STATE OF NEW JERSEY v. JAMES ALLAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0272-02T40272-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES ALLAN,

Defendant-Appellant.

_________________________________________________

 

Submitted December 21, 2005 - Decided June 2, 2006

Before Judges Stern and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Morris County,

Indictment No. 00-08-01009-Z.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Richard Sparaco, Designated

Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Steven E. Braun,

Chief Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of criminal restraint as a lesser included offense to kidnapping (count one), terroristic threats (count three), harassment as a lesser included offense to stalking (count five), contempt (count six), possession of a firearm with the purpose of using it unlawfully against the person of another (count seven), and possession of a sawed-off shotgun (count eight). Defendant received concurrent sentences including a ten-year sentence, with four years to be served in the custody of the Commissioner of the Department of Corrections before parole eligibility, for the possession of the weapon for unlawful purposes conviction.

Defendant and Linda Gazda once lived together, but she ultimately obtained a temporary restraining order against him after several confrontations, including one during which defendant threatened to commit suicide over their faltering relationship. According to Ms. Gazda, on June 9, 2000, defendant abducted her in an A&P parking lot in Wayne after she finished shopping there with her mother, and forced her to travel with him. The pair traveled through Niagara Falls to Buffalo, on to Chicago and then to Des Moines, Iowa. There were numerous telephone calls and other opportunities during which Gazda could advise others of her abduction, although she did give a note to the effect that she had been abducted to a woman in a ladies' room asking her to call the police. The parties slept together, or in the same room, for at least four nights along the way, and when defendant was asleep Gazda might have been able to escape. Her explanation for not doing so was a fear that defendant would retaliate against her or her family. In essence, the defense of consent was plausible, and the proofs of guilt were not overwhelming, at least on some of the counts.

Because of the conversations and advice defendant received through the communications he had while on the road, including with his lawyer, defendant spoke with Johnny Cochran who he recognized in the Des Moines, Iowa Airport, and was introduced to his associate, Robert Wright, Jr. Gazda and defendant retained Wright to take them to the police for purposes of confirming the reconciliation and "straighten out" the outstanding warrants and police bulletins.

At headquarters, separate statements were taken from defendant and Gazda. Gazda felt secure enough to tell Detective Daniel O'Donnell the background and what had happened over the prior four days. While interviewing Gazda, Detective O'Donnell was contacted by Detective Farber of the Wayne Police, who was tracking a credit card charge. As a result of learning of the outstanding warrant, defendant was booked and given his Miranda warnings. During his tape-recorded statement, defendant said he "borrowed" the shotgun "to go out hunting" and subsequently "destroyed it and put it in the garbage" in Wayne.

As the questioning became more intense with respect to the firearm and abduction, defendant twice asked if he could "stop right here" because he did not think O'Donnell "was trying to help" him. Although O'Donnell responded that defendant could stop the interview, he continued to ask questions about the gun, its destruction, the shells and other subjects.

The interview ended and was subsequently resumed after the Des Moines police learned that the shotgun had been discovered by New York Police. However, defendant said nothing further and asked for counsel, so the interview ended. The statement and a transcript were admitted at defendant's trial.

On this appeal, defendant argues:

POINT I DEFENDANT WAS DENIED THE RIGHT TO A FAIR

TRIAL WHERE THE COURT PERMITTED THE USE

OF HIS STATEMENT WHEN DEFENDANT, WITH

COUNSEL PRESENT IN THE NEXT ROOM, INQUIRED

AS TO THE ATTORNEY'S WHEREABOUTS, WITHOUT

FURTHER POLICE INQUIRY INTO THIS COMMENT.

POINT II DEFENDANT WAS DENIED THE RIGHT TO A FAIR

TRIAL DUE TO INEFFECTIVE ASSISTANCE OF

TRIAL COUNSEL (Not Raised Below).

POINT III THE DEFENDANT WAS DENIED THE RIGHT TO A

FAIR TRIAL WHEN THE COURT PRECLUDED HIM

FROM INTRODUCING EVIDENCE OF HIS SERIOUS

INTENTIONS TO COMMIT SUICIDE.

POINT IV THE SENTENCES IMPOSED UPON THE DEFENDANT

WERE EXCESSIVE.

(a) THE SENTENCE OF THE DEFENDANT TO THE MAXIMUM

TERM FOR EACH THIRD DEGREE, FOURTH DEGREE

AND THE PETTY DISORDERLY PERSONS OFFENSES

FOR WHICH HE WAS CONVICTED WAS EXCESSIVE.

(b) THE SENTENCE OF THE DEFENDANT TO THE MAXIMUM

TERM OF TEN (10) YEARS WITH A FOUR (4) YEAR

PAROLE DISQUALIFIER FOR THE SECOND DEGREE

CONVICTION WAS EXCESSIVE IN LIGHT OF THE LACK

OF A PRIOR CRIMINAL RECORD[].

POINT V THE SENTENCES OF TEN YEARS WITH A FOUR YEAR

PAROLE DISQUALIFIER ON THE SECOND DEGREE

CRIME, FIVE YEARS ON THE THIRD DEGREE CRIMES,

EIGHTEEN MONTHS ON THE FOURTH DEGREE CRIME,

THIRTY DAYS ON THE PETTY DISORDERLY PERSONS

OFFENSE WERE ILLEGAL.

Defendant asserts that his constitutional rights were violated during the first interview because he indicated that he wanted to stop the interrogation, and that even if there was nothing expressly incriminatory in the statement, the statement was prejudicial when juxtaposed against the facts adduced at trial, including his own trial testimony.

After listening to the testimony and tape recordings, the trial judge concluded that the defendant's statement was admissible at trial, with redactions, under New Jersey law. The State defends that holding, and insists that if its admission was erroneous, it was in any event harmless error. Before us, as in the trial court, no consideration was given to the law of Iowa, the state in which the statement was taken by Iowa officers and an FBI agent.

In State v. Mollica, 114 N.J. 329, 345 (1989), our Supreme Court held that, "[w]ith regard to law-enforcement activities, a state constitution ordinarily governs only the conduct of the state's own agents or others acting under color of state law." That "fundamental understanding of the jurisdictional reach of state constitutions . . . has guided courts in determining whether, if at all, a state constitution can be applied to officers of another state exercising only the lawful authority of that state." Ibid. Thus, the "protections afforded by the constitution of a sovereign entity control the actions only of the agents of that sovereign entity." Id. at 347. Accord, State v. Evers, 175 N.J. 355, 371 (2003). Relying on these principles, the Mollica Court concluded that "federal officers acting lawfully and in conformity to federal authority are unconstrained by the State Constitution, and may turn over to state law enforcement officers incriminating evidence, the seizure of which would have violated state constitutional standards." Mollica, supra, 114 N.J. at 355.

In State v. Knight, 145 N.J. 233, 259 (1996), our Supreme Court reaffirmed the conclusion reached by the Mollica Court, but noted that Mollica placed a "vital, significant condition" on its conclusion. Specifically, "[t]he seized evidence remains inadmissible in [a New Jersey] state court if obtained by federal officers acting under color of state law or as agents of state law-enforcement authorities." Ibid. (citing State v. Mollica, supra, 114 N.J. at 355). Accord, State v. Minter, 116 N.J. 269, 283 (1989). In Knight, the Court found that an FBI agent "was acting as an agent of the Essex County Prosecutor's Office when he interrogated defendant," and the statements to the FBI agent were "rendered inadmissible" under state law. Id. at 261.

In this case, defendant was questioned by and gave a statement to Iowa police officers and an FBI agent in Des Moines, and the actions of those officers should not have been judged without consideration of Iowa law unless the Des Moines officers acted under color of New Jersey law or as agents of New Jersey law-enforcement authorities. Of course, the minimum protections of the federal constitution must be respected by both states.

In determining if the Des Moines officers acted under color of New Jersey law or as agents of New Jersey authorities, a court must conduct a fact-sensitive

examination of the entire relationship between the two sets of government actors no matter how obvious or obscure, plain or subtle, brief or prolonged their interactions may be. The reasons and the motives for [interrogating the witness] must be examined as well as the actions taken by the respective officers and the process used to find, select, and seize the evidence.

[Mollica, supra, 114 N.J. at 355-56.]

The Mollica Court further explained that

[d]iffering relationships and interactions may suffice to establish agency. Thus, antecedent mutual planning, joint operations, cooperative investigations, or mutual assistance between federal and state officers may sufficiently establish agency and serve to bring the conduct of the federal agents under the color of state law. On the other hand, mere contact, awareness of ongoing investigations, or the exchange of information may not transmute the relationship into one of agency.

[Id. at 356.]

In Minter, supra, 116 N.J. at 273-77, federal agents intercepted a phone call that, while admissible in a federal court proceeding, would have been inadmissible in New Jersey. Because there were questions in that case regarding the joint nature of the investigation between New Jersey and federal officials, the matter was remanded to the trial court for additional fact-finding. Id. at 285.

Here, defendant and Linda Gazda were taken to the Des Moines police station by a local attorney, Robert Wright, Jr., whom the pair had retained in the local airport. The police did not know anything about defendant or Gazda at that point. Nor were they aware of any New Jersey warrant for defendant's arrest. When the pair were separately interviewed, Gazda told Detective O'Donnell that she was not with defendant voluntarily. During that interview, Detective Faber of the Wayne Police Department called and advised O'Donnell about the outstanding New Jersey warrant for defendant's arrest. After Gazda was re-interviewed, defendant was arrested and placed in custody, after which he was interviewed by Detective O'Donnell and an FBI agent. The interview followed at least one discussion with Detective Faber. Defendant then gave the statement at issue.

Unlike the situation in State v. Knight, there was not an extensive cooperative effort between New Jersey and Des Moines law enforcement officers that led to defendant's arrest. However, before the statement was taken, Faber informed Des Moines police about the New Jersey warrant and discussed the matter with O'Donnell.

We are satisfied that prudence requires a remand to decide if there was any "agency relationship" and, if not, the relevant standards by which to determine the admissibility of defendant's statements, and for further findings as to admissibility under the proper standard. We do not pass on whether there are differences in the law of New Jersey and Iowa. See, e.g., State v. Washburne, 574 N.W.2d 261, 267 (Iowa 1997); State v. Newsom, 414 N.W.2d 354, 357-58 (Iowa 1987); State v. Astello, 602 N.W.2d 190, 196 (Iowa Ct. App. 1999). We conclude only that the impact, if any, of the trial judge's ruling may be appropriately affected by Iowa law, and that he should consider that issue before further review by us.

The matter is remanded for further findings and conclusions consistent with this opinion. The remand proceedings shall be completed by July 31, 2006. If a new trial is granted, it shall be stayed pending review of a timely motion for leave to appeal by the State. If the statement is deemed admissible, both parties shall file supplemental briefs within thirty days of the trial judge's findings. Those briefs shall include a discussion regarding which state's law should control and the proper scope of review with respect to review of the findings and whether Iowa law is relevant to that subject on the harmless error analysis concerning admissibility of the statement at defendant's trial.

Remanded for further proceedings consistent with this opinion. We retain jurisdiction.

 

The contempt count based on the violation of a Domestic Violence Final Restraining Order was severed and presented separately to avoid prejudicing defendant on the other counts. It was presented to the jury after the verdict was rendered on those counts.

Neither Gazda nor defendant testified at the Miranda hearing, but Gazda testified at trial that she gave Wright the $150 in cash and said she would put the $300 balance on her credit card.

The attorney was given $150 at the airport in connection with representing defendant and resolving the matter. The attorney never testified, and based even on defendant's testimony, it may well be that he thought he was merely taking the couple to the station to help them clarify the voluntary nature of their trip, as opposed to representing defendant with respect to outstanding warrants concerning a criminal matter. Detective Daniel O'Donnell of the Des Moines Police Department testified at the trial that he was not advised the attorney represented defendant, and that defendant did not ask for counsel when the first statement was taken, or when the Miranda warnings were given.

Gazda described where the sawed-off shotgun defendant had possessed could be found. However, the bullets she described were not discovered.

Given the fact that portions of his recorded statement were inconsistent with defendant's testimony at trial, he contends the admission of the statement cannot be deemed harmless.

Iowa law has not been raised or briefed before us, and we think the issue should be considered first in the trial court.

It would be helpful if the trial court would identify for us exactly what was played to the jury on February 7, 2002, and to indicate if everything played during the Miranda hearing on January 23, 2002, was played for the jury during the trial, and how retractions were made from the tape.

(continued)

(continued)

11

A-0272-02T4

June 2, 2006