Submitted October 21, 1997
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Before Judges Conley, Wallace and Carchman.
The opinion of the court was delivered by: Carchman, J.s.c, (temporarily assigned).
Following a jury trial, defendant was convicted of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); third degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A 2C:35-5b(3); and possession of a controlled dangerous substance with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. On appeal defendant claims, among other things, that the trial Judge failed to charge the jury on issues of unanimous verdict, witness credibility and prior inconsistent statements as a result of which, defendant did not receive a fair trial. We conclude that the charge taken as a whole failed to instruct the jury on issues that were germane to the case and the jury's deliberations. Accordingly, we reverse and remand for a new trial.
The facts are these. On the afternoon of May 2, 1995, members of the East Orange narcotics unit were conducting surveillance of drug activity in the area of Main and 15th Streets in East Orange, a location within 1000 feet of school property. Detectives Tucker and Louis were in plain clothes and in an unmarked car attempting to detect drug transactions. Back-up was provided by Detectives Martinez and Cox, who were driving in the area also in an unmarked car and dressed in plain clothes. At about 3:00 p.m., Tucker observed defendant engage in what appeared to be several drug transactions in the vicinity of Main and 15th Streets.
Tucker saw a suspected buyer, Sykes, park his car across the street from where defendant was standing. According to Tucker, defendant approached the car, had a short conversation with the occupant, and appeared to provide the occupant with a small item in exchange for money. Tucker then radioed other units and instructed them to detain defendant while Tucker and Louis followed and arrested Sykes. Sykes was apprehended, detained and searched and found to be in possession of a bag of marijuana.
Martinez and Cox saw defendant standing on the corner outside of Cooper's Delicatessen. According to Martinez, after defendant made eye contact with the detectives, defendant turned, dropped something to the ground, and began to walk away. Cox retrieved the dropped item, which proved to be a snuff can containing twenty-two bags of heroin. Defendant was detained, searched and found to be in possession of ten dollars. He was then handcuffed and taken to police headquarters. Tucker identified defendant as the person he had seen in the drug transactions.
During cross examination of the State's two police witnesses, defense counsel highlighted several alleged inconsistencies between the officers' testimony and their police reports of the incident. Defense counsel pointed out that while Tucker claimed at trial that he had seen defendant engage in multiple drug transactions, his police report, prepared the day of the incident, indicated that he had only observed a single transaction. When Tucker was told of this discrepancy on cross examination, he stated that he had made an error on the police report and that it should have indicated the observation of several transactions.
Next, defense counsel asked Tucker about another inconsistency between his police report, in which he said that a bag of marijuana was seized from Sykes at headquarters, and his trial testimony in which he said the marijuana was found during a search of Sykes at the scene of his arrest. Again, Tucker explained that the report was erroneous and that the marijuana had been found on Sykes' person at the time of his arrest.
Defense counsel then noted that while Tucker claimed in his testimony that the back-up unit - Martinez and Cox - had gone directly to the scene to arrest defendant at the same time that Tucker and Louis followed and arrested Sykes in Newark, Tucker's police report indicated that the back-up units had returned to the scene in East Orange to attempt to find defendant. Tucker explained that there were several back-up units involved in the surveillance operation and that he had requested back-ups to help with the arrest of Sykes, but when no help arrived, he and Louis arrested Sykes.
During cross examination of Martinez, defense counsel asked Martinez to explain why, if he and Cox had arrested defendant, the arrest report indicated that Louis and Cox had been the arresting officers. Martinez denied that there was any error in the police report suggesting that any officer in the group conducting surveillance and making the arrest can get credit for the arrest on the police report.
Prior to trial, defense counsel served a subpoena on Sonny Cooper, the owner of the delicatessen outside of which the police claimed to have arrested defendant. The subpoena was made returnable at 11:00 a.m. At 10:50 a.m., the witness had not appeared and the Judge gave the jury a twenty minute break. By 11:15, the witness still had not appeared and the Judge allowed for fifteen more minutes. At 11:30, having waited a total of forty minutes for the witness to appear, the court declined to give any further adjournment. While waiting for the witness, the State argued that defendant had never revealed during discovery the existence of a defense witness. Additionally, defense counsel had not offered any proof demonstrating the materiality of the testimony.
During the conference on jury instructions, defense counsel requested that the court give a legal instruction addressing prior inconsistent statements by a witness, because of the alleged inconsistencies between the trial testimony and police reports. The trial Judge refused to give the charge stating:
t is not a statement, that's the police report. It is not evidential. A statement is under oath and evidential.
No, I am not going to give inconsistent statement. You can argue the difference in the report and what is testified to, but it ...