State v. Thomas L. Scott (077434) (Monmouth and Statewide)

• Court: Supreme Court of New Jersey
• Decided: June 28, 2017
• Docket: A-86-15
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5814-13T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS L. SCOTT, a/k/a JAMES LONGENBERGER, and CHRISTOPHER TUREAUD,

Defendant-Appellant. ___________________________________

Argued telephonically February 12, 2016 – Decided March 22, 2016

Before Judges Sabatino and Accurso.

On appeal from the Superior Court of New Jersey, Criminal Division, Monmouth County, Indictment No. 13-04-0733.

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Kirsch, on the brief).

Keri-Leigh Schaefer, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Keri-Leigh Schaefer, on the brief.)

PER CURIAM Defendant Thomas L. Scott appeals from his conviction of

third-degree possession of a controlled dangerous substance,

namely, heroin, N.J.S.A. 2C:35-10(a)(1). He also contends that

the sentence imposed by the trial court was manifestly

excessive. We affirm.

I.

The State's proofs showed that on the afternoon of November

27, 2012, a Long Branch police detective detained defendant on

an unrelated matter. The detective found two small packages in

defendant's left pants pocket. The contents of the packages

were tested and shown to be 0.618 grams of heroin.1

Defendant's theory at trial was that he did not intend to

possess the heroin and that his mother Darlene Barbella had

placed the heroin in his pants without his knowledge. Although

defendant did not testify at trial, he presented testimony from

a family friend, Lauren Halbersberg. He also proffered

testimony from his mother Barbella, who had given a defense

investigator a written statement. Defendant opted to not call

Barbella after the trial judge made an in limine ruling before

trial, discussed infra, that is the main focus of this appeal.

1 Defendant does not contest the legality of the stop and search, nor the admissibility of the lab results.

2 A-5814-13T3 Defendant lived in Long Branch in an apartment upstairs

from his mother in a duplex she owned. Halbersberg testified

that on the day in question, she, defendant, and defendant's

cousin Jordan Scott were all in the living room of the

apartment. Scott, who appeared to her to be intoxicated, was

lying on the couch asleep. According to Halbersberg, defendant

was then getting ready to take a shower.

Halbersberg testified that Barbella came upstairs and

noticed two packets on the table by the couch. Perceiving that

the packets contained drugs, Barbella became livid and started

shouting. According to Halbersberg, Barbella picked up the two

packets and stuffed them in the pocket of blue jeans that were

draped over the couch. Defendant, who was allegedly unaware of

what his mother had done, took the jeans into the bathroom and

put them on after taking his shower. He then went outside and

was encountered by the police detective.

In her written statement, Barbella corroborated aspects of

Halbersberg's narrative. However, as the State points out,

there were several inconsistencies, including Barbella's

recollection that defendant was already in the shower when she

came upstairs.

Prior to trial, the State moved in limine to be permitted

to cross-examine Barbella with two previous instances in which

she had allegedly lied in order to protect defendant from

3 A-5814-13T3 criminal liability. In one instance, Barbella is said to have

falsely told police looking for her son that he was not home and

that she was feeling ill. In the second instance, Barbella

tried to recant a written statement that she had given the

police about his involvement in a burglary.

The State initially argued that the two instances of

Barbella covering up for her son were admissible as her prior

bad acts under N.J.R.E. 404(b), shedding light on "her character

as a witness." Defense counsel countered that the elements for

admission under Rule 404(b) were not met. Defense counsel also

stressed that the two incidents were not admissible as

impeachment with a prior criminal conviction under N.J.R.E. 609

because Barbella had not been convicted of any crimes relating

to her past conduct.

In ruling on the in limine motion, the trial court observed

that Rule 404(b) does not pertain here because the issues

involve the impeachment of a potential witness. The judge noted

that N.J.R.E. 608 regarding witness impeachment would appear to

be the more appropriate pertinent evidence rule. However, the

court did not enforce the language in New Jersey's version of

Rule 608(a) that prohibits, subject to certain enumerated

exceptions, the admission of prior specific instances of

falsehoods to show a witness's propensity for untruthfulness.

4 A-5814-13T3 Rather than enforcing the prohibition on specific instances

within Rule 608(a), the court found that it had discretion under

N.J.R.E. 104(a) to not apply strictly the Rules of Evidence.

The court also noted that Barbella "has a propensity to cover up

her son's wrongdoings." The court ruled that Barbella's two

prior incidents of lying to the police would be admissible "both

on cross examination and on rebuttal if she elects to take the

stand."

Given the court's evidential ruling, defense counsel

decided not to call Barbella as a witness, relying solely on

Halbersberg's account of the events that took place in the

apartment.

The jury found defendant guilty of the possession charge.

The court sentenced him to a five-year prison term with a two-

and-one-half-year period of parole ineligibility.

II.

