On certification to the Superior Court, Appellate Division, whose opinion is reported at 213 N.J. Super. 576 (1986).
For reversal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock and O'Hern. For affirmance -- Justices Garibaldi and Stein. The opinion of the Court was delivered by O'hern, J. Stein, J., dissenting. Garibaldi, J., joins in this opinion.
The defendant stands convicted of conspiracy to distribute cocaine. The central question in his appeal is whether an appellate court may use that conspiracy conviction as the theory for sustaining a substantive conviction of possession of the drugs without submitting that theory to the jury. The case concerns the criminal liability of defendant as the alleged leader of an operation that transported cocaine from Florida to New York. New Jersey police seized the contraband pursuant to a lawful search of a car traveling on the New Jersey Turnpike. Defendant, who was in New York at the time of these events, was charged with criminal possession of the cocaine and with conspiracy to distribute this controlled dangerous substance, and/or to possess it with the intent to distribute. The prosecuting authority had at least three available theories to establish defendant's liability for criminal possession of the narcotics: (I) liability as a principal under the theory of constructive possession; (II) vicarious liability as an accomplice under N.J.S.A. 2C:2-6b(3) for the conduct of the actual possessors; or (III) vicarious liability as a conspirator under N.J.S.A. 2C:2-6b(4) for the conduct of the actual possessors.
At trial only the theory of constructive possession of the drugs was presented to the jury to sustain the criminal possession charges against the defendant. There were actually four counts of criminal possession of the drugs: for each of two grades of the narcotics involved, defendant was charged with a count of possession and a count of possession with intent to distribute. The fifth count involved a conspiracy among defendant, the occupants of the car, and others. However, no instruction was given that defendant could be held substantively liable for the conduct of the others under N.J.S.A. 2C:2-6b(3) or (4) as an accomplice or co-conspirator.
On appeal the defendant challenged the constructive possession conviction, asserting that he had not the requisite dominion or control of the drugs to sustain that theory of guilt. The
Appellate Division declined to resolve that issue. However, the Appellate Division affirmed the conviction for possession on another theory. The court, noting the jury's conviction of defendant for conspiracy, concluded that the evidence presented at trial would have supported a judgment of conviction under the theory that defendant was vicariously liable as a conspirator for the cocaine possession, although no charge was given on that theory.
We granted certification, 107 N.J. 635 (1987), to consider the question whether an appellate court may sustain an otherwise invalid criminal conviction on the basis of a theory of criminal liability not presented to the jury. We hold that a jury in a criminal case must be appropriately instructed on the theory of liability that is advanced in support of a criminal conviction; absent such instruction, a conviction cannot stand. Accordingly, we reverse the judgment of the Appellate Division on that aspect of the case. We remand the case to the Law Division for resentencing on the conspiracy conviction.
The underlying factual dispute in this case is set forth in the reported opinion below. State v. Schmidt, 213 N.J. Super. 576 (App.Div.1986). Defendant and his wife lived in Tampa, Florida. According to the State, defendant had offered Adrian Athan $1,500 to transport a package of cocaine from Tampa to a Martin Kahn on Long Island, who allegedly was then to resell the narcotics for defendant. On Athan's acceptance, defendant supplied Athan with a half-pound of cocaine, which Athan put in the glove compartment of a car that defendant's wife had rented for the journey. Athan was also given Kahn's Long Island address and telephone number and was instructed to call defendant at that number when Athan arrived on Long Island.
Athan never reached Long Island. The day after Athan allegedly received the narcotics, a State Trooper stopped his car for speeding on the New Jersey Turnpike. After noticing an
open beer can and two cartons of untaxed cigarettes in the car, the police searched Athan and found a small amount of marijuana on his person. Athan and his passenger, Whittaker, then gave the trooper the key to the car's glove compartment, which they said had been locked since they picked up the car; the trooper discovered cocaine in the car's glove compartment. Athan and his passenger were arrested for possession of cocaine.
Athan claimed at first that he did not know that there were drugs in the glove compartment; he said that Schmidt had told him to keep it locked. Athan agreed to cooperate with the police in their investigation of Schmidt. At their instruction he telephoned defendant at Kahn's residence and told defendant that car problems had forced him to stop the car at a service area off the Turnpike. Defendant suggested calling the car rental agency, and apparently attempted, unsuccessfully, to do so. Defendant then called back, told Athan not to contact the highway patrol, and said that he would drive over to New Jersey to help Athan.
When defendant arrived at the service area with Kahn, defendant and Athan removed the luggage from the trunk of the rental car. Nearby troopers then identified themselves and arrested defendant and Kahn. The State charged defendant, his wife, Kahn, Whittaker, and Athan with possession of cocaine, possession of cocaine with the intent to distribute, and conspiracy to distribute cocaine and/or possess cocaine with the intent to distribute. Prior to trial, Athan made a plea agreement with a probationary sentence contingent on his testifying against Schmidt. He then provided the police with the account that he expanded on at trial.
The defendant claimed that in the course of his business as a motor vehicle reconditioner he had hired Athan and Whittaker to drive to New York. The two men were to drop off the rental car there and drive two vans back to Florida for him. Defendant stated that his wife had rented the car because as an airline
employee she could obtain a discount; he also asserted that he flew to New York free on his wife's airline. He denied any knowledge of Athan's possession of the drugs.
The jury convicted defendant of the criminal possession counts and the conspiracy charge. The trial court merged all counts into one count for possession of a pure free base controlled dangerous substance with intent to distribute; the court sentenced Schmidt to a term of twenty years with a minimum term of parole ineligibility of five years. In addition, defendant was ordered to pay a fine of $5,000 and a $25 penalty to the Violent Crimes Compensation Board. The Appellate Division affirmed the judgment. 213 N.J. Super. 576.
Preliminarily, we shall address the State's contention that the petit jury need not be instructed on the theory of vicarious conspiratorial liability. This argument arises from the principles of State v. LeFurge, 101 N.J. 404 (1986), where we held that to sustain a conviction for conspiracy it is not necessary that a grand jury indictment have contained such a charge.
However, the State's argument misreads LeFurge. That case was concerned with the procedural fairness of presenting to a petit jury a theory of vicarious liability that had not been made explicit in the indictment charging the defendant with the substantive crime. It has never been thought necessary specifically to charge an individual as an aider and abettor in order to establish his substantive liability as an accomplice, United States v. Batimana, 623 F.2d 1366, 1370 n. 3 (9th Cir.1980), cert. denied, 449 U.S. 1038, 101 S. Ct. 617, 66 L. Ed. 2d 500 (citing United States v. Roselli, 432 F.2d 879, 895 n. 27 (9th Cir.1970), cert. denied, 401 U.S. 924, 91 S. Ct. 883, 27 L. Ed. 2d 828 (1971)). Thus, in LeFurge we thought it not necessary to charge defendant with conspiracy in order to establish vicarious liability as a conspirator. But we never suggested or intended that a defendant could be found vicariously liable as an accomplice
or co-conspirator in the absence of such a determination by a jury. "[W]e cannot affirm a criminal conviction on the basis of a theory not presented to the jury." Chiarella v. United States, 445 U.S. 222, 236, 100 S. Ct. 1108, 1119, 63 L. Ed. 2d 348, 362 (1980). To do so would trench on a defendant's sixth amendment guarantee, incorporated as well in our State Constitution, of trial by jury.
The issue presented has arisen in federal prosecutions for illegal drug possession. In United States v. Rodriguez, 831 F.2d 162 (7th Cir.1987), cert. denied, U.S. , 108 S. Ct. 1234, 99 L. Ed. 2d 433 (1988), the government had, as here, at least three potential theories to support defendant's conviction of narcotics possession: (I) constructive possession, (II) aiding and abetting, and (III) vicarious co-conspirator liability. Rodriguez, supra, 831 F.2d at 168. The government urged the third theory to sustain that conviction. "However, the government explicitly conceded at oral argument that it never offered (and the district court never gave) a Pinkerton co-conspirator instruction. This preclude[d] the government from defending the verdict on this ground." Ibid. (footnote omitted). (Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S. Ct. 766, 769, 93 L. Ed. 919, 925 (1949), summarized Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946), as holding that "a conspirator could be held guilty of the substantive offense even though he did no more than join the conspiracy, provided that the substantive offense was committed in furtherance of the conspiracy and as a part of it. A verdict on that theory requires submission of those fact issues to the jury." Such elements of the jury charge are now known as Pinkerton instructions.) See also United States v. Disla, 805 F.2d 1340, 1350 (9th Cir.1986) (failure to give Pinkerton instruction "precludes our consideration of this theory as a ground for affirmance."). But see Nye & Nissen v. United States, supra, 336 U.S. 613, 620, 69 S. Ct. 766, 770, 93 L. Ed. 919, 925-26 (despite failure to submit Pinkerton theory of conspiracy liability to jury, conviction for substantive offenses upheld since jury was
correctly charged on broader aider and abettor theory of liability).
Such holdings accord with our view of the "composite guarantee which constitutes the right to trial by jury in a criminal case." State v. Ingenito, 87 N.J. 204, 211 (1981). "At the heart of the guarantee of a fair trial [are] the 'jury's impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions * * *.'" State v. Collier, 90 N.J. 117, 122 (1982) (quoting State v. Simon, 79 N.J. 191, 206 (1979)). It is "the nondelegable and nonremovable responsibility of the jury to decide" the question of guilt or innocence in accordance with those instructions. Ingenito, supra, 87 N.J. at 211. The "'question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury * * *.'" Ibid. (quoting Bollenbach v. United States, 326 U.S. 607, 614, 66 S. Ct. 402, 406, 90 L. Ed. 350, 355 (1946)). To this we would add only that the question is not whether a theory of guilt may be spelt out of a record, but whether guilt on that theory has been found by a jury. Chiarella v. United States, supra, 445 U.S. 222, 100 S. Ct. 1108, 63 L. Ed. 2d 348.
In this case, the jury was not charged that it could find the defendant guilty of the possession counts on the basis of vicarious liability as an accomplice or as a conspirator. See State v. Weeks, 107 N.J. 396, 403 (1987) (one who aids or assists another in commission of crime and shares in intent can be found liable for the actor's crime); State v. LeFurge, supra, 101 N.J. 404 (conspirator who did not possess stolen goods himself nonetheless liable for their possession). The charge on conspiracy related only to the substantive crime itself and, as noted, embraced as well conspiracy with ...