State v. Nobles

• Decision Date: 13 June 1963
• Docket Number: No. A--92,A--92
• Citation: 79 N.J.Super. 442,191 A.2d 793
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Thomas Lee NOBLES, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 442

79 N.J.Super. 442

191 A.2d 793

The STATE of New Jersey, Plaintiff-Respondent, v. Thomas Lee NOBLES, Defendant-Appellant.

No. A--92.

Superior Court of New Jersey Appellate Division.

Argued May 20, 1963.

Decided June 13, 1963.

Stanley H. Needell, Newark, for appellant.

C. William Caruso, Asst. Pros., for respondent (Brendan T. Byrne, Essex County Pros., attorney; C. William Caruso, Newark, of counsel and on the brief).

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

FREUND, J.A.D.

Defendant appeals from a County Court judgment of conviction, entered upon a jury verdict of guilty, for illegally possessing and dispensing narcotics. R.S. 24:18--4, N.J.S.A.

The essential facts revealed at the trial are as follows. Thomas Monahan, a detective of the Newark Police Department assigned to the narcotics squad, testified that on April 14, 1960 at about 10:15 A.M. he was on regular duty in a police car on Quitman Street, Newark, with detectives Howard and Carr. He observed Rufus Hawk walking alone Quitman Street, and at the nearby corner of Monmouth Street and Waverly Avenue Hawk met Wilbert Collins. On cross-examination, Monahan admitted that Hawk appeared to be normal. The only distinguishing fact was that Hawk was known by Monahan to be a 'narcotic addict.' Monahan stated that he did not know Collins.

As Hawk and Collins were walking along the street, the detectives stopped and searched Collins, finding 'ten decks of suspected heroin' in his left-hand trouser pocket. William R. Seligman, a chemist for the Newark Police Department, later testified that he had analyzed the contents of two of the ten 'decks' or small glassine paper envelopes taken from Collins and found that they contained heroin. Hawk and Collins were arrested and taken to police headquarters. Defendant was later taken into custody at 'a bar on Waverly Avenue and Avon Place' and was also brought to headquarters.

According to Monahan, Collins in the course of being questioned accused defendant of giving him the narcotics earlier that morning at Collins' home. Collins was to sell 'the ten decks' at $5 a piece, retaining $2 per envelope and paying defendant the balance. Collins, in defendant's presence, gave the police a written statement describing the alleged transaction with Nobles. Monahan testified that defendant denied the accusation and refused to give any statement. The Collins statement was received in evidence without objection.

Detective Theodore Howard's testimony substantially corroborated Monahan's description of the arrest of Hawk and Collins and the questioning at police headquarters. He described apprehending defendant at the Cotton Club, a bar on the corner of Waverly Avenue and Avon Place, at about 1 P.M. of the same day (April 14, 1960). Howard further testified that when Collins' statement was read in the presence of Nobles, he made no comment.

Shirley Collins testified that she was the sister of Wilbert Collins and at the time they both resided at 155 Quitman Street. She stated that Nobles came to their home on April 14 at about 10 A.M. and asked to speak to Wilbert. She called her brother, who then had a conversation with defendant on the front porch. She did not overhear what they said. In the course of the trial, she identified Nobles as the man who called at her home to see her brother.

Rufus Hawk stated that on April 14, 1960, between 9:30 and 10 A.M., he went to see Collins at his residence, but Collins was not at home. Soon thereafter they met, and while they were walking the detectives stopped and searched them. After the heroin was found on Collins, they were arrested, taken to police headquarters, and questioned. Hawk testified that Collins informed the police of obtaining the narcotics from defendant but that defendant denied giving Collins the narcotics and denied the accusation in Collins' statement. Hawk explained that he was with Collins on the morning of the arrest for the sole purpose of pointing out to Collins potential customers for the narcotics.

The final witness for the State was Wilbert Collins, who was then serving a three to five-year sentence for possession of the narcotics on April 14, 1960. Collins testified that on the same day defendant visited him at his home about 8:30 A.M. He corroborated the testimony of his sister Shirley. Defendant met Collins on his front porch and defendant gave him the ten packages of heroin. Collins was to meet defendant at the Cotton Club at 1 P.M. Collins later saw defendant at police headquarters. Collins described giving his statement to the police. When this statement was read to defendant, 'he (defendant) didn't say nothing.' Collins stated that his purpose in meeting Hawk was to ascertain possible customers to whom he could 'pass the narcotics.'

Cross-examination disclosed that Collins had known defendant since 1955 and had worked for him on a construction project. After about a week defendant removed Collins from this job, because Collins had an argument with a foreman. However, Collins stated that he was never angry with defendant.

Thomas Lee Nobles, the defendant, was the only witness for the defense. He testified that he was a building contractor and had first met Collins in 1955 when Collins worked for him for a few days, leaving after an argument with the job foreman. Defendant further stated that he and Hawk had been arrested in 1952 and that he had been sentenced to federal prison for two years for possession of narcotics.

Defendant testified that he received a telephone call from Hawk on the morning of April 14 at about 7:45 A.M. Hawk was seeking a job, and defendant arranged to meet him at the Cotton Club at 1 P.M. Defendant denied having any connection with the narcotics taken from Collins by the detectives; denied ever having had possession of the 'ten decks of narcotics'; denied calling at Collins' home on the date of his arrest; and denied ever having seen Collins' sister before the trial. Although defendant admitted he was present when Collins gave his statement to the police and that it was read aloud so that he could hear its contents nevertheless, he remained silent during the police interview. Nobles admitted that he heard Collins identify him as the one who gave Collins the ten decks of heroin. Nobles conceded that he made no reply when the identification was made.

On this appeal, defendant argues that the narcotics found in Collins' possession should be suppressed as the product of an illegal search and seizure, that Collins' statement was improperly received in evidence, and that the jury should have received cautionary instructions concerning the credibility of Collins and Hawk. Since defendant's trial counsel failed to make timely objection, the last two points are said to satisfy the plain error rule. R.R. 1:5--1, made applicable to this court by R.R. 2--5.

The initial question is whether defendant has standing to attack the search of Collins and the seizure of the heroin. As Justice Frankfurter commented, in speaking for the court in Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960):

'In order to qualify as a 'person aggrieved by an unlawful search and seizure' One must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice...