STATE OF NEW JERSEY v. CHARLES C. BARNES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5114-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES C. BARNES,

Defendant-Appellant.

____________________________

October 26, 2011

Submitted September 27, 2011 - Decided

Before Judges Reisner and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-02-0252.

Joseph E. Krakora, Public Defender, attorney forappellant (WinnieE. Ihemaguba, Designated Counsel, on the brief).

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Barbara A. Suppa, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After the police found a handgun on the rear floor of a car in which he was the back seat passenger, defendant Charles C. Barnes was convicted of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:58-4. He was sentenced to seven years in prison with a three-year parole bar.

On this appeal, defendant raises the following points of argument for our consideration:

POINT I: THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION TO SUPPRESS THE HANDGUN SEIZED BY NEPTUNE POLICE OFFICER BRYCE BYHAM ON SEPTEMBER 13, 2008, BECAUSE THE POLICE SEIZED THE GUN AFTER ORDERING DEFENDANT OUT OF THE HONDA CRV AND IN A WARRANTLESS SEARCH OF THE SAME VEHICLE IN VIOLATION OF DEFENDANT'S FOURTH AMENDMENT RIGHTS.

A. The Trial Court Should Have Granted Defendant's Motion To Suppress The Handgun Under The Fruit Of The Poisonous Tree Doctrine.

B. The Trial Court Should Have Granted Defendant's Motion To Suppress The Handgun Because Officer Byham's Warrantless Search And Seizure Of The Handgun Cannot Be Justified Under The "Plain View" Exception To The Warrant Requirement.

POINT II: THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A DIRECTED VERDICT IN VIOLATION OF THE DEFENDANT'S RIGHTS UNDER R. 3:18-1.

POINT III: THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION TO APPEAR PRO SE.

POINT IV: THE SEVEN (7) YEAR SENTENCE IMPOSED BY THE TRIAL COURT ON THE DEFENDANT'S CONVICTION FOR VIOLATING N.J.S.A. 2C:58- 4 AND 2C:39-5b WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS.

Finding no merit in any of these contentions, we affirm the conviction and the sentence.

I

We begin by considering defendant s search-and-seizure issue. The following evidence was presented at the suppression hearing. Officer Bryce Byham, of the Neptune Police Department, testified that he was patrolling a high crime/narcotics area in the early morning hours of September 13, 2008. He had previously made many drug arrests in this area. Based on his considerable prior experience, Byham knew that, at night, drug dealers in the area frequently directed their customers to Ivy Place, because it was a poorly-lit, deserted side street that was only a few blocks long, and the dealers could easily see police cars entering the street. Ivy Place was also just around the corner from an apartment building where drug dealers congregated.

According to Byham, he drove down Ivy Place several times during his shift and saw no vehicles. However, at about 4:00 a.m., he spotted a small SUV parked on the street. It had not been parked there on his last trip a half-hour before. Suspecting possible drug activity, Byham radioed dispatch that he was going to investigate the SUV. He then pulled his patrol car up next to the parked vehicle and activated his "alley light," which cast illumination to the side of his car. He noticed that the two female front-seat passengers appeared startled. As Byham got out of his car and approached the parked vehicle, he saw its headlights come on and heard the engine start. He told the driver to turn off the engine.

After he approached the SUV to ask the driver for identification, Byham noticed a male passenger, later identified as defendant, in the back seat. As he was speaking with the driver, Byham saw defendant start moving around in the back seat. Defendant kept moving although the officer told him to stay still. Because the rear windows were tinted, and Byham was concerned for his own safety, he directed the driver to lower all of the car windows. Byham also told defendant to keep his hands "in plain view." Despite Byham s direction, defendant continued "sliding towards the middle [of the back seat] and back to the right." Since defendant kept moving around and would not keep his hands in plain view, Byham ordered defendant to get out of the car. By this time, a back-up officer, Patrolman Austin, had arrived.

As defendant exited the car, Byham noted defendant s clenched fist and asked him to open his hand, which proved to be holding four twenty-dollar bills. After patting defendant down for weapons and finding none, Byham placed him in the back of his patrol car, telling him that he was not under arrest. Byham then went back to the SUV to continued interviewing the driver, Valerie Noble, who provided her drivers license and registration. Byham checked with dispatch and was told there was an outstanding warrant for Noble. He therefore arrested Noble and placed her in the back of Patrolman Austin s vehicle. He then returned to the SUV to speak with the front seat passenger, Kim Mergel. As he walked around the car, Byham looked in the open rear window and noticed, in plain view, what appeared to be a handgun lying on the rear floor, behind Mergel s seat.

Unsure whether it was a real handgun, Byham opened the back door to examine it. He determined that it was in fact a semiautomatic pistol, with a round in the chamber. He ejected the bullet to make the gun "safe" and put it in his waistband. He made no further search of the car after removing the gun. Byham then arrested Mergel and handcuffed her. He waited until two additional back-up officers arrived before placing defendant under arrest and handcuffing him. The three suspects were then transported to headquarters in separate patrol cars.

After hearing Byham s testimony, which he found credible, Judge Kreizman made the following determinations:

I find that the totality of these circumstances, the location, the time, the fact that the vehicle hadn't been there before, the fact that it is adjacent to another street where there's lot of activity very close to an apartment complex where a lot of criminal activity and drug activity takes place, the fact that the driver took steps to drive away from the vehicle when the officer shined the light, I find that the totality of circumstances, although individually insufficient to generate reasonable suspicion, were enough to generate reasonable suspicion necessary to justify the investigatory stop.

The judge further found that, based on defendant's actions in continuing to move around in the back seat and refusing to keep his hands in view, Byham was legitimately concerned for his own safety and reasonably ordered defendant out of the car.

I find that the officer was concerned for his own safety and well he should have been. He didn t know what was going on down below the seat [where defendant was reaching]. The officer was concerned for his safety. I find that he was justified in ordering [defendant] out of the vehicle.

The judge also concluded that the plain view exception to the warrant requirement, and the doctrine of exigent circumstances, justified the seizure of the gun.

Our review of the judge s decision on a suppression motion is deferential. We will not disturb the judge s factual findings so long as they are supported by substantial credible evidence. State v. Elders, 192 N.J. 224, 243 (2007). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); State v. Mosner, 407 N.J. Super. 40, 59 (App. Div. 2009).

On this appeal, defendant argues that the officer had no basis to order him out of the vehicle. He also argues that the officer had no grounds to "arrest him" by confining him in the back of the patrol car, and that the gun "should be considered a 'tainted fruit' resulting from" the alleged unlawful arrest. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455-56 (1963). We find these arguments unpersuasive.

Based on his observation of two people sitting in a parked car at 4:00 a.m. on a deserted street, in an area known for late-night narcotics transactions, Officer Byham reasonably approached the vehicle to investigate. See State v. Drummond, 305 N.J. Super. 84, 87-90 (App. Div. 1997). When the occupants appeared startled and immediately started the SUV's engine on seeing Byham s police car, his suspicions were further aroused. The officer acted within the law in asking Noble, the driver, for her credentials and in checking for outstanding warrants. See State v. Chapman, 332 N.J. Super. 452, 463 (App. Div. 2000) (as part of a motor vehicle stop, the officer may check for outstanding warrants as well as checking for the driver s license and registration).

During his interaction with Noble, the officer noticed defendant in the back seat and ordered him to stop moving around and keep his hands in view. Considering that this was 4:00 a.m. on a dark street in a high-crime area, those were reasonable directions. See State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997); State v. Otero, 245 N.J. Super. 83, 92-93 (App. Div. 1990). When defendant refused to cooperate, Byham appropriately removed defendant from the vehicle to ensure his own safety. Ibid. As our Supreme Court has recognized:

To support an order to a passenger to alight from a vehicle stopped for a traffic violation, . . . the officer need not point to specific facts that the occupants are "armed and dangerous." Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car.

[State v. Smith, 134 N.J. 599, 618 (1994).]

Here, likewise, the totality of the circumstances, including defendant s furtive movements, the late hour in a high-crime area, and the deserted street, justified the officer s actions:

[T]he unusual movements, the early morning hour, and a largely deserted [roadway] are facts that warrant proceeding with extra caution in handling the occupants of the vehicle. The suspicious behavior by the occupants permitted the officer to exercise increased care to secure the scene even though the order that the passenger step out of the vehicle involved some intrusion on the passenger. That intrusion on the passenger's privacy interest is justified, however, because the suspicious movements in the car warranted a reasonably prudent officer's belief that the occupants of the car might be armed.

[Id. at 619-20.]

Further, since Officers Byham and Austin were out-numbered by defendant and his two companions, and defendant was uncooperative, it was reasonable to temporarily detain him in the patrol car to ensure the officers safety while they continued their investigation.

However, even if Byham lacked probable cause to detain defendant in the back of the patrol car, it would not justify suppression of the evidence. The discovery of the gun was not the "fruit" of defendant s temporary detention in the patrol car. It resulted from defendant s lawful removal from the vehicle and Noble s lawful arrest on an outstanding warrant.

After arresting Noble, Byham walked around the SUV to speak with Mergel, the front passenger. That was an entirely reasonable step, if only to determine whether anyone else in the car had a drivers license, since Noble was under arrest. In walking around to the front passenger side, Byham was lawfully in a position to look into the open back window and to see the gun in plain view on the back floor. See State v. Johnson, 171 N.J. 192, 208 (2002). "There is no legitimate expectation of privacy . . . shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by . . . diligent police officers." State v. Johnson, 274 N.J. Super. 137, 153 (App. Div.) (citations omitted), certif. denied, 138 N.J. 265 (1994). Byham would have discovered the gun whether defendant was standing outside the SUV or sitting in the patrol car. See State v. Pineiro, 369 N.J. Super. 65, 72 (App. Div. 2004).

We also agree with Judge Kreizman that, in light of the late hour, the crime-ridden neighborhood, the deserted street, and the two-to-three ratio of officers to suspects, Byham was justified in seizing the gun and unloading it. See State v. Pena-Flores, 198 N.J. 6, 30-32 (2009) (discussing the doctrine of exigent circumstances); State v. Wilson, 362 N.J. Super. 319, 335 (App. Div.), certif. denied, 178 N.J. 250 (2003).

II

Defendant next contends that he was entitled to a directed verdict after the State presented its case at trial. See R. 3:18-1. That argument is completely without merit. We agree with the reasons stated in Judge Kreizman s oral opinion denying the motion. Defendant s appellate contentions require no further discussion, beyond the following comments. See R. 2:11-3(e)(2).

The State s trial evidence was consistent with that presented at the suppression hearing. Accordingly, the jury heard that defendant was sitting in the back seat of the SUV, and made repeated suspicious movements after Officer Byham approached the car and told him to stay still. The jury also heard Byham s testimony that, while defendant was moving around, he seemed to be reaching toward the floor. The gun was found on the rear floor, near where defendant had been sitting. The State presented evidence identifying the weapon and confirming that defendant did not have a handgun permit. Giving the State the benefit of all favorable inferences, a jury could have found that defendant was in constructive possession of the handgun without a permit. See State v. Spivey, 179 N.J. 229, 236-37 (2004); State v. Reyes, 50 N.J. 454, 458-59 (1967).

III

We likewise find no merit in defendant s argument that he was erroneously deprived of the opportunity to represent himself at the trial. This is what happened. Defendant failed to appear on time for the first day of his trial. After waiting an hour, the judge finally called for a jury panel to start jury selection. As the jury panel was on its way to the courtroom, defendant finally appeared and asked the judge if he could "fire" his public defender. At that point, the jurors arrived, but the judge took a brief recess and gave defendant an opportunity to telephone another attorney. Defendant reported back that he could not reach that attorney and told the judge that he "would rather represent [him]self" at trial.

In response to that request, the judge first questioned defendant on his understanding of criminal trial procedure. See State v. Crisafi, 128 N.J. 499, 512 (1992). After admitting that he had never represented himself before, defendant asserted that he needed to look over more material before he would be ready to proceed with the trial. He also admitted that he was completely unfamiliar with the Court Rules or the Rules of Evidence. Further, defendant stated that although he did not understand how to conduct his own defense, he intended to be advised by a non-attorney during the trial. Noting that defendant could not be represented by a non-attorney, and that the application was made at the last minute just as the trial was about to start, the judge denied defendant s request. Instead, he ruled that the trial would proceed with defendant being represented by his very experienced, assigned public defender.

On this appeal, defendant claims that Judge Kreizman should have allowed him to represent himself. We cannot agree. First, defendant did not make a clear and unequivocal request for self-representation. See State v. Figueroa, 186 N.J. 589, 593 and n.1 (2006); State v. Harris, 384 N.J. Super. 29, 57 (App. Div.), certif. denied, 188 N.J. 357 (2006). He expressed general dissatisfaction with his assigned counsel, which is insufficient. Id. at 59-60. He also admitted that he was not capable of representing himself and would need an unnamed lay advisor to assist him at the trial. Further, he was not prepared to go forward with the trial, because he claimed he needed to review some additional materials before he would be ready to proceed. Finally, defendant waited until the day of trial, after the jury panel had actually arrived at the courtroom, to make his request. See State v. Pessolano, 343 N.J. Super. 464, 473 n.4 (App. Div.), certif. denied, 170 N.J. 210 (2001). A request for self-representation must be asserted in a timely manner, and "[t]he right of self-representation is not a license to disrupt the criminal calendar, or a trial in progress." State v. Buhl, 269 N.J. Super. 344, 362 (App. Div.), certif. denied, 135 N.J. 468 (1994).

Defendant failed to appear at the pre-trial the day before, and showed up an hour late for his trial. The judge was not required to let defendant further disrupt the trial with a last-minute, equivocal request to represent himself. Id. at 363-64.

IV

Finally, we find no abuse of discretion or other error in the seven-year sentence, which was at the mid-point of the sentencing range for a second-degree crime. See State v. Bieniek, 200 N.J. 601, 608 (2010). In imposing sentence, the judge reasonably considered defendant s conduct in the courtroom when, immediately after the verdict was announced and the judge increased his bail, defendant attempted to flee. In the process, he assaulted several sheriff s officers. We find no merit in defendant s contention that the trial judge should have considered mitigating factor twelve (cooperation with law enforcement). His sentencing arguments require no further discussion. R. 2:11-3(e)(2).