State v. Farquharson
| Decision Date | 16 March 1995 |
| Citation | 280 N.J.Super. 239,655 A.2d 84 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Gibbon FARQUHARSON, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Susan L. Reisner, Public Defender, for appellant (Leeann Cunningham, Designated Counsel, on the brief).
Ronald S. Fava, Passaic County Prosecutor, attorney for respondent (Gary H. Schlyen, Chief Asst. Prosecutor, of counsel and on the letter brief).
Before Judges PRESSLER, CONLEY and NEWMAN.
The opinion of the court was delivered by
CONLEY, J.A.D.
Defendant was convicted of various drug offenses for which he was sentenced, on the State's motion for an extended term, to an aggregate ten year custodial term with a five year parole disqualifier. The required fines, penalties and driver's license revocation were also imposed. On appeal, in addition to claiming without merit that his sentence is excessive, defendant contends that the inability he encountered before and during trial to obtain the address of co-defendant so that she could be compelled to appear and testify deprived him of his constitutional right to compulsory process and should have led to a granting of his motion to dismiss the indictment. Under the particular circumstances here, not the least of which consisted of less than enthusiastic prosecutorial cooperation, and despite the involvement of federal governmental officials and their outright refusal to assist, we are of the view that the prosecutor cannot have it both ways. If he wishes to pursue the charges against defendant, he cannot stonewall defendant's diligent efforts to obtain the presence of the witness.
The facts that led to defendant's drug arrest and subsequent convictions are the following. During police surveillance, defendant was seen engaging in an exchange of "paper money" for a "small object" with co-defendant. According to the officers' version, defendant was the seller. When co-defendant was arrested she had two bags of cocaine in a pocket. Before defendant was arrested and after the alleged transaction with co-defendant, the officers claimed that they saw him go into a building, come back out shortly thereafter and take a tissue paper out of his pocket. He purportedly dropped it on the ground and walked away. Just before he was arrested, defendant also dropped a cigarette box on the ground which contained eight baggies of marijuana. The cigarette box was retrieved but a search of the area where the tissue was dropped was unsuccessful. The surveillance officer, however, who had several weeks before been involved in an automobile accident with defendant resulting in damage to his police vehicle, asserted that when he went to the location he was able to find a rolled-up white tissue paper containing a baggie with crack cocaine. Defendant admitted the marijuana was his but denied possession or distribution of the cocaine. He admitted that he had met co-defendant in the street but denied selling her drugs. He said that as they were talking she had dropped a shopping bag which he picked up for her.
Long before his trial, defendant commenced extensive efforts to procure co-defendant as a witness. According to his public defender at the time of a preindictment hearing, co-defendant "vehemently" denied purchasing drugs from defendant. To say she was a crucial defense witness is to put it mildly.
In early 1992, defendant and co-defendant both received a plea offer. Counsel asserts that based upon his experience with the Passaic County Prosecutor's office, the normal policy would be that both would be treated as a "package" so that neither could take advantage of the plea offer unless the other did. Interestingly, the prosecutor has never denied this policy. Counsel discovered, however, in the fall of 1992 that co-defendant had entered a plea and had received a probationary sentence. When he contacted the Passaic County Probation officer assigned to co-defendant, he discovered that she had not been reporting and that her whereabouts was not known. He was told that the probation officer had been contacted by a Federal Drug Enforcement Special Agent who claimed that co-defendant had been admitted to the Federal Witness Protection Program and that the trial court would be formally so advised so that her probationary status could be revised. Such notice was never received and, as far as we can tell, co-defendant's noncompliance with her probation has never been pursued by the probation officials.
Obtaining this information, defense counsel commenced further efforts to ascertain co-defendant's whereabouts, status, and/or appearance, including serving a subpoena upon the D.E.A. Cooperation with both federal and state officials was nonexistent, even to the extent of either confirming or denying co-defendant's status in the Federal Witness Protection program. In November 1992, counsel filed a motion seeking, among other relief, an order directing the State to produce the current address of co-defendant, to produce her at trial, and to explain the circumstances of her plea and her entry into the Federal Witness Protection program. Counsel also, pursuant to the Uniform Act to Secure the Attendance of Witnesses From Within or Without a State in Criminal Proceedings (Uniform Witness Act), N.J.S.A. 2A:81-18 to 23, requested that co-defendant be certified as a material witness and that her production pursuant to N.J.S.A. 2A:81-20 be ordered.
The following is an exchange that occurred between the trial judge and the prosecutor that is fairly reflective of the tenor of the prosecutor's position on the motion:
[PROSECUTOR]: Of course, there's no authority for this request that the defense attorney is citing. He cites a general case of Brady v. Maryland.
But there is no case that he cites in his brief even come close to supporting the position he's asking for.
Can I represent the probation officer knows what somebody told that officer? It's hearsay.
Is that proof your Honor--I'm assuming arguendo that that statement is accurate.
The defense attorney's requests are outrageous. There's no case law to support it. They never even notified the Federal authorities, which I think he should do.
Don't you think the interested party might be the U.S. Attorney's office; don't you think they might have something, an interest in this? There is a Federal statute.
Does the Court know very much--I don't know very much about the Federal statute. I don't deal with it at all.
The prosecutor's position was that he did not know anything about the matter and that he had no obligation to find out.
Defendant's motion was granted to the extent that the prosecutor was directed in part to provide co-defendant's last known address, determine whether she was in the Witness Protection Program and if so whether that was a factor in her plea offer. The trial judge declined to declare her a material witness pursuant to the Uniform Witness Act. He did, however, recognize that if she were not in the Witness Protection program "that's a whole different situation".
In response to the order that was entered in connection with the motion, the State's only response was that it had no information as to co-defendant's whereabouts, that as far as the prosecutor knew the State had not been involved in co-defendant's placement in the Witness Protection program and that her entry into that program could not be confirmed or denied. Defense counsel's subsequent subpoena upon the D.E.A. and request for the production of co-defendant for trial and production of her present address pursuant to 28 C.F.R. § 16.21, et seq., providing for the production or disclosure of information contained in the Department of Justice files, was equally fruitless. He thus moved to dismiss the indictment or alternatively for a hearing to ascertain the efforts of the State and/or an explanation for its inability to obtain the presence of the witness. Although we do not have a transcript of the argument, if any, on that motion or an order disposing of it, we are told it was denied.
At the beginning of the trial in September 1993, the motion was renewed. During the arguments thereon, the prosecutor for the first time represented that it had been determined that co-defendant was not in the Federal Witness Protection program or in "any program" but that she "happens to be working for the D.E.A. out of state in Maryland and ... is not intending to come back to the State of New Jersey and the agents refuse to supply any current address to us at this point." In response to this, the trial judge observed:
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