STATE OF NEW JERSEY v. PORFIRIO JIMENEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5866-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PORFIRIO JIMENEZ,

Defendant-Appellant.

_________________________________________________

November 17, 2011

 

Submitted September 13, 2011 - Decided

 

Before Judges Payne, Simonelli and Hayden.

 

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Indictment No.

04-03-0318.

 

Joseph E. Krakora, Public Defender, attorney

for appellant (William Welaj, Designated

Counsel, on the brief).

 

Robert A. Bianchi, Morris County Prosecutor,

attorney for respondent (John K. McNamara, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Porfirio Jimenez, appeals his conviction by a jury for the crimes of murder, N.J.S.A. 2C:11-3(a)(1) and (a)(2), felony murder while engaged in the crime of kidnapping, N.J.S.A. 2C:22-3(a)(3), first-degree kidnapping, N.J.S.A. 2C:13-1(b), felony murder while engaged in the crime of attempted sexual assault, N.J.S.A. 2C:11-3(a)(3), second-degree attempted aggravated sexual assault on a victim of less than thirteen years of age, N.J.S.A. 2C:5-1 and 2C:14-2(a)(1), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The matter was commenced as a capital prosecution. However, the death penalty was legislatively abolished before the matter was tried.1 As a consequence, defendant was sentenced to life without parole for the murder, to a consecutive term of twenty-five years for the kidnapping with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent term of seven years with an eighty-five percent parole disqualifier pursuant to NERA for attempted aggravated sexual assault. The remaining convictions were merged and dismissed.

On appeal, defendant makes the following arguments:

POINT I

 

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT AS WELL AS THE DEFENDANT'S ENSUING STATEMENT TO THE POLICE.

 

A. FACTUAL INTRODUCTION.

 

B. THE AFFIDAVIT FILED IN SUPPORT OF THE SEARCH WARRANT APPLICATION LACKED SUFFICIENT PROBABLE CAUSE TO JUSTIFY THE ISSUANCE OF A SEARCH WARRANT FOR THE DEFENDANT AND THE TAKING OF EXEMPLARS FROM HIM.

 

C. THE DEFENSE WAS ENTITLED TO AN EVIDENTIARY HEARING PURSUANT TO FRANKS v. DELAWARE, 438 U.S. 154, 98 S. Ct. 2674 (1978) SINCE A REQUISITE SHOWING EXISTED THAT THE POLICE OMITTED NUMEROUS MATERIAL FACTS FROM THE SUPPORTING AFFIDAVIT WHICH, HAD THEY BEEN INCLUDED, WOULD HAVE PRECLUDED THE ISSUANCE OF A SEARCH WARRANT.

 

D. NEITHER THE INEVITABLE DISCOVERY DOCTRINE NOR THE INDEPENDENT SOURCE DOCTRINE APPLIED TO PRECLUDE AN APPLICATION OF THE EXCLUSIONARY RULE.

 

E. THE DEFENDANT'S STATEMENT TO THE POLICE ON JUNE 7, 200[1] MUST BE SUPPRESSED AS CONSTITUTING A FRUIT OF THE POISONOUS TREE ARISING OUT OF THE IMPROPERLY ISSUED SEARCH WARRANT AND ENSUING ILLEGAL ARREST OF THE DEFENDANT.

 

POINT II

 

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE DEFENDANT'S STATEMENTS TO THE POLICE ON JUNE 7, 2001 WHICH WERE INCRIMINATING IN NATURE.

 

A. FACTUAL INTRODUCTION.

 

B. SINCE LAW ENFORCEMENT FAILED TO ADVISE THE DEFENDANT AN ARREST WARRANT HAD BEEN ISSUED FOR HIM RELATING TO THE VICTIM'S DEATH, THE ENSUING INCRIMINATING STATEMENTS OBTAINED WERE NECESSARILY TAINTED, WARRANTING THEIR SUPPRESSION.

 

C. SINCE THE HOLDING IN STATE v. A.G.D., 178 N.J. 56 (2003) WAS APPLICABLE TO THE PRESENT CASE, THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE INCRIMINATING STATEMENTS OBTAINED BY LAW ENFORCEMENT IN VIOLATION THEREOF.

 

POINT III

 

THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY ELICITED FROM THE STATE'S EXPERT WITNESS IN REBUTTAL WHICH PRESENTED THE ASSERTION THAT THE DEFENSE EXPERT WAS MALINGERING FOR THE DEFENDANT.

 

We affirm.

I.

This prosecution arises from the murder of ten-year-old Walter Contreras in Morristown on Sunday, May 20, 2001.2 The record establishes that Contreras's mother returned from work at 6:00 p.m. to find her son Walter absent. When, some time later, Walter still had not returned home, Valenzuela became alarmed and commenced to search for him in locations that he frequented, including the Abbett Avenue Playground, where he often went to feed the ducks. She was unable to locate the child so, at approximately midnight, she contacted the Morristown Police Department, which began a missing persons investigation. Walter's body was found on the morning of May 22 lying under a log in a wooded area close to the Whippany River about one mile from the playground. His face and neck had numerous visible injuries. A later autopsy disclosed multiple skull fractures accompanied by a swelling of the brain and internal bleeding that had caused his death. The presence of sperm was detected in his underpants. A search of the area disclosed the murder weapon, a four-pronged metal garden cultivator.

A focus of the investigation into the murder was the Abbett Avenue Playground. A search of the playground on May 21 revealed discarded jeans that bore stains that tested positive for blood. A further search on May 25 disclosed a bloodstained light blue sweater with a distinctive pattern of blue and black triangles on it and black trim at the neck, waist and sleeves. Two witnesses identified the sweater as belonging to defendant. One, Sue Cardona, was a volunteer interpreter with a domestic violence crisis response team who had worked on cases involving defendant. Cardona stated that she had seen defendant wearing the sweater on numerous occasions, commencing in September 2000. Another interpreter, Yeison De Los Santos, stated that the sweater looked like one that he had seen on defendant. However, a number of additional witnesses identified various other people as having worn the sweater.

Information was also developed that defendant had been seen at the playground on the day of Walter's disappearance in the company of three other men. At approximately 6:15 p.m. that evening, Patrolman Brendan Briscoe, while conducting a bicycle patrol, saw the four men together in the playground. One had just taken a drink from an open can of beer and, upon seeing the officer, tossed the can into the woods. Briscoe gave him several summonses and obtained identifying information from the remainder, including defendant. He then ordered the men to leave the playground, but when he returned approximately twenty minutes later, defendant and one other man were still there. They were again ordered to leave.

Later that evening, at approximately 8:00 p.m., Walter was seen by parishioner David Kemp in defendant's presence at a carnival at St. Virgil's Roman Catholic Church. Although the carnival was closed, Kemp permitted Walter to shoot some hoops. At the time, he thought that Walter and defendant were related.

On a number of occasions, defendant was questioned by the police. On May 21, before Walter's body had been discovered, Patrolman Richard Lamperti encountered defendant at a Dunkin Donuts shop near the Morristown train station in the company of two of the men seen at the playground on the preceding day. He showed defendant a flier that the police had created that contained Walter's picture and information in Spanish regarding the missing child. Defendant looked at the picture with no emotion and stated that he had no knowledge of the boy, although he possibly knew his parents. He then passed the flier to his companions, none of whom knew the child.

On May 22, Officer Lamperti again showed defendant the flier, and he again denied any knowledge of the boy and stated that he had not seen the boy at the playground. On May 25, the police conducted a more lengthy noncustodial interview of defendant, utilizing a detective from the Morris County Prosecutor's Office as a Spanish interpreter. In response to questions regarding his activities on May 20, defendant stated that he had arrived at the park between 6:00 and 6:30 p.m., where he met up with a black male and two Hispanics. Defendant recounted the encounter with Patrolman Briscoe and stated that he then left the park and rode his bicycle to a convenience store on Martin Luther King Avenue, where he purchased a soda and some cookies. After riding around Morristown until approximately 9:45 p.m., defendant went to his brother's house at 42 Sussex Avenue, where he was staying in a basement room, and promptly fell asleep. Defendant was shown the flier depicting Walter for a third time, and again stated that he did not know the boy and added that he did not know the boy's family. Defendant also stated that he was unaware that there was a carnival on May 20. After questioning had concluded, defendant was permitted to leave police headquarters.

On May 28, after the sweater found at the playground was linked to defendant, among others, the police sought and were granted search warrants for defendant's person and his room in the basement of 42 Sussex Avenue. The affidavit of Detective Sergeant Mark Stockbower in support of issuance of the warrants recited the identification by Cardona and de Los Santos of defendant as the wearer of the sweater. It did not mention other persons who had been identified as having been seen in the sweater. Also on May 28, further noncustodial questioning of defendant regarding his activities on May 20 occurred, at which time defendant described his day in a manner that was roughly similar to his previous statement. Additionally, that night, pursuant to the newly-issued warrant, a buccal swab and various other personal samples were taken from defendant, and he was both photographed and fingerprinted. The samples were then submitted for forensic analysis.

On June 6, at 5:51 p.m., James Gannon, a lieutenant in the Morris County Prosecutor's Office who was working on the Contreras case, was informed that DNA analysis had disclosed a preliminary match between evidence submitted and defendant's DNA. At 6:00 p.m., defendant walked into Morristown Police Headquarters an event that "flabbergasted" Gannon. Determining to delay a further interview with defendant until the following day, the police devised a ruse to insure defendant's presence, informing him that they had day labor for him to do.

Prior to any interview on the following day, the police were informed that the tentative DNA match had been confirmed, and they obtained a warrant for defendant's arrest. However, when the interview with defendant was commenced at approximately 10:00 a.m., he was administered Miranda3 warnings, but he was not informed that a warrant for his arrest had been issued. At 12:55 p.m., the officers brought up the subject of DNA testing, explained it to defendant, and told him that his DNA had been found on Contreras's underwear. Although after hearing this information defendant became agitated, he continued to deny any knowledge of the murder.

Following a short break at about 3:30 p.m., the interview was resumed, with Lieutenant Gannon leading the interrogation. At this point, defendant was informed that he was going to be charged with the murder of Walter Contreras, aggravated sexual assault, kidnapping, and possession of a weapon for an unlawful purpose, and that he was going to be committed to the Morris County Jail. Defendant cried and stated, "My life is over." Then, over a period of time, he confessed, revealing that he had attempted to anally penetrate Contreras, but that he had ejaculated prematurely. He killed the child to conceal the sexual assault. At 7:15 p.m., a taped confession was commenced that concluded approximately one hour later. The confession, obtained in Spanish, was translated into English, and both the Spanish tape and the English translation were provided to the jury at trial.

In addition to the confession, at trial, the State produced evidence of a match between defendant's DNA and the semen found in Contreras's underpants and between Contreras's DNA and blood found on jeans and shoes that had been discarded by defendant and later found by the police in an empty apartment where a friend of defendant's had been squatting. Additional forensic evidence suggesting defendant's culpability and eliminating other suspects was also presented to the jury.

After the State had rested, the defense presented an insanity defense, calling as a witness Arnaldo Apolito, M.D., an expert in forensic psychiatry. Dr. Apolito testified that, after evaluating defendant on two occasions, once in November 2001 and again in August 2008, he concluded that at the time of the crime defendant was suffering from a depersonalization or derealization disorder, in which he thought the victim was not a ten-year-old boy, but rather, the Devil, and that following the crime, defendant developed dissociative amnesia. The doctor based his opinion of defendant's mental condition at the time of the crime on a statement by defendant to Detective Gannon that "the Devil walks with people sometimes." The condition, he asserted, manifested after defendant had attempted to sexually molest Contreras and when he recognized that he had sinned. At that time, according to Dr. Apolito, defendant's state of mind became "severely abnormal" and "amounted to a state of psychosis." While in that state, defendant saw the garden tool and concluded that "God had placed that instrument there for him to kill the Devil" who had seduced him into unforgivable sin. In the doctor's opinion, defendant was legally insane at the time of the death of Walter Contreras, because he was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act that he was doing, or if he did know it, that he did not know what he was doing was wrong.

On cross-examination, the prosecutor established, among other things, that defendant had never stated to Dr. Apolito or anyone else that he mistook Contreras for the Devil or that he thought God had placed the cultivator where defendant found it in order that he could kill the Devil. Further, the doctor had never asked defendant whether it was wrong to have sex with a child. Additionally, the prosecutor established that defendant had not told the doctor that he did not remember committing the crime, but instead he denied that he had committed it. The prosecutor also established that Dr. Apolito had not listened to defendant's detailed oral confession, despite the fact that the doctor deemed the defendant's manner when confessing to be important, and the doctor spoke Spanish.

As a rebuttal witness, the State called forensic psychologist Dr. Louis Schlesinger. Dr. Schlesinger testified that, in his opinion, defendant was not suffering from a depersonalization disorder at the time that he committed the murder, and that he was not legally insane. Further, the doctor testified that defendant did not exhibit indications of dissociative amnesia, and even if he suffered from amnesia, that would not be relevant to his guilt, because the alleged amnesia had occurred after the crimes had taken place. When asked about Dr. Apolito's interpretation of the statement "the Devil walks with people sometimes," Dr. Schlesinger responded:

Well, as I understand Dr. Apolito's report, he took that phrase and then concluded that Porfirio saw Walter as the Devil. Having sex with him would condemn him to the fires of Hell in eternity. And and the murder weapon was some sort of salvation.

 

There is no basis for that in my opinion, period. The defendant didn't say anything even close to that to the police. He didn't say anything like [that] to Dr. Apolito. And I asked him specifically about that and he said he never told Dr. Apolito that. He didn't tell me that. He also said he didn't tell the police that.

 

Later in the direct examination, the prosecutor asked Dr. Schlesinger whether he was familiar with "malingering by proxy." The doctor responded by giving examples of direct malingering, stating that it was not uncommon for criminal defendants to malinger symptoms to create a defense. He then continued:

In my experience, I have found [a] number of cases which were a little bit different than that. In these cases, the criminal defendant didn't malinger. I found the expert to malinger for him. So it wasn't the criminal defendant that said, "I'm hearing voices. I'm mentally retarded, I don't know what I'm doing." It's the expert who malingers for him. . . .

 

Some experts seem to believe their job is to help the defendant or create a defense, number one. Number two, I also found in my experience in these cases that many times the expert advocates in a much stronger way than the attorney.

 

At this point, defense counsel objected and requested a mistrial. However, the court denied the mistrial request, determining instead to issue the following curative instruction:

There is no evidence before you that the defense hired an expert, Dr. Apolito, to create a defense for this defendant.

 

Dr. Apolito has an opinion. He's expressed that opinion. He's testified as to his opinion. Dr. Schlesinger is now on the stand. He is testifying as to his opinion.

 

It is not unusual in cases for there to be conflicting opinions. It's up to you to decide what you accept and/or what you reject. And the extent to which you do so is solely up to you.

 

The judge gave a similar instruction in his jury charge.

At the conclusion of the trial, the jury did not accept defendant's insanity defense, and it convicted him of the crimes that we have previously set forth. Following sentencing, defendant appealed.

II.

 

On appeal, defendant first challenges the basis for the issuance of a search warrant permitting the police to obtain the buccal swab that linked him through DNA evidence to the crime. Defendant contends first that the affidavit filed in support of the search warrant application did not set forth facts that established probable cause for its issuance. He then argues that, because he preliminarily showed that the police omitted numerous material facts from the supporting affidavit that, if included, would have precluded the issuance of the warrant, he was entitled to a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978) to determine whether the warrant should have been voided and its fruits excluded from evidence. Defendant argues additionally that neither the inevitable discovery doctrine nor independent source doctrine is applicable to preclude the exclusion of the evidence. And as a final matter, he argues that his confession to the police on June 7, 2001 should be excluded as a fruit of the poisonous tree.

The affidavit of Detective Sergeant Slockbower detailed the failure of Walter Contreras to return to his home at 67 Abbett Avenue on the night of May 20, 2001; his mother's subsequent report to the Morristown police that the child was missing; the discovery of his body on May 22, bearing evidence of blunt force trauma to the head and multiple stab wounds; and the location of bloody clothing, consisting of jeans and a sweater, and other personal effects of a possible suspect at the Abbett Avenue Playground, a park located along the Whippany River approximately one mile downstream from the murder scene. The affidavit stated additionally that a photograph of the sweater, which had a distinctive pattern, was shown to various witnesses in the Morristown area, and that two witnesses identified the sweater as belonging to Porfirio Jimenez. One, Sue Cardona, a volunteer interpreter with a domestic violence crisis center, had worked on cases involving Jimenez and had seen him wear the sweater "numerous times since approximately September of 2000." The other, also an interpreter, said that the sweater "looks like" one he had seen Jimenez wearing.

In seeking to suppress evidence taken pursuant to the search warrant issued in reliance on Slockbower's affidavit, defendant argued to the trial judge that the affidavit provided an insufficient nexus between the sweater and the crime scene where Contreras's body was found and failed to establish that the blood on the sweater came either from Contreras or the crime scene. Additionally, the affidavit established an insufficient nexus between the sweater and defendant. Defendant argued, also, that because the affidavit misled the issuing judge into concluding that the jeans and sweater were found at the same time, whereas the sweater was found four days after the jeans, and because the affidavit omitted information regarding a substantial number of other persons who had been identified as wearing the sweater, he was entitled to a Franks hearing. He then argued that his confession, obtained only after the DNA match established by use of DNA obtained pursuant to the warrant had been disclosed to defendant, constituted fruit of the poisonous tree.

The judge disagreed. He found a nexus between the location of the sweater found at the playground and the crime to exist because of the proximity of the playground to both the Whippany River where the crime was committed and to Contreras's home. Additionally, the judge concluded that the discovery of bloody clothing at a playground was unusual, and the fact that the clothing was found there, discarded, suggested its connection to a violent crime, since otherwise there would be no need to discard the clothing rather than to continue wearing it while seeking help. The judge reasoned that common sense supported the conclusion that the perpetrator of a violent crime would not discard bloody clothing in the immediate proximity of the crime. Further, the nature of Contreras's wounds suggested that they would have bled profusely, supporting the likelihood that blood would be found on the clothes of the perpetrator. The judge concluded that the connection between the sweater and defendant had been established by the two witnesses whose identifications were set forth in the affidavit. Based on these factual findings, the judge ruled that defendant had not met his heavy burden of demonstrating an absence of probable cause to believe that evidence of a crime was to be found at the place to be searched.

Addressing defendant's argument that he was entitled to a Franks hearing, the judge concluded that if the police had indicated that the sweater was found four days after the jeans, that would not have militated against the issuance of a warrant, particularly because the items were not found at the same location. With respect to the fact that as many as fourteen others had been identified as wearing the sweater, yet this information was not included in the affidavit, the judge found that "an affiant cannot be expected to include every clue, every fact, every circumstance of the investigation in a supporting affidavit for a search warrant." He found:

In the present matter, the police, over the course of the investigation, received some inconsistent witness statement[s] as to the ownership, but under the circumstances, the police need to assess the credibility and the reliability of the information that they have received and the witnesses they have interviewed to determine which are the most probable.

 

The judge noted that many of the identifications of the wearer of the sweater were of an unnamed Spanish or Hispanic male. Indeed, a liquor store owner who initially told the police he could identify the wearer, an Hispanic, if shown a picture, positively identified defendant prior to the time that the warrant was issued, although that information was not contained in the warrant. As a consequence of these identifications, Slockbower had reason to believe that defendant was the sweater's owner at the time he swore to that fact in the affidavit. That the police continued to investigate others even after the warrant had been issued merely constituted an example of their diligence. He found that even after defendant had fully confessed, further investigation was warranted to substantiate the truth of what defendant had said. The judge concluded by stating:

[I]n my view, even looking at those [arguments] that were presented by the defendant, there is little or no evidence presented by the defendant which tend[s] to show that the affiant, Slockbower, deliberately omitted or with reckless disregard for the truth attempted to mislead [the warrant judge] into issuing the search warrants; thus, in my view, there is no substantial preliminary [evidence] that the defendant has shown and without that showing, he is not entitled to a hearing under Franks . . . .

 

We agree with the trial judge's analysis and affirm his ruling. The New Jersey Supreme Court has held:

Before issuing any warrant, a judge must be satisfied that there is probable cause to believe that a crime has been or is being committed at a specific location or that evidence of a crime is at the place to be searched. [State v.] Sullivan, 169 N.J. [204], 210-11 [(2001)]; State v. Laws, 50 N.J. 159, 173 (1967), cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968); State v. Macri, 39 N.J. 250, 256-57 (1963). Probable cause has been defined in many different ways, defying scientific precision. It is a "common-sense, practical standard" dealing with "probabilities" and the "practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Sullivan, supra, 169 N.J. at 211 (internal quotation marks omitted). Probable cause is "less than legal evidence necessary to convict though more than mere naked suspicion." State v. Mark, 46 N.J. 262, 271 (1966).

 

[State v. Evers, 175 N.J. 355, 381 (2003).]

 

Once a warrant has been issued, the facts supporting it "should not be reviewed from the vantage point of twenty-twenty hindsight by interpreting the supporting affidavit in a hypertechnical, rather than a commonsense manner." State v. Sheehan, 217 N.J. Super. 20, 27 (App. Div. 1987) (citing United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684, 689 (1965)).

As the judge found, "[a] search warrant is presumed to be valid, and defendant bears the burden of demonstrating that the warrant was issued without probable cause." Ibid. (citing State v. Valencia, 93 N.J. 126, 133 (1983)).

Because in this case, the validity of a search warrant was at issue, the focus of a probable cause analysis needed to be upon the likelihood that there was evidence at a particular place or upon a person in this case DNA evidence to be obtained from the person of defendant through use of a buccal swab. State v. Nishina, 175 N.J. 502, 515 (2003); State v. Johnson, 171 N.J. 192, 214 (2002); State v. Sullivan, 169 N.J. 204, 210 (2001). Although the quantum of proof probable cause is the same, whether there was probable cause to search defendant raises issues different from whether there was cause to arrest him, and lack of probable cause to arrest is not fatal to a finding of probable cause to search. State v. Chippero, 201 N.J. 14, 27-30 (2009) (citation omitted). Arrest and search warrants protect different interests. "A search warrant seeking evidence in support of a police investigation into a crime protects individual privacy interests of a suspect, or of a third party, against unreasonable intrusion by police, whereas, an arrest warrant protects against unreasonable seizure of and the resultant loss of liberty to an individual believed to have committed a crime." Id. at 29 (citing State v. Cleveland, 371 N.J. Super. 286, 297-98 (App. Div.) (citing Steagald v. United States, 451 U.S. 204, 212-13, 101 S. Ct. 1642, 1648, 68 L. Ed. 2d 38, 46 (1981))), certif. denied, 182 N.J. 148 (2004). As the Chippero Court stated:

We join those many courts in recognizing that probable cause to arrest and probable cause to search involve distinct and not necessarily identical inquiries. A finding of probable cause as to one does not mean that probable cause as to the other must follow, nor does the lack of one compel a finding that there is a lack of support for the other.

 

[Id. at 31.]

 

Adopting the trial judge's rationale, we are satisfied that the probable cause standard was met here and that a lack of probable cause was not demonstrated by defendant. At the time the warrant was issued, the police may not have had probable cause to arrest defendant. However, they certainly had cause to investigate people with a likelihood of being connected to the bloody clothing found at the Abbett Avenue Playground. Based on the determinations of the police investigators, of those people, defendant was the most likely to be actually connected to the blood-stained sweater. The positive identification of defendant as the sweater's wearer by the two interpreters raised the probability that defendant was connected with the crime from a "mere suspicion" to probable cause. See State v. Mark, 46 N.J. 262, 271 (1966) (noting that probable cause is "less than legal evidence necessary to convict though more than mere naked suspicion.").

We are also satisfied that the evidence presented did not support defendant's claim that a Franks hearing was necessary in this matter. In Franks, the Supreme Court held that "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." Franks, supra, 438 U.S. at 155, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672; see also State v. Sheehan, 217 N.J. Super. 20, 25-26 (App. Div. 1987) (extending the principles set forth in Franks to claims that the supporting affidavit, while facially sufficient, nevertheless omits material facts).

To identify what constitutes "reckless disregard for the truth" regarding misstatements, as in Franks, and omissions, as in Sheehan, the Third Circuit has held:

In evaluating a claim that an officer both asserted and omitted facts with reckless disregard for the truth, we hold that: (1) omissions are made with reckless disregard for the truth when an officer recklessly omits facts that any reasonable person would want to know; and (2) assertions are made with reckless disregard for the truth when an officer has obvious reasons to doubt the truth of what he or she is asserting.

 

[Wilson v. Russo, 212 F.3d 781, 787 (3d Cir. 2000).]

 

When determining whether a misrepresentation is "material," the court must excise the false statement from that affidavit and then determine whether probable cause still exists. When determining whether an omission is material, the court must supply the omitted information and determine the existence of probable cause. U.S. of Am.: Gov't of the Virgin Islands v. Yusuf, 461 F.3d 374, 383-34 (3d. Cir. 2006). In other words, for an omission of evidence to be material, "it must be such that its inclusion in the affidavit would defeat probable cause." United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990) (citing United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986)). "Omitted information that is potentially relevant but not dispositive is not enough to warrant a Franks hearing." Ibid. (citing Reivich, supra, 793 F. 2d at 962). In determining whether the affidavit with the omitted information supports probable cause, we examine the "totality of the circumstances." Ibid. (citing Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).

As noted by the Colkley court, the duty to disclose exculpatory information under the Fourth Amendment differs from the duty to disclose such information under due process protections as articulated in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Colkley, supra, 899 F.2d at 302. The Brady rule "derives from due process and is designed to ensure fair criminal trials," whereas the probable cause determination in Franks, which derives from the Fourth Amendment, "involves no definitive adjudication of innocence or guilt." Id. at 302. "Because the consequences of arrest or search are less severe and irremediable than the consequences of an adverse criminal verdict, a duty to disclose potentially exculpatory information appropriate in the setting of a trial may be less compelling in the context of an application for a warrant." Ibid. Further, the obligation to disclose Brady material exists, regardless of the intent of the prosecutor, whereas in a Fourth Amendment context, breach of the obligation requires a showing of moral culpability. Id. at 303.

The Colkley court observed:

a requirement that all potentially exculpatory evidence be included in an affidavit would severely disrupt the warrant process. The rule would place an extraordinary burden on law enforcement officers, who might have to follow up and include in a warrant affidavit every hunch and detail of an investigation in the futile attempt to prove the negative proposition that no potentially exculpatory evidence had been excluded. It would perforce result in perniciously prolix affidavits that would distract police officers from more important duties and render the magistrate's determination of probable cause unnecessarily burdensome. In addition, a broad duty of inclusion would turn every arrest or search into a warrant contest. Such consequences would, in turn, discourage reliance on warrants, a result the Supreme Court has stated should be avoided in shaping Fourth Amendment doctrine.

 

[Ibid. (citation omitted).]

 

Turning to the facts of the present matter, we are satisfied under the standards that we have set forth that it was unnecessary for the police to disclose that the blood-stained jeans were found four days before the sweater. Although both were found at the playground, there is nothing in the record to suggest that they were found in an identical location, thereby giving rise to an inference that they were disposed of at different times. Further, there is nothing in the record to suggest that the area where the sweater was found was, in fact, searched on May 21 when the jeans were found. We thus do not find the omission of the dates of discovery of the two items to have been material. Similarly, we find immaterial the fact that there was a container for the charitable donation of clothes at the park that was utilized by homeless people as a clothing resource. Nothing in the record connects that container to defendant, to the sweater, or to the location where the sweater was found.

At the hearing before the trial judge, the defense presented a chart detailing all efforts by the police up to the time the search warrant was issued on May 28 to identify the wearer of the sweater. Of the people interviewed four identified the wearer as Spanish or Hispanic, one identified the wearer as an Hispanic male who was not defendant, and two positively identified the wearer as defendant. The only other identified and potentially likely suspect was a woman named Natasha Dixon and a male that the police "surmised" was Ray Hughes, Dixon's partner. The remaining "identifications" were largely of persons identified only by race or homelessness. Two other positively identified persons, Michael Washington and James Ketch, appear not to have been considered to be suspects.

As a result, we conclude that even if the omitted information had been included in the affidavit, probable cause existed for the issuance of a search warrant for personal samples from defendant. We agree with the trial judge that defendant has failed to make a substantial preliminary showing that a false statement was knowingly and intentionally or with reckless disregard for the truth included by Slockbower in his affidavit in support of the warrant at issue.

Moreover, we are satisfied that, even if the warrant were found to have been defective, introduction of the evidence at issue was proper as the result of the doctrine of inevitable discovery as set forth in State v. Sugar, 100 N.J. 214 (1986), because clear and convincing evidence exists that discovery of defendant's culpability would have inevitably occurred using normal, proper and identified investigatory procedures that were entirely independent of any alleged misconduct. Id. at 240.

Two pieces of evidence are relevant in this regard. First, at the time that Patrol Officer Briscoe came upon defendant in the playground on May 20, 2001, defendant was accompanied by a man who identified himself as Christian Ceballos. During the police's investigation, Ceballos was interviewed on June 4, 2001, and after it was learned that he had used a false name, he was re-interviewed on June 5. At that time, he was identified as Ricardo Marin, photographed, fingerprinted, and a buccal swab was taken by consent. On June 6, when defendant appeared at Morristown Police Headquarters, he informed the police that he had been told by Christian that the police were looking for him, thereby reinforcing the conclusion that the two men were friends.

On June 7, Officer Charlene Guerra was assigned to interview Marin again, which she did on June 11. At that time, Marin confirmed that he had been with defendant at the playground on May 20. He additionally stated that on May 21, he had seen defendant wearing dirty jeans, which defendant explained by saying that he had been digging a hole. Defendant then asked Marin to borrow a clean pair, but Marin ignored him. However, when asked again on the following day, he directed defendant to an empty apartment in which Marin had been squatting and where he stored extra clothes. Defendant entered the apartment and, shortly thereafter, emerged in clean pants.

