State v. Brown

• Decision Date: 03 December 2001
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Violet BROWN, Defendant-Appellant.
• Court: New Jersey Supreme Court

784 A.2d 1244

170 N.J. 138

STATE of New Jersey, Plaintiff-Respondent, v. Violet BROWN, Defendant-Appellant.

Supreme Court of New Jersey.

Argued April 30, 2001.

Decided December 3, 2001.

Kevin G. Byrnes, Designated Counsel, argued the cause for appellant (Peter A. Garcia, Acting Public Defender, attorney).

Dorothy A. Hersh, Assistant Prosecutor, argued the cause for respondent (Daniel G. Giaquinto, Mercer County Prosecutor, attorney).

Jafer Aftab, Deputy Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (John J. Farmer, Jr., Attorney General, attorney). The opinion of the Court was delivered by COLEMAN, J.

Defendant appeals her conviction, under N.J.S.A. 2C:35-7, of third-degree possession of marijuana with intent to distribute in a school zone. This appeal raises two issues: whether a confidential informant's statements to the police should have been admitted as declarations against interest, and whether defendant was entitled to a severed trial based on Rule 3:15-2. The trial court ruled against defendant on both issues and the Appellate Division affirmed. We agree and affirm.

I.

On July 27, 1994, a confidential police informant told Officer Maurice Crosby, of the Trenton Police Department's Vice Enforcement Unit, that "Sharon Spence and Violet Tomlinson are selling large quantities of Marijuana from their Second Floor Apartment at 154 Hamilton Avenue." During the week of July 24, 1994 the informant cooperated with the Trenton police to carry out the first of two controlled buys of marijuana from Spence. On August 1, 1994 the informant advised Officer Crosby that "Sharon Spence and Violet Tomlinson are continuing to sell Marijuana from their Second Floor Apartment at 154 Hamilton Avenue." In addition, the informant reported that "the two (2) women have started selling Crack Cocaine and powder Cocaine from the residence." The informant made a second controlled buy of marijuana from Spence during the week of July 31, 1994.

On August 4, 1994 Officer Crosby obtained a search warrant for Spence and Tomlinson's apartment. In his affidavit for the search warrant, Crosby stated that the confidential informant was reliable, noting that the informant had provided information in the past that led to fifteen arrests. When the search warrant was executed on August 5, 1994 at about 5:48 a.m., defendant and co-defendant Spence were present in their respective second and third-floor bedrooms. The kitchen was located on the second floor. The following quantities of CDS were recovered: 18.97 grams of cocaine in the freezer section of the refrigerator; 3.41 grams of marijuana in the kitchen pantry; 100.48 grams of marijuana in defendant's second-floor bedroom; 1.55 grams of marijuana on top of a chest of drawers in Spence's third-floor bedroom; and 1.89 grams of marijuana from the chest of drawers in Spence's third-floor bedroom. In addition, a film canister with several partially smoked marijuana cigarettes was found on the headboard of the bed in defendant's bedroom, as well as a pack of rolling papers, a cigarette lighter, a plastic sandwich bag, and some loose vegetation located in the lid of a box elsewhere in defendant's bedroom. In addition to the CDS, the police also found a passport issued to Violet Melrose Tomlinson and a Social Security card in the name of Violet Melrose Brown in a purse found in the second-floor bedroom. Several other personal items belonging to Brown were also found in her bedroom. A digital scale, without batteries or a back, was found on the floor outside of Spence's third-floor bedroom. A box of razor blades and numerous plastic ziplock bags were seized from under the sink in the bathroom on the second floor.

Defendant and Spence were indicted on seven counts of drug offenses related to all of the CDS, under an accomplice liability theory. Pre-trial motions to disclose the identity of the confidential informant and to sever the trial were denied.

