STATE OF NEW JERSEY v. EUGENE BASIL

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0350-07T40350-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EUGENE BASIL,

 

Defendant-Appellant.

_________________________________________________

 

Argued January 22, 2009 - Decided

Before Judges Payne, Waugh and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment No.

05-04-0592.

William J. Sweeney argued the cause for

appellant (Yvonne Smith Segars, Public

Defender, attorney; Mr. Sweeney, Designated

Counsel, on the brief).

Joel S. Silberman, Assistant Prosecutor,

argued the cause for respondent (Edward

J. DeFazio, Hudson County Prosecutor,

attorney; Mr. Silberman, Assistant

Prosecutor, on the brief).

PER CURIAM

Defendant, Eugene Basil, appeals from his conviction for unlawful possession of a weapon, N.J.S.A. 2C:39-5c(1), and from his extended-term sentence of ten years with a five-year parole disqualifier.

On appeal, defendant presents the following arguments:

POINT I

POLICE OFFICER TESTIMONY REGARDING AN ALLEGED STATEMENT AT THE POLICE STATION VIOLATED APPELLANT'S RIGHTS UNDER THE FOURTH, FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE CONSTITUTIONAL AND COMMON LAW OF THE STATE OF NEW JERSEY.

A. The Unlawful Seizure and Arrest of Appellant (Fourth Amendment).

B. The Failure to Administer Miranda Rights and Violation of Appellant's Rights against Self-Incrimination (Fifth Amendment).

C. Violation of Appellant's Right to Due Process by Official Inducement of an Involuntary Confession (Fourteenth Amendment) [NOT RAISED BELOW].

POINT II

ADMISSION OF POLICE OFFICERS' TESTIMONY REGARDING THE SUBSTANCE OF THE ANONYMOUS 911 CALL AND THE STATEMENTS OF THE ANONYMOUS TIPSTER CONSTITUTED INADMISSIBLE HEARSAY AND VIOLATED APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION AND HIS FOURTEENTH AMENDMENT RIGHT TO A FAIR TRIAL.

POINT III

DEFENDANT WAS DENIED HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE GROSS FAILURE OF THE STATE TO CONDUCT A COMPETENT INVESTIGATION, THE RESULTS OF WHICH COULD WELL HAVE VINDICATED APPELLANT.

POINT IV

IT WAS ERROR TO ALLOW APPELLANT'S PRIOR CONVICTIONS INTO EVIDENCE AS TO APPELLANT'S CREDIBILITY IF HE TOOK THE STAND TO TESTIFY IN HIS OWN DEFENSE.

POINT V

THE TRIAL COURT ERRED IN FAILING TO ENTER A JUDGMENT SUA SPONTE ON THE SOLE CHARGE OF POSSESSION OF A GUN, AS NO EVIDENCE, OTHER THAN ANONYMOUS STATEMENTS, WAS PRESENTED BY THE STATE.

POINT VI

THERE WAS INSUFFICIENT EVIDENCE OF APPELLANT'S GUILT OF POSSESSION OF A WEAPON AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT VII

THE TRIAL JUDGE ABUSED HIS DISCRETION IN GRANTING THE MOTION FOR AN EXTENDED TERM AND THEREAFTER IN SENTENCING APPELLANT TO THE MAXIMUM EXTENDED TERM.

I.

Prior to trial, a suppression hearing was held in this matter, at which Jersey City Police Officer Anthony Ruocco and defendant testified. Ruocco testified that, on February 12, 2005, at approximately 1:00 a.m., he and his partner, William Sullivan, received a call from dispatch conveying a report of a male with a shotgun at 199 Bidwell Avenue. Ruocco did not recall if any description of the male or the source of the information was given. Ruocco and Sullivan drove to the location, where Ruocco observed two or three black males standing on the corner. After leaving the patrol car, Ruocco was approached by a black female of approximately eighteen or nineteen years of age, who pointed to defendant and stated, in essence, "that that guy pointed a shotgun at me and told us to get off the corner." The female stated additionally that defendant had thrown the gun underneath a black Cadillac, where it was later recovered by another police officer. The female refused to give her name or a statement, claiming that she lived in the area and "didn't want no further police action."

Following the female's report, other officers stopped defendant, who asked what was going on. The officers then transported defendant in a police radio car to a police station located three to four blocks away. Ruocco could not recall if defendant was handcuffed. Although he stated that defendant was not under arrest at that point, Ruocco testified that defendant was not free to leave and that he had "to get let out of the [police] vehicle." Ruocco testified further that if defendant had refused to come to the station, "[h]e would have been arrested for obstructing."

Ruocco did not recall whether defendant said anything while in the police car, although he did not believe that defendant spoke. However, Ruocco claimed that, upon being taken from the car, defendant spontaneously stated: "What the problem, you guys don't do your job. So I went inside and got my shotgun." Following this statement, according to Ruocco, defendant was placed under arrest and Miranda warnings were administered. Defendant declined to give a further statement.

Defendant provided a different version of the events. He stated that at the time he resided at 204 Bidwell Avenue. That evening, he and other family members were holding a wake for defendant's grandmother at defendant's residence. Defendant testified further that, when questioned by the police, he was assisting his pastor, who was carrying food from the church van to defendant's home. Defendant denied possessing a shotgun, pointing a weapon, placing the weapon under a car, and making a statement to the police. Defendant testified that he was handcuffed prior to being placed in the police vehicle.

At the conclusion of the hearing, the trial judge ruled:

I find that the statement by the defendant there was no Miranda warnings at that time because there was no questioning at that time, and two, that the investigative detention of the defendant based upon the identification of the defendant by a citizen and the finding of the shotgun under the vehicle that the citizen had pointed out was sufficient for them to conduct a further investigation.

So I'm denying the defendant's application to suppress any evidence and any statements by the defendant.

II.

Both the United States and the New Jersey Constitutions protect against unreasonable searches and seizures. U.s. Const. amend. IV; N.J. Const. art. I, 7. Not every encounter with the police is considered a seizure.

[A] seizure occurs "only when, by means of physical force or a show of authority, [the suspect's] freedom of movement is restrained" and "only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."

[State v. Tucker, 136 N.J. 158, 164 (1994) (quoting United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980)).]

The constitutional restrictions guiding police encounters can be categorized as follows:

The police may "arrest" only if they have probable cause; they may "stop" for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an "inquiry" without any grounds for suspicion.

[State v. Alexander, 191 N.J. Super. 573, 576 (App. Div. 1983), certif. denied, 96 N.J. 267 (1984).]

In this case, it is unclear whether defendant was formally arrested prior to transport to the police station. It is nonetheless apparent from the testimony of Officer Ruocco that defendant was removed from a sidewalk near his home and transported by the police to the station for questioning, and that he was not free to leave. No judicial intervention occurred. See R. 3:5A-4; State v. Hall, 93 N.J. 552, 561, cert. denied, 464 U.S. 1008, 104 S. Ct. 526, 78 L. Ed. 2d 709 (1983). For Fourth Amendment purposes, defendant's detention was the equivalent of an arrest. As the United States Supreme Court has held in the context of a discussion of the restrictions placed on the police when conducting an investigatory stop under principles established in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968),

the line is crossed when the police, without probable cause or warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes. We adhere to the view that such seizures, at least where not under judicial supervision, are sufficiently like arrests to invoke the traditional rule that arrests may constitutionally be made only on probable cause.

[Hayes v. Florida, 470 U.S. 811, 816, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705, 710 (1985).]

See also, Dunaway v. New York,, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979) (custodial questioning, in absence of probable cause, violated the defendant's Fourth and Fourteenth Amendment rights).

The precedents that we have cited establish that, in order for defendant's seizure to meet constitutional requirements, it had to have been supported by probable cause, founded upon the statements of the anonymous informant or informants. "In determining whether there is probable cause, the court should utilize the totality of the circumstances test set forth in Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)." State v. Moore, 181 N.J. 40, 46 (2004).

Applying Gates's principles, we find probable cause to be lacking in this case. In Gates, the Court rejected decisions interpreting the Court's prior holdings in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) as rigidly requiring satisfactory proof of an informant's "veracity," reliability" and "basis of knowledge." Gates, supra,, 462 U.S. at 230, 103 S. Ct. at 2328, 75 L. Ed. 2d at 543. Rather, the Court held, those concepts "should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is 'probable cause' to believe" that the defendant has committed a crime. Ibid. The Court further observed:

[P]robable cause is a fluid concept turning on the assessment of probabilities in particular factual contexts not readily, or even usefully, reduced to a neat set of legal rules. Informants' tips doubtless come in many shapes and sizes from many different types of persons. As we said in Adams v. Williams, 407 U.S. 143, 147 (1972): "Informants' tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability." Rigid legal rules are ill-suited to an area of such diversity. "One simple rule will not cover every situation." Ibid.

[Gates, supra, 462 U.S. at 232, 103 S. Ct. at 2329, 76 L. Ed. 2d at 544.]

In the present case, a report that a man was pointing a shotgun was received by the police. Upon arrival at the scene, the police were informed by a female, who declined to give her name or a statement, that defendant one of two or three black men at the location was the culprit, and that he had placed the gun underneath a nearby black Cadillac, where it was in fact found. The police did not witness defendant pointing the gun or placing it under the car, and they had no evidence, other than the informant's statement, suggesting that defendant previously had the gun in his control. We do not find the accusation of the anonymous informant sufficient to establish probable cause.

In reaching that conclusion, we rely in part on the Supreme Court's decision in Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). In that case, an anonymous caller reported to local police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. The police responded, subjecting all black males at the bus stop to an investigative Terry frisk. J.L., a minor wearing a plaid shirt, was found to be carrying a concealed firearm without a license. On appeal to the Supreme Court, the frisk, which required only reasonable suspicion of criminal activity, not the higher standard of probable cause, applicable here, was declared to have violated the defendant's Fourth Amendment rights. The Court held:

In the instant case, the officers' suspicion that J.L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, see Adams v. Williams, 407 U.S. 143, 146-147, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972), "an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity," Alabama v. White, 496 U.S. at 329. As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits "sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." 496 U.S. at 327. The question we here confront is whether the tip pointing to J.L. had those indicia of reliability.

[J.L., supra,, 529 U.S. at 270, 120 S. Ct. at 1378, 146 L. Ed. 2d at 260.]

The Court then rejected Florida's position that the tip was reliable because its description of the suspect's visible appearance was accurate. Although the court found an accurate description of the suspect's location and appearance was reliable in a limited sense, because it would help the police to correctly identify the person the tipster intended to accuse, the Court found that the tip did not show the tipster had knowledge of concealed criminal activity, and thus it was not reliable for Fourth Amendment purposes. Id. 529 U.S. at 271-72, 120 S. Ct. at 1379, 146 L. Ed. 2d at 261.

Additionally, the Court rejected the argument that the usual Terry analysis should be modified to recognize a "firearm exception" permitting a stop and frisk even if the reliability of the accusation was not demonstrated. The Court observed in language relevant to the present appeal:

Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our decisions recognize the serious threat that armed criminals pose to public safety; Terry's rule, which permits protective police searches on the basis of reasonable suspicion rather than demanding that officers meet the higher standard of probable cause, responds to this very concern. See 392 U.S. at 30. But an automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun.

[J.L., supra,, 529 U.S. at 272, 120 S. Ct. at 1379-80, 146 L. Ed. 2d at 261.]

Applying J.L.'s principles to the present matter, we likewise find the anonymous tipster's information regarding a previously-occurring event, unwitnessed by the police, to lack reliability. Although the presence of a gun at the location specified by the tipster was corroborated, there is absolutely nothing that corroborates the identification of defendant as the person who previously wielded that gun. Nor is there any reason to believe that the tipster, who refused to identify herself or give a statement, was speaking the truth. For all that is known, the identification could have been made as a means for exacting revenge upon or otherwise harassing a seemingly innocent person. Such a bare-boned tip is simply insufficient to establish probable cause in this case.

We rely, as well, upon our decision in State v. Matthews, 398 N.J. Super. 551 (App. Div.), certif. denied, 196 N.J. 344 (2008), cert. denied, ___ U.S. ___, 129 S. Ct. 1037, ___ L. Ed.2d ___ (2009), another man-with-a-gun case. There, an anonymous tipster informed the police that an individual in a burgundy Durango with a temporary tag was flashing a gun in the 1100 block of East St. George Avenue in Linden at 2:30 a.m. Upon locating the parked car, the police conducted pat-down searches of its three occupants and, finding nothing, also conducted a search of the car that disclosed a gun under the front passenger seat. The driver and two occupants of the car were thereupon arrested, as was defendant, who approached the scene and made several attempts to get into the vehicle. While in the back seat of the police vehicle, defendant stated that the gun was his. On appeal from a denial of defendant's suppression motion, we reversed, finding that:

The pat-down searches of the driver and occupants and the search of the Durango were based solely on an unidentified anonymous tip. There are simply no other facts in the record demonstrating that the police had an objectively articulable and reasonable basis to believe the subject of the stop was armed and dangerous. . . . Similar to the circumstances in J.L., all the police had to go on was the "bare report of an unknown, unaccountable informant" that someone was seen flashing a gun. See J.L., supra 529 U.S. at 271, 120 S. Ct. at 1379, 146 L. Ed. 2d at 260. There is nothing in the record before us establishing the required indicia of reliability to justify the more intrusive pat-down or vehicular searches.

[Matthews, supra,, 398 N.J. Super. at 559-60.]

We thus determine, contrary to the finding of the trial judge, that defendant was unlawfully seized by the police. Because defendant's alleged confession occurred as a direct result of his unlawful seizure, that confession should have been suppressed. Dunaway, supra,, 442 U.S. at 216-19, 99 S. Ct. at 2258-60, 60 L. Ed. 2d at 838-40. The judge was mistaken in not doing so.

III.

At trial, defense counsel moved to exclude testimony regarding the content of the 9-1-1 call to the police and the statements of the anonymous tipster who identified defendant as the possessor of the gun found underneath the Cadillac. Both motions were denied by the trial judge, who ruled that the content of the 9-1-1 call could be utilized by the prosecution to show the police officers' state of mind, but that a curative instruction would be given. In fact, the judge instructed the jury at the conclusion of trial as follows:

During the trial, you heard the testimony about the information in the 911 call. That information was allowed to be testified. Didn't fit an exception to the hearsay rule, but it was not being offered for the fact that there was a person with a shotgun, but for the fact that that was the information given to the officers so it was their state of mind. That's what they were looking to when they approached the scene and why they were there.

So it was not to be considered that that statement is true, but merely that that's why the officers thought they were going there.

The judge found further that the tipster's statement identifying defendant was admissible as an excited utterance pursuant to N.J.R.E. 803(c)(2). Accordingly, the prosecutor informed the jury in his opening that: "You're going to hear that Mr. Basil was implicated in having a shotgun and then throwing it underneath the vehicle before the police arrived." Officer Ruocco testified that he "was approached by a witness stating that she was standing on the corner and Mr. Basil pointed a shotgun at their direction and stated get off the corner." Ruocco testified further that the witness "stated that the shotgun was thrown under a black Cadillac." And Ruocco's partner, Officer Sullivan, testified: "A girl came out and pointed and said that's him, he's the one with the gun."

The Sixth Amendment to the Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." See also N.J. Const. art. I, 10. In accordance with that guarantee, the United States Supreme Court has held that testimonial hearsay cannot be introduced into evidence unless there is a showing that the declarant is unavailable, and that the defendant had a previous opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004). In reaching this conclusion, the Court overturned its decision in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), insofar as it held that in a criminal prosecution an unavailable witness's testimonial hearsay statement was admissible if it fell "within a 'firmly rooted hearsay exception' or b[ore] 'particularized guarantees of trustworthiness.'" Crawford, supra, 541 U.S. at 42, 124 S. Ct. at 1359, 158 L. Ed. 2d at 187 (quoting Roberts, supra, 448 U.S. at 66, 100 S. Ct. at 2539, 65 L. Ed. 2d at 608). Distinguishing testimonial and non-testimonial hearsay, in a decision rendered after Crawford, the Supreme Court held that:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

[Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006).]

Recently, the New Jersey Supreme court took up the question of whether statements identifying defendant as a perpetrator were admissible that had been given to the police by a non-testifying witness ten minutes after a robbery had occurred. State ex rel. J.A., 195 N.J. 324 (2008). The Court held that:

The statements were a narrative of past events and made while neither the declarant nor victim was in imminent danger. In light of Crawford and Davis, we now hold that those hearsay statements were testimonial. Because the declarant was not produced as a witness or ever subject to cross-examination, the admission of those statements violated the [defendant's] Sixth Amendment right to confront the witnesses against him.

[Id. at 329.]

Turning to the challenged testimony in the present matter, we find that the content of the 9-1-1 call was non-testimonial in nature, since it was elicited to permit the police to respond to an emergency. That testimony was more detailed than the Court permitted in State v. Bankston, 63 N.J. 263, 268 (1973), which limited police testimony as to why an officer responded to a particular location to a statement that the response occurred as the result of "information received." Nonetheless, in light of the judge's instruction to the jury that the statement should not be considered for its truth, we do not regard its admission as resulting in reversible error.

We reach a different conclusion with respect to the statements of the anonymous tipster. Those statements, made after any danger had passed, since the perpetrator no longer possessed the weapon that was previously brandished, and uttered for the purpose of identifying defendant to the police so that he could be subject to criminal prosecution, were clearly testimonial in nature. Because the tipster was never identified, and was not subject to cross-examination at any stage of defendant's criminal prosecution, the admission of the hearsay resulted in a violation of defendant's Sixth Amendment rights that cannot be overcome by justifying that admission under an exception to the hearsay rule. Because the tipster's statements constituted the sole remaining evidence of defendant's guilt, his conviction on charges of unlawful possession of a weapon must be reversed.

We find it unnecessary to address defendant's other arguments in light of our resolution of those that we have discussed.

 
Defendant's conviction for unlawful possession of a weapon is reversed; defendant has not challenged his conviction for bail jumping, and that conviction remains.

In an amended notice of appeal, defendant also appealed from his conviction, following a plea of guilty, for bail jumping, N.J.S.A. 2C:29-7, for which defendant received a five-year prison sentence with two and one-half years of parole ineligibility. However, because no arguments address that conviction, we assume that aspect of the appeal has been abandoned.

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

In Terry, the Court held:

Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

[392 U.S. at 30, 88 S. Ct. at , 20 L. Ed 2d at .

(continued)

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A-0350-07T4

 

May 4, 2009