STATE OF NEW JERSEY v. DONDURAN BOATMAN

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1438-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONDURAN BOATMAN a/k/a

SHAWN WRIGHT, DAVID BUCK,

DONDUREN BOATMAN, DON BOATMAN,

DONSERAN BOATMAN,

Defendant-Appellant.

October 12, 2010

 

Argued September 13, 2010 - Decided

 

Before Judges Lisa and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 05-03-0425 and 05-03-0428.

 

Merrill N. Rubin argued the cause for appellant (Stefan Van Jura, Assistant Deputy Public Defender, on the brief).

 

Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Mr. Uzdavinis, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

Following trial, a jury found defendant Donduran Boatman guilty of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); and second-degree possession of a firearm while engaged in distribution-related activities, N.J.S.A. 2C:39-4.1 (count five). Defendant was acquitted of the charge of second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a)(3) (count three), and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-9(e) (count four). He was separately tried and convicted of fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b), charged in a single-count indictment.

At the July 21, 2006 sentencing for all offenses, the trial judge merged count one with count two and imposed an eight-year mandatory extended term sentence, N.J.S.A. 2C:43-6(f), subject to four years of parole ineligibility. Defendant also received a consecutive term of seven years on count five.1 The judge imposed a five-year prison term with five years of parole ineligibility on the certain persons not to have weapons conviction, concurrent to the other terms of imprisonment. Defendant's aggregate sentence was thus fifteen years, subject to five years of parole ineligibility, consecutive to a term of imprisonment he was already serving. Appropriate fines and penalties were imposed. Defendant appeals and we affirm.

On February 8, 2005, at approximately 6:30 a.m., members of the North Brunswick Police Department Narcotics Task Force, including Detective Michael Braun, executed a search warrant for defendant's premises as well as his person at Apartment 3101 Birchwood Court. Braun was the investigating officer who arranged for a confidential informant to make two controlled buys from defendant at his apartment. He also authored the affidavit submitted in support of the issuance of the warrant. The affidavit described defendant and his apartment, and recounted Braun's investigation.

The search warrant and the warrant affidavit identified the premises as follows:

3301 Birchwood Court, North Brunswick, New Jersey, is described as a 1st floor apartment located within the North Brunswick Manor Apartment complex. The building is red brick and building "31" is clearly marked on the front of the building in an orange color with a white background. Apartment 3301 Birchwood Court is located within building 31. The front door is the fourth door to the right when looking at the building. The front door is brown in color with beige panels and has a number "3301" above it.

 

Defendant's apartment was designated as 3301 throughout all the warrant documents.

When the warrant was executed, Braun walked into an unfinished basement area, where defendant, and a woman later identified as Shontay Booker, were sleeping in a bed in the center of the room. The search warrant affidavit had indicated that defendant stored his drugs in the basement. Upon the officers' entry, defendant and Booker were read their Miranda2 rights. When the search commenced, Investigator Kevin Morton stood on a pipe and examined an opening in the basement ceiling. He felt around the hole and found drugs and a loaded weapon bearing a partially defaced serial number. One bag of suspected drugs was filled with a white powdery substance, while the other was filled with a rocklike substance that had a yellowish tint. Subsequent testing revealed the contents of the bags to be cocaine. Two boxes of sandwich bags and approximately $682 were found on the floor near Booker's side of the bed.

Braun testified at both the pretrial suppression hearing as well as before the jury. During the suppression hearing he stated that defendant and Booker were read their Miranda rights when arrested at approximately 6:45 a.m. but that neither made any statements. At both proceedings, Braun testified that defendant signed a Miranda form acknowledging his rights before he was required to provide even basic arrest "pedigree information."

Defendant asked about Booker's whereabouts after he was taken to the station and placed in a holding cell. Braun informed defendant that Booker was charged with the same offenses as he, at which point defendant volunteered that the cocaine in the apartment belonged to him. Defendant also agreed to give a formal statement and was given his Miranda warnings on tape a third time at the beginning of the recording, at approximately 12:00 p.m. According to Braun, defendant did not appear to be under the influence and expressed a clear understanding of his Miranda rights.

In contrast with Braun's testimony at the suppression hearing, defendant testified that:

[t]he conversation was I told him that my girlfriend [Booker] was pregnant and I didn't want her to be incarcerated with my baby in her stomach because it's a possible chance she could have a miscarriage. He said, well, you know, if you help us, we'll help you. If you give us a taped statement, we'll ROR her. We'll let her go.

 

. . . .

 

That's exactly what happened. I made a taped statement, and he let her go.

 

Before giving his statement, defendant was taken to see Booker in order to reassure her "that she [was going to] be let go." He told her that "she would be let go. . . . so she won't, you know, be crying and stressing because she was over there crying and stressing and didn't understand what was going on." Defendant acknowledged being given his Miranda warnings and understanding them.

Once on tape, defendant admitted that the drugs in the basement belonged to him. On tape he said that he was not promised anything regarding Booker's release, which he explained while testifying at the suppression hearing that he said because he believed the statement would not be "valid" if he acknowledged it was being given to secure Booker's release. Defendant further testified that "[t]he only time I admitted to any CDS being mine is during the taped statement when I was told that . . . if I would make the taped statement, she would be released. Before hand [sic] I never spoke about any CDS being mine, any contraband being mine."

In ruling on the suppression motion, the trial court found Braun's testimony to be forthright and credible, and that a portion of defendant's testimony was also credible. The key issue was whether defendant's interest in securing Booker's release in some fashion negated the voluntariness of his statement. The judge ultimately decided that defendant's belief did not invalidate the voluntary, knowing, and intelligent nature of defendant's confession.

When he charged the jury, the trial court instructed as follows:

As you know, in this case the defendant . . . elected to not testify at trial, and it is his constitutional right to remain silent. You must not consider for any purpose or in any manner in arriving at your verdict the fact that [defendant] did not testify. That fact should not enter into your deliberations or your discussions in any manner at any time. The defendant . . . is entitled to have the jury consider all the evidence presented at trial, and he is presumed innocent even if he chooses not to testify.

 

[(emphasis added).]

 

That language was taken from the Model Jury Charge, later revised on May 4, 2009, to include the phrase "innocent whether or not he/she chooses to testify." Model Jury Charge (Criminal), "Defendant's Election Not to Testify" (2009) (emphasis added).

At sentencing, the court granted the State's motion to impose an extended term because defendant had been convicted of two prior drug distributions. See N.J.S.A. 2C:43-6(f) and N.J.S.A. 2C:43-7(a)(4). The court found aggravating factor three, the risk that defendant will reoffend, N.J.S.A. 2C:44-1(a)(3); factor six, defendant's prior criminal history, N.J.S.A. 2C:44-1(a)(6); and factor nine, the need to deter, N.J.S.A. 2C:44-1(a)(9). The court did not find mitigating factors.

On appeal, defendant raises the following points:

POINT I

THE SEARCH WARRANT WAS FATALLY DEFECTIVE IN FAILING TO DESCRIBE THE PLACE TO BE SEARCHED WITH SUFFICIENT PARTICULARITY BECAUSE IT AUTHORIZED THE POLICE TO SEARCH TWO DIFFERENT RESIDENCES, ONE THAT MATCHED THE PHYSICAL DESCRIPTION, AND ANOTHER THAT CORRESPONDED TO THE STATED APARTMENT NUMBER, SO THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED. (U.S. CONST. AMENDS. IV and XIV; N.J. CONST. (1947), ART. 1, PAR. 7).

 

POINT II

THE STATEMENT TAKEN FROM DEFENDANT WAS NOT VOLUNTARILY MADE AND ITS ADMISSION INTO EVIDENCE DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION. (U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947), ART. I, PAR. 1).

 

POINT III

THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below).

 

POINT IV

THE SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.

 

Defendant first attacks the validity of the search warrant because of the mistaken designation of the apartment to be searched as 3301 Birchwood, not 3101 Birchwood.

The Fourth Amendment of the United States Constitution protects against "unreasonable searches and seizures" of "persons, houses, papers, and effects . . . ." U.S. Const. amend. IV. Thus, to be valid, any search warrant has to be supported by "probable cause" and "particularly describ[e] the place to be searched . . . ." Ibid. More specifically, "'the description [must be] such that the officer . . . can with reasonable effort ascertain and identify the place intended.'" State v. Marshall, 199 N.J. 602, 611 (2009) [hereinafter Marshall I] (quoting Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 416, 69 L. Ed. 757, 760 (1925)). "'[R]easonable accuracy'" not 'pin-point precision' is required." State v. Marshall, 398 N.J. Super. 92, 106 (App. Div. 2008), aff'd, 199 N.J. 602, 603 (2009) [hereinafter Marshall II] (quoting State v. Wright, 61 N.J. 146, 149 (1972)).

Individual sub-units in multi-unit dwellings are "to be treated as if [they were] separate residence[s]"; thus, "the warrant [must] describe 'the specific subunit to be searched. . . .'" Marshall II, supra, 398 N.J. Super. at 105 (quoting State v. Sheehan, 217 N.J. Super. 20, 28 (App. Div. 1987)). Fulfillment of the particularity requirement must be weighed on a case-by-case basis. The doctrine's purpose is to limit the discretion of an officer executing a search warrant. Id. at 106; Byrnes, New Jersey Arrest, Search & Seizure: The Law of Police-Citizen Encounters, 7.1 at 149 (2010).

In this case, the search warrant stated:

3301 Birchwood Court, North Brunswick, New Jersey, is described as a 1st floor apartment located within the North Brunswick Manor Apartment complex. The building is red brick and building "31" is clearly marked on the front of the building in an orange color with a white background. Apartment 3301 Birchwood Court is located within building 31. The front door is the fourth door to the right when looking at the building. The front door is brown in color with beige panels and has a number "3301" above it.

 

It is undisputed that the unit number was wrong. A detailed physical description was included, however, of the front of the building, the location of the front door, and the appearance of the front door. Thus despite the error, the warrant did not allow for mistake in execution. An officer could have readily ascertained the correct location to be searched using reasonable efforts. See Marshall I, supra, 199 N.J. at 611.

The thrust of the requirement is to avoid an apartment- building-wide search. Ibid. That possibility was foreclosed, however, by the detailed description of the front of the building and the correct unit door.

Furthermore, Braun was the officer who witnessed the controlled buys, completed the affidavit, and sought the issuance of the warrant before the magistrate.

Braun's presence at the execution of the warrant is a permissible consideration in support of the warrant's validity. See State v. Daniels, 46 N.J. 428, 438 (1966). His familiarity with the premises to be searched, in light of the "innocent and technical" nature of the error, and the "additional descriptive language" properly identifying the place to be searched makes "the error fade[] into comparative insignificance." Id. at 438-39. Accordingly, the designation of the apartment by the wrong number does not invalidate this search.

Secondly, defendant contends that his statement was involuntary, given in violation of due process and the privilege against self-incrimination. He argues that his belief that the statement would procure the release of Booker invalidates it.

A trial court's factual and credibility findings resulting from a Miranda hearing are upheld where "'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). Confessions are admissible only if, after being advised of his Miranda rights, a defendant makes a "'voluntar[y], knowing[] and intelligent[]' waiver." State v. Knight, 183 N.J. 449, 461 (2005) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707). In making the determination, we examine the totality of the circumstances, including the individual characteristics of a defendant, such as age, education, and intelligence, and the nature of the interrogation, including details as to the length and time of detention, length and time of the interrogation. Ibid.

Here, defendant was given his Miranda warnings once at the time of arrest, a second time prior to processing, and a third time immediately preceding his taped statement. He was in custody less than six hours before making the statement and had not been interrogated except to elicit arrest processing information. According to Braun, he was coherent and not under the influence, and able to answer questions intelligently. Certainly, he intended his statement to secure Booker's release although on tape he said he was not promised anything in exchange for his confession, and was being treated fairly.

In light of the judge's findings that Braun's testimony was credible, we are satisfied that the baseline requirements of a knowing, voluntary, and intelligent waiver have been met. Merely because defendant believed his statement would trigger Booker's release does not invalidate it. Given the totality of the circumstances, including the hour and lack of any interrogation before the statement was made, defendant's belief does not negate the validity of the statement. The mere fact that defendant understood his cooperation would release Booker does not nullify its knowing, voluntary, and intelligent nature. Defendant made the decision to confess to achieve a certain end, but it remains a knowing, intelligent, and voluntary decision.

Defendant also contends that the court's verbatim repetition of the "Defendant's Election Not to Testify" Model Jury Charge in effect on the trial date violated his state and federal constitutional rights. The claim is that the use of the phrase "even if," as opposed to "whether or not," prejudiced the outcome.

The "even if" language has never been found to be improper. It has never been held to be violative of a defendant's rights although it was subsequently modified. State v. Miller, 411 N.J. Super. 521, 533 (App. Div. 2010). The charge, read as a whole, has "no capacity to lead the jurors astray." Ibid. The heart of the instruction is not the distinction between "even if" and "whether or not," but rather that "[t]he jurors were clearly directed that they could not consider defendant's decision to leave the State to its proofs in any manner and were not permitted to allow the fact that he did not testify to enter into their deliberations or decision-making at any time." Ibid. We therefore conclude that the use of the earlier charge does not constitute any error.

In his final point, defendant argues that his sentence was manifestly excessive and requires reconsideration. He urges that the court erred in finding aggravating factor nine, the need to deter defendant and others from engaging in criminal conduct, and should have accorded less weight to the remaining aggravating factors.

As recently reiterated by the Court, "adherence to the Code's sentencing scheme triggers limited appellate review." State v. Cassady, 198 N.J. 165, 180 (2009). So long as the sentencing guidelines are followed, and findings of aggravating and mitigating factors are supported by credible evidence in the record, a sentence is reversed only where it shocks the judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

In light of defendant's significant prior criminal history, deterrence was a legitimate and individualized concern. Prior sentences had little impact on defendant's conduct. As a mandatory extended-term defendant, his exposure was to between five and ten years. See N.J.S.A. 2C:43-6(f). Defendant actually received less than the maximum, eight years on count two, seven years on count five, and the mandatory five years on the certain persons offense. The sentencing was within the permissible range and does not shock our conscience. This aggregate fifteen-year sentence with a term of five years of parole ineligibility was therefore reasonable.

Affirmed.

1 N.J.S.A. 2C:39-4.1(d) requires that a sentence for the possession of a firearm while engaged in distribution-related activities be consecutive.

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