SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-879-94T4
STATE OF NEW JERSEY,
Plaintiff-Respondent
and Cross-Appellant,
v.
MICHAEL J. MALIA,
Defendant-Appellant
and Cross-Respondent.
_________________________________________________________________
Submitted December 12, 1995; Decided February 2, 1996
Before Judges Michels, Baime and Kimmelman.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County.
Susan L. Reisner, Public Defender, attorney
for appellant and cross-respondent (Mark H.
Friedman, Assistant Deputy Public Defender,
of counsel and on the letter brief).
Deborah T. Poritz, Attorney General of New
Jersey, attorney for respondent and cross-
appellant (Debra A. Owens, Deputy Attorney
General, of counsel and on the letter brief).
The opinion of the court was delivered by
MICHELS, P.J.A.D.
Tried to a jury, defendant Michael J. Malia was found guilty of possession of cocaine, a crime of the third degree, in violation of N.J.S.A. 2C:35-10a(1). The trial court denied defendant's motions for a new trial or, alternatively, a judgment
of acquittal notwithstanding the verdict, and placed defendant on
three years probation with strict narcotic controls and
conditioned his probation upon working four days a week and
obtaining his driver's license within thirty days. Finally, the
trial court suspended defendant's New Jersey driver's license for
six months, concurrent with and co-terminus to his previous
driver's license suspension. The trial court waived the Violent
Crime Compensation Board, the Drug Enforcement and Demand
Reduction penalties and the forensic laboratory fee. Defendant
appeals and the State cross-appeals.
Defendant seeks a reversal of his conviction and a remand
for a new trial on the following grounds set forth in his letter
brief:
I. THE MOTION TO SUPPRESS SHOULD HAVE
BEEN GRANTED BECAUSE THE STATE
FAILED TO PROVE THAT ORDERING
DEFENDANT TO EXIT THE VEHICLE AND
SEARCHING THE AREA UNDER HIS SEAT
WAS JUSTIFIED AND REASONABLE IN
SCOPE.
II. THE INACCURATE AND OUT-DATED JURY
CHARGE ON REASONABLE DOUBT VIOLATED
DEFENDANT'S FEDERAL AND STATE
CONSTITUTIONAL RIGHT TO DUE PROCESS
OF LAW. (Not Raised Below.)
We have carefully considered these contentions and all the
arguments advanced by defendant in support of them and find that
they are without merit and require only the following comments in
a written opinion. R. 2:11-3(e)(2).
First, we are satisfied the trial court properly denied
defendant's motion to suppress the cocaine seized from
defendant's motor vehicle during the roadside stop. Under both
the Fourth Amendment to the United States Constitution and
Article I, Paragraph 7 of the New Jersey Constitution, a
warrantless search and seizure is prima facie invalid and can be
justified only if it falls within a specific exception. State v.
Demeter,
124 N.J. 374, 379-80 (1991); State v. Hill,
115 N.J. 169, 173 (1989); State v. Patino,
83 N.J. 1, 7 (1980). The
Fourth Amendment does not, however, proscribe all searches and
seizures, rather it only proscribes those that are judicially
deemed unreasonable. State v. Davis,
104 N.J. 490, 498-99
(1986); State v. Bruzzese,
94 N.J. 210, 216-17 (1983), cert.
denied,
465 U.S. 1030,
104 S. Ct. 1295,
79 L. Ed.2d 695 (1984);
See also State v. Anderson,
198 N.J. Super. 340, 348 (App. Div.),
certif. denied
101 N.J. 283 (1985). Indeed, "the touchstone of
the Fourth Amendment is reasonableness." State v. Bruzzese,
supra, 94 N.J. at 217. In cases involving warrantless searches,
the burden is on the State to prove the overall reasonableness
and validity of the search. Id. at 218.
The resolution of such Fourth Amendment issues is
particularly dependent upon the facts involved. Commonly, such
constitutional issues involve no more than a seasoned "value
judgment upon a factual complex rather than an evident
application of a precise rule of law." See State v. Funicello,
60 N.J. 60, 72 (Weintraub, C.J., concurring), cert. denied,
408 U.S. 942,
92 S. Ct. 2849,
33 L. Ed.2d 766 (1972). This is
especially true with regard to investigatory stops and
detentions. Our Supreme Court has held that under a narrowly
defined and controlled set of circumstances, such detentions can
be constitutionally permissible, although based on less than
probable cause. In State v. Hall,
93 N.J. 552, 561, cert.
denied,
464 U.S. 1008,
104 S. Ct. 526,
78 L. Ed.2d 709 (1983),
the Court pointed out in a somewhat related context that:
Our reading of Davis convinces us that
for certain detentions -- those that do not
entail significant intrusions upon individual
privacy or freedom, are productive of
reliable evidence, and can be effectuated
without abuse, coercion or intimidation -
"no probable cause in the traditional sense"
is necessary in order to obtain the
"authorization of a judicial officer[.]" We
conclude that, under a "narrowly defined" set
of circumstances, such detentions can be
constitutionally permissible, Davis, 39 U.S.
at 727-28, 89 S. Ct. at 1398, 22 L. Ed.
2d at
681. Strictly limiting the circumstances
under which such detentions take place
insures that the restrictions upon individual
privacy and freedom interests are minimized
so that a showing of need upon less than
traditional probable cause can be tolerated.
[Citing Davis v. Mississippi,
394 U.S. 721,
89 S. Ct. 1394,
226 L. Ed.2d 676 (1969).]
Further, it is firmly settled that law enforcement officials may stop motor vehicles where they have a reasonable and articulable suspicion that a motor vehicle violation has occurred. See, e.g., New York v. Class, 475 U.S. 106, 106 S. Ct. 960, 89 L. Ed.2d 81 (1986); Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 540 L. Ed.2d 331 (1977); United States v.
Brignoni-Ponce,
422 U.S. 873,
95 S. Ct. 2574,
45 L. Ed.2d 607
(1975); State v. Carter,
235 N.J. Super. 232 (App. Div. 1989);
State v. Pierce,
190 N.J. Super. 408 (App. Div. 1983); State v.
Nugent,
125 N.J. Super. 528 (App. Div. 1973); State v. Griffin,
84 N.J. Super. 508 (App. Div. 1964).
Applying these fundamentally sound principles here, there
cannot be the slightest doubt on this record that Bergen County
Police Officer Lynam had an articulable and reasonable suspicion
that a motor vehicle violation had occurred, justifying the
investigatory stop and detention of the vehicle in which
defendant was a passenger. This vehicle was traveling with no
rear lights. As the vehicle was pulled over, Officer Lynam
shined his spotlight and take-down lights on the vehicle and
observed defendant bend down towards the floor. Officer Lynam
approached the vehicle and when he leaned down and requested the
driver's credentials, he detected the odor of alcohol on the
driver's breath and coming from the interior of the car. Officer
Lynam then asked the driver if he had been drinking and the
driver responded that he had two beers.
Officer Lynam plainly had probable cause to believe that a
crime had been committed based on the furtive movements of
defendant and the odor of alcohol emanating from the interior of
the vehicle and, therefore, was justified in asking the driver
and defendant to exit the vehicle and in searching the vehicle.
See Pennsylvania v. Mimms, supra, 434 U.S. at 111, 98 S. Ct. at
333, 54 L. Ed.
2d at 337; State v. Smith,
134 N.J. 599, 617-20
(1994); State v. Anderson, supra, 198 N.J. Super. at 351; State
v. Nittolo,
194 N.J. Super. 344, 346 (App. Div. 1984). Cf. State
v. Judge,
275 N.J. Super. 194, 202-03 (App. Div. 1994) (holding
that odor of marijuana emanating from vehicle provides probable
cause to search). Since the stop of the vehicle passed
constitutional muster, it follows that the cocaine seized was not
the "fruit of the poisonous tree." See Sibron v. New York,
392 U.S. 40,
88 S. Ct. 1889,
20 L. Ed.2d 917 (1968); Wong Sun v.
United States,
371 U.S. 471,
82 S. Ct. 407,
9 L. Ed.2d 441
(1963).
Accordingly, the order denying the motion to suppress is
affirmed.
Defendant contends for the first time on appeal that the trial court improperly diluted the State's burden of proof and deprived him of his right to due process by deviating from the model jury charge on reasonable doubt. More precisely, defendant challenges the use of the words "moral certainty", pointing to the following excerpt from the charge to support his argument:
Reasonable doubt is not a mere possible or imaginary doubt because as everyone knows everything pertaining to human affairs is subject to some possible or imaginary doubt. A reasonable doubt is an honest and reasonable uncertainty as to the guilt of the defendant existing in your minds after you have given full and impartial consideration to all of the evidence. Reasonable doubt may arise from the evidence itself or from the lack of evidence.
In order to convict the law does not require that you be absolutely certain of the
guilt of the defendant. The law requires
moral certainty. To meet the requirements of
finding the defendant guilty beyond a
reasonable doubt and to a moral certainty you
must have, after an evaluation of the facts
and the evidence in this case, an abiding
belief of his guilt and you must have that
abiding belief to a moral certainty.
[Emphasis added.]
The phrase "moral certainty" became common in jury charges
after the Massachusetts Supreme Court's opinion in Massachusetts
v. Webster,
59 Mass. 295 (1850). The Webster charge was approved
of and became a standard definition of reasonable doubt in our
State. See Donnelly v. State,
26 N.J.L. 601, 615 (E. & A. 1857);
State v. Linker,
94 N.J.L. 411, 417 (E. & A. 1920); State v.
Rubenstein,
104 N.J.L. 291, 294 (Sup. Ct. 1928). In State v.
Lane,
52 N.J. 123, 125-26 (1968), our Supreme Court held that the
omission of the phrase "abiding conviction to a moral certainty"
in a reasonable doubt charge was not error. Further, by 1974 we
noted that the phrase "abiding conviction . . . to a moral
certainty" had "not been in general use for several years."
State v. Sherwin,
127 N.J. Super. 370, 390 (App. Div.), certif.
denied,
65 N.J. 569, petition dismissed sub nom. Loughran v. New
Jersey,
419 U.S. 801,
95 S. Ct. 9,
42 L. Ed.2d 32 (1974).
The Supreme Court confronted the issue of whether a jury
instruction employing the term "moral certainty" violated the Due
Process Clause in the consolidated cases of Victor v. Nebraska,
and Sandoval v. California ("Victor"), 511 U.S. ___,
114 S. Ct. 1239,
127 L. Ed.2d 583 (1994). In the first part of the opinion
dealing with defendant Arthur Sandoval the Supreme Court stated
that it was "concerned with Sandoval's argument that the phrase
'moral certainty' has lost its historical meaning, and that a
modern jury would understand it to allow a conviction on proof
that does not meet the beyond a reasonable doubt standard." Id.
at ___, 114 S. Ct. at 1247, 127 L. Ed.
2d at 595. The Supreme
Court acknowledged that:
Words and phrases can change meaning over
time: a passage generally understood in 1850
may be incomprehensible or confusing to a
modern juror. And although some contemporary
dictionaries contain definitions of moral
certainty similar to the 19th century
understanding of the phrase . . . we are
willing to accept Sandoval's premise that
"moral certainty," standing alone, might not
be recognized by modern jurors as a synonym
for "proof beyond a reasonable doubt".
[Ibid.]
The Supreme Court also stated that "it does not necessarily
follow that the California instruction is unconstitutional,"
ibid., explaining that:
The problem is not that moral certainty may
be understood in terms of probability, but
that a jury might understand the phrase to
mean something less than the high level of
probability required by the Constitution in
criminal cases.
. . . . An instruction cast in terms of an
abiding conviction as to guilt, without
reference to moral certainty, correctly
states the government's burden of proof.
[Id. at ___, 114 S. Ct. at 1247, 127 L. Ed.
2d
at 596.]
The Supreme Court went on to look at other language in the instruction and concluded that in that case "the reference to moral certainty, in conjunction with the abiding conviction
language, `impress[ed] upon the factfinder the need to reach a
subjective state of near certitude of the guilt of the accused.'"
Ibid. (quoting Jackson v. Virginia,
443 U.S. 307, 315,
99 S. Ct. 2781, 2787,
61 L. Ed.2d 560, 571 (1979)).
In a slight variation of his first argument, Sandoval also
argued that a juror might be convinced to a moral certainty that
the defendant was guilty despite the fact that the government has
failed to prove his guilt beyond a reasonable doubt. Id. at ___,
114 S. Ct. at 1248, 127 L. Ed.
2d at 596. The Supreme Court noted
that the definition contained in a widely used dictionary
supported this argument. Ibid. The Supreme Court again looked
at other language in the instruction which indicated that the
jurors must base their decision on the evidence produced in the
case. Id. at ___, 114 S. Ct. at 1248, 127 L. Ed.
2d at 596-97.
In light of this language the Supreme Court concluded that:
We do not think it reasonably likely that the
jury understood the words moral certainty
either as suggesting a standard of proof
lower than due process requires or as
allowing conviction on factors other than the
government's proof. At the same time,
however, we do not condone the use of the
phrase. As modern dictionary definitions of
moral certainty attest, the common meaning of
the phrase has changed since it was used in
the Webster instruction, and it may continue
to do so to the point that it conflicts with
the Winship standard. . . . But we have no
supervisory power over the state courts, and
in the context of the instructions as a whole
we cannot say that the use of the phrase
rendered the instruction given in Sandoval's
case unconstitutional.
[Id. at ___, 114 S. Ct. at 1248, 127 L. Ed.
2d at 597.]
In the second portion of the case dealing with defendant
Clarence Victor the Supreme Court again dealt with a charge that
employed the term "moral certainty," stating that:
Instructing the jurors that they must have an
abiding conviction of the defendant's guilt
does much to alleviate any concerns that the
phrase moral certainty might be misunderstood
in the abstract. . . . The instruction also
equated a doubt sufficient to preclude moral
certainty with a doubt that would cause a
reasonable person to hesitate to act. In
other words, a juror morally certain of a
fact would not hesitate to rely on it; and
such a fact can fairly be said to have been
proven beyond a reasonable doubt. . . .
There is accordingly no reasonable likelihood
that the jurors understood the reference to
moral certainty to allow conviction on a
standard insufficient to satisfy Winship, or
to allow conviction on factors other than the
government's proof. Though we reiterate that
we do not countenance its use, the inclusion
of the moral certainty phrase did not render
the instruction given in Victor's case
unconstitutional.
[Id. at ___, 114 S. Ct. at 1250-51, 127 L.
Ed.
2d at 600 (citations omitted).]
We are satisfied that the portion of the jury charge challenged on this appeal did not dilute defendant's right to be found guilty solely upon proof beyond a reasonable doubt. On the contrary, when the jury charge is read in its entirety, as it must be, see State v. Marshall, 123 N.J. 1, 135 (1991); State v. Wilbely, 63 N.J. 420, 422 (1973), it is clear that the trial court properly instructed the jury on the State's burden of proving guilt beyond a reasonable doubt fully and understandably explained reasonable doubt. Furthermore, the trial court repeatedly referred to the State's burden of proving guilt beyond
a reasonable doubt and emphasized that the State's burden existed
with respect to each element of the crime charged.
While the words "moral certainty" standing alone may not
necessarily be synonymous with proof beyond a reasonable doubt,
as used in the charge in this case, they did not dilute the
State's burden of proof and violate his right to a fair trial.
