On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-04-0378.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 6, 2011 -- Before Judges Grall and LeWinn.
The State appeals from an order dismissing an indictment with prejudice after the judge granted defendant's request for a mistrial. The State contends reversal is required because the judge applied the wrong legal standard. We agree.
The dismissed indictment includes two charges - possession of a controlled dangerous substance, cocaine, and possession of that cocaine with intent to distribute. N.J.S.A. 2C:35-5a(1), b(3); N.J.S.A. 2C:35-10a(1). The drugs were found in a car defendant Terrance L. Martin was driving on November 2, 2008. A state trooper, Steven Swift, stopped that car after seeing defendant speed and not come to a full stop at a stop sign. Defendant did not have a driver's license but gave Swift a registration. He told Swift that an Alfonso Chandler owned the car, but the registration he produced bore a different name. By checking the motor vehicle database, Swift learned that the vehicle was unregistered.
Swift told defendant and his passenger that the car would be towed, and after they left, Swift had the car's exterior examined by a dog that signaled drugs were present. Subsequently, a judge issued a warrant that authorized a search of the car, and the cocaine was discovered in its trunk.
We recount the pre-trial and trial motions in some detail because the judge considered them in dismissing the indictment. The grand jurors indicted defendant in April 2009, but the trial did not commence until August 2010. There were several reasons for delay, including the court's and attorneys' schedules, discovery issues and pre-trial motions. After receiving the registration, which the State Police failed to produce when the prosecutor first asked, defense counsel moved to dismiss the indictment. On July 23, 2010, the judge denied the motion to dismiss, finding no violation of defendant's rights to discovery or a speedy trial warranting that relief.
When trial commenced on August 12, 2010, the prosecutor opened by telling the jurors that he would try to convince them beyond a reasonable doubt that defendant is a "drug dealer" and intended to distribute the cocaine found in the trunk of his car. The prosecutor concluded his opening with a prediction - "when you're done listening to the State's case, . . . you will, as do I, hold a firm belief that the defendant is guilty beyond a reasonable doubt of possession of CDS, and possessed that CDS with intent to distribute the same."
At sidebar, defense counsel objected to the prosecutor's use of the moniker "drug dealer" and his expression of personal belief in defendant's guilt. She requested a mistrial. The prosecutor explained that he was required to prove that defendant intended to distribute the cocaine, which means being a drug dealer, but he acknowledged that his "slip of the tongue" reference to his belief in defendant's guilt was improper andwarranted a curative instruction. The judge denied a mistrial and delivered a curative instruction.
In her opening, defense counsel outlined the theory of her client's case. She explained that defendant did not know the drugs were in the trunk of the car because he did not own it on November 2, 2008.
Before the first witness testified, defense counsel moved for a ruling barring any reference to her client's other contacts with the police. The judge directed the assistant prosecutor to tell his witnesses, in responding to his questions, not to refer to any other contact they had with defendant. He further instructed the prosecutor to direct the officers not to mention such contacts when responding to defense counsel's questions before the judge had an opportunity to address the issue at sidebar.
Swift was the State's first witness. After Swift recounted the circumstances of the stop and the discovery of the cocaine, the prosecutor asked, "[D]id you have any other interaction with [defendant] until today?" Defense counsel objected, and Swift asked "Since today?" The prosecutor clarified, "No, regarding this matter." Swift responded, "Regarding this matter, no." The prosecutor said, "Okay," but before he moved on Swift interrupted and said, "Oh, actually that's incorrect."
At that point, the judge sustained defense counsel's objection and called the attorneys to sidebar. The prosecutor offered to withdraw the question and claimed that he had forgotten about the in limine ruling. Defense counsel again requested a mistrial. From what we can discern from the transcript, defense counsel suggested the assistant prosecutor ask another question to stress that Swift had subsequent contact with defendant in connection with this prosecution. The prosecutor then asked, "All right, Trooper, you've - any interaction that you've had with ...