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State v. Lykes

November 5, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS LYKES, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Supreme Court addresses two issues on appeal: 1) whether defendant, Thomas Lykes, was improperly impeached by use of a prior conviction for possession of cocaine, the use of which had been deemed too remote and, therefore, inadmissible; and 2) whether the trial court's response to the jury's question in respect of Lykes' prior knowledge of cocaine was in error.

Jersey City police officers Louis Mecka and Roosevelt Cumberbach were patrolling an area known for its drug activity on July 26, 2000. The officers observed Lykes approach co-defendant Daniel Veal, who was standing at the corner of Astor Place and Monticello Avenue. The officers watched as Lykes spoke with Veal and then handed Veal money. Veal then walked to a nearby tree, placed several small objects at the base of the tree, and returned to the corner. Lykes thereafter was observed walking to the tree, retrieving what had been left behind by Veal, placing the retrieved objects in his pants pocket, and walking away. Believing that a drug transaction had taken place, the officers radioed for assistance and Lykes was stopped by Officer Mecka at the next corner. When stopped, Lykes reached into his pocket and retrieved four vials containing what was later determined to be cocaine. He was arrested and later charged with third-degree possession of a controlled dangerous substance (cocaine).

The day prior to jury selection, the State advised the trial court that Lykes had two prior convictions that might be used to impeach him: a 1990 conviction for third-degree possession of cocaine, the same crime for which Lykes was being tried; and a 2000 conviction for fourth-degree resisting arrest. The trial judge conducted a Sands/Brunson hearing to determine the admissibility of these prior convictions and, if admissible, whether there was a need for sanitization, thereby limiting the evidence to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which the defendant was previously convicted. The trial court ruled that the 1990 cocaine possession was too remote in time to be admissible to impeach Lykes' credibility. However, the court admitted evidence of the 2000 resisting-arrest conviction to impeach Lykes' credibility but did not require sanitization because that conviction was not at all like the charge Lykes was facing at trial.

Following the court's admissibility determination, the parties presented their opening statements to the jury; with the defense focusing on the argument that Lykes did not know what was in the vials when he picked them up. Lykes testified that he did not have a conversation with Veal about purchasing drugs and that he saw the four vials while walking along the street near the middle school. He picked them up and, although he did not know whether they contained cocaine, he assumed that the vials could contain a dangerous substance like drugs or rat poison. Lykes claimed that he planned to throw the vials in the sewer so that they wouldn't be picked up by a curious child.

Before beginning cross-examination, the prosecutor at sidebar explained to the judge that Lykes' testimony that he didn't know what the vials were contradicted his earlier, barred cocaine-possession conviction, as well as his admitted long-term and repeated cocaine use. The trial court permitted the State to question Lykes about his knowledge, or lack thereof, in respect of what was contained in the vials but warned the State to avoid the 1990 cocaine-possession conviction. The trial court further ruled that the State was entitled to ask whether or not Lykes had seen drugs that looked like that ever before and whether he is familiar with what cocaine looks like.

Confronted with inconsistent testimony from Lykes concerning whether he had previously seen full vials of cocaine, the State asked Lykes whether he had held full vials of cocaine in his hand. Defense counsel objected and requested a mistrial, claiming that N.J.R.E. 404(b) precludes that line of questioning because the evidence of a prior bad act or other crime permitted the jurors to conclude that Lykes had a propensity to commit drug offenses and is so prejudicial as to render them inadmissible. The trial court overruled the objection and denied the mistrial application, finding that the evidence was relevant and that its probative value was not substantially outweighed by the risk of undue prejudice. The trial court nevertheless explained that it would allow one question on the subject: whether or not Lykes "ever held a vial of cocaine in his hand before," and would issue a limiting instruction to the jury immediately following that testimony. Lykes answered "yes" when the prosecutor asked him this one question. The judge then gave a limiting instruction, telling the jury that they could not use the evidence for any purpose other than whether or not it affects Lykes' believability or credibility on the issue of picking up the vials on July 26th and whether he had knowledge as to what the vials were.

At the conclusion of trial, the trial court gave an additional limiting instruction in respect of the evidence introduced as to whether Lykes had ever held a vial of cocaine in his hand. During deliberations, the jury sent a note to the judge inquiring whether Lykes had to know it was cocaine or a dangerous substance (narcotics). Defense counsel objected to the court's jury instruction on this issue, which the court overruled. The jury returned a guilty verdict and Lykes was sentenced to a four-year term of incarceration.