See Victor v. Nebraska, supra, 511 U.S. at ___, 114 S. Ct. at
1247, 1250-51, 127 L. Ed.
2d at 596, 599-600. In sum, the charge
satisfied the standard of In re Winship,
397 U.S. 358, 364,
90 S.
Ct. 1068,
25 L. Ed.2d 368 (1970), and does not in any way
violate defendant's due process rights or require reversal of his
conviction.
However, even though we do not find that the use of the
words "moral certainty" diluted defendant's right to be found
guilty beyond a reasonable doubt in this case, we nevertheless
disapprove of the use of those words in defining reasonable doubt
and explaining the State's burden of proof in a criminal case.
We strongly suggest, therefore, that trial courts not augment the
model charge on reasonable doubt in any way.See footnote 1 See State v.
Hudson, ___ N.J. Super. ___, ___ (App Div. 1995) (slip opinion p.
5). The current version of the model jury charge contains no
mention of the term "moral certainty" and also avoids the
"hesitate to act" standard which has received some criticism.
See Victor, supra, 511 U.S. at ___, 114 S. Ct. at 1252, 127 L.
Ed.
2d at 601-602 (Ginsburg, J., concurring); Arizona v. Portillo,
898 P.2d 970, 974 n.5 (Ariz. 1995). As such it is the proper
instruction for a trial court to use.
Finally, we agree with the State that the trial court erred in suspending the mandatory $50 Violent Crimes Compensation Board penalty (N.J.S.A. 2C:43-3.1a(2)(a)), the $1,000 Drug Enforcement Demand Reduction penalty (N.J.S.A. 2C:35-15) and the $50 forensic laboratory fee (N.J.S.A. 2C:35-20). N.J.S.A. 2C:43-3.1a(2)(a) requires, in pertinent part, that "any person convicted of any disorderly persons offense, any petty disorderly persons offense, or any crime not resulting in the injury or death of any other
person shall be assessed $50.00 for each such offense . . . ."
(Emphasis added.) Similarly, N.J.S.A. 2C:35-15a states, in
pertinent part, that "every person convicted of or adjudicated
delinquent for a violation of any offense defined in this chapter
. . . shall be assessed for each such offense a penalty fixed at:
. . . (3) $1,000.00 in the case of a crime of the third degree."
(Emphasis added.) And N.J.S.A. 2C:35-20a requires, in pertinent
part, that "any person convicted of an offense under this chapter
shall be assessed a criminal laboratory analysis fee of $50.00
for each offense for which he was convicted." (Emphasis added.)
None of these statutes provides for the waiver of the penalties
or fees except for a rehabilitation exception found in N.J.S.A.
3C:35-15(e), which is plainly not applicable here. These
penalties are mandatory and must be imposed regardless of
defendant's ability to pay or any other factors enumerated in
N.J.S.A. 2C:44-2.
Accordingly, except to remand the matter to the trial court to impose the statutorily mandated Violent Crimes Compensation Board and Drug Enforcement Demand Reduction penalties and forensic laboratory fee, the judgment of conviction under review is affirmed.
Footnote: 1The Model Jury Charge for describing reasonable doubt
states, in relevant part, that:
The burden of proving each element of a
charge beyond a reasonable doubt rests upon
the State and that burden never shifts to the
defendant. The defendant in a criminal case
has no obligation or duty to prove his/her
innocence or offer any proof relating to
his/her innocence.
Reasonable doubt is not a mere possible or
imaginary doubt, because everything relating
to human affairs is open to some possible or
imaginary doubt.
A reasonable doubt is an honest and reason
able uncertainty as to the guilt of the
defendant existing in your minds after you
have given full an impartial consideration of
all of the evidence. It may arise from the
evidence itself or from a lack of evidence
[Model Jury Charge (Criminal Final Charge)
Presumption of Innocence, Burden of Proof,
Reasonable Doubt (May 23, 1994).]