August 13, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONNIE GREEN, A/K/A ANTHONY JOHNSON, TONY GRAVES, RODNEY GRAVES, TIMOTHY GRAVES, RODNEY SMITH, TONY GRAY, RONNIE GRAY, RODNEY LACE, TONY GREEN, RASHEED ROSS AND RODNEY GRACE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-2183.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 11, 2010
Before Judges Grall and Messano.
Defendant Ronnie Green was tried to a jury and convicted of third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10a; third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a; third-degree possession of CDS with intent to distribute within a school zone, N.J.S.A. 2C:35-7; and second-degree possession of CDS within five hundred feet of a public housing facility, N.J.S.A. 2C:35-7.1. The judge merged defendant's conviction for possession and possession with intent to distribute and sentenced defendant to an aggregate seven-year term of imprisonment with a three and one-half year term of parole ineligibility. The judge also imposed fines, penalties assessments and fees applicable to each conviction on which he imposed a sentence and a LEOTEF penalty on the conviction.
Defendant appeals and raises two issues:
I. THE COURT ERRED IN DENYING A MISTRIAL, AND IN REFUSING TO ISSUE A CURATIVE INSTRUCTION, WHEN THE STATE VIOLATED THE BANKSTON RULE WHEN ITS KEY WITNESS TESTIFIED THAT THE POLICE RESPONDED TO
11 THOMAS STREET BASED UPON A COMPLAINT OF DRUG DEALING AT THAT LOCATION, THUS VIOLATING THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. (1947), ART. 1 PARS. 1, 9 AND 10.
II. THE DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S FAILURE TO PRECLUDE THE TESTIMONY OF THE STATE'S EXPERT WITNESS FOR VIOLATING THE DISCOVERY ORDER AND IN REFUSING TO GRANT THE DEFENDANT'S RESULTING MOTION FOR AN ADJOURNMENT.
We hold that a new trial is required due to the State's presentation of testimony implying that the police had information about defendant's guilt that was not introduced at trial and the judge's failure to direct the jurors to disregard that testimony when he denied defendant's motion for a mistrial. Given that determination, there is no reason to address the issue raised in Point II of defendant's brief.
These are the pertinent facts. On October 27, 2008, Officer Edwin Padilla of the Newark Police Department was on patrol with three of his fellow officers. Padilla and defendant were the only witnesses to the crime who testified at trial. The State's other witness, Officer Michael Lippet, testified as an expert.
Padilla testified as follows. He and his fellow officers were assigned to patrol a "high narcotics area." The area was "11 Thomas Street." The prosecutor asked Padilla what he did first on "Thomas Street." Padilla responded, "We entered the apartment building. We had a complaint that - -" Defense counsel objected to Padilla's reference to a complaint, and the prosecutor withdrew the question and asked Padilla to explain what he did when he entered 11 Thomas Street. Padilla responded, "We - - the officers and myself entered 11 Thomas Street to further investigate some complaints we had received of open distribution of narcotics at which time we - -" Defense counsel asked to be seen at sidebar and requested a mistrial. The prosecutor argued that a mistrial was inappropriate because he had withdrawn his question and the court had not ruled on defense counsel's objection.
Noting that he had not heard anything impermissible, the trial judge denied the request and asked defense counsel "what [she] want[ed him] to tell the jury[.]" Defense counsel responded by advising the judge that the propriety of a "curative instruction" was up to him, and the judge said there was "no reason" for a curative instruction and that an instruction would be "more prejudicial." Defense counsel urged the prosecutor not to elicit further hearsay and the prosecutor agreed.
Padilla continued to testify about what he did.
Q: Officer Padilla, when you entered the building, what did you do?
A: I went upstairs, I proceeded to go to the second floor hallway at which time when we got to the second floor hallway we saw Mr. Green standing there. He had a [v]itamin [c]ontainer and he was messing with some clear cap vials of what I suspected was cocaine at the time in that container.
Padilla did not describe anything he saw or heard that led him to go to the second floor hallway. His testimony continued.
Q: How was defendant positioned when you saw him?
A: He was standing - - and if I could describe the stairway and the hallway, when you go upstairs, there's a little landing and we turned to the left, that's where the hallway is parallel to that little landing at which time we stepped into the hallway and he was standing to my left and he was back against the wall placing the clear cap vials into this [v]itamin [c]ontainer.
Padilla provided some additional details. When Padilla saw defendant, defendant was alone. He explained that the officers were in civilian attire, the lighting in the hallway was good and defendant seemed shocked to see the officers. They then displayed their badges and identified themselves as police officers. Padilla arrested defendant because he suspected that the vials he held contained cocaine.
After defendant was arrested and read the advisements required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), he said "those are fake." Padilla was not certain whether defendant was referring to the substance in the vials or the officers' badges. Padilla identified the vials he saw defendant holding, and a field test showed that they contained cocaine. Padilla also seized a pink and black vitamin bottle from defendant; it too had vials of cocaine.
Defendant testified that he went to 11 Thomas Street to purchase one vial of cocaine. It is a place where he went all of the time. He went to the second floor and handed Pedo and RaRa three dollars. Defendant said that Pedo and RaRa were the street names used by dealers, who were members of a gang. He did not receive anything in return for his three dollars because Pedo and RaRa were beeped and went inside a nearby apartment. Defendant, however, noticed a black sack that Pedo and RaRa left behind. The officers asked him where the dealers went but defendant did not tell them because he was afraid that Pedo and RaRa would know that he had revealed their location. According to defendant, the officers took the black sack and pulled out the pill bottle. Defendant did not have any drugs or money when he was arrested.
The law governing permissible testimony about the reasons an officer has traveled to a particular location is well-settled. "[T]he 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 that he did so 'upon information received.'" State v. Bankston, 63 N.J. 263, 268 (1973) (citation omitted). That testimony is "admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct." Ibid. The relevance of such testimony is limited when there is no need for an explanation of the reasonableness of the police conduct. Id. at 272.
It is equally clear, however, that "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" and "the accused's Sixth Amendment right to be confronted by witnesses against him." Id. at 268-69. The officer's testimony need not include a recitation of the information not introduced into evidence to be objectionable; it is enough that the testimony gives rise to a reasonable inference that the officer received information about the defendant's guilt. Id. at 271.
Padilla's testimony gave rise to the inference prohibited by Bankston. After Padilla described the area of 11 Thomas Street as being a "high narcotics area," and after an objection based on his reference to receipt of a complaint, the officer nevertheless continued to volunteer a more detailed description of the multiple complaints involving open-air distribution of narcotics at the address.
The officer's testimony that followed the impermissible hearsay is remarkable for its capacity to imply that Padilla was told that Mr. Green was openly distributing drugs on the second floor of 11 Thomas Street. Padilla explained that the complaint of open distribution was about 11 Thomas Street, that he and three other officers immediately went to the hallway on the second floor of 11 Thomas Street and that they saw "Mr. Green." A reasonable juror could infer that the complainant reported the precise location of the "open distribution" and the name of the distributor.
While we cannot conclude that the trial judge erred by denying defendant's motion for a mistrial at the point it was requested, the trial court erred by not immediately sustaining defendant's objection and directing the jurors to disregard the testimony. See State v. Harvey, 151 N.J. 117, 205-06 (1997) (noting that a mistrial should be granted "only to prevent an obvious failure of justice" and concluding that an instruction directing the jurors to disregard the inadmissible evidence sufficed to eliminate the prejudice). The evidence of possession was overwhelming, but the evidence of defendant's intent to distribute the drugs was not so one-sided as to permit us to conclude that the erroneous admission of the testimony was harmless. R. 2:10-2.
© 1992-2010 VersusLaw Inc.