STATE OF NEW JERSEY v. WILLIAM JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3391-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM JOHNSON,

Defendant-Appellant.

_____________________________

July 21, 2011

Submitted June 8, 2011 - Decided

Before Judges Cuff and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-08-2617.

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

Paula T. Dow, Attorney General, attorney for respondent (Robyn B. Mitchell, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

In this appeal, defendant, William Johnson, seeks reversal of the trial court order denying his motion to suppress a handgun seized from his girlfriend's bedroom closet. After the court denied his motion, defendant pled guilty to two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), for which he received a seven-year custodial term with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.

Defendant's arrest, indictment, and ultimate guilty pleas stemmed from events that occurred during the early morning hours of March 12, 2006, in Camden, in the area of Sewell and Berwick Streets, where police witnessed a black male, wearing a black hoodie, and brown boots shoot two men in a vehicle. A broadcast reported that the suspect was in the area of Sewell and Berwick Streets, heading toward Watson Street.

Officer Michael Hendricks, who was on patrol at the time, headed toward Watson Street in search of the suspect. He saw an individual, later identified as defendant, who was wearing black clothing and "breathing heavily[.]" He asked defendant from where he was coming. Defendant responded by giving Officer Hendricks the address of a house he had just exited and said he had just finished engaging in sexual activity. Defendant stated further that his cousin was waiting for him in a Jeep parked nearby. Officer Hendricks allowed defendant to enter the Jeep, and the vehicle then sped off, disregarding traffic signs. This action led Hendricks to suspect that "maybe they were trying to get away from something."

Officer Hendricks decided to pursue the vehicle and stopped it on Baird Boulevard. After directing defendant to exit the vehicle and engaging in a brief exchange with the driver, Hendricks told the driver he could leave. Officer Hendricks placed defendant in the rear of his patrol vehicle. He could not recall whether he handcuffed defendant at that point. He drove back to the area where he first encountered defendant and went up to the house defendant indicated he had just left. He yelled out "Camden Police[,]" and a woman appeared at the top of the stairs. He inquired whether a "gentleman [had] just come out of [the woman's] home" and he believed that he also provided the name Willie or William to her. The woman indicated that she did not know anyone by that name. He returned to his patrol car and believed it was at that time that he handcuffed defendant.

Officer Hendricks then returned to the area where officers reported that they had witnessed the shooting and waited for other officers to arrive. While waiting and without having asked defendant any questions, defendant told the officer that his friends had been shot. Officer Hendricks asked defendant how he would know about a shooting when he had been in the house having sex. Defendant did not respond to the question. When Officer Kemp, who did not testify during the suppression hearing, arrived at Officer Hendricks's location, Officer Hendricks believed that Officer Kemp identified defendant as one of the suspects, but could not definitively recall whether Officer Kemp had identified defendant.

Detective William Armstrong also arrived at the scene around the same time. Officer Hendricks, as well as another officer, Detective Sergeant Edwin Ramos, recalled hearing Detective Armstrong administer Miranda1 warnings to defendant. Officer Hendricks could not recall word-for-word what Detective Armstrong said, and Detective Sergeant Ramos testified that he walked away so as not to interfere with Detective Armstrong administering the warnings.

According to Detective Armstrong, he and Detective Sergeant Ramos questioned defendant while defendant was in the rear of Officer Hendricks's vehicle, and in response to their question as to where he had been, defendant told them that he had been at his girlfriend's house and left there around 11:00 p.m. At that point, Detective Sergeant Ramos instructed Detective Maurise Gibson to go to the girlfriend's house to check out defendant's alibi. Detective Gibson spoke to defendant's girlfriend, Georgette Johnson, who reported that a friend of hers "she only knows . . . as 'B-Man'[,]" left her home between 11:00 p.m. and midnight. Detective Gibson conveyed this information to Detective Sergeant Ramos, who remained suspicious and decided that defendant should be transported to the police station.

