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State v. Boone

Decided: November 7, 1974.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JOHN BOONE, DEFENDANT-RESPONDENT



For affirmance -- Chief Justice Hughes and Justices Jacobs, Hall, Mountain, Sullivan, Pashman and Clifford. For reversal -- None. The opinion of the Court was delivered by Pashman, J.

Pashman

[66 NJ Page 39] Defendant appealed his conviction to the Appellate Division challenging there the propriety of the trial court's failure to grant a mistrial after the jury learned of the defendant's prior guilty plea, later withdrawn by leave of court. The Appellate Division reversed. State v. Boone, 125 N.J. Super. 112 (App. Div. 1973). We granted the

State's petition for certification, 64 N.J. 310 (1973)*fn1 and we now affirm.

Following purchase of morphine from defendant and one Watson Dixon by a confidential informant, detectives of the Narcotics Division of the Paterson Police Force arrested defendant Boone and Dixon in the latter's parked automobile. A search of the car revealed 51 glassine envelopes of morphine which were concealed in the arm-rest.

The Passaic County Grand Jury indicted Boone and Dixon for possession of a controlled dangerous substance in violation of N.J.S.A. 24:21-20. Boone initially pleaded not guilty on April 29, 1971 but on June 8, 1971 he entered a guilty plea to the indictment before the Honorable Vincent C. Duffy, J.C.C. On July 14, 1971, however, Judge Duffy permitted Boone to withdraw his guilty plea and enter a substituted plea of not guilty.*fn2 Watson Dixon also entered a plea of guilty and was permitted to withdraw it. But Dixon elected to re-enter his guilty plea a few days before trial.

Boone was tried in September 1971 and was convicted by a jury on the charge of possession of morphine. He was sentenced to a term of three to five years in the State prison.

At his trial, Boone sought to prove that he was not in possession of the narcotics, and was in Dixon's automobile only briefly when the detectives made their arrest. To corroborate this version, Boone called Dixon as a defense witness. It was the State's position that the alternating entry and withdrawal of guilty pleas by both Boone and Dixon were

merely a tactic to see who would "take the weight" for the crime.*fn3 In an attempt to impeach Dixon's testimony that he alone had possession of the narcotics, the State questioned him concerning the substituted pleas:

Q. You pleaded guilty to this charge once before, didn't you?

A. Yes.

Q. In September?

A. Yes.

Q. Then you changed your mind and decided not to plead guilty, isn't that right?

A. Right.

Q. Then you pleaded guilty again, a couple of days ago?

A. Yes.

Q. Now in September -- withdraw that. When you pleaded guilty the first time, Mr. Boone also pleaded guilty, didn't he?

MR. OSOFSKY: I object, that is totally ...


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