STATE OF NEW JERSEY v. RICHARD GUARDERAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1457-04T41457-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD GUARDERAS,

Defendant-Appellant.

____________________________

 

Submitted May 22, 2006 - Decided August 1, 2006

Before Judges Lintner and Gilroy.

On appeal from the New Jersey Superior Court, Law Division, Mercer County, Indictment No. 04-01-0065.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mary Catherine Michael, designated counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant, Richard Guarderas, was convicted of third-degree possession of a controlled dangerous substance (CDS) (cocaine), contrary to N.J.S.A. 2C:35-10a(1), and N.J.S.A. 2C:2-6 (Count One); third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Two); third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(3) (Count Three); third-degree distribution of cocaine, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Four); and third-degree distribution of cocaine within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(3) (Count Five). On July 23, 2004, after his conviction on Counts One through Four were merged with his conviction on Count Five, defendant was sentenced to a term of three years imprisonment, with a three-year period of parole ineligibility. Defendant's driving privileges were suspended for a period of six months, and all appropriate assessments and penalties were imposed. Defendant appeals, and we reverse and remand for a new trial.

These are the salient facts. At approximately 6:00 p.m. on June 23, 2003, Trenton Police Officer Brian Suschke was conducting a narcotics surveillance in the area of 76 Hudson Street, a residential apartment building, together with Sergeant Darren Zappley. The officers were conducting their surveillance from an unmarked motor vehicle at a location that afforded them a view of the premises. To aid in their observations, the officers utilized binoculars so that their view of the premises was the equivalent of being approximately ten feet away. Officer Suschke observed defendant standing on the front porch of the residence. There were also juveniles on the porch and several people on the sidewalk in front of the porch. Suschke observed defendant conduct a hand-to-hand sale of suspected crack cocaine. An individual, later identified as Mary Hegarty, walked up and stopped in front of the residence. Defendant came down off the porch, and engaged in a conversation with Hegarty, returned to the porch, reached underneath a chair upon which another gentleman was sitting, and retrieved a light-colored object. Defendant then returned to the sidewalk and dropped several pieces of the light-colored object into Hegarty's hands. Suschke described the light-colored objects as consistent with crack cocaine. In exchange, Hegarty handed defendant paper currency. After the exchange was completed, Hegarty proceeded up Pearl Street toward Benton Street, and defendant returned to the porch.

Suschke notified arrest teams in the area of Hegarty's description, and her direction of travel. He requested the teams to move into the area, and take Hegarty into custody. On her arrest, Hegarty was found in possession of cocaine.

In the interim, Suschke and Zappley requested Trenton Police Officer Nathaniel Johnson, assigned to one of the arrest teams with Officer Franicevich, to respond to 76 Hudson Street, and arrest defendant. On arrest, defendant was searched, and the police recovered a single-edged razor blade from his pants' pocket, together with $167. A second razor blade was found next to defendant on the front step of the residence. However, no drugs were found on the defendant or the other individuals on the front porch.

Trenton Police Detective William McLaughlin, who had responded to the residence, noted that a window leading into the apartment was partially opened with "a razor blade sitting there." Believing that narcotics could have been pushed into the apartment through the window, McLaughlin entered the apartment, and found a cigar box containing powder cocaine, and defendant's identification. Also found on the living room coffee table was a pipe commonly used for smoking marijuana, together with a number of small plastic baggies.

At trial, Officer Suschke identified defendant as the person he observed conduct the hand-to-hand drug transaction in front of 76 Hudson Street, and that the residence was located within 1,000 feet of the Robbins Elementary School. Detective McLaughlin and Officer Johnson also made in-court identifications of defendant as the person they arrested in front of 76 Hudson Street.

On appeal, defendant raises the following issues:

POINT I.

THE TRIAL COURT ERRED IN ITS FINDING THAT DEFENDANT HAD OPENED THE DOOR TO ALLOW TESTIMONY CONCERNING MARIJUANA USE AT 76 HUDSON STREET. (PARTIALLY RAISED BELOW).

POINT II.

DEFENDANT WAS DENIED A FAIR TRIAL BY THE PROSECUTOR'S MISCONDUCT. (NOT RAISED BELOW).

POINT III.

THE INEFFECTIVE PERFORMANCE OF COUNSEL DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO A FAIR TRIAL (NOT RAISED BELOW).

Prior to trial, defendant moved to exclude any reference to the Latino Kings gang materials found in the basement of the apartment. The State agreed, acknowledging that such evidence would be prejudicial to defendant, and was not relevant to the charges. Defendant also moved to bar statements made by defendant's mother at the time of the arrest that she knew her sons, including defendant, smoked marijuana, but she did not know what went on in the house during the daytime because she leaves for work at 5:00 a.m. Again, the State agreed, acknowledging that the prejudicial effect of the testimony would outweigh its relevancy. The State's witnesses were instructed accordingly, and the State did not introduce any evidence concerning the issues on its case.

On direct examination, defendant stated that he did not live at 76 Hudson Street at the time of the arrest, and was not aware of the cigar box containing cocaine found in the apartment. In response to being asked why the police would have alleged that the drugs belonged to him, defendant stated that the police had told him if any drugs were found in the house they were going to charge his mother, and he decided to take responsibility for any drugs found. Defendant was then asked by his counsel why he would have said that, and defendant testified that there was no drug activity going on in the house: "[b]ecause I was guaranteed, to my knowledge, there was nothing in the house, because nobody really does nothing in the house. We don't smoke cigarettes, we don't do nothing in the house. So, I didn't expect for that to be there." Arguing that defendant had opened the door, the State, over objection, was permitted to question the defendant concerning the statements made by his mother during the time of his arrest.

Q: You're telling us, Mr. Guarderas, if I understand you correctly, that after you were arrested, that the officers wanted to search your property?

A: Yes.

Q: They wanted to search 76 Hudson Street?

A: Yes.

Q: And at that point in time you felt that there would be nothing else found in the house; is that correct?

A: Yes.

Q: Because as far as [you] knew nothing, nothing illegal was going on in the house?

A: Yes.

Q: That's not what your mother's position was, was it?

A: Um.

. . . .

Q: Your mother was there when you were being arrested, right?

A: Yes, she was.

. . . .

Q: Eventually, she allowed a search of the house, right?

A: Yes.

Q: Were you aware that she had told the police at that time that they, her sons, are known by her to smoke marijuana, and that the officers had seen a smoking device and plastic baggies on a coffee table near the front door?

. . . .

Q: Were you aware that the police observed a smoking pipe inside your house?

A: No, I wasn't aware of that.

. . . .

Q: Were you aware that there were several small zip-lock plastic baggies commonly used to package marijuana on that coffee table?

A: I didn't know that, anything that they found in the house was there until I got to the police station and the officers let me know.

Q: Are you aware that your mother told the police that her sons are known by her to smoke marijuana, and that the evidence in plain view belonged to you and your brother?

A: No, I was not aware of that.

. . . .

Q: But you were talking about, earlier in a response to Ms. Lyons [defendant's attorney], about, and I know I'm using a word you did not use, or a phrase, but you were willing to take the weight, so to speak, for anything that was found in the house?

A: Yes, because my mother -- they told my mother that she would have to take anything they found in the house. So since my mother, she is basically too old, so I told her that if they find anything in the house, then I would take responsibility for it.

Q: Well, who did you tell[,] your mother or the cops?

A: I told both my mother and the cop.

Q: But at that point in time, you had no reason to think that anything was going to be found in the house?

A: Yeah.

Q: It must have come as some surprise then, when they found marijuana on the coffee table?

A: Yes.

Q: Or, I shouldn't say marijuana, plastic baggies on the coffee table?

A: Yes.

Q: And it would have come as a surprise to you that they then found the smoking device, the pipe, on the coffee table?

A: Yes.

. . . .

Q: So the drugs that were found there had nothing to do with you?

A: In my mother's house, I could [not] smoke nothing because nobody smoked nothing in the house.

Q: Why would your mother say that to the police?

A: I don't know why.

Q: Do you believe that she said it to the police?

A: I don't believe that she would say that to the police.

Q: Okay. Why would the police lie?

A: I wouldn't know.

Defendant argues that the trial judge erred by allowing questioning concerning marijuana use in his mother's house under the theory that defendant had opened the door during his direct examination. Defendant contends that this line of questioning was unduly prejudicial because it contained references to prior criminal activity which had no relevance to the charges of possession and distribution of cocaine. Defendant further asserts that the trial judge erred by allowing the prosecutor to use the out-of-court statement of defendant's mother that she knew defendant smoked marijuana.

The State argues that the evidence was relevant and necessary to counter defendant's selective testimony that he was innocent of any knowledge of the cocaine found in the residence; and because the drug activity had never occurred in this apartment, he was willing to take responsibility for any contraband found during the search. The State concedes that the evidence was not admissible on its case, but asserts that the trial judge correctly allowed the cross-examination, referencing defendant's mother's statement to the police, because defendant had opened the door by his direct testimony. Alternatively, the State argues that even if this court determines the cross-examination of defendant concerning his mother's comments to the police was erroneously admitted, any error was harmless, citing R. 2:10-2. Because we conclude that the cross-examination of defendant concerning out-of-court statements made by his mother permitted introduction of hearsay testimony concerning other crimes or bad acts that substantially prejudiced defendant, we reverse.

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay is not admissible unless the Rules of Evidence, or other law, permits it. N.J.R.E. 802.

N.J.R.E. 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he [or she] acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

The rule is one of "exclusion" rather than "inclusion," and is intended to bar admission of other crimes when such evidence is offered solely to establish the "forbidden inference of propensity or predisposition." State v. Nance, 148 N.J. 376, 386 (1997). N.J.R.E. 404(b), however, does not preclude other crime evidence in all instances. It allows admission of such evidence when relevant to prove some fact genuinely in issue. State v. Marrero, 148 N.J. 469, 482 (1997); State v. Oliver, 133 N.J. 141, 151 (1993). "Other crime" evidence is admissible where it is (1) relevant to a material issue, (2) similar in kind and reasonably close in time to the act alleged, (3) clear and convincing, and (4) of sufficient probative value to not be outweighed by its apparent prejudice. State v. Cofield, 127 N.J. 328, 338 (1992) (citing Abraham P. Ordover, Balancing The Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989)).

Moreover, if evidence of other crimes is admitted, the jury must be instructed as to the limited purpose of the evidence and the restricted significance that the jury can attach to it. Marrero, supra, 148 N.J. at 495; see also N.J.R.E. 105. The trial judge's limiting instruction "'should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence.'" Cofield, supra, 127 N.J. at 341 (quoting State v. Stevens, 115 N.J. 289, 304 (1989)).

Relevant evidence is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401.

The "opening the door" doctrine is essentially a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection. The doctrine of opening the door allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence. That doctrine operates to prevent a defendant from successfully excluding from the prosecution's case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant's own advantage, without allowing the prosecution to place the evidence in its proper context.

[State v. James, 144 N.J. 538, 554 (1996) (internal citation omitted).]

The opening the door doctrine is subject to certain limitations. The doctrine does not permit admission of evidence where the probative value is substantially outweighed by the risk of undue prejudice. Ibid. Moreover, because the doctrine is curative in nature, it can be used only to prevent prejudice, not to inject prejudice. State v. Vandeweaghe, 177 N.J 229, 238 (2003). In short, "'[i]ntroduction of otherwise inadmissible evidence . . . is permitted only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence'" presented. Ibid. (quoting United States v. Winston, 447 F.2d 1236, 1240 (D.C. Cir. 1971)) (internal quotation omitted).

Generally, the determination of the admissibility of other-crime evidence is within the trial judge's broad discretion. Marrero, supra, 148 N.J. at 483. Our role is not to substitute our judgment for that of the trial judge, but to decide whether the trial judge pursued a manifestly unjust course. See Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998). An appellate court should not upset the decision of the trial court unless "'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting Marrero, supra, 148 N.J. at 484) (internal quotation omitted).

We determine that the admission of hearsay statements from defendant's mother concerning defendant's prior use of marijuana during defendant's cross-examination was improper. As conceded by the State pre-trial, the evidence had very limited probative value to the crimes charged, possession and distribution of cocaine, and its probative value was substantially outweighed by the risk of undue prejudice to the defendant. N.J.R.E. 403. The mother's hearsay statement involved defendant's use of marijuana on prior occasions. Before admitting such Rule 404(b) evidence, the trial judge should have conducted the four-step analysis required by Cofield. The record fails to disclose that analysis.

Part of the analysis requires the judge to be satisfied that the probative value of the evidence is not substantially outweighed by its apparent prejudice to defendant. Cofield, supra, 127 N.J. at 338. We are satisfied from a review of the cross-examination that the limited probative value was substantially outweighed by the risk of undue prejudice to defendant. N.J.R.E. 403. The evidence had limited probative value to the crimes charged, possession and distribution of cocaine. The line of questioning permitted the State to paint defendant as a drug user with his mother's paintbrush. This was error. Accordingly, the evidence was not admissible under the "opening the door" doctrine, even if defendant's testimony had opened the door. The doctrine does not permit admission of evidence where the probative value is substantially outweighed by the risk of undue prejudice. James, supra, 144 N.J. at 554. Nor does the doctrine by itself permit the introduction of hearsay. Assuming that the evidence was relevant and not barred under N.J.R.E. 403, the evidence should have been introduced by the State calling defendant's mother as a witness, not by introducing hearsay through cross-examination of defendant.

The State argues that the evidence was not offered for the truth asserted, but on the issue of defendant's credibility because the evidence countered defendant's statement that no drug activity had ever occurred in the residence. The use of such evidence to affect the credibility of a witness must still be weighed against its prejudice to defendant. N.J.R.E. 403. Moreover, even assuming the evidence was relevant and not excludable under N.J.R.E. 403, we conclude that the admission of the evidence was error because the trial judge did not instruct the jury concerning the limited use for which the jury could consider the evidence. State v. Wray, 336 N.J. Super. 205, 207 (App. Div.), certif. denied, 168 N.J. 290 (2001); State v. Angoy, 329 N.J. Super. 79, 88-89 (App. Div.), certif. denied, 165 N.J. 138 (2000).

Lastly, the State argues that assuming the cross-examination of defendant by use of his mother's statement to the police was improperly admitted, any resulting error was harmless, citing R. 2:10-2. We disagree.

The State argues that the evidence it presented implicating defendant as the possessor and seller of cocaine was overwhelming, and that the "complained of testimony was certainly not 'clearly capable of producing an unjust result.'" (quoting R. 2:10-2). The evidence included the testimony of Officer Suschke observing defendant in the hand-to-hand drug transaction, the confiscation of cocaine from Ms. Hegarty after she purchased the CDS from defendant, and the single-edged razor blade found in defendant's pants' pocket.

There is "no mathematically precise formula for deciding whether a trial error creates a reasonable doubt that would not otherwise have existed concerning [a] defendant's guilt." State v. Branch, 182 N.J. 338, 353 (2005). As recently stated by this court in State v. Walden, 370 N.J. Super. 549, 562 (2004):

Error will not cause reversal unless it is "clearly capable of producing an unjust result." R. 2:10-2. Not any error will warrant setting aside a conviction and ordering a new trial. In evaluating claims of prosecutorial misconduct and plain error, the fundamental question we must answer is whether it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict if the questioned conduct had not occurred. If the possibility of an unjust result is sufficient to raise in our minds a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached, a new trial is required.

[internal citation omitted.]

We cannot say that the error was harmless, and did not have the capacity to cause an unjust result. We conclude the evidence was not overwhelming, considering that the jury acquitted defendant of four other related drug charges. The cross-examination placed defendant's credibility under microscopic scrutiny he might not have otherwise have faced because of the introduction of the hearsay statements of his mother that he used marijuana in the house in the past. This evidence may have tipped the scale. Accordingly, we reverse.

Reversed and remanded for a new trial.

 

(continued)

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A-1457-04T4

August 1, 2006