NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5703-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICHARD J. FREEMAN,
Defendant-Appellant. ____________________________
Submitted March 19, 2019 – Decided August 20, 2019
Before Judges Rothstadt and Gilson.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 15-06- 1206.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele Erica Friedman, Assistant Deputy Public Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Lisa Sarnoff Gochman, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Richard Freeman appeals from a judgment of conviction that
was entered after a jury found him guilty of committing third-degree possession
of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10(a)(1);
third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-
5(b)(3); and second-degree possession of CDS with intent to distribute within
500 feet of a public park, N.J.S.A. 2C:35-7.1. The trial judge sentenced
defendant to an aggregate term of five years in prison with three years of parole
ineligibility.
On appeal, defendant challenges the trial judge's reliance on the "plain
view" doctrine to deny his suppression motion. He also contends, for the first
time on appeal, that the trial judge erred by failing to instruct the jury with the
entire model jury charge on expert testimony, Model Jury Charges (Criminal),
"Expert Testimony" (rev. Nov. 10, 2003). Also for the first time, he challenges
the trial judge's admitting into evidence, without proper authentication, a map
of the municipality's drug-free zones that the State used to establish that
defendant's possession of CDS with intent occurred within 500 feet of a public
park. Finally, he argues that the trial judge committed reversible error in
refusing to instruct the jury with the "mere presence" charge found in Model
A-5703-16T4 2 Jury Charges (Criminal), "Liability for Another's Conduct (N.J.S.A. 2C:2-6)"
(rev. June 11, 2018).
We conclude from our review of the record and the applicable principles
of law that defendant's suppression motion was properly denied. Also, although
we agree with defendant that the map was admitted without the required
authentication and it was erroneous to not charge the jury with the complete
expert testimony and "mere presence" charges, we do not discern from the
record the requisite harm or prejudice that would warrant reversal of his
conviction. For those reasons, we affirm.
I.
The facts adduced at the suppression hearing and trial are summarized as
follows. On February 27, 2015, an anonymous caller informed the Asbury Park
police that the manager at an assisted living facility for disabled persons was
selling narcotics to residents. Two officers responded and when they arrived,
they met an employee who was standing outside. When they asked to speak
with the facility's manager, the employee led them inside and downstairs to the
basement area and she pointed to a door where she said the manager was located.
As one of the officers walked down the hallway, there was an open bathroom
door that led into a bedroom. The officer saw a man, who later turned out to be
A-5703-16T4 3 defendant, counting money in the bedroom. The officer then knocked and
looked in, observing a pile of cash and a plastic bag containing white powder on
a dresser that he immediately recognized as potentially being cocaine.
Defendant was placed under arrest. In a search incident to the arrest, the officers
recovered additional money. Defendant was later indicted for the charges that
the jury found him guilty of committing.
Before trial commenced, defendant filed a motion to suppress. At the
suppression hearing, the arresting officer testified to the above version of what
occurred and defendant also testified. Defendant's testimony differed from the
police officer's. He stated that one of the officers confronted him while he was
upstairs at his place of employment and then he was taken downstairs, where the
officer went through drawers in a room that was used as a breakroom for the
staff.
After the trial judge denied the suppression motion, and during the ensuing
trial, the arresting officer testified that the facility at which defendant worked
was located within 500 feet of a public park, according to a map that designated
drug-free zones within the community and was obtained from the municipal
clerk's office. The officer relied upon the municipal map and it was admitted
into evidence without objection.
A-5703-16T4 4 The State called another officer as an expert in drug trafficking. After the
officer completed his testimony, the trial judge instructed the jury as to their
consideration of expert testimony.
After the State rested, defendant testified. He again disagreed with the
police witnesses' version of events and explained that neither the money nor the
cocaine belonged to him.
Prior to the jury deliberating, the trial judge gave the parties an
opportunity to review his proposed jury instructions. Defendant did not object
to the charge relating to the police officer's expert testimony or any other charge.
He did request a charge on "mere presence," which the judge denied.
In his final charge to the jury, the judge included a general instruction
relating to the credibility of witnesses, followed by the same instruction he gave
after the State's expert testified. The judge did not read the entire Model Jury
Charge for expert testimony. His charges included the Model Jury Charges'
definition of possession.
Although given another opportunity to object to any of the judge's
instructions before he released the jury to begin its deliberations, neither party
raised any issues with the charges. The jury was released and later returned its
unanimous verdict.
