State v. Kevin Pleasant

SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. Kevin Pleasant (A-48-98)

 
(NOTE: The Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Petrella's opinion below.)

Argued March 30, 1999 -- Decided May 17, 1999

PER CURIAM

The issue raised in this appeal is whether the trial court's charge to the jury on employing a juvenile in a drug distribution scheme was adequate.

Kevin Pleasant was tried under a six-count indictment and unanimously found guilty of conspiracy to possess a controlled dangerous substance (CDS) (marijuana) (N.J.S.A. 2C:35-2); possession of a handgun without a permit (N.J.S.A. 2c:39-5b); and employing a juvenile in a drug distribution scheme (N.J.S.A. 2C:35-6). The jury was unable to reach a verdict on counts charging Pleasant with possession of CDS (N.J.S.A. 2C:35-10(a)3); possession of CDS with intent to distribute (N.J.S.A. 2C:35-5(b)11); and distribution of CDS to Rajhon Foushee (N.J.S.A. 2C:35-5(b)12).

N.J.S.A. 2C:35-6, employing a juvenile in a drug distribution scheme, provides in pertinent part, that any person over age 18 who knowingly uses, solicits, directs, hires or employs a person 17 years of age or under to violate subsection a of N.J.S.A. 2C:35-5(a) is guilty of a crime of the second degree and shall be sentenced to a prison term of not less than five years during which the defendant will be ineligible for parole. N.J.S.A. 2C:35-5(a) deals with possession of CDS with intent to distribute and encompasses two alternative types of possession, actual and constructive. It differs from N.J.S.A. 2C:35-10, the simple possession statute, which applies only to possession for personal use.

The State's and Pleasant's version of the facts leading to Pleasant's arrest and conviction differ sharply. According to the testimony presented on behalf of the State at trial, Newark police officers on narcotics surveillance observed unlawful drug activity taking place at about 8:30 p.m. on November 30, 1994, at 46 Fabyan Place in Newark. Detective Cuccolo testified that he observed a passing of money at the front of the driveway from one Rajhon Foushee to seventeen-year-old Lejon Bailey. The detective then saw Bailey pass the money to Pleasant. Pleasant was observed bending down and retrieving a small object from the ground, giving it to Bailey who then gave the object to Foushee. It later was determined that the object contained marijuana. Pleasant, Bailey and Foushee were promptly arrested. Officers retrieved a gun, seventy-eight small bags of marijuana and six large bags of marijuana. The officers did not believe that these drugs were for personal use.

Pleasant contended at trial that he had driven to Fabyan Drive with his brother to purchase marijuana for personal use only. Pleasant denied any involvement in any sale of marijuana and denied possession of the bags of drugs found by the police next to his person. Four defense witnesses testified at trial to a version similar to Pleasant's. Foushee testified that he went to Fabyan Place, a well-known drug source, to buy drugs for personal use and that he did not know either Pleasant or Bailey.

At the conclusion of trial, the judge declined to give the following jury instruction requested by Pleasant's attorney: "[i]f you find that Kevin Pleasant knowingly used, solicited, directed, hired or employed R.B. to simply or just possess marijuana with no intent to manufacture, distribute or dispense marijuana, he cannot be found guilty of Count Five."
 
Pleasant was sentenced to a mandatory five-year prison term, five years without eligibility for parole, for his conviction of employing a juvenile in a drug distribution scheme. Pleasant received concurrent three-year prison terms for the convictions of conspiracy and possession of a weapon.

Pleasant appealed his convictions to the Appellate Division arguing that 1) the trial court failed to adequately instruct the jury regarding employing a juvenile in a drug distribution scheme, and 2) the jury's verdict on the remaining counts precluded a conviction on the count charging him with employing a juvenile in a drug distribution scheme as a matter of law, requiring a dismissal of the conviction and the sentence imposed.

A majority of the Appellate Division affirmed, finding that any error in the jury charge was harmless. The panel noted that the trial judge essentially charged the jury in the language of Model Jury Charges (Criminal) 2C:35-2; 2C:35-5; and 2C:35-6. In charging on conspiracy, the judge instructed the jury that to find conspiracy, it had to find that Pleasant conspired to both possess marijuana and possess with intent to distribute. The judge emphasized that more than simple possession was required. Moreover, there was nothing to indicate that the jury was confused or did not understand the judge's instructions. According to the majority, the charge as delivered included accurate statements of the law, particularly when read as a whole and viewed in its entirety. The charge was sufficiently clear and unambiguous and did not have the capacity to mislead the jury.

As to Pleasant's inconsistent verdict argument, the majority concluded that it is a non-issue because the jury never reached a verdict on the other counts of the indictment. The panel found it conceivable that the jury reached its verdict on the employment of a juvenile charge and then for some reason- "mistake, compromise or lenity"- was unable to agree and reach any verdict on the other charges. The majority concluded that the guilty verdict is supported by sufficient credible evidence in the record, independent of the jury's determination of insufficiency of evidence on other counts.

One judge dissented, concluding the jury instruction on the employing juvenile in a drug distribution scheme was inadequate, requiring a reversal of Pleasant's conviction on that charge. According to the dissent, guilt or innocence under the employment of a juvenile count hinged on whether the jury believed that Bailey possessed the marijuana with intent to distribute or just for personal use; therefore, a clear and unequivocal charge to the jury was imperative. The trial court's charge was neither clear or unequivocal. Rather, the instruction delivered contained ambiguous language that may well have misled or confused the jury. It provided no concrete guidance for the jury to apply the legal propositions recited by the court. The instruction requested by the defense, but rejected by the court for no reasonable basis, was essential to eliminating the flaws in the court's charge.

HELD: Judgment of the Appellate Division is affirmed substantially for the reasons expressed in the majority opinion below. The jury instruction concerning the offense of employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6, did not constitute reversible error.

1. Although the Court agrees with the majority's findings that the charge was adequate, it also agrees with the dissenting member's observation that N.J.S.A. 2C:35-5(a), one of the statutes on which a violation of N.J.S.A. 2C:35-6 may be based, is potentially ambiguous. Accordingly, the trial court's granting of the defense request for a clarifying instruction would have been preferable. Moreover, because of the sharp contrast between the State's and Pleasant's version of the facts, an instruction that integrated the contrasting factual versions of the critical events into the court's explanation of the law would have aided the jury in its deliberations. (pp. 1-2)

2. The trial court made it clear that purchasing CDS, without an intent to distribute, would not be sufficient to support a conviction on the employing a juvenile charge. Thus, when viewed in its entirety, the trial court's charge adequately and accurately informed the jury of the relevant law. (p. 2)
 
Judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in this PER CURIAM opinion.

 
SUPREME COURT OF NEW JERSEY
A- 48 September Term 1998

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN PLEASANT,

Defendant-Appellant.

Argued March 30, 1999 -- Decided May 17, 1999

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 313 N.J. Super. 325 (1998).

Mordecai D. Garelick, Assistant Deputy Public Defender, argued the cause for appellant (Ivelisse Torres, Public Defender, attorney).

Deborah C. Bartolomey, Deputy Attorney General, argued the cause for respondent (Peter Verniero, Attorney General of New Jersey, attorney).

PER CURIAM
 
We affirm the judgment of the Appellate Division substantially for the reasons expressed in the majority opinion below. 313 N.J. Super. 325. We conclude that the jury instruction concerning the offense of employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6, did not constitute reversible error.
Although we are in accord with the majority's finding that the jury charge was adequate, we agree with the dissenting member's observation that N.J.S.A. 2C:35-5(a), one of the statutes on which a violation of N.J.S.A. 2C:35-6 may be predicated, is potentially ambiguous. 313 N.J. Super. at 343 (Lesemann, J., dissenting). Accordingly, for the trial court to have granted defendant's request for a clarifying instruction would have been preferable. Moreover, because of the sharp conflict between the State's and defendant's version of the facts, an instruction that integrated the contrasting factual versions of the critical events into the court's explanation of the law would have assisted the jury in its deliberations. See State v. Concepcion, 111 N.J. 373, 379 (1988) (noting that in appropriate circumstances trial court should mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case ).
Nonetheless, we are constrained to examine the charge in its entirety. State v. LaBrutto, 114 N.J. 187, 204 (1989). Because the trial court made it clear that purchasing a controlled dangerous substance, without an intent to distribute, would not be sufficient to support defendant's conviction on the charge of employing a juvenile in a drug distribution scheme, we are satisfied that the jury instruction, when viewed in its entirety, accurately and adequately informed the jury of the relevant law. We affirm the judgment of the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,GARIBALDI, STEIN, and COLEMAN join in this PER CURIAM opinion.

SUPREME COURT OF NEW JERSEY
 

NO. A-48

SEPTEMBER TERM 1998
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN PLEASANT,

Defendant-Appellant.

DECIDED

May 17, 1999
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY CONCURRING/DISSENTING OPINION BY
CHECKLIST
AFFIRM CHIEF JUSTICE PORITZ X JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X JUSTICE COLEMAN X TOTALS
7