For affirmance as modified -- Chief Justice Weintraub and Justices Jacobs, Proctor, Schettino and Haneman. For reversal -- Justices Francis and Hall. The opinion of the court was delivered by Proctor, J. Francis, J. (dissenting). Justice Hall joins in this dissent.
The defendant, Stephen Douglas Ward, was found guilty by a jury of possessing marihuana in violation of N.J.S.A. 24:18-4, and was sentenced to serve a State Prison term of two to three years and fined $100. He appealed his conviction and sentence to the Appellate Division. That court, in an unreported opinion, affirmed the conviction but expressed its view that a sentence to the reformatory rather than State Prison would have been more appropriate. It did not pursue the point, however, since defendant had recently been transferred to the Yardville Youth and Correctional Center and was to be released in a month or two. We granted defendant's petition for certification. 54 N.J. 581 (1969).
The following facts are relevant to this appeal. About 8:00 o'clock in the evening of June 7, 1968, the police, pursuant to a warrant, searched the defendant's home where he was living with his mother and his brothers and sisters. The search uncovered a small package of marihuana in defendant's bureau drawer, a pipe stem containing marihuana in defendant's desk drawer, and the remnant of a marihuana cigarette in a room adjoining the defendant's. The total value of the seized drug was said to be about $2.50. The defendant denied all knowledge of the cigarette and the package. However, he admitted that he placed the pipe stem in his desk, and that the stem was used to smoke marihuana. His explanation was that the stem was owned by a friend, that the friend brought it to the defendant's house to demonstrate its use, and that the friend left it there. Later the defendant put it away in his desk drawer and forgot about it. On his direct examination he admitted that he had occasionally smoked marihuana in the past, but denied that he had ever bought or sold any. He explained
that any marihuana he had smoked had been given to him.
On this appeal, defendant first urges that he was denied a unanimous jury verdict. When the jury returned, the foreman announced a verdict of "Guilty as charged." Upon being polled, the first eight jurors stated "Guilty as charged." However, the ninth juror stated "Guilty of possession of pipe stem." The last three jurors repeated the verdict "Guilty as charged." Before the Appellate Division, the defendant contended that the ninth juror's verdict responded neither to the indictment nor to the judge's instructions to the jury and was thus fatally defective. The Appellate Division rejected the argument holding that when the verdict was considered in light of the testimony, "it constituted a statement by [the ninth juror] that she found the charge of defendant's illegal possession of narcotics proven as far as the marijuana in the pipe stem was concerned." Before us, defendant argues that the Appellate Division's holding was reached by an impermissible "molding" of the verdict. We disagree. There is no doubt that a finding that the defendant knowingly possessed one of the three items charged would be sufficient to sustain a verdict of guilt. See State v. Huggins, 84 N.J.L. 254, 258 (E. & A. 1913); State v. Shelbrick, 33 N.J. Super. 7, 10 (App. Div. 1954). The only question is whether the ninth juror's answer on the poll was "sufficiently certain and specific to identify the crime and be responsive to the issue raised by the indictment and the plea." State v. Weber, 127 N.J.L. 274, 278 (Sup. Ct. 1941). We think it was. The jury was charged that for the defendant to be guilty of possession of marihuana, he must have "intentional control" of the substance "accompanied by knowledge of its character." Thus, a verdict of guilty would require a finding by the jury that defendant was aware the pipe stem contained marihuana. It is common knowledge that persons are not "guilty" of merely possessing pipe stems. The ninth juror undoubtedly would have voted for acquittal if she believed either that the pipe stem did not contain marihuana or
that the defendant did not know it contained the substance. But she did not vote for acquittal, and her pronouncement of "Guilty of possession of pipe stem" is sufficiently responsive to the charge. We add that our examination of the record discloses no basis for concluding that defendant was unaware of the marihuana found in the pipe stem. He was no stranger to marihuana. He was fully aware of what it looked like and the methods in which it was used. In fact, he admitted that the pipe stem for which he was convicted had been the subject of instructions on one of these methods at his home. While we believe that the trial judge should have sought clarification from the ninth juror, the absence of any action by defense counsel indicates to us that no one doubted the import of her response. Cf. State v. Johnson, 31 N.J. 489, 511 (1960).