A-5703-16T4 5 Defendant filed a motion for a new trial that the trial judge denied. The
judge sentenced defendant and this appeal followed.
On appeal, defendant specifically argues the following four points:
POINT I
THE OFFICERS' WARRANTLESS CONDUCT FELL OUTSIDE THE SCOPE OF THE PLAIN VIEW DOCTRINE BECAUSE THEIR DISCOVERY OF THE EVIDENCE WAS NOT INADVERTENT.
POINT II
THE COURT OMITTED THE CRUX OF THE EXPERT JURY CHARGE, THUS LEAVING THE JURY WITHOUT ANY INSTRUCTIONS REGARDING HOW TO ASSESS SERGEANT SNOWDEN'S TESTIMONY AS AN EXPERT WITNESS. (NOT RAISED BELOW).
POINT III
THE STATE INTRODUCED ITS ONLY PROOF OF THE 500-FOOT ELEMENT, THE MAP, WITHOUT PROPERLY AUTHENTICATING THIS HEARSAY DOCUMENT. (NOT RAISED BELOW).
POINT IV
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO ISSUE THE 'MERE PRESENCE' CHARGE.
We are not persuaded by any of defendant's contentions. We address them
serially.
A-5703-16T4 6 II.
Turning first to defendant's challenge in Point I to the denial of his
suppression motion, he contends the trial judge's ruling was "patently erroneous"
because the search of his place of employment was based upon a tip about him
selling drugs. Therefore, the officers' investigation "necessarily entailed" a
search for and discovery of CDS that was not inadvertent, making it outside the
scope of the "plain view" exception for warrantless searches. We disagree.
At the suppression hearing, Asbury Park Police Officer Joseph Leon
testified to the events leading up to defendant's arrest and the seizure of CDS
from him at his place of employment. He stated that the information he and his
partner received from dispatch was based upon an anonymous telephone call
that said the manager of the facility, whom the caller identified as defendant,
was "engaged in selling narcotics," which the officer understood to be heroin.
Prior to arresting defendant, neither officer knew any of the other details of the
information provided in the call.
Leon described how he inadvertently came to view the CDS on a dresser
in the bedroom where defendant was found counting money. According to Leon,
after the facility's employee walked him down the stairs and directed him to a
bathroom, he observed a "small bedroom adjoined or connected to this
A-5703-16T4 7 bathroom," that was accessible through the bathroom. The officer looked into
the open-doored bedroom where he saw defendant. He then knocked on the
door, startling defendant who then placed the cash he had into his pocket. While
speaking to defendant and explaining why the officers were present, Leon "was
able to see a separate quantity of paper currency on top of the dresser, and next
to that pile of cash . . . [he] observed a plastic bag containing what [he]
immediately suspect[ed] to be CDS cocaine" and a straight edge razor blade.
The officer seized the cash and CDS, and arrested defendant.
On cross-examination, Leon also explained that when he and the other
officer were dispatched to the location, he did not "necessarily" expect to find
CDS at the facility "because [they] were there looking to see if there w[ere]
going to be drugs there . . . ." When he discovered the cocaine, Leon was
surprised because "nine times out of ten, calls like that just . . . don't end up in
that type of situation."
In a written decision issued on March 1, 2016, the trial judge stated his
reasons for denying defendant's motion. In his decision, the judge made specific
credibility findings, in which he found Leon credible, and he set forth his
findings based upon the officer's testimony.
A-5703-16T4 8 In his legal analysis of whether the plain view exception applied, the judge
addressed whether the officers' discovery of the CDS was inadvertent. The
judge stated "[w]hile the officers were conducting a narcotics investigation, they
were under the impression that they would find a large amount of heroin. Seeing
a small amount of cocaine on the defendant's dresser was an inadvertent
observation Leon made as he looked around the room from the hallway." The
judge concluded that the discovery of the CDS was made in plain view and
denied the motion.
Our review of a trial judge's evidentiary rulings is limited as they are
reviewed only for an abuse of discretion. State v. Cole, 229 N.J. 430, 449
(2017). In our review, we defer to a trial judge's findings of fact on pre-trial
suppression motions and will not reverse unless the findings are so mistaken and
unsupported by the evidence that it is necessary to intervene. State v. S.S., 229
N.J. 360, 374 (2017); see also State v. Sencion, 454 N.J. Super. 25, 31 (App.
Div. 2018). "An appellate court reviewing a motion to suppress evidence in a
criminal case must uphold the factual findings underlying the trial court's
decision, provided that those findings are 'supported by sufficient credible
evidence in the record.'" State v. Boone, 232 N.J. 417, 425-26 (2017) (quoting
State v. Scriven, 226 N.J. 20, 40 (2016)).
A-5703-16T4 9 We defer to the motion judge's factual findings when supported by
sufficient evidence in the record "because the motion judge, unlike an appellate
court, has the 'opportunity to hear and see the witnesses and to have the "feel"
of the case, which a reviewing court cannot enjoy.'" State v. Gonzales, 227 N.J.
77, 101 (2016) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We also
defer to the court's credibility findings. State v. Locurto, 157 N.J. 463, 472
(1999). "We owe no deference, however, to conclusions of law made by trial
courts in suppression decisions, which we instead review de novo." Sencion,
454 N.J. Super. at 31-32; see also State v. Watts, 223 N.J. 503, 516 (2015).
Applying our deferential standard of review, we conclude that the trial
judge properly relied upon the plain view doctrine in denying defendant's
suppression motion.
Like its federal counterpart, Article I, Paragraph 7 of the New Jersey
Constitution protects against "unreasonable searches and seizures" and generally
requires a warrant issued on "probable cause." N.J. Const. art. I, ¶ 7; see U.S.
Const. amend. IV. "[A] warrantless search is presumptively invalid" unless the
State establishes the search falls into "one of the 'few specifically established
and well-delineated exceptions to the warrant requirement.'" Gonzales, 227 N.J.
at 90 (quoting State v. Edmunds, 211 N.J. 117, 130 (2012)); see also Sencion,
A-5703-16T4 10 454 N.J. Super. at 32. One such exception is the "plain view" doctrine, which
allows seizures without a warrant if an officer is "lawfully . . . in the area where
he observed and seized the incriminating item or contraband, and it [is] . . .
'immediately apparent' that the seized item is evidence of a crime." Id. at 101
(quoting State v. Bruzzese, 94 N.J. 210, 236 (1983)).
In order to satisfy the plain view doctrine at the time when this case was
decided, 1 the State must have demonstrated:
(1) the officer was "lawfully in the viewing area," (2) the officer discovered the evidence "'inadvertently,' meaning that he did not know in advance where the evidence was located nor intend beforehand to seize it," and (3) it was "immediately apparent" that the items "were evidence of a crime, contraband, or otherwise subject to seizure."
[State v. Earls, 214 N.J. 564, 592 (2013) (quoting State v. Mann, 203 N.J. 328, 341 (2010)).]
Here, defendant is only disputing the inadvertency prong. This prong is
"satisfied when the police 'did not "know in advance the location of the evidence
and intend to seize it," essentially relying on the plain-view doctrine only as a
pretense.'" State v. Lane, 393 N.J. Super. 132, 146-47 (App. Div. 2007) (quoting
State v. Johnson, 171 N.J. 192, 211 (2002)).
1 In Gonzales, the New Jersey Supreme Court eliminated on a prospective basis the inadvertence prong of the plain-view test. 227 N.J. at 99. A-5703-16T4 11 At defendant's suppression hearing, there was no evidence that
undermined the trial judge's finding that the officers' discovery of the CDS was
inadvertent. The evidence that the judge found credible established that police
received a tip that defendant was selling heroin at his place of employment and
they went into the facility to investigate that advice. The officer did not expect
to find any CDS as such calls were, as he testified, usually unfounded and made
only to harm the subject of the call. There was no evidence that either officer
knew from the tip or otherwise that there was CDS at the facility or where CDS
was located within the facility. All they knew was that someone was alleged to
be selling CDS to residents. They "did not know in advance where [the]
evidence was located nor intend[ed] beforehand to seize it." Mann, 203 N.J. at
341 (quoting Bruzzese, 94 N.J. at 236). Under these circumstances, we have no
cause to disturb the trial judge's decision to deny defendant's suppression
motion.
III.
Next, we address defendant's challenge in Point II to the trial judge's jury
charge about the expert witness that testified for the State. The State called its
expert, Sergeant George Snowden, a member of the narcotics strike force with
A-5703-16T4 12 the Monmouth County Prosecutor's Office. He testified to his training and
background and to the sale and distribution of CDS within the county.
