SUPERIOR COURT STATE OF NEW JERSEY v. HEATH TAYLOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4803-07T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HEATH TAYLOR,

Defendant-Appellant.

____________________________________________

March 21, 2011

Submitted January 24, 2011 - Decided

Before Judges Kestin and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 02-10-0628.

Muhammad Ibn Bashir, attorney for appellant.

GeoffreyD. Soriano,Somerset County Prosecutor, attorney for respondent (Michael McLaughlin, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Heath Taylor, was charged in a four-count indictment with third-degree possession of a controlled dangerous substance (CDS), cocaine, with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree possession of a handgun while possessing cocaine with intent to distribute, N.J.S.A. 2C:39-4.1a. He was also charged in a criminal complaint with three disorderly persons offenses: two counts of possessing drug paraphernalia, N.J.S.A. 2C:36-2; and one count of possessing marijuana under fifty grams, N.J.S.A. 2C:35-1a(4). In addition, defendant was charged with two motor vehicle offenses, speeding and driving while under license suspension.

After defendant's motion to suppress evidence was denied, he was tried before Judge Paul W. Armstrong and a jury on three days in November 2003. Defendant did not appear in court on the final date of trial as summations were scheduled to occur; and the court, after a delay which included counsel's efforts to locate defendant, ruled that he had "waived his right to be present at [that day's] proceeding." The trial continued with summations and the judge's charge to the jury.

Following its deliberations, the jury returned a verdict finding defendant guilty of all counts charged in the indictment. The court then found defendant guilty of the three disorderly persons charges and the speeding offense, dismissing the citation for driving while suspended for lack of proof. In the light of defendant's absence, the court issued a warrant for defendant's arrest.

Within days after the trial concluded, the State moved for extended term sentencing pursuant to Rule 3:21-4(e), and N.J.S.A. 2C:43-7 and 2C:44-3a. Shortly thereafter, defendant moved for a judgment of acquittal notwithstanding the verdict or, in the alternative, a new trial.

The next proceeding in this matter occurred almost four years later, on October 4, 2007, with defendant present. As Judge Armstrong noted in the subsequent sentencing session on February 8, 2008, defendant had been convicted in Virginia in 2004 of two felony charges involving manufacture and sale of a controlled dangerous substance and possessing a firearm, and had served a sentence there before being released on the Somerset County warrant.

On October 4, 2007, Judge Armstrong considered argument on defendant's motion for a judgment of acquittal or a new trial, and denied the application for reasons stated on the record. The State noted that it had made two motions for extended-term sentencing: one for a mandatory extended term under N.J.S.A. 2C:43-6f, by reason of the Virginia drug conviction; and the other for a discretionary extended term under N.J.S.A. 2C:43-7 and 2C:44-3 in respect of the weapon crime. The judge deferred sentencing pending receipt of an updated pre-sentencing report.

At the sentencing proceeding on February 8, 2008, the court granted both extended-term motions. On the second-degree conviction for possessing a weapon while committing a CDS crime, into which the conviction for third-degree unlawful possession of a weapon had merged, defendant was sentenced to a discretionary extended twelve-year term of imprisonment with six years of parole ineligibility. On the second-degree CDS conviction, into which the third-degree conviction for possession of CDS had merged, the sentence was "a required consecutive term, extended term of six years with a three-year parole disqualifier." Fines of $250 were imposed on each of the three disorderly persons convictions. The speeding conviction drew a fine of $50 and a concurrent fifteen-day jail sentence. Appropriate penalties, fees and fund payments were also ordered, and jail-time credits of 337 days were allowed.

On appeal, defendant advances the following issues for our consideration:

POINT I

THE COURT ERRED IN DENYING THE MOTION TO SUPPRESS IN THAT THE MOTOR VEHICLE STOP LACKED PROBABLE CAUSE AND WAS BASED ON SELECTIVE ENFORCEMENT AND/OR RACIAL PROFILING. (Not argued below.)

POINT II

THE COURT'S CHARGE TO THE JURY WAS DEFECTIVE AND INCOMPLETE DENYING THE DEFENDANT A FAIR TRIAL. (Not argued below.)

-Failure to include a Hampton charge.

-Failure to give a Kociolek charge,

-Failure to charge pursuant to 2C:39-2a.

-Failure to define "firearm".

-Failure to charge shared intent or

accomplice is plain error.

POINT III

THE STATE[']S REFERENCES TO THE HEARSAY STATEMENT OF THE CO-DEFENDANT IMPLICATES THE DEFENDANT[,] DENYING HIM OF HIS SIXTH AMENDMENT RIGHTS AND THUS A FAIR TRIAL.

