STATE OF NEW JERSEY v. GERARD ASSELTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant/

Cross-Respondent,

v.

GERARD ASSELTA,

Defendant-Respondent/

Cross-Appellant.

September 5, 2014

Argued January 28, 2014 Decided

 
Before Judges Reisner, Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 10-03-0022.

G. Harrison Walters, Assistant Prosecutor, argued the cause for appellant/cross-respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Walters, of counsel and on the briefs).

Mario A. Iavicoli argued the cause for respondent/cross-appellant.

PER CURIAM

The jury, which convicted defendant Gerard Asselta of third-degree possession of methamphetamine, N.J.S.A. 2C:35-10(a)(1), an uncharged lesser-included offense, was unable to reach a verdict on the charges contained in Indictment No. 10-03-0022, the greater offense of first-degree possession of a controlled dangerous substance with intent to distribute, methamphetamine, in a quantity of five ounces or more, N.J.S.A. 2C:35-5(b)(1) (count one), and second-degree possession of a firearm while committing certain controlled dangerous substances crimes, N.J.S.A. 2C:39-4.1(a) (count four).1

As a result, the first trial judge scheduled the matter to be retried as to the greater offenses, counts one and four. A second trial judge was assigned to the matter. On September 5, 2013, that judge sua sponte declared a mistrial on the lesser-included offense, pursuant to the authority of State v. Rechtschaffer, 70 N.J. 395 (1976), and N.J.S.A. 2C:1-9(d)(2), and scheduled the matter for a new trial. The State and defendant appeal on an interlocutory basis. For the reasons that follow, we now reverse and reinstate the original jury verdict, and bar the State from retrying defendant.

We summarize the facts developed during the trial. Defendant was the prospective purchaser of a pound of methamphetamine offered for sale for $28,000 by an undercover agent with the United States Drug Enforcement Administration (DEA). The transaction was arranged by a long-time friend of defendant, who had serious federal charges pending. The meeting at which the transfer was supposed to take place occurred in the parking lot of a retail store in Vineland, observed by law enforcement personnel. As defendant placed a package of drugs that he had taken from the DEA agent's vehicle into a bag, he was arrested. His home, located approximately five miles away, was subsequently searched pursuant to warrant. A .38 caliber revolver and 9 millimeter Reuger handgun were found between the mattress and box spring in the master bedroom, along with boxes of 9 millimeter and .38 caliber rounds located in a closet outside the bedroom.

During the trial, defendant testified extensively on direct, cross, and re-direct examinations about his addiction to methamphetamines. At the time of trial, he was fifty-six years old. Defendant claimed that his methamphetamine addiction commenced when he was twenty-eight. He readily acknowledged his intent to purchase the drugs, claiming that he did so for his own use, and unequivocally denied that he made the purchase for resale.

Also found in defendant's home were items such as a scale and glassine envelopes. The State's expert testified that the quantity that defendant thought that he was purchasing would net him a profit of $12,000 on resale and that it was greater than he could consume in a lifetime.

The second judge's sua sponte declaration of a mistrial was the result of his invitation, before listing the matter for retrial, to defendant to file a motion on the subject. As the judge explained in his written supplemental statement of reasons, Rule 1:7-4(a), provided after leave to appeal was granted and the trial stayed, defense counsel filed a motion to dismiss the charges on which the jury was unable to agree. Counsel's basis for the motion was that N.J.S.A. 2C:1-9(a) barred further prosecution because of the jury's conviction of defendant as to the lesser-included drug possession. The judge noted in a footnote that the verdict sheet listed the lesser-included possession offense first, contrary to the model jury verdict form promulgated post-trial, in June 2013.2 Neither side objected to this ordering of offenses.

The judge also noted that an integral part of defendant's trial strategy was his admission that he was a drug user and his claim that he intended to acquire the drugs solely for his own use. It was, as the judge put it, his "'best defense'" because of "the credibility he garnered from admitting . . . to the lesser included offenses[,] thereby bolstering the credibility of his denial of the intent to distribute charges."

The court closely analyzed Rechtschaffer and its factual and procedural parallels to this case, concluding that a mistrial had to be declared as to the drug possession because it was an indispensable element of the possession with intent charge on which the jury had been unable to agree. Additionally, defendant was "not to be subjected to separate trials for offenses arising out of the same criminal incident," a policy that would be frustrated by the mistrial of one count that was "inextricably intertwined with the second." Rechtschaffer, supra, 70 N.J. at 412-13. A mistrial was clearly required, the judge reasoned, given the jury's inability to reach agreement on the indicted offenses. Had the proper verdict sheet been employed, the jury would never have reached the possession offense at all. The analytical problem would never have arisen in the first place.

The State appeals from the court's determination, contending not only that the declaration of mistrial as to the possession offense was error but that the net effect of doing so implicated double jeopardy principles. Defendant, on the other hand, argues that the conviction of the lesser-included offense, a necessary component of the greater offenses, bars retrial of any of the charges, including possession, given well-established principles of double jeopardy.

"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997) (citation omitted). "A mistrial is an extraordinary remedy that should be used only to prevent a manifest injustice." State v. Goodman, 415 N.J. Super. 210, 234 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

Discretionary decisions, like a declaration of mistrial, will be set aside when they involve a misapplication of the law, in order to avoid a manifest denial of justice. See Haven Savs. Bank v. Zanolini, 416 N.J. Super. 151, 161 (App. Div. 2010). Thus the question we address first is whether the judge's exercise of discretion was based on a misunderstanding or misapplication of the law.

Sequential jury instructions generally allow "a framework for orderly deliberation." See State v. Coyle, 119 N.J. 194, 223 (1990). The principle underlying sequential charges, where the greater offense is presented to the jury first, is that a "jury should not be required to enter verdicts on lesser-included offenses when they have found guilt of greater offenses." State v. Zola, 112 N.J. 384, 405 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). Related to this issue is the principle that a jury should not be permitted to consider a lesser-included offense until it has unanimously acquitted a defendant of the greater crime. See ibid. A jury should not be left in the position of engaging in pointless deliberations; if it convicts of a greater offense, then there is no need for consideration of the lesser. See generally State v. Cooper, 151 N.J. 326, 366 (1997) ("Ordinarily, juries may not consider lesser-included offenses until they have acquitted of the greater offense."), cert. denied, 528 U.S. 1084, 1 205 S. Ct. 809, 145 L. Ed. 2d 681 (2000).

Recently, in State v. Johnson, __ N.J. Super. __ (App. Div. 2014) (slip op. at 1), we addressed many of the issues now raised on appeal. There, the defendant faced ten charges at trial, including murder, felony murder, and two counts of armed robbery. See id. at 1, 3-4. The trial judge charged the jury with the lesser-included offenses of aggravated and reckless manslaughter (as to murder) and second-degree robbery (as to armed robbery). See id. at 5, 15-16. At numerous junctures, the trial court failed to address the jury's deadlock on the greater charges. See id. at 9-15.

Ultimately, the trial court accepted a partial verdict in which the jury convicted the defendant of aggravated manslaughter and second-degree robbery without first unanimously acquitting the defendant of murder and armed robbery, respectively. See id. at 14-16. Additionally, the jury was unable to unanimously agree on the felony murder charge. Id. at 16.

Thereafter, the State sought to retry the defendant for felony murder, and the defendant moved to bar retrial on the bases of (1) double jeopardy and (2) improper termination of prosecution, N.J.S.A. 2C:1-9(d), 1-10(a), 1-10(c). Johnson, supra, slip op. at 2 n.1, 18. The trial judge (a different judge than the one who accepted the partial verdict) granted the defendant's motion, accepting both of his asserted grounds, and the State appealed. See id. at 18-21.

We determined that the improper termination statute barred the defendant's retrial for felony murder under the circumstances and declined to consider the double jeopardy issue. Id. at 2, 2-3 n.2. We relied on the language contained N.J.S.A. 2C:1-9(d), which generally bars prosecution of a defendant if a former prosecution for the same violation terminated "for reasons not amounting to an acquittal," i.e., if the former prosecution was "improperly terminated." See Johnson, supra, slip op. at 21-22.

Because the defendant's felony murder prosecution had been terminated by the trial court's acceptance of partial verdicts on lesser-included offenses without acquittals of the greater offenses, it concluded "for reasons not amounting to an acquittal" and was, therefore, improperly terminated within the meaning of N.J.S.A. 2C:1-9(d). See Johnson, supra, slip op. at 22-24. Additionally, the exception contained in N.J.S.A. 2C:1-9(d)(2), wherein a prosecution is not improperly terminated if the trial court finds that the jury is deadlocked, did not apply because the judge improperly managed the jury impasse on the greater offenses. See Johnson, supra, slip op. at 22, 26-27. The defendant's "right to a unanimous jury verdict" on felony murder was "potential[ly] . . . denied." See id. at 30.

Here, as in Johnson, defendant's prosecution was improperly terminated. Therefore, although his conviction on the lesser-included offense of possession should stand, retrial is statutorily barred for the greater offense of possession with intent to distribute. We reach this conclusion for two reasons.

First, the verdict sheet listed the lesser-included possession count before the greater possession with intent to distribute count. That ordering was contrary to case law, which makes clear that a jury should not be permitted to consider a lesser-included offense until unanimously acquitting a defendant of the greater offense. See Zola, supra, 112 N.J. at 405. Defendant's "right to a unanimous jury verdict" on possession with intent to distribute was "potential[ly] . . . denied" by that erroneous sequence. See Johnson, supra, slip op. at 30. His prosecution was improperly terminated, or, put differently, it concluded "for reasons not amounting to an acquittal." See N.J.S.A. 2C:1-9(d). This, irrespective of the second trial judge's post-verdict declaration of a mistrial.

Second, the exception contained in N.J.S.A. 2C:1-9(d)(2) does not apply here because of the manner in which the first trial judge managed the jury's deliberations. During the afternoon of the second day, the jury informed the judge that it was deadlocked on count one, possession with intent to distribute, but had reached a verdict on the lesser-included offense of possession with intent to distribute. Defense counsel suggested that the judge declare a mistrial, but the judge decided to give a Czachor3 charge and allow the jury an additional forty-five minutes to deliberate.

During that deliberation period, the trial judge expressed his belief that "if [the jury is still] hopelessly deadlocked, I have to take whatever verdict [it] ha[s]." The judge then recalled the jury, which reported that it had only unanimously reached a decision on count one and that further deliberations as to the remaining counts would be fruitless. It was at that point that the judge took the jury's partial verdict, which resulted in defendant's conviction of possession.

Once the judge learned that the jury had deadlocked on the greater offense, he should have declared a mistrial. This, because by reaching a verdict on a lesser-included offense without unanimously resolving the greater offense, the jury had deliberated out-of-sequence, contrary to case law. See Zola, supra, 112 N.J. at 405. At least in part, defendant's prosecution terminated because the judge erroneously believed that he was permitted to accept the improperly-reached verdict under the attendant circumstance rather than declaring a mistrial as to all counts. We cannot say that the central reason for termination of defendant's prosecution was the jury's deadlock and, therefore, N.J.S.A. 2C:1-9(d)(2) is not controlling.

We reiterate that defendant's "right to a unanimous jury verdict" on possession with intent to distribute was "potential[ly] . . . denied." See Johnson, supra, slip op. at 30. His prosecution for possession with intent to distribute was improperly terminated within the meaning of N.J.S.A. 2C:1-9(d), as interpreted in Johnson.

As a result of our conclusion, defendant cannot be retried, pursuant to N.J.S.A. 2C:39-4.1(a), for the possession of the firearm later located at his home some distance away. "Simple possession of a controlled dangerous substance . . . is not one of the drug offenses enumerated in N.J.S.A. 2C:39-4.1." State v. Holden, 364 N.J. Super. 504, 513 (App. Div. 2003). Since possession is not an included offense, that charge cannot be retried.

Therefore, we grant the State's appeal of the judge's declaration of mistrial on the lesser-included charge and grant defendant's appeal of the order mandating a retrial on both charges. The jury's declaration of guilt on the lesser-included charge stands, and no retrial will take place. The matter is remanded for sentence.

Reversed and remanded for sentence.

1 Counts two and three were dismissed prior to trial.

2 Online, however, it appears that these materials also include a sample verdict sheet in which the lesser-included offense is listed first.

31 State v. Czachor, 82 N.J. 392 (1980).