STATE OF NEW JERSEY v. RHYMAN M. HICKS, JR.
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2271-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RHYMAN M. HICKS, JR., a/k/a
RHYMAN M. HICKS, 2ND, RHYME
M. HICKS, and DARNELL C.
WILLIAMS,
Defendant-Appellant,
and
AARON C. RITMAN and
JAIMELYN HANS,
Defendants.
_______________________________
Argued September 18, 2017 – Decided February 15, 2018
Before Judges Messano and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 14-08-0872.
Michael Denny, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Michael Denny, of counsel and on the brief).
Nicole Handy, Assistant Prosecutor, argued the
cause for respondent (Scott A. Coffina,
Burlington County Prosecutor, attorney;
Nicole Handy, of counsel and on the brief).
PER CURIAM
Defendant Rhyman M. Hicks appeals his conviction for various
drug offenses, arguing the court erred by permitting expert
testimony concerning his guilt. Having reviewed the record in
light of the applicable law, we agree and reverse.
I.
Defendant1 was charged in an indictment with two counts of
third-degree possession of a controlled dangerous substance,
N.J.S.A. 2C:35-10(a)(1) (counts one and six); third-degree
possession of a controlled dangerous substance with intent to
distribute,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(3)
(count two); third-degree possession of a controlled dangerous
substance with intent to distribute on or within 1000 feet of
school property,
N.J.S.A. 2C:35-7 (count three); second-degree
possession of a controlled dangerous substance with intent to
distribute on or within 500 feet of a public facility,
N.J.S.A.
2C:35-7.1 (count four); third-degree manufacturing of a controlled
1
Co-defendants Aaron C. Ritman and Jaimelyn Hans were charged in
the first eight counts of the indictment. Hans's charges were
resolved by her admission into the pre-trial intervention program.
The record does not show the disposition of the charges against
Ritman. The trial here was only on the charges against defendant.
2 A-2271-15T1
dangerous substance, N.J.S.A. 2C: 35-5(a)(1) and
N.J.S.A. 2C:35-
5(b)(3) (count five); two counts of fourth-degree possession of
prohibited weapons and devices,
N.J.S.A. 2C:39-3(e) (counts seven
and eight); and fourth-degree certain persons not to have weapons,
N.J.S.A. 2C:39-7(a) (count nine).
At trial, Jaimelyn Hans testified she contacted defendant in
February 2014, asked if he had any crack cocaine, and he said he
did. She went to the house defendant shared with his mother, was
brought to defendant's bedroom where defendant's friend Ritman was
present, and bought a "dime bag of crack cocaine" from defendant.
Hans smoked the crack cocaine and saw defendant smoking crack
cocaine as well. Hans stayed in defendant's bedroom watching
television for a few hours until police arrived, came into the
bedroom, and arrested Hans, defendant and Ritman.
Burlington City police officers Christopher J. Walsh and
William Ruskowski were among the officers who participated in the
arrests and searched defendant's home.2 They testified the
following items were found in defendant's bedroom: two glass pipes,
razor blades, a glass vial containing a light-colored residue, a
grinder, a measuring cup, forty-six plastic baggies containing
white powder, two tins of sterno, numerous empty plastic bags,
2
The search was conducted pursuant to a search warrant that was
issued prior to the officers' initial arrival at defendant's home.
3 A-2271-15T1
baking soda, a digital scale, a jar containing a hardened white
substance, a dagger and a police baton. A representative from the
Burlington County Forensic Science Laboratory testified the white
powder in the baggies was cocaine, weighing 2.76 grams in total.
The State also presented Burlington County Prosecutor's
Office detective sergeant David Burr, who was qualified "as an
expert in the pricing, purchasing, sale, distribution and use of
a controlled dangerous substance." During his direct testimony,
Burr offered opinions based on a hypothetical question.
THE PROSECUTOR: Detective Burr, I'm going to
ask you or present you with a hypothetical
situation. Based on that hypothetical I'm
going to ask you whether the drugs from the
hypothetical were intended for personal use
or for distribution, okay. The hypothetical
is as follows:
The police conduct a search of a home.
In that home they locate two plastic bags
containing a total of 46 small Ziploc style
packets of crack cocaine. The total weight
of that cocaine is, assume . . . is 2.76 grams.
Also located is a number of empty plastic
baggies, similar size and style, larger empty
bag with trace amounts of cocaine, digital
scale, baking soda, measuring cups, a jar
containing hardened cocaine, sternos and
razors.
Sir, based upon your training and
experience and the hypothetical I just
presented you with, do you have an opinion as
to whether the narcotics were possessed for
personal use or with intent to distribute?
4 A-2271-15T1
BURR: In my opinion based upon my training
and experience I would say that that clearly
shows to me that it's for possession with
intent to distribute, not just simple
possession.
DEFENSE COUNSEL: [] Objection. May I approach?
COURT: Yes.
The following exchange took place during the sidebar
conference:
DEFENSE COUNSEL: Your Honor, under State v.
McLean[3] the officer can't parrot the
language from the statute. I'm not trying to
split hairs here but he regurgitated the
language of the statute. I think there needs
to be some sort of correction or at least a
caution moving forward.
COURT: It's a close call.
. . . .
COURT: [] The court will direct the prosecutor
to avoid the use of the statutory language.
Because in its present form it almost sounds
as if it's an opinion as to the guilt in this
case and that's not the witness'[s] function.
On the other hand, I don't know how else
you state the circumstance whether it was
possessed for personal use or for
distribution.
. . . .
DEFENSE COUNSEL: [] I don't have an objection
if [the prosecutor] is leading his witness
through this and, you know, I'm not trying to
tell him what to do, but possession with
3
State v. McLean,
205 N.J. 438 (2011).
5 A-2271-15T1
intent to distribute is the language in the
statute . . . .
COURT: [The prosecutor] agrees with you.
DEFENSE COUNSEL: I don't think we need to
rehash that, but moving forward if there's any
[]
THE PROSECUTOR: That's fine.
The court did not direct that the jury disregard Burr's prior
response to the hypothetical, and the prosecutor did not rephrase
the hypothetical. Instead, the prosecutor asked Burr additional
questions about the hypothetical:
THE PROSECUTOR: Sir, I'm going to redirect you
to the hypothetical situation I just posed to
you. Again, I'm going to ask you whether it
is your opinion that in that hypothetical the
drugs were for use or for sale or to give to
others[?]
The court overruled defendant's objection to the question. Burr
then testified:
BURR: It's . . . in my opinion based upon
. . . your hypothetical, it's for distribution
to others.
The prosecutor asked Burr additional questions based on the
hypothetical. Burr opined that the person involved in the sale
of the crack cocaine was also a "user." He also testified that
based on the hypothetical, the individuals involved were
manufacturing cocaine, and the sternos referenced in the
6 A-2271-15T1
hypothetical "showed . . . the person was converting powder cocaine
into crack cocaine before selling it and/or using it."
The jury found defendant guilty on eight of the nine counts
charged in the indictment.4 The court imposed an aggregate eight-
year custodial term, with a four-year period of parole
ineligibility. This appeal followed.
Defendant presents the following argument for our
consideration:
BECAUSE THE STATE'S EXPERT TESTIFIED ON THE
ULTIMATE ISSUE OF DEFENDANT'S STATE OF MIND
IN A DRUG DISTRIBUTION CASE AND THE PROSECUTOR
POSED A HYPOTHETICAL QUESTION DESIGNED TO
ELICIT AN OPINION THAT THE DEFENDANT POSSESSED
DRUGS WITH THE INTENT TO DISTRIBUTE, THE
JURY'S EXCLUSIVE DOMAIN AS FACTFINDER WAS
INVADED AND THE STATE'S FACT EVIDENCE WAS
IMPROPERLY BOLSTERED.
II.
Defendant contends Burr's responses to the hypothetical
questions offered opinions about defendant's state of mind which
the court prohibited in State v. Cain,
224 N.J. 410, 429 (2016),
and Burr's testimony the person in the hypothetical possessed
crack cocaine with intent to distribute and was engaged in
manufacturing crack cocaine constituted impermissible
4
The jury acquitted defendant of count six, third-degree
possession of a controlled dangerous substance, buprenorphine,
N.J.S.A. 2C: 35-10(a)(1).
7 A-2271-15T1
pronouncements of defendant's guilt, State v. Simms,
224 N.J. 393,
406 (2016). The State does not dispute the challenged hypothetical
questions and responses violate the holdings in Cain and Simms,
but contends the Court's decisions in those cases should not be
applied retroactively and the hypothetical questions were proper
under the law at the time of trial.
We find no merit to the State's contention we should not
apply the principles in Cain and Simms here. Another panel of
this court has held the decisions should be given pipeline
retroactivity to cases, like this one, pending on appeal when they
were decided. See State v. Green,
447 N.J. Super. 317, 328 (App.
Div. 2016); see also State v. Hyman,
451 N.J. Super. 429, 446
(App. Div. 2017) (applying the Cain principles in a case that was
"on appeal when Cain was decided").
The State argues we should reject the panel's determination
in Green because application of Cain and Simms will result in a
retrial of a case conducted in accordance with the law extant at
the time of trial. We reject the contention for the same reason
it was rejected in Green: "There will be no unfair prejudice to
the State in reversing cases pending appeal that involve improper
hypothetical questions. We routinely remand cases for new trials
where error has prevented defendants from receiving a fair trial."
8 A-2271-15T1
447 N.J. Super. at 328. We therefore apply, as we must, the
holdings in Cain and Simms here.
In Cain, the Court rejected the procedure, which it previously
approved in State v. Odom,
116 N.J. 65, 80-81 (1989), that
permitted an expert to testify about a defendant's state of mind
in an intent-to-distribute drug case.
224 N.J. at 429. The Court
found improper a hypothetical that "recited nearly every detail
of the case . . . and call[ed] for the expert to give an opinion
whether the drugs recovered were possessed with the intent to
distribute . . . ." Id. at 431. The Court found the hypothetical
"allow[ed] the prosecutor to package his entire case in a single
question and elicit affirmation of defendant's guilt from an
expert." Ibid. The Court noted that the use of the term
"individual" in the hypothetical constituted a "thinly veiled
guise that serves no purpose and fails to dissipate any potential
prejudice" to the defendant. Ibid.
The Court held that "in drug cases, an expert witness may not
opine on the defendant's state of mind. Whether a defendant
possessed a controlled dangerous substance with the intent to
distribute is an ultimate issue of fact to be decided by the jury."
Id. at 429 (emphasis in original). The Court also cautioned that
hypotheticals should not be used in drug cases "[w]hen the evidence
is straightforward and the facts are not in dispute . . . ." Ibid.
9 A-2271-15T1
In Simms, the Court similarly determined the State's use of
a "lengthy hypothetical question posed to the drug expert [that]
include[d] the assumed fact that the detective actually observed
defendant hand a buyer drugs for cash," violated the principles
set forth in Cain.
224 N.J. at 396. The Court also determined
the expert's testimony regarding defendant's involvement in a
conspiracy impermissibly mimicked the statutory language. Id. at
406.
Applying these principles, we are convinced Burr's testimony
in response to the hypothetical was improper. The hypothetical
provided a brief but detailed and comprehensive summary of all of
the drug-related evidence found in defendant's bedroom. In his
initial response to the hypothetical, Burr offered an
impermissible opinion on defendant's state of mind and mimicked
the statutory language, stating that the drugs were "for possession
with intent to distribute, not just simple possession." Defense
counsel objected, and the court acknowledged the testimony "almost
sound[ed] as if it's an opinion as to [defendant's] guilt," but
the court neither sustained the objection nor instructed the jury
to disregard the testimony.5
5
Of course, the trial court did not have the benefit of the
Court's decisions in Cain and Simms. However, because the
decisions apply retroactively, we need not determine if the court's
ruling was proper under the law extant at the time of trial.
10 A-2271-15T1
Instead, the State's next question essentially repeated the
improper inquiry. The prosecutor asked if the drugs described in
the hypothetical "were for use or for sale or distribution to give
it to others." After overruling defendant's objection to the
question, Burr offered an impermissible opinion as to defendant's
state of mind, which was an ultimate issue for the jury, stating
the drugs were "for distribution to others." See Cain,
224 N.J.
at 429. Burr offered similarly impermissible testimony that the
individual in the hypothetical was not only a drug seller, but was
a user as well. "An expert, who advises the jury that the defendant
possessed drugs with intent to distribute is, in essence, telling
the jury that the State has proven all of elements of the crime[,]
. . . [and] has announced his own verdict, whether or not he uses
the word 'guilty.'" Id. at 427 (quoting State v. Summers,
176 N.J. 306, 323 (2003) (Albin, J., dissenting)).
The State's questions and Burr's responses were not limited
to the possession with intent to distribute charge. Defendant was
also charged with third-degree manufacturing of a controlled
dangerous substance,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-
5(b)(3). In response to the prosecutor's questions, Burr offered
an opinion mimicking the language of those statutes. Burr
testified the person in the hypothetical was "manufacturing
cocaine" and converting powder cocaine into crack cocaine. In
11 A-2271-15T1
doing so, Burr provided an impermissible "opinion about
defendant's guilt." Ibid.
We are convinced, and the State does not dispute, that the
questions posed to Burr and his responses are impermissible under
the Court's holdings in Cain and Simms. In our review of the
admission of the testimony, we disregard "[a]ny error or omission
. . . unless it is of such a nature as to have been clearly capable
of producing an unjust result." R. 2:10-2. To require reversal,
there must "be 'some degree of possibility that [the error] led
to an unjust [verdict]. The possibility must be real, one
sufficient to raise a reasonable doubt as to whether [it] led the
jury to a verdict it otherwise might not have reached.'"6 State
v. R.B.,
183 N.J. 308, 330 (2005) (second and fourth alterations
in original) (quoting State v. Bankston,
63 N.J. 263, 273 (1973)).
In Cain, the Court concluded an expert's impermissible
testimony about the defendant's state of mind on the possession
6
We review Burr's testimony concerning whether the drugs were
possessed with intent to distribute for harmless error because
defendant objected to the testimony at trial. See, e.g., State
v. Pillar,
359 N.J. Super. 249, 290 (App. Div. 2003) (reviewing
testimony that was admitted without objection for harmless error).
We review Burr's testimony that the person in the hypothetical was
a user and manufacturer of crack cocaine for plain error. See
Cain,
224 N.J. at 432-33 (reviewing testimony that was presented
without objection for plain error). In any event, the standard
for establishing harmless and plain error is identical under R.
2:10-2. State v. Macon,
57 N.J. 325, 337-38 (App. Div. 1971).
12 A-2271-15T1
with intent charge "had the capacity to infect all of the charges
and [was] 'clearly capable of producing an unjust result.'"
224 N.J. at 432-33. In Simms, the Court found plain error where in
the defendant's trial on a charge of conspiracy to distribute a
controlled dangerous substance, the State's expert offered an
opinion that "mimick[ed] the statutory language of conspiracy and
. . . conclud[ed] defendant conspired to distribute" the controlled
dangerous substance.
224 N.J. at 406. The Court stated the
testimony constituted an impermissible "pronouncement of guilt."
Ibid.
In Green,
447 N.J. Super. at 319, the defendant was charged
with possession of marijuana with intent to distribute. At trial,
the State called a narcotics expert and asked a lengthy
hypothetical question detailing all of the evidence found in the
defendant's home. Id. at 324. The State asked the expert to
conclude whether the defendant possessed the marijuana for
personal use or with intent to distribute. Ibid. We held the
expert's testimony constituted plain error requiring reversal
because "the question of whether [the defendant] had 'intent to
distribute' was based solely on circumstantial evidence . . . ."
Id. at 329.
Consideration of whether admission of evidence is clearly
capable of producing an unjust result "depends on an evaluation
13 A-2271-15T1
of the overall strength of the State's case." State v. Nero,
195 N.J. 397, 407 (2008) (quoting State v. Chapland,
187 N.J. 275, 289
(2006)). Here, there was direct evidence defendant possessed the
crack cocaine with the intent to distribute. Hans testified she
contacted defendant, asked if he had any crack cocaine to sell,
and he said he did. She went to his home and purchased crack
cocaine from him a few hours before the police arrived. This
evidence established defendant possessed the crack cocaine with
intent to distribute independently of Burr's impermissible
testimony. We therefore are not convinced admission of Burr's
testimony, standing alone, "raises a reasonable doubt as to whether
[it] led the jury to a verdict it otherwise might not have
reached." R.B.,
183 N.J. at 330; see also State v. Sowell,
213 N.J. 89, 107-08 (2013) (affirming conviction given strength of
evidence against defendant despite admission of improper expert
testimony).
Burr, however, also offered an impermissible expert opinion
on the manufacturing charge, testifying that the person in the
hypothetical was a manufacturer of crack cocaine and converted
powder cocaine into crack cocaine. Other than Burr's impermissible
opinion testimony, there was no other direct evidence that
defendant manufactured crack cocaine. Thus, we are persuaded that
for the jury to have convicted defendant of manufacturing, it
14 A-2271-15T1
reasonably must have relied on Burr's expertise and impermissible
testimony. Admission of the testimony was clearly capable of
producing an unjust result. R. 2:10-2.
We are also convinced admission of Burr's testimony
concerning the manufacturing charge requires reversal of his
conviction on all of the charges. Permitting Burr to impermissibly
declare that defendant was a manufacturer of crack cocaine had the
capacity to infect the jury's consideration of the other offenses
for which he was charged, and improperly buttressed the State's
contention defendant committed the offenses. We also cannot ignore
that the cumulative effect of Burr's three separate declarations
of defendant's guilt, as a drug user, manufacturer and possessor
with intent to distribute, was clearly capable of producing an
unjust result on each of the charges for which defendant was
convicted.
Reversed.
15 A-2271-15T1
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
