October 30, 2006
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NAFI HALL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 02-03-0912 and 02-10-3856.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 2006
Before Judges Wefing, Parker and C.S. Fisher.
Defendant Nafi Hall was charged with having committed various drug offenses and, also, for entering into an unlawful conspiracy with co-defendant Joann Clark (Clark). During deliberations, the jury asked about the availability of arrest reports to which the judge responded, after conferring with counsel, by opening the jury room door and providing the jury, off the record, with his instructions. Another later jury question sought instruction as to whether it could find one defendant guilty of conspiracy while acquitting the other; the judge advised that it could. The jury then rendered a verdict which found defendant guilty of some of the drug charges and also of conspiracy, even though Clark was acquitted of conspiracy. Because the procedure adopted by the judge in instructing the jury about the arrest reports was improper, we reverse and remand for a new trial. We also reverse the conspiracy conviction because the judge's instructions permitted the jury to convict defendant of conspiracy if it found that defendant had entered into an unlawful conspiracy other than that which was charged in the indictment.
Defendant was charged in Indictment No. 02-3-0912 with four counts of third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and (b)(3); four counts of third-degree distribution of CDS within 1000 feet of school property, N.J.S.A. 2C:35-7; four counts of second-degree distribution of CDS within 500 feet of a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1; third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1); first-degree possession of cocaine in a quantity of five ounces or more, N.J.S.A. 2C:35-5(b)(1); third-degree possession of CDS with the intent to distribute on school property, N.J.S.A. 2C:35-7; second-degree possession of CDS with the intent to distribute within 500 feet of a public housing facility, a public park, or a public building, N.J.S.A. 2C:35-7.1; and second-degree conspiracy, with Clark, to violate narcotics laws, N.J.S.A. 2C:5-2. The indictment also charged defendants Anna Flippon, Martina Grant, Marcus Gwynn, and Jason Hall with having committed drug offenses.
The evidence presented by the State during a four-day trial, which took place in June 2003, indicated that, on November 17, 2001, members of the Newark Police Department observed drug transactions occurring in front of a residence on North 5th Street,*fn1 a residence located within 1,000 feet of a school and within 500 feet of a public housing complex. The officers testified that from their vantage point they observed Gwynn, Grant, Hall and Flippon separately purchase narcotics at that location. In each instance, the alleged buyer approached defendant Clark, who was stationed in front of the residence. Following a short conversation, Clark would then, according to the officers, knock on the front door of the residence, and have a brief conversation with defendant, who was inside the residence. The State provided testimony that defendant, in each instance, would hand an object to Clark, who would then hand it to the buyer in exchange for money. Following each of the first three transactions another police team apprehended the alleged buyers, each of whom possessed vials of cocaine.
After observing these transactions, the officers left their surveillance position and approached the residence. As they detained Flippon, the last of the alleged buyers they had observed, Clark shouted out, "Police, put the -- the shit up." She was immediately apprehended. Defendant attempted to flee as the police chased him through the residence. According to the State's testimony, as defendant ran through the kitchen, he grabbed two bags off a table, but was apprehended before he could get out the back door. A bag containing vials of cocaine matching the appearance of those vials obtained from the buyers who the police had observed was allegedly found in defendant's possession when apprehended.
Gwynn and Clark testified. Defendant did not. His attorney argued in summation that the officers' testimony regarding defendant's alleged involvement in any drug transaction, including their testimony identifying defendant as being involved in what they allegedly witnessed from their surveillance position, was unreliable.
The jury convicted defendant of second-degree conspiracy, third-degree possession of CDS, first-degree possession of CDS with the intent to distribute, third-degree possession of CDS with the intent to distribute within 1000 feet of school property, and third-degree possession of CDS with the intent to distribute within 500 feet of public property. The jury acquitted defendant of the remaining charges.
At sentencing, all convictions were merged into the first-degree conviction, as to which the trial judge sentenced defendant to a fifteen-year term of imprisonment with a five-year period of parole ineligibility. The judgment of conviction entered on September 8, 2003*fn2 also imposed certain mandatory fees and assessments.
On appeal, defendant presents the following arguments for our consideration:
I. THE SUPPRESSION OF THE SURVEILLANCE LOCATION WAS REVERSIBLE ERROR (U.S. Const. Amend. VI, XIV; N.J. Const. (1947), Art. I, Par. 10).
II. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY A CONSPIRACY CONVICTION COULD BE BASED UPON FACTS NOT ENCOMPASSED BY THE INDICTMENT (U.S. Const. Amend. VI, XIV; N.J. Const. (1947) Art. I, Par. 8, 10).
III. THE TRIAL COURT'S DEFICIENT AND ERRONEOUS CONSPIRACY INSTRUCTIONS CAUSED AN ERRONEOUS CONVICTION BASED ON INSUFFICIENT EVIDENCE AND INCONSISTENT VERDICTS THAT CANNOT BE SUSTAINED.
IV. THE TRIAL COURT'S FAILURE TO GIVE A SPECIFIC UNANIMITY INSTRUCTION WAS PLAIN ERROR AND REQUIRES REVERSAL (U.S. Const. Amend. V, VI, XIV; N.J. Const. (1947) Art. I, Par. 9).
V. DEFENSE COUNSEL'S FAILURE TO PURSUE THE OBJECTION TO THE TRIAL COURT'S CONSPIRACY JURY INSTRUCTIONS, AS WELL AS HIS FAILURE TO PURSUE A POST-VERDICT DISMISSAL OF ALL CHARGES IN THE INTERESTS OF JUSTICE, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL AND REQUIRES REVERSAL (U.S. Const. Amend. VI, XIV; N.J. Const. Art. I, Par. 10).
VI. THE IMPOSITION OF A PRESUMPTIVE FIRST-DEGREE SENTENCE OF 15 YEARS WITH A 5-YEAR PERIOD OF PAROLE INELIGIBILITY FOR THE FIRST-DEGREE POSSESSION WITH INTENT TO DISTRIBUTE FOR THE "CRIMES" PROVEN IN THIS CASE IS FUNDAMENTALLY UNJUST AND SHOULD SHOCK THE JUDICIAL CONSCIENCE.
Invoking R. 2:6-11, defendant later submitted a letter to this court, which cited State v. Basit, 378 N.J. Super. 125 (App. Div. 2005) and urged that his right to a fair trial was prejudiced because the trial judge responded to a question posed by the jury during its deliberations by opening the door to the jury room and giving an unrecorded response.
We find that the argument contained in defendant's Point I is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we agree that the judge improperly gave unrecorded instructions to the deliberating jury in much the same manner as occurred in Basit. We also agree that the trial court's instructions regarding the conspiracy charge created the possibility that the jury convicted defendant of conspiring with a person other than co-defendant Clark and, thus, permitted the jury to convict defendant of an offense that had not been charged in the indictment.
Early in its deliberations, the jury presented the following question to the trial judge: "Do we have the arrest reports in evidence?" After reading that question to counsel in open court, the trial judge stated:
I'm going to simply -- I'm not even going to bring them out. I'm going to walk to the door, say you do not have them, and, no, you cannot have them. Does anyone have a problem with that?
In response, defense counsel said that he did "have a problem with that," and thereafter explained that he thought "we have to tell them a little bit more." He argued that he did not want the jury to speculate about why the arrest reports were not in evidence and expressed his concern that the jury would think "something" was being "kept from them." The judge then said that he would "tell them then no, you don't have them and if you want them you can't have them because they're not admissible in a trial, in this trial or any trial." No one, however, objected to the procedure adopted by the judge. As a result, we are required to examine not only whether the judge erred by failing to instruct the jury in open court and on the record, but also whether defendant was harmed by that failure.
We are troubled by the procedure adopted by the judge. In fact, we have recently twice condemned in published opinions similar judge-jury communications. See State v. Basit, supra, 378 N.J. Super. 125; State v. Walkings, __ N.J. Super. __ (App. Div. 2006). In seeking our affirmance in this case, the State accurately observes that Basit was decided after the matter at hand was tried and argues that we should not give Basit's holding retroactive application; this argument misses the point. Basit does not represent a departure from prior precedent. Instead, Basit was -- until Walkings -- only the latest in a line of similar decisions admonishing trial judges for their unrecorded communications with jurors. Our opinion in Basit does not purport to stake new ground; in fact, it adhered to a long line of cases that have repeatedly held it improper for a judge to have such a communication with a deliberating jury, citing State v. Gray, 67 N.J. 144 (1975); State v. Auld, 2 N.J. 426 (1949); State v. Duvel, 130 N.J.L. 715 (E. & A. 1927), aff'g o.b., 4 N.J. Misc. 719 (Sup. Ct. 1926); State v. Brown, 362 N.J. Super. 180 (App. Div. 2003); State v. Brown, 275 N.J. Super. 329 (App. Div.), certif. denied, 138 N.J. 269 (1994); Guzzi v. Jersey Central Power & Light Co., 36 N.J. Super. 255 (App. Div. 1955); Leonard's of Plainfield, Inc. v. Dybas, 130 N.J.L. 135 (Sup. Ct. 1943). There can be no doubt but that the judge erred in communicating with the jury in this fashion and the State has not argued to the contrary.
There is no bright line rule in ascertaining when such a procedural error requires reversal. We discussed in Basit the prior experiences of our appellate courts in such matters. Those prior experiences provide some understanding of the types of unrecorded communications that have and have not required reversal. We also recognize that there would have been no error if the judge had simply brought the jury into the courtroom and provided the instruction that he had previously indicated he would give. However, we can find no principled reason for distinguishing these circumstances from those that required reversal in Basit. As the Court observed in United States v. United States Gypsum Co., 438 U.S. 422, 460-61, 98 S.Ct. 2864, 2885, 57 L.Ed. 2d 854, 884 (1978), the rendering of unrecorded jury instructions is a circumstance "pregnant with possibilities for error," and even an experienced judge "cannot be certain to avoid all the pitfalls inherent in such an enterprise." In that vein, we emphasize that the judge's desire to save a few minutes of time by failing to adhere to the requirement that all proceedings occur in open court has left us with no way of knowing what the judge precisely said to the jury or whether he gave the instruction that he had previously described for counsel. Moreover, we note that the defendant and his counsel were deprived of the opportunity to observe the jury's reaction to the judge's instruction, which may have warranted a request for further amplification or instruction. For example, a quizzical look from one or more jurors as the judge gave this brief instruction may have warranted a renewed request by defense counsel for further explanation along the lines he had originally requested. Since defendant and his attorney were deprived of the opportunity to observe the jurors during this stage of the proceeding, they were precluded from considering the sufficiency or impact of the judge's instruction. Thus, we are satisfied that the record provides insufficient evidence from which we might otherwise conclude that the presumption of prejudice that attaches to such extra-judicial communications was overcome.
In the final analysis, we recognize the constitutional dimension of what occurred here. Defendants are entitled to be present at all critical stages of the prosecution. Rushen v. Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 455, 78 L.Ed. 2d 267, 272 (1983); State v. W.A., 184 N.J. 45, 53-54 (2005); State v. Wilson, 165 N.J. 657, 662 (2000); R. 3:16(b). Our courts have taken a broad view of what constitutes a critical stage of a criminal proceeding that would certainly include an accused's right to be present during a judge's rendering of instructions to the jury. See, e.g., State v. W.A., supra, 184 N.J. at 53-54 (finding, as a general matter, an accused's right to be present at sidebar during the voir dire of prospective jurors); State v. Brown, supra, 362 N.J. Super. at 188-89 (holding that an accused possesses the right to be present during any readback of testimony provided to a jury during its deliberations). We, thus, decline to excuse this structural defect in the proceedings and reject the State's contention that the judge's departure from proper procedure was harmless.
We also observe that the judge's instructions regarding the conspiracy charge were erroneous and mistakenly invited the jury to convict defendant of a conspiracy that was not charged by the grand jury. Although we have determined to reverse and remand for a new trial on all the charges for which defendant was convicted in light of our holding in Section III, we observe that the conspiracy conviction must also be reversed for the following reasons.
The indictment charged that, on November 17, 2001, defendant and Joann Clark "did commit the crime of [c]onspiracy in that they then and there did corruptly and unlawfully conspire together" to violate narcotics laws as described in the indictment. Because Clark was acquitted of conspiracy, defendant argues that his conspiracy conviction cannot stand.
We commence our consideration of this argument by observing, as a general matter, that our Criminal Code does not preclude the possibility that one member of a conspiracy could be found guilty without the conviction of his co-conspirator. For example, a jury could determine that only one of two alleged conspirators possessed the requisite intent to commit the offense and could, thus, logically convict the other who did possess the required intent. N.J.S.A. 2C:5-3.*fn3 Or, the jury could resolve to acquit one of two conspirators on jury nullification or leniency grounds. State v. Banko, 182 N.J. 44, 54-55 (2004) (recognizing that inconsistent verdicts may be "the product of jury nullification" and that such verdicts are permitted, "because it is beyond our power to prevent them"). However, a jury may not lawfully convict only one of two alleged conspirators because of a belief that he entered into a different conspiracy, or with a different conspirator, when this other possibility was not charged in the indictment.
After carefully reviewing the record, we are satisfied that the judge's instructions mistakenly authorized the jury to convict defendant of conspiracy if it believed that defendant conspired with a person other than Clark. Because the grand jury never charged defendant with conspiring with anyone other than Clark, such a finding by the jury would be at variance with the indictment. State v. Wein, 80 N.J. 491, 497 (1979); State v. Lopez, 276 N.J. Super. 296, 302 (App. Div.), certif. denied, 139 N.J. 289 (1994); State v. Neal, 229 N.J. Super. 28, 34-35 (App. Div. 1988); State v. Passafiume, 184 N.J. Super. 447, 449-50 (App. Div.), certif. denied, 91 N.J. 280 (1982). The prohibition on convictions based upon allegations other than those contained in an indictment is of constitutional dimension. See N.J. Const. art. I, ¶ 8 (declaring that except in cases not relevant here, "[n]o person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury"); N.J. Const. art. I, ¶ 10 (guaranteeing that "[i]n all criminal proceedings, the accused shall have the right . . . to be informed of the nature and cause of the accusation").
The judge's charge to the jury utilized the wording of the model jury charge, describing the meaning of conspiracy by referring to the second party to the conspiracy as being "another person." It is perhaps arguable that the jury would not have construed this generic "other person" as being any one other than defendant or Clark, particularly in light of the judge's earlier reading to the jury from the indictment, although the better practice would have been for the judge to specifically name the persons who were alleged to have engaged in the charged conspiracy in the indictment.
The judge's initial instructions did not prove to be fully enlightening to the jury. After commencing its deliberations, the jury sent two questions to the judge:
No. 1, please read the instructions concerning Count 1 conspiracy to us again. Question No. 2, is it possible under the law to convict one defendant of Count 1 and not the other?
After reading these questions to counsel in open court, the trial judge expressed his intention to respond to the first question by again reading to the jury the conspiracy charge previously given, and to simply answer "yes" to the second question.
Defendant's attorney objected, arguing that an affirmative response to the second question would suggest to the jury that it could convict either defendant or Clark if it found that one had conspired with some person other than that defendant's named co-conspirator and that a conviction based upon such a finding would be at variance with the indictment. In responding to defendant's objection, the trial judge indicated that defendant invited the possibility of his conviction for some other conspiracy by suggesting during his cross-examination and by arguing to the jury that someone other than defendant may have been a party to a conspiracy. In that regard, the judge stated that if the jury believes "that defense theory," then they could believe "an unknown person who's not on trial here today ran out the door who was conspiring with Ms. Clark to sell drugs." In response to this statement, defense counsel persisted in his variance argument:
[DEFENSE COUNSEL]: Well, who would -- who would they -- who would they charge -- who would be this co-conspirator?
