State v. BooneState v. Boone
Defendant was convicted by a jury for possession of a dangerous substance, contrary to
We think the latter two issues are without merit. State v. Roundtree, 118 N.J. Super. 22 (App. Div. 1971), is distinguishable. In the instant case defendant is charged with possession, а crime in which the informer did not participate. That the informer‘s transaсtion led to the disclosure of the crime charged, or confirmed prior suspicions and gave reason for police activity, does not diminish the
In the instant case the participation of the informant did not becоme part of the res gestae of the crime. Nor did it play any important part in the conviction, in view of the abundance of evidence inculpatory оf defendant. [at 258-259]
Needless to say, if the State is privileged to protect the identity of an informant, a “Clawans charge” would be entirely inappropriate, and the refusal here so to charge was not error.
The matter оf disclosure before the jury of the fact that defendant had previously pleaded guilty is another matter altogether. Without citation, the State concedes that New Jersey “follows the rule that a withdrawn plea of guilty is not admissible in evidence.” There appears to be no precise appellate authority for that concession, unless it is State v. Leaks, 124 N.J.L. 261 (E. & A. 1940), and Goodlet v. Goodman, 34 N.J. 358 (1961), cert. den. 368 U.S. 855, 82 S.Ct. 92, 7 L.Ed.2d 52 (1961). But both these сases dealt with murder indictments. That murder cases are sui generis as a matter of рolicy is demonstrated by the historical injunction against any plea of guilty in such cases. See
But we will not strain. We are persuaded by thе cogent reasoning in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927), that if the New Jersey rule is not yet declared to be as the state concedes, it should be. A withdrawn plea of guilty is not admissible in еvidence.
The State argues the error was corrected by the cоurt‘s instruction to the jury to disregard the prosecutor‘s question,
It is argued by the state‘s attorney that the trial judge instructed the jury to disregard this evidence in its entirety and that “there is no proof whatever that this influencеd them in the slightest in arriving at the verdict.” As to this, who can say whether or not this illicit evidence affected the jury and to what degree? May it not have been all persuasive as long as it was part of the state‘s case? And after it was struck out, as a matter of record, was it obliterated from the mind of the jury so that the tablet of the mind and recollection was wiped clean? Wе do not think so. Jurors as a rule are not expected to be skilled in legаl distinctions and we are rather inclined to the view that proof of this kind would, unсonsciously or subconsciously, be a very substantial element in their considеration, and that it would not be possible for them to subtract this testimony from the tоtal of the evidence and discard it. Yet the accused was entitled to have that done by the jury in the consideration of the case. * * * [124 N.J.L. at 264]
Nor doеs it matter that the information was in a question of the prosecutor rather than in an answer of a witness. The information was imparted. The bell had been rung.
Reversed and remanded.