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State v. Jones

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 11, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHNNY JONES, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-11-1490.

The opinion of the court was delivered by: R. B. Coleman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 15, 2009

Before Judges R. B. Coleman and Graves.

Defendant Johnny Jones appeals from a final judgment of conviction for possession of a controlled dangerous substance (CDS) with intent to distribute and distribution of a CDS. He seeks the vacation of the judgment and a remand to the trial court, arguing essentially that: (1) the State proceeded on an erroneous legal theory; (2) the trial judge failed to properly instruct the jury as to joint possession in the context of the facts of the case; (3) improperly admitted testimony from State witnesses led to an unjust result; and (4) the jury should have been able to consider the State's failure to produce a witness at trial. We reject defendant's assertions of error, and we affirm the judgment of conviction.

On January 27, 2005, defendant Johnny Jones was arrested in the area of Belmont Avenue and North Eighth Street in Paterson, New Jersey. Defendant was subsequently indicted and charged with the following offenses: (1) third-degree possession of a CDS, heroin, contrary to N.J.S.A. 2C:35-10(a)(1) (count one); (2) third-degree distribution of a CDS, heroin, contrary to N.J.S.A. 2C:35-5(a)(1), (b)(3) (count two); (3) third-degree distribution of a CDS, heroin, within 1,000 feet of a school, contrary to N.J.S.A. 2C:35-7 and 2C:35-5(a) (count three); (4) third-degree possession of a CDS, heroin, with intent to distribute contrary to N.J.S.A. 2C:35-5(a)(1), (b)(3) (count four); and (5) third-degree possession of a CDS, heroin, with intent to distribute within 1,000 feet of a school, contrary to N.J.S.A. 2C:35-7 and 2C:35-5(a) (count five).

A trial was held before Judge Nestor F. Guzman of the Law Division, Passaic County, and a jury, over the course of three days - May 31, 2006 and June 1, 2, 2006. Sergeant George Rosario, Detective Claudio Mella and Detective Al Lewis testified on behalf of the State. Their depictions of the events leading up to defendant's arrest on January 27, 2005 were materially the same.

Sergeant Rosario was conducting surveillance in the area of Belmont Avenue and North Eighth Street in Paterson on January 27, 2005. The Sergeant observed a white male, later identified as Gregory Hemstra, approach the intersection, converse with a black male, later identified as defendant, and give the black male cash in exchange for a small item. Hemstra then started to walk up North Eighth Street. Sergeant Rosario called his arrest teams giving descriptions of both suspects and an order to apprehend them.

Detective Mella, acting as a member of a two-person arrest team, received Sergeant Rosario's directions. The detective and his partner were able to recognize Hemstra from Sergeant Rosario's description. After police questioning, Hemstra disclosed the location of two glassine envelopes of suspected heroin on his person. Hemstra was placed under arrest and transported to the location of the alleged dealing and defendant's subsequent arrest.

Meanwhile, a second two-person arrest team composed of Detective Lewis and his partner also received Sergeant Rosario's instructions. Upon seeing that defendant fit Sergeant Rosario's description of the suspected seller, Detective Lewis and his partner approached the area. The arrest team saw defendant place a white spray can with a black lid near some curbside garbage cans as they approached. While Lewis recovered the spray can and found eight glassines of suspected heroin inside, his partner detained defendant. Defendant was placed under arrest. Rosario positively identified Hemstra and defendant as the individuals involved in the exchange he had observed. The contents of all glassines were later confirmed to be heroin.

Defendant testified on his own behalf. Though defendant admitted to having an addiction to heroin and possessing eight glassines of heroin on the date of his arrest, he denied that he was a drug seller. Defendant stated that he returned home for his lunch break and intended to visit the bodega across the street from his home. Accompanied by his co-worker, an individual known only as Eddie, defendant then saw Hemstra, who he knew from his neighborhood. Defendant told Hemstra that he was going to get a sandwich and obtain some heroin in the back of the bodega. Hemstra asked if defendant and/or Eddie could get two glassines of heroin for him.

Over the course of defendant's testimony, he gave three distinct accounts of the events leading up to his arrest. In all three accounts, unlike the State's account of events, the transactions involving the heroin took place within the bodega and defendant was arrested shortly after exiting the bodega. In defendant's first account of the events, Eddie bought the heroin for both defendant and Hemstra, and then gave each of them their share. In the second version, an unnamed dealer within the bodega ("bodega dealer") gave defendant and Hemstra their separately purchased glassines of heroin. In defendant's third depiction, he bought ten glassines of heroin from the bodega dealer and Hemstra later gave defendant money in exchange for two glassines of heroin. The jury convicted defendant on all five counts of the indictment.

At the sentencing hearing, the court merged counts one (possession) and two (distribution) into count three (distribution within 1,000 feet of a school) and merged count four (possession with intent to distribute) into count five (possession with intent to distribute within 1,000 feet of a school). The court imposed a term of four years imprisonment with three years of parole ineligibility on count three and a concurrent term of four years imprisonment with three years of parole ineligibility on count five.

Defendant subsequently filed a motion to dismiss counts three and five on the grounds that the school that provided a factual basis for the school zone offenses had relocated prior to the date of his arrest. The State consented to the dismissals. At the resentencing hearing, the court dismissed counts three and five, merged count one into count two, and sentenced defendant to two years probation with 502 days of jail-time credit on count two and a concurrent sentence of two years probation on count four. Defendant was thereafter released from custody.

The points of argument raised by defendant, through counsel, in his brief on appeal are the following:

POINT I: 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 PROSECUTOR'S ERRONEOUS THEORY OF LIABILITY SUPPORTED BY THE TRIAL COURT'S INSTRUCTION THAT PERMITTED THE JURORS TO CONVICT THE DEFENDANT OF POSSESSION WITH THE INTENT TO DISTRIBUTE AND DISTRIBUTION OF CDS SOLELY ON THE BASIS OF JOINT POSSESSION. (NOT RAISED BELOW)

A. THE PROSECUTOR ERRONEOUSLY PROCEEDED ON THE THEORY THAT JOINT POSSESSION IS TANTAMOUNT TO AN INTENT TO DISTRIBUTE AND DISTRIBUTION.

B. THE TRIAL COURT ERRED IN ITS INSTRUCTION OF THE LAW OF INTENT TO DISTRIBUTE CDS AND JOINT POSSESSION OF CDS BY FAILING TO MAKE IT CLEAR THAT A TRANSFER BETWEEN JOINT POSSESSORS IS NOT DISTRIBUTION.

POINT II: 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 EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE.

POINT III: THE STATE'S RELIANCE ON IMPROPERLY ADMITTED HEARSAY EVIDENCE TO IMPLICATE THE DEFENDANT IN THE COMMISSION OF THE CRIMES VIOLATED 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. (NOT RAISED BELOW)

POINT IV: 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 ADMISSION OF UNFAIRLY PREJUDICIAL EVIDENCE. (PARTIALLY RAISED BELOW)

A. THE STATE PROFFERED EVIDENCE SUGGESTING THAT THE PROSECUTOR'S OFFICE WAS CONDUCTING A GANG INVESTIGATION EVEN THOUGH THERE WAS NO EVIDENCE THAT THE DEFENDANT WAS CONNECTED WITH ANY GANGS. (NOT RAISED BELOW)

B. THE STATE RELIED ON EVIDENCE THAT THE DEFENDANT WAS SITUATED IN A HIGH NARCOTICS TRAFFICKING AREA TO PROVE THAT HE WAS INVOLVED IN THE DRUG TRADE.

POINT V: 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 SUPPRESSION OF THE ARGUMENT THAT REASONABLE DOUBT MAY ARISE FROM THE LACK OF EVIDENCE.

Having considered these arguments, we find none of them warrant reversal.

I.