THE COURT: I don't know.
[DEFENSE COUNSEL]: Well, neither did the grand jury --
THE COURT: The person --
[DEFENSE COUNSEL]: -- and so -- and so they didn't charge anybody with it, so we never tried that case, so they can't find somebody guilty of something they weren't charged with.
Regardless of the prosecutor's grand theories of conspiracy, . . . we have to be able to defend a case that we're charged with.
THE COURT: Well, one of your defenses is not that there's no conspiracy between Clark and Hall but it's between Clark and somebody else, not your client.
[DEFENSE COUNSEL]: I never said any such thing about Clark being involved in --
THE COURT: -- you specifically cross-examined about the back door being open and someone ran out the back door.
[DEFENSE COUNSEL]: Well, that's fine but . . . that's my argument in terms of reasonable doubt, but how [is the jury] going to find that somebody else conspired with Clark and how [is the jury] going to find that somebody else conspired with Hall, when . . . the grand jury alleged [only that Clark and Hall conspired]?
THE COURT: I think it's within the purview of the jury to do so.
THE COURT: Well, let me ask you this question, . . . how is [the] defense prejudiced, okay, if in fact . . . the jury determines Joann Clark conspired with someone other than Nafi Hall, . . . and that person was misidentified by police and ran out the back door?
[DEFENSE COUNSEL]: That's simple.
THE COURT: How is she prejudiced in the defense?
[DEFENSE COUNSEL]: That's simple. She never defended that charge because she was never charged with that crime.
THE COURT: Certainly she did. She defended any kind of conspiracy whatsoever.
[DEFENSE COUNSEL]: This is what the law says. The law says that the State charged a specific conspiracy. The grand jury returned Count 1, and they said this is the conspiracy we're charging. If -- if the jury can't find beyond a reasonable doubt that this conspiracy was committed, they have to acquit both people of that conspiracy that's charged.
They can't convict half of a conspiracy because there's conspiracy B lurking off in the distance that was not part of the indictment. So that's the law as I've always understood it. . . .
THE COURT: Let me say this, I believe I'm correct. I'm going to answer as I indicated.
I'm going to read conspiracy again, Count 1.
I'm going to answer No. 2 yes.
With the exception of the jury's ability to acquit one alleged conspirator while convicting the other for reasons as simple as the jury's unauthorized power to show leniency to a defendant, see State v. Lopez, 187 N.J. 91, 102 (2006); State v. Banko, supra, 182 N.J. at 54-55, or because the jury may have found that the conduct of one of the two did not meet the requirements of the statute, N.J.S.A. 2C:5-3, defense counsel's argument to the judge was correct. That is, the answer to the jury's second question ("is it possible under the law to convict one defendant of Count 1 and not the other?") could be answered "yes" when considered in some circumstances, but the correct answer must, in certain other circumstances, be "no." The answer to the jury's question must be "no" if the jury was harboring a belief and requesting clarification because, as suggested by the evidence, it believed that a conspiracy other than that charged in the indictment had occurred and because it believed that only one of the two alleged conspirators was involved in that other conspiracy.
When a deliberating jury presents a question that suggests multiple meanings, the judge's first obligation is to ascertain the jury's true intent. State v. Savage, 172 N.J. 374, 394-95 (2002). In this case, despite the question's possible alternative meanings, the judge and counsel understood the question as seeking instruction on whether the jury could convict one of the defendants for having conspired with some other unnamed third person. So understood, that question required that the judge explain to the jury that neither defendant nor Clark could be convicted of conspiracy unless the jury found that they had conspired as asserted in the indictment and that neither defendant could be convicted of engaging in some other unalleged conspiracy.
In short, having posed such a question, the jury was entitled to more than a mere "yes" or "no" answer or to the repetition of the very same instructions that caused it to pose the question. The judge should have, but failed, to advise the jury that it was powerless to convict only one of the defendants if it concluded that one of those defendants had conspired with some person other than the other named co-conspirator. Instead, the judge told the jury:
In order for you to find defendant guilty of the crime of conspiracy, the State must prove beyond a reasonable doubt the following elements: number one, that the defendants agreed with another person or persons that they, or one or more of them, would engage in conduct which constitutes a crime, or an attempt, or [solicitation] to commit such crime, or that defendant agreed to aid another person or persons in the planning or commission of a crime or of an attempt or solicitation to commit such a crime . . . . [Emphasis added.]
That instruction, even though it was bereft of a specification of the persons alleged to have conspired, was perhaps acceptable when the judge gave his initial charge. However, once the jury posed its question in the midst of deliberations, the judge was obligated to provide greater specificity to insure that neither defendant was convicted of a conspiracy other than that charged in the indictment.
The undesirable possibility that the jury could have convicted defendant with having engaged in an unlawful conspiracy other than that charged was compounded by the judge's additional instructions once the jury's question was received.
That is, the judge instructed the jury that to be found guilty the conspirator need not be aware of the co-conspirator's identity,*fn4 thus further fueling the possibility that the jury was intent on convicting defendant of conspiring with someone other than Clark.
A trial judge is obligated to correctly and clearly instruct the jury on the applicable law. State v. Mahoney, __ N.J. __, __ (2006). In appropriate cases, a judge should tie a description of the correct legal guidelines to the specific allegations of the case. State v. Gartland, 149 N.J. 456, 475-76 (1997). The role of a judge's instructions takes on heightened importance when a deliberating jury seeks clarification. When presented with a question, the trial judge must take appropriate steps to be certain about the import of the question, State v. Savage, supra, 172 N.J. at 394-95, and must provide an accurate explanation of the law, not merely by repeating a prior instruction, but by considering the context in which the question was put, State v. Gartland, supra, 149 N.J. at 475; State v. Olivio, 123 N.J. 550, 567 (1991). In short, when presented with such a question, a trial judge "is obligated to clear the confusion." State v. Savage, supra, 172 N.J. at 394 (quoting State v. Conway, 193 N.J. Super. 133, 157 (App. Div.) certif. denied, 97 N.J. 650 (1984)). In the circumstances under review here, it is fair to say that the jury had focused its attention on a specific point about which it was uncertain. That required that the judge provide insightful and accurate direction, obligating him to mold his response in a manner that accurately stated the substantive law within the context of the particular facts of the case. Gartland, supra, 149 N.J. at 475.
The jury in this case posed an important question, which the judge and counsel understood as focusing on and inquiring about the jury's authority to convict one of these defendants and acquit the other because it believed that one of them had not entered into the conspiracy charged but into another conspiracy with some unnamed third person. As the colloquy quoted above demonstrates, the judge mistakenly harbored the belief that the law permitted the jury to find one of these two defendants guilty of a conspiracy different from that alleged in the indictment. His subsequent instructions -- which merely said that the jury could convict one and not the other, and thereafter repeated the instructions that had already proven unenlightening to this jury -- failed to clear away the jury's uncertainty.
Jury instructions serve the purpose of providing the jury with a "road map" and it has been observed that the failure to provide clear and accurate jury instructions can cause the jury to make a "wrong turn" in its deliberations. State v. Martin, 119 N.J. 2, 15 (1990). Here, the jury reached a crossroad in its attempt to determine whether an unlawful conspiracy occurred. The record amply demonstrates that the judge and counsel understood the jury's question as having focused on whether the jury could convict one of the defendants and not the other because it believed that one of the defendants entered into a conspiracy other than that charged in the indictment. The judge not only failed to disabuse the jury of such a notion, but in fact gave instructions that invited the jury to make such a finding and, thus, the verdict may very well have represented the jury's finding that defendant committed an offense never charged by the grand jury. For these reasons, defendant's conviction for conspiracy cannot stand.
Reversed and remanded for a new trial.*fn5