Telephonically Argued February 7, 2013 (A-1199-10) and Argued February 5, 2013 (A-2942-10)
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-07-0618.
Frank M. Gennaro, Designated Counsel, argued the cause for appellant Angelique Stubbs (A-1199-10) (Joseph E. Krakora, Public Defender, attorney; Mr. Gennaro, on the briefs).
G. Harrison Walters, Assistant Prosecutor, argued the cause for respondent State of New Jersey (A-1199-10) (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Walters, of counsel and on the brief).
Laura B. Lasota, Assistant Deputy Public Defender, argued the cause for appellant Jules L. Stubbs (A-2942-10) (Joseph E. Krakora, Public Defender, attorney; Ms. Lasota, of counsel and on the brief).
Teresa A. Blair, Deputy Attorney General, argued the cause for respondent State of New Jersey (A-2942-10) (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Blair, of counsel and on the brief).
Appellant Jules Stubbs filed a pro se supplemental brief.
Before Judges Lihotz, Ostrer and Kennedy.
Defendants, Angelique and Jules Stubbs,  husband and wife, separately appeal from their convictions, after a jury trial, of fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3); second-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(10)(b); and third-degree possession of marijuana with intent to distribute it within 1000 feet of a school, N.J.S.A. 2C:35-7. Angelique received an aggregate sentence of seven years, with no period of parole ineligibility. Jules received an aggregate term of ten years, with a five-year period of parole ineligibility.
We consolidate their back-to-back appeals for the purposes of this opinion. Each defendant separately raises numerous issues in challenging their convictions, but they both challenge the court's denial of a motion to suppress the fruits of a search of their home; and the court's denial of a motion for a mistrial based on extraneous contacts with jurors. Jules also challenges his sentence as excessive.
We affirm as to Jules. We remand for a hearing as to the admissibility of a currency seizure form that Angelique signed. The State argued Angelique's signature represented a claim she owned a substantial amount of cash that officers seized, which the State argued was connected to drugs. If the State does not prove that the document was properly admitted as an adoptive admission, as we discuss below, then the document shall be suppressed, the conviction reversed, and a new trial ordered. In all other respects, Angelique's conviction is affirmed.
We summarize the trial evidence, and discuss the facts in greater detail in our discussion of the legal issues.
On January 8, 2007, three individuals, one of them armed, invaded defendants' home sometime after 8:00 p.m. Present were Angelique and her three children — daughters who were six and seven, and a son who was eleven. Angelique had recently returned home from work as a registered nurse at a hospital. Jules had left the home after Angelique arrived.
Angelique was first confronted by one of the invaders as she lay on her bed, watching television with her youngest daughter. The man asked for Daniel. Angelique responded that no one named Daniel lived at the home. The man closed the bedroom door. Angelique dialed 911 on her cordless phone, but the call was cut off because the battery died.
The same man, later identified as Joseph Houchens, returned to the room with a shotgun, grabbed Angelique firmly by the arm, and told her to come with him. Angelique told her daughter to wait in the room. Her son was in the bathroom, and her middle child was still in the kitchen, crying.
The man with the gun demanded to know where the drugs and money were located. Angelique told them she did not know about any money or drugs. Houchens grabbed Angelique by her face. She said that he told her that she better think of her kids, and stop lying. He repeatedly told her that she was making him angry. Angelique continued to profess ignorance, as the intruders forced her into the basement to continue the search. The intruders also entered the garage, and searched a refrigerator. The three intruders were tossing personal items, lifting seat cushions, and searching furniture and containers. Eventually, Angelique was permitted to direct all three children to remain in the bathroom.
Meanwhile, the Millville Police Department was able to trace the dropped 911 call, and initially sent officer Jennifer Gentile, who was familiar with the Stubbses. Houchens answered the door, then immediately locked it. Gentile also detected movement in the garage. She suspected foul play. She called for backup, and Officer James Grone and Sgt. Ronald Harvey arrived. It was shortly before 9:00 p.m. Gentile knocked at the door again. Houchens had ordered Angelique to persuade the police to leave. Angelique was crying and upset.
The man who initially answered the door returned with Angelique. He had his arm around her. She appeared frightened and shaken to Gentile. Angelique broke free of the man and rushed to the police, telling them that there were other men in the house, they had guns, and the children were inside. The man at the door tried to flee, but was quickly restrained.
The three officers then entered with their guns drawn to find and protect the children, and to arrest the intruders. Officer Grone announced the police officers' presence. Three small children exited from a bathroom and were directed to leave the house.
The officers then proceeded to search the house for the intruders. In the course of searching a child's room closet for an intruder, Grone uncovered a large bag of marijuana. During the search of the master bedroom, one suspect was found hiding in another closet. Another suspect, Thomas Wright, was found hiding beside a bed. In a search incident to arrest, the police seized $4831 from his person. Police also entered the garage, where they found a shotgun in plain view.
After the house was secured and cleared of intruders, police asked Angelique for consent to conduct a further search. She refused, and police obtained a search warrant. Pursuant to that search warrant, police removed the large bag of marijuana. It consisted of 5.7 pounds of marijuana packaged in six gallon-size plastic bags. Also seized were several items from the master bedroom closet: small sandwich bags; scented dryer sheets; empty gallon-size plastic bags; and a scale. The police also seized $218 in a bedroom bureau drawer.
After Jules was summoned home by his wife, the police Mirandized him and asked him about the seized drugs and money. According to Harvey, while he questioned Jules in the master bedroom, Jules nodded his head toward the children's bedroom and said, "'That stuff's mine[, ]" and "I'll take it." Jules extended his arms out, as if to invite the officer to handcuff him. On the other hand, Jules declined to specify what he meant by the "stuff." Jules also denied any knowledge about the seized currency. After Harvey ceased questioning Jules, Jules volunteered that he did not want his wife in trouble and "he was taking the blame for anything."
Angelique was taken to the police station for questioning. In a recorded statement to Gentile, Angelique recounted the home invasion. She stated that Houchens had removed a "handful" of money from the bedroom closet, and then asked where the rest of the money was. Angelique stated she had no knowledge of the amount. After obtaining additional details of the home invasion, Gentile administered Miranda warnings and questioned Angelique about the marijuana and the large amount of cash found in the home. She said she was unaware of any controlled dangerous substance or large amounts of cash in the home.
At some point, Det. Joseph Hoydis, the evidence officer, asked Angelique to sign a form entitled "United States Currency Seizure Report" (CSR), which itemized the $4831 seized from Wright. The form identified Angelique as "claimant." Jules signed a similar form regarding the $218.
The State's witnesses were the three officers who first responded to the home invasion — Gentile, Harvey and Grone; Det. Sgt. Carl Heger, who searched the basement; Hoydis, the evidence officer; and an expert in drug distribution, Det. Dominic Patitucci. Gentile, Harvey, Heger, and Hoydis all testified that they detected a strong odor of raw marijuana in the home. Angelique testified that she detected an odor as well, but insisted none was present prior to the invasion. The State suggested that the marijuana may have been stored in the refrigerator in the garage.
In its case against defendants, the State relied on Jules's admissions; the presence in his home of almost six pounds of marijuana packaged in six one-gallon bags, and a small bag of marijuana; the presence of a scale to weigh marijuana, plastic bags to package it, and scented dryer sheets to mask the scent of it; and the large amount of cash found in the home, in denominations that Patitucci stated were common in drug transactions. Jules did not testify. Through cross-examination and argument, he attempted to suggest that his admissions were ...