State v. Schmidt

• Decision Date: 17 November 1986
• Citation: 213 N.J.Super. 576,517 A.2d 1226
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Robert SCHMIDT, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 576

213 N.J.Super. 576

517 A.2d 1226

STATE of New Jersey, Plaintiff-Respondent, v. Robert SCHMIDT, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 16, 1986.

Decided Nov. 17, 1986.

Mark P. Denbeaux, Newark, on behalf of appellant.

John J. Scaliti, Deputy Atty. Gen., on behalf of respondent (W. Cary Edwards, Atty. Gen., attorney; Jay Hindman, Deputy Atty. Gen., of counsel and on the brief).

Before Judges FURMAN, DREIER and STERN.

The opinion of the court was delivered by

STERN, J.A.D.

The principal issue on this appeal relates to the jurisdiction of New Jersey to prosecute a person outside the state for possessory offenses occurring within the state.

Defendant and codefendants Kahn, Athan and Whittaker were indicted for possession of cocaine, contrary to N.J.S.A. 24:21-20(a)(1) (count one); possession of cocaine with intent to distribute, contrary to N.J.S.A. 24:21-19(a)(1) (count two); possession of cocaine in an amount of one ounce or more with at least 3.5 grams of pure free base, contrary to N.J.S.A. 24:21-20(a)(2) (count three); and possession of the pure free base cocaine with intent to distribute, contrary to N.J.S.A. 24:21-19(a) and (b)(2) (count four). These possessory offenses were all alleged to have occurred in Edison, Middlesex County on April 28, 1984. Defendant, the three codefendants indicted in counts one through four and defendant's wife were also charged with conspiracy to distribute and/or possess with intent to distribute cocaine "on or between the 1st day of April and the 28th day of April 1984" in Edison and Woodbridge, Middlesex County, contrary to N.J.S.A. 24:21-19(a)(1), N.J.S.A. 2C:5-2 and N.J.S.A. 24:21-24 (count five).

Tried by a jury together with codefendant Whittaker, defendant was convicted on all five counts. The court merged counts one through three and five into count four "for purposes of sentencing" and committed defendant to the custody of the Commissioner of Corrections for 20 years with five years to be served before parole eligibility. See N.J.S.A. 2C:43-1b; 24:21-19(b)(2). A $5,000 fine and $25 penalty were also imposed. Defendant appeals and argues:

POINT I THE INDICTMENT WAS BASED UPON INSUFFICIENT EVIDENCE.

POINT II DEFENDANT WAS DENIED A MEANINGFUL DECISION ON HIS MOTION TO SUPPRESS EVIDENCE.

POINT III THE DEFENDANT DID NOT RECEIVE A FAIR TRIAL.

POINT IV THE POST TRIAL MOTIONS SHOULD HAVE BEEN GRANTED.

POINT V PUBLIC POLICY REQUIRES A RE-EXAMINATION OF STATE V. BEGYN, [sic] 34 N.J. 35 1961. (Not Raised Below).

POINT VI THE SENTENCE WAS EXCESSIVE.

On the evening of April 28, 1984 Trooper Charles Atkinson stopped a 1984 Ford with Florida plates being driven at between 75 and 80 m.p.h. by Athan in which Whittaker was riding as a passenger, on the New Jersey Turnpike.

After stopping the vehicle, Trooper Atkins determined that the vehicle had been rented from the Hertz Company in the name of defendant's wife. The trooper observed two cartons of untaxed cigarettes in the front seat of the vehicle and an open beer can on the passenger side floor. Both occupants were then directed to get out of the car, as the trooper intended to arrest both men for the open container and cigarettes. A pat-down search for weapons revealed a small quantity of marijuana on Athan. After the men were placed in the patrol car, a check of the interior of the vehicle revealed a locked glove compartment. When asked what was in the compartment, both Whittaker and Athan responded that they did not know and that it had been locked since they got the car. Athan then gave the trooper consent to open the glove compartment and Whittaker gave him the key. When it was opened a bag containing cocaine, later determined to be partially pure free base, was found. Both men were then arrested for possession of the cocaine.

At the police station, Detective Maopica of the State Police questioned Athan. Maopica told Athan that, because one-half pound of cocaine was in the vehicle he was driving, he would be "tied up in jail for a while" unless he cooperated with the police.

Athan agreed to cooperate and told investigators that defendant had hired Whittaker and him to transport cocaine to New York. According to Athan, who testified at the trial, the cocaine was to be transported to codefendant Kahn's house on Long Island. On the night before Whittaker and he left for New York, Athan went to Tampa airport with defendant and his wife where defendant rented the car in her name. Athan stated that after picking up the car, defendant and he went back to defendant's trailer home from which defendant obtained a bag of cocaine which Athan put into the glove compartment.

After being arrested and agreeing to cooperate, Athan, with the assistance of Detective Maopica and some others, telephoned defendant who had flown to New York where he was staying with codefendant Kahn. Athan told defendant (with the police monitoring) that the car had broken down on the Turnpike and was disabled with a transmission problem in a service area. They discussed contacting Hertz, and defendant apparently endeavored to do so unsuccessfully. When defendant called Athan back at the number given, Athan asked if he should call the highway patrol, and defendant said no. Athan reported that he thought the highway patrol was "coming out." According to Detective Maopica, defendant sounded "excited" by the suggestion.

Defendant then stated that he would drive to New Jersey and pick up Athan and Whittaker at the service area on the Turnpike. He arrived about two hours later at the area where Athan and the car had been taken by the police. The police had rigged the car not to work. Detective Maopica was dressed in mechanic's clothes, and other troopers were standing close by to arrest defendant. When defendant arrived at the scene with Kahn, he said a few words of greetings to Athan and unsuccessfully tried to start the car. Defendant indicated that the car should be abandoned and opened the trunk to transfer the luggage into Kahn's car. At that time defendant did not appear concerned about cocaine or contents of the glove compartment. Both Kahn and Schmidt were then arrested.

In exchange for his cooperation and his agreement to testify against Schmidt at trial, Athan pleaded guilty to possession of cocaine with intent to distribute and received a noncustodial probationary sentence.

Defendant testified on his own behalf. According to defendant, he and his wife lived in Tampa, Florida where defendant was in the business of buying old or damaged motor vehicles, reconditioning and repairing them, and selling them for a profit. Defendant travelled all over the United States to pick up trucks, cars and vans to recondition and sell.

Defendant met Athan through Terry Burton who was doing some work for defendant. In exchange for the work, defendant was to deliver a van to Burton. According to defendant, he hired Athan to drive to New York in the rental car with codefendant Whittaker. Once in New York, Athan and Whittaker were to drop off the rental car, pick up two vans and drive them back to Florida.

According to defendant, Athan volunteered to make the trip as a second driver, claiming to need the money. Athan was to return to Florida with a second vehicle to be obtained in New York.

Defendant claimed that his wife rented the car in her name because she worked for Delta Airlines and received a discount. Defendant also claimed that he flew to New York because he flies free on Delta as a result of his wife's employment.

Defendant denied that he took Athan back to his trailer after picking up the rental car and denied having cocaine in his mobile home. According to defendant, Athan had previously been to his trailer and was therefore familiar with it. Defendant also testified that he and his wife had rented the trailer to tenants who were living there during April 1984 immediately prior to the events alleged in the indictment, and that he and his wife were living on a boat.

Detective Ronald Dixon testified as an expert that one-half pound of cocaine was most likely intended for distribution and sale. He further testified that rental cars are commonly used for transportation of drugs interstate since they prevent tracing ownership and because rental cars prevent seizure of the drug transporting vehicle.

A

Defendant attacks the sufficiency of the evidence before the grand jury and the assistant prosecutor's recitation of the law concerning the concept of possession. Trooper Atkinson was the sole witness before the grand jury. He advised the jury of Athan's cooperation, Athan's report that the car was rented in the name of Mrs. Schmidt, Athan's call to defendant and their conversations, and defendant's arrival in New Jersey. The trooper, who had been involved in many drug-related arrests, offered his opinion that defendant had been involved in an activity resulting from a prior agreement to transport drugs to New York.

The prosecutor then presented to the grand jury for its "consideration" the possessory offenses against Athan and Whittaker and a conspiracy allegation against Athan, Whittaker, Kahn and defendant. After some discussion, the following colloquy occurred:

A GRAND JUROR: ... Can you convict two men on Long Island with distribution and not the two men in the car?

[PROSECUTOR]: You mean can you charge the charges that I laid out for you for possession and possession with intent to distribute for the two people arrested in the car? They were Whittaker and Athan. The two people in Long Island along with the two people in the car are charged with conspiracy. All four of them are charged with conspiracy.

I would add at this point if you want you could consider, based upon the evidence you have heard, there is no formal charge, you could consider including Carolyn Schmidt in the conspiracy count.

A GRAND JUROR: All four conspired to have it transported. The two men on Long Island...