Defendant testified at trial and denied involvement with, or knowledge of, any of the drugs found in the apartment. She testified that although her bedroom was located on the second floor, she worked as a housekeeper and babysitter in Princeton and was rarely at the apartment other than to sleep two or three nights per week. Defendant claimed that she kept nothing in the chest of drawers located in her second-floor bedroom and that, in fact, she had never touched that chest of drawers. She also explained that she did not use the kitchen, including the refrigerator, because she ate her meals at her job and returned home late at night. Defendant testified that she never ventured up to the third floor. She stated that there was no lock on her bedroom door and that she did not know whether others had access to her room because she was rarely at the apartment.¹

Spence testified that at least some of the 3.44 grams of marijuana recovered from her third-floor bedroom was possessed by her for her personal use. She denied, however, knowledge of the marijuana or cocaine found in other locations in the apartment. She explained that the digital scale found on the third floor was inoperable, but that she kept it because her young children liked to play with it. In an attempt to justify the presence of other CDS found in the apartment, she suggested that unknown third persons placed it there. She testified that the apartment had a fire escape that was connected to several other row houses and that she had observed drug activity in the neighborhood around her apartment.

During the trial, defendant sought to impeach Spence's credibility by introducing the informant's statements that he or she had made two controlled marijuana purchases from Spence. The trial court determined that the informant's statements were inadmissible hearsay because they did not satisfy any of the exceptions to the hearsay rule.

The jury convicted defendant of the four marijuana charges: fourth-degree possession of marijuana; third-degree possession of marijuana with intent to distribute; third-degree possession of marijuana with intent to distribute in a school zone; and fourth-degree maintaining a premises for persons using controlled dangerous substances. Defendant was acquitted of all three charges related to the cocaine found in the refrigerator. The jury convicted Spence on all seven counts. After proper merger of offenses, defendant was sentenced to a custodial term of three years to be served without parole eligibility. The Appellate Division affirmed defendant's judgment of conviction in an unpublished opinion. We granted defendant's petition for certification, 165 N.J. 604, 762 A.2d 218 (2000), limited to the issues of the admissibility of testimony regarding the informant's statements to the police and the denial of the severance motion.

II.

A.

Defendant argues that she should have been allowed to cross-examine the testifying police officer about his conversations with the confidential informant because some of the informant's statements fall under the "statement against interest" exception to hearsay. Defendant sought to place before the jury the fact that, although the informant's statements to Officer Crosby regarding the drug activity at the apartment implicated both defendant and Spence, the two statements regarding the controlled drug buys indicated that only Spence had sold drugs to the informant. Defendant contended that those two statements exculpated her from any involvement in the drug sales. As noted previously, the trial court disallowed the statements, concluding that they were inadmissible hearsay.

In her appeal to the Appellate Division and before us, defendant contends that the informant's statements were contrary to the informant's penal and social interests because they were admissions that the informant had purchased marijuana. The Appellate Division rejected defendant's argument, explaining:

The informant was not subjecting himself to criminal liability at the time of the statement because he was an informant working for the government. The "test is whether the statement so far exposes the declarant to criminal liability that `but for [its] truth [it] would not have been made.'" State v. Gomez, 246 N.J.Super. 209, 215, 587 A.2d 272 (App.Div.1991) (citations omitted). The informant knew at the time he made the statement that it was not against his interest to do so. Furthermore, as the rule requires, the statement is admissible against an accused only if the accused was the declarant. Thus, this exception is inapplicable because the declarant is not the accused.

As a preliminary matter, a trial court's evidentiary rulings are "entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Marrero, 148 N.J. 469, 484, 691 A.2d 293 (1997). Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless "the trial court's ruling `was so wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting State v. Kelly, 97 N.J. 178, 216, 478 A.2d 364 (1984)).

We first address the State's assertion that the informant's statements are not relevant. The fact that defendant and Spence were not charged based on the drugs sold by Spence to the informant is not dispositive of the relevancy question. Relevant evidence is defined as "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. That Spence was the person who twice sold marijuana to the informant is relevant to show that the CDS recovered during the execution of the search warrant probably belonged to Spence and that she probably was a drug dealer. But that evidence does not prove that Brown was not in sole or joint possession of the marijuana recovered from her bedroom; nor does it prove that she was not involved in selling drugs. That evidence can, however,...