On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, and Garibaldi. For reversal -- Justices Clifford and Stein. Stein, Justice, dissenting. Justice Clifford joins in this opinion.
The defendant, Jose Palacio, appeals his conviction for possession of a large quantity of cocaine and for possession with intent to distribute. He alleges that these convictions, predicated on the theory of constructive possession, were not supported by sufficient evidence. We find, however, that the evidence was sufficient to support the jury's verdict, and so affirm defendant's conviction.
On July 26, 1984, defendant, Jose Palacio, was a passenger in a car owned and operated by Juan Londono. At approximately
7:20 p.m., New Jersey State Trooper Andrew Mastella stopped the vehicle that Palacio and Londono were in for speeding on U.S. Route 40 in Pennsville Township, New Jersey. While Londono was attempting to locate his driver's license and registration, Mastella observed a piece of paper in his wallet with figures written on it: $25,500 - $5,000 = $20,500. Mastella, based on his experience in law enforcement, determined that this piece of paper was typical of drug transaction slips carried by narcotics dealers.
Mastella attempted to question Londono about the figures but Londono did not respond and became "very nervous." The trooper then walked around to the passenger side of the vehicle and asked the defendant, Palacio, for identification. In response, he produced a valid Florida driver's license.
After Palacio produced his driver's license, Londono exited the vehicle, opened the trunk, and invited the trooper to search. Mastella declined, and then told Londono and Palacio to step out to the passenger side of the car. The trooper asked additional questions about the slip of paper. The defendant did not respond; instead he turned and walked away. During this time, Mastella testified, defendant was sweating, moving in circles, and appeared, in Mastella's opinion, to be "overly nervous."
Two other state troopers, Officers Don Phillipi and Thomas Gilbert, arrived on the scene to assist Mastella. Mastella obtained Londono's written consent to search the car and began to do so. Trooper Gilbert requested that Londono and Palacio move from the front of the car to the guardrail along the highway. In the meantime, defendant, as well as Londono, kept looking at the car, focusing on Mastella and the rear of the car during the search.
Trooper Mastella discovered a secret compartment behind the back seat. The compartment contained fifteen pounds of cocaine, packaged in four Tupperware containers and two cardboard boxes, all wrapped in brown tape. The retail value of
this cocaine was just under one million dollars, $960,000, and it was 79.3% pure. The State Police then arrested Londono and Palacio, who were both released on bail following the arrest.
A Salem County Grand Jury indicted both Londono and Palacio for possession of a controlled dangerous substance, cocaine, contrary to the provisions of N.J.S.A. 24:21-20(a)(1), and possession of a controlled dangerous substance, cocaine, with intent to distribute, contrary to the provisions of N.J.S.A. 24:21-19(a)(1).
The cases having been severed, defendant was tried separately. Defense counsel made a pretrial motion for admission of evidence concerning Londono's flight from the State. The trial court denied the motion under Evidence Rule 4, finding that such evidence could only confuse the jury's consideration of the issue of Palacio's guilt.
At trial, the State established the aforementioned facts relating to the stop of the motor vehicle, the discovery of the cocaine, and the arrest of the car's occupants. It brought out and stressed in particular the defendant's presence in a car containing almost one million dollars worth of cocaine and his furtive conduct during the stop and search. This conduct was said to include his refusal to answer any questions relating to the incriminating slip of paper, his heightened nervousness, and his continuing, close attention to the ongoing search of the car, in particular to the area of the car in which the drugs were secreted and eventually found. In addition, the State, through the testimony of the officers at the scene, established that Londono and Palacio conversed between themselves in a way apparently intended to keep the content of their conversations concealed; they spoke together in Spanish even though there was no indication that they could not understand or converse in English, suggesting, according to the State, that the defendants sought to conceal their conversation. At the end of the State's case, defendant moved for a directed verdict of acquittal, which the trial court denied, reasoning that the evidence could be
sufficient to bring the question of constructive possession to the jury.
The defendant presented only one witness. Christina Piedrahita, a friend of defendant's and fiancee of defendant's brother-in-law, who testified to Palacio's good character. She also testified that defendant had some understanding of the language, although he did not speak English well.
After summations, the trial court instructed the jury, describing the elements of the offenses that Palacio was charged with as follows:
One, that exhibits S-4 through S-9 are cocaine; and two, that the defendant, Jose Palacio, knew that these exhibits contained cocaine; and three, that Jose Palacio possessed or obtained the cocaine; and four, that Jose Palacio intended to possess the cocaine.
The trial court then explained the difference between actual and constructive possession, stating correctly that both types of possession required a showing that defendant consciously and knowingly possessed the cocaine, i.e., intentional dominion and control. The trial court defined constructive possession as being "aware of the presence of the property and . . . able to exercise intentional control over it" even though not in actual physical possession. The trial court continued, instructing the jury on the State's claim that Palacio and Londono jointly possessed the cocaine:
The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, the possession is ...