State v. Roundtree

• Decision Date: 22 December 1971
• Citation: 118 N.J.Super. 22,285 A.2d 564
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Kenneth Donald ROUNDTREE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 22

118 N.J.Super. 22

285 A.2d 564

STATE of New Jersey, Plaintiff-Respondent, v. Kenneth Donald ROUNDTREE, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 14, 1971.

Decided Dec. 22, 1971.

Cynthia M. Jacob, Deputy Public Defender, for appellant (Stanley C. Van Ness, Public Defender, attorney; Cynthia M. Jacob, New Brunswick, of counsel and on the brief).

Richard Galex, Assistant Prosecutor, for respondent (John S. Kuhlthau, Middlesex County Prosecutor; Richard Galex, on the brief).

Before Judges KILKENNY, LABRECQUE and LANE.

The opinion of the court was delivered by

LANE, J.A.D.

Defendant appeals from a judgment of conviction following a jury trial of possession and sale of heroin on June 25, 1968. He also appeals from a judgment of conviction based upon his plea of guilty to a charge of possession of heroin on August 28, 1968. He was given concurrent sentences to the New Jersey Reformatory (now Youth Correctional Institution Complex). The sentences were suspended, and he was placed on probation for four years on condition that he seek treatment.

Before trial defendant moved to dismiss the indictment on the ground that he was denied due process of law because of the time lapse between the dates of the alleged offenses and his subsequent arrest on October 31, 1968. The evidence developed on the motion is fully set forth in the opinion of the trial court. State v. Rountree, 106 N.J.Super. 135, 254 A.2d 337 (Cty.Ct.1969).

Defendant argues that: (1) denial of his pretrial motion was error; (2) he was denied a fair trial because the trial court refused to allow cross-examination of the State's witnesses concerning an informer and the informer's involvement in the June 25, 1968 transaction; (3) the trial court should have required the State to disclose the identity of the informer; (4) the trial court erred in denying a motion for a mistrial based upon the failure of the State to give notice of the existence of an informer; (5) the trial court erred in refusing to charge the jury on entrapment as requested by defendant.

At the trial State Trooper Victor Irizarry testified that on June 25, 1968 he was an undercover investigator participating in a narcotics investigation in the New Brunswick area. He had assumed the dress and style of life of narcotics addicts and insinuated himself into their society with the help of an informer. On the day in question he and the informer met the defendant and one Van Anglen, who was also indicted as a result of the undercover investigation, at the Golden Nugget Tavern. Irizarry initially testified that he told defendant and Van Anglen that he wanted to purchase narcotics and inquired where he could get them. Van Anglen replied that he knew where 'a nice thing' could be obtained. Irizarry, the informer, Van Anglen and defendant drove to 48 John Street, New Brunswick. Defendant left the automobile to go in and purchase the narcotics. Irizarry gave him a $10 bill and testified that he asked defendant to bring the seller out. When defendant returned with the narcotics, Irizarry and the other three went back to the Golden Nugget Tavern where defendant and Van Anglen were dropped off, at which time defendant received $2 for taking Irizarry and the informer to make the purchase.

At the beginning of cross-examination Irizarry was asked, 'At what stage in this offense that you are here talking about that you here allege did you come in contact with this informer?' The prosecutor objected to 'any cross-examination concerning any informant.' The ruling of the trial court precluded any cross-examination concerning the informer. The trial court would not permit any questions 'which may generally or inferentially raise a possible identity of this informer * * * anything about him which may in any way get into an identity situation which, in effect, I think, precludes you from saying practically anything about him other than the fact that he was in the car and where he may have been seated in the car and so forth * * * any question that would elicit precisely what the informer said as opposed to what Detective Irizarry said in the conversation with defendant and Van Anglen * * * any questioning of this witness as to any conversation which might have happened as far as the informer is concerned,' and any 'question whatsoever about the informant and that goes not only to identity but also to any part that this informant may have had in the entire transaction that is here in question.'

