STATE OF NEW JERSEY v. RAYQUAN BROWN

NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-5568-07T4


STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

RAYQUAN BROWN,

     Defendant-Appellant.
________________________________

         Submitted April 20, 2010 ­ Decided May 26, 2010

         Before Judges Carchman and Parrillo.

         On appeal from the Superior Court of New Jersey,
         Law Division, Atlantic County, Indictment No.
         04-07-1406.

         Yvonne Smith Segars, Public Defender, attorney for
         appellant (Kevin G. Byrnes, Designated Counsel, on the
         brief).

         Paula T. Dow, Attorney General, attorney for
         respondent (Teresa A. Blair, Deputy Attorney General,
         of counsel and on the brief).

PER CURIAM

     Tried by jury, defendant Rayquan Brown was found guilty of

the lesser-included disorderly person's offense of simple

assault, N.J.S.A. 2C:12-1a(1) (count 1); third-degree possession

of a controlled dangerous substance (CDS), heroin, N.J.S.A.

2C:35-10a(1) (count 2); third-degree possession of heroin with

intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3)

(count 3); second-degree possession of a weapon, a handgun,

while in the course of committing, attempting to commit or

conspiracy to commit the crime of possession of heroin with

intent to distribute, N.J.S.A. 2C:39-4.1a (count 4); and second-

degree certain persons not to have weapons, N.J.S.A. 2C:39-7

(count 5).   After merger, defendant was sentenced to a five-year

term of imprisonment on count 3 (possession with intent to

distribute); a mandatory consecutive term of eight years,

pursuant to N.J.S.A. 2C:39-4.1d on count 4 (committing a drug

offense while in possession of a firearm); and a concurrent

eight-year term with a mandatory five-year parole ineligibility

period under N.J.S.A. 2C:39-7 on count 5 (convicted persons not

to have weapons), for an aggregate term of thirteen years with a

five-year parole disqualifier.   Defendant appeals, and we

affirm.

    At 3:15 a.m. on May 18, 2004, Atlantic City Police Officer

Gary Stowe responded to a report from a neighbor of a

disturbance at an apartment on Magellan Avenue.   Upon arrival at

the residence, Stowe encountered twenty-two year old Davina

Taliaferro, who had cuts and bruises on her neck and face and a

swollen jaw.   The inside of the apartment itself had signs of a

disturbance, namely a hole in the wall and items in disarray,




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consistent with an altercation.       Taliaferro reported that

defendant, the boyfriend of her cousin Juanisha Swain, had

assaulted her and had left the residence on his bicycle after

the attack.     An ambulance was summoned and Taliaferro was

transported to Atlantic City Medical Center, where she was

treated for her injuries, given medication and released that

same morning.

     Upon her release from the hospital at around 6:00 a.m.,

Taliaferro flagged down a nearby police car and told Officer

Melvin Murray that she had been involved in an altercation, had

just been treated at the hospital and needed a ride "home."

After Taliaferro provided her address -- the specific street and

apartment number of the Magellan Avenue residence which police

responded to only hours earlier -- Murray drove her home.        As

they pulled up to the residence, Taliaferro expressed concern to

Murray that defendant was inside because his bicycle was chained

to the rail outside.     Murray then radioed for back-up and

Officers Black-Taylor, John Devlin and Stowe arrived within

seconds.

     Using her key, Taliaferro unlocked the door and allowed the

officers into the apartment, advising them that defendant

occupied the rear bedroom on the second floor.       At the officers'

direction, Taliaferro remained outside.       Once inside, the




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officers announced their presence and began checking the first

floor.     Finding no one there, they proceeded to the second floor

and after checking several rooms, headed to the rear bedroom.

Murray knocked on the door, announced his presence, and when no

one answered, proceeded to open the door.     Murray saw Swain

standing by the dresser and defendant standing on a 45-degree

angle inside the archway of a closet that had no door.     Because

he could only see defendant's left hand, and concerned for his

safety, Murray ordered defendant to come out of the closet and

show his hands.    The officer had to repeat this command three

times before defendant finally complied.     As defendant turned

slowly to face the officer, he dropped an object.     Murray heard

a hard thud as the object hit the closet floor and suspected it

was a weapon.

     The officers handcuffed defendant and took him into

custody.    Searching defendant incident to the arrest, Officer

Devlin found thirty-one clear bags stamped "white house," which

later tested positive for heroin.     Officer Murray advised

defendant of his Miranda1 rights.     Murray then returned to the

closet area where he retrieved a small silver semi-automatic




1
  Miranda v. Arizona, 
384 U.S. 436, 
86 S. Ct. 1602, 
16 L. Ed. 2d 694 (1966).



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handgun.   Defendant was then transported to police headquarters,

where he was placed in a holding cell at about 9:40 a.m.

    At 10:00 a.m., after speaking with Taliaferro and learning

that defendant had already been advised of his Miranda rights,

Detective Kevin Burrows met with defendant to determine whether

he wanted to give a statement.    When defendant indicated he

wanted to talk only about the gun, Burrows re-read him his

Miranda rights.   Defendant waived his rights in writing and

agreed to give a taped statement.    Appearing alert, cooperative

and "anxious" to explain his possession of the weapon, defendant

told Burrows that he did not intend to shoot the officers; that

the gun was not loaded; that someone had given him the gun; and

that it was not his.

    On that same day, Burrows took a statement from Taliaferro.

According to Taliaferro, on May 18, 2004, she had been

temporarily living with her cousin at her apartment on Magellan

Avenue for about two months and remained at the residence for a

total of about five months.    Defendant, who fathered Swain's

baby, lived there with Swain as well.    In the early morning

hours of May 18, the cousins went out for pizza and to play

pool.   When they returned to the apartment around 1:00 a.m.,

defendant was inside, throwing Swain's clothes down the steps

and into the trash.    In her cousin's defense, Taliaferro started




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                                 5

throwing the clothes back upstairs.    Defendant tried to snatch

the clothes from Taliaferro, so she pushed him, and they both

fell.   When Taliaferro stood up, defendant pushed her into the

wall.   He then put her in a frontward chokehold for about five

minutes where she could not breathe and punched her several

times in the face.    When defendant finally released the victim

from the chokehold, he left the apartment.    Taliaferro called 9-

1-1 and reported the assault, giving a description of defendant.

    At trial, Swain gave a different version of the incident,

portraying Taliaferro as the aggressor who had hit defendant in

the head with a combination lock, although she failed to mention

this fact in her signed statement to Officer Murray on May 18,

2004.   According to Swain's trial testimony, Taliaferro struck

defendant because she thought that defendant had hit Swain

during an argument.   Defendant did not strike back, but

attempted to restrain her as he took the lock from her.

Thereafter, defendant left to take a walk, and Taliaferro called

the police.   When defendant returned fifteen minutes later,

Taliaferro was no longer there and next saw her when she entered

Swain's apartment with the police.

    Swain denied that Taliaferro resided with her.    According

to Swain, Taliaferro never had a key to the apartment nor

authority to enter the home without Swain's permission.    She




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                                 6

admitted, however, that police found heroin in defendant's pants

pocket and a firearm in the bedroom.   Swain confirmed that

defendant was a drug user and often saw him use drugs.   She had

no knowledge of the firearm found in her home and had never seen

it before.

    After the judge denied defendant's motion to suppress the

physical evidence and defendant's statement, trial proceeded for

three days following which the jury convicted defendant of the

drug and weapons offenses charged as well as the disorderly

person's offense of simple assault.    On appeal, defendant raises

the following issues:

         I.    THE DEFENDANT'S RIGHT TO BE FREE FROM
               UNREASONABLE SEARCHES AND SEIZURES AS
               GUARANTEED BY THE FOURTH AMENDMENT TO
               THE UNITED STATES CONSTITUTION AND ART.
               1, PAR. 7 OF THE NEW JERSEY
               CONSTITUTION WAS VIOLATED BY THE
               ILLEGAL WARRANTLESS SEARCH AND SEIZURE.

               A.   THE POLICE HAD NEITHER ACTUAL
                    AUTHORITY NOR APPARENT AUTHORITY
                    TO SEARCH THE DEFENDANT'S BEDROOM.

               B.   THERE WAS NO LEGITIMATE EXIGENCY
                    THAT REQUIRED THE POLICE TO TAKE
                    IMMEDIATE COMMUNITY CARETAKING
                    ACTION.

         II.   THE STATE FAILED TO PROVE BEYOND A
               REASONABLE DOUBT THAT THE DEFENDANT
               KNOWINGLY AND VOLUNTARILY WAIVED HIS
               MIRANDA RIGHTS.

         III. THE TRIAL COURT VIOLATED THE
              DEFENDANT'S RIGHT TO DUE PROCESS OF LAW


                                                           A-5568-07T4
                               7

                 AS GUARANTEE BY THE FOURTEENTH
                 AMENDMENT TO THE UNITED STATES
                 CONSTITUTION AND ART. 1, PAR. 1 OF THE
                 NEW JERSEY CONSTITUTION BY FAILING TO
                 INSTRUCT THE JURY ON THE LAW OF PRIOR
                 INCONSISTENT STATEMENTS.

           IV.   THE DEFENDANT'S RIGHT TO DUE PROCESS OF
                 LAW AS GUARANTEED BY THE FOURTEENTH
                 AMENDMENT TO THE UNITED STATES
                 CONSTITUTION AND ART. 1, PAR. 1 OF THE
                 NEW JERSEY CONSTITUTION WAS VIOLATED BY
                 THE AMBIGUOUS AND CONFUSING
                 INSTRUCTIONS ON THE LAW OF POSSESSING A
                 FIREARM IN THE COURSE OF COMMITTING THE
                 CRIME OF INTENT TO DISTRIBUTE CDS.
                 (Not Raised Below).

                 THE SENTENCE IS EXCESSIVE.
           V.

                 A.   THE TRIAL COURT IMPROPERLY
                      BALANCED THE AGGRAVATING AND
                      MITIGATING CIRCUMSTANCES.

                 B.   THE COURT MADE FINDINGS OF FACT TO
                      ENHANCE THE SENTENCE.

                                 I.

    Defendant contends the trial court erred in denying his

motion to suppress because Taliaferro neither gave a valid

consent to search nor had the apparent authority to grant such

consent.   We disagree.

    A third party other than defendant who possesses "common

authority over or other sufficient relationship" to the property

or premises sought to be inspected may consent to its search.

United States v. Matlock, 
415 U.S. 164, 171, 
94 S. Ct. 988, 993,


39 L. Ed. 2d 242, 250 (1974); see also State v. Suazo, 133 N.J.


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                                 8

315, 320 (1993); State v. Douglas, 
204 N.J. Super. 265, 276-77

(App. Div.), certif. denied, 
102 N.J. 378 (1985); State v.

Miller, 
159 N.J. Super. 552, 557-59 (App. Div.), certif. denied,


78 N.J. 329 (1978).   The issue, for present purposes, of whether

a person has common control and authority over the property

turns "upon the appearances of control at the time, not any

subsequent resolution of questions of title or property rights."

State v. Santana, 
215 N.J. Super. 63, 71 (App. Div. 1987);

accord State v. Powell, 
294 N.J. Super. 557, 563 (App. Div.

1996) (same, in context of automobile).   In this context, courts

employ an objective test in determining whether at the time of

entry the police reasonably believed that the third party

possessed common authority over the premises, even if it is

later discovered that such third party had no such authority.

See Illinois v. Rodriguez, 
497 U.S. 177, 185-86, 
110 S. Ct. 2793, 2800, 
111 L. Ed. 2d 148, 159-60 (1990); Suazo, supra, 
133 N.J. at 320.   Thus, if a law-enforcement officer at the time of

the search erroneously, but reasonably, believed that a third

party possessed common authority over the property to be

searched, a warrantless search based on that third party's

consent is permissible under the Fourth Amendment.   Suazo,

supra, 
133 N.J. at 320.




                                                            A-5568-07T4
                                9

    In Miller, supra, we held that the consent to search rooms

given by a woman who possessed keys to both rooms in the rooming

house, who unlocked the doors to allow police entry and who told

the officers that she occupied both rooms with defendant and

another man, was valid, so that the warrantless search of the

rooms was proper.   
159 N.J. Super. at 555-59.   We noted that

"special significance has been placed on the fact that the

consenting person had a key to the premises."    Id. at 558; see

also United States v. Murphy, 
506 F.2d 529 (9th Cir. 1974)

(consenting party's custody of keys to the premises gave him

sufficient dominion over the warehouse to enable him to grant

the requisite consent), cert. denied, 
420 U.S. 996, 
95 S. Ct. 1433, 
43 L. Ed. 2d 676 (1975).

    Here, in denying defendant's suppression motion, the trial

judge, crediting the police officers' testimony, concluded that

there was "sufficient indicia of association and control with

respect to [the apartment for] an officer to objectively and

reasonably conclude that there is authority particularly with

one who has the described association and, in fact, is able to

produce a key to enter into the premises."   We agree.

    Taliaferro asked Officer Murray to take her "home" and

directed him to the Magellan Avenue apartment, specifically

providing him with the street address and apartment number.      She




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                                 10

then produced a key to the residence and unlocked the door to

allow police entry into the house.    Moreover, she had earlier

reported being assaulted in the house at 3:00 a.m. and

personally knew of both defendant's connection with the

residence and his presence inside based on his bicycle on the

outside of the house.   Under the totality of the circumstances,

the officers' belief that Taliaferro had the authority to

consent was objectively reasonable.

    A third party who possesses the authority to consent to a

search of premises generally may lack the authority to consent

to a search of a specific area on those premises.     State v.

Coyle, 
119 N.J. 194, 217 (1990).     Here, however, there was no

proof that the second floor rear bedroom wherein defendant was

found was within his exclusive use and control.     Suazo, supra,


133 N.J. at 320.   Moreover, having probable cause to believe the

crime of assault was committed in the residence only hours

earlier, that defendant was inside the second floor rear

bedroom, and that the alleged victim was in need of protection,

police entry into the bedroom was further justified by the

exigency of the situation, State v. Johnson, 
193 N.J. 528, 552-

53 (2008) (exigent circumstances permit a warrantless search

"when inaction due to the time needed to obtain a warrant will

create a substantial likelihood that the police or members of




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                                11

the public will be exposed to physical danger or that evidence

will be destroyed or removed from the scene[]") as well as

pursuant to their community caretaking function.    State v.

Bogan, 
200 N.J. 61, 74 (2009); State v. Frankel, 
179 N.J. 586,

613-14 (2004).   And finally, having lawfully entered the second

floor rear bedroom, the events that unfolded justified a

protective sweep of the closet for the object discarded by

defendant, his arrest and subsequent search incident to that

          State v. Sharpless, 
314 N.J. Super. 440, 454 (App.
arrest.

Div.), certif. denied, 
157 N.J. 542 (1998).

                               II.

    Defendant contends that his statement should have been

suppressed because Detective Burrows failed to re-administer

Miranda rights before asking defendant whether he wished to give

a statement.   This argument is without merit.

    "'Once a defendant has been apprised of his constitutional

rights, no repetition of these rights is required.'"    State v.

Nyhammer, 
197 N.J. 383, 401 (quoting State v. Melvin, 
65 N.J. 1,

14 (1974) (internal editing marks omitted), cert. denied, ___

U.S. ___, 
130 S. Ct. 65, 
175 L. Ed. 2d 48 (2009).   Here, there

were no intervening events that would have vitiated the initial

Miranda warnings.   To the contrary, the police advised defendant

of his Miranda rights at the scene, just after he was arrested




                                                           A-5568-07T4
                                12

for possession of the gun.    Defendant was then taken to police

headquarters where he was fed and housed in a cell with other

inmates.   At 10:00 a.m., just three hours after his arrest,

Detective Burrows approached defendant and asked him if he

wished to give a statement.    No pressure was exerted on

defendant, nor was he offered any incentives to cooperate.

Burrows simply asked defendant if he wanted to give a statement,

and defendant anxiously agreed to talk about the gun.       Most

significant, the statement that followed was preceded by another

rendition of full and proper Miranda warnings.     See State v.

Magee, 
52 N.J. 352, 372-75 (1968), cert. denied, 
393 U.S. 1097,


89 S. Ct. 891, 
21 L. Ed. 2d 789 (1969).

    In determining the voluntariness of a defendant's

confession, we traditionally look to the totality of the

circumstances to assess whether the waiver of rights was the

                                              See State v. Presha,
product of a free will or police coercion.


163 N.J. 304, 313 (2000).     Here, in denying defendant's motion

to suppress his statement, the trial judge found that there was

"not even a hint here that [defendant's] free will was

overborne," or that defendant was under the influence of drugs

or alcohol.   The judge concluded that defendant gave his

statement because, although he did not want to discuss the

altercation with Taliaferro, he did want to explain the gun




                                                              A-5568-07T4
                                  13

incident since he had been caught red-handed with it.

Defendant's explanation that "some guy" had given him the gun to

hold for him, and that the day defendant decided to get rid of

the gun happened to be the day that police found him in the

closet with it, was not only convenient, but given after police

twice advised defendant of his Miranda rights, which defendant

fully understood.   Consequently, the judge ruled that defendant

had freely waived his Miranda rights and agreed to give a

statement to police.   We find no error in this conclusion.

                               III.

    Defendant contends the court erred in failing to instruct

the jury on the law of prior inconsistent statements in

assessing Taliaferro's credibility.   We disagree.

    In determining whether to give the Model Jury Charge

regarding the use of inconsistent statements as substantive

evidence, the question is whether the prior inconsistent

statement has any significant exculpatory value, as where, for

instance, there are one or more conflicting versions of the same

event.   State v. Hammond, 
338 N.J. Super. 330, 342-43 (App.

Div.), certif. denied, 
169 N.J. 609 (2001).   Such an

inconsistency obviously would be valuable substantive evidence,

from which a defendant could urge the jury that the State had

not proved his guilt beyond a reasonable doubt.




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                                14

    Here, however, the claimed inconsistency merely concerned

where Taliaferro was living at the time of the incident, May 18,

2004.    She testified on direct that she lived at the Magellan

Avenue apartment in Atlantic City but later explained that she

was "staying" there with her cousin and defendant.      On cross,

Taliaferro admitted giving police a home address in

Pleasantville and went on to explain this was not where she was

living at the time, but where her mail was being sent.

    Not only is the claimed inconsistency anything but clear

cut, it has no substantive exculpatory value concerning the

drug, weapons and assault charges for which defendant was being

tried.     To the extent there was any inconsistency at all, the

discrepancy goes solely to the issue of credibility, the

assessment of which the jury received adequate and proper

instruction on.    We conclude, therefore, that it was not error

to omit from the jury instructions that portion of the Model

Jury Charge informing of the use of a prior inconsistency as

substantive evidence.

                                 IV.

    Defendant also faults, for the first time, the jury charge

on possession of a firearm in the course of committing a drug

offense.    We find no error, much less plain error, in the

                         R. 2:10-2.    The court appropriately used
court's instruction.




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                                  15

the Model Jury Charge without objection from defendant.     The

charge, we find, was neither misleading nor confusing, but

clearly conveyed to the jury the requisite elements of the

offense, namely not only that there was a weapon, and that

defendant possessed the weapon, but that defendant was in the

course of committing or attempting to commit the crime of

possession with intent to distribute CDS.

                                 V.

    Lastly, defendant challenges his aggregate sentence of

thirteen years with a five-year parole disqualifier as

excessive.   We find no need to interfere with defendant's

sentence.    It reflects a proper consideration of the relevant

aggravating factors, N.J.S.A. 2C:44-1a(3), (6) and (9), the

absence of any mitigating circumstances, N.J.S.A. 2C:44-1(b),

and the mandatory consecutive term on count 4, N.J.S.A. 2C:39-

4.1d, as well as the mandatory parole ineligibility term on

count 5, N.J.S.A. 2C:39-7b.

    Affirmed.




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