APPELLATE DIVISION
DOCKET NO. A-3531-08T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TODD STATHUM,
Defendant-Appellant.
Submitted November 15, 2010 - Decided
Before Judges Lisa, Reisner and Alvarez.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 06-08-1930. NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
Yvonne Smith Segars, Public Defender,
attorney for appellant (Kevin G. Byrnes,
Designated Counsel, of counsel and on the
brief).
Luis A. Valentin, Monmouth County Prosecutor,
attorney for respondent (Patricia B. Quelch,
Assistant prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Todd Stathum appeals guilty verdicts rendered
after trial by jury on multiple counts of third-degree drug
distribution. After conviction, defendant entered a guilty plea
to a second-degree certain persons not to possess weapons. For
April 11, 2011
2 A-3531-08T4
the reasons that follow, we reverse the jury verdicts, vacate
the guilty plea, and remand for a new trial.
Defendant was convicted of four counts of third-degree
possession of a controlled dangerous substance (CDS), N.J.S.A.
2C:35-10(a)(1) (counts one, eleven, fourteen, and nineteen);
four counts of third-degree possession of CDS with intent to
distribute, N.J.S.A. 2C:35-5(b)(3) (counts two, twelve, fifteen,
and twenty); two counts of third-degree possession of CDS within
1000 feet of school property with intent to distribute, N.J.S.A.
2C:35(b)(3) and 2C:35-7 (counts sixteen and twenty-one); four
counts of third-degree drug distribution, N.J.S.A. 2C:35-5(b)(3)
(counts four, thirteen, seventeen, and twenty-two); and two
counts of third-degree drug distribution within 1000 feet of
school property, N.J.S.A. 2C:35-5(b) and 2C:35-7 (counts
eighteen and twenty-three). Defendant was acquitted of count
three, possession of CDS within 1000 feet of school property
with intent to distribute, N.J.S.A. 2C:35-7, and count five,
distribution within 1000 feet of school property, N.J.S.A.
2C:35-7. After the jury verdicts were rendered, defendant
entered a guilty plea to second-degree certain persons not to
have weapons, N.J.S.A. 2C:39-7(b) (count twenty-five) and agreed
to a sentence of ten years imprisonment, subject to five years
3 A-3531-08T4
of parole ineligibility, to run concurrent to the sentences
imposed for defendant's trial convictions.
On August 15, 2007, the trial judge imposed concurrent
extended terms of ten years, subject to five years of parole
ineligibility, on counts four, ten, thirteen, eighteen, and
twenty-three, for an aggregate sentence of ten years with a
five-year parole bar. Count twenty-four of the indictment was
dismissed by the State and all the remaining offenses were
appropriately merged. The judge imposed a mandatory extended
term, N.J.S.A. 2C:43-6(f), because defendant was a prior drug
distributor.
Defendant was convicted principally on the testimony of
officer Adam Pharo, then assigned to serve in an undercover
capacity with the Monmouth County Prosecutor's Office Narcotics
Strike Force. Pharo testified that on February 2, 2006, he
received information from a confidential informant concerning
the sale of heroin from an individual known as "Todd." Because
the testimony is key to our determination of the issues raised
on appeal, it is reproduced in its entirety:
Q I take your attention to the date of
February 2nd, 2006. Were you with the
Narcotics Strike Force on that date?
A Yes, I was.
Q And on that date, did you have occasion
to become involve[d] in an investigation
4 A-3531-08T4
which was centered around an individual at
the time named Todd?
A Yes.
Q And who did you get that information
from?
A That information was promulgated through
a confidential informant.
Q Can you tell the Jury briefly what a
confidential informant is?
A Yes. A confidential informant is an
individual, male or female, that basically
provides law enforcement officials with
illegal information, whether it be drugs.
In . . . this case, it was narcotic related.
. . . .
Q Okay. Now, on that date, February 2nd,
2006, you received information from a
confidential informant?
A Yes, we did.
Q And . . . what was that information?
[DEFENSE COUNSEL]: Objection.
THE COURT: I'm going to permit him
to summarize what direction he took, based
on the information. He's not going to [be]
permitted to tell me word-for-word what was
said, however, unless you're going to
present that witness.
[PROSECUTOR]: I'll try to weed through
it then, . . . if I may.
THE COURT: Yes.
Q Did you receive information about an
individual named Todd?
5 A-3531-08T4
A Yes, we did.
Q And did that information concern making a
purchase of heroin from Todd?
A Yes, it did.
Q As a result of getting that information,
what was done with the confidential
informant?
A The confidential informant was then
introduced to myself, . . . as well as other
members of the strike force, and a plan was
formulated on that date.
Q And pursuant to that plan, was a phone
call made?
A Yes, there was.
Q And who made that phone call?
A May I refer to my report, please?
Q Yes, please.
A On February 2nd, the phone call was made
to Todd from the confidential informant.
Pharo went on to testify that the Narcotics Strike Force
implemented the plan of action by arranging for the confidential
informant to phone defendant about purchasing heroin. During
the conversation, Pharo overheard the informant arrange to
purchase two bundles of heroin1 in exchange for $180, and to meet
defendant at his residence.
1 Pharo explained that a "bundle" is made up of ten bags.
6 A-3531-08T4
On the designated date, the informant and Pharo arrived at
defendant's residence in an unmarked car. Defendant looked out
an upstairs window and called down that he would be right out.
A few minutes later, he emerged from the residence and entered
the vehicle. After exchanging greetings, defendant produced a
bundle of heroin. When Pharo questioned why only one was
produced when he wanted to buy two, defendant said he had to
obtain the other bundle from "his boy's house," located nearby.
When they drove to that location, defendant left the vehicle,
disappeared briefly from view, and returned with a second bundle
of heroin. Pharo gave defendant $180 and drove him back to his
home.
Later, when the officers inspected the drugs, they found
one of the bundles was missing a bag of heroin. Pharo
instructed the informant to call defendant to ask about the
discrepancy. She reported that defendant "stated that it was
his bag, and he would provide me with the extra bag the next
time we met . . . ." Pharo went on to testify that this conduct
was not unusual, as "sometimes, they're just taking their --
they're taking some for themselves, a finder's fee, to support
their own habits. I'm not there to -- to nickel and dime them
to death. So, I'm not going to argue over one bag." The drugs
were subsequently tested and found to be heroin.
7 A-3531-08T4
A few days afterwards, Pharo personally arranged a second
transaction. He ordered two more bundles of heroin, this time
priced at $190, as well as $40 worth of cocaine. When Pharo
arrived at defendant's residence, defendant and his cousin,
known as "Red," came outside, entered Pharo's unmarked vehicle,
and directed Pharo to another location. Once there, Red walked
into the rear of an apartment complex and returned with a small
plastic bag containing a substance which later proved to be
cocaine. Pharo gave the men $40 for the bag.
Defendant then asked Pharo if he still needed "the D," a
street term for dope or heroin, and told him to drive to a
second address where they were met by a person defendant
introduced as Gary, his "blood brother." Defendant left the
vehicle and spoke to Gary in the rear doorway of a hotel.
Defendant returned to the car with eighteen bags of heroin
instead of the twenty Pharo had ordered. When Pharo asked about
this, Pharo said defendant responded that these were "white boy
bundles," and that he "was crazy if [he] didn't think there
would be a finder's fee." Pharo paid $190 for the eighteen bags
and drove defendant and Red back to defendant's home. These
bundles also tested positive for heroin.
Pharo arranged the final transaction on February 27, 2006,
the purchase of one bundle of heroin, priced at $190, and two
8 A-3531-08T4
grams of "straight C," street slang for powder cocaine, priced
at $95. Pharo called when he arrived at defendant's home,
defendant entered Pharo's vehicle, and once again directed him
to another address. Upon arrival, Pharo gave defendant $195.
Defendant left the car, approached a man seated on a front
porch, and handed him some money. The man briefly entered his
house and when he returned, Pharo said the man and defendant
engaged in a "hand-to-hand transaction." Defendant returned to
the car, handing Pharo a bundle that was short one bag, a
"finder's fee." As requested, defendant also brought Pharo a
bag of cocaine. The substances tested positive for heroin and
cocaine. The purchase occurred within 1000 feet of school
property.
Defendant was arrested April 4, 2006. After being given
his Miranda2 warnings, he gave a formal written statement, which
he signed and initialed. Among other things, defendant was
asked "[i]n the last six months, approximately how many times
have you sold drugs to customers?," to which he responded
"[a]bout 15 times."
Defendant's trial testimony regarding these transactions
differed from Pharo's. Initially, defendant acknowledged his
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
9 A-3531-08T4
prior criminal history, that he had previously entered guilty
pleas to one second-degree offense and two third-degree offenses
in 1995, and that he had served jail time.
Defendant claimed the confidential informant was a young
woman named "Ellie" whom he met at a methadone clinic. He said
that when she called him, she indicated that "she wanted to turn
me on, which means get high with me." When she arrived,
however, she was accompanied by a friend named "Adam."
Ellie told him that they needed to go to "the spot," by
which she meant a place where they had previously purchased
drugs. After they arrived at the location, Ellie gave him money
to buy drugs while Adam insisted he leave his coat in the car to
ensure his return. Defendant was upset about this but agreed
nonetheless. He convinced one of the dealers standing on the
street to come over, despite the seller's reluctance after
seeing two white people in the car. After recognizing Ellie,
the seller became more comfortable.
Defendant purchased twenty bags of heroin, which he handed
to Ellie. As he entered the vehicle, Ellie gave him one of the
bags. Because he did not want to "get[] high" with a stranger,
defendant asked to be driven home.
Defendant further testified that between February 2, 2006,
and February 15, 2006, he spoke to Adam on the phone three or
10 A-3531-08T4
four times. He claimed that Adam wanted to "get high," but that
he declined to help Adam because there was nothing in it for
him.
On February 15, 2006, however, Adam agreed to "get high"
with defendant and as a result defendant agreed to buy them the
necessary drugs. Although Adam wanted both heroin and cocaine,
defendant only knew where he could purchase heroin. Once Adam
arrived at defendant's house, Red showed them where cocaine
could be bought and conducted the transaction on Adam's behalf.
Adam noticed that defendant "looked sick" from drug withdrawal,
and said he wanted to get him high. Defendant directed Adam to
a nearby heroin dealer and once at the buy location, the seller
approached the vehicle and Adam threw money onto defendant's
lap. The seller reached in and took the money, replacing it
with nearly two bundles of heroin, which Adam retrieved from
defendant's lap. Defendant claimed he touched neither the money
nor the drugs.
Defendant said he believed that he and Adam were going to
use the heroin together. Then Adam told him he had changed his
mind, and gave defendant two bags as a "finder's fee instead."
Defendant explained this arrangement as "[t]he deal was always
. . . for every ten bags, I would get one." Defendant stated
that he only took one bag out of twenty when he participated in
11 A-3531-08T4
the first drug purchase because Ellie was buying one of the
bundles for Adam.
Defendant stated that between February 15, 2006, and
February 27, 2006, he spoke to Adam several times about getting
high together. When Adam arrived at his home on February 27,
ostensibly to purchase drugs from a dealer named "John" who was
standing at the corner, defendant expected that once the drugs
were acquired, he and Adam would use them together. John did
not have any drugs, but directed them to his cousin, a man named
Darryl Jones. Adam handed defendant some money, which Jones
exchanged for $10 to $20 worth of cocaine and ten bags of
heroin. After the sale, Adam complained to defendant that they
were supposed to have been given $40 worth of cocaine.
Although the last time defendant saw Adam was on February
27, he continued speaking to him on the phone, and Adam
continued saying they should "get high" together. Even Ellie
called him, asking if he could help Adam buy drugs.
Nonetheless, defendant refused to make additional buys, because
it was "not worth it" since Adam never "got high" with him.
Adam stopped calling towards the end of March. Defendant said
his sole intention in associating with Adam was "[t]o get drugs.
Well, not to get drugs, to get high. Well, to get drugs to get
high."
12 A-3531-08T4
Defendant asserts the following points warrant reversal:
POINT I
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE TRIAL COURT'S ERRONEOUS,
INCOMPLETE AND PREJUDICIAL INSTRUCTION ON
THE LAW OF INTENT TO DISTRIBUTE (Not Raised
Below)
A. THE TRIAL COURT FAILED TO DISTINGUISH
BETWEEN A TRANSFER FROM ONE JOINT POSSESSOR
TO ANOTHER (NO INTENT TO DISTRIBUTE) AND A
TRANSFER TO A THIRD PARTY (INTENT TO
DISTRIBUTE)
B. THE INSTRUCTION PERMITTED THE JURORS TO
FIND THE DEFENDANT GUILTY OF DISTRIBUTION
BASED ON AN ATTEMPTED DISTRIBUTION, BUT THE
COURT FAILED TO INSTRUCT THE JURORS ON THE
LAW OF ATTEMPT
POINT II
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE TRIAL COURT'S FAILURE TO
EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS
OF THE CASE (Not Raised Below)
POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE PROSECUTOR'S USE OF
CHARACTER ASSASSINATION TO PROVE HIS CASE
(Not Raised Below)
POINT IV
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
13 A-3531-08T4
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY PROSECUTORIAL MISCONDUCT (Not
Raised Below)
POINT V
THE DEFENDANT'S RIGHT TO CONFRONTATION, AS
GUARANTEED BY THE SIXTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND ART. I, PAR.
1 OF THE NEW JERSEY CONSTITUTION, AND THE
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS
GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE
VIOLATED BY THE ADMISSION OF ACCUSATIONS
FROM ABSENTEE WITNESSES (Not Raised Below)
POINT VI
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW,
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE IMPROPER ADMISSION OF OTHERCRIME
EVIDENCE WITHOUT A PROPER LIMITING
INSTRUCTION (Partially Raised Below)
A. OTHER-CRIME EVIDENCE WAS IMPROPERLY
ADMITTED
B. THE TRIAL COURT FAILED TO GIVE A PROPER
LIMITING INSTRUCTION (NOT RAISED BELOW)
POINT VII
THE PROSECUTOR IMPROPERLY INTRODUCED THE
DEFENDANT'S POST-ARREST STATEMENT, WHICH WAS
NOT CONSISTENT WITH HIS TRIAL TESTIMONY
POINT VIII
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW,
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED WHEN THE STATE'S LAY WITNESS
RENDERED A HIGHLY PREJUDICIAL EXPERT OPINION
THAT SHOULD HAVE BEEN EXCLUDED (Not Raised
Below)
14 A-3531-08T4
POINT IX
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART. I,
PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS
VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS
(Partially Raised Below)
POINT X
THE SENTENCE IS EXCESSIVE
A. THE TRIAL COURT IMPROPERLY BALANCED THE
AGGRAVATING AND MITIGATING CIRCUMSTANCES
B. THE COURT MADE FINDINGS OF FACT TO
ENHANCE THE SENTENCE
C. THE SENTENCING COURT MAY NOT ORDER
MULTIPLE SENTENCES
I.
We first address defendant's claim that his constitutional
right to confrontation was violated by the admission of hearsay
testimony. The dictates of the Sixth Amendment's Confrontation
Clause require that "[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses
against him. . . ." U.S. Const. amend. VI; see also Crawford v.
Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 1359, 158 L. Ed.
2d 177, 187 (2004). Hearsay is defined as "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." N.J.R.E. 801(c). Generally, hearsay is not
admissible evidence. N.J.R.E. 802. "If evidence is not offered
15 A-3531-08T4
for the truth of the matter asserted, the evidence is not
hearsay and no exception to the hearsay rule is necessary to
introduce that evidence at trial." State v. Long, 173 N.J. 138,
152 (2002).
"[A] police officer may not imply to the jury that he
possesses superior knowledge, outside the record, that
incriminates the defendant." State v. Branch, 182 N.J. 338, 351
(2005). But "the hearsay rule is not violated when a police
officer explains the reason he approached a suspect or went to
the scene of the crime by stating that he did so 'upon
information received.'" State v. Bankston, 63 N.J. 263, 268
(1973) (quoting McCormick, Evidence (2d ed. 1972), § 248, p.
587). This kind of testimony has been held admissible "to show
that the officer was not acting in an arbitrary manner or to
explain his subsequent conduct." Ibid. Nevertheless, "when the
officer becomes more specific by repeating what some other
person told him concerning a crime by the accused the testimony
violates the hearsay rule." Ibid.; see State v. Vandeweaghe,
177 N.J. 229, 240 (2003) (finding that although the State could
"elicit evidence that the police went to [a motel] based upon
information received, it [could] not introduce evidence that the
reason for the dispatch was a report of a man beating a woman")
16 A-3531-08T4
(quoting State v. Vandeweaghe, 351 N.J. Super. 467, 485 (App.
Div. 2002)), appeal dismissed, 177 N.J. 494 (2003).
In this case, Pharo said that the investigation centered
around an individual known as "Todd" because of information
"promulgated through a confidential informant." Pharo explained
that a confidential informant was "an individual . . . that
basically provides law enforcement officials with illegal
information [sic] . . . whether it be drugs. In . . . this
case, it was narcotic related." The prosecutor asked Pharo to
recount the information, and defense counsel objected.
The court then stated "I'm going to permit him to summarize
what direction he took, based on the information. He's not
going to [be] permitted to tell me word-for-word what was said,
however, unless [the State was] going to present that witness."
The prosecutor next asked Pharo if the information received
"concern[ed] making a purchase of heroin from Todd," to which
Pharo replied "[y]es, it did." The question suggests that the
purchase of heroin being referred to occurred in the past; in
other words, to a purchase made by the confidential informant.
Obviously, the confidential informant never testified.
In Branch, supra, there was no physical evidence linking
the defendant to the crime. The State's case rested primarily
on the victims' identification of the defendant. 182 N.J. at
17 A-3531-08T4
346-47. A drawing of the suspect, based on the victim's
description, was made by a state police artist. Id. at 345. As
a result, state police detectives put together a photographic
array of men without facial hair, matching the description given
by the victims. Ibid. Neither victim could identify the
intruder from the photographs. Ibid. The following day, a
second array was shown to the victims, this time consisting of
photos of men who had facial hair. Ibid. Both victims
independently selected the defendant's photograph. Ibid. Both
identified the defendant in court as the perpetrator. Ibid.
The investigating officer testified that "based on
information received," he developed a suspect – namely, the
defendant. Id. at 347. He described showing a photo array to
the victims, including the defendant's picture. Ibid. On
appeal, the defendant contended that the detective's testimony
was inadmissible hearsay, fell within no exception to the
hearsay rule, was violative of his federal and state
constitutional right of confrontation, "and led the jury to the
inescapable conclusion that" some other unknown person "had
implicated him in the crime." Ibid. The Court agreed that
"'[w]hen the logical implication . . . leads the jury to believe
that a non-testifying witness has given the police evidence of
the accused's guilt, the testimony should be disallowed as
18 A-3531-08T4
hearsay.'" Id. at 349 (quoting Bankston, supra, 63 N.J. at
271). An officer's testimony must not suggest that a nontestifying
declarant has provided information implicating
defendant in the crime. Id. at 350.
In this case, Pharo went beyond merely implying that some
unknown person had implicated defendant in drug trafficking.
The officer actually said that he focused his investigation
around an individual named Todd as a result of "information []
promulgated through a confidential informant." Pharo went on to
explain that a confidential informant is a person who provides
law enforcement officials with information about crimes,
including drug offenses, and then responded affirmatively when
asked if the confidential informant had previously bought heroin
from defendant.
Unlike Bankston or Branch, the information was not about a
completed crime which was under investigation. Instead, it
implicated defendant in at least one other drug transaction
before the jury heard the substance of the State's case.
Essentially, on statements made by a confidential informant who
could not be cross-examined, the officer identified defendant as
a person who had committed uncharged prior bad acts precisely
the same as those for which he was standing trial. See Branch,
19 A-3531-08T4
supra, 182 N.J. at 351; Bankston, supra, 63 N.J. at 268. This
was prejudicial error.
II.
We next turn our attention to defendant's contention that
the trial court erred by admitting defendant's post-arrest
statement for impeachment purposes in violation of the
principles found in N.J.R.E. 404(b). That rule provides that,
in general, "evidence of other crimes, wrongs, or acts is not
admissible to prove the disposition of a person in order to show
that such person acted in conformity therewith." Ibid. In the
statement, defendant admitted to making some fifteen drug sales
in the prior six months. N.J.R.E. 404(b) does allow the
evidence to "be admitted for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident when such matters are
relevant to a material issue in dispute." Ibid. The admission
of other-crimes evidence runs the risk, however, "that it will
distract a jury from an independent consideration of the
evidence that bears directly on guilt itself." State v. G.S.,
145 N.J. 460, 468 (1996).
Once a trial court has "carefully balanced the probative
value of [N.J.R.E. 404(b)] evidence against the possible undue
prejudice it may create, the court must instruct the jury on the
20 A-3531-08T4
limited use of the evidence." State v. Cofield, 127 N.J. 328,
340-41 (1992). "[T]he inherently prejudicial nature of [othercrimes]
evidence casts doubt on a jury's ability to follow even
the most precise limiting instruction." State v. Stevens, 115
N.J. 289, 309 (1989). Therefore, the court's instruction
"should be formulated carefully to explain precisely the
permitted and prohibited purposes of the evidence, with
sufficient reference to the factual context of the case to
enable the jury to comprehend and appreciate the fine
distinction to which it is required to adhere." Id. at 304.
Even where the trial court provides a limiting instruction on
the use of other-crimes evidence, plain error will be found
where the instruction does not "narrowly focus the jury's
attention on the specific use of other-crime evidence, but
instead ma[kes] reference only to the generalities of the Rule."
Cofield, supra, 127 N.J. at 341.
The defense's theory was that defendant did not distribute
drugs within the meaning of the statute but, rather, bought
drugs expecting to share them with the confidential informant
and Pharo, and later with Pharo alone. Since the State told
defense counsel pre-trial it was not planning to introduce
defendant's post-arrest statement on direct, no Miranda hearing
21 A-3531-08T4
was conducted. Likewise, no Rule 404(b) hearing was conducted,
presumably for the same reason.
When cross-examining defendant about his post-arrest
statement, the prosecutor elicited the following testimony:
[Q] And do you not state here, "If someone
needed drugs and couldn't get into the
neighborhood, if I was there, I would help
them purchase the drugs and make a little
bit of money off of them, get some drugs
from the dealers myself."
That's what you said; correct?
A That's what I was -- yes.
Q Okay. "It's been going on for six
months." Correct. Isn't that what that
says?
A Yes.
In our view, the statement required some judicial scrutiny out
of the presence of the jury even if presented only as
impeachment material. See Cofield, supra, 127 N.J. at 337-38
(discussing difficulties of "other crime" evidence in the
context of "generic" drug transactions).
The prosecutor then went on to read the following from
defendant's statement:
Okay. "In the last six months,
approximately how many times have you sold
drugs to customers?
"About 15 times."
Defense counsel objected; the jury was excused.
22 A-3531-08T4
Once the jury left the room, defense counsel explained the
cross-examination was "highly improper" because the prosecutor
had effectively presented the jury with a verbatim statement
from defendant that he had sold drugs "approximately fifteen
times." As trial counsel put it, "[t]hat's twelve times more
than he's alleged to have sold them here. That's highly
prejudicial." The State insisted that the statement was
appropriate for impeachment during cross-examination because
defendant had testified that "he was not involved in any way,
shape or form with the distribution of drugs." Unfortunately,
the record does not support the prosecutor's characterization of
defendant's testimony.
Defendant did not deny being involved "in any way, shape or
form" with drug distribution. He asserted only that he
participated in the charged transactions because he planned to
share the drugs with the person he believed to be another drug
user, "Adam," the undercover officer.
Defense counsel continued to argue that the crossexamination
was improper because it established propensity, and
that defendant's statement about other drug deals was simply not
material to the determination of whether he sold drugs to Pharo.
Ultimately, the court agreed a Rule 104 hearing should have been
23 A-3531-08T4
conducted out of the jury's presence prior to the use of the
statement on cross-examination.
The court went on to state nonetheless that the material
was admissible to rebut defendant's theory that he was "merely a
conduit" for the drug purchases of others so as "to get drugs
himself." The court reiterated that, as to one transaction,
defendant insisted he never actually touched either money or
drugs. In another instance, defendant said he had no direct
contact with the drugs, as the transaction was between the
confidential informant and the drug dealer. As to the third
incident, although defendant acknowledged getting the drugs from
Jones, defendant claimed that he was only the middleman giving
the dealer cash and getting the drugs in exchange as a favor to
Adam.
The court therefore issued the following instruction:
THE COURT: Ladies and gentlemen,
there had been an objection to a specific
question that [the prosecutor] went over in
the typed statement that [defendant]
allegedly gave on April 4, 2006, to
Detective Samis.
I have now ruled on that objection. We
were doing the argument outside of your
presence, because it goes into things that
you really shouldn't hear. My decision,
okay? So, you have to live with that,
unfortunately.
I am going to overrule the objection,
and I am going to now restate what the
24 A-3531-08T4
question and the answer was, and tell you
how you can consider that.
The question that [was] asked of the
[d]efendant was, "Isn't it a fact that you
told Detective Samis on the top of Page 6 in
response to this question, 'In the last six
months, approximately how many times have
you sold drugs to customers,' that you
answered, 'About 15 times.'"
I'm going to allow you to hear that,
but the way you are going to use that
testimony is not to consider it to lead you
to any conclusion that the [d]efendant is a
large-scale drug dealer, other than the
three times alleged in this Indictment.
It's not to go to a consideration that he's
a bad man.
You can only consider it for purposes
of credibility in that he told the police
one thing here, in this statement, and now
has said something different in Court,
concerning his involvement in these events.
In these events, he said I was merely a
conduit. I really had no intention to . . .
sell anybody drugs, I had no intention to
make money from anybody doing drugs. I was
assisting someone.
So you can consider that testimony here
in Court, the testimony of the police
officers, what [the prosecutor] has pointed
out in this statement, and in your overall
decision on who's telling the truth and what
happened here.
And, again, in my final charge to you,
I'm going to reread the credibility charge
about the things that you can consider to
assist you in trying to decide what the
truth is, and where the truth lies, and
then, once you establish what the facts are,
applying to the law as I give it to you, on
25 A-3531-08T4
the various charges, and that's how you'll
reach a decision.
So, that is the only way you are to
utilize this particular testimony.
[Emphasis added.]
Defendant's cross-examination continued.
We agree with defendant that use of his statement for
impeachment was erroneous in part because he denied only that
his involvement in these drug transactions were distributions,
and he never discussed his prior history. Even as to the
transactions at issue, he did not deny participation — he only
denied that he obtained the drugs for Adam for any reason other
than to use drugs himself. The jury by virtue of this crossexamination
heard other-crimes evidence which should have been
scrutinized under the lens of N.J.R.E. 404(b) and excluded. It
was highly prejudicial and its probative value was clearly
outweighed by the potential for prejudice.
Given the testimony of the undercover officer and the
surveillance officers, there was little need for the material to
be admitted on cross-examination; in other words, it had little
probative value. See Green v. N.J. Mfrs. Ins. Co., 160 N.J.
480, 495 (1999). The admission of the material conveyed to the
jury the notion that defendant was a drug dealer even prior to
his dealings with the undercover officer. This was not harmless
26 A-3531-08T4
error. See R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38
(1971).
Furthermore, the court's subsequent instruction compounded
the prejudice. The judge instructed the jury not to conclude
defendant was a "large-scale drug dealer, other than the three
times alleged in this indictment." The judge's unwitting
implication was either that defendant was a large-scale drug
dealer in the transactions he engaged in with Pharo or that he
was a small-scale drug dealer.
The scope of cross-examination certainly rests within the
sound discretion of a trial judge, and will not be interfered
with "'unless clear error and prejudice are shown.'" State v.
Messino, 378 N.J. Super. 559, 583 (App. Div.) (quoting State v.
