February 17, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DWAYNE MYLES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-07-1051.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2008
Before Judges A. A. Rodríguez, Payne and Waugh.
Defendant, Dwayne Myles, was convicted of the third-degree crimes of possession of cocaine, N.J.S.A. 2C:35-10a(1), possession with the intent to distribute cocaine, N.J.S.A. 2C:35-5a(1) and b(3), possession of cocaine with the intent to distribute it within 1,000 feet of a school, N.J.S.A. 2C:35-7, possession of heroin, N.J.S.A. 2C:35-10a(1), possession of heroin with the intent to distribute it, N.J.S.A. 2C:35-5a(1) and b(3), distribution of cocaine, N.J.S.A. 2C:35-5a(1), and distribution of cocaine within 1,000 feet of a school, N.J.S.A. 2C:35-7. Following merger, defendant was sentenced to five years of imprisonment with three years of parole ineligibility on the conviction for possession of cocaine with the intent to distribute it within 1,000 feet of a school, five years of imprisonment with two and one-half years of parole ineligibility on the conviction for possession of heroin with the intent to distribute it, and an extended term of eight years of imprisonment with four years of parole ineligibility on the conviction for distribution of cocaine within 1,000 feet of a school. All prison terms were to be served concurrently. Defendant has appealed from his conviction and sentence.
On appeal, defendant raises the following arguments:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S ERRONEOUS THEORY OF LIABILITY SUPPORTED BY THE TRIAL COURT'S INSTRUCTION THAT PERMITTED THE JURORS TO CONVICT THE DEFENDANT OF POSSESSION WITH THE INTENT TO DISTRIBUTE AND DISTRIBUTION OF CDS SOLELY ON THE BASIS OF JOINT POSSESSSION. (Not Raised Below)
A. THE PROSECUTOR ERRONEOUSLY PROCEEDED ON THE THEORY THAT JOINT POSSESSION IS TANTAMOUNT TO AN INTENT TO DISTRIBUTE AND DISTRIBUTION.
B. THE TRIAL COURT ERRED IN ITS INSTRUCTION ON THE LAW OF DISTRIBUTION AND INTENT TO DISTRIBUTE CDS BY FAILING TO MAKE IT CLEAR THAT A TRANSFER BETWEEN JOINT POSSESSORS IS NOT DISTRIBUTION.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE AFTER THE JURY ASKED FOR A RE-INSTRUCTION ON THE LAW OF INTENT TO DISTRIBUTE CDS. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S DECISION TO SUSTAIN A FIFTH AMENDMENT CLAIM BY A DEFENSE WITNESS WHO HAD PREVIOUSLY WAIVED HER FIFTH AMENDMENT RIGHTS.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO GRANT THE DEFENDANT'S REASONABLE REQUEST FOR AN ADJOURNMENT.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO SHOW THAT ITS WITNESSES HAD FIRST-HAND KNOWLEDGE OF THE FACTS. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO SANITIZE THE DEFENDANT'S PRIOR CONVICTIONS.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE OF THE TRIAL COURT TO PROHIBIT THE JURY FROM DRAWING ADVERSE INFERENCES FROM CRIMINAL DISPOSITION AND CHARACTER EVIDENCE. (Not Raised Below)
THE SENTENCE WAS EXCESSIVE.
A. THE DEFENDANT WAS IMPROPERLY SENTENCED TO AN EXTENDED TERM.
1. THE TRIAL COURT ERRONEOUSLY IMPOSED AN EXTENDED TERM BASED ON N.J.S.A. 2C:43-6(F).
2. THE TRIAL COURT ERRONEOUSLY IMPOSED AN EXTENDED TERM BASED ON N.J.S.A. 2C:43-3(A).
B. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
C. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
Testimony by police detectives Steven Iacuzzo and Jack DeSalvo disclosed that, on April 19, 2005 at approximately 2:20 a.m., the two men were patrolling an area in Paterson in an unmarked police vehicle. As they rounded a corner, they observed what they believed to be a hand-to-hand transfer of drugs for money between defendant and a woman, Erka*fn1 Shannon. The officers arrested the two, and upon arrest, Shannon was found to have a small bag of what appeared to be crack cocaine in her right hand; defendant held a ten-dollar bill. Upon further search, defendant was found to possess an additional six baggies of crack cocaine, nine packets of heroin and thirty-six dollars in cash. Shannon was found to possess two glass stems of the type used to smoke crack cocaine. The cocaine in Shannon's possession was packaged in a fashion that was like those remaining in defendant's possession. The transfer between defendant and Shannon occurred within 1,000 feet of Public School #6, an operating elementary school.
Defendant, who testified on his own behalf, gave a different version of the events. According to him, he and Shannon had been engaged in a romantic relationship spanning two and one-half years at the time of their arrest. It was defendant's testimony that he had purchased the cocaine and heroin from an unknown black man, while in Shannon's presence, using money he had won at gambling, and that it was his intent to use the drugs "[a]long with Ms. Shannon." Defendant denied that he had "distributed" the drugs to Shannon or that he possessed them with the intent to sell them to other people. Nonetheless, he gave the following testimony in response to the prosecutor's cross examination:
Q: How much money did you go out with that night when you went out?
A: I won a hundred dollars that night.
Q: You went out with a hundred?
Q: And your intention was to share - was to give some of the drugs you had in that sandwich bag to Erika Shannon?
A: We purchased them together. My intention was to use them with her, yes.
Q: Did she give you the money to buy the drugs?
Q: You both went together and paid together.
Q: And how much money did she pay?
A: I made the purchase. I bought the drugs.
Q: You bought the drugs?
* * * Q: So you paid the money to this black male for the drugs; correct?
Q: And then you were going to give her some of the drugs that you purchased?
Defendant admitted that he was a drug addict, and he testified that he would use twenty to thirty baggies of crack cocaine and approximately six to seven baggies of heroin per day. He also admitted to having been convicted of third-degree theft on July 23, 1993, of second-degree robbery on June 21, 1996, and second-degree robbery on December 8, 2000. Evidence of a prior drug-related conviction was not introduced at trial.
On appeal, defendant claims that he possessed the drugs at issue jointly with Shannon for their personal use. Building on this assertion, defendant argues that the prosecutor mischaracterized the law when he claimed that defendant's conduct, as admitted by him, demonstrated an intent to distribute and distribution to Shannon. Defendant further contends that the trial judge made the same legal error in instructing the jury. In support of his arguments, defendant relies on State v. Morrison, 188 N.J. 2 (2006), State v. Lopez, 359 N.J. Super. 222 (App. Div.), certif. granted, sub nom. State v. Garcia, 177 N.J. 576, appeal dismissed, 178 N.J. 372 (2003) and United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977).
The difficulty that we find with defendant's argument lies in the fact that he failed to prove joint possession, having been unable to demonstrate that he and Shannon "simultaneously acquired possession [of the drugs] at the outset" for their own use. Swiderski, supra, 548 F.2d at 450-51. In Swiderski, defendant and his fiancée (later, his wife) jointly traveled to a location where they sampled cocaine and Swiderski paid for its purchase, pocketing the drugs. Shortly thereafter, the drugs, along with considerable additional cash, were found by Drug Enforcement Agency officers in the fiancée's purse. Swiderski, supra, 548 F.2d at 448. The court held their "simultaneously acquired" possession to be joint, id. at 451, and that Swiderski had not distributed the drugs to his fiancée. Id. at 450.
In Lopez, the police entered defendants' residence pursuant to a no-knock warrant, finding both to be present, along with small numbers of marijuana cigarettes and small amounts of loose marijuana, lactose, baggies, walkie-talkies, a pipe, and, behind the kitchen wall and molding, a small amount of cocaine. We held as a matter of law in that case that the prosecutor's theory that defendants jointly possessed and shared the drugs could not support charges of possession with the intent to distribute. Lopez, supra, 359 N.J. Super. at 236.
And in Morrison, defendant pooled his money with that of a friend, and they jointly drove to a location where they purchased heroin, which they then shared. That joint possession, the Court held, could not provide the foundation for an indictment charging defendant with the distribution of two decks of heroin to his friend, resulting in his death. 188 N.J. at 19-20.
We stated in Lopez,
The legal concept of "joint possession" is premised upon a metaphysical event in which two or more persons simultaneously possess an entire object, without leaving any piece of it outside the joint possessors' control. A corollary of this proposition is that one cannot acquire something one already possesses. Having an object with the intent to distribute presumes that the intended recipient does not have possession of it. Therefore, as a matter of law, two or more defendants cannot intend to distribute to each other drugs they jointly possess. Stated differently, the element of "intent to distribute" under either N.J.S.A. 2C:35-5 or N.J.S.A. 2C:35-7 cannot be established on the basis of the sharing of drugs between or among joint possessors. [357 N.J. Super. at 233-34.]
However, while "the sharing of drugs by individuals in joint possession . . . does not constitute 'intent to distribute' within the meaning of N.J.S.A. 2C:35-5 and N.J.S.A. 3C:35-7," Lopez, supra, 359 N.J. Super. at 228, the crucial element of joint possession is lacking in the present case, which can be distinguished from the precedent upon which defendant relies, because defendant admitted that he used his own funds for the purchase of the drugs, with no contribution from Shannon. In Lopez, we noted the numerous cases holding Swiderski's principles inapplicable in the present context. Lopez, supra, 359 N.J. Super. at 235. Although Shannon was allegedly present during the transaction and allegedly was romantically involved with defendant, there is no evidence to suggest that she pooled her money with that of defendant for purposes of the drug purchase (as in Morrison) or that she maintained either actual or constructive joint control over any of the drugs at any time (as in Swiderski and Lopez). Except for the one baggie transferred to her by defendant, all of the drugs remained at all times within defendant's possession and control. And there is no evidence that would suggest joint control over the one transferred baggie.
Morrison holds that in determining whether possession was joint or sole, the totality of the circumstances must be considered. Morrison, supra, 188 N.J. at 19. That decision also lists as factors to be considered: whether the relationship of the parties is commercial or personal, the statements and conduct of the parties, the degree of control exercised by one over the other, whether the parties traveled and purchased the drugs together, the quantity of the drugs involved, and whether one party had sole possession of the controlled dangerous substance for any significant length of time. [Ibid.]
See also Swiderski, supra, 548 F.2d at 450.
Having considered the evidence in light of the factors articulated by the Court, we find the evidence to be insufficient to establish the joint possession that defendant claimed to exist in this case. Because the evidence demonstrates that defendant was the sole possessor of the drugs, his transfer of one baggie containing crack cocaine to Shannon constituted distribution, even if no money was exchanged. State v. S.C., 289 N.J. Super. 61, 70 (App. Div.) (drugs purchased to share with fiancée were intended to be distributed to her), certif. denied, 145 N.J. 373 (1996). The prosecutor thus correctly articulated the law, and the judge's instruction was likewise correct. As a consequence, we reject the arguments contained in Points I and II of defendant's brief.
At her arraignment, Shannon denied that defendant had sold her the drugs that were found in her possession on April 19, 2005, and she stated that she would take that position if called as a witness at defendant's trial. However, prior to defendant's trial, Shannon pled guilty to possession of cocaine, testifying under oath that she had given money to defendant in exchange for the drug in a sale transaction. As part of her plea, Shannon agreed to testify for the State against defendant, should she be called upon to do so. In that connection, the following exchange occurred:
Q: And you understand at the time of trial, you have to give accurate and complete testimony, the same testimony that you're giving today. Do you understand that?
Q: If you deviate or fail to cooperate with the Prosecutor's Office in the prosecution of Mr. Myles, if his case goes to trial, the prosecution can pull the plea offer and you'd be scheduled to go to trial as well. Do you understand that?
Q: Okay. Also, if you lie under oath, either today or at trial . . . you will be charged with perjury. Do you understand that?
Shannon was awaiting sentencing when defendant's trial occurred. Shannon was not called to testify by the State, but instead, by defendant. Out of the presence of the jury, she invoked her Fifth Amendment right to remain silent, refusing to answer any questions posed to her by counsel and the court.
On appeal, defendant asserts for the first time that the trial judge erred when he allowed Shannon to assert her Fifth Amendment right against self-incrimination when called as a defense witness, arguing that Shannon waived that right by expressing her willingness to testify at defendant's trial, upon arraignment and during her plea, albeit to opposing versions of the facts. It is defendant's position that if Shannon had testified in accordance with her plea, defense counsel would have introduced her testimony at arraignment as a prior inconsistent statement constituting substantive evidence of defendant's non-culpability. Thus, defendant was prejudiced by Shannon's invocation of her constitutional rights.
We reject defendant's position that reversible error was committed as contrary to precedent, which has consistently recognized the right of an accused, having pled guilty and awaiting sentence, to refuse on Fifth Amendment grounds to testify at the trial of a co-defendant. See State v. Tyson, 43 N.J. 411, 416 (1964) (observing that requiring the accused to testify would jeopardize his ability to withdraw his guilty plea), cert. denied, 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed. 2d 279 (1965); State v. Abrams, 256 N.J. Super. 390, 398-99 (App. Div.) (holding that the accused's "privilege to refuse disclosure of any matter that would incriminate her cannot be questioned"), certif. denied, 130 N.J. 395 (1992); State v. Nunez, 209 N.J. Super. 127, 131-32 (App. Div. 1986) (holding that because the accused's testimony would be self-incriminating and because he had yet to be sentenced and to exhaust his appellate remedies, the argument that he no longer had a valid Fifth Amendment privilege to assert was "obviously incorrect"), certif. denied, 107 N.J. 628 (1987); State v. Fort, 197 N.J. Super. 113, 117-18 (App. Div. 1984), rev'd on other grounds, 101 N.J. 123 (1985).
We regard the arguments raised by defendant in Points IV (failure to grant adjournment requested on day of trial to permit substitution of counsel); V (failure of local police witnesses to demonstrate first-hand knowledge of status of school); VI (failure to sanitize totally dissimilar convictions); and VII (failure to prohibit the jury from drawing an adverse inference from defendant's voluntary admission of drug dependency as an aspect of his defense*fn2 ) to be without sufficient merit to warrant discussion in a written opinion.
We likewise find no merit in defendant's argument that his sentence was excessive. In that regard, defendant first argues that he was improperly sentenced to an extended term pursuant to N.J.S.A. 2C:43-6(f) because the prosecutor's decision to seek such a term constituted an arbitrary and capricious abuse of discretion under the Attorney General's Guidelines. See State v. Kirk, 145 N.J. 159, 169 (1996) (setting forth guidelines, including factors upon which a prosecutor may rely as a basis for waiving an enhanced sentence). However, we do not find in the record the clear and convincing evidence of arbitrariness that is required in this circumstance. State v. Lagares, 127 N.J. 20, 33 (1992). Indeed, none of the bases for waiver enumerated by the Attorney General are applicable in this case. As the Court stated in Lagares, defendants "have to do more than merely make general conclusory statements that a prosecutorial determination was abusive." Ibid. But defendant has done little more. Defendant's claims that he was the one most harmed by the "ordeal," his crime was not one of violence, and his concurrent sentence was already enhanced as the result of the school zone violation merely express circumstances common to most drug crimes, and fall far short of clear and convincing evidence of prosecutorial abuse.
Defendant next claims error in the court's determination that extended sentencing as a persistent offender was also appropriate under the discretionary provisions of N.J.S.A. 2C:44-3(a). However, we find that conclusion to have been well founded, given defendant's record of four prior convictions, including the three mentioned at trial and a prior, August 2001, conviction for distribution of drugs in a school zone, for which he received a four-year sentence with three years of parole ineligibility.
We likewise find, contrary to defendant's arguments, that the trial judge's findings of fact regarding the presence of aggravating factors 3, 6 and 9 (see N.J.S.A. 2C:44-1a(3), (6) and (9)) and the absence of mitigating factors (see N.J.S.A. 2C:44-1b) was based on competent and credible evidence in the record, that the judge did not incorrectly apply the sentencing guidelines enunciated in the Code and that in applying the facts to the law, the judge reached a conclusion that could have reasonably been made upon a weighing of the relevant factors. State v. O'Donnell, 117 N.J. 210 (1989), State v. Ghertler, 114 N.J. 3883 (1989), State v. Roth, 95 N.J. 334 (1984). As a final matter, we conclude that the findings of fact made by the judge in support of defendant's extended-term sentence did not violate either Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000) or Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). See State v. Pierce, 188 N.J. 155, 162-63 (2006).