State v. Green, A-3676-17
| Decision Date | 08 October 2021 |
| Docket Number | A-3676-17 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. LOUIS V. GREEN, a/k/a LOU, ROBERT HAWKINS, and SAMUEL L. JAMISON, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 15, 2020
On appeal from the Superior Court of New Jersey, Law Division Burlington County, Indictment No. 15-06-0637.
Emma R. Moore, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney Emma R. Moore, of counsel and on the briefs).
Amanda G. Schwartz, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney Amanda G. Schwartz, of counsel and on the brief).
Before Judges Ostrer, Accurso, and Vernoia.
OSTRER, P.J.A.D.
After bifurcated trials, a jury found Louis V. Green guilty of two counts of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), and two counts of certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1). One drug-related count involved ethylone; the other alprazolam. The jury could not reach a verdict on a count charging possession of ethylone with intent to distribute. N.J.S.A. 2C:35-5(b)(4). But Green later pleaded guilty to that count to resolve other pending charges. On appeal, Green principally contends his ethylone-related convictions should be reversed because the law that allegedly outlaws ethylone possession is void for vagueness and unconstitutionally delegates legislative power. He also challenges his certain persons convictions on the grounds the court did not confirm that his stipulation to a key element of the offense was voluntary and knowing, and the court failed to orally deliver substantial sections of the final jury instructions.
We conclude the law as it existed when Green was charged was unconstitutionally vague, requiring reversal of his ethylone-related convictions. And we agree that the failure to determine that Green's stipulation was knowing and voluntary requires reversal of his certain persons convictions. We affirm his conviction of possession of alprazolam.
In the trial of the drug-related charges, Police Officer Michael Bennett testified that he arrested Green after responding to a dispatch report of a domestic dispute. Through an open front door, Bennett saw Green - whom he recognized from other interactions - run up the stairs, ignoring his calls to return. Bennett spotted drug paraphernalia in plain view on a table and a man seated nearby. Bennett ordered the man to leave the house, and Bennett then entered to pursue Green. Bennett found him and his wife hiding in a closet. After they left the closet, Bennett observed and seized a rifle case that contained a pump action shotgun with seven shells. In defendant's bedroom, other officers found a bag of marijuana and a bag that contained "several large chunks of . . . a tan brownish crystalized substance" suspected to be MDMA.[1] Pursuant to a later-obtained warrant, officers ultimately seized those items, along with another bag of suspected MDMA, a packet of several pills, digital scales, and a second shotgun. They also seized a small baggie of suspected MDMA from the man who sat by the door.
A forensic scientist from the Burlington County Forensic Laboratory, Kathleen Beyer, testified that her analysis - using a gas chromatograph mass spectrometer - confirmed that the pills were alprazolam, also known as Xanax, and the three bags of suspected MDMA, the "light brown, tannish substance," actually was ethylone. She said ethylone was a "positional isomer of butylone," without defining the term "positional isomer" (an issue we address below). The ethylone in the three bags weighed 40.76 grams, 62.7 grams, and .54 grams.
Burlington County Prosecutor's Office Lieutenant Daniel Leon, testifying as "an expert in the field of narcotics, specifically the manufacture and distribution" of CDS, opined without objection that ethylone was a CDS and a "party drug." He described its typical dosage, retail price, modes of use, and its effects. He concluded that the 104 ounces of ethylone contained between 520 to 1, 040 individual doses with a retail value of $20 to $25 per dose. Asked to elaborate on the other items found in the residence, Leon testified that police seized the scales, other narcotics, two rifles, and $140. Then, evidently referring to the simple possession charges, he added, "based on the weights and other factors I determined that they were correctly charged, and didn't become a factor in my determination today, the reason why I'm here today," which was to opine about the possession-with-intent-to-distribute count. On cross-examination, defense counsel tried to challenge Leon's opinion that casual users possess only a few packets at a time by suggesting that a casual user may wish to stock up on a drug to avoid the risk of repeatedly purchasing drugs. On redirect, the prosecutor asked Leon if he ever "reviewed a case and found there was not evidence to support a charge of possession with intent to distribute." Over the defense's objection, the court allowed the witness to answer that he had. Leon also testified that he was familiar with cases in which police seized a large amount of drugs without a large amount of money.
Regarding the possession-with-intent-to-distribute charge, Officer Bennett (who was not qualified as an expert witness) testified that the small bag of drugs seized from the man by the door was "the amount that normally [one] would find on a person who uses the substance themselves, not a larger quantity like someone who may be distributing it."
Green called one witness, his grandmother. She and her now-deceased husband owned the home where defendant had been living. She initially testified that her husband owned one of the two shotguns recovered from the home. But she later agreed that her husband left both guns at the home. She said she and her husband left them there, along with other personal property, when they vacated the house a couple of years earlier.
In his final charge to the jury, the judge instructed that "[e]thylone is a dangerous substance prohibited by statute." The jury's task was to determine if the material seized and in evidence was ethylone; whether defendant possessed it; and, regarding the possession-with-intent-to-distribute count, whether he possessed it with the intent to distribute it and acted knowingly or purposely in doing so.
As noted, the jury found defendant guilty of possessing ethylone and alprazolam but did not reach a verdict on the possession-of-ethylone-with-intent-to-distribute charge.
Immediately following the drug trial, the court conducted the trial of the two certain persons counts. The parties stipulated defendant had committed a predicate offense as required by the statute (which we discuss in greater detail below). The only witness was a law enforcement officer who discussed one shotgun's operability. The jury found defendant guilty of both counts.
Thereafter, Green pleaded guilty to the possession-with-intent-to-distribute count; in return, the State agreed to dismiss a separate indictment and another unindicted matter, and to recommend a sentence of ten years with a five- year period of parole ineligibility, to run concurrent to the remaining counts on the indictment.
In accord with the agreement, the court sentenced defendant to ten years with five years of parole ineligibility on the possession-with-intent-to-distribute count, seven years with five years of parole ineligibility on each certain persons count, and four years flat on each simple possession count, with all the sentences running concurrently.
Defendant raises the following points on appeal:
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