STATE OF NEW JERSEY v. KELLY FELDER
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5252-06T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KELLY FELDER,
Defendant-Appellant.
_______________________________
September 8, 2010
Submitted October 6, 2009 - Decided
Before Judges Skillman, Gilroy and
Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 05-08-1983.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Alan I. Smith,
Designated Counsel, on the brief).
Paula T. Dow, Essex County Prosecutor,
attorney for respondent (Lucille M. Rosano,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
A grand jury indicted defendant Kelly Felder and other
individuals on several drug-related charges. Defendant and
codefendants Rodney Coleman, defendant's husband, Rodney Harris,
defendant's stepson, and Donald Scott, defendant's neighbor,
were tried jointly. A jury convicted defendant of third-degree
possession of a controlled dangerous substance (CDS) (cocaine),
N.J.S.A. 2C:35-10a(1) (count nine), and acquitted her of second-
degree conspiracy to possess a controlled dangerous substance
and/or possession of CDS with intent to distribute, N.J.S.A.
2C:5-2 and N.J.S.A. 2C:35-5; third-degree manufacturing,
distributing or dispensing CDS, N.J.S.A. 2C:35-5b(2); and third-
degree distributing CDS within 1,000 feet of school property,
N.J.S.A. 2C:35-7. The trial judge dismissed the disorderly
persons offense of use or possession with intent to use drug
paraphernalia, N.J.S.A. 2C:36-2, and imposed a two-year
probationary term and the appropriate assessments, penalties,
and fees.
We incorporate herein the facts set forth in our
unpublished opinion simultaneously filed with this opinion,
State v. Coleman, A-5208-06T4, which was calendared back-to-back
with this case.
Against these facts, defendant raises the following
contentions:
POINT I - THE TRIAL COURT ABUSED ITS
DISCRETION IN DENYING THE DEFENDANT'S MOTION
FOR A JUDGMENT OF ACQUITTAL ON COUNT NINE
CHARGING POSSESSION OF COCAINE THAT WAS MADE
AT THE END OF THE CASE.
A-5252-06T4
2
(A) THE STATE FAILED TO PROVE THAT THE
DEFENDANT WAS IN CONSTRUCTIVE POSSESSION OF
THE COCAINE.
(B) THE TRIAL COURT APPLIED AN IMPROPER
LEGAL STANDARD IN DENYING THE DEFENDANT'S
MOTION.
POINT II - THE TRIAL COURT'S JURY CHARGE ON
COUNT NINE ALLEGING POSSESSION OF COCAINE
WAS INADEQUATE AND PREJUDICED THE
DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT
RAISED BELOW).
(A) THE TRIAL COURT'S FAILURE TO REINSTRUCT
THE JURY ON THE MENTAL STATES OF "KNOWINGLY"
AND "PURPOSELY" CONSTITUTES PLAIN ERROR (NOT
RAISED BELOW).
(B) THE TRIAL COURT'S FAILURE TO INSTRUCT
THE JURY SUA SPONTE ON "MERE PRESENCE" WAS
PLAIN ERROR (NOT RAISED BELOW).
POINT III - THE DEFENDANT'S RIGHT TO A FAIR
TRIAL WAS PREJUDICED BY ARGUMENTS MADE BY
THE PROSECUTOR IN SUMMATION (NOT RAISED
BELOW).
We affirm.
I.
Defendant contends in Point I that the judge abused his
discretion in denying her motion for judgment of acquittal on
count nine made at the close of the State's case. Applying the
standards in State v. Reyes,
50 N.J. 454 (1967), the judge
denied the motion finding that giving the State all reasonable
inferences, the evidence was sufficient to establish that a
reasonable jury could find, beyond a reasonable doubt, that
A-5252-06T4
3
defendant constructively possessed the cocaine found in the
Stuyvesant Avenue apartment.
Defendant argues that the State's evidence failed to
establish beyond a reasonable doubt that she knew about the
cocaine found in her apartment on the day it was searched
because Coleman had hidden it there without her knowledge. She
also argues that the judge failed to consider her lack of
cooperation and the contentiousness of her relationship with
Coleman, as indicated in her two wiretap conversations with
Coleman, which showed she had no control over the cocaine in her
residence.
We use the same standard as the trial judge in reviewing a
motion for judgment of acquittal. State v. Kittrell,
145 N.J.
112, 130 (1996); State v. Johnson,
287 N.J. Super. 247, 268
(App. Div.) (citing State v. Moffa,
42 N.J. 258, 263 (1964)),
certif. denied,
144 N.J. 587 (1996); State v. Tarver,
272 N.J.
Super. 414, 425 (App. Div. 1994). We must determine
[w]hether, 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.
