On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 00-05-0599.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 22, 2009
Before Judges Wefing,*fn1 Grall and LeWinn.
Tried to a jury in absentia, defendant Uche Adim was convicted of four third-degree crimes: possession of cocaine, N.J.S.A. 2C:35-10a(1); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1), b(3); distribution of cocaine, N.J.S.A. 2C:35-5a(1), b(3); and conspiracy to distribute cocaine, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5. The judge merged defendant's convictions for possession, possession with intent and conspiracy with his conviction for distribution and sentenced defendant, who was subject to a mandatory extended term, N.J.S.A. 2C:43-6(f), to a ten-year term of imprisonment subject to a five-year period of parole ineligibility. The judge also imposed the mandatory fines, penalties, assessments and fees.
On the evening of January 18, 2000, Detective David Ash of the Stafford Township Police Department was off duty. He went to a store in a shopping plaza and, while walking back to his car, heard loud music playing in a Chevy Cavalier. The Cavalier was parked in front of and facing in the same direction as his car. Although the detective noticed the Cavalier, he did not approach its driver - Michael Henrick.
Before the detective moved his car, a Buick was driven into a parking space next to the Cavalier. Defendant was the only passenger. Detective Ash watched while Henrick left his Cavalier and defendant opened the door of the Buick. Henrick knelt behind the open door of the Buick, handed defendant cash and accepted something defendant held in his hand.
Although he was not on duty, Detective Ash had his badge and a police radio in his car. He called for back-up, left his car, went to the Buick, identified himself as a police officer and directed the driver and defendant to get out. The detective searched defendant and retrieved two cell phones, a pager and about $1300 in cash from the pockets in defendant's sweatshirt and pants. Detective Ash knew that Henrick was standing between and toward the rear of the cars, but he did not approach him until the other officers arrived. He later found a torn-off, knotted top of a plastic baggie on the ground between the cars, checked the rear wheel well of the Buick and removed from the top of the tire a knotted baggie containing four folds of a white powdery substance.
Henrick and defendant were taken to police headquarters, and defendant's cell phones and pager were placed on a table while his arrest was processed. Lieutenant Conroy was in the room. Noting that the pager was signaling "non-stop," Conroy used one of the phones the detective had retrieved and responded to a page. Deborah Demyan answered the call and asked for "Pete." Posing as a friend of Pete's, Conroy spoke to Demyan; she asked when Pete would make the delivery she was expecting. Conroy arranged to come to her home as she requested. When he arrived at her door, Demyan gave him money for the cocaine and food and drink for Pete.
The service providers for the cell phones taken from defendant subsequently told Detective Ash that the phones had not been reported stolen. One was listed in the name "Pete Adim."
Henrick confessed and described what happened. Before going to the shopping plaza on January 18, he paged a man from whom he had purchased cocaine in the past and whom he knew only as "Pete." As he had in the past, Pete called Henrick in response to the page; after speaking twice, they arranged to meet in the parking lot of the shopping plaza. Henrick had his car radio on while he awaited Pete's arrival, and when Pete arrived, Henrick gave him $120 and received four folds of cocaine, which he later placed on the tire of the Buick. Prior to defendant's trial, Henrick pled guilty and was sentenced to a term of probation.
Demyan was admitted to the pre-trial intervention program. Like Henrick, Demyan knew defendant as "Pete" and had purchased cocaine from him in the past by contacting him through his pager. She acknowledged that she spoke with Lieutenant Conroy and gave him money for her drugs and food for Pete.
Henrick, Demyan, Detective Ash and Lieutenant Conroy testified at trial. Henrick and Demyan were shown a photograph of defendant; both identified him as the man they knew as Pete. The parties stipulated "that the items submitted to the lab" were "in fact cocaine" and to "the accuracy [of] the lab report and certificate of analysis."
On that evidence, the jury returned a verdict of guilty on charges of possession of the cocaine Henrick placed on the tire, possession with intent to distribute, distribution and conspiring with Demyan to distribute cocaine.
Defendant raises three issues on appeal:
I. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO CONFRONT AND CROSS-EXAMINE A FACT WITNESS.
II. THE COURT ERRED BY NOT DECLARING A MISTRIAL AFTER THE JURY NOTIFIED THE COURT TWICE THAT IT WAS DEADLOCKED.
III. THE STATE FAILED TO DEMONSTRATE THAT DEFENDANT ADIM WAS THE OWNER OF THE CELL PHONES AND PAGER.
Defendant contends that he is entitled to a new trial because, after the jurors reported that they were "not in agreement" and were each "firm" on that decision, the judge gave them an instruction to deliberate further that impermissibly pressured them to reach a verdict. Because the supplemental instruction was coercive and accompanied by the judge's outline of the State's evidence, we agree that a new trial is warranted.
This is the context in which the judge issued the supplemental instruction directing further deliberations. The prosecutor opened to the jury at 1:30 p.m. on August 8 and the jurors commenced deliberations at 12:05 p.m. on August 9. The jurors broke for a one-hour lunch at 12:30 p.m. At 2:35 p.m. the jurors sent the judge a note that read: "The record will reflect we cannot agree on any of the counts. What should we do from here?"
Well, the short answer is, is that you've really only been deliberating for a short period of time, and you should continue to deliberate.
I can't tell you how to deliberate or discuss the evidence to see if you can reach an agreement on the facts, but I will remind you that you are the judges of the facts, and you are to apply the law as I have instructed you to the facts as you find them to be.
I can tell you that we have the balance of the afternoon, and we'll deliberate through the afternoon. We have all day tomorrow, and we'll continue to deliberate with a view towards reaching a verdict in that regard. [(Emphasis added).]
The judge also repeated an instruction on reasonable doubt.
At 3:40 p.m. the jury asked for a reading of Henrick's testimony. The judge granted that request.
The jurors resumed their deliberations at 4:00 p.m. At 4:40 p.m. the judge summoned the jurors to the courtroom and asked whether it would "be fruitful" for them to stay until 5:00 p.m. He assured the jurors that he would not keep them past 5:00 p.m. because they would have "all day tomorrow" and told them that he would not be available on Friday or Saturday.
The jury retired and responded with a note. They advised, "We do not feel the extra time (till 5 p.m.) will be helpful." Before discharging the jurors for the night, the judge told them that they had "put in a full day" and could resume deliberations at 8:45 a.m. the next day. He further explained: "It's not a complicated case. And we will have all day tomorrow, so there is no rush."
At 9:55 a.m. the following day, the jurors reported that they were unable to reach an agreement. That note read: "We are not in agreement on any of the counts. Each of the jurors are firm in their decision. ...