(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued April 30, 2001 -- Decided December 3, 2001
COLEMAN, J., writing for a majority of the Court.
The issues addressed by the Court in this appeal are: whether a confidential informant's statements to the
police should have been admitted into evidence at trial under the declarations-against-interest exception to the
hearsay rule; and whether Violet Brown was entitled to a severed trial.
On July 27, 1994, a confidential police informant told Officer Maurice Crosby, of the Trenton Police
Department's Vice Enforcement Unit, that Sharon Spence and Violet Tomlinson (also known as Violet Brown)
were selling large quantities of marijuana from their second floor apartment at 154 Hamilton Avenue. The
informant cooperated with police to make two controlled buys of marijuana from Spence. On August 4, 1994,
Officer Crosby obtained a search warrant for Spence and Tomlinson's apartment. In his affidavit, Officer Crosby
stated that the confidential informant was reliable, noting that the informant had provided information in the past
that led to fifteen arrests.
The search warrant was executed on August 5, 1994, in Brown's and Spence's presence. Officers
discovered cocaine in the kitchen freezer. Marijuana was found in Brown's second-floor bedroom, and on top and
in Spence's chest of drawers in her third-floor bedroom. In addition, a film canister with several partially smoked
marijuana cigarettes was found on the headboard of the bed in Brown's bedroom. Other drug paraphernalia was
found in Brown's bedroom as well. Brown and Spence were indicted on seven counts of drug offenses relating to
the drugs discovered in their apartment. Pre-trial motions to disclose the identity of the informant and to sever the
trial were denied.
Brown testified at trial and denied involvement with, or knowledge of, any drugs found in the apartment.
She testified that although her bedroom was located on the second floor, she worked as a housekeeper and
babysitter in Princeton and was rarely at the apartment other than to sleep there two or three nights per week.
Brown claimed that she did not keep anything in the dresser located in her bedroom, she did not use the kitchen, she
never went up to the third floor, there was no lock on her bedroom door, and she did not know whether others had
access to her bedroom when she was not there.
Spence testified at trial that some of the marijuana found in her apartment was for her personal use but that
the other drugs found were placed in her apartment by unknown third parties. Spence claimed that her apartment
had a fire escape that was connected to other homes and that she had observed drug activity in the neighborhood
around her apartment.
During trial, Brown sought to impeach Spence's credibility by introducing the informant's statements that
he or she had made two controlled buys of marijuana from Spence. The trial court determined that those statements
were inadmissible hearsay because they did not satisfy any of the exceptions to the hearsay rule.
The jury convicted Brown on four marijuana charges; she was acquitted of the three charges relating to
possession of cocaine. Spence was convicted on all seven counts. Brown was sentenced to three years in prison
with a three-year period of parole ineligibility. The Appellate Division affirmed Brown's judgment of conviction.
On certification granted by the Supreme Court, Brown argues that she should have been allowed to cross-
examine Officer Crosby about his conversations with the confidential informant because some of the informant's
statements fall under the “statement against interest” exception to the hearsay rule. Brown sought to place before
the jury the fact that, although the informant's statements to Officer Crosby regarding drug activity at the apartment
implicated both Brown and Spence, the two statements regarding the controlled drug buys indicated that only
Spence had sold drugs to the informant. Brown contends that those two statements exculpated her from any
involvement in the drug sales.
HELD: A confidential informant's statements to police regarding two controlled drug buys from the co-defendant
that are used by law enforcement to obtain a search warrant are not admissible at trial under the
declaration-against-interest exception to the hearsay rule. Also, the trial court did not abuse its discretion
in denying the motion to sever this trial.
1. Any statements made by the informant, if admitted, could only be introduced through Officer Crosby's
testimony regarding the search warrant affidavit. Those statements do not meet the requirements of the declaration-
against-interest exception. Because the informant was working on behalf of and under the supervision of the
Trenton police, the informant's statements concerning what occurred during the two drug buys were not against his
or her penal interest. The informant's past working relationship with Officer Crosby demonstrates that the
informant did not believe that participation in the controlled buys could have led to his or her arrest. (Pp. 7-13)
2. The Court rejects Brown's assertion that the informant's statements are admissible as declarations against his or
her social interest. The informant's statements that he or she purchased marijuana from Spence in the context of a
police investigation does not place his or her societal interest at risk. The informant was not made an object of
hatred, ridicule, or social disapproval. (Pp. 13-16)
3. The Court disagrees with the dissent's view that the informant's statements to the police that he or she purchased
drugs only from Spence were admissible as adoptive admissions by the State. Even if the Court construed these
statements as adoptive admissions, the failure of the trial court to allow their introduction was harmless error.
Although an informant's hearsay statements can be used to determine whether probable cause exists in the Fourth
Amendment context, such statements are generally inadmissible in a trial to determine guilt or innocence. Here, the
affidavit was submitted during the investigative stage; Brown was under no criminal charges. The point in time at
which the affidavit was submitted justifiably precludes application of the adoptive admissions exception. (Pp. 18-
25)
4. The dissent's approach would have a negative effect on our system of obtaining search warrants. When applying
for a warrant, police officers vouch only for the informant's reliability, not for the truth of the statements he or she
made. Police officers would be placed in an impossible position if the Court required that every fact alleged in an
application for a warrant be true, such that every statement became an adoptive admission for the purpose of trial.
(Pp. 25-26)
5. The disposition of a motion for severance is left to the sound discretion of the trial judge. Nonetheless, interests
of judicial economy cannot override a defendant's right to a fair trial. Here, Brown and Spence did not urge
antagonistic, mutually exclusive, or irreconcilable defenses. The trial court did not abuse its discretion in denying
severance. The jury convicted Brown and Spence of different crimes; thus, it is apparent that the jury was able to
consider separately Brown's and Spence's guilt. (Pp. 26-30)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE STEIN, dissenting, in which JUSTICES LONG AND ZAZZALI join, is of the view that the
Court's ruling not only deprives Violet Brown of a fair trial, but also ignores the fundamental fairness and due
process interests that are vindicated by application of the adoptive admission exception in this context. For the
Court to elevate the State's insignificant interest in the exclusion of the informant's obviously reliable and
unchallenged statement over Brown's clear and substantial interest in its admission turns due process on its head.
CHIEF JUSTICE PORITZ and JUSTICES VERNIERO and LaVECCHIA join in JUSTICE
COLEMAN's opinion. JUSTICE STEIN filed a separate dissenting opinion in which JUSTICES LONG and
ZAZZALI join.
SUPREME COURT OF NEW JERSEY
A-
23 September Term 2000
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VIOLET BROWN,
Defendant-Appellant.
Argued April 30, 2001 -- Decided December 3, 2001
On certification to the Superior Court,
Appellate Division.
Kevin G. Byrnes, Designated Counsel, argued
the cause for appellant (Peter A. Garcia,
Acting Public Defender, attorney).
Dorothy A. Hersh, Assistant Prosecutor,
argued the cause for respondent (Daniel G.
Giaquinto, Mercer County Prosecutor,
attorney).
Jafer Aftab, Deputy Attorney General, argued
the cause for amicus curiae, Attorney
General of New Jersey (John J. Farmer, Jr.,
Attorney General, attorney).
The opinion of the Court was delivered by
COLEMAN, J.
Defendant appeals her conviction, under N.J.S.A. 2C:35-7, of
third-degree possession of marijuana with intent to distribute in
a school zone. This appeal raises two issues: whether a
confidential informant's statements to the police should have
been admitted as declarations against interest, and whether
defendant was entitled to a severed trial based on Rule 3:15-2.
The trial court ruled against defendant on both issues and the
Appellate Division affirmed. We agree and affirm.
On July 27, 1994, a confidential police informant told Officer Maurice Crosby, of the Trenton Police Department's Vice Enforcement Unit, that “Sharon Spence and Violet Tomlinson are selling large quantities of Marijuana from their Second Floor Apartment at 154 Hamilton Avenue.” During the week of July 24, 1994 the informant cooperated with the Trenton police to carry out the first of two controlled buys of marijuana from Spence. On August 1, 1994 the informant advised Officer Crosby that “Sharon Spence and Violet Tomlinson are continuing to sell Marijuana from their Second Floor Apartment at 154 Hamilton Avenue.” In addition, the informant reported that “the two (2) women have started selling Crack Cocaine and powder Cocaine from the residence.” The informant made a second controlled buy of marijuana from Spence during the week of July 31, 1994.
On August 4, 1994 Officer Crosby obtained a search warrant for Spence and Tomlinson's apartment. In his affidavit for the search warrant, Crosby stated that the confidential informant was reliable, noting that the informant had provided information in the past that led to fifteen arrests. When the search warrant was executed on August 5, 1994 at about 5:48 a.m., defendant and co-defendant Spence were present in their respective second- and third-floor bedrooms. The kitchen was located on the second floor. The following quantities of CDS were recovered: 18.97 grams of cocaine in the freezer section of the refrigerator; 3.41 grams of marijuana in the kitchen pantry; 100.48 grams of marijuana in defendant's second-floor bedroom; 1.55 grams of marijuana on top of a chest of drawers in Spence's third-floor bedroom; and 1.89 grams of marijuana from the chest of drawers in Spence's third-floor bedroom. In addition, a film canister with several partially smoked marijuana cigarettes was found on the headboard of the bed in defendant's bedroom, as well as a pack of rolling papers, a cigarette lighter, a plastic sandwich bag, and some loose vegetation located in the lid of a box elsewhere in defendant's bedroom. In addition to the CDS, the police also found a passport issued to Violet Melrose Tomlinson and a Social Security card in the name of Violet Melrose Brown in a purse found in the second-floor bedroom. Several other personal items belonging to Brown were also found in her bedroom. A digital scale, without batteries or a back, was found on the floor outside of Spence's third-floor bedroom. A box of razor blades and numerous plastic ziplock bags were seized from under the sink in the bathroom on the second floor.
Defendant and Spence were indicted on seven counts of drug offenses related to all of the CDS, under an accomplice liability theory. Pre-trial motions to disclose the identity of the confidential informant and to sever the trial were denied.
Defendant testified at trial and denied involvement with, or knowledge of, any of the drugs found in the apartment. She testified that although her bedroom was located on the second floor, she worked as a housekeeper and babysitter in Princeton and was rarely at the apartment other than to sleep two or three nights per week. Defendant claimed that she kept nothing in the chest of drawers located in her second-floor bedroom and that, in fact, she had never touched that chest of drawers. She also explained that she did not use the kitchen, including the refrigerator, because she ate her meals at her job and returned home late at night. Defendant testified that she never ventured up to the third floor. She stated that there was no lock on her bedroom door and that she did not know whether others had access to her room because she was rarely at the apartment.See footnote 11
Spence testified that at least some of the 3.44 grams of marijuana recovered from her third-floor bedroom was possessed by her for her personal use. She denied, however, knowledge of the marijuana or cocaine found in other locations in the apartment. She explained that the digital scale found on the third floor was inoperable, but that she kept it because her young children liked to play with it. In an attempt to justify the presence of other CDS found in the apartment, she suggested that unknown third persons placed it there. She testified that the apartment had a fire escape that was connected to several other row houses and that she had observed drug activity in the neighborhood around her apartment.
During the trial, defendant sought to impeach Spence's credibility by introducing the informant's statements that he or she had made two controlled marijuana purchases from Spence. The trial court determined that the informant's statements were inadmissible hearsay because they did not satisfy any of the exceptions to the hearsay rule.
