STATE OF NEW JERSEY v. THOMAS LYKES

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1884-04T41884-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

THOMAS LYKES,

Defendant-Appellant.

_______________________________________________________________

Submitted June 1, 2006 - Decided

Before Judges Wefing, Wecker and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Ind. No. 1227-

06-01.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Janet A. Allegro, Designated

Counsel, on the brief).

Edward J. DeFazio, Hudson County Prosecutor,

attorney for respondent (Karen M. Kazanchy,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Thomas Lykes was tried, along with co-defendant Daniel Veal, on April 16, 18, and 19, 2002. Although defendant testified at trial that he did not knowingly or purposely possess cocaine, the jury found him guilty of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). As to Daniel Veal, however, the jury could not reach a verdict, and the court declared a mistrial.

The trial court sentenced defendant to a four-year prison term, to be served concurrently with a twelve-month sentence for violating probation, which defendant had previously received in connection with a conviction for resisting arrest. Appropriate fines and penalties were also imposed.

On appeal, defendant makes the following arguments:

POINT I

THE TRIAL COURT IMPERMISSIBLY ALLOWED THE PROSECUTOR TO QUESTION MR. LYKES ABOUT HIS PREVIOUS KNOWLEDGE OF COCAINE.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION AND UNFAIRLY PREJUDICED THE DEFENDANT BY ALLOWING THE PROSECUTION TO CROSS-EXAMINE THE DEFENDANT AS TO PRIOR CONVICTIONS.

POINT III

THE TRIAL COURT'S INSTRUCTION IN RESPONSE TO THE JURY'S QUESTION REGARDING MR. LYKES'S PRIOR KNOWLEDGE OF COCAINE CONSTITUTED ERROR.

POINT IV

THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT INSTRUCTING THE JURY REGARDING MR. LYKES'S INTENTION REGARDING THE COCAINE. (Not Raised Below)

POINT V

DURING HER SUMMATION, THE PROSECUTOR COMMITTED MISCONDUCT AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE 14th AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION. (Not Raised Below)

POINT VI

THE SENTENCE IMPOSED BY THE COURT WAS UNDULY EXCESSIVE.

POINT VII

THE SENTENCE IMPOSED BY THE COURT VIOLATED MR. LYKES'S RIGHTS UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

At the trial, the State presented two witnesses: Louis Mecka and John Joy, who were both members of the Jersey City Police Department. Mecka testified that on July 26, 2000, at approximately 8:00 p.m., he was working with his partner, Officer Roosevelt Cumberbatch, in the vicinity of Astor Place and Monticello Avenue. The area contains a mix of residential dwellings and retail businesses, as well as a school, P.S. 14. Mecka was wearing plain clothes and conducting surveillance from an unmarked, white Hyundai. Mecka was familiar with the neighborhood, and he was also familiar with some of the area residents and their activities, including co-defendant Daniel Veal, because he had been assigned to the same area for about two and a half years.

While Mecka and Cumberbatch were driving through the area, Mecka noticed a group of people "[h]anging out on the corner" of Monticello and Astor, and he recognized one of them as Veal. Officer Cumberbatch then parked the car on the northbound side of Astor, about four or five houses away from the corner of Monticello and Astor. The officers were parked on Astor for about five or ten minutes, and Mecka had a view of "what was going on on the corner up to Mont[i]cello," although his view was partially obstructed by cars parked on the street.

Mecka observed defendant walking north on Monticello Avenue, and he saw him approach Veal at the corner of Monticello and Astor. After engaging in a brief conversation, defendant and Veal "walked a little bit off the corner eastbound and exchanged currency from Mr. Lykes to Mr. Veal." Although he was unable to see the denomination of the currency, Mecka testified that he saw the exchange of currency "very clearly."

After the money changed hands, Veal walked east on Astor to a nearby tree, and he placed a small object in front of the tree. After Veal had placed something under the tree, he walked back toward the corner of Astor and Monticello. Defendant, who had been waiting on the corner, then walked to the same area by the tree where Veal had just placed the small object, and he picked it up. Officer Mecka observed defendant place the item into his right pocket before proceeding east on Astor. Based on his training and experience, Officer Mecka believed that he had just witnessed a narcotics transaction between defendant and Veal. Accordingly, Mecka began to follow defendant while he radioed for assistance.

