State v. Morrison

• Decision Date: 26 July 2006
• Citation: 902 A.2d 860,188 N.J. 2
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Lewis B. MORRISON, Defendant-Appellant.
• Court: New Jersey Supreme Court

902 A.2d 860

188 N.J. 2

STATE of New Jersey, Plaintiff-Respondent, v. Lewis B. MORRISON, Defendant-Appellant.

Supreme Court of New Jersey.

Argued May 1, 2006.

Decided July 26, 2006.

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Michael J. Rogers, Somerville, argued the cause for appellant (McDonald & Rogers, attorneys).

Steven C. Lember, First Assistant Prosecutor, argued the cause for respondent (John Patrick Barnes, Hunterdon County Prosecutor, attorney).

Lawrence S. Lustberg, Newark, argued the cause for amicus curiae, Association of Criminal Defense Lawyers of New Jersey (Gibbons, Del Deo, Dolan, Griffinger & Vecchione, attorneys; Mr. Lustberg and Elizabeth Kurtz, on the brief).

Justice ALBIN delivered the opinion of the Court.

In the early morning hours of September 27, 2002, Daniel Shore and his friend defendant Lewis B. Morrison trolled the streets of Plainfield for drugs. When they found a dealer, defendant took their pooled money and bought four decks of heroin— little glassine packets containing the powdery substance. Afterwards, defendant gave two of the decks to Shore. Later that day, Shore died of a heroin overdose.

A grand jury returned an indictment charging defendant with distributing the heroin to Shore and, as such, with causing Shore's drug-induced death. Based on the grand jury record, the trial court concluded that the evidence could not support a finding that defendant distributed the heroin to Shore, but only that defendant and Shore jointly purchased and possessed the drugs for their personal use. For that reason, the court dismissed the distribution and drug-induced death charges. The Appellate Division overruled the trial court, finding that the evidence raised a jury issue, and reinstated the charges. We now reverse. We agree with the trial court that the evidence revealed only that defendant and Shore were joint purchasers and possessors of the heroin and therefore no act of distribution occurred between the two. Accordingly, we hold that the trial court did not abuse its discretion in dismissing the distribution and strict liability for drug-induced death charges.

I.

A.

On the evening of September 26, 2002, Shore and defendant Morrison, both twenty-four years old, were playing in a band together.¹ After band practice, which ended between 1:00 and 2:00 a.m., they went to defendant's home in Raritan Township. Defendant lived there with his parents, who apparently were not home at the time. At approximately 3:00 a.m., with defendant behind the wheel, defendant and Shore drove to Plainfield to buy heroin. Defendant was a heroin addict, and Shore had experimented with the drug on an infrequent basis. To make the purchase, they pooled their money, Shore contributing thirty dollars and defendant ten dollars. Seemingly familiar with the area, defendant drove around Plainfield until an unknown man appeared on a bicycle. They honked the horn and, in return, the man whistled. In exchange for forty dollars, the man gave defendant four decks of heroin. Defendant placed the decks in his pocket and, after driving out of the city, gave one to Shore. While still in the car, Shore snorted half of the deck. When they returned to defendant's home, defendant handed Shore a second deck of heroin. Shore entered a downstairs bathroom and shut the door, where he presumably ingested the remainder of the heroin. At the same time, defendant walked upstairs where he injected his two bags of heroin. When defendant returned downstairs, he and Shore "talked about how messed up they both were." The two young men then went to sleep. Sometime that afternoon, defendant injected another dose of heroin from the remnants of two bags he had purchased earlier and fell back asleep.

At about 6:00 p.m., defendant went outside to feed his horses. On his return, he found Shore lying on the couch, blue and not breathing. Unable to wake up Shore, defendant administered CPR. Sometime between 6:10 and 6:20 p.m., a friend, Gerald DeMelio, stopped by defendant's house. As DeMelio entered the house, he saw defendant in a frantic and excited state and Shore lying on the couch. Defendant told DeMelio, "You've got to help me get him to the hospital.... You've got to help me get him out to the car. We have to take him to the hospital." DeMelio asked defendant why he did not simply call 911, but defendant was "set on getting [Shore] out into a vehicle to take him to the hospital." Defendant and DeMelio carried Shore to the rear passenger seat of Shore's jeep, but then were unable to find the keys to the vehicle. After a panicked search, DeMelio discovered what he thought were the keys, threw them to defendant, and left for work.

At approximately 6:48 p.m., defendant dialed 911, and shortly afterwards, Raritan Township Police Department officers and paramedics responded to the scene. When Patrolmen David Carson and Gary Brewer arrived, they observed defendant attempting to perform CPR on Shore, who was lying face up in the driveway. Patrolmen Carson and Brewer, both trained Emergency Medical Technicians, took over the CPR efforts. In response to questioning from Patrolman Carson, defendant repeatedly denied that Shore had taken an "illegal drug," mentioning only that Shore was on some prescription medications. Significantly, an off-duty paramedic on the scene had with him a drug called Narcan, which is administered to counter the effects of a heroin overdose. Because of defendant's deceptive responses, the Narcan was not immediately given to Shore.

Upon his arrival, Raritan Township Police Detective Benedict Donaruma, Jr., also questioned defendant, who again "denied any knowledge of any type of illegal narcotics." Based on defendant's constricted pupils and slow speech, it was obvious to Detective Donaruma that defendant was on drugs and not being truthful. Despite defendant's misleading responses, paramedics by that time had administered the Narcan.

Police officers next took defendant to headquarters, where he was advised of his Miranda² rights. After a brief line of questioning by Detective Donaruma, defendant broke down crying. Defendant explained that he had a heroin addiction, had been dishonest in his earlier answers, and wanted to tell the truth. Defendant next provided a narrative of the trip that he and Shore took to Plainfield and the events that unfolded.

In the meantime, Shore had been transported to a hospital, where he was pronounced dead. Dr. Daksha Shah of the Hunterdon County Medical Examiner's Office conducted an autopsy and determined that Shore had died of a heroin overdose. Dr. Shah believed that Shore had died quickly, but noted that "sometimes" people in distress from an overdose "do revive and respond to" Narcan. Dr. Shah found the presence of antidepressant medication in Shore's blood, but ruled that out as a potential cause of death.

B.

A Hunterdon County Grand Jury returned an indictment charging defendant with first-degree strict liability for drug-induced death, in violation of N.J.S.A. 2C:35-9 (count one); second-degree reckless manslaughter, in violation of N.J.S.A. 2C:11-4(b)(1) (count two); and third-degree distribution of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count three). Defendant moved to dismiss the indictment on the basis that the prosecutor failed to present sufficient evidence to support the distribution and strict liability for drug-induced death charges and to properly instruct the grand jury on the reckless manslaughter charge.

The trial court dismissed the counts charging distribution and strict liability for drug-induced death, reasoning that there was no evidence to support the conclusion that defendant solely possessed and therefore distributed the heroin to Shore. The court determined that Shore "contributed $30 of the $40 used to buy the total amount of heroin ingested by the two friends" and that "[h]e accompanied the defendant to Plainfield on their quest to buy drugs." The court also determined that "[Shore] clearly exercised sufficient control over the heroin purchase so as to facilitate his receiving some immediately" and that the two "men divided the drugs equally at the defendant's home." Thus, "[e]ven taking all inferences in a manner most favorable to the state" in the grand jury setting, the court could not conclude "that the drugs were not equally owned and possessed by both of these individuals." "[T]hat defendant may have been a more experienced heroin user or purchaser" and "engaged in the street transaction without [Shore]'s direct assistance" did not alter the court's view that Shore had "the capacity to exercise dominion over what he considered his portion of the undivided heroin." In short, because Shore had joint and constructive possession of the heroin, defendant could not have distributed the illicit drug to him. Accordingly, the lack of evidential support for the distribution and drug-induced death counts required dismissal of those charges without prejudice.³

The court also dismissed without prejudice the reckless manslaughter count because the grand jury received inadequate instructions on the type of reckless conduct that would constitute such a charge. The court noted that the absence of an adequate instruction might have led the grand jury to believe that manslaughter was a "legal alternative to the drug-induced death charge." The court, however, did not foreclose the possibility of a prosecution on a theory that Shore's death was caused by defendant's providing false information to the police regarding Shore's ingestion of drugs. The State appealed.

C.

In an unpublished decision, the Appellate Division reversed the trial court's dismissal of the distribution and drug-induced death counts. The panel recognized the concept, articulated in State v. Lopez, 359 N.J.Super. 222, 233, 819 A.2d 486 (App. Div.), certif. granted sub nom. State v. Garcia, 177 N.J. 576, 832 A.2d 326, appeal dismissed per...