Later, in State v. Berry, 140 N.J. 280 (1995), the
Court held that the State may introduce expert testimony
in drug distribution prosecutions to explain methods
commonly used by drug dealers in their operations
provided the trial court is satisfied that the testimony will
assist the jury in resolving material factual issues. To
avoid excessive prejudice to the defendant, however, the
trial court should carefully instruct the jury in the context
of the evidence about its duty to decide whether to accept
or reject the expert opinion. See also State v. Jackson, 278
N.J. Super. 69 (App. Div. 1994).
Relying on State v. Berry, supra, the court in State v.
Baskerville, 324 N.J. 245 (App. Div. 1999), certif. denied,
163 N.J. 10 (2000), concluded that the opinion evidence
rendered in this case went “too far” on the issue of
possession. Here, the expert gave particular details in the
form of opinion testimony of drug transactions that had
occurred between defendant and others, when the only
issue before the jury was whether defendant had
distributed drugs. The court found that the jury did not
need expert testimony on this issue. It did note, however,
that had the issue in the case been whether the
surveillance officers had a valid articulable suspicion,
based on what they had observed, to make a stop or full
search of defendant, the expert’s opinion would have
been appropriately received to establish the indicia of
drug trafficking and the reasonableness of the officers’
impressions. It thus concluded that while an expert’s
testimony describing typical methods used by drug
distributors was proper, opinion characterizing the
interaction between defendant and others that drug
transactions had in fact occurred went beyond the scope
of expert testimony and usurped the fact-finder’s
function. It further stated that the State may not use
expert opinion testimony on the ultimate issue to
enhance its proofs on a case where insufficient proofs
exist. See also State v. Singleton, 326 N.J. 351 (App. Div.
1999), where, although reversing the intent to distribute
charges based on Baskerville, the court found the expert
testimony harmless with respect to the simple possession
charges based on independent testimony that supported
these convictions.
However, in State v. Sharpless, 314 N.J. Super. 440
(App. Div. 1998), the Appellate Division found that the
trial court had correctly permitted the State to introduce
expert testimony, in response to a hypothetical question,
that defendant possessed the heroin with intent to
distribute. It found that defendant waived the issue on
appeal because of his failure to have objected to the
hypothetical posed. It further found that even if the
expert’s testimony exceeded the proper scope of such
evidence under State v. Berry, 140 N.J. 280 (1995),
defendant was not denied a fair trial. Defendant’s failure
to request a special instruction on how to consider the
expert’s testimony indicated that the trial court’s general
credibility instruction was sufficient.C. Jury Instructions
In State v. Pleasant, 158 N.J. 149 (1999), the
Supreme Court affirmed the Appellate Division ruling
which found the model jury charge adequate to explain
the elements of N.J.S.A. 2C:35-6, the statute proscribing
employing a juvenile in a drug distribution scheme, and
thereby affirmed defendant’s conviction for this offense.
The trial court had refused defendant’s requested charge
that would have told the jurors that defendant was not
guilty of violating N.J.S.A. 2C:35-6 if he had no intent
to manufacture, distribute, or dispense the drugs. While
the Court noted that the statute was potentially
ambiguous, and that therefore the trial court should have
granted the defense-requested charge, it nonetheless
concluded that the charge as a whole accurately informed
the jury of the relevant law.State v. Florez, 134 N.J. 570 (1994); State v. Roberson,
246 N.J. Super. 597 (App. Div.), appeal dismissed, 126
N.J. 330 (1991), both held that because the weight of the
CDS is a material element of the offense of possession
with intent to distribute, failure to charge the jury on the
weight as an element constitutes reversible error.
However, the State need not prove that defendant had to
know the quantity he possessed. See State v. Moore, supra,
304 N.J. Super. at 145-46; State v. Torres, 236 N.J. Super.
at 13; State v. Edwards, 257 N.J. Super. at 5.In State v. Montesano, 298 N.J. Super. 597 (App.
Div.), certif. denied, 150 N.J. 27 (1997), defendant was
stopped by police after the officers corroborated a call
from a confidential informant that defendant and others
were involved in drug trafficking. After conviction for
possession and possession with intent to distribute
marijuana, defendant claimed error in the trial court’s
refusal to charge on “mere presence.” The court’s charge
explained possession and constructive possession only.
Relying on State v. Palacio, 111 N.J. 543 (1988), the
Appellate Division ruled that the charge as a whole,
combined with the evidence in the case, was sufficient to
permit the jury to find that “mere presence” was
insufficient to find defendant guilty of possession. The
evidence showed that defendant had rented the car and
was driving it, had made an inculpatory statement after
the marijuana was discovered evidencing knowledge that