STATE OF NEW JERSEY v. RAHJIV SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1485-05T41485-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHJIV SMITH,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 10, 2007 - Decided

Before Judges Lisa, Lihotz and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 04-02-0153.

Yvonne Smith Segars, Public Defender, attorney for defendant (Alison Perrone, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lora B. Glick, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Rahjiv Smith, was charged in a two count indictment with (1) first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3a(1)(2), and (2) second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. After conducting evidentiary hearings, Judge Mulvihill denied defendant's pretrial motions to suppress evidence of his statement to the police and to suppress physical evidence (the handgun) seized by the police after a warrantless search. The case went to trial, and the jury found defendant guilty of both counts. After merging count two with count one, the judge imposed a sentence of fifty years imprisonment, subject to an 85% parole disqualifier and five years parole supervision upon release, as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also ordered the payment of restitution and imposed appropriate mandatory monetary sanctions.

On appeal, defendant argues:

POINT ONE

THE DEFENDANT'S CUSTODIAL STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE THE STATE FAILED TO PROVE THAT DEFENDANT WAS COMPETENT TO WAIVE HIS MIRANDA RIGHTS.

POINT TWO

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE GUN RECOVERED FROM THE HOME OF DEFENDANT'S GRANDFATHER.

POINT THREE

THE MEDICAL EXAMINER'S TESTIMONY THAT THE CAUSE OF DEATH WAS "HOMICIDE" EXCEEDED THE SCOPE OF PERMISSIBLE EXPERT TESTIMONY AND IMPROPERLY ADDRESSED THE ULTIMATE ISSUE BEFORE THE JURY, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL AND REQUIRING THE REVERSAL OF HIS CONVICTIONS. (Not Raised Below).

POINT FOUR

A FAR GREATER JUSTIFICATION FOR A PARTICULAR MURDER SENTENCE MUST BE GIVEN THAN WAS GIVEN HERE, WHEN THAT SENTENCE, UNDER THE NO EARLY RELEASE ACT (NERA), COULD POSSIBLY INVOLVE SUCH WIDELY VARYING AMOUNTS OF PAROLE INELIGIBILITY; TO REQUIRE LESS THWARTS THE GOALS OF THE CRIMINAL CODE WITH REGARD TO SENTENCING.

We reject these arguments and affirm.

At about 2:00 a.m. on December 17, 2003 in New Brunswick, defendant shot and killed Troy Brown. At trial, defendant did not dispute that he fired the fatal shot. His counsel argued that defendant's conduct was reckless and manifested extreme indifference to human life, and thus defendant was guilty of aggravated manslaughter, see N.J.S.A. 2C:11-4a(1), but not murder. These are the relevant facts as gleaned from the record of the evidentiary hearings on the pretrial motions and the trial.

On the morning of December 16, 2003, defendant was in the presence of his friend, Jose Nunez. Defendant told Nunez he believed Brown was planning to rob him or Nunez. After parting company, defendant and Nunez, together with other individuals, met again at defendant's home on Remsen Avenue that evening. Brown joined the group at about 8:00 p.m. Brown and defendant had an altercation, during which Brown placed his fingers against defendant's face and pushed him, stating, "You're a bitch." The two engaged in a scuffle, after which Brown left the group.

According to Nunez, defendant was embarrassed and upset by this incident. Defendant reiterated to Nunez his belief that Brown intended "to get him." Defendant then said to Nunez, "[T]hese people think I am a bitch. . . . I'm going to show them. I'm going to lay a murder game down."

Defendant and Nunez purchased and consumed some beer. They were at defendant's home and, at about 11:00 p.m., Brown arrived there. Defendant, Nunez, Brown, and others stood outside. They smoked Phencyclidine (PCP). After a time, defendant, Nunez and Brown were walking along the street in the vicinity of defendant's home. Nunez and Brown walked side-by-side in front of defendant. Nunez lit a cigarette, and Brown asked him for a light. As Nunez reached over to light Brown's cigarette, he heard a single gunshot and saw Brown fall forward onto the sidewalk. Brown's lifeless body lay flat in that position in a pool of blood. Defendant said, "we got to get this out of here," and picked up Brown's ankles, dragging his body face down by the legs into the backyard of a nearby residence.

Defendant and Nunez then went to defendant's home. Defendant immediately went to the kitchen and washed his hands, telling Nunez he did so to get the gun powder off his hands. The two men walked outside, and Nunez left the area. Nunez later rejoined defendant and two other men, who were smoking PCP. Eventually, the four men walked back to defendant's home and went to defendant's second floor bedroom.

Meanwhile, the police became aware of the shooting and found Brown's body. Their investigation led them to defendant's home. Police officers entered the home and spoke to defendant and the others, informing them they were there in conjunction with the killing of Brown. At the request of the police, the four individuals agreed to be transported to police headquarters to continue the investigation.

Detective Pamela Knighton, of the New Brunswick Police Department Major Crimes Division, was called in from her home. She arrived at the crime scene shortly before 3:00 a.m. She then proceeded to defendant's home. Defendant and the others had already been removed by the time she arrived. Knighton was greeted by defendant's grandfather, Marion Smith, who owned the home, in which he and defendant lived. Knighton advised Smith of the nature of the investigation and informed him that the police believed his grandson had knowledge of or was involved in the killing of Brown. She asked Smith if he would consent to a search of the home and advised him of his right to refuse to consent. Smith gave a verbal consent to the search. Knighton also asked if Smith would be willing to come to the police station to give a statement about his knowledge of the events that evening. He agreed to do so. Police officers secured the home and Smith was transported to headquarters, but no search was conducted at that time.

Smith gave a statement to the police. He advised that shortly after hearing a single gunshot, defendant entered the home and asked him whether he had called the police. After giving a statement, Smith was transported back to his home, which continued to be secured by police officers.

While at police headquarters, Knighton again asked Smith for his consent to search the home and again advised him of his right to refuse and of his right to be present during the search. Smith said he understood, and he gave his consent. He signed a consent to search form, signifying his consent and acknowledging that he was advised of his right to refuse.

Nunez gave a statement to the police. He described his interactions with defendant leading up to the shooting in the manner we have set forth. He told the police that he believed defendant secreted the gun in his bedroom, although he denied seeing the gun. Based upon that information, which was received from Nunez at about 3:00 p.m., the police applied for and obtained a search warrant for defendant's bedroom.

At about 4:30 p.m., Knighton and other officers went to defendant's home. Knighton again spoke to Smith. He reasserted his consent to the search. A search of the entire home was conducted. No evidence was found in defendant's bedroom, but a loaded .380 caliber handgun was found in the closet of a spare bedroom on the second floor. Unrefuted ballistics evidence established that the gun seized was the gun from which the bullet that killed Brown was fired.

Knighton's initial interaction with defendant occurred between 9:00 and 11:00 a.m. on December 17, 2003. She did not attempt to interview defendant at that time. At about 12:45 p.m., after obtaining some information from Nunez, Knighton again interacted with defendant. This time, she administered Miranda warnings to defendant. Defendant signed a Miranda form, acknowledging that his rights were explained to him. He declined to speak to Knighton. She immediately terminated the discussion and left the room. Later in the afternoon, defendant informed police officers that he wished to discuss the matter. When Knighton returned to headquarters after the search, resulting in the seizure of the gun, she was informed of this and, at about 6:00 p.m., met with defendant. She again advised him of his Miranda rights. By that time, a complaint had been issued and defendant was under arrest for Brown's murder. Nevertheless, defendant was not handcuffed or otherwise restrained, and during the hours he had been detained, he was given food and beverages, the use of toilet facilities, and was otherwise treated in a non-abusive manner.

Knighton conducted an informal discussion with defendant for a time, and at 6:35 p.m. she again issued Miranda warnings, after which defendant signed another Miranda card, this time agreeing to give a statement. Defendant then gave a tape recorded statement. He admitted killing Brown. He apparently said that Nunez originally had possession of the gun, which Nunez gave to defendant, and defendant put it in his pocket. Then, as they were walking, Brown and Nunez got into an argument, Nunez told defendant to shoot, and he did.

According to the medical examiner, Brown was shot at point blank range. She concluded that the muzzle of the gun was in contact with the hooded sweatshirt Brown was wearing when the gun was fired. She further testified that the bullet moved in a straight line from the back of Brown's head to the front and this could not likely have occurred during a physical struggle. The medical examiner concluded that the cause of death was a gunshot wound penetrating the head and brain and the manner of death was homicide.

We first address defendant's argument that the trial judge erred in admitting his statement to the police. In moving to suppress the statement, defendant argued that, although his Miranda rights were explained to him and he waived them, he was under the influence of marijuana and PCP, thus defeating the voluntariness of his waiver. At the Miranda hearing, the judge considered Knighton's testimony and that of experts called by the defense and State. The judge also listened to the taped statement.

According to Knighton, defendant was calm and cooperative throughout her interactions with him on December 17, 2003. She said defendant was very polite and answered all questions without hesitation in a responsive and coherent manner. Nothing in defendant's conduct gave an indication that he lacked understanding or was anything other than coherent. Defendant exhibited no slurred speech, signs of disorientation, or other indicia of lack of coherence and understanding. Based upon his hearing of the audio tape, the judge found that Knighton's description of defendant's manner of speaking and responding to questions was corroborated.

The defense presented the testimony of Dr. James Boudwin as an expert on the effects of PCP and marijuana. A urine sample taken from defendant at Boudwin's direction on December 18, 2003 at 7:10 p.m. revealed the presence at that time of fifty-five nanograms of marijuana per milliliter and 914 nanograms of PCP per milliliter, which Boudwin considered an indication of a medium and declining level of PCP in defendant's body. Boudwin explained that PCP is a psychoactive drug that affects the brain in low doses, causes euphoria, talkativeness, confusion, aggression and violence. Similarly, marijuana causes euphoria, dulling of the senses and causing poor judgment and coordination. He further said that impairment by these drugs is not necessarily physically observable. Boudwin said that PCP's half-life is eleven to eighty-nine hours. He concluded that defendant was under the influence of PCP when he waived his rights and gave his statement at 6:35 p.m. on December 17, 2003. Thus, according to Boudwin, it would have been difficult for defendant to make a reasonable judgment at that time in waiving his Miranda rights.

Boudwin acknowledged, however, that he did not interview defendant and did not review records dealing with defendant's prior narcotics use. Further, he did not listen to defendant's audio taped statement, although he read the transcript. He also acknowledged that defendant's level and degree of impairment at the time of his statement could not have been measured without a clinical evaluation, which he did not perform.

The State produced Dr. Robert J. Pandina, an expert on the physiological and behavioral effects of narcotics on the human mind and body. According to Pandina, an individual would experience the most significant effects from PCP about forty-five minutes after smoking it, with the effects diminishing rapidly after that time. He explained that although PCP may remain in the urine at high levels for up to ten days, it would have minimal to no effect on the individual after the initial period. He stated it was not possible to gauge impairment from the PCP level found in the urine. Pandina listened to the tape of defendant's statement and observed that he did not sound impaired. Pandina opined that the effects of PCP and marijuana would have dissipated by the time defendant gave his statement.

Judge Mulvihill credited Knighton's testimony. He also found Pandina to possess greater knowledge and expertise on the subject than Boudwin. For that reason, and because Pandina listened to the tape and reviewed additional information, and based upon the judge's observation of the two experts' testimony, he attributed much greater weight to Pandina's opinions than Boudwin's. The judge also found it very significant that when Miranda rights were first administered to defendant about six hours before he gave his tape recorded statement, defendant refused to speak to the police. That was strong evidence that defendant understood his right to remain silent and, indeed, exercised it. The judge therefore concluded beyond a reasonable doubt that defendant was not under the influence of PCP, marijuana or alcohol and his ability to understand the Miranda warnings and waive his rights was knowing and voluntary.

Although defendant's motion to suppress his statement was apparently limited to his alleged inability to understand and voluntarily waive his Miranda rights, Judge Mulvihill also made findings regarding the voluntariness of the statement. He found that no coercion was applied and no threats were made, that defendant was treated fairly, kept in a cell and not handcuffed, and was provided water, food and toilet facilities. He observed that when defendant initially declined to speak to the police after being administered his Miranda warnings, the police scrupulously honored defendant's rights and terminated discussion with him. Considering the totality of the circumstances, Judge Mulvihill, found beyond a reasonable doubt that defendant's will was not overborne and that his statement was voluntary.

To be admissible, a defendant's custodial statement must be the product of the voluntary, knowing and intelligent waiver of his or her constitutional right to remain silent. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707; State v. Knight, 183 N.J. 449, 461 (2005). The State must also prove beyond a reasonable doubt that a defendant's custodial statement was voluntary and was not made because the defendant's will was overborne. Knight, 183 N.J. at 462. In determining whether a statement was made voluntarily, courts must look at the totality of the circumstances, including the character of the defendant and the nature of the interrogation. State v. Galloway, 133 N.J. 631, 654 (1993).

We are satisfied from our review of the record of the hearing on defendant's motion to suppress his statement that Judge Mulvihill's factual findings are well supported by the evidence. See State v. Johnson 42 N.J. 146, 162 (1964). The mere fact that defendant was found to have concentrations of PCP and marijuana in his urine some twenty-five hours after giving his taped statement and at least forty-one hours after his last ingestion of those substances, does not establish that defendant was impaired at the time he waived his rights. Defendant's expert admitted that predictions of intoxication or impairment cannot be determined solely on the basis of measuring levels of PCP detected in the urine. And, the State's expert opined that the effects of PCP will typically last no more than four to six hours. As we have stated, the judge attributed much greater weight to Pandina's testimony than Boudwin's and, combined with his own hearing of the tape and his consideration of Knighton's credible testimony, the record contains more than ample evidence to support his conclusion that defendant understood his Miranda rights and knowingly, intelligently and voluntarily waived them.

Further, the record is devoid of any evidence that the police used coercive tactics or engaged in any abusive or threatening conduct toward defendant. All of the evidence is to the contrary, namely that defendant was treated in a very benign manner throughout the entire time of his detention. We have no occasion to disturb the judge's finding that defendant's will was not overborne and his statement was voluntarily made.

We next consider the denial of defendant's motion to suppress physical evidence, the gun, seized as the result of a warrantless search of defendant's home. Defendant based this motion on the contention that his eighty-one-year-old grandfather, Marion Smith, suffered from Alzheimer's induced dementia and therefore could not have voluntarily consented to the search.

At the suppression hearing, the defense presented the testimony of Dr. John Heath, an expert in the field of geriatric medicine. Heath performed a mental status examination of Smith on December 22, 2003 on behalf of the Middlesex County Board of Social Services Adult Protective Services Unit. Based upon his fifty-minute interview of Smith, Heath determined that Smith suffered from Alzheimer's disease, which causes loss of memory, insight and judgment. Heath found Smith to be "quite confused" not knowing that his wife was in a nursing home or that defendant was in jail. He concluded that Smith's cognitive impairment rendered him unable to provide for his own health and welfare. Heath conceded, however, that he could make no determination regarding Smith's ability to understand and respond to questions that were asked of him and that his evaluation dealt solely with whether Smith could respond to questions dealing with his own health and welfare.

The State produced no expert testimony on this issue, but relied upon Knighton's testimony. The judge deemed Knighton very credible and attributed great weight to her testimony that Smith appeared to understand her questions and statements and responded appropriately and sensibly to them. As we have set forth, Knighton discussed the consent issue with Smith at three separate times, explaining to him on each occasion his right to refuse to consent. Based upon her observations of his demeanor and the content and manner of his responses, he appeared to fully comprehend what he was doing. Knighton also explained that during the actual search, Smith recognized her and her position, was very cooperative, and understood the purpose of the search, stating that he did not believe there were any guns in the house.

The judge found that the moderate level of impairment described by Heath was not inconsistent with Knighton's lay observations of Smith. The judge was satisfied that Smith understood and responded appropriately to all questions posed to him. He further observed that Heath's evaluation of Smith occurred five days after Smith's consent. In that regard, the judge noted that because Smith's "grandson was no longer there to assist him and a month before that his wife was placed in a nursing home[,] . . . there could have been an emotional situation at that particular time. But it's a moderate level of cognitive impairment. Its entirely consistent with the testimony of Detective Knighton."

The judge thus found by clear and positive evidence that Smith gave a knowing and intelligent waiver of his right to refuse to consent to the search of his home and that he affirmatively consented to the search.

The issue before us is whether the trial judge properly denied the motion to suppress the gun recovered from defendant's grandfather's home. Although a search warrant was issued, its scope was limited to defendant's bedroom. But the gun was not found there. Therefore, the admissibility in evidence of the gun rests upon the validity of the warrantless consent search of the remainder of the home.

A search conducted pursuant to consent is a well-established exception to the warrant requirement. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973). To determine whether a consent to search is valid, the State must prove that the consent was freely and voluntarily given. Id. at 248-49, 93 S. Ct. at 2058-59, 36 L. Ed. 2d at 875; State v. Johnson, 68 N.J. 349, 353-54 (1975). The voluntariness must be established by clear and positive evidence, State v. King, 44 N.J. 346, 352 (1965), and the State must establish that the consenting party knew that he or she had choice in the matter. Johnson, supra, 68 N.J. at 354.

The motion record well supports Judge Mulvihill's finding that Smith understood his right to refuse to consent and that he knowingly and voluntarily consented to the search of his home. See Johnson, supra, 42 N.J. at 162. Knighton's testimony that Smith was lucid and coherent throughout her interactions with him provided an ample basis for the judge's finding, and that basis was not negated by Heath's expert testimony, which the judge reconciled with the testimony given by Knighton. Thus, we find no error in the judge's conclusion that the gun was admissible in evidence as the product of a valid consent search.

The judge amplified his decision by noting that even if there were not a valid consent, the search would have been upheld under the inevitable discovery doctrine. See State v. Sugar (III), 108 N.J. 151, 156 (1987); State v. Sugar (II), 100 N.J. 187, 235 (1985). The judge reasoned that had Smith refused consent, the police had more than sufficient probable cause to request a warrant for the entire home, rather than only defendant's bedroom, that they would have applied for such a warrant, and it would have been issued. Because we have decided the issue based upon our conclusion that there was a valid consent search, we will not address the inevitable discovery doctrine.

Defendant's argument that he was deprived of a fair trial because the medical examiner testified that the cause of death was "homicide" requires little discussion. Contrary to defendant's argument, the medical examiner's use of that term did not violate the proscription of State v. Jamerson, 153 N.J. 318 (1998). We are unpersuaded by defendant's argument that the term "homicide" is a legal conclusion that defendant murdered Brown. The term simply means the killing of one person by another, whether lawfully or unlawfully. See Black's Law Dictionary 739 (7th ed. 1999). There is no "crime" of "homicide," and at common law, unlawful homicide embraces murder and manslaughter. Ibid. The New Jersey Criminal Code defines "criminal homicide" as murder, manslaughter or death by auto, and provides that a person is guilty of criminal homicide who purposely, knowingly, recklessly or, under other specified circumstances pertaining to death by auto or vessel, "causes the death of another human being." N.J.S.A. 2C:11-2.

Indeed, in his opening to the jury, defense counsel began by acknowledging that there was no question that defendant killed Brown, but suggested that "the evidence will show that this was not a purposeful, knowing, execution style murder as the prosecutor would indicate." He then explained that "there may be additional charges other than the ones that we see right here [in the indictment]. It may be different degrees of the homicide sections." (Emphasis added).

With the concurrence of both parties, the judge instructed the jury on the lesser-included offense of aggravated manslaughter. The prosecutor never argued or suggested to the jury that the medical examiner's use of the term "homicide" constituted an opinion that the killing of Brown by defendant was murder as opposed to aggravated manslaughter. Nor did anything in the judge's instructions or on the verdict sheet carry such an implication.

Finally, defense counsel made no objection to the use of the term, as a result of which our review of the issue is guided by the plain error standard, under which we will reverse only if we find that there was error clearly capable of producing an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971). Had defendant objected and requested a clarifying instruction, the judge could have considered explaining to the jury that "homicide" simply means a killing of one person by another and encompasses the crimes of murder (as urged by the State) and aggravated manslaughter (as urged by defendant). There is no reason to speculate that the jury thought otherwise, and we find no error, let alone plain error, in the use of the term "homicide" in this trial.

Finally, we consider defendant's argument regarding his sentence. This issue, too, requires little discussion. Defendant argues that the judge's statement of reasons for a base term of fifty years, considering the "real time" that must be served on a NERA sentence, was inadequate. We disagree.

The judge found the applicability of three aggravating factors, namely the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3), the extent and seriousness of defendant's prior criminal record, N.J.S.A. 2C:44-1a(6), and the need for deterrence, N.J.S.A. 2C:44-1a(9). The judge found no mitigating factors.

Murder is punishable by a term of thirty years imprisonment without parole or by a specific term of years between thirty years and life imprisonment of which at least thirty years must be served without parole eligibility. N.J.S.A. 2C:11-3b(1). Murder is subject to NERA, N.J.S.A. 2C:43-7.2d(1), which requires the service without parole eligibility of 85% of the base term sentence, N.J.S.A. 2C:43-7.2a. Where some provision of law other than NERA provides for a parole disqualifier, as in the case of murder under N.J.S.A. 2C:11-3b(1), the minimum period of parole ineligibility shall be either the period so prescribed or the 85% required by NERA, whichever is greater. N.J.S.A. 2C:43-7.2b. And, for purposes of NERA, "a sentence of life imprisonment shall be deemed to be seventy-five years."

Applying these principles, a person convicted of murder must be sentenced to at least thirty years without parole eligibility, and the maximum sentence, life imprisonment, is deemed to be seventy-five years, requiring a NERA parole disqualifier of sixty-three and three-quarter years. In this case, based upon the preponderance of aggravating factors over non-existent mitigating factors, Judge Mulvihill imposed an above-minimum sentence of fifty years. With the NERA parole disqualifier, defendant must serve a minimum of forty-two and one-half years before being eligible for parole. Considering this real-time consequence in perspective, it falls in the lower end of the minimum real-time range for murder of thirty to sixty-three and three-quarter years.

We are satisfied from our review of the record that Judge Mulvihill's findings regarding aggravating and mitigating factors were supported by competent and credible evidence in the record, that he did not apply incorrectly the sentencing guidelines enunciated in the Code of Criminal Justice, that his statement of reasons for the imposition of sentence were adequately articulated, and that the sentence imposed was not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Dunbar, 108 N.J. 80, 97 (1987); State v. Roth, 95 N.J. 334, 363-65 (1984).

 
Affirmed.

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

Although the taped statement was played at the Miranda hearing and at trial, we have not been furnished with the tape or a transcript of the statement. We set forth, in somewhat general terms, defendant's version of the shooting based upon comments made on the record by counsel describing his version. Defendant did not testify at trial.

(continued)

(continued)

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A-1485-05T4

September 27, 2007