Defendant's next contention is that the trial judge made impermissible comments to the jury which denied him his right to a fair trial by an impartial jury. Defendant concedes it is well established in this state that a trial judge may comment on the evidence as long as he leaves to the jury the ultimate determination of the facts and a rendering of the verdict on the facts as it finds them. State v. Mayberry, 52 N.J. 413, 439-440 (1968); State v. Laws, 50 N.J. 159, 177 (1967). In the present case the trial judge, in the course of his charge, made the following remarks:
Now, how do you decide a case? You decide it from the sworn testimony as you heard it and the law as the court gave it to you.
Now, this case should not be a troublesome one, because it's a classic case for a jury. I shall not endeavor to recall to you my recollection of what the witness said, because I observed you listened attentively to all the state's witnesses and you listened attentively to the defendant's.
Now, you will have to determine from the witnesses and that which they said and the law as the court gives it to you, to determine whether this defendant is guilty or not guilty, and I again reiterate, you shouldn't have any trouble whatsoever. (emphasis added)
Defendant contends that the italicized comments conveyed to the jury the judge's desire for a quick verdict of guilty. In other words, he argues that the remarks constituted an opinion by the trial judge of the defendant's guilt.
Our rule on the trial judge's right to comment on the evidence is a broad one. We have gone so far as to say: "[i]t is, of course, no ground for reversal that a trial judge, in cases where he thinks it is required for the promotion of justice, expresses his views on the weight and value of evidence, even to the extent of an opinion as to guilt, so long as he plainly leaves the sole determination of all factual issues to the jury, * * *" State v. Begyn, 34 N.J. 35, 53 (1961). Whether a judge's comment is tolerable depends upon the facts of every case. Ordinarily it is unnecessary for a court to enter into that area. Here it is enough to say that we do not believe that the judge was restricting the freedom of the jury or even meant to indicate an opinion that the defendant was guilty. Taken in context, the remarks in the charge conveyed to the jury the judge's opinion that the issue before it was a simple one. It was not disputed that marihuana was found by the police in the defendant's home. The basic issue for the jury was whether he knowingly possessed the substance. Reading the charge in its entirety, we find that it was not misleading. The judge was merely instructing a jury of laymen that the issue was not complicated and wouldn't be difficult to resolve one way or the other. Moreover, the trial judge specifically instructed the jury that it was the sole finder of the facts. Under these circumstances we find no error.
Finally, defendant urges that his sentence was excessive. As previously stated, the trial judge sentenced him to State Prison for a term of from two to three years and fined him $100. N.J.S.A. 24:18-47(c)(1) provides that the punishment for the illegal possession of narcotics shall be "for a first offense, by a fine not exceeding $2,000.00 and by imprisonment, with hard labor, for a term of not
less than 2 years nor more than 15 years." However, this provision is qualified by N.J.S.A. 2A:168-1 which deals generally with the power of courts to suspend sentences "[w]hen it shall appear that the best interests of the public as well as of the defendant will be subserved thereby, * * *" That statute contains a provision which deals explicitly with narcotics convictions:
"The provisions of this section shall not permit the suspension of the imposition or execution of any sentence and the placing of the defendant on probation after conviction or after a plea of guilty or non vult for violation of any provision of chapter eighteen of Title 24 of the Revised Statutes except in the case of a first offender." (emphasis added)
Since it is conceded that defendant was a first offender, the trial court had the discretion to suspend sentence. Defendant urges that the trial judge misused his discretion in not following that course. It is clear that this Court has the power to review any exercise of the trial court's discretion, including the power to revise a prison sentence where it is manifestly excessive, even though within statutory limits. State v. Bess, 53 N.J. 10, 18-19 (1968). After reviewing the record and the probation report, we think the sentence was entirely too harsh.
At the time of the offense defendant was eighteen years old. He is from a home of eight children. His father does not live at home and his mother supports the family from her earnings as a school teacher. Stephen is brighter than average (I.Q. 124) and was a high school graduate at the time of his arrest. To help support his family he held down two part time jobs while going to college at night. He has no previous criminal record. He admitted having smoked marihuana, but this is his first conviction. It is true that Stephen's offense was committed despite some prewarning, since prior to his arrest there had been an unsuccessful search of his home under a duly issued warrant. And it is also true that the presentence report indicates that there had been "pot parties" at the defendant's home attended
by young boys and girls. The sentence was imposed prior to State v. Kunz, 55 N.J. 128 (1969) calling for the disclosure of prejudicial material in the presentence report, and apparently the defendant was never given a chance to be heard on that material. We do not know whether the allegations in the report figured in the trial court's sentence. The prosecutor thought that they did not. In any event, if their truth is assumed, still there is no suggestion that the defendant was a seller or inducer. We think that a two to three year unsuspended sentence in State Prison for a first offender, whose possession is incidental to his own use, is far too severe.
We granted certification in this case primarily to establish guidelines for the sentencing of first offenders who were found guilty of possessing marihuana for their own use. We cannot escape the unhappy fact that our youth have been involved with marihuana in disturbing numbers. That this is so does not palliate the wrong. Nor should we be thought to encourage or condone such conduct. The statute should and will be enforced. But it remains the policy of the law to reform the youthful offender. Sentencing judges should direct the punishments they impose to the goal of reformation. Too severe a punishment will do little towards advancing this goal. Incarceration is a traumatic experience for anyone. The effect must be particularly devastating upon young persons such as the defendant here. A sentence of two to three years in State Prison in a case like this will probably be more detrimental to both the offender and society than some other discipline. Even a sentence to a reformatory as suggested by the Appellate Division may be more punitive than is required. We think that generally a suspended sentence with an appropriate term of probation is sufficient penalty for a person who is convicted for the first time of possessing marihuana for his own use. Probation is designed to aid both society and the offender by affording opportunity for correction under suitable supervision. It is hoped that during the probation
the offender will establish himself as a law-abiding member of the public and thus avoid the need for confinement with its possibly adverse consequences. See Adamo v. McCorkle, 13 N.J. 561, 563 (1953).
Finally, where appropriate under the facts of a case, the offender might be dealt with as a "user" under the disorderly persons statute, N.J.S.A. 2A:170-8, rather than as a "possessor" under the criminal act, N.J.S.A. 24:18-4, in order that the conviction will not result in a criminal record. See State v. Reed, 34 N.J. 554, 573 (1961).
In concluding that sentences for first offenders should be suspended, we believe we are in keeping with the legislative will. When the Legislature adopted more stringent narcotics penalties in 1952, it explicitly left open the possibility of suspended sentences for first offenders. N.J.S.A. 2A:168-1, supra; L. 1952, c. 267. In doing so it acted on the basis of a Legislative Commission Report which evinced a policy that first offenders who are essentially users not be incarcerated. This recommendation dealt not only with marihuana offenders, but with users of hard drugs as well. See Report of Study and Recommendations of the Legislative Commission to Study Narcotics at 22 (1952).*fn1 In the
present case the defendant had been released on parole at the time of the oral argument. For purposes of his record, however, we amend defendant's sentence by directing that it be suspended. We are not adding a provision of probation because of the time period which has already expired..
Since the argument in this case, a new statute has been enacted which deals comprehensively with the problems of drugs. L. 1970, c. 226, approved by Governor Cahill October 19, 1970. The statute lowers the penalties for possessing a small quantity of marihuana and reduces the category of the offense to that of a disorderly person. The statute under which the defendant was tried will be repealed 90 days from the date of the enactment of the statute (§ 48), but the repealer does not abate past or ...