State v. Colon

• Court: New Jersey Superior Court — Appellate Division
• Citation: State v. Colon, 588 A.2d 440, 246 N.J.Super. 608 (N.J. Super. App. Div. 1991)
• Decision Date: 25 March 1991
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Raymond COLON, Defendant-Appellant.

Page 608

246 N.J.Super. 608

588 A.2d 440

STATE of New Jersey, Plaintiff-Respondent, v. Raymond COLON, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted March 5, 1991.

Decided March 25, 1991.

Wilfredo Caraballo, Public Defender, for defendant-appellant (Donald T. Thelander, Asst. Deputy Public Defender, of counsel and on brief).

John J. Fahy, Bergen County Prosecutor, for plaintiff-respondent (Michael Maher, Asst. Prosecutor, of counsel and on letter brief).

Before Judges ANTELL, SCALERA and KEEFE.

The opinion of the court was delivered by

ANTELL, P.J.A.D.

After a jury trial, defendant was convicted of two counts of possession of cocaine, N.J.S.A. 2C:35-10a(1), and one count of possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(1). According to the evidence, at about 7:40 p.m. on April 22, 1988, a State Trooper stopped an automobile being driven south by defendant on the New Jersey Turnpike. The car had been traveling "at a high rate of speed," and had a cracked tail light. Defendant could not produce his driving credentials and the trooper observed three vials of suspected cocaine on the center console in front of the stick shift. Codefendant Gladys Guzman, who was the car's owner, was riding in the front as a passenger.

The trooper arrested and handcuffed defendant and Guzman and then searched the car, finding, on the floor in front of the driver's seat, a paper bag containing more than five pounds of cocaine. When a glass pipe with brown residue was found in defendant's jacket pocket, defendant acknowledged that he was a user of crack cocaine and that the three vials on the console belonged to him. Both defendant and Guzman at first denied knowledge or ownership of the bag containing more than five pounds of cocaine.

The State's evidence was that after defendant had been given his Miranda warnings he admitted knowing that the bag of cocaine was in the car and what it was there for, presumably for distribution. Detective Schlueter testified that defendant said he knew where the cocaine was going, "but that it wasn't his."

In his defense, defendant said he was operating Guzman's automobile as an accommodation to her. She had asked him to drive her down to Delaware, but he had agreed only to drive her across the George Washington Bridge in return for which she was to give him the three vials of crack cocaine found on the console.

During the trial defendant called Detective Schlueter as a witness. He testified on direct examination that, upon questioning, Guzman told him it was she who had purchased the cocaine from an unidentified person in the Bronx for $47,500. Information was also developed by defendant from this witness about further statements by Guzman, which indicated her extensive involvement in the traffic of controlled dangerous substances. Although it did not directly support his claimed lack of guilty knowledge, it appears to have been defendant's purpose in eliciting this testimony to bring credibility to his claim that the five pounds of cocaine belonged to Guzman and that the situation in which he had been apprehended was one into which he had fallen innocently. Guzman herself was not called to testify, and her statements, though hearsay, were received as declarations against interest. N.J.R.Evid. 63(10). On cross-examination, however, Detective Schlueter was asked the following question by the prosecutor to which he gave the answer following:

Q. What did Miss Guzman say specifically about this cocaine and Mr. Raymond Colon's knowledge of this cocaine, just about, nothing else?

A. She advised me that he knew that the cocaine was in the car. He knew the amount of the cocaine and he knew where it was going.

Defendant's objection to the question was overruled. In reliance upon that testimony the prosecutor argued in summation that defendant "knew about the cocaine in the car, knew where it was headed and knew the purpose of the cocaine. To be distributed."

Except for the three vials of cocaine on the console, defendant denied knowing about any other cocaine in the car. He testified that the admission Detective Schlueter attributed to him was intended to refer only to the three vials. His argument on this appeal is that the Schlueter testimony on cross-examination recounting the portion of the Guzman statement that incriminated defendant was prejudicial hearsay and its admission constituted reversible error. We agree. The incriminating portion of Guzman's out-of-court statement that asserted defendant's knowledge about the five-pound bag of cocaine went to the heart of the defense, and we cannot say that its admission did not prejudice the defendant.

The theory applied below was that the inculpatory part of the Guzman statement as to the defendant was receivable, under the doctrine of continuing trustworthiness, as a "tag along" with the self-inculpatory portion of the statement. See State v. Powers, 72 N.J. 346, 370 A.2d 854 (1977) (Clifford, J., dissenting); State v. Abrams, 72 N.J. 342, 343, 370 A.2d 852 (1977) (Clifford, J., concurring and dissenting). In those cases defendants were appealing from the trial courts' exclusions of evidence through which codefendants had specifically exculpated defendants as part of their own confessions. Thus, it was held that the "tag along" exculpatory comments should have been received and the convictions were vacated. The facts, however, were the converse of those here, where the question addresses the admissibility against defendant of the part of a codefendant's confession that is inculpatory as to the defendant where defendant had introduced the portion of codefendant's confession that may exculpate him.

The rationale underlying Powers and Abrams does not lie in the mere fact that the self-incriminatory and the exculpatory statements were made side-by-side. It lies in the fact that the latter was intrinsic to the former. In Abrams, the declarant codefendant, Smith, admitted selling cocaine to an undercover detective but denied that she had obtained the contraband from defendant Abrams. As the Appellate Division said, that exculpatory declaration formed part of the declaration against interest because "it intensifies her personal criminal responsibility for the transaction." State v. Abrams, 140 N.J.Super. 232, 235, 356 A.2d 26 (App.Div.1976), aff'd o.b., 72 N.J. 342, 370 A.2d 852 (1977). Here, the contrary is the case. Although Guzman acknowledged her part in possessing the five pound bag of cocaine, her accusatory reference to defendant's knowledge about the cocaine and its purpose tended to dilute her personal responsibility and advanced the self-serving purpose of ingratiating herself with the police by aiding them in their search for evidence against defendant.

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