STATE OF NEW JERSEY v. JUAN SANTIAGO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 5374-04T4 5374-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN SANTIAGO,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 8, 2007 - Decided July 13, 2007

Before Judges Skillman and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. 03-12-1543-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Middlesex County Indictment No. 03-12-1543 charged defendant, Juan Santiago, with seven counts. Count one charged third-degree distribution of a controlled dangerous substance (CDS) (marijuana) on August 5, 2003, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12). Count two charged third-degree distribution of marijuana within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7, on August 5, 2003. Count three charged second-degree distribution of marijuana within 500 feet of a public housing facility, in violation of N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7.1, on August 5, 2003. Count four charged third-degree distribution of CDS (cocaine), on August 22, 2003, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). Count five charged third-degree distribution of cocaine within 1,000 feet of school property, in violation of N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7, on August 22, 2003. Count six charged second-degree distribution of cocaine within 500 feet of a public housing facility in violation of N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7.1, on August 22, 2003. Count seven charged third-degree conspiracy with co-defendant, Efrain Taylor, on August 22, 2003, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:5-2. Taylor was also charged with the offenses in counts four through seven of the indictment. The conspiracy charge was dismissed on the State's motion on September 22, 2004.

Defendant was tried before a jury on September 14-15 and 21-23, 2004 and was found guilty of all six counts. Defendant was sentenced on December 6 and 8, 2004. Counts one and two were merged with count three, and counts four and five were merged with count six for sentencing purposes. On count six, a second-degree crime, defendant was sentenced to a six-year term of imprisonment with a three-year period of parole ineligibility. Count three was amended from a second-degree to a third-degree offense because of the amount of marijuana being less than one ounce. N.J.S.A. 2C:35-7.1. On that count, defendant received a concurrent four-year term of imprisonment with a one-year and four months period of parole ineligibility. Defendant appeals his conviction and sentence. We reverse and remand for a new trial.

At 6:00 p.m. on August 5, 2003, Perth Amboy Patrolman Marcos Valera was working undercover, attempting to purchase narcotics, near 673 Cortlandt Street, an apartment building that is within 100 feet of public housing and within 1,000 feet of a middle school. While Valera was in the area, he noticed defendant in the doorway of 673 Cortlandt Street and started a conversation with him. He had not known defendant previously.

Valera asked whether Jose was nearby, and defendant asked who Jose was. Defendant then asked Valera what he needed, and Valera said that he was "looking for a sack." Defendant said, "I got you," and then entered the multi-family building at 673 Cortlandt Street and an apartment on the first floor.

After a short time, defendant exited the apartment and signaled Valera to enter the building. Defendant opened the outside door, Valera entered the building, and defendant displayed several knotted, plastic baggies containing marijuana in a gold, tin can. Defendant said, "take the one you want." Valero bought one of the bags for $10. A short time later, Valero drove past the same building and saw defendant speaking with two detectives.

Valera returned to 673 Cortlandt Street at 7:30 p.m. on August 22, 2003, where Valera said he again met defendant. Defendant asked the officer if he was looking for something. Valera replied that he wanted to buy "cooked up," which is a street term for crack cocaine. Defendant nodded to Taylor, who was standing ten feet away, and advised Valera that Taylor had it. Taylor told Valera to accompany him as they walked. Taylor asked Valera how much he wanted, and Valera answered that he wanted "one." Taylor then spit a plastic bag of cocaine from his mouth. The price this time was $20, which Valera paid. The officer then left. The officer did not see defendant again until May 17, 2004, when he testified at a pre-trial hearing.

At that hearing, Valera testified that he had identified defendant after the first sale by viewing a photo array. However, at trial, Valera acknowledged that there had been no photo identification after the August 5 buy, because to his knowledge defendant had no prior arrests from which to obtain an arrest photo. The officer explained that he had assumed there had been a photo identification because that was the "normal" procedure in his police department. Valera's actual identification was made as he drove by the scene at twenty miles per hour looking through a tinted window. The officer said he had seconds to make his observation.

When Valera left the scene of the August 5 sale, he gave a description of the seller to his fellow officers. He described, the seller as an Hispanic male, six feet tall, 250 pounds, wearing a short sleeved white T-shirt. Valera's report did not mention whether the seller had tattoos nor did he offer such testimony at the pre-trial hearing. At trial, the officer stated there were no tattoos that he observed. The officer agreed that he would have been looking for unique identifiers, such as tattoos, but indicated he concentrated more on the seller's face.

As defendant sat in court wearing a T-shirt, a portion of a tattoo on his left arm was showing. He was permitted to display the tattoos on his right and left arms to the jury. On redirect, the officer testified that the T-shirt defendant was wearing on the day of the sale had elbow-length sleeves, like oversized T-shirts. On re-cross, he conceded that the T-shirt description was not in his report.

Valera also testified that the seller was wearing a Texas Texans baseball cap, which he was still wearing during the drive-by identification. Later, he stated that the seller was not wearing the same hat during the drive-by.

As to the August 22, 2003 buy, Valera testified that the transaction lasted between four and five minutes in total. The sale took place at 7:35 p.m., when there was "a little bit of daylight." The officer stated when he spoke to the seller he recognized him as the same person from the first buy. The officer said he was not looking at the defendant as he conducted his transaction with co-defendant and that the majority of the time he was focused on co-defendant.

Detective William Tiedgen was working as an undercover backup on both days. He testified that on August 5, 2003, he was working in an unmarked vehicle with Detective Estrada. At some point, they received a description of the drug seller from Sergeant Conway. The description was an Hispanic male, six feet tall, 250 pounds, with a shortcut beard, wearing glasses, blue jean shorts, a blue baseball cap with a Texas Texans logo and an oversized white short-sleeved T-shirt. Conway informed Tiedgen that the seller was in the area of the landing at 673 Cortlandt Street. The officers waited two to three minutes, to make sure Valera was outside the area, and then went to 673 Cortlandt Street. There they saw a person who fit the description. The man told them that his name was Juan Santiago and at their request showed them a New Jersey driver's license with his photo. The date of birth on the driver's license was the same as the date of birth told to the officers by defendant. Tiedgen identified defendant, in court, as the person to whom he spoke.

On August 22, 2003, at 7:35 p.m., Tiedgen was again working as a backup with Detective Estrada in the area of 673 Cortlandt Street. They received a transmission that two people were involved in narcotics activity at the same place. They went to the area of 673 Cortlandt Street, where they saw two men standing on the stairs. Tiedgen identified one of the men as defendant because of the encounter with him two weeks prior. After questioning by the police, the other man identified himself as Taylor. Taylor's identity was corroborated by his photo driver's license.

Detective Carmelo Jimenez testified he was present August 22, 2003 at around 7:30 p.m., in a rental car, doing surveillance as an undercover officer. He was looking out the rear window of the vehicle, which had tinted windows, as Valera walked to 673 Cortlandt Street and engaged in a brief conversation with defendant. Jimenez knew defendant from the community. Jimenez stated Valera talked to defendant, who nodded in the direction of Taylor. The detective saw Valera and Taylor walk a short distance and then saw Taylor spit a small object out of his mouth and give it to Valera, after which Valera and Taylor walked in separate directions.

Sergeant Conway was in charge of the narcotics squad and was present on both days. He took Valera to the area of 673 Cortlandt Street on August 5, 2003, in an unmarked vehicle. He stated he saw Valera go to the front of the building at 673 Cortlandt Street where Valera, in the doorway, engaged in a conversation with a person, who he identified in the courtroom as defendant. Conway saw defendant go into the building. Four or five seconds later, Valera went into the building. Seconds later, Valera exited the door and walked away. Fifteen seconds later, Valera called Conway on a Nextel phone. Valera gave a description of the man as an Hispanic male, six feet tall, 250 pounds, with glasses, a short beard, wearing a blue cap with the Texas Texans logo, and a white short-sleeved T-shirt.

Conway stated he then advised Tiedgen and Estrada to go to 673 Cortlandt Street and approach defendant. He gave the detectives the description given to him by Valera. Seconds later, the detectives pulled up and approached defendant who was outside. Conway then left the area to pick up Valera. When they returned to drive by the scene, Valera identified defendant as "the person he bought the marijuana from."

On August 22, 2003, Conway was in charge of another undercover narcotics investigation. Valera got out of the car Conway was driving and walked in the direction of 673 Cortlandt. Conway did not identify defendant as a person who was present on that day, because Detective Jimenez was the "eyeball" that day not him.

Detective Carl Graham was the officer who eventually arrested defendant for both sales, pursuant to an arrest warrant. Defendant gave Graham his address as 673 Cortlandt
Street and his birth date as June 17, 1980. He said his nickname was Pelo. Graham described defendant in his report as obese, 290 pounds, wavy or curly hair and unshaven. Detective Graham noted two tattoos on defendant's arms. On his right triceps were the words, "Gone, Never Forgotten." On his left triceps were the words, "Fear No One."

On the first day of trial, defense counsel told the court that defendant's defense would be "third party identification," involving defendant's brother Edguardo Santiago, whose photograph counsel showed to the trial prosecutor "last week." Defense counsel stated that he learned "literally yesterday" about a case involving Edguardo "before this very court" as the result of an arrest in Perth Amboy. As of that moment, counsel did not have the arrest reports of Edguardo, although he represented the prosecutor was procuring them for him.

Defense counsel next said that he had given some photographs of Edguardo to the prosecutor, that one of the photographs was "developed on or about August 24 [2004]," and that photograph depicted Edguardo in a white T-shirt. Defense counsel believed that this photograph was "critical" because Valera described the seller as wearing a white T-shirt on the first purchase on August 5, 2003.

Defense counsel asked the court to direct the prosecutor to produce police reports of cases involving Edguardo, as well as Edguardo's criminal history. The next day, September 15, 2004, defense counsel related that he had received from the prosecutor Edguardo's criminal history, as well as an investigation report. This report concerned an investigation that involved Detective Tiedgen, who also investigated this case. Tiedgen had arrested Edguardo. On that occasion, Edguardo identified himself as defendant. The prosecutor confirmed that he had sent information to defense counsel's law firm concerning episodes involving Edguardo on March 1 and April 7, 2003. Defense counsel then asked whether the prosecutor could supply reports relating to a May 3, 2002 offense.

Because defense counsel was receiving extensive information at the last minute, the court adjourned most of the testimony one week, requiring only opening statements and testimony from the State's first witness. In defense counsel's opening, he told the jury that defendant's defense was misidentification. Defense counsel stated: "The real issue . . . is was it Juan Santiago who was the drug dealer? On those two occasions. That's it. And you'll also hear . . . that that individual might have been another resident of the same apartment where that first deal went down . . . and you'll also hear a lot of interesting things about that individual's background [a]nd criminal record."

When trial resumed on September 21, 2004, defense counsel alerted the court that the prosecutor intended to file a motion to bar any mention of Edguardo's criminal history. The prosecutor explained that he had been asked to facilitate the production of all of the police officers who had arrested Edguardo in the past, but Edguardo himself had not been named as a witness. The prosecutor contended that if Edguardo did not testify, then Edguardo's previous convictions could not be placed before the jury. Defense counsel claimed that he could elicit the information through cross-examination of prosecution witnesses. Counsel stated that there were four previous arrests of Edguardo involving four incidents.

The court said that its first inclination was to exclude any mention of any of Edguardo's previous arrests although counsel could certainly elicit testimony that Edguardo after one arrest identified himself as defendant. Counsel proffered that each of Edguardo's arrests had generated an arrest report, and that in each arrest report he was described as a six foot tall, 250 pound person, the same description as defendant.

Defense counsel renewed his argument that all of Edguardo's arrests should be admitted, because they showed "a pattern of drug use and drug possession" around 673 Cortlandt Street. He pointed out that in one of the arrests, Edguardo sold marijuana on the front steps of the same address defendant was charged with selling drugs in this indictment, and then fled into the same apartment that defendant is alleged to have entered to obtain marijuana on August 5, 2003, and then identified himself as defendant.

The trial court ruled that defendant could present this evidence to the jury, but could not introduce other episodes to portray Edguardo as a drug dealer. The judge said, "you're trying to do [] what [N.J.R.E. 404] says you cannot do." The court ruled that unless Edguardo testified or unless the State in some way opened the door, Edguardo's prior arrests or convictions would not be admitted. Defense counsel contended the issue was being raised to help establish defendant's defense of mistaken identity, based on the conduct of a third party.

Defense counsel had a series of police reports and a warrant marked as defense exhibits. Defense counsel asserted that according to a March 18, 2004 police report, Edguardo admitted selling cocaine from his home at 673 Cortlandt Street, Apartment 1. The court directed defense counsel that he could ask the officers whether they knew the existence of any other drug dealers at the address. If the officers answered, "no," then defense counsel could use the report to impeach, but if the officers answered, "yes," then "you're stopped."

Defense counsel next noted that the March 18, 2003 police report reflected Edguardo had "an FTA [failure to appear for a court appearance]." Defense counsel argued that Edguardo's failure to appear at a court appearance was motivated by Edguardo's unwillingness to be arrested in connection with a drug sale. The court ruled that evidence was inadmissible as a prior bad act.

Next, defense counsel argued that the same report described the cocaine as being packaged in the same way as the cocaine was packaged on August 22, 2003, when Valera bought it. When defense counsel stated that the issue is "whether or not [Edguardo] was acting in accordance with previous drug deals," the court barred the use of this evidence because "I don't want you to use prior, bad acts . . . to show[] conformity." For the same reason, the court excluded Edguardo's confession of dealing crack cocaine out of the 673 Cortlandt Street location. The court also denied defense counsel the right to use the arrest warrant of May 19, 2004, issued when Edguardo failed to appear in court to answer drug charges, in his cross-examination of the officers.

Next, defense counsel raised the April 17, 2003 investigation report, which related to Edguardo's use of defendant's name to avoid his own apprehension. Defense counsel argued that evidence of this episode was admissible to show that Edguardo was trying to conceal a drug offense. The court ruled that "I'm not going to permit you to say that [Edguardo] was convicted of drug dealing, therefore, he was the drug dealer in this case." The court then stated that defense counsel could ask the officers about Edguardo's use of defendant's name in a similar situation and could use the investigative report to refresh the officer's recollection. However, the court precluded defense counsel from attempting to show what motivated Edguardo to use defendant's name unless Edguardo testified. The court ruled, "You may not use prior acts of a third-party who is not going to testify to convince the jury that it was that person."

Pursuing his attempts to produce evidence about Edguardo's flight from police officers, defense counsel emphasized that Edguardo fled to the same apartment from which defendant procured the drugs on August 5, 2003. The court, however, ruled that there was no allegation of flight in the case, so the evidence of Edguardo's flight was not relevant.

Finally, the court rejected defendant's efforts to place before the jury evidence that Edguardo fled because he was on parole. The judge stated,

I'm talking about prior bad acts of using drugs, of running away from police officers, of being convicted of drug dealing. Those are prior bad acts that you are trying to use to show that those are the acts that he acted in conformity with on August 5th or on August 22nd. . . . I'm not going to permit it based on my understanding of the evidence rules.

The defense was that it was defendant's brother Edguardo Santiago, who was the actual perpetrator. In furtherance of that defense, defense counsel was able to elicit some testimony concerning Edguardo from some of the police witnesses. Detective Tiedgen stated that on April 17, 2003, he was with Sergeant Conway when they arrested an Hispanic male at 673 Cortlandt Street. He described the man as 5'11" tall, 250 pounds and wearing a goatee. The man said he was Juan Santiago and gave his address as 673 Cortlandt Street, Apartment 1. He gave his date of birth as March 17. Defendant's date of birth is June 17.

When the suspect could not say how old he was, the officers went to Apartment 1 and spoke with his mother, who identified the suspect as her son, Edguardo Santiago. Edguardo Santiago is defendant's brother. Conway was permitted to tell the jury that he arrested Edguardo for hindering apprehension and two active warrants. On redirect, Tiedgen identified defendant and defendant's brother from photographs presented to him and stated he remembered Edguardo at the time of the August 5 and August 22, 2003 drug transactions involving defendant. Those arrests were only four months after the April 17 arrest of Edguardo.

Before conducting re-cross of Tiedgen, defense counsel asked whether the court's prior ruling precluded him from "bring[ing] in on cross any evidence concerning illegal activity conducted by Edguardo Santiago out of that residence?" The court clarified:

What I said is you could ask whether there was illegal activity, whether or not he had seen other drug dealers at that residence, whether he was aware of other situations, but you couldn't bring it in as to Edguardo Santiago.

. . . .

[Y]ou cannot say that Edguardo Santiago was conducting illegal activity.

