STATE OF NEW JERSEY v. DERRICK RICHARDS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3227-03T43227-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERRICK RICHARDS,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Fall and Parker.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 00-09-1014.

Yvonne Smith Segars, Public Defender, attorney for appellant (Neal M. Frank, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Prosecutor of Mercer County, attorney for respondent Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Derrick Richards appeals from a judgment of conviction entered on June 6, 2003 after a jury found him guilty of fourth degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(3) and N.J.S.A. 2C:2-6; third degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(11) and N.J.S.A. 2C:2-6; and fourth degree maintaining a narcotics nuisance, N.J.S.A. 24:21-21a(6) and N.J.S.A. 2C:2-6. He was sentenced to a term of three years probation and the mandatory fines and penalties. The jury found him guilty of second degree possession of a handgun "in the course of committing, attempting to commit or conspiring to commit" a drug offense, N.J.S.A. 2C:39-4.1a, but that count was dismissed on defendant's post-trial motion. The jury found defendant not guilty of third degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(3) and N.J.S.A. 2C:2-6.

The charges against defendant arose out of a search of the home shared by defendant and his brother, Bertram Richards, pursuant to a warrant that defendant stipulated was valid. Defendant was not home at the time of the search and was convicted on the basis of constructive possession. State v. Schmidt, 110 N.J. 258, 268 (1988).

On November 11, 1999, Trenton Police Detective Phillip Peroni and eight members of the Vice Enforcement Unit executed the search warrant at the first floor apartment of 35 Carroll Street. The apartment, which was within 1,000 feet of a school, had a front and rear bedroom separated by a living room. Peroni testified that when he entered the rear bedroom, he found defendant's brother. Peroni handcuffed Bertram and searched the bedroom. He found and seized a brown bag containing twenty-three glass jars and three clear sandwich bags, each containing marijuana, two photographs of Bertram, a box of sandwich bags and $1,122 in cash.

Defendant occupied the front bedroom where a green wool hat was found on a chair under a pile of clothes. Inside the hat were twenty-five glass jars containing marijuana. A .9 millimeter handgun was found inside a duffel bag filed with dirty laundry. No bullets were found, however, and the gun was inoperable, but could have been restored to operation with lubrication of the firing pin. A phone bill, MasterCard application and an insurance billing statement, all addressed to defendant, were also seized from the front bedroom, along with two drivers licenses in defendant's name. Peroni testified that one license was an original with a photo of defendant and the second was a duplicate with a photo of Bertram. A package of Zip-lock bags and $690 in cash were also recovered from the front bedroom.

At trial, the parties stipulated that the search was lawful, the front bedroom belonged to defendant and the ballistics report would be admitted into evidence without foundation testimony along with the laboratory certificate indicating that the jars and sandwich bags contained a total of 105.32 grams of marijuana.

At trial, in addition to Peroni, the State presented Detective Richard Frascella as an expert witness. Frascella estimated that each jar contained one or two grams, which would typically sell for $20. Each bag contained five or six grams that would typically sell for $50. All of the glass jars had similar packaging and lids. In Frascella's opinion, the drugs seized were intended for distribution and the jars were packaged to "maximize profits." He estimated that five grams cost approximately $600 in bulk but when packaged and sold in smaller amounts, could yield $1,100.

Bertram testified for his brother at trial. He claimed ownership of all the drugs, including those found in defendant's bedroom. He claimed that he purchased the drugs for personal use the previous day for $470 in the same packaging in which they were seized. He maintained that he hid the twenty-five jars in defendant's bedroom so he "wouldn't finish it so fast" and he would have "a reserve." When asked why he had purchased so much, Bertram responded, "I smoke a lot." He indicated that the jars and bags would last "about a week" if he smoked them with his friend and his brother.

Bertram also testified that he found the gun when he was working in an abandoned building but never used it and did not have bullets for it. He claimed he showed the gun to defendant the night before the search and then hid it in defendant's duffel bag. During Bertram's guilty plea, he had testified that the money found in defendant's room belonged to him. At trial, however, he testified that the money found in defendant's room belonged to defendant. When asked to explain the discrepancy in his testimony, he said that at the time of the plea, he "didn't understand what the agreement was."

Defendant testified on his own behalf at trial. He admitted being part owner of the building but denied owning the marijuana, the green hat or the gun. In fact, he claimed that he never saw the gun or the drugs prior to trial. When asked on cross-examination why the drugs and gun were found in his room, defendant responded, "I really don't get it myself, I wasn't home at the time. I'm blind to what's going on." He claimed that Bertram had never put drugs in his room before.

Defendant admitted smoking marijuana "occasionally" in the living room and sharing it with his brother and friends. He testified further, however, that he usually purchased his own drugs in a bag half the size of those found in his home. With respect to the money found in his room, defendant claimed that he had cashed his paychecks and some of the money may have been cash he was paid for a roofing job he did with his brother. Respecting the two drivers licenses, defendant noted that one was expired and claimed that the pictures on both licenses were of him.

After summations, the judge presented counsel with a proposed jury charge and conducted a lengthy charge conference on the record. Among the issues discussed were the parties' stipulation to the weight of the marijuana seized and the stipulated admission of the State's laboratory report, which stated the weight of the marijuana. Defense counsel stated:

It's stipulated into evidence. [The jurors] have to make their determination on the weight. That's part of what juries do. I didn't bring in a chemist or anything, but they still have to look at that lab certificate, and if they think that [the] part of it . . . attributable to Derrick is less than one ounce or less than 50 grams, or whatever it is, it's a lesser offense.

After further discussion regarding the 44.58 grams of marijuana found in defendant's room, defense counsel stated:

I'm not objecting to this as it is. I'll leave it as it is, whatever problems or arguments might be later . . . . I'll leave it as it is if the State doesn't have a problem with it.

After the charge was delivered to the jury and the judge asked if counsel had "[a]ny concerns about the instructions," defense counsel stated that he did not.

In this appeal, defendant argues:

POINT ONE

THE TRIAL COURT ERRED IN FAILING TO GRANT THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNTS TWO AND FOUR OF THE INDICTMENT

POINT TWO

THE VERDICT ON COUNTS TWO AND FOUR CHARGING THE DEFENDANT WITH POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE AND MAINTAINING A "DRUG HOUSE" WERE AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below)

POINT THREE

THE TRIAL COURT'S REMARKS TO THE JURY IN ITS PRELIMINARY STATEMENT ERRONEOUSLY EXPLAINED THE STATE'S BURDEN OF PROOF AND CONSTITUTED ERROR. (Not Raised Below)

POINT FOUR

THE TRIAL COURT FAILED TO ADEQUATELY EXPLAIN TO THE JURY HOW TO DETERMINE THE WEIGHT OF THE MARIJUANA IN QUESTION, AND HOW TO DETERMINE WHAT MARIJUANA BELONGED TO THE DEFENDANT, WHAT MARIJUANA BELONGED TO THE CO-DEFENDANT, OR IF THEY WERE BOTH IN POSSESSION OF THE TOTALITY OF THE MARIJUANA IN QUESTION.

Defendant first argues that the trial court erred in denying his motion to acquit on counts two and four of the indictment. He contends that "a fair review of the testimony below supports the conclusion that the State did not sustain its burden" on those counts. In support of his argument, defendant relies heavily on the testimony of his brother Bertram. He adds:

The State offered no evidence that any sales took place, or were going to take place, on premises, and at the best, the State proved that there may have been some marijuana on premises, although, no proof was adduced to show the quantities which may have been in the defendant's possession as compared with that of his brother.

Defendant concludes that his convictions on counts two and four, must therefore, be vacated and a new trial ordered. We disagree.

A motion to acquit must be granted at the end of the State's case if "the evidence is insufficient to warrant a conviction." R. 3:18-1. In deciding the motion

the trial judge must determine . . . whether, 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.

[State v. Reyes, 50 N.J. 454, 458-59 (1967).]

We apply the same standard to determine whether the motion was properly denied. State v. Moffa, 42 N.J., 258, 263 (1964). In our review, however, we do not consider the evidence introduced in defendant's case. Id. at 261; Reyes, supra, 50 N.J. at 459.

On count two, defendant and his brother were charged with "knowingly or purposely possess[ing] or hav[ing] under their control with [the] intent to distribute . . . marijuana, in a quantity of one ounce or more but less than five pounds, including any adulterants or diluents, contrary to the provisions of N.J.S.A. 2C:35-5a(1), 2C:35-5b(11), and 2C:2-6." On count four, defendant and his brother were charged with "knowingly keep[ing] or maintain[ing] a dwelling house, which is used for the keeping or selling of controlled dangerous substances in violation of . . . N.J.S.A. 24:21-21a(6) and 2C:2-6."

Under our criminal code, possession can be actual or constructive:

Physical or manual control of the proscribed item is not required as long as there is an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists. Moreover, possession can be jointly shared by several persons. More than one individual can be possessed of an item at the same time with equal criminal responsibility.

[State v. Brown, 80 N.J. 587, 597 (1979) (citations omitted).]

In State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), an acquittal at the end of the State's case was warranted where the State failed to present a prima facie case of the defendant's actual or constructive possession of CDS. Pursuant to a warrant, police searched the defendant's residence even though he was not home at the time. Id. at 517. CDS was found in the codefendant's bedroom and he was arrested at the scene. When the defendant's bedroom was searched, CDS was found hidden under a mattress. Various documents with the defendant's name, address and social security number were found in defendant's bedroom. Ibid. At trial, the defendant denied ownership of the CDS and his codefendant brother claimed ownership of the drugs. Id. at 518. We reversed the defendant's convictions for possession and possession with intent to distribute, finding that the State failed to demonstrate a prima facie case of possession because the residence was occupied by several family members who had access to the defendant's room and no forensic evidence was obtained connecting defendant to the drugs. Id. at 516, 521-22. We added,

Absent proof that defendant had exclusively occupied the bedroom or was present when the drugs were found or within a short time before, a reasonable jury could not, on these facts, find beyond a reasonable doubt that defendant was in actual or physical possession of the drugs found hidden in the room.

[Id. at 521-22.]

There was nothing in the State's case from which a jury could "'readily draw the inference that the occupant of such premises would have knowledge and control of its contents." Id. at 523 (quoting Brown, supra, 80 N.J. at 594); see also State v. Jackson, 326 N.J. Super. 276, 279-81 (App. Div. 1999) (reversing possession of CDS conviction where CDS was found in a room where defendant was sleeping absent any identification evidence linking defendant to the apartment).

Here, when we consider the State's evidence in its entirety we find that the State established a prima facie case on counts two and four. Unlike Milton, defendant here stipulated to occupying the front bedroom and admitted part ownership of the residence. Moreover, ample identification was found in the room linking defendant to the room and allowing an inference that he had knowledge and control over its contents. The State's expert witness opined that the packaging of the marijuana in defendant's room indicated an intent to distribute. See State v. Francis, 341 N.J. Super. 67, 72 (App. Div. 2001). In short, we find no error in the trial court's denial of defendant's motion to acquit on counts two and four.

Defendant next argues that the verdicts on counts two and four were against the weight of the evidence. Defendant did not move for a new trial on these counts, however, as required by Rule 2:10-1. State v. Lopez, 213 N.J. Super. 324, 330 (App. Div. 1985) (holding that when defendant failed to make the required post-trial motion the issue of a new trial was not cognizable on appeal unless "it clearly appeared that there was a miscarriage of justice"), certif. denied, 103 N.J. 480, 486 (1986); State v. Terry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 64 N.J. 45 (1974) .

While we need not entertain defendant's argument in the absence of the new trial motion, we "may choose to do so in the interest of justice." Pressler, Current N.J. Court Rules, comment 1 on R. 2:10-1. In our view, however, the verdict does not represent a miscarriage of justice, and the verdict was adequately supported by the evidence.

Defendant claims for the first time on appeal that the trial judge failed to explain the State's burden of proof correctly in his preliminary remarks to the jury at the beginning of the trial. We note initially that defense counsel raised no objection to the preliminary instructions at the time. Where defendant fails to make an objection, it is presumed that the instructions were adequate. State v. Macon, 57 N.J. 325, 333 (1971). The absence of an objection to a charge is indicative of the fact that trial counsel perceived that no prejudice would result. State v. Wilbely, 63 N.J. 420, 422 (1973). Consequently, the plain error standard applies. R. 2:10-2.

Plain error, in the context of a jury charge, is '[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. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

In determining whether a jury charge prejudicially affected defendant's rights, we must examine the entire charge to see if it was ambiguous or misleading in the context of the trial. State v. Hipplewith, 33 N.J. 300, 317 (1960).

In our review of jury instructions we do not isolate preliminary instructions from the final instructions. In his final instructions to the jury, the judge fully explained the State's burden of proof as it related to the charges against defendant and we are satisfied that defendant suffered no prejudice from any preliminary remarks by judge.

Finally, defendant argues that the trial judge failed to adequately charge the jury on how to determine the weight of the marijuana and the amount possessed by defendant as opposed to his brother. As we noted previously, defendant raised no objection to the jury charge on the weight of the marijuana and, in fact, stated that the charge was "favorable to my client's interests so I'm not going to object to it." Defendant's failure to object to the charge leads us to conclude that it was not prejudicial at the time. Macon, supra, 57 N.J. at 333.

Affirmed.

 

Bertram was named as codefendant in the indictment and charged on all of the same counts as defendant except count five which charged defendant alone with the weapons offense. Bertram pled guilty prior to trial.

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A-3227-03T4

October 27, 2005