On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 07-07-0509.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2010
Before Judges Cuff, Payne and Waugh.
Defendant, Craig Young, appeals from his conviction for third-degree drug distribution, N.J.S.A. 2C:35-5a(1) and -5b(3), and from his extended-term sentence of eight years with four years of parole ineligibility. On appeal, he raises the following issues for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL, OR IN THE ALTERNATIVE A CONTINUANCE, BASED ON THE STATE'S REVELATION OF THE PREVIOUSLY UNDISCLOSED IDENTITY OF THE CONFIDENTIAL INFORMANT IN HIS OPENING ARGUMENT, THEREBY VIOLATING THE DISCOVERY RULES AND RESULTING IN UNFAIR SURPRISE AND MANIFEST INJUSTICE.
THE TRIAL COURT ERRED BY PERMITTING LAW ENFORCEMENT OFFICERS TO TESTIFY CONCERNING INCULPATORY HEARSAY STATEMENTS MADE BY A CONFIDENTIAL INFORMANT WHO DID NOT TESTIFY AT TRIAL. (NOT RAISED BELOW.)
THE ADMITTANCE INTO EVIDENCE OF DEFENDANT'S REMOTE CRIMINAL CONVICTIONS CONSTITUTED A CLEAR ABUSE OF DISCRETION AND VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL. (PARTIALLY RAISED BELOW.)
THE TRIAL COURT ERRED BY PERMITTING THE STATE TO IMPROPERLY INTRODUCE PRIOR BAD ACTS OF THE DEFENDANT INTO EVIDENCE, THEREBY PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)
PROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)
A. THE PROSECUTOR'S COMMENTS DURING SUMMATION WHICH SUGGESTED TO THE JURY THAT THE DEFENDANT HAD A BURDEN OF PROOF VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)
B. THE PROSECUTOR'S IMPROPER SUGGESTION TO THE JURY THAT THEIR OATHS REQUIRED THEM TO RETURN A GUILTY VERDICT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)
C. THE PROSECUTOR'S COMMENTS DURING SUMMATION WHICH SUGGESTED TO THE JURY THAT THE DEFENDANT WAS GUILTY BASED ON HIS PRIOR CONVICTIONS VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS. (NOT RAISED BELOW.)
The record establishes that, on February 21, 2007, a confidential informant contacted Detective Kevin McLaughlin of the Cape May County Prosecutor's Office and informed him that an individual named Craig was planning to sell drugs in the county. The informant inquired whether the detective would be available to meet Craig, and when the detective agreed, arrangements were made for Detective McLaughlin and the informant to meet that night at 3124 U.S. Highway 9 South, Apartment 9, in Rio Grande at 7:45 p.m. The informant stated that Craig should be on his way over at that time. The informant and Detective McLaughlin met as planned, and within approximately five minutes, Craig arrived. After some preliminary conversation, Detective McLaughlin sought to purchase one-eighth of an ounce of cocaine, colloquially known as an "eight-ball." Craig agreed to the sale, and he sold the drugs for $150. After a short further conversation, Craig left the apartment and was observed by another officer leaving the building and approaching the red Ford Explorer in which he had arrived. A subsequent vehicle look-up disclosed a motor vehicle violation by a Craig Young while driving the Ford. Young's photograph was therefore included in a photo array. Two days after the buy, after an initial hesitation, Detective McLaughlin identified defendant in that array as Craig, the seller of the drugs.
Craig was not arrested at the time of the February sale, since the officers hoped to arrange further purchases from him. However, arrangements could not be made and, as a result, Craig was eventually arrested on July 15, 2007 and charged with the single sale.
At trial, defendant testified that, on the night of the sale, he went to the apartment of R.B., a person he had known for twenty years, to collect $400 that R.B. owed to him, but he was only paid $80. While at the apartment, defendant observed another individual sticking his head out of a bedroom door, but had no contact with the individual. Defendant denied selling drugs after June 2006, but admitted to a sanitized criminal history extending back to 1991.
The identity of the confidential informant was not disclosed by the State prior to trial, and defense counsel did not move for disclosure, believing that he lacked grounds for doing so. However, during the prosecutor's opening, the prosecutor made statements that established that the confidential informant was R.B. The prosecutor described the events leading up to the drug sale, including Detective McLaughlin's introduction of himself to the drug dealer as Sean, and then he stated:
What the defendant didn't know is that the man he sold drugs to, the crack cocaine, his name wasn't Sean. His name is Kevin, Detective Kevin McLaughlin. Detective Kevin McLaughlin works for the Cape May County Prosecutor's Office. He's an undercover officer with the Narcotics Division, which is called the Narcotics Task Force, and the Task Force's really sole job is to infiltrate drug dealers, get into drug [deals], buy drugs from drug dealers, build a case against them, and ultimately bring them to justice.
What the defendant also didn't know was that that apartment at 3124, apartment #9, was the apartment of what's called a confidential informant. Essentially a confidential informant is a non-law-enforcement officer, they're civilians, and their job is to assist law enforcement in investigation in cases with drug dealers.
And one of the ways they do that is they are a catalyst or they introduce the undercover to a target, to a drug dealer.
At the conclusion of the prosecutor's opening statement, defense counsel objected, claiming that no where in the discovery given to him was it indicated that apartment 9 was the apartment of a long-term confidential informant. Counsel stated further that he had thought that R.B. was the apartment's occupant, and that R.B. was on his witness list. After a further side-bar discussion, much of which cannot be discerned from the record, the judge stated that he would preserve any rights defendant might have, and that defense counsel should proceed with his opening. The issue raised by defense counsel would then be discussed further at the first break.
In his opening, counsel, in essence, offered the defense presented by defendant at trial, stating:
Now I'm going to tell you my client was there. He - There was a man named [R.B.] who, as far as I know, is the person whose apartment this was. He owed my client money. My client was there to collect it, and that's what it was. He got - he didn't get all of it for that matter, and he left.
There was no dealings with any third person as far as my client is concerned, and [R.B.] will hopefully be here to testify and say exactly that.
When the subject was again raised at the first break, defense counsel stated that he had obtained a statement from R.B. that exonerated defendant, which he had given to the prosecutor in discovery, without comment from the prosecutor. If counsel had known that R.B. was the confidential informant, he also would have known that the statement was untrue and would not have relied on it in preparing his defense of the case.
According to defense counsel, the police report gave no indication that the confidential informant was in fact a resident of apartment 9. Rather, counsel believed that the confidential informant and the undercover officer had met outside the apartment and, as was usual in such undercover deals, they then entered, the informant introduced the officer to the seller, and the sale was made. If he had understood the apartment to have been the residence of the confidential informant, counsel would have instructed his investigator to determine from R.B. whether anyone other than R.B. resided there. If the answer were negative, counsel would then have known that R.B.'s exoneration should be taken with "a bigger grain of salt."
Defense counsel requested a mistrial. The request was denied. The judge acknowledged that the prosecutor's opening provided the "first formal linkage" between R.B. and the confidential informant. Nonetheless, the judge found that "the prospect of that linkage has been apparent throughout; and I'm not able to find surprise or, or prejudice to the extent that that prospect was readily discerned from the discovery that was provided." Finding no evidence of manifest injustice, the judge ordered that the trial continue, giving defense counsel ten minutes to arrange for an investigator to locate and re-interview R.B.
The police report setting forth Detective McLaughlin's version of the events has not been included in the record on appeal. As a result, we are unable to determine whether, as the judge concluded, defense counsel should have known that R.B. was the confidential informant and that his statement exonerating defendant was suspect. However, we find it reasonable to conclude that (1) the prosecutor was aware of R.B.'s identity as the confidential informant; (2) the prosecutor knew that defense counsel was unaware of R.B.'s identity as the informant, or he would not have named him as a witness or indicated his intent to elicit testimony similar to that contained in R.B.'s statement; (3) the prosecutor did not disclose R.B.'s role to defense counsel after receiving R.B.'s statement in discovery; but (4) the prosecutor made that information known at the very first opportunity at trial, at a time when counsel's defense strategy, as previously revealed to the prosecutor, was essentially set. The issue thus becomes whether, given these facts, fundamental fairness required pretrial disclosure of the identity of the confidential informant by the prosecutor, or either declaration of a mistrial or a continuation to permit a further interview of R.B. and development of a different defense strategy.
A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (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.
Because the privilege precluding disclosure of the identity of the informer suppresses the truth, "it must be construed to achieve, not thwart, a just result." Grodjesk v. Faghani, 104 ...