Sergeant Conway described defendant as six feet tall and 250 pounds and corroborated that his April 17, 2003 report also described Edguardo as 250 pounds. Sergeant Conway confirmed Detective Tiedgen's testimony concerning Edguardo's attempt to pass himself off as Juan Santiago to the officers.

Detective Jimenez testified to an arrest on March 18, 2004. He said that a confidential informant who had been reliable in the past gave him information that a resident at 673 Cortlandt Street was dealing drugs. He arrested the person; it was Edguardo.

Defendant presents the following arguments for our consideration:

POINT I.

DEFENDANT SHOULD HAVE BEEN PERMITTED TO ELICIT ALL OF THE EVIDENCE THAT TENDED TO SHOW EDGUARDO SANTIAGO TO BE THE PERPETRATOR.

POINT II.

THE TRIAL COURT'S FAILURE TO EXCUSE JURORS FOR CAUSE REQUIRES REVERSAL. (Partially Raised Below).

POINT III.

THE MATTER SHOULD BE REMANDED FOR A HEARING PURSUANT TO LEGARES WHERE THE PROSECUTOR WILL BE OBLIGED TO STATE HIS REASONS FOR SEEKING AN EXTENDED TERM AND DEFENDANT WILL HAVE AN OPPORTUNITY TO ARGUE THAT THE APPLICATION IS ARBITRARY AND CAPRICIOUS. (Not Raised Below).

POINT IV.

THE SENTENCE WAS EXCESSIVE.

Defendant contends he should have been permitted to elicit all of the evidence that tended to show Eduardo Santiago to be the perpetrator of the crimes charged against him because his defense was that his brother Edguardo was the actual seller of the drugs in both instances.

The court permitted defense counsel to introduce evidence that Edguardo had used defendant's name on one occasion when he had been arrested by the police. The court permitted defense counsel to elicit testimony of descriptions noted by the police, where Edguardo was described as looking like defendant or looking like the person described by Valera. Defense counsel, however, also sought to introduce evidence of four arrests of Edguardo, which showed a pattern of drug use and drug possession by Edguardo in and around 673 Cortlandt Street. Defense counsel also wanted to question the detectives concerning the occasion when Edguardo ran away from the police into Apartment 1, the very apartment from which defendant was accused of committing the sales of CDS in this case.

The judge determined the evidence was character trait evidence, which would be used to prove conduct and precluded by N.J.R.E. 404(a). The court, therefore, precluded testimony concerning arrests or convictions of Edguardo, except for the April 17, 2003 and March 18, 2004 incidents. The judge stated, "[t]he character trait is that of being a drug dealer or drug seller, and it seems you're trying to do is what the rule says you cannot do."

The evidence that the jury was allowed to hear on those subjects came from two police witnesses. Detective Tiedgen testified that on April 17, 2003, he was with Sergeant Conway when they arrested Edguardo, an Hispanic male, of defendant's physical description, at 673 Cortlandt Street, who gave defendant's name instead of his own name when confronted by the police.

Detective Jimenez also testified to an arrest on March 18, 2004, resulting from information from a confidential informant that a resident at 673 Cortlandt Street was dealing drugs. He arrested the person and he was Edguardo.

Defense counsel was not allowed to ask the detective what it was he observed that caused him to arrest Edguardo. The judge said he had already gone too far. No other information of any kind concerning Edguardo's other arrests was placed before the jury.

Defendant claims that the trial court erroneously restricted defendant's ability to undermine the officers' identifications of defendant and erroneously restricted defendant's ability to portray his brother Edguardo as the drug seller.

Our Supreme Court in State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873 4 L. Ed. 2d 873 (1960), held that subject to the discretion of the trial court, proof of the involvement of another person should be admissible if the proof has "a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case." Undoubtedly, proof that would impeach eyewitness identification would qualify. Ibid. Noting that a defendant need only engender doubt as to his guilt, "an accused is entitled to advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made." State v. Garfole, 76 N.J. 445, 453 (1978).

In State v. Jorgensen, 241 N.J. Super. 345, 350 (App. Div. 1990), certif. denied, 122 N.J. 386 (1990), we held that third-party guilt evidence should not have been excluded when it would have demonstrated that the identification of the defendant may have been faulty because of a person "who looked like him, knew his nickname and was using his car when the crime was committed." In Jorgensen, the detective who allegedly was sold cocaine as an undercover agent in a bar two and one-half months prior to the defendant's arrest, testified. Id. at 348. The trial judge prohibited the defendant's counsel from exploring the numerous undercover buys in which the detective had participated in order to enable him to establish that he may have confused defendant with some other cocaine seller. Ibid. The detective remembered that the defendant answered to the nickname "Pep" on the night that he bought cocaine from him and that he drove a blue car with a license number the detective had recorded. Id. at 349. Defendant argued that the judge erred in denying him the opportunity to present evidence that a person, who looked like him and knew his nickname, was using his car when the crime was committed. Ibid. The evidence proffered was from a former girlfriend, who testified at a hearing outside the jury's presence that at the time of the crime, the defendant lived in the home of an Al Martin who looked very much like the defendant; each had long hair, a beard and mustache, were about the same size and had tattoos on both arms. Ibid. She further stated that the defendant had purchased the blue automobile from Martin's sister. Ibid.

The trial judge excluded the evidence, defining the standard of admissibility to be that the evidence must have the capacity to raise the probability, as distinguished from possibility, that Martin sold the cocaine to the detective. Id. at 350. We disagreed and concluded that the jury need not have believed the girlfriend in order for her testimony to have raised a reasonable doubt as to the detective's identification of the defendant. Ibid. We held the excluded evidence was not only relevant but had "a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case." Id. at 352. We instructed that in the event of a retrial, "the trial judge should take a more indulgent approach to admitting evidence of the undercover detective's other purchases of drugs to the extent that those activities are relevant to whether he may have confused defendant with others." Ibid.

"'Relevant evidence' means 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. Relevance is "the hallmark of admissibility." State v. Gookins, 263 N.J. Super. 58, 63 (App. Div. 1993), rev'd on other grounds, 135 N.J. 42 (1994). The test of relevancy is its probative value with respect to the points in issue. Simon v. Graham Bakery, 17 N.J. 525, 530 (1955). The probative value of evidence is "the tendency of evidence to establish the proposition that it's offered to prove." State v. Wilson, 135 N.J. 4, 13 (1994).

What was disputed in this case was whether defendant, who had never previously been arrested, or his brother, who on at least one occasion had used defendant's name while dealing drugs outside the apartment shared by them, committed the crimes with which defendant was charged. Therefore, the evidence that Edguardo was dealing drugs in and around 673 Cortlandt Street while using defendant's name was clearly relevant.

In Garfole, supra, our Supreme Court suggested that a lower standard of relevancy than usual is applicable when a defendant in a criminal case offers exculpatory proofs at trial. The Court stated, "an accused is entitled to advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made." 76 N.J. at 452-53. Given that standard of relevance, we are convinced the evidence concerning Edguardo's alleged sale of drugs on other occasions at or near the same location was relevant to the issue of which of the two brothers was the perpetrator of the two sales.

We are likewise convinced the evidence defendant sought to introduce was not character trait evidence precluded by N.J.R.E. 404(a). N.J.R.E. 404(a) states in applicable part: "Evidence of a person's character or character trait, including a trait of care or skill or lack thereof, is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion[.]" "Character consists of the qualities which constitute the individual. . . . Character is what a person is. . . . In a legal sense, it means reputation." Ballentine's Law Dictionary 192 (3d ed. 1969).

In this case, the purpose of the evidence was not to show that Edguardo had a reputation as a drug dealer or was known to have sold drugs. Rather the evidence was proffered to show that Edguardo sold drugs at or near 673 Cortlandt Street on three separate occasions. It was the act of selling drugs on four separate instances at or near defendant's and Edguardo's residence that defendant sought to introduce, not the reputation of his brother. Because this evidence dealt with "other, crimes, wrongs, or acts" for which Edguardo was investigated by the police, N.J.R.E. 404(a) is clearly inapplicable. Rather, N.J.R.E. 404(b), titled "[o]ther crimes, wrongs, or acts" applies to Edguardo's prior drug transactions at or near 673 Cortlandt Street.

N.J.R.E. 404(b) states in applicable part:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such a person acted in conformity therewith. Such evidence may be admitted for other purposes, such as . . . identity[.]

