STATE OF NEW JERSEY v. ZAAIR TUCK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6497-03T46497-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZAAIR TUCK,

Defendant-Appellant.

_________________________________________________

 

Submitted December 19, 2005 - Decided January 12, 2006

Before Judges A.A. Rodr guez and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-06-0558 and Accusation No. 02-05-0627.

Yvonne Smith Segars, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel; Patricia L. Cronin, Legal Analyst, on the brief).

PER CURIAM

In this appeal, defendant argues that the trial judge's instructions permitted the jury to find him guilty without necessarily unanimously agreeing upon what he actually did. Since we agree with defendant that the jury instructions were ambiguous and confusing in certain critical respects, we reverse and remand for a new trial.

Union County indictment No. 03 06-0558 charged defendant with third-degree possession of a controlled dangerous substance (marijuana), N.J.S.A. 2C:35-5(a)(1); N.J.S.A. 2C:35-5(b)(11), and third-degree possession of a controlled dangerous substance (marijuana) with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. Following a trial, defendant was convicted on both counts.

At the time of sentencing, defendant also pleaded guilty to violating the probationary term imposed on Accusation No. 02-05-0627, which charged third-degree burglary and third-degree attempted theft of a motor vehicle. On October 4, 2002, defendant had been sentenced to a three-year term of probation, subject to various conditions. He was, upon pleading to a violation of the terms of probation, sentenced to two concurrent four-year terms of imprisonment. As for Indictment No. 03-06-0558, the trial judge merged the two drug convictions and sentenced defendant to a five-year term of imprisonment with a three-year period of parole ineligibility. The sentence on Indictment No. 03-06-0558 was ordered to run consecutively to the terms imposed on the violation of probation. The judge also directed that the sentence imposed because of defendant's violation of probation in Accusation No. 02-05-0627 should be served prior to the sentence imposed on Indictment No. 03-06-0558.

Defendant appealed, raising the following arguments for our consideration:

I. THE TRIAL COURT'S FAILURE TO CHARGE CROSS-RACIAL IDENTIFICATION CONSTITUTES A DENIAL OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.

II. THE TRIAL JUDGE ERRONEOUSLY INSTRUCTED THE JURY THAT EITHER THE POSSESSION OF THE THIRTY-FIVE BAGS OF DRUGS FOUND IN THE WEEDS AND/OR THE THREE BAGS OF DRUGS FOUND IN THE DEFENDANT'S JACKET WOULD SATISFY THE POSSESSORY ELEMENT IN BOTH OF THE DRUG CHARGES, RESULTING IN A VERDICT THAT MAY NOT HAVE BEEN UNANIMOUS AND THEREFORE VIOLATED DEFENDANT'S RIGHTS. U.S. CONST. AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.

III. THE PROSECUTOR'S IMPROPER REMARKS DENIED THE DEFENDANT A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 10.

IV. THE IMPOSITION OF A CONSECUTIVE SENTENCE ON THIS YOUTHFUL OFFENDER WAS AN ABUSE OF DISCRETION; THE SENTENCE SHOULD BE MODIFIED TO REFLECT CONCURRENT TERMS.

V. DEFENDANT'S SENTENCE SHOULD BE MODIFIED TO SHOW THAT HE IS SERVING THE SENTENCE FOR THE DRUG OFFENSE FIRST, AND THE CONSECUTIVE TERM FOR THE VOP OFFENSE SECOND.

VI. DEFENDANT'S SENTENCE SHOULD BE MODIFIED TO REDUCE THE FIVE YEAR DRUG TERM TO THE PRESUMPTIVE FOUR YEAR TERM SINCE THE SENTENCE IMPOSED VIOLATED THE CONSTITUTIONAL PRINCIPLES ESTABLISHED BY THE UNITED STATES SUPREME COURT IN BLAKELY v. WASHINGTON.

Because we agree with defendant's contention that the jury instructions were confusing, and because that determination requires the reversal of the judgment of conviction and a new trial in Indictment No. 03-06-0558, we need not reach the merits of defendant's other contentions.

