STATE OF NEW JERSEY v. ERNEST OLIVER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6477-05T46477-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERNEST OLIVER,

Defendant-Appellant.

________________________________________

 

Submitted April 1, 2009 - Decided

Before Judges Rodr guez, Payne and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. 04-10-1269.

Yvonne Smith Segars, Public Defender, attorney for appellant (Shara D. Saget, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Ernest Oliver appeals from his convictions for first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. After merging the convictions for robbery and possession of a weapon for an unlawful purpose, the judge imposed a sixteen-year term with a NERA parole disqualifier. A concurrent four-year term was imposed for the possessory conviction. We affirm.

On April 20, 2004, around 1:00 a.m., LaRenda Parrish and Youdelyn Previlon were working at a Quick-Chek in Union when two masked gunmen entered the store and demanded money. Despite the fact that the gunmen wore ski masks, Parrish was able to determine that the gunmen were African-American. The gunman who initially approached Parrish was described as a male about five-feet-five-inches tall, between 140 and 150 pounds, with long dreadlocks, light eyes and wearing a black hooded sweatshirt and jean shorts. The second gunman was described as between five-feet-four and five-feet-five-inches tall and thinner than the other gunman. He was described as wearing gloves, a short sleeve shirt, jean shorts and Timberland boots.

Parrish was standing near the front door when one of the gunmen approached her, demanding that she give him the money in the register. The other gunman approached Previlon, who was standing near the cash register. He jumped over the counter, discharging his gun into the ceiling. Previlon became too frightened to open the cash register so the gunman next to Parrish pointed the gun at her ribs and forced her to assist in doing so. Both gunmen threatened to kill the store employees, with one of the gunmen telling Parrish, "I don't care about dying. I'll kill you, too."

During the robbery, Rodrigo Erazo, a regular customer, entered the store. The gunman next to Parrish ordered Erazo to stop and threatened, at gunpoint, to kill him. At the gunman's command, Erazo moved towards the counter with his hands raised.

Once the register was opened, the gunman behind the counter with Previlon took the money out of the drawer, stole some cigars and cigarettes and then jumped back over the counter. The other gunman brought Parrish into the back room and forced her to turn off the video surveillance equipment. Upon returning from the back room, the gunman stole some food.

Before leaving the store, the gunmen told Parrish that if she moved they would kill her. Parrish complied for a few minutes before calling the police from her cell phone.

Sergeant Harry Capko and Officer Odete Mirao of the Union Police Department responded. During the investigation, Sergeant Capko found a .380 caliber spent shell casing on the floor behind the cashier's counter. Detective Michael O'Brien determined that the bullet fired during the robbery passed through the roof and was unrecoverable.

On April 26, 2004, six days after the Quick-Chek robbery, a Foot Locker store in Union was robbed by armed gunmen in a similar manner. Officer Frank Marano responded to the Foot Locker and received a report implicating four African-American males wearing ski masks and gloves. The following day, Officer Pietro DiGena took a report from the Foot Locker manager about the robbery. The manager stated that the store was robbed by armed men and that one of the gunmen was wearing an olive green military jacket. Another gunman was wearing a black hooded sweatshirt. During the robbery, a customer tried to enter the store, but was turned away. The customer went back to his car and noticed that a vehicle was partially blocking the exit. The customer later described the car to the store manager as a 1995 silver Mitsubishi Galant with gray tinted windows, a damaged front fender and a broken right front headlight. The store manager did not indicate that the robbers were seen to have used that car to arrive at or to flee from the store.

On April 28, 2004, Officers DiGena and Barry Cohen were on patrol in a marked police car when they spotted a vehicle with a non-functioning right front headlight traveling toward them. Based on this observation, the officers followed the vehicle, a silver Mitsubishi Galant with gray tinted windows. The officers stopped the Mitsubishi and requested backup assistance from headquarters. Over the patrol car loudspeaker, Officer Cohen ordered the occupants to roll down the windows and put their hands in sight.

There were four occupants inside the Mitsubishi. Jonathan Black was identified as the driver, Kevin Drake as the front seat passenger, defendant as seated in the rear seat on the driver's side and Tariq McLamb, also known as Tariq McCullen, was in the other rear seat. The officers were further able to observe that the front seat occupants appeared to be passing something to the occupants in the rear seats.

The officers approached the Mitsubishi. They saw that Black, the driver, was wearing a black hooded sweatshirt and that Drake was wearing a green military jacket. From outside the Mitsubishi, Officers DiGena and Marano noticed masks and gloves on the floor of the vehicle. The officers then drew their weapons and ordered the occupants to keep their hands in sight. The officers asked the occupants what they had been passing around. The occupants denied making any such motions. The occupants were then individually removed from the vehicle and patted down for weapons. No weapons were found on the occupants.

Officer Marano looked inside the vehicle, and he noticed that the rear seat cushion was popped out of place. Marano pulled on the seat, exposing a hole leading to the trunk where he saw a loaded .38 caliber Colt automatic handgun loaded and cocked. Because of the risk that the handgun would discharge if pulled through the hole, Marano opened the trunk to retrieve the gun safely. In doing so, he moved a large speaker box that was blocking his access to the gun. When moving the speaker, the officer observed a loaded .45 caliber handgun behind the driver's side rear seat. Marano retrieved both guns and removed the magazines. In addition, Marano recovered a six-inch knife that was in the driver's door pocket.

The four occupants were taken into custody. During the booking process, a Winchester .380 caliber round was found in the right front pocket of Drake's green military jacket.

While in custody in his cellblock, defendant indicated to the officer on duty that he wanted to speak with a detective. Defendant was brought to an interview room where he was read his Miranda warnings. After being given the Miranda waiver form, defendant was again read the Miranda warnings and signed it, indicating that he understood each of the Miranda rights.

Defendant then made a voluntary statement, implicating Black and Drake as the owners of the weapons and the gloves found in the car. He denied any knowledge of the Quick-Chek robbery. In response to Detective Fuentes's questions, defendant answered that he did not wear glasses, but that he needed glasses to read.

The next day defendant again asked to speak with a detective. Detective Christopher Baird met defendant in an interview room and advised defendant of his Miranda rights. Baird gave defendant a copy of the Miranda waiver form. Defendant appeared to be reading the form as Baird read it aloud. Defendant signed the rights' waiver form. In response to Baird's initial questions, defendant again answered that he did not wear glasses, but that he needed glasses to read.

Defendant admitted involvement in the Quick-Chek robbery. He stated that after robbing a Seven-Eleven store, he, Black, Drake and another unidentified male scoped out the Quick-Chek. Defendant went into the Quick-Chek, purchased four drinks and returned to the car, reporting to the others that there were people in the store. After a couple of minutes, defendant, who was driving the car, let Black and Drake out on a side street. Defendant parked the car at the first corner, as instructed. Minutes later, Black and Drake returned with money and a box of doughnuts. Upon entering the vehicle, Drake instructed defendant, "drive, drive, we got to get out." Drake then told defendant that when he was yelling at the woman in the store the gun went off unintentionally. Defendant proceeded to drive to the outskirts of Newark. He said that at some point he did not want to drive anymore, whereupon he traded places with Black. Black drove to the home of Rizzell Bennett, where the men divided up the money. Drake then drove everyone home except for Black, who stayed at Bennett's house.

Union Police Sergeant Michael Sanford, qualified as a ballistics expert, examined both the .45 caliber and .380 caliber guns that were recovered from the Mitsubishi. He found them both to be operable. Sanford compared a shell fired from the .380 caliber pistol and the .380 caliber shell casing found on the floor of the Quick-Chek. He determined, within a reasonable degree of scientific certainty, that both were fired from the same weapon.

Defendant testified at trial that on April 28, 2004, he was a passenger seated in the rear of a vehicle, directly behind the driver, and next to McLamb. Defendant identified Drake as the front seat passenger. Upon being pulled over by the police, defendant testified that he learned for the first time that Black and Drake were carrying guns. They passed the guns back to him shouting, "stash them in the seat." Defendant placed the .45 caliber gun that Black handed him into the area behind the rear seat. McLamb took the .380 caliber gun from Drake and also placed it behind the rear seat. Black and Drake then told defendant, "[d]on't say nothing about it," and "[j]ust act like everything is normal."

Defendant testified that, while in custody, he did not request to speak to a detective, but asked four or five times if he could call his mother. He was not allowed to use the telephone until he agreed to make a statement. On the first day of questioning, he was not read his Miranda rights until after he was questioned and given a statement to sign. Defendant claimed that the same thing happened on the second day, and that he was informed that he needed to make another statement because the co-defendants were trying to blame everything on him. Defendant claimed that he was not given an opportunity to review the statement prior to being compelled to sign it. Defendant denied that he had any involvement in the Quick-Chek robbery. He also denied that he made the statement to the police about participating in the robbery.

