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State of New Jersey v. Todd Stathum

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 11, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TODD STATHUM, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-08-1930.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 15, 2010

Before Judges Lisa, Reisner and Alvarez.

Defendant Todd Stathum appeals guilty verdicts rendered after trial by jury on multiple counts of third-degree drug distribution. After conviction, defendant entered a guilty plea to a second-degree certain persons not to possess weapons. For the reasons that follow, we reverse the jury verdicts, vacate the guilty plea, and remand for a new trial.

Defendant was convicted of four counts of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (counts one, eleven, fourteen, and nineteen); four counts of third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(3) (counts two, twelve, fifteen, and twenty); two counts of third-degree possession of CDS within 1000 feet of school property with intent to distribute, N.J.S.A. 2C:35(b)(3) and 2C:35-7 (counts sixteen and twenty-one); four counts of third-degree drug distribution, N.J.S.A. 2C:35-5(b)(3) (counts four, thirteen, seventeen, and twenty-two); and two counts of third-degree drug distribution within 1000 feet of school property, N.J.S.A. 2C:35-5(b) and 2C:35-7 (counts eighteen and twenty-three). Defendant was acquitted of count three, possession of CDS within 1000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7, and count five, distribution within 1000 feet of school property, N.J.S.A. 2C:35-7. After the jury verdicts were rendered, defendant entered a guilty plea to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count twenty-five) and agreed to a sentence of ten years imprisonment, subject to five years of parole ineligibility, to run concurrent to the sentences imposed for defendant's trial convictions.

On August 15, 2007, the trial judge imposed concurrent extended terms of ten years, subject to five years of parole ineligibility, on counts four, ten, thirteen, eighteen, and twenty-three, for an aggregate sentence of ten years with a five-year parole bar. Count twenty-four of the indictment was dismissed by the State and all the remaining offenses were appropriately merged. The judge imposed a mandatory extended term, N.J.S.A. 2C:43-6(f), because defendant was a prior drug distributor.

Defendant was convicted principally on the testimony of officer Adam Pharo, then assigned to serve in an undercover capacity with the Monmouth County Prosecutor's Office Narcotics Strike Force. Pharo testified that on February 2, 2006, he received information from a confidential informant concerning the sale of heroin from an individual known as "Todd." Because the testimony is key to our determination of the issues raised on appeal, it is reproduced in its entirety:

Q I take your attention to the date of February 2nd, 2006. Were you with the Narcotics Strike Force on that date?

A Yes, I was.

Q And on that date, did you have occasion to become involve[d] in an investigation which was centered around an individual at the time named Todd?

A Yes.

Q And who did you get that information from?

A That information was promulgated through a confidential informant.

Q Can you tell the Jury briefly what a confidential informant is?

A Yes. A confidential informant is an individual, male or female, that basically provides law enforcement officials with illegal information, whether it be drugs. In . . . this case, it was narcotic related.

Q Okay. Now, on that date, February 2nd, 2006, you received information from a confidential informant?

A Yes, we did.

Q And . . . what was that information?

[DEFENSE COUNSEL]: Objection.

THE COURT: I'm going to permit him to summarize what direction he took, based on the information. He's not going to [be] permitted to tell me word-for-word what was said, however, unless you're going to present that witness.

[PROSECUTOR]: I'll try to weed through it then, . . . if I may.

THE COURT: Yes.

Q Did you receive information about an individual named Todd?

A Yes, we did.

Q And did that information concern making a purchase of heroin from Todd?

A Yes, it did.

Q As a result of getting that information, what was done with the confidential informant?

A The confidential informant was then introduced to myself, . . . as well as other members of the strike force, and a plan was formulated on that date.

Q And pursuant to that plan, was a phone call made?

A Yes, there was.

Q And who made that phone call?

A May I refer to my report, please?

Q Yes, please.

A On February 2nd, the phone call was made to Todd from the confidential informant.

Pharo went on to testify that the Narcotics Strike Force implemented the plan of action by arranging for the confidential informant to phone defendant about purchasing heroin. During the conversation, Pharo overheard the informant arrange to purchase two bundles of heroin*fn1 in exchange for $180, and to meet defendant at his residence.

On the designated date, the informant and Pharo arrived at defendant's residence in an unmarked car. Defendant looked out an upstairs window and called down that he would be right out. A few minutes later, he emerged from the residence and entered the vehicle. After exchanging greetings, defendant produced a bundle of heroin. When Pharo questioned why only one was produced when he wanted to buy two, defendant said he had to obtain the other bundle from "his boy's house," located nearby. When they drove to that location, defendant left the vehicle, disappeared briefly from view, and returned with a second bundle of heroin. Pharo gave defendant $180 and drove him back to his home.

Later, when the officers inspected the drugs, they found one of the bundles was missing a bag of heroin. Pharo instructed the informant to call defendant to ask about the discrepancy. She reported that defendant "stated that it was his bag, and he would provide me with the extra bag the next time we met . . . ." Pharo went on to testify that this conduct was not unusual, as "sometimes, they're just taking their --they're taking some for themselves, a finder's fee, to support their own habits. I'm not there to -- to nickel and dime them to death. So, I'm not going to argue over one bag." The drugs were subsequently tested and found to be heroin.

A few days afterwards, Pharo personally arranged a second transaction. He ordered two more bundles of heroin, this time priced at $190, as well as $40 worth of cocaine. When Pharo arrived at defendant's residence, defendant and his cousin, known as "Red," came outside, entered Pharo's unmarked vehicle, and directed Pharo to another location. Once there, Red walked into the rear of an apartment complex and returned with a small plastic bag containing a substance which later proved to be cocaine. Pharo gave the men $40 for the bag.

Defendant then asked Pharo if he still needed "the D," a street term for dope or heroin, and told him to drive to a second address where they were met by a person defendant introduced as Gary, his "blood brother." Defendant left the vehicle and spoke to Gary in the rear doorway of a hotel. Defendant returned to the car with eighteen bags of heroin instead of the twenty Pharo had ordered. When Pharo asked about this, Pharo said defendant responded that these were "white boy bundles," and that he "was crazy if [he] didn't think there would be a finder's fee." Pharo paid $190 for the eighteen bags and drove defendant and Red back to defendant's home. These bundles also tested positive for heroin.

Pharo arranged the final transaction on February 27, 2006, the purchase of one bundle of heroin, priced at $190, and two grams of "straight C," street slang for powder cocaine, priced at $95. Pharo called when he arrived at defendant's home, defendant entered Pharo's vehicle, and once again directed him to another address. Upon arrival, Pharo gave defendant $195. Defendant left the car, approached a man seated on a front porch, and handed him some money. The man briefly entered his house and when he returned, Pharo said the man and defendant engaged in a "hand-to-hand transaction." Defendant returned to the car, handing Pharo a bundle that was short one bag, a "finder's fee." As requested, defendant also brought Pharo a bag of cocaine. The substances tested positive for heroin and cocaine. The purchase occurred within 1000 feet of school property.

Defendant was arrested April 4, 2006. After being given his Miranda*fn2 warnings, he gave a formal written statement, which he signed and initialed. Among other things, defendant was asked "[i]n the last six months, approximately how many times have you sold drugs to customers?," to which he responded "[a]bout 15 times."

Defendant's trial testimony regarding these transactions differed from Pharo's. Initially, defendant acknowledged his prior criminal history, that he had previously entered guilty pleas to one second-degree offense and two third-degree offenses in 1995, and that he had served jail time.

Defendant claimed the confidential informant was a young woman named "Ellie" whom he met at a methadone clinic. He said that when she called him, she indicated that "she wanted to turn me on, which means get high with me." When she arrived, however, she was accompanied by a friend named "Adam."

Ellie told him that they needed to go to "the spot," by which she meant a place where they had previously purchased drugs. After they arrived at the location, Ellie gave him money to buy drugs while Adam insisted he leave his coat in the car to ensure his return. Defendant was upset about this but agreed nonetheless. He convinced one of the dealers standing on the street to come over, despite the seller's reluctance after seeing two white people in the car. After recognizing Ellie, the seller became more comfortable.

Defendant purchased twenty bags of heroin, which he handed to Ellie. As he entered the vehicle, Ellie gave him one of the bags. Because he did not want to "get[] high" with a stranger, defendant asked to be driven home.

Defendant further testified that between February 2, 2006, and February 15, 2006, he spoke to Adam on the phone three or four times. He claimed that Adam wanted to "get high," but that he declined to help Adam because there was nothing in it for him.

On February 15, 2006, however, Adam agreed to "get high" with defendant and as a result defendant agreed to buy them the necessary drugs. Although Adam wanted both heroin and cocaine, defendant only knew where he could purchase heroin. Once Adam arrived at defendant's house, Red showed them where cocaine could be bought and conducted the transaction on Adam's behalf. Adam noticed that defendant "looked sick" from drug withdrawal, and said he wanted to get him high. Defendant directed Adam to a nearby heroin dealer and once at the buy location, the seller approached the vehicle and Adam threw money onto defendant's lap. The seller reached in and took the money, replacing it with nearly two bundles of heroin, which Adam retrieved from defendant's lap. Defendant claimed he touched neither the money nor the drugs.

Defendant said he believed that he and Adam were going to use the heroin together. Then Adam told him he had changed his mind, and gave defendant two bags as a "finder's fee instead." Defendant explained this arrangement as "[t]he deal was always . . . for every ten bags, I would get one." Defendant stated that he only took one bag out of twenty when he participated in the first drug purchase because Ellie was buying one of the bundles for Adam.

Defendant stated that between February 15, 2006, and February 27, 2006, he spoke to Adam several times about getting high together. When Adam arrived at his home on February 27, ostensibly to purchase drugs from a dealer named "John" who was standing at the corner, defendant expected that once the drugs were acquired, he and Adam would use them together. John did not have any drugs, but directed them to his cousin, a man named Darryl Jones. Adam handed defendant some money, which Jones exchanged for $10 to $20 worth of cocaine and ten bags of heroin. After the sale, Adam complained to defendant that they were supposed to have been given $40 worth of cocaine.

Although the last time defendant saw Adam was on February 27, he continued speaking to him on the phone, and Adam continued saying they should "get high" together. Even Ellie called him, asking if he could help Adam buy drugs. Nonetheless, defendant refused to make additional buys, because it was "not worth it" since Adam never "got high" with him. Adam stopped calling towards the end of March. Defendant said his sole intention in associating with Adam was "[t]o get drugs. Well, not to get drugs, to get high. Well, to get drugs to get high."

Defendant asserts the following points warrant reversal:

POINT I

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 ERRONEOUS, INCOMPLETE AND PREJUDICIAL INSTRUCTION ON THE LAW OF INTENT TO DISTRIBUTE (Not Raised Below)

A. THE TRIAL COURT FAILED TO DISTINGUISH BETWEEN A TRANSFER FROM ONE JOINT POSSESSOR TO ANOTHER (NO INTENT TO DISTRIBUTE) AND A TRANSFER TO A THIRD PARTY (INTENT TO DISTRIBUTE)

B. THE INSTRUCTION PERMITTED THE JURORS TO FIND THE DEFENDANT GUILTY OF DISTRIBUTION BASED ON AN ATTEMPTED DISTRIBUTION, BUT THE COURT FAILED TO INSTRUCT THE JURORS ON THE LAW OF ATTEMPT POINT II 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 (Not Raised Below)

POINT III 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 USE OF CHARACTER ASSASSINATION TO PROVE HIS CASE (Not Raised Below)

POINT IV 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 PROSECUTORIAL MISCONDUCT (Not Raised Below)

POINT V THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION, AND 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 WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS FROM ABSENTEE WITNESSES (Not Raised Below) POINT VI 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 IMPROPER ADMISSION OF OTHER-CRIME EVIDENCE WITHOUT A PROPER LIMITING INSTRUCTION (Partially Raised Below)

A. OTHER-CRIME EVIDENCE WAS IMPROPERLY ADMITTED

B. THE TRIAL COURT FAILED TO GIVE A PROPER LIMITING INSTRUCTION (NOT RAISED BELOW) POINT VII THE PROSECUTOR IMPROPERLY INTRODUCED THE DEFENDANT'S POST-ARREST STATEMENT, WHICH WAS NOT CONSISTENT WITH HIS TRIAL TESTIMONY POINT VIII 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 WHEN THE STATE'S LAY WITNESS RENDERED A HIGHLY PREJUDICIAL EXPERT OPINION THAT SHOULD HAVE BEEN EXCLUDED (Not Raised Below)

POINT IX

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 ACCUMULATION OF TRIAL ERRORS (Partially Raised Below)

POINT X THE SENTENCE IS EXCESSIVE

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES

B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE

C. THE SENTENCING COURT MAY NOT ORDER MULTIPLE SENTENCES

I.

We first address defendant's claim that his constitutional right to confrontation was violated by the admission of hearsay testimony. The dictates of the Sixth Amendment's Confrontation Clause require that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S. Const. amend. VI; see also Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 1359, 158 L. Ed. 2d 177, 187 (2004). Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Generally, hearsay is not admissible evidence. N.J.R.E. 802. "If evidence is not offered for the truth of the matter asserted, the evidence is not hearsay and no exception to the hearsay rule is necessary to introduce that evidence at trial." State v. Long, 173 N.J. 138, 152 (2002).

"[A] police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." State v. Branch, 182 N.J. 338, 351 (2005). But "the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" State v. Bankston, 63 N.J. 263, 268 (1973) (quoting McCormick, Evidence (2d ed. 1972), § 248, p. 587). This kind of testimony has been held admissible "to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct." Ibid. Nevertheless, "when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule." Ibid.; see State v. Vandeweaghe, 177 N.J. 229, 240 (2003) (finding that although the State could "elicit evidence that the police went to [a motel] based upon information received, it [could] not introduce evidence that the reason for the dispatch was a report of a man beating a woman") (quoting State v. Vandeweaghe, 351 N.J. Super. 467, 485 (App. Div. 2002)), appeal dismissed, 177 N.J. 494 (2003).

In this case, Pharo said that the investigation centered around an individual known as "Todd" because of information "promulgated through a confidential informant." Pharo explained that a confidential informant was "an individual . . . that basically provides law enforcement officials with illegal information [sic] . . . whether it be drugs. In . . . this case, it was narcotic related." The prosecutor asked Pharo to recount the information, and defense counsel objected.

The court then stated "I'm going to permit him to summarize what direction he took, based on the information. He's not going to [be] permitted to tell me word-for-word what was said, however, unless [the State was] going to present that witness." The prosecutor next asked Pharo if the information received "concern[ed] making a purchase of heroin from Todd," to which Pharo replied "[y]es, it did." The question suggests that the purchase of heroin being referred to occurred in the past; in other words, to a purchase made by the confidential informant. Obviously, the confidential informant never testified.

In Branch, supra, there was no physical evidence linking the defendant to the crime. The State's case rested primarily on the victims' identification of the defendant. 182 N.J. at 346-47. A drawing of the suspect, based on the victim's description, was made by a state police artist. Id. at 345. As a result, state police detectives put together a photographic array of men without facial hair, matching the description given by the victims. Ibid. Neither victim could identify the intruder from the photographs. Ibid. The following day, a second array was shown to the victims, this time consisting of photos of men who had facial hair. Ibid. Both victims independently selected the defendant's photograph. Ibid. Both identified the defendant in court as the perpetrator. Ibid.

The investigating officer testified that "based on information received," he developed a suspect -- namely, the defendant. Id. at 347. He described showing a photo array to the victims, including the defendant's picture. Ibid. On appeal, the defendant contended that the detective's testimony was inadmissible hearsay, fell within no exception to the hearsay rule, was violative of his federal and state constitutional right of confrontation, "and led the jury to the inescapable conclusion that" some other unknown person "had implicated him in the crime." Ibid. The Court agreed that "'[w]hen the logical implication . . . leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay.'" Id. at 349 (quoting Bankston, supra, 63 N.J. at 271). An officer's testimony must not suggest that a non-testifying declarant has provided information implicating defendant in the crime. Id. at 350.

In this case, Pharo went beyond merely implying that some unknown person had implicated defendant in drug trafficking. The officer actually said that he focused his investigation around an individual named Todd as a result of "information [] promulgated through a confidential informant." Pharo went on to explain that a confidential informant is a person who provides law enforcement officials with information about crimes, including drug offenses, and then responded affirmatively when asked if the confidential informant had previously bought heroin from defendant.

Unlike Bankston or Branch, the information was not about a completed crime which was under investigation. Instead, it implicated defendant in at least one other drug transaction before the jury heard the substance of the State's case. Essentially, on statements made by a confidential informant who could not be cross-examined, the officer identified defendant as a person who had committed uncharged prior bad acts precisely the same as those for which he was standing trial. See Branch, supra, 182 N.J. at 351; Bankston, supra, 63 N.J. at 268. This was prejudicial error.

II.

We next turn our attention to defendant's contention that the trial court erred by admitting defendant's post-arrest statement for impeachment purposes in violation of the principles found in N.J.R.E. 404(b). That rule provides that, in general, "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." Ibid. In the statement, defendant admitted to making some fifteen drug sales in the prior six months. N.J.R.E. 404(b) does allow the evidence to "be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid. The admission of other-crimes evidence runs the risk, however, "that it will distract a jury from an independent consideration of the evidence that bears directly on guilt itself." State v. G.S., 145 N.J. 460, 468 (1996).

Once a trial court has "carefully balanced the probative value of [N.J.R.E. 404(b)] evidence against the possible undue prejudice it may create, the court must instruct the jury on the limited use of the evidence." State v. Cofield, 127 N.J. 328, 340-41 (1992). "[T]he inherently prejudicial nature of [other-crimes] evidence casts doubt on a jury's ability to follow even the most precise limiting instruction." State v. Stevens, 115 N.J. 289, 309 (1989). Therefore, the court's instruction "should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." Id. at 304. Even where the trial court provides a limiting instruction on the use of other-crimes evidence, plain error will be found where the instruction does not "narrowly focus the jury's attention on the specific use of other-crime evidence, but instead ma[kes] reference only to the generalities of the Rule." Cofield, supra, 127 N.J. at 341.

The defense's theory was that defendant did not distribute drugs within the meaning of the statute but, rather, bought drugs expecting to share them with the confidential informant and Pharo, and later with Pharo alone. Since the State told defense counsel pre-trial it was not planning to introduce defendant's post-arrest statement on direct, no Miranda hearing was conducted. Likewise, no Rule 404(b) hearing was conducted, presumably for the same reason.

When cross-examining defendant about his post-arrest statement, the prosecutor elicited the following testimony:

[Q] And do you not state here, "If someone needed drugs and couldn't get into the neighborhood, if I was there, I would help them purchase the drugs and make a little bit of money off of them, get some drugs from the dealers myself."

That's what you said; correct?

A That's what I was -- yes.

Q Okay. "It's been going on for six months." Correct. Isn't that what that says?

A Yes.

In our view, the statement required some judicial scrutiny out of the presence of the jury even if presented only as impeachment material. See Cofield, supra, 127 N.J. at 337-38 (discussing difficulties of "other crime" evidence in the context of "generic" drug transactions).

The prosecutor then went on to read the following from defendant's statement:

Okay. "In the last six months, approximately how many times have you sold drugs to customers?

"About 15 times."

Defense counsel objected; the jury was excused.

Once the jury left the room, defense counsel explained the cross-examination was "highly improper" because the prosecutor had effectively presented the jury with a verbatim statement from defendant that he had sold drugs "approximately fifteen times." As trial counsel put it, "[t]hat's twelve times more than he's alleged to have sold them here. That's highly prejudicial." The State insisted that the statement was appropriate for impeachment during cross-examination because defendant had testified that "he was not involved in any way, shape or form with the distribution of drugs." Unfortunately, the record does not support the prosecutor's characterization of defendant's testimony.

Defendant did not deny being involved "in any way, shape or form" with drug distribution. He asserted only that he participated in the charged transactions because he planned to share the drugs with the person he believed to be another drug user, "Adam," the undercover officer.

Defense counsel continued to argue that the cross-examination was improper because it established propensity, and that defendant's statement about other drug deals was simply not material to the determination of whether he sold drugs to Pharo. Ultimately, the court agreed a Rule 104 hearing should have been conducted out of the jury's presence prior to the use of the statement on cross-examination.

The court went on to state nonetheless that the material was admissible to rebut defendant's theory that he was "merely a conduit" for the drug purchases of others so as "to get drugs himself." The court reiterated that, as to one transaction, defendant insisted he never actually touched either money or drugs. In another instance, defendant said he had no direct contact with the drugs, as the transaction was between the confidential informant and the drug dealer. As to the third incident, although defendant acknowledged getting the drugs from Jones, defendant claimed that he was only the middleman giving the dealer cash and getting the drugs in exchange as a favor to Adam.

The court therefore issued the following instruction:

THE COURT: Ladies and gentlemen, there had been an objection to a specific question that [the prosecutor] went over in the typed statement that [defendant] allegedly gave on April 4, 2006, to Detective Samis.

I have now ruled on that objection. We were doing the argument outside of your presence, because it goes into things that you really shouldn't hear. My decision, okay? So, you have to live with that, unfortunately.

I am going to overrule the objection, and I am going to now restate what the question and the answer was, and tell you how you can consider that.

The question that [was] asked of the [d]efendant was, "Isn't it a fact that you told Detective Samis on the top of Page 6 in response to this question, 'In the last six months, approximately how many times have you sold drugs to customers,' that you answered, 'About 15 times.'"

I'm going to allow you to hear that, but the way you are going to use that testimony is not to consider it to lead you to any conclusion that the [d]efendant is a large-scale drug dealer, other than the three times alleged in this Indictment. It's not to go to a consideration that he's a bad man.

You can only consider it for purposes of credibility in that he told the police one thing here, in this statement, and now has said something different in Court, concerning his involvement in these events.

In these events, he said I was merely a conduit. I really had no intention to . . . sell anybody drugs, I had no intention to make money from anybody doing drugs. I was assisting someone.

So you can consider that testimony here in Court, the testimony of the police officers, what [the prosecutor] has pointed out in this statement, and in your overall decision on who's telling the truth and what happened here.

And, again, in my final charge to you, I'm going to reread the credibility charge about the things that you can consider to assist you in trying to decide what the truth is, and where the truth lies, and then, once you establish what the facts are, applying to the law as I give it to you, on the various charges, and that's how you'll reach a decision.

So, that is the only way you are to utilize this particular testimony.

[Emphasis added.]

Defendant's cross-examination continued.

We agree with defendant that use of his statement for impeachment was erroneous in part because he denied only that his involvement in these drug transactions were distributions, and he never discussed his prior history. Even as to the transactions at issue, he did not deny participation - he only denied that he obtained the drugs for Adam for any reason other than to use drugs himself. The jury by virtue of this cross-examination heard other-crimes evidence which should have been scrutinized under the lens of N.J.R.E. 404(b) and excluded. It was highly prejudicial and its probative value was clearly outweighed by the potential for prejudice.

Given the testimony of the undercover officer and the surveillance officers, there was little need for the material to be admitted on cross-examination; in other words, it had little probative value. See Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 495 (1999). The admission of the material conveyed to the jury the notion that defendant was a drug dealer even prior to his dealings with the undercover officer. This was not harmless error.

See R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971).

Furthermore, the court's subsequent instruction compounded the prejudice. The judge instructed the jury not to conclude defendant was a "large-scale drug dealer, other than the three times alleged in this indictment." The judge's unwitting implication was either that defendant was a large-scale drug dealer in the transactions he engaged in with Pharo or that he was a small-scale drug dealer.

The scope of cross-examination certainly rests within the sound discretion of a trial judge, and will not be interfered with "'unless clear error and prejudice are shown.'" State v. Messino, 378 N.J. Super. 559, 583 (App. Div.) (quoting State v. Gaikwad, 349 N.J. Super. 62, 87 (App. Div. 2002)), certif. denied, 185 N.J. 297 (2005). In light of Pharo's opening salvo that he obtained defendant's name from a confidential informant who claimed to have bought heroin from him, the use on cross-examination of defendant's post-arrest statement was clear error, and sufficient prejudice resulted to warrant reversal.

III.

Where a defendant does not object to jury instructions at trial, he or she waives the right to object to the instructions on appeal, R. 1:7-2, and we "may infer that the instructions were adequate in the context of [the] trial." State v. Brown, 325 N.J. Super. 447, 452 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000). An exception is made on appellate review for jury instructions issued in error. R. 1:7-2. Should we find plain error "clearly capable of producing an unjust result," the conviction will be reversed. R. 2:10-2.

Plain error in jury instructions requires a showing of "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997) (citations omitted)). Any alleged error is to be considered in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). Courts have recognized that an error in a jury charge that is "'crucial to the jury's deliberations on the guilt of a criminal defendant' is a 'poor candidate[] for rehabilitation' under the plain error theory." Burns, supra, 192 N.J. at 341 (quoting Jordan, supra, 147 N.J. at 422 (citation omitted)). Alleged errors should also be evaluated "'in light of the overall strength of the State's case.'" Ibid. (quoting Chapland, supra, 187 N.J. at 289).

"Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial. The trial court has an absolute duty to instruct the jury on the law governing the facts of the case." State v. Concepcion, 111 N.J. 373, 379 (1988). The jury charge should also "explain to the jury how it is to apply the legal principles to the facts." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff'd, 158 N.J. 149 (1999). Nonetheless, a "party is [not] entitled to have the jury charged in his or her own words; all that is necessary is that the charge as a whole be accurate." Jordan, supra, 147 N.J. at 422. A defendant "is only entitled to an adequate instruction of the law." Pleasant, supra, 313 N.J. Super. at 333.

A failure to instruct the jury as to the State's "burden of proof on an essential element of a crime [is] presumed to be reversible error." State v. Vick, 117 N.J. 288, 290 (1989). This is true "even in the absence of a request by defense counsel." State v. Federico, 103 N.J. 169, 176 (1986). Where a jury is not instructed on all of the essential elements of a crime, a reviewing court should not "speculate about how the jury would have determined the matter if it had been properly charged." Id. at 177. Although courts should read model jury charges in their entirety to the jury, an instruction which differs somewhat from the model charge is sufficient if it fulfills the same purposes. See State v. R.B., 183 N.J. 308, 325 (2005). Nevertheless, while a reading of the model jury charge is not determinative, "it is a persuasive argument in favor of the charge as delivered." State v. Angoy, 329 N.J. Super. 79, 84 (App. Div.), certif. denied, 165 N.J. 138 (2000).

In this case, defendant's trial strategy was to convince the jury he had not distributed or intended to distribute narcotics to Pharo and the confidential informant, but instead intended to be a mere joint possessor. As defendant notes, in State v. Lopez, 359 N.J. Super. 222, 234 (App. Div.), certif. granted in part sub. nom., State v. Garcia, 177 N.J. 576, appeal dismissed, 178 N.J. 372 (2003), the court held that intent to distribute "cannot be established on the basis of the sharing of drugs between or among joint possessors." In light of that decision, defendant takes issue with the court's "failure to explain to the jurors the difference between joint possession and distribution," and "fail[ure] to instruct the jurors that a transfer (or an intent to transfer) between joint possessors cannot be used as a factual predicate to find distribution or intent to distribute."

Defendant asserts that the court's instruction "actually informed jurors that any transfer of CDS from the defendant to another person is distribution." In accord with the model jury charge, the court stated that to "[d]istribute means [the] transfer[,] actual, constructive or attempted, from one person to another, of a controlled dangerous substance." Defendant argues this error in the jury charge resulted in prejudice because the theory of joint possession was his defense to distribution, and the jury was not instructed as to how to distinguish between these concepts, resulting in his conviction.

"[P]ossession of a controlled substance may be shared with others and . . . may be established by evidence of actual, physical possession or on the basis of the power to exercise control over the substance." United States v. Swiderski, 548 F.2d 445, 449 n.2 (2d Cir. 1977). "[W]here two individuals simultaneously and jointly acquire possession of a drug for their own use, intending only to share it together, their only crime is . . . simple joint possession, without any intent to distribute the drug further." Id. at 450.

To determine whether there was an actual distribution as opposed to mere joint possession, a court should consider the totality of the circumstances, including 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.

[State v. Morrison, 188 N.J. 2, 19 (2006) (citing Swiderski, supra, 548 F.2d at 450).]

Defendant contends that his testimony at trial established that this case involved mere joint possession based on the calls from the confidential informant and from Pharo asking him if he wanted to "get high." He asserts he agreed each time because he was a drug addict wanting to share someone else's drugs. Also, defendant claimed that he stopped talking to Pharo because Pharo never wanted to use narcotics with him. He came into contact with Pharo solely because of his prior relationship with the confidential informant, with whom he had shared drugs in the past.

In certain situations, jury instructions must be "molded" or "tailored" to the facts adduced at trial. State v. Robinson, 165 N.J. 32, 42 (2000). This requirement exists where "the statement of relevant law, when divorced from the facts, was potentially confusing or misleading to the jury." Ibid.; see also State v. Gartland, 149 N.J. 456, 475-77 (1997) (requiring tailored instruction on battered woman's right to self-defense and duty to retreat); Concepcion, supra, 111 N.J. at 380-81 (requiring tailored instruction on recklessness). Although model jury charges are often useful, "[a]n instruction that is appropriate in one case may not be sufficient for another case. Ordinarily, the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case." Concepcion, supra, 111 N.J. at 379. Indeed, even where defense counsel does not make such a request, a defendant is at least "entitled to a charge consistent with his version of the facts" that does not simply "track[] the prosecution's theory of the case." State v. Martin, 119 N.J. 2, 16 (1990).

Nevertheless, "'not every failure [to mold the instruction to the facts of the case] is fatal.'" State v. Tierney, 356 N.J. Super. 468, 482 (App. Div.) (quoting State v. Bilek, 308 N.J. Super. 1, 10 (App. Div. 1998)), certif. denied, 176 N.J. 72 (2003). Where the facts are neither too complex nor confusing, a court does not necessarily have to provide an intricate discussion of them in the jury charge. State v. Morton, 155 N.J. 383, 422 (1998); see also State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999) (holding that although a more precise molding of the jury instruction to the facts would have been preferable, the charge was sufficient because "as a whole, [it] was consistent with the factual theories advanced by the parties"), certif. denied, 163 N.J. 397 (2000).

Defendant contends that the trial court should have molded the law to the facts of the case. Giving the model jury charge under these circumstances was "confusing and misleading." He asserts the jury charge suggested that even a transfer among joint possessors could support a conviction, and that the jury was left to its own devices to determine whether defendant had "attempted" to distribute CDS. Defendant also argues the court should have "explained to the jurors that if they found that the defendant shared the drugs, the jury could not find the defendant guilty of distribution or intent to distribute based on that sharing." Because of the court's failure to do this, defendant concludes that his conviction should be overturned and the matter remanded for a new trial.

Certainly, molding the instructions to offer the jury some guidance explaining the distinction defendant was attempting to establish would have been preferable. While this error in isolation might not require reversal, in light of the other errors already noted in this opinion, it is part of the accumulation of errors that warrant reversal. Should defendant choose to advance this defense theory on a retrial, an appropriate instruction should be fashioned by the trial judge distinguishing between distribution and joint possession.

IV.

In our view, the errors that were committed in this case prejudiced the outcome. At a minimum, the aggregation of errors warrants a new trial. Because defendant's guilty plea to certain persons not to possess was entered as part and parcel of the resolution of the entire indictment, that plea is also vacated. We will not reach defendant's remaining claims of error.

Reversed and remanded.


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