On appeal, a divided panel of the Appellate Division, in an unpublished per curiam opinion, affirmed Lykes' conviction and sentence. The majority concluded that Lykes received a fair trial and that any error was not clearly capable of producing an unjust result. The dissenting member of the panel disagreed, finding that the truthful answers that Lykes was forced to provide to the query of whether he had ever before held a vial of cocaine effectively forced him to give evidence of prior wrongs or crimes that were irrelevant and resulted in prejudice that was not cured by the judge's instructions.

Lykes filed an appeal as of right based on the dissent in the Appellate Division. The Supreme Court also granted certification limited solely to the issue of whether the trial court properly instructed the jury in response to the jury's question in respect of Lykes' prior knowledge of cocaine.

HELD: Because Lykes placed his knowledge as to the contents of the four vials directly at issue, N.J.R.E. 404(b) does not bar the limited impeachment use of Lykes' admission of having earlier held cocaine vials and the questions allowed in this area were proper. Furthermore, taken as a whole, the trial court's response to the jury's question in respect of Lykes' knowledge as to the contents of the vials fairly and adequately instructed the jury and, therefore, was proper.

1. The general rule regarding the inadmissibility of prior bad acts or other-crimes evidence is codified in N.J.R.E. 404(b) and framed in State v. Cofield's four-pronged test. Under the first Cofield prong, it is clear that Lykes' familiarity with vials of cocaine was directly relevant to the case against him. The second prong -- that the other crime is similar in kind and reasonably close in time to the offense charged -- also has been met in that the proofs adduced were relevant to Lykes' knowledge of what he picked up on the street and if he knew they were vials of cocaine. The third prong - whether the other-crime evidence is clear and convincing - is also readily satisfied. Lykes admitted on cross-examination that he previously had seen cocaine vials. The fourth prong -- that the probative value of the evidence outweighs any apparent prejudice -- also is satisfied, particularly in light of the trial court's exhaustive limiting instruction. (Pp. 18-25)

2. Lykes' prior involvement with a vial of cocaine was relevant to the jury's assessment of his credibility and was relevant to the material issue in dispute. The jury was given two specific and comprehensive limiting instructions that clearly explained the limited purposes of the testimony. Thus, the admission of that evidence was proper. Furthermore, the trial court fairly and adequately instructed the jury in response to its question during deliberations. The court's response reinstructed the jury on the term "knowing" within the context of a possession case and limited its application to only cocaine. (Pp. 25-28)

Judgment of the Appellate Division is AFFIRMED.

JUSTICE ALBIN, DISSENTING, in which JUSTICES LONG and WALLACE join, is of the view that the trial court admitted other-crime evidence without conducting an N.J.R.E. 104 hearing or making any findings concerning the relevance of that evidence or whether its probative value was outweighed by its prejudicial value. Based on this inadequate record now before the Court, it is impossible to say that Lykes was not convicted merely because of a ten-year-old violation of the law that bore little or no relevance to the charges contained in the indictment. The testimony compelled from Lykes -- that he previously held a vial of cocaine -- had the capacity to turn the jury against him and thoroughly infect the proceedings with irreparable prejudice. As such, Lykes did not receive a fair trial and his conviction should be overturned.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and HOENS join in JUSTICE RIVERASOTO'S opinion. JUSTICE ALBIN filed a separate dissenting opinion in which JUSTICES LONG and WALLACE join.

The opinion of the court was delivered by: Justice Rivera-soto

Argued September 11, 2007

Two plainclothes Jersey City police officers observed defendant Thomas Lykes purchasing what was later determined to be four vials of cocaine from his co-defendant Daniel Veal. Defendant claims that his subsequent trial was tainted in two respects. First, defendant claims he improperly was impeached by the use of a prior conviction for possession of cocaine, the use of which had been deemed too remote and, hence, inadmissible. Second, defendant alleges that the trial court's response to the jury's question in respect of defendant's prior knowledge of cocaine was in error.

Because defendant placed his knowledge as to the contents of the vials directly at issue, N.J.R.E. 404(b) does not bar the limited impeachment use of defendant's admission of having earlier held cocaine vials and that the questions allowed in this area were proper. Also, taken as a whole, the trial court's response to the jury's question in respect of defendant's knowledge as to the contents of the vials -- that is, whether it was necessary that the State prove that defendant knew the vials contained cocaine or whether the State's burden, instead, was that the vials generically contained controlled dangerous substances -- was proper. We therefore affirm the judgment of the Appellate Division.

I.

On July 26, 2000, Jersey City police officers Louis Mecka and Roosevelt Cumberbach, dressed in plain clothes and driving an unmarked vehicle, were patrolling an area known for its drug activity. At approximately 8:45 p.m., Mecka and Cumberbach saw defendant approach Veal, who was standing at the corner of Astor Place and Monticello Avenue. The officers observed defendant and Veal engage in a brief conversation, followed by defendant handing money to Veal.

While defendant remained at the corner, Veal walked to a nearby tree, placed several small objects at the base of the tree, and returned to the corner. Defendant then walked to the tree, retrieved what had been left behind by Veal, placed the objects in his pants pocket, and continued walking. Believing a drug transaction had taken place, Mecka and Cumberbach radioed for assistance and, as uniformed officers appeared, Mecka stopped defendant at the next corner. When stopped, defendant reached into his pocket and retrieved four vials containing what was later determined to be cocaine. Defendant was arrested*fn1 and later charged with one count of third-degree possession of a controlled dangerous substance (cocaine), in violation of N.J.S.A. 2C:35-10(a)(1).

The day before the jury was selected, the State advised the trial court that defendant had two prior convictions that might be used to impeach him: a 1990 conviction for third-degree possession of cocaine, the same crime for which defendant was being tried; and a 2000 conviction for fourth-degree resisting arrest, in violation of N.J.S.A. 2C:29-2(a)(2). The trial judge instructed both the prosecution and the defense to confer on the matter and, if necessary, the trial court would conduct a Sands/Brunson hearing.*fn2 The following day, after the jury was selected and sworn, but before opening statements were delivered, the trial court conducted a Sands/Brunson hearing. Acknowledging that "[t]he State offered voluntarily to sanitize the convictions pursuant to [Brunson, supra] and indicated [it] would introduce the date, the degree of the crime for the conviction, and the sentence[,]" the trial court nevertheless ruled that "the 1990 [cocaine possession] conviction is remote and cannot be used to impeach [defendant's] credibility" but that "the State may indeed use [defendant's 2000 resisting arrest conviction] to impeach [defendant's] credibility and may use it in an unsanitized version since it is not at all like the charge [defendant] is facing today."

Following that determination, the parties presented their opening statements to the jury. Conceding that defendant was observed picking up the vials and had the vials in his possession when arrested, defendant's opening statement focused on the following:

the important thing about [defendant] is in order to be found guilty of possession of the drug you got to know that it's a drug.

You have to have knowledge that what you're picking up is a drug. When my client picked those vials up it could have been a rat poison, it could have been -- it could have been anything. It could have been oregano, who knows.

So he didn't know what was in those vials.

[(Emphasis supplied).]

The following day, defendant testified and denied having had any conversation with Veal or purchasing any drugs from him. Defendant explained that, while walking along Astor Place, as he "approached the school[, r]ight about the middle of the school I observed four objects . . . laying on the ground -- from one another, separate." He testified that "when I got closer I picked -- I looked at it, it was four vials." Defendant demonstrated that the "four vials [were] approximately a foot or two apart from each other in a more or less straight line" and that "[a]s I approached -- [I] picked up one, walked down a little further got the other one, walked a little bit further found the third one, walked up -- picked up the fourth one." Defendant then testified on direct examination as follows:

Q: When you picked up these vials did you know what it was that was in them?

A: No. I suspected that it could have been drugs or dangerous substances, rat poison, anything because ---

Q: Is this unusual to find drugs lying on the street in this area?

A: Every now and then you would find something like that because sometime or another somebody probably dropped something or you can find empty vials. Possible --syringes, empty marijuana bags all over the street. So that ain't nothing new especially in that area.

Q: What were you going to do with [the vials]?

A: I was going to take a look at it and walk by the sewer and just throw it by the sewer, down there.

Q: What was the reason why you would do that?

A: Because I have children and they also go to public schools and I wouldn't like them to find any drug substance or anything that looked like drug substance around the school or anything because people does --children does have a curiosity to pick up things.

[(Emphasis supplied).]

Before commencing her cross-examination of defendant, the prosecutor asked to approach the bench. Once at sidebar, the prosecutor explained that defendant had "testified as to claiming that he doesn't know what the substance he picked up on the street was[,]" a claim contradicted by defendant's earlier, but barred, cocaine possession conviction, as well as by his admitted long-term and repeated cocaine use. The trial court reasoned that the State was "entirely entitled to ask [defendant] about his knowledge, the lack of knowledge, or basis for any knowledge about whether what was in the vials was drugs or not drugs." Instructing the State to steer clear of defendant's 1990 cocaine possession conviction, the trial court ruled that the State was "entitled to ask [defendant] whether or not he has ever seen drugs that look like that before, whether he's familiar with what cocaine looks like." The trial court made clear, however, that "references specifically to the conviction or anything like that [are] inappropriate[.]"

Complying with those instructions, the State cross-examined defendant as follows:

Q: Are you familiar with how cocaine is packaged?

A: They have various packages, you know, what you see on television and things, how people do.

Q: Do you have personal knowledge of how ...


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