[Reyes, supra,
50 N.J. at 459 (citing State
v. Fiorello,
36 N.J. 80, 90-91 (1961), cert.
A-5252-06T4
4
denied,
368 U.S. 967,
82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)).]
See also State v. Spivey,
179 N.J. 229, 236 (2004); State v.
Josephs,
174 N.J. 44, 81 (2002); R. 3:18-1. The court "is not
concerned with the worth, nature or extent (beyond a scintilla)
of the evidence, but only with its existence, viewed most
favorably to the State." State v. Papasavvas,
170 N.J. 462, 521
(2002) (internal quotations omitted). Rather, the inquiry
focuses on whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.
State v. Martinez,
97 N.J. 567, 571-72 (1984). Further, a jury
may draw inferences from the evidence regarding a defendant's
guilt whenever it is more probable than not that such inferences
are true, without the need to find the existence of each
inference beyond a reasonable doubt. Kittrell, supra,
145 N.J.
at 131.
One is guilty of the crime of possession if he or she
"knowingly or purposely . . . possess[es], actually or
constructively, a controlled dangerous substance[.]" N.J.S.A.
2C:35-10a. Criminal possession involves an "intentional control
and dominion, the ability to affect physically and care for the
item during a span of time[,]" State v. Davis,
68 N.J. 69, 82
(1975), "accompanied by knowledge of its character[,]" State v.
Brown,
80 N.J. 587, 597 (1979).
A-5252-06T4
5
Possession can be constructive as opposed to actual. Ibid.
"A person constructively possesses an object when, although he
lacks physical or manual control, the circumstances permit a
reasonable inference that he had knowledge of its presence, and
intends and has the capacity to exercise physical control or
dominion over it during a span of time." Spivey, supra, 179
at 236-37. All that is required "is an intention to
N.J.
exercise control over [the item] manifested in circumstances
where it is reasonable to infer that the capacity to do so
exists." Brown, supra,
80 N.J. at 597.
Possession cannot be inferred simply because a defendant is
present at a location where narcotics are found, "unless there
are other circumstances . . . tending to permit such an
Id. at 593 (citation omitted). The
inference to be drawn."
court must weigh the collateral circumstances beyond defendant's
mere presence to determine whether constructive possession is
State v. Palacio,
111 N.J. 543, 556 (1988). A
implicated.
determination of constructive possession is fact sensitive and
may be proved by circumstantial and direct evidence. State v.
Humphreys,
54 N.J. 406, 413-14 (1969). "A jury . . . may draw
an inference of possession from all the surrounding
circumstances when it is more likely than not that the proven
A-5252-06T4
6
facts point to the inferred fact of possession." State v.
McCoy,
116 N.J. 293, 300 (1989).
When a defendant resides at the location where narcotics
were found, and the occupancy by others is not sufficient "to
dilute defendant's control over his own residence[,]" one may
"draw the inference that the occupant of such premises would
have knowledge and control of its contents." Brown, supra,
80 N.J. at 594. The fact that the narcotics were hidden does not
weaken this inference because "[i]t is likely that a drug, which
would create grave incriminatory risks to anyone found in its
presence, would be hidden." Id. at 595. This inference "is
further strengthened by the presence of other [narcotics]-
related materials in the apartment." Ibid. Additionally, "[a]n
inference of knowledge and control of personalty found in rooms
commonly lived in or used by an occupant is well-grounded in our
every day experience and is available to a jury as [a]
at 596. Finally, evidence of drug
factfinder[.]" Id.
trafficking occurring at the location is "another factor [that]
must be added to these incriminating circumstances[.]" Ibid.
Viewing the evidence in this case in its entirety, and
giving the State the benefit of all reasonable inferences
therefrom, we are satisfied that the judge properly denied
defendant's motion because a reasonable fact-finder could have
A-5252-06T4
7
concluded that defendant constructively possessed the cocaine
found in her apartment. Defendant was present at 7:00 a.m. in
the Stuyvesant Avenue apartment when the police arrived to
execute the search warrant; only she and Coleman resided there
and gave the address as their residence upon their arrest; the
police found cocaine in plain view in the kitchen, and in the
living room and the living room closet, areas commonly used by
and readily accessible to the occupants; other narcotics-related
materials were found in the residence; wiretap conversations
between defendant and Coleman confirm that she was assisting him
with the distribution of cocaine from their residence; and
surveillance evidence confirmed drug trafficking at the
residence. All of these facts create an inference that
defendant actually or constructively possessed the cocaine
sufficient to overcome a motion for judgment of acquittal.
II.
Defendant contends for the first time on appeal in Point II
that the jury charge on count nine was inadequate because the
judge failed to reinstruct the jury on the mental states of
"knowingly" and "purposely," and failed to sua sponte charge
mere presence. This contention lacks merit.
