State v. Davis

Decision Date19 June 1975
Citation68 N.J. 69,342 A.2d 841
PartiesSTATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CARL ALEXANDER DAVIS, DEFENDANT-APPELLANT.
CourtNew Jersey Supreme Court

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Mr. Carl R. Lobel and Mr. David A. Arrajj, Assistant Deputies Public Defender, argued the cause for defendant-appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Messrs. Lobel and Arrajj on the brief).

Mr. Richard W. Berg, Deputy Attorney General, argued the cause for plaintiff-respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Berg on the brief).

The opinion of the Court was delivered by CLIFFORD, J.

In State v. Gregory, 66 N.J. 510 (1975), this Court recently focused on the problem of procedural joinder of multiple offenses based on the same conduct or arising from the same criminal episode — in that case (1) possession with intent to distribute and (2) distribution of heroin. We held that under the situation there presented, considerations of fundamental fairness called for disposition by a single trial. Justice Jacobs' opinion for a unanimous Court made passing reference, in 66 N.J. at 522, to a somewhat related issue now squarely presented, namely, under what circumstances possession and distribution (here, again, of heroin) may be viewed as separate offenses.

Broadly stated, this case and its companion cases of State v. Ruiz, A-56, State v. Williams, A-57, 68 N.J. 54 (both argued with the instant matter) and State v. Jester, A-64, 68 N.J. 87, all decided this day, involve the asserted merger of related violations of New Jersey's Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 et seq.,1 arising from a single multi-count indictment.

The principles governing consideration of all four cases will be developed in this opinion and applied to the factual situations in this and the companion cases.

I

Three indictments charged Davis with criminal violations on three separate dates. Each indictment, containing two counts, accused defendant of unlawful possession (Count 1) and unlawful sale (Count 2) of a narcotic drug (heroin). A jury trial resulted in convictions on all six counts. In March of 1972 defendant was sentenced on each count to concurrent 12-to 15-year terms in New Jersey State Prison.2 While his appeal from these convictions and sentences was pending, Davis moved before the trial court, pursuant to R. 3:21-10(a), for transfer from State Prison to a narcotics treatment center. The original sentences and the denial of that motion were affirmed by the Appellate Division. A petition for certification raising both issues anew was granted, as was a supplemental letter petition raising for the first time the question of whether there should not be merger of the possession counts with those involving sale.

II

The convictions were founded largely upon the work of one Detective Teza, an undercover agent for the New Jersey State Police. Defendant sold him heroin on three different occasions in Trenton during a five-week period in 1969. At the initial meeting the undercover detective arrived by car with an informer who was familiar with the neighborhood and its inhabitants. His function was to introduce Teza and, by his presence, reduce suspicion. While Teza and the informer were seated in the parked automobile, they encountered defendant on the sidewalk and struck up a conversation. After a few moments Davis entered the vehicle. While seated in the back seat defendant stated that he had "pound bags" (i.e., glassine bags containing one-tenth of a gram of heroin) for sale. Then and during the next two meetings — each conducted under circumstances similar to the first but without the presence of the informer — Detective Teza purchased for $10 a single "pound bag." No additional proof was adduced relating to possession of heroin other than that amount sold the agent. Nor was the alleged possession more specifically delineated in the indictment than defendant "unlawfully did possess and have under his control * * * heroin."

III

There is posed, in this and the companion cases, a preliminary question: whether indictment and conviction in a single proceeding for either possession of or possession with intent to distribute a controlled dangerous substance, such as heroin, and distribution of the same controlled dangerous substance, comes within the ambit of merger incorporated in the double jeopardy provisions of the state and federal constitutions,3 or rather is governed by considerations of merger in conjunction with due process. While the double jeopardy bar typically falls upon repeated piecemeal prosecution, here we are confronted in a single-trial context with asserted multiple punishment arising from convictions based on a multi-count indictment with each count therein allegedly setting forth the same offense.

The issue thus projected, of whether the double jeopardy clauses may or should be expanded beyond their traditional scope, is a stimulating one and has an undeniable intellectual attraction; but it need not be pursued here inasmuch as the members of the Court who vote with this opinion in this the "lead" case are not of one mind on the question of whether it is double jeopardy or substantive due process that is to be applied. We therefore leave to another day protracted discussion and resolution thereof.4

We are, however, in complete accord on this fundamental point: If an accused has committed only one offense, he cannot be punished as if for two. Hence, we reaffirm the prohibition against multiple punishment for a single wrongdoing. See State v. Jamison, 64 N.J. 363, 380 (1974); State v. Hill, 44 N.J. Super. 110 (App. Div. 1957); cf. State v. Labato, 7 N.J. 137, 143 (1951); State v. Roller, 29 N.J. 339, 346-47 (1959). Such a proscription not only tends to insure that the punishment imposed is commensurate with the criminal liability, by limiting judges and prosecutors alike to acting within the bounds of the legislative design; but it also addresses the inevitable conflict between legislative attempts to stuff all kinds of anti-social conduct into the general language of a limited number of criminal offense categories, and the legislative desire not to be inordinately vague about what behavior is deemed "criminal." And for today's purposes it makes no difference whether it be by force of double jeopardy, substantive due process, or some other legal tenet that double punishment in the circumstances before us is forbidden.

IV

Nonetheless, with whatever disarming ease the prohibition against double punishment may be articulated, its application is not without difficulties. We start with the proposition that what is disallowed is double punishment for the same offense. Since it is the legislative branch that defines the unit of prosecution or "offense" and ordains its punishment, United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37, 42 (1820), we must first determine whether the legislature has in fact undertaken to create separate offenses of, in this case, (a) possession and (b) sale of narcotic drugs in situations where that possession and sale are exposed in the same criminal episode.

We approach this examination with an awareness that while a court need not automatically accept the legislative enactment as controlling on the question of whether or not separate offenses have been delineated, the legislature may, nevertheless, within its constitutional authority, devise reasonable means to combat a social evil such as illegal trafficking in drugs and may endeavor to deter the recurrence of the proscribed conduct. Specifically, there is no question but that the legislature is empowered to split a single, continuous transaction into stages, elevate each stage to a consummated crime, and punish each stage separately. See State v. Cormier, 46 N.J. 494, 501-02 (1966); Burton v. United States, 202 U.S. 344, 377-78, 26 S.Ct. 688, 697, 50 L.Ed. 1057, 1069-070 (1906); United States v. Nathan, 476 F.2d 456, 459 (2d Cir.), cert. den., 414 U.S. 823, 94 S.Ct. 171, 38 L.Ed.2d 56 (1973); cf. United States v. Campos-Serrano, 404 U.S. 293, 298, 92 S.Ct. 471, 474, 30 L.Ed.2d 457, 462 (1971).

We conclude that as part and parcel of a comprehensive strategy to deal with the drug crisis, the legislature intended each of certain specified components of a transaction or episode leading to and including the distribution of a controlled dangerous substance to be a distinct and separate offense. See Judge Lynch's dissent in State v. Williams, 129 N.J. Super. 84, 87, 91-96 (App. Div. 1974). As emphasized in Gore v. United States, 357 U.S. 386, 390, 78 S.Ct. 1280, 1283, 2 L.Ed.2d 1405, 1409 (1958), wherein the Supreme Court was confronted with several drug-related offenses proscribed by a series of congressional enactments, the legislative effort in "grappling with a powerful, subtle and elusive enemy" which invades even the schoolgrounds of ghetto and suburb alike must, to the greatest extent possible, be given consideration and effect by this Court. In that endeavor it behooves us to be sensitive to the "spirit of the legislative direction," and not blindly follow "the literal sense of the terms." Alexander v. N.J. Power & Light Co., 21 N.J. 373, 378 (1956).

The 1960's witnessed a tremendous increase in drug arrests: in New Jersey, from 1618 arrests in 1964 to 22,941 during 1970. Narcotic Drug Study Comm'n of the N.J. Legislature, An Interim Report 1965, at 14, 36 (1966); Uniform Crime Reports, State of New Jersey 1970, at 62 (1971).5 Simultaneously with the attempt to forge a new program for the rehabilitation of addicts, the legislature proposed to direct law enforcement activities against both small-time and organized-crime-linked narcotics vendors and suppliers who reprehensibly sought to reap profits for whatever motive — even to feed their own habit — at the cruel expense of others' moral and...

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