Trooper Irizarry had submitted to his superiors a handwritten report of the transaction (Crip refers to Van Anglen; D.J. refers to the informer):

Met Roundtree & 'Crip' in the Golden Nugget Tavern on Albany. D.J. had conversation with them. 'Crip' said he was high on some 'nice stuff.' D.J. said we were looking to 'cop.' 'Crip' said he could take us to the man to 'cop.' We entered the undercover veh. which was parked in front of the tavern. 'Crip' directed us to 48 Johns St. We parked in front. We spoke & Roundtree asked how much was desired. I said 2 bags. He said give me the money & I'll go in and get it. D.J. said tell the dude to come out, Roundtree said give me the money because the guy don't know you. I gave Roundtree a $10 bill. He left & returned in a short while. 'Crip' left the veh. & returned with a bottle of soda (orange). He got in & Roundtree got in & handed me 2 small glassine envelopes, containing a white powder. We drove back to the Golden Nugget tavern. D.J. gave Roundtree $2 for his trouble. 'Crip' said he had shot up 2 bags & was on the 'nod,' the stuff was real dynamite. 'Crip' left the veh. We left the area.

This handwritten report was used by Trooper Irizarry on direct examination. Defense counsel objected to its use. She had demanded and been supplied with a copy of the official typewritten formal police report but had not been supplied with Irizarry's handwritten report. The formal report made no mention of an informer.

Defendant's attorney made several motions grounded on her inability to cross-examine Trooper Irizarry meaningfully because of the trial court's ruling. She further moved for a mistrial on the basis of surprise because the State had not indicated in answering interrogatories that there was an informer.

A motion for dismissal at the close of the State's case was denied. Defendant testified out of the presence of the jury concerning his continued lack of memory. The trial court found that defendant had no additional recollection of the facts since his testimony on the pretrial motion.

On Defendant's case the offer of Irizarry's handwritten notes was made to which an objection was sustained. Defendant did not testify in his own behalf.

The court was requested by defendant to charge on entrapment which request was denied. Following the jury verdict of guilty a motion for a new trial was made on various grounds which was denied.

I

Defendant argues that where there is such a delay between the occurrence of the offense charged and the arrest as to result in defendant's inability to recall what he had been doing during the time the alleged offense occurred, the only issue is whether the delay was unreasonable and the justification for the delay is irrelevant. Defendant argues that the four-month delay in question was unreasonable since it deprived him of a Bona fide defense and as such deprived him of due process of law under the circumstances relying primarily on Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965), and Woody v. United States, 125 U.S.App.D.C. 192, 370 F.2d 214 (1966).

Neither of these cases supports defendant's position that the four-month delay was unreasonable. Further, they do not support defendant's argument that justification for delay is irrelevant.

We agree generally with the approach of the trial court. State v. Rountree, Supra, 106 N.J.Super. at 150--151, 254 A.2d 337. However, in our opinion the problem presented is a denial of a defendant's right to due process under the Fourteenth Amendment. State v. Brennan, 115 N.J.Super. 400, 404, 279 A.2d 900 (App.Div.1971), should not be read to hold that in the face of a defendant's contention of deprivation of due process under the Fourteenth Amendment the controlling factor is the statute of limitations.

The trial court in its discussion places the burden on the State to establish beyond a reasonable doubt the validity of a claim of necessity for a pre-arrest delay once a defendant has made a showing of prejudice. 106 N.J.Super. at 150(6), 254 A.2d 337. This is erroneous.

After the decision of the trial court on the motion we decided State v. Rodriguez, 112 N.J.Super. 513, 271 A.2d 905 (App.Div.1970). We held there that the defendant had the burden of establishing both 'that (1) there was no legitimate reason for the delay and (2) he was prejudiced thereby.' 112 N.J.Super. at 515, 271 A.2d at 906. The ultimate burden of persuasion on both issues rests upon the defendant. The State, however, is obligated to go forward with the evidence showing that there was a legitimate reason for the delay once the defendant has shown prejudice.

There is substantial credible evidence to support the trial court's finding that defendant failed to show prejudice 'of sufficient magnitude or so offensive to his constitutional rights as to require dismissal of the charges.' 106 N.J.Super. at 155--156, 254 A.2d 337, 348. A mere claim of general inability to reconstruct the events of the period in question is insufficient to establish the requisite prejudice as a basis for a reversal or dismissal of the charge. Particular circumstances resulting from the delay other than a general inability to recollect or reconstruct events on the day of the alleged offense must be shown. United States v. Golden, 436 F.2d 941, 943 (8 Cir. 1971); United States v. Baker, 424 F.2d 968, 970 (4 Cir. 1970); United States v. Napue, 401 F.2d 107, 114 (7 Cir. 1968), cert. den. ...