During the trial on Indictment No. 03 06-0558, the State sought to prove that defendant was either in possession of three bags of marijuana on his person, or in control of a considerably larger stash of marijuana in a nearby location, or both; that defendant was engaged in the distribution of marijuana; and that, for purposes of the distribution charge, these events occurred either on or within 1000 feet of school property. The jury concluded that defendant was in possession of marijuana for distribution purposes, but it is not clear, in light of the manner in which the issues were posed by the judge in his instructions to the jury, whether all the members of the jury determined that defendant was in actual possession of three bags of marijuana or in constructive possession of a greater stash of marijuana in his control, or both. As a result, it is not at all clear that the jury members possessed a shared vision of the material facts -- a necessary attribute of the constitutional requirement that jury verdicts in criminal matters be unanimous. See State v. Frisby, 174 N.J. 583, 596 (2002); State v. Parker, 124 N.J. 628, 633 (1991), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992).

Our Supreme Court has held that the "unanimity principle is deeply ingrained in our jurisprudence." State v. Frisby, supra, 174 N.J. at 596. Article I, paragraph 9 of the New Jersey Constitution "presupposes a requirement of a unanimous jury verdict in criminal cases," State v. Parker, supra, 124 N.J. at 633, and R. 1:8-9 carries that principle into practice by requiring that the verdict "shall be unanimous in all criminal actions." This unanimity requirement instills in the jury "the necessity of reaching a subjective state of certitude." State v. Parker, supra, 124 N.J. at 633 (quoting United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)). As emphasized by the Court in State v. Frisby, supra, 174 N.J. at 596, "the notion of unanimity requires jurors to be in substantial agreement as to just what a defendant did before determining his or her guilt or innocence."

Recently, our Supreme Court again recognized the need for jurors to unanimously agree as to the material elements of the criminal offense charged. In State v. Gentry, 370 N.J. Super. 413 (App. Div. 2004), rev'd, 183 N.J. 30 (2005), defendant was charged with a robbery. During deliberations, the jury disagreed over which of two store employees defendant had used force against. The jury sought further instruction from the trial judge as to the extent to which they were required to agree. The jury's written question indicated that one group of jurors believed force was used against employee Davis but not employee Lowe, while the remainder of the jury believed that force was used against employee Lowe but not employee Davis. The judge instructed the jury that its members need not be unanimous as to which of the two employees was subjected to force so long as they all agreed that force was used or threatened. With that instruction the jury soon returned its verdict of guilt. We affirmed but, in dissent, Judge Coburn stated "as a matter of 'common sense and intuition,' that the principle of unanimity required that the jury agree that force had been used on at least one and the same victim." 370 N.J. Super. at 427. In reversing, the Supreme Court adopted Judge Coburn's conclusion that "the jurors had to agree unanimously on which acts were committed against which victim." 183 N.J. at 33.

Although the matter at hand does not involve the identical circumstances presented in Gentry, we conclude that the similar application of "common sense and intuition" here also compels the same result. When a defendant is charged with offenses that rely upon alternative factual contentions or are based upon different theories, the jury should be unanimous as to what it was that defendant did. State v. Frisby, supra, 174 N.J. at 599. Here, although defendant was not charged with an offense, or offenses, that involved more than one victim -- as in Gentry -- the separate evidential theories posed by the State's proofs required that the judge clearly charge the jury members of their need to be unanimous as to the factual theory, or theories, underlying their guilty verdict.

In this case, the trial judge outlined the State's alternate factual theories, and the elements of the offenses charged, in a way that unfortunately had the potential to cause confusion and jeopardize the constitutional unanimity requirement. For example, in advising the jury that the State was required to prove beyond a reasonable doubt that defendant was in possession of a controlled dangerous substance, the judge did not clearly distinguish between the State's alternative theories that defendant was in actual possession of three bags of marijuana on his person (S-6 in evidence) or in constructive possession of a larger, nearby stash consisting of 35 bags of marijuana (S-1 in evidence), or both. Instead, the judge instructed the jury in the following ambiguous way as to the elements of the possession charge:

[T]he four elements the State must prove to you beyond a reasonable doubt under Count One: One, S-1 and/or 6 contain marijuana; two, that the defendant possessed as I [explained to] you actual for S-6 and/or constructive for S-1, a controlled dangerous substance, marijuana. . . .

[Emphasis added.]

And, as to the charge that defendant was in possession of a controlled dangerous substance with the intent to distribute on or within 1000 feet of school property, the judge provided the jury with the following ambiguous instructions:

[You must determine that] S-1 and/or S-6 contain marijuana; two, that the defendant had actual and/or constructive possession or had under his control S-1 and/or 6; three, that the defendant when he possessed and/or had under his control with intent to distribute S-1 and/or S-6, he had a specific intent to distribute those items; and four, that he acted either knowingly or purposely in possessing or having under his control with intent to distribute S-1 and/or S-6. Those are the four things the State must prove beyond a reasonable doubt.

. . . .

The third element the State must prove to you beyond a reasonable doubt is the defendant had an intent to distribute S-1 and/or 6 in evidence.

. . . .

You may consider on the issue of intent, quantity, purity, packaging of S-1 and/or S-6, together with all the evidence before you to aid you in your determination of the element of intent to distribute.

Now, the fourth element the State must prove beyond a reasonable doubt is that the defendant had acted, either knowingly or purposely, in having under his control or possess[ion] S-1 and/or S-6 with intent to distribute.

. . . .

To reiterate, possession with intent to distribute marijuana in Count Two the State must prove beyond a reasonable doubt: One, that S-1 and/or S-6 contain marijuana; two, that this defendant possessed in terms of actual and/or constructive or have in his control S-1 and/or S-6; three, that he had a particular intent to distribute S-1 and/or S-6; four, that he acted knowingly or purposely in possessing or having under his control with intent to control S-1 or S-6.

[Emphasis added.]

By referencing the State's alternative allegations that defendant was either in possession of S-1 or in possession of S-6, or both, in one collective statement, the judge permitted the jury to convict defendant without necessarily agreeing on which of those things defendant had done. This unfortunate consequence was chiefly produced by the judge's repeated use of the imprecise term "and/or" in summarizing for the jury the State's factual theories and the elements to be proven in order to find defendant guilty.

The imprecision embodied in the ambiguous phrase "and/or" has been well-documented elsewhere. See, e.g., In re Estate of Massey, 317 N.J. Super. 302 (Ch. Div. 1998). In Fisher v. Healy's Special Tours, Inc., 121 N.J.L. 198, 199 (E. & A. 1938), what was then the highest court of this State held that "and/or" is an expression that "has never been accredited in this state as good pleading or proper to form part of a judgment . . . ." We need not repeat the criticism that has also been heaped upon "and/or" by commentators and the courts of many other states, see authorities cited in Massey, supra, 317 N.J. Super. at 303-04, or the criticism expressed by our own courts, see Fisher, supra, 121 N.J.L. at 199; Massey, supra, 317 N.J. Super. at 305-06; Ward v. Jersey Central Power & Light Co., 136 N.J.Eq. 181, 182 (Ch. 1945), except to again acknowledge that the meaning of "and/or" is so illusive as to confound jury instructions whenever used. The ambiguity inherent in this phrase mainly relates to the question of how a jury is to determine whether two things both occurred while simultaneously determining whether only one of those same things occurred. Moreover, ascertaining the meaning of "and/or" implicitly requires a defining of the "slash" between "and" and "or." Does the "slash" connote the word "and" or the word "or"? In other words, does the syllogism "A and/or B" mean "A and B or A or B" or does it mean "A and B and A or B"? Without further definition in the jury instructions as to what the trial judge meant when he repeatedly referred to "S-1 and/or S-6" in various contexts, the jury was left to its own devices as to how to deal with this instruction. Because the repeated use of the inherently ambiguous phrase "and/or" rendered confusing the judge's instructions, we must reverse.

Although we do not mean to suggest that the use of "and/or" in a jury charge constitutes reversible error in all cases, the use of the phrase "and/or" in describing the findings that the jury was required to make in order to convict defendant -- as here -- generated a likelihood that the jury did not share the same view of what it was that defendant did. As occurred in Gentry, one group of jurors here could have believed that defendant had possession of S-6 but not S-1, while another group could have believed that defendant had possession of S-1 but not S-6. Had that disagreement occurred -- and we have no way of determining that it did not -- the judge's instructions, if literally followed by the jury, would have permitted the jury to find defendant guilty of both charges even if the jury members possessed conflicting views of what defendant actually did.

We recognize that defendant did not object to the judge's instructions in this regard. Notwithstanding, we conclude that these instructions were so confusing as to require a new trial. The Supreme Court has said that the "judicial obligation, to assure the jury's impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions, is at the core of the guarantee of a fair trial." State v. Simon, 79 N.J. 191, 206 (1979). The trial judge's role in instructing the jury as to the applicable law is of paramount importance. Accuracy and clarity are crucial because a jury is not free to interpret the judge's ambiguous statements; instead, the jury is told "that it must accept the law as explained by the court." State v. Walker, 322 N.J. Super. 535, 546 (App. Div.), certif. denied, 162 N.J. 487 (1999). Accordingly, it has been observed that "[e]rrors impacting directly upon these sensitive areas of a criminal trial are poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, supra, 79 N.J. at 206.

We conclude that the use of the phrase "and/or" in the trial judge's instructions in this case was capable of producing an unjust result. As noted above, the Court of Errors and Appeals determined long ago that the phrase "and/or" should not be used in pleadings or in the judgments or orders of our courts. Fisher, supra, 121 N.J.L. at 199. We likewise conclude that "and/or" should not be further utilized by judges in their jury instructions. Our holding extends beyond a finding that jury instructions that include the hopelessly ambiguous phrase "and/or" are inartful. Here, the judge's mistakenly-crafted charge had the unfortunate consequence of permitting the jury to convict defendant even if its members harbored a disagreement about what defendant actually did in any one of a number of material respects. Because this ambiguous phrase was repeatedly used to describe the material elements of the offenses charged during the judge's instructions, we conclude that the jury was left without adequate guidance when it resolved the factual questions presented. As a result, we reverse the judgment of conviction entered on January 23, 2004 in Indictment No. 03-06-0558 and remand for a new trial.

 
Reversed.

The reversal of the drug convictions renders moot defendant's argument in Point V that the trial judge erred with regard to the sequence in which defendant was required to serve the sentences in these matters.

Indeed, there is nothing about the judge's charge that would have precluded the jury from convicting defendant based on wholly illogical or inconsistent findings of fact. For example, in literally adhering to the judge's instructions, the jury could have convicted defendant of the distribution charge even if it concluded that S-1 contained marijuana but S-6 did not, while believing that defendant only had the intent to distribute the contents of S-6 and not S-1 -- again, because, according to the judge's instructions, the jury only had to determine that S-1 "and/or" S-6 contained marijuana and only had to determine that defendant had the intent to distribute S-1 "and/or" S-6. The jury was not told, as it should have been, that it should have considered the elements of the offenses charged separately as to both S-1 and S-6. In the absence of such direction, the judge's instructions created the possibility that the jury, in this fashion, could have convicted defendant of possessing, with the intent to distribute, a substance that was not marijuana.

In appealing, defendant raised no issue with regard to the judgment of conviction in Accusation No. 02-05-0627 except that he argued the sentence imposed on the drug convictions should have been ordered to be served first, whereas the trial judge directed that the sentence imposed for the violation of probation in Accusation No. 02-05-0627 should be served first. As noted earlier, this argument has been rendered moot by our disposition of the appeal in Indictment No. 03-06-0558.

(continued)

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A-6497-03T4

January 12, 2006