The judge explained the mental states of "knowingly" and
"purposely" during his instructions on count two, which charged
A-5252-06T4
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Coleman with second-degree manufacturing, distributing or
dispensing CDS, N.J.S.A. 2C:35-5b(2):
A person acts knowingly with respect to
the nature of his conduct or the attendant
circumstances, if he is aware that his
conduct is of that nature or that such
circumstances exist, or he is aware of a
high probability of their existence. A
person acts knowingly with respect to a
result of his conduct if he is aware that it
is practically certain that his conduct will
cause such a result. Knowing, with
knowledge or equivalent terms have the same
A person acts purposely with
meaning.
respect to the nature of his conduct or a
result thereof if it is his conscious object
to engage in conduct of that nature or to
cause such a result. A person acts
purposely with respect to attendant
circumstances if he is aware of the
existence of such circumstances, or believes
or hopes that they exist.
Remember that when we speak of
knowingly and purposely, we speak of
conditions of the mind that cannot be seen.
It is not necessary for the State to prove
the existence of such mental states by
direct evidence, such as a statement by the
defendant that he or she had particular
knowledge or a particular purpose.
Knowledge and purpose, as separate
propositions of proof, do not commonly
exist. They must ordinarily be discovered,
as other mental states are, from
circumstantial evidence. That is by
reference to the defendant's conduct, words
or acts and all the surrounding
circumstances.
The judge then charged the jury on count three, which charged
Coleman with the same offense as count two, and repeated the
A-5252-06T4
9
instructions for "knowingly" and "purposely." Shortly after
this charge, the judge charged the jury on count nine as
follows:
Count 9 alleges that [Coleman] and
[defendant], on December 30th, in 2004, in
the Township of Irvington did have in their
possession a controlled dangerous substance,
cocaine. The pertinent part of our law on
which this indictment is based reads as
follows: It is unlawful for any person
knowingly or purposely to obtain or to
possess, actually or constructively, a
controlled dangerous substance. The various
kinds of controlled dangerous substances are
defined in another part of our statute. As
I have told you, CDS, cocaine, is a
controlled dangerous substance prohibited by
law.
The statute, read together with the
indictment, identifies the elements which
the State must prove beyond a reasonable
doubt to establish the guilt of the two
defendants on this count of the indictment.
They are as follows: S-38A through D in
evidence are cocaine, or is cocaine. 2, S-
38A through D in evidence is a controlled
dangerous substance. 3, that the defendant
possessed or obtained S-38A through D in
evidence. And 4, that the defendant acted
knowingly or purposely in possessing or
obtaining S-38 A through D in evidence.
In regard to the second element, obtain
means to acquire, to get, to procure.
Possess means a conscious knowing
possession. The law recognizes actual
possession, constructive possession and
joint possession. Actual possession is
defined as follows: A person is in actual
possession of a particular article or thing
when he knows what it is. That is, he has
A-5252-06T4
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knowledge of its character and knowingly has
it on his person at a given time.
The law recognizes that possession may
be constructive instead of actual.
Constructive possession means possession in
which the person does not physically have
the property, but though not physically on
one's person, he is aware of the presence of
the property and is able to exercise
intentional control or dominion over it.
A person, who although not in actual
possession has knowledge of its character
and knowingly has both the power and
intention at a given time to exercise
control over a thing, either directly or
through another person or persons, is then
in constructive possession of it. In regard
to the third element, the State must prove,
as I have stated, that the defendant acted
knowingly or purposefully in obtaining or
possessing S-38A through D. I have already
defined for you knowingly and purposefully
and I will not repeat them here.
To repeat, the three elements of this
offense that the State must prove beyond a
reasonable doubt are that, one, S-38A
through D in evidence is cocaine. 2, that
the defendants . . . Coleman and Felder . .
. possessed or obtained S-38A through D in
evidence. And 3, that the defendant --
defendants acted knowingly or purposefully
in obtaining or possessing S-38 in evidence.
If you find that the State has proven all
these elements beyond a reasonable doubt,
then you must return a verdict of guilty.
On the other hand, if you find that the
State has failed to prove all three elements
beyond a reasonable doubt, then you must
return a verdict of not guilty. (Emphasis
added.)
The judge also instructed the jury that
A-5252-06T4
11
Each offense and each defendant in this
indictment should be considered by you
separately. The fact that you may find a
particular defendant guilty or not guilty of
a particular crime should not control your
verdict as to any other offenses charged
against that defendant, and it should not
control your verdict as to the charges
against any other defendant.
Proper jury instructions are essential to a fair trial.
State v. Afanador,
151 N.J. 41, 54 (1997); State v. Green,
86 N.J. 281, 287 (1981). The court must give the jury "a
comprehensive explanation of the questions that the jury must
determine, including the law of the case applicable to the facts
that the jury may find." Green, supra,
86 N.J. at 287-88. The
jury charge should include instructions on all "essential and
fundamental issues and those dealing with substantially material
points." Id. at 290. In assessing the propriety of the jury
charge, we examine the entire charge to see whether it was
ambiguous or misleading or whether it misinformed the jury of
State v. R.B.,
183 N.J. 308, 324 (2005); State v.
the law.
Hipplewith,
33 N.J. 300, 317 (1960). A defendant is not
entitled to have a jury charged in his or her own words. State
v. Pigueiras,
344 N.J. Super. 297, 317 (App. Div. 2001), certif.
denied,
171 N.J. 337 (2002); State v. Pleasant,
313 N.J. Super.
325, 333 (App. Div. 1998), aff'd,
158 N.J. 149 (1999).
A-5252-06T4
12
Reviewing the charges in their entirety, we are satisfied
that there was no error, let alone plain error, in the charge on
count nine. The judge twice defined the elements of "knowingly"
and "purposely," and referred to those definitions when charging
the jury on count nine.
We are also satisfied that a mere presence charge was not
appropriate. The evidence clearly indicates that defendant was
not merely present in the Stuyvesant Avenue apartment when the
police found cocaine there. Rather, she was an active
participant in the narcotics trafficking, knew the cocaine was
located in her apartment, and constructively possessed it.
III.
Defendant contends for the first time on appeal in Point
III that the prosecutor's following summation remark prejudiced
her right to a fair trial:
Two of the pieces, two of the bags of
cocaine, including one containing 42
smaller, or a number of smaller bags, [were]
found in a coat closet along with another
There was an amount found
bag of cocaine.
in a kitchen cabinet, I submit to you the
amount found in the kitchen cabinet -- I
don't know, ladies and gentlemen, I submit
everybody lives somewhere. Has a house, has
an apartment, condo, townhouse, mobile home.
All have kitchen cabinets in there. Most
people know what are in the kitchen cabinets
of their house.
This was [defendant's] residence, you
got cocaine in the kitchen cabinet[.]
A-5252-06T4
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Defendant argues that the prosecutor presented improper
stereotypic notions of gender behavior by suggesting that she
should know the contents of her kitchen, improperly introduced
his personal opinion as a standard for determining constructive
possession, and improperly intertwined the facts with an
improper emotional solicitation. We disagree.
"Prosecutors are afforded considerable leeway in their
closing arguments[.]" State v. Frost,
158 N.J. 76, 82 (1999).
However, there remain limitations on what a prosecutor may say
during summation. A prosecutor must "confine [his or her]
comments to evidence revealed during the trial and reasonable
State v. Smith, 167
inferences to be drawn from that evidence."
N.J. 158, 178 (2001). "[I]f a prosecutor's arguments are based
on the facts of the case and reasonable inferences therefrom,
what is said in discussing them, 'by way of comment,
denunciation or appeal, will afford no ground for reversal.'"
(quoting State v. Johnson,
31 N.J. 489, 510 (1960)).
Ibid.
Further, prosecutors are permitted to "respond to an issue or
argument raised by defense counsel." State v. Johnson,
287 N.J.
Super. 247, 266 (App. Div. 1996), certif. denied,
144 N.J. 587
(1996).
It is only when a prosecutor's conduct "was so egregious
that it deprived the defendant of a fair trial" that reversal is
A-5252-06T4
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required. Frost, supra,
158 N.J. at 83. In considering whether
prosecutorial misconduct in summation is so egregious as to
require reversal, we must look at the "'tenor of the trial and
the degree of responsiveness of both counsel and the court to
Ibid. (quoting State v.
improprieties when they occurred.'"
Marshall,
123 N.J. 1, 153 (1991)). In this regard, "we consider
whether defense counsel made a timely and proper objection,
whether the remark was withdrawn promptly, and whether the court
ordered the remarks stricken from the record and instructed the
State v. Ramseur,
106 N.J. 123, 322-23
jury to disregard them."
(1987). Usually, the remarks will not be considered prejudicial
Id. at 323.
when, such as here, counsel fails to object.
Our review of the prosecutor's remark reveals no
impropriety whatsoever, let alone the egregiousness required for
reversal. He did not interject his personal opinion, evoke an
improper emotional solicitation, or mention gender. Rather, he
simply commented on the evidence surrounding the execution of
the search warrant at the Stuyvesant Avenue apartment from which
he drew the reasonable and logical inference that defendant,
like any other homeowner, male or female, had to have known that
there was cocaine in her kitchen.
Affirmed.
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