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Date: 02-04-2020

Case Style:

State of New Jersey v. Roger Covil

Case Number: A-35/36

Judge: Anne M. Patterson


Plaintiff's Attorney: Paul H. Heinzel, Assistant Prosecutor

Defendant's Attorney:


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This appeal presents two issues. First, the Court considers defendant Roger Covilís challenge to the admission of the opinions of the Stateís drug expert witnesses -- as elicited through hypothetical questions -- in light of State v. Cain, 224 N.J. 410 (2016), and State v. Simms, 224 N.J. 393 (2016), which limited the Stateís use of hypothetical questions in the presentation of drug expert testimony in criminal trials but which were decided two years after defendantís trial. Second, the Court addresses defendantís argument that the trial court violated his constitutional rights and principles of fundamental fairness when it admitted into evidence a notice of motion for a writ of replevin and supporting certification that he served in a civil forfeiture action that had been stayed at his attorneyís request. The Court considers that question against the backdrop of its recent holding in State v. Melendez, ___ N.J. ___ (2020), that an answer filed in a civil forfeiture action is inadmissible in the claimantís criminal trial.

Defendant was arrested when he received a package suspected of containing cocaine. A search of defendant incident to his arrest revealed three cellphones and $656 in cash. Laboratory testing later indicated that the package contained cocaine. The officers searched defendantís residence pursuant to a warrant and found a vacuum meal storage system, three boxes of heat-sealable bags, a roll of shrink wrap, two bags of rubber bands, $70,863, two cellphones, a cellphone charger, and financial and personal documents bearing defendantís name. Defendant was indicted on first-degree possession with intent to distribute five or more ounces of cocaine and two other charges.

Shortly after defendant was indicted, the State filed a civil forfeiture action seeking forfeiture of the $71,519 in currency seized. Defendant filed an answer to the complaint in the civil forfeiture action, stating a general denial of the allegations in the complaint. And, with the Stateís consent, the judge assigned to the civil forfeiture action stayed discovery as to defendant in that action and the forfeiture trial.

Notwithstanding the stay, defendant prepared and served on the State a notice of motion for the issuance of a writ of replevin and a supporting certification, in which he asserted that the currency in dispute was his property and demanded its return.

In a pretrial proceeding in defendantís criminal case, the trial court considered the admissibility of the testimony of the Stateís expert witnesses, Detective Omar Belgrave and Detective Jeffrey Dockery. The trial court admitted their testimony and authorized the State to pose to each expert a hypothetical question based exclusively on the trial evidence. The trial court later ruled that the notice of motion for a writ of replevin and certification were also admissible with minor redactions.

Defendant was tried over seven days and was convicted of first-degree possession with intent. Defendant appealed.

Citing State v. Green, 447 N.J. Super. 317, 328 (App. Div. 2016), the Appellate Division afforded this Courtís decisions in Cain and Simms pipeline retroactivity and applied the principles of those cases to this appeal. It held that the Stateís expert opinion testimony improperly addressed the question of whether defendant possessed cocaine with intent to distribute, thereby usurping the juryís constitutional role as factfinder, and it reversed defendantís conviction. The Appellate Division did not reach defendantís constitutional challenge to the admission of the notice of motion for a writ of replevin and certification but stated that, if the State were to retry defendant, the trial court should reexamine its decision with respect to that issue.

The Court granted the Stateís petition for certification, 236 N.J. 241 (2018), and granted defendantís cross-petition limited to two issues: ď(1) the use of defendantís answer filed in the civil forfeiture action, and (2) the testimony of the Stateís expert and the courtís response thereto,Ē 236 N.J. 241, 241-42 (2018).

Outcome: The new rule stated in Cain and Simms was intended to apply prospectively to guide future trials, not retroactively to proceedings conducted prior to those decisions. At the time of defendantís trial, the governing law authorized the use of hypothetical questions such as the questions posed to the Stateís experts in this case. And in light of the distinctions between Melendez and the present case, there was no error in the trial courtís admission of defendantís notice of motion for a writ of replevin and certification.

The judgment of the Appellate Division is reversed, and defendantís
conviction is reinstated.

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