HIGHLANDS HOUSING AUTHORITY v. GEORGE EIKENS AND CORRINE SOMMER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0222-09T20222-09T2

HIGHLANDS HOUSING AUTHORITY,

Plaintiff-Appellant,

v.

GEORGE EIKENS AND CORRINE

SOMMER,

Defendants-Respondents.

__________________________________

 
Telephonically Argued December 15, 2009 - Decided

Before Judges Cuff and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Landlord Tenant Division, Monmouth County, Docket No. LT-3083-09.

Bridget K. Dorney argued the cause for appellant (Ansell Zaro Grimm & Aaron, P.C., attorneys; Rick Brodsky, of counsel; Ms. Dorney, on the brief).

Madeleine Coghlan argued the cause for respondent (Community Health Law Project, attorneys; Ms. Coghlan, on the brief).

PER CURIAM

By leave granted, we review the interlocutory order of the Law Division, Special Civil Part, granting an in limine motion to bar the proposed testimony of a Highlands Borough police officer with respect to a "controlled buy" of purportedly illegal drugs from defendants' unit in a public housing facility owned and operated by plaintiff Highlands Housing Authority (Authority). We reverse the order on appeal and remand to the Law Division for a trial consistent with this opinion.

I.

We discern the following facts from the record. Defendants George Eikens and Corinne Sommer reside in an apartment complex owned and operated by the Authority. One provision of their lease requires tenants to:

refrain from illegal or other activity which impairs the physical or social environment of the [housing] project. Further, the Tenant, any member of Tenant's household or guest or other person under the Tenant's control shall not engage in criminal activity, including drug related criminal activity, on or near public housing premises, while the Tenant is a Tenant in public housing, and such criminal activity shall be cause for termination of tenancy. The term "drug related criminal activity" means the illegal manufacture, sale, distribution, use or possession with intent to manufacture, sell, distribute, or use, of a controlled substance (as defined in Section 102 of the Controlled Substance Act ( 21 U.S.C. 802)) . . . .

On July 23, 2008, Eikens was arrested and charged with distributing oxycodone, contrary to N.J.S.A. 2C:35-5(a)(1). Sommer was arrested the following day and charged with distributing or possessing with intent to distribute a prescription legend drug, contrary to N.J.S.A. 2C:35-10.5(a)(3); "distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while in, on or within 500 feet of the real property comprising a public housing facility," contrary to N.J.S.A. 2C:35-7.1(a); and agreeing "to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime," contrary to N.J.S.A. 2C:5-2(a)(2).

Based upon the allegations concerning distribution of illegal drugs at their unit, the Authority sent Eikens and Sommer a "Notice to Quit/Demand for Possession" dated September 12, 2008, requiring them to vacate the premises by November 1, 2008. When they did not do so, the Authority sent a second notice dated May 15, 2009, requiring them to vacate the premises by May 21, 2009. The notices described the alleged violations and informed defendants that non-compliance would result in the filing of an action to evict them from the Authority's property.

When Eikens and Sommer did not comply with the second demand that they vacate their unit, the Authority filed a complaint for possession on May 28, 2009, seeking termination of defendants' tenancy.

The summary dispossess action was scheduled for trial in the Special Civil Part on June 19, 2009. Defendants made an oral application to preclude the Authority's proposed testimony about a "controlled buy" that took place in connection with the investigation that resulted in the arrest of Eikens and Sommer, arguing that it constituted impermissible hearsay.

The trial judge directed counsel to brief the issue and adjourned the trial. The judge heard oral argument on July 2, 2009, but did not take any testimony or conduct a preliminary hearing pursuant to N.J.R.E. 104(a). She based her decision on the following summarization of the challenged testimony: Police Sergeant Rogers "patted this confidential informant down before he went into this apartment. He had nothing on him. . . . When he came out, [Rogers] patted him down and found a plastic bag with pills."

The judge determined that Rogers' testimony about the interaction with the informant was inadmissible hearsay:

In this matter, the testifying police officer did not purchase the pills nor did he observe the controlled buy. Consequently, the inference of illegal activity is not supported by the officer's firsthand knowledge and testimony elicited based on evidence obtained from the informant is inadmissible hearsay.

In State v. Branch, [ 182 N.J. 338, 342 (2005),] the detective testified the defendant's photograph was included in a photo array based on information received by non-testifying children.

The court in Branch held the police officer may state the testimony is based on information received to explain the basis for their actions to rebut the presumption of arbitrary action. However, the testimony cannot create the implication by an unknown person that the defendant committed a crime without the ability for confrontation. [Id. at 349.]

Similarly in State v. Bankston, [ 63 N.J. 263, 266 (1973),] a police officer's testimony as to the basis for the actions taken in a narcotics case was based upon a description from an unidentified informant. The Court in Bankston determined the testimony led the jury to believe that the informant told police the defendant committed the crime without an opportunity to question and confront the informant. [Id. at 271.]

In the case at bar, even if the officer does not specifically repeat the statements made by the informant, the logical inference drawn from his testimony would be that the informant purchased the drugs from the defendant. And the Court is going to grant that particular evidentiary ruling with respect to the officer's testimony.

On July 31, 2009, the judge entered an order providing that the Authority "shall not be permitted to elicit testimony from any representative of the Highlands Police Department concerning the confidential informant who was utilized by the Highlands Police Department for alleged 'controlled buys' in order to obtain a search warrant of the subject premises."

The Authority sought leave to appeal the order, arguing that the proposed testimony was not hearsay and that an interlocutory appeal was necessary because the police officer was its only witness and it could not prove its case without his testimony. We granted leave to appeal.

II.

"'Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings.'" Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (quoting State v. Morton, 155 N.J. 383, 453 (1998)), certif. denied, 163 N.J. 79 (2000). "[I]n making relevance and admissibility determinations[,]" the trial judge's exercise of his or her "broad discretion" "will not [be] disturb[ed], absent a manifest denial of justice." Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif. denied sub nom., Lydon v. Silverman, 196 N.J. 466 (2008).

However, we accord no such deference to a ruling that is "inconsistent with applicable law." Pressler, Current N.J. Court Rules, comment 4.6 on R. 2:10-2 (2009). Our review of a trial judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). The issue here is whether the proposed testimony constitutes hearsay, which is a question of law.

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). It is our understanding that the proposed testimony would not have included any oral statements or other communications made by the informant to or in the presence of the testifying officer, but would be confined solely to the officer's personal observation that the informant went directly into defendants' unit with money and without drugs, and shortly thereafter came out of the unit with drugs and without money. In our view, that testimony is not, in itself, hearsay.

Certainly a reasonable finder of fact could conclude from that testimony that a drug purchase had taken place inside the unit, at least when applying a preponderance of the evidence standard. Indeed, such an inference could be drawn if the officer made the same observations with respect to money and drugs carried by a dog or a robot, rather than a human.

Defendants argued, and the trial judge found, that there could be an inference, drawn indirectly from the proposed testimony, that the police officer was only conducting the "controlled buy" because the informant had told him that someone was selling drugs in defendants' unit. We agree that such an inference would be reasonable, albeit indirect, and that it would implicate the hearsay rule.

In State v. Bankston, 63 N.J. 263, 271 (1973), the issue was whether a police officer's testimony about why he was investigating the defendant gave rise to an inference that an informant had told the police officer that Bankston would be in possession of drugs, even though there was no direct testimony about such disclosures. The Supreme Court determined that such an inference would be hearsay. Ibid. See also State v. Branch, 182 N.J. 338, 352 (2005) ("Even such seemingly neutral language, by inference, has the capacity to sweep in inadmissible hearsay. It implies that the police officer has information suggestive of the defendant's guilt from some unknown source.").

Bankston and Branch do not, however, require the exclusion of the specific testimony proposed in this case. In Bankston, supra, 63 N.J. at 272, there was no need for the testimony at issue, other than to rebut a possible inference of arbitrary action by the police. It was not offered as substantive evidence. Similarly, in Branch, supra, 182 N.J. at 352, the testimony at issue, which related to why Branch's photograph was included in an array, was unnecessary and, as the Court noted, "of no relevance." Here, the proposed testimony is substantive and seeks primarily to support the direct inference that a drug transaction took place based upon the police officer's personal observations, without disclosure of any statements by the informant.

The issue then is whether the clearly probative, non-hearsay evidence concerning the mechanics of the "controlled buy" should be excluded because there is the possibility, or even probability, that the finder of fact could rely on a different, indirect inference with respect to undisclosed hearsay statements by the informant about past drug transactions. The resolution of that issue requires a balancing that, had it been made in this case, would have implicated the judge's discretion. See N.J.R.E. 403(a) ("relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice").

Were a jury involved in this case, the trial judge would have had to consider whether to exclude the proposed evidence under N.J.R.E. 403(a) because the jury might have drawn the impermissible hearsay-based inference based upon likely conversations between the police and the informant, even though the Authority was only seeking to prove the non-hearsay-based inference arising from the mechanics of the "controlled buy" as witnessed by the testifying officer himself. If the testimony were permitted, the judge would have had to consider giving a limiting instruction pursuant to N.J.R.E. 105. However, in the context of a bench trial, no such concern is applicable because a judge is presumed to be capable of excluding any such improper inferences.

In summary, we hold that, under the circumstances of this case, the proposed testimony does not constitute inadmissible hearsay and is admissible for the specific purpose offered. Any inferences that might arise indirectly with respect to undisclosed hearsay-based conversations between the police and the informant would properly be excluded from the trial judge's consideration and decision making process.

Reversed and remanded for trial consistent with this opinion.

 

Given the summary nature of the proceeding, it is not clear why the judge did not first take the trial testimony and then rule on its admissibility and the Authority's ability to prove its case without that testimony. Because this is a civil case, considerations of double jeopardy would not have prevented a retrial in the event of reversal on appeal. In any event, a Rule 104(a) hearing would have been helpful for the purposes of this appeal because it would have clarified the nature of the proposed testimony.

A "statement" is "(1) an oral or written assertion or (2) nonverbal conduct of a person if the person intends it as an assertion." N.J.R.E. 801(a).

Whether the trial judge chooses to draw the inference, of course, remains to be seen. And, whether that inference if drawn is also sufficient to meet the Authority's burden of proof that the applicable terms of the lease were violated also remains to be seen.

(continued)

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A-0222-09T2

January 15, 2010