State v. WestState v. West
This is an appeal from a judgment of conviction for distribution of a controlled dangerous substance,
According to the testimony of Investigator Oakley, the State‘s witness, he met defendant through a confidential police informer on a street corner in Elizabeth. The two spoke briefly in the informer‘s presence and defendant stated that he had some “dimes” to sell, that is, $10 quantities of a narcotic. The informer then walked some 10 to 15 feet away where he talked with someone else while the transaction was completed. Oakley placed two $5 bills in the open trunk of defendant‘s car and defendant took a small glassine envelope from his trouser pocket and handed it to the investigator who then left the scene.
Excluded from evidence was the testimony of William Harris, proffered by defendant, that about two weeks later Ronald Brown told him that he had bought drugs from someone else and falsely named defendant as the seller to the undercover agent. This statement was offered as a declaration against interest, but rejected for lack of “circumstantial trustworthiness.” Offered and rejected on the same ground was testimony by defendant‘s sister, Gloria West. She would have testified that prior to the date of the alleged crime Brown told her he wanted to harm the defendant, who had once thrown Brown out of his home.
In addition to being hearsay, the trial judge also ruled this evidence was irrelevant since the indictment did not rest upon a sale to Brown. His extrajudicial statements were therefore regarded as unrelated to any of the issues legitimately presented and therefore inadmissible. What seems not to have been considered, however, was the explanation which defendant was trying to offer for the policeman‘s incriminating testimony. This was that the officer, satisfied in his own mind from the informant‘s advice that defendant was selling drugs, and believing it was a case where the end justified the means, falsely testified that the sale was made to him. In this way, so defendant argues, the charge could be prosecuted without revealing the informant and
This was the line of defense by which defendant hoped to create a reasonable doubt. The nature of the defense is, of course, relevant on a motion for disclosure. State v. Milligan, 71 N.J. 373, pp. 390-391 (1976). Naturally, we express no opinion as to its merits, but it was one which should not have been foreclosed. Without it, all the jury could consider was defendant‘s word against a disinterested police officer‘s, and defendant‘s disadvantage in this contest was fully exploited by the prosecutor‘s repeated emphasis during summation on the policeman‘s lack of incentive to lie. Furthermore, knowing what defendant had tried to show, the prosecutor forced the issue to its limits when he categorically asked:
And where did the evidence come from if it didn‘t come from Thomas West to Richard Oakley? No explanation for that from the defense.
The unfairness of this rhetoric lay in the fact that these were the very questions which defendant urged could have been answered by the proffered evidence.
The interest of defendant in knowing if Brown is the informant lies in the fact that the latter‘s extrajudicial statements are meaningful only if he occupied this relationship with Oakley. Thus, he asked only that the State commit itself as to this vital fact. If Brown is the informer (and the State has in various ways during these proceedings left little question but that he is) the relationship between the discordant versions of what happened on the street and the testimony of Brown‘s alleged out-of-court statements becomes undeniably significant.
A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to
a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.
The nature of the privilege and its underlying policy justifications have been extensively dealt with elsewhere. Suffice it to say that it is in reality a privilege afforded the government in recognition of the State‘s compelling need to protect its sources of information concerning criminal behavior. Strong reasons of policy favor nondisclosure of an informant‘s identity and “we must be mindful of the ease with which the privilege would be destroyed if disclosure were required without a substantial showing of a need for it.” However, the privilege is not absolute and disclosure has been ordered where circumstances warrant. See State v. Oliver, 50 N.J. 39, 45, 47-48 (1967). Most recently our Supreme Court elaborated upon the factors to be considered as part of “the delicate and difficult balancing of interests called for.” Cashen v. Spann, 66 N.J. 541, 555-557 (1975), cert. den. 423 U.S. 829, 96 S.Ct. 48, 46 L.Ed.2d 46 (1975). Citing Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628, 1 L.Ed.2d 639, 646 (1957), the court subscribed to the following statement of principle:
The problem is one that calls for balancing the public interest in protecting the flow of information against the individual‘s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer‘s testimony, and other relevant factors. [at 553]
In support of the privilege the State offers little more here than general policy justifications. It has not been suggested that the informant is faced with any serious threat of harm. Nor is it said that his usefulness in other pending or prospective investigations will be jeopardized. On
On “basic considerations of fairness,” therefore, Cashen v. Spann, supra, 66 N.J. at 557, the circumstances go beyond the “close case” presented in State v. Milligan, supra 71 N.J. at 394, and weigh the scales in favor of disclosure.
Turning to the admissibility of testimony by William Harris and Gloria West concerning Brown‘s extrajudicial statements, we conclude that if Brown was in fact the informer working with Oakley the testimony should be received. The offer was made on the theory of a declaration against interest.
A statement is admissible if at the time it was made it was so far contrary to the declarant‘s pecuniary or proprietary interest or so far subjected him to a civil or criminal liability or so far rendered invalid a claim by him against another or created such a risk of making him an object of hatred, ridicule or social disapproval in the community that a reasonable man in his position would not have made the statement unless he believed it to be true, except that such a statement is not admissible against a defendant other than the declarant in a criminal prosecution.
In State v. Sejuelas, 94 N.J. Super. 576 (App. Div. 1967), defendant offered testimony to the effect that prior
No less here are Brown‘s statements, if made, contrary to his interest within the meaning of
Recognizing that the out-of-court declarations attributed to Brown, even if believed by the jury, would not necessarily mandate defendant‘s acquittal as would the confessions considered in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), still they were of such clear materiality that their exclusion constituted error.
Finally, we come to defendant‘s claim of prejudice resulting from the following comments made by the assistant prosecutor in summation:
* * *. Investigator Oakley, I submit to you, had no motive to fabricate, no motive to lie. This is one of many cases Investigator Oakley is involved in, and there is no way he would benefit from lying. There is a lot of harm that could come to him from lying because when he goes up there to testify he puts his hand on one of these and he swears that he‘s going to tell the truth. The police officer‘s career would be finished in a minute * * *.
Yes. I think you‘ve made your point as to the reason why no one would lie in the case. Punishment I think we should leave out of the case. I‘ll sustain the objection.
The comments that “There is a lot of harm that could come to him from lying” and “the police officer‘s career would be finished in a minute” were improper and should not be repeated on the retrial.
Reversed and remanded for a new trial.