STATE OF NEW JERSEY v. RYSHAN TATUM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1313-08T41313-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RYSHAN TATUM,

Defendant-Appellant.

_______________________________________________

 

Argued December 7, 2009 - Decided

Before Judges Lisa, Baxter and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-05-0999.

Matthew W. Reisig argued the cause for appellant (Reisig & Associates, attorneys; James P. Brady, on the brief).

Monica L. do Outeiro, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Patricia B. Quelch, Assistant Prosecutor, on the brief).

PER CURIAM

A jury found defendant guilty of second degree possession of a controlled dangerous substance ("CDS") with intent to distribute. N.J.S.A. 2C:35-5(b)(2). The judgment of conviction required imprisonment for sixteen years with an eight-year period of parole ineligibility. On appeal, we reversed because the judge had refused to permit defendant to call two expert witnesses. State v. Tatum, No. A-3702-04T4 (App. Div. July 6, 2007). The Supreme Court granted defendant's petition for certification, vacated our judgment, and

summarily remanded to the trial court to conduct an N.J.R.E. 104(a) hearing to determine if the testimony of the psychologist[] . . . and the substance abuse evaluator, Terry McCorkell, would be of assistance to the jury . . . .

The Court further ordered, in pertinent part, that if the trial court finds that the testimony of either expert "would be of assistance to the jury," it shall vacate the conviction and set the case for retrial.

On remand, the only expert witness offered was Terry McCorkell, the substance abuse evaluator. He testified that he has been certified by the State of New Jersey as a Certified Alcoholism and Drug Counselor ("CADC") since 1999 and has thirteen years of substance abuse counseling. His CADC certification required about 270 hours of substance abuse counseling education, 4,000 hours of field work, and oral and written examinations. CADC recertification requires sixty hours of continuing education every two years. He is a 1976 summa cum laude graduate of Fairleigh Dickinson University. Among other things, he worked from 1998 to 2002 as a substance abuse counselor and evaluator for the Monmouth County Sheriff's Department. Since then, he has been employed as a substance abuse evaluator for the Monmouth County Drug Court. In that capacity, by the time he evaluated defendant, he had evaluated about two hundred candidates for the drug court. By the time of this hearing, he had evaluated several hundred more candidates for the drug court.

McCorkell interviewed defendant on behalf of the drug court on September 25, 2003. The interview, which lasted one-and-a-half hours, resulted in a report which, in part, reads as follows:

Client meets DMS-IV [sic] criteria for chemical dependency for alcohol, cannabis, and cocaine . . . . Client's reports about his mental health history warrant a referral for a psychological evaluation to rule out any underlying issues such as depression or any conduct disorder . . . . His addiction to these chemicals has caused him to lose jobs and has contributed to his multiple experiences with the criminal justice system. ASAM PPC-2R criteria calls for Level III.2-D Detoxification treatment followed by Level III.5 (long-term) inpatient treatment. Placement in a program that can address his addiction, criminal thinking, and possible mental health issues will best meet his clinical needs.

At the hearing, McCorkell testified that in the month preceding the interview, defendant admitted that he drank alcohol to intoxication on twenty-five occasions, smoked marijuana on twenty occasions, used cocaine twice, and spent about $400 on drugs. He also said that in the past year he used cocaine twice a week on average. Based on the information received during the interview, McCorkell concluded that defendant was a drug addict when he was arrested. He reached that conclusion by accepting what defendant said and applying to it the criteria for chemical dependency for alcohol, cannabis, and cocaine found in the Diagnostic and Statistical Manual of Mental Disorders, (fourth edition, 1994) ("DSM-IV"), published by the American Psychiatric Association. Although McCorkell was never specifically asked if drug counselors normally rely on the information received from the applicant, he did implicitly indicate that his methodology in so doing was standard in his profession. For example, when asked about applying the DSM-IV criteria, he said that "[e]very substance abuse evaluator in the country uses this assessment." Implicit in that answer was that the criteria were applied to the information received from the applicant. McCorkell also relied on the additional criteria contained in the Addiction Severity Index, which he described as a "widely used assessment tool."

Although the judge found that McCorkell qualified as an "expert in alcohol and substance abuse counseling with an expertise in therapy and counseling," he concluded that McCorkell's testimony would not have been of assistance to the jury, or that even if it would, it would not have affected the result of the case. We disagree with the first proposition and find the second proposition irrelevant under the Supreme Court's remand order. Therefore, we vacate the judgment of conviction and remand for a new trial.

In general, when reviewing evidentiary rulings, we apply an abuse of discretion standard. State v. Torres, 183 N.J. 554, 567 (2005). However, because appellate courts are well suited to reviewing expert testimony in light of scientific literature and applicable judicial decisions, they "need not be as deferential to the trial court's ruling on the admissibility of expert scientific evidence as [they] should be with the admissibility of other forms of evidence." Ibid. Moreover, no deference is to be accorded when the trial judge fails to apply the proper test governing admissibility. State v. Darby, 174 N.J. 509, 518 (2002).

Under the applicable rule of evidence,

If 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.

[N.J.R.E. 702.]

In State v. Kelly, 97 N.J. 178, 208 (1984), the Court noted that for evidence to be admissible under the precursor to N.J.R.E. 702 "(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony." See Torres, supra, 183 N.J. at 567-68 (recognizing that the Kelly test presently controls the admissibility of expert testimony under N.J.R.E. 702).

Since the judge found that (3) had been satisfied, and since it is obvious that drug courts find testimony of the nature involved from its drug counselors generally reliable, the only question is whether McCorkell's testimony concerns a subject matter that is beyond the ken of the average juror.

The average juror would not know about the standards for determining drug addiction set forth in the DSM-IV. Thus, an expert's opinion applying those standards to determine if defendant was a drug addict would be useful in deciding whether that was so or not. Since in this case, the defense was that the drugs were for personal use, defendant's status as an addict would obviously be relevant. Of course, drug addicts can and often do sell drugs to support their habit, but if a defendant was a drug addict at the time of the offense, it is at least more likely that he had the drugs for personal use.

Although the judge appears to have been concerned about McCorkell's reliance on what the defendant said about his use of drugs, that issue is controlled by N.J.R.E. 703, which provides that an expert may testify to otherwise inadmissible hearsay statements as long as the hearsay statements are of a type normally relied upon by experts in the field. That was the thrust of McCorkell's testimony, so he should not have been rejected as a witness on that ground. State v. Burris, 298 N.J. Super. 505, 512 (App. Div.), certif. denied, 152 N.J. 187 (1997). The judge also excluded McCorkell's testimony because it did not address "in any way, shape or form, those areas covered by [Detective] Graves," who testified for the State as an expert witness and opined that the drugs were possessed for distribution, and not solely for personal use.

Since McCorkell's testimony could be of assistance to a jury and since it cannot be barred simply because he relied on the kind of hearsay that experts in his field rely on, and because he did not squarely address the substance of Graves's testimony, we are obliged to reverse and remand for a new trial.

 
Reversed and remanded.

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A-1313-08T4

December 23, 2009