March 10, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDWIN E. AQUINO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-03-0276.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2009
Before Judges Carchman and Sabatino.
Following an unsuccessful motion to suppress and an unsuccessful motion to compel the State to disclose the name of its confidential informant and then a jury trial, defendant Edwin Aquino was convicted of third-degree possession of a CDS, heroin, N.J.S.A. 2C:35-10a(1); and third-degree possession of a CDS with an intent to distribute, N.J.S.A. 2C:35-5a(3) and N.J.S.A. 2C:35-5b(3). At sentencing, the judge merged the two offenses and sentenced defendant to a term of four years in prison together with mandated license suspension and fees and penalties. Defendant appeals. We affirm the denial of the motion to suppress as well as the order denying disclosure of the name of the confidential informant, but because of what we deem to be a violation of State v. Bankston, 63 N.J. 263 (1973), we now reverse and remand for a new trial.
These are the relevant facts that were adduced at the various hearings and trial. On December 7, 2003, Officer James Mullin, a long-standing member of the New Brunswick Police Department's Narcotics Unit, and his partner, Officer Dean Dakin, a trained narcotics officer, were both in uniform, in a marked police car, patrolling the Remsen Avenue area in New Brunswick. While on patrol, Officer Mullin received information from a confidential informant that a Hispanic male wearing a gray coat, blue jeans, work boots and who had a "real thin beard" would be walking down Remsen Avenue from Nassau Street towards Lawrence Street and would be in possession of "at least a brick of heroin." The informant also stated that the man's name was "Orlando." According to Officer Mullin, he had personally used this informant before, and the informant's previous information had led to numerous drug arrests. The officers proceeded to Remsen Avenue, and approximately ten minutes later they observed two Hispanic males, one of whom matched the description given by the informant, walking on Remsen Avenue towards Lawrence Street. When the two individuals saw the police car, they turned down Lawrence Street and began running towards Lee Avenue. The officers followed the two men to an unoccupied house at 177 Lawrence Street. The two officers exited their car and approached the two individuals, at which point Officer Mullin observed defendant attempting to hide behind the other man, Javier Garcia. Defendant appeared to have a "brick of heroin and a couple of bundles" in his hand, which he then placed in his back pocket. The officers then asked defendant, who initially identified himself as "Orlando Arocho," what he had placed in his back pocket, to which he replied "I get high and I have just one bag." Officer Dakin asked if they could see the bag, and defendant replied that he had "a bundle of dope." The officers then confiscated what turned out to be seventy-eight bags of heroin from the defendant.
Officer Mullin, who had testified at the suppression hearing, did not testify at trial. The State proffered Officer Dakin who corroborated Officer Mullin's suppression testimony, and when Officer Dakin began to discuss the information he and his partner received from the confidential informant, defense counsel objected. The judge overruled the objection, and Officer Dakin stated:
Myself and my partner received information that a Hispanic male named Orlando Arocho was leaving Nassau Street in New Brunswick, was going to Lawrence Street in New Brunswick with at least a brick of heroin which is equal to fifty bags, fifty individual bags. . . . .
Um, the information that was given to us stated that the Hispanic male was wearing a gray coat, blue jeans, work boots and had a very thin beard.
The judge then provided the following limiting instruction:
Ladies and gentlemen, the information just testified to concerning a communication to the two officers is not being offered to you to prove the truth of the matters contained within those communications. It is only being offered to establish or to prove why it is that the officers went to the next location, to explain their actions as a result of hearing that information but not for the truth of the statements contained in that communication.
Officer Dakin again corroborated Officer Mullin's earlier statements and then added that as the officers approached defendant and Garcia, defendant was standing behind Garcia.
Officer Dakin observed what appeared to be heroin in defendant's left hand. As Officer Dakin approached the two males, defendant placed what was in his left hand in his back pocket.
