June 4, 2007
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
JOSEPH JONES, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, 05-04-0972-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 29, 2006
Before Judges Collester and Sabatino.
Pursuant to leave granted, the State appeals from the entry of an order for judgment of acquittal notwithstanding defendant's conviction by jury verdict for possession of cocaine in a school zone with intent to distribute, contrary to N.J.S.A. 2C:35-7. We reverse.
Defendant Joseph Jones was indicted on charges of third- degree possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5b(3) (count two); third- degree possession of cocaine in a school zone with intent to distribute, contrary to N.J.S.A. 2C:35-7 (count three); third- degree distribution of cocaine, contrary to N.J.S.A. 2C:35-5b(3) (count four); and third-degree distribution of cocaine in a school zone, contrary to N.J.S.A. 2C:35-7 (count five).
The State's proofs were that on January 7, 2005, at about 5:30 p.m., Asbury Park Police Officers Philip J. Montgomery and Lorenzo M. Pettway were working undercover in their vehicle when they saw defendant walking down Main Street. Since they knew of an outstanding arrest warrant for defendant, the officers drove around the block and parked at a nearby intersection. Using binoculars, Montgomery saw defendant "sprinkling" what he believed to be crack cocaine into the hand of an individual later identified as Robert Jones, no relation to defendant. Robert Jones then handed defendant a DVD player. The officers then moved in to make arrests. Montgomery arrested the defendant, who was still holding the DVD player. Pettway went after Robert Jones and saw him throw something to the ground.
Pettway picked it up, saw it was a "rock" of crack cocaine. The alleged transaction involving the crack cocaine and DVD player took place within 1,000 feet of the Thurgood Marshall Elementary School.
Robert Jones entered a guilty plea to possession of cocaine and testified for the State. He said that he walked up to defendant and asked him if he wanted to buy the DVD player. Defendant told that him he did not have money but did have "product" in exchange. Robert Jones agreed. When he saw Officer Pettway approach, Robert Jones threw the cocaine away. Defendant testified he was walking home and talking on his cell phone when Robert Jones approached him and asked him to buy a DVD player still in its box. Defendant agreed to pay $10 and was reaching in his pocket for the money when the two police officers got out of a van. He related that Robert Jones fled and left the DVD player at defendant's feet. Officer Montgomery then arrested defendant for possession of stolen property.
Defendant claimed that he never possessed the DVD player or cocaine and did not distribute anything to Robert Jones. The jury began its deliberations on March 9, 2006. After about five and one half hours, they notified the trial judge late in the afternoon that they could not agree upon a verdict. The judge excused them and ordered them to return the next morning, when he gave them an instruction pursuant to State v. Czachor, 82 N.J. 392 (1980). The jury resumed deliberations and later requested and received a read back of defendant's testimony. An hour later the jury returned its verdict, finding defendant guilty of third-degree possession of cocaine, not guilty of third-degree possession of cocaine with intent to distribute, guilty of third-degree possession of cocaine in a school zone with intent to distribute, not guilty of third- degree distribution of cocaine, and not guilty of third-degree distribution of cocaine in a school zone.
On March 20, 2006, defendant filed a motion for judgment of acquittal, asserting that the jury verdict was fatally inconsistent. The trial judge denied vacating the conviction for possession of cocaine but granted the motion for acquittal for possession of cocaine in a school zone with the intent to distribute, giving the following reasons:
I find it is not the inconsistency in the verdicts as it is the jury's failure to follow the Court's instructions on Count 3 which presents the problem with this verdict.
The New Jersey Supreme Court held in State v. Banko, 182 N.J., held that generally a jury may render inconsistent verdicts so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted.
Banko was decided based on an earlier Supreme Court decision in State v. Grey, 147 N.J., which held that inconsistent verdicts are permitted provided they are based on sufficient evidence unless the inconsistent verdicts preclude the establishment of an element of the offense which is what I find to be the case here.
The only evidence of possession with intent to distribute, that is Count 2, is the same evidence that was presented regarding possession with intent in a school zone, Count 3. . . .
