STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. DAVID E. HUMPHREYS, DEFENDANT-RESPONDENT.
Supreme Court of New Jersey
Argued October 6, 1981—Decided April 15, 1982.
89 N.J. 4
Martin T. McDonough argued the cause for respondent (McDonough & Lawrence, attorneys).
O‘HERN, J.
This case concerns the standard of appellate review in “conditional discharge” cases under Section 27 of the New Jersey Controlled Dangerous Substances Act,
Following his arrest, Humphreys was charged in separate indictments with possession and sale of a controlled dangerous substance. One indictment accused defendant of distributing one ounce of marijuana to Caldwell, in violation of
A separate indictment charged Humphreys with possession of 27.34 grams of marijuana. Possession of less than 25 grams of marijuana is treated as a disorderly persons offense but possession of any amount over 25 grams constitutes an indictable offense.
Defendant pleaded guilty to the possession charge and applied for a conditional discharge pursuant to
The trial judge denied the motion for a conditional discharge and sentenced the defendant to the Salem County Jail for six months, suspended all but 30 days, placed the defendant on
The same trial judge conducted a new hearing and again denied defendant‘s motion for conditional discharge. The court essentially adhered to the reasoning that had initially led it to refuse defendant‘s request. In a written opinion, the trial judge articulated three reasons for his decision.
First, the court cited Humphreys’ occupation as a public school teacher, although there was no evidence that defendant‘s personal association with drugs involved his current students or his official duties. Next, the trial court ruled that Humphreys’ admission into a conditional discharge program was precluded because defendant “was dealing in marijuana” or was otherwise involved in the distribution of narcotics. In support of this finding, the trial judge, who had also presided over Humphreys’ distribution trial, referred to three pieces of evidence produced at the earlier proceeding. They were a tape recording of a conversation with Caldwell in which Humphreys made references to drug dealing, testimony alluding to an unsuccessful attempt by defendant to cultivate a six-foot by six-foot garden of marijuana, and defendant‘s admission to having given one capsule of valium to Caldwell. Finally, the trial judge took “judicial notice” of community anxiety over Humphreys’ drug involvement, noting that “because of his position as a school
Humphreys again sought relief from the Appellate Division. This time, in a per curiam opinion, the Appellate Division reversed the denial, holding that the trial court had abused its discretion by taking “judicial notice” of community anxiety about Mr. Humphreys, by improperly evaluating Humphreys’ alleged ongoing drug involvement and by basing its denial on other inappropriate or irrelevant factors, such as defendant‘s occupation as a teacher.
Judge Fritz dissented, stating that the majority had overemphasized the importance of the trial judge‘s reliance on the defendant‘s occupation and public outrage, and concluded that while the “conviction of the trial judge overflowed his pen [this] should not be permitted to distract us from the correctness of the determination....”
The case comes before this Court on the State‘s appeal as of right. R. 2:2-1(a). We now reverse.
I.
Former Governor Cahill summarized the purpose of this legislation in a special message to the Legislature:
The proposed [controlled dangerous substances] act takes a first legislative step at recognizing the use of drugs as a social and medical illness. Thus with respect to persons charged with use or possession of any dangerous drug for the first time, the act confers upon the court, new discretionary authority to defer criminal proceedings and to impose a special term of probation. If the conditions of probation are met, the court may then dismiss the proceedings. In order that youthful first offenders are not saddled with a lifetime arrest record, the act provides for an immediate expungement of records with respect to arrests. [“Drug Abuse—Problem of the Decade,” Special Message of Governor William Cahill to the Legislature, April 27, 1970.]
Should the trial judge decide to grant a conditional discharge, proceedings against a defendant will be suspended,
To qualify for consideration for a conditional discharge, a defendant must have no prior drug convictions after the effective date of the act and be charged with, convicted of, or plead guilty to no more than possession, use or being under the influence of small amounts of drugs.
An application for conditional discharge may not be approved unless the trial judge finds that the defendant‘s presence in the community will not threaten the public safety or that the defendant will benefit from participation in a supervisory drug treatment program, the terms of which provide for the protection of the public.
Proceedings under this section shall not be available to any defendant unless the court in its discretion concludes that
(1) The defendant‘s continued presence in the community, or in a civil treatment center or program, will not pose a danger to the community; or
(2) That the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances which he may manifest.
II.
To establish an abuse of discretion in the analogous context of pretrial intervention a party faces a heavy burden. State v. Bender, 80 N.J. 84 (1979). In State v. Sayko, supra, 71 N.J. at 13, we compared this review of conditional discharge proceedings under
Appellate deference to the discretionary decision of a sentencing judge is similar, in purpose and origin, to that accorded decisions of a trier of fact. It is based primarily on the sentencing judge‘s presumed superior ability to make a first-hand evaluation of the background and character of the defendant and the offense. [State v. Leggeadrini, 75 N.J. 150, 162 (1977)].
On our remand to the trial court we asked that it reconsider the matter in the light of four opinions filed on May 24, 1979: State v. Bender, supra; State v. Maddocks, 80 N.J. 98 (1979); State v. Sutton, 80 N.J. 110 (1979); and State v. Hermann & Jones, 80 N.J. 122 (1979). Each of these cases cited by the Court in its remand concerned judicial review of the prosecutor‘s decision to admit or deny a defendant to PTI.
In State v. Maddocks, supra, we approved the prosecutor‘s denial of admission into pretrial intervention of a defendant who had refused to disclose the identity of an accomplice. We pointed out that this factor could bear upon the defendant‘s amenability to correction. We remanded, however, to permit the defendant to reassess his position on this and to allow the State to specify the nature of the activities underlying the allegations that defendant was on the “periphery” of other criminal investigations.
In State v. Sutton, supra, the Court agreed that the prosecutor had properly characterized a welfare client‘s fraudulent four and one-half year scheme as being a continuous criminal enterprise justifying denial, but we remanded the matter in the light of the insufficiency of the prosecutor‘s statement of reasons for denial.
We particularly directed the attention of the trial court to State v. Hermann & Jones, supra, presumably because it involved two teachers. In that case we held it improper to overturn a prosecutor‘s decision to admit to pretrial intervention two teachers charged with receipt of stolen goods. In Hermann & Jones the trial court had reversed the prosecutor, substituting its own judgment and concluding that the teachers’ conduct was a breach of “the special trust reposed in them as school teachers.” Implicit in that decision was that one‘s status as school teacher was not a litmus test for denial of admission into a pretrial diversion program.
Although the “separation of powers” considerations that restrict judicial review of prosecutorial decisions on PTI do not apply here, useful analogies may still be drawn. The same considerations of policy and practicality applicable in the PTI context dictate appellate deference to a trial court‘s disposition under
III.
Reviewing the record under this standard, we conclude that the trial judge did not clearly abuse his discretion in denying this defendant a conditional discharge.
While we agree that it would have been inappropriate to deny defendant admission to a conditional discharge program solely because he was a teacher,2 this does not mean that a trial court could not consider defendant‘s occupational status in dealing with such an application. The whole person, not “censored versions of his personal history or selected facets of his character, is to be addressed....” State v. Marzolf, supra, 79 N.J. at 180. Part of the whole person or character of the defendant as the judge saw it could well include the involvement of Humphreys with a recent pupil, Caldwell, and Humphreys’ role model status as a teacher.
Here, whether we characterize defendant‘s conduct as dealing or distributing, it is sufficient that concrete and reliable evidence was produced that would reasonably lead the court to conclude that defendant‘s activities extended beyond the mere possession of controlled dangerous substances. State v. Sayko, supra; State v. Battaglia, 135 N.J.Super. 211 (App.Div.1975); State v. Banks, supra; State v. DiLuzio, 130 N.J.Super. 222 (Law Div.1974). Obviously, if the defendant had been convicted of distributing drugs, he would have been ineligible for diversion under
Although we concur with the trial judge‘s conclusion, we disapprove of his reference to community anxiety in denying this individual the statutory right to conditional discharge. Whether this “public anxiety” arose from a general apprehension about drug abuse in Salem County or from the focused outrage over this school teacher‘s misconduct, such factors should not have influenced the trial judge‘s deliberations.
Judicial recognition of or action upon public opinion against a particular defendant cannot be tolerated in our criminal justice system. That the citizens of Pennsville became infuriated to the extent of threatening to take their children out of school is, and should be, of no concern to the trial judge. “The constitutional safeguards relating to the integrity of the criminal process attend every stage of a criminal proceeding.... There can be no doubt that they exclude influence or domination by either a friendly or hostile mob.” Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 479, 13 L.Ed.2d 487, 491 (1965).
Our specific direction to the trial judge that he consider State v. Sutton, supra, on the remand may have misled him. In that case we suggested that public anxiety over certain crimes might be of limited relevance to a prosecutorial decision on suspension of proceedings in PTI. But there is a difference between public anxiety over safety and public outrage. As to the latter, “... [j]udges are supposed to be men of fortitude able to thrive in a hardy climate.” Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546, 1552 (1947).
Although the usual practice would be to remand for further consideration, we decline to do so in view of the five year length of this litigation and our belief that the trial judge would adhere to his decision because it was fundamentally founded upon an evaluation of the whole person of the defendant, not on the community‘s viewpoint.
IV.
In sum then, the defendant was denied a conditional discharge because the trial court determined he was not amenable to rehabilitation in the statutory sense; not because he expressed unpopular views but because while teaching in the community he openly grew marijuana; not because of unproven allegations not part of the record but because of his own statements that he had given the former pupil, Caldwell, the valium tablet and would have sold or shared the marijuana he was growing if it had not been stolen. We sit not to substitute our judgment for a trial court‘s or pass upon the social use of marijuana. Given the uncontroverted factors, appropriately considered, whatever our own views, we cannot say on this record that the decision of a conscientious trial judge should be overturned.
Accordingly, we reverse the judgment of the Appellate Division.
Defendant Humphreys, who pleaded guilty to possession of 27.34 grams of marijuana, was denied admission to our “conditional discharge program,
The trial court‘s reliance on public pressure as a ground for not admitting Humphreys to the program was a clear denial of due process. The majority concedes this. (
Humphreys is obviously eligible for conditional discharge. He is charged with an offense under
In denying conditional discharge to defendant, the trial court relied on the “whole person” concept. Even if defendant is fully eligible for the program under the statutory criteria, “the [trial] court also has broad discretion, considering all relevant factors and applying the whole person concept, to determine whether such person is otherwise a fit subject for the statutory program.” State v. Sayko, 71 N.J. 8, 13 (1976) (footnote omitted).
As the majority, notes, the general rule is deference to trial court decisions on conditional discharge. Nonetheless, this Court has on several occasions approved reversals of trial court decisions under this program and prosecutorial decisions under the analogous pre-trial intervention program. See State v. Bender, 80 N.J. 84 (1979); State v. Maddocks, 80 N.J. 98 (1979); State v. Sutton, 80 N.J. 110 (1979); State v. Sayko, supra.
Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. [State v. Bender, 80 N.J. at 93]
The majority concedes that the trial court‘s decision was in part premised on the inappropriate factor of hostile public opinion. Yet the majority ignores the trial court‘s serious transgression by deferring to its disposition.
Premising a sentencing decision on public outcry against a particular defendant is no mere technical error. It is nothing less than the surrender of our criminal justice system to public pressure. As the majority explains,
Judicial recognition of or action upon public opinion against a particular defendant cannot be tolerated in our criminal justice system. That the citizens of Pennsville became infuriated to the extent of threatening to take their children out of school is, and should be, of no concern to the trial judge. ‘The constitutional safeguards relating to the integrity of the criminal process attend every stage of a criminal proceeding.... There can be no doubt that they exclude influence or domination by either a friendly or hostile mob.’ Cox v. Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13 L.Ed.2d 487, 491, (1965). [Ante at 15]
The majority recognizes that the usual practice in the face of such a serious trial court error would be a remand, ante at 15, see State v. Bender, supra, but chooses instead to affirm the denial. The majority bases this disposition on its view that public opinion formed only a small part of the trial court‘s rationale, and that therefore the decision would have been the same even absent that factor. (Ante at 15.) However, any attempt to ascertain what factors led the trial judge to his decision must be pure speculation. The majority focuses on the evidence of distribution as the primary reason for denial. However, the trial court‘s first denial, which this Court summarily reversed, 81 N.J. 269 (1979), makes absolutely no mention of distribution as a reason for denial. We are thus left with no choice but to conclude that defendant‘s occupation, and the public outcry against him because of his occupation, were essential to the trial court‘s decision.
In support of its affirmance of the trial court, the majority strongly emphasizes the deference generally accorded trial judges in these decisions. This is a mistake. It is simply wrong to defer to a decision based on unconstitutional grounds since we have no way of knowing what the result would have been had the judge based his decision entirely on proper factors. In reality, the majority is independently weighing the evidence and reaching its own determination that Humphreys should be denied conditional discharge. I have no objection to this procedure. In view of the length of this litigation, I agree that independent factfinding is preferable to another remand. However, in this weighing of the evidence, we cannot give to the trial court the deference which would be appropriate had it made a proper decision.
The factor on which the trial court claims to rely most heavily is evidence that Humphreys may have distributed drugs. The evidence suggests that he distributed one valium tablet and that he had tried to grow marijuana that, if he had succeeded, he might have shared with his friends. However, none of this evidence was properly before the trial court. Rather, it was based on evidence the trial judge heard in Humphreys’ separate trial for distribution, in which he was acquitted of that charge.
