On appeal from Superior Court, Law Division, Essex County.
Antell, Long and Thomas. The opinion of the court was delivered by Antell, P.J.A.D.
Defendant was convicted of possessing a controlled dangerous substance (cocaine) contrary to N.J.S.A. 2C:35-10a(1). He was thereafter sentenced to serve a four-year custodial term and ordered to pay a $1000 Drug Enforcement and Demand Reduction penalty, a $50 laboratory fee and a $30 Violent Crimes Compensation Board penalty. In addition, his driver's license was suspended for six months.
Defendant was arrested in the lobby of a Newark apartment building in the course of a police raid. According to the State's testimony, he had dropped a cellophane bag containing three vials of cocaine and a $50 bill onto the floor as the police entered. Both items were recovered. The defense directly challenged the credibility of the State's witnesses, and from the testimony given by defendant and his supporting witness it was maintained that upon entering the building they were confronted by five armed police officers who immediately searched them but found no contraband on their persons. According to defendant, the cellophane bag was actually found by the police in a fireplace within the lobby. This appeal from defendant's conviction focuses upon the effect of claimed prosecutorial excess in the State's opening and summation.
On opening, the prosecutor made the following statement to the jury:
Who has the interest, who has motive, who would come before you and lie? That will probably be what you will have to decide and I ask that you observe the witnesses as they testify for you and use your common sense. You all understand the particular drug problem that we have in this country, particularly Newark and I submit to you, that the police officers don't have to make up facts. [Emphasis added]
When defendant objected the trial court said only, "All right. I think just stay within the facts. You have your summations, Mr. [Prosecutor]."
The prosecutor returned to this theme in summation by saying, " [w]ith the war on drugs, he [the police witness] didn't have to come before you and fabricate these type [sic] of cases.
I submit to you he came before you and told you the truth." (Emphasis added).
The obligation of a prosecutor to refrain from improper methods of obtaining convictions is a recurrent subject of judicial comment. Berger v. United States, 295 U.S. 78, 84-89, 55 S. Ct. 629, 631-33, 79 L. Ed. 1314, 1319-22 (1935), State v. Rose, 112 N.J. 454, 518-524, 548 A.2d 1058 (1988); State v. Ramseur, 106 N.J. 123, 319-324, 524 A.2d 188 (1987); State v. Spano, 64 N.J. 566, 319 A.2d 217 (1974); State v. Ross, 249 N.J. Super. 246, 250, 592 A.2d 291 (App.Div.1991), are only a few examples. As the Supreme Court stated in State v. Spano, supra, 64 N.J. at 568, 319 A.2d 217, "[t]here is now a plethora of cases where prosecutors have been admonished."
In State v. Rose, supra, the Court found reversible error in the prosecutor's conduct in "focusing the jury's attention on matters outside the scope of the record," such as by emphasizing the importance of preventing defendant from committing future acts of violence and the necessity to "send a message" to the community as to the penalty for crime. 112 N.J. at 519-20, 548 A.2d 1058. Similarly, in State v. Ramseur, supra, 106 N.J. at 321, 524 A.2d 188, it was held improper for the prosecutor to argue that the jury should impose the death penalty "to satisfy its responsibility to society." In State v. Spano, supra, plain error was found where the prosecutor interrupted defense counsel's opening statement to the effect that this was defendant's first opportunity to defend against the criminal charge for which he was on trial, to announce before the jury that the defendant "had the opportunity, if he so desired, to appear before the Grand Jury and give testimony." 64 N.J. at 567, 319 A.2d 217. Likewise, in State v. Ross, supra, we found plain error where the assistant prosecutor disingenuously argued to the jury that they ...