Mecka stopped defendant just as Officers Joy and O'Connor arrived to assist him. According to Mecka, when defendant was stopped, he reached into his pocket and "came out with four vials of cocaine." As a result of subsequent testing, defense counsel stipulated that the four vials seized from defendant contained cocaine.

Following his arrest, defendant was transported to police headquarters by Officer Joy. Officer Mecka testified that he tried to locate Veal after defendant was arrested, but Veal was no longer in the area. Veal was subsequently arrested by Mecka about a week later, on August 2, 2000.

Defendant took the witness stand in his own defense. He denied that he ever met or spoke to Veal prior to trial. Defendant testified that on the night in question, he was walking on Astor Place when he saw four vials on the ground near the school. Defendant's testimony included the following:

Q. [D]id you purchase these drugs, this cocaine, from Mr. Veal?

A. No, I didn't.

Q. When you picked up these vials did you know what it was that was in them?

A. No. I suspected that it could have been drugs or dangerous substances, rat poison, anything because -

Q. Is this unusual to find drugs lying on the street in this area?

A. Every now and then you would find something like that because sometime or another somebody probably dropped something or you can find empty vials. Possible -- syringes, empty marijuana bags all over the street. So that ain't nothing new especially in that area.

Q. Okay. And what did you do with these four vials when you picked them up?

A. I had them in my left hand.

Q. And had you had an opportunity to look at it at that point?

A. Not at that point.

Q. What were you going to do with it?

A. I was going to take a look at it and walk by the sewer and just throw it by the sewer, down there.

Q. What was the reason why you would do that?

A. Because I have children and they also go to public schools and I wouldn't like them to find any drug substance or anything that looked like drug substance around the school or anything because people does -- children does -- have a curiosity to pick up things.

Q. Okay. Now what happened as you approached the corner there?

A. As I reached the corner the police car pulled up alongside of me.

. . . .

Q. . . . [W]hat happened when the police stopped?

A. Well, the officers jumped out . . . of the car.

Q. Which officer?

A. It was Mecka and Cumberbatch. They --

Q. Which officer came out of the car?

A. Both of them. Both officers departed from the car.

Q. What were they wearing?

A. Uniforms.

Q. What kind of uniforms?

A. Police uniforms that said Jersey City . . . Police Department on it [sic].

Q. Now do you recall Police Officer Mecka said he was in plain clothes? Is that your recollection?

A. That's what he said, but my recollection, he had on a police uniform.

Q. Now after the police stopped . . . what did they do?

A. He asked me to open up my hand. That I proceeded to do and showed him the four vials that . . . I just found.

During a pretrial hearing, the trial court ruled that the State was not permitted to use defendant's 1990 conviction for possession of cocaine to impeach his credibility, because the conviction was too remote. Nevertheless, after defendant testified that he did not know what was in the four vials when he picked them up, the trial court allowed the assistant prosecutor to ask defendant the following question during cross-examination: "What I'm asking you is prior to July 26th in the year 2000 have you ever held a vial with cocaine in it in your hand?" Defendant answered, "Yes, I did."

Defendant now argues, as he did at trial, that his testimony concerning "the alleged prior bad act of holding cocaine in his hand should not have been allowed" by the trial court under N.J.R.E. 404(b), and the holding of State v. Cofield, 127 N.J. 328 (1992), and that it was an abuse of discretion not to grant a mistrial after the jury heard the challenged testimony. Defendant also claims that the trial court's limiting instruction failed to adequately protect him "from the prejudice that would necessarily occur from the jury hearing about his prior activity." The trial court's limiting instruction, which immediately followed the challenged testimony, consisted of the following:

Okay. Ladies and gentlemen, before we go any further I just want to instruct you on the . . . way in which you can consider the witness's last answer to that last question because I'm allowing it to be asked and answered for a very limited purpose.

And the limited purpose is for you to consider how that answer might or might not affect the credibility or believability of the witness's prior testimony about what he thought or knew or suspected was in the various S-4, the various 4 vials when he picked them up on July the 26th.

That's the only way in which you can consider that last question and that answer. You cannot consider it in any other way. For example, . . . I'm instructing you, you cannot consider the fact that Mr. Lykes said on one previous occasion he had in fact held a vial of cocaine in his hand for any kind of other purpose at all.

You could not, for example, consider that because it occurred on one other occasion that he held a vial of cocaine in his hand that, therefore, he must be guilty of having held cocaine in his hand on this occasion. You understand what I'm saying?

In other words, you cannot use the evidence of what that last question and answer was in any way except for the very limited purpose in which I described it for you. That is whether or not it affects his believability or credibility on the issue of the picking up the items on July 26th and whether or not he had knowledge as to what they were.

That's the only purpose for which you can consider that last question and answer. Any other consideration for any other reason would be highly inappropriate by you. And I want to instruct you that way so you understand it. Okay. Okay.

In addition, as part of the trial court's general instructions, before the jury began deliberating, the court advised the jury:

And, furthermore, whenever I gave a limiting instruction as to how you can use certain evidence, which I am going to do again, I did it earlier, I'm going to do it again for you, but I want you to understand it's very important that you follow that instruction, use that evidence only for the very limited purpose that I've allowed it. You cannot use it for any other purpose.

. . . .

Now in addition the State introduced evidence that Mr. Lykes on a previous occasion had held a vial of cocaine in his hand. And this had occurred prior to July 26th, 2000. That's the date that the charges in this case revolve around.

Now the defendant, I want you to understand, Mr. Lykes, is not charged with any wrongdoing or any crime regarding that prior event. And that is not at all before you for your consideration.

Now normally such evidence, that is evidence of conduct that took place before the date charged in the indictment, is not permitted under our rules of evidence.

Our rules specifically exclude evidence that a defendant did something on some prior occasion if it's offered only to show that he has some disposition or a tendency to do wrong. And that, therefore, he must be guilty of the offenses charged in the indictment that you're considering.

Before you can give any weight to the evidence you must be satisfied that the defendant did in fact have a vial of cocaine in his hand on some prior occasion. If you're not satisfied as to that, then you must reject that question and answer entirely. That means you can't consider it at all.

However, our rules of evidence do permit evidence of some prior conduct on the part of a witness when the evidence is used for specific narrow purposes. Now in this case I allowed that question and the answer by Mr. Lykes to be asked. That is whether or not he had ever held a vial of cocaine in his hand before July 26th, 2000, and I allowed his answer to that question.

The only purpose that you may consider that evidence for is whether or not that evidence affects Mr. Lykes's credibility as a witness as to his testimony regarding the events of July 26th, that is the events of the day in which the indictment charges him with the crime, and his actions and his state of mind on that particular evening.

Whether this evidence affects his credibility in any way, well, that's up for you to decide. You may decide that the evidence does not affect his credibility in any way and it's not helpful to you at all. In that case you should disregard the evidence.

On the other hand, you may decide that the evidence does affect his credibility and you may use it for that specific purpose. However, you cannot use the evidence to decide that the defendant, Mr. Lykes, had some tendency to commit a crime or that he is a bad person.

That is you may not decide that just because he testified that on some prior day he held a vial of cocaine that, therefore, he must be guilty of the offense for which he's charged in this indictment. That would be entirely wrong on your part.

I have admitted the evidence only as it relates to the issue of his credibility or believability. You may not consider it for any other purpose and you may not find that the defendant is guilty, Mr. Lykes, simply because the State offered evidence that on [sic] some point prior to July 26th he admitted that he held a vial of cocaine in his hand.

Based on our review of the record and the applicable law, and in light of the prompt, clear, and comprehensive limiting instructions, we conclude that defendant received a fair trial, and that any error was not "clearly capable of producing an unjust result." R. 2:10-2. The facts underlying defendant's conviction are straightforward and uncomplicated. Officer Mecka positively identified defendant as the person who paid money to co-defendant Veal in exchange for the small objects that Veal placed on the ground by a nearby tree, and it is undisputed that the four vials that defendant had in his possession when he was arrested contained cocaine. Defendant testified, however, that he did not pay Veal any money to purchase drugs, he did not know the vials that he picked up contained cocaine, and he never intended to possess the cocaine. Under these circumstances, the case turned on credibility, and the jury was entitled to accept Officer Mecka's testimony, and reject defendant's testimony.

The trial court reasoned that defendant could be asked "whether or not he ever held a vial of cocaine in his hand before the day in question" because it was relevant to whether defendant "knew or didn't know or suspected that the item[s] that he . . . picked up on July 26th were in fact cocaine." We agree that defendant's prior involvement with a vial of cocaine was relevant to the jury's assessment of defendant's credibility when he testified that he did not know what was in the vials. Thus, the evidence was relevant to a material issue in dispute, and the jury was given two specific and comprehensive limiting instructions, which clearly explained the limited purpose of the testimony. We conclude therefore that any error was harmless beyond a reasonable doubt, State v. Macon, 57 N.J. 325, 340 (1971), and was not "clearly capable of producing an unjust result." R. 2:10-2.

