STATE OF NEW JERSEY v. WILFREDO MORALES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6236-04T36236-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILFREDO MORALES,

Defendant-Appellant.

__________________________________________________________

 

Submitted May 23, 2006 - Decided June 16, 2006

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey,

Law Division, Monmouth County, 03-04-00758-I.

Hobbie, Corrigan, Bertucio & Tashjy, attorneys

for appellant (Norman M. Hobbie and Edward C.

Bertucio, Jr., of counsel; Mr. Bertucio, on

the brief).

Zulima V. Farber, Attorney General, attorney for

respondent (Hilary Horton, Deputy Attorney General,

of counsel and on the brief).

PER CURIAM

Defendant was indicted for possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(1) (count one), and possession with intent to distribute, contrary to N.J.S.A. 2C:35-5b(2) (count two). He unsuccessfully moved to suppress the drugs found on his person, and a jury found him guilty on count one and not guilty on count two. After denying defendant's motion for judgment notwithstanding the verdict or for a new trial, the judge sentenced defendant to eighteen months probation with 364 days to be served as a condition of probation.

Defendant appeals, asserting the following points:

POINT I

THE TRIAL COURT SHOULD HAVE GRANTED THE MOTION TO SUPPRESS EVIDENCE AND SUPPRESSED THE CONTROLLED DANGEROUS SUBSTANCE AND OTHER PHYSICAL EVIDENCE IN THIS CASE.

POINT II

THE MOTION TO DISMISS THE INDICTMENT AT THE CLOSE OF THE STATE'S CASE OR THE MOTION TO DISMISS THE INDICTMENT AT THE CLOSE OF ALL EVIDENCE SHOULD HAVE BEEN GRANTED ENTIRELY IN THIS MATTER AND THE SUBMISSION OF BOTH COUNTS OF THE INDICTMENT TO THE JURY, ESPECIALLY THE UNTENABLE COUNT OF POSSESSION WITH INTENT TO DISTRIBUTE C.D.S., CAUSED THE SPLIT-VERDICT WHERE OTHERWISE THERE WOULD HAVE BEEN A COMPLETE ACQUITTAL.

POINT III

THE TRIAL COURT SHOULD NOT HAVE CHARGED THE JURY AS TO CONSTRUCTIVE POSSESSION AND THE TRIAL COURT, IN CHARGING FALSE-IN-ONE-FALSE-IN-ALL, SHOULD HAVE TOLD THE JURY THAT SAID CHARGE APPLIED SPECIFICALLY TO ITS EVALUATION OF THE TESTIMONY OF PATROLMAN ADAM AND MR. RYAN. THE FAILURE TO SO INSTRUCT THE JURY REQUIRES REVERSAL OF THE CONVICTION.

POINT IV

THE TRIAL COURT SHOULD HAVE GRANTED THE POST-VERDICT MOTIONS FOR EITHER A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT OR FOR A NEW TRIAL.

POINT V

THE SENTENCE IMPOSED IN THIS MATTER WAS EXCESSIVE.

Although the judge erred in charging constructive possession, that error does not warrant reversal, and the remaining points are entirely without merit. Therefore, we affirm.

On the motion to suppress, the only evidence comes from two prosecution witnesses, police officer Michael Adam and Gene Ryan, a paramedic. On January 22, 2002, Officer Adam of the Neptune Township Police Department was dispatched to a street address to check on a report that a car was blocking traffic and the driver was unconscious behind the wheel. When Adam arrived he saw the driver, later identified as defendant, "passed out" and unresponsive, with "some drool coming out of his mouth." No one else was in the car, which was stopped facing southbound across a street running east and west; it was blocking the westbound lane. The car was stopped near defendant's residence.

Adam spoke with a passerby who said she had been blocked by defendant's car, so she got out and saw defendant unconscious and a child in the car. She said she removed the child, shut off defendant's car, and called the police.

Adam tried unsuccessfully to rouse defendant. Fearing a medical problem that might endanger defendant's life, he patted down defendant's front pants and jacket pockets and checked in the console for alcohol or pills or prescriptions. He found nothing.

At one point, before the ambulance arrived, Adam asked defendant's brother, Jose Morales, whether his brother had a medical history that might explain his unconsciousness. Jose replied that defendant "had fallen asleep on prior occasions just inadvertently," and that he "had used GHB in the past." (GHB is gamma hydroxybutyrate, a controlled dangerous substance. N.J.S.A. 2C:35-3.)

When the ambulance arrived, the emergency personnel put defendant into the back of the ambulance and began treating him. Adam entered the back of the ambulance and saw one medic, later identified as Gene Ryan, begin cutting away defendant's clothing in order to check for the cause of his condition. The medic removed a plastic bag from defendant's rear pants pocket and handed it over to Adam. The bag had two plastic bags inside, which Adam believed contained "cocaine, GHB."

Adam took the bags to police headquarters and later went to the hospital, where he waited while defendant was being treated. Adam considered defendant to be under police custody. A blood test of defendant at the hospital did not reveal alcohol or illegal substances.

At the hearing Adam admitted that he had given different versions of how he obtained the plastic bag. First, in his departmental report, prepared about six or seven hours after the incident, he wrote: "[W]hen they cut his pants and removed them, I noticed a bulge in his rear pant's [sic] pocket. It was at this time I checked his pocket and found two bags filled with white powder-like substance[.] I believed the bags to be CDS cocaine, and CDS GHB." Second, at defendant's parole hearing in March 2003, Adam had testified that after the pants were cut off he was told (apparently by the medic) that there was a bulge in the pants, at which Adam saw the bulge and removed the bag.

Adam conceded that the two earlier accounts conflicted with each other and with his testimony at the suppression hearing. He offered no explanation, except to affirm that his current testimony was correct (that the medic found the bag and handed it to Adam).

Ryan, who was employed as a paramedic by Medic Ocean County Hospital Service Corporation, testified that a police officer at the scene told him that defendant had suffered a seizure. He began his assessment, noticing that defendant was unconscious, had shallow breathing, and a slow heart rate. It was critical for Ryan to determine whether defendant had ingested a substance, so that he could administer an antidote or otherwise give him appropriate treatment. He observed that defendant was "essentially in a coma," and that his condition was "pretty much as serious as they get outside of actually being dead." Ryan began cutting away defendant's pants, which was routine procedure in cases when trauma or a drug emergency was suspected since it enabled him to look for a drug that might tell him what defendant had ingested. He also cut the pants in part for his own safety, to search for a possible needle that might stick him. When he cut the pants, he found a bag enclosing two other bags containing a white substance. As the police had left the area of the ambulance, Ryan told his partner, Karl Koch, to call the police over. Ryan handed the bag to an officer. At that point Koch told Ryan that defendant's brother had just reported that defendant might have ingested GHB. Based on that report, Ryan decided to intubate defendant in order to open an airway and prevent him from dying.

Koch prepared a report of the incident in which he said that "the police found the drugs." At the hearing Ryan insisted that the report was wrong; he "[v]ery clearly" remembered finding the drugs himself.

At trial, Adam and Ryan repeated much of their testimony from the suppression hearing. Adam testified that he was watching the medics cut off defendant's sweat pants when one of them found a plastic bag containing two smaller bags, which he handed the bag to Adam. Adam again affirmed that his written report was not accurate in stating that it was Adam who seized the drugs. He added that he had also testified the same (incorrect) way at the grand jury hearing. He admitted that his earlier versions were inconsistent with his trial testimony.

A State Police forensic scientist, Henry Swordsma, tested the substances in the two small bags. One bag had 99.19 grams (3.49 ounces) of cocaine. The other did not test positive for any illegal substance. Swordsma was not asked to test that bag to see if it was a cutting agent.

Detective James Powers of the Monmouth County Prosecutor's Office testified as an expert in distinguishing drug possession from possession with intent to distribute. Based on a hypothetical incorporating the facts of this case, Powers opined that defendant possessed the cocaine for the purposes of distribution. He based his opinion on the large amount of cocaine and the presence of the powder in the other bag, which he believed was a "cutting agent."

The only witness for the defense was defendant's fiancé, Angel Dickerson but she added nothing of significance to the case.

Defendant argues that the trial court erred in denying his motion to suppress because Adam's testimony that it was the paramedic who found the drugs was incredible, there were no exigent circumstances to justify Adam's search, and the "emergency aid doctrine" did not apply.

Judge Farren found that "Ryan was an extremely credible witness." Hence he found that "Ryan, upon finding the contraband, turned the same over to patrolman Adams[.]" The judge noted that Ryan was "an employee of Monmouth and not a Government agent or acting at their direction." Thus his seizure of the drugs was not subject to constitutional constraints. We must defer to the judge's credibility determination since it sustained evidentiary support. State v. Locurto, 157 N.J. 463, 474 (1999). And we must affirm the ruling because the judge was right on the law. State v. Frank, 112 N.J. Super. 592, 594 (App. Div. 1971).

We need not consider the judge's alternative that, even if it was Adam who performed the search, the search was lawful under the "emergency aid doctrine." However, we note that the doctrine appears to be inapplicable here. See e.g., State v. Frankel, 179 N.J. 586, 598-99, cert. denied, 543 U.S. 876, 125 S. Ct. 108, 160 L. Ed. 2d 128 (2004).

Defendant contends that the trial judge erred in denying his R. 3:18-1 motion for judgment of acquittal at the close of all evidence (Point II). He focuses on count two, charging possession with intent to distribute, which he says never should have been submitted to the jury. Even though the jury acquitted him on that count, defendant reasons, the presence of that count caused the jury to "split the baby" by convicting on count one, charging simple possession. Had count two been dismissed, concludes defendant, he would have had a "fair opportunity to be acquitted of all charges."

At the close of evidence defendant moved for acquittal on both counts. On the possession count he argued that Adam "could not say he saw where those drugs came from." He conceded that his argument on the possession count was "less tenable" than his challenge to the intent-to-distribute count. On that count he relied on Detective Powers's testimony that he could not "eliminate the possibility that these drugs were possessed for personal use." That Powers opined that the drugs were possessed for distribution purposes, argued defendant, was not enough to establish proof beyond a reasonable doubt.

The standard governing a motion under R. 3:18-1 is

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, 459 (1967).]

Judge Neafsey ruled that the Reyes standard was met. The possession charge was supported by Ryan's testimony that "the drugs in question came from [defendant] at the point when they were trying to assist [defendant] who was in the thro[e]s of a medical situation at the time." And the intent-to-distribute charge was supported by Powers's expert opinion that the large amount of cocaine (99.19 grams) was indicative of distribution as opposed to mere possession. Moreover, added the judge, Powers based his opinion on the presence of the untested white powder, which he believed was a "cutting agent", and since the jury could choose to believe or disbelieve Powers, the motion had to be denied.

On appeal defendant focuses on the one part of Powers's testimony, where he conceded on cross-examination that it was possible that the cocaine was possessed for personal use, but defendant fails to cite to the transcript for the testimony to which he refers. Although we could disregard his argument, State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977), we will assume he is referring to Powers's agreement with defense counsel that it was "possible" that the untested powder had nothing to do with mixing with the cocaine, and that it was "possible" that the cocaine itself was for personal use only.

Defendant conveniently omits any references to Powers's testimony on direct that it was his expert opinion that the cocaine in the bag taken from defendant was possessed for the purpose of distribution, an opinion he based 1) on the large amount, which was inconsistent with personal use, and 2) the presence of the white powder in the other bag, which he opined was a "cutting agent" for the cocaine. He explained that the evidence suggested that the cocaine was in the "pre-packaging stage." While it is true that he agreed with defense counsel's proddings that it was "possible" that defendant's possession was for personal use only and that the other substance was not a cutting agent, he added that those scenarios were not probable.

Thus Powers's expert testimony, uncontradicted by any expert on behalf of defendant, provided ample evidence from which a reasonable jury could find defendant guilty on both counts, and under the Reyes test, the judge reasonably allowed both counts to go to the jury. And defendant benefited when the jury apparently rejected Powers's key opinion by acquitting defendant on the distribution count. But there was direct evidence that defendant possessed cocaine, and we find defendant's attempt to taint the possession verdict with the presence of the distribution count entirely unconvincing.

At the charge conference, defense counsel asked that actual possession be charged but not constructive possession, because the State's theory was that defendant actually possessed the drugs. The prosecutor asked for both charges, and the judge agreed to give both concepts to the jury.

On appeal defendant complains that there was no factual basis for the charge of constructive possession. He observes that the State's theory, and proffered evidence, was that the drugs were found in defendant's back pants pocket. Hence defendant constructed his defense around refuting actual possession, by presenting proof that the pants worn by defendant did not have back pockets, thereby casting doubt on Adam's and Ryan's testimony about where the drugs were found. By charging the alternative theory of constructive possession, reasons defendant, the judge offered the jury another ground on which to convict, a ground that had no support in the record.

The State does not respond to defendant's point that the record suggested no factual basis for the instruction on constructive possession. It merely notes that the Model Jury Charge includes both kinds of possession, and it says that the charge did not harm defendant because the jury acquitted him on the distribution count.

That the Model Jury Charge includes both concepts is irrelevant to whether both were properly charged here. The Model Jury Charge itself prefaces the key excerpt with the direction that the three kinds of possession (actual, constructive or joint) are to be charged only as they apply to the case at hand. Thus constructive possession should have been charged only if there was a factual basis for it.

In some cases a trial judge must do more than merely read the statutory language, define the relevant terms, and set forth the elements of the crime; when necessary, the judge should also mold the charge to the parties' factual hypotheses. State v. Jones, 346 N.J. Super. 391, 401 (App. Div.), certif. denied, 172 N.J. 181 (2002). But a specifically tailored instruction is not needed in every case; it "is required only if necessary to avoid confusion or misunderstanding, or when the facts and legal concepts are complex and require such treatment." State v. T.C., 347 N.J. Super. 219, 240 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003).

A trial judge may instruct the jury about an offense only when such a charge is clearly indicated by the facts "and when the instruction does not conflict with a defendant's trial strategy." State v. Chew, 150 N.J. 30, 75 (1997). Thus it is error for a judge to charge on a theory that "is inapplicable to the facts or issues before the court." State v. Thomas, 76 N.J. 344, 365 (1978). But that error may be harmless, depending on the facts of the case. Ibid. It is a defendant's burden to show that he or she was prejudiced by the unwarranted charge. Ibid. If the error involved "material points" it will be presumed reversible. State v. Bunch, 180 N.J. 534, 542 (2004).

We agree with defendant that the record did not justify a constructive possession charge. The State's evidence pointed to actual possession. The State offered no evidence from which a reasonable jury might infer that, while defendant himself did not possess the drugs, he knew where they were and had intentionally put himself in a position to exercise control over them during the time in question. State v. McCoy, 116 N.J. 293, 299 (1989).

But the erroneous charge is not reversible error. Defendant argues that the error here was reversible because it permitted the jury to convict even if it believed defendant's defense. Obviously, the jury rejected defendant's version.

We disagree with defendant's allegation of harm. If the jury believed the defense, it could not have found any possession at all, whether actual or constructive. For if the drugs were planted or already in the ambulance before defendant was put in there, defendant had no knowledge about their presence and no ability to control them or direct their movement. Mere proximity to the drugs, without knowledge of their presence, cannot qualify as constructive possession. State v. McCoy, supra, 116 N.J. at 300. We conclude that the constructive possession charge, while improper, was surplusage that had no clear capacity to alter the verdict.

At the charge conference defense counsel requested a false-in-one, false-in-all charge directed specifically at Adam and Ryan, given the inconsistencies that tended to undercut their credibility. The prosecutor protested, asking that the judge limit himself to the standard charges on credibility and prior inconsistent statements.

Judge Neafsey ruled that he would give the Model Jury Charge on false-in-one, false-in-all, without naming any witnesses and left it to counsel "to handle how they believe it's most appropriate to handle." And he agreed to both counsel's request for the Model Jury Charge on prior inconsistent statements.

In giving the prior-inconsistent-statement charge, Judge Neafsey named the two witnesses to whom the charge applied in this case:

Evidence has been presented showing that a prior time Patrolman John Adam[s] said something or failed to say something which is inconsistent with his testimony at trial.

Evidence has also been presented showing that paramedic, Gene Ryan, said something which is inconsistent with his testimony at trial.

Such evidence may be considered by you as proof of the truth of the prior contradictory statement.

The judge followed his inconsistent-statement instruction with the charge to which defendant now objects:

If you believe that any witness or a party willfully or knowingly testified falsely to any material facts in the case, with an intent to deceive you, you may give such weight to his or her testimony as you deem it is entitled. You may believe some of it, or you may, in your discretion, disregard all of it.

At no time did defendant object on the ground he asserts on appeal. While he asked that the false-in-one, false-in-all charge be given as to Ryan and Adam, he did not ask that it not be given as to other witnesses as well. And when the judge said that he was going to include all witnesses in the instruction, defense counsel did not object. Thus his appellate argument is raised for the first time, and we may choose to disregard it unless there was plain error. R. 1:7-2.

On appeal defendant invokes the principle that a trial court often has the duty to tailor its jury charge to the specific facts of the case and argues that the judge should have done so here. Defendant asserts that the judge

refused to tailor the false-in-one-false-in-all charge to the jury so that the jury understood that it specifically applied to Patrolman Adam who admitted he had given untrue and inaccurate testimony previously in this matter and to Mr. Ryan whose testimony was in direct contradiction to the report of his fellow EMT Mr. Koch, who had prepared a report indicating that the police had found three bags of drugs and not that Mr. Ryan had found two bags of drugs.

We find defendant's contention unpersuasive. Any more specific tailoring would have been unnecessary and superfluous. The charge followed immediately after the detailed jury instruction on credibility and on inconsistent statements, which highlighted Patrolman Adam and Paramedic Ryan as requested by defendant. The general false-in-one, false-in-all charge covered all witnesses, including Ryan and Adam, and the judge expressly reminded the jury about Ryan's and Adam's inconsistencies and invited the jury to measure their credibility accordingly. Thus the charge as a whole adequately conveyed what defense counsel wanted.

Defendant contends that the trial court erred in denying his motion for judgment n.o.v. or a new trial and that his sentence is excessive, but neither point merits discussion.

R. 2:11-3(e)(2).

Affirmed.

 

(continued)

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A-6236-04T3

June 16, 2006