STATE OF NEW JERSEY v. DARRYL HESTER (2011)

After execution of a personal search warrant upon defendant, Darryl Hester, failed to disclose drugs, but a residential search warrant, executed upon the residence of Theresa Banks, where Hester was then living, disclosed heroin and cocaine secreted in a leather bag above the bathroom ceiling, both Hester and Banks were arrested and indicted.   Banks pled guilty and was diverted to Drug Court.   Defendant Hester was tried and found guilty of the third-degree crimes of possession of heroin and cocaine, N.J.S.A. 2C:35-10a(1), possession with the intent to distribute heroin and cocaine, N.J.S.A. 2C:35-5a(1) and -5b(3);  possession with the intent to distribute heroin and cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7, and the second-degree crime of possession with the intent to distribute heroin and cocaine within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1. Defendant was given an extended sentence of twelve years in custody with a four-year period of parole ineligibility.

Defendant has appealed, raising the following issues for our consideration:

POINT I

THE TRIAL COURT'S REFUSAL TO REPLACE A JUROR WITH AN ALTERNATE JUROR DENIED DEFENDANT A FAIR TRIAL.

POINT II

THE COURT'S JURY INSTRUCTION ON CONSTRUCTIVE POSSESSION WAS IMPROPER AND MISLEADING.  (Not Raised Below.)

POINT III

THE STATE'S REPEATED REFERENCES TO SEARCH WARRANTS DENIED DEFENDANT A FAIR TRIAL.

(Not Raised Below.)

POINT IV

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY AS TO THE LIMITED USE OF OTHER CRIMES EVIDENCE PREJUDICED DEFENDANT.

(Not Raised Below.)

POINT V

DEFENDANT WAS PREJUDICED BY THE TRIAL COURT'S ERRONEOUS JURY INSTRUCTION ON POSSESSION WITH INTENT TO DISTRIBUTE A CONTROLLED DANGEROUS SUBSTANCE.

(Not Raised Below.)

POINT VI

DEFENDANT WAS PREJUDICED BY THE ADMISSION OF IMPROPER OPINION TESTIMONY FROM DETECTIVE EDWARDS.

(Not Raised Below.)

POINT VII

DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.

I.

The record discloses that, during the course of approximately one and one-half months in the summer of 2005, the Morristown police conducted a narcotics investigation that focused initially upon Theresa Banks and her residence and was later broadened to focus as well upon defendant, a friend of Banks who stayed with her for approximately one month in June and early July 2005, sleeping on her couch.   The head of the investigation was Detective Matthew Edwards, who supervised two surveillance officers and approximately ten members of a tactical narcotics team.   Over time, enough information was gathered through controlled buys and other investigation to permit the police to obtain warrants to search Banks's apartment and defendant's person.

On July 6, 2005, Sergeant Michael Buckley of the Morristown Police was assigned to conduct a surveillance of Banks's apartment.   He arrived at approximately 2:00 p.m. At approximately 4:30 p.m., Buckley observed defendant leaving the apartment and meeting two individuals in the street.   Buckley informed Edwards, who dispatched two officers on bicycles, Matthew Rawding and Brett Smith, to detain defendant.   Upon their arrival, they handcuffed defendant and arranged for his transport to police headquarters where defendant was searched.   The search of defendant did not reveal any drugs, but did disclose his possession of $84 in cash.

Following defendant's detention, a search of Banks's apartment occurred.   During its course, Rawding discovered a Louis Vuitton bag lodged above the dropped ceiling in the bathroom.   The bag contained six vials of suspected cocaine and eighteen druggist folds of suspected heroin, along with a picture of defendant and an unidentified woman, a government document addressed to defendant, and a condom.   Nearby was a vial of methadone bearing the name of Joseph Banks, a Morristown resident who was not related to Theresa Banks.   A further search of the apartment disclosed drug packaging materials and marijuana.

Following the discovery of the cache of drugs in the apartment, both Banks and defendant were arrested and later indicted on the cocaine and heroin charges previously set forth.   After indictment, Banks, an addict, accepted a plea offer of Drug Court, conditioned on her agreement to testify for the State at defendant's trial.   She was, however, called instead as a witness by the defense on the issue of constructive possession of the drugs.   Banks testified that her sole crime was to have sold one bag of heroin on July 6, 2005.   She denied any knowledge of the cache of drugs found above the bathroom ceiling, but she admitted to having seen the Louis Vuitton pouch previously.   In that regard, she testified that she had seen defendant with the pouch a couple of times, and that, one day, she had seen it lying in the living room by the lamp table.   She testified additionally that she had witnessed defendant taking the pouch out of his pocket on a number of occasions, and when she no longer saw it lying around, she assumed “he had it on him.”   As stated, after a period of deliberation, defendant was found guilty of all charges against him.

II.

Defendant first argues that the failure of the trial judge to replace a juror who informed the judge that he would have a scheduling problem on the last day of testimony deprived defendant of his right to a fair trial.

The trial transcript discloses that, at the conclusion of trial proceedings on Monday, June 19, 2006, the trial judge informed the jury that, because of difficulty in scheduling a final witness, trial would resume on Wednesday, June 21.   When informed of that fact, one of the jurors stated:  “My concern is I'm here, I'd like to complete [the trial], but Wednesday afternoon I have to leave at 3:00 for my daughter's graduation.”   To this, the judge responded:  “I expect that you'll be able to do that․  If for some reason you cannot, I'll approach that when we approach it, but if I can get an early start, that's what I would like to do.”

The trial transcript also indicates that, on June 21, near the conclusion of Banks's testimony, the judge recalled the juror's scheduling problem, stating to him, “we know you have to be at the graduation and you will be at the graduation, okay?”   At 1:00 p.m., the judge completed his charge to the jury, reduced the jury from fourteen to twelve deliberating members and, after determining that the jurors wished to commence their deliberations without going to lunch, sent them to the jury room for that purpose.   After the jury retired to deliberate, defense counsel argued to the trial judge that the juror with the scheduling conflict should be excused, because knowledge by the jury of his time constraint placed undue pressure on them to reach a verdict in the two hours that remained before he had to leave.   The judge rejected this argument, stating that the juror might have made alternative arrangements and that he could not remove the juror unless that juror told him again that he had to leave.   At the present time, the judge observed, he did not have a valid reason for excusing the juror.   The transcript does not disclose when a verdict was reached, and it contains no reference to a further request by the juror to be excused because of the graduation.

Defendant argues that the trial judge's refusal to replace the juror with an alternate following notice of the potential scheduling problem or, at least, to revisit the scheduling issue with the juror immediately prior to the commencement of deliberations constituted an abuse of the discretion provided to the judge by Rule 1:8-2(d)(1).   See also State v. Valenzuela, 136 N.J. 458, 469-70 (1994) (adopting abuse of discretion standard).   However, “in reviewing the exercise of discretion it is not the appellate function to decide whether the trial court took the wisest course, or even the better course, since to do so would merely be to substitute our judgment for that of the lower court.   The question is only whether the trial judge pursued a manifestly unjust course.”  Gittleman v. Central Jersey Bank and Trust Co., 103 N.J.Super. 175, 179 (App.Div.1967), rev'd on other grounds, 52 N.J. 503 (1968);  see also Union County Improvement Auth. v. Artaki, 392 N.J.Super. 141, 149 (App.Div.2007);  Gillman v. Bally Mfg. Corp., 286 N.J.Super.   523 (App.Div.), certif. denied, 144 N.J. 174 (1996).

We do not find the evidence contained in the record to be sufficient to meet the requisite standard, particularly since we do not know when the jury's verdict was reached and do not know the nature of its deliberations.   In the circumstances presented, any conclusion by us that the jury felt pressured to reach a premature determination of guilt would rest on mere speculation, in which we decline to engage.   In this regard, we note that as the result of the manner in which the case was tried, conviction turned solely on the issue of constructive possession, and the evidence on that issue offered by Banks, together with the personal identifiers found in the pouch with the drugs, was strong.   We thus cannot infer that, as the result of the complexity of the issues or the facts, a longer period for deliberations than two hours would necessarily be required.

III.

Defendant next argues that the trial judge committed plain error in his charge on constructive possession, because the instruction focused on the leather bag, not its contents.   In this regard, the trial judge illustrated actual, constructive and joint possession by reference to a stapler that the judge could either hold, leave on the bench, or share with his court clerk.   Defendant argues that the stapler was the functional equivalent of the pouch containing the drugs, not the drugs themselves, and that the judge's example thus misled the jury to focus, not on possession of the drugs, but on the pouch that contained them.   We disagree.   In instructing the jury, the judge properly referred to the indictment, to the charges of possession of cocaine and heroin, to the drugs marked in evidence as S-9, and to the requirement, that to be found guilty, the jury must determine that “Defendant possessed or obtained S-9 in evidence and that the Defendant acted purposely or knowingly in possessing or obtaining S-9 in evidence.”   There was no error in the charge.

IV.

In related arguments, defendant argues that the repeated references by the State's witnesses to the personal and residential search warrants executed in this case denied him a fair trial, that the judge erroneously permitted the introduction of other crimes evidence, and that he failed to properly instruct the jury as to the limits of its consideration of that evidence.

Prior to trial and after discussions with defense counsel, the prosecutor moved in limine to prevent counsel from introducing any evidence of defendant's prior bad acts pursuant to N.J.R.E. 404(b).  He explained:

Essentially, and I'll tell you, Judge, leading up to the search warrant, there were several controlled buys done by the confidential informant and through our office and through the Morristown Police Department.   Those purchases, those CI buys from Mr. Hester, were the basis of the warrant itself, but were not any basis of the charges brought in the indictment.   The indictment and the charges Mr. Hester is facing are based solely on the date the search warrant was executed back [on July 6th].

Defense counsel objected to the prosecutor's motion, and no formal ruling on it was made.

When trial commenced, the prosecutor referred in his opening statement to surveillance conducted by Sgt. Buckley immediately before defendant's detention, to that detention pursuant to a warrant, and to the search of Banks's apartment, also pursuant to a warrant.   At the conclusion of his opening, the trial judge instructed the jury that it was “not to draw any inference from the Prosecutor's comment that Detective Buckley was watching for the Defendant.”   The judge explained his cautionary instruction to counsel by stating “the reason I said what I said about Buckley is by you saying that Buckley was watching for the man, it creates the impression that oh, yeah, we've dealt with him before, he's a criminal and so on and so forth.”   Like the prosecutor, in his opening, defense counsel acknowledged that defendant had been detained and the apartment had been searched pursuant to warrants, but he did not mention any surveillance.

The record thereafter was replete with references to the warrants, to their court-authorized nature, to the surveillance leading up to their issuance, and to the continuing surveillance that occurred just prior to defendant's detention.   Most of the references that concern us occurred during cross-examination of the State's witnesses by defense counsel or redirect examination by the prosecutor after defense counsel had opened the door to further questioning.

The difficulty first arose in the cross-examination of Sgt. (then Detective) Buckley when defense counsel sought to demonstrate that prior drug sales were by Banks, not defendant.   Counsel commenced by asking Buckley if he had been involved in surveillance on dates other than July 6. Buckley stated that he had, and he was asked what he observed.   At this point, the prosecutor argued in a side-bar conference that there were prior controlled buys involving defendant of which Buckley had knowledge that might be disclosed through defense counsel's line of questioning.   However, defense counsel claimed that nothing harmful would be elicited, since discovery indicated that Buckley had remained outside the building containing Banks's apartment and the only evidence of drug sales indicated that they had occurred within it at a time when Banks was present.   Accepting defense counsel's representation that the testimony would disclose only Banks's involvement in the drug sales, the trial judge permitted questioning to continue.

Thereafter, defense counsel sought to establish that defendant was living in Banks's apartment - a circumstance that Buckley assumed to be true - and he established that Buckley had been conducting a surveillance of the apartment for approximately one and one-half months.   The following exchange then occurred:

Q And the only observations you made were of Mr. Hester leaving that apartment?   Is that correct

A The only observations?

Q Yes.

A The observations were of controlled purchases.

Q Where did the controlled purchases occur?

A Inside an apartment.

Q How do you know that?

A It varies from case to case.

Q Well, how did you know here that there were purchases made inside that apartment?

A Because I was doing the surveillance.

Shortly after this exchange, the prosecutor again sought to terminate defense counsel's line of questioning, stating that he did not want a mistrial.   In response, counsel, brushing away reminders of the manner in which controlled buys are conducted, maintained his position that Buckley could not have witnessed the buys, because he was not inside the apartment.   After hearing argument, the judge stated that he would permit defense counsel to establish that Buckley “wasn't in there, he didn't see anything, so how would he know.”   However, he warned against delving further into the buys, stating that they would not help defendant, and if he were convicted the judge would be “thinking of ineffective assistance of counsel.”

Defense counsel then established that, on one occasion, after Buckley observed defendant leaving the apartment, defendant met an unknown person on the street.   Shortly thereafter, counsel terminated his cross-examination.   However, on redirect examination, the following exchange occurred:

Q ․ [W]hen [defendant] met the person on the street ․ [d]id you observe anything?

A Yes.

Q What did you observe?

A A hand to hand transaction.

Q From whom?

A From Mr. Hester to the individual.

Q Hand to hand transaction of what?

A I believe it was a controlled dangerous substance, based on my training and experience.

According to Buckley, he had not drafted a report of this incident, and thus it was not disclosed in discovery provided to defense counsel.

Following Buckley's disclosure of the drug sale, the judge instructed the jury that “[w]e're dealing with the allegations that are set forth in the indictment and I'm going to charge you as to what you are to decide and I will even give you a verdict sheet, you understand, to assist you in what you have to decide, okay?”   No further instruction, as required by State v. Cofield, 127 N.J. 328, 340-41 (1992), was offered then or at the conclusion of trial.

On re-cross examination, defense counsel elicited further testimony from Buckley regarding the sale, including the fact that he was “in very close proximity” to defendant, and that the drugs were packaged in a glassine envelope.   The reason Buckley did not arrest defendant at the time of the hand-to-hand transfer, Buckley stated, was that the investigation into defendant's drug dealing was ongoing and “this was prior to the Court authorized search warrant.”   The police sought something “[b]igger and better” than a single sale.   Counsel established as well that probable cause was required to obtain a warrant and that at the time of the sale, the police were seeking to establish probable cause for a warrant to search Banks's apartment.   As a final matter, defense counsel established that defendant's drug sale was unquestionably a crime.   Re-redirect examination of Buckley elicited testimony that the purpose of his surveillance was to gain the information on defendant that led to the issuance of the warrant authorizing search of his person that was executed on July 6.

On direct examination, Officer Rawding corroborated the fact that the searches of defendant's person and Banks's apartment had been conducted pursuant to search warrants.   Defense counsel elicited on cross-examination that, in addition to the cocaine and heroin found above the bathroom ceiling, marijuana had been found in the apartment and that possession of marijuana was unlawful.

As a final matter, Detective Edwards testified that he was “part of organizing surveillance and team members for the execution of the search warrant” and that two surveillance and ten tactical narcotics team members were involved.   When asked on direct examination why he had not analyzed the pouch and drugs for fingerprints, he stated:  “The investigation led to various different other sources of information that led me to be able to develop probable cause to make the arrest and sign warrants against individuals who I thought ․ were responsible for the evidence seized.”

On cross-examination, defense counsel led off by asking who was the target of the police's operation.   At side bar, the trial judge expressed his concern regarding counsel's line of questioning, to which counsel replied that he believed Edwards would identify Banks as the target.   That answer elicited the following response from the prosecutor:

No, judge, they were both the target and Edwards oversaw and knows about everything and that's going to come out and it's going to be a mistrial or it's going to be post conviction relief.

When these comments and warnings did not appear that they would deter counsel, the judge stated:

If you go down this area, I think you're prejudicing your client, if he was a [n] equal target.   And I don't want to preclude the Defendant from doing anything he wants, but I - I want you to think long and hard before you do that.

Counsel nonetheless persisted with his line of questioning as to who was the target, to which Edwards replied that Banks was the initial target.   However, on redirect examination Edwards testified that defendant was a target as well.

In summary, evidence was presented to the jury that the police had conducted a month to a month and one-half long surveillance of the activities at Banks's apartment that first focused on Banks but later focused on defendant, as well.   During the course of that surveillance, defendant was observed as the seller in a hand-to-hand transfer of drugs, a criminal act, and that act constituted part of the evidence used by the police to establish probable cause for the issuance of warrants to search the apartment and defendant's person.   Additionally, controlled purchases from defendant had taken place.   As the result of the police's investigation and the evidence thus garnered, court-authorized warrants were issued and executed on July 6, leading to the discovery, not only the cocaine and heroin that formed the basis for the indictments, but also marijuana, providing the basis for another uncharged crime.   Defense counsel did not object to the introduction of any of this evidence, and indeed, solicited the majority of it.

Pursuant to Rule 2:10-2:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

Whether plain error will result in reversal

depends finally upon some degree of possibility that it led to an unjust verdict.   We say “possibility” and not “certainty,” for if it were certain that the error led to an unjust result, the reviewing court would be constrained to order the just result, which, on that hypothesis, would be an acquittal, except in the unusual case in which it could be said the error prevented the trier of facts from even reaching the merits.   So, too, a “probability” that the error resulted in a false verdict should, if it were the standard for intervention, drive the appellate court to order the judgment which the jury “probably” would have reached but for that error.   And since a reviewing court could rarely say an error either certainly or probably induced a false verdict, either test would disadvantage a defendant.   Defendants fare better if a new trial may be ordered upon a “possibility” of injustice.   Still, not “any” possibility can be enough for a rerun of the trial.   The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.

[State v. Macon, 57 N.J. 325, 335-36 (1971).]

Moreover, in determining whether reversible error occurred, we must bear in mind the fact that most of the damaging evidence that we have cited was introduced by defense counsel on cross-examination, after cautionary statements by the prosecutor and the trial judge, or elicited on redirect examination by the prosecutor after the door to inquiry had been opened by defense counsel.   The Supreme Court has recently reviewed such invited error,¹ noting:

We have stated that a “defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.”   Thus, when a defendant asks the court to take his proffered approach and the court does so, we have held that relief will not be forthcoming on a claim of error by that defendant.

[State v. Jenkins, 178 N.J. 347, 358 (2004) (quoting State v. Ponterey, 19 N.J. 457, 471 (1955)).]

Nonetheless, the Court has held that “[t]o justify reversal on the grounds of an invited error, a defendant must show that the error was so egregious as to ‘cut mortally into [the defendant's] substantive rights.’ ”  State v. Ramseur, 106 N.J. 123, 282 (1987) (quoting State v. Harper, 128 N.J.Super. 270, 277 (App.Div.), certif. denied, 65 N.J. 574 (1974)).   In Ramseur, the Court held that the statement that was challenged on appeal “was inaccurate in such a minor way that it cannot be said to have prejudiced Ramseur's defense.”  Ibid. Certainly, the evidence presented here was of far greater consequence.

We address first the evidence that defendant had committed the uncharged crime of drug distribution and had been the seller in controlled buys within one month of the time that he was arrested for possession and possession with the intent to distribute heroin and cocaine - the former evidence having been elicited by the State after defense counsel had opened the door to its admission, and the latter by defense counsel himself.  N.J.R.E. 404(b) states:

Except as otherwise provided by Rule 608(b) evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith.   Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

Our review of the trial record in this matter suggests, as we have previously stated, that defense counsel sought, by examining Buckley regarding his surveillance, to elicit testimony that would implicate Banks as possessor of the drugs found in Banks's apartment and would exculpate defendant.   The opposite occurred, since defense counsel's questions led to the disclosure that Buckley had witnessed defendant as the transferror in a hand-to-hand transfer of drugs.   Although the testimony was elicited by the prosecutor, it is not clear from the record that the prosecutor was aware of this particular transaction or, if he was, whether the prosecutor sought introduction of the evidence for a purpose recognized by N.J.R.E. 404(b) as legitimate.

In Cofield, the Supreme Court observed that because of the generic nature of drug transactions, evidence of prior or subsequent transactions may lead the jury to focus on the defendant's propensity to commit a drug-related crime.   127 N.J. at 337.   However, it noted that “when apartment occupants are charged with constructive possession of drugs, evidence of past possession by one of the occupants will allow the jury to focus on the issue of possession rather than on propensity.”  Ibid.;  see also 127 N.J. at 340.   Thus, an argument can be made that the incriminating evidence of the hand to hand transfer could have been properly adduced if the prosecutor had sought to do so.²  Evidence suggesting controlled purchases from defendant, obtained as the result of defense counsel's questioning, is more difficult to legitimize in any respect.

Nonetheless, Cofield instructs that, even if a proper basis for introduction of other crimes evidence had been identified and accepted, the trial judge must instruct the jury on the limited purpose for which the evidence is admissible and must inform the jury of the uses of the evidence that are prohibited.  Id. at 340-42;  see also State v. Williams, 190 N.J. 114, 133-34 (2007).   This did not occur.   Rather, the judge merely gave a contemporaneous instruction to the jury that it must focus on the crimes charged in the indictment.   As the Court explained in State v. Fortin:

because “the inherently prejudicial nature of such evidence casts doubt on a jury's ability to follow even the most precise limiting instruction,” the court's instruction “should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.”

[State v. Fortin (Fortin I ), 162 N.J. 517, 534 (2000) (citations omitted) (quoting State v. Stevens, 115 N.J. 289, 309 (1989)).]

No instruction was given in this case to adequately guide the jury's consideration of the other crimes evidence offered by Buckley.

We note as well that defense counsel solicited testimony by Officer Rawding that the police found marijuana in the apartment and that possession of marijuana was unlawful.   No evidence suggested that defendant possessed the marijuana.   Nonetheless, the jury received no guidance as to its use, if any, of this other crimes evidence.

We next turn to the evidence of the searches of Banks's apartment and of defendant's person that were conducted pursuant to the court-issued warrants.   In particular, we focus on testimony that probable cause supported the court's issuance of the warrants, and that probable cause had been established through the police's investigation and various different sources of information disclosed by that investigation, including the purchasers involved in the controlled buys.

In State v. Milton, 255 N.J.Super. 514, 520-21 (App.Div.1992), search warrants had been issued that permitted searches of the house where defendant resided and of his person.   During a search of a bedroom shared by defendant and his brother, crack cocaine was found beneath a bunk bed mattress.   Defendant's brother claimed that the cocaine was his.   Nonetheless, defendant was convicted by a jury of possession of that cocaine and possession with the intent to distribute the drug.   We reversed defendant's conviction, determining the State had failed to make a prima facie case against him.

Despite that determination, we also addressed defendant's claim that error was committed by the prosecutor in his opening statement when he disclosed that the police not only had a warrant to search the premises where the cocaine was found but also had a warrant to search defendant's person - a warrant that apparently was never executed.   We found mention of the search warrant for defendant's person to have been erroneous, and defendant to have been “unquestionably prejudiced” by its mention.  Id. at 520.  “The natural inference from the mention of the warrant itself, confirmed by the cautionary instruction of the trial judge, was that sufficient independent proof had been presented to a neutral judge to believe that defendant would be found in possession of drugs.”  Ibid. We held further:

We are convinced that there was no materiality or relevance between the existence of a warrant to search the person of the defendant and the case which the State was required to present under its indictment.   The State's argument that it was essential for it to prove that the officers were not acting arbitrarily is entitled to no weight since presentation to the jury of the fact that a search warrant for the premises had been issued fully satisfied the State's needs.

[Ibid.]

However, in State v. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L. Ed.2d 88 (1997), a murder case, the New Jersey Supreme Court rejected the claim that defense counsel was ineffective in failing to move in limine to bar any reference to search warrants at trial and the claim that the prosecutor's reference to the issuance of a search warrant for defendant's telephone records constituted an impermissible reference to a judicial finding of probable cause that defendant was involved in the murder at issue.   The Court stated:

We find those claims to be without merit.   They have in common the proposition that the jury should be shielded from knowledge that search warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt.   We are aware of no authority in support of such a rule.   We are satisfied that a properly instructed jury will not presume guilt based on the issuance of a search warrant.   We note, moreover, that the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly.

[Id. at 240.]

The Court distinguished Milton on the ground that it “dealt with a prosecutor's reference to a search warrant that had the capacity to mislead the jury,” ibid., whereas no reference in Marshall's prosecution was similarly misleading.

Two years later, in State v. Alvarez, 318 N.J.Super.   137 (App.Div.1999), we again held, without mentioning Marshall, that references in a weapons possession case to defendant's arrest pursuant to a warrant and the search of his room pursuant to a premises search warrant obtained following defendant's arrest constituted reversible error pursuant to Milton.   We found this particularly true when defendant and defendant's room provided the focus for police activity, since the references implied that a judicial officer with knowledge of the law and facts had found probable cause to believe criminal conduct by defendant had occurred and that evidence of criminality would be found in his room.  Id. at 147-48.   We observed:

We see no reason why either of these warrants needed to be injected into this case․  The trial judge could have acceded to defendant's request that the police testify that they were at 101 Coleman Avenue to “serve legal papers.”   He also could have advised the jurors that the police were lawfully at the premises or that they should not be concerned as to why the police were there.   Any one of these alternatives would have laid the issue of police presence to rest without referring to an arrest warrant.   Likewise, after defendant was arrested, all that needed to be said was that his room was searched.   There was absolutely no need to refer to a search warrant at all.   In short, the references to the arrest warrant (which were challenged below) and to the search warrant (which were not raised below) violated Milton and were clearly capable of producing an unjust result.   R. 2:10-2.   As a consequence, defendant did not receive a fair trial.

[Id. at 148.]

However, in State v. McDonough, 337 N.J.Super.   27 (App.Div.), certif. denied, 169 N.J. 605 (2001), we followed Marshall, rejecting defendant's argument that he did not receive a fair trial because of a reference to search warrants.  Id. at 35.   However, in doing so, we distinguished Milton and Alvarez, observing that, in those cases, not only was the jury presented with evidence that a judge had found sufficient basis to justify the issuance of the warrants in question, but the testimony also implied that the State had presented evidence to the judge that was not introduced at trial that indicated that defendant was likely to be in possession of contraband.   We found:

Consequently, the evidence of the warrants in Alvarez and Milton had the same capacity for prejudicing the defendant as the hearsay evidence of an informer's tip that the Court found to constitute reversible error in State v. Bankston, 63 N.J. 263, 271 (1973), - that is, that “a non-testifying witness has given the police evidence of the accused's guilt.”   In fact, Bankston was the sole authority cited by the court in Milton to support its conclusion that evidence of the warrant to search the defendant was inadmissible.  255 N.J.Super. at 520.

[McDonough, supra, 337 N.J.Super. at 34.]

In contrast, in McDonough, the “passing reference” to the warrants did not imply that facts were provided to the judge that were withheld from the jury.   Ibid.

As a final matter, in State v. Williams, 404 N.J.Super. 147, 168 (App.Div.2008), we rejected a claim of prejudice pursuant to Milton and Alvarez in the introduction of testimony by an officer that, after hearing a door close outside the apartment building, he saw defendant and arrested him pursuant to a warrant.  Id. at 166-69.   We held that, as is McDonough, the passing reference “did not imply that the State had any evidence in addition to that which was heard by the jury.”  Id. at 168.

Turning to the present matter, we find that the testimony was, as the State argued pre-trial, irrelevant to the issue before the jury of whether defendant had constructive possession of the drugs found above the bathroom ceiling.   Moreover, the testimony clearly implied possession by the police of considerable information, including evidence of controlled buys, that targeted defendant as a likely distributor of drugs from Banks's apartment and elsewhere.   This information was conveyed to the judge issuing the warrants and formed the basis for the judge's conclusion that probable cause for issuance of the warrants existed.   The existence of such probable cause was disclosed to the jury.   However, defendant was denied the opportunity to test much of its foundation through the cross-examination of witnesses at trial.   Thus, as in Milton and Alvarez, a Bankston violation occurred, resulting in prejudice to defendant, whose involvement in drugs, the jury could conclude,³ had been found by the police to be considerable.

We are satisfied that, in the circumstances presented, the combination of introduction of other crimes evidence with evidence that probable cause for the issuance of warrants had been established on the basis of evidence that was not presented to the jury was sufficient to create a real possibility of an unjust result, thereby constituting plain error.   While much of the evidence was introduced through the efforts of defense counsel, the errors committed were sufficient to “cut mortally into [defendant's] substantive rights,” Harper, supra, 128 N.J.Super. at 277, therefore requiring a reversal of defendant's conviction.⁴

V.

We find defendant's remaining claims of error in the trial proceedings to lack sufficient merit to warrant extended discussion in a written opinion.   R. 2:11-3(e)(2).   We merely observe that it would have been preferable if the judge had not suggested to the jury that it could acquit defendant of charges of possession of cocaine and heroin but nonetheless convict him of possession of those drugs with the intent to distribute them.   Although the judge was legally correct that such an inconsistent verdict would be legally cognizable, State v. Banko, 182 N.J. 44, 53-54 (2004), we see no merit in encouraging such a result.   Further, in light of the nature of the identifying items found by the police within the pouch containing the drugs, we do not regard Detective Edwards as having given expert testimony when testifying to the ownership of the pouch.

In light of our determination to reverse defendant's conviction, we do not address his sentencing arguments.

Reversed and remanded for further proceedings.

FOOTNOTES

FN1. It can be argued that what occurred did not constitute invited error, since it did not lead the judge into error.  State v. Jenkins, 178 N.J. 347, 359 (2004).   However, defense counsel did obtain the judge's reluctant acquiescence to his damaging line of questioning.   Thus, we find the doctrine to be sufficiently relevant to merit discussion..  FN1. It can be argued that what occurred did not constitute invited error, since it did not lead the judge into error.  State v. Jenkins, 178 N.J. 347, 359 (2004).   However, defense counsel did obtain the judge's reluctant acquiescence to his damaging line of questioning.   Thus, we find the doctrine to be sufficiently relevant to merit discussion.

FN2. We note, however, that pursuant to Cofield, supra, 127 N.J. at 338, the State was required to establish that the evidence was relevant to a material issue, the offense was similar in kind and reasonably close in time to the offense charged, the evidence of criminal conduct was clear and convincing, and the probative value of the evidence was not outweighed by its prejudicial effect.   See also State v. Hernandez, 170 N.J. 106, 119 (2001);  State v. Marrero, 148 N.J. 469, 483 (1997)..  FN2. We note, however, that pursuant to Cofield, supra, 127 N.J. at 338, the State was required to establish that the evidence was relevant to a material issue, the offense was similar in kind and reasonably close in time to the offense charged, the evidence of criminal conduct was clear and convincing, and the probative value of the evidence was not outweighed by its prejudicial effect.   See also State v. Hernandez, 170 N.J. 106, 119 (2001);  State v. Marrero, 148 N.J. 469, 483 (1997).

FN3. We note the absence of any instruction on the significance to be accorded to the judge's finding of probable cause or on the significance of the warrants..  FN3. We note the absence of any instruction on the significance to be accorded to the judge's finding of probable cause or on the significance of the warrants.

FN4. In doing so, we distinguish State v. McDavitt, 62 N.J. 36 (1972), in which the Court rejected as invited error defendant's claim that witness testimony elicited by defense counsel implicated defendant in prior crimes and amounted to plain error.   In that case, the testimony was fleeting, whereas here it was pervasive.  Id. at 48..  FN4. In doing so, we distinguish State v. McDavitt, 62 N.J. 36 (1972), in which the Court rejected as invited error defendant's claim that witness testimony elicited by defense counsel implicated defendant in prior crimes and amounted to plain error.   In that case, the testimony was fleeting, whereas here it was pervasive.  Id. at 48.

PER CURIAM