For affirmance -- Chief Justice Hughes, Justices Sullivan and Clifford and Judge Kolovsky. For reversal -- Justice Pashman. The opinion of the Court was delivered by Clifford, J. Pashman, J. (dissenting).
In State v. Gregory, 66 N.J. 510 (1975), this Court recently focused on the problem of procedural joinder of multiple offenses based on the same conduct or arising from the same criminal episode -- in that case (1) possession with intent to distribute and (2) distribution of heroin. We held that under the situation there presented, considerations of fundamental fairness called for disposition by a single trial. Justice Jacobs' opinion for a unanimous Court made passing reference, in 66 N.J. at 522, to a somewhat related issue now squarely presented, namely, under what circumstances possession and distribution (here, again, of heroin) may be viewed as separate offenses.
Broadly stated, this case and its companion cases of State v. Ruiz, A-56, State v. Williams, A-57, 68 N.J. 54 (both argued with the instant matter) and State v. Jester, A-64, 68 N.J. 87, all decided this day, involve the asserted merger of related violations of New Jersey's Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 et seq.,*fn1 arising from a single multi-count indictment.
The principles governing consideration of all four cases will be developed in this opinion and applied to the factual situations in this and the companion cases.
Three indictments charged Davis with criminal violations on three separate dates. Each indictment, containing two counts, accused defendant of unlawful possession (Count 1) and unlawful sale (Count 2) of a narcotic drug (heroin). A jury trial resulted in convictions on all six counts. In March of 1972 defendant was sentenced on each count to concurrent 12-to 15-year terms in New Jersey State Prison.*fn2
While his appeal from these convictions and sentences was pending, Davis moved before the trial court, pursuant to R. 3:21-10(a), for transfer from State Prison to a narcotics treatment center. The original sentences and the denial of that motion were affirmed by the Appellate Division. A petition for certification raising both issues anew was granted, as was a supplemental letter petition raising for the first time the question of whether there should not be merger of the possession counts with those involving sale.
The convictions were founded largely upon the work of one Detective Teza, an undercover agent for the New Jersey State Police. Defendant sold him heroin on three different occasions in Trenton during a five-week period in 1969. At the initial meeting the undercover detective arrived by car with an informer who was familiar with the neighborhood and its inhabitants. His function was to introduce Teza and, by his presence, reduce suspicion. While Teza and the informer were seated in the parked automobile, they encountered defendant on the sidewalk and struck up a conversation. After a few moments Davis entered the vehicle. While seated in the back seat defendant stated that he had "pound bags" (i.e., glassine bags containing one-tenth of a gram of heroin) for sale. Then and during the next two meetings -- each conducted under circumstances similar to the first but without the presence of the informer -- Detective Teza purchased for $10 a single "pound bag." No additional proof was adduced relating to possession of heroin other than that amount sold the agent. Nor was the alleged possession more specifically delineated in the indictment than defendant "unlawfully did possess and have under his control * * * heroin."
There is posed, in this and the companion cases, a preliminary question: whether indictment and conviction in a single proceeding for either possession of or possession with intent to distribute a controlled dangerous substance, such as heroin, and distribution of the same controlled dangerous substance, comes within the ambit of merger incorporated in the double jeopardy provisions of the state and federal constitutions,*fn3 or rather is governed by considerations of merger in conjunction with due process. While the double jeopardy bar typically falls upon repeated piecemeal prosecution, here we are confronted in a single-trial context with asserted multiple punishment arising from convictions based on a multi-count indictment with each count therein allegedly setting forth the same offense.
The issue thus projected, of whether the double jeopardy clauses may or should be expanded beyond their traditional scope, is a stimulating one and has an undeniable intellectual attraction; but it need not be pursued here inasmuch as the members of the Court who vote with this opinion in this the "lead" case are not of one mind on the question of whether it is double jeopardy or substantive due process that ...