Lynch, Milmed and Antell. The opinion of the court was delivered by Antell, J.A.D.
This is an appeal from a judgment of conviction for distribution of a controlled dangerous substance, N.J.S.A. 24:21-19(a) (1). Error is assigned in the refusal of the trial judge to order disclosure of an informant's identity, in the exclusion of evidence, and in prejudicial comments by the prosecutor during summation. The interrelationship of these contentions becomes clear from an examination of the parties' separate theories of the case.
According to the testimony of Investigator Oakley, the State's witness, he met defendant through a confidential police informer on a street corner in Elizabeth. The two spoke briefly in the informer's presence and defendant stated that he had some "dimes" to sell, that is, $10 quantities of a narcotic. The informer then walked some 10 to 15 feet away where he talked with someone else while the transaction was completed. Oakley placed two $5 bills in the open trunk of defendant's car and defendant took a small glassine envelope from his trouser pocket and handed it to the investigator who then left the scene.
Defendant's version is that on that day a car driven by a male whom he later identified as Oakley, stopped at a corner where he was washing his car and discharged one Ronald Brown. Animosity had prevailed between Brown and defendant for some years, and when Brown asked that defendant sell him heroin defendant cursed and ordered Brown from the scene. He denied being introduced to Oakley or having participated with him in the criminal transaction. Two witnesses, one defendant's former wife and another a companion who was helping to wash defendant's car, corroborated defendant's account of the incident described.
Excluded from evidence was the testimony of William Harris, proffered by defendant, that about two weeks later Ronald Brown told him that he had bought drugs from someone else and falsely named defendant as the seller to the undercover agent. This statement was offered as a declaration against interest, but rejected for lack of "circumstantial trustworthiness." Offered and rejected on the same ground was testimony by defendant's sister, Gloria West. She would have testified that prior to the date of the alleged crime Brown told her he wanted to harm the defendant, who had once thrown Brown out of his home.
In addition to being hearsay, the trial judge also ruled this evidence was irrelevant since the indictment did not rest upon a sale to Brown. His extrajudicial statements were therefore regarded as unrelated to any of the issues legitimately presented and therefore inadmissible. What seems not to have been considered, however, was the explanation which defendant was trying to offer for the policeman's incriminating testimony. This was that the officer, satisfied in his own mind from the informant's advice that defendant was selling drugs, and believing it was a case where the end justified the means, falsely testified that the sale was made to him. In this way, so defendant argues, the charge could be prosecuted without revealing the informant and
without hobbling the prosecution in the distracting details of Brown's bitter personal relationship with defendant.
This was the line of defense by which defendant hoped to create a reasonable doubt. The nature of the defense is, of course, relevant on a motion for disclosure. State v. Milligan , 71 N.J. 373, pp. 390-391 (1976). Naturally, we express no opinion as to its merits, but it was one which should not have been foreclosed. Without it, all the jury could consider was defendant's word against a disinterested police officer's, and defendant's disadvantage in this contest was fully exploited by the prosecutor's repeated emphasis during summation on the policeman's lack of incentive to lie. Furthermore, knowing what defendant had tried to show, the prosecutor forced the issue to its limits when he categorically asked:
And where did the evidence come from if it didn't come from Thomas West to Richard Oakley? No explanation for that from the defense.
The unfairness of this rhetoric lay in the fact that these were the very questions which defendant urged could have been answered by the proffered evidence.
The interest of defendant in knowing if Brown is the informant lies in the fact that the latter's extrajudicial statements are meaningful only if he occupied this relationship with Oakley. Thus, he asked only that the State commit itself as to this vital fact. If Brown is the informer (and the State has in various ways during these proceedings left little question but that he is) the relationship between the discordant versions of what ...