Gaikwad, 349 N.J. Super. 62, 87 (App. Div. 2002)), certif.
denied, 185 N.J. 297 (2005). In light of Pharo's opening salvo
that he obtained defendant's name from a confidential informant
who claimed to have bought heroin from him, the use on crossexamination
of defendant's post-arrest statement was clear
error, and sufficient prejudice resulted to warrant reversal.
III.
Where a defendant does not object to jury instructions at
trial, he or she waives the right to object to the instructions
on appeal, R. 1:7-2, and we "may infer that the instructions
27 A-3531-08T4
were adequate in the context of [the] trial." State v. Brown,
325 N.J. Super. 447, 452 (App. Div. 1999), certif. denied, 163
N.J. 76 (2000). An exception is made on appellate review for
jury instructions issued in error. R. 1:7-2. Should we find
plain error "clearly capable of producing an unjust result," the
conviction will be reversed. R. 2:10-2.
Plain error in jury instructions requires a showing of
"'[l]egal impropriety in the charge prejudicially affecting the
substantial rights of the defendant sufficiently grievous to
justify notice by the reviewing court and to convince the court
that of itself the error possessed a clear capacity to bring
about an unjust result.'" State v. Burns, 192 N.J. 312, 341
(2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)
(citations omitted)). Any alleged error is to be considered in
light of "the totality of the entire charge, not in isolation."
State v. Chapland, 187 N.J. 275, 289 (2006). Courts have
recognized that an error in a jury charge that is "'crucial to
the jury's deliberations on the guilt of a criminal defendant'
is a 'poor candidate[] for rehabilitation' under the plain error
theory." Burns, supra, 192 N.J. at 341 (quoting Jordan, supra,
147 N.J. at 422 (citation omitted)). Alleged errors should also
be evaluated "'in light of the overall strength of the State's
case.'" Ibid. (quoting Chapland, supra, 187 N.J. at 289).
28 A-3531-08T4
"Accurate and understandable jury instructions in criminal
cases are essential to a defendant's right to a fair trial. The
trial court has an absolute duty to instruct the jury on the law
governing the facts of the case." State v. Concepcion, 111 N.J.
373, 379 (1988). The jury charge should also "explain to the
jury how it is to apply the legal principles to the facts."
State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998),
aff'd, 158 N.J. 149 (1999). Nonetheless, a "party is [not]
entitled to have the jury charged in his or her own words; all
that is necessary is that the charge as a whole be accurate."
Jordan, supra, 147 N.J. at 422. A defendant "is only entitled
to an adequate instruction of the law." Pleasant, supra, 313
N.J. Super. at 333.
A failure to instruct the jury as to the State's "burden of
proof on an essential element of a crime [is] presumed to be
reversible error." State v. Vick, 117 N.J. 288, 290 (1989).
This is true "even in the absence of a request by defense
counsel." State v. Federico, 103 N.J. 169, 176 (1986). Where a
jury is not instructed on all of the essential elements of a
crime, a reviewing court should not "speculate about how the
jury would have determined the matter if it had been properly
charged." Id. at 177. Although courts should read model jury
charges in their entirety to the jury, an instruction which
29 A-3531-08T4
differs somewhat from the model charge is sufficient if it
fulfills the same purposes. See State v. R.B., 183 N.J. 308,
325 (2005). Nevertheless, while a reading of the model jury
charge is not determinative, "it is a persuasive argument in
favor of the charge as delivered." State v. Angoy, 329 N.J.
Super. 79, 84 (App. Div.), certif. denied, 165 N.J. 138 (2000).
In this case, defendant's trial strategy was to convince
the jury he had not distributed or intended to distribute
narcotics to Pharo and the confidential informant, but instead
intended to be a mere joint possessor. As defendant notes, in
State v. Lopez, 359 N.J. Super. 222, 234 (App. Div.), certif.
granted in part sub. nom., State v. Garcia, 177 N.J. 576, appeal
dismissed, 178 N.J. 372 (2003), the court held that intent to
distribute "cannot be established on the basis of the sharing of
drugs between or among joint possessors." In light of that
decision, defendant takes issue with the court's "failure to
explain to the jurors the difference between joint possession
and distribution," and "fail[ure] to instruct the jurors that a
transfer (or an intent to transfer) between joint possessors
cannot be used as a factual predicate to find distribution or
intent to distribute."
Defendant asserts that the court's instruction "actually
informed jurors that any transfer of CDS from the defendant to
30 A-3531-08T4
another person is distribution." In accord with the model jury
charge, the court stated that to "[d]istribute means [the]
transfer[,] actual, constructive or attempted, from one person
to another, of a controlled dangerous substance." Defendant
argues this error in the jury charge resulted in prejudice
because the theory of joint possession was his defense to
distribution, and the jury was not instructed as to how to
distinguish between these concepts, resulting in his conviction.
"[P]ossession of a controlled substance may be shared with
others and . . . may be established by evidence of actual,
physical possession or on the basis of the power to exercise
control over the substance." United States v. Swiderski, 548
F.2d 445, 449 n.2 (2d Cir. 1977). "[W]here two individuals
simultaneously and jointly acquire possession of a drug for
their own use, intending only to share it together, their only
crime is . . . simple joint possession, without any intent to
distribute the drug further." Id. at 450.
To determine whether there was an actual distribution as
opposed to mere joint possession, a court should consider the
totality of the circumstances, including
whether the relationship of the parties is
commercial or personal, the statements and
conduct of the parties, the degree of
control exercised by one over the other,
whether the parties traveled and purchased
the drugs together, the quantity of the
31 A-3531-08T4
drugs involved, and whether one party had
sole possession of the controlled dangerous
substance for any significant length of
time.
[State v. Morrison, 188 N.J. 2, 19 (2006)
(citing Swiderski, supra, 548 F.2d at 450).]
Defendant contends that his testimony at trial established
that this case involved mere joint possession based on the calls
from the confidential informant and from Pharo asking him if he
wanted to "get high." He asserts he agreed each time because he
was a drug addict wanting to share someone else's drugs. Also,
defendant claimed that he stopped talking to Pharo because Pharo
never wanted to use narcotics with him. He came into contact
with Pharo solely because of his prior relationship with the
confidential informant, with whom he had shared drugs in the
past.
In certain situations, jury instructions must be "molded"
or "tailored" to the facts adduced at trial. State v. Robinson,
165 N.J. 32, 42 (2000). This requirement exists where "the
statement of relevant law, when divorced from the facts, was
potentially confusing or misleading to the jury." Ibid.; see
also State v. Gartland, 149 N.J. 456, 475-77 (1997) (requiring
tailored instruction on battered woman's right to self-defense
and duty to retreat); Concepcion, supra, 111 N.J. at 380-81
(requiring tailored instruction on recklessness). Although
32 A-3531-08T4
model jury charges are often useful, "[a]n instruction that is
appropriate in one case may not be sufficient for another case.
Ordinarily, the better practice is to mold the instruction in a
manner that explains the law to the jury in the context of the
material facts of the case." Concepcion, supra, 111 N.J. at
379. Indeed, even where defense counsel does not make such a
request, a defendant is at least "entitled to a charge
consistent with his version of the facts" that does not simply
"track[] the prosecution's theory of the case." State v.
Martin, 119 N.J. 2, 16 (1990).
Nevertheless, "'not every failure [to mold the instruction
to the facts of the case] is fatal.'" State v. Tierney, 356
N.J. Super. 468, 482 (App. Div.) (quoting State v. Bilek, 308
N.J. Super. 1, 10 (App. Div. 1998)), certif. denied, 176 N.J. 72
(2003). Where the facts are neither too complex nor confusing,
a court does not necessarily have to provide an intricate
discussion of them in the jury charge. State v. Morton, 155
N.J. 383, 422 (1998); see also State v. White, 326 N.J. Super.
304, 315 (App. Div. 1999) (holding that although a more precise
molding of the jury instruction to the facts would have been
preferable, the charge was sufficient because "as a whole, [it]
was consistent with the factual theories advanced by the
parties"), certif. denied, 163 N.J. 397 (2000).
33 A-3531-08T4
Defendant contends that the trial court should have molded
the law to the facts of the case. Giving the model jury charge
under these circumstances was "confusing and misleading." He
asserts the jury charge suggested that even a transfer among
joint possessors could support a conviction, and that the jury
was left to its own devices to determine whether defendant had
"attempted" to distribute CDS. Defendant also argues the court
should have "explained to the jurors that if they found that the
defendant shared the drugs, the jury could not find the
defendant guilty of distribution or intent to distribute based
on that sharing." Because of the court's failure to do this,
defendant concludes that his conviction should be overturned and
the matter remanded for a new trial.
Certainly, molding the instructions to offer the jury some
guidance explaining the distinction defendant was attempting to
establish would have been preferable. While this error in
isolation might not require reversal, in light of the other
errors already noted in this opinion, it is part of the
accumulation of errors that warrant reversal. Should defendant
choose to advance this defense theory on a retrial, an
appropriate instruction should be fashioned by the trial judge
distinguishing between distribution and joint possession.
34 A-3531-08T4
IV.
In our view, the errors that were committed in this case
prejudiced the outcome. At a minimum, the aggregation of errors
warrants a new trial. Because defendant's guilty plea to
certain persons not to possess was entered as part and parcel of
the resolution of the entire indictment, that plea is also
vacated. We will not reach defendant's remaining claims of
error.
Reversed and remanded.
