On appeal from Superior Court of New Jersey, Law Division, Ocean County.
Brody and Skillman. The opinion of the court was delivered by Brody, J.A.D.
We now consolidate the separate appeals of co-defendants Baker and Simmons who were each found guilty by a jury of possession of heroin contrary to N.J.S.A. 24:21-20(a)(1), and sentenced to a four-year prison term. We reverse both convictions because the trial judge erroneously admitted critical hearsay evidence of defendants' guilt.
Soon after receiving a telephone tip from an informer, police in unmarked cars and wearing plain clothes stopped a car owned and operated by Lee Siegel in which defendants Baker and Simmons were passengers. Baker was sitting in the front seat. Simmons was in the back seat. All three were arrested.
Siegel thereafter consented to a full search of his car. One of the searching officers noticed that there were "scratch" marks on the heads of the upper four of six Phillips screws that held in place a plastic panel covering the rear of the back of the front passenger seat. When he also noticed that the two uppermost screws were not as neatly set into the panel as the others, he removed the four upper screws and pulled the top of the panel away from the back of the seat. Behind the panel he saw an open bag that contained 45 small packets of heroin. A police officer testified that a bag of that kind usually contains 50 packets when sold, each packet costing about $20.
Siegel died of a drug overdose several months before trial. He was the informer who had tipped off the police. A few days before he provided the tip leading to defendants' arrest, Siegel had been arrested while attempting to break into a store. In an effort to gain consideration in the disposition of that case, he offered to furnish the police with evidence that would incriminate defendants who he said were supplying him with heroin to satisfy his six-packets-a-day habit.
Defendants did not testify. Their lawyers argued to the jury that the State had failed to prove that defendants had knowledge of the hidden heroin, much less that they possessed it. They contended that the evidence supported the conclusion that Siegel alone possessed the heroin to satisfy his heavy habit.
The assistant prosecutor overcame the handicap of not having Siegel's testimony by calling as a witness a police officer who testified that Siegel was the informer who had provided the telephone tip that led to defendants' arrest. When defendants objected that the testimony was in effect inadmissible hearsay, the trial judge did not appreciate the hearsay implications of identifying Siegel as the informer. He ruled that once the officer testified that he recognized Siegel's voice on the telephone, the officer was competent to testify that Siegel was the caller so long as he did not disclose any statements that Siegel made which incriminated defendants.
We agree with defendants that when the police witness identified the owner and operator of the car as the source of the tip, he in effect advised the jury that Siegel had told him that defendants knowingly possessed the heroin hidden in the car. The inference is irresistible that Siegel tipped off the police to advise them of defendants' criminal conduct and not just his own. Although Siegel's incriminating hearsay statement was placed before the jury by inference, its impact was essentially the same as it would have been had Siegel's words been quoted directly.
We base our analysis on State v. Bankston, 63 N.J. 263 (1973). The court there noted that the hearsay rule does not bar a police witness from testifying that he approached a suspect or went to the scene of a crime "upon information received" where the evidence is not offered to prove that the information received was true but only that "the officer was not acting in an arbitrary manner or to explain his subsequent conduct." Id. at 268. There is seldom any justification for
admitting such evidence where the defendant does not claim that the police acted ...