STATE OF NEW JERSEY v. DWAYNE CARREKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6236-03T46236-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DWAYNE CARREKER,

Defendant-Appellant.

___________________________________

 

Submitted January 18, 2006 - Decided February 8, 2006

Before Judges Skillman, Payne and Sabatino.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 99-09-1076.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

Nancy Kaplen, Acting Attorney General, attorney for respondent (Joie Piderit, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was indicted for purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1)(2); felony murder, in violation of N.J.S.A. 2C:11-3a(3); burglary, in violation of N.J.S.A. 2C:18-2; attempted aggravated sexual assault, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a; attempted aggravated arson, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:17-1a; and possession of a weapon for unlawful purpose, in violation of N.J.S.A. 2C:39-4d. The attempted aggravated arson charge was subsequently dismissed before submission of the case to the jury.

Defendant moved to suppress oral and recorded statements he made to the police. Defendant also moved to suppress evidence that was seized during a consent search of part of his residence and a subsequent search of the entire residence pursuant to a warrant. After an evidentiary hearing, the trial court denied both motions in a comprehensive written opinion.

A jury found defendant guilty of purposeful or knowing murder and possession of a weapon for an unlawful purpose. The jury acquitted defendant of the other charges, but found him guilty of criminal trespass, in violation of N.J.S.A. 2C:18-3, as a lesser-included offense of burglary. The trial court sentenced defendant to life imprisonment, with thirty years of parole ineligibility, for murder, and a consecutive eighteen-month term, with nine months of parole ineligibility, for criminal trespass. The court merged defendant's conviction for possession of a weapon for an unlawful purpose into his murder conviction.

During the summer of 1999, Gennifer Woodard lived in a single-family house in New Brunswick with her three children, the victim Queshan, who was twelve; Deshaun, who was seven; and Dionte, who was twenty months old. Gennifer and the defendant were friends who had had a brief romantic relationship when they first met in 1998. Defendant lived approximately three blocks from Gennifer, and he knew her children.

Gennifer worked every Thursday as a bartender from 9 p.m. to 2 a.m., and Queshan would babysit her brothers when Gennifer was at work. Gennifer left for work between 8:30 and 8:45 p.m. on July 29, 1999 and locked the two types of bolts on the back door. Queshan babysat only Dionte that night because Deshaun was in Louisiana with his grandmother.

Gennifer returned home at 2:30 a.m. the next morning. She went into Dionte's bedroom and found him in his crib whining. After unsuccessfully searching the upstairs bedrooms for Queshan, Gennifer discovered her daughter "laying in the bathtub naked from the waist down" and unresponsive. Gennifer ran out of the house screaming for help. Friends and neighbors called 9-1-1.

Defendant approached Gennifer after the police and an ambulance arrived. He asked her what had happened, and she "screamed somebody [had] killed Queshan." He comforted her and held her up as she became physically ill. He rode with Gennifer in a police car to the hospital and sat with her while she waited to hear news from the doctors. He mentioned to Gennifer that he saw Queshan earlier that evening and had told her to be in the house by 9:00 as her mother had instructed. At the hospital, Queshan was officially pronounced dead. A subsequent autopsy revealed that she suffered three stab wounds to her neck; six stab wounds to the back of her head, three of which penetrated her scalp; five stab wounds to her front chest cavity, one of which penetrated her heart and another of which penetrated her lung and liver; and eleven stab wounds to her back, four of which penetrated the chest cavity.

Defendant was wearing blue jeans at the hospital. At trial, James Smith, who had spent time with defendant during the evening of July 29th, testified that defendant was wearing his black "Boss" shorts earlier that day. Smith also testified that defendant said during the course of the evening that "[Queshan was] going to be hot just like her mother when she get older." When Smith again saw defendant around 12:30 a.m., he had changed into blue jeans.

Two of Gennifer's neighbors testified that, when they walked past Gennifer's house at approximately 1:30 a.m., they saw defendant sitting on the front step with his head back against the door and his eyes rolled back. At the hospital, one of the neighbors asked defendant if he knew anything about what happened to Queshan and if he heard anything when he was at their house earlier. Defendant responded "No, I didn't." When he was talking to defendant, the neighbor noticed fresh scratches on defendant's hand and asked him where they came from. Defendant said he got the scratches at his job and became defensive. Their conversation escalated and prompted Detective Selby and another police officer to come into the waiting room. Fearing for defendant's safety, the officers asked the defendant to come outside with them.

