STATE OF NEW JERSEY v. SCOTT BANKS

NOT FOR PUBLICATION WITHOUT THE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.

SCOTT BANKS,

Defendant-Appellant.

________________________________

July 2, 2015

Submitted October 22, 2014 Decided

Before Judges Ashrafi, Kennedy and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-05-1460.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Scott Banks appeals his conviction and sentence on two counts of second-degree unlawful possession of a firearm without a permit, N.J.S.A. 2C:39-5(b), arising out of three shootings that resulted in the death of two people and an injury to a third. After reviewing the record and applicable legal principles, we affirm.

I

The State contended that, on October 24, 2008, defendant drove two other men in a white Infinity to various locations in Newark, where his passengers got out of the car and shot and killed Quadir Burroughs and Angelina Evans, and shot but did not kill Edward Ricks. The shootings were allegedly gang-related.

On May 8, 2009, a grand jury charged defendant and co-defendant Nashon Brown1 with first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1) and (2), (counts four and thirteen); first-degree purposeful or knowing murder of Quadir Burroughs and Angelina Evans, N.J.S.A. 2C:11-3(a)(1) and (2), (counts five and fourteen); second-degree unlawful possession of a firearm without a permit, N.J.S.A. 2C:39-5(b), (counts six, eleven, fifteen and seventeen); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), (counts seven, twelve, sixteen and eighteen); second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b)(1), (count eight); second-degree aggravated assault upon Edward Ricks, N.J.S.A. 2C:12-1(b)(1), (count nine); and first-degree attempted murder of Edward Ricks, N.J.S.A. 2C:5-1, (count ten).2

The State voluntarily dismissed the charge of second-degree conspiracy to commit aggravated assault at the close of its case. On December 29, 2011, a jury found defendant guilty of two counts of second-degree unlawful possession of a firearm without a permit. The jury was unable to reach a verdict on the remaining charges.

On March 12, 2012, defendant was sentenced on each count to a concurrent term of nine and a half years of imprisonment, with four and a half years of parole ineligibility. On October 19, 2012, defendant pled guilty to two counts of first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 11-3(a)(1) and (2), and one count of conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b)(1). He was sentenced on each count to ten years of imprisonment to run concurrently with one of the sentences that was imposed on March 12, 2012, for unlawful possession of a handgun without a permit. The remaining charges in the indictment were dismissed. Defendant appeals only the convictions and the sentences imposed for the two counts of second-degree unlawful possession of a firearm without a permit.

On appeal, defendant argues

POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPRESS.

POINT II THE TRIAL COURT ERRED IN PERMITTING IMPROPER BANKSTON TESTIMONY BEFORE THE JURY.

POINT III THE TRIAL COURT ERRED IN PERMITTING IMPROPER 404b PROOFS BEFORE THE JURY.

POINT IV THE TRIAL COURT ERRED IN PERMITTING PRIOR INCONSISTENT STATEMENTS OF A PROSECUTION WITNESS TO BE PLACED BEFORE THE JURY AS PART OF THE PROSECUTION'S CASE-IN-CHIEF.

POINT V THE EXPERT TESTIMONY WAS IMPROPER AND VIOLATED DEFENDANT'S CONFRONTATION RIGHTS.

POINT VI THE PROSECUTOR'S STATEMENTS TO THE JURY WENT BEYOND FAIR COMMENT ON THE EVIDENCE.

POINT VII DEFENDANT'S RIGHT TO A FAIR JURY PANEL WAS INFRINGED.

POINT VII DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.

II

A

Before trial, defendant filed a motion to suppress the evidence of two handguns and a statement he gave to the police after his arrest. At the conclusion of the suppression hearing the court found, based primarily upon their demeanor, that the State's witnesses were and the defendant's witnesses were not credible, and denied both motions. The credible evidence revealed as follows.

At about 6:00 a.m. on October 25, 2008, seven to ten police officers from the Newark Police Department went to the home of Leon Robinson to arrest defendant, who was suspected of being involved in the deaths of Quadir Burroughs and Angelina Evans. The police had two arrest warrants, one for a parole violation and the other for aggravated assault.