Our rules and cases clearly establish that all information on which the trial judge relies must be either part of the record of the case or contained in the pre-sentence report. R. 3:21-2; State v. Kunz, 55 N.J. 128 (1969). This rule derives from a defendant‘s constitutional right to see and comment upon all factors on which a sentencing decision is to be based. In addition, the rule is necessary so that the reviewing court can evaluate all the evidence on which the sentencing decision was made. Defendants seeking admission to conditional discharge should similarly be able to confront all adverse evidence that may affect the decision.
The trial court‘s reliance on evidence adduced at a different trial is a clear violation of this principle. Neither the alleged giving of a valium tablet nor defendant‘s alleged intention to give part of his small marijuana crop to some close friends was relevant to the charge that his possession of 27.34 grams was with intent to distribute. Therefore, there was no incentive for defendant to seek to refute that evidence. Moreover, we do not have the record of the first trial before us, so we cannot know the extent to which these allegations were established. All we can know with certainty is that a jury found Humphreys not guilty of distribution.
The second reason offered is that Humphreys is a teacher. This, of course, is the reason for the public outcry against him. Nonetheless, it is agreed that such public pressure is an unconstitutional basis for denial. Nor does the majority contend that Humphreys violated a public trust. The public trust doctrine concerns only persons whose crimes have threatened the public at large, or have been directly related to the trust reposed in such person. Thus, we have approved of conditional discharge or pre-trial intervention for a policeman charged with possession of heroin, State v. Alston, 71 N.J. 1 (1976), a pharmacist charged with diverting cocaine to personal use, State v. Bender, supra, and school teachers charged with possession and receipt of stolen property, State v. Hermann, 80 N.J. 122 (1979). Here as well, defendant‘s wrongdoing has no relation to his occupation as a teacher.2
Yet the majority still suggests that defendant‘s occupation can be considered, though it does not suggest why. Whether or not a person should continue to teach when he has violated the law is not a proper concern of this Court. That is for the school district to determine.3 More likely, the majority is worried that
I think the view that a teacher must be punished to give school children the proper lesson about drug use is misguided. The premise underlying conditional discharge is that drug abuse is an illness as much as a crime. Where a defendant can be diverted into a program that may cure him, at no risk to the community, we have an opportunity to temper justice with mercy and pragmatism, limiting punitive incarceration to cases in which it is needed. This is part of the way our criminal justice system works. Is that so terrible a lesson for children to learn? The desire to hide the workings of conditional discharge from high school students is an improper and inadequate reason to deny Humphreys admission to the program. See State v. Hermann, supra.
The final reason offered is that Humphreys believes there is nothing wrong with marijuana use, advocates reform of the marijuana laws, and therefore is not amenable to rehabilitation. I assume it is beyond dispute that the Constitution manifestly prohibits basing criminal sanctions on a person‘s political beliefs, or on his expression of those beliefs. Out of fairness to my colleagues, I will therefore assume that their concern is that Humphreys’ political beliefs will necessarily entail continued violation of our drug laws. That position reflects two basic assumptions that I decline to adopt.
The first assumption underlying the majority‘s position is that persons supporting legalization of marijuana use it despite its illegality. There is absolutely no basis in fact for such an assumption. Advocacy of legalization represents a view that the criminal justice system is not the best means of dealing with marijuana users. It does not represent any view as to the advisability of using marijuana.
Secondly, the majority is assuming in advance that supervisory treatment of Humphreys’ drug use will have no effect. Again, the only basis for that assumption is defendant‘s advocacy of reform of the marijuana laws, and again the assumption is unfounded. Part of the purpose of drug rehabilitation programs is to change the user‘s attitudes about drug use by teaching the user about the problems associated with it.
I thus conclude that defendant‘s belief in reform of the marijuana laws provides no basis for denying conditional discharge. The majority‘s arguments along these lines amount to the imposition of criminal sanctions on a person because of his political beliefs, which is a dangerous proposition.4
In sum, the majority, under the guise of deference to a trial court decision that merits no deference, has performed its own analysis of the record and has denied conditional discharge for several highly questionable reasons. It relies on unproven allegations of drug distribution not properly part of the record, defendant‘s occupation as a teacher and his advocacy of reform of the marijuana laws. These reasons are each of questionable
These are weak grounds indeed for denying discharge to a man with a strong professional record, a decorated veteran with no prior arrests of any sort, who has been able to conform his conduct to the law during the more than five years since his arrest. I would therefore affirm.
Justice POLLOCK joins in this dissent.
For reversal—Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, HANDLER and O‘HERN—5.
For affirmance—Justices PASHMAN and POLLOCK—2.