September 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KELLY FELDER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-08-1983.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2009
Before Judges Skillman, Gilroy and Simonelli.
A grand jury indicted defendant Kelly Felder and other individuals on several drug-related charges. Defendant and co-defendants Rodney Coleman, defendant's husband, Rodney Harris, defendant's stepson, and Donald Scott, defendant's neighbor, were tried jointly. A jury convicted defendant of third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (count nine), and acquitted her of second-degree conspiracy to possess a controlled dangerous substance and/or possession of CDS with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5; third-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5b(2); and third-degree distributing CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7. The trial judge dismissed the disorderly persons offense of use or possession with intent to use drug paraphernalia, N.J.S.A. 2C:36-2, and imposed a two-year probationary term and the appropriate assessments, penalties, and fees.
We incorporate herein the facts set forth in our unpublished opinion simultaneously filed with this opinion, State v. Coleman, A-5208-06T4, which was calendared back-to-back with this case.
Against these facts, defendant raises the following contentions:
POINT I - THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNT NINE CHARGING POSSESSION OF COCAINE THAT WAS MADE AT THE END OF THE CASE.
(A) THE STATE FAILED TO PROVE THAT THE DEFENDANT WAS IN CONSTRUCTIVE POSSESSION OF THE COCAINE.
(B) THE TRIAL COURT APPLIED AN IMPROPER LEGAL STANDARD IN DENYING THE DEFENDANT'S MOTION.
POINT II - THE TRIAL COURT'S JURY CHARGE ON COUNT NINE ALLEGING POSSESSION OF COCAINE WAS INADEQUATE AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
(A) THE TRIAL COURT'S FAILURE TO REINSTRUCT THE JURY ON THE MENTAL STATES OF "KNOWINGLY" AND "PURPOSELY" CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).
(B) THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY SUA SPONTE ON "MERE PRESENCE" WAS PLAIN ERROR (NOT RAISED BELOW).
POINT III - THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY ARGUMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).
Defendant contends in Point I that the judge abused his discretion in denying her motion for judgment of acquittal on count nine made at the close of the State's case. Applying the standards in State v. Reyes, 50 N.J. 454 (1967), the judge denied the motion finding that giving the State all reasonable inferences, the evidence was sufficient to establish that a reasonable jury could find, beyond a reasonable doubt, that defendant constructively possessed the cocaine found in the Stuyvesant Avenue apartment.
Defendant argues that the State's evidence failed to establish beyond a reasonable doubt that she knew about the cocaine found in her apartment on the day it was searched because Coleman had hidden it there without her knowledge. She also argues that the judge failed to consider her lack of cooperation and the contentiousness of her relationship with Coleman, as indicated in her two wiretap conversations with Coleman, which showed she had no control over the cocaine in her residence.
We use the same standard as the trial judge in reviewing a motion for judgment of acquittal. State v. Kittrell, 145 N.J. 112, 130 (1996); State v. Johnson, 287 N.J. Super. 247, 268 (App. Div.) (citing State v. Moffa, 42 N.J. 258, 263 (1964)), certif. denied, 144 N.J. 587 (1996); State v. Tarver, 272 N.J. Super. 414, 425 (App. Div. 1994). We must determine [w]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony, as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [Reyes, supra, 50 N.J. at 459 (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed. 2d 396 (1962)).]
See also State v. Spivey, 179 N.J. 229, 236 (2004); State v. Josephs, 174 N.J. 44, 81 (2002); R. 3:18-1. The court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Papasavvas, 170 N.J. 462, 521 (2002) (internal quotations omitted). Rather, the inquiry focuses on whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Martinez, 97 N.J. 567, 571-72 (1984). Further, a jury may draw inferences from the evidence regarding a defendant's guilt whenever it is more probable than not that such inferences are true, without the need to find the existence of each inference beyond a reasonable doubt. Kittrell, supra, 145 N.J. at 131.
One is guilty of the crime of possession if he or she "knowingly or purposely . . . possess[es], actually or constructively, a controlled dangerous substance[.]" N.J.S.A. 2C:35-10a. Criminal possession involves an "intentional control and dominion, the ability to affect physically and care for the item during a span of time[,]" State v. Davis, 68 N.J. 69, 82 (1975), "accompanied by knowledge of its character[,]" State v. Brown, 80 N.J. 587, 597 (1979).
Possession can be constructive as opposed to actual. Ibid. "A person constructively possesses an object when, although he lacks physical or manual control, the circumstances permit a reasonable inference that he had knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." Spivey, supra, 179 N.J. at 236-37. All that is required "is an intention to exercise control over [the item] manifested in circumstances where it is reasonable to infer that the capacity to do so exists." Brown, supra, 80 N.J. at 597.
Possession cannot be inferred simply because a defendant is present at a location where narcotics are found, "unless there are other circumstances . . . tending to permit such an inference to be drawn." Id. at 593 (citation omitted). The court must weigh the collateral circumstances beyond defendant's mere presence to determine whether constructive possession is implicated. State v. Palacio, 111 N.J. 543, 556 (1988). A determination of constructive possession is fact sensitive and may be proved by circumstantial and direct evidence. State v. Humphreys, 54 N.J. 406, 413-14 (1969). "A jury . . . may draw an inference of possession from all the surrounding circumstances when it is more likely than not that the proven facts point to the inferred fact of possession." State v. McCoy, 116 N.J. 293, 300 (1989).
When a defendant resides at the location where narcotics were found, and the occupancy by others is not sufficient "to dilute defendant's control over his own residence[,]" one may "draw the inference that the occupant of such premises would have knowledge and control of its contents." Brown, supra, 80 N.J. at 594. The fact that the narcotics were hidden does not weaken this inference because "[i]t is likely that a drug, which would create grave incriminatory risks to anyone found in its presence, would be hidden." Id. at 595. This inference "is further strengthened by the presence of other [narcotics]-related materials in the apartment." Ibid. Additionally, "[a]n inference of knowledge and control of personalty found in rooms commonly lived in or used by an occupant is well-grounded in our every day experience and is available to a jury as [a] factfinder[.]" Id. at 596. Finally, evidence of drug trafficking occurring at the location is "another factor [that] must be added to these incriminating circumstances[.]" Ibid.
Viewing the evidence in this case in its entirety, and giving the State the benefit of all reasonable inferences therefrom, we are satisfied that the judge properly denied defendant's motion because a reasonable fact-finder could have concluded that defendant constructively possessed the cocaine found in her apartment. Defendant was present at 7:00 a.m. in the Stuyvesant Avenue apartment when the police arrived to execute the search warrant; only she and Coleman resided there and gave the address as their residence upon their arrest; the police found cocaine in plain view in the kitchen, and in the living room and the living room closet, areas commonly used by and readily accessible to the occupants; other narcotics-related materials were found in the residence; wiretap conversations between defendant and Coleman confirm that she was assisting him with the distribution of cocaine from their residence; and surveillance evidence confirmed drug trafficking at the residence. All of these facts create an inference that defendant actually or constructively possessed the cocaine sufficient to overcome a motion for judgment of acquittal.
Defendant contends for the first time on appeal in Point II that the jury charge on count nine was inadequate because the judge failed to reinstruct the jury on the mental states of "knowingly" and "purposely," and failed to sua sponte charge mere presence. This contention lacks merit.
The judge explained the mental states of "knowingly" and "purposely" during his instructions on count two, which charged Coleman with second-degree manufacturing, distributing or dispensing CDS, N.J.S.A. 2C:35-5b(2):
A person acts knowingly with respect to the nature of his conduct or the attendant circumstances, if he is aware that his conduct is of that nature or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. Knowing, with knowledge or equivalent terms have the same meaning. A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances, or believes or hopes that they exist.
Remember that when we speak of knowingly and purposely, we speak of conditions of the mind that cannot be seen. It is not necessary for the State to prove the existence of such mental states by direct evidence, such as a statement by the defendant that he or she had particular knowledge or a particular purpose. Knowledge and purpose, as separate propositions of proof, do not commonly exist. They must ordinarily be discovered, as other mental states are, from circumstantial evidence. That is by reference to the defendant's conduct, words or acts and all the surrounding circumstances.
The judge then charged the jury on count three, which charged Coleman with the same offense as count two, and repeated the instructions for "knowingly" and "purposely." Shortly after this charge, the judge charged the jury on count nine as follows:
Count 9 alleges that [Coleman] and [defendant], on December 30th, in 2004, in the Township of Irvington did have in their possession a controlled dangerous substance, cocaine. The pertinent part of our law on which this indictment is based reads as follows: It is unlawful for any person knowingly or purposely to obtain or to possess, actually or constructively, a controlled dangerous substance. The various kinds of controlled dangerous substances are defined in another part of our statute. As I have told you, CDS, cocaine, is a controlled dangerous substance prohibited by law.
The statute, read together with the indictment, identifies the elements which the State must prove beyond a reasonable doubt to establish the guilt of the two defendants on this count of the indictment. They are as follows: S-38A through D in evidence are cocaine, or is cocaine. 2, S-38A through D in evidence is a controlled dangerous substance. 3, that the defendant possessed or obtained S-38A through D in evidence. And 4, that the defendant acted knowingly or purposely in possessing or obtaining S-38 A through D in evidence.
In regard to the second element, obtain means to acquire, to get, to procure. Possess means a conscious knowing possession. The law recognizes actual possession, constructive possession and joint possession. Actual possession is defined as follows: A person is in actual possession of a particular article or thing when he knows what it is. That is, he has knowledge of its character and knowingly has it on his person at a given time.
The law recognizes that possession may be constructive instead of actual. Constructive possession means possession in which the person does not physically have the property, but though not physically on one's person, he is aware of the presence of the property and is able to exercise intentional control or dominion over it.
A person, who although not in actual possession has knowledge of its character and knowingly has both the power and intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in constructive possession of it. In regard to the third element, the State must prove, as I have stated, that the defendant acted knowingly or purposefully in obtaining or possessing S-38A through D. I have already defined for you knowingly and purposefully and I will not repeat them here.
To repeat, the three elements of this offense that the State must prove beyond a reasonable doubt are that, one, S-38A through D in evidence is cocaine. 2, that the defendants . . . Coleman and Felder . . . possessed or obtained S-38A through D in evidence. And 3, that the defendant --defendants acted knowingly or purposefully in obtaining or possessing S-38 in evidence. If you find that the State has proven all these elements beyond a reasonable doubt, then you must return a verdict of guilty. On the other hand, if you find that the State has failed to prove all three elements beyond a reasonable doubt, then you must return a verdict of not guilty. (Emphasis added.)
The judge also instructed the jury that
Each offense and each defendant in this indictment should be considered by you separately. The fact that you may find a particular defendant guilty or not guilty of a particular crime should not control your verdict as to any other offenses charged against that defendant, and it should not control your verdict as to the charges against any other defendant.
Proper jury instructions are essential to a fair trial. State v. Afanador, 151 N.J. 41, 54 (1997); State v. Green, 86 N.J. 281, 287 (1981). The court must give the jury "a comprehensive explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Green, supra, 86 N.J. at 287-88. The jury charge should include instructions on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. In assessing the propriety of the jury charge, we examine the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005); State v. Hipplewith, 33 N.J. 300, 317 (1960). A defendant is not entitled to have a jury charged in his or her own words. State v. Pigueiras, 344 N.J. Super. 297, 317 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002); State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff'd, 158 N.J. 149 (1999).
Reviewing the charges in their entirety, we are satisfied that there was no error, let alone plain error, in the charge on count nine. The judge twice defined the elements of "knowingly" and "purposely," and referred to those definitions when charging the jury on count nine.
We are also satisfied that a mere presence charge was not appropriate. The evidence clearly indicates that defendant was not merely present in the Stuyvesant Avenue apartment when the police found cocaine there. Rather, she was an active participant in the narcotics trafficking, knew the cocaine was located in her apartment, and constructively possessed it.
Defendant contends for the first time on appeal in Point III that the prosecutor's following summation remark prejudiced her right to a fair trial:
Two of the pieces, two of the bags of cocaine, including one containing 42 smaller, or a number of smaller bags, [were] found in a coat closet along with another bag of cocaine. There was an amount found in a kitchen cabinet, I submit to you the amount found in the kitchen cabinet -- I don't know, ladies and gentlemen, I submit everybody lives somewhere. Has a house, has an apartment, condo, townhouse, mobile home. All have kitchen cabinets in there. Most people know what are in the kitchen cabinets of their house.
This was [defendant's] residence, you got cocaine in the kitchen cabinet[.]
Defendant argues that the prosecutor presented improper stereotypic notions of gender behavior by suggesting that she should know the contents of her kitchen, improperly introduced his personal opinion as a standard for determining constructive possession, and improperly intertwined the facts with an improper emotional solicitation. We disagree.
"Prosecutors are afforded considerable leeway in their closing arguments[.]" State v. Frost, 158 N.J. 76, 82 (1999). However, there remain limitations on what a prosecutor may say during summation. A prosecutor must "confine [his or her] comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178 (2001). "[I]f a prosecutor's arguments are based on the facts of the case and reasonable inferences therefrom, what is said in discussing them, 'by way of comment, denunciation or appeal, will afford no ground for reversal.'" Ibid. (quoting State v. Johnson, 31 N.J. 489, 510 (1960)). Further, prosecutors are permitted to "respond to an issue or argument raised by defense counsel." State v. Johnson, 287 N.J. Super. 247, 266 (App. Div. 1996), certif. denied, 144 N.J. 587 (1996).
It is only when a prosecutor's conduct "was so egregious that it deprived the defendant of a fair trial" that reversal is required. Frost, supra, 158 N.J. at 83. In considering whether prosecutorial misconduct in summation is so egregious as to require reversal, we must look at the "'tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred.'" Ibid. (quoting State v. Marshall, 123 N.J. 1, 153 (1991)). In this regard, "we consider whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 322-23 (1987). Usually, the remarks will not be considered prejudicial when, such as here, counsel fails to object. Id. at 323.
Our review of the prosecutor's remark reveals no impropriety whatsoever, let alone the egregiousness required for reversal. He did not interject his personal opinion, evoke an improper emotional solicitation, or mention gender. Rather, he simply commented on the evidence surrounding the execution of the search warrant at the Stuyvesant Avenue apartment from which he drew the reasonable and logical inference that defendant, like any other homeowner, male or female, had to have known that there was cocaine in her kitchen.
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