Before Judges King and P.G. Levy.
The opinion of the court was delivered by: P.G. Levy, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 15, 1999
On appeal from the Superior Court of New Jersey, Law Division, Salem County.
Defendant and William Quenzel were indicted for possession of LSD, distribution of LSD and conspiracy to distribute LSD. Quenzel accepted a plea agreement, but defendant proceeded to trial, where he was convicted on all counts and sentenced to a net term of fifteen years imprisonment with five years of parole ineligibility; appropriate statutory fines and penalties were assessed.
On appeal, defendant contends:
THE PROSECUTOR'S MISCONDUCT DURING THE TRIAL BY VOUCHING FOR HER WITNESSES; COMMENTING PERSONALLY ON THE EVIDENCE; AND ARGUING PUBLIC POLICY TO THE JURY DURING CLOSING ARGUMENT AND BY STATING THE DEGREE OF THE CRIME ALLEGED TO HAVE BEEN COMMITTED DURING OPENING DENIED THE DEFENDANT A FAIR TRIAL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING AN ALLEGED STATEMENT OF THE DEFENDANT INTO EVIDENCE OVER THE OBJECTION OF DEFENSE COUNSEL PURSUANT TO A RULE 104(C) HEARING.
THE TRIAL COURT FAILED TO GIVE EITHER A STATE V. HAMPTON OR A STATE V. KOCIOLEK CHARGE TO THE JURY, NOTWITHSTANDING THE ADMISSION OF EVIDENCE OF A CUSTODIAL, UNRECORDED STATEMENT DEFENDANT ALLEGEDLY MADE TO THE POLICE.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO PROVIDE THE JURY A CLAWANS CHARGE AT DEFENDANT'S REQUEST PURSUANT TO STATE V. CLAWANS, 38 N.J. 162 (1962), BASED ON STATE'S DECISION NOT TO CALL A CO-DEFENDANT WITH WHOM THE STATE PLEA BARGAINED TO TESTIFY AGAINST THE DEFENDANT, AND WHO HAD SUPERIOR KNOWLEDGE OF THE FACTS AS PRESENTED BY ANOTHER STATE'S WITNESS.
THE COURT ERRED IN ITS CHARGE TO THE JURY ON THE ELEMENTS OF POSSESSION OF A CONTROLLED AND DANGEROUS SUBSTANCE WITH INTENT TO DISTRIBUTE AND CONSPIRACY TO DISTRIBUTE A CONTROLLED AND DANGEROUS SUBSTANCE IN THAT THE COURT DID NOT INSTRUCT THE JURORS WITH RESPECT TO THEIR DUTY TO FIND THE WEIGHT OF THE SUSPECTED SUBSTANCES, REQUIRING REVERSAL.
We disagree with defendant on all but the first contention. We conclude that the prosecutor's comments, which breached the basic restraints against prosecutorial excess, were inappropriate and inflammatory that the trial judge's curative instructions ...