March 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BEAUJAMES COUGHLIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-01-0083.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2008
Before Judges Cuff and Lisa.
Defendant, Beaujames Coughlin, was the subject of a one-count indictment charging him with third-degree possession of a controlled dangerous substance (CDS), cocaine, in violation of N.J.S.A. 2C:35-10a(1). Defendant was also charged with non-indictable offenses allegedly occurring at the same time as the indictable offense, namely a motor vehicle violation, possession of a CDS in a motor vehicle, N.J.S.A. 39:4-49.1, and two disorderly persons offenses, namely possession of less than fifty grams of marijuana, N.J.S.A. 2C:35-10a(4), and possession of drug paraphernalia (a cigar wrapper used to smoke marijuana), N.J.S.A. 2C:36-2. Because all of the charges arose from the same episode, the charges were tried together, with a jury sitting as the factfinder with respect to the indictable offense and the judge sitting in the capacity of a municipal court judge with respect to the non-indictable offenses. See R. 3:15-3(a).
The jury found defendant guilty of the indictable offense, and the judge found defendant guilty of the non-indictable offenses. The judge sentenced defendant to three years imprisonment on the indictable conviction. He merged the motor vehicle conviction (possession of a CDS in a motor vehicle) with the indictable conviction. He merged the paraphernalia conviction with the conviction of possession of less than 50 grams of marijuana, on which he imposed a fine. The judge also imposed all appropriate monetary assessments and suspension of driving privileges.
On appeal, defendant argues:
SINCE THE EVIDENCE ON THE MUNICIPAL DRUG OFFENSES WAS OTHER CRIMES OR BAD ACTS EVIDENCE WHICH WAS INADMISSIBLE AT THE JURY TRIAL OF THE 3RD DEGREE DRUG POSSESSION OFFENSE, THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL BOTH BY ALLOWING THE JURY TO HEAR THAT HIGHLY PREJUDICIAL EVIDENCE AND BY FAILING TO INSTRUCT THE JURORS THAT THEY COULD NOT CONSIDER IT WHEN DELIBERATING ON THE 3RD DEGREE DRUG CHARGE. (Not raised below).
A. BECAUSE THE EVIDENCE BEARING ON THE MUNICIPAL CHARGES WAS OTHER CRIMES OR BAD ACTS EVIDENCE INADMISSIBLE IN THE JURY TRIAL ON THE INDICTABLE DRUG CHARGE, IT SHOULD NOT HAVE BEEN HEARD IN THE PRESENCE OF THE JURORS.
B. EVEN IF IT HAD BEEN APPROPRIATE FOR THE JURY TO HEAR EVIDENCE ON THE MUNICIPAL CHARGES, THE TRIAL COURT FAILED TO GIVE A NECESSARY INSTRUCTION PRECLUDING THE JURORS FROM USING THAT EVIDENCE IN THEIR DELIBERATIONS ON THE 3RD DEGREE POSSESSION OFFENSE.
We reject these arguments and affirm.
On October 7, 2005, at about 10:20 p.m., Howell Township police officer Jesse Moore was on routine patrol. He observed a car parked behind a shopping center in a dark area designated as a fire zone, behind stores that were not open for business. This aroused his suspicion and he approached the car to investigate. He saw three young men sitting in car. Defendant was in the driver's seat, Eric Thompson was in the front passenger seat, and Kevin Boyle was in the back seat.
At Moore's request, defendant lowered the window. Moore immediately recognized a strong odor of burnt marijuana emanating from the car. He called for backup. He directed defendant and Thompson to get out of the car. According to Moore, he pat searched the two individuals and, feeling nothing resembling a weapon, did not remove any items from their persons. He said the same sequence of events occurred with Boyle.
When Thompson got out of the car, Moore observed a crushed cigar on the floor of the passenger's side. Based upon his training and experience, he believed this to be a marijuana cigar, commonly referred to as a "blunt." Moore seized the item and confirmed that it was rolled with green vegetation, which he believed to be marijuana.
Officer Nicholas Bondarew arrived and Moore directed him to arrest defendant. All three men were arrested for possession of marijuana. Incident to the arrest, Bondarew searched defendant and seized from him a pack of cigarettes. Upon removing the cigarettes from the pack, Bondarew found at the bottom of the pack a bag containing cocaine, which he gave to Moore.
After all three men were secured, the officers conducted a further search of the car. They found and seized a baggie containing green vegetative residue on the floor of the car.
Defendant testified at trial. He acknowledged he had been previously convicted of a crime and was on probation at the time of this incident. He said Thompson worked at a restaurant and bar in the shopping center, and, by prior arrangement, the three men were going to meet there to go out after Thompson finished working that evening. The car in which the three men were found belonged to defendant's mother, who was a patron in the restaurant and bar that evening. The three men got into the car, and Thompson took out the blunt, intending to smoke it. Defendant told him he could not smoke it in defendant's presence, because defendant was on probation and did not want to have anything to do with drugs or be found near drugs. Defendant therefore directed Thompson to get out of the car. Thompson went to his own car, which was parked nearby, and smoked the blunt, after which he returned to defendant's car and rejoined defendant and Boyle. Thompson was no longer smoking marijuana, but the odor of the burnt marijuana was on his clothing and person. It was then that Moore arrived.
Defendant denied that the cigarette pack was removed from his person. According to defendant, when Moore initially patted him down, Moore removed all personal items from his person and placed them on the roof of the car. Defendant contended that, although he was a smoker, he did not have any cigarettes in his possession that night. Defendant contended that Moore found the cigarette pack containing cocaine in Boyle's possession, which Moore removed from Boyle when he initially patted down Boyle.
In preliminary colloquy at trial, the procedure prescribed by Rule 3:15-3(a) was discussed. Without objection from either party, the judge said:
And I will permit the testimony concerning what else was found at the scene.
Even though I'm going to be doing the decision on any marijuana or paraphernalia, I'll permit that to come out during testimony and I'll advise the jury both before and in the final charge that they're to only consider the possession of CDS, which is cocaine or allegedly cocaine.
In preliminary instructions to the array of prospective jurors, the judge said:
Now you may hear testimony concerning other things in this case. They're not of your concern. You're only concerned with whether or not this defendant possessed cocaine either actually or constructively.
After opening statements, during which the prosecutor, without objection, described the sequence of events, including Moore's observation of the odor of burnt marijuana, and the presence of marijuana in the vehicle, the judge instructed the jury:
I had mentioned to you at the very beginning -- you heard [the prosecutor] in her opening talk to you about things that were found.
The only charge that you're concerned with is the cocaine charge. All right? You're not concerned with anything else. So, focus on that, okay, as the testimony comes in.
At no time during the trial did defendant object to the admission of testimony by the State's witnesses about the presence of marijuana. Indeed, defendant provided considerable testimony about the subject and, as we will discuss, used that information strategically in his defense. And, at no time during trial did defendant request any limiting instructions beyond those given by the judge, which we have set forth.
Defendant now argues he was deprived of a fair trial because the marijuana evidence constituted impermissible evidence of other crimes or bad acts that had the clear capacity to prejudice the jury and induce it to convict him of the possession of cocaine charge. Defendant now claims that the jury should not have been permitted to hear any evidence about the presence of marijuana in the car. He suggests that the testimony regarding the sequence of events should have been sanitized, and the jury should have simply been told "that defendant and his two passengers had been stopped and were being searched for an unrelated matter." Alternatively, defendant argues that if that evidence was permitted, the judge should have given a clear and comprehensive limiting instruction, informing the jury that it could only consider the information to place into context the sequence of events, but could not consider it as an indication of defendant's possession of cocaine.
Because there was no objection at trial to the marijuana evidence and no request for a further limiting instruction, we evaluate defendant's appeal arguments under the plain error standard, and we will not reverse unless any error was "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). With respect to the lack of a further limiting instruction, the plain error standard requires the finding of a "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970).
The State argues that the marijuana evidence was not evidence of other crimes or bad acts, but was part of the res gestae of the crime tried by the jury, which was properly admitted to paint for the jury a complete picture of the relevant criminal transaction, furnish context, and provide a full presentation of the case. See State v. Ortiz, 253 N.J. Super. 239, 244 (App. Div.), certif. denied, 130 N.J. 6 (1992). We agree with the State. To enable the jury to understand why Moore removed the occupants from their parked car, patted them down, placed them under arrest, and, incident to the arrest searched their persons, which ultimately resulted in discovery of the subject of the crime, the cocaine, it was necessary to reveal Moore's observation of the odor of burnt marijuana and the presence of the blunt in the car. Without that information, the police conduct would not have been understood to be reasonable.
Defendant's trial counsel did not propose the sanitization of the presentation in the manner now suggested by appellate counsel. The trial strategy chosen by defendant was to present this as an innocent situation from defendant's perspective, in which he had joined friends and socialized with his parents at the bar and restaurant for a time, after which he was going to go out with his friends using his mother's car. He was going to be the designated driver that evening, and would not drink (or use any drugs). He just happened to be in the presence of Thompson, who insisted on smoking a blunt before the three men went out, and Boyle, who had cocaine in his possession.
To present the sanitized version now urged on appeal, the jury would have been told that these three young men were stopped and were being searched for an unrelated matter, followed by a limiting instruction. However, this would have created a danger that jurors would speculate that defendant and his friends had done something or were suspected of doing something far more sinister than one of them possessing a small quantity of marijuana. Perhaps, for example, they were being stopped as suspects in a burglary or robbery. Injecting such a possibility into the case would have been potentially detrimental and certainly not consistent with the picture the defense was trying to paint for the jury.
Further, defendant attempted to use Thompson's possession and smoking of the blunt to his advantage in support of his strategy of placing the blame on Boyle. In summation, his attorney argued:
Do you really think that somebody would go through the pangs he went through to protect himself and his mother from any involvement in drug use by his friend, telling his friend to get out of the car and get away from the car if you're going to smoke that stuff. Do you think he'd do that to a person he knew for over ten years, what was a good friend? Go stand aside. People don't like to tell their friends to stand aside in their houses to smoke a regular cigarette. He let him out of the car so he wouldn't be near this stuff. Do you think that kind of a person is going to be in possession of cocaine? That makes no sense whatsoever. [Emphasis added.]
We do not find plain error in the admission of the marijuana evidence or in the failure to give any additional limiting instruction. The admission of this evidence and the absence of such further instruction have not raised in our minds a reasonable doubt as to whether the jury might otherwise have reached a different result.
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