Opinion
DOCKET NO. A-2698-12T1
04-09-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN LAMBERT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.
Before Judges Fuentes and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-12-2063. Joseph E. Krakora, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from his convictions by a jury of third degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); third degree possession with intent to distribute less than one-half ounce of cocaine, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); fourth degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(h); and second degree possession of a weapon while engaged in the course of distributing a controlled dangerous substance, N.J.S.A. 2C:39-4.1(c). He was sentenced to an aggregate term of thirteen years. We reverse.
I
The State's evidence against defendant was obtained through a search warrant. At the outset of the trial, the prosecutor agreed that neither he nor the State's witnesses would use the words "search warrant" in the presence of the jury, but would refer to the search warrant as "legal paper that authorized [the police] to make a stop of the vehicle."
During the trial, Detective Paul Schuster of the New Brunswick Police Department testified that he was on the narcotics squad, and that narcotics squad investigations typically began when a confidential informant, a member of law enforcement, or a citizen gave the squad information a person was selling drugs. The squad then followed up on the information received. He testified defendant was under investigation and that the police "had information about some alleged criminal activity Mr. Lambert was involved in. I had obtained a [sic] authorization from a judge to search Mr. Lambert and his Expedition, Ford Expedition." Schuster acknowledged that the "legal paperwork" he obtained was the result of the investigation.
Several days after he received "this paperwork," Shuster and five detectives on the narcotics squad located defendant driving in his car. After pulling him over, defendant was removed and placed in a police vehicle, and his car driven to another location for the search. The police found suspected cocaine and crack cocaine, a stun gun, a gram scale, and baggies in his car, as well as $613 in cash in his pocket.
Schuster admitted that six months before the search, defendant had filed a lawsuit against him, the New Brunswick Police Department, and Detective John Yurkovic, one of the six detectives who searched defendant's car. The lawsuit was still pending at the time of the search.
Other detectives who conducted the search also testified. One referred to the search warrant as a "court order" for "Kevin Lambert and his vehicle." Another alluded to the search warrant as "legal paperwork" to "search an individual." During the questioning of one detective, the court asked if he had been a party to the lawsuit at the time of the "search warrant."
The parties stipulated that the controlled dangerous substance found in defendant's car was less than one-half ounce of cocaine. The State's expert on the possession, use, packaging and distribution of controlled dangerous substances opined that the quantity of the cocaine found in defendant's car was for distribution.
Lambert's defense was that the detectives targeted him and planted the cocaine in his car in retaliation for filing the lawsuit against Shuster, Yurkovic and the police department. Defendant's only witness was the attorney who represented him in that lawsuit. The attorney testified both Schuster and Yurkovic had filed answers to defendant's complaint three months before the search, and thus knew of the lawsuit at the time of the search. The attorney also testified that six months after the search, defendant voluntarily dismissed Shuster and Yurkovic from the complaint and that neither detective admitted to any wrongdoing.
During deliberations the jury sent the following questions to the court: "What was the basis of the lawsuit? When he was stopped, why wasn't the car searched at the same location? What was the basis of the court order?" The court advised the jury its deliberations had to be based upon the evidence.
II
Defendant raises the following points for our consideration:
POINT I - IRRELEVANT AND PREJUDICIAL TESTIMONY CONCERNING THE SEARCH WARRANT VIOLATED LAMBERT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS, A FAIR TRIAL AND AN IMPARTIAL JURY. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, AND 10).
POINT II - LAMBERT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM WAS VIOLATED BY A DETECTIVE'S TESTIMONY THAT HE HAD "INFORMATION ABOUT ALLEGED CRIMINAL ACTIVITY THAT MR. LAMBERT WAS INVOLVED IN".
POINT III - THE TRIAL COURT'S UNEXPLAINED FAILURE TO DECIDE THE ADMISSIBILITY OF, AND TO APPROPRIATELY SANITIZE, DEFENDANT'S PRIOR CONVICTIONS, WAS ERRONEOUS PER SE, PREVENTED LAMBERT FROM TESTIFYING ON HIS OWN BEHALF AND DENIED HIM A FAIR TRIAL. FURTHER, THE COURT'S ERRONEOUS LIMITATIONS ON LAMBERT'S PROSPECTIVE TESTIMONY PREVENTED HIM FROM PRESENTING A COMPLETE DEFENSE.
A. The Court Failed To Follow Sands And Brunson.
B. The Court Interfered With Lambert's Right To Present A Complete Defense.
POINT IV - THE TWO PERIODS OF PAROLE INELIGIBILITY IMPOSED AS PART OF CONSECUTIVE SENTENCES COMBINED TO MAKE THE SENTENCES IMPOSED MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
Defendant's principal argument is that he was unduly prejudiced when Shuster testified the police had information that he was involved in "alleged criminal activity" and that the court authorized a search of him and his car. Defendant also complains the State's witnesses' use of the terms "legal paperwork," "court order," and "authorization" to reference the search warrant was prejudicial. Because no objection was raised at trial, we review defendant's claims under the plain error standard, namely, whether the testimony was capable of producing an unjust result. R. 2:10-2.
In State v. Milton, 255 N.J. Super. 514, 520-21 (App. Div. 1992), we held that the prosecutor's reference during trial to an unexecuted search warrant of defendant's person was severely prejudicial, warranting a reversal. We found the mention of the warrant suggested to the jury that proof had been presented to a judge that indicated defendant had engaged in criminal conduct. Id. at 520.
Five years later, our Supreme Court in State v. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), held that a "jury's awareness of a search warrant [does] not cause an impermissible inference of guilt," id. at 241, and in some instances a jury's knowledge a search warrant was secured may be necessary to dispel a concern the police acted improperly. Id. at 240. The Court distinguished Milton on the ground that the prosecutor's reference to the search warrant in that case "had the capacity to mislead the jury," whereas the reference to the search warrant in Marshall did not. Ibid.
Two years later in State v. Alvarez, 318 N.J. Super. 137 (App. Div. 1999), we held that mentioning defendant's room had been searched pursuant to a search warrant was reversible error under Milton. In Alvarez, the prosecutor inserted into his questions the fact that a judge had issued a search warrant, "suggesting that a judicial officer with knowledge of the law and the facts believed that evidence of criminality would be found in defendant's room." Id. at 148. We further commented that the parties could have avoided use of the term "search warrant" by referring to the warrant as "legal papers." Ibid. In the alternative, we suggested the trial court could have advised the jury that the police were lawfully at the premises, or could have instructed the jury that it was not to concern itself with why the police were at the premises. Ibid.
In State v. McDonough, 337 N.J. Super. 27, 32 (App. Div.), certif. denied, 169 N.J. 605 (2001), defendant argued a new trial was warranted because the jury learned that his home had been searched and that he had been arrested pursuant to warrants. We disagreed, finding the passing reference to these warrants was harmless and thus the holding in Marshall controlled. Id. at 34-35. However, in McDonough, the jury was made aware of what the issuing court had been told by the police before the court issued the warrants. Id. at 34. We distinguished the facts in McDonough from those in Milton, where the reference to the search warrant was not only unnecessary to the presentation of the case, but also suggested to the jury that the State presented evidence implicating defendant to the issuing judge that was not shared with the jury. Id. at 33.
We distinguished the facts in Alvarez for the same reason. In that case, the jury was also made aware there was a search warrant, but there was no evidence of the basis for the warrant, leaving the jury to speculate that the police and the judge had knowledge defendant had engaged in criminal conduct that was not revealed to the jury. Id. at 34. We also observed that the evidence of the warrants in Alvarez and Milton had the same capacity to prejudice a defendant "as the hearsay evidence of an informer's tip that the Court found to constitute reversible error in State v. Bankston, 63 N.J. 263, 271 (1973), -- that is, that 'a non-testifying witness has given the police evidence of the accused's guilt.'" Ibid.
Here, defendant did not suffer any prejudice because witnesses referred to the search warrant as "legal paperwork," "court order," or "authorization." As previously addressed, there is nothing improper about using the term "search warrant" per se, see Marshall, supra, 148 N.J. at 239-40, let alone the innocuous euphemisms employed by the State's witnesses to refer to the search warrant. But the testimony about how the police obtained the search warrant is a different matter.
Shuster testified that the typical narcotics squad investigation commences with a report from a third person that a party is suspected of selling drugs. On the heels of that testimony, Shuster stated he investigated defendant, clearly suggesting a third party reported that defendant had engaged in the sale of illicit substances. When probed about how the search came about, Shuster testified that the police had information about "some alleged criminal activity Mr. Lambert was involved in," and obtained an "authorization from a judge to search Mr. Lambert and his Expedition." Schuster also acknowledged that the "legal paperwork" he received was the result of a "prior investigation."
The jury never learned what the police imparted to the issuing judge. But Shuster's testimony suggested the police were told defendant was selling drugs, investigated defendant, and advised the court of the "alleged criminal activity" in which defendant was involved, inducing the court to authorize a search of defendant and his car. The testimony created the impression the State possessed incriminating evidence about defendant that it did not present at trial.
Clearly the jury was curious about what had been imparted to the issuing judge, as manifested by asking the basis of the "court order" during its deliberations.
The State argues that evidence they obtained permission from a court to search defendant and his car was necessary to show the detectives had not targeted defendant in retaliation for his lawsuit. While evidence of a search warrant may be used to offset an impression a search was conducted arbitrarily, see Marshall, supra, 148 N.J. at 240, the State does not have license to suggest at trial that it is in possession of undisclosed evidence of other criminal activity in which defendant has engaged. Here, the State could have accomplished its objective of showing the search was legitimate by requesting the court to advise the jury that the search of the defendant and his car was lawful, or by asking the court to instruct the jury that the police had lawfully searched defendant and his car. See Alvarez, supra, 318 N.J. Super. at 148.
We are satisfied that Shuster's testimony compromised defendant's right to a fair trial and was thus was clearly capable of producing an unjust result, warranting a reversal of the conviction. In light of our disposition, we need not address defendant's remaining arguments.
Reversed and remanded for a new trial. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION