STATE OF NEW JERSEY v. WERNER DOECKS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3117-08T43117-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WERNER DOECKS,

Defendant-Appellant.

_______________________________________

 

Submitted May 11, 2010 - Decided

Before Judges Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-04-0467.

Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Werner Doecks pleaded guilty to two counts of endangering the welfare of a child and was sentenced in accordance with his plea agreement to six years in prison. He appeals from denial of his motions to suppress evidence and to permit cross-examination evidence otherwise barred by the Rape Shield Act, N.J.S.A. 2C:14-7. We affirm.

Defendant, sixty-seven years old at the time, was indicted on nine counts of sexual offenses involving underage girls. The crux of the charges was that, a few years earlier, defendant had taken nude photographs of three adolescent or teenage girls and that he had engaged in sexual acts with one of the girls.

The following facts were developed at suppression hearings. Wayne Township police responded to a call from defendant of a disturbance at his home on the afternoon of November 27, 2006. They saw defendant arguing in the driveway with a man named Barbosa, who was living on defendant's property in a converted school bus. Defendant alleged that Barbosa was angry at him because he refused to give him alcoholic beverages defendant had in the house.

Barbosa told the police that defendant kept nude photographs of teenage girls in the trunk of his car. He told the police that defendant had shown him the photos three days earlier and bragged about sexual activity with the girls. He said that defendant identified one of the girls as a prior girlfriend's foster child.

At the suppression hearing, Barbosa testified about his reasons for informing on defendant. He said he was angry because defendant's pit bull had chased Barbosa's cat into the road and the cat was killed. The night before he told the police about the photos, Barbosa was drinking and emotional, and defendant took his reaction as threatening, resulting in Barbosa's being arrested and jailed. After his release the next morning, Barbosa was still irate at defendant. When the police came, he decided to tell them about the nude photos because he knew it was wrong for defendant to have taken them.

The police officers asked defendant permission to search the trunk of his car. He refused.

Within a few minutes of the officers' conversations with defendant and Barbosa, Detective Matthew Dox arrived to supervise the police investigation. Dox was familiar with defendant from prior domestic violence matters involving defendant as both an alleged offender and a victim. Dox had a civil relationship with defendant, and he believed defendant had no animosity toward him. He took defendant aside and spoke to him privately.

Dox asked defendant for permission to search the trunk of his car to see if he had child pornography. Defendant said he had pictures, but all the females were adults. Dox said he knew that defendant had not permitted the other officers to go into the trunk but "maybe we can clear this mess up today." He told defendant that he needed his consent to search the trunk for the photos, and he repeated twice that defendant had a right to refuse consent. He also said: "Maybe we can resolve this[.] [I]f they're adults[,] we'll leave[;] you go on your way." Defendant then agreed to the police search of his car.

The police provided a written consent form to defendant, which he read and signed. His signature was witnessed by his woman companion. Defendant opened the trunk of his car and handed a bag to the police. Inside, they found more than ninety Polaroid photographs of young women or girls in various states of dress or nudity, including many that were fully nude. In some of the photos, the subject was in a sexually suggestive pose touching one of her body parts. The police commented that one of the subjects looked very young and asked who the subjects were. Defendant said he had taken the pictures some years ago, and he identified three subjects by first names, including one that we will refer to in this opinion as J. He said the subjects were older than twenty.

The police confiscated the photographs but did not arrest or charge defendant on the date of the incident. They conducted an investigation and determined that J. was previously the foster child referenced by Barbosa. They interviewed the foster mother and a friend of hers familiar with J. The women identified J. as the subject in a large number of photos and estimated her age at about fourteen in some of them.

The police found J. and questioned her. She was then about twenty years old. She told the police that defendant had enticed her into posing for nude photographs when she was between eleven and thirteen years old by telling her she had a nice body and he could get the photos published. She also told the police defendant had engaged in sexual activities with her, sometimes by threatening to have his dog harm her if she did not comply.

Defendant was arrested on December 22, 2006. The police read Miranda rights to him twice without initiating any immediate questioning. Defendant gave no indication of invoking those rights. About two hours after the second advice of rights, defendant gave a videotaped statement to the police.