Detective Armstrong testified that before defendant was transported to the Police Administration Building and placed in a cell, he advised defendant of his Miranda warnings. However, because they were "out on the street[,]" he did not have defendant sign an acknowledgement. Once at the Police Administration Building, Detective Armstrong again administered Miranda warnings to defendant.

Meanwhile, Ms. Johnson signed a Consent to Search Form around 3:13 a.m. that morning, and Detective Gibson found a plastic bag in a closet that contained a black hooded sweatshirt and sweatpants. Ms. Johnson told the detective that she did not believe the clothing belonged to defendant but instead belonged to a relative, who often dropped off laundry. Detective Gibson next proceeded to the police station where he spoke with defendant. He did not administer Miranda warnings because he believed that Detective Armstrong had already done so. He asked defendant whether he knew anything about the shooting. The detective believed that defendant said he heard gunshots. However, Detective Gibson specifically recalled defendant relate to him that he saw a Spanish man running and drop something. He went over to retrieve the item and found a gun, which he picked up and placed in Ms. Johnson's bedroom closet.

Detective Armstrong testified that he was present when defendant provided information about the gun to Detective Gibson. He also testified that he re-administered the Miranda warnings to defendant but did not have defendant sign a Miranda card because he intended to have defendant provide a tape-recorded statement. He acknowledged that he omitted from his four-page report the fact that he re-administered Miranda warnings to defendant.

Detective Sergeant Ramos testified that he recalled defendant speaking to Detectives Gibson and Armstrong in the interview room rather than the holding cell and that when defendant mentioned a weapon, he decided to "cease everything" in order to "go get the gun." Ms. Johnson gave her verbal consent to search her bedroom closet, where the officers found a weapon, and then signed a second Consent to Search Form immediately afterwards.

When officers returned to the police station and advised defendant that they had retrieved the weapon and inquired whether it belonged to him, defendant denied that the gun belonged to him. The officers placed defendant in an interview room where he was again administered Miranda warnings, and questioning commenced around 11:00 a.m. The initial questioning was not taped, but Detective Armstrong eventually turned on the tape and completed the questioning, which concluded around 11:12 a.m. Detective Armstrong initially testified that defendant signed a Miranda form around 11:12 a.m. and the form reflected that particular time. After Detective Armstrong was shown a transcript of the taped statement that indicated the taped statement concluded at 11:12 a.m., he testified that the form had actually been signed earlier. Detective Sergeant Ramos also testified that the Miranda form was signed before the taped interview.

Defendant testified that once Officer Hendricks stopped his cousin's vehicle, he was told that he fit the description of the person involved in the shooting and said nothing else. The officer took him back to what he believed was the crime scene because the area was cordoned off with yellow tape. Detective Armstrong approached the vehicle and asked him "what [he had been] doing here[.]" He did not respond and the detective walked away. Detective Armstrong returned shortly thereafter and administered Miranda warnings to him. After completing the warnings, defendant told Detective Armstrong that he wanted to speak to a lawyer and his mother. Detective Armstrong did not say anything. Defendant testified that the detective smirked, slammed the door where he was seated, and told Officer Hendricks to take him to the police station.

Once he arrived, he was placed in a holding cell where Detectives Gibson and Armstrong started questioning him over and over. They left and after awhile returned and told him that they had found a gun that had his fingerprints on it and that the victims, who were hospitalized, had identified him. Throughout this questioning, defendant testified that no Miranda warnings were administered to him. The detectives continued to question him for two or three hours until he gave a statement. After he gave them a statement, Detective Armstrong provided defendant with a Miranda form on which he waived his right to remain silent.

On appeal, defendant raises one point:

THE COURT ERRED IN DENYING THE SUPPRESSION MOTION BECAUSE THE SEARCH OF JOHNSON'S GIRLFRIEND'S HOME AND JOHNSON'S STATEMENTS WERE THE UNATTENUATED PRODUCT OF AN ILLEGAL ARREST.