Detective Selby then requested defendant to come to police headquarters, which he agreed to do, and a patrol car took defendant there from the hospital. Detective Selby testified that defendant was not under arrest, and the purpose of asking him to go to headquarters was to ascertain what the argument was about in the waiting room.

While Detective Selby and defendant were waiting at police headquarters for the arrival of the officers who were going to interview defendant, defendant asked Selby what the police needed from him. Selby responded that they "needed to interview him because . . . the people at the hospital were accusing him of being at the scene and we needed to clear that up." Defendant then told Selby he had gone to the Woodard house around 1 a.m. and knocked on the front door, and when there was no response, he sat down on the front steps for a few minutes because he felt dizzy. He then went home and went to bed. Later, when he awakened because his mouth was dry, he heard people screaming outside in front of the Woodard house. At this point, he returned to the Woodard house to find out what had happened.

After defendant had been at police headquarters for approximately an hour, Investigator John Maslak of the Prosecutor's Office and Detective Royce Cradic of the New Brunswick Police Department entered the room to interrogate him. The officers administered verbal Miranda warnings to defendant and also gave him a card explaining the warnings, which he read and signed. Defendant agreed to speak with Maslak and Cradic.

They questioned defendant about the injuries to his hands and arm. Defendant said that an injury in the area between his thumb and index finger had been caused by a sewing machine in the embroidery shop where he worked. According to Investigator Maslak, when defendant was questioned about his other injuries:

He did not recall initially how he injured his right index finger or received the scratches to his upper portion of his right arm. He then indicated after not recalling that he inflicted the injury to his right index finger himself . . . with a fingernail from his left hand. We asked him why. His response was that he liked pain. He could not provide an answer for how he sustained the injuries to the upper portion of his right arm.

In response to the questioning, defendant at first stated that he never entered the Woodard house that evening. Investigator Maslak then told defendant that an officer who patrols the area may have seen him coming out of the house. At this point, defendant's demeanor changed significantly. According to Maslak: "He wouldn't maintain eye contact. He sat back in his chair, crossed his arms and began to tap his fingers." Defendant then retracted his original statement denying he had entered the house and said:

[O]h, yeah, I did go in 72 Lee Avenue.

. . . .

He indicated that upon arriving at approximately one a.m. he knocked on the door, didn't get any response, then went around to the back, opened up the back door, went to the kitchen sink, splashed water on his face and then exited through the front. He indicated that while in the residence he didn't encounter anyone there.

During the course of their interview, the officers asked defendant whether he would consent to a search of his house. Defendant responded that he lived in his mother's house and would only consent to a search of his own bedroom. Defendant also told the officers that he had a .25 caliber handgun in the bedroom. Defendant then signed a consent search form for a search of his bedroom.

When a group of police officers went to defendant's house to conduct the search, they encountered seven or eight people in the house. The officers brought all of the people into the living room and conducted a protective sweep of the rest of the house to assure themselves that there were no other occupants. Detective Selby walked down the stairs to the basement to be sure there was no one there. At the bottom of the stairs, he saw a pair of socks and a pair of pants that appeared to have red staining on them. When he showed these items to the officer supervising the search, they decided to leave the house and apply for a warrant for the entire premises. The officers then directed the occupants to leave, and they secured the house while an application for a warrant was made.

After the warrant was issued, the officers returned to the house. As Detective Selby was walking up the stairs leading to the back door, he observed a pair of pants sticking out of an open garbage can. He picked up the pants and noticed what appeared to be blood on the back pocket. A further investigation of one of the pockets revealed three plastic handle steak knives and one wooden handle steak knife, all of which had broken blades. The police also found three of the four blades in the same pocket.

Subsequent analysis disclosed that the victim's blood was on the shorts discovered in the garbage can and on two of the knife blades found in the pocket. The shorts were identified as the ones defendant had been wearing the night of the murder, and the knives were identified as ones that had been taken from the Woodard kitchen. Moreover, fibers were found on one of the knives that matched the fibers in the nightshirt Queshan was wearing when she was murdered. The defendant's bloody palm print was recovered from the washing machine in the kitchen, and his prints were also found on the molding above a light switch.

On appeal, defendant presents the following arguments:

I. DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE SIGNIFICANT INCULPATORY EVIDENCE WAS DISCOVERED AS THE RESULT OF AN ILLEGAL SEARCH AND SEIZURE, IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION.

II. DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HIS INCRIMINATING STATEMENTS TO LAW ENFORCEMENT OFFICERS WERE A CONSEQUENCE OF HIS INITIALLY NOT HAVING RECEIVED HIS MIRANDA RIGHTS DURING CUSTODIAL INTERROGATION AND/OR THE FUNCTIONAL EQUIVALENT OF CUSTODIAL INTERROGATION, IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

III. THE AGGREGATE ERRORS MANDATE THAT DEFENDANT'S CONVICTIONS BE REVERSED. (Not Raised Below).

IV. DEFENDANT'S SENTENCE WAS EXCESSIVE AND MUST BE VACATED. (Not Raised Below)

A. The lower court violated the Sixth and Fourteenth Amendments of the United States Constitution.

B. The lower court erred by imposing a consecutive term.

We reject these arguments and affirm defendant's conviction and sentence except for the sentence for criminal trespass, which must be vacated for resentencing in conformity with State v. Natale, 184 N.J. 458 (2005).

I

In arguing that Detective Selby's seizure of defendant's shorts containing the victim's blood and the murder weapons from the open garbage can violated the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution, defendant does not challenge the validity of his consent to the search of his bedroom, the protective sweep of the basement of his mother's house during the consent search, or the warrant authorizing the search of the house. Defendant's sole argument is that the warrant did not authorize Detective Selby to pick up the pair of pants he observed in the garbage can located along the staircase just outside the house.

In rejecting this argument, Judge DeVesa stated:

Pursuant to the search warrant that had been obtained for the premises, Selby was authorized to search for blood stained clothing. The shorts were in plain view while he was lawfully on the premises.

The warrant authorized the search of the "premises" known as 202 Hale Street. The definition of premises means more than the structure. It means the entire estate, the lands and the buildings. See Maplewood v. Tennenhaus, 64 N.J. Super. 80 (App. Div. 1960). . . . The shorts containing the knife were found within a lidless trash can lined up alongside the house of 202 Hale Street. Thus, the trash cans were clearly on the premises of 202 Hale Street and were more specifically within the curtilage of the house. According to United States v. Dunn, 480 U.S. 294, 301 (1987), four factors define whether a place is within the curtilage of a home. They are: (1) the proximity of the area claimed to be curtilage to the home; (2) whether the object is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation from people passing by.

In this case, the trash cans were along side of the house in the backyard enclosed by a chain-linked fence. Therefore, the Court finds that the trash cans were within the curtilage of 202 Hale Street and were properly searched.

In addition, the defendant had no reasonable expectation of privacy in his trash since the items were in plain view.

Anyone passing by the home on the sidewalk could see the backyard through the chain link fence and could look into lidless trash cans that were located in the yard. Moreover: (1) the trash cans did not have any lids leaving their contents open to the public; (2) the trash cans were located within feet of a public sidewalk only separated by a chain link fence where the public could see into the cans; and (3) no attempt was made to conceal the pants within the trash can.

Under the plain view doctrine, police are allowed to seize evidence in the plain view of the seizing officer so long as the officer is lawfully at the location from which he glimpsed the evidence and it is immediately apparent to the officer that the item in question is contraband or evidence of a crime. See Coolidge v. New Hampshire, 403 U.S. 443 (1971); see also State v. Bruzzese, 94 N.J. 210, 236-38 (1983). In this case, the police were lawfully on the premises and it was immediately apparent to detective Selby that the bloody pants were related to the crime.

We affirm the denial of defendant's motion to suppress the evidence contained in the shorts found in the garbage can substantially for the reasons set forth in Judge DeVesa's written opinion. We make the following brief supplemental comments. Because the warrant authorized a search of the area outside the stairs to the house where the garbage can was located, the seizure of the shorts may be sustained without consideration of the plain view doctrine.

In any event, Judge DeVesa correctly concluded that the plain view doctrine would apply under the circumstances of this case. To sustain a seizure of evidence under this doctrine, the State must show that (1) the police officer was "lawfully in the viewing area," (2) the officer discovered the evidence "inadvertently," meaning that "he did not know in advance where [it] was located or intend beforehand to seize it," and (3) it was "immediately apparent" that "the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure." State v. Bruzzese, 94 N.J. 210, 236 (1983). The third requirement of the plain view doctrine may be satisfied by a showing that "the facts available to the officer would 'warrant a man of reasonable caution in the belief' that certain items may be contraband, or stolen property or useful as evidence of a crime, it does not demand any showing that such belief be correct or more likely true than false." Id. at 237 (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S. Ct. 1535, 1543, 75 L. Ed. 2d 502, 514 (1983)). All of these requirements were satisfied in this case. First, Detective Selby was lawfully on the steps leading up to the rear door when he saw the shorts protruding from the garbage can because the police were going into the home to execute a search warrant. Second, Detective Selby's discovery of the shorts was inadvertent because there is nothing in the record to suggest he knew in advance where the shorts were located. Third, it was "immediately apparent" the shorts could be evidence relevant to the murder because Detective Selby knew they were searching the prime suspect's residence, had observed what appeared to be blood on clothing inside the residence, was aware a bloody sheet was found in the suspect's closet, and knew the search warrant encompassed blood-stained clothing. Thus, the shorts were exactly the type of evidence the search warrant instructed Detective Selby to look for.

II

Under Point II of his brief, defendant argues that Detective Selby subjected him to "custodial" interrogation without giving Miranda warnings, and therefore his motion to suppress evidence of the statements made to Detective Selby should have been granted. He also argues that his subsequent interrogation by Investigator Maslak and Detective Cradic, after Miranda warnings were given, was tainted by the previous statements made to Detective Selby. Defendant does not challenge the adequacy of the Miranda warnings provided by Investigator Maslak and Detective Cradic or the voluntariness of his statements to them, independent of the alleged taint of the prior questioning by Detective Selby, nor does he claim that there was any other impropriety in the questioning conducted by Investigator Maslak and Detective Cradic.

In rejecting defendant's arguments based on Detective Selby's questioning, Judge DeVesa stated:

At the hospital, where the defendant had voluntarily gone to console Gennifer Woodard, Detective Selby overheard a group of people accuse the defendant of being at the crime scene near the time that the victim was murdered. Detective Selby asked the defendant if he would come to New Brunswick Police Headquarters to assist in the investigation of the homicide. The defendant readily agreed and voluntarily went to police headquarters. Although taken to headquarters in a marked patrol unit, the defendant was not formally placed under arrest, was not in handcuffs, and was not restrained in any manner. At headquarters, the defendant was taken to an interview room by the transporting officers and was left alone and unrestrained to await Detective Selby. When Detective Selby arrived at headquarters, he requested an active warrant check on the defendant from one of the dispatchers and then offered the defendant coffee or something else to drink. He did not initiate conversation with the defendant at that time. While Detective Selby was making coffee, the defendant said to him, "It was a shame what happened to that girl." Detective Selby agreed. Without prompting, the defendant asked how he could assist. Detective Selby then responded that he needed to ask him some questions about what the people at the hospital were saying. According to Selby, the defendant volunteered that he went to 72 Lee Avenue to see the victim's mother. He told the detective that he went there at 1:00 a.m., knocked on the door, and did not receive an answer. He further stated that he sat on the porch because he felt dizzy from drinking, and then got up to go home approximately two or three minutes later. Detective Selby then asked how he found out about the incident. The defendant said he had awakened due to dry mouth and heard people screaming. He went outside to find out what was happening. Detective Selby also asked how he got the cuts on his hands. The defendant said that he received the cuts from embroidery needles. Shortly thereafter, Detective Selby was relieved by Detective Cradic and Investigator Maslak. Detective Selby left the interview room without advising the other investigators of the defendant's statement and without following up on the warrant check.

The Court finds that the Defendant's statements to Detective Selby are admissible because the defendant was not subjected to custodial interrogation at the time the statements were made. While there is no doubt that Detective Selby viewed defendant as a potential suspect, he had not said or done anything to cause the defendant to reasonably believe that he was in custody or not free to leave. In Oregon v. Mathiason, 97 S. Ct. 711 (1977), the United States Supreme Court made it clear that police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warning to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspected. Custodial interrogation, not the fact that the police have focused on a particular suspect, triggers the requirement that Miranda warnings be given. See State v. Coburn, 221 N.J. Super. 586, 595 (App. Div. 1987). Although a lack of formal arrest does not preclude a determination of custody, it surely is a factor the court should consider to assess whether he was in custody[.] Orozco v. United States, 394 U.S. 324 (1969). To determine whether a defendant was in custody, the Court must consider whether the "action of the interrogating officer and the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he could not leave freely." Id. at 596. See also State v. Godfrey, [131] N.J. Super. 168, 176 (App. Div. 1974). In applying this test, the Court finds that the defendant was not subjected to custodial interrogation by Detective Selby. The defendant voluntarily went to police headquarters purportedly to assist in the investigation. He was not placed under arrest and was not restrained. The defendant's statements were intended by him to be exculpatory and were made in the context of casual conversation that he initiated. There was no coercion, badgering or deceit employed by the detective to obtain the statements. The encounter was so casual that Selby didn't even mention it to other detectives and forgot to follow up on the warrant check that he had requested. While it does appear that there was an outstanding warrant for the defendant at the time of his statements, the Court is satisfied that the detective did not know about it at the time. There was no police conduct which would have led the defendant to reasonably believe that he was not free to leave.

. . . .

The conclusion that the defendant did not reasonably believe he was in custody in this matter is reinforced by the fact that even later when defendant began his first formal statement to Investigator Maslak, he stated "I'm not being arrested or anything?" Investigator Maslak replied, "No, no."

. . . .

Finally, even if one were to conclude that the defendant was already in custody as a result of his encounter with Detective Selby, this later administration of Miranda warnings prior to the subsequent statements cured any taint caused by any failure to previously administer the warnings. See Oregon v. Elstad, 470 U.S. 298 (1985). As the Court held in that matter, "It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period." Id. at 309. The New Jersey courts have followed the reasoning in Elstad in State v. Brown, 282 N.J. Super. 545 (App. Div. 1995). The reasoning in Elstad and Brown clearly applies here. Although the defendant gave statements to Detective Selby prior to being given the Miranda warnings, his statements were not the product of any coercion. The defendant cooperated and voluntarily went to the police headquarters to assist in the investigation. The fact that he had come to the scene and to the hospital to offer his assistance to the victim's mother was consistent with his purported cooperation. Detective Selby attempted to make the defendant comfortable by offering him the use of the restroom as well as coffee. The defendant initiated the conversation with the detective after he was there for a short time wherein his statements were largely exculpatory and informal. Therefore, the Court finds that simple failure to administer the Miranda warnings could not have undermined the defendant's ability to exercise his free will when he later waived his rights and gave the formal statements.

We affirm the denial of defendant's motion to suppress his statements to Detective Selby and to Investigator Maslak and Detective Cradic substantially for the reasons set forth in Judge DeVesa's written opinion.

III

Defendant argues that the trial court violated his Sixth Amendment right to trial by jury in finding aggravating sentencing factors other than prior criminal convictions without jury fact-finding regarding those factors. In Natale, supra, 184 N.J. at 466, the 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 defendant's Sixth Amendment jury trial guarantee." To remedy this constitutional violation, the trial court must conduct "a new sentencing hearing in each affected case based on the record at the prior sentencing." Id. at 495-96. This holding is applicable to any case that was on "direct appeal" when Natale was decided. Id. at 494.

Natale does not apply to defendant's sentence to life imprisonment, with thirty years of parole ineligibility, for murder, because there is no presumptive term for murder. State v. Abdullah, 184 N.J. 497, 507-08 (2005). However, Natale does apply to defendant's eighteen-month sentence, with nine months of parole ineligibility, for the fourth-degree offense of criminal trespass, for which the presumptive term is nine months. N.J.S.A. 2C:44-1f(1)(e). Consequently, defendant's sentence for this offense must be vacated and the case remanded for resentencing in conformity with Natale.

Defendant also argues that the trial court improperly applied the criteria set forth in State v. Yarbough, 100 N.J. 637 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), in imposing a consecutive term for his conviction for criminal trespass. A trial court has discretion in determining whether a sentence should be served concurrently or consecutively. Abdullah, supra, 184 N.J. at 512-13. We find no abuse of that discretion in this case.

 
Accordingly, we vacate defendant's sentence for criminal trespass and remand for resentencing in conformity with Natale for that offense. Defendant's convictions and sentences are affirmed in all other respects.

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A-6236-03T4

February 8, 2006