The police determined defendant was likely in Robinson's home because the police found a profile of defendant on "MySpace.com"3 and discovered he had logged onto this site on October 24, 2008. A purported picture of defendant on this site matched a police photograph of him. The police obtained a communications data warrant, which enabled them to obtain information showing defendant had logged onto the MySpace.com site at Robinson's home.

When they arrived at Robinson's apartment, the police knocked on his front door. The police did not have their guns drawn. A voice asked who was at the door and one of the officers responded "police." Robinson then opened the door. The police asked Robinson if he was "Leon," and he replied that he was. One officer gave his name and title, said he was looking for defendant, showed Robinson defendant's photograph, and asked if he was inside. Robinson said that he was and asked the officer what was going on. The officer asked where defendant was in the apartment; Robinson replied he was in a back room and then took the police to a room where defendant was sleeping. The officer testified that Robinson was cooperative, and later Robinson expressed disgust for defendant for bringing "drama" into his home.

The police entered the bedroom, announced they were the police, and told defendant to show his hands. Defendant instead reached between the mattress and box-springs, but the officers were able to restrain and arrest him. Two guns were confiscated from between the mattress and box-springs. No other area of the apartment was searched. After he was removed from Robinson's home but before he was placed in the squad car, defendant was apprised of his Miranda4 rights and taken to the police station.

Later that day defendant said that he was willing to talk to the police. Detective Anthony Iemmello interviewed defendant, but before any questioning began he apprised defendant of his Miranda rights. Defendant signed a form acknowledging that he received these rights.

During the video-recorded interview, defendant admitted that he drove "Baby Bev" and "Naz," in a white Infinity to a location in Newark where Baby Bev and Naz got out of the car and shot a male, who was a member of the "Brim set."5 Baby Bev and Naz returned to the car and defendant drove them to another location, where Baby Bev and Naz got out and shot a female, who had a boyfriend who may have been a member of the Brim set. Defendant then returned to Robinson's home. Later, Baby Bev and Naz came by and gave defendant their guns. Defendant put the guns under a mattress.

Defendant mentioned in his statement that he was affiliated with the "Sex Money Murder" set, and Baby Bev and Naz were affiliated with the "793" set. Defendant also said that he had been shot in the arm and leg four or five days before by a member of the Brim set.

Toward the end of the interview, defendant said that his leg was throbbing and that he needed something for the pain. After the interview defendant was taken to a local hospital where he was examined, given an anti-inflammatory and Tetanus shot, and released. Although he told the hospital staff he was in pain, when asked to characterize the severity of the pain on a scale of one to ten, he said his pain level was "zero."

The court determined the police had an objectively reasonable basis to believe defendant was in Robinson's apartment when they arrested him on October 24, 2008, based upon the information that was generated from the communications data warrant and found on the Internet. The court further found Robinson gave the police consent to enter the apartment and that the police were justified in confiscating the guns hidden in the mattress because they were within defendant's reach at the time of his arrest; therefore, the guns were obtained incident to a lawful arrest.

The court also found that the credible evidence supported a conclusion that defendant knowingly, voluntarily, and intelligently waived his Miranda rights before giving his statement to the police. The court determined defendant did not complain of any physical distress from his gunshot wound before he waived his Miranda rights or during the interview until the questioning was virtually over.6 Shortly thereafter, defendant was taken to the hospital, where he was treated and released without being given a prescription for pain medication. The court concluded that, at worst, he was experiencing some mild discomfort toward the end of the interview when he first complained of pain.

The court also found that the police did not threaten or coerce defendant into giving his statement; that he was not under the influence of any substance when he gave his statement; and that he was not interviewed before he was apprised of his Miranda rights.

B

In reviewing a motion to suppress evidence, an appellate court "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, 192 N.J. 224, 243 (2007) (citations omitted); see also State v. Locurto, 157 N.J. 463, 474 (1999). An appellate panel "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." State v. Johnson, 42 N.J. 146, 161 (1964). However, an appellate court need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990).

"A basic principle of Fourth Amendment law is that 'searches and seizures inside a home without a warrant are presumptively unreasonable.'" State v. Henry, 133 N.J. 104, 110 (quoting Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980)), cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993). "[A]n arrest warrant generally furnishes no authority to the police to intrude on the privacy of a home or to engage in a search therein." State v. Miller, 342 N.J. Super. 474, 490 (App. Div. 2001). However, the police may search for the subject of an arrest warrant in the home of a third party, and may do so without a search warrant, if the police have consent. State v. Brown, 205 N.J. 133, 145 (2011) (citations omitted).

A consent to search must be voluntary. State v. Chapman, 332 N.J. Super. 452, 466 (App. Div. 2000) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct 2041, 2045, 36 L. Ed. 2d 854, 860 (1973)). Further, "under the New Jersey Constitution, a consent to search is valid only if the person giving consent has knowledge of his or her right to refuse." Ibid. (citing State v. Johnson, 68 N.J. 349, 353-54 (1975)). However, the police are not required to advise the person of his right to refuse, as long as the State can prove the person who gave consent had a choice in the matter. See Johnson, supra, 68 N.J. at 354. Further, a person need not explicitly state he is giving consent; a consent to a search may be express or implied. State v. Koedatich, 112 N.J. 225, 262-64 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).

In State v. Brown, 282 N.J. Super. 538, 548 (App. Div.), certif. denied, 143 N.J. 322 (1995), we found a consent to search valid where the person approving the search exhibited a willingness to cooperate with the police; there was no indication he would have declined consent had he been informed of the right to refuse; and, when asked by the police "if he would have a problem" with giving the police access to the property in question, he responded in the negative and allowed the police to enter the subject property.

It is well-established that the seizure of evidence incident to an arrest does not require a search warrant. State v. Pena-Flores, 198 N.J. 6, 18 (2009). "[T]he legal seizure of the arrestee automatically justifies the warrantless search of his person and the area within his immediate grasp." Id. at 19 (citing Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969)). "The purpose of such a search is (1) to protect the arresting officer[s] from any potential danger and (2) to prevent the destruction or concealment of evidence." State v. Dangerfield, 171 N.J. 446, 461 (2002). "[T]he ensuing search is valid even if there is no particular reason to believe that it will reveal evidence, contraband, or weapons." Pena-Flores, supra, 198 N.J. at 19.

Before conducting a custodial interrogation of a suspect, law enforcement officers are required to provide adequate Miranda warnings. "[A] valid waiver of both the right to remain silent and the right to counsel are 'prerequisites to the admissibility of any statement made by a defendant.'" State v. McCloskey, 90 N.J. 18, 29 (1982) (quoting Miranda v. Arizona, 384 U.S. 436, 476, 86 S. Ct. 1602, 1629, 16 L. Ed. 2d 694, 725 (1966)). A waiver of those rights is valid if it is made "voluntarily, knowingly and intelligently." Miranda, supra, 384 U.S. at 444, 479, 86 S. Ct. at 1612, 1630 16 L. Ed. 2d at 707, 726. The State must prove beyond a reasonable doubt that a defendant has waived Miranda rights. State v. Galloway, 133 N.J. 631, 654 (1993). Determining whether the State has met that burden requires a court to assess "the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation." Ibid.

With respect to his claim the trial court erred by not suppressing the handguns, defendant's principal argument on appeal is that Robinson did not give the police consent to enter the apartment and, therefore, any evidence obtained after their entry into the apartment should have been suppressed. He further argues that he did not waive his Miranda rights or give a statement to the police knowingly, voluntarily, and intelligently because, when he was taken to the police station after his arrest, he was still suffering from and distracted by the gunshot wound he had sustained. In addition, he claims he was interrogated before he was apprised of his Miranda rights and, during the interrogation, the police threatened to prosecute his family.

Having reviewed the record, we find the trial court's factual findings supported by record. We are obligated to defer to those factual findings, see, Elders, supra, 192 N.J. at 243, and thus find there is no merit to defendant's arguments, which are largely based upon evidence the trial court rejected as not credible. We affirm the denial of defendant's motions to suppress the guns and his statement to the police substantially for the reasons stated in the comprehensive oral opinions rendered by Judge Martin G. Cronin on October 4, 2011 and October 12, 2011. We add only the following comment.

When the police appeared at Robinson's door on October 25, 2008, the police did not explicitly ask him if they could enter the apartment or pose a similar question that would have provided Robinson with the opportunity to voice an objection to their entry, assuming he had an objection. The police never got that far. When the police asked where defendant was in the apartment, Robinson responded by saying he was in a back bedroom and, without being prompted or requested by the police, took the initiative to not only let the police in but also to take them to the room where defendant was located. His conduct suggested he wanted to cooperate, an impression the police formed as well. There is no evidence that had he been informed of his right to refuse the police entry, he would have exercised that right. See generally Brown, supra, 282 N.J. Super. at 548. The record supports the conclusion Robinson voluntarily consented to letting the police enter the apartment.

III

During the evening of October 24, 2008, Edward Ricks, the victim who survived his gunshot wounds, gave a statement to the police that implicated defendant. Specifically, Ricks stated that he was standing on a street corner in Newark during the afternoon of October 24, 2008, when a white Infinity pulled up and two men jumped out. The driver remained behind the wheel. Ricks ran when he noticed that one of the men who got out of the car had a gun. As Ricks ran away he was shot in the arm.

Ricks stated he recognized the driver and believed his name was Scott. Ricks said that he and the driver did not see "eye to eye on things on the street." Ricks is a member of the Brim set, and believed the driver assumed Ricks had something to do with why he had been shot days before. Ricks also told the police he recognized defendant on a "wanted poster" he saw at the police station. Finally, Ricks was presented with a photo array and picked out a picture of the man he claimed had been the driver of the white Infinity. The picture was that of defendant.

During the trial the State intended to call Ricks as a witness, but before he was to testify Ricks informed the prosecutor that he would not testify against defendant. In light of Ricks's unwillingness to testify, the court conducted a hearing in accordance with State v. Gross, 216 N.J. Super. 98, 110 (App. Div. 1987), aff'd, 121 N.J. 1 (1990); accord State v. Brown, 138 N.J. 481, 539 (1994), to determine if Ricks's statement to the police was sufficiently reliable to be admitted as substantive evidence. During the hearing Ricks admitted he told the police that he had been shot in the arm on October 24, 2008, by a passenger that had been in a white Infinity. He also admitted he told the police the driver of the car was defendant, but asserted he only imparted this latter statement because he wanted to go home. He attributed his inability to remember anything else he told to the police to being under the influence of morphine at the time he gave his statement.

Detective Steve Roberts, who took Ricks's statement, testified at the Gross hearing that Ricks did not appear to be under the influence of any substance when he gave his statement. Detective Tony Brown, who showed Ricks the photo array, testified that Ricks selected defendant's photo from the array. After analyzing each of the fifteen factors in Gross,7 the trial court found Ricks's statement to the police, which was audio-recorded, and his photo identification of defendant sufficiently reliable to be admitted as substantive evidence.

Specifically, the court found that Ricks: was a victim of a crime; gave the statement to law enforcement at the police station; was not in custody or a target of a criminal investigation; was not in any pain or under the influence of any pain medication significant enough to interfere with his ability to reason or communicate; had no motive to fabricate, although Ricks's motive to feign a lack of recollection at trial was attributable to a concern about retaliation; and had not been pressured or coerced into making the statement. Finally, the court found that his statement was neither inherently reliable nor unreliable but that there were corroborating factors, specifically, the shooting, the location of the shooting, and the fact the perpetrators had been in a white Infinity.8

Thereafter, Ricks gave testimony at trial that was inconsistent with his prior statement. He also claimed his prior statement was false. The prior statement was then admitted as substantive evidence, although certain portions were redacted. Defendant argues his federal and State constitutional rights to confrontation were violated when the prior statement was admitted, arguing that the evidence admitted at the Gross hearing did not support a finding the prior statement was sufficiently reliable to be admitted as substantive evidence at trial. We disagree.

If the party calling a witness seeks to admit a prior inconsistent statement as substantive evidence, the court must conduct a hearing and determine whether the statement is admissible under N.J.R.E. 803(a)(1). Gross, supra, 216 N.J. Super. at 110; accord Brown, supra, 138 N.J. at 539. In determining whether a prior statement was given "in circumstances establishing its reliability," N.J.R.E. 803(a)(1)(A), the court is to consider the fifteen factors enumerated in Gross, supra, 216 N.J. Super. at 109-10.

We review the evidentiary rulings of the trial court under the abuse of discretion standard. State v. Harris, 209 N.J. 431, 439 (2012); State v. Merritt, 247 N.J. Super. 425, 434 (App. Div.) (applying abuse of discretion standard to admission of prior inconsistent statements), certif. denied, 126 N.J. 336, (1991). We also defer to the factual findings of the trial judge made after an evidentiary hearing, if those findings are supported by sufficient credible evidence in the record. State v. Robinson, 200 N.J. 1, 15 (2009). Our review of the record fails to provide us with any reason to disturb Judge Cronin's factual findings, analyses of the Gross factors, or conclusion that Ricks's statement was admissible as substantive evidence.

IV

Before trial, defendant requested a ruling that all references to gangs be redacted from the statement he gave to the police on the ground that such references were more prejudicial than probative.

The court considered N.J.R.E. 404(b) and each of the four factors9 in State v. Cofield, 127 N.J. 328, 338 (1992), and concluded that the proposed evidence was not more prejudicial than probative. The court found defendant's statement established his gang ties and indicated a motive for the subject crimes; specifically, the crimes were committed in retaliation for actions recently taken by another gang or set.

In general, the admission of evidence of other crimes or wrongs is generally left to the discretion of the trial court because of its intimate knowledge of the case. State v. Covell, 157 N.J. 554, 564 (1999). The decision of the trial court isthus entitled to deference and is reviewed under an abuse of discretion standard. Ibid. N.J.R.E. 404(b) provides that

[E]vidence of other crimes, wrongs or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

Gang membership is considered to be evidence of other crimes or wrongs within the scope of N.J.R.E. 404(b). State v. Goodman, 415 N.J. Super. 210, 227-28 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). The trial court's analysis under Cofield should only be disturbed if there is "'a clear error of judgment.'" State v. Marrero, 148 N.J. 469, 483-84 (1997) (quoting State v. DiFrisco, 137 N.J. 434, 496 (1994)). We find neither a clear error in judgment in the trial court's analysis of the Cofield factors nor an abuse of discretion in admitting evidence of defendant's gang affiliation, which the court found probative and not outweighed by any prejudice to defendant.

V

Finally, we reject defendant's contention that the prosecutor made two comments in her summation that deprived him of a fair trial. We have considered the remarks in question, neither one of which was objected to by defense counsel although, immediately following one of the remarks, the court interrupted the prosecutor and admonished that her argument was to be limited to the evidence. After reviewing the record, we conclude that the remarks could not have "'substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" State v. Smith, 167 N.J. 158, 181-82 (2001) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001)).

After carefully considering the record and the briefs, we conclude defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Brown's alias is "Naz."

2 Defendant was jointly indicted with co-defendant Brown, but defendant was not charged with counts one through three of the indictment. Defendant and Brown were tried separately. Before defendant's trial, the counts in the indictment were renumbered one through seventeen to reflect only those charges against him.

3 Myspace.com is a social networking website.

4

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

5 A set is a faction of a gang.

6 The trial court reviewed the video-recording of defendant's statement during the suppression hearing.

7 These factors are

(1) the declarant's connection to and interest in the matter reported in the out-of-court statement; (2) the person or persons to whom the statement was given; (3) the place and occasion for giving the statement; (4) whether the declarant was then in custody or otherwise the target of investigation; (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons; (7) whether the declarant incriminated himself or sought to exculpate himself by his statement; (8) the extent to which the writing is in the declarant's hand; (9) the presence or absence, and the nature of, any interrogation; (10) whether the offered sound recording or writing contains the entirety, or only a portion or a summary, of the communication; (11) the presence or absence of any motive to fabricate; (12) the presence or absence of any express or implicit pressures, inducements or coercion for the making of the statement; (13) whether the anticipated use of the statement was apparent or made known to the declarant; (14) the inherent believability or lack of believability of the statement; and (15) the presence or absence of corroborating evidence.

[Gross, supra, 216 N.J. Super. at 109-110.]

8 The court found that some of the fifteen factors were not applicable to the case.

9 These factors are that the evidence of the other crime or wrong: (1) must be admissible as relevant to a material issue; (2) must be similar in kind and reasonably close in time to the offense charged; (3) must be clear and convincing; and (4) the probative value of the evidence must not be outweighed by its apparent prejudice.