NOT FOR PUBLICATION WITHOUT THE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