Following that testimony, the trial judge instructed the jurors:
Ladies and gentlemen, as a general rule witnesses can only testify about facts known to them. This rule ordinarily does not permit the opinion of a witness to be received as evidence; however, an exception to this rule exists in the case of an expert witness who may give his opinion as to any matter in which he is versed which is material to the case.
In legal terminology, an expert witness is a witness who has some special knowledge, skill, experience, or training that is not possessed by the ordinary juror and who, thus, may be able to provide assistance to the jury in understanding the evidence presented and determine the facts in this case.
In this case the State called Detective George Snowden of the Monmouth County Prosecutor's Office as an expert in the field of illegal distribution of controlled dangerous substances.
Later, before the trial judge gave the jury its final instructions, the judge
gave the parties an opportunity to review the proposed charges. Defendant did
not object to the expert testimony instruction, which was the same charge the
judge gave earlier, or ask for anything more.
A-5703-16T4 13 In his final charge to the jury, the trial judge gave a general instruction
following the Model Jury Charges relating to the jurors' determination of the
credibility of all witnesses. He stated the following:
As the judges of the facts you are to determine the credibility of the witnesses, and in determining whether a witness is worthy of belief and, therefore, credible, you may take into consideration: [t]he appearance and demeanor of the witness; the manner in which he or she may have testified; the witness' interest in the outcome of the trial, if any; the witness' means of obtaining knowledge of the facts; the witness' judgment and understanding; the witness' ability to reason, observe, recollect, and relate; the possible bias, if any, in favor of the side for whom the witness testified; the extent to which, if at all, each witness is corroborated, contradicted, supported, or discredited by other evidence; whether the witness testified with the intent to deceive you; the reasonable or unreasonableness of the testimony the witness has given; whether the witness made any inconsistent or contradictory statement; any evidence which would serve to support or discredit the witness' testimony.
Through this analysis you weigh the testimony of each witness and then determine the weight to give the testimony. Through this process you may accept all of the testimony, a portion of it, or none of it.
Afterward, the judge delivered the same instruction he gave after Snowden
testified. He did not read the entire Model Jury Charge for expert testimony.
On appeal, defendant asserts that it was plain error for the trial judge to not
instruct the jury with the complete charge pertaining to expert witnesses as it
A-5703-16T4 14 deprived defendant of his due process rights as well as a fair trial, warranting a
reversal of his conviction. He emphasizes that without the complete instruction,
the jury could not properly gauge the testimony and that the failure to issue the
full instruction was clearly capable of producing an unjust result under Rule
2:10-2.
The complete expert witness charge states the following:
As a general rule, witnesses can testify only as to facts known by them. This rule ordinarily does not permit the opinion of a witness to be received as evidence. However, an exception to this rule exists in the case of an expert witness who may give (his/her) opinion as to any matter in which (he/she) is versed which is material to the case. In legal terminology, an expert witness is a witness who has some special knowledge, skill, experience or training that is not possessed by the ordinary juror and who thus may be able to provide assistance to the jury in understanding the evidence presented and determine the facts in this case. In this case, (list experts and areas of expertise) or (State and defendant) or (State only) (were called as experts) (or called experts). You are not bound by such expert's opinion, but you should consider each opinion and give it the weight to which you deem it is entitled, whether that be great or slight, or you may reject it. In examining each opinion, you may consider the reasons given for it, if any, and you may also consider the qualifications and credibility of the expert. It is always within the special function of the jury to determine whether the facts on which the answer or testimony of an expert is based actually exist. The
A-5703-16T4 15 value or weight of the opinion of the expert is dependent upon, and is no stronger than, the facts on which it is based. In other words, the probative value of the opinion will depend upon whether from all of the evidence in the case, you find that those facts are true. You may, in fact, determine from the evidence in the case that the facts that form the basis of the opinion are true, are not true, or are true in part only, and, in light of such findings, you should decide what affect such determination has upon the weight to be given to the opinion of the expert. Your acceptance or rejection of the expert opinion will depend, therefore, to some extent on your findings as to the truth of the facts relied upon. The ultimate determination of whether or not the State has proven defendant's guilt beyond a reasonable doubt is to be made only by the jury.
[Model Jury Charges (Criminal), "Expert Testimony" (rev. Nov. 10, 2003).]
We begin our consideration of defendant's contention by acknowledging
that "[a]ppropriate and proper charges are essential for a fair trial." State v.
Baum, 224 N.J. 147, 158-59 (2016) (alteration in original) (quoting State v.
Reddish, 181 N.J. 553, 613 (2004)). "The trial court must give 'a
comprehensible explanation of the questions that the jury must determine,
including the law of the case applicable to the facts that the jury may find.'" Id.
at 159 (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). "Thus, the court
has an 'independent duty . . . to ensure that the jurors receive accurate
instructions on the law as it pertains to the facts and issues of each case,
A-5703-16T4 16 irrespective of the particular language suggested by either party.'" Ibid.
(alteration in original) (quoting Reddish, 181 N.J. at 613). A jury charge "must
be read as a whole in determining whether there was any error." State v. Torres,
183 N.J. 554, 564 (2004). The appropriate test to apply "'is whether the charge
as a whole is misleading, or sets forth accurately and fairly the controlling
principles of law.'" State v. McKinney, 223 N.J. 475, 496 (2015) (citing State
v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997)).
"Because proper jury instructions are essential to a fair trial, 'erroneous
instructions on material points are presumed to' possess the capacity to unfairly
prejudice the defendant." Id. at 495 (quoting State v. Bunch, 180 N.J. 534, 541-
42 (2004)). However, a party may be prejudiced by failing to object to any
charge if "there was an opportunity to object to a ruling, order or charge." R.
1:7-2.
When a defendant fails to object to an error regarding jury charges, we
review for plain error. R. 1:7-2; State v. Funderburg, 225 N.J. 66, 79 (2016).
"Under that standard, we disregard any alleged error 'unless it is of such a nature
as to have been clearly capable of producing an unjust result.'" Funderburg, 225
N.J. at 79 (quoting R. 2:10-2). "The mere possibility of an unjust result is not
enough. To warrant reversal by this [c]ourt, an error at trial must be sufficient
A-5703-16T4 17 to raise 'a reasonable doubt . . . as to whether the error led the jury to a result it
otherwise might not have reached.'" Ibid. (second alteration in original)
(quoting State v. Jenkins, 178 N.J. 347, 361, (2004)). "[P]lain error requires
demonstration of '[l]egal impropriety in the charge prejudicially affecting the
substantial rights of the defendant 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. Burns, 192 N.J. 312,
341 (2007) (second alteration in original) (quoting State v. Jordan, 147 N.J. 409,
422 (1997)).
Applying these guiding principles, we conclude the trial judge mistakenly
failed to charge the jury with the complete charge, but that mistake did not
constitute plain error. See State v. Hyman, 451 N.J. Super. 429, 455-57 (App.
Div. 2017) (finding no plain error where trial court failed to give Model Jury
Charge on "expert testimony" but delivered a "hybrid" charge by relying on
"[t]he general charge on credibility"). The general credibility charge the judge
gave instructed jurors to consider all of "the witness' means of obtaining
knowledge of the facts; the witness' judgment and understanding; [and] the
witness' ability to reason, observe, recollect, and relate . . . ." Importantly, in
combination with the charge he gave twice about Snowden being called as an
A-5703-16T4 18 expert, the judge's final charge made clear that as with all witnesses, the jurors
were to "weigh the testimony of each witness and then determine the weight to
give the testimony. Through this process [they could] accept all of the
testimony, a portion of it, or none of it." Under these circumstances, we discern
no plain error.
IV.
We turn to defendant's contention in Point III that the trial judge erred by
admitting a map into evidence without proper authentication. It is undisputed
that defendant did not raise any challenge to the map's admission before the trial
judge.
Where a defendant does "not object on the same ground on which he
challenges the admission of the map before this [c]ourt, we . . . review the
admission of the map for plain error." State v. Dorn, 233 N.J. 81, 92 (2018) (not
reviewing for plain error where the Court found that defendant waived objection
by not accepting trial court's offer to require production of appropriate witness
to authenticate map). We will find plain error if an "error or omission . . . is of
such a nature as to have been clearly capable of producing an unjust result." R.
2:10-2. "[T]he test to apply is whether the possibility of injustice is 'sufficient
to raise a reasonable doubt as to whether the error led the jury to a result it
A-5703-16T4 19 otherwise might not have reached.'" State v. Green, 447 N.J. Super. 317, 325
(App. Div. 2016) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). See also
State v. Williams, 168 N.J. 323, 336 (2001).
The challenged map was introduced during Leon's trial testimony without
any objection by defendant. The officer testified that he reviewed a map of the
drug-free zones in Asbury Park as part of his investigation and determined that
defendant's place of employment was located within 500 feet of Tot Lot Park, a
public park. The State also introduced a copy of an ordinance that Leon
recognized as establishing Asbury Park's drug-free zone map. He identified the
signature on the map as the city clerk's and noted that the ordinance was
originally prepared by the city engineer on February 1, 2007, and revised on
April 14, 2009.
When questioned about the different colored circles that were indicated
on the map, he explained that, "I guess orange circles show the 500-foot
boundaries for public property and parks, the blue circles show the 1[,]000-foot
boundaries for school zone, and I guess it would be somewhat of a darker blue
shows the overlapping area." Leon designated on the map the location of
defendant's place of employment in relation to one of the drug-free zones,
indicating its proximity to Tot Lot Park.
A-5703-16T4 20 At the end of the presentation of evidence and after the denial of
defendant's motion to acquit, the judge reviewed with both parties' counsel the
evidence to be admitted and then given to the jurors during their deliberations.
Defendant did not object to the ordinance or to the map pertaining to the drug -
free zones being admitted or released to the jurors.
On appeal, defendant specifically argues that under State v. Wilson, 227
N.J. 534 (2017), Leon's testimony was insufficient to authenticate the map. We
agree.
"In Wilson, . . . . [t]he defendant objected [at trial to a map's admission],
arguing that the map was testimonial hearsay and that its admission violated his
confrontation rights because the State did not produce a witness who had either
prepared the map or could testify to its accuracy." Dorn, 233 N.J. at 91 (citations
omitted). The Supreme Court concluded "that such maps are not self-
authenticating, and explained that '[p]roper authentication of the map require[s]
a witness who [can] testify to its authenticity and be cross-examined on the
methodology of the map's creation and its margin of error . . . .'" Id. at 91-92
(alterations in original) (citations omitted).
However, unlike the defendant in Wilson, here, defendant made no
objection. Moreover, in support of his appellate argument, he fails to
A-5703-16T4 21 demonstrate that the admitted map, although not properly authenticated, failed
to properly depict that the location of his offense was not within 500 feet of the
park. Without any demonstration of how the admitted map caused an injustice,
we conclude there was no plain error.
Finally, we consider defendant's argument in Point IV that the trial judge
erroneously denied his request for a "mere presence" charge. The trial judge
stated that he had never heard of the charge and that he was not inclined to
specifically instruct the jury on it though he was inclined to instruct it on third-
party guilt. He suggested counsel include "mere presence" in the summation,
which counsel did during her closing argument.
The judge included in his charge instructions about the definition of
possession under the charged offenses. Following the Model Jury Charge for
Possession, the judge instructed in pertinent part, as follows:
Possession means a conscious knowing possession, . . . either actual or constructive. A person is in actual possession of an item when he first knows what it is, that is, he has knowledge of its character, and, secondly, knowingly has it on his person at a given time.
Constructive possession means possession in which the possessor does not physically have the item on his
A-5703-16T4 22 person but is aware that the item is present and is able to and has the intention to exercise control over it.
So someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it, either directly or through another person, is then in constructive possession of that item.
Here again, after the judge completed his charges to the jury, neither party
raised any objections.
When a trial judge does not give a jury a charge requested by defendant,
we must determine if the omission of the charge was not harmless error. See
Macon, 57 N.J. at 337-38; State v. Marroccelli, 448 N.J. Super. 349, 370 (App.
Div. 2017). "The test of whether an error is harmless depends upon some degree
of possibility that it led to an unjust verdict." State v. Burton, 309 N.J. Super.
280, 289 (App. Div. 1998). "If the possibility of an unjust result is sufficient to
raise in our minds a reasonable doubt as to whether the error led the jury to a
result it otherwise might not have reached, a new trial is required." State v.
Walden, 370 N.J. Super. 549, 562 (App. Div. 2004); see also State v.
McLaughlin, 205 N.J. 185, 211-12 (2011). "The prospect that the error gave
rise to an unjust result 'must be real [and] sufficient to raise a reasonable doubt
as to whether [it] led the jury to a verdict it otherwise might not have reached.'"
Marroccelli, 448 N.J. Super. at 370 (alterations in original) (quoting State v.
A-5703-16T4 23 J.R., 227 N.J. 393, 417 (2017)). The standard of determining whether
constitutional error warrants reversal requires the State to show beyond a
reasonable doubt that the error did not contribute to the conviction. See State v.
Camacho, 218 N.J. 533, 548 (2014).
On appeal, defendant argues that the trial judge deprived him of his
constitutional rights to due process and a fair trial by refusing to read the "mere
presence" charge. Citing to State v. Randolph, 228 N.J. 566, 592 (2017),
defendant states that in that case, the Court "denounced" a trial court's lack of
issuing a "mere presence" charge in a CDS constructive possession case. Id. at
28. He argues the trial judge in his case improperly denied his request for such
a charge and attempts to distinguish the facts in his case from those in Randolph
that took place in an apartment building "with less foot traffic," as opposed to
the staff room here, which he describes as a "considerably-accessible common
area." According to defendant, this distinction "generates a far greater risk of
juror confusion."
Defendant attempts to further distinguish his case by explaining that the
jury here was required to determine whether he constructively possessed the
cocaine placed on a dresser that was next to a bed on which he was sitting.
Without an instruction, he argues that the jury may have assumed that his
A-5703-16T4 24 presence alone suggested involvement in the offenses. The failure to provide
the "mere presence" charge, he asserts, "plainly warrants reversal" because there
was no physical evidence linking him specifically to the drugs. We disagree.
The "mere presence" charge is set forth in the Model Jury Charge on
accomplice liability. It states the following:
Mere presence at or near the scene does not make one a participant in the crime, nor does the failure of a spectator to interfere make him/her a participant in the crime. It is, however, a circumstance to be considered with the other evidence in determining whether he/she was present as an accomplice. Presence is not in itself conclusive evidence of that fact. Whether presence has any probative value depends upon the total circumstances. To constitute guilt there must exist a community of purpose and actual participation in the crime committed.
While mere presence at the scene of the perpetration of a crime does not render a person a participant in it, proof that one is present at the scene of the commission of the crime, without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is possible for the jury to infer that he/she assented thereto, lent to it his/her countenance and approval and was thereby aiding the same. It depends upon the totality of the circumstances as those circumstances appear from the evidence.
[Model Jury Charges (Criminal), "Liability for Another's Conduct (N.J.S.A. 2C:2-6)" (rev. June 11, 2018).]
A-5703-16T4 25 The fact that it is contained in the accomplice liability charge is not a bar
to it being used to explain the elements of other charges. As the Court observed
in Randolph, it is a mistake to believe the "mere presence" charge can only be
given in cases dealing with culpability for the acts of others. It expressly stated,
"[n]o constraint barred the trial court from giving the 'mere presence' charge,
and the better course would have been to give the charge to disabuse the jury of
any possible notion that a conviction could be based solely on defendant's
presence in the building." Randolph, 228 N.J. at 592.
In Randolph, the defendant was found hiding in an apartment above the
apartment where the drugs were found that formed the bases for the criminal
possession charges. Id. at 573-75. The defendant was not charged as an
accomplice nor was the accomplice liability instruction given to the jury. The
defendant requested that a "mere presence" instruction be provided to the jury
and on appeal argued that the trial court's failure to deliver the charge was
harmful error. Id. at 576, 580. Although the Supreme Court noted that the better
course was to have given the charge, in light of the charges given on joint and
constructive possession, the Court found the error harmless. Id. at 592-93. The
Court stated that "[t]he charge, as a whole, sufficiently informed the jury —
A-5703-16T4 26 without using the words 'mere presence'—that defendant's presence in the
building, standing alone, would be insufficient to establish guilt." Id. at 592.
Accordingly, while the trial judge here should have given the charge, his
failure to do so was harmless because it could not produce an unjust result. The
judge's recitation of the possession charge established that defendant's mere
presence in the bedroom was not sufficient to convict him as the State was also
required to prove that defendant was "aware that the [CDS was] present and
[defendant was] able to and ha[d] the intention to exercise control over it." As
the Court concluded in Randolph, "giving the charge would have done no harm
and possibly would have been of some benefit" but the failure to deliver it did
not, on its own, result in harmful error warranting a new trial. Id. at 593.2
Affirmed.
2 The Court remanded the case in order to determine whether the warrantless search of the apartment was justified and, in the event there was a retrial, whether the trial court should instruct the jury on flight, given the facts of the case. Randolph, 228 N.J. at 572. A-5703-16T4 27