We disagree. Accordingly, we affirm the denial of defendant's suppression motion substantially for the reasons expressed in Judge Louis Meloni's thorough and well-reasoned oral opinion of February 8, 2007.

Our Supreme Court has clearly set forth the standard of review of a trial court's ruling on a suppression motion:

Our analysis must begin with an understanding of the standard of appellate review that applies to a motion judge's findings in a suppression hearing. As the Appellate Division in this case clearly recognized, an appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).

An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.

[State v. Elders, 192 N.J. 224, 243-44 (2007).]

Judge Meloni's ultimate findings that there was probable cause to arrest defendant as a suspect in the earlier shooting could reasonably have been reached on sufficient credible evidence present in the record as a whole. State v. Johnson, supra, 42 N.J. at 161-62. Probable cause is an elusive concept that is not necessarily dependent upon one particular event viewed in isolation. State v Pineiro, 181 N.J. 13, 21 (2004). Rather, a probable cause determination may be reached through consideration of a number of factors cumulatively. State v. Moore, 181 N.J. 40, 46 (2004). Here, defendant was observed near the vicinity where the shooting had occurred, was attired in dark clothing, was a black male who appeared out of breath when the officer approached him, and who, when given an opportunity to leave the scene, left in a vehicle that then proceeded to disregard traffic signs as it sped away. Crediting Officer Hendricks's testimony concerning these facts supports the conclusion that there was probable cause to arrest defendant. Likewise, while recognizing there were discrepancies in the testimony of the officers, the court did not find the discrepancies to be fatal and credited the testimony concerning the Miranda warnings. Defendant acknowledged that Detective Armstrong administered the warnings, which he understood, at the crime scene, but claimed that he asked for a lawyer and his mother. The court rejected this testimony noting that

[n]owhere on the tape does he ask for his mother or for an attorney which . . . leads me to believe that he didn't initially when he said that he did. He does not sound to me on the tape as being fearful or threatened. He does sound sad. Considering the reason he was there is a very serious charge[.] I would expect that an individual would feel sad knowing that the consequences could be catastrophic.

Nor do we conclude that the statement should have been suppressed because Miranda warnings were administered after defendant provided the taped statement. Judge Meloni found that the Miranda waiver form was executed after defendant provided the audiotaped statement, but found credible the testimony of Detectives Armstrong and Ramos that Miranda warnings were re-administered to defendant before he provided the audiotaped statement. "Miranda does not require a written waiver." State v. Warmbrun, 277 N.J. Super. 51, 62 (App. Div. 1994) (citing Klingler v. United States, 409 F.2d 299, 308 (8th Cir.), cert. denied, 396 U.S. 859, 90 S. Ct. 127, 24 L. Ed. 2d 110 (1969)), certif. denied, 140 N.J. 277 (1995). "The voluntariness of defendant's waiver is tested by the totality of all the surrounding circumstances." Ibid. (citing State v. Miller, 76 N.J. 392, 402 (1978)). Thus, the timing of when defendant signed the waiver form was but one factor in the totality of the then existing circumstances the motion judge considered in determining whether there had been a knowing and voluntary waiver of defendant's right to remain silent. Id. at 63-64 (citing United States v. Ellis, 457 F.2d 1204, 1207 (8th Cir. 1972)).

Similarly, Ms. Johnson's execution of the Consent to Search Form after the search of her bedroom closet does not require reversal. There is no dispute that she verbally provided her consent to search. The fact that she signed a written consent form after the weapon was seized from her bedroom closet did not invalidate her knowing and voluntary verbal consent to search. State v. Ellis, 246 N.J. Super. 72, 76-77 (Law Div. 1990), aff'd sub nom., State v. Kelley, 271 N.J. Super. 44 (App. Div.), certif. denied, 137 N.J. 167 (1994).

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