The jury convicted defendant of the four marijuana charges: fourth-degree possession of marijuana; third-degree possession of marijuana with intent to distribute; third-degree possession of marijuana with intent to distribute in a school zone; and fourth- degree maintaining a premises for persons using controlled dangerous substances. Defendant was acquitted of all three charges related to the cocaine found in the refrigerator. The jury convicted Spence on all seven counts. After proper merger of offenses, defendant was sentenced to a custodial term of three years to be served without parole eligibility. The Appellate Division affirmed defendant's judgment of conviction in an unpublished opinion. We granted defendant's petition for certification, 165 N.J. 604 (2000), limited to the issues of the admissibility of testimony regarding the informant's statements to the police and the denial of the severance motion.
Defendant argues that she should have been allowed to cross- examine the testifying police officer about his conversations with the confidential informant because some of the informant's statements fall under the “statement against interest” exception to hearsay. Defendant sought to place before the jury the fact that, although the informant's statements to Officer Crosby regarding the drug activity at the apartment implicated both defendant and Spence, the two statements regarding the controlled drug buys indicated that only Spence had sold drugs to the informant. Defendant contended that those two statements exculpated her from any involvement in the drug sales. As noted previously, the trial court disallowed the statements, concluding that they were inadmissible hearsay.
In her appeal to the Appellate Division and before us, defendant contends that the informant's statements were contrary to the informant's penal and social interests because they were admissions that the informant had purchased marijuana. The Appellate Division rejected defendant's argument, explaining:
The informant was not subjecting himself to criminal liability at the time of the statement because he was an informant working for the government. The “test is whether the statement so far exposes the declarant to criminal liability that 'but for [its] truth [it] would not have been made.'” State v. Gomez, 246 N.J. Super. 209, 215 (App. Div. 1991) (citations omitted). The informant knew at the time he made the statement that it was not against his interest to do so. Furthermore, as the rule requires, the statement is admissible against an accused only if the accused was the declarant. Thus, this exception is inapplicable because the declarant is not the accused.
As a preliminary matter, a trial court's evidentiary rulings
are “entitled to deference absent a showing of an abuse of
discretion, i.e., there has been a clear error of judgment.”
State v. Marrero,
148 N.J. 469, 484 (1997). Under that standard,
an appellate court should not substitute its own judgment for
that of the trial court, unless “the trial court's ruling 'was so
wide of the mark that a manifest denial of justice resulted.'”
Ibid. (quoting State v. Kelly,
97 N.J. 178, 216 (1984)).
We first address the State's assertion that the informant's
statements are not relevant. The fact that defendant and Spence
were not charged based on the drugs sold by Spence to the
informant is not dispositive of the relevancy question. Relevant
evidence is defined as “evidence having a tendency in reason to
prove or disprove any fact of consequence to the determination of
the action.” N.J.R.E. 401. That Spence was the person who twice
sold marijuana to the informant is relevant to show that the CDS
recovered during the execution of the search warrant probably
belonged to Spence and that she probably was a drug dealer. But
that evidence does not prove that Brown was not in sole or joint
possession of the marijuana recovered from her bedroom; nor does
it prove that she was not involved in selling drugs. That
evidence can, however, support her claim that she was unaware of
the presence of CDS in her bedroom. Nevertheless, relevance is
not an exception to the hearsay rule.
The trial court properly ruled that the confidential police
informant's identity should not be revealed. See N.J.R.E. 516;
State v. Florez,
134 N.J. 570, 578-79 (1994). Thus, any
statements made by the informant, if admitted at all, would be
introduced through Officer Crosby's testimony as reflected in his
affidavit submitted in support of his application for the search
warrant. Those two statements are hearsay because each “is a
statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.” N.J.R.E. 801(c); see State v. Smith,
155 N.J. 83, 95 (1998) (stating that “the information contained
in an informant's tip is hearsay.”). Thus, the statements are
not admissible except as provided by the New Jersey Rules of
Evidence. Defendant asserts that the two statements by the
confidential informant were declarations against the informant's
penal and social interests. Under our rules of evidence, a
declaration against interest is a
statement which was at the time of its making
so far contrary to the declarant's pecuniary,
proprietary, or social interest, or so far
tended to subject declarant to civil or
criminal liability, or to render invalid
declarant's claim against another, that a
reasonable person in declarant's position
would not have made the statement unless the
person believed it to be true. Such a
statement is admissible against an accused in
a criminal action only if the accused was the
declarant.
[N.J.R.E. 803(c)(25).]
That exception “is based on the theory that, by human
nature, individuals will neither assert, concede, nor admit to
facts that would affect them unfavorably.” State v. White,
158 N.J. 230, 238 (1999). Thus, “statements that so disserve the
declarant are deemed inherently trustworthy and reliable.” Ibid.
Consequently, “[t]he law of evidence recognizes that a statement
in which a party confesses to having committed a crime subjects
the declarant to criminal liability, and therefore constitutes a
statement that is against interest.” Ibid. “Whether a statement
is in fact against [the defendant's] interest must be determined
from the circumstances of each case.” Williamson v. United
States,
512 U.S. 594, 601,
114 S. Ct. 2431, 2436,
129 L. Ed.2d 476, (1994). Further, the statement must have been against
the declarant's interest at the time it was made. State v.
Norman,
151 N.J. 5, 31 (1997).
We are persuaded that the informant's statements do not meet
the requirements of N.J.R.E. 803(c)(25). The informant involved
here was a police informant rather than a citizen informant. As
such, he or she was an investigating agent of the police. It has
long been recognized “that the government may employ undercover
tactics to infiltrate criminal ranks and may rely on paid
informants in order to locate and arrest criminals.” United
States v. McQuin,
612 F.2d 1193, 1195-96 (9th Cir.), cert.
denied,
445 U.S. 955,
100 S. Ct. 1608,
63 L. Ed.2d 791 (1980);
accord State v. Oliver,
50 N.J. 39, 42 (1967). 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. Roviaro v. United
States,
353 U.S. 53, 59,
77 S. Ct. 623, 627,
1 L. Ed.2d 639, 644
(1957). The two controlled drug buys made by the informant in
this case were negotiated and supervised by law enforcement
authorities, with the informant participating as an agent of the
State. See State v. Florez, supra, 134 N.J. at 582. Because he
or she was working on behalf of the Trenton police at the time he
or she made the buys, the informant's statements concerning what
occurred during those buys were not against his or her penal
interest. The informant's statements about the identity of
Spence as the seller were the expected result of his or her role
as a controlled buyer, thereby essentially conferring immunity
upon the informant.
Defendant maintains that the informant did not know at the
time he or she made the statements that it was not against his or
her interest to do so. She states that one cannot trust law
enforcement not to file charges against an individual who aids a
police investigation. Those contentions, even assuming they
might be true for the general public, do not apply to the
informant in this case as a matter of fact. In his affidavit,
Officer Crosby informed the judge who issued the search warrant
that the informant was reliable as he or she had “provided
information in the past which has resulted in the arrests of
fifteen (15) persons for Dangerous Drug Offenses, one (1) of whom
has been convicted and the remainder are pending court action.”
Thus, the informant's past working relationship with Officer
Crosby negates defendant's implication that the informant's
participation in the controlled buys could have led to his or her
arrest. Notwithstanding the informant's investigatory role, he
or she probably would not have assisted the State in its drug
investigation by making two controlled buys unless the informant
knew that he or she was immune from prosecution and that his or
her anonymity would be preserved. Moreover, Officer Crosby and
the Trenton police would not want to run the risk of losing the
informant's cooperation by needlessly charging drug offenses
against an informant who acted as their agent when the informant
engaged in a controlled buy. Therefore, the informant's
statements are not admissible under the declaration-against-
interest exception to the hearsay rule.
Defendant's reliance on State v. White, supra, 158 N.J. at
230, to support her assertion that the informant's statements are
admissible under N.J.R.E. 803(c)(25) because they inculpate the
declarant while also exculpating her is misplaced. In White, the
declarant had given a statement to the police that implicated
himself and exculpated the defendant in a robbery. Only a
portion of that statement was admitted, including the declarant's
bragging to the defendant about his involvement in the robbery.
Id. at 245. Such an admission directly inculpates the declarant.
It also indirectly exculpates the defendant; if the declarant
bragged to the defendant about the robbery, “one may infer that
[the defendant] did not participate in the crime.” Ibid.
Here, unlike in White, the informant's statements are not
admissible as a declaration against interest. Within the context
of his or her investigatory role, the informant's statements in
the present case are not self-inculpatory. Unlike those
exculpatory statements in White that strengthened the
incriminatory nature of the declarant's statements, the
informant's statements here neither inculpated the informant nor
exculpated defendant. In other words, the informant's interest
was not at risk.
We also reject defendant's assertion that even if the informant's statement are not declarations against the informant's penal interest, that they are nonetheless declarations against his or her social interest and admissible under N.J.R.E. 803(c)(25). The current rule does not define “social interest.” The previous version had provided, however, that “[a] statement is admissible if at the time it was made it . . . created such a risk of making [the declarant] an object of hatred, ridicule or social disapproval in the community that a reasonable man in his position would not have made the statement unless he believed it to be true.” Evid. R. 63(10).
To support her argument, defendant relies on State v. West, 145 N.J. Super. 226 (App. Div. 1976), certif. denied, 73 N.J. 67 (1977), in which the Appellate Division found that an informant's alleged statements, that he had falsely accused the defendant of a drug offense to harm him, were admissible as a statement against interest. If truly made by the informant, those statements “can be expected to make of him an 'object of hatred, ridicule or social disapproval.'” Id. at 233. Further, those statements exposed him to being indicted for “the giving of false information to a law enforcement officer or agency.” Ibid.
Here, however, the informant's statements that he or she purchased marijuana from co-defendant Spence in the context of a police investigation does not place his or her social interest at risk. Viewed in the context of society's war against drug crimes, the informant's admission that he or she participated in two controlled drug buys does not make him or her “the enemy” as asserted by defendant. Because the police had used the informant on a number of occasions, “no reason [existed] why [he or she] should be treated any differently [from] a police officer who works undercover in drug trafficking as an agent of the government.” State v. Florez, 261 N.J. Super. 12, 26 (App. Div. 1992), aff'd, 134 N.J. 570, 582 (1994). Simply because the informant was acting as an agent of the State when he or she participated in the two marijuana buys, there is no risk of making him or her an object of hatred, ridicule, or social disapproval.
Having concluded that the informant's statements are not admissible under either of the foregoing exceptions to the hearsay rule, we emphasize that New Jersey has expressly declined to adopt the federal residual hearsay exception, Fed. R. Evid. 803(24), which allows “a general hearsay exception for statements not covered by a specific hearsay rule.” Biunno, Current N.J. Rules of Evidence, 1991 Supreme Court Committee Comment on N.J.R.E. 803(c)(24) [Not Adopted] (2000); State v. Bunyan, 154 N.J. 261, 268 (1998). The federal rule covers statements that possess “equivalent circumstantial guarantees of trustworthiness,” provided that those statements meet various criteria enunciated in the rule. Ibid. (internal quotation marks omitted). The 1991 Supreme Court Committee stated that “[t]he adoption of Fed. R. Evid. 803(24), construable as a general relaxation rule, would represent a radical departure from New Jersey practice.” Ibid. It is therefore clear that the confidential informant's statements must fit within one of our hearsay exceptions if it is to be considered as evidence at trial.
To satisfy the relevancy requirement for admitting the hearsay statements of the informant, N.J.R.E. 402, defendant argues that the informant's statements that he or she made two marijuana purchases from Spence exculpate her. However, the Court must consider both the exculpatory and inculpatory evidence from the informant when deciding whether the hearsay rule has mechanistically defeated defendant's ability to present a defense. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed.2d 297, (1973). Also, under the doctrines of “opening the door,” “curative admissibility” and “completeness,” defendant would have been precluded “from successfully excluding from the prosecution's case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant's own advantage, without allowing the prosecution to place the evidence in its proper context.” State v. James, 144 N.J. 538, 554 (1996).
The dissent posits that, by including the informant's statements in an affidavit submitted to a court in connection with a request for a search warrant, the State manifested its belief in the truth of those statements. Based on that reasoning, the dissent concludes that it was plain error for the trial court to have excluded the informant's statements that he or she purchased drugs only from Spence because those statements were admissible under N.J.R.E. 803(b)(2), as adoptive admissions by the State. Ante at ___, (slip op. at 2-3, 13-35). To support its position, the dissent relies on federal court of appeals decisions and one Appellate Division decision. United States v. Warren, 42 F.3d 647 (D.C. Cir. 1994); United States v. Kattar, 840 F.2d 118 (1st Cir. 1988); United States v. Morgan, 581 F.2d 933 (D.C. Cir. 1978); State v. Dreher, 302 N.J. Super. 408 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed.2d 723 (1998). We hold that the informant's statements to the police that he or she purchased drugs only from Spence were not admissible under N.J.R.E. 803(b)(2) as adoptive admissions by the State. Moreover, even if the Court agreed that in some limited instances statements used by the police to obtain search warrants could be construed as adoptive admissions, the failure of the trial court to permit defendant to introduce the informant's statements in this case was harmless error. R. 2:10-2.
Under the adoptive admissions exception, a statement offered against a party[-opponent] which is . . . a statement whose content the party has adopted by word or conduct or in whose truth the party has manifested belief” is admissible as an exception to the hearsay rule. N.J.R.E. 803(b)(2). This Court has never decided whether the State's use of an informant's statement in an affidavit to support probable cause for a search warrant constitutes an adoptive admission under N.J.R.E. 803(b)(2). Our research has not uncovered any other state court decision resolving this precise issue. Our research further reveals that of the federal circuit courts, only the Court of Appeals for District of Columbia has applied the adoptive admissions exception to hearsay statements contained in search warrant affidavits. Morgan, supra, 581 F. 2d at 936-38. The Second Circuit, meanwhile, has expressly declined to address whether the adoptive admission exception applies to statements made in affidavits for warrants. United States v. Ramirez, 894 F.2d 565, 570-71 (2d Cir. 1990) (noting that “[t]he information contained in the affidavits was gathered at a preliminary stage in the investigation, and hence subject to change as the investigation progressed”).
Other than the Second Circuit and the District of Columbia Circuit, no other circuit court has even mentioned the issue of whether statements made in affidavits for warrants are admissible as adoptive admissions of the government. The dissent cites Warren, supra, 42 F.3d 647, and Kattar, supra, 840 F.2d 118, in support of its position. However, neither of those cases discusses adoptive admissions in the context of warrant applications. Warren deals with hearsay statements that were included in a sworn statement of facts attached to a criminal complaint. Warren, supra, 42 F. 3d at 655. Unlike an application for a search warrant, which is part of the investigatory stage, a criminal complaint is one of the first steps in a criminal prosecution. Infra at , (slip op. at 6-8). Kattar deals with a sentencing memorandum submitted to a court during a criminal prosecution and a brief prepared by the government as part of a civil suit. Kattar, supra, 840 F. 2d at 126, 130-31. Neither of those documents is analogous to an application for a search warrant, which is made during a pre-charge investigation. It is also noteworthy that Warren, Kattar, and Morgan were decided after the federal residual hearsay exception, Fed. R. Evid. 807, was adopted, and those decisions incorporate the federal rules' flexible approach to trustworthy evidence.
In the broader context of applying the party-opponent admissions exception to the State generally, the Second Circuit has determined that “the inconsistent out-of-court statements of a government agent made in the course of the exercise of his authority and within the scope of that authority, which statements would be admissions binding upon an agent's principal in civil cases, are not so admissible [in criminal cases] as 'evidence of the fact.'” United States v. Santos, 372 F.2d 177, 180 (2d Cir. 1967) (discussing historical inability of government agents to bind the sovereign). The Fifth Circuit has declined to decide whether “informants who assist law enforcement officers in detecting crime . . . should be deemed agents of the United States for purposes of the rule.” United States v. Pena, 527 F.2d 1356, 1361 (5th Cir.), cert. denied, 426 U.S. 949, 96 S. Ct. 3168, 49 L. Ed.2d 1185 (1976). In the context of a statement made by an Internal Revenue Agent, the Sixth Circuit has specifically held that “[w]hile evidence of contradictory statements may be used to impeach a government agent, they may not be introduced to prove the truth of the statements offered.” United States v. Pandilidis, 524 F.2d 644 (6th Cir. 1975), cert. denied, 424 U.S. 933, 96 S. Ct. 1146, 47 L. Ed.2d 340 (1976). On the issue of whether statements made by government employees or agents, such as informants, during the investigative stage of a potential criminal proceeding should be considered binding on the State for purposes of the “party-opponent” requirement of the adoptive admissions rule, the Seventh Circuit has observed:
Prior to adoption of the Federal Rules of Evidence, admissions by government employees in criminal cases were viewed as outside the admissions exception to the hearsay rule. United States v. Powers, 467 F.2d 1089, 1095 (7th Cir. 1972). Because the agents of the Government are supposedly disinterested in the outcome of a trial and are traditionally unable to bind the sovereign (United States v. Santos, 372 F.2d 177, 180 (2d Cir. 1967)), their statements seem less the product of the adversary process and hence less appropriately described as admissions of a party. Nothing in the Federal Rules of Evidence suggests an intention to alter the traditional rule and defendant has cited no truly contrary case indicating such a trend.
[United States v. Kampiles,
609 F.2d 1233,
1246 (7th Cir. 1979), cert. denied,
446 U.S. 954,
100 S. Ct. 2923,
64 L. Ed.2d 812 (1980)
(finding that a government employee's
statement did not meet any of the hearsay
exceptions).]
At least one major treatise has expressed the same concern. 2
McCormick on Evidence § 259 (Strong ed., 5th ed. 1999) (noting
that “statements by agents of the government are often held
inadmissible against the government” when the statements are made
“by agents at the investigative level”). That view is consistent
with this Court's admonition nearly half a century ago that extra
caution must be exercised when deciding whether a hearsay
statement should be admissible as evidence under the adoptive
admissions exception. Greenberg v. Stanley,
30 N.J. 485, 498
(1959); see also State v. Briggs,
279 N.J. Super. 555, 562 (App.
Div.), certif. denied,
141 N.J. 99 (1995).
Affidavits containing the statements of informants are
submitted to a court in an attempt to satisfy the probable cause
requirements of the Fourth Amendment and of Article I, paragraph
7 of the New Jersey Constitution. Because both of those
constitutional provisions speak in terms of reasonableness,
consideration of whether hearsay statements contained in the
affidavit should be admissible in the subsequent jury trial of
guilt or innocence “calls for a continuing reconciliation of
competing values.” State v. Davis,
50 N.J. 16, 22 (1967), cert.
denied,
389 U.S. 1054,
88 S. Ct. 805,
19 L. Ed.2d 852 (1968).
In this case, the affidavit containing the informant's hearsay
statements was made to secure a search warrant. Defendant's
indictment is based on the evidence obtained during the execution
of that search warrant. The validity of that affidavit and
whether probable cause was established are traditionally
contested within preliminary proceedings in advance of trial.
See R. 3:5-7.
Although an informant's hearsay statements can be used to
determine whether probable cause exists in the Fourth Amendment
context, such statements are hearsay and generally inadmissible
in a trial to determine guilt or innocence. United States v.
Matlock,
415 U.S. 164, 173-75,
94 S. Ct. 988, 994-95,
39 L. Ed.2d 242, 252 (1974); Jones v. United States,
362 U.S. 257, 270-71,
80 S. Ct. 725, 735-36,
4 L. Ed.2d 697, 707 (1960), overruled on
other grounds by United States v. Salvucci,
448 U.S. 83,
100 S.
Ct. 2547,
65 L. Ed.2d 619 (1980); Draper v. United States,
358 U.S. 307, 311-12,
79 S. Ct. 329, 332,
3 L. Ed.2d 327, 331
(1959); Brinegar v. United States,
338 U.S. 160, 172-73,
69 S.
Ct. 1302, 1309,
93 L. Ed. 1879, (1949); State v. Ebron,
61 N.J. 207, 212 (1972); State v. Kasabucki,
52 N.J. 110, 116-17
(1968). One of the problems with Dreher is its failure to focus
properly on the point in time in a criminal proceeding at which
the affidavit for a search warrant is submitted to a judicial
officer. Although the affidavit there was submitted while the
murder investigation was ongoing and one-and-a-half years before
the defendant was indicted, Dreher, supra, 302 N.J. Super. at
503-04, the court concluded that “when the government, by
submitting the statements to a judicial officer for the issuance
of a search warrant, manifests its belief in the truth of such
statements, . . . the State should not be allowed to hide behind
their arguable inaccuracy and unreliability at another stage of
the prosecution.” Id. at 508. In deciding whether the State has
adopted the statements contained in an affidavit submitted to a
court in connection with an application for a search warrant, one
important factor to consider is timing, i.e. was the affidavit
submitted during the investigatory stage or the prosecutorial
stage. The Dreher court seemingly concluded that this
distinction was immaterial.
A criminal prosecution is generally commenced with the
filing of formal charges, which initiate adversarial judicial
criminal proceedings. United States v. Gouveia,
467 U.S. 180,
187,
104 S. Ct. 2292, 2297,
81 L. Ed.2d 146, 153 (1984); Kirby
v. Illinois,
406 U.S. 682, 689-90,
92 S. Ct. 1877, 1882,
32 L.
Ed.2d 411, 417-18 (1972). Arguably, the investigative period
does not end until an indictment has been filed. When that
occurs, “the State represents that it has sufficient evidence to
establish a prima facie case. Once [an] indictment is returned,
the State is committed to prosecute the defendant.” State v.
Sanchez,
129 N.J. 261, 276 (1992). Prior to the commencement of
formal prosecution, “'the State's investigative effort . . . is
at a preliminary stage, . . . the police may still be attempting
. . . to solve the crime[,] . . . [and] the State's decision to
prosecute has not solidified.'” State v. P.Z.,
152 N.J. 86, 110
(1997) (quoting State v. Tucker,
137 N.J. 259, 290 (1994), cert.
denied,
513 U.S. 1090,
115 S. Ct. 751,
130 L. Ed.2d 651 (1995)).
Here, the affidavit for the warrant was submitted to a judge
during the investigatory stage, before any formal charges were
filed. “The fact that the investigation had focused on
[defendant and Spence] did not convert this into a post-charging
proceeding.” State v. Reyes,
237 N.J. Super. 250, 264 (App. Div.
1989). Defendant was not charged with any offense until the
drugs were seized pursuant to the warrant. Consequently, the
point in time at which the affidavit was submitted could
justifiably preclude application of the adoptive admissions
exception.
The dissent's approach would have a deleterious effect on
our system of obtaining search warrants. As it stands, when a
police officer applies to a court for a warrant, he or she does
not vouch for the truth of an informant's statements; rather, he
or she attests to the reliability of the informant in the past
and asks the judge, as a neutral magistrate, to determine whether
he or she has established probable cause and may further pursue
the investigation. Police officers would be placed in a nearly
impossible position were we to require that every fact alleged in
an application for a warrant was true, such that every statement
became an adoptive admission for the purposes of trial.
Defendant contends that she was denied a fair trial because the trial court denied her motion to sever her trial from that of co-defendant Spence. Defendant maintains that in a joint trial, her strategy to place the informant's statements before the jury was antagonistic to Spence's because the informant's statements would exculpate defendant while inculpating Spence. One of the reasons for denying the severance motion was the court's finding that the informant's statements were inadmissible hearsay. In affirming the denial of the severance motion, the Appellate Division concluded that “[t]he defenses of . . . defendant [and Spence] were not so antagonistic to warrant severance” and that “[n]either defendant made statements implicating the other and each was subject to cross-examination thoroughly.” The Appellate Division also rejected defendant's claims that the evidence against her was de minimis and that she was subjected to the danger of guilt by association. In particular, the court pointed out that the jury was capable of differentiating between defendant and Spence, as evidenced by the fact that it convicted Spence of the cocaine and marijuana charges, but convicted defendant of only the marijuana charges. Two or more defendants may be tried jointly “if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” R. 3:7-7. There is a “general preference to try co-defendants jointly,” State v. Robinson, 253 N.J. Super. 346, 364 (App. Div.), certif. denied, 130 N.J. 6 (1992), particularly when “much of the same evidence is needed to prosecute each defendant.” State v. Brown, 118 N.J. 595, 605 (1990). That preference is guided by a need for judicial efficiency, to accommodate witnesses and victims, to avoid inconsistent verdicts, and to facilitate a more accurate assessment of relative culpability. State v. Sanchez, 143 N.J. 273, 282 (1996). The “disposition of a motion for a severance . . . is addressed to the sound discretion of the trial court.” State v. Scioscia, 200 N.J. Super. 28, 42 (App. Div.), certif. denied, 101 N.J. 277 (1985).
Nonetheless, “the interest in judicial economy cannot override a defendant's right to a fair trial.” Sanchez, supra, 143 N.J. at 282. Thus, relief from prejudicial joinder is permitted by Rule 3:15-2, which provides:
If for any other reason it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.
[R. 3:15-2(b).]
When considering a motion to sever, a court must balance the
potential prejudice to a defendant against the interest in
judicial economy. Brown, supra, 118 N.J. at 605; State v.
Coleman,
46 N.J. 16, 24 (1965), cert. denied,
383 U.S. 950,
86 S.
Ct. 1210,
16 L. Ed.2d 212 (1966). “The test for granting
severance . . . is a rigorous one.” Brown, supra, 118 N.J. at
605-06. Separate trials are necessary when co-defendants'
“defenses are antagonistic and mutually exclusive or
irreconcilable.” Id. at 605. However, “[i]f the jury can return
a verdict against one or both defendants by believing neither, or
believing portions of both, or, indeed, believing both
completely, the defenses are not mutually exclusive.” Id. at
606. Here, defendant's claim of prejudice is primarily based on
the exclusion of the informant's statements. Defendant reasons
that the trial court's decision to exclude the informant's
statements prejudiced her because that decision protected
Spence's right to confrontation at the expense of her right to
present a defense.
We are satisfied that defendant and Spence did not urge
antagonistic defenses. Defendant denied knowledge of or
involvement with any of the drugs found in the apartment. Spence
admitted that the marijuana found in her bedroom was hers, but
denied knowledge of any of the other drugs found in the
apartment. Spence suggested that third parties had put the other
drugs in the apartment. Not only are those defenses not
antagonistic, but Spence's admission that some of the marijuana
found in the apartment belonged to her might have benefitted
defendant. Nor are their defenses mutually exclusive or
irreconcilable. The jury could have believed that they were both
lying, and convicted them of all crimes charged; believed aspects
of both of their stories, and fashioned a suitable verdict; or
believed both of them completely, and acquitted them. In
addition, because drugs were found in both defendant's and
Spence's bedrooms, and in common areas of the apartment, the
evidence against both was more than de minimis in terms of joint
or sole possession of the CDS.
The determination whether to grant a severance was addressed
to the trial court's guided discretion. That decision was not a
close call in this case. The sole purpose for seeking a
severance was to facilitate defendant's attempt to place before
the jury the informant's two statements. Defendant's contention
that in denying the severance motion, the trial court “chose to
enforce [Spence's] constitutional right to confront and cross-
examine witnesses at the expense of [her] right to present a
defense” is mistaken. The reason that the trial court refused to
admit the informant's statements into evidence is because those
statements are inadmissible hearsay that do not satisfy any of
our hearsay exceptions. We agree that if the Court concluded
that the informant's statements were admissible as adoptive
admissions and that excluding them was plain error, a severance
would have been necessary to protect Spence's rights to a fair
trial.
Finally, there was no greater concern about guilt by
association in this case than that which exists in all joint
trials in which the jury is instructed to deliberate separately
concerning each defendant on each count. The danger of guilt by
association “that inheres in all joint trials is not in itself
sufficient to justify a severance, provided that by proper
instructions to the jury, the separate status of co-defendants
can be preserved.” Brown, supra, 118 N.J. at 605. In this case,
we know that the jury was able to consider the co-defendant's
guilt separately from defendant because it convicted them of
different crimes. We hold that defendant's severance motion was
properly denied.
CHIEF JUSTICE PORITZ and JUSTICES VERNIERO and LaVECCHIA join in JUSTICE COLEMAN's opinion. JUSTICE STEIN filed a separate dissenting opinion in which JUSTICES LONG and ZAZZALI join.
SUPREME COURT OF NEW JERSEY
A- 23 September Term 2000
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VIOLET BROWN,
Defendant-Appellant.
STEIN, J., dissenting.
In this otherwise routine drug prosecution, the Court's
disposition, regrettably, warrants close scrutiny. Overruling
State v. Dreher,
302 N.J. Super. 408, 508 (App. Div. 1997), and
rejecting the most persuasive federal precedents and legal
commentary on the question, the Court concludes that the
statement by a police informant of established reliability that
he twice had purchased marijuana from the co-defendant Spence
(but never from defendant Brown) would have been inadmissible as
hearsay in a severed prosecution of defendant. The Court reaches
that conclusion notwithstanding the adoptive admissions'
exception to hearsay contained in Rule 803(b)(2) of the New
Jersey Rules of Evidence, and notwithstanding the State's express
reliance on the informant's statements in support of a successful
search warrant application leading to the discovery of cocaine
and marijuana in the apartment rented by the co-defendant and in
which defendant occupied one room.
The Court's regressive holding deprives defendant of a new
and severed trial in which she should have been permitted to
prove, unencumbered by a hearsay objection from co-defendant
Spence, that the trusted informant on whom the police relied to
obtain a search warrant told the investigating officer that he
twice purchased marijuana from Spence but never from Brown. The
State's contention that the informant's statement _ even in a
severed trial _ constitutes hearsay ignores the analytical
rationale for the exclusion of party admissions from the hearsay
rule: the lack of an opportunity to cross-examine the declarant
is irrelevant when it is the party's own declaration (or adoptive
admission) that is offered, obviating the party's need to cross-
examine itself but affording full opportunity for the party to
testify and explain or qualify its prior assertion. Thus, the
jury should have been allowed to hear evidence of the informant's
statement, in which event it might have entertained a reasonable
doubt about whether Brown possessed the marijuana in the second
floor dresser.
In my view, the Court's ruling not only deprives this
defendant of a fair trial, but also ignores the fundamental
fairness and due process interests that are vindicated by
application of the adoptive admission's exception in this
context. For the Court to elevate the State's insignificant
interest in the exclusion of the informant's obviously reliable
and unchallenged statement over defendant's clear and substantial
interest in its admission turns due process on its head. I
respectfully dissent.
I
A
The correct resolution of this appeal turns on a single
issue: whether the lower courts properly ruled against defendant
Violet Brown's motion for severance on the assumption that, even
in a separate trial, an informant's statement that he had twice
purchased marijuana from co-defendant Sharon Spence, relied on by
police to obtain a search warrant for Spence's apartment in which
Brown rented a room, would have been excluded as inadmissible
hearsay.
Prior to trial, the motion judge grappled with the hearsay
issue, implying that if the informant's statements were
admissible in a separate trial the severance motion would be
granted:
The [c]ourt actually reviewed the case
law that had been cited, and it is certainly
an interesting argument put forth by Mr.
Obler, however, I have searched high and low
to, frankly, understand how the statement
could be admissible through the officer and
get around the hearsay aspect of the
statement, and I find it falls under no
exception to the hearsay rule, and
essentially, for those reasons, I have it
actually more spelled out in a memoranda,
which I will provide to Counsel, that I have
denied the application to sever, that that
statement could not be utilized in any way
through the cross-examination of the officer,
and consequently, there would be no need to
sever as that statement would not be allowed,
at least by this [c]ourt, to be testified to
by the affiant officer.
The Appellate Division dismissed the issue, without
analysis, in a single sentence: “Whether there were separate
trials does not change the inadmissability of the statement by
the informant to the officer.” The Court's disposition adopts
the conclusion of the lower courts, observing that the
“informant's statements . . . are inadmissible hearsay that do
not satisfy any of our hearsay exceptions.” Ante at ___ (slip op.
at 30).
The lower courts conclusion on that issue, however, was
clearly in error. In a severed trial, Brown would have been able
to cross-examine Officer Crosby, the State's primary witness and
the officer that applied for the search warrant for Spence's
apartment, about the informant's statements concerning controlled
buys of marijuana from Spence. Those statements, because of
their inherent reliability, would not be excluded as hearsay in a
severed trial when offered only against the State because they
constitute adoptive admissions pursuant to Rule 803(b)(2) of the
New Jersey Rules of Evidence (Evidence Rules or Rules of
Evidence). See Biunno, Current N.J. Rules of Evidence, comment 2
on N.J.R.E. 803(b)(2)(2001) (“A statement is admissible against a
party under the terms of these subsections if that party, with
knowledge of the contents of the statement, has by words or other
conduct[] manifested his adoption of it or his belief in its
truth.”). See also State v. Dreher,
302 N.J. Super. 408, 508
(App. Div. 1997) (“If the statements [to a judicial officer for
the issuance of a search warrant] are reliable and accurate
enough for one stage of the prosecution, the State should not be
allowed to hide behind their arguable inaccuracy and
unreliability at another stage of the prosecution.”)
Because the informant's statements clearly would have tended
to shift responsibility for possession of the marijuana found in
the apartment from Brown to Spence those statements were
significantly exculpatory of Brown, and the denial of her motion
for severance constituted reversible error.
B
The evidence adduced at the joint trial of Spence and Brown
demonstrates the importance and, for Brown, the exculpatory
quality of the informant's statements to Officer Crosby. The
Court's opinion, ante at ___-___ (slip op. at 3-5), accurately
describes the location of the drugs discovered when the search
warrant was executed, as well as portions of the defendants'
testimony concerning their denial of ownership of the drugs:
When the search warrant was executed on
August 5, 1994 at about 5:48 a.m., defendant
and co-defendant Spence were present in their
respective second- and third-floor bedrooms.
The kitchen was located on the second floor.
The following quantities of CDS were
recovered: 18.97 grams of cocaine in the
freezer section of the refrigerator; 3.41
grams of marijuana in the kitchen pantry;
100.48 grams of marijuana in defendant's
second-floor bedroom; 1.55 grams of marijuana
on top of a chest of drawers in Spence's
third-floor bedroom; and 1.89 grams of
marijuana from the chest of drawers in
Spence's third-floor bedroom. In addition, a
film canister with several partially smoked
marijuana cigarettes was found on the
headboard of the bed in defendant's bedroom,
as well as a pack of rolling papers, a
cigarette lighter, a plastic sandwich bag,
and some loose vegetation located in the lid
of a box elsewhere in defendant's bedroom.
In addition to the CDS, the police also found
a passport issued to Violet Melrose Tomlinson
and a Social Security card in the name of
Violet Melrose Brown in a purse found in the
second-floor bedroom. Several other personal
items belonging to Brown were also found in
her bedroom. A digital scale, without
batteries or a back, was found on the floor
outside of Spence's third-floor bedroom. A
box of razor blades and numerous plastic
ziplock bags were seized from under the sink
in the bathroom on the second floor.
. . . .
Defendant testified at trial and denied involvement with, or knowledge of, any of the drugs found in the apartment. She testified that although her bedroom was located on the second floor, she worked as a housekeeper and babysitter in Princeton and was rarely at the apartment other than to sleep two or three nights per wee