Defendant's argument that the prosecution proceeded on an erroneous theory of liability mischaracterizes the State's position at trial. At no point did the prosecutor claim that joint possession of the drugs amounted to distribution. The theory of liability asserted by the State was that Sergeant Rosario witnessed a drug sale on the streets of Paterson between defendant, as the seller, and Gregory Hemstra, as the buyer. Moreover, it is clear to us that despite proceeding under the theory that the surveilling officers had witnessed an illegal sale of CDS, the prosecutor chose to accept as true one of defendant's various accounts of the events leading up to his arrest. The account that the prosecutor explored was developed as follows:

Q: Okay. So you paid $70 for the whole bundle, and then you gave [Hemstra] the heroin - although previously you said [Hemstra] bought . . . his separately.

A: Yes. [Hemstra] got two out of my bundle, because I had ordered it. I was getting a . . . bundle.

Q: . . . I just want to make this clear.

So now your testimony is that Mr. Hemstra took two from your bundle of ten.

A: No. I gave him two out of my bundle of ten.

Q: Okay. You gave it to him for free?

A: I got eight, he got two. No, sure he paid me for it. Why would I give it to him for free?

In her subsequent allusion to this account in her closing statement, the prosecutor stated, "let's believe his story, that he goes in his bodega, and he gets . . . the drugs, and then gives them to Mr. Hemstra. That's still distributing." This argument is consistent with Mr. Jones' testimony, and, contrary to defendant's argument, does not posit an erroneous statement of the law of this State. As we have previously observed,

[B]y enacting N.J.S.A. 2C:35-5[(a)](1), the Legislature criminalized the knowing or purposeful possession of a CDS "with intent to manufacture, distribute or dispense" to another. The statute does not draw a distinction between distributing or dispensing to another in exchange for money and a gratuitous transfer of the narcotics. Either conduct constitutes the crime as defined by N.J.S.A. 2C:35-5[(a)](1).

[In re G.R., 395 N.J. Super. 428, 432-33 (App. Div. 2007).]

In other words, for the purpose of establishing a basis for conviction under this statute, it makes no difference whether the transfer of CDS was a sale or a gift to another. Id. at 433. Either is a violation of the statute.

Joint possession, on the other hand, is implicated under one of the accounts offered by defendant because he testified he and Hemstra were acquiring the drugs together. We have recognized that such a scenario may not involve a distribution.

[W]here two individuals simultaneously and jointly acquire possession of a drug for their own use, intending only to share it together, their only crime is personal drug abuse simple joint possession, without any intent to distribute the drug further. Since both acquire possession from the outset and neither intends to distribute the drug to a third person, neither serves as a link in the chain of distribution. For purposes of the Act they must therefore be treated as possessors for personal use rather than for further distribution. Their simple joint possession does not pose any of the evils which Congress sought to deter and punish through the more severe penalties provided for those engaged in a "continuing criminal enterprise" or in drug distribution. [State v. Lopez, 359 N.J. Super. 222, 234-35 (App. Div.) (quoting United States v. Swiderski, 548 F.2d 445, 450 (2d Cir. 1977)), app. dism'd on stipulation, 178 N.J. 372 (2003).]

Here, the State did not misinform the jury that joint possession amounted to distribution. The defendant's version of events simply did not describe a simultaneous acquisition of CDS for the purpose of sharing the heroin with one another for their personal use. Rather, defendant stated that he gave Hemstra two glassines out of the ten glassines he had purchased within the bodega in exchange for money. The giving of the glassines to Hemstra, for consideration or not, satisfies N.J.S.A. 2C:35-5(a). In re G.R., supra, 395 N.J. Super. at 432-33.

None of defendant's three distinct accounts of events illustrated joint possession precluding a conviction for distribution. Also, unlike the State's depiction of events, defendant's accounts described all transactions involving heroin as taking place within the bodega and defendant being arrested shortly after exiting the bodega. In defendant's first account, another individual, Eddie, bought the heroin for both defendant and Hemstra, and Eddie then gave each of them their share. In his second version, an unnamed dealer within the bodega gave defendant and Hemstra their separately purchased glassines of heroin. In the third account, referenced in the assistant prosecutor's closing statement, defendant bought ten glassines of heroin from the bodega dealer and, as previously agreed, Hemstra subsequently gave defendant money in exchange for two glassines of heroin.

There is no joint possession in the first two accounts because the described circumstances do not constitute a "metaphysical event in which" defendant and Hemstra, "simultaneously possess[ed] an entire object, without leaving any piece of it outside the [their] control." State v. Morrison, 188 N.J. 2, 17 (2006) (quoting Lopez, supra, 359 N.J. Super. at 233). Defendant's first two stories merely describe two individuals, each buying an amount of heroin, presumably for his personal use. There can be no joint possession because defendant was never in constructive or actual possession of Hemstra's two glassine's of heroin. Id. at 18. See also Swiderski, supra, 548 F.2d at 450 (stating that joint possession requires that individuals "simultaneously and jointly acquire possession of a drug for their own use, intending only to share it together").

In defendant's third account of events, on the other hand, where defendant agreed to obtain the heroin for Hemstra, there was both joint possession and distribution. In Morrison, for example, the Court held that two individuals exercised joint possession over a CDS where both were present at the time of a purchase made for a common purpose; one party made the purchase and attained actual possession of the CDS, while the other had constructive possession. Morrison, supra, 188 N.J. at 20 ("The evidence clearly implies that when defendant bought the four decks both were in joint possession of the drugs-that is, defendant had actual possession and Shore constructive possession of the heroin.") Hence, defendant's third account describes a short period of time after initial purchase where defendant had actual possession of Hemstra's two glassines, while Hemstra had constructive possession of those two glassines.*fn1

However, this case is easily distinguished from Morrison. First, Hemstra did not have constructive possession over the entire amount purchased by defendant, but rather, had constructive possession only of the agreed-upon two glassines. Second, the parties in Morrison "jointly acquired possession of the drugs for their own use, intending only to share it together," while in defendant's scenario, he and Hemstra jointly acquired two glassines of heroin, and defendant shortly thereafter transferred sole possession of the two glassines to Hemstra in exchange for money. Ibid. That exchange, despite the previous joint possession, qualifies as distribution under N.J.S.A. 2C:35-5 because defendant transferred the CDS from his possession into Hemstra's sole possession and there was no intent to share the CDS between them. Indeed, other jurisdictions have refined their definition of joint possession to exclude scenarios where a defendant either obtains the CDS for others, or where there is unequal participation in obtaining the CDS. Lopez, supra, 359 N.J. Super. at 235 (citing State v. Moore, 529 N.W.2d 264, 266 (Iowa 1995) (where defendants did not actively and equally participate in acquiring the drugs the Supreme Court of Iowa declined to extend Swiderski); United States v. Washington, 41 F.3d 917, 919 (4th Cir. 1994) (where one defendant purchased cocaine intending to share it with friends, the court found Swiderski inapplicable); United States v. Wright, 593 F.2d 105, 108 (9th Cir. 1979) (where defendants did not acquire the narcotics at the same time, the court found Swiderski inapplicable)).

II.

Defendant also argues that the trial judge failed to properly instruct the jury that a transfer of CDS between those in joint possession of the CDS is not distribution under N.J.S.A. 2C:35-5, and to give a charge molded to the facts reflecting a possible finding of joint possession. As defendant failed to object to the charge below, the plain error standard applies. R. 1:7-2. "Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). In a criminal case, proper jury charges are critical because a person's liberty is at stake. Id. at 289. Thus, improper jury instructions on "matters or issues that are material to the jury's deliberation are presumed to be reversible error in criminal prosecutions." State v. Jordan, 147 N.J. 409, 422 (1997).

Yet, not every possibility of an unjust result will constitute plain error. Ibid. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Furthermore, in our review of a jury charge we must examine the charge as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973). We will not find plain error in a jury charge unless the entire charge to the jury "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). We do not perceive the jury charge had that capacity in this case.

First, the trial judge was not required to give an instruction stating that a transfer of CDS between those in joint possession of it is not distribution under N.J.S.A. 2C:35-5. Neither defendant's testimony nor defense counsel's closing statement revealed a need for such instruction, and defense counsel did not request this instruction. If a finding of joint possession was consistent with defendant's versions of the facts, such an instruction would have been required. State v. Martin, 119 N.J. 2, 17 (1990) (finding that failure to instruct the jury as to defendant's theory of liability based on a divergent version of the facts was capable of bringing about an unjust result). However, as stated previously in this opinion, none of the defendant's versions of the facts presented a circumstance of joint possession of all the drugs, giving rise to the need for the instruction.

Also, defense counsel did not submit a request that the judge charge the jury as to joint possession in relation to distribution. When the trial judge asked defense counsel whether he sought any additional charges be read to the jury, he responded, "No, your Honor." Additionally, the judge was not obligated to correct any misstatement on the part of the prosecutor because, as stated previously, the prosecutor did not misstate the law in her closing statement. See Lopez, supra, 359 N.J. Super. at 233.

Second, fact-tailored jury instructions are only required where the "state of the relevant law, when divorced from the facts, [is] potentially confusing or misleading to the jury." State v. Robinson, 165 N.J. 32, 42 (2000). Though defendant's various versions of the facts differed from that primarily presented by the State, none of those depictions required that the jury contemplate whether the parties jointly possessed the subject CDS in order to reach its verdict. In his instructions, the trial judge described the allegations in each count of each indictment, and the elements of each crime charged. He also used explanations specific to this case in telling the jury what the State needed to prove in order to convict the defendant under each count. The jury was properly instructed as to each element of the charged offenses.

III.

As to defendant's Points III. and IV. subsection A., we first note that defendant failed to object to the subject testimony at trial. Consequently, the plain error rule applies. State v. Adams, 194 N.J. 186, 206-07 (2008); R. 2:10-2. Generally, unless the issue goes to jurisdiction or concerns matters of substantial public interest, we will not consider such arguments. State v. Arthur, 184 N.J. 307, 327 (2005). With this in mind, we make the following brief comments. An error will be found "harmless" unless there is a reasonable doubt that the error contributed to the verdict. Macon, supra, 57 N.J. at 338. This is true even if the error is of constitutional dimension. Ibid.; State v. Slobodian, 57 N.J. 18, 23 (1970).

The State concedes, and we accept, that Detective Lewis' testimony that the police "were advised that a drug transaction had just taken place" was hearsay, and that Detective Mella's testimony regarding his participation in the "Gang Suppression Unit" was entirely irrelevant to this case. However, there was neither a theory presented by the State nor a charge issued by the judge implying that defendant was involved in gang activity. Additionally, we do not find that Detective Mella's single inadmissible comment was an error that had the capacity to lead to a "clearly unjust result," seeing as defendant candidly admitted that he possessed eight glassines of heroin and was arrested as a direct result. The admission of these statements was harmless error. See R. 2:10-2.

IV.

When asked why he chose to conduct surveillance at North Eighth Street and Belmont Avenue in Paterson, Sergeant Rosario replied that "[b]ased upon prior arrests, there's a lot of drug activity right [t]here." Defense counsel objected, and after sidebar, the Sergeant explained that he was talking about the prior arrests made in the neighborhood and not with respect to defendant. As defense counsel objected to this testimony, this issue is properly before us and the harmful error standard applies. Under the harmful error standard, error will not lead to reversal unless it is "clearly capable of producing an unjust result[,]" R. 2:10-2; where an error is found harmless, it will be disregarded. See Macon, supra, 57 N.J. at 337-38.

Defendant argues that the admission of this testimony was prejudicial and compromised his right to a fair trial because it enabled the jurors to infer defendant's guilt based "on the fact that he associates in a criminal neighborhood." We disagree, and find Sergeant Rosario's testimony was properly admitted as opinion testimony of a lay witness. See N.J.R.E. 701 ("If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue."). "Courts in New Jersey have permitted police officers to testify as lay witnesses, based on their personal observations and their long experience in areas where expert testimony might otherwise be deemed necessary." State v. LaBrutto, 114 N.J. 187, 198 (1989). See also Trentacost v. Brussel, 164 N.J. Super. 9, 20 (App. Div. 1978), aff'd, 82 N.J. 214 (1980) (holding that a detective's testimony that a neighborhood is a high crime area is admissible as a lay opinion).

Sergeant Rosario's testimony that North Eighth Street and Belmont Avenue in Paterson were a known high-drug-activity area was admissible because it was "rationally based on [his] perception[,]" and allowed the jury greater understanding of his testimony. N.J.R.E. 701. Beyond this, after defense counsel's objection, the Sergeant clarified that none of the prior crime activity in the area involved defendant. Hence, the sergeant's testimony was proper and did not deprive defendant of his right to a fair trial.

V.

In defense counsel's summation, he stated the following: "Who we didn't hear from was Mr. Hemstra. We didn't hear from Mr. Hemstra, and there's a reason why we didn't hear from Mr. Hemstra. That's for you to evaluate when you go in the back. But we did hear from Mr. Jones." The State subsequently objected on the grounds that defense counsel did not disclose that he intended to comment on Hemstra's non-participation at trial as required under State v. Clawans, 38 N.J. 162 (1962). A curative instruction was then given by the trial judge, telling the jury to disregard defense counsel's comment "that the State did not call Mr. Hemstra as a witness." The defendant now argues Hemstra was not equally available to the defense and the State and the jury should have been able to consider Hemstra's absence in its deliberations.

Generally, the "failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts that would be unfavorable to him." Clawans, supra, 38 N.J. at 171. But such an inference is only permitted under certain circumstances and it can always be rebutted "by explanation of circumstances which make some other hypothesis a more natural one than the party's fear of exposure." Ibid. This permissible inference is referred to as the Clawans instruction from the case in which our Supreme Court first articulated the principle.

"[B]efore authorizing an adverse inference against a defendant in a criminal trial, a court must evaluate the importance of the expected testimony in light of the State's burden of persuasion and any defense asserted." State v. Velasquez, 391 N.J. Super. 291, 297 (App. Div. 2007).

Due to the need to have a court examine carefully the basis for such a charge, or for permitting a summation reference about the jury's drawing of an adverse inference for failure to call an available witness, we set a framework requiring prior notice. The party seeking the jury charge must notify the opposing party and the judge, outside of the presence of the jury, must state the name of the witness or witnesses not called, and must set forth the basis for the belief that the witness or witnesses have superior knowledge of relevant facts. The procedure of prior notification is also required whenever a party wishes to mention the inference during closing argument.

The trial court's involvement in the process is critical. We rely on the court's dispassionate assessment of the circumstances to determine whether reference to an inference in summation is warranted and, further, whether a jury instruction should be injected into the mix of the parties' arguments, informing the jurors that they may draw such an inference from a party's failure to call a witness. Care must be exercised because the inference is not invariably available whenever a party does not call a witness who has knowledge of relevant facts. [State v. Hill, 199 N.J. 545, 560-61 (2009) (citations omitted).]

The purpose of the Clawans framework is to "provide the party accused of non-production an opportunity either to call the witness or explain his failure to do so." State v. Irving, 114 N.J. 427, 442 (1989). Further, the inference arising from the non-production of a witness should not be allowed when the witness in question is available to both parties. Velasquez, supra, 391 N.J. Super. at 313. As defendant failed to adhere to the Clawans procedure requiring prior notice, and presented no evidence - other than the State's ability to enter plea bargains - that Hemstra was not equally available to defendant and State, we find no error in the trial judge's exclusion of defense counsel's statements during summation. See Irving, supra, 114 N.J. 441-44.

Affirmed.


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