State v. Puckett

• Citation: 67 N.J.Super. 365,170 A.2d 430
• Decision Date: 04 April 1960
• Docket Number: No. A--98,A--98
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Ralph Wesley PUCKETT, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 365

67 N.J.Super. 365

170 A.2d 430

STATE of New Jersey, Plaintiff-Respondent, v. Ralph Wesley PUCKETT, Defendant-Appellant.

No. A--98.

Superior Court of New Jersey, Appellate Division.

Submitted March 15, 1960.

Decided April 4, 1960.

Ralph Wesley Puckett, defendant-appellant, pro se.

Brendan T. Byrne, Essex County Prosecutor, Newark, for plaintiff-respondent (Milton N. Diamond, Livingston, of counsel and on the brief).

Before Judges PRICE, SULLIVAN and FOLEY.

The opinion of the court was delivered by

PRICE, S.J.A.D.

Defendant seeks to reverse his conviction in the County Court, Law Division, based on the verdict of a jury which found that on November 16, 1958 he unlawfully possessed narcotics in violation of the provisions of R.S. 24:18--4, N.J.S.A. Defendant contends that: (a) his conviction, as a disorderly person, entered on November 17, 1958 in the municipal court on his plea of guilty of being a user of narcotics in violation of N.J.S. 2A:170--8, N.J.S.A., barred his present conviction for possession of the drug; (b) his written confession of guilt of possessing narcotics, received in evidence at the trial of the instant case, was the product of coercion and its admission therefore constituted prejudicial error; (c) his conviction was against the weight of the evidence; (d) his counsel made an unwarranted and prejudicial concession at trial; and (e) two persons (he and one Milton L. Sims, arrested with him under the circumstances hereinafter outlined) cannot legally be convicted of possessing the same narcotic specimen.

The factual situation revealed by the record is that, on November 16, 1958 at 6:40 P.M., a state trooper, Herder, stopped defendant who was then driving his car in Newark in a southerly direction on the New Jersey Turnpike. Sims was in the automobile at the time. Two other members of the state police arrived promptly and Puckett and Sims were taken to a police station and the car searched. Under a floor mat on the driver's side of the car was found a cellophane packet containing a white powder later diagnosed as heroin. Some hypodermic needles, a syringe, a charred teaspoon, a headache powder and four or five empty bottles labelled paregoric were also found in the car.

Statements were taken from Puckett and Sims and were typewritten and signed the same evening. The statement, concededly signed by defendant and admitted in evidence over his objection, was as follows:

'Statement of: Ralph Wesley Puckett, 1595 Beecher St., Atlanta, Ga.--W--M--30.

'Taken at: N.J. State Police Station, Turnpike, Newark, N.J.,

'Time & Date: 10:50 P.M., Sunday, Nov. 16, 1958--E.S.T.

'Questioned: Det. 2/c V. Galassi and Inv. T. Tyrrell No. 970, N.J. State Police.

'Witness: Tpr. C. Herder No. 1369, S.P., Newark, N.J.

'Q. Ralph Wesley Puckett, I am Inv. Tyrrell and this is Det. Galassi, both of us members of the N.J. State Police. It is our duty to ask you some questions with regard to the circumstances surrounding the apprehension of you on the N.J. Turnpike, Newark, Essex County, N.J., this date, while operating a 1951 Pontiac sedan, reg. 1--95121--Ga., in which was found a packet containing a white powder, appearing to be heroin, by Tpr. Herder. I tell you at this time that whatever you say must be entirely on your part and without the use of force, fear, threat or promise of (sic) lienency (sic) on our part. I further tell you that anything you say can and may be used for or against you or any other person or persons in a criminal prosecution. Ralph Wesley Puckett, are you willing to make a statement under the conditions (sic) outline (sic) above? A. Yes.

'Q. What is your full name, age and address? A. Ralph Wesley Puckett, 1595 Beecher St., Atlanta, Ga. Thirty.

'Q. Will you now tell me, in your own words, what happened? A. Sims and myself left Florida about Sunday and drove (sic) thru (sic) to New York. Arrived in New York last night. And was looking to buy some heroin because he was sick from using paregoric. We saw two men who looked like junkies and I asked them did they know where we could score for some heroin. We went and copped. We fixed that and scored the following day for enough stuff to last us two or three days and was headed out of New York City and were stopped on the turnpike.

'Q. Who owns the car which you were driving? A. I do.

'Q. Will you describe this car? A. '51 Pontiac, two tone light grey, Georgia registration.

'Q. (Det. Galassi) I show you a package containing white powder which was found under the floor mat on the driver's side of the car you were operating and I ask you is this the package you bought in New York City? A. Yes.

'Q. How much did you pay for this package? A. One hundred and eighty dollars.

'Q. How much of the one hundred and eighty dollars did you pay? A. I paid ninety of it.

'Q. Did you shoot any of the heroin for which you paid $180.00? A. Yes, I took one shot.

'Q. Do you have anything further to tell me? A. I think that about covers it.

'Q. Will you now read this statement, consisting of two typewritten pages, and if it is true and correct to the best of your knowledge and belief, will you sign it? A. Yes.

'Witness Victor T. Galassi

'Witness T. P. Tyrrell

'Witness Tpr. Charles R. Herder

'Signature: Ralph W. Puckett

'Completed at 11:35 P.M., Nov. 16, 1958.'

The three members of the state police who were present at the taking of the statement, Detective Galassi, Investigatort Tyrrell and Trooper Herder, testified that defendant's story as it appeared in the statement was recorded directly on the typewriter as he was being interrogated. The chief chemist and toxicologist for the New Jersey State Police, John P. Brady, to whom the package found in the car had been given for analysis, testified that the specimen 'had 6.310 grams of total weight of drug of which 9 and 1/2 percent was heroin or diacetyl morphine * * *'; that the specimen was 'a direct derivative of the poppy and a narcotic drug.'

We initially consider appellant's contention that, in view of his aforesaid prior conviction for violating N.J.S. 2A:170--8, N.J.S.A., his indictment and prosecution under R.S. 24:18--4, N.J.S.A. placed him in double jeopardy. The essential difference between the crimes specified in the respective statutes was noted in State v. Cruz, 15 N.J.Super. 577, 83 A.2d 634 (Cty.Ct.1951), in which the court rejected the precise contention defendant makes in the case at bar. Defendant relies on State v. Labato, 7 N.J. 137, 80 A.2d 617 (1951), but its inapplicability to the issue was specifically determined in Cruz, supra. Judge Hartshorne there said (15 N.J.Super., at pp. 579--580, 83 A.2d 634, 635):

'Defendants claim that under State v. Labato, 7 N.J. 137, 80 A.2d 617 (1951), by reason of above convictions as disorderly persons, the present accusations place them in double jeopardy, contrary to the provisions of the New Jersey Constitution, Art. I, par. 11, and the somewhat broader common law principle. More specifically, they argue that since to be a drug addict one must have had possession of the drug to which he is addicted, their possession of the heroin July 18, on which the present accusations are admittedly based, is an essential ingredient of the disorderly persons offense of which they have previously been convicted.

'But this contention indicates a misunderstanding both of the facts underlying their previous conviction and of the principle enunciated in State v. Labato. As our highest court itself states in such case: 'The true test of former jeopardy would seem to be whether the evidence necessary to sustain the second indictment would have been sufficient to secure a legal conviction on the first.' (Ibid., 7 N.J. at page 144, 80 A.2d (617)).

'Here the evidence necessary to sustain the present (second) accusation is the possession of the heroin on July 18. But this evidence obviously would not 'have been sufficient to secure a legal conviction on the first' charge. For the charge of being a drug addict depends not on a single, simple, possession of narcotics, whether legal or illegal, but upon the habitual use of narcotics. Clearly the facts on which the State relied on the disorderly persons charge was not the single possession on July 18, but the written confessions by the defendants as to their habitual use of narcotics previously. Obviously these facts alone can have induced defendants to plead guilty to such charge.

'Thus, in fact, 'the evidence necessary to sustain the second (i.e., the instant) indictment' may well not have been at all pertinent to the first conviction. Certainly it did not suffice to sustain such conviction. Far different is the present situation, where one prosecution is based on possession, the other on habitual use, from the situation in the Labato case where 'the two prosecutions concern the one supposed act of possession.''

Cf. State v. McFadden, 32 N.J.Super. 258, 260, 108 A.2d 204 (App.Div.1954); State v. Campisi, 47 N.J.Super. 455, 136 A.2d 292 (App.Div.1957). In the latter case, in reviewing the legality of defendant's conviction for the unlawful possession of a narcotic drug, we noted (47 N.J.Super. at p. 457, 136 A.2d at page 293) that the defendant challenged 'the admission of evidence * * * of alleged unlawful use of narcotics on his part, insisting that the admission of such evidence, Tending to prove a separate criminal offense, was erroneous and prejudicial * * *.' (Emphasis supplied.) In approving the trial court's charge, outlining the limited significance of the evidence of defendant's use of narcotics as bearing on the charge of possession, we recognized (47 N.J.Super. at p. 459, 136 A.2d 292) that two separate and distinct offenses were involved.

In State v. Hoag, 35 N.J.Super. 555, 114 A.2d 573 (App.Div.1955), affirmed 21 N.J. 496, 122 A.2d 628 (1956); 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), Judge Jayne (35 N.J.Super. at pp. 558--560, 114 A.2d 573) marshalled the decisions in our jurisdiction...