STATE OF NEW JERSEY v. STANLEY CLIFF SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2439-07T42439-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STANLEY CLIFF SMITH,

Defendant-Appellant.

______________________________

 

Submitted: November 18, 2009 - Decided:

Before Judges Stern, Graves and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Mercer County, Indictment No. 02-10-1409.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was convicted at a jury trial of murder, possession of a weapon for unlawful purpose, and unlawful possession of a handgun. The weapon violations were merged with each other and then merged into the murder conviction, and defendant was sentenced to a term of thirty years in the custody of the Department of Corrections to be served without parole eligibility.

On this appeal, defendant argues:

POINT I THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL AS A RESULT OF PROSECUTORIAL MISCONDUCT ARISING OUT OF THE PROSECUTOR'S SUMMATION.

A. THE PROSECUTOR'S REMARKS UNEQUIVOCALLY MISREPRESENTED KHALIF JOHNSON'S ACTUAL SENTENCING EXPOSURE, WITH THE RESULTING PREJUDICIAL IMPACT SO SIGNIFICANT AS TO DENY TO THE DEFENDANT HIS RIGHT TO A FAIR TRIAL.

B. THE PROSECUTOR'S REMARKS REGARDING DETECTIVE HOLT WERE MISLEADING AND INACCURATE AND SERVED TO IMPROPERLY BOLSTER HIS CREDIBILITY TO THE JURY.

C. THE PROSECUTOR'S REMARKS IMPERMISSIBLY INFRINGED UPON THE DEFENDANT'S FIFTH AMENDMENT RIGHT TO REMAIN SILENT.

D. THE PROSECUTOR'S MISLEADING AND INACCURATE REMARKS SERVED TO IMPROPERLY BOLSTER THE CREDIBILITY OF ROBERT ESPOSITO.

POINT II THE TRIAL COURT PROPERLY GRANTED THE DEFENDANTS' MOTION TO SUPPRESS THE CO-DEFENDANT'S TELEPHONE TOLL RECORDS, WHICH RENDERED THE DEFENDANT'S TELEPHONE TOLL RECORDS SUBSEQUENTLY OBTAINED A FRUIT OF THE POISONOUS TREE, AND THE APPELLATE DIVISION ERRED BY REVERSING THE TRIAL COURT'S RULING ON INTERLOCUTORY APPEAL.

A. THE "LAW OF THE CASE" DOCTRINE DOES NOT PRECLUDE THE PRESENT ISSUE FROM BEING ADDRESSED ON A SUBSTANTIVE BASIS ON THIS APPEAL.

B. FACTUAL INTRODUCTION.

C. NEITHER THE "INDEPENDENT SOURCE" DOCTRINE NOR THE "INEVITABLE DISCOVERY" DOCTRINE WAS APPLICABLE TO THE PRESENT CASE, AND THE APPELLATE DIVISION INCORRECTLY CONCLUDED THESE DOCTRINES WARRANTED A REVERSAL OF THE TRIAL COURT'S RULING TO THE CONTRARY.

1. PROBABLE CAUSE WAS CLEARLY LACKING.

2. THERE WAS INSUFFICIENT PROOF THE STATE WOULD HAVE SOUGHT A WARRANT.

3. THE FLAGRANT MISCONDUCT OF DETECTIVE HOLT WARRANTS SUPPRESSION.

D. THE IMPROPER ACQUISION OF THE CO-DEFENDANT'S TELEPHONE TOLL RECORD NECESSARILY TAINTED THE SUBSEQUENT ACQUISITION OF THE DEFENDANT'S TELEPHONE TOLL RECORDS AS A FRUIT OF THE POISONOUS TREE, AS WELL AS ANDRE BELLINGER'S TELEPHONE TOLL RECORDS, STATEMENTS OBTAINED FROM ANDRE BELLINGER AND KHALIL [SIC] JOHNSON, AND BALLISTICS EVIDENCE LINKING THE MURDER WEAPON TO ANOTHER SHOOTING BY KHALIL [SIC] JOHNSON.

E. ASSUMING THE APPELLATE DIVISION'S PREVIOUS OPINION IS DEEMED TO BE BINDING ON THIS APPEAL, IT DOES NOT CONSTITUTE LAW OF THE CASE AS IT APPLIES TO THE SUPREME COURT.

We affirm the murder conviction, and conclude that only the following discussion is warranted in a written opinion. R. 2:11-3(e)(2).

The victim, Robert Preister, was shot to death in his BMW-SUV, on December 31, 2001. According to the proofs, co-defendant Jerome Roberts and the victim were competing drug dealers in Trenton engaged in violent confrontations after Preister was robbed of a large sum of money he had taken to New York to buy heroin during the prior summer. Roberts was, in fact, shot by Preister on December 2, 2001, but claimed he was at Mason's Barber Shop getting his hair braided at the time of the Preister killing.

On January 14, 2002, Detective Patrick Holt obtained a warrant to seize the "toll billing records and fraud tech reports" of Roberts as well as subscriber information regarding the numbers on his cell phone. The affidavit omitted various information received by Holt during the investigation and included a report that Roberts was himself observed as the shooter. On the State's appeal, pursuant to leave granted before trial, we found that "the communications data warrant (CDW) for Roberts's cellular telephone records was improperly obtained because it was based on one detective's knowingly incomplete and misleading affidavit." State v. Roberts, A-5209-03T1 (App. Div. July 22, 2005) (slip op. at 2). However, we reversed the order suppressing Roberts's toll billing records and "telephone records of [defendant] Stanley Smith and Andrew Bellinger (and a statement of Bellinger) under the fruit of the poisonous tree doctrine[.]" Ibid. We did so because we agreed with the State "that it would have obtained a valid warrant for Roberts's toll billing records through normal investigatory procedures, independent of the improper warrant application, and that Smith's and Bellinger's phone records" and other subsequently obtained evidence were also "not to be excluded as fruits of the poisonous tree." Ibid.

As we put it in our July 22, 2005 opinion:

Here, there is ample evidence to support the trial judge's conclusion that omissions from Detective Holt's January affidavit constituted a reckless disregard for the truth. See State v. Stelzner, 257 N.J. Super. 219, 233 (App. Div.), certif. denied, 130 N.J. 396 (1992). As defendants emphasize in their arguments, Larry Dickerson initially stated that the shooter killed Priester by firing bullets through the windshield. Only after Detective Holt showed him the photograph demonstrating that shots had been fired only through the driver's side window of Priester's car did Dickerson change his story. Furthermore, he did not claim to know the identity of the shooter until after he had failed a polygraph exam. For Detective Holt to fail to describe Dickerson's first two versions of what he claimed to have witnessed, was misleading by omission.

The warrant application also was misleading in omitting substantial evidence that Roberts had an alibi for the time of the shooting. We reject the State's argument that Treceia Taylor's statement sufficiently placed the court on notice that Roberts would offer an alibi. Taylor's statement hardly informed the judge that at least five other witnesses saw Roberts at Mason's Barber Shop at the time of the shooting. Though their accounts differed with respect to Roberts's activities after he left the shop, all statements placed Roberts in the shop at 5:30 p.m., the time of the shooting. As the trial court concluded, such omissions were "concerning" because all statements were entirely consistent regarding Roberts's whereabouts as well as the clothing he wore a brown leather suit. 3 On the other hand, the fact that Roberts apparently was not the shooter did not dispel a substantial and reasonable suspicion that he was behind the shooting.

We disapprove of Detective Holt's conduct in submitting a knowingly incomplete and misleading affidavit on January 14, 2002[,] to support his application for a communications data warrant for the cellular telephone toll billing records of Jerome Roberts. The Law Division judge was unquestionably correct in concluding that the affidavit, once cleansed of Detective Holt's incomplete description of Lawrence Dickerson's purported eyewitness statement identifying Roberts as the shooter, and in light of its omission of substantial evidence of Roberts's alibi for the time of the shooting, did not establish probable cause to issue the warrant, which itself is therefore invalid and of no effect.

Nonetheless, we cannot ignore another basis for admitting the Roberts toll billing records and evidence derived from those records. Independent sources that were available and obtained through normal police investigation between December 31, 2001, the date of Priester's murder, and January 14, 2002, the date of the warrant application for Roberts's cell phone records, independent of and apart from the highly suspect Dickerson statement, clearly and convincingly would have led the police and the prosecutor to seek and to obtain a valid warrant for Roberts's toll billing records, based upon probable cause.

3 Dickerson had stated that the shooter wore a black hat, black pants, and a black jacket. Other eyewitnesses also described possible suspects approaching or leaving the scene as having been dressed in black. [This is footnote 7 in the opinion.]

[Id. at 30-32.]

Employing the principles of both "the inevitable discovery exception to the exclusionary rule," id. at 39 (quoting State v. Sugar, 100 N.J. 214, 238 (1985)) and "the more general independent source doctrine," ibid. we concluded that the evidence would have eventually been legally obtained:

It is clear to us that normal, reasonable investigatory efforts in verifying and reconciling Roberts's various alibi witness's statements would have led the police to a lawful application for a warrant for Roberts's toll billing records. First, Roberts was an obvious suspect before Dickerson ever spoke to Detective Holt. At the crime scene, police learned that Roberts was a known drug dealer who had prior battles with the victim both directly and by proxy. Priester's father, Robert Jacobs, told police that Doug Chester and Alexander Moore (the two other drug dealers with whom Priester had a conflict) were in jail at the time of the murder. Second, Detective Holt stated that after [twenty-four] hours of investigation, Roberts had been mentioned three or four times, "and we figured there was a possibility that he may be a suspect . . . ." That suspicion was well-grounded entirely apart from Larry Dickerson's suspect third statement on January 4.

After Roberts was arrested and offered his alibi that he was at Mason's Barber Shop when Priester was shot, the police took statements from various witnesses who offered conflicting testimony about Roberts's whereabouts after the murder. Several grounds for suspecting Roberts's involvement became apparent. First, the prior bad blood and shooting incidents demonstrated Roberts's motive. Second, there was evidence that Roberts had others willing to do his bidding and take the heat for him, specifically, Chester and Moore in the robbery of Priester in New York City. Third, his "friendly" alibi witnesses' inconsistencies led to the suspicion that each was attempting to protect a friend known or believed to be guilty of criminal involvement in the shooting. In light of those circumstances, his numerous cell phone calls in the hours before and after the shooting made his cell phone records highly relevant, and probable cause for a CDW plainly could and would have been established.

Given all of the information available to the police before January 21, reasonable police investigation surely would have included the suspicion that Roberts's involvement was not as the shooter, but as the one who ordered the shooting, much as he apparently had done in the case of Priester's robbery in the summer of 2001. Thus we conclude that law enforcement inevitably would have sought and obtained a proper warrant for the Roberts phone records, independent of Dickerson's statement, which tainted the original warrant, and independent of the fruits of the improperly acquired January 14 warrant itself.

[Id. at 40-42.]

We were also

satisfied that the information the police independently acquired about Roberts and [defendant] Smith, combined with Roberts's toll billing records revealing his multiple telephone communications with Smith and Bellinger on the day of the shooting, inevitably would have led police to seek and to obtain a valid CDW for both Smith's and Bellinger's toll billing records.

[Id. at 48.]

The murder weapon was tied to Khalif Johnson after a subsequent shooting and arrest. He failed a polygraph on February 21, 2002, and ultimately admitted he shot Priester for money "at the behest of Roberts and Smith." Id. at 44. In his statement to the police, Bellinger stated that Smith took him to meet Roberts and then the arrangements were made. Bellinger was accompanied by Johnson on his trip to Trenton to meet defendant and sell drugs, but Johnson did not accompany Bellinger to meet Roberts from whom he obtained the murder weapon. Defendant drove Johnson and Bellinger to find Preister, and Bellinger reported that Johnson volunteered to do the actual shooting. Defendant also showed the pair to I-95 after the shooting, so they could leave the area. Johnson kept the gun Roberts had given to Bellinger.

Finally, on defendant's interlocutory cross-appeal, we sustained the order permitting defendant's statement to Robert Esposito, a fellow inmate of a State Correctional institution, after defendant was charged for the Priester murder. He allegedly told Esposito that "he was not to[o] worried about it because he didn't do the actual shooting, and had nothing to worry about because he was down the block just watching . . . " Id. at 48-49. Another prisoner, Stephen Johnson, also reported he was told by defendant that Priester was killed over drug money, and that he had been previously recruited to assist. Id. at 49. Johnson further reported defendant told him the shooters were from the Long Branch area.

The State's conduct cannot be condoned with respect to its warrant applications, particularly because the first was partially false, and the information therein was used again in April 2002 to secure the toll billing records of defendant and Khalif Johnson. However, we previously balanced the pros and cons of suppression as a matter of policy, as well as the legal principles of the "inevitable discovery" and "independent source" rules. Whether or not we all would have joined the original opinion on the interlocutory appeal, there is no basis to reconsider its holding. Nothing factually has changed in the five years since it was decided, whereas our standing law has been tightened, and defendant cannot complain about the use of Roberts's records to obtain evidence against him. State v. Carvajal, ___ N.J. ___ (2010).

Finally, we simply cannot conclude that the prosecutor's summation as a whole, or any discrete portion, requires us to reverse the conviction. Defendant was an accomplice in the execution of Roberts's drug rival Preister, and may have called the police to advise that Roberts did not do the shooting. Defendant, an associate of Roberts, arranged to have Preister shot when Roberts had an alibi being at a barber shop.

Defendant argues that the aggregate of the prosecutor's statements in summation "exceeded the bounds of propriety in a variety of different ways" and "in their aggregate nature" deprived defendant of a fair trial. The prosecutor suggested to the jury that Khalif Johnson, who pled guilty to aggravated manslaughter for this offense, would be sentenced to forty-five years in prison subject to the No Early Release Act (NERA), whereas the recommended twenty-five-year sentence actually imposed with NERA for the shooting of Preister was made concurrent to the prior twenty-year sentence for the subsequent shooting of another person with the same gun. Both the plea form and transcript reflect Johnson was exposed to a negotiated twenty-five year sentence with eighty-five percent to be served before parole eligibility. That Johnson received a concurrent sentence does not mean it was negotiated or part of a bargain not revealed during the trial or that Johnson was incredible because of the possibility of a shorter sentence. Unfortunately, the prosecutor at trial said Johnson's sentence would aggregate forty-five years or would be made consecutive to the sentence being served (thus aggregating forty-five years). He was wrong in so suggesting, but there was no bargain for a concurrent sentence, and the defendant was permitted to explore the issue on cross-examination at length and Johnson testified that he was "hoping" to get a concurrent sentence.

The prosecutor referred to the toll records in evidence and said "[t]here was nothing underhanded" in how they were obtained. This allegedly enhanced the credibility of Detective Holt. The prosecutor also stated that defendant stopped his interview with Holt when Holt mentioned Bellinger, and there was no suggestion by the prosecutor or the judge that defendant had the absolute right to stop the interview. The prosecutor further suggested former inmate Esposito, to whom defendant also allegedly confessed, could not be compelled to testify, and voluntarily did so by coming from out of state even though he could not be compelled to do so.

There were no relevant objections to the prosecutor's summation and the State notes that most of these comments responded to comments from defendant's summation. Certainly there is support for the view that the prosecutor was responding to some accusations in defendant's summation. We nevertheless have concerns about the references to Johnson's sentence being far longer than it turned out to be after cooperating, and about Holt's conduct when the admission of the telephone records was on technical legal grounds despite his conduct, whereas the State made him out to be a champion of justice whose work product was upheld by the courts. But we previously ruled that the telephone toll records did not have to be suppressed, and the summation does not necessitate reversal, particularly because the trial judge charged the jury as to what it had to consider as evidence and the non-evidentiary impact of final arguments of counsel. Moreover, the absence of an objection to the summation suggests defendant perceived no prejudice. State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 585, 122 S. Ct. 136, 151, L. Ed. 2d 89 (2001). Therefore, there is no basis to disturb the order denying defendant a new trial based on the summation. R. 2:10-1.

 
Affirmed.

We are told Roberts entered a guilty plea before trial. Defendant was tried alone.

A person who identified himself as Stanley Smith called the police station on January 7, 2002, and reported "Jerome didn't do the shooting" and they had the "wrong guy" because Roberts had not shot Preister.

Bellinger and Johnson gave incriminatory statements, entered guilty pleas, and testified at defendant's trial.

At trial, a strong limiting instruction was given as to the use of defendant's incarceration when he allegedly met Esposito.

The telephone records revealed the number of calls between defendant and Roberts as well as defendant and Bellinger. These calls reflect relationships before and after the killing in support of purposeful conduct as opposed to a chance meeting of Johnson and Bellinger with Preister and a shooting during the course of a robbery. As the prosecutor put it in summation, defendant was the one who "met up with Andre Bellinger and Khalif Johnson" before the shooting, "drove around with them that day," "took them to Jerome Roberts's house to get the gun," took them "hunting for the victim," and told them "if he dies, he dies."

Actually, the prosecutor said that "on cross-examination, it was inferred that perhaps there was a concurrent sentence being offered by the Mercer County Prosecutor's Office in return for the testimony of Khalif Johnson. And you will recall, it was brought out that he was serving a [twenty]-year sentence for the charge in Monmouth County . . . . There is no deal for a concurrent sentence. Mr. Johnson acknowledged that. That's a maximum of [forty-five] years without parole. [Forty-five] years, ladies and gentlemen. A long time." Of course, the forty-five years would carry eighty-five percent without parole eligibility, but not having a "deal" for concurrent sentences doesn't mean he must receive consecutive sentences.

Johnson's factual basis included that defendant and Roberts (called Righteous) hired him. Sentencing was to occur after the indictment and trial of others involved. Johnson agreed "to testify truthfully against all defendants."

There was a subsequent objection about the comment on Esposito's voluntary appearance after the summation was over.

However, Holt was cross-examined about his warrant applications and his statements in support just as the defense conducted liberal cross on each of these subjects, and challenged the State's proofs and inferences.

(continued)

(continued)

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A-2439-07T4

August 4, 2010