession” of the drugs recovered by the police
from the car in which he was driving. Defendant claims that the
testimony violated State v. Odom, 116 N.J. 65 (1989), and
subsequent cases, because (1) the subject matter of the expert’s
testimony, addressing who was in possession of the drugs found
in the car, was not beyond the ken of average jurors; and (2)
the expert’s opinion impermissibly invaded the jury’s province
by addressing the ultimate issue of defendant’s guilt.
We agree that the expert’s testimony in this matter went
too far and exceeded permissible limits. That this Court has
recognized a beneficial and appropriate role for a drug expert’s
testimony that explains unfamiliar drug trafficking methods to
jurors was not meant to signal that there are no appreciable
limits to such expert testimony. The expert may not usurp the
province of the jury to decide the ultimate issue of defendant’s
guilt. Here, the expert’s assessment that defendant
3
constructively possessed the drugs found in the car remained
part of the record to be considered by the jury. The question
of constructive possession of the drugs found in the car was one
that the jury was capable of and required to assess itself, by
drawing inferences and applying common logic and knowledge.
Because the expert should not have been permitted to opine on
the ultimate issue of whether defendant possessed the drugs
found, plain error occurred. Accordingly, we are compelled to
reverse defendant’s convictions and to remand for a new trial.
I.
To understand the import of the expert’s testimony in
defendant’s trial, we summarize the facts that were adduced at
trial.
On August 14, 2002, two Bergen County police officers
stopped a vehicle travelling on Route 95 from the George
Washington Bridge. The driver, defendant, allegedly had been
driving excessively fast and erratically. Mark Whitley and
Isaac Outen were passengers in the vehicle. When asked by one
of the officers for his driving credentials, defendant provided
a false name and explained that he did not have a license or an
insurance card. During that colloquy with defendant, the
officer smelled the odor of burnt marijuana and observed an open
beer bottle in the rear portion of the interior cabin of the
vehicle, near where Outen was seated. The officer made
4
defendant exit the vehicle and, in response to further
questioning, defendant admitted that his license was suspended
and explained that the car was borrowed.
Returning to question the two passengers still in the car,
the officer began with Whitley, the front seat passenger, when
he noticed a burnt marijuana joint in the center console. After
the officer had Whitley exit the vehicle, the officer saw
several packages of heroin on the floor where Whitley’s feet had
been. The officer searched the area under the front passenger
seat and found fifteen unopened bricks of heroin, each
containing five bundles of ten heroin packages. He also found
an additional opened brick of heroin. All totaled, the bricks
contained 798 small packages of heroin. In addition, the
officer found six bags of marijuana in the interior front
passenger area.
A grand jury returned indictments against defendant,
Whitley, and Outen for third-degree possession of a controlled
dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one);
against defendant, Whitley, and Outen for second-degree
possession of heroin with the intent to distribute, N.J.S.A.
2C:35-5(a)(1) and (b)(2) (count two); and against defendant and
5
Outen for third-degree hindering apprehension, N.J.S.A. 2C:29-
3(b)(4) (count three).1
The defendants were tried together. During the four-day
trial, the State presented several witnesses, including
Detective David Swan, an expert in narcotics distribution and
possession.2 During direct examination of Detective Swan by the
prosecutor, the following exchange occurred:
Q [Prosecutor] [A]ssume hypothetically that
three individuals are driving in a borrowed
vehicle. Let’s call the driver S-l, suspect
one. Front passenger, suspect two. And
assume there is a rear passenger behind the
front passenger which we’ll call suspect
three, S-3.

A [Detective Swan] Okay.

Q And they’re traveling from New York
City on Route 95 so that you know that
they’re coming out of New York. And the
individuals are traveling in the vehicle at
night, approximately a little before 9:00 PM
on a week night. They’re driving in an
erratic fashion, pulled over. The front
passenger and the rear passenger, back
passenger at some point are asked their
names and they give false names.


1
Count three was dismissed prior to jury selection.

2
Detective Swan’s qualifications as an expert in this drug
possession case were not challenged. At the time, Detective
Swan had been a member of the Bergen County Prosecutor’s Office
Narcotics Task Force for more than eleven years. He had
investigated fifty-five to sixty heroin cases, had provided an
expert opinion, without testifying, approximately 300 times, and
had thrice testified as an expert in heroin possession
prosecutions.
6
An officer who asks the front passenger for
their paperwork smells marijuana in the
vehicle and notices in the vehicle an open
container of beer.

After that[,] later found in the vehicle, in
the front passenger section, right between -
- on the floor in front of the seat but
where their feet would be are found loose
folds of what’s determined to be heroin and
also scattered on the floor are -- by the
feet of the front passenger are six bags of
marijuana and underneath the seat are found
fifteen bricks of heroin, determined to be
heroin, as well as found additionally is a
sixteenth brick. That sixteenth brick had
been opened so that there were forty bags
and seven or eight various loose folds.

On the back passenger assume is found cigars
or brown cigarettes, Phillies. And on the
persons of the individuals are found a
totality of currency of nine hundred
fourteen dollars.

A Okay.

Q Assuming all those hypothetical facts,
do you have an opinion as to why the drugs,
specifically the heroin, totaling several
hundred bags or folds, would be possessed?

A My opinion they would be possessed with
the intent to distribute.

Q And would that opinion be as to
suspects one, two and three?

A All constructive possession with the
intent to distribute.

. . . .

Q And in your training and experience,
have you ever had an experience where three
individuals would have been located in a
7
vehicle under these hypothetical facts where
it would not have been possessed by them?

[Defense counsel for Whitley]: Objection,
judge. That’s a conclusion the jury has to
make.

Court: She’s saying hypothetically in his
training and experience has he ever found
that.

[Defense counsel for Whitley]: I don’t
think she said hypothetically. I think she
said has he ever been involved in a case
where this happened. She wasn’t phrasing it
in hypothetical terms.

[Prosecutor rephrases the question]

Q Hypothetically considering these facts
or in your experience would it be your
opinion these drugs could be possessed not
with the intent to be distributed?

A I believe they would be possessed with
the intent to be distributed.

Q Why else do you have that opinion
besides the amount?

A The amount, the fact that there’s three
individuals in the vehicle. It’s been my
experience doing road stops, pulling people
over during interdictions that generally
when people go to purchase drugs they don’t
go alone because there’s a danger involved
where not only do they have to worry about
the police, being detected by the police,
but other drug dealers or potential robbers,
stickup men. So one may act as a lookout.
One may act as a money guy. One may act as
security.

[(Emphasis added).]

8
After Detective Swan’s direct-examination testimony, the
term “constructive possession” came up again during co-defendant
Whitley’s counsel’s cross-examination. Whitley’s counsel asked
Detective Swan if his opinion would differ had two people been
in the car instead of three. Detective Swan replied, “No, it’s
the same. It’s still constructive possession, yes.” Counsel
for Whitley retorted, “That’s an answer the jury is going to
have to decide, a question the jury is going to have to answer.
You’re being asked to testify whether or not those drugs were
possessed with the intent to distribute period.”
After cross-examination of Detective Swan, the concept of
constructive possession was raised again by the prosecutor on
re-direct examination:
Q And you’ve testified you believe
in the hypothetical the defendants would
have possessed the heroin constructively for
distribution?

[Defense counsel for Whitley]:
Objection. I don’t think that was testimony.
I believe that’s legal conclusion.

The Court: It’s leading. Sustained.

. . .

Q What was your position as to why
approximately eight hundred decks of heroin
in the scenario I gave you would be
possessed for?

A I believe I said they were
constructively possessed with the intent to
distribute.
9
During the charge conference, counsel for all three
defendants asked the court to provide a limiting instruction
informing the jurors to consider Detective Swan’s opinion only
to determine whether the defendants possessed the drugs for
personal use or for distribution; and not to consider his
opinion in determining whether the drugs were constructively
possessed because that was an issue of fact for the jurors to
decide themselves. The trial court responded by issuing the
following limiting instruction:
In examining an expert witness counsel
may propound to her or him a type of
question known in the law has [sic] a
hypothetical question. You heard the
Prosecutor say assuming this and assuming
that. That was the form of the hypothetical
question.

By such question the witness is asked
to assume to be true a hypothetical state of
facts and to give an opinion based on that
assumption.

In permitting such a question the Court
does not rule and does not necessarily find
that all the assumed facts have been proved.
It only determines that those assumed facts
are within the possible range of the
evidence.

It is for you, the jury, to determine
and to find from all the evidence whether or
not the facts assumed in a hypothetical
question have been proved. And if you
should find that any assumption in such a
question has not been proved, you are to
determine the effect of the failure of proof
on the value and weight of the expert
opinion based on that assumption.
10
The testimony of Detective David Swan
was limited to the issue of whether the
drugs possessed were for personal use or for
distribution. The issue of possession
and/or constructive possession is for you to
decide based on the actual facts presented.

The jury convicted defendant of third-degree possession of
heroin and second-degree possession of heroin with the intent to
distribute. Defendant’s motion for a new trial, based on the
State’s purported failure to prove various elements of the
charged offenses, was denied. The court merged counts one and
two and sentenced defendant to fifteen years’ incarceration with
a six-year period of parole ineligibility pursuant to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appealed, raising several issues before the
Appellate Division, but in light of our limited grant of
certification in this matter, we note only one: that Detective
Swan’s testimony exceeded the bounds of acceptable hypothetical
question testimony. In respect of that argument, the Appellate
Division held that the hypothetical line of questioning of
Detective Swan complied with the parameters set forth in Odom,
supra, 116 N.J. 65, and State v. Summers, 176 N.J. 306 (2003).
In reaching its conclusion, the panel applied the plain error
standard of review because it found that defendant’s counsel did
not object to Detective Swan’s use of the phrase “constructive
possession” during his testimony. Further, the Appellate
11
Division determined that the trial court’s limiting instruction
during its charge to the jury quelled any potential prejudice
that may have resulted from Detective Swan’s testimony about
defendant’s constructive possession of the drugs found in the
car.3
We entered a limited grant of defendant’s petition for
certification, State v. Reeds, 195 N.J. 523 (2008), to review
whether the expert testimony about constructive possession of
the drugs found exceeded the parameters of acceptable expert
testimony in a drug prosecution trial.
II.
Our analysis begins with the Rules of Evidence,
specifically Rule 702, which governs the admissibility of expert
testimony and provides that “[i]f scientific, technical, or
other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an
opinion or otherwise.” It is incumbent on the proffering party
to show that (1) the intended testimony concerns a subject
matter beyond the ken of an average juror; (2) the field is at a

3
The Appellate Division dismissed defendant’s other claims of
error on the merits and affirmed defendant’s convictions and
sentence, remanding only for a calculation of defendant’s gap
time credits.

12
state of the art such that an expert’s testimony would be
reliable; and (3) the witness has expertise sufficient to offer
the intended testimony. See State v. Jenewicz, 193 N.J. 440,
454 (2007).
The use of expert testimony about the methods employed by
drug traffickers to package and to distribute illegal drugs for
sale has been long recognized as permissible under Rule 702
standards because such information is a specialized subject
matter that is beyond the ken or normal life experience of the
average juror. See Odom, supra, 116 N.J. at 76 (permitting drug
expert’s testimony, including opinion testimony on possessor’s
likely intent and purpose to distribute based on particular
characteristics of drug possession set forth through assumed
facts). Such testimony, when provided through an expert, aids a
jury’s understanding of the evidence adduced in a drug
prosecution and often may be necessary to “explain the
significance of the properties, packaging and value of illegal
drugs.” Ibid. Without such testimony about drug-trade
practices, lay jurors would not “‘know what a person who
possessed [a certain quantity of drugs in certain circumstances]
was going to do with it.’” Id. at 76 (quoting State v. Perez,
218 N.J. Super. 478, 485 (App. Div. 1987)); see also Summers,
supra, 176 N.J. at 312-17 (recognizing same).
13
Odom, supra, involved a drug possession case in which the
prosecutor asked the State’s expert to assume a number of facts,
and then stated a set of facts consistent with those adduced at
trial. 116 N.J. at 67-69. Based on the facts so presented, the
prosecutor asked the expert to opine whether the defendant would
have possessed the drugs for his own use or with the intent to
distribute them. Id. at 69. In affirming on appeal the
admission of that testimony, this Court explained that it was
satisfied in this case that the detective’s
opinion was based exclusively on the
surrounding facts relating to the quantity
and packaging of the drugs and their
addictive quality, as well as the absence of
drug-use paraphernalia; his explanation of
these facts was clearly founded on his
expertise and specialized knowledge as an
expert. The conclusion he drew – that
possession of these drugs was for the
purpose of distribution – was similarly
derived from his experience. We therefore
conclude that as long as the expert does not
express his opinion of defendant’s guilt but
simply characterizes defendant’s conduct
based on the facts and evidence in light of
his specialized knowledge, the opinion is
not objectionable even though it embraces
ultimate issues that the jury must decide.

[Id. at 78-79.]

We also approved the use of a hypothetical question as an
appropriate vehicle through which an expert could testify in
respect of inferring intent or purpose when drugs are possessed
under certain circumstances. See id. at 76-81. And, we
reaffirmed the use of such hypothetical questions when that
14
practice was called into question in Summers, supra, 176 N.J.
311, 317.
Indeed, in Summers, supra, this Court relied again on
Odom’s guidelines for the appropriate use of a hypothetical
question:
The question must be limited to the facts
adduced at trial. The prosecutor may ask
the expert to express an opinion, based on
those facts, whether the drugs were
possessed for distribution or for personal
consumption. The expert should inform
jurors of the information on which the
opinion is based, and must avoid parroting
statutory terminology whenever possible.
Obviously, the expert must walk a fine line.
His or her opinion can be “expressed in
terms of ultimate issues of fact, namely,
whether drugs were possessed with the intent
to distribute,” but it cannot contain an
explicit statement that “the defendant is
guilty of the crime charged under the
statute.” Finally, trial courts should
instruct the jury in respect of the proper
weight to be given to the expert’s opinion,
reminding jurors that the ultimate decision
concerning a defendant’s guilt or innocence
rests solely with them.

[Id. at 314-15 (quoting Odom, supra, 116
N.J. at 80-82) (internal citations
omitted).]

Thus, we carefully permit an expert to express an opinion in
response to a hypothetical even when such testimony “embraces an
ultimate issue to be decided by the trier of fact,” N.J.R.E.
704, so long as the probative value of the circumscribed
testimony is not substantially outweighed by the risk of causing
15
undue prejudice, N.J.R.E. 403. See State v. Berry, 140 N.J.
280, 298 (1995) (explaining necessity for Rule 403 balancing,
stating that “[i]n drug prosecutions, the risk of prejudice has
prompted courts to exercise caution in determining whether
expert testimony touching on ultimate issues properly was
admitted at trial.”).
Because it is the exclusive responsibility of the jury to
determine guilt, State v. Simon, 79 N.J. 191, 199 (1979), there
is always the concern about the potential for an expert’s
opinion on a hypothetical question to slip dangerously close to
usurpation of the jury’s role by essentially telling the jurors
how to resolve a case. See State v. Nesbitt, 185 N.J. 504, 514
(2006) (discussing court’s duty to perform gatekeeper role in
determining whether testimony is reasonably needed and is not
unduly prejudicial); see also Odom, supra, 116 N.J. at 81-82.
To guard against that concern, Odom emphasized that, when using
a hypothetical question in cases involving possession and
distribution of narcotics, the question must be limited to the
evidence adduced at trial and must focus on
the manner of packaging and processing for
use or distribution, the significance of
various quantities and concentrations of
narcotics, the roles of various drug
paraphernalia, characteristics of the drugs
themselves, the import of circumstances
surrounding possession, the conduct of the
possessor and the manner in which drugs may
16
be secreted or otherwise possessed for
personal use or [distribution].

[Odom, supra, 116 N.J. at 81-82 (quoting
State v. Odom, 225 N.J. Super. 564, 573
(App. Div. 1988)).]

Once that foundation is established, the prosecutor may ask the
expert to express an opinion on whether, based on those facts,
the drugs were possessed for distribution purposes or personal
use. Id. at 82.
Odom continues to govern the use of expert testimony in
narcotics prosecutions, permitting the incorporation of
responses to hypothetical questions to help jurors understand
the likely intent or purpose of a defendant in respect of drugs
possessed. That said, Odom’s continued application is not
without boundaries. In Nesbitt, supra, we cautioned that “Odom
does not license the use of a narcotics expert to tell a jury
that which is obvious.” 185 N.J. at 514. Because Odom should
not result in the automatic use of expert testimony in all drug
cases, we explained in Nesbitt that
[t]rial courts are expected to perform a
gatekeeper role in determining whether there
exists a reasonable need for an expert’s
testimony, and what the parameters of that
testimony may be. . . . The failure of a
defendant to object to expert testimony does
not relieve the trial court of its
gatekeeper responsibilities . . . .

[Id. at 514-15.]
17
The Nesbitt Court instructed trial courts to be sensitive
to whether there is true need for the hypothetical and expert
testimony, id. at 517-19, and underscored the importance of
preventing the expert testimony from tracking too closely the
language of the pertinent criminal statute. Id. at 517.
Further, Nesbitt discouraged the use of legal terminology with
specialized meanings and emphasized Odom’s requirement that the
governing statutory language be paraphrased where possible. Id.
at 518-19. By adhering to such cautionary instructions, trial
courts can ensure that a drug expert’s testimony plays a
legitimate and valuable role in drug possession and distribution
cases by helping the jury in realms unknown and unfamiliar to
them when assessing the likely intent of a putative drug
trafficker.4

4
The criticism that has been leveled at Odom and its progeny
contends that the probative value of expert testimony concerning
a defendant’s intent or purpose in possessing drugs is exceeded
by the resulting prejudice from that testimony. See Nesbitt,
supra, 185 N.J. at 520-22 (Albin & Long, JJ., dissenting);
Summers, supra, 176 N.J. at 318-24 (Albin & Long, JJ.,
dissenting). Our dissenting colleagues have argued that
“[a]fter an expert explains the significance of the methods and
means of drug dealing -- matters outside common knowledge --”
jurors are then capable of drawing an inference as to a
defendant’s state of mind. Nesbitt, supra, 185 N.J. at 521
(Albin & Long, JJ., dissenting); Summers, supra, 176 N.J. at 323
(Albin & Long, JJ., dissenting). Obviously, the Court’s
holdings reflect its recognition that the jury benefits from
hearing the expert’s opinion in respect of the underlying intent
or purpose of a drug possession. By consolidating the set of
facts relied on by the expert, the jury hears the entire basis
for the opinion reached about the likely intent or purpose
18
III.
A.
In the present case, police stopped a car transporting a
large quantity of heroin -- sixteen bricks -- into the state
allegedly for purposes of distribution, not just for personal
possession and use. The trial and appellate courts reasonably
determined that jurors might not be familiar with the common
practices used by those in the drug distribution trade when
acquiring and transporting drugs for distribution, such as the
practice of travelling with multiple persons in a borrowed car
to secure drugs at less expensive rates from a marketplace like
New York City. Just as jurors are unfamiliar with the variety
of methods used in the hand-to-hand sale of drugs on the street,
see Nesbitt, supra, 185 N.J. at 515, a similar lack of knowledge
and unfamiliarity can extend to the many ways in which drugs
make their way to ultimate purchasers for use.
In this matter, the trial court did not err by allowing an
expert to testify that a drug possessor’s likely intent and
purpose in possessing heroin in the amount and circumstances
present here was to engage in distribution. Such testimony
reasonably was determined to be helpful to jurors in
understanding a specialized area that was beyond their ken.

underlying particular possessory circumstances. That said, it
is entirely different for a drug expert to undertake to opine on
whether drugs were possessed by a defendant.
19
That said, our analysis cannot end there. Although the
aforesaid portion of the expert’s testimony was helpful and
probative evidence, there was another portion to the expert’s
testimony that must be separately analyzed because it carries a
substantial potential for prejudice. Specifically, we must
assess the admissibility of the further testimony by the expert
about whether all or any persons travelling in the car in which
these drugs were found constructively possessed the drugs. If
the probative value of that portion is substantially outweighed
by the danger of undue prejudice to defendant, then it should
not have been admitted. See N.J.R.E. 403; Nesbitt, supra, 185
N.J. at 515.
Here, after introducing a hypothetical that tracked Odom’s
foundational requirements for reflecting the facts as presented
by the State, the following exchange occurred between the
prosecutor and the expert:
Q [Prosecutor] Assuming all those
hypothetical facts, do you have an opinion
as to why the drugs, specifically the
heroin, totaling several hundred bags or
folds, would be possessed?

A [Expert] My opinion they would be
possessed with the intent to distribute.

Q And would that opinion be as to
suspects one, two and three?

A All constructive possession with the
intent to distribute.

20
[(Emphasis added).]

Although the prosecutor appeared to ask for an opinion about the
intent of the participants, the last response by the expert
inappropriately addressed the point of constructive possession.
Thus, the expert reached to address the factual issue about who
in the car could be found to be in possession of the drugs.
That should not have been permitted.
Repeatedly, this Court has cautioned against the admission
of expert testimony that tracks the “precise terminology,” and
particularly the legalese, of an applicable criminal statute.
Odom, supra, 116 N.J. at 82. “Constructive possession,” the
phrase used by Detective Swan, is a legal term referenced in the
statutes under which defendant was charged. See N.J.S.A. 2C:35-
10(a)(1) (“It is unlawful for any person, knowingly or
purposely, to obtain, or to possess, actually or constructively,
a controlled dangerous substance . . . .”). Possession also is
an element of both crimes for which defendant was charged,
third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), and
second-degree possession of heroin with the intent to
distribute, N.J.S.A. 2C:35-5(a)(1). Plainly, such possession
can be constructive, meaning that “‘although [a defendant] lacks
physical or manual control, the circumstances permit a
reasonable inference that [the defendant] has knowledge of its
presence, and intends and has the capacity to exercise physical
21
control or dominion over it during a span of time.’” State v.
Lewis, 185 N.J. 363, 371 (2005) (quoting State v. Spivey, 179
N.J. 229, 236-37 (2004) (internal citation and quotation marks
omitted)). However, we rely on juries to determine whether a
defendant constructively possessed an object, which is why the
expert’s testimony opining on who constructively possessed the
drugs was not probative evidence.
Although expert testimony may be employed when a
defendant’s drug charge involves possession that may be
constructive, courts have used care in defining the parameters
of permissible expert testimony to ensure that the expert does
not answer for the jury the actual question of whether the drugs
or other items in issue were constructively possessed. For
example, in Spivey, supra, the determination about constructive
possession of a firearm was left to the jury, although the
State’s drug expert was allowed to give limited testimony that
informed the jurors about the practice by drug dealers of arming
themselves with guns for protection. 179 N.J. at 240; see also
State v. Hurdle, 311 N.J. Super. 89, 94-98 (App. Div. 1998)
(affirming jury determination of constructive possession of
drugs where form of expert testimony in response to hypothetical
question complied with Odom and expert’s testimony focused on
his opinion that drugs were possessed with intent or purpose to
resell or distribute).
22
Here, by mimicking the language of the statute, and
positing on the pivotal legal element, the expert’s testimony on
constructive possession of drugs found in the vehicle did not
constitute probative, helpful testimony for the jury. See
Nesbitt, supra, 185 N.J. at 517 (“Expert testimony that recites
the legal conclusion sought in a verdict is not helpful to the
jury.”). Rather, the expert’s constructive possession opinion
was tantamount to a legal conclusion, resulting in a veritable
pronouncement of guilt on the two possession crimes for which
defendant was charged, which clearly was unduly prejudicial.
Although Detective Swan’s testimony, otherwise, offered
legitimate assistance to the jury by providing insight into
technical areas involving the distribution and transport of bulk
narcotics, the constructive-possession portions of his trial
testimony exceeded Odom’s parameters, and presented undue
prejudice that substantially outweighed any probative value from
that evidence.
Moreover, the resulting jury instruction did not cure the
prejudice. See Odom, supra, 116 N.J. at 82. When explaining to
the jury the proper weight to be accorded to the expert
testimony presented, the trial court added that
[t]he testimony of Detective David Swan was
limited to the issue of whether the drugs
possessed were for personal use or for
distribution. The issue of possession
23
and/or constructive possession is for you to
decide based on the actual facts presented.

That confounding instruction only exacerbated the original
error. Rather than striking the offensive portion of the
expert’s testimony, the court essentially instructed the jury
that, in deciding the issue of constructive possession,
Detective Swan’s opinion remained viable -- an opinion that
answered the very question with which the jury was charged.
B.
Defendant asserts that this case should be decided based on
the harmless-error standard of review. Defendant claims
entitlement to that standard because co-defendant Whitley’s
attorney objected to the constructive-possession question and
answer that occurred during the direct examination of Detective
Swan and because defendant’s counsel requested that the trial
court instruct the jury to disregard the constructive-possession
testimony. While that objection by co-counsel did have the
effect of placing the court on notice of the problem caused by
Swan’s testimony, defendant’s own counsel never objected to
Detective Swan’s constructive-possession testimony. Further,
defendant’s counsel acceded to the jury instruction issued by
the court.
Ordinarily, when counsel fails to object to offensive
testimony, we would apply the plain error standard of review,
24
meaning that the error must “have been clearly capable of
producing an unjust result.” R. 2:10-2. We need not
perseverate over which standard of review ought to control in
this setting, however, because under either standard we would
reverse this conviction. Allowance of the constructive
possession testimony was plainly erroneous and the resulting
prejudice was not harmless. The court did not strike the
constructive-possession testimony or otherwise act immediately
to curtail its impact on the jury. In this case involving
expert testimony that reached and addressed the ultimate issue
of defendant’s possession of the drugs found in the car, we
conclude that any “failure of . . . defendant to object to [the]
expert testimony d[id] not relieve the trial court of its
gatekeeper responsibilities” in relation to Odom’s requirements.
Nesbitt, supra, 185 N.J. at 515. Further, as noted, we perceive
the court’s limiting instruction during the jury charge to be
not only ineffective in curing the problem, but also confounding
for the jury because it allowed the testimony to be considered
when the jury assessed defendant’s guilt.
Many cases have found plain error when a trial court
erroneously admitted expert testimony in a drug distribution
trial that involved a straightforward drug transaction, in which
police officers observed the defendant hand an object to an
alleged purchaser in exchange for money. See, e.g., State v.
25
Boston, 380 N.J. Super. 487, 489 (App. Div. 2005), certif.
denied, 186 N.J. 243 (2006); State v. Singleton, 326 N.J. Super.
351 (App. Div. 1999); State v. Baskerville, 324 N.J. Super. 245,
247-54 (App. Div. 1999). In those instances, reviewing courts
held that the introduction of ultimate-issue testimony in areas
well within a juror’s knowledge amounted to plain error because
“an essential aspect of the proofs became irredeemably tainted
by a risk of prejudice far outweighing its probative value.”
Baskerville, supra, 324 N.J. Super. at 263-64 (holding that
factual evidence, including undercover detective’s observation
of defendant engaging in hand-to-hand currency exchanges and
finding $897 in currency on defendant’s person, irredeemably
tainted by expert opinion that defendant in hypothetical was
“selling drugs”); see also Singleton, supra, 326 N.J. Super. at
353-54 (explaining that evidence, indicating defendant exchanged
currency and possessed heroin and $200, became contaminated
“with prejudicial qualities not easily cured” by introduction of
expert opinion that hypothetical defendant “was engaging in a
street level distribution scheme . . . selling drugs to
different individuals”).
Similarly, the present case involved a straightforward
vehicle stop and search, during which police recovered sixteen
bricks of heroin and six bags of marijuana in defendant’s
vehicle. The evidence at trial included the testimony of the
26
arresting officer who observed the drugs in the vehicle that
defendant drove, and a forensics expert who verified that the
recovered materials contained illegal narcotics. Although we
had no difficulty agreeing with the courts below that Detective
Swan’s testimony regarding general practices and customs of drug
procurement for distribution purposes was admissible, the
further testimony in respect of constructive possession usurped
the jury’s role as the ultimate fact-finder and irredeemably
tainted all of the evidence presented. Therefore, by admitting
Detective Swan’s testimony opining on defendant’s constructive
possession of the drugs found in the car, and by failing to cure
that prejudicial portion of Swan’s testimony when instructing
the jury, plain error was allowed to occur.
Contrary to the State’s argument, we find this matter to be
distinguishable from Nesbitt, supra, where we did not find plain
error. 185 N.J. at 518-19. Nesbitt, supra, involved an
atypical drug transaction during which defendant held neither
the drugs nor the money involved in the transaction. Id. at
508. The prosecutor, after using a hypothetical that mirrored
the facts adduced, asked the expert “[w]ould you be able to form
an opinion about whether or not person B was complicit (sic) in
the distribution of those drugs to the person in the vehicle?”
Id. at 509 (emphasis added). The expert replied that the
individual who corresponded to defendant in the hypothetical was
27
“complicit in distributing drugs.” Id. at 509. Although the
language of the hypothetical did include some terminology of the
applicable criminal statutes, because of the atypical nature of
the drug transaction involved and because Odom’s requirements
otherwise were followed, this Court did not find plain error
from that confluence of events. Id. at 519. On balance, the
jury was found to have benefitted from the expert’s testimony.
Ibid.
In the present case, the expert testimony simply went too
far. Unlike Nesbitt, there was nothing unusual about the
vehicle stop that the police conducted. Detective Swan’s
testimony simply and impermissibly reached an ultimate issue
that the jury was well-equipped to decide and, thus, encroached
on the jury’s role as the ultimate fact-finder. That, coupled
with the fact that the testimony closely tracked the legalistic
construct of “constructive possession” by incorporating the
pertinent statutory language, leads to the conclusion that this
case presents precisely the type of situation that cannot be
countenanced.
In sum, defendant suffered undue prejudice from the
evidence in the form of expert testimony opining, in effect,
that he constructively possessed the drugs found in the vehicle
he was driving. This ultimate-issue testimony usurped the
jury’s singular role in the determination of defendant’s guilt
28
and irredeemably tainted the remaining trial proofs. We
therefore conclude that the admission of the constructive-
possession testimony, and the confounding effect from the
instruction provided to the jury, caused trial error that was
clearly capable of producing an unjust result in defendant’s
trial.
IV.
The judgment of the Appellate Division, which affirmed
defendant’s convictions, is reversed and the matter is remanded
for a new trial.
CHIEF JUSTICE RABNER and JUSTICES WALLACE and HOENS join in
JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate
concurring opinion in which JUSTICE LONG joins. JUSTICE RIVERA-
SOTO filed a separate dissenting opinion.
1

SUPREME COURT OF NEW JERSEY
A-103 September Term 2007


STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHMANN REEDS, a/k/a DENNIS
COAST, RAHMANN ABDUL REEDS,

Defendant-Appellant.


JUSTICE ALBIN, concurring.
I concur with the majority that Detective Swan gave
impermissible expert testimony when he opined that defendant and
his two passengers were in “constructive possession with intent
to distribute” the cache of drugs found in the car. I agree
with the majority that a drug expert should not “undertake to
opine on whether drugs were possessed by a defendant,” that
Detective Swan’s testimony “closely tracked the legalistic
construct of ‘constructive possession,’” and that Detective Swan
“reached an ultimate issue that the jury was well-equipped to
decide, and, thus, encroached on the jury’s role as the ultimate
fact-finder.” See ante at ___ (slip op. at 17-18 n.4, 27).
Those well-articulated reasons for rejecting Detective
Swan’s expert testimony, however, cannot be squared with this
Court’s holdings in State v. Odom, 116 N.J. 65 (1989), State v.
2
Summers, 176 N.J. 306 (2003), and State v. Nesbitt, 185 N.J. 504
(2006). In each of those cases, this Court upheld convictions
even though police experts testified in response to hypothetical
questions that the defendants possessed with intent to
distribute the drugs in question. I cannot find any sound
jurisprudential distinction between a police expert’s opinion --
whether given hypothetically or directly -- that a defendant
constructively possessed with intent to distribute drugs or that
a defendant simply possessed with intent to distribute those
drugs.
However much experience police officers may have or well-
trained they may be in the ways of drug possession and
distribution, police officers are not mind readers and should
never be allowed, under the guise of opinion testimony, to tell
a jury that a defendant possessed the state of mind necessary
for a conviction. Detective Swan, as the majority states, “went
too far” because, by opining that defendant constructively
possessed the drugs, he in effect was telling the jury that
defendant knowingly possessed with intent to distribute the
drugs found in the car. See ante at ___ (slip op. at 2). The
same overstepping of bounds occurs when the expert, tracking the
statutory language, tells the jury that the defendant -- absent
the word “constructively” -- possessed with intent to distribute
drugs. In that example, too, the police expert conveys to the
3
jury his opinion that the defendant knowingly possessed the
drugs, and therefore intrudes on the jury’s exclusive role as
finder of fact. I therefore stand by my dissents in Summers and
Nesbitt in which the majority permitted virtually the same type
of expert testimony that it condemns today. See Nesbitt, supra,
185 N.J. at 519 (finding that court did not commit plain error
by allowing police detective to opine that defendant was
accomplice to crime of possession with intent to distribute
controlled dangerous substance); Summers, supra, 176 N.J. at 316
(finding that court did not commit plain error by allowing
police detective to opine that defendant possessed drugs with
intent to distribute).
I am sensitive to the needs of law enforcement to explain,
through expert testimony, the arcane language, culture, and
methods surrounding the crimes of drug possession and
distribution for the purpose of enlightening the jury on a
subject on which it will have little or no knowledge. As I
stated in my dissent in Nesbitt,
[a]n average juror will not know the meaning
of code language used by drug distributors
or the importance to be attached to the
packaging, quantity, and quality of drugs.
An expert could edify jurors concerning the
customary use of scales and other drug
paraphernalia by drug traffickers, as well
as the methods used by drug dealers to ply
their trade. In those instances, the
specialized knowledge and training of the
4
expert is of assistance to the jury in
understanding the evidence before it.

[Nesbitt, supra, 185 N.J. at 521 (Albin, J.,
dissenting) (citing Summers, supra, 176 N.J.
at 322-23 (Albin, J., dissenting)).]

When there is expert testimony “explain[ing] the
significance of the methods and means of drug dealing -- matters
outside common knowledge -- jurors are well equipped to answer
questions such as whether the defendant possessed drugs with
intent to distribute, or whether the defendant was an accomplice
in a drug transaction, without further expert guidance.” Ibid.
As the majority has observed, a jury does not need expert
testimony to explain the obvious.
There is little difference if police officers, tracking the
statutory language, give an opinion that a defendant possessed
with intent to distribute drugs or if they give an opinion that
defendant is guilty of the offense. In both cases, police
officers invade the jury’s exclusive domain by presuming to know
the defendant’s state of mind -- answering the ultimate factual
issue in dispute. Constructive possession is just one manner of
possessing an object. The distinction the majority creates
between constructive and simple possession with intent to
distribute may be sufficient to decide this case -- but provides
no satisfying or coherent approach to the proper bounds of
expert testimony.
5
Although I am heartened by the majority’s opinion today,
because I believe it is a step in the right direction, the
majority’s dutiful but mistaken adherence to the decisions in
Odom, Summers, and Nesbitt, denies the present case a solid
jurisprudential foundation or a consistent rationale that can be
applied to future cases.
JUSTICE LONG joins in this opinion.

- 1 -


SUPREME COURT OF NEW JERSEY
A-103 September Term 2007


STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHMANN REEDS, a/k/a DENNIS
COAST, RAHMANN ABDUL REEDS,

Defendant-Appellant.


JUSTICE RIVERA-SOTO, dissenting.
In this case, the prosecution properly elicited the opinion
of a police detective qualified as an expert concerning a matter
outside the ken of an ordinary person: the idiosyncrasies of a
clandestine drug transaction. See ante at ____ (slip op. at 12-
17). As the Appellate Division succinctly observed, that
opinion was elicited based on the following hypothetical facts:
three persons in a borrowed car, traveling
from New York on Route 95 at night are
stopped for a motor vehicle infraction and
give false names; the smell of burnt
marijuana emanates from the car, on the
front passenger floor there are loose folds
of heroin, six bags of marijuana and fifteen
bricks of heroin found under the front seat;
and over $900 in cash is found on the three
individuals.

The panel noted that, based on those facts,
[t]he detective opined that all three
individuals would be in constructive
- 2 -
possession of the drugs with the intent to
distribute them because there was a large
amount of drugs even for three persons, that
all three were likely involved in the
distribution enterprise, with one possibly
acting as the “lookout," the other as the
“money man" and the third as “security;"
that the use of false names showed an intent
to avoid apprehension and the use of a
borrowed car was typical for drug dealers to
avoid seizure of their own vehicle; and the
fact that at least one person was smoking
marijuana and that the bags of marijuana
were found near the heroin showed that those
in the car knew the heroin was there.

Tellingly, defendant did not interpose a contemporaneous
objection to that expert testimony, thereby denying the trial
court the opportunity to correct that to which defendant now
tardily objects.1 See, e.g., State v. Ingram, 196 N.J. 23, 42
(2008) (defendant’s failure to contemporaneously object to
summation “render[s] it fair to infer from the failure to object
below that in the context of the trial the error was actually of
no moment” (quoting State v. Nelson, 173 N.J. 417, 471 (2002)
(internal quotation marks omitted))); State v. Nero, 195 N.J.
397, 407 (2008) (defendant’s failure to object contemporaneously

1
Significantly, a co-defendant, Mark Whitley, did object to
the scope of the expert’s testimony, both during direct
examination and during re-direct examination; in addition, co-
defendant Whitley addressed the scope of the expert’s opinion
during the cross-examination of the expert. In contrast,
defendant did not interpose his own objection, did not join in
his co-defendant’s objections, and did not address the question
in his cross-examination of the expert witness.
- 3 -
to jury charge requires application of plain error standard
(citing R. 2:10-2; State v. Bunch, 180 N.J. 534, 541 (2004))).
In fact, defendant did not raise the issue of the scope of
the expert’s testimony until the charge conference when, as the
Appellate Division noted, he “requested a jury instruction that
the expert's opinion on constructive possession should be
disregarded and that such issue is a jury determination.” The
panel’s summary of the resolution of defendant’s request,
standing alone, disposes of the question on appeal in its
entirety:
With the approval of all counsel, the judge
instructed that it was for the jury to
decide first, whether all the facts assumed
in the hypothetical question had been
proven, and if the jury found that some
facts were not proven, then that could
impact on the value and weight of the
expert’s testimony and opinion; next, that
the testimony of Detective Swan was admitted
solely on the issue of whether the drugs
were possessed for personal use or for
distribution; and also, that the issue of
possession and constructive possession was
for the jury to decide based upon the
evidence adduced at trial.

[(Emphasis supplied).]2

2
To the extent the majority describes that jury charge as a
“confounding instruction [that] only exacerbated the original
error[,]” ante at ___ (slip op. at 23), any such error would
have been invited and, hence, not a ground for reversal. See
State v. Lykes, 192 N.J. 519, 539 n.7 (2007) (“‘a defendant
cannot beseech and request the trial court to take a certain
course of action, and upon adoption by the court, take his
chance on the outcome of the trial, and if unfavorable, then
condemn the very procedure he sought and urged, claiming it to
- 4 -

Moreover, defendant never raised the question of the scope of
the expert’s testimony in either his motion for judgment of
acquittal, pursuant to R. 3:18-2, or his motion for a new trial,
pursuant to R. 3:20-1.
Although defendant never objected to the expert testimony
as given; although defendant consented to the jury instruction
provided by the court on the issue; and although defendant never
questioned the propriety of either of those two events in his
post-trial motions, the majority nevertheless concludes that,
“[b]ecause the expert should not have been permitted to opine on
the ultimate issue of whether defendant possessed the drugs
found, plain error occurred[,]” ante at ___ (slip op. at 3), and
thus reverses defendant’s convictions and remands the cause for
a new trial. I cannot join in that logic or conclusion.
Because defendant did not contemporaneously object to the
now-challenged expert testimony, because defendant consented to
the jury instruction given on the subject -- which evidenced
defendant’s consent that whatever ill that testimony suffered
from, it had been cured by the court’s instruction to the jury -
- and because defendant failed to raise the question in his

be error and prejudicial. Thus, when a defendant asks the court
to take his proffered approach and the court does so, we have
held that relief will not be forthcoming on a claim of error by
that defendant.’” (quoting State v. Jenkins, 178 N.J. 347, 358
(2004))).
- 5 -
post-trial motions, the better reasoning was expressed by the
Appellate Division, and I adopt it here in full:
The hypothetical question posed to
Detective Swan was framed and responded to
in accordance with the State v. Summers, 176
N.J. 306 (2003), and State v. Odom, 116 N.J.
65 (1989), guidelines. The judge gave the
appropriate standard jury instruction about
independently assessing both the facts
contained in the hypothetical and the
expert's opinion. Moreover, any potential
prejudice caused by the detective’s use of
the term “constructive possession,” which
was not objected to by any counsel during
his testimony, was dispelled by [the trial
court]’s instruction, which was consented to
by all counsel, that the jury itself must
resolve the question of whether the drugs
were constructively possessed. We must
presume the jurors followed this specific
admonition and convicted defendant based
solely upon the evidence presented in this
case. State v. Feaster, 156 N.J. 1, 65
(1998), cert. denied sub nom. Kenney v. New
Jersey, 532 U.S. 932 (2001); State v.
Manley, 54 N.J. 259, 270 (1969).

When viewed in its totality, I cannot conclude, as the
majority does, that “defendant suffered undue prejudice from the
evidence in the form of expert testimony opining, in effect,
that he constructively possessed the drugs found in the vehicle
he was driving” and that “[t]his ultimate-issue testimony
usurped the jury’s singular role in the determination of
defendant’s guilt and irredeemably tainted the remaining trial
proofs.” Ante at ___ (slip op. at 27-28). Therefore, because I
- 6 -
would affirm the judgment of the Appellate Division that, in
turn, affirmed defendant’s convictions, I respectfully dissent.

- 1 -
SUPREME COURT OF NEW JERSEY

NO. A-103 SEPTEMBER TERM 2007

ON CERTIFICATION TO Appellate Division, Superior Court




STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHMANN REEDS, a/k/a DENNIS
COAST, RAHMANN ABDUL REEDS,

Defendant-Appellant.






DECIDED January 22, 2009
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING OPINION BY Justice Albin
DISSENTING OPINION BY Justice Rivera-Soto

CHECKLIST REVERSE AND
REMAND CONCUR AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LONG (X) X
JUSTICE LaVECCHIA X
JUSTICE ALBIN (X) X
JUSTICE WALLACE X
JUSTICE RIVERA-SOTO X
JUSTICE HOENS X
TOTALS 6 1