Defendant raises the following points on appeal for our

consideration:

POINT I

THE TRIAL JUDGE IMPROPERLY HELD THAT A DEFENSE WITNESS COULD BE IMPEACHED WITH EVIDENCE OF PRIOR SPECIFIC BAD ACTS NOT THE SUBJECT OF A CONVICTION, EVEN THOUGH THE APPLICABLE EVIDENCE RULES QUITE CLEARLY BAR THAT PRACTICE.

POINT II

5 A-5814-13T3 THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

For the reasons we will now discuss, neither of these points

warrants relief.

A.

Defendant contends that the trial court misapplied the

rules and principles of evidence law in determining that if

Barbella took the witness stand in the defense case, the State

would be permitted to impeach her credibility by disclosing to

the jury that she had twice lied in the past in order to protect

her son from law enforcement. The State does not endorse the

specific analysis set forth by the trial court but instead

maintains that Barbella's two prior acts would have been

admissible evidence of her strong bias as a witness in favor of

her son's interests. The State further argues that even if the

trial court erred in deeming the impeachment evidence

admissible, any such error was harmless in light of the record

as a whole.

Our scope of review of the trial court's evidentiary ruling

requires considerable deference. Such rulings generally "should

be upheld 'absent a showing of an abuse of discretion, i.e.

there has been a clear error of judgment.'" State v. J.A.C.,

210 N.J. 281, 295 (2012) (quoting State v. Brown, 170 N.J. 138,

147 (2001)). "An appellate court applying this standard 'should

6 A-5814-13T3 not substitute its own judgment for that of the trial court,

unless "the trial court's ruling is so wide of the mark that a

manifest denial of justice results."'" Ibid. (quoting Brown,

supra, 170 N.J. at 147).

As an initial matter, we observe that the trial court had a

sound basis to find that Rule 404(b) would not justify the

admission of Barbella's past acts of making false statements in

order to protect her son from the authorities. Rule 404(b) is

generally a rule of exclusion, subject to certain exceptions,

rather than a rule of admission. State v. Herrerra, 211 N.J.

308, 339 (2012). None of the enumerated exceptions listed

within Rule 404(b) readily applies here to the mother's prior

conduct.

The judge correctly perceived that the more pertinent

evidence rule on point would be Rule 608, which allows the

character of a testifying witness to be impeached by certain

means. However, Rule 608 is unavailing to the State because,

subject to certain caveats not applicable here, a witness's

character trait for truthfulness or untruthfulness is only

demonstrable by opinion or reputation evidence and "cannot be

proved by specific instances of conduct." N.J.R.E. 608(a). See

also State v. Parker, 216 N.J. 408, 418-19 (2014).

The trial court did stray in its analysis in finding that

it had the authority to "relax" these evidence provisions under

7 A-5814-13T3 Rule 104(a). Rule 104(a) does not provide a substantive basis

for admissibility but instead is, in essence, a procedural

device for a trial court in making a ruling on an evidential

issue. Indeed, the drafters of our present Rules of Evidence

specifically make clear in a Comment that, unlike the Court

Rules, the Rules of Evidence were designed to omit a general

"relaxation rule" akin to Court Rule 1:1-2 except for certain

enumerated situations not pertinent here. See N.J.R.E.

101(a)(2). See also Biunno, Weissbard & Zegas, Current N.J.

Rules of Evidence, 1991 Supreme Court Committee Comment on

N.J.R.E. 101(a) (2015).

On appeal, the State contends that the trial court's

evidentiary ruling should be sustained on an alternative ground:

namely, that Barbella's past behavior of lying in order to

shield her son from law enforcement authorities is evidence of

her strong bias in favor of her son, showing that she will go to

such lengths as making false statements to law enforcement.

As a procedural matter, defendant objects to the State's

present reliance on bias impeachment principles because the

prosecutor did not advance that specific argument to the trial

court. Although it would have been preferable for the State to

have asserted this alternative legal argument sooner, we are

unpersuaded that the State should be barred from advocating it

here. We must bear in mind that our role on appeal is to review

8 A-5814-13T3 judgments and orders, not trial court opinions. Bandler v.

Melillo, 443 N.J. Super. 203, 210 (App. Div. 2015). "[A] party

may challenge only the propriety of the judgment entered by the

trial court, not the reasoning underlying the court's decision."

Ibid. (citing Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199

(2001)). "It is a commonplace of appellate review that if the

order of the lower tribunal is valid, the fact that it is

predicated upon an incorrect basis will not stand in the way of

its affirmance." Isko v. Planning Bd. of Livingston, 51 N.J.

162, 175 (1968), abrogated on other grounds by, Commercial

Realty & Res. Corp. v. First Atl. Props. Co., 122 N.J. 546

(1991).2

Turning to the merits of the bias impeachment question, we

agree with the State that Barbella's past acts of lying to

protect her son, assuming they were proven to the jury, qualify

as admissible evidence under the pertinent case law. Although

2 We do not regard the Supreme Court's opinion in State v. Witt, 223 N.J. 409 (2015), disallowing defendant from challenging the lawfulness of a motor vehicle stop for the first time on appeal, as precluding our consideration of the bias impeachment argument here. The Court in Witt found it significant that the appellant's failure to raise the lawfulness issue in the trial court deprived the opposing side "the opportunity to establish a record that might have resolved the issue[.]" Id. at 419. That is not the case here. The bias impeachment issue is a pure legal question that requires no further development of the factual record. Moreover, the admissibility of the impeachment proof, unlike the lawfulness of the motor vehicle stop in Witt, was a sharply contested issue in the trial court.

9 A-5814-13T3 neither the federal nor New Jersey evidence rules contain a

specific "bias impeachment" provision, the ability of an

opposing party to undermine the credibility of a testifying

witness on the grounds of bias is a well-established principle

under our common law. See, e.g., United States v. Abel, 469

U.S. 45, 52, 105 S. Ct. 465, 469, 83 L. Ed. 2d 450, 457 (1984).

The common law of evidence conceives of bias as a term

describing "the relationship between a party and a witness which

might lead the witness to slant, unconsciously or otherwise,

[her] testimony in favor of or against a party." Ibid. In

Abel, the Supreme Court authorized the admission of proof of

extrinsic acts as a form of bias impeachment, even though no

specific codified federal rule of evidence contains such an

explicit authorization. Id. at 469 U.S. 56, 105 S. Ct. at 471,

83 L. Ed. 2d at 460.

Similarly in New Jersey, the admissibility of evidence of

conduct to substantiate a witness's bias for or against a party

in a case is well established in our case law. See, e.g., State

v. Pontery, 19 N.J. 457, 473 (1955); State v. Holmes, 290 N.J.

Super. 302, 313 (App. Div. 1996). As our Supreme Court

acknowledged again very recently, "the claimed bias of a witness

is generally an appropriate inquiry in cross-examination in

criminal trials[.]" State v. Bass, ___ N.J. ___, ___ (2016)

(slip op. at 19). Of course, the trial court may limit inquiry

10 A-5814-13T3 into a witness's potential bias, based upon concerns of

"harassment, prejudice, confusion of the issues, the witness'

safety, or interrogation that is repetitive or only marginally

relevant." Id. at 20 (citing Delaware v. Van Arsdall, 475 U.S.

673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986)).

Here, the admission of Barbella's past acts demonstrating

the strength of her bias for defendant is consistent with these

well-settled principles. To be sure, a mother would naturally

be presumed to favor her child's interests in avoiding criminal

prosecution and jail. But the proffered evidence goes further

than that general proposition. Barbella's past acts of lying to

the authorities for her son would establish not only that she

possesses such parental bias, but that she would risk punishment

herself by lying to the authorities concerning her son's actions

or whereabouts.

The trial court did not misapply its authority in ruling

that Barbella's past acts exhibiting the degree of her bias

would be a fair method of impeaching the credibility of her

narrative that she placed the heroin in her son's pants pocket

without him being aware of it. Nor do we find that such proof

was categorically inadmissible as unfairly prejudicial under

N.J.R.E. 403.

Even if, for the sake of discussion, the trial court erred

in ruling that Barbella's prior untruthful conduct was

11 A-5814-13T3 admissible, we agree with the State that the ruling was, at

most, harmless error in light of the record as a whole.

Barbella's account was essentially cumulative of Halbersberg's

testimony, which the jury obviously did not believe. It is

highly speculative that the jury could have believed Barbella's

repetitive version of the same events. Moreover, even if the

court had excluded Barbella's past untruthful conduct to protect

her son, the State would have been entitled in summation to

argue the mother's bias anyway. The jurors themselves might

have independently discounted the probative force of the

mother's testimony, in light of the family relationship.

For these many reasons, the court's in limine ruling is

sustained. Defendant's conviction is affirmed.

B.

We need not dwell at length upon defendant's separate

argument that his sentence is excessive. Defendant has an

extensive criminal record that includes twenty-three adult

convictions, five of them for illegal possession of CDS. The

sentencing judge rightly deemed defendant a "habitual offender"

who poses the risk of committing future crimes. We recognize

that the judge did not explicitly state why he rejected

defendant's invocation of mitigating factors one (lack of

serious harm) and two (defendant did not contemplate that his

conduct would cause serious harm) and that he should have done

12 A-5814-13T3 so. See State v. Case, 220 N.J. 49, 69 (2014). Nevertheless,

we are not persuaded to remand this matter for resentencing

because of that omission, given the patent strength of the

aggravating factors that the judge found to predominate here.

The sentencing judge was clearly made aware from the trial

proofs that defendant possessed slightly more than a half of a

gram of heroin, but nevertheless was persuaded to impose a five-

year custodial sentence with a two-and-one-half-year parole

disqualifier when considering defendant's individual

characteristics.

Given defendant's lengthy prior criminal record, the chosen

sentence does not shock our conscience, and we do not second-

guess it. State v. Bieniek, 200 N.J. 601, 607-08 (2010).

Affirmed.

13 A-5814-13T3