There Are Specific Evidentiary Rules as It Relates to Officer’s Testimony, Either at Trial or In Grand Jury Proceedings

State of New Jersey v. Terrell Tucker

DOCKET NO. A-0937-21

Decided August 3, 2022

Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark.

In a recent published decision the Appellate Division of New Jersey reversed the judge’s decision denying defendant’s motion to dismiss the indictment following officer’s testimony of defendant’s state of mind in the grand jury proceedings.

Terrell Tucker appealed from an October 1, 2021 Law Division order amplifying a June 16, 2021 order which denied defendant’s motion to dismiss an indictment charging defendant with numerous drug-related offenses, including possession of controlled dangerous substances (CDS) with intent to distribute.

At the grand jury proceeding, Officer Patrick Egan described the circumstances surrounding defendant’s arrest, including exchanges the police observed between defendant and other individuals, as well as the cache of illicit narcotics recovered by law enforcement at the scene. Near the end of Egan’s testimony, the prosecutor asked Egan if he believed, based on his training and experience, that defendant had possessed the narcotics with the intent to distribute them. Egan replied in the affirmative and described the considerations that informed his opinion.

Egan testified that at approximately 5:13 p.m. on October 28, 2020, Jersey City police officers observed defendant engage in “suspected narcotics activity” near 96 Grant Avenue.  Specifically, officers saw defendant converse with and then direct individuals to head west on Grant Avenue, at which point defendant would enter an alleyway between 96 and 98 Grant Avenue and emerge soon after to rejoin the individuals and exchange an item for currency. Ultimately, the officers stopped defendant near the alleyway and detected “a strong odor of marijuana emanating from his person.”

The officers then searched defendant and recovered twenty-three baggies of marijuana and sixty-five dollars of suspected drug sale proceeds. A search of the alleyway, where defendant was the only person seen entering and exiting during the relevant time frame, revealed a drug stash consisting of “19 Ziploc baggies of [suspected] crack cocaine,” “[100] folds of [suspected] heroin stamped ‘Dope Dick,'” and “37 folds of [suspected] heroin stamped ‘Bang.'” Subsequent laboratory testing confirmed that the items recovered from the scene contained marijuana, cocaine, a mix of heroin and fentanyl, and pure fentanyl. Egan testified that the alleged drug sales occurred within 1,000 feet of a public school and 500 feet of a public library.

The motion judge denied the motion, concluding the State had presented sufficient evidence to support a prima facie case, and Egan’s testimony did not subvert the grand jury process. Defendant then moved for amplification of the judge’s findings, seeking clarification on whether the judge found that the holding in Cain applied to grand jury proceedings, citing State v. Cain, 224 N.J. 410, 429 (2016).

The defendant appealed and the Appellate Division found that the officer’s testimony that he believed defendant intended to distribute narcotics was sufficient to dismiss the indictment, having tainted the grand jury with the prosecutor’s questioning.

This case is important to understand there are specific evidentiary rules as it relates to officer’s testimony, either at trial or in grand jury proceedings.  If misconduct is found at the grand jury proceedings, which defendant and counsel are not present for, iy may result in a dismissal of the indictment. You must obtain an experienced criminal defense attorney who is well versed in these various evidentiary rules and exceptions that way you have the best chance of upholding your liberty.

If you have been charged with any first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today. At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington ,Haddon Heights ,Pine Hill ,Bellmawr ,Haddon Township , Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.