Subsequently, he was indicted on the following charges: two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; one count of second-degree sexual assault, N.J.S.A. 2C:14-2b; one count of third-degree aggravated sexual contact, N.J.S.A. 2C:14-3a; and five counts of endangering the welfare of a child, N.J.S.A. 2C:24-4b, ranging from second to fourth degree.

Defendant brought motions to suppress the photos as the product of an unconstitutional search in violation of his Fourth Amendment rights and also to suppress his statements to the police as a violation of his Fifth Amendment rights. After holding suppression hearings, the trial court denied the motions by written opinion dated October 26, 2007.

Later, defendant brought a motion to permit his attorney to cross-examine J. at trial about several past allegations of sexual abuse she had made against other individuals, some of which had not been substantiated. He argued that J. had not named defendant in her several prior accusations of sexual abuse, thus raising doubt about her credibility in accusing him of sexual activity with her at this time. Defendant also sought leave to cross-examine J. about being in custody on juvenile delinquency charges at the time that she made some of the accusations against other men, arguing she may have been seeking lenient treatment for herself.

The court ruled that the Rape Shield Act, N.J.S.A. 2C:14-7, prohibited the full scope of cross-examination that the defense sought. The court permitted defense counsel to cross-examine J. generally about the fact that she had previously accused a number of others about alleged sexual offenses and had never mentioned defendant in the course of those accusations. Defense counsel then suggested that a stipulation in lieu of cross-examination might be arranged with the prosecution. The court agreed that a stipulation within the scope of its ruling would be permissible, but it denied a further defense request for permission to make reference to J.'s custodial status for a juvenile offense as part of the proposed stipulation or cross-examination.

Several months later, defendant entered into a plea agreement with the State and pleaded guilty to two counts of second-degree endangering the welfare of a child related to his possession of the nude photos of J. In exchange, the State agreed to dismiss all other charges in the indictment, including the charges alleging sexual activity with J. At the plea hearing, defendant provided a factual basis that he had taken the photos of J. when she was less than fourteen years old and that he had asked her to pose touching her body parts.

Defendant was sentenced in accordance with the plea agreement to six years in prison and parole supervision for life. Statutory money penalties and Megan's Law obligations were also imposed. The court did not impose any period of parole ineligibility.

On appeal, defendant raises the following points:

POINT I BECAUSE DEFENDANT'S CONSENT TO THE WARRANTLESS SEARCH OF HIS CAR TRUNK WAS NOT VOLUNTARY, BUT COERCED, THE SEARCH WAS UNLAWFUL AND ITS FRUITS SHOULD HAVE BEEN SUPPRESSED.

POINT II BECAUSE THE STATE FAILED TO PROVE THAT DEFENDANT KNOWINGLY AND VOLUNTARILY WAIVED HIS RIGHT TO REMAIN SILENT, THE CONTENTS OF HIS STATEMENT SHOULD HAVE BEEN SUPPRESSED.

POINT III THE COURT ERRED IN REFUSING TO PERMIT ADMISSION OF SPECIFICS OF [J.]'S PREVIOUS SEXUAL ASSAULT ALLEGATIONS AGAINST OTHER PEOPLE, OR OF THE FACT THAT AT THE TIME SHE MADE THE ALLEGATIONS SHE WAS FACING PENDING JUVENILE CHARGES.

The third point is not cognizable on appeal because defendant's guilty plea was not conditioned on its reservation for appeal. Generally, an issue will not be heard on appeal following a plea of guilty unless defendant reserved the right to appeal that issue with the consent of the prosecutor and the approval of the court, in accordance with Rule 3:9-3(f). State v. Knight, 183 N.J. 449, 470 (2005); State v. Crawley, 149 N.J. 310, 316 (1997); see also Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973) ("When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.").

The record before us does not contain any indication that defendant's plea was conditioned on the reservation of a right to appeal the court's ruling on cross-examination of J. The only reference to a condition placed on the guilty plea is the following statement of the court at the plea hearing: "[T]here's one condition here. You will be free to appeal your your suppression motion wherein I ruled against you in favor of the State." Neither the court nor the parties made reference to any other motion.

In fact, defendant's plea agreement provided for dismissal of the charges of sexual conduct with J. other than the taking of the nude photographs. Cross-examination of J. on the subject of her accusations against other individuals had no relevance to defendant's possession and taking of the photos confiscated from his car. J.'s credibility regarding alleged sexual activity with defendant, or even her potential testimony about the reasons the photos were taken, would not have affected the undisputed evidence of defendant's photographing an underage girl in the nude and in sexual poses. Defendant clearly waived any appellate issue regarding the Rape Shield Act by pleading guilty to charges that were not affected by the trial court's ruling and by not specifically reserving a right to appeal that issue.

We also have doubt about the preservation of defendant's second point for appeal, regarding admissibility of his statements. Our Court Rules automatically preserve for appeal issues on a motion to suppress evidence only under the Fourth Amendment. R. 3:5-7(d); Knight, supra, 193 N.J. at 471. An unsuccessful Miranda motion, or other basis to suppress a defendant's statement under the Fifth Amendment, is not covered by Rule 3:5-7(d). Knight, supra, 193 N.J. at 471; State v. Smith, 307 N.J. Super. 1, 8 (App. Div. 1997), certif. denied, 153 N.J. 216 (1998). Those issues must be specifically and expressly reserved for appeal in a conditional plea of guilty under Rule 3:9-3(f).

Here, the previously quoted statement of the court did not specify that defendant's Miranda motion was also reserved for appeal. Nevertheless, because the State has not argued that defendant waived the right to appeal the court's Miranda ruling, we will assume that the court's statement making general reference to its suppression ruling also included defendant's motion under the Fifth Amendment to suppress his statements. We will address the merits of both the Fourth and Fifth Amendment arguments raised by defendant.

With respect to defendant's first point on appeal, his Fourth Amendment argument, he contends that his signed consent for search of his car was not voluntary. He argues that, after he initially refused consent, the police made a second request through Detective Dox and told him they would obtain a search warrant if he refused. He also contends that the holding of State v. Carty, 170 N.J. 632, 635, modified, 174 N.J. 351 (2002), should be applied and that the police lacked reasonable suspicion of violation of law to request his consent to search the car.

We reject defendant's argument that the police needed reasonable suspicion that defendant had committed an offense to request his consent to search the trunk of his car. In Carty, supra, 170 N.J. at 647, the Court applied such a pre-condition under the State constitution's article I, paragraph 7, to a police request to search a motor vehicle encountered in a public roadway after a motor vehicle stop. Later, in State v. Domicz, 188 N.J. 285, 306-10 (2006), the Court held that the same pre-condition does not apply to a police request for consent to search a residence. Here, defendant's car was not encountered on the road; it was parked at his home. Defendant was not under the kind of compulsion to agree to the police search as discussed in Carty, supra, 170 N.J. at 641-46, and Domicz, supra, 188 N.J. at 305-07. We decline to apply the holding of Carty to the facts of this case.

Moreover, the police had reasonable suspicion to request consent to search the trunk of defendant's car. The information they received from Barbosa was specific as to the source of his knowledge, the nature of the contraband items, and the location where they were kept. His knowledge of the photos was fresh, defendant having allegedly shown them to him three days earlier. Barbosa identified a particular subject of the photos as a girl known to defendant and who may have been subjected to criminal sexual offenses. Because of the specificity of Barbosa's accusations and the direct and recent source of his knowledge, the police had reasonable suspicion to seek to search the car.

Defendant argues next that the police coerced his consent by stating that they would obtain a search warrant if he did not consent. We do not view such a statement by the police, without more, as coercive.

In State v. Cancel, 256 N.J. Super. 430, 432-34 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993), we held the police did not coerce the defendant into consenting to a search of her suitcase by telling her truthfully that a drug-sniffing dog had reacted positively to the suitcase and they would detain her while they sought a search warrant. We said the consent was voluntary because the police had probable cause to obtain a warrant and the defendant accepted the fact that a lawful search was inevitable. Id. at 434. But see State v. Dolly, 255 N.J. Super. 278, 284-87 (App. Div. 1991) (consent to search car was coerced where police told owner they had a warrant but warrant was defective).

In this case, irrespective of whether the police had sufficient probable cause to obtain a search warrant, there was nothing coercive in the police revealing their intention to seek one. By telling defendant they would seek a warrant, the police provided relevant information for defendant to make a knowing and voluntary decision on whether he should consent to the search or maintain his refusal. Often, a person subjected to police investigation may wish to avoid delay, and also to maintain better control of the police intrusion, by agreeing to permit the requested search rather than to await issuance of a search warrant. See, e.g., Chambers v. Maroney, 399 U.S. 42, 64, 90 S. Ct. 1975, 1987-88, 26 L. Ed. 2d 419, 435-36 (1970); United States v. Lace, 669 F.2d 46, 51-53 (2d Cir.), cert. denied, 459 U.S. 854, 103 S. Ct. 121, 74 L. Ed. 2d 106 (1982).

We agree with those cases from other jurisdictions that have found no coercion occurs when the police truthfully inform a suspect that they will seek a search warrant if consent to search is refused. See, e.g., United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir. 1983), cert. denied, 471 U.S. 1021, 105 S. Ct. 2030, 85 L. Ed. 2d 313 (1985); United States v. Culp, 472 F.2d 459, 461 n.1 (8th Cir.), cert. denied, 411 U.S. 970, 93 S. Ct. 2161, 36 L. Ed. 2d 692 (1973); People v. Yuruckso, 746 N.Y.S.2d 33, 34-35 (App. Div. 2002); State v. Lange, 255 N.W.2d 59, 64-65 (N.D. 1977); Commonwealth v. Woods, 368 A.2d 304, 307 (Pa. Super. Ct. 1976); Bosworth v. Commonwealth, 375 S.E.2d 756, 758 (Va. Ct. App. 1989).

Directly on point is State v. Rathburn, 239 N.W.2d 253, 255 (Neb. 1976), where the driver of a car first refused to give consent for search of the trunk and then gave consent when the officer said he would apply for a warrant. The Supreme Court of Nebraska held that "well-founded advice of a law enforcement agent that, absent a consent to search, a warrant can be obtained does not constitute coercion." Id. at 256. We agree.

In this case, the trial court found that defendant had voluntarily given his consent for search of the trunk, as evidenced by his signature on the written consent form and the testimony regarding the circumstances of his signing the form. The court also found from all the evidence that defendant had been informed of his right to refuse and that he knowingly and voluntarily agreed to the search.

On a suppression motion, we defer to the findings of fact and credibility determinations of the trial court. State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)); State v. Locurto, 157 N.J. 463, 470 (1999); State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966); State v. Johnson, 42 N.J. 146, 161 (1964). We find no error in the trial court's conclusions as to the search of defendant's car.

As to admissibility of defendant's videotaped statement, the officers testified that they first advised defendant of his Miranda rights at about 4:15 p.m. immediately upon his arrest. The arresting detective made no effort to question defendant at that time. Defendant was again given Miranda warnings by a second detective at police headquarters at about 5:15 p.m. The detective read the rights from a form and noted that defendant said he understood. Defendant did not sign the waiver form because he did not have his reading glasses. The second detective also did not ask any questions or take a statement at 5:15 p.m. At about 7:40 p.m., the first detective returned to police headquarters and asked defendant if he was willing to speak to him about the charges. Defendant agreed to speak and gave a videotaped statement.

Defendant argues that the State did not prove he knowingly and voluntarily waived his Fifth Amendment rights because the police did not give him Miranda warnings immediately before taking the videotaped statement. A similar argument was squarely rejected in State v. Nyhammer, 197 N.J. 383, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). The Supreme Court held that once a suspect in custody has been advised of his Miranda rights, no repetition of the advice is necessary in the absence of relevant intervening events. Id. at 401. Here, the trial court ruled correctly that defendant could be questioned at 7:40 p.m. without first receiving another set of Miranda warnings.

 
Affirmed.

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

(continued)

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A-3117-08T4

RECORD IMPOUNDED

July 13, 2010