February 18, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ISSAC OUTEN, A/K/A IKE OUTEN, ICE OUTEN, OSSAC OUTEN, ISAAC W. OUTEN, RASHONE I. OUTEN, RASHAN AUTEN, RASHANNE OUTEN, GERARD BUNUCCI, DWAYNE COLUP, WHITE BOY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-12-2827-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2008
Before Judges Lisa, Sapp-Peterson and Alvarez.
Defendant, Issac Outen, and Mark Whitley were passengers in a car driven by Rahmann Reeds on August 14, 2002 in Bergen County. Two Bergen County police officers stopped the car because it was allegedly being driven at an excessive speed and in an erratic manner. An officer smelled the odor of burnt marijuana emanating from the car and saw an open beer bottle near where defendant was seated in the rear seat. As the encounter progressed, the officer saw a burnt marijuana joint in the center console, between where Whitley and Reeds were initially sitting in the front seat. Ultimately, the officer observed several wax paper folds of heroin on the floor where Whitley had been seated. The police searched the car and found additional large quantities of heroin under the front passenger seat. In all, they seized 798 folds of heroin. Six bags of marijuana were also found in the front passenger area.
The three men were jointly indicted for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), and second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2).*fn1 After their suppression motion was denied, the three were tried together and all were convicted of both charges. After merging the possession count with the possession with intent to distribute count, the judge sentenced defendant to a mandatory extended term, see N.J.S.A. 2C:43-6f, of ten years imprisonment with a three-and-one-third-year parole disqualifier.
At trial, the State presented an expert in the area of narcotics distribution and possession. In response to a hypothetical question, the expert opined that in circumstances such as these all three occupants of the car constructively possessed the CDS.
Defendant filed a notice of appeal on July 20, 2005. His brief was not filed, however, until August 14, 2007, followed by the State's brief on January 14, 2008. Reeds also appealed, and a panel of this court affirmed his conviction on September 27, 2007. State v. Reeds, No. A-1805-05T4 (App. Div. September 27, 2007). We heard argument in defendant's appeal on September 29, 2008. On January 22, 2009, the Supreme Court reversed Reeds' conviction, holding that the expert's testimony regarding constructive possession by all three men constituted plain error, requiring a new trial. State v. Reeds, ___ N.J. ___, ___ (2009) (slip op. at 27-28).
In his initial brief in this case, defendant did not raise the issue of the expert's testimony. He presented these arguments:
THE DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED BECAUSE THE WARRANTLESS SEARCH UNDER THE FRONT PASSENGER SEAT AND SEIZURE OF THE HEROIN AND MARIJUANA FOUND THERE, AS WELL AS THE WARRANTLESS SEIZURE OF OTHER EVIDENCE INSIDE THE AUTOMOBILE, VIOLATED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS. U.S. Const. Amends. IV; XIV; N.J. Const. Art. I, ¶ 7.
SINCE THE PROSECUTOR'S REASON FOR REMOVING ALL YOUNG JURORS WAS NOT BASED ON SITUATION-SPECIFIC BIAS, BUT ON THE PROSECUTOR'S STEREOTYPICAL ASSUMPTION THAT YOUNG PEOPLE "CANNOT BE FAIR ON DRUG CASES AND HAVE LIBERAL TENDENCIES" DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A JURY CONSISTING OF A REPRESENTATIVE CROSS-SECTION OF THE COMMUNITY. U.S. Const. Amend. I, VI, XIV; N.J. Const. Art. I, ¶¶ 5, 9, 10. (Partially Raised Below).
Since the Supreme Court's decision in Reeds, defendant filed a supplemental brief presenting the following additional argument:
THE ADMISSION OF THE EXPERT'S "CONSTRUCTIVE-POSSESSION TESTIMONY, AND THE CONFOUNDING EFFECT FROM THE INSTRUCTION PROVIDED TO THE JURY, CAUSED TRIAL ERROR THAT WAS CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT." STATE V. REEDS, ___ N.J. ___, ___ (2009) (SLIP OP. AT 28). U.S. Const. Amends. VI; XIV; N.J. Const. Art. I, ¶ 1.
The State advised by letter of February 9, 2009 that it "will not be filing a response in opposition to defendant's supplemental brief."
In light of the Court's decision in Reeds, and for the reasons stated in that decision, we reverse defendant's conviction and remand for a new trial. This disposition renders moot the jury selection issue defendant raised in Point II of his initial brief. We decline to address the suppression issue defendant raised in Point I of his initial brief. That issue is preserved in the event defendant is again convicted.*fn2 Reversed and remanded for a new trial.