Opinion
DOCKET NO. A-0591-13T2
04-06-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EBONEE R. WILLIAMS, a/k/a EBONY WILLIAMS, a/k/a FELTON N. WILLIAMS, a/k/a ABONEE WILLIAMS, a/k/a EBONEE ROSE WILLIAMS, a/k/a EEBONY WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Miriam Acevedo, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Leone and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-08-1194. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Miriam Acevedo, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by LEONE, J.A.D.
Defendant Ebonee R. Williams appeals from her conviction for drug offenses. Her principal challenge is to the ruling that her formal statement during plea negotiations could be used to impeach her if she testified. We hold that N.J.R.E. 410 generally prohibits the use of any statement made during plea negotiations to impeach the person making the statement, but that a defendant can waive that protection under appropriate circumstances. We affirm, subject to a remand for a hearing to determine if defendant waived that protection by agreeing her statement could be used against her at trial. We reject her other claims.
I.
On May 13, 2011, New Brunswick Police Department officers executed a search warrant at an apartment on Livingston Avenue. In the apartment, the officers found defendant. They located mail addressed to both defendant and co-defendant Raymond Davila bearing the apartment's address. In the kitchen stove, the officers found three "bricks" of heroin, each containing 150 bags. In a bedroom containing women's clothing and shoes, the officers found: seven "decks" of heroin on a television stand; two "bundles" containing twenty bags of heroin on top of the dresser; and one clear bag of about twelve grams of cocaine in a dresser drawer. Also in the bedroom, the officers found defendant's purse, which contained her identification, empty packets of heroin, and other drug paraphernalia. The officers also discovered a loaded shotgun under a mattress and a loaded handgun in the bedroom.
Defendant and Davila were charged with possession of the items found in the Livingston apartment. After a six-day trial, defendant and Davila were both convicted of conspiracy under N.J.S.A. 2C:5-2 to possess a controlled dangerous substance (CDS) with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1), (b)(3); possession of heroin, N.J.S.A. 2C:35-10(a)(1); and possession of cocaine, N.J.S.A. 2C:35-10(a)(1). Defendant was also convicted of possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3); and possession of heroin with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7. For these third-degree offenses, the trial court sentenced defendant to a total of three years in prison with one-and-one-half years of parole ineligibility.
Davila was acquitted of those crimes. Both defendant and Davila were acquitted of possession of cocaine with intent to distribute; possession of cocaine with intent to distribute within 1000 feet of a school; possession of firearms while in the course of committing a drug distribution offense; unlawful possession of a handgun; and possession of a sawed-off shotgun.
Defendant appeals from her judgment of conviction dated June 11, 2013, raising the following arguments:
POINT I - THE TRIAL COURT ERRONEOUSLY RULED THAT THE DEFENDANT'S STATEMENT - MADE AS PART OF A PLEA AGREEMENT THAT WAS WITHDRAWN BY THE STATE - WAS ADMISSIBLE TO IMPEACH HER CREDIBILITY.
POINT II - THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED.
A. THE DEFENDANT'S PRETRIAL MOTION TO DISMISS THE INDICTMENT SHOULD HAVE BEEN GRANTED.
B. THE MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT III - THE TRIAL COURT FAILED TO INSTRUCT THE JURORS ON ALL THE ESSENTIAL ELEMENTS OF THE OFFENSE OF POSSESSION OF CDS WITH THE INTENT TO DISTRIBUTE.
POINT IV - THE DISCLOSURE OF THE IDENTITY OF THE CONFIDENTIAL INFORMANT WAS ESSENTIAL FOR A FAIR DETERMINATION OF THE ISSUES.
POINT V - THE STATE FAILED TO ESTABLISH THE CHAIN OF CUSTODY OF THE EVIDENCE.
POINT VI - THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ISSUANCE OF A SEARCH WARRANT WITHOUT PROBABLE CAUSE.
II.
The first issue concerns whether defendant's formal statement to the Middlesex County Prosecutor's Office (MCPO) could be used to impeach her if she took the stand at trial. We must hew to our standard of review. "'[C]onsiderable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion.'" State v. Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted). "But evidentiary rulings that undermine confidence in the validity of the conviction or misapply the law are subject to reversal." State v. Weaver, 219 N.J. 131, 149 (2014).
Defendant applied pre-indictment for admission to Drug Court. She was tentatively accepted on the condition that she give a truthful, formal statement about the involvement of her co-defendants Davila, Justin Jenkins, and Llamar Jenkins. Defendant voluntarily appeared with her attorney for a videotaped interview. Defendant signed a form advising her of her Miranda rights. The MCPO investigator also advised defendant orally of her Miranda rights, which defendant said she understood. In particular, defendant said she understood that "if you decide to make any statement, you must understand that it may later be used against you in the event of a trial."
Because they share a last name, we will refer to Justin and Llamar by their first names. The indictment charged Justin and Llamar with the same crimes as defendant and Davila. Llamar was also charged with resisting arrest and obstructing justice during the search. They separately pled guilty to conspiracy to distribute CDS.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
During the interview, the investigator and defendant's counsel both questioned defendant. Defendant stated as follows. She resided in the Livingston Avenue apartment with Davila, the father of her son. Her nephew Llamar visited the apartment, and her nephew Justin stayed in the apartment most of the time. She and Davila were staying in the living room, and Justin was the only person living in the bedroom prior to the search. It was Justin who had access to the bedroom, kept his possessions in the bedroom, and used the dresser. The guns belonged to Justin, and the drugs belonged to Justin, Llamar, or Davila, all of whom were selling drugs.
In the interview, defendant initially said she was unaware of any drugs in the apartment or drug sales from the apartment. Later in the interview, she stated that, as a heroin addict, she knew there was heroin in the apartment for her use, which she got from Davila. She also said that Justin and Llamar were involved in the distribution of drugs from the apartment, and that she knew Justin had drugs in the apartment, but that she was just a "user" and had no involvement in the drug distribution.
The trial prosecutor determined that defendant's formal statement did not sufficiently implicate her co-defendants, so the State's "drug court plea offer was withdrawn." Later, the prosecutor gave notice that if defendant took the witness stand, he would move to use "her attempted guilty plea against her for impeachment purposes." The trial court ruled the State could not use the formal statement affirmatively in its case-in-chief, but could use it for impeachment if defendant took the stand and testified contrary to her formal statement.
Defendant argues this ruling conflicted with N.J.R.E. 410. N.J.R.E. 410 provides:
Except as otherwise provided in this rule, evidence of a plea of guilty which was later withdrawn, of any statement made in the course of that plea proceeding, and of any statement made during plea negotiations when either no guilty plea resulted or a guilty plea was later withdrawn, is not admissible in any civil or criminal proceeding against the person who made the plea or statement or who was the subject of the plea negotiations. However, such a statement is admissible (1) in any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement should in fairness be considered contemporaneously with it, or (2) in a criminal proceeding for perjury, false statement, or other similar offense, if the statement was made by the defendant under oath, on the record, and in the presence of counsel.
[N. J.R.E. 410 (emphasis added).]
On its face, N.J.R.E. 410 precludes the admission of evidence of a statement made during plea negotiations, absent exceptions not applicable here. See State v. Williams, 184 N.J. 432, 449 (2005) (noting that "most statements made during criminal plea negotiations" under N.J.R.E. 410 "are generally inadmissible in subsequent proceedings").
The drafters of N.J.R.E. 410 stated that it "generally follows Fed. R. Evid. 410" (eff. 1980) [hereinafter the Federal Rule]. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, 1991 Supreme Court Committee Comment on N.J.R.E. 410 (2015) [hereinafter Committee Comment]. The pertinent language in N.J.R.E. 410 is essentially the same as in the Federal Rule. By following the Federal Rule, the drafters "expand[ed] the exclusion to include not only an accused's offer to plead guilty but also any statements made during plea negotiations," and "effectively supersede[d]" our holding in State v. Boyle, 198 N.J. Super. 64 (App. Div. 1984). Committee Comment, supra; accord State v. Brabham, 413 N.J. Super. 196, 207-08 (App. Div.), certif. denied, 203 N.J. 440 (2010); State v. Malik-Ismail, 292 N.J. Super. 590, 595 (App. Div. 1996). In Boyle, we refused to follow the Federal Rule and instead held that the former New Jersey rule did "not prohibit introduction of the accused's voluntary statements made during the plea negotiation process." Boyle, supra, 198 N.J. Super. at 68-73 (interpreting Evid. R. 52(2)).
In 1991, the Federal Rule provided, in pertinent part:
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: . . . (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.The Federal Rule still provides that "evidence of the following is not admissible[:] . . . (4) a statement made during plea discussions[.]" Fed. R. Evid. 410 (eff. 2011).
[Fed. R. Evid. 410 (eff. 1980) (emphasis added).]
N.J.R.E. 410 adopted the Federal Rule's rationale that "for 'plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him.'" Brabham, supra, 413 N.J. Super. at 208 (quoting Boyle, supra, 198 N.J. Super. at 69 (quoting United States v. Herman, 544 F.2d 791, 796 (5th Cir. 1977))). We have applied N.J.R.E. 410 to bar admission "in the State's main case" of statements made by defendants during plea negotiations. Malik-Ismail, supra, 292 N.J. Super. at 595; accord Brabham, supra, 413 N.J. Super. at 200, 209-10. No New Jersey case has resolved whether such statements can be used to impeach a defendant's trial testimony. Cf. State v. Mustaro, 411 N.J. Super. 91, 98 n.3 (App. Div. 2009).
In deciding that issue, we consider case law under "the source rule of N.J.R.E. 410," namely the Federal Rule. Malik-Ismail, supra, 292 N.J. Super. at 597. The Courts of Appeals had long ruled that "[t]he legislative history of these Rules is quite clear that plea negotiation statements are not admissible to impeach a defendant." United States v. Mezzanatto, 998 F.2d 1452, 1454 (9th Cir. 1993), rev'd on other grounds, 513 U.S. 196, 115 S. Ct. 797, 130 L. Ed. 2d 697 (1995); accord, e.g., United States v. Acosta-Ballardo, 8 F.3d 1532, 1535 (10th Cir. 1993); United States v. Lawson, 683 F.2d 688, 692 (2d Cir. 1982). The United States Supreme Court, addressing both the Federal Rule and Fed. R. Crim. P. 11(e)(6) in Mezzanatto, "certainly agree[d] that the Rules give a defendant the right not to be impeached by statements made during plea discussions." United States v. Mezzanatto, 513 U.S. 196, 200 n.2, 115 S. Ct. 797, 801 n.2, 130 L. Ed. 2d 697, 703 n.2 (1995).
Other States have followed the federal courts and "have declined to fashion a general impeachment exception" to their versions of the Federal Rule. See State v. Amidon, 967 A.2d 1126, 1134-35 (Vt. 2008) (listing cases). Given that N.J.R.E. 410 "was patterned after Fed. R. Evid. 410," we are similarly persuaded by the "history of the federal rule." State v. Rodriguez, 280 N.J. Super. 590, 597 (App. Div. 1995). Such a reading accords with the above-stated rationale of both N.J.R.E. 410 and the Federal Rule, and "return[s] the parties to the position they were in at the beginning of the" plea negotiations. State v. Pennington, 154 N.J. 344, 362 (1998) (quoting State v. Barboza, 115 N.J. 415, 427 (1989)). Thus, we hold that N.J.R.E. 410 generally prohibits the use of any statement made during plea negotiations to impeach the person making the statement.
However, the United States Supreme Court in Mezzanatto went on to consider whether a defendant could waive the protections of the Federal Rule. We were careful in Brabham, supra, to note that "[n]either officer testified that defendant was told that what he said would be used against him." 413 N.J. Super. at 204. "Without any evidence that defendant was informed that the officers and the assistant prosecutor attended the meeting to collect incriminating statements to be used against defendant at trial, the facts . . . required exclusion of the statements pursuant to N.J.R.E. 410." Id. at 208. We thus consider the resolution of that issue under the Federal Rule.
The United States Supreme Court in Mezzanatto, supra, ruled that the protections of the Federal Rule may be waived by a defendant. 513 U.S. at 197, 115 S. Ct. at 800, 130 L. Ed. 2d at 702. The Court stressed that "[a] criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution," as well as the protection of statutes and procedural rules. Id. at 201-02, 115 S. Ct. at 801-02, 130 L. Ed. 2d at 704. This "presumption of waivability" also applies to evidentiary rules, and the parties' "agreements to waive evidentiary rules are generally enforceable even over a party's subsequent objections." Id. at 202, 115 S. Ct. at 802, 130 L. Ed. 2d at 704-05. The Court concluded that, "like other evidentiary privileges, [the Federal Rule] may be waived or varied at the defendant's request." Id. at 205, 115 S. Ct. at 803-04, 130 L. Ed. 2d at 707.
The Court in Mezzanatto found that waiving the Federal Rule's protections did not impair the reliability of the fact-finding process. Indeed, "[t]he admission of plea statements for impeachment purposes enhances the truth-seeking function of trials and will result in more accurate verdicts." Id. at 204, 115 S. Ct. at 803, 130 L. Ed. 2d at 706.
The Court also found "no basis for concluding that waiver will interfere with the Rules' goal of encouraging plea bargaining." Id. at 207, 115 S. Ct. at 804, 130 L. Ed. 2d at 707. "[I]f the prosecutor is interested in 'buying' the reliability assurance that accompanies a waiver agreement, then precluding waiver can only stifle the market for plea bargains." Id. at 208, 115 S. Ct. at 805, 130 L. Ed. 2d at 708. "A sounder way to encourage settlement is to permit the interested parties to enter into knowing and voluntary negotiations without any arbitrary limits on their bargaining chips." Ibid.
Accordingly, the United States Supreme Court in Mezzanatto held that, "absent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of the plea-statement Rules is valid and enforceable." Id. at 210, 115 S. Ct. at 806, 130 L. Ed. 2d at 710.
Most State courts which have addressed the issue have found the reasoning of Mezzanatto persuasive in interpreting their own versions of the Federal Rule, and have ruled that defendants can waive their rules' protections. See, e.g., State v. Campoy, 207 P.3d 792, 803 (Ariz. Ct. App. 2009); People v. Stevens, 610 N.W.2d 881, 885-88 (Mich.), cert. denied, 531 U.S. 902, 121 S. Ct. 240, 148 L. Ed. 2d 172 (2000); State v. Blom, 682 N.W.2d 578, 617 (Minn. 2004); Commonwealth v. Widmer, 120 A.3d 1023, 1027-28 (Pa. Super. Ct. 2015); State v. Wills, 700 S.E.2d 266, 268-69 (S.C. Ct. App. 2010), aff'd, 762 S.E.2d 3, 4 (S.C. 2014).
Cf. State v. Pitt, 891 A.2d 312, 326 (Md. 2006) (distinguishing Mezzanatto because in Pitt the defendant's statements were used in the prosecution's case-in-chief, and noting that applying Mezzanatto "would undermine" prior Maryland case law holding that admissibility turns on whether it was the defendant or the State that "rescinded or breached the plea agreement").
We believe Mezzanatto's persuasive reasoning is equally applicable to N.J.R.E. 410. Accordingly, we hold that a defendant can waive N.J.R.E. 410's protection against the use of any statement made during plea negotiations to impeach the person making the statement, and that such a waiver is valid and enforceable absent an affirmative indication that the waiver was entered into unknowingly or involuntarily.
Defendant also cites Rule 3:9-2, which provides: "If a plea of guilty is refused, no admission made by the defendant shall be admissible in evidence against the defendant at trial." However, Rule 3:9-2 protects "admissions made in a prior plea proceeding." Barboza, supra, 115 N.J. at 423. It is N.J.R.E. 410 which protects out-of-court "statement[s] made during plea negotiations." Ibid.; see Pressler & Verniero, Current N.J. Court Rules, comment 1.5.1 on R. 3:9-2 (2016). To the extent that Rule 3:9-2 applies to such out-of-court statements, the reasoning of Mezzanatto would be equally applicable. See Mezzanatto, supra, 513 U.S. at 200-06, 115 S. Ct. at 801-04, 130 L. Ed. 2d at 703-07 (applying its reasoning to Fed. R. Crim. P. 11(e)(6)).
The Court in Mezzanatto, supra, found waiver where the prosecutor informed the defendant "that any statements he made during the meeting could be used to impeach any contradictory testimony he might give at trial if the case proceeded that far," and the defendant after conferring with counsel "agreed to proceed under the prosecutor's terms." 513 U.S. at 198, 115 S. Ct. at 800, 130 L. Ed. 2d at 702. Other courts have held that when defendants are warned during plea negotiations that anything they say may be used against them at trial, and the defendants, with that understanding, proceed to make statements, there is a waiver under Mezzanatto. See, e.g., United States v. Sylvester, 583 F.3d 285, 287-94 (5th Cir. 2009), cert. denied, 559 U.S. 916, 130 S. Ct. 1313, 175 L. Ed. 2d 1096 (2010); Campoy, supra, 207 P.3d at 796, 802; Stevens, supra, 610 N.W.2d at 883, 888; Widmer, supra, 120 A.3d at 1025, 1027-28; Wills, supra, 700 S.E.2d at 267, 269, aff'd, 762 S.E.2d at 4. We agree that the giving of such a warning can give rise to a waiver if the defendant, with that understanding, proceeds to give a statement.
These cases also find that a waiver after such a warning enables the prosecution to use the defendant's statements in its case-in-chief. Ibid.; see also United States v. Mitchell, 633 F.3d 997, 1004-06 (10th Cir. 2011); United States v. Hardwick, 544 F.3d 565, 569-70 (3d Cir. 2008). We need not reach that question, as the State requested and the trial court granted only use of the statement for impeachment. See Mezzanatto, supra, 513 U.S. at 211, 115 S. Ct. at 806, 130 L. Ed. 2d at 710 (Ginsburg, J., concurring) ("As the Government has not sought such a waiver, we do not here explore this question.").
As in Mezzanatto, such a warning may be sufficient even if it does not explicitly mention Rule 410. See United States v. Young, 223 F.3d 905, 911 (8th Cir. 2000), cert. denied, 531 U.S. 1168, 121 S. Ct. 1133, 148 L. Ed. 2d 999 (2001); Stevens, supra, 610 N.W.2d at 888; cf. State v. Hinton, 42 S.W.3d 113, 124-26 (Tenn. Crim. App. 2000) (finding Miranda warnings were insufficient because they did not mention Tennessee's version of the Federal Rule). However, a written proffer agreement explicitly waiving N.J.R.E. 410 may enhance the clarity and enforceability of a waiver. See State v. Diorio, 422 N.J. Super. 445, 460 (App. Div. 2011) (quoting a proffer agreement in which the defendant "knowingly and voluntarily waives any right [the defendant] has pursuant to N.J.R.E. 410"), aff'd in part, rev'd in part on other grounds, 216 N.J. 598, 609-10 n.4 (2014).
Defendant makes three arguments why such impeachment should not be allowed. First, she contends that allowing impeachment will discourage plea bargaining. However, "[p]lea bargaining has become firmly institutionalized in this State." State v. Means, 191 N.J. 610, 618 (2007) (quoting State v. Taylor, 80 N.J. 353, 360-61 (1979)). As in the federal system, "the vast majority of all cases are resolved through plea agreements with the State." State v. Munroe, 210 N.J. 429, 447-48 (2012). As explained in Mezzanatto, supra, "there is no reason to believe that allowing negotiation as to waiver of the plea-statement Rules will bring plea bargaining to a grinding halt; it may well have the opposite effect." 513 U.S. at 209, 115 S. Ct. at 805, 130 L. Ed. 2d at 708-09. Indeed, plea bargaining is flourishing in the federal courts since Mezzanatto. See Lafler v. Cooper, ___ U.S. ___, ___, 132 S. Ct. 1376, 1388, 182 L. Ed. 2d 398, 411 (2012) ("Ninety-seven percent of federal convictions . . . are the result of guilty pleas").
Moreover, waiver can occur only if both parties agree. If the parties have goals that can be "gained only by preserving the inadmissibility of plea statements, they will agree to leave intact the exclusionary provisions of the plea-statement Rules." Mezzanatto, supra, 513 U.S. at 208, 115 S. Ct. at 805, 130 L. Ed. 2d at 708.
Second, defendant argues such impeachment is unnecessary and should not be allowed because N.J.R.E. 410 makes a defendant's statements during plea negotiations admissible "in a criminal proceeding for perjury." However, the Court in Mezzanatto, supra, allowed waiver and impeachment even though the Federal Rule similarly made such statements admissible "in a criminal proceeding for perjury." 513 U.S. at 200 n.1, 115 S. Ct. at 801 n.1, 130 L. Ed. 2d at 703 n.1 (quoting Fed. R. Evid. 410 (eff. 1980)). The Court stressed that using such statements for impeachment preserved the integrity of the verdict and the trial process. Id. at 204, 115 S. Ct. at 803, 130 L. Ed. 2d at 70. If "the defendant has made a false statement, either to the prosecutor during the plea discussion or to the jury at trial[,] making the jury aware of the inconsistency will tend to increase the reliability of the verdict without risking institutional harm to the [trial] courts." Id. at 205, 115 S. Ct. at 803, 130 L. Ed. 2d at 706; see also State v. Hawkins, 316 N.J. Super. 74, 82 (App. Div. 1998) (finding it reasonable to relax N.J.R.E. 410 at sentencing "to rebut a contrary factual contention expressly or inferentially raised" by the defendant), certif. denied, 162 N.J. 489 (1999).
Moreover, allowing such impeachment is supported by the rulings of both our Supreme Court and the United States Supreme Court permitting the use of even constitutionally-inadmissible statements to impeach defendants' trial testimony. The United States Supreme Court in Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), and its progeny, has long authorized such impeachment in order "'to prevent perjury and to assure the integrity of the trial process.'" Kansas v. Ventris, 556 U.S. 586, 593, 129 S. Ct. 1841, 1846, 173 L. Ed. 2d 801, 808 (2009) (citation omitted). Our Supreme Court has repeatedly agreed. See, e.g., State v. Francis, 191 N.J. 571, 594-95 (2007); State v. Harris, 181 N.J. 391, 439-40 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Burris, 145 N.J. 509, 521-25 (1996); State v. Irving, 114 N.J. 427, 438-39 (1989); State v. Miller, 67 N.J. 229, 232-34 (1975). Those cases emphasized that "'inadmissibility would pervert the constitutional right into a right to falsify free from the embarrassment of impeachment evidence from the defendant's own mouth.'" Burris, supra, 145 N.J. at 523 (quoting Oregon v. Hass, 420 U.S. 714, 723, 95 S. Ct. 1215, 1223, 43 L. Ed. 2d 570, 578 (1975)).
The trial court relied on the Harris line of cases, including Burris and Ventris, to create an impeachment exception to N.J.R.E. 410. As stated above, however, N.J.R.E. 410 does not permit a defendant's statements during plea negotiations to be used for impeachment, unless the defendant waives the protections of the rule. See also State v. Boone, 66 N.J. 38, 46-49 (1974) (declining to extend Harris and rejecting "the view that withdrawn pleas are admissible to impeach the credibility of the defendant who elects to testify at his trial"). Thus, we cannot affirm based on the grounds adopted by the trial court.
It is well-established that a reviewing court can affirm a decision on different grounds than those authorities offered by the court being reviewed. See, e.g., Shim v. Rutgers, 191 N.J. 374, 378 (2007); State v. Nellom, 178 N.J. 192, 196 (2003); Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968); see State v. McLaughlin, 205 N.J. 185, 194-95 (2011). As stated above, waiver under Mezzanatto provides an alternate basis for affirmance.
Here, we believe it is appropriate to remand to allow the trial court and the parties to address in the first instance whether defendant waived the protection against having her formal statement used for impeachment, as provided by N.J.R.E. 410. See generally State v. Puryear, 441 N.J. Super. 280, 297, 299 (App. Div. 2015) ("the question of whether Miranda rights are knowingly, intelligently and voluntarily waived is a fact-specific analysis," and appellate courts defer to trial courts' factual findings). Thus, we remand for a hearing conducted "in light of the principles to which we have adverted." Shim, supra, 191 N.J. at 392.
On remand, the trial court shall consider if defendant made a knowing and voluntary waiver of the protection against having her formal statement used against her at trial for impeachment. The court shall consider whether defendant had the benefit of advice of counsel, as in Mezzanatto. If the court determines that defendant did not waive that protection, it shall consider whether its earlier ruling that defendant could be impeached with her formal statement was harmless under R. 2:10-2.
Here, we are not called upon to address a waiver agreement entered into without the advice of counsel.
Defendant claims she did not testify after that ruling because her formal statement was highly prejudicial. Our Supreme Court has recognized "the difficulty of characterizing as harmless a trial court's error in ruling that the defendant's prior convictions may be used for impeachment purposes" when that ruling causes a defendant not to testify. State v. Whitehead, 104 N.J. 353, 359 (1986). Our Court noted that "the United States Supreme Court has stated that almost any error would result in automatic reversal because 'the appellate court could not logically term "harmless" an error that presumptively kept the defendant from testifying.'" Ibid. (quoting Luce v. United States, 469 U.S. 38, 42, 105 S. Ct. 460, 463-64, 83 L. Ed. 2d 443, 448 (1984)); see also State v. Singleton, 308 N.J. Super. 407, 413-14 (App. Div. 1998) (finding plain error). The trial court should apply the same principles here.
III.
The motion judge properly denied defendant's motion to dismiss the indictment, which claimed the evidence presented to the grand jury was not sufficient or credible. Moreover, "the petit jury's subsequent guilty verdict means not only that there was probable cause to believe that [defendant was] guilty as charged, but also that [she was] in fact guilty as charged beyond a reasonable doubt." United States v. Mechanik, 475 U.S. 66, 70, 106 S. Ct. 938, 941-42, 89 L. Ed. 2d 50, 56 (1986). Thus, any error was harmless. Ibid.; see State v. Cook, 330 N.J. Super. 395, 411 (App. Div. 2000); see also State v. Simon, 421 N.J. Super. 547, 551 (App. Div. 2011).
IV.
The trial court properly denied defendant's motion for acquittal made after the guilty verdict. "[V]iewing the State's evidence in its entirety, . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Palacio, 111 N.J. 543, 550 (1988) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)). Defendant's presence in the apartment at the time the drugs were found, the mail addressed to her there, and the presence in the bedroom of the women's clothes, shoes, and her purse containing her identification and drug paraphernalia, evidenced that she resided there and had possession of the several quantities of drugs found in the bedroom and elsewhere. See State v. Spivey, 179 N.J. 229, 237 (2004 ); State v. Brown, 80 N.J. 587, 594-97 (1979). Even if others also had access to the apartment or bedroom, "possession can be jointly shared by several persons." Brown, supra, 80 N.J. at 597.
Defendant's argument that the State failed to establish the chain of custody of the drugs, because it did not call an officer who made a typographical error on a form that was corrected, lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).
V.
Defendant argues that the trial court sua sponte should have defined "attempt" because the court mentioned the word when it was defining the crimes of conspiracy to distribute CDS and possession of CDS. However, the word "attempt" is included in the model charge for conspiracy and is part of the definition of "distribute." When the court mistakenly read that definition while defining the crime of possession of a CDS, the court immediately said "I take that back," made sure the attorneys were "crossing [it] out," correctly instructed the jury on the third element, and told the jury it would have "the corrected copy" of the instructions.
One element of conspiracy is "[t]hat the defendant agreed to aid another person or persons in the planning or commission of a crime or of an attempt or solicitation to commit such crime." Model Jury Charge (Criminal), "Conspiracy (N.J.S.A. 2C:5-2)" (2010). Moreover, "'distribute' means the transfer, actual, constructive or attempted, from one person to another of a [CDS]." Model Jury Charge (Criminal), "Possession Of A Controlled Dangerous Substance With Intent To Distribute (N.J.S.A. 2C:35-5)" (2008); see N.J.S.A. 2C:35-2 (defining "distribute" and "deliver"). --------
In any event, defendant cannot show plain error. See State v. Kornberger, 419 N.J. Super. 295, 300-05 (App. Div.), certif. denied, 208 N.J. 368 (2011). Nothing in the indictment or the evidence suggested defendant "attempted" distribution. Rather, the issues were defendant's possession and intent to distribute the drugs found in the apartment. Even if "the judge's failure to charge the jury [on] attempt was in error, this error was not sufficient to lead the jury to a result it would not have otherwise reached." See State v. Belliard, 415 N.J. Super. 51, 74 (App. Div. 2010), certif. denied, 205 N.J. 81 (2011).
VI.
