STATE OF NEW JERSEY v. JAMES KEYS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1936-06T41936-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES KEYS,

Defendant-Appellant.

_______________________________________

 

Submitted January 13, 2009 - Decided

Before Judges Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 05-10-1039, 05-01-0009.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Robyn B. Mitchell, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant James Keys appeals his conviction by a jury of second degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b). He was sentenced to a term of ten years with five years of parole ineligibility and assessed the requisite monetary fees and penalties. We affirm.

I

Defendant and his codefendant Anthony Scott were charged jointly on Indictment No. 05-10-1039 with second degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b). These charges arose from the following events.

According to testimony presented at the suppression hearing held on November 17, 2003, the Trenton Police Department received a tip from an anonymous caller who claimed that an occupant of a 1998 white Lexus with license plate number NEY56C shot at him. Within six hours of the call, two Trenton police officers observed a vehicle matching this description, and pulled it over. Believing that a gun was inside the car, the officers drew their weapons and ordered the two occupants, defendant and codefendant Anthony Scott, to exit the vehicle. Defendants made no furtive movements and were cooperative. No weapons were found on their persons. Looking inside the vehicle with a flashlight, one of the officers saw the butt and handle of a gun sticking out from under the driver's seat. Photographs of the protruding gun were taken by police photographers before it was removed from the vehicle. The handgun was an operable Taurus .38 caliber revolver, fully loaded with five rounds of ammunition. The State Police laboratory found no fingerprints on the gun.

At trial, Katrina Stephens, a cousin of defendant and the owner of the Lexus, testified that she allowed the vehicle to be placed in her name and co-signed the loan for its purchase, because defendant did not have credit to secure financing in his name. Defendant had control of the car. Stephens did not drive it and did not have keys to it.

Michael Edward Smith, defendant's friend, testified that he owned the gun found in the car. According to Smith, on the day before the events in this case, he had the gun with him when defendant gave him a ride in the Lexus. He sat behind the driver. When they stopped to go to a bar, he placed the gun under the driver's seat because he could not bring it into the bar. When he returned to the car and was driven home, he forgot to reclaim the gun. He testified that neither defendant nor Scott were aware that he had the gun.

The jury convicted defendant of the charge but could not reach a verdict as to Scott. The State later dismissed the charge against Scott.

On March 17, 2006, defendant was sentenced on this conviction and for charges arising out of a second indictment. The second indictment, Indictment No. 05-01-0009, arose from events that occurred on a different day. On this second indictment, defendant pled guilty to one count of second degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b).

The court sentenced defendant in accordance with the plea agreement to a ten year term of imprisonment with five years of parole ineligibility on his conviction for being a certain person not to possess a weapon on Indictment No. 05-10-1039, and to an identical concurrent sentence on the guilty plea to being a certain person not to possess a weapon on Indictment No. 05-01-009. Both sentences run concurrently with the sentence defendant was then serving. The requisite monetary penalties and assessments were imposed in both sentences.

Defendant raises the following issues on appeal:

POINT ONE

THE ORDER DENYING SUPPRESSION OF THE GUN SHOULD BE REVERSED; THE POLICE EXCEEDED THE SCOPE OF A REASONABLE MOTOR-VEHICLE STOP WHEN TWO OFFICERS APPROACHED THE CAR WITH GUNS DRAWN AND AN INSUFFICIENT BASIS FOR DOING SO, THEREBY CONVERTING THE STOP INTO A FULL-BLOWN ARREST, FOR WHICH THERE WAS NOT PROBABLE CAUSE.

POINT TWO

THE TRIAL COURT'S REFUSAL TO ALLOW DEFENDANT TO INTRODUCE EVIDENCE OF SMITH'S ARREST FOR POSSESSION OF THE GUN DEPRIVED DEFENDANT OF HIS RIGHT TO PRESENT A DEFENSE; THE STATE FURTHER DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY THEN ARGUING IN SUMMATION THAT THERE WAS NO CREDIBLE EVIDENCE SMITH HAD POSSESSED THE GUN. (Partially Raised Below)

POINT THREE

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE EVIDENCE DOES NOT SUPPORT THE JURY'S FINDING THAT DEFENDANT WAS IN POSSESSION OF THE WEAPON RECOVERED BY THE POLICE. (Partially Raised Below)

POINT FOUR

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO TWO TEN-YEAR TERMS BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

II

Defendant appeals the denial of his motion to suppress the State's seizure of the gun. We must uphold the trial court's factual findings on a motion to suppress, provided they are "supported by sufficient credible evidence." State v. Elders, 192 N.J. 224, 243 (2007). However, "[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

Under both the United States and New Jersey constitutions, a warrant generally must be issued before the police may search and seize evidence. U.S. Const. amend. IV; N.J. Const. art. I, 7. A warrantless search is presumptively invalid unless it "falls within one of the few well-delineated exceptions to the warrant requirement." State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). The State has the burden of showing that the search falls within one of the recognized exceptions to the warrant requirement. Ibid. If a warrantless search does not fall within a recognized exception, the evidence seized must be suppressed. See State v. Lee, 190 N.J. 270, 277-78 (2007) (stating that "[p]ursuant to the exclusionary rule, the State may not introduce evidence obtained from an unlawful search or seizure by the police"); Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081, 1090 (1961) (applying the exclusionary rule to the states through the Due Process Clause of the Fourteenth Amendment).

The State maintains that the officers were making a constitutionally permissible Terry stop in order to investigate the report that a shot had been fired from the vehicle earlier in the day. In Terry v. Ohio, supra, 392 U.S. at 22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906-07, the United States Supreme Court recognized that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." When doing so the officer has "a narrowly drawn authority" to make a reasonable search "for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Terry v. Ohio, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909.

The defense agrees that the circumstances warranted a Terry stop. The defense, however, maintains that by drawing their guns on the occupants of the vehicle, the officers went beyond a Terry stop and were effectively performing an arrest. Since the officers did not have probable cause at that point to arrest defendants, defendant contends that the stop and search were unconstitutional. The State does not argue that the officers had probable cause to make an arrest, but rather asserts that the conduct of the officers under the circumstances was a permissible part of a Terry stop.

An investigative stop becomes a de facto arrest when it is more than minimally intrusive. State v. Dickey, 152 N.J. 468, 478 (1998). When considering whether an investigatory stop has become a de facto arrest, the court will consider such factors as whether defendant's detention was unnecessarily delayed, whether defendant was moved to another location and kept isolated, and whether defendant was handcuffed, and the court will consider "the degree of fear and humiliation that the police conduct engenders." Id. at 479 (quoting United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir. 1994), cert. denied, 514 U.S. 1113, 115 S. Ct. 1970, 131 L. Ed. 2d 859 (1995)).

In the case before us, the officers did not unnecessarily delay defendant's detention, move him to another location, or isolate him. The sole factor that defendant relies on in arguing that a de facto arrest occurred is the fact that the officers had their weapons drawn when they approached the car. The officers took this step to protect themselves because they were investigating a report that the occupants of the car had reportedly shot at someone from the vehicle. The trial judge found this step "entirely reasonable."

We agree that under the circumstances presented in this case, the drawing of the guns by the police officers at the beginning of the investigative stop did not transform the Terry stop into an arrest. State v. Padilla, 321 N.J. Super. 96 (App. Div. 1999), aff'd, 163 N.J. 3 (2000) involved a similar scenario. In Padilla, the police received an anonymous tip that a person in a motel room was carrying a handgun. Id. at 102-03. The police approached the motel room to investigate, with their guns drawn but by their sides. Id. at 103. In upholding the evidence seized in plain view once the officers entered the motel room, we said, "[t]he fact that the officers had their guns drawn but at their side is of no consequence. The caller reported a person with a gun; consequently, the officers had the right to draw their handguns." Id. at 108. We note that in Padilla, there was no report that the gun had been shot. In the case before us, the information available to the officers concerned an unknown person shooting from the vehicle. Thus, the officers here arguably faced a greater risk than those in Padilla. Their conduct in approaching the vehicle with guns drawn was reasonable investigative conduct. Indeed, "[t]he vast majority of courts have held that police actions in blocking a suspect's vehicle and approaching with weapons ready, and even drawn, does not constitute an arrest per se." United States v. Edwards, 53 F.3d 616, 619 (3d Cir. 1995).

III

Defendant also contends that the trial court erred in refusing to allow him to introduce evidence that Smith was arrested for unlawful possession of the gun after he testified at trial that the gun was his. Defendant argues that this evidence is exculpatory and relevant, that it renders Smith's testimony more believable, and that it supports defendant's defense that a third party committed the crime.

We find no error here. We recognize that a defendant may present evidence of a third party's guilt. State v. Koedatich, 112 N.J. 225, 297 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). Further, refusing to allow a defendant to submit relevant evidence raises constitutional issues involving the right to confrontation. State v. Garron, 177 N.J. 147, 168-69 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). However, the trial court has broad discretion to determine what is relevant evidence. State v. E.B., 348 N.J. Super. 336, 344 (App. Div.), certif. denied, 174 N.J. 192 (2002). Relevant evidence is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. When considering whether proffered evidence is relevant, "the analysis focuses on 'the logical connection between the proffered evidence and a fact in issue.'" State v. Schnabel, 196 N.J. 116, 130-31 (2008) (quoting State v. Williams, 190 N.J. 114, 123 (2007)).

Defendant was allowed to present Smith's testimony that the gun was his. Defendant sought to bolster the credibility of Smith's testimony by introducing evidence that the State had charged Smith with unlawful possession of the weapon, and thus, arguably, the State believed Smith's testimony that the weapon was Smith's. However, whether or not the State believed or disbelieved Smith's testimony is irrelevant, and the fact that the State brought charges against Smith based on his testimony cannot be used to either bolster or denigrate Smith's testimony. Cf. State v. Abdullah, 372 N.J. Super. 252, 268 (App. Div. 2004) (noting the inappropriateness of a prosecutor expressing his or her personal belief on the truthfulness of a witness's testimony), aff'd in part, rev'd in part, 184 N.J. 497 (2005).

Further, the charges against defendant and the charges against Smith are not inconsistent. While Smith may have unlawfully possessed the gun the preceding day as Smith testified, because the gun was left in defendant's car, defendant was also capable of unlawfully possessing the gun on the day he was arrested. More than one person may possess a weapon. Cf. N.J.S.A. 2C:39-2 (stating that when a prohibited weapon is found in a vehicle with more than one occupant, the weapon shall be presumed to be in the possession of all of the occupants unless one of three statutory exceptions is applicable).

After careful consideration of the remaining issues raised by defendant, we find that they do not merit discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

We note that defendant's brief states that these sentences were consecutive to the one being served. However, while the judgment of conviction is silent on this point, the judge at sentencing stated that the sentences were all concurrent.

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

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A-1936-06T4

February 26, 2009