Officer Dakin asked defendant his name, and he responded "Orlando Arocho." Officer Dakin stated that 177 Lawrence Street appeared abandoned and that while he questioned defendant, Officer Mullin questioned the other male. Garcia consented to being searched and was released when nothing was found. After observing what appeared to be heroin in defendant's hand, and defendant's furtive movement, Officer Dakin searched defendant. Officer Dakin found the seventy-eight bags of heroin on defendant, and placed defendant under arrest. The officers transported defendant to headquarters where he was processed. Officer Dakin later discovered that defendant's real name was Edwin Aquino. Neither defendant nor Garcia had any money on their person.
Kevin Morton, an investigator in the Middlesex County Prosecutor's Office, was offered by the State as a court-qualified expert in the areas of drug possession and possession with intent to distribute. When shown the heroin found on defendant, Morton opined that given the manner in which it was packaged, the heroin was possessed for distribution.
During summation, the prosecutor commented on the information provided from the confidential informant:
While we're on the subject of fact and fiction, what's fiction? Fiction is the name Orlando Arocho that defendant gave to the police. But even that, there's a thread of truth in that because by giving police his name like he did, it corroborated or matched up with the information that the police had obtained earlier that night. [(Emphasis added).]
On appeal, defendant raises the following arguments:
THE STATE'S RELIANCE ON AN ABSENTEE WITNESS TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED THE DEFENDANT'S RIGHT TO CONFRONT WITNESSES AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE FAILURE TO DISCLOSE THE IDENTITY OF A WITNESS WHO PROVIDED INCRIMINATING EVIDENCE AGAINST THE DEFENDANT AT TRIAL.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO SHOW THAT ITS WITNESS HAD FIRST-HAND KNOWLEDGE OF THE FACTS.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF ORAL STATEMENTS (A KOCIOLEK CHARGE) NOTWITHSTANDING THE STATE'S RELIANCE ON THE DEFENDANT'S ALLEGED ORAL STATEMENT TO PROVE ITS CASE. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS. (Partially Raised Below)
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ILLEGAL SEARCH AND SEIZURE.
A. THE STATE FAILED TO PROVE THAT THE SEIZURE OF THE DEFENDANT WAS LAWFUL.
B. THE POLICE LACKED PROBABLE CAUSE TO JUSTIFY THE ARREST OF THE DEFENDANT AND THE SUBSEQUENT SEARCH WAS SUBJECT TO AN UNLAWFUL ARREST.
We address the arguments raised in Points I, II and III together, as the issues are integrated. Defendant asserts that even with the limiting instruction given by the judge, Officer Dakin's testimony was too expansive and beyond the bounds of propriety as permitted by Bankston, supra, and related cases.
Our Supreme Court has addressed the issue of permissible commentary by law enforcement as to information received from informants. "It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating he did so 'upon information received.'" Bankston, supra, 63 N.J. at 268 (citations omitted). Police officers can use the phrase "based on information received" 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." State v. Branch, 182 N.J. 338, 352 (2005) (emphasis added). "However, when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused the testimony violates the hearsay rule[s,]" as well as, "the accused's Sixth Amendment right to be confronted by witnesses against him." Bankston, supra, 63 N.J. at 268-69 (internal citations omitted). See also State v. Luna, 193 N.J. 202, 217 (2007). "When the logical implication to be drawn from the 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." Bankston, supra, 63 N.J. at 271; see also State v Vandeweaghe, 177 N.J. 229, 240-41 (2003); State v. Irving, 114 N.J. 427, 445-46 (1989).
As we noted, we have permitted broader references where such testimony provides an appropriate basis for explaining police conduct that could be perceived as arbitrary or inappropriate. See State v. Long, 137 N.J. Super. 124 (App. Div. 1975), certif. denied, 70 N.J. 143 (1976). In Long, we did not find error when the officer explained, without objection, that the reason he went to the scene of the arrest was because an informant had stated "that the people at that address were selling cocaine." Id. at 133. This general statement in Long, coupled with the fact the prosecutor did not "[refer] to the testimony in summation or otherwise in any effort to urge an inculpatory inference therefrom" led us to find that the inclusion of this testimony did not qualify as plain error. Id. at 134.
The State acknowledges the restrictions of Bankston. It asserts that the additional information was necessary because defendant was attempting to discredit the officer and his actions, and his credibility was in issue. Our concern regarding that argument is that the offending statement was offered during Dakin's direct testimony and was not responsive to any assertions made by defendant or anyone else.
Contrary to the State's contentions, Officer Dakin's testimony was impermissible hearsay. Although Officer Dakin did not mention the confidential informant, stating that he and his partner "received information," he still testified specifically as to that "information," adding that he and his partner observed two males, one of whom fit the description found in the "information."
The impropriety of the testimony was magnified by the prosecutor's summation. The prosecutor's summation obscured the probity of the limiting instruction when he said: "Fiction is the name Orlando Arocho that the defendant gave to the police. But even that, there's a thread of truth in that because by giving police his name like he did, it corroborated[,] or matched up with[,] the information that the police had obtained earlier that night." In essence, the State argued that the "truth" of the informant's information corroborated what transpired when the officers confronted defendant. The logical implication of the officer's testimony, as explored on summation, was that a non-testifying witness supplied the police with evidence of defendant's guilt. This could easily have been avoided by limiting the officer's testimony absent "information received" as a basis for further action.
We now address the contention that the error was harmless. Even if an alleged error is brought to the trial judge's attention, it is not grounds for reversal if it is "harmless." State v. Macon, 57 N.J. 325, 338 (1971). An error is "harmless" unless there is a reasonable doubt that it contributed to the verdict. Id. at 338-39. When the error complained of is constitutional in nature, the State must prove, beyond a reasonable doubt, that the error did not contribute to the verdict obtained. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed. 2d 705, 710 (1967); State v. Scherzer, 301 N.J. Super. 363, 441 (App. Div.), certif. denied, 141 N.J. 466 (1997).
The judge here did provide a limiting instruction to the jury, and we recognize that the majority of cases in which the admission of such hearsay has not been deemed harmless involve either no curative or limiting instruction or an instruction that was inadequate. See, e.g., Bankston, supra, 63 N.J. at 272 ("[T]he instructions did not remove the prejudicial effect of that testimony from the minds of the jury" because it was limited to the prosecutor's reference to the hearsay testimony and not the testimony itself.); State v. Farthing, 331 N.J. Super. 58, 76 (App. Div.) (no limiting instruction requested), certif. denied, 165 N.J. 530 (2000).
Here, the judge did give an appropriate limiting instruction as to the hearsay nature of the statement, but there is a more fundamental problem. The statement here was far too specific and prejudicial. Officer Dakin's testimony on this subject should have been limited to the fact that he and his partner received information. His detailed information not simply as to description but as to the nature of the offense was too prejudicial to be cured by a limiting instruction. See State v. Collier, 316 N.J. Super. 181, 197 (App. Div. 1998) (holding that although the limiting instructions were appropriate regarding other-crime evidence, the other-crime evidence itself was too prejudicial to be cure[d] by a limiting instruction), aff'd o.b., 162 N.J. 27 (1999). Add to that the prosecutor's comments as to the corroborative nature of the informant's information, and the limiting instruction becomes meaningless while the harm remains substantial. We conclude that even with the nature of the proofs established, the confluence of statements and argument require reversal of this conviction. At the retrial, the State shall be limited to testimony consistent with the precepts of Bankston.*fn1
As to the other points raised by defendant, we conclude that they are without merit. We comment briefly as to each.
Defendant claims that since the State relied upon his alleged oral statements the trial judge erred by not giving a Kociolek*fn2 charge. Defendant argues that Officer Dakin's testimony that defendant initially identified himself as "Orlando," was "highly inculpatory" and incriminating. Defendant contends that whether he actually did identify himself as "Orlando" was a vital issue to the jury, and therefore, the judge should have instructed the jury that oral statements are subject to "misconstruction by the hearer." State v. Jordan, 147 N.J. 409, 420 (1997); Kociolek, supra, 23 N.J. at 421. We disagree. Defendant never requested the charge, and the failure to give a Kociolek charge was not plain error. Defendant did not give a full oral confession, he simply identified himself as "Orlando." We perceive no basis for concern regarding the policy implications inherent in miscommunication and misrecollection that drive the necessity for such a charge.
Finally, we reject defendant's contention that the officers did not have reasonable and articulable suspicion to justify the arrest and seizure. At the suppression hearing, the judge found that Officers Mullin and Dakin had probable cause to believe that defendant had committed the crime of possession of CDS with intent to sell. The judge based this finding upon the information provided by the confidential informant, the officers' observations of defendant, defendant's attempted flight when he saw the police car, defendant's attempt to hide when the officers approached him and defendant's statements when questioned by the officers. The judge noted Officer Mullin's experience in narcotics investigations as support for his direct observation that defendant had heroin. The judge found Officer Mullin's testimony to be credible, and that the search of defendant was the result of a lawful arrest.
Our review of a trial judge's findings is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We give great deference to the trial judge's factual findings and will not "engage in an independent assessment of the evidence as if [we] were the court of first instance." Id. at 471. We also give deference to the trial judge's credibility determinations. Id. at 474; Johnson, supra, 42 N.J. at 161. In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting Locurto, supra, 157 N.J. at 474); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990). We will reverse only if we are convinced that the trial judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). "In those circumstances solely should [we] 'appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).
"'[A] warrantless search is presumed invalid. Hence, the State must prove the overall reasonableness and validity of [such a] search.'" State v. Bruzzese, 94 N.J. 210, 218 (1983) (quoting State v. Valencia, 93 N.J. 126, 133 (1983)). The Supreme Court of the United States has enumerated exceptions to the warrant requirement, one of which is a search incident to an arrest. Ibid. (citing Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed. 2d 685 (1969)). For an arrest to be valid the police officers must have had probable cause. State v. Moore, 181 N.J. 40, 45 (2004). Although the "probable cause standard is not susceptible of precise definition[,]" the "principal component . . . 'is a well-grounded suspicion that a crime has been or is being committed.'" Ibid. (quoting State v. Nishina, 175 N.J. 502, 515 (2003)).
Probable cause can be based upon information related by informants, "so long as a substantial basis for crediting the hearsay is presented." State v. Smith, 155 N.J. 83, 92 (1998), cert. denied, 525 U.S. 1033, 119 S.Ct. 576, 142 L.Ed. 2d 480 (1998) (citation omitted). Whether this information is sufficient is determined by the totality of the circumstances. Ibid. Two factors that are very important to this determination are the informant's "veracity" and the "basis of knowledge." Id. at 93 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed. 2d 527, 548 (1983)). The informant's veracity may be established by showing prior instances of reliability. Ibid. (citation omitted). The informant's basis of knowledge can be implied if the information contains "hard-to-know future events." Id. at 95. "[I]f police corroborate 'information from which it can be inferred that the informant's tip was grounded on inside information, this corroboration is sufficient to satisfy the basis of knowledge prong' as well as the veracity prong." Id. at 95-96 (quoting Gates, supra, 462 U.S. at 270 n.22, 103 S.Ct. at 2349-50 n.22, 76 L.Ed. 2d at 569 n.22).
In this case, the totality of the circumstances demonstrates that Officers Mullin and Dakin were justified in seizing defendant, arresting him and then searching him. The State does not challenge the fact that the interaction between the officers and defendant in this case was a seizure. These officers received information from an informant who had proven reliable in the past. After receiving this information the officers observed defendant, who matched the description given by the informant, walking in the location that the informant had specified. When defendant saw the police car he proceeded to flee. When the officers exited their car defendant was attempting to hide, holding what appeared to be a brick of heroin in his hand. This was all before defendant was actually seized. At this point, the officers had a well-grounded suspicion that defendant was committing a crime, i.e., they had probable cause to arrest and lawfully seized defendant. Defendant further corroborated the informant by falsely stating his name was "Orlando Arocho." Given the totality of the circumstances, defendant was not unlawfully arrested, searched or seized in this case.
Affirmed in part and reversed in part and remanded for a new trial.