Although defense counsel at the oral argument before the motion judge, as well as the judge’s written opinion, both briefly allude to a written police report, we have been advised by appellate counsel that the police report was never moved into evidence. Nor had the police report been furnished to us as part of the record on appeal.
This oversight demonstrates the value of having a trial attorney with appellate experience. The police report was helpful to the defense at the trial level, but a lack of appellate experience led to a failure to move the report into evidence and thereby made it worthless on appeal.
Defense counsel at the motion hearing did present and move into evidence a one-page “arrest booking sheet.” The booking sheet contained two photos taken of defendant in his hospital bed, noting the time of his arrest was 10:45 p.m., and that he was being charged with possession of CDS (heroin) and being under the influence of heroin. Defendant’s trial counsel also provided the motion judge in her moving papers with a one-page excerpt of his medical record, which the State asserts it did not possess until that time. The medical record excerpt states that the hospital’s medical staff diagnosed defendant with an “intentional drug overdose.”
The only other noteworthy portion of the grand jury transcript that warrants discussion here is the following excerpt, which occurred after certain questions from the grand jurors had prompted the police officer to resume his testimony:
[PROSECUTOR]: Officer, I’m going to ask you to retain your seat. During deliberations there were one or more questions about the case. I just want to ask you some questions.
Q The heroin was allegedly found in a glasses case in a bag, is that correct?
A Yes.
Q The bag belonged to [W.S.B.].
A Yes.
Q How do you know it belonged to [W.S.B.]?
A When he was slumped over on the floor, the bag was still on his back.
Q Okay, so the bag was on his back –
A It was a book bag, it wasn’t just a normal shoulder bag, it was a book bag. So it was on his, it was still strapped to him while he was on the floor.
Q Okay. There was another question, yes sir.
JUROR: And at the hospital was there a diagnosis and treatment that was reported for this or do we not know?
[PROSECUTOR]: I’m going to interrupt that question. A person’s medical records are private and confidential.
JUROR: Okay.