STATE OF NEW JERSEY v. ALEX MICHEL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5239-04T45239-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEX MICHEL,

Defendant-Appellant.

________________________________

 

Submitted September 20, 2006 - Decided October 27, 2006

Before Judges Winkelstein and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

Indictment No. 04-02-0358-A.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Philip Lago,

Designated Counsel, of counsel and

on the brief).

Anne Milgram, Acting Attorney General,

attorney for respondent (Hillary Horton,

Deputy Attorney General, of counsel and

on the brief).

Appellant filed a supplemental pro se

brief.

PER CURIAM

Defendant Alex Michel was tried before a jury and convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). The trial judge, sitting as the trier of fact, also found defendant guilty of the disorderly persons offenses of possession of marijuana and possession of drug paraphernalia. Defendant was sentenced to a five-year term, with two and one-half years of parole ineligibility on the third-degree offense; and to two concurrent terms of 180 days in the county jail on the two disorderly persons offenses. The court also imposed the mandatory fines and penalties.

Defendant now appeals, raising the following arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM THE JACKET.

POINT II

THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPRESS THE CONTENTS OF THE LETTER SEIZED FROM THE JACKET.

POINT III

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL.

POINT IV

DEFENDANT'S [SIC] WAS DENIED A FAIR TRIAL SINCE THE COURT BARRED EVIDENCE THAT SABAT USED AN ALIAS FOLLOWING HIS ARREST.

POINT V

DEFENDANT WAS DENIED A FAIR TRIAL DUE TO PROSECUTORIAL MISCONDUCT DURING CLOSING.

(A) THE STATE IMPROPERLY ENCOURAGED THE JURY TO SPECULATE IN ITS CLOSING.

(B) THE STATE IMPROPERLY LOWERED ITS BURDEN OF PROOF IN ITS CLOSING.

POINT VI

DEFENDANT WAS DENIED A FAIR TRIAL DUE TO PROSECUTORIAL MISCONDUCT DURING SUPPLEMENTAL CLOSING. (Not presented below)

POINT VII

THE STATE FAILED TO DISCLOSE EXCULPATORY EVIDENCE.

POINT VIII

THE SENDTENCE IMPOSED BY THE COURT IS EXCESSIVE.

In his pro se supplemental brief, defendant raises the following arguments:

POINT I

THE TRIAL COURT JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND THE DECISION SHOULD BE REVERSED.

POINT II

THE DISORDERLY PERSONS OFFENSE CHARGES OF POSSESSION OF MARIJUANA AND POSSESSION OF DRUG PARAPHERNALIA TO WIT A CIGAR SHOULD NOT HAVE BEEN ADJUDICATED BY THE SAME TRIAL COURT JUDGE.

POINT III

THE TRIAL COURT JUDGE ERRED WHEN HE FAILED TO PRECLUDE THE TESTIMONY OF POLICE OFFICER ABOUT SUPPOSED STATEMENT MADE BY CO ARRESTEE WHO WAS COOPERATING WITH THE PROSECUTION AND WHO EXERCISED HIS FIFTH AMENDMENT RIGHT NOT TO TESTIFY BECAUSE IT WOULD INCRIMINATE HIM EVEN IF THE COURT GAVE LIMITING INSTRUCTIONS.

POINT IV

THE TRIAL COURT JUDGE ERRED IN DENYING THE DEFENDANT THE MOTION TO DISMISS DUE TO DELAY HE HAD SUBMITTED.

POINT V

THE TRIAL JUDGE ERRED IN DENYING DEFENDANT THE RIGHT TO REPRESENT HIMSELF AND TO PARTICIPATE IN HIS OWN DEFENSE. THE TRIAL JUDGE PREVENTED DEFENSE COUNSEL FROM INTRODUCING ALL EVIDENCES THE DEFENDANT FURNISHED HIM. THE JUDGE'S PRO-STATE ATTITUDE UNDULY INFLUENCED THE DEFENSE COUNSEL AND RENDERED HIM INEFFICIENT DURING THE TRIAL.

After carefully reviewing the record, and in light of prevailing legal standards, we are satisfied that the trial court committed reversible error in permitting the State to present the hearsay testimony of two police officer witnesses. This error requires the reversal of defendant's conviction because this incompetent evidence related to the central issue in the case: whether defendant ever actually or constructively possessed the jacket containing cocaine. Thus, admission of this evidence deprived defendant of his Sixth Amendment right of confrontation, thereby irreparably impugning the fairness of the trial.

Because we conclude that defendant is entitled to a new trial based on this erroneous evidential ruling, we need not address the remaining arguments raised by defendant in this appeal. In the interest of clarity, however, we have reviewed these arguments and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We gather the following facts from the evidence presented at the trial.

At approximately 1:30 a.m. on January 9, 2004, Hamilton Township police officers Richard DeStefani and William McElrea responded to the Hamilton Greene Apartment Complex to investigate a report of three individuals sitting in a vehicle for an extended period of time. DeStefani found a Ford Escort with three males sitting inside. As he approached the vehicle on the passenger side, he noticed that the man sitting in the backseat had a tan-colored jacket covering him, as if it were a blanket. McElrea approached the driver's side of the vehicle and knocked on the window. From their respective vantage point, both officers testified they saw a plastic bag with what appeared to be smoking tobacco on the ground.

As the driver, Jean Sabbat, rolled the window down, the officers immediately detected an odor of marijuana coming from the vehicle. While reviewing Sabbat's motor vehicle credentials, DeStefani noticed that the man in the back seat no longer was covered by the jacket, and was now sitting only in a white t-shirt. According to DeStefani, when he asked the man in the back seat for identification, he "went into the inside pocket of the jacket, left side, and removed a white plastic casino ID card." DeStefani identified defendant as the man sitting in the back seat.

Based on the totality of these circumstances, the officers decided to arrest the three men, and placed them inside their police vehicle. McElrea then searched the interior of the Ford Escort, finding a partially smoked marijuana cigarette in the front passenger compartment. He also removed the tan jacket that defendant had on his lap during the initial phase of the motor vehicle stop. Inside the right front pocket of the jacket, McElrea found two plastic bags. One contained forty-five baggies of crack cocaine. The other had thirty-eight empty baggies.

DeStefani, who also searched the tan jacket, found a letter addressed to both defendant and Sabbat. Redacted before trial began, the portion that was read to the jury stated:

Both of you are a piece of work. You know there is new food in the house. Both of you go to McDonald's and don't bring one nothing, knowing that I hadn't eaten but both of you call me your friend. Alex, you do you and I will do me. Don't ask me for my car and more. That is it. Our friendship is one-side and it's got to stop. Joan.

P.S. I don't want to hear you need -- hear you need me Miss Money, or et cetera. Don't want to hurt it. You so-call you are my friend. You and Jean are more of a friend to my car, the me, the person who the car belongs to.

Defendant moved to suppress the evidence seized by the police before the commencement of the trial. The trial court denied the motion, concluding that, based on the odor of marijuana, the police had probable cause to search the car. In addition to the physical evidence, the State's case in chief consisted of the testimony of the two arresting officers.

Defendant testified in his own defense. According to defendant, on the night of the incident, he worked until approximately 8:30 p.m. Sabbat and Lewis picked him up from his work, and they then drove to Lewis's residence. Once there, they decided to sit in the car to smoke marijuana. He was cold when Lewis rolled down the window to air out the marijuana smell, and therefore placed the jacket over his body like a blanket. He removed the jacket when the police requested his identification. Defendant testified, however, that he did not get his identification from the jacket, but rather retrieved it from his wallet, which was in his left back pants pocket.

As to the letter that the police found in the jacket, defendant testified that Sabbat had placed the letter in the jacket after he read it. When defendant entered the car, he noticed that Sabbat's tan jacket was in the back seat. He did not know that there was cocaine in the jacket pocket. The jacket is a size 5XL (extra large). Defendant is approximately five feet eleven inches tall and two hundred pounds. Sabbat is approximately five feet seven inches tall and of slender build. When confronted with these seemingly incongruous physical characteristics, defendant contended that Sabbat wore his clothing very loose.

Markland Grant, an inmate at the same correctional institution that Sabbat had been in during the pendency of the trial, testified as a defense witness. Grant indicated that he first met Sabbat playing cards in prison on March 31, 2004. After two weeks, they became cellmates. According to Grant, Sabbat told him he was going to court the next morning and may be released because he had received an offer from the prosecution. Sabbat also told Grant that he had been arrested for being in a car with two other men smoking marijuana.

During this conversation with Grant, Sabbat allegedly admitted that the tan jacket and the drugs found therein were his. He had not come forward with this inculpatory information because he had arranged to testify in another case for the prosecution in exchange for pleading guilty on another charge. Admitting ownership of the drugs found in the jacket would have undermined his value as a State's witness.

Grant did not tell anyone about this conversation with Sabbat until later that year, when he became cellmates with Defendant. Upon learning of this potentially dispositive evidence, defendant immediately sent a letter to the prosecutor summarizing the substance of Grant's proffered trial testimony.

The date that the Grant/Sabbat conversation allegedly took place was hotly contested at trial. Grant testified that it occurred in the third week of April 2004. The letter defendant sent to the prosecutor indicated that the conversation took place on Friday, April 23. If true, this would have called into question Sabbat's alleged statement that he expected to go to court the next day. The prosecution also introduced testimony that Sabbat's guilty plea was accepted by the court on April 20, 2004. Thus, assuming that he had no other legal matters pending, he should have been released from jail that day.

In a further attempt to impeach defendant's version of events, the prosecution recalled Officers DeStefani and McElrea, who testified that, on the night of the arrest, Sabbat told both officers that the jacket containing the drugs belonged to defendant. The trial court overruled defendant's timely objection based on hearsay grounds. The trial judge gave the following explanation for his ruling:

Now, as to the prejudicial aspect of the statement, it is true that it accomplishes more than simply impeaching the credibility of Mr. Sabbat and goes to actual affirmative evidence of the defendant's guilt. The Court thereupon -- or therefore must undertake a [N.J.R.E.] 403 weighing of probative value versus prejudicial value.

The probative value to the state is extreme, is substantial. It is the single piece of evidence other than argument that it can offer to the jurors for questioning the veracity of Sabbat in making his declaration -- alleged declaration against penal interest.

It is the singularly most controverted fact in this case. To perhaps deny the use of this evidence really would hamper the State and really place them at the mercy of unrebutted, impeached proof.

* * * *

There is then the issue of the prejudicial value to the defendant. I will give curative and cautionary limiting instructions to the jury as to the use of it. I think that there are arguments that can be made by the defense such as may have already been suggested that, you know, arguably Mr. Sabbat is being self-serving at that time and perhaps has a change of heart later and so on, that I think can reasonably be used to explain the change in testimony and could, although the jury would be told not to consider as evidence, could also blunt the effect it might have of them considering against my instructions, considering the statement as evidence of Mr. Michel's guilt.

So I will permit the evidence. I will give the limiting instruction as indicated.

Against these facts, we will now address the legal issue requiring reversal of defendant's conviction.

In our view, the testimony of the two police officers describing what the absent Sabbat allegedly said to them concerning the ownership of the jacket should have been excluded as inadmissible hearsay.

It is well settled that the 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." Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct. However, 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. Moreover, the admission of such testimony violates the accused's Sixth Amendment right to be confronted by witnesses against him.

[State v. Bankston, 63 N.J. 263, 268-69 (1973) (internal citations omitted) (emphasis added).]

Characterizing this otherwise incompetent evidence as rebuttal testimony, intended only to impeach Grant's credibility by introducing, through hearsay, Sabbat's alleged prior inconsistent statement, does not cure the deprivation of defendant's constitutional right of confrontation. As the trial judge recognized, the evidence at issue here was not marginal to the State's case, or inconsequential to defendant's defense. The central issue driving the State's prosecution here concerned defendant's possessory interest in the jacket.

If the jacket and its illicit contents were in fact Sabbat's property, then defendant was merely an innocent occupant of the car. Sabbat's ownership claim, as testified to by Grant, was thus crucial to the defense, and, if accepted by the jury, fatal to the State. Under similar circumstances, we have held that admission of crucial hearsay testimony introduced by the State to rebut defendant's contention, amounted to reversible error. State v. Pasha, 280 N.J. Super. 265, 270-71 (App. Div.), certif. denied, 142 N.J. 453 (1995).

We recognize that the trial court attempted to address this problem by giving the jury a limiting instruction. Through such instructions, the court sought to prevent any potential prejudice by directing the jury to consider the officers' testimony for the limited purpose of assessing Grant's credibility. In our judgment, this measure did not adequately counteract the constitutional infirmity at issue.

From a constitutional perspective, the problem presented here concerns defendant's inability to cross-examine Sabbat on the central issue in the case: who actually owns the jacket. In order to follow the court's limiting instructions, the jury must accept the testimony of the two police officers as to what Sabbat told them, and accept as true that, according to Sabbat, defendant owned the jacket. In this context, defendant is unable to explore, through cross-examination, the basis for Sabbat's accusation that defendant owned the jacket. The hearsay statement is simply presented to the jury as an uncontestable part of the State's arsenal of proofs. Under these circumstances, defendant's conviction cannot stand.

Reversed and remanded for a new trial.

 

The same jury acquitted defendant of third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3).

Defendant was initially sentenced to an extended six-year term, with three years of parole ineligibility. Acting on defendant's motion for reconsideration, the court reduced the sentence accordingly.

(continued)

(continued)

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A-5239-04T4

October 27, 2006