March 6, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VICTOR HOAGLAND, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 06-05-00722-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 10, 2009
Before Judges Winkelstein, Fuentes and Gilroy.
On May 23, 2006, a Middlesex County grand jury returned Indictment No. 06-05-00722, charging defendant, Victor Hoagland, with: third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count three); and third-degree possession of cocaine with intent to distribute on or near school property, N.J.S.A. 2C:35-7 (count four).
Prior to trial, the court denied defendant's motion to compel disclosure of the identity of a confidential informant. A three-day jury trial commenced on October 23, 2006. After the State rested, defendant moved for acquittal based on an entrapment defense. The court denied the motion.
The jury subsequently convicted defendant of counts three and four. After denying defendant's motion for a new trial, the court merged count three with count four, and sentenced defendant to five years in prison with a three-year period of parole ineligibility.
On appeal, defendant, in a brief submitted by counsel, raises the following points for our consideration:
THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR DISCLOSURE OF THE CONFIDENTIAL INFORMANT'S IDENTITY WAS AN ABUSE OF DISCRETION WHICH RESULTED IN THE DENIAL OF THE DEFENDANT'S RIGHT TO DUE PROCESS.
THE COURT ERRED IN FAILING TO CONDUCT A SANDS HEARING PRIOR TO DEFENDANT TAKING THE WITNESS STAND AND DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO OBTAIN THE RELEVANT DISCOVERY PRIOR TO ALLOWING DEFENDANT TO TAKE THE STAND ON HIS BEHALF. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST, (1947), ART. I, PARS. 1 AND 10. (Not Raised Below).
STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM.
THE COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION TO ACQUIT WHERE IT WAS CLEAR THAT THE DEFENSE FAILED TO REFUTE THE DUE PROCESS ENTRAPMENT DEFENSE.
BY MOLDING THE JURY CHARGE TO THE STATE'S VERSION OF EVENTS, THE TRIAL COURT BECAME AN ADVOCATE FOR THE STATE AND DIRECTED THE VERDICT IN VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.) (Not Raised Below.).
THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.
In a pro se supplemental brief, defendant claims ineffective assistance of counsel, and "that the prosecution of defendant was vindictive" and in retaliation for his alleged filing of a complaint against the Oak Leaf Apartment complex for allowing undercover police officers to conduct "bust operations" in unoccupied apartments.
Because we find merit to defendant's argument in point five of defense counsel's brief and conclude that the trial court's misstatement of the facts in its jury instruction as to defendant's entrapment defense was plain error, we reverse defendant's conviction and remand for a new trial. Consequently, the arguments raised in points two, three, four and six of the brief submitted by defense counsel on appeal are moot. We will, however, address the issue defense counsel raised in point one, that the trial court erred in denying defendant's motion to disclose the confidential informant's identity. In doing so, we find the arguments to be without merit and affirm the trial court's order denying defendant's motion for disclosure.
As to the issues raised in defendant's supplemental pro se brief, we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
The trial evidence may be summarized as follows. On December 13, 2005, members of the North Brunswick Police Department and the Narcotics Task Force of the Middlesex County Prosecutor's Office conducted an undercover drug purchase at the Oak Leaf apartment complex in New Brunswick. The police used apartment L-10 in the complex to conduct undercover narcotics operations to target the drug trade in the area. At 9:40 p.m., Detective David Tabon of the New Jersey State Police went to that apartment to execute an undercover purchase of narcotics from defendant. Tabon had been shown a photograph of defendant half-an-hour before going to the apartment; defendant had been identified by a confidential informant as a drug dealer.
Tabon entered the apartment with the confidential informant; inside, he observed two females and a black male who he identified as defendant. The informant introduced Tabon to defendant, at which point Tabon asked defendant, "what he had." Defendant responded, "I don't know you," and walked into the kitchen. Tabon followed defendant and again asked, "what he had." Defendant told Tabon to "wait a minute," picked up a black bag that was on the floor in the kitchen, and walked down the hallway toward the bathroom. Tabon followed defendant and saw him remove three silver aluminum foil wrapped objects from the bag and place them on the floor. Tabon picked up the pieces of foil, opened and examined them. He asked defendant "how much," and defendant said "60"; Tabon paid him and left. The police later identified the contents of the foil as cocaine. No one else was in the kitchen during the drug transaction.
Defendant testified that on the date of the undercover operation he lived in the Oak Leaf apartment complex with his niece; he was looking for a new apartment and a man named "Ben" invited him to rent a room in apartment L-10. Defendant went to that apartment to meet Ben and look at the room. He testified that when he arrived, Ben was not there; while he waited for him, defendant cut another man's hair. Ben arrived with another man, who defendant identified as Detective Tabon, walked to the hallway of the apartment, and sold something to Tabon. Defendant denied selling cocaine to Tabon and contended that Tabon misidentified him as the man who sold him the cocaine.
Against this factual setting, we begin with defendant's argument that the trial court improperly exercised its discretion in refusing to require the State to disclose the confidential informant's identity. We disagree.
The State is permitted to withhold the identity of informants who furnish law enforcement officers with information regarding violations of the law. Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 516 (2008). The objective behind the rule is to encourage "citizens to perform their civic duty to communicate knowledge of wrongdoing to law enforcement officials" without fear of reprisals. Biunno, supra, comment 1 on N.J.R.E. 516 (quoting Grodjesk v. Faghani, 104 N.J. 89, 97 (1986)). The rule has two exceptions. The court may require disclosure if it finds that either (a) the identity of the person furnishing the information has already been otherwise disclosed, or (b) disclosure of his identity is essential to assure a fair determination of the issues. N.J.R.E. 516.
The privilege against disclosure is inapplicable where the informer is an essential witness on a basic issue in the case, the informer is an active participant in the crime for which the defendant is prosecuted, where a defense of entrapment seems reasonably plausible, or where disclosure is mandated by fundamental principles of fairness to the accused. State v. Milligan, 71 N.J. 373, 383-84 (1976). In deciding whether disclosure is warranted, a court must balance "the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. at 384 (quoting Roviaro v. U.S., 353 U.S. 53, 62, 77 S.Ct. 623, 628, 1 L.Ed. 2d 639, 646 (1957)).
In reviewing the denial of a motion for disclosure, the standard of review is whether the trial court abused its discretion after weighing the competing considerations of the balancing test. Milligan, supra, 71 N.J. at 384. Applying this standard here, we conclude that the trial court did not abuse its discretion in denying defendant's motion.
Defendant contends that the informant, who he claims was "Ben" in the transaction, actively participated in the drug sale. Absent a strong showing of need, however, courts generally deny disclosure where the informer plays only a marginal role, "such as providing 'tips' to the police or participating in the preliminary stage of a criminal investigation." Id. at 387. And, where the informant's role is limited to introducing the defendant to an undercover narcotics agent, and accompanying the agent and the defendant to the place where the sale is transacted, but the informant does not actually participate in the sale, disclosure is not warranted. Id. at 378; see also State v. Salley, 264 N.J. Super. 91, 98 (App. Div. 1993) (luring defendant from apartment building is relevant consideration, but should not be overemphasized; mere presence as an observer of the crime is insufficient to warrant disclosure).
Here, the primary thrust of defendant's challenge to the trial court's refusal to disclose the name of the confidential informant is that the informant's tip to Detective Tabon was hearsay utilized by the detective as evidence of defendant's guilt. We reject that argument. The detective did not imply that the informant provided him with any additional evidence of defendant's guilt. Tabon simply testified that the informant introduced him to defendant but did not participate in the drug transaction. Tabon claimed that the informant was not present in the kitchen when Tabon purchased the drugs from defendant, and was not an active participant in the crime.
The informant is not an essential witness as to whether Tabon purchased the drugs from defendant. Both Tabon and defendant testified that several other witnesses were present in the apartment during the incident. Defendant could have called any of these witnesses to corroborate his version of the facts. Nor did the evidence show that the police engaged in any unreasonable tactics to induce defendant to sell drugs.
Defendant contends that inadmissible hearsay evidence of the informant's statement to police that defendant was a "known crack dealer" required disclosure of the informant's identity so defendant could cross-examine him. We reject this argument. The confidential informant's statement was not admitted as evidence for its truth, as the trial court made clear to the jury in a curative instruction after the informant's statement was revealed. Rather, after defense counsel asked Tabon whether he knew defendant to be a "known crack dealer," to which Tabon responded yes, the prosecutor on re-direct asked how he received this information. Tabon responded, "The [confidential informant] provided it to me." The court then forcefully instructed the jury to consider the statement only for the purpose of assessing Tabon's credibility, and not to consider it as evidence of defendant's guilt.
Consequently, the trial court did not abuse its discretion in denying defendant's motion to disclose the informant's identity.
We turn next then to defendant's argument that the trial court's instruction to the jury on the entrapment defense contained a misstatement of facts that unduly prejudiced defendant. Although no objection was made to the charge during trial, and we address defendant's argument under the plain error standard, Rule 2:10-2, we are constrained to conclude that the facts provided by the court to the jury, which were not in evidence, were clearly capable of producing an unjust result and require reversal of defendant's conviction.
During trial, defendant argued that he was entrapped by the police and the confidential informant into selling drugs. In denying defendant's motion for acquittal at the close of the State's case, the court rejected that argument. Nevertheless, the court allowed defendant's entrapment defense to go to the jury. In doing so, the court instructed the jury, in part, as follows:
The State has introduced for your consideration evidence that the defendant went to the apartment in question -- with cocaine in his possession to prove that he was ready and prepared to distribute cocaine and an ordinary person would not have succumbed to the type of inducement or opportunity to commit the offense to which the defendant has succumbed. (emphasis added).
Defendant did not object to the charge; however, the State concedes that the court misstated the facts in evidence, as there was no evidence that defendant entered the apartment with the black bag, containing cocaine, in his possession.
Clear and correct jury charges are essential to a fair trial. Pressler, Current N.J. Court Rules, comment 3.3.1 on R. 2:10-2 (2009). Consequently, erroneous jury instructions in criminal cases are ordinarily presumed to constitute plain error and are almost invariably regarded as "poor candidates for rehabilitation under the harmless philosophy." Ibid. (quoting State v. Bunch, 180 N.J. 534, 541 (2004)). A jury charge must fairly set forth the controlling legal principles and fairly submit the crucial factual issues to the jury for its determination. State v. Laws, 50 N.J. 159, 176 (1967), modified by, 51 N.J. 494 (1968), cert. denied, 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed. 2d 384 (1968). The trial judge has the right, and oftentimes the duty, to review the testimony and comment upon it, so long as the judge leaves to the jury the ultimate determination of the facts and the rendering of a just and true verdict on the facts as it finds them. Ibid.
In the context of a jury charge, plain error requires demonstration of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970); State v. Burns, 192 N.J. 312, 341 (2007). Here, plain error exists.
Not only did the court fail to leave to the jury the ultimate determination of the facts, it provided the jury with an inaccurate version of the facts. There was no evidence that defendant came to the apartment with cocaine in his possession. Whether defendant was in possession of the cocaine was a crucial element of the crimes charged. The jury instruction mischaracterized the evidence and, as defendant argues, essentially informed the jury that when defendant appeared at the apartment he was in possession of, and prepared to distribute, the cocaine in the bag. The court's instruction substantially and improperly bolstered the State's case. Providing the jury with this instruction, in the absence of evidence to support it, had the clear capacity to produce an unjust result and requires a new trial.
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