State v. Sowell

61 A.3d 882, 213 N.J. 89, 2013 WL 141620, 2013 N.J. LEXIS 9
CourtSupreme Court of New Jersey
DecidedJanuary 14, 2013
StatusPublished
Cited by49 cases

This text of 61 A.3d 882 (State v. Sowell) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sowell, 61 A.3d 882, 213 N.J. 89, 2013 WL 141620, 2013 N.J. LEXIS 9 (N.J. 2013).

Opinion

Chief Justice RABNER

delivered the opinion of the Court.

This criminal appeal addresses the limits of the use of expert testimony at drug trials. The case involves a simple factual allegation about a visit to an inmate at a state prison. At trial, the State presented proof that the visitor handed an object to the inmate, who placed it in a bag of potato chips. To divert attention, the inmate appeared to kiss the visitor during the transfer. Minutes later, officers searched the bag of chips and found heroin in it.

Both the inmate and the visitor were later charged with narcotics offenses. In his defense at trial, the inmate disputed the facts and claimed that no drug transfer took place. In addition to other strong proofs offered at trial — eyewitness testimony by an officer who observed the transfer, a video of the meeting, and defendant’s post-arrest admission that he received drugs during the visit — the State presented expert testimony that lies at the heart of this appeal. Specifically, in response to a hypothetical question that tracked some of the above facts, an expert told the jury that “an exchange of narcotics took place.”

Expert testimony plays an important role in many criminal trials. It helps jurors understand complicated concepts and subjects with which they are not familiar. But the straightforward factual allegation in this case was not beyond the understanding of the average juror. It was therefore improper for the State to introduce expert testimony on the point. The testimony invaded the jury’s role as the ultimate fact finder. It was also error for the expert to volunteer additional facts in response to a specific hypothetical.

Because we rely on jurors, not experts, to decide straightforward but disputed facts, we caution prosecutors not to attempt to introduce the type of problematic expert testimony offered in this [94]*94case. We also urge trial judges, in their role as gatekeepers, to prevent juries from hearing such evidence.

It is only because of the overwhelming evidence of defendant’s guilt that we do not reverse his conviction.

I.

On January 10, 2004, Bonita Pitt visited defendant Ralph So-well, an inmate at Northern State Prison. The visit took place in the prison gymnasium in an area monitored by security cameras. At the time, Sergeant Salvatore D’Amico of the Department of Corrections (DOC) was at work watching the cameras from a remote location known as central control.

We rely on the evidence at trial for the following summary. D’Amico testified that he observed what he believed was a drug transaction between Pitt and defendant. D’Amico saw Pitt and defendant, who were seated in chairs, lean forward toward one another. At the same time that defendant appeared to kiss Pitt on the cheek, she lifted her shirt slightly, reached into her left front pocket, took out an item, and placed it in defendant’s hand. D’Amico then saw defendant' lean back and place the item into a bag of potato chips.

D’Amico immediately radioed DOC Lieutenant Blevins and asked him to seize defendant and the bag of chips. When Blevins approached defendant, D’Amico, still monitoring the live feed on the security cameras, saw defendant place the bag of potato chips under the seat next to him.

D’Amico watched Blevins take defendant into custody. D’Amico also saw another officer search the area and recover the bag of chips. D’Amico then went to the gymnasium area and, in the presence of the other officers and defendant, emptied the contents of the bag of chips. A balloon and some potato chips fell out. Inside the balloon was a second balloon containing thirty “decks” of heroin. According to expert testimony that is not in dispute, packages like the thirty glassine envelopes seized have a value of [95]*95$30 to $40 each in prison. One glassine is usually broken down into three separate packets, commonly known as “hits,” and then distributed.

Leonard Randolph, an investigator with the DOC, then got involved in the investigation. He interviewed both Pitt and defendant separately. After Pitt waived her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), she admitted that the balloons contained heroin and that a man named Kevin agreed to pay her $100 to bring the balloons into the jail.

Defendant also made admissions to Randolph. After waiving his Miranda rights, defendant said that he received drugs during the prison visit.

On July 26, 2004, an Essex County Grand Jury charged defendant and Pitt in a three-count indictment with third-degree conspiracy to possess and to possess with intent to distribute heroin, N.J.S.A. 2C:5-2, third-degree possession of heroin, N.J.S.A. 2C:35-10a(l), and third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(l) and b(3).1

At trial, during D’Amico’s testimony, the State played the videotape recording of the entire interaction between Pitt and defendant, up to and including defendant’s seizure and the recovery of the bag of potato chips. D’Amico testified that he watched the visit as it took place through television monitors, and that the quality of the video feed in real-time was “crystal clear.” He explained that the live image was clearer than the video recording shown to the jury.

The State also presented testimony by Manuel Alfonso, a DOC investigator. Based on his training and experience, the trial court accepted Alfonso as a qualified expert in the area of “narcotics investigation ... as well as packaging, street and prison value, and distribution.”

[96]*96Alfonso testified about the value of heroin inside the Northern State Prison, how heroin is packaged, how drugs might be smuggled into prison, and how uncommon it would be for a user — and not a seller — to have thirty envelopes of heroin in prison. He also explained the concept of a “stash” — a place people hide drugs to avoid detection.

On direct examination, the State posed a specific hypothetical and asked Alfonso to offer an expert opinion. Because that testimony is at the heart of defendant’s appeal, we quote it at length:

Q [by the Prosecutor]: Okay. Officer, I’m going to provide you with a hypothetical and I would ask that you assume that the facts are true for purposes of this hypothetical. Okay.
An officer observes subject A sitting across from subject B. Subject B reaches into a pocket. Subject A has a bag of potato chips in their hand. Both subject A and subject B lean forward. Subject A has the bag of chips wide open. Subject B leans forward and drops the item that’s in the hand into the bag of chips. Both subjects then lean back into their original positions. Subject A looks inside the bag and continues — and continues in — in his or her original position. Can you render an opinion?
A [by Alfonso]: Yes, I can.
Q: Okay. And what is that opinion?
A: That an exchange of narcotics took place.
Q: And what is the basis of that opinion?
A: Well, I base that on the facts that you’ve given. Mostly the covert act of kissing, and then moving the hand at the same time in order to draw attention away from the hand.

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Cite This Page — Counsel Stack

Bluebook (online)
61 A.3d 882, 213 N.J. 89, 2013 WL 141620, 2013 N.J. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sowell-nj-2013.