POINT IV

THE PROSECUTOR[']S COMMENTS IN SUMMATION WERE CLEARLY PREJUDICIAL AND IN VIOLATION OF DEFENDANT'S 5th AMENDMENT RIGHT TO REMAIN SILENT. (Not argued below.)

POINT V

THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THAT TRIAL COUNSEL'S PERFORMANCE WAS INADEQUATE AND SUBSTANTIALLY PREJUDICIAL TO THE DEFENDANT. (Not argued below.)

-Waiver of the Miranda hearing.

-Failure to challenge the operability of

the weapon.

Arguments not raised before the trial court are subject to "plain error" analysis. See R. 2:10-1; State v. Torres, 183 N.J. 554, 564 (2005).

Despite defendant's presentation of the selective-enforcement/racial-profiling issue as not raised before the trial court, the record reveals that that issue was indeed raised and decided in the context of the motion to suppress. The related question before the court on the motion to suppress was the credibility issue arising from the reasons given for the motor vehicle stop that led to the discovery of the evidence.

According to the Bernards Township police officers who testified at the hearing on the motion to suppress, the automobile stop in question resulted from a determination that defendant had been exceeding the speed limit, driving at seventy-eight miles per hour on Route 78, where the speed limit was sixty-five miles per hour. Defendant argued to the trial court, as he does on appeal, that the testimony of Officer Ryan regarding his initial encounter with defendant and the passenger in the vehicle defendant was driving, taken together with the testimony of defendant and the passenger at the hearing, belie the contention that defendant was speeding.

Officer Ryan testified that while he was in a convenience store, in uniform, he "noticed a young woman walk inside. She seemed nervous. She her . . . body and facial expressions were, seemed to be avoiding me." The officer left the store, went to his patrol vehicle in the parking lot, and "looked around to see what car she might be operating."

I saw a vehicle that was parked at the gas pumps[,] I thought maybe she might be an occupant of. . . . I was watching the driver's actions through the mirror. I noticed he was reaching around in the back seat. Got out of the car, and he was holding like a plastic garbage bag, and he opened the trunk and he put it into the left side of the trunk . . . .

I thought . . . this was unusual, so I contacted Officer Jeff Dockery by computer, MDT transmission. Asked him to come to the Exxon.

Officer Ryan's testimony continued:

[Then], the driver pulled up to one of the parking slips in front of the store, and the female that I noticed earlier got . . . into that car, and then they backed out. And when they backed out, instead of choosing a direction directly out the exit of the Exxon, there is a one-way entrance and a one-way exit there, instead of going directly to the one-way exit which would be driving past my patrol car, they drove all the way around the pump area and then by the entrance and then out the exit.

I thought again that might be a little suspicious.

After the car left the parking lot, Officer Ryan "followed behind them." He testified that "[t]hey took the ramp . . . to get on Route 78 west, and I continued straight on Martinsville intentionally. I was attempting to make the driver feel comfortable that the police were no longer paying attention to him." Officer Ryan then reversed direction and entered the highway, spotting the car that defendant was driving in the "fast lane [not] passing any cars, . . . which was a violation of [the motor vehicle] Code, and [he] 'paced them' . . . , clock[ing] them at 78 miles an hour in a 65 zone." He followed the car for "a mile, mile and a half, and they always stayed in the left lane. So [he] pulled up behind them and activated [his] red lights and pulled them over."

Officer Ryan determined that the car was owned by Evelyn Vaughn, the passenger. In the meantime, Officer Dockery had arrived on the scene in response to Ryan's request for assistance. In performing a computer check on the credentials of the driver, defendant, Ryan discovered that defendant's driver's license had been suspended in New York, and he required defendant to exit the vehicle. A moment later, Dockery, who had "stayed with the car," told Ryan that he detected the odor of burnt marijuana emanating from the vehicle.

Ryan informed defendant of the marijuana aroma and "read him his rights." After Patrolman Dockery "noticed two marijuana seeds in plain view" located "on the driver's seat[,]" he retrieved them and "brought them back to Patrolman Ryan." Defendant was then searched, and some rolling papers were discovered on his person. According to the officers, defendant admitted that he had rolled and smoked a marijuana cigarette in the car.

Officer Ryan testified that he then approached the passenger, co-defendant Vaughn, who, upon being informed of the officers' observations and being "advised . . . of her rights, . . . . reached . . . into her waistband and . . . pulled out a . . . handgun . . . [that] didn't have a magazine in it." Ryan then "asked Officer Dockery to handcuff [defendant]," who was placed in the rear seat of Ryan's patrol car. Vaughn was placed in the rear seat of Dockery's patrol car. A search of the interior of the subject vehicle disclosed a magazine for the handgun, drug paraphernalia, and more marijuana seeds. Ryan testified further that he secured Vaughn's written "consent to search her car." The officers then searched the trunk of the vehicle and the bag that Ryan had earlier seen defendant placing in the trunk. An inspection of the bag disclosed a bag of hats and another bag containing items associated with drug use and sale. After Vaughn had been transported to police headquarters, Dockery discovered a bag of cocaine and a bag of marijuana in his patrol car, under the seat. He testified that he had inspected the vehicle earlier in the day and that it contained no drug contraband.

In her brief testimony, Vaughn disputed two aspects of Ryan's version. She stated that Ryan's patrol car "was behind us while we were turning off the ramp." And, she denied that her vehicle was speeding.

Defendant, in his testimony, also denied that his vehicle was speeding. He stated that the traffic was too heavy to permit speeding and that he was aware of the officer's presence at all times and would not have exceeded the speed limit. He also said that, when Ryan first approached his vehicle after pulling it over, he never said anything about speeding or travelling in the left lane but, rather, inquired about the bag he had seen defendant placing in the trunk of the car. According to defendant, the first awareness that he had been charged with motor vehicle offenses came "a week or so after [he] was incarcerated" when he "found the tickets inside [his] property."

At the conclusion of the hearing on the motion to suppress, Judge Armstrong delivered a comprehensive oral decision denying the motion. He discounted, as "without a sufficient factual basis," the argument that the automobile stop had been racially motivated, finding, instead, "that Officer Ryan made a traffic stop in light of . . . facts which were obviously suspicious to him[,] but only after taking into consideration observed traffic violations." He found, specifically,

the testimony of the officers to be credible, to be forthright, to be . . . honest and responsive. . . .

On the other hand, I find the testimony of [defendant] to be implausible. First, he advises us that at 5 a.m., traveling westbound on route I-78, that the traffic was such that it precluded him from accelerating to even the speed limit at 65 miles per hour. This alone gives the Court some pause as to his credibility. But, importantly, M[s.] Vaughn testified that indeed there was no traffic, or traffic was light at that time.

On the basis of his findings, Judge Armstrong concluded:

that the circumstances of the search . . . and the discovery of further instance of criminality were all as a result of the Plain View Doctrine and a proper search incident to arrest as well as a consensual search of the trunk of the subject car.

The chain of events following the stop, which included the discovery of the suspended license, along with the smell of marijuana and plain view observation of the marijuana seeds, provide an ample constitutional basis for probable cause and seizure of the contested evidence.

We discern no basis for reversing the trial court's determination on the motion to suppress, or questioning Judge Armstrong's resolution of each of the issues involved in that decision. The hearing was conducted with meticulous regard for the rights and interests of all concerned, and the decision reached, in a finely articulated oral opinion that contained an exhaustive recitation of the appropriate legal authorities, was well supported by the record. We are obliged to defer to the factual findings of trial court judges when those findings are supported by substantial evidence in the record; and we are required, also, to respect the conclusions that flow logically from those findings. See State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964); see also State v. Elders, 192 N.J. 224, 243 (2007).

With respect to the arguments that the trial court's charge to the jury was defective in omitting five particulars, we note that defendant lodged no request for such charges or raised their absence to the trial court so that any true defect could be remedied before the case went to the jury. We have studied the record and discern no error, let alone plain error, in the absence of the charges defendant contends should have been included. See R. 2:10-2; State v. Biegenwald, 106 N.J. 13, 43-44 (1987); State v. Huff, 292 N.J. Super. 185, 193-94 (App. Div. 1996), cert. denied, 146 N.J. 570, aff d., 148 N.J. 78 (1997).

Such references as the prosecution may have made in presenting its case to the co-defendant's conversation with the police officers on the scene had no clear capacity to produce an unjust result, as defendant argues. Any implications about what the jury may or may not have considered are entirely speculative. The State committed no excesses in laying before the jury all the circumstances that had developed during the automobile stop. The logical inferences that may have been drawn from those circumstances are not equivalent to an out-of-court statement by a co-defendant who has not testified; therefore, the problem addressed in Bruton v. United States, 391 U.S. 123, 126, 88 S. Ct. 1620, 1622, 20 L. Ed. 2d 476, 479 (1968), that defendant highlights, is not presented here. This issue lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Defendant's arguments addressed to the prosecutor's comments in summation also lack sufficient merit to warrant discussion in a written opinion. Ibid. Especially in the absence of any objection at the time, there is no basis for concluding as a matter of plain error that anything said by the prosecutor in summation was untoward or excessive and denied defendant a fair trial.

On the record before us, we decline to address the arguments that defendant was denied effective assistance of counsel. See State v. Preciose, 129 N.J. 451, 460-61 (1992) (noting that courts

generally do not "entertain[] ineffective-assistance-of-counsel claims on direct appeal").