State v. Boone

• Decision Date: 09 August 1973
• Citation: 125 N.J.Super. 112,309 A.2d 1
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John BOONE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 112

125 N.J.Super. 112

309 A.2d 1

STATE of New Jersey, Plaintiff-Respondent, v. John BOONE, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Dec. 11, 1972.

Decided Aug. 9, 1973.

Jane G. Kleinfeld, Asst. Deputy Public Defender, for defendant-appellant (John H. Ratliff, Asst., Deputy Public Defender, of counsel and on the brief; Stanley C. Van Ness, Public Defender, attorney).

Dante P. Mongiardo, Asst. Prosecutor, for plaintiff-respondent (Joseph D. J. Gourley, Passaic County Prosecutor, attorney).

Before Judges FRITZ, LYNCH, and JOELSON.

PER CURIAM.

Defendant was convicted by a jury for possession of a dangerous substance, contrary to N.J.S.A. 24:21--20. He appeals on the grounds that (1) a question posed by the prosecutor revealed a prior plea of guilty, to his prejudice, and that in these circumstances denial of his motion for a mistrial was error of constitutional proportions; (2) failure to require the disclosure of the identity of a confidential informant was error, and (3) denial of a 'Clawans charge' in connection with the refusal to provide the name of the informant was error. See State v. Clawans, 38 N.J. 162, 170, 183 A.2d 77 (1962).

We think the latter two issues are without merit. State v. Roundtree, 118 N.J.Super. 22, 285 A.2d 564 (App.Div.1971), is distinguishable. In the instant case defendant is charged with possession, a crime in which the informer did not participate. That the informer's transaction led to the disclosure of the crime charged, or confirmed prior suspicions and gave reason for police activity, does not diminish the application of the rule of State v. Infante, 116 N.J.Super. 252, 282 A.2d 44 (App.Div.1971), where, as here:

In the instant case the participation of the informant did not become 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, of defendant. (at 258--259, 282 A.2d at 48.)

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 of 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, 10 A.2d 281, (E. & A. 1940), and Goodlet v. Goodman, 34 N.J. 358, 169 A.2d 140 (1961), cert. den. 368 U.S. 855, 82 S.Ct. 92, 7 L.Ed.2d 52 (1961). But both these cases dealt with murder indictments. That murder cases are Sui generis as a matter of policy is demonstrated by the historical injunction against any plea of guilty in such cases. See R. 3:9--2. It might be argued that a plea is an admission, or at least, if retracted, a prior inconsistent statement; and as such, if intelligently made (which could be discovered on Voir dire, as is done with confessions), has real relevance, I.e., a tendency in reason to prove the truth of the issue.

But we will not strain. We are persuaded by the 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 evidence.

The State argues the error was corrected by ...