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State v. Morrison

July 26, 2006

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEWIS B. MORRISON, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court must determine whether the trial court abused its discretion when it concluded that the evidence presented to the grand jury could not support a finding that defendant distributed heroin and, thus, dismissed the charges against defendant for distribution of a controlled dangerous substance and strict liability for drug-induced death.

Based on the testimony presented at the grand jury hearing, defendant Lewis Morrison was a 24-year-old heroin addict. He played in a band with his friend Daniel Shore, who was also 24 and had experimented with heroin in the past. Very early one morning after band practice, they drove to Plainfield, with defendant at the wheel, to find heroin. They found a dealer and with their pooled money ($30 from Shore and $10 from defendant) purchased four glassine packets (decks) of heroin, which defendant placed in his pocket. After leaving the city, defendant gave a deck to Shore, who snorted half of the deck. When they returned to defendant's home, defendant handed Shore a second deck. Shore went into the bathroom where he presumably ingested the rest of his heroin. Defendant went upstairs and injected his two decks. When he came back downstairs, they talked about how "messed up" they were and then went to sleep. Sometime that afternoon, defendant injected another dose of heroin from the remnants of bags he had purchased earlier and fell back to sleep.

At about 6:00 p.m., defendant found Shore lying on the couch, blue and not breathing. Soon after, a friend, Gerald DeMelio, stopped by the house. DeMelio saw Shore on the couch and defendant in a frantic state. Defendant asked DeMelio to help him get Shore to the car so he could get Shore to a hospital. They carried Shore to the back of Shore's jeep but could not find the keys. DeMelio found what he thought were the keys, threw them to defendant, and left for work. At about 6:48 p.m., defendant called 911. Police officers and paramedics responded to the scene, where they found defendant attempting CPR on Shore, who was now lying face up in the driveway. The officers were trained EMTs and took over the CPR efforts. Defendant repeatedly denied that Shore had taken any illegal drugs. Thus, although a paramedic had a drug called Narcan (which is used to counter-effect a heroin overdose), it was not immediately given to Shore. Because defendant had constricted pupils and slow speech, it was obvious to the detective who later arrived on scene that defendant was not being honest and was on drugs. By that time, paramedics gave the Narcan to Shore.

Defendant was taken to headquarters. After the detective asked a few questions, defendant broke down crying and explained that he was addicted to heroin and wanted to tell the truth. He then described the trip that he took with Shore and the events that followed. In the meantime, Shore had been taken to a hospital where he was pronounced dead. A doctor from the medical examiner's office determined that Shore had died of a heroin overdose. The doctor believed Shore died quickly but noted that sometimes people who have overdosed from heroin do revive and respond to Narcan.

Defendant was indicted and charged with third-degree distribution of a controlled dangerous substance, first-degree strict liability for drug-induced death, and second-degree reckless manslaughter. He moved to dismiss the indictment, arguing in part that the prosecutor failed to present sufficient evidence to support the distribution and drug-induced death charges. The trial court dismissed those two charges, reasoning that that even taking all inferences in a manner most favorable to the State, the evidence could not support a finding that defendant solely possessed the heroin and distributed it to Shore, i.e., that it was not equally owned by both of them. The court also dismissed the reckless manslaughter count on the basis of improper grand jury instructions.

In an unpublished opinion, the Appellate Division reinstated the distribution and drug-induced death charges, reasoning that although two individuals cannot intend to distribute to each other drugs that they already jointly possess, the evidence raised a jury question about whether the sharing of the heroin, pooling of money and presence at the scene of the drug transaction constituted joint possession by defendant and Shore. The court affirmed the dismissal of the reckless manslaughter charges because of inadequate jury instructions and because there was a total lack of evidence to indicate that any delay or failure to act by defendant was a contributing cause to Shore's death.

The Supreme Court granted defendant's petition for certification challenging the reinstatement of the distribution and drug-induced death charges. The Court also granted the motion of the Association of Criminal Defense Lawyers of New Jersey to participate as amicus curiae.

HELD: A person cannot distribute a controlled dangerous substance to a person with whom he shares joint possession. Viewed in the light most favorable to the State, the evidence presented to the grand jury compels the conclusion that defendant and Shore jointly purchased and possessed the heroin. Thus, defendant could not have been found to have distributed the heroin, which is a required element of the distribution and drug-induced death charges.

1. No defendant may be compelled to stand trial for a crime unless the State presents a grand jury with sufficient evidence to conclude that a crime has been committed by the accused, and the grand jury returns an indictment. N.J. Const. art. I, ¶ 8. In deciding a motion to dismiss an indictment, a trial court should evaluate whether, viewing the evidence and rational inferences drawn from that evidence in the light most favorable to the State, the grand jury could reasonably conclude that a crime occurred and that the defendant committed it. (pp. 12-14)

2. The crimes of distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5, and drug-induced death on the basis of distribution, N.J.S.A. 2C:35-9, both require proof of an act of distribution. The key issue is whether defendant distributed heroin to Shore or whether both jointly possessed the heroin at the time defendant bought the heroin from the street dealer. Distribution of a substance cannot occur if the intended recipient already possesses that substance.A person may have constructive possession of a substance when, although he lacks physical control, it can be reasonably inferred from the circumstances that he knows of its presence and intends and has the capacity to exercise physical control over it. Thus, when two individuals simultaneously and jointly acquire possession of a drug for their own use, intending only to share it together, they have not committed the crime of distribution. (pp. 14-21)

3. To determine whether the evidence supports the indictment charging defendant with distributing heroin to Shore, the Court must engage in a fact-sensitive analysis based on the totality of the circumstances. The Court must consider factors such as whether their relationship was commercial or personal, the statements and conduct of the parties, the degree of control exercised by one over the other, whether they traveled and purchased the drugs together, the quantity of drugs involved, and whether one party had sole possession of the drugs for a significant length of time. (pp. 22-23)

4. The testimony presented to the grand jury revealed that defendant and Shore had a friendly relationship; after band practice, they drove together to search for heroin; and they pooled their money to buy heroin from the street dealer they found together. Considering that defendant provided the transportation and place for the evening, the difference in their monetary contributions does not transform a case of simple joint possession into distribution. As a practical matter only one could actually conduct the purchase for the two of them. The evidence clearly implies that when defendant bought the heroin, he and Shore were in joint possession of the drugs -- defendant had actual possession and Shore had constructive possession, with the intent and capacity to take control of his share of the heroin. Viewing the evidence in the light most favorable to the State, the trial court correctly found that because defendant and Shore simultaneously and jointly acquired possession of the drugs for their own use, intending only to share it together, defendant cannot be charged with the crime of distribution. (pp. 23-25)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial courtfor the entry of an order dismissing the indictment.

JUSTICE RIVERA-SOTO has filed a separate, DISSENTING opinion, expressing the view that, although he agrees with the legal reasoning that joint possession is inconsistent with the element of intent to distribute, the issue whether defendant and Shore jointly possessed the heroin is to be determined by the factfinder at trial; joint possession is not an element of the charges against defendant and should not be addressed by way of a motion to dismiss the indictment.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI and WALLACE join in JUSTICE ALBIN's opinion. JUSTICE RIVERA-SOTO has filed a separate, dissenting opinion.

The opinion of the court was delivered by: Justice Albin

Argued May 1, 2006

In the early morning hours of September 27, 2002, Daniel Shore and his friend defendant Lewis B. Morrison trolled the streets of Plainfield for drugs. When they found a dealer, defendant took their pooled money and bought four decks of heroin -- little glassine packets containing the powdery substance. Afterwards, defendant gave two of the decks to Shore. Later that day, Shore died of a heroin overdose.

A grand jury returned an indictment charging defendant with distributing the heroin to Shore and, as such, with causing Shore's drug-induced death. Based on the grand jury record, the trial court concluded that the evidence could not support a finding that defendant distributed the heroin to Shore, but only that defendant and Shore jointly purchased and possessed the drugs for their personal use. For that reason, the court dismissed the distribution and drug-induced death charges. The Appellate Division overruled the trial court, finding that the evidence raised a jury issue, and reinstated the charges. We now reverse. We agree with the trial court that the evidence revealed only that defendant and Shore were joint purchasers and possessors of the heroin and therefore no act of distribution occurred between the two. Accordingly, we hold that the trial court did not abuse its discretion in dismissing the distribution and strict liability for drug-induced death charges.

I.

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