State v. Bankston
| Court | United States State Supreme Court (New Jersey) |
| Citation | 63 N.J. 263,307 A.2d 65 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. William BANKSTON, Defendant-Respondent. |
| Decision Date | 26 June 1973 |
Page 263
v.
William BANKSTON, Defendant-Respondent.
Decided June 26, 1973.
Page 264
David Rhoads, Assistant Prosecutor, for plaintiff-appellant (Joseph P. Lordi, Essex County Prosecutor, attorney).
Edward P. Hannigan, Asst. Deputy Public Defender, for defendant-respondent (Stanley C. Van Ness, Public Defender, attorney).
The opinion of the Court was delivered by
[307 A.2d 66] COLLESTER, P.J.A.D., Temporarily Assigned.
Defendant was convicted of the unlawful possession of heroin and sentenced to a term of 12 months in the county penitentiary.
Page 265
On appeal, the Appellate Division reversed the conviction in an unreported opinion and remanded the case for a new trial. The Appellate Division held that hearsay testimony of a police officer's conversation with an informer was erroneously admitted into evidence and that its admission, together with the prosecutor's reference thereto, constituted reversible error. This court granted the State's petition for certification. 62 N.J. 261, 300 A.2d 345 (1973).
The State's proofs indicated that at approximately 10:15 P.M. on January 28, 1971, acting on an informer's tip, four Newark detectives went to a tavern known as Charlie's Lounge. Before entering they looked through a window and saw defendant and three other black males inside. Defendant was seated at the middle of the bar. No other person was seated within three or four bar stools from him. Defendant was wearing a green jacket, a gray hooded sweatshirt and blue pants which matched the description of the clothing of the man they were looking for.
The detectives entered the tavern and approached defendant who was then standing up. As they were identifying themselves, one of the officers Detective Walsh, noticed a pair of gloves on the bar near where defendant had been seated, which had a 'distinguishable bulge protruding.' The detective picked up the gloves and found a stack of 16 glassine envelopes underneath. (The contents of the envelopes were subsequently found to contain heroin.) Defendant was placed under arrest and searched but no narcotics were found on his person.
Detective Genzone, one of the arresting officers, testified that when they entered the tavern the gloves were on the bar in front of defendant and he observed Detective Walsh pick them up and pull the stack of glassine envelopes from underneath. He also said that on the bar in front of defendant there was a drink, some change and a package of cigarettes. However, Genzone's recollection of other details of the arrest were hazy. The detective could not remember which way defendant was facing while seated at the bar,
Page 266
whether he was watching a game of pool being played, whether the police found a jacket on the bar stool on which defendant had been seated, or whether defendant denied ownership of the gloves when the narcotics were found.Detective Walsh, the only other officer to testify, said that the gloves were on the bar about one and a half to two feet away from where defendant was standing. He also said that when confronted with the glassine envelopes defendant denied ownership of the gloves, the change, the drink and the cigarettes. The detective further testified that after defendant was placed under arrest he asked for the cigarettes and change which were on the bar next to the gloves. On cross-examination the witness admitted he had not noted this last fact in his arrest report nor had the cigarettes and change been seized as evidence.
At the close of the case the court granted the State's motion requiring defendant to try on the gloves in the presence of the jury. Defendant did not testify or call any witnesses on his own behalf.
The Appellate Division's decision was based on testimony given by Detective Genzone and comments made by the prosecutor.
During his opening statement the prosecutor told the jury, over defendant's objection, that the detectives 'were actively engaged in an investigation of this man' and that the investigation led them to the tavern where they saw defendant and approached him.
[307 A.2d 67] Detective Genzone testified that shortly before defendant was arrested the officers had been talking to an informer and that based on information received they went to the tavern. He said that before entering he saw four black males inside whom he did not know by name. He testified, '* * * we were looking for a certain individual. We had a description of his clothing. He was inside the tavern. * * * We were looking for an individual that had narcotics in his possession.' Defense counsel's objection was sustained, the court
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stating, 'I will sustain the objection and permit the prosecutor to ask a different question, whether a person they were looking for was found and what his description was.' The prosecutor then asked, 'Detective, you have already indicated that one of the persons fit the description that you were looking for, is that correct?' and the witness responded affirmatively. Thereafter Genzone again referred to defendant as 'the person we were looking for, the description of the person that we were looking for.' And when Detective Walsh subsequently testified he said that before entering the tavern he saw four black males inside, 'one of them fitting the description that we had obtained.'During his summation to the jury the prosecutor also referred to the informer's identification of defendant. He said, 'Well, first we heard that prior to entering the bar there was some kind of an investigation, that when they went to the bar they had a description--.' Defense counsel's objection was overruled, and the prosecutor continued:
--that when they entered this bar they had a description that they were looking for a particular person, that when they looked in the window of the bar they saw four people. They did not go to all four people. As Detective Genzone said, they were looking for someone who was wearing a gray hooded sweatshirt, and that person was--
Defense counsel again objected. At a side bar conference he argued that the prosecutor was using the testimony concerning prior information the police had obtained to draw an inference of guilt. The trial judge agreed that the prosecutor's remarks were improper because his suggestion that defendant had been the subject of a police investigation could lead to the inference that the officers must have had reason to believe that defendant was committing a crime.
The judge then advised the jury he had sustained defense counsel's objection and said:
I will instruct you to disregard those remarks of the prosecutor pertaining to any other type of investigation or...
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