Defendant's pre-trial motion to suppress evidence was heard by Judge William L'E. Wertheimer. He denied the motion in a written opinion. The motion judge found that there was sufficient probable cause to search the vehicle. The judge made this determination:

[B]ased on the reports of the vehicle's potential link to an armed robbery, the masks and gloves on the floor of the vehicle, and the furtive movements coupled with the denial of such movements, that the police had a well grounded suspicion that a crime had been or was being committed.

In his opinion, the judge found:

[T]hat the officers had reason to believe that occupants of the vehicle may have possessed a deadly weapon. Additionally, the officers were involved in an ongoing investigation of events that occurred close in time. Despite the occupants exiting the car, the exigent circumstances remained because there was the potential that persons other than the occupants could access the car. The fact that the officers had a reasonable suspicion that there may have been a deadly weapon present in the car made it imperative that they secure the weapon for the public and their own safety.

Defendant moved for reconsideration. The motion was denied.

Defendant was tried alone. Judge Joseph P. Perfilio presided at the trial. He heard defendant's motion to suppress the post arrest statement to Detective Fuentes. The judge denied the motion. At the end of all evidence, defendant moved for a dismissal of all charges. The motion was denied. The judge instructed the jury that defendant was being charged as an accomplice to the robbery. Accordingly, the jury was instructed on the elements necessary for a finding of accomplice liability.

During deliberations, the jury requested an "'[e]xplanation of all [c]ounts.'" The trial judge then asked the jury for clarification. After a recess, the jury delivered a note to the judge, which read: "'Explain the four [c]ounts, without additional definition. Knowledge or lack of knowledge of a weapon bearing on the [c]ounts. Why is there a choice between [c]ount 1 and 1A.'" The judge explained the difference between finding the defendant guilty as an accomplice to armed robbery, as opposed to robbery. In the course of giving those instructions, the judge stated:

In this case, the State alleges that the defendant[']s accomplices were armed with a .380 caliber Colt, .45 caliber handgun. You must determine if this object qualifies as a deadly weapon and if the State has proven beyond a reasonable doubt that the defendant used it in the course of committing a robbery.

Defendant appeals contending:

THE [MOTION JUDGE] ERRED WHEN IT DENIED [DEFENDANT'S] MOTION TO SUPPRESS THE EVIDENCE, AS EXIGENT CIRCUMSTANCES DID NOT EXIST (Partially Raised Below).

We are not persuaded.

Government action constitutes a search only when it intrudes upon a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Both the federal and New Jersey constitutions protect against unreasonable searches and seizures by requiring the government to obtain a warrant prior to conducting the search. U.S. Const. amend. IV; N.J. Const. art. I, 7. "A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000).

One such exception is the so-called "automobile exception" based upon Carroll v. United States, 267 U.S. 132, 153, 45 S. Ct. 280, 285, 69 L. Ed. 543, 551 (1925), which held that a warrantless search of an automobile by the police based upon probable cause was valid because of the exigent circumstances arising from the vehicle's mobility. Ibid. The Court later expanded the rationale for warrantless searches of automobiles to a diminished expectation of privacy in motor vehicles. Cardwell v. Lewis, 417 U.S. 583, 590-91, 94 S. Ct. 2464, 2469-70, 41 L. Ed. 2d 325, 335 (1974). Therefore, pursuant to federal law, the automobile exception to the warrant requirement is not dependent upon a showing of exigent circumstances. Maryland v. Dyson, 527 U.S. 465, 466, 119 S. Ct. 2013, 2014, 144 L. Ed. 2d 442, 445 (1999).

Under New Jersey law, however, exigent circumstances are required for the police to conduct a warrantless search of an automobile. State v. Pena-Flores, 198 N.J. 6, 13-14 (2009); Cooke, supra, 163 N.J. at 670. Additionally, both federal and state law require a showing of probable cause. State v. Wilson, 354 N.J. Super. 548, 553 (App. Div. 2002), aff'd, 178 N.J. 7 (2003). "[T]he determination regarding those elements must be made on a case-by-case basis." State v. Dunlap, 185 N.J. 543, 549 (2006). "In general terms, [probable cause] 'means less than legal evidence necessary to convict though more than mere naked suspicion.'" State v. Sullivan, 169 N.J. 204, 210-11 (2001) (quoting State v. Mark, 46 N.J. 262, 271 (1966)). Moreover, probable cause exists if there is "a 'well grounded' suspicion that a crime has been or is being committed." State v. Waltz, 61 N.J. 83, 87 (1972). "Probable cause requires 'a practical, common-sense decision whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Demeter, 124 N.J. 374, 380-81 (1991) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)).

Here, defendant conceded that the initial stop of the vehicle and the removal of defendants from the vehicle were proper. The reasons stated by the motion judge supported the finding that the police had probable cause for the search. While the robbers of the Foot Locker were not directly connected with the vehicle blocking the exit, the description of that vehicle was strikingly similar to that of defendant's vehicle. The Mitsubishi, in which defendant was riding when arrested, was the same color, make and model as the one observed at the scene of the robbery. Additionally, unique and specific details, such as the gray tinted windows, damaged right front fender and broken right headlight, accurately described the car in which defendant was riding. Moreover, when stopped by the police, Black was wearing a black hooded sweatshirt and Drake a green military jacket, which matched the description of the clothing worn by the robbers. Such clothing may be commonly worn in defendant's community, however, a well-grounded suspicion by the police was justified considering the totality of the circumstances that evening. Gloves and ski masks are not common articles of clothing typically carried in the interior compartment of an automobile, particularly in late April. The fact that the armed robbers were described as wearing gloves and ski masks supports a finding of probable cause to search after the articles were observed in plain view on the car's floor.

Therefore, the motion judge was correct in finding that the police had probable cause to believe that defendant's vehicle was involved in the robbery of the Foot Locker, that the occupants were the perpetrators of the robbery and that they may have possessed the handguns used in that crime.

Next, defendant argues that exigent circumstances were lacking to justify the warrantless search of the automobile. Even with probable cause, a warrantless vehicle search without exigent circumstances is invalid. State v. Alston, 88 N.J. 211, 233-34 (1981). "Exigent circumstances may exist if the unanticipated circumstances that give rise to probable cause occur swiftly." Cooke, supra, 163 N.J. at 672. It is settled that, "[e]xigent circumstances do not dissipate simply because the particular occupants of the vehicle may have been removed from the car, arrested, or otherwise restricted in their freedom of movement." Alston, supra, 88 N.J. at 234. Furthermore, a "deadly weapon poses a special threat to both the public and police, and its presence is a significant factor in evaluating whether there are exigent circumstances which justify a warrantless search." State v. Wilson, 362 N.J. Super. 319, 333 (App. Div.), certif. denied, 178 N.J. 250 (2003).

Here, the motion judge found sufficient exigent circumstances to justify the automobile exception to the warrant requirement. In both Cooke, supra, 163 N.J. at 674-75 and State v. Nishina, 175 N.J. 502, 512 (2003), the Court found that there were exigent circumstances based upon the presence of a single police officer, making it impractical to guard the automobile while obtaining a search warrant.

Similarly, here, the police were on patrol when they spotted defendant's vehicle, which matched a description of the vehicle that was connected with the Foot Locker robbery. There were two police officers and four suspects. Moreover, the time of the stop was at night (12:23 a.m.), which this Court previously found to be a factor in finding exigency. State v. Baum, 393 N.J. Super. 275, 291 (App. Div. 2007), aff'd, 199 N.J. 407 (2009).

Therefore, the motion judge did not err in finding that exigent circumstances were present at the time of the search. With the finding of both probable cause and exigent circumstances, the search of the automobile without a warrant was justified and the weapons were validly seized.

Defendant also contends:

THE TRIAL COURT ERRED WHEN IT FAILED TO SUPPRESS [DEFENDANT'S] POST-ARREST STATEMENTS AS THEY WERE NOT VOLUNTARY BECAUSE HE CLEARLY STATED HE COULD NOT READ WITHOUT HIS EYEGLASSES. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, 1 (Partially Raised Below).

Defendant argues for the first time on appeal that his statement to the police was not voluntarily given because he could not read the waiver of Miranda rights form without his eyeglasses. Issues not raised at the trial level, including constitutional ones, will not ordinarily be considered on appeal. State v. Arthur, 184 N.J. 307, 327 (2005). Nevertheless, "an issue not raised below may be considered by the court if it meets the plain error standard or is otherwise of special significance to the litigant, to the public or to the achieving of substantial justice and the record is sufficiently complete to permit its adjudication." Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2009) (citing State v. Romero, 191 N.J. 59, 80 (2007)). See also R. 2:10-2.

Here, defendant's argument that the waiver of his Miranda rights was made unknowingly and involuntarily is not persuasive. Even if defendant could not read the waiver form without his glasses, the Miranda rights were read aloud to him during both interviews by Detectives Fuentes and Baird. Moreover, defendant signified his understanding of the rights by handwriting the word "yes" and his initials next to each right.

Therefore, the State met its burden of proving that the waiver of defendant's rights was knowingly and voluntarily given, and the trial court's denial of defendant's motion to suppress was proper.

Defendant also contends:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFERRED TO CO-DEFENDANTS BLACK AND DRAKE AS HIS "ACCOMPLICES" WHEN THE STATE'S CASE DID NOT INCLUDE THIS THEORY, DEPRIVING [DEFENDANT] OF A FAIR TRIAL. U.S. CONST. AMEND. V, XIV; N.J. CONST. ART. I, 10 (Not Raised Below).

Defendant challenges the lower court's instructions to the jury for the first time on appeal and thus his arguments will be reviewed under the plain error standard. R. 2:10-2.

The State's theory of the case was made clear throughout the trial: defendant was an accomplice to the gunmen, rather than a principal. In the court's charge to the jury, the judge read the instructions for robbery as well as accomplice liability. It was only in response to a jury question seeking clarification of the difference between first- and second-degree robbery that the judge referred to Black and Drake as defendant's accomplices, rather than the other way around. When viewed in its entirety, the jury charge was not ambiguous or misleading, and certainly not capable of producing an unjust result. Therefore, no reversible error was committed below.

Defendant also contends:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED [DEFENDANT'S] MOTION TO DISMISS THE INDICTMENT AS THE STATE FAILED TO PROVE THAT [DEFENDANT] WAS AN ACCOMPLICE TO THE ROBBERY.

A motion for acquittal should be granted if the evidence is insufficient to warrant a conviction. R. 3:18-1. Thus, "a court must determine 'whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.'" State v. Samuels, 189 N.J. 236, 244 (2007) (quoting State v. Reyes, 50 N.J. 454, 458-59 (1967)).

Here, that standard for granting an acquittal has not been met. The evidence presented at trial was sufficient to establish defendant's participation in an armed robbery. Defendant admitted that: he and his co-defendants "scoped out" the Quick-Chek; he drove the getaway car from the scene of the crime to the outskirts of Newark; he received a portion of the stolen money; and he tried to conceal the weapon behind the rear seat cushion when stopped by the police.

Defendant also contends:

THE VERDICT SHEET PROVIDED TO THE JURY WAS UNDULY PREJUDICIAL AS IT WEIGHED IN FAVOR OF THE STATE'S CASE AND WAS CONFUSING, DENYING [DEFENDANT] A FAIR TRIAL. U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. ART. I, 1, 9, 10.

Here, defendant objected to the special verdict sheet as being unfairly prejudicial and confusing. Defendant objected to the inclusion of lines to mark a separate finding of guilt on the first- and second-degree robbery charges against each of the three victims. Citing to State v. Gentry, 183 N.J. 30 (2005), the trial judge ruled that the verdict sheet was appropriate because otherwise:

[H]ow do you know it was unanimous if they say, for example, "We find the defendant guilty of robbery," and they don't say against whom and/or it may well be they didn't find it against Erazo or they didn't find against anybody, but one person.

In Gentry, the unanimity of the jury was compromised over a question of which of the victims was subjected to deadly force by the defendant. The Supreme Court held:

[H]ad [victim #1] not been present, the jury would have been unable to agree that force had been used against [victim #2] . . . had [victim #2] not been present, the jury would have been unable to agree that force had been used against [victim #1]. Thus, in either of those circumstances, there would have been no conviction for robbery.

[Id. at 32-33.]

Therefore, the verdict sheet appropriately asked the jury to consider the allegations as to each victim.

Defendant further argues that the verdict sheet was deficient because it failed to include language that would indicate defendant was charged as an accomplice. As the State points out, however, at trial, defendant insisted that the jury charge on accomplice liability was sufficient, and that his status should not be included on the verdict sheet. Defendant cannot now claim this as an error for the basis of an appeal. State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974).

Lastly, defendant contends:

[DEFENDANT'S] SENTENCE IS UNDULY EXCESSIVE.

We disagree.

First, we note that NERA provides that robbery is one of the crimes subject to its provisions. N.J.S.A. 2C:43-7.2d.

The judge found two of the aggravating factors enumerated in N.J.S.A. 2C:44-1a; specifically, (3) the risk that defendant would commit another crime, and (9) the need for deterrence. The judge found one mitigating factor, defendant's lack of prior delinquency or criminal activity. N.J.S.A. 2C:44-1b(7).

Defendant argues that the judge should have considered defendant's age, employment, and education as an additional mitigating factor. Nonetheless, from our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

 
Affirmed.

No Early Release Act, N.J.S.A. 2C:43-7.2.

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

Count 1 was (first-degree) armed robbery; count 1A was (second- degree) robbery.

(continued)

(continued)

22

A-6477-05T4

August 19, 2009