STATE OF NEW JERSEY v. GLENN MILLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0649-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GLENN MILLER, a/k/a LUKE

MILLER,

Defendant-Appellant.

________________________________________________________________

December 30, 2010

 

Submitted December 6, 2010 - Decided

 

Before Judges Lisa and Reisner.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-05-1132.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, of counsel and on the brief).

 

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Carey J. Huff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant and his co-defendant, Hiawatha Bibby,1 were charged in a seven count indictment with drug offenses, all arising out of a single incident in Asbury Park on December 1, 2007. Bibby was charged in counts one, two and three with third-degree possession of heroin, N.J.S.A. 2C:35-10a(1), third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5b(3), and third-degree distribution of heroin, N.J.S.A. 2C:35-5b(3). Counts four and five charged Bibby with third-degree possession of heroin with intent to distribute within a school zone, N.J.S.A. 2C:35-7, and third-degree distribution of heroin within a school zone, N.J.S.A. 2C:35-7. Count six charged Bibby with fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2). Defendant was the subject of only count seven, which charged him with third-degree possession of heroin, N.J.S.A. 2C:35-10a(1).

The jury acquitted defendant of the possession charge contained in the indictment. However, over defendant's objection, the court instructed the jury that if it found defendant not guilty of possession, it could consider as a lesser-included offense the crime of "conspiracy" to possess the heroin. In actuality, the charge given to the jury was for vicarious liability for Bibby's conduct on the theory that defendant was engaged in a conspiracy with Bibby, under N.J.S.A. 2C:2-6b(4). The court did not charge the substantive crime of conspiracy under N.J.S.A. 2C:5-2. The jury found defendant guilty of "conspiracy." Defendant filed a post-trial motion for acquittal or a new trial. The motion was denied and defendant was sentenced to five years imprisonment. Defendant argues on appeal:

POINT I

 

THE JURY SHOULD NOT HAVE BEEN CHARGED ON CONSPIRACY.

 

POINT II

 

THE COURT'S CHARGE WAS MISLEADING AND CONFUSING, AND WRONG. (NOT RAISED BELOW).

We agree with defendant's arguments and reverse.

I

At about 6:15 p.m. on December 1, 2007, Officers Gabrielle Carrasquillo, Eddy Raisin and Stephen Love, of the Asbury Park Police Department, stood on the 1500 block of Springwood Avenue near a pizza restaurant on the corner of Ridge Avenue. The officers were in plain clothes and were patrolling this high narcotics trafficking area in an effort to combat open-air drug sales. The officers observed defendant standing outside of the pizza restaurant. A few minutes later, they saw Bibby cross Springwood Avenue and approach defendant. Carrasquillo said defendant reached his left hand forward as Bibby handed defendant a white glassine packet. Based on his training and experience, Carrasquillo suspected that the packet contained heroin. Carrasquillo and Raisin contend they saw defendant hand Bibby United States currency, after which defendant and Bibby shook hands and began walking in separate directions.

Believing they had just witnessed a hand-to-hand narcotics transaction, the officers approached the two men and identified themselves as police officers. Defendant opened his hand and revealed a glassine packet that was marked "Inside Man" in red ink. Raisin placed defendant under arrest. Carrasquillo approached Bibby, who ran across Springwood Avenue. Carrasquillo pursued and apprehended him. He handcuffed Bibby and said he found a $10 bill in his hand. A further search revealed that Bibby had a pill bottle in his jacket which contained two bundles of suspected heroin and an additional $69 in currency. When the pill bottle was later examined at the station house, it was determined that one bundle contained ten glassine packets and the other contained nine. The packets were labeled "Inside Man" in red ink.

Defendant and Bibby were tried jointly. Defendant did not testify, but Bibby did. He readily acknowledged possessing heroin. He was fifty-eight years old at the time of trial, and he told the jury he had been a heroin addict for forty-two years. He acknowledged having numerous convictions involving heroin and having been in and out of jail and treatment for this problem.

Bibby said he had known defendant for about a year and they worked together on occasion. Bibby said he had purchased the two bundles earlier that day for a total price of $120, leaving him with $80 and change on his person. He attended his nephew's party, after which he stopped at a friend's apartment where he had left the heroin purchased earlier that day and picked it up before he headed home. Bibby said the heroin was strictly for his personal use. While he was walking toward his home, he stopped at a liquor store and purchased a quart of beer for a $1.50, leaving him with $79 in paper currency and change.

Bibby testified that the pizza restaurant was along his route of travel while walking home and that he ran into defendant in front of it purely by chance. He said he had not spoken to defendant in advance of the encounter and denied there was any prearrangement for the men to meet. Bibby said he asked defendant "what was happening because I had just left the party, and I was telling him about some food [presumably from the party]." He said defendant "was trying to tell me about some work that he had scheduled for Monday." This incident occurred on a Saturday.

Bibby acknowledged a hand-to-hand contact with defendant, describing it as the kind of greeting that would "normally" be exchanged "in the neighborhood." He said defendant "stuck out his hand, and he had his hand like, you know, a funny little shape, and so I just brushed past his hand." Bibby said the police then apprehended defendant, and he (Bibby) began to run, but was immediately apprehended. According to Bibby, there were many people on the street in the immediate area when all of this occurred. Bibby denied handing heroin or anything else to defendant, and he denied that defendant handed him money.

In cross-examining Bibby, the prosecutor attempted to elicit evidence that his encounter with defendant in front of the pizza restaurant was not a chance meeting. The prosecutor attempted to establish that this location was a regular meeting place for the two men. However, although Bibby acknowledged seeing defendant at that location in the past, he insisted that on those prior occasions the encounters were work-related, in the mornings, and had nothing to do with any kind of drug transactions. The relevant portion of this cross-examination was as follows:

Q. And this isn't the first time that you and Mr. Miller have met at this location; is it?

 

A. No, because it's where we pick people up to work for him.

 

Q. Right. So, that's the regular spot where he would meet you to work?

 

A. No.

 

Q. Or you would meet him?

 

A. No, usually I meet him in the morning, not at night. I don't come out at night.

 

Q. Not the time period. That's the spot? That's the spot where you would meet him regularly for work; right?

 

A. Yeah, a lot of people come to work in that area, yeah.

 

Q. And, specifically, you and Mr. Miller meet at that area for work?

 

A. No, whoever is out there that's offering work for the day. If they're out there, you go with them, I go with them. It doesn't have to be Mr. Miller. It could be anybody. Construction workers come out in that area looking for guys to go to work.

 

The police confiscated nineteen packets of suspected heroin from Bibby and one packet from defendant. They submitted them all to the State Police Laboratory. However, the forensic scientist who examined the evidence and testified at trial tested only one packet from among the nineteen seized from Bibby. He did not test the substance in the packet seized from defendant. He acknowledged in his testimony that it is standard practice when more than one individual is involved to test at least one sample from the items seized from each person, which he did not do in this case.

II

After all parties rested, the prosecutor, recognizing a weakness in her proofs as to defendant, namely, whether the jury would be convinced beyond a reasonable doubt that the substance in the single packet seized from defendant was indeed heroin, requested that the court charge conspiracy as an included offense. Defendant objected, but the court ruled in favor of the prosecution, and stated "I have pulled the model charge on conspiracy vicarious liability, [N.J.S.A.]2C:2-6b(4)." The judge asked the prosecutor, "Is that what you were requesting?" She answered affirmatively.

In charging the jury and reviewing the verdict sheets for each defendant with the jury, the judge made clear that the charge as to defendant pertained only to an exhibit designated as "S-1," which was the one packet found in defendant's possession. The nineteen packets, identified as "S-6," pertained to the possession charge against Bibby and did not in any way pertain to defendant. Although there was some confusion about it in the charge and in sidebar conferences, the judge told the jury that the possession with intent to distribute and distribution charges against Bibby pertained to S-1.

After the judge charged the jury with each of the first six counts pertaining to Bibby, he delivered the charge pertaining to defendant in count seven. He first explained all of the elements of the offense charged in that count, possession of a controlled dangerous substance. Of course, one of those elements was that the substance in S-1 was heroin. The judge then proceeded to explain that if the jurors found defendant not guilty of possession, they should "consider the lesser offense of conspiracy." He told the jury to decide whether defendant engaged in a conspiracy with Bibby "to commit the crime of possession of one bag of heroin." The judge explained it this way:

So, let me tell you about conspiracy. Our law provides that a person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable. A person is legally accountable for the conduct of another person when he engaged in a conspiracy with such other person, and the conduct is within the scope of the conspiracy. Thus, you must decide whether the defendant engaged in a conspiracy with Mr. Bibby to commit the crime of possession of one bag of heroin, and that would be S-1. A person is guilty of conspiracy with another person if, with the purpose of promoting or facilitating the commission of the crime -- and remember, I've given you the definition of purposely -- either agrees with such other person that they or one or more of them will engage in conduct which constitutes such crime or an attempt or a solicitation to commit such crime, or second, agrees to aid such person in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

 

So, for purposes of this case, to find that Mr. Miller engaged in a conspiracy with Mr. Bibby to possess one bag of heroin, and that would be S-1, you must be satisfied beyond a reasonable doubt of the following elements:

 

First, that Mr. Miller agreed with Mr. Bibby and, second, that when Mr. Miller agreed with Mr. Bibby, Mr. Miller's purpose, that is, his conscious object, was to promote or make it easier for him to commit the crime of conspiracy to possess one bag of heroin, and that one bag would be exhibit S-1. And by that, what I mean by that, ladies and gentlemen, is that Mr. Miller's specific purpose in the agreement was to possess S-1. And as I have told you, I have defined purposely for you, and it applies here.

 

If you find the state has established both of these elements beyond a reasonable doubt, you may find Mr. Miller guilty of conspiracy. If, on the other hand, you have a reasonable doubt regarding either one or both of these elements, you must find Mr. Miller not guilty.

At the conclusion of the jury charge, defendant's attorney renewed her objection to the conspiracy charge. The judge acknowledged that "[i]t's preserved on the record."

The jury found Bibby guilty of possession, possession with intent to distribute, and possession with intent to distribute within a school zone. It found Bibby not guilty of distribution and distribution within a school zone. As we previously stated, the jury found defendant not guilty of possession but guilty of conspiracy to possess the one packet of heroin.

III

Defendant first argues that it was improper to charge any form of conspiracy under the principles laid down in State v. Roldan, 314 N.J. Super. 173 (App. Div. 1998). We explained in Roldan that a complex drug distribution conspiracy falls outside the general rule, known as "Wharton's rule," that a "simple agreement to buy drugs is insufficient to establish a conspiracy between the seller and the buyer." Id. at 181-82. Wharton's rule holds that "where an agreement between two parties is inevitably incident to the commission of a crime, such as a sale of contraband, 'conspiracy, which assumes the voluntary accession of a person to a crime of such a character that it is aggravated by a plurality of agents, cannot be maintained.'" Id. at 182 (quoting Iannelli v. United States, 420 U.S. 770, 773, 95 S. Ct. 1284, 1288, 43 L. Ed. 2d 616, 620 (1975)).

It is clear to us that the discussion of Wharton's rule in Roldan pertained to conspiracies to distribute drugs, not merely to possess them. Indeed, there is no inherent requirement of concerted activity to commit the offense of simple possession of a controlled dangerous substance. We therefore reject defendant's arguments that Wharton's rule and the principles expressed in Roldan made it improper for the court to charge conspiracy with respect to defendant's possession charge in this case.

We agree with defendant, however, that the conspiracy charge given was misleading, confusing, and incorrect. Defendant first contends that he was prejudiced by the court's reference to conspiracy as a lesser-included offense, rather than merely an included offense. Defendant argues that this characterization had the capacity to mislead the jury into believing that conspiracy was a less serious offense with corresponding lower punishment and may have led to a compromise verdict. Although we agree with defendant that conspiracy should have been characterized merely as an included offense, any error in that regard was harmless. However, we reach a different conclusion regarding the substance of the conspiracy charge that was given.

The judge did not charge the substantive crime of conspiracy under N.J.S.A. 2C:5-2. With exceptions not relevant here, one of the elements of that crime is proof of an overt act in pursuance of the conspiracy. N.J.S.A. 2C:5-2d. The jury was not asked to find proof beyond a reasonable doubt of any such overt act, and, of course, it made no such finding. The State did not request this charge.

Instead, in accordance with the State's request, the judge charged only principles of vicarious liability under N.J.S.A. 2C:2-6. In particular, the judge charged the portion of that section which provides that "a person is legally accountable for the conduct of another person when . . . [h]e is engaged in a conspiracy with such other person." N.J.S.A. 2C:2-6b(4). Under this provision, the State sought to make defendant legally accountable for the conduct of another person, Bibby. A person can be vicariously liable for substantive crimes committed by a co-conspirator within the scope of the conspiracy, if the crimes were necessary or natural consequences of the conspiracy and reasonably and closely connected to the conspiracy. State v. Bridges, 133 N.J. 447, 468 (1993).

However, the alleged conspiracy pertained only to the single packet found on defendant's person, S-1. Conversely, the jury was instructed that the possession count against Bibby pertained only to the other nineteen packets, S-6. Therefore, defendant could not be vicariously liable for Bibby's possession of S-1 because the jury was told that S-1 did not pertain to Bibby. In the same way, defendant could not be vicariously liable for Bibby's possession of S-6, the nineteen packets found on Bibby, because the jury was told that S-6 pertained only to Bibby. In the conspiracy charge, the judge told the jury it could consider "the crime of conspiracy to possess one bag of heroin, and that one bag would be exhibit S-1."

Further, in delivering the vicarious liability charge, the judge significantly departed from the model charge. The model charge begins by telling the jury that the State alleges that a particular crime, in this case possession of a controlled dangerous substance, was committed by another, in this case Bibby, and that the defendant is legally accountable for that crime committed by Bibby because defendant and Bibby allegedly conspired to commit the crime. Model Jury Charge (Criminal), "Conspiracy - Vicarious Liability" (1998). The judge is then directed to instruct the jury on the crime in question, namely possession of a controlled dangerous substance. Ibid. The judge is then to go on by explaining the law of conspiracy. Ibid. The first paragraph of that portion of the charge was omitted by the judge in this case. With the blanks appropriately filled in, the omitted paragraph should have said this:

If you are satisfied beyond a reasonable that the State has proven all of these essential elements and that Bibby committed the crime of possession of a controlled dangerous substance, then you must go on to determine the guilt or innocence of the defendant for that same crime. However, if you are not satisfied beyond a reasonable doubt that Bibby committed the crime of possession of a controlled dangerous substance, then your inquiry ends here and you must return a verdict of Not Guilty as to the defendant. Therefore, the following instructions on conspiracy are only for your use if you find beyond a reasonable doubt that Bibby committed the crime of possession of a controlled dangerous substance.

 

[Ibid.]

As we have stated, the court expressly instructed the jury, with the consent of all parties, that only S-1 was a subject of this conspiracy charge. Obviously, it was impossible for the jury to find Bibby guilty of possession of S-1 because the jury was expressly instructed that his possession count pertained only to S-6.

Had the model jury charge been followed further, the judge would have told the jury that to find that defendant engaged in a conspiracy with Bibby it had to be satisfied beyond a reasonable doubt of the following elements: (1) that defendant agreed with Bibby that they or one or more of them would engage in conduct constituting the crime of possession of the controlled dangerous substance in S-1 or an attempt or solicitation to commit that crime; and (2) that when defendant so agreed with Bibby, defendant's purpose, i.e., his conscious object, was "to promote or to make it easier for Bibby to commit the crime of possession of S-1." Ibid. (emphasis added).

However, the judge deviated from the model charge. As to the first element, the judge merely said that the jury must be convinced beyond a reasonable doubt that defendant "agreed with Mr. Bibby," without explaining what the agreement had to be. As to the second element, the judge reversed the roles of the principal and agent under the vicarious liability theory by telling them they had to find that defendant's purpose "was to promote or make it easier for him to commit the crime of conspiracy to possess one bag of heroin, and that one bag would be exhibit S-1." (emphasis added). The judge clarified that what he meant by that last sentence was "that Mr. Miller's specific purpose in the agreement was to possess S-1." Thus, the judge told the jury that they only needed to be convinced that defendant had the purpose of making it easier for himself to possess S-1. This portion of the charge distorted the essential basis of vicarious liability in the context of conduct by a co-conspirator.

Finally, the model charge contains the following concluding paragraph, which, with the blanks appropriately completed, reads as follows:

In this case, after consideration of all of the evidence, if you find beyond a reasonable doubt that Bibby committed the crime of possession of S-1 and also that the defendant conspired with Bibby to commit that crime, then you must find the defendant guilty of the crime of possession of S-1. On the other hand, if you have a reasonable doubt that Bibby committed the crime of possession of S-1, that the defendant conspired with Bibby to commit that crime, or both, then you must find the defendant not guilty.

 

[Ibid. (emphasis added).]

 

Instead, the judge told the jury that if the State proved both of the elements, as he described them, beyond a reasonable doubt, it could find defendant guilty of conspiracy, but that if it had a reasonable doubt regarding either one or both of the elements, it must find defendant not guilty. As we have stated, the two elements were not correctly explained. Further, and at least as importantly, it was not reiterated to the jury that unless they were first convinced beyond a reasonable doubt that Bibby committed the crime of possession of S-1, they could not find defendant guilty of that same possession based on vicarious liability.

During the course of the trial, defendant's objection to the conspiracy charge was non-specific. He argued that no conspiracy charge should be given, without specifying a particular objection to the vicarious liability charge that the judge ultimately gave. In his post-trial motion, defendant specifically alleged that it was error to charge vicarious liability under N.J.S.A. 2C:2-6b(4). In light of these circumstances, there is some question of whether the particular issue raised on appeal was properly preserved in the trial court. If not, we would be guided by the plain error standard. We conclude that the error requires reversal regardless of the standard that is applied.

When an appellant raises error in the jury charge, the charge must be read as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973). The charge as a whole must be accurate. State v. Thompson, 59 N.J. 396, 411 (1971). The judge must always charge the elements of the crime. State v. Vick, 117 N.J. 288, 291 (1989).

Erroneous jury instructions are "poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979). Our Supreme Court explained:

Correct charges are essential for a fair trial. A charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations. Thus, the court must explain the controlling legal principles and the questions the jury is to decide. So critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error.

 

[State v. Martin, 119 N.J. 2, 15 (1990) (internal citations omitted).]

Where an error has not been brought to the trial court's attention, the appellate court will not reverse on the ground of such error unless the appellant shows plain error, that is, error "clearly capable of producing an unjust result." R. 2:10-2. In considering a jury charge, plain error is

legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).]

This case was prosecuted against defendant on a very simple basis. He was found in actual possession of a substance which the State believed was heroin. If the State could convince the jury beyond a reasonable doubt that S-1 was heroin, that defendant possessed it, and that he did so knowingly or purposely, it would have proved its case. However, when it realized that its trial proofs were questionable as to whether S-1 was indeed heroin, the State attempted to rescue its case by shifting gears and proposing a conspiracy theory. The prosecutor expressly agreed with the judge that the vicarious liability charge was the one she requested. In the circumstances of this case, where the State separated the evidence applicable to Bibby (S-6) and that applicable to defendant (S-1), the vicarious liability charge, had it been correctly stated, would have been self-evidently impossible to satisfy. In the manner the charge was given, it misstated the law of vicarious liability in the context of this case. Accordingly, defendant's conviction must be reversed.

IV

This brings us to our ultimate disposition. We question whether there is anything left that the State can prosecute on a retrial against defendant. Of course, double jeopardy principles bar a retrial of the possession charge of which defendant was acquitted. For the reasons we have stated, the vicarious liability theory under N.J.S.A. 2C:2-6 was simply not applicable in the factual context in this case. Therefore, retrial on that theory would not be appropriate even if a correct jury charge were given. That leaves conspiracy under N.J.S.A. 2C:5-2. The State presented no evidence of an overt act by defendant in furtherance of the belatedly alleged conspiracy. This would seemingly bar the State from now proceeding in a new trial under this theory. See Roldan, supra, 314 N.J. Super. at 189-90. Further, in the absence of a charge of conspiracy under N.J.S.A. 2C:5-2, for whatever reason, it appears that the Criminal Code would bar a retrial of defendant for conspiracy under that section. State v. LeFurge, 101 N.J. 404, 417 (1986) (citing N.J.S.A. 2C:1-10(a)(1), (2); N.J.S.A. 2C:1-8(b)).

Notwithstanding our reservations on the subject, the parties have not briefed whether a retrial under any theory would be permissible in the event of reversal. Accordingly, we decline to rule on the issue. If the State seeks to retry defendant, the parties can make their arguments in the trial court, which will decide the issue in the first instance.

Reversed and remanded for further proceedings in accordance with this opinion.

1 The co-defendant is identified in the indictment as Sule Osei, a/k/a "Hiawatha Bibby." The co-defendant testified at trial that he was originally known as Sule Osei but legally changed his name to Hiawatha Bibby.