STATE OF NEW JERSEY VS. CHRISTOPH BARNES (16-09-1178, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0659-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPH BARNES, a/k/a
CHRISTOPHER JOSEPH BARNES,
and RADELL JACKSON,
Defendant-Appellant.
_______________________________
Submitted January 29, 2020 – Decided March 20, 2020
Before Judges Whipple and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 16-09-1178.
Joseph E. Krakora, Public Defender, attorney for
appellant (Zachary Gilbert Markarian, Assistant
Deputy Public Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the brief).
PER CURIAM
Defendant appeals from his July 24, 2018 judgment of conviction after a
jury trial. We reverse.
Based on our review of the record we discern that on June 8, 2016, Officer
Gregory Wojtowicz of the Jersey City Police Department was in the backseat of
an unmarked police vehicle parked on Bostwick Avenue. He observed a Honda
Civic parked on Bostwick Avenue and, minutes later, a Honda Accord parked
in that same area. Wojtowicz watched the driver of the Civic, later identified as
defendant, exit the car and proceed toward the driver of the Accord, later
identified as co-defendant, Jamar McGeachy. McGeachy walked towards
defendant and handed him a black bag. Both individuals then returned to their
cars and drove away at a high rate of speed.
Wojtowicz radioed nearby officers to stop both cars. Officer Ivan
Rosario, saw the Civic, activated his lights, and drove "at an angle" toward the
front of the Civic, which was stopped at a traffic light. Defendant then crashed
the Civic into the car behind it, an unmarked police SUV.
A female passenger ran from the Civic but was quickly detained by police.
The officers then looked inside the car, saw defendant in the driver's seat, and
observed a black plastic bag which contained what the officers suspected to be
a controlled dangerous substance (CDS). The contents of the bag later tested
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positive for heroin. Both defendant and the female passenger were arrested and
searched. The officers also stopped the Accord and placed both of its occupants
under arrest after learning that CDS was found in the Civic. No drugs were
found in the Accord.
Defendant was indicted for third-degree possession of heroin, N.J.S.A.
2C:35-10(a)(1); second-degree possession of heroin, with the intent to
distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2); third-degree
possession of heroin, with the intent to distribute within 1000 feet of a school
zone, N.J.S.A. 2C:35-7(a); second-degree possession of heroin, with the intent
to distribute within 500 feet of certain public property, N.J.S.A. 2C:35-7.1(a);
second-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1)/2C:35-5(b)(2); and
fourth-degree attempting to hinder apprehension by flight, N.J.S.A. 2C:29-
2(a)(2).
At trial, defendant testified that he retrieved the heroin found in the Civic
from a "stash" he kept inside a doghouse in a backyard. Defendant denied
receiving the heroin from McGeachy and testified that he and McGeachy, his
childhood friend, only saw each other in passing as they briefly exchanged
greetings. The State dismissed the distribution charge, as to defendant but
prosecuted it against McGeachy.
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The judge charged the jury correctly regarding the N.J.S.A. 2C:35-
10(a)(1) possession charge and the second-degree possession with the intent to
distribute under N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2). However,
when instructing the jury for third-degree possession of heroin with the intent to
distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7(a), the judge
erroneously used, at least in part, the distribution charge, under N.J.S.A. 2C:35 -
5.
The jury acquitted defendant of the hindering charge but returned a guilty
verdict on the possession and possession with intent to distribute charges: third-
degree possession, N.J.S.A. 2C:35-10(a)(1); second-degree possession with
intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(2); third-degree possession
with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35 -7(a);
and second-degree possession with intent to distribute within 500 feet of public
property. The jury acquitted McGeachy on all counts.
The judge sentenced defendant to eight years with four years parole
ineligibility to run concurrent with a pending federal parole violation. This
appeal followed.
Defendant raises the following issues on appeal:
POINT I: MR. BARNES'S CONVICTIONS MUST BE
REVERSED BECAUSE THE TRIAL COURT
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INCORRECTLY CHARGED THE JURY ON
DISTRIBUTION RATHER THAN POSSESSSION
WITH INTENT TO DISTRIBUTE FOR THE
SCHOOL ZONE CHARGE AND FAILED TO
DEFINE INTENT TO DISTRIBUTE FOR THREE
COUNTS FOR WHICH IT WAS AN ELEMENT.
(NOT RAISED BELOW).
POINT II: THE TRIAL COURT ERRED IN
SENTENCING MR. BARNES ABOVE THE LEGAL
RANGE ON HIS THIRD-DEGREE CONVICTIONS
AND IN PENALIZING MR. BARNES FOR
EXERCISING HIS RIGHT TO TESTIFY. (NOT
RAISED BELOW).
The State concedes the trial court erroneously instructed the jury that the
fourth count of the indictment charged defendant with distribution of a CDS near
school property, when in fact, the fourth count charged possession with intent
to distribute in a school zone, N.J.S.A. 2C:35-7(a). Nevertheless, the State
contends the jury was properly instructed as the fourth count was "bookended
by two correct charges" which informed the jury that defendant was charged
with possession with the intent to distribute.
"Proper jury instructions are essential to ensuring a fair trial." State v.
Robinson, 165 N.J. 32, 40 (2000) (citing State v. Green, 86 N.J. 281, 287
(1981)). However, when a defendant fails to object to an error regarding a jury
charge, we review for plain error. State v. Funderburg, 225 N.J. 66, 79 (2016).
"Under that standard, we disregard any alleged error 'unless it is of such a nature
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as to have been clearly capable of producing an unjust result.'" Ibid. (quoting
R. 2:10-2).
The trial court has an "'independent duty . . . to ensure that the jurors
receive accurate instructions on the law as it pertains to the facts and issues of
each case, irrespective of the particular language suggested by either party.'"
State v. Baum, 224 N.J. 147, 159 (2016) (quoting State v. Reddish, 181 N.J. 553,
613 (2004)). "[W]e recognize that the failure to charge the jury on an element
of an offense is presumed to be prejudicial error, even in the absence of a request
by defense counsel." State v. Federico, 103 N.J. 169, 176 (1986) (citations
omitted). The unique role of the jury in criminal cases precludes courts from
"speculat[ing] about how the jury would have determined the matter if it had
been properly charged." Id at 177 (first citing State v. Crisantos, 102 N.J. 265
(1986); and then citing State v. Grunow, 102 N.J. 133, 148-49 (1986)).
In appropriate situations, the failure to define terms for the jury may be
deemed harmless, State v. Wallace, 158 N.J. 552, 558-60 (1999); however,
because jury instructions are so essential to a fair trial, an "error in a jury
instruction that is 'crucial to the jury's deliberations on the guilt of a criminal
defendant' is a 'poor candidate[] for rehabilitation' under the plain error theory ."
State v. Burns, 192 N.J. 312, 341 (2007) (quoting. State v. Jordan, 147 N.J.
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409,422 (1997)). "Nevertheless, any alleged error also must be evaluated in
light 'of the overall strength of the State's case.'" Ibid. (quoting State v.
Chapland, 187 N.J. 275, 289 (2006)). Moreover, we must also consider the error
"in light of 'the totality of the entire charge, not in isolation .'" Ibid. (citation
omitted).
In Frederico, the Supreme Court held a trial court's failure to charge a jury
on an element of an offense is presumed to be prejudicial error. 103 N.J. at 176.
There, the jury convicted the defendant of kidnapping and the judge imposed a
sentence for first-degree kidnapping, however, the judge never supplied the jury
with the charge to determine whether the victim was released unharmed, a factor
which distinguishes first- from second-degree kidnapping. Id. at 172-76.
Although the jury did not deliberate on this factor, the State urged the Court to
mold the verdict to constitute a conviction for second-degree kidnapping based
on the premise that the jury implicitly found confinement for a substantial period
with purpose to terrorize, the essential elements of second-degree kidnapping.
Id. at 176-77. The Court refused and explained:
The suggestion, however, would force us to speculate
about how the jury would have determined the matter if
it had been properly charged. . . . Our respect for the
unique role of the jury in criminal cases precludes us
from trying to salvage the conviction by tampering with
the jury's deliberations. The only alternative is to
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reverse the kidnapping conviction and remand the
matter for a new trial. That conclusion also pertains to
the convictions that are unrelated to the kidnapping
count, which was the most serious charge against [the
defendant].
[Id. at 177.]
Here, we also cannot speculate on how the jury would have determined
the matter had it been appropriately charged. We reject the State's suggestion
that the error of the trial court, reading the distribution instruction, is cured by
the fact that the erroneous instruction was "bookended" by charges which
informed the jury that defendant was charged with possession with the intent to
distribute. Adopting this suggestion would require this court to tamper with the
jury's deliberations and ignore the fact that most laypersons are uneducated in
law and therefore require a plain and clear exposition of the issues . See Green,
86 N.J. at 288 (noting that most laypersons are uneducated in the law, do not
understand lawyer's jargon, and therefore the jury's guidance and instruction
requires plain and clear exposition of the issues).
This error is further compounded by the fact that the trial judge failed to
adequately provide a definition of the element of "intent to distribute" on any of
the counts charging defendant with such an intent.
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On count four, possession of a CDS with the intent to distribute within
1000 feet of a school zone, the trial court gave the following instruction:
Count [four] charges . . . [defendant] with distributing
a controlled dangerous substance near school property
used for school purposes. The statute upon [which] this
charge is based reads as follows:
"Any person who violates subsection of New
Jersey Statute 2C:35-5 by distributing a controlled
dangerous substance within 1,000 feet of any school
property or school bus is guilty of a crime."
In order for you to find the defendant guilty of
this charge, the State must prove beyond a reasonable
doubt that the defendant knowingly or purposefully
distributed a [CDS]. As previously instructed, the
elements are that S-13 in evidence is heroin, that the
defendant distributed S-13 on the date alleged in the
indictment. . . . That the defendant acted knowingly or
purposefully in distributing S-13.
In addition to proving possession with intent to
distribute, the State must also prove beyond a
reasonable doubt that this act occurred within 1,000
feet of any school property.
....
If you find the state has proven all of these
elements beyond a reasonable doubt, then you must
return a verdict of guilty. On the other hand, if you find
the State has failed to prove any of these elements
beyond a reasonable doubt, you must find the defendant
not guilty.
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While instructing the jury with regard to the charges of possession of a
CDS with the intent to distribute, the judge stated:
Count [three] of the indictment charges . . .
[defendant] as follows: the pertinent part of the statute
on which this indictment is based reads, except as
authorized by the statute, it shall be unlawful for any
purpose - - person, rather - - knowingly or purposely,
to possess or have under his control with intent to
distribute a controlled dangerous substance. . . . Heroin
is a dangerous substance prohibited by the statute.
[T]he elements which the State must prove
beyond a reasonable doubt to establish guilt of the
defendants on this count of the indictment. They are as
follows: S-13 in evidence is heroin. The defendant[]
possessed or had under their control S-13 in evidence.
The defendant[], when [he] possessed or had under
their control S-13 in evidence, had the intent to
distribute S-13, and that the defendants acted
knowingly or purposely in possessing or having under
their control with the intent to distribute S-13 in
evidence.
Instructing the jury on second-degree possession of a CDS with intent to
distribute within 500 feet of certain public property, the judge stated:
In order for you to find the defendants guilty on
this count of the indictment, the State must first prove
beyond a reasonable doubt that the defendants
knowingly or purposely possessed with intent to
distribute a controlled dangerous substance. The
elements of possession with intent to distribute of [sic]
a controlled dangerous substance are:
(1) That S-13 in evidence is heroin;
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(2) That defendants possessed or had S-13 under their
control;
(3) That defendants had the purpose to distribute S-13
when the possessed it or had it in their control . . . .;
(4) That when the defendants possessed S-13 with the
purpose to distribute it, they were within 500 feet of a
public housing facility, park, or building.
The error in these instructions resides within the important distinction
between distribution and possession with the intent to distribute. The Controlled
Dangerous Substances Act, N.J.S.A. 2C:35-2, defines "distribute" to mean "to
deliver other than by administering or dispensing." The Act further defines
"deliver" as "the actual, constructive, or attempted transfer from one person to
another . . . ." N.J.S.A. 2C:35-2. Criminal possession has also been defined as
the exercise of dominion and control over a thing. See State v. Brown, 80 N.J.
587, 596 (1979) (noting that criminal possession signifies control and dominion
over an item).
Possession with intent to distribute CDS, however, requires proof of an
additional element, that defendant possessed or had the CDS under his control
and acted knowingly and purposefully in possessing or having CDS under his
control with intent to distribute. Therefore, failure to adequately define "intent
to distribute" could have the effect of depriving the jury of the guidance needed
during their deliberations. We do recognize the words "intent" and "distribute"
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are readily known to lay persons and the trial court's omission may not have
been fatal to the jury's deliberation. Indeed, defendant was found in possession
of twenty seven and one half grams of heroin and testified that his plan was to
sell the drugs at a loss so that he could pay for an apartment. However, because
the jury was also mischarged as to the crime of distribution, we cannot conclude
under the totality of the circumstances the charge had no capacity produce an
unjust result. Thus, we reverse and remand for a new trial.
Although we are not required to reach defendant's argument that his
sentence was illegal, we note the State concedes the trial court sentenced
defendant above the legal range for the possession count. "[A]n illegal sentence
is one that 'exceeds the maximum penalty provided in the Code for a particular
offence' or a sentence 'not imposed in accordance with the law.'" State v.
Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162 N.J. 240, 247
(2000)).
Here, the trial court sentenced defendant to eight years, with four years
parole ineligibility. The trial court did not sentence defendant for each
individual count. The result was imposition of an eight year sentence on two
third degree counts, counts two and four, which is outside the permissible range
pursuant to N.J.S.A. 2C:43-6(a)(3).
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Reversed. We do not retain jurisdiction.
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