STATE OF NEW JERSEY v. DAANDRE J. WADE (19-07-1173, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2855-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAANDRE J. WADE,
Defendant-Appellant.
_______________________
Argued September 29, 2022 – Decided October 25, 2022
Before Judges Haas and Gooden Brown.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Middlesex County,
Indictment No. 19-07-1173.
Simon Wiener, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Simon Wiener, of counsel
and on the briefs).
Joie D. Piderit, Assistant Prosecutor, argued the cause
for respondent (Yolanda Ciccone, Middlesex County
Prosecutor, attorney; Joie D. Piderit, of counsel and on
the brief).
PER CURIAM
By leave granted, defendant appeals from the May 3, 2022 Law Division
order denying his motion to dismiss two unlawful gun possession counts charged
in a three-count indictment. In a May 10, 2022 sua sponte order, we stayed the
trial "until further order of this court."
On appeal, in a single point, defendant presents the following arguments
for our consideration:
THE TRIAL COURT ERRED BY DENYING
[DEFENDANT'S] MOTION TO DISMISS THE
INDICTMENT AS TO COUNTS [ONE] AND [TWO]
BECAUSE THERE WAS NO EVIDENCE OF
[DEFENDANT'S] GUILT UNDER THE
ACCOMPLICE-LIABILITY THEORY THE STATE
EXPLICITLY TOLD THE GRAND JURY TO APPLY
AND BECAUSE THE PROSECUTOR'S
VACILLATING EXPLANATIONS INTERFERED
WITH THE GRAND JURY'S DECISION-MAKING
PROCESS.
A. Because the State Must Abide by Its
Own Explanation of the Applicable Law to
the Grand Jury and Its Inclusion of
Accomplice Liability in the Indictment, It
Could Not Retreat from Its Choice to
Instruct the Grand Jury to Consider Only a
Theory of Accomplice Liability.
B. The State Provided No Evidence to the
Grand Jury that Could Support Accomplice
Liability, Warranting Dismissal of the
Indictment.
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1. Generally, Accomplice Liability
Is Conceptually Inconsistent with
Possessory Weapons Offenses.
2. Even If Accomplice Liability
Were Readily Applicable to
Possessory Weapons Offenses, the
State Presented No Evidence that
[Defendant] Acted as
[Codefendant's] Accomplice in This
Case.
C. The Prosecutor's Vacillating Explanations of
the Applicable Law Confused the Jury,
Interfering with Its Decision-Making Process.
Because the prosecutor gave inaccurate and misleading legal instructions to the
grand jury, we reverse.
Defendant and codefendant Malik Stringer were charged in a Middlesex
County indictment with two counts of second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:2-6 (counts one and two); and
fourth-degree unlawful possession of prohibited devices, N.J.S.A. 2C:39-3(f)
and N.J.S.A. 2C:2-6 (count three). The charges stemmed from a May 4, 2019
motor vehicle stop based on an invalid temporary registration tag. Codefendant
Stringer was driving the vehicle and defendant was the front seat passenger. The
car belonged to Stringer's mother. Upon speaking with Stringer, police detected
the odor of marijuana and ordered Stringer out of the car. Police also ordered
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defendant out of the vehicle. An ensuing search of the vehicle uncovered a
handgun in the center console and another handgun under the front passenger
seat floor mat, as well as hollow point ammunition "in one of the magazines."
In addition, a small amount of marijuana was found on each defendant. Both
defendants were arrested.
The prosecuting attorney began the grand jury presentation by reading the
proposed indictment to the grand jurors as well as the applicable statutes,
including accomplice liability, N.J.S.A. 2C:2-6, which provides in pertinent
part:
a. A person is guilty of an offense if it is committed by
his own conduct or by the conduct of another person for
which he is legally accountable, or both.
b. A person is legally accountable for the conduct of
another person when:
(1) Acting with the kind of culpability that
is sufficient for the commission of the
offense, he causes an innocent or
irresponsible person to engage in such
conduct;
(2) He is made accountable for the conduct
of such other person by the code or by the
law defining the offense;
(3) He is an accomplice of such other
person in the commission of an offense; or
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(4) He is engaged in a conspiracy with such
other person.
c. A person is an accomplice of another person in the
commission of an offense if:
(1) With the purpose of promoting or
facilitating the commission of the offense;
he
(a) Solicits such other person to
commit it;
(b) Aids or agrees or attempts to aid
such other person in planning or
committing it; or
(c) Having a legal duty to prevent the
commission of the offense, fails to
make proper effort so to do; or
(2) His conduct is expressly declared by
law to establish his complicity.
New Brunswick Police Officer Michael Kerwin, who conducted the
search of the vehicle, was the sole testifying witness before the grand jury.
During the prosecutor's questioning, he recounted the May 4, 2019 encounter
that led to defendants' arrests and responded to numerous questions posed by the
grand jurors. Specifically, when a juror asked whether "the car actually
belong[ed] to either [defendant,]" Kerwin responded that the car belonged to
Stringer's mother. Additionally, jurors asked whether "either [defendant]
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admit[ted] to owning either gun," whether either defendant had "a permit to
carry a gun," and whether the guns were "registered to either [defendant]."
Kerwin responded in the negative to all three questions and was excused from
the witness stand.
At that point, the prosecutor reread the proposed indictment to the grand
jurors and asked whether there were any questions. A juror asked whether both
defendants were being charged because "[police] couldn't tell who[se] gun it
was." Referring to the prior reading of N.J.S.A. 2C:2-6, the prosecutor
responded that "[t]hey're charged through accompli[ce] liability," and then left
the room for the grand jurors to deliberate. Upon being informed that the grand
jurors had additional questions for the officer, the prosecutor recalled Kerwin
and continued the presentation.
Notably, a juror asked Kerwin how he "attribute[d]" or "tie[d]" the guns
to defendants. Kerwin responded that "both guns were found in the vehicle that
[defendants] were traveling in." After the prosecutor questioned Kerwin further
about the location of the guns in relation to the location of each defendant in the
vehicle, the jurors asked whether the police processed the guns for fingerprints
or determined whether the guns were stolen. Kerwin responded that, to his
knowledge, no fingerprints were obtained, and a search revealed that the guns
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were "not stolen." In response, a juror pointedly asked Kerwin, "[s]o who owns
the gun[s]?" Kerwin responded he was "not aware of who owns the firearms."
At that point, in an attempt to clarify the applicable law, the prosecutor
told the grand jurors:
There is a presumption -- not presumption, that's
not the right word. There is case law or a statute, I can't
remember, but there is law that says if there are multiple
people in a car and the driver is not the registered owner
it's presumed that the -- it's called constructive
possession, so just because they didn't physically have
it on their person at that time, they were still in
constructive possession of the guns as they were the
only two individuals in the car at the time the guns were
there.
A juror then asked Kerwin whether he had observed either defendant "fumbling
around" when he was approaching the vehicle. Kerwin responded he saw no
movement in the car.
At that juncture, a juror asked the prosecutor to read the constructive
possession statute, N.J.S.A. 2C:39-2(a), which provides in pertinent part:
When a firearm . . . is found in a vehicle, it is presumed
to be in the possession of the occupant if there is but
one. If there is more than one occupant in the vehicle,
it shall be presumed to be in the possession of all,
except under the following circumstances:
(1) When it is found upon the person of one
of the occupants, it shall be presumed to be
in the possession of that occupant alone;
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(2) When the vehicle is not a stolen one and
the weapon or other instrument is found out
of view in a glove compartment, trunk or
other enclosed customary depository, it
shall be presumed to be in the possession
of the occupant or occupants who own or
have authority to operate the vehicle.
The prosecutor then left the room to allow the grand jurors to continue
their deliberations but returned when a juror requested clarification about the
exceptions to the presumption of possession under N.J.S.A. 2C:39-2(a) when
more than one occupant was in the vehicle. Specifically, the juror asked whether
possession "can only be attributed to the owner or driver of said car" if "one of
these handguns was found in a compartment," like a "glove compartment or
something like that." In response, the prosecutor reread the pertinent provision
of N.J.S.A. 2C:39-2(a) and then defined "customary depository" as referring to
"somewhere where you typically put a gun."
Following up on the prosecutor's response, a juror commented:
Maybe we can sum it up with this and I don't know if
that clarifies things.
We're trying to figure out whether the gun in the
glove compartment can only be attributed to the driver
and not the passenger, because what you're saying is if
there's two or more people if it's in the passenger's side
then yes, it's attributed to everybody in the car, but if
it's any of these compartments . . .
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....
. . . it's only the owner of said car.
The following colloquy then ensued between the prosecutor and a juror:
[PROSECUTOR]: It's the State's theory that it is in
possession of both of them[, N.J.S.A. 2C:]2-6, which is
the one I read to you earlier about accompli[ce]
liability.
....
. . . It's an individual who . . . aids or agrees to
attempt to aid another person in planning or committing
of a crime.
[GRAND JUROR]: Okay. So that[] supersedes
anything that was just said basically.
....
[PROSECUTOR]: Well that's what our theory is under.
....
. . . Not under [N.J.S.A. 2C:]39-2. Understand?
[GRAND JUROR]: Now we understand.
Shortly thereafter, the grand jury returned a true bill on all three counts.
Defendant moved to dismiss the indictment, arguing the prosecutor's
statements showed the State was proceeding under a theory of accomplice
liability, as opposed to constructive possession, but the State had not presented
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sufficient evidence to support an accomplice liability theory. In an order entered
May 3, 2022, the judge denied the motion as to counts one and two but, for
different reasons than those advanced by defendant, granted the motion with
respect to count three. The ruling on count three is not challenged on appeal.
As to counts one and two, in an oral opinion following oral argument, the
judge acknowledged that the prosecutor's "discussion on the law was inartful"
and "inaccurate." Nonetheless, because the grand jury was instructed on
constructive possession, the judge determined "[t]he [g]rand [j]ury was entitled
to rely on the law of constructive possession and find that there was [a] prima[]
facie case established as to the possession of a weapon . . . based on the portion
of the law that wasn't misconstrued or mischaracterized by the prosecutor."
The judge considered State v. Cook, 300 N.J. Super. 476 (App. Div.
1996), where we questioned "[w]hether accomplice liability even applie[d] to a
possessory weapons offense" but held that "the giving of an erroneous
accomplice charge" to a petit jury in a trial where "multiple participants
engage[d] in a violent attack" that resulted in the victim's death was, "at most,
harmless." Id. at 486, 489, 490. In support, we relied on the fact that the jury
was correctly instructed on the principle that "two or more persons may jointly
share actual or constructive possession of a weapon." Id. at 490.
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Relying on Cook and the legal principles governing motions to dismiss an
indictment, the judge concluded:
I find . . . that the prosecutor did present a prima facie
case that both [codefendant] and [defendant] possessed
two handguns in that vehicle. I don't find here that the
indictment is manifestly deficient or palpably
defective. . . . [T]here's a presumption . . . that a [g]rand
[j]ury proceeding is valid. And unless I'm
convinced . . . that it's palpably defective on the
clearest and plainest grounds, then my obligation is to
not disturb the [g]rand [j]ury indictment.
The . . . defense here concedes some evidence
was presented to the [g]rand [j]ury, although . . . not
sufficient evidence. But the quantum of evidence
doesn't have to be great . . . .
So . . . I find here that there is sufficient
evidence . . . which is just some evidence required on
both counts of the indictment that remain. And that as
to the law they were given all the elements of the
statute. They were explained constructive possession
and joint possession. They were also given some
confusing language on accomplice liability. . . . But as
th[e c]ourt said in State [v.] Cook that's harmless error.
And in my estimation if it's harmless error before a petit
jury, it's certainly harmless error before a [g]rand
[j]ury.
This appeal followed.
"A trial court's denial of a motion to dismiss an indictment is reviewed for
abuse of discretion." State v. Twiggs, 233 N.J. 513, 544 (2018). Under that
standard, "[w]e will not disturb the denial of such a motion 'unless [the judge's
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discretionary authority] has been clearly abused.'" State v. Saavedra, 433 N.J.
Super. 501, 514 (App. Div. 2013) (second alteration in original) (quoting State
v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994)). "[A]n abuse of
discretion 'arises when a decision is "made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis."'" State v. R.Y., 242 N.J. 48, 65 (2020) (quoting Flagg v. Essex Cnty.
Prosecutor, 171 N.J. 561, 571 (2002)). "[W]e review the trial court's legal
conclusions de novo." State v. Nicolas, 461 N.J. Super. 207, 211 (App. Div.
2019) (citing State v. Nash, 212 N.J. 518, 540-41 (2013)).
"An indictment is presumed valid[,]" State v. Feliciano, 224 N.J. 351, 380
(2016), and "'should be disturbed only on the "clearest and plainest ground"' and
only when the indictment is manifestly deficient or palpably defective." State
v. Hogan, 144 N.J. 216, 228-29 (1996) (citations omitted) (quoting State v.
Perry, 124 N.J. 128, 168 (1991)). At the grand jury stage, "[a]s long as the State
presents 'some evidence establishing each element of the crime to make out a
prima facie case,' a trial court should not dismiss an indictment." Feliciano, 224
N.J. at 380 (quoting State v. Saavedra, 222 N.J. 39, 57 (2015)).
Still, during the grand jury presentation, "the prosecutor must clearly and
accurately explain the law to the grand jurors and not leave purely legal issues
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open to speculation by lay people who are simply performing their civic d uty."
State v. Brady, 452 N.J. Super. 143, 166 (App. Div. 2017). When that does not
occur, an indictment may be challenged. However, "a prosecutor's decision on
how to instruct a grand jury will constitute grounds for challenging an
indictment only in exceptional cases," and "defendants bear the burden of
proving prosecutorial error." State v. Triestman, 416 N.J. Super. 195, 202, 204
(App. Div. 2010) (citing State v. Francis, 191 N.J. 571, 587 (2007)).
Although "incomplete or imprecise instructions by a prosecutor will not
ordinarily warrant dismissal of the indictment," there is nevertheless "a
difference between instructions that are merely imprecise or incomplete and
those that are blatantly wrong." State v. Hogan, 336 N.J. Super. 319, 344 (App.
Div. 2001). In that regard, "an indictment will fail where a prosecutor's
instructions to the grand jury were misleading or an incorrect statement of law."
Triestman, 416 N.J. Super. at 205. Nonetheless, an "indictment should not be
dismissed unless the prosecutor's error was clearly capable of producing an
unjust result. This standard can be satisfied by showing that the grand jury
would have reached a different result but for the prosecutor's error." Hogan,
336 N.J. Super. at 344.
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Here, defendant argues that because "the prosecutor ordered the jury to
disregard [constructive possession]" and apply a "theory of accomplice
liability," which is "categorically inapplicable to possessory offenses and
specifically ill-suited to the gun[]possession counts here," the indictment is
"doom[ed]." Defendant asserts "[t]he dearth of evidence supporting the [S]tate's
theory and the confusing instructions' effect on the deliberation process require
dismissal of the indictment."
As the judge observed, the prosecutor's instruction to the grand jury to
disregard constructive possession and rely exclusively on a theory of accomplice
liability to establish a prima facie case of unlawful possession of a handgun was
"inartful" and "inaccurate." See Cook, 300 N.J. Super. at 489 ("Whether
accomplice liability even applies to a possessory weapons offense is doubtful.").
Nonetheless, the judge determined the prosecutor's error was "harmless."
However, this was not a case where the grand jurors were allowed to rely on two
theories of liability, one correct and one incorrect. On the contrary, the grand
jurors were expressly instructed by the prosecutor to disregard the principles of
constructive possession, which was the correct theory of liability for the
possessory weapons offenses.
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"[D]ismissal of an indictment is warranted . . . if the prosecutor's conduct
'impinge[s] on a grand jury's independence and improperly influence[s] its
determination.'" State v. Bell, 241 N.J. 552, 561 (2020) (alterations in original)
(quoting Francis, 191 N.J. at 587). Here, because the instructions given were
inaccurate and misleading, the indictment cannot stand. Given the questions
posed by the grand jurors, particularly their uncertainty about the application of
the exceptions to the presumption of possession under N.J.S.A. 2C:39-2(a) when
more than one occupant was in the vehicle, we are persuaded the grand jurors
would have reached a different result but for the prosecutor's error. Thus, we
reverse the May 3, 2022 order denying the motion to dismiss counts one and two
of the indictment, but "add that nothing in this opinion precludes the State from
re-presenting this matter to another grand jury." State v. Tucker, 473 N.J. Super.
329, 349 (App. Div. 2022). We also vacate the stay.
Reversed and remanded for entry of an appropriate order. We do not
retain jurisdiction.
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