Defendant also claims that his "presumptive term of four years" was unduly excessive because the trial court did not find mitigating factors. N.J.S.A. 2C:44-1(b)(2), (7), (8), and (9). Defendant's argument in its entirety consisted of the following:

[T]here were several mitigating factors Judge DePascale should have considered. After the guilty verdict on April 19, 2000, Judge Messano continued Mr. Lykes's bail and did not consider him a flight risk. Although Mr. Lykes did not return to court, the record indicates that he moved to North Carolina and led a life free of crime, except for one DWI offense. A ten-year gap existed between the 1990 drug offense and the current offense. His only other offense involved a family dispute.

Of course, "where mitigating factors are amply based in the record before the sentencing judge, they must be found." State v. Dalziel, 182 N.J. 494, 504 (2005). Here, however, defendant fails to point to any credible evidence in the record to support his claim that the trial court erred in failing to find mitigating factors (2), (7), (8), and (9), and the record does not contain such evidence. As a reviewing court, we may modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). This is not such a case.

Our review of the record leads us to conclude that defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

________________________________________________________________

WECKER, J.A.D., dissenting.

I respectfully dissent. I cannot agree with the majority that the prosecutor's questions to defendant, respecting his prior knowledge of what a vial of cocaine looked like and whether he had ever held a vial of cocaine in his hand, were unobjectionable. In my view, those questions clearly violated N.J.R.E. 404(b). The truthful answers defendant was effectively forced to give constituted evidence of prior wrongs or crimes that were not relevant to any material, disputed issue, and the resulting prejudice was not cured by the judge's instructions.

After a Sands hearing prior to this 2002 trial, the trial judge ruled that defendant's 1990 conviction on a drug offense was too remote and could not be used to challenge his credibility if he should testify.

On direct examination, defendant denied that he had bought the four vials that the police found in his hand. He claimed that he found the vials on the ground as he walked near a school, and that he saw the vials because it was raining and he was walking with his head down. Defendant never denied that he thought drugs might be in the vials. Here is defendant's testimony on direct examination:

Q. [D]id you purchase these drugs, this cocaine, from Mr. Veal?

A. No, I didn't.

Q. When you picked up these vials did you know what it was that was in them?

A. No. I suspected that it could have been drugs or dangerous substances, rat poison, anything because -

Q. Is this unusual to find drugs lying on the street in this area?

Q. Okay. And what did you do with these four vials when you picked them up?

A. I had them in my left hand.

Q. And had you had an opportunity to look at it at that point?

A. Not at that point.

Q. What were you going to do with it?

A. I was going to take a look at it and walk by the sewer and just throw it by the sewer, down there.

Q. What was the reason why you would do that?

[Emphasis added.]

Before beginning her cross-examination, the prosecutor requested permission of the court to question defendant about his prior knowledge of cocaine. The side-bar discussion went as follows:

PROSECUTOR: Judge, he's testified as to claiming that he doesn't know what the substance he picked up on the street was. He thought it might have been something he wasn't entirely sure.

THE COURT: He didn't know what it was.

PROSECUTOR: So

THE COURT: He wasn't sure what it was.

PROSECUTOR: He wasn't sure what it was. Based on that, Judge, I want to

THE COURT: So you want to be able to ask him about the conviction from 1990

DEFENSE COUNSEL: We already stipulated that

THE COURT: what do you know about the facts of the 1990 conviction? . . .

PROSECUTOR: I do know it was cocaine, Judge.

THE COURT: Right.

PROSECUTOR: I don't know

THE COURT: Do you know anything else about it?

PROSECUTOR: No, I do not.

THE COURT: Well, then

PROSECUTOR: Well, Judge, I do know that I have his prior task evaluation and that he has admitted to using cocaine with a habit of using it at least every three days and for a period of several years. And based on that, Judge

THE COURT: I think you're entirely entitled to ask him about his knowledge, the lack of knowledge, or basis for any knowledge about whether what was in the vials was drugs or not drugs.

PROSECUTOR: Uh-huh.

THE COURT: Now that's the way I think the questions can be put to him. References to his prior conviction unless you're going to show me that the actual drugs involved in 1990 were similarly packaged and that he pled guilty to a charge of having them I think is inappropriate.

As to his task evaluation, I think you're entitled to ask him whether or not he has ever seen drugs that look like that before, whether he's familiar with what cocaine looks like. And I think you're entitled to ask him and if he says he's not you might be entitled to show him a document in which he admits that he's utilized cocaine.

PROSECUTOR: Okay.

THE COURT: I think that's appropriate. But references specifically to the conviction or anything like that I think is inappropriate unless you demonstrate to me there was a substance that looked similarly to the substance that we have today.

PROSECUTOR: Okay.

THE COURT: All right. So is that clear enough so through for the time being?

DEFENSE COUNSEL: Well, he said he suspected it was cocaine.

THE COURT: All right. Well, what does that mean?

DEFENSE COUNSEL: He looked at it closely

THE COURT: Well, he he didn't say he knew that they were it was cocaine.

DEFENSE COUNSEL: He said he suspected it.

. . . .

THE COURT: He said a lot of things. He said it could be rat poison.

DEFENSE COUNSEL: Well, you don't know

THE COURT: He said he wasn't sure what it was.

DEFENSE COUNSEL: I think she's entitled to ask him whether or not when he picked these up he knew they were cocaine. The jury the jury is not foreclosed from finding believing portions of the story and not believing other parts of the story.

For example, if they believe he picked up the cocaine, he intended to keep it, and it was just gratuitous that he got stopped, he'd be guilty of possession.

So I mean I think she should be able to demonstrate whether it's a knowing possession in the sense that he knew what it was. That's all.

After cross-examining defendant about his probationary sentence on a conviction for resisting arrest in 2000, the prosecutor then posed these questions to defendant:

Q Are you familiar with how cocaine is packaged?

A They have various packages, you know, what you see on television and things, how people do.

Q Do you have personal knowledge of how cocaine is packaged?

A No, I don't.

Q You've never seen cocaine before?

A Yes. I've seen cocaine before, yes.

Q And when you saw the cocaine how was it packaged?

A Sometimes it comes in blocks or vials or plastic bags.

Q You've personally seen it in blocks of cocaine?

A No.

Q Okay. Have you personally seen vials of cocaine.

A No.

Q Okay. Have you personally seen vials of cocaine prior to this date?

A Prior to this date? Yes, I have.

Q About how often?

A Full vials or empty vials?

Q Full vials.

A Not to my recollection

Q So prior to July 26th, 2000, it's your testimony here that you never saw full vials of cocaine?

A Just like I said, I haven't seen them before.

Q Prior to July 26th you're telling us so which is it, you're telling us that you have

A Prior, before, or

Q Before July 26th, 2000, have you ever seen full vials of cocaine?

A Yes.

Counsel for the co-defendant requested a side bar to voice an objection, in which defendant's counsel joined.

PROSECUTOR: Well, Judge, he's equivocating as to whether he did or he did not know and whether or not he's seen it on T.V. or not. And I was asking him if he had personal knowledge and I was trying to narrow it down as to what his scope of his personal knowledge is.

DEFENSE COUNSEL #2: But you asked him if he held it in his hand. That's possession. That's a crime.

THE COURT: here's what I think. There's a very there's a very fine line as far as I'm concerned as to any time a witness gets on the witness stand and subjects [himself] to cross-examination [he doesn't] have any more Fifth Amendment privileges.

So it's not a question of the fact that he's being asked to either say he did or did not commit a crime the question is I think what [defense counsel #2] has pointed to which is whether or not the admission of other crime or the testimony that could lead the jury to believe that he committed another crime even though he was never convicted of because the conviction is not in the picture here, whether that's prejudicial or not to the point that the probative value of the testimony is outweighed by the prejudicial effect.

All right. Now I believe that you're getting very close, [prosecutor], to getting to the point where any probative value of this [is] in fact outweighed by the inherent prejudicial effect.

I'll allow him to answer a question as to whether or not he ever held a vial of cocaine in his hand before the day in question. All right.

The judge continued to explain his ruling:

THE COURT: Wait a second. Listen to me. With all due respect, [Defense Counsel], I have to say you can't have your cake and eat it too. You can't put somebody on the witness stand who says I suspected and then when there's absolute proof that he that in the past he may have in fact possessed the very same substance and it's only because I've made a ruling that his conviction conviction that now she can't ask him whether or not the basis of his either suspecting or what his actual knowledge is.

The judge then denied a motion by the co-defendant for a mistrial, rejecting both defense counsels' contentions that defendant admitted he suspected the vials may have contained drugs, making the objectionable question immaterial. The prosecutor was permitted to ask defendant:

Q You've seen the vial that you say you picked up on July 26th, right?

A Yes.

Q Okay. That vial has cocaine in it, yes?

A Yes.

Q So you know what a vial looks like?

A Yes.

Q And you know what a vial looks like with cocaine in it?

A Yes.

Q What I'm asking you is prior to July 26th in the year 2000 have you ever held a vial with cocaine in your hand?

A Yes, I did.

Whether defendant recognized the contents of the vial as cocaine was not a material issue in this trial, because he admitted to suspecting that it might be cocaine. The material issue in dispute for the jury's resolution was whether to believe the police officers' or the defendant's version of how he came to be holding the four vials. The officers testified that they saw the elements of the alleged transaction - that defendant handed currency to the co-defendant, that the co-defendant placed something next to a tree, that defendant promptly picked up that which the co-defendant had placed there, and that the officers apprehended defendant with the same objects in his hand. Defendant testified that he happened to see four vials on the ground, picked them up without knowing for certain what was in them, suspected it could be drugs, and intended (just before he was apprehended) to discard the vials in a nearby sewer to prevent school children from finding them.

It seems plain that the only purpose for which the prosecutor pursued this line of questioning was to give the jury otherwise inadmissible information about defendant's prior drug involvement, precisely for the prohibited purpose of convincing the jury that because defendant had previously been involved with illegal drugs, he must have again been so involved in this instance that is, that he had a disposition to commit the crime charged.

The judge's curative instruction in response to defense counsel's request for a mistrial, and the judge's final instructions to the jury did not overcome the prejudice inherent in the question. Those instructions made matters worse, not better, by repeatedly telling the jurors they could not use the evidence for some unspecified, improper purpose, but that its use was limited to its effect on defendant's credibility. While that instruction is ordinarily appropriate, in this context it served to accentuate the improper purpose. The only issue before the jury was defendant's credibility.

This was the judge's instruction immediately after defendant admitted that he had previously held a vial of cocaine in his hand:

The State contends that the questions were relevant to defendant's credibility on the witness stand with respect to whether he knew what the substance was. But defendant admitted that he thought at the time that it "might" be cocaine. Thus defendant's awareness of what he was holding in the four vials was not a truly disputed issue that justified the prosecutor in bringing in an otherwise excluded prior bad act or conviction. See N.J.R.E. 403(b); State v. Cofield, 127 N.J. 328 (1992). Even assuming some relevance, the required balancing analysis under N.J.R.E. 403 should have led the trial judge to conclude that the potential prejudice of this entire line of questioning far outweighed its minimal relevance to any permissible issue. See Cofield, supra, 127 N.J. at 336.

The judge's final instructions to the jury on the subject, quoted at length by the majority, also made matters worse. The instructions focused the jurors' attention on precisely the fact they should not have known at all that defendant had previously held in his hand the same illegal drug. The judge instructed the jury to first decide whether defendant "did in fact have a vial of cocaine in his hand on some prior occasion." The judge continued to instruct the jury:

[O]ur rules of evidence do permit evidence of some prior conduct on the part of a witness when the evidence is used for specific narrow purposes. Now in this case I allowed that question and the answer by Mr. Lykes to be asked. That is whether or not he had ever held a vial of cocaine in his hand before July 26th, 2000, and I allowed his answer to that question.

Defendant's credibility was in issue with respect to whether he happened to find these four vials on the ground or had just purchased them from the co-defendant. The issue was not whether he knew the vials contained cocaine; he admitted he suspected that to be the case.

The jury may have disbelieved defendant's story irrespective of the improperly admitted evidence that he had previously held a vial of cocaine in his hand. But under the circumstances, I cannot conclude that the questioning was harmless, or that defendant had a fair trial as a result. I would reverse defendant's conviction and remand for a new trial.

State v. Sands, 76 N.J. 127 (1978).

(continued)

A-1884-04T4

A-1884-04

September 8, 2006

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