STATE OF NEW JERSEY v. JAMES WALKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3638-03T43638-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES WALKER,

Defendant-Appellant.

_______________________________________

 

Submitted: September 13, 2006 - Decided October 26, 2006

Before Judges A. A. Rodr guez and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 02-06-0824.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Acting Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After defendant James Walker's motions to suppress evidence and to exclude his confession were denied, he pled guilty to the first degree aggravated manslaughter of Javid Patel, N.J.S.A. 2C:11-4a(1) and first degree robbery, N.J.S.A. 2C:15-1 & 2-6. At the plea hearing, defendant testified to this factual basis. On February 18, 2002, he was at the intersection of Passaic Avenue and Grove Street in Passaic armed with a loaded .45 caliber gun. He saw a black Infiniti and decided to commit an armed robbery. He approached the Infiniti from the passenger's side and fired his gun twice into the vehicle. After the shooting, he hid his weapon at an apartment on Henry Street.

The judge imposed a twenty-five year term with a NERA minimum term on the manslaughter conviction, and a concurrent twenty-year term with a NERA minimum term on the robbery conviction. We affirm the convictions, but remand for resentencing.

The Motion To Suppress

The following proofs were presented by the State at the motion to suppress hearing. Nine days after the murder, Passaic Police Sergeant Eduardo Dehais spoke with a confidential informant, who told him that the night of the murder, "Tron" and "Mira" hid the weapons used to shoot Patel at an apartment on Henry Street. According to Dehais, this information was corroborated by two other sources. It was later determined that "Tron" is the street name for defendant and "Mira" is the street name for his cousin, co-defendant Rashid Walker. Dehais determined that the tenant of the apartment was Lakina Dickerson. That same day, five detectives went to Dickerson's apartment. They identified themselves and entered the apartment where they found four young men and Dickerson's four-year old daughter. Dickerson, however, was at the liquor store. Dickerson returned to the apartment and spoke with Passaic Police Detective Luis Guzman. According to Guzman, Dickerson indicated that she leased the apartment and consented to a search thereof. She did not indicate at that time that one room in the apartment was sub-let to her cousin Sakim Lee, or that her consent to search did not extend to Lee's room.

The detectives searched the apartment. As Guzman approached a high closet in Lee's room, Dickerson's daughter covered her ears and said "no, no, no; that's where those things are that go boom." Inside the closet, Guzman found a Colt .45 caliber handgun, an Auto-Ordnance .45 caliber, and two loaded magazines. Ballistic tests subsequently proved that shell casings and projectiles from the murder scene matched the two firearms seized.

Jakim Henry, Akkem Glaze and Rahim Horne, testified at the hearing for defendant. The three were present at the Henry Street apartment when the search occurred. According to them, the police officers entered the apartment heavily armed, handcuffed the occupants, and searched the apartment without consent. The three testified that Lee's room was always padlocked when Lee was not present. According to Henry, the police kicked down the door to Lee's room.

Dickerson testified that Lee lived at the apartment with her and her two children. Lee paid rent for his room and kept a heavy, gray lock on the door when he was not home. According to Dickerson, when she returned from the liquor store, she saw police surrounding her apartment. She went in and saw her friends on the floor with plastic handcuffs. Two police officers took her into Lee's room and told her that they believed that a weapon used in a murder was present in the house and asked for her consent to search the apartment. She was given a form to sign. However, she cannot read. No one read the form to her. She did not remember being told that she could refuse to consent to the search. She was scared and believed that she could not refuse the search. She signed the consent form and informed the officers that the room they were in belonged to her cousin. Dickerson testified that, if she were at the apartment when the police initially arrived, she would have allowed them to come in, but only "to talk." Dickerson indicated that at the time she spoke to the officers, she had consumed a forty-ounce bottle of beer in approximately thirty to thirty-five minutes.

The judge ruled that defendant, who did not reside at the Henry Street apartment, nor was present during the search, did not have standing to challenge the seizure of the weapons because of the length of time that the weapons remained in the room and the number of people who knew that the weapons were there. Thus, the judge reasoned, defendant had relinquished his interest in the property that was seized. The judge also found that, even if defendant had standing to challenge the seizure, that the motion to suppress should be denied because Dickerson was appropriately advised of her rights and she signed the consent form.

Defendant's Statement To Police

Defendant was arrested at approximately 4:00 a.m. on February 28, 2002. Shortly after the arrest, Passaic Police Sergeant Hershel Rawls testified at the hearing on a motion to exclude defendant's confession that he spoke with defendant at police headquarters. Defendant, who had signed a Miranda waiver form, denied having any knowledge of the murder. The next day, at defendant's request, Rawls had another conversation with defendant at the Passaic County jail. Defendant signed another Miranda waiver form and admitted his participation in the crime. Defendant told Rawls that on the night of the shooting, he was on 3rd Street, smoking cigarettes dipped in embalming fluid. He ran into a friend, Dayron Johnson, whose street name is "Nam." They decided to rob a drug dealer. About one-half hour later, they "bumped into" Patel, who was sitting in his Infiniti talking on the phone. Defendant admitted walking up to the Infiniti with Nam. Defendant stated:

[I] knocked on the front passenger window and I told him to open the window. He started the car and rolled down the back passenger window. So I stuck the gun inside and told him to get out the car. He just put it in reverse and slammed on the gas, peeled tires and everything.

. . .

I squeezed a shot inside the car. My arm kinda got caught inside the car. I pulled my arm out and went in like a full circle. I heard two or three more shots, then I squeezed off another shot at like the hood. Then I took off running down Grove toward Broadway.

Defendant also stated that Nam fired two or three more shots at Patel. Defendant took his gun and the one used by Nam and ran from the scene. He admitted taking the two guns, one a black .45 automatic and the other a chrome .45 caliber, to the Henry Street apartment.

At the hearing, defendant testified to a different version of events. According to defendant, at approximately 4:00 a.m. on February 28, 2002, he and his girlfriend were pulled over by the police. With guns drawn, the police instructed him to exit the car. He was taken into a second-floor interview room at police headquarters and handcuffed to a chair. He was left alone for approximately one hour. After receiving his Miranda warnings, he was asked about the homicide. He denied any involvement. He was left in the questioning room until he was taken to the municipal court. Upon his return to headquarters, he was brought back into the interview room where he remained until he was taken to the Passaic County Jail. He was not given anything to eat nor allowed to sleep. He was questioned on and off for the entire time. He asked to speak with a lawyer or his family multiple times. These requests were denied.

The next day, defendant recalled receiving Miranda warnings again. He denied asking to speak to a detective. He repudiated his confession, asserting that the statement attributed to him was fabricated by the detectives.

The judge denied defendant's motion to suppress the confession to police, holding that defendant was properly given his rights. Therefore, the confession was given voluntarily and with knowledge of defendant's constitutional rights. The judge found that the statement reflected exactly what defendant had responded to Detective Rawls's question. The judge found defendant's testimony at the hearing not credible.

On appeal, defendant contends:

DEFENDANT HAD PARTICIPATORY STANDING TO CHALLENGE THE SEARCH AND SEIZURE OF THE WEAPONS FOUND AT THE HENRY STREET ADDRESS.

THE TRIAL COURT MISAPPLIED THE EXIGENT CIRCUMSTANCES EXCEPTION TO JUSTIFY THE INVASION OF THE HENRY STREET APARTMENT AND THE SEIZURE OF THE PEOPLE THEREIN. ADDITIONALLY, MS. DICKERSON'S SUBSEQUENT CONSENT TO THE SEARCH OF HER HOME WAS THE PRODUCT OF COERCION.

A. The Court Clearly Misapplied The Exigent Circumstances Exception To The Warrant Requirement.

B. Ms. Dickerson's Consent To Search Her Home Was The Product Of Coercion.

C. Because Defendant's Arrest Was The Direct Result Of The Illegal Search And Seizure, His Custodial Statements Are Fruit Of The Poisonous Tree And Must Be Suppressed As Well. U.S. Const. amends. V, IX; N.J. Const. art. I, 7).

We agree with the first contention, but disagree with the second and conclude that the motion to suppress was properly denied.

We begin our analysis by noting that a guilty plea prevents a defendant from making claims on appeal involving constitutional rights. Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973). However, our rule R. 3:5-7(d), permits a defendant to appeal the denial of a motion to suppress evidence on the grounds of unlawful search and seizure. State v. Knight, 183 N.J. 449, 471 (2005); State v. Greeley, 178 N.J. 38, 50-51 (2003).

Our Supreme Court has noted that:

Whenever a constitutional issue is involved on the admissibility of evidence, it is obligatory upon a state appellate court to undertake a wide range of inquiry and careful review, even when conflicting proofs are involved, to determine the adequacy of the proof and the correctness of the determination in order to assure that the constitutional criteria have been respected. State v. Smith, 32 N.J. 501, 549 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961); State v. Johnson, 42 N.J. 146, 160, n.2 (1964). Cf. Ker v. California, 374 U.S. 23, 34, 83 S. Ct. 1623, 10 L. Ed. 2d 726, 738 (1963). Of course, where the evidence is so conflicting that the finding has to turn on credibility, "the conclusion of the one who saw and heard the witnesses should be given controlling regard unless very clearly erroneous." State v. Smith, supra, 32 N.J. at 550; State v. King, 44 N.J. 346 (1965).

[State v. Contursi, 44 N.J. 422, 428 n.2 (1964); see also State v. Alvarez, 238 N.J. Super. 560, 564-65 (App. Div. 1990) (noting the narrow scope of review of trial court's findings of facts, but that legal rulings not entitled to deference).]

We now address the standing issue. Before defendant may challenge the constitutionality of the seizure of the weapons from the Henry Street apartment, he is required to establish that he has "interests that are substantial enough to qualify him as a person aggrieved by the allegedly unlawful search and seizure." State v. Bruns, 172 N.J. 40, 46 (2002). The Supreme Court held in State v. Alston, 88 N.J. 211, 226 (1981), based on a fundamental principle rooted in article I, paragraph 7 of the New Jersey Constitution, that "in cases where the defendant is charged with an offense in which possession of the seized evidence at the time of the contested search is an essential element of guilt," defendant has automatic standing to challenge the seizure. Id. at 228; see State v. Mollica, 114 N.J. 329, 339-40 (1989) (holding that a participatory interest in seized evidence extends beyond those considered only proprietary or possessory interest; it is based on the relationship of the evidence to the underlying criminal activity); see also State v. Curry, 109 N.J. 1, 9 (1987).

Here, defendant had standing because of his participatory interest in the weapons seized at the Henry Street apartment, even though he did not possess the weapons found at the Henry Street apartment at the time of the search, nor present at the apartment during the search. However, for the reasons discussed below, the judge was correct in denying the motion to suppress.

Because this is a warrantless search the state must satisfy its burden that a recognized exception to the warrant requirement existed by a preponderance of the evidence. State v. Wilson, 178 N.J. 7, 13 (2003). An exception to the warrant requirement is a consent search. Our Supreme Court has cautioned that a warrantless search of a person's home "must be subjected to particularly careful scrutiny, because physical entry of the home is the chief evil" against which these constitutional precepts are directed. State v. Cassidy, 179 N.J. 150, 160 (2004) (citations and internal quotations omitted). The State has the burden to show that consent was given. State v. Koedatich, 112 N.J. 225, 262 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). The Supreme Court has held that the State's Constitution requires a higher level of proof than the minimum constitutional protection. Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854, 863 (1973); State v. Eckel, 185 N.J. 523, 538 (2006); State v. Gilmore, 103 N.J. 508, 522-24 (1986). Thus, the State must show "that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent." State v. Johnson, 68 N.J. 349, 353-54 (1975). The State must prove that a person was aware of this right. State v. Johnson, supra, 68 N.J. at 354; Hornberger v. ABC, Inc., 351 N.J. Super. 577, 600 (App. Div. 2002); see also State v. Todd, 355 N.J. Super. 132, 139 (App. Div. 2002). Completing a written consent form meets the State's burden. State v. White, 305 N.J. Super. 322, 332-33 (App. Div. 1997). It also negates the argument of coercion. State v. Binns, 222 N.J. Super. 583, 589-90 (App. Div.), certif. denied, 111 N.J. 624 (1988). However, police officers are not required to have a reasonable and articulable suspicion that criminal activity is occurring within a home before seeking consent to search the residence. State v. Domicz, ___ N.J. ___ (2006) (slip op. at 31-33). In short, State v. Carty, 170 N.J. 632, 635 (2002) does not extend to a consent search of a home. Ibid.

Defendant contends that Dickerson's consent to search was the product of police coercion, and thus, not valid. Not so. In making a determination of the validity of the consent, the trial court reviews the facts in the light of the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862-63 (1973). We review the trial court's findings based on substantial credible evidence in the record standard. State v. Johnson, 42 N.J. 146, 162 (1964).

Here, the judge found that the police did not badger Dickerson to consent. To the contrary, the judge found the police account to be credible. The judge credited the testimony that the police had no knowledge of Dickerson's illiteracy, and that she made no indication when reviewing the consent form that she could not understand its contents. Furthermore, although police had secured the premises until her return from the liquor store, there is no indication, based on the officers' testimony, that any force was involved in obtaining her consent. The judge did not credit testimony that force or coercion was used by the officers.

We reject defendant's argument that Dickerson did not consent to a search of Lee's room. It is clear that:

Consent may be obtained from the person whose property is to be searched, from a third party who possesses common authority over the property, or from a third party whom the police reasonably believe has authority to consent.

[State v. Maristany, 133 N.J. 299, 305 (1993) (citations omitted).]

"It is 'appearances of control' at the time of the search, 'not any subsequent resolution of questions of title or property rights,' that must be used to assess the validity of the officer's search." State v. Farmer, 366 N.J. Super. 307, 313-14 (App. Div.), certif. denied, 180 N.J. 456 (2004) (citing State v. Santana, 215 N.J. Super. 63, 71 (App. Div. 1987)).

Here, the police had a reasonable belief that Dickerson had the authority to consent to a search of the entire apartment. Therefore, they acted properly in searching Lee's room based on her consent.

We also reject defendant's contention that the judge erred by finding that the exigent circumstances justified securing Dickerson's apartment before obtaining her consent. The exigent circumstances exception to the warrant requirement is limited to instances where there is a probability that a legitimate law enforcement goal will be thwarted. That exception requires that both exigent circumstances and probable cause exist. State v. DeLuca, 168 N.J. 626, 632 (2001); see also Kirk v. Louisiana, 536 U.S. 635, 637, 122 S. Ct. 2458, 2459, 153 L. Ed. 2d 599, 603 (2002). Circumstances are exigent when they "preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both." State v. Smith, 129 N.J. Super. 430, 435 (App. Div.), certif. denied, 66 N.J. 327 (1974). This is a fact-sensitive inquiry. State v. Cooke, 163 N.J. 657, 676 (2000). In State v. Valencia, 93 N.J. 126 (1983), the Supreme Court identified some of the relevant factors to consider to determine whether exigent circumstances exist: 1) degree of urgency and time needed to obtain a warrant; 2) reasonable belief that contraband is about to be removed; 3) possibility of danger to police officers guarding the site; 4) information showing that the owners of the contraband know the police are "on their trail"; 5) "the ready destructibility of the contraband" and "the knowledge that efforts to dispose of [the contraband] and to escape are characteristic behavior of persons engaged in this [type of crime]." Id. at 137 (citing United States v. Manning, 448 F.2d 992, 998-99 (2d Cir. 1971)).

Here, the judge found that the police reasonably conducted an initial inspection of the apartment before consent was granted, because there was probable cause that the occupants were engaged in criminal conduct. The judge found that the occupants of the Henry Street apartment knew of the police presence and could have removed the evidence before consent was obtained, if the apartment was not secured. The police had information that this apartment was a meeting place for members of the Bloods gang. These findings are supported by the proofs presented at the hearing. Therefore, we must defer to these findings. State v. Johnson, 42 N.J. 146, 162 (1964); State v. Locurto, 157 N.J. 463, 470-71 (1999).

Defendant also contends:

THE STATEMENTS TAKEN FROM DEFENDANT SHOULD HAVE BEEN SUPPRESSED DUE TO THE FAILURE OF THE INVESTIGATING OFFICER TO SCRUPULOUSLY HONOR DEFENDANT'S RIGHT TO COUNSEL AND RIGHT TO REMAIN SILENT. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, I.

Defendant argues that the trial court erred in denying his motion to suppress the confession. We disagree.

Confessions obtained by the police during a custodial interrogation are barred from evidence unless the defendant has been advised of his or her constitutional rights. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706 (1966). Thus, defendant's confession to police is admissible if it results from the "voluntar[y], knowing[] and intelligent[]" waiver of his constitutional right to remain silent. Ibid.

Defendant does not contend that the police failed to properly administer his Miranda warnings. Rather, he contends that his constitutional rights were violated when he asked for counsel and was denied his request. Such action by the police if it had occurred, would have violated the principle that once a defendant invokes his right to counsel, the interrogation must immediately cease. State v. Kennedy, 97 N.J. 278, 285 (1984); State v. Hartley, 103 N.J. 252, 263 (1986). Interrogation may not resume "unless the accused himself initiates further communication, exchanges or conversations with the police." State v. Kennedy, supra, 97 N.J. at 285 (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 386); State v. Wright, 97 N.J. 113, 122 (1984).

However, defendant's allegation is belied by Detective Guzman's testimony, which the judge credited. The admissibility of defendant's confession is reviewed pursuant to the sufficient credible evidence standard. State v. Knight, 183 N.J. 449, 468 (2005). We determine "whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record." State v. Barone, 147 N.J. 599, 615 (1997) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). Judged against that standard, defendant's allegation that he asked Guzman for an attorney before answering questions must be rejected because the judge did not find it credible.

Defendant also argues that because the weapons were seized in an illegal search, his custodial statements should also be suppressed as fruit of the poisonous tree. See, e.g., Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 454 (1963). However, we have concluded that the search was proper. Therefore, this argument is moot. Moreover, even if the search was not justified, the confession is admissible pursuant to the attenuation exception to the poisonous tree doctrine. State v. Johnson, 120 N.J. 263, 286 (1990); see, e.g., State v. Hunt, 91 N.J. 338, 349 (1982) (holding that if "the causal connection between the illegal conduct and the discovery of the challenged evidence was 'so attenuated' that the taint was dissipated."); see Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S. Ct. 182, 183, 64 L. Ed. 2d 319, 321 (1920) ("If knowledge of [the facts are] gained from an independent source they may be proved like any others").

Here, the poisonous tree doctrine would not apply because the police would have questioned defendant and obtained his confession even if the search had not occurred. Detective Dehais had received information from a confidential source regarding defendant's involvement in the murder.

Finally, defendant challenges his sentence arguing:

BECAUSE THE COURT FAILED TO EVALUATE THE RELEVANT MITIGATING AND AGGRAVATING FACTORS PROPERLY, THE SENTENCE IMPOSED ON DEFENDANT WAS EXCESSIVE.

We do not address the substance of this argument because based on the holding in State v. Natale, 184 N.J. 458, 466 (2005), defendant must be re-sentenced. In Natale, the Supreme Court held that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Id. at 466. This case remedied problems with the constitutionality of presumptive sentences after Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403, 413, reh'g denied, 542 U.S. 961, 125 S. Ct. 21, 159 L. Ed. 2d 851 (2004), in which the United States Supreme Court held that sentences that exceeded the maximum must be authorized by a jury verdict or a defendant's plea.

Our Supreme Court remedied the unconstitutionality of the sentencing scheme by eliminating presumptive terms from the sentencing process entirely, thereby permitting judges to identify and weigh the applicable aggravating and mitigating factors and then sentence defendants within the entire statutory range. State v. Natale, supra, 184 N.J. at 487. The Court determined that the elimination of presumptive terms applies "retroactively to cases in the pipeline." Id. at 494. Therefore, the decision applies to this case, which was on appeal at the time of the ruling.

The convictions are affirmed, but the sentences are vacated and remanded for resentencing.

 

No Early Release Act, N.J.S.A. 2C:43-7.2.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

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A-3638-03T4

October 26, 2006