Under N.J.R.E. 404(b) where other crimes evidence is offered to show a defendant's identity as a perpetrator courts take a strict approach to admissibility. See State v. Fortin, 162 N.J. 517, 530 (2000) (quoting State v. Reldan, 185 N.J. Super. 494, 502-03 (App. Div.), certif. denied, 91 N.J. 543 (1982)) (stating "[i]n order for evidence of a prior crime to be admissible on the issue of identity . . . the prior criminal activity with which defendant is identified must be so nearly identical in method as to earmark the crime as defendant's handwork.") (emphasis added). Additionally, when such evidence is being offered against a defendant, it must meet the four pronged test outlined in State v. Cofield, 127 N.J. 328, 338 (1992).

However, a defendant may use other crime or wrong evidence defensively if it is relevant, i.e., if in reason it tends along with other evidence to negate his guilt of the crime charged against him. Wherever a defendant offers other wrongs evidence defensively, a lower standard of degree of similarity of offense is applied. Garfole, supra, 76 N.J. at 452-53; State v. Parsons, 341 N.J. Super. 448, 458 (App. Div. 2001); State v. Williams, 214 N.J. Super. 12, 20-21 (App. Div. 1986). This is because when such evidence is offered by the State it "has the distinct capacity of prejudicing the accused. . . . But when the defendant is offering that kind of proof exculpatorily, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility, since ordinarily, and subject to rules of competency, an accused is entitled to advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made." Garfole, supra, 76 N.J. at 452-53.

In this case, the evidence was not sought to be used to show the identity of defendant. Rather the evidence was proffered by defendant to show the identity of a third-party, i.e., his brother Edguardo, who fit the height, weight, ethnicity, dress, and general appearance of defendant. As the evidence was relevant to defendant's defense of misidentification, this evidence clearly had "a tendency in reason to prove or disprove any fact[.]" N.J.R.E. 401.

We are convinced, therefore, that the failure of the trial court to allow the use of the police investigative reports in the cross-examination of the detectives who testified was error which clearly had the capacity to change the result. See State v. James, 144 N.J. 538, 562 (1996) ("[e]vidence that someone other than defendant was identified as the perpetrator is highly relevant to the issue of defendant's guilt, and thus the exclusion of such exculpatory evidence infringes on [his] fundamental right[.]").

The evidence the judge permitted showed that Edguardo was described similarly to defendant by the police and that he had used defendant's name at least in one encounter with the police. However, it was the fact that Edguardo used and distributed drugs in and around the building in which both brothers resided that had the capacity to cast reasonable doubt as to whether defendant committed the crimes with which he was charged. The fact that Edguardo engaged in the same type of crimes in the same location as that for which defendant stood accused is what makes prior instances of the sale of CDS by Edguardo significant to defendant's defense.

The evidence contained in the police investigative reports was especially important here since the State's case consisted of extensive testimony, as recited above, by the officers as to their identification and observations of defendant as the suspected drug dealer. In our view, defendant should have been given the opportunity to refute the State's case through the use on cross-examination of the police investigative reports of Edguardo's drug dealing activities from the Cortlandt Street address. This evidence was clearly relevant to defendant's defense of misidentification. Given the less stringent requirement of N.J.R.E. 404(b) when sought to be used by a defendant exculpatorily, we are convinced defendant was entitled to have all of the evidence relating to Edguardo's drug related offenses at or near 673 Cortlandt Street presented to the jury through cross-examination for the jury to decide the weight which should be afforded to it.

The prosecutor asserts that any error was harmless because defense counsel in summation strenuously argued that Edguardo "has arrest warrants out on him. . . . We know what [Edguardo] did out of that location . . . we know what he's capable of doing," in an attempt to convince the jury that the State failed to prove defendant guilty beyond a reasonable doubt. Nevertheless, we are convinced that the court's mistakenly restrictive rulings limited defendant's ability to present additional probative evidence, which would have a rational tendency to lessen the credibility of "an essential feature of the State's case," and which if presented may have tended to create a reasonable doubt that defendant committed the offenses charged. Sturdivant, supra, 31 N.J. at 179.

 
Accordingly, we reverse defendant's conviction and remand for a new trial. The remaining points argued by defendant are rendered moot by our remand.

The parties stipulated that the substance purchased was marijuana.

The parties stipulated that the substance purchased was cocaine.

(continued)

(continued)

29

A-5374-04T4

July 13, 2007