Defendant challenges the motion judge's denial of the motion to suppress the evidence seized pursuant to the search warrant. The warrant affidavit included the following. Citizen complaints reported that several males were dealing drugs at an address on Seaman Street, that some of the dealers lived there, and that "Binky" would drive there in a Lexus to deliver and sell drugs. A confidential informant confirmed that information, identified Davila as one of the dealers, and made controlled drug buys from "Binky," Davila, and other males at the Seaman Street address. Davila's employer listed Davila at the Seaman Street address.
Defendant argues the police had probable cause only regarding the Seaman Street address, but she ignores the rest of the affidavit. The affiant also attested that the informant made a controlled drug buy from Davila at the Livingston Avenue apartment, and said Davila now lived there with an unidentified female. The apartment's PSE&G bill bore Davila's name and the Livingston Avenue address. The affiant's surveillance showed that suspected drug users were let into the Livingston Avenue address by Davila and left after a short period, and that Binky made short visits there in the Lexus. Thus, there was "evidence to support the finding made by the warrant-issuing judge" of probable cause to search the Livingston Avenue apartment, as well as the Lexus and the Seaman Street address. State v. Chippero, 201 N.J. 14, 20-21 (2009).
VII.
In support of his motion to suppress, Davila's counsel sought to reveal the identity of the confidential informant, arguing it was necessary to show the falsity of the informant's information implicating Davila for purposes of the suppression motion. Defendant's counsel simply joined in that argument, which the motion judge denied. Now, defendant claims that the informant should have been revealed to show the truth of the informant's information implicating Davila for purposes of trial. "This claim was not properly raised in the trial court nor passed upon there, and, accordingly, must be denied here." Rugendorf v. United States, 376 U.S. 528, 534, 84 S. Ct. 825, 829, 11 L. Ed. 2d 887, 892 (1964); see also State v. Robinson, 200 N.J. 1, 18-22 (2009). In any event, defendant fails to show plain error.
"Protecting the identity of informants is a privilege afforded the State in recognition of its compelling need to protect its sources of information concerning criminal activity." State v. Brown, 170 N.J. 138, 149 (2000) (citing Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 627, 1 L. Ed. 2d 639, 644 (1957)); see generally State v. Milligan, 71 N.J. 373, 381-83 (1976). The privilege precludes disclosure or evidence of a confidential informant's identity unless "disclosure of his identity is essential to assure a fair determination of the issues." N.J.R.E. 516.
Defendant cannot make that showing because the confidential informant was only mentioned in the warrant affidavit, and "did not participate in the search that uncovered the gun[s] and drugs on which the prosecution was based." Spivey, supra, 179 N.J. at 241. Neither defendant nor Davila was charged with any of the sales in which the informant took part. An "informer's actual participation in the crime for which defendant was prosecuted" is important to justify disclosure. Milligan, supra, 71 N.J. at 386. "[A]bsent a strong showing of need, courts generally deny disclosure where the informer plays only a marginal role, such as providing information or 'tips' to the police or participating in the preliminary stage of a criminal investigation." Id. at 387.
Defendant now hypothesizes that the informant's testimony would have shown Davila alone possessed the drugs in the apartment and had the intent to distribute. In Brown, supra, the defendant sought to "introduce[e] the informant's statements that he or she had made two controlled marijuana purchases from" the defendant's roommate to refute the roommate's denial of knowledge of the drugs found in the apartment and show that the roommate was the one selling drugs. 170 N.J. at 146. Our Supreme Court held that "[t]he trial court properly ruled that the confidential police informant's identity should not be revealed," and the exclusion of the informant's statements was harmless. Id. at 148, 154.
Here, it is unclear whether the informant could testify about whether the drugs in the apartment were possessed solely by Davila, so defendant's hypothesis "is too speculative to warrant disclosure." See Milligan, supra, 71 N.J. at 391. Defendant also cannot show testimony from the informant was essential, as she was able to argue third-party guilt based on Justin's testimony that Davila and he sold drugs but defendant was not involved, and Llamar's testimony that only he possessed and knew about the drugs in the apartment, not defendant or Davila. In any event, the motion judge did not abuse its discretion in denying disclosure of the confidential informant's identity. See Milligan, supra, 71 N.J. at 384.
Accordingly, we affirm the judgment of conviction, subject to a remand for a hearing on whether defendant waived her right to keep her formal statement from being used for impeachment. We reject defendant's other arguments. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION