STATE OF NEW JERSEY v. YASIN SIMMS

In State v. Cain, __ N.J. __ (2016), we determined that in

drug-distribution cases, an expert’s opinion on the defendant’s

state of mind -- whether the defendant possessed drugs with the

intent to distribute -- encroaches on the exclusive domain of

the jury as trier of fact. After the jury is informed of “the

significance of drug packaging and weight, scales and cutting

agents, stash sites, the role of confederates, and other

activities consistent with drug trafficking,” “the average juror

is well-equipped to make the final determination whether a

defendant possessed the requisite mental state to commit a drug

offense.” Cain, supra, __ N.J. at __ (slip op. at 2).

Expert testimony that a defendant possessed a controlled

dangerous substance with the intent to distribute is nothing

less than a pronouncement of guilt by mimicking the statutory

elements of the offense. Id. at __ (slip op. at 22). Such

testimony is not necessary to assist the jury. Nor are unduly

long and complex hypothetical questions that serve as mid-trial

summations and unfairly bolster the State’s case.

The case before us involves a joint trial of defendant and

a co-defendant, both charged with and convicted of a number of

drug offenses. The lengthy hypothetical question posed to the

drug expert included the assumed fact that the detective

actually observed defendant hand a buyer drugs for cash. That

assumed fact, however, was not based on an actual fact because

the detective observed only an unidentified object in

defendant’s hands. The expert, moreover, expressed the opinion

that the co-defendant conspired with defendant to distribute

drugs, which was another way of saying that defendant conspired



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with the co-defendant. The Appellate Division affirmed

defendant’s various drug convictions.

We conclude that the admission of the expert testimony

constituted plain error because it violated principles set forth

in this Court’s recent jurisprudence, including principles on

which we further elaborated in Cain. The erroneously assumed

fact in the hypothetical question -- that the object in

defendant’s hand was a bundle of heroin packets -- unfairly

buttressed the State’s case. It was for the jury to decide the

identity of the object based on an examination of the totality

of the evidence. The ultimate-issue testimony on conspiracy,

moreover, impermissibly intruded into the jury’s singular role

as trier of fact. We are therefore compelled to reverse the

judgment of the Appellate Division, vacate defendant’s

convictions, and remand for a new trial.

I.

A.

Defendant Yasin Simms and co-defendant Monae Butcher were

tried jointly on various drug charges enumerated in an Atlantic

County indictment. At trial, the State elicited the following

testimony relevant to this appeal.

On September 15, 2009, while conducting a drug surveillance

of a public housing project in Atlantic City, Detective Michael

Ruzzo of the Atlantic City Police Department observed a four



4

door silver car park alongside a curb near the project. The

driver of the car, later identified as Sean Atkinson, reclined

in his seat so that his head was no longer visible, although he

occasionally popped his head up to look around. Detective Ruzzo

then radioed Atlantic City Police Detectives William Warner and

James Barrett, who were nearby, stating that he had in his sight

a male “waiting in the area to possibly buy C.D.S.”

Shortly afterwards, a red car pulled directly in front of

the silver car, so that the two vehicles faced each other nose

to-nose. Defendant, the driver of the red car, exited and

approached the silver vehicle. Detective Ruzzo observed

defendant lean into the open passenger’s window of the silver

car and hand “an object” to Atkinson in exchange for what the

detective believed was “one bill of currency.” Just as

Detective Ruzzo radioed for Detectives Warner and Barrett “to

move in,” the two detectives arrived on the scene.1

Detective Warner saw defendant lean into the silver car and

then walk away. He did not see an exchange between Atkinson and

defendant. As defendant walked in the direction of Detectives

Warner and Barrett, who had exited their vehicle, he placed

1 Detective Warner testified that Detective Ruzzo radioed that he “was possibly observing a C.D.S. transaction” and that, after the red car pulled up, “there was a C.D.S. transaction taking place.” No objection was raised to this testimony.



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“something” in his back pocket. The detectives then took

defendant into custody.

Detective Warner next approached the driver’s side window

of the silver car and observed “a bundle of heroin on the

passenger-side seat.” Atkinson was arrested, and ten packets of

heroin stamped with the logo “Sweet Dreams” were seized from the

car.

In the meantime, Detective Ruzzo walked toward the red car

and observed Monae Butcher in the front passenger seat “stuffing

something down the rear of her pants.” He also took notice of

an infant in the back seat. Detective Ruzzo ordered Butcher out

of the car and called a female officer to assist after Butcher

denied having any contraband on her. Before the female officer

undertook a search, Butcher pulled from the back of her pants

thirteen bags of heroin, also stamped with the logo “Sweet

Dreams.”

The police later recovered a $100 bill from defendant’s

rear pocket and an additional $56 from his person.

B.

At trial, the prosecutor presented Detective Kevin Lockett

of the Atlantic County Prosecutor’s Office as an expert “in the

field of narcotics use and distribution as well as the

accompanying aspects of narcotics distribution.” The prosecutor

posed the following hypothetical question:



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I ask you to assume that all the facts I am giving you are true.

Assume that, assume that a vehicle, a silver vehicle, pulls up to the curb on a side street of [a public housing project] in Atlantic City. Assume that the occupant, the sole occupant, of that car, then bends his seat back, reclines it back so his head is invisible and waits there while at times picking his head up thusly.

Assume that a short time later, another car approaches and a red car parks head-tohead at a curb. Assume that there are two occupants of that red car, a female and a male. Assume that the male is driving and the female is a passenger.

Assume that the male driver leaves the red car and walks up to the silver car. Assume that the male leans into the passenger side of the silver car, hands the driver of the silver car ten packets of heroin and receives from the man in the silver car $100.

Assume that the male walks away from the car about ten or 15 steps and is arrested by police. Assume that on his person is a hundred dollar bill and $56 in a separate pocket, separate location of currency. Assume that the $56 is in the denominations of two twenties, three fives and one $1 bill.

Assume that the female passenger is sitting facing forward, the arrest a very short distance, possibly from me to you. Assume that the female passenger of the red car who arrived with the male is sitting watching the arrest. Assume that the female passenger stuffs 13 bags, 13 bags, packets, of heroin into the rear of her pants, the rear of her pants.

Assume that there is a total -- between the ten in the silver car and the 13 bags on the female passenger -- there’s a total of 23



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bags of heroin.

. . . . Assume that the items in S-19 are the same as, appear the same as, for purposes of this hypothetical, assume that the 23 bags recovered appear as the bags in S-19. And I want you to take them out and put them all out one-by-one in front of you.

Assume that the ten bags that the male handed to the driver of the silver car in exchange for $100 and the 13 bags in the -- in the female’s pants appeared the same as those bags. Are you able to [form] an opinion as to whether the female in possession of the 13 bags -- I’m sorry. I missed -- I missed two facts.

Assume additionally that there was nothing else in the -- in the pocket that held the hundred dollar bill that the male took from the sale. And assume that no use paraphernalia of any kind is in the possession of either the male or the female; no hypodermic syringes, no straws, no CDs with lines cut up; no use paraphernalia.

. . . .

Based on the facts that I have given you, are you able to form an opinion as to whether the 13 bags the female possessed, are you able to form an opinion as to whether the female possessed those 13 bags for personal use or distribution.

Detective Lockett responded: “Based on the facts that

you’ve given me, that’s consistent with the distribution. Based

on those facts, . . . it appears consistent that the female may

have conspired with the male or conspired with the male to

distribute C.D.S. That would be my opinion on it.” Defendant



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did not object to the hypothetical question or to the response.

Defendant did not present any witnesses.

C.

The jury convicted defendant of third-degree possession of

heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession of

heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and

N.J.S.A. 2C:35-5(b)(3); third-degree distribution of heroin,

N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); third-degree

possession of heroin with intent to distribute within a school

zone, N.J.S.A. 2C:35-7; and second-degree possession of heroin

with intent to distribute within 500 feet of a public housing

facility, N.J.S.A. 2C:35-7.1. Defendant was found not guilty of

third-degree conspiracy to distribute heroin, N.J.S.A. 2C:5-2

and N.J.S.A. 2C:35-5(b)(3).2

In light of defendant’s prior convictions, the trial court

imposed an extended term sentence of ten years with a five-year

period of parole ineligibility for possession of heroin with

intent to distribute within a school zone and a concurrent term

of ten years with a five-year period of parole ineligibility for

possession of heroin with intent to distribute within 500 feet

of a public housing facility. The court also imposed applicable

2 The jury convicted Butcher only of third-degree possession of heroin. She was acquitted of conspiracy to distribute heroin and a number of possession-with-intent-to-distribute charges.



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fines and penalties. The remaining charges were merged.

Defendant appealed.

II.

The Appellate Division affirmed defendant’s convictions and

sentences. The panel rejected defendant’s arguments that the

testifying police officers improperly offered opinion testimony

that a drug transaction had taken place and that the prosecutor

improperly assumed as a fact in the hypothetical question that

defendant distributed drugs to Atkinson.

We granted defendant’s petition for certification. State

v. Simms, 220 N.J. 40 (2014). In addition, we requested that

the parties “file supplemental briefs addressing the rationale

and need for hypothetical questions in the trial of a drug case,

and the circumstances under which such questions may be used.”

We also granted the Attorney General leave to participate as

amicus curiae.

III.

A.

Defendant argues that Detective Ruzzo’s radio calls that he

“was possibly observing a C.D.S. transaction” and that “there

was a C.D.S. transaction taking place” -- admitted through

Detective Warner’s testimony -- constituted impermissible

opinion on an ultimate issue of fact.

Next, defendant contends that the prosecutor’s hypothetical



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question to the drug expert improperly assumed a fact not in

evidence. Defendant points out that although Detective Ruzzo

observed defendant hand only “an object” to Atkinson, the

hypothetical asked the expert to assume that defendant gave ten

packets of heroin to Atkinson for $100. Defendant maintains

that it was for the jury to determine whether such a sale

occurred.

Defendant, moreover, posits that because defendant was

tried jointly with Butcher, he was prejudiced by the expert’s

opinion testimony that Butcher had conspired with defendant to

distribute heroin. He maintains that disputed facts should have

been reserved for the jury’s determination.

Finally, defendant submits that (1) the use of the

hypothetical to elicit ultimate-issue testimony from a drug

expert, in this and other drug prosecutions, does not assist the

jury in understanding the evidence, but rather invades its

exclusive province as factfinder and (2) that an expert’s

opinion, which amounts to a declaration of guilt, causes

prejudice that far outweighs the probative value of the

testimony.3

B.

The State counters that Detective Ruzzo’s characterization

3 Defendant also argues that his sentence was excessive, but we need not reach that issue.



11

of his observations of defendant -- as relayed through Detective

Warner’s testimony -- did not constitute opinion testimony.

According to the State, Detective Ruzzo’s call to Detective

Warner that a “C.D.S. transaction was taking place” was simply a

request that Warner enter the area for the purpose of detaining

defendant and Atkinson, and therefore Detective Ruzzo’s

description was “the essence of fact testimony.”

The State concedes “that its hypothetical question to its

expert witness slightly exceeded the facts in evidence by

referring to a sale of heroin.” The State, however, claims that

the misstep did not draw an objection and did not constitute

plain error.

The State also maintains that the hypothetical question,

which elicited from the expert an opinion that the co-defendant

was engaged in a drug-distribution scheme, could not have

adversely affected defendant because the jury acquitted the co

defendant of the drug-distribution charges.

Last, the State asserts that an expert witness should be

permitted “to testify directly on the criminal nature of a drug

defendant’s conduct . . . premised on [the expert’s] general

knowledge of the illegal drug trade,” provided it is made clear

that the expert’s opinion does not rest “on any special

knowledge of the defendant’s state of mind.” The State

“recommends that the use of hypothetical questions be permitted



12

but not required to elicit the opinion testimony.”

C.

The Attorney General, as amicus curiae, acknowledges that

expert testimony is not necessary to assist the jury in

determining “whether a simple narcotics transaction has taken

place” and that “a detailed hypothetical precisely mirroring the

State’s evidence” should be impermissible where the defendant

engages in a two-person drugs-for-cash deal. The Attorney

General states, however, that carefully “crafted hypotheticals .

. . . are a critical tool for the jury in understanding the

evidence,” allowing the expert to synthesize disparate facts and

place them in context to explain the operation of a drug

distribution scheme.

IV.

A.

Expert testimony is admissible “[i]f scientific, technical,

or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue.”

N.J.R.E. 702 (emphasis added). Expert testimony that “embraces

an ultimate issue to be decided by the trier of fact,” N.J.R.E.

704, is not admissible unless the subject matter is beyond the

ken of the average juror. State v. Nesbitt, 185 N.J. 504, 515

16, 519 (2006).

From our evidence rules, we have established guiding



13

principles to ensure the proper use of opinion testimony in drug

cases. Expert testimony is not necessary to tell the jury the

“obvious” or to resolve issues that the jury can figure out on

its own. Id. at 514. In other words, “[e]xpert testimony

should be limited to areas that are beyond the understanding of

the jury.” State v. Sowell, 213 N.J. 89, 102 (2013). A

prosecutor may not “summarize straightforward but disputed

evidence in the form of a hypothetical and then elicit an expert

opinion about what happened.” Ibid. Such an “approach

improperly bolsters the State’s proofs with expert testimony and

can usurp the jury’s sole responsibility to find the facts.”

Ibid.

B.

In this case, Detective Ruzzo observed defendant lean into

a car window and hand the driver “an object” in exchange for

what appeared to be “one bill of currency.” Shortly afterwards,

ten packets of heroin with the logo “Sweet Dreams” were found on

the passenger’s seat of that car. Almost simultaneously, the

police arrested the co-defendant, who was sitting in defendant’s

car in possession of thirteen packets of heroin stamped with the

same logo.

Detective Warner testified that Detective Ruzzo radioed at

one point that he “was possibly observing a C.D.S. transaction”

and at another point that “there was a C.D.S. transaction taking



14

place.” That testimony violated the precepts articulated in

State v. McLean, 205 N.J. 438 (2011).

In McLean, we reversed the defendant’s possession-with

intent-to-distribute convictions because a testifying police

officer, who observed the defendant hand only an item to an

individual in exchange for money during a surveillance,

expressed the opinion that a drug transaction had occurred. Id.

at 443, 463. We came to that conclusion because the jurors were

fully capable of grasping the meaning of easy-to-understand

facts and making their own deductions without the assistance of

an expert in a simple drug-distribution case. Id. at 461.

The facts here, like in McLean, were simple and

straightforward, and the jury was fully capable of deciding

whether defendant engaged in an act of drug distribution. No

objection, however, was made to that testimony, which also

constituted hearsay. N.J.R.E. 801(c) (“‘Hearsay’ is a

statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth

of the matter asserted.”). We do not have to decide whether the

admission of that testimony constituted plain error, however,

because more serious errors plagued this trial.

C.

The hypothetical question in this case required the drug

expert to assume facts that were not established through



15

testimony and that were hotly contested. Indeed, the assumed

facts answered the very issue the jury was charged to resolve --

whether defendant handed packets of heroin to the driver of the

silver car in exchange for money.

The prosecutor asked the jury to assume that the driver of

the red car (defendant) walks up to a silver car and “leans into

the passenger side of the silver car, hands the driver of the

silver car ten packets of heroin and receives from the man in

the silver car $100.” The trial testimony, however, did not

support this portion of the hypothetical. As noted earlier,

Detective Ruzzo saw only an object in defendant’s hand. The

ultimate issue to be decided by the jury was whether the

“object” was in fact the “ten packets of heroin.” The jury was

expected to resolve the disputed issue by “sorting through all

the evidence and using their common sense to make simple logical

deductions.” Cain, supra, __ N.J. at __ (slip op. at 21-22).

The assumed facts in the hypothetical undermined the jury’s

exclusive role as finder of fact.

The issue here is similar to one presented in Sowell,

supra. There, a corrections officer observed an individual take

from her front pocket an “item” and place it in the hands of the

defendant-inmate during a prison visit. 213 N.J. at 94. The

defendant then put the “item” in a bag of potato chips, which he

laid under the seat next to him. Ibid. Afterwards, corrections



16

officers had the defendant empty the contents of the potato chip

bag. The contents included a balloon containing thirty decks

(glassine envelopes) of heroin. Ibid. The defense vigorously

challenged the State’s version of events. Id. at 97.

Nevertheless, the prosecutor posed a hypothetical question to a

drug expert reciting all the details observed by the corrections

officers and then had the expert render an opinion “[t]hat a

transaction or an exchange of narcotics took place” in the

prison. Id. at 96-97.

We found that the expert’s opinion did not meet the

standard for admissibility of expert testimony. Id. at 104-07.

That was so because “a straightforward transaction in which one

person receives a packet of drugs from another and hides it in a

bag of chips requires no expert interpretation.” Id. at 105.

In such a case, jurors are able to assess the evidence “on their

own, based upon common knowledge, experience, and logic.” Ibid.

We warned that “the prosecution cannot call an expert to fill in

gaps and clarify a transaction that jurors can understand on

their own.” Ibid. We did not reverse the defendant’s

convictions only because of the overwhelming evidence of guilt,

which included the defendant’s admissions and a videotape of the

exchange. Id. at 107.

Even though defendant made no objection to the

prosecutorial error highlighted here, that error was exacerbated



17

by the expert’s ultimate-opinion testimony, to which we turn

now.

D.

The expert witness in this case, Detective Lockett,

expressed the opinion that the thirteen packets of heroin found

in the possession of the co-defendant sitting in defendant’s car

were not only consistent with distribution, but also that it

appeared that she had “conspired with the male to distribute

C.D.S.” No one disputes that the male referred to was

defendant. The expert’s opinion directly bolstered not only the

State’s case against the co-defendant, but also the case against

defendant by implicating him as the co-conspirator. Surely, if

the co-defendant conspired with defendant, then defendant must

have conspired with the co-defendant. The expert’s mimicking

the statutory language of conspiracy and his conclusion that

defendant conspired to distribute heroin was, in effect, a

pronouncement of guilt, and a repeat of the type of expert

testimony that we disapproved in State v. Reeds, 197 N.J. 280

(2009).

In that case, the defendant was convicted of possession of

heroin and possession with intent to distribute. Id. at 289.

At trial, in response to a hypothetical question posed by the

prosecutor, the police expert offered the opinion that the

defendant and the two occupants in the defendant’s car



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constructively possessed heroin with intent to distribute based

on the quantity of heroin found in the car after a police stop.

Id. at 286-88. We held that “the expert’s constructive

possession opinion was tantamount to a legal conclusion,

resulting in a veritable pronouncement of guilt on the two

possession crimes.” Id. at 297. We also observed that “by

mimicking the language of the statute . . . the expert’s

testimony on constructive possession of drugs” was neither

probative nor helpful to the jury. Id. at 296-97. In reversing

the defendant’s conviction on the basis of plain error, we

concluded that the expert’s “ultimate-issue testimony usurped

the jury’s singular role” as finder of fact and “was clearly

capable of producing an unjust result.” Id. at 300-01.

There is no meaningful difference between the flawed expert

testimony in Reeds and the expert testimony challenged in this

case. In both cases, by tracking the statutory language, the

experts rendered an ultimate-issue opinion expressing a belief

in the guilt of the defendants. As in Reeds, here, the use of a

narcotics expert was not necessary to tell the jury the

“obvious” in the case of “a straightforward” vehicle search.

See id. at 293, 299 (quoting Nesbitt, supra, 185 N.J. at 514).

As in Reeds, the prejudicial testimony here did not draw an

objection.

Nevertheless, the cumulative effect of the errors in the



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present case were “clearly capable of producing an unjust

result,” R. 2:10-2, requiring a reversal of defendant’s

convictions. See State v. Weaver, 219 N.J. 131, 155 (2014)

(noting duty of this Court to reverse conviction “[w]hen legal

errors cumulatively render a trial unfair”).

V.

The parties and amicus Attorney General filed briefs

“addressing the rationale and need for hypothetical questions in

the trial of a drug case, and the circumstances under which such

questions may be used.” Our response to that issue in Cain

obviates the need for a detailed discussion here. But certain

principles enunciated in Cain bear repeating because they have

direct application to the facts before us.

“To the extent possible, questions posed to an expert

witness in a drug case should be compact and easy to understand

. . . . [S]implicity in sentence structure will be helpful to

the witness and the jury.” Cain, supra, __ N.J. at __ (slip op.

at 27). A hypothetical question in a drug case should not be

used as a prosecutorial tool to sum up an entire case in a

single question for the purpose of eliciting an expert’s opinion

on a defendant’s guilt. Ibid. The practice of assuming in a

hypothetical question an unnamed “individual” when every detail

of the question makes clear the reference is to the defendant

serves no purpose and will not dissipate the prejudice of



20

inappropriate opinion testimony. Id. at __ (slip op. at 25).

After the jury is informed about the significance of evidence

that requires the assistance of expert testimony, such as

quantity and packaging of drugs, and other indicia of drug

distribution not commonly understood by lay persons, jurors are

capable of processing the information received at trial, of

drawing inferences, and making logical deductions in carrying

out their duties as the ultimate finders of fact. Id. at __

(slip op. at 20-22).

Straightforward facts that are not in dispute should not

require a hypothetical, even when expert testimony may be of

assistance to the jury. Id. at __ (slip op. at 25). For

instance, in this case, the ten bags of heroin found in

Atkinson’s car and the thirteen bags of heroin seized from the

co-defendant each bore the logo “Sweet Dreams.” Without the use

of a hypothetical, the expert could have explained the purpose

of stamping a logo on drug packaging and whether a particular

logo can be attributed to a singular dealer or drug operation.

See United States v. Mejia, 448 F.3d 436, 441 (D.C. Cir. 2006)

(noting expert’s testimony on significance of “drug logos

associated with the packaging of cocaine”), cert. denied, 549

U.S. 1137, 127 S. Ct. 989, 166 L. Ed. 2d 747 (2007). However,

when facts are in dispute, and expert opinion testimony is

appropriate, hypotheticals may play a useful role because the



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expert will be required to assume a fact that ultimately a jury

will decide. See Cain, supra, __ N.J. at __ (slip op at 26).

The hypothetical in this case, like the hypothetical in

Cain, supra, __ N.J. at __ (slip op. at 37-39), and the expert

testimony that followed, trespassed into the exclusive domain of

the jury. The jurors did not need the assistance of an expert

to determine whether defendant handed the packets of heroin to

the driver of the silver car after the detective testified that

defendant passed “an object” in exchange for currency. The

inferences to be drawn from those facts were for the jury, after

a review of all of the evidence in the case. Whether defendant

and the co-defendant conspired to distribute drugs was an

ultimate issue of fact for the jury, not a proper subject for

expert testimony. The hypothetical in this case, like in Cain,

served as a mid-trial summation, allowing the prosecutor to

improperly bolster the straightforward facts of the State’s case

with expert testimony.

When the ultimate issue of fact in a drug case is the

defendant’s state of mind or an issue that the average juror can

resolve without assistance, expert testimony is not permissible.

The discussion here and in Cain should provide guidance in the

appropriate use of hypotheticals and expert testimony in drug

cases.

For the reasons expressed, we reverse the judgment of the

Appellate Division and vacate defendant’s convictions. We

remand to the trial court for proceedings consistent with this

opinion.