On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Antell, O'Brien and Keefe. The opinion of the court was delivered by Keefe, J.A.D.
The issue to be decided on this appeal is whether the jury's acquittal of defendant Willard Burnett on the predicate offenses of theft, possession of cocaine, and possession of cocaine with intent to distribute it, while convicting defendant on the compound offense of official misconduct, requires the conviction to be vacated because of inconsistency.
Defendant Willard Burnett, a Trenton police officer, was tried on three counts of official misconduct allegedly occurring on April 8, 12 and 13, 1987 (N.J.S.A. 2C:30-2a and b), two counts of theft by unlawful taking occurring on April 8 and 13, 1987 (N.J.S.A. 2C:20-3a & 2C:2-6), one count of possession of cocaine occurring on April 13, 1987 (N.J.S.A. 24:21-20a(1) and 2C:2-6), and one count of possession of cocaine with intent to distribute it occurring on April 13, 1987 (N.J.S.A. 24:21-19a(1) and 2C:2-6.) A jury found him guilty of misconduct in office on April 13, 1987 and acquitted him on all other counts.
The trial judge granted defendant's motion for judgment of acquittal n.o.v. finding that defendant's conviction for misconduct on April 13, 1987 was inconsistent with his acquittal on the drug and theft offenses for the same date because those offenses formed the factual basis of the misconduct charge. The State appeals that judgment and contends that defendant's conviction was supported by the evidence and is a valid conviction notwithstanding the apparent inconsistency. We agree and reverse the judgment under review. The defendant's conviction is reinstated and the matter is remanded for sentencing.
The record reveals that sometime in 1987 Dennis "Skeet" Cheston, an admitted drug dealer in the Trenton area, approached Captain Golden of the Trenton Police Department and complained about the alleged drug activities of defendant Burnett. An investigation ensued, leading to the indictment in question.
Cheston claimed that Burnett approached him in 1985 or 1986 and the two men worked out a deal whereby Cheston would give Burnett money and/or drugs in return for information from defendant regarding possible police investigations involving Cheston. Cheston said that during the relationship with Burnett he made payments to defendant totalling approximately $25,000. Cheston also testified that on virtually every occasion payments were made directly to Burnett and not to Thomas Parker. Parker, also a Trenton police officer, was indicted with defendant. His trial was severed from Burnett's.
Because the defendant's conviction focused on events that transpired on April 13, 1987, we will not summarize the events of the preceding days except as necessary to explain the events of April 13th. On that date, at approximately 8:00 p.m., Investigator Rossi obtained search warrants for the person of defendant, Thomas Parker and for Trenton Police car number ten.
Investigator Rossi and Detective Ricigliano testified that later in the evening they met with Cheston and Jeannie Poole. Cheston had recruited Poole to help with the investigation by
playing the role of the girl whom defendant and Parker had earlier agreed to "knock off," meaning that they had agreed to take money and drugs from her and split the take with Cheston. Cheston was then equipped with a recorder and transmitter and Poole was provided with two one ounce plastic bags of cocaine, valued at the time between $1,400 and $2,000, and $320 in $20 bills. The serial numbers of the bills were recorded.
Officers Rossi and Ricigliano testified that while Poole and Cheston were under surveillance they were approached by defendant and Parker in Trenton Police car number ten. Defendant and Parker exited their vehicle while Cheston and Poole exited their vehicle. According to Rossi and Ricigliano, defendant immediately walked up to Ms. Poole and announced, "the girl's loaded, Tom." Poole said that while Parker spoke with Cheston, defendant asked her what her name was and went into her pocket and pulled out the two bags of cocaine and the $320.
A call then came in on the police radio directing defendant and Parker to lend backup support to their captain at the corner of Prospect and Rutherford Avenue. The call had been orchestrated by the investigating officers so that defendant and Parker could be arrested as they arrived at the backup location. Cheston testified that when the call came on the radio he asked defendant to give him something back. The two men argued, and finally defendant gave one of the plastic ounce bags of cocaine to Cheston. Defendant and Parker then left in the police car without arresting Cheston or Poole. When defendant and Parker arrived at the backup location, they were arrested.
Pursuant to the search warrant, the investigating officers seized numerous items of evidence from the police car, including one of the two ounces of cocaine and the $320 which the police had provided to Poole. The twenty dollar bills were found in the same order and had the same serial numbers as the ones given to Poole. In addition, six plastic heat sealed bags of suspected crack cocaine were also recovered from the police car. Investigator Rossi testified that the additional crack
cocaine had a distinctive packaging which matched the packaging of evidence turned over by defendant earlier that day to the Trenton Police Department on another case.
In an effort to explain the presence of drugs in the car from an earlier arrest, defendant testified that he arrested another person for possession of crack cocaine that day as a result of which several crack vials were recovered. He testified that Parker picked up many loose vials of crack and put them somewhere on the seat of the police car. Defendant also said that Parker completed the property report on that arrest and was responsible for turning in the drugs.
Concerning the encounter with Cheston and Poole on April 13th, defendant testified that he encountered Cheston's car on Mellon Street and saw him and a black female, later identified as Poole, exit the car. When he approached Poole, he saw a lot of money hanging out of her jacket pocket and he stated "the girl is loaded, Tom." Defendant stated that he grabbed the stack of money out of Poole's pocket, and told Parker to search her. Defendant denied seeing any drugs in Poole's pocket.
Defendant stated that he was asking Poole what her name was and how much money she had when the call came in on the radio to backup the captain. Defendant then asked Parker what he wanted to do with Cheston and Poole, and Parker told him to let them go back to their car. Defendant testified that he was trying to get to the backup location because he felt it was the type of call that should be responded to quickly. He said that he did not take any drugs from the scene or give any to Cheston but could not see what Parker did because things happened too quickly and they were in different locations. Defendant said he told Cheston and Poole that ...