On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
J.h. Coleman, Bilder and Stern. The opinion of the court was delivered by Stern, J.A.D.
The opinion by the court was delivered by
Defendants were jointly indicted for possession with intent to distribute one-half ounce or more of cocaine, contrary to N.J.S.A. 2C:35-5a(1) and -5b(2) (count one). Featherston was also indicted for using a remotely activated paging device during the commission of the possession with intent to distribute, contrary to N.J.S.A. 2C:33-20 (count two). Defendants were jointly represented and tried together. They were both convicted on count one, and Featherston was convicted on count two. Medina was sentenced to an indeterminate term, not to exceed 5 years, and fined $1,000. A $2,000 DEDR penalty and $30 VCCB penalty and $50 lab fee were also imposed. Her driver's license was suspended for six months. Featherston received an indeterminate term not to exceed 7 years for the possessory offense and a concurrent indeterminate 18 month
sentence for the illegal use of a paging device. Featherston was fined $2,000, received a $2,000 DEDR penalty, aggregate $60 VCCB penalty and $50 lab fee. His license was also suspended for six months.
On this appeal defendants jointly argue:
POINT I EVIDENCE ELICITED ON CROSS-EXAMINATION REGARDING DEFENDANT FEATHERSTON'S PRIOR ARREST WAS CLEARLY INADMISSIBLE AND PREJUDICIAL AND, THEREFORE, A NEW TRIAL SHOULD HAVE BEEN GRANTED.
POINT II THE CONVICTIONS WERE TAINTED BY PROSECUTORIAL MISCONDUCT AND, THEREFORE, SHOULD BE REVERSED.
POINT III THE JURY CHARGE WAS IMPROPER AND, THEREFORE, A NEW TRIAL SHOULD BE GRANTED.
A. Certain Portions Of The Jury Charge Were Prejudicial To Defendants And, Therefore, A New Trial Should Be Granted. (Not Raised Below).
B. The Jury Charge As To The Second Count (Possession Of A Paging Device) Was Overly Broad And, Therefore, A New Trial Should Be Granted.
POINT IV THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE; THEREFORE, A NEW TRIAL MUST BE GRANTED.
In order to understand the contentions and our holding, we briefly recite the essential testimony and developments at trial.
In June 1990 the Franklin Township Police Department and the Border Anti-Drug Team of Middlesex and Somerset Counties (BADT) conducted an investigation of suspected drug activity involving Featherston. The investigation led to surveillance of Featherston's home in Franklin Township and ultimately to the issuance on July 7, 1990 of a search warrant which authorized a search of Featherston's person, his residence and his car, and the 1985 silver Nissan belonging to his girlfriend, defendant Medina.
After procuring the warrant, the raid team determined that Featherston was not at home and "disbursed throughout Franklin Township trying to locate" Featherston or his vehicle. They ultimately received information that Featherston would be
in the area of Route 27 near the Four Musketeers Restaurant "for a possible drug transaction."
At approximately 9:30 p.m. on July 7, 1990 the police observed Featherston and Medina entering the Four Musketeers Restaurant. The two subsequently left the restaurant and entered Medina's car which the police stopped on Route 27. Detective Fitzgerald and Officer Price "approached the vehicle . . . and relayed to Michael Featherston that [they] in fact did have a search warrant for his person, the vehicle, [and] his residence." A patdown of Featherston revealed an "activated" "paging device" which was turned on and capable of receiving incoming calls. While the police did not conduct a thorough search of the vehicle at that time, they did conduct a brief search of the car for weapons and, finding none, "secured" the vehicle. They thereafter went to search Featherston's home.
At trial, Lieutenant Andrew Racz of the Somerset County Prosecutor's Office testified that he had a conversation with Featherston as the house was being searched. According to Racz, Featherston volunteered to aid the police in the apprehension of one Jose Crespo who, approximately six months earlier, "was a target of a previous investigation" in which "a quantity of CDS and money . . . and a weapon was seized." Featherston told Racz that "Crespo had stopped at his [Featherston's] house the previous Saturday and wanted him to travel to New York City to purchase a quarter pound of cocaine." Featherston further indicated that he was "willing to cooperate" with the police in "an effort to arrest this Mr. Crespo in the process of purchasing this cocaine."
Following the conversation, Detective Stuart Buckman of the Somerset County Prosecutor's Office informed Racz that the search of Featherston's bedroom led to discovery of a loaded "nine millimeter Beretta handgun" (for which Featherston had a permit) with "a clip with bullets in the gun and a clip next to the gun." Buckman noted that the gun "wasn't like a stored weapon in a gun case, it was found loaded under a cushion," in
Featherston's bedroom. Ammunition was also discovered, as were lists of names and numbers identified as "drug lists."
Following his conversation with Featherston, Racz undertook a complete search of the Medina vehicle which produced "a plastic bag containing a white granular substance." After "retrieving" the plastic bag from the trunk, Racz "entered the residence," and "immediately upon seeing [Racz] with [the] bag" Featherston told the Lieutenant "[o]h that's nothing, that's just soap powder that I used to get the stains out of my jeans."
Racz gave the bag to Detective Fitzgerald and requested that he "field test the substance." However, the test was not conducted because, although they had a "marijuana field test kit," they "didn't have a cocaine field test kit" with them at the time. Racz informed Featherston that the substance "would be sent to the State Police Lab for a positive identification" and that Racz would conduct a field test on the substance when he returned to headquarters. Defendants were not then arrested.
Featherston testified at trial and claimed that the police did test the substance taken from the car in a "vial" or "test tube" and discovered that it was "soap." According to Featherston, Fitzgerald reported to the others, "I can't believe we got soap." Featherston also testified that the lists of people, with numbers beside the names, retrieved from his bedroom did not relate to drugs. Rather, they were members of a softball team to which he belonged or the names of "people who owed money to Diane [Medina] or myself for loans."
Medina also testified at the trial and verified Featherston's assertions regarding the lists seized during the search. She testified that on her eighteenth birthday in November 1989 she received the proceeds of a settlement from a car accident which amounted to $72,000.00. She further testified that she gave $25,000 to her parents and spent the rest by sponsoring a
softball team and lending money to the people on the list.*fn1
Racz testified that upon returning to BADT headquarters, he performed a field test on the confiscated substance and that the result was "in fact positive for cocaine." According to Racz, when Featherston was told of the results, he "accused" Racz of "putting cocaine into that substance." According to Racz, ...