However, in nullifying Count 2, the jury must also nullify Count 3 because Count 2 provides essential elements of Count 3. The jury did not do that. Again it is not the inconsistency of the verdicts but the jury's lack of understanding of the essential elements of the charge which is the problem.
As I said, the State had to prove the element of possession with intent to distribute in order to prove possession with intent to distribute in a school zone. And the jury clearly decided they did not prove, that is the State did not prove possession with intent to distribute.
So, since the jury found the defendant not guilty on Count 2 and found the defendant guilty on Count 3, it shows they misunderstood the elements of Count 3.
The only evidence on this issue is the conversation between the defendant and Robert Jones and the transaction. This is not the kind of inconsistent verdict considered in Banko and Muhammad, where a jury is free to accept part of what the witness said and reject other parts of what a witness said.
Here, the State cannot have it both ways because we are dealing with a single point in time and place. This is the sole evidence on the issue. If the jury found the defendant not guilty on Count 2 on this evidence and understood the elements of Count 3, they would have to find the defendant not guilty of Count 3.
The jury's verdict was not simply an inconsistent verdict. The verdict on Count 3 must be not guilty because the verdict on Count 2 was clearly not guilty. Defendant's motion for acquittal is granted with respect to Count 3.
As noted by the trial judge, New Jersey jurisprudence follows the Dunn/Powell rule that inconsistent jury verdicts are sustainable if the evidence is sufficient to establish guilt.
Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 2d 356, 358 (1932); United States v. Powell, 469 U.S. 57, 64-65, 105 S.Ct. 471, 476, 83 L.Ed. 2d 461, 468 (1984). As stated by our Supreme Court,
To the extent that restatement is required, see State v. Grey, 147 N.J. 4, 11 (1996), the Dunn/Powell rule controls inconsistent verdicts in this State. An inconsistent verdict may be the product of jury nullification. We permit inconsistent verdicts to be returned by a jury because it is beyond our power to prevent them. State v. Ragland, 105 N.J. 189, 204-05 (1986) (acknowledging jury's nullification power that exists "by virtue of the finding of an acquittal"); see also, State v. Hunt, 115 N.J. 330, 400-01 (1989) (Handler, J., dissenting) (noting that jury nullification is not subject to review or to reversal). We do not speculate why a jury acquits. We accept inconsistent verdicts -- and not only when the jury's action benefits a defendant. Such verdicts are permitted "normally . . . 'so long as the evidence was sufficient to establish guilt on the substantive offense beyond a reasonable doubt.'" State v. Petties, 139 N.J. 310, 319 (1995) (quoting State v. Kamienski, 254 N.J. Super. 75, 95 (App. Div.), certif. denied, 130 N.J. 18 (1992); see also State v. Ingenito, 87 N.J. 204, 211-12 (1981) (accepting, before Powell, "inconsistent verdicts that accrue to the benefit of the defendant").
[State v. Banko, 182 N.J. 44, 54-55 (2004)].
It is not for courts to speculate on whether a jury verdict was the result of a mistake, compromise, or lenity. State v. Muhammad, 182 N.J. 551, 578 (2005); State v. Grey, 147 N.J. 4, 11 (1996). A reviewing court will not attempt to reconcile the counts of an indictment on which a defendant was found guilty or not guilty, but will consider each count as if it were a separate indictment. Banko, supra, 182 N.J. at 53 (quoting Dunn, supra, 284 U.S. at 393, 52 S.Ct. at 190, 76 L.Ed. at 358.
Viewing separately the indictable charge of possession with intent to distribute in a school zone, the testimony of the police officers and Robert Jones was more than sufficient to satisfy the elements of the charge. See State v. Pickett, 241 N.J. Super. 259, 267 (App. Div. 1990) (evidence of distribution is evidence of intent to distribute). This is not an instance of an inconsistent verdict resulting from other errors or defects such as an incomplete or misleading jury instruction. See, e.g., State v. Jenkins, 234 N.J. Super. 311, 315-16 (App. Div. 1989); Petties, supra, 139 N.J. at 319-20. Therefore, there was no legal basis to grant the motion for a judgment notwithstanding the jury verdict on count three of the indictment.
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