Opinion
DOCKET NO. A-4002-11T4
06-05-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES BAKER, a/k/a FUQUAN FUQUAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Hayden.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-05-0399.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah Lichter, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant James Baker was convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one), and third-degree possession with intent to distribute a CDS, N.J.S.A. 2C:35- 5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two). The underlying indictment also charged defendant with second-degree distribution of a CDS within 500 feet of a public park, N.J.S.A. 2C:35-7.1 (count three), which was dismissed prior to trial. After merging count one with count two, the judge sentenced defendant to five years in custody with a thirty-month period of parole ineligibility. Additionally, the judge imposed statutory penalties and suspended defendant's driving privileges for six months.
On appeal, defendant raises the following issues for our consideration.
POINT I: THE EVIDENCE OF DEFENDANT'S POSSESSION OF THE DRUGS FOUND IN THE ROOM WHERE HE WAS DISCOVERED WAS INSUFFICIENT TO SUPPORT A CONVICTION.
POINT II: THE UNMISTAKABLE IMPLICATION THAT DEFENDANT AND THE AREA WHERE HE WAS FOUND WITHIN THE HOUSE WAS THE TARGET OF THIS WARRANT WAS HIGHLY PREJUDICIAL IN THAT THAT FOCUS COULD ONLY ARISE FROM INCRIMINATING INFORMATION ABOUT DEFENDANT WHICH WAS WITHHELD FROM THE JURY AND WHICH DEFENDANT WAS THEREFORE POWERLESS TO REBUT. (Not Raised Below).
POINT III: THE JUDGMENT OF CONVICTION MUST BE CORRECTED.
We affirm as to defendant's conviction, but remand to correct the Judgment of Conviction (JOC) to reflect that count three was dismissed.
We discern the following facts from the testimony at trial. At 6:00 a.m. on January 22, 2009, several members of the Elizabeth Police Department executed a search warrant at a one-family residence. When detectives entered the home, they first encountered defendant's mother Alberta, his brother Ernest, and his juvenile cousin on the first floor. Detectives then proceeded upstairs to an attic bedroom where they found defendant alone, dressed only in his boxer shorts. When detectives searched the bedroom, they found five glassine envelopes of heroin in a coffee cup on the dresser and eighty more glassine envelopes packaged together inside an eyeglass case on the nightstand. Detectives also recovered $2000 from defendant's shoe in the closet, two cell phones and defendant's car keys on top of the dresser, and several pieces of mail addressed to defendant in the top dresser drawer. Defendant was arrested and later indicted.
At trial, the State presented the testimony of three officers who participated in the search. The State also presented an expert in narcotics distribution who testified that the amount of heroin recovered, and the manner in which it was packaged, indicated it would not have been for personal use, but for sale and distribution.
Defendant presented the testimony of his mother Alberta, and his brothers Ernest, Jerome, and Edward Baker. They all testified essentially that the bedroom in the attic was not assigned to anyone in particular; rather, it was first-come-first-serve for the brothers, including another non-testifying sibling, Jeffrey, depending on who stayed at the residence on a particular night. None of the defense witnesses knew who was staying in the bedroom that night or how the heroin got there.
Edward Baker further testified that he had given defendant $2000 to use to get an apartment and left the money in defendant's shoe in the attic closet. He also testified that he had been arrested numerous times for heroin possession, that he had an addiction spanning twenty years, that he was purchasing and using heroin at the time of the search, and that he was using up to twenty envelopes of heroin per day. However, he denied putting the heroin in the attic.
Defendant first argues that his motion for a judgment of acquittal at the end of the State's case should have been granted because the State's evidence was insufficient to support a conviction. We disagree.
In reviewing the denial of a Rule 3:18-1 motion for judgment of acquittal, we apply the same standard as the trial court. State v. Pickett, 241 N.J. Super. 259, 264 (App. Div. 1990). We must "determine 'whether, viewing the State's evidence in its entirety . . . 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 . . . beyond a reasonable doubt.'" State v. Wilder, 193 N.J. 398, 406 (2008) (alterations in original) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)). It is well established that a jury may draw inferences from facts, and "'the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference.'" State v. Trotman, 366 N.J. Super. 226, 235 (App. Div. 2004) (quoting State v. Thomas, 132 N.J. 247, 256 (1993)).
Possession of a CDS in contravention of N.J.S.A. 2C:35-10(a) can be either actual, constructive, or joint. State v. Morrison, 188 N.J. 2, 14 (2006) (citing State v. Spivey, 179 N.J. 229, 236 (2004)). A person constructively possesses a CDS when "'the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time.'" Ibid. (quoting Spivey, supra, 179 N.J. at 237).
Criminal possession may not be inferred from a defendant's mere presence at the location where the contraband was found. State v. Hurdle, 311 N.J. Super. 89, 97 (App. Div. 1998) (citing State v. Brown, 80 N.J. 587, 593 (1979)); State v. Shipp, 216 N.J. Super. 662, 665-66 (App. Div. 1987). However, the accompanying circumstances may "permit such an inference to be drawn." State v. Palacio, 111 N.J. 543, 550 (1988) (finding constructive possession of CDS in secret compartment of car where defendant passenger and the driver had been travelling together from out of state, and defendant appeared nervous during the search); State v. Scott, 398 N.J. Super. 142, 150-51 (App. Div. 2006) (finding defendant passenger of car constructively possessed CDS in plain view on the floor in front of the driver's seat), aff'd o.b., 193 N.J. 227 (2008).
Here, the judge properly denied defendant's motion for a judgment of acquittal as there was sufficient evidence at the close of the State's case to support a finding of guilt. In addition to defendant's physical presence in the attic, the accompanying circumstances provided a reasonable inference that defendant had awareness of the drugs with the intent and capacity to exercise physical control of them. See Morrison, supra, 188 N.J. at 14. Defendant was the only person in the attic when the search was executed at 6:00 a.m., he was wearing only his boxer shorts, and his clothes and shoes were present in the bedroom, which created a reasonable inference that he was sleeping in the attic that night. Five of the envelopes of heroin were in plain view on the nightstand. The remaining heroin was found among defendant's other belongings on the dresser, including his car keys and several pieces of mail addressed to him. Based on these facts, a reasonable jury could conclude that the attic was defendant's bedroom and that the personal items found therein, including the heroin, belonged to him. See Palacio, supra, 111 N.J. at 550; Scott, supra, 398 N.J. Super. at 150-51.
Additionally, based on the State's expert testimony, a reasonable jury could determine that defendant possessed the heroin with the intent to distribute based upon the quantity of the drugs and the manner in which they were packaged. After "giving the State the benefit of all its favorable testimony as well as all of the favorable inferences," we therefore conclude that the denial of defendant's motion was proper as a reasonable jury could find defendant guilty on both charges beyond a reasonable doubt. See Reyes, supra, 50 N.J. at 459.
Defendant next argues that he was prejudiced by the officers' testimony that strongly suggested that defendant was the sole target of the residential search warrant. He claimed that this testimony created a natural inference in the jurors' minds that sufficient independent proof of his guilt, which was not presented as evidence before them, was presented to a neutral judge in order to obtain the warrant. Defendant points to testimony that his mother and juvenile cousin were allowed to leave during the search, which implied that he was the target of the search. We find this argument to be without merit.
After deliberations began, the jury returned with a question reading, "[p]lease give [an] explanation on why the warrant was issued, [and] why not a covert action taken?" With the agreement of counsel, the trial judge stated to the jury:
the testimony that a warrant was issued was introduced merely for the purpose of telling you that the police officers['] entry into that building was authorized. As to why it was authorized[,] that is not part of this case, it's something that you should not consider and there should be no speculation regarding it, whatsoever.Defendant did not object to the testimony regarding the search warrant, nor did he object to the judge's jury instruction.
Generally, "the jury does not have to be 'shielded from knowledge that . . . warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt.'" State v. Williams, 404 N.J. Super. 147, 168 (App. Div. 2008) (alteration in original) (quoting State v. Marshall, 148 N.J. 89, 240, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)), certif. denied, 201 N.J. 440 (2010). Indeed, "a properly instructed jury will not presume guilt based on the issuance of a search warrant," and "the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly." Marshall, supra, 148 N.J. at 240.
Prejudice only arises when the references to a warrant have a capacity to mislead the jury into believing the State has evidence of defendant's guilt beyond what was presented at trial. Ibid.; State v. McDonough, 337 N.J. Super. 27, 34 (App. Div.), certif. denied, 169 N.J. 605 (2001). In State v. Milton, 255 N.J. Super. 514, 520 (App. Div. 1992), we found that the State's reference to a general warrant to search the house that defendant occupied with his parents and brothers was not objectionable. However, we found that the State's proffered testimony regarding an unexecuted warrant to search defendant's person was unnecessary to the State's case and implied "that sufficient independent proof had been presented to a neutral judge to believe that defendant would be found in possession of drugs[,]" which unduly prejudiced defendant. Ibid.
Similarly, in State v. Alvarez, 318 N.J. Super. 137, 145 (App. Div. 1999), the State presented evidence of both a general search warrant for the residence defendant occupied with others, and a warrant to arrest defendant. We determined that "the repetitive references to the arrest warrant for defendant suffer[ed] the exact infirmities we condemned in Milton," and the prosecutor's highlighting of the fact that a judge issued the search warrant "suggest[ed] that a judicial officer with knowledge of the law and the facts believed that evidence of criminality would be found in defendant's room." Id. at 147-48.
In the present matter, the passing reference to the search warrant did not imply that the State had any evidence of defendant's guilt beyond what was presented to the jury. See Marshall, supra, 148 N.J. at 240. The fact that testimony revealed defendant's mother and cousin were allowed to leave during the search does not imply that defendant was the target of the warrant. There was ample testimony that defendant's four other brothers all occupied the residence and slept in the attic, and any of these individuals could reasonably have been the target of the warrant, if there was a target at all. Unlike in Milton and Alverez, there was no testimony regarding a warrant pertaining to defendant personally. Accordingly, as the reference to the warrant was not "clearly capable of producing an unjust result" to establish plain error pursuant to Rule 2:10-2, reversal is not warranted.
Finally, defendant contends, and the State agrees, that defendant's JOC incorrectly includes count three of the indictment, second-degree distribution of a CDS within 500 feet of a public park, N.J.S.A. 2C:35-7.1, which was dismissed pretrial. Based on our review of the record, we agree and remand for correction.
In sum, we affirm defendant's conviction as the trial judge's decision to deny the motion for judgment of acquittal was proper, and the testimony regarding the search warrant did not unduly prejudice defendant's case. We remand only for correction of the JOC consistent with this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION