May 2, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
INGER STEVENS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-1765.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2008
Before Judges S.L. Reisner and Baxter.
Defendant Inger Stevens appeals from her conviction, following a jury trial, for possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); two counts of possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1); two counts of school zone CDS possession with intent to distribute, N.J.S.A. 2C:35-7; and CDS possession with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1. We affirm.
Defendant was indicted based on her sale of drugs to an undercover police officer. The State's case rested on the testimony of the police officer to whom defendant sold cocaine in a public park in East Orange, and the testimony of a police detective who witnessed the transaction. No other witnesses testified at the trial. We review the trial evidence, focusing on those portions defendant alleges violated her rights under the Confrontation Clause.
At the beginning of her testimony, the undercover officer testified that she had a desk assignment, but from time to time she performed undercover assignments for the Vice Squad, also known as the "Enhance Safety Team." After she was asked how the narcotics purchase she made "came about," she responded that "[t]hey gave me information on an individual that they apparently had been watching and I made contact with that individual, met her at [the] park and made the transaction." The officer then described in some detail a conversation in which she told defendant that she wanted to buy cocaine, and defendant sold her "three small bags of cocaine" in exchange for $40.
On cross-examination, defense counsel repeated that "you said, I think, that they gave you information of an individual that they had been watching," to which the officer responded, "Right." Defense counsel then asked her if she knew "the name of that person when you left headquarters." The officer responded that "I knew her name . . . what she looked like and . . . what kind of vehicle she would be driving." At defense counsel's request, the officer confirmed that she got this information from Detective Hudson.
There was no objection or request that these answers be stricken. In fact, defense counsel continued to elicit similar information: "Okay. I just want to make this clear, it wasn't as if you were just sent to go into the park to see if you could purchase drugs for anybody. You were - had a particular target." The officer responded, "Yes." Later in the cross-examination, defense counsel repeated that the officer "knew the defendant, you knew her name, you had been given a description as to what she looked like," and counsel also elicited that the officer knew where defendant lived.
The State also presented testimony from Detective Hudson, who explained that his unit, the Enhance Safety Team, investigated "quality of life [crimes], robberies and violent crimes." Detective Hudson testified that he participated in a narcotics investigation at Oval Park, with the undercover officer. During that day's investigation, he used binoculars to observe defendant selling drugs to the undercover officer. In response to cross-examination questions as to whether he obtained information about defendant's vehicle after he saw the drug transaction, Hudson responded that "we had all of the information already, the plate number, registration, everything already." Defense counsel also specifically asked Hudson if he told the undercover officer whom to approach or whether he just asked her "to go to anybody in the park to see if they would sell [drugs to] her." Hudson responded, "Sir, this was an ongoing investigation." He also explained, without objection, that the officer had called defendant in advance to set up the meeting in the park. For the undercover officer's safety, the police did not arrest defendant right after the purchase. Instead, they arrested her on a different day, pursuant to a warrant.
In his summation, defense counsel once again repeated to the jury that the undercover officer had targeted defendant for this investigation and knew her name, description and address in advance. From that information, he argued that the failure of the police to arrest defendant immediately after the drug purchase cast doubt on the State's case. In response, the prosecutor argued in her summation that "[t]his isn't a conspiracy in the East Orange Police Department, this was an investigation and we do have proof." She also mentioned that the officers had testified "there was [an] ongoing investigation" and "at some later date . . . there was, in fact, an arrest."
Defendant's appeal rests on the following point presented for our consideration:
POINT I: THE TESTIMONY FROM  DETECTIVE HUDSON AND THE PROSECUTOR'S REMARKS IN SUMMATION THAT THE POLICE WERE INVOLVED IN AN ONGOING INVESTIGATION WHICH INVOLVED DEFENDANT, HER CAR, AND THE OTHER PERSON IN THE CAR, VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS OF LAW AND FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND IV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below).
In a pro se brief, defendant also claims, on a variety of bases, that she received ineffective assistance of counsel. We will not address that claim on this appeal, without prejudice to defendant's right to raise the claims in a petition for post- conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992).
We turn to the merits of defendant's claim concerning the alleged Confrontation Clause violation. Because this issue was not raised at the trial, we may only consider it under the plain error rule. See R. 2:10-2; R. 1:7-2. It is fundamental that a police witness may not imply that the State has additional evidence of defendant's guilt which is not produced at the trial. "When the logical implication to be drawn from the [police] testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." State v. Bankston, 63 N.J. 263, 271 (1973).
The issue was refined in State v. Vandeweaghe, 177 N.J. 229, 240-41 (2003)(citations omitted):
"[A] police officer may, without violating either the hearsay rule or defendant's right to confrontation, explain the reasons he apprehended a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" Such testimony is admissible "to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct." However, "when an officer becomes more specific by repeating what some other person told him concerning a crime by the accused," that testimony violates both the hearsay rule and the accused's Sixth Amendment right of confrontation.
See also State v. Frisby, 174 N.J. 583, 592-93 (2002); State v. Roach, 146 N.J. 208, 223-26 (1996).
In State v. Branch, 182 N.J. 338 (2005), the Supreme Court further addressed the extent to which a law enforcement witness may explain why the police focused on investigating the defendant. Branch disapproved a police officer's explanation on direct examination that the police selected defendant's picture for a photographic array because of "information received."
Why the officer placed the defendant's photograph in the array is of no relevance to the identification process and is highly prejudicial. For that reason, we disapprove of a police officer testifying that he placed a defendant's picture in a photographic array "upon information received." Even such seemingly neutral language, by inference, has the capacity to sweep in inadmissible hearsay. It implies that the police officer has information suggestive of the defendant's guilt from some unknown source. [Id. at 352.]
However, the Court recognized that there are circumstances in which a police witness may properly explain why an investigation focused on the defendant. Relevant to this case, the Court acknowledged that defense cross-examination may invite such an explanation where a police witness is accused of arbitrarily singling out a defendant.
In contexts other than a photographic identification, the phrase "based on information received" may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person. The exception would be the defendant who opens the door by flagrantly and falsely suggesting that a police officer acted arbitrarily or with ill motive. In such a circumstance, the officer might be permitted to dispel that false impression, despite the invited prejudice the defendant would suffer. [Ibid.]
In this case, neither the police testimony nor the prosecutor's summation contravened the principles set forth in Bankston, Vandeweaghe, and Branch. None of the information was any more inculpatory than "on information received," an explanation not objectionable on these facts. Branch, supra, 182 N.J. at 352. The fact that there was an "ongoing investigation" did not imply that an unnamed witness had implicated defendant.
Moreover, most of the testimony was elicited by the defense on cross-examination, in an attempt to convince the jury either that the police unfairly singled out defendant or that since the police knew so much about defendant, they would have arrested her immediately if she had really been the one who sold the drugs to the undercover officer. Thus, the allegedly objectionable testimony falls squarely within the exception in Branch for information elicited by the defense. Ibid. Finally, even if any of the statements were admitted in error, the error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant's guilt. See State v. Macon, 57 N.J. 325 (1971).
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