Following a search by the police, the pants were found at the bottom of a garbage pail that Marin had been using to dispose of his feces. Stains on the pants and a shoe found in the apartment were subsequently tested and found to match Contreras's DNA.

On June 15, 2001, a polygraph examination was conducted on Marin, who at that time admitted that his name was Gustavo Marin, to determine if he was complicit in Contreras's murder. The polygraph examination showed no signs for untruthfulness when he responded "no" to "Were you with Porfirio when he took Walter's life?" and "Did you see Porfirio take Walter's life?"

The State contends that Marin's disclosure of defendant's pants swap and the eventual location of the bloodied clothes was inevitable. Defendant argues to the contrary that Marin would not have disclosed that he had permitted defendant to borrow his clothes if he had not known that defendant had already confessed to the murder a confession that defendant claims was tainted as the result of the improperly obtained buccal swab. We disagree. The evidence in the record strongly suggests that, at the time that Marin disclosed what had occurred, he had not been ruled out as a suspect in the murder. Thus, he had a strong motivation to pin the crime on defendant and to establish his own lack of complicity.

Moreover, additional evidence was independently discovered by the police that linked defendant to the murder. In investigations occurring shortly after Contreras disappeared, it was developed that he had been seen at 8:00 p.m. on May 20 at the St. Virgil's Church carnival in the company of an Hispanic male by David Kemp, a worker at the carnival. On June 15, 2001, Kemp positively identified defendant in a photo lineup as the male he had seen with Contreras. The placement of defendant with his victim at a time close to the victim's death would surely have provided probable cause to obtain a buccal swab from defendant.

All of this evidence was completely independent of the allegedly improper search. Marin is not mentioned in the search warrant affidavit, and no mention of Marin, the pants swap, or the vacant apartment appears in defendant's confession. Similarly, the evidence given by Kemp is wholly separate from that involved in the warrant application and subsequent confession.

We further conclude that because the police had probable cause to obtain a buccal swab from defendant as the result of his association with the sweater, the discovery of the blood-spattered pants, and defendant's identification by Kemp, the confession given by defendant after the DNA match had been disclosed to him did not constitute a fruit of the poisonous tree.

III.

After a tentative match was made between the semen found in Contreras's underpants and defendant's DNA on June 6, 2001, the police determined to arrest and interrogate defendant on the following day. A ruse was developed to insure defendant's presence, and on June 7 he was picked up by the police believing that he would be given day labor by Detective Sergeant Slockbower. Instead, he was taken to an interview room, where he was administered Miranda warnings and interrogated from approximately 9:30 a.m. to 3:30 p.m. Although an arrest warrant had been issued for defendant that morning when the DNA results were confirmed, defendant was not informed of that fact. However, in that period, he gave no information of an incriminating nature despite being told of the DNA match.

At approximately 3:45 p.m., the interrogation was taken over by Detective Gannon and Detective Sergeant Slockbower. At that time, Gannon requested that defendant again be advised of his Miranda rights, and after that occurred, Gannon advised defendant that he was being charged with various offenses including murder, aggravated sexual assault, kidnapping, and weapons offenses, and that he would be jailed. Following receipt of that information, defendant made various incriminating statements, which were then memorialized into an audiotaped statement.

In challenging the admissibility of those statements, defendant argued at the trial level and now on appeal that he did not knowingly and intelligently waive his rights. In that regard, he relies on the Court's decision in State v. A.G.D., 178 N.J. 56 (2003). The issue in A.G.D. was whether the defendant's waiver of his right to remain silent was valid in light of the fact that the detectives failed to inform him that an arrest warrant had been issued against him. Id. at 66. Following a review of precedent, the Court held for the first time, as a matter of State law, that

[t]hegovernment's failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights. . . . [A] criminal complaint and arrest warrant signify that a veil of suspicion is about to be draped on the person, heightening his risk of criminal liability. Without advising the suspect of his true status when he does not otherwise know it, the State cannot sustain its burden to the Court's satisfaction that the suspect has exercised an informed waiver of rights, regardless of other factors that might support his confession's admission.

 

[Id. at 68.]

 

Because A.G.D. had not been informed of his status, the Court suppressed his statements and reversed his conviction. Id. at 69.

Because A.G.D. was decided in 2003, well after the events in this case, defendant may only avail himself of the effect of its new rule if it is applied retroactively on at least a "pipeline" basis.4 However, we do not find retroactivity to be warranted.

A rule is "new" for the purpose of retroactive application if it "breaks new ground" and "was not dictated by precedent existing at the time the defendