STATE OF NEW JERSEY v. SHAQUAN R. JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAQUAN R. JOHNSON,

Defendant-Appellant.

________________________________________

December 27, 2013

Submitted November 18, 2013 - Decided

Before Judges Parrillo and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-11-3407.

Joseph E. Krakora, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

During the early morning hours of April 20, 2008, defendant, Shaquan R. Johnson, embarked on a deadly crime spree in Irvington, killing one person and wounding two others, including a police officer. Armed with a .40 caliber handgun, he drove a silver 2001 Mercury Mountaineer to the corner of Eighteenth Avenue and Eastern Parkway where he confronted Hakim Hall, who was driving a burgundy Lexus. Johnson fired into the Lexus at Hall, hitting him in the hand.

Johnson then proceeded along Eighteenth Avenue toward Grove Street where twenty-two year-old Gary Farrar was waiting in his driveway with some friends for two co-workers to arrive. Johnson fired at Farrar, hitting him in the face. Farrar later died from his injury.

Johnson continued driving to the intersection of Grove Street and Springfield Avenue where he spotted an Irvington police patrol vehicle parked at the side of the road. Sergeant John Van Bavel was sitting inside the car. Johnson shot at Sgt. Van Bavel, striking him in the hip.

Before he returned to his mother's home, where he resided, the State alleged that Johnson attempted to murder another individual; attempted to kidnap and assault three other people, including a minor; and also attempted to assault three more.

Johnson returned to his mother's home in Newark around 3:30 a.m. Between 9:00 a.m. and 9:30 a.m., the next morning, Johnson left his mother's house to go to the store.

At that time, Detective Christopher Smith and Captain John Miller of the Essex County Prosecutor's Office were on patrol with State Trooper, Sergeant Vernacio Rivera, in Irvington. They had been given a description of the shooting suspect and his vehicle and were searching for him. After they observed defendant driving the Mountaineer, they stopped the vehicle.

Smith approached defendant's car on the driver's side. Smith denied having his gun drawn, however defendant testified that Smith's gun was drawn when he approached. Smith opened the driver's door and testified that defendant stated, "What's the problem[?] I'm just coming from my mother s house on Lindsley." Smith denied asking defendant any questions. Defendant testified that Smith asked him if he had a gun in the car, where he was coming from, and where his mother lived.

When Smith realized defendant fit the description of the shooter from the night before, he removed defendant from the vehicle. At that time, Smith was able to see some small white tablets on the center console, which he recognized as ecstasy. Defendant was placed under arrest for possession of ecstasy and taken to the Irvington Police Department.

Smith then checked the Mountaineer's registration and learned it was registered to defendant's grandfather. Smith went to the address, and spoke with defendant's grandfather who informed him that defendant stayed there occasionally, but lived with his mother on Lindsley Avenue.

Smith returned to the Irvington Police Department and, after some research, found defendant's mother's address on Lindsley Avenue in Newark.

Smith proceeded to the address and spoke with defendant's mother, Robin Johnson. Smith testified that Robin allowed him into her house and showed him defendant's room. Robin testified that the police entered her home without her explicit consent. Smith also testified that Robin gave consent to search the room but the police opted to obtain a warrant.

Smith secured the room, while other officers left the house to obtain a search warrant for defendant's room. After Smith was informed that a warrant had been signed, he searched defendant's room and found a .40 caliber handgun under the pillow on the bed, marijuana on a closet shelf, small white tablets, some live rounds of ammunition, and another gun, a .22 caliber revolver, underneath the mattress.

Defendant was indicted and charged with thirty counts, including first-degree murder in Farrar's death, and two counts of aggravated assault in the shootings of Hall and Sgt. Van Bavel.

Defendant moved to suppress the evidence discovered during the search of his room, arguing the search resulted from improper questioning at the time he was stopped, since he had not yet been read his Miranda1 rights. He also claimed the police did not have permission to enter Robin Johnson's house and Smith entered defendant's room before the warrant was obtained.

The motion court heard testimony from Detective Smith, Robin Johnson, and defendant. In a written decision, the court denied defendant's motion, finding the police were not required to advise defendant of his Miranda rights when defendant was stopped, as he was not under arrest at the time. Additionally, the judge found that Robin Johnson allowed the police to enter her home and defendant's bedroom. Finally, the judge found that even if Smith did enter the room before receiving the warrant, that the discovery of the items would have been inevitable. Thus, the evidence recovered was not the fruit of the poisonous tree.

Pursuant to a plea agreement, defendant pled guilty to the reduced charge of aggravated manslaughter under count one; counts fourteen and eighteen, second-degree aggravated assaults of Hall and Van Bavel; and count three, second-degree possession of a weapon for an unlawful purpose. Defendant admitted to shooting Hall, Farrar and Sgt. Van Bevel.

On count one, defendant was sentenced to a thirty-year term with eight-five percent parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. On count three, he received a concurrent ten-year term; on count fourteen, a consecutive five-year term; and on count eighteen, a concurrent five-year term. The total custodial term was thirty-five years.

On appeal, defendant presents the following arguments:

point i

the detective's opening the car door without warning constituted a warrantless search. this was immediately followed by the detective's interrogation of defendant without administering Mirandawarnings. because the police opened the door, then interrogated, then used the information obtained from the interrogation to determine the location they ultimately searched, the evidence obtained from that search must be suppressed as fruit of the poisonous tree.

point ii

defendant's sentence is excessive and must be reduced or remanded for sentencing.

Defendant contends that the evidence discovered in his room, including two guns and various drugs, should be suppressed because its discovery was based on un-Mirandized statements he made to police. Defendant argues that he was in custody as soon as the police pulled his car over and Miranda warnings were required before any questions were asked. He claims that any evidence gathered as a result of that statement must be suppressed as "fruit of the poisonous tree." We disagree.

We review a trial court's interpretation of law under a de novo standard. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). However, we defer to the trial court's findings of fact as long as they are based on "sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964).

We note initially that the conflict between Detective Smith's testimony, that defendant spontaneously volunteered that he was coming from his mother's house, and defendant's testimony that he provided the information about his mother's house in response to Smith's questioning, was never resolved by the motion court. Rather, the judge concluded that because defendant was not in custody at the time he made the statement, "no Miranda warning was required at the time that the police stopped defendant even if it were true that the defendant was asked [by Smith] where he was coming from."

While it would have been preferable for the motion court to make a factual determination and credibility finding on that clear conflict, see Rule 1:7-4(a), that failure is not so critical to our resolution of this appeal that we are inclined to employ the extraordinary remedy of invoking original jurisdiction, as suggested by defendant. Even if we accept defendant's testimony that Smith opened his car door and questioned him, Miranda warnings were not required, as defendant was not in custody and the nature of the questioning was not designed to elicit an incriminating response.

Miranda warnings are required prior to a custodial interrogation, which is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. Miranda is not implicated when the detention and questioning are part of an investigatory procedure rather than a custodial interrogation, see State v. Godfrey, 131 N.J. Super. 168, 175-78 (App. Div. 1974), aff'd o.b., 67 N.J. 267 (1975), or where the restriction on a defendant's freedom is not of such significance as to render him "in custody." Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977); State v. Seefeldt, 51 N.J. 472, 482 (1968); State v. Downey, 206 N.J. Super. 382, 396-97 (App. Div. 1986). Whether a person has been significantly deprived of his freedom so as to trigger Miranda requires an examination of the totality of the circumstances including "the duration of the detention, the nature and degree of the pressure applied to detain the individual, the physical surroundings of the questioning and the language used by the officer in summoning the individual." State v. Pierson, 223 N.J. Super. 62, 67 (App. Div. 1988).

Applying these principles, we note that defendant was removed from the Mountaineer after Smith realized he bore a resemblance to the suspect in the shootings. After defendant was out of the car, Smith spotted the white pills on the console and placed him under arrest for drug possession. It is undisputed that defendant's statement occurred during the brief period after Smith opened the car door and before defendant's arrest for possession of ecstasy.

These facts compel the conclusion this was a constitutionally permissible investigative detention rather than a de facto arrest. See State v. Sheffield, 62 N.J. 441, 447, ("[M]ere field interrogation, without more, by a police officer does not involve 'detention' in the constitutional sense so long as the officer does not deny the individual the right to move.") cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 212 (1973).

We are satisfied that there is sufficient credible evidence in the record for the motion court to conclude that the questioning was not in a custodial setting and thus Miranda did not apply.

Defendant does not dispute the basis for the issuance of the warrant or the validity of the warrant itself. The police obtained independent information from defendant's grandfather and from police records that defendant was living with his mother on Lindsley. They discovered the grandfather's address based on the vehicle registration, not as the result of any statements by defendant. Additionally, Detective Smith testified that he had discovered the address in police records related to a prior arrest. When Smith visited the Lindsley address, defendant's mother confirmed that her son lived there. Thus, even if the warrant was based on tainted information, the evidence would fall under the inevitable discovery exception to the "fruit of the poisonous tree" doctrine.

In order to invoke the inevitable discovery exception, the State must show by clear and convincing evidence that

(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.

[State v. Smith, 212 N.J. 365, 391 (2012) (citing State v. Sugar, 100 N.J. 214, 238 (1985)), cert. denied, __ U.S. __, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).]

When the police applied for the search warrant, defendant was under arrest for possession of ecstasy and was a suspect in a homicide and an assault of a police officer. Even if defendant did not disclose where he resided, an investigation into his background would have been conducted by police, including a review of his criminal record. Smith did conduct such an investigation after leaving defendant's grandfather's house.

The discovery of defendant's home address was inevitable. Police had learned that defendant did not live at the Eighteenth Avenue address on the vehicle registration because his grandfather told them that he lived instead with his mother. A review of police records revealed that defendant had provided this address after a prior arrest. This is not a case where the address was so unconnected to defendant that it could not have been found without his statement.

There was no connection between defendant's statement and the background check that police performed. Thus, the discovery in the files did not flow from any statements made by defendant. There is compelling evidence in the record that Robin Johnson's address would have been inevitably discovered and linked to defendant.

Defendant next contends that his thirty-five-year sentence is excessive. He maintains that the trial court's analysis of the mitigating and aggravating factors was insufficient and did not support the lengthy sentence given. Specifically, he argues that the finding of aggravating factor nine (deterrence) was not appropriate because there was no special need to specifically deter this particular defendant. Defendant also claims that the sentencing court impermissibly imposed consecutive sentences without providing a statement of reasons, as required by State v. Miller, 108 N.J. 112, 122 (1987). Finally, he alleges that these charges do not warrant consecutive terms, but, in fact, should have been concurrent.

The standard of review for an excessive sentence appeal is a limited one. State v. Miller, 205 N.J. 109, 127 (2011). "[A]n appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." State v. O'Donnell, 117 N.J. 210, 216 (1989). Moreover, a sentence will not be disturbed unless there is "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).

The sentencing court found that no mitigating factors applied, and aggravating factors (3) (risk of re-offense); (6) (extent of prior record); and (9) (need to deter) applied. See N.J.S.A. 2C:44-1a.

We note that, at sentencing, defendant's counsel did not argue that any mitigating factors applied. There is substantial credible evidence to support the court's findings as to mitigating and aggravating factors. The thirty-year sentence on the aggravated manslaughter charge was consistent with the plea agreement, reflects the severity of that crime, and is not so excessive that it "shocks the judicial conscience."

Although the sentencing court did not provide specific reasons for imposing a consecutive five-year term for the aggravated assault on Hakim Hall, the sentences involve multiple victims and clearly fall within the sentencing guidelines. See State v. Molina, 168 N.J. 436, 442 (2001).

Consecutive sentences are "especially suitable" when there are "[c]rimes involving multiple deaths or victims who have sustained serious bodily injuries[.]" State v. Carey, 168 N.J. 413, 428 (2001). Specifically, "the multiple-victims factor is entitled to great weight and should ordinarily result in the imposition of at least two consecutive terms[.]" Id. at 429-30.

The manslaughter and aggravated assaults were not committed as part of a single criminal action, but were rather separate crimes. There was no evidence presented to demonstrate that these crimes were linked or shared a common motive. Additionally, although all the incidents, including the assault on Sgt. Van Bavel, took place on April 20, 2008, they were not so clearly connected as to be part of one incident. We find no abuse of discretion in the imposition of consecutive sentences.

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