July 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALQUADIN SALES, A/K/A ALLEN ROBERTS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. I-07-03-1029.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 27, 2009
Before Judges Wefing, Yannotti and LeWinn.
Tried to a jury, defendant was convicted of two counts of possession of a controlled dangerous substance ("CDS") with intent to distribute, one in the first degree, N.J.S.A. 2C:35-5(b)(1), and one in the third degree, N.J.S.A. 2C:35-5(b)(3); two counts of possession of CDS with intent to distribute within five hundred feet of a public facility, N.J.S.A. 2C:35-7.1, a crime of the second degree; two counts of third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1); two counts of possession of CDS with intent to distribute in a school zone, a crime of the third degree, N.J.S.A. 2C:35-7; and two counts of possession of CDS, a crime of the third degree, N.J.S.A. 2C:35-10(a)(1). He was found not guilty of three counts of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), -5(c)(1), -5(f); possession of dum dum bullets, N.J.S.A. 2C:39-3(f); and committing a drug offense while possessing a firearm, N.J.S.A. 2C:39-4.1. He was sentenced to an aggregate term of sixteen years in prison, with a seven-year period of parole ineligibility. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we reverse defendant's convictions and remand for further proceedings.
At approximately ten o'clock on the morning of September 22, 2006, members of the Orange Police Department executed a search warrant for apartment 609 at 97 Wilson Place. The search warrant had been obtained in conjunction with an investigation into drug-dealing from that address by Sharif and Gary Mayfield. The apartment in question was rented by A.A.; her sister, Asia, was the girlfriend of Sharif Mayfield. By the time the police executed this warrant, both Mayfield brothers had been arrested on other charges and were in custody. Detective Brian Mooney of the Orange Police Department testified that the police continued to receive complaints of drug-dealing from that address after the arrest of the Mayfield brothers.
When the police entered the apartment, defendant was the only occupant. Detective Mooney, who was the first entering officer, said that defendant fled down the hall toward the bathroom. Mooney pursued him into the bathroom and saw defendant with his hands on the windowsill. A quantity of narcotics was recovered from the windowsill, specifically forty-three envelopes of heroin and eight grams of cocaine. Defendant was arrested and placed in handcuffs. Other members of the team searched the apartment and additional quantities of narcotics were found, including eight grams of crack cocaine discovered in a closet. The search of the apartment turned up a locked safe stored under a bed in one of the bedrooms. A patdown search of defendant led to the discovery of a key ring, more than $2,000 in cash and a small quantity of marijuana. The key to the safe was on that keyring. The police opened the safe and found 287 grams of crack cocaine and 200 envelopes of heroin. All of the heroin in the apartment bore the stamp, "Lights Out."
In addition, the search led to the discovery of a number of weapons, including an assault rifle and a shotgun. These were found hidden under the mattress of the bed under which the safe had been secreted.
The State presented three witnesses, all police officers who had been involved in the search of the apartment. It did not present any expert testimony with respect to the narcotics which were recovered, but the parties stipulated to the admission of the laboratory reports which set forth the results of the tests performed upon the three groups of narcotics that were recovered.
Defendant testified and explained to the jury that he had been completely unaware of the presence of the drugs and weapons. He said he lived in Newark with his girlfriend and had an argument with her which led him to leave. He needed a place to stay that night and called A.A., who was a good friend of his; he described her as like a sister to him. She was staying with her mother, who was quite ill, but she told him he could stay in her apartment. He said he took a cab to the home of A.A.'s mother and that she came downstairs and simply gave him the key ring, explaining which keys opened the exterior door to the building and which opened the apartment door. He then took the cab to the apartment in Orange, arriving around three o'clock in the morning. He did not look around the apartment at all, but simply went to sleep on the couch in the living room. He had just gotten up the following morning to go to work when the police arrived. He denied running into the bathroom. He said the police immediately handcuffed him. He said the money the police found in his pocket represented his savings from his job at a U-Haul facility in Jersey City. He said he took that money with him when he left his girlfriend's apartment because he did not want to leave it behind. Defendant was on parole at the time of his arrest. He said he never would have gone to that apartment if he had known that the drugs and weapons were there. As is apparent by the jury's verdict, it found him guilty with respect to the possession of the narcotics but not guilty with respect to possession of the weapons. The reason for the distinction drawn by the jury is not immediately apparent.
Defendant raises the following arguments on appeal:
IMPROPER REMARKS IN THE PROSECUTOR'S OPENING AND SUMMATION, DESIGNED TO URGE THE JURY TO CONVICT TO PROTECT SOCIETY FROM DRUGS AND VIOLENCE, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10. (Not Raised Below).
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY TO FIND THE WEIGHT OF THE COCAINE AS AN ELEMENT OF THE FIRST DEGREE DRUG OFFENSE DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10. (Not Raised Below).
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
The prosecution struck its theme at the outset. The prosecutor commenced his opening to the jury with the following statement:
Ladies and gentlemen, narcotics are a growing and growing problem in our society and narcotics hurt everyone. They don't just hurt the individuals who use narcotics for addition [sic]. It slowly eats away at our communities.
He returned to this theme in his summation.
It looks bad for Mr. Sales, it is bad for Mr. Sales. It's bad for all of us. This case was more than just about guns and drugs and money. It's about our communities. The safety of our community, the fact that drugs are rotting away our community. The fact that individuals have weapons to protect the drugs that are rotting away our community.
Is this what we want in the apartment next door to us? Is this what we want in the apartment down the street from us? I submit to you, it is not. The case is about the safety of our communities.
Defendant made no objection to these remarks when they were made but now urges that they were so prejudicial they entitle him to a new trial. We are constrained to agree.
We recognize that prosecutors are given wide latitude in their summations and are not expected to address the jury as if in a lecture hall; they are entitled to be "forceful and graphic." State v. Frost, 158 N.J. 76, 83 (1999) (quoting State v. DiPaglia, 64 N.J. 288, 305 (1974) (Clifford, J., dissenting)). We also recognize that ordinarily a defendant will not be heard to claim that he was prejudiced by a prosecutor's summation if he did not object at the time. State v. Farrell, 61 N.J. 99, 106 (1972).
We cannot, however, apply that principle here, when, in our judgment, these remarks cannot be considered anything other than wholly improper. The case before the jury was not about "guns and drugs and money." It was not about the "growing problem" of narcotics in society. The issue before the jury was whether the State had proven beyond a reasonable doubt that defendant possessed the drugs and weapons that were found in this apartment. That question had to be decided by a rational review of the evidence that had been presented, not by a call to arms, asking the jurors to protect their own streets from the scourge of the drug trade. State v. Holmes, 255 N.J. Super. 248, 251-52 (App. Div. 1992). In our judgment, these remarks were so improper and so capable of turning the jury against defendant and away from a considered review of the evidence that we perceive no recourse but to reverse his convictions.
We are also compelled to comment upon the trial court's charge with respect to defendant's conviction for first-degree possession with intent, in the event of a retrial. Prior to charging the jury the trial court explained to counsel its view that it was necessary to pose to the jury special interrogatories asking separately whether defendant possessed the narcotics recovered from the bathroom windowsill, the closet or the safe. It reached this conclusion in light of the fact that it was only by including the drugs stored in the locked safe that a weight of five ounces or more could be achieved, the quantum necessary for the first-degree crime charged in the second count of the indictment. N.J.S.A. 2C:35-5(b)(1). It noted that the jury could conclude that defendant possessed some of the drugs found in the apartment but not all of them. The trial court submitted the following questions to the jury on the verdict sheet with respect to the second count of the indictment.
How do you find the defendant Alquadin Sales as to the charge of possession of a controlled dangerous substance (Cocaine on the Bathroom Windowsill) (S2) with the intent to distribute on September 22, 2006?
NOT GUILTY ______ GUILTY ______
How do you find the defendant Alquadin Sales as to the charge of possession of a controlled dangerous substance (Cocaine in the Closet) (S3) with the intent to distribute on September 22, 2006?
NOT GUILTY ______ GUILTY ______
How do you find the defendant Alquadi Sales as to the charge of possession of a controlled dangerous substance (Cocaine in the Safe) (S7) with the intent to distribute on September 22, 2006?
NOT GUILTY ______ GUILTY ______
The jury answered these questions that defendant was guilty of possessing the CDS recovered from the bathroom windowsill, not guilty of possessing the CDS recovered from the closet, and guilty of possessing the CDS found in the safe.
Within its charge to the jury, the trial court dealt appropriately with the definition of controlled dangerous substances, purposeful and knowing conduct, and the concept of actual and constructive possession. At no point, however, was the jury instructed that to find defendant guilty under the second count of the indictment, the jury had to find that the cocaine had a weight of five ounces or more. And the jury verdict form which we have set forth was also silent on the topic.
Defendant argues that the failure of the trial court to require the jury to make a finding whether the quantity of cocaine defendant possessed was five ounces or more constituted plain error. Again, we are constrained to agree.
We take our guidance from State v. Florez, 134 N.J. 570 (1994). Defendants were arrested after purchasing a kilogram of cocaine from a paid informant. Id. at 574. They were charged with conspiracy to possess the cocaine and conspiracy to distribute it. Id. at 575. Much of the Court's opinion addresses whether the State had to disclose the identity of the informant and whether defendants were entrapped. In that case, however, as here, the trial court did not charge the jury that the weight of the cocaine was an essential element of the first-degree crime.*fn1 Id. at 594. And, as here, the defendants did not object to that omission. Ibid. The State "acknowledged that the weight of the controlled dangerous substance is a material element of the crime of first-degree possession with intent to distribute. . . ." Id. at 595. Further, the State conceded that the failure to instruct the jury with respect to the weight of the cocaine required a reversal of defendants' convictions. Ibid. The Supreme Court stated that these positions were correct and referred approvingly to our earlier decision in State v. Roberson, 246 N.J. Super. 597 (App. Div. 1991). Ibid.
In Roberson, we reversed the defendant's conviction for second-degree possession of more than one-half ounce of cocaine when the trial court failed to have the jury determine whether the amount of cocaine at issue totaled that weight. Roberson, supra, 246 N.J. Super. at 607. We noted that this omission required a reversal of the defendant's conviction even though the State's evidence with respect to the quantum of the cocaine was "uncontradicted." Ibid.
We reject the position put forth by the State in this appeal, that the trial court's omission can be cured by the stipulated admission of the laboratory reports, which did note the weight of the cocaine recovered from each location. The trial court clearly and correctly told the jury that it was not bound by the parties' stipulation of admissibility and that "undisputed facts can be accepted or rejected by the jury in reaching a verdict." Even in the face of what may seem obvious and indisputable, "[t]here is simply no substitute for a jury verdict." State v. Vick, 117 N.J. 288, 291 (1989).
Even if we had been able to conclude that defendant's convictions were not tainted by the prosecutor's remarks, we would still be compelled to reverse his conviction for first-degree possession with intent, based upon this omission by the trial court.
Our reversal of defendant's convictions makes it unnecessary to address his argument with respect to his sentence.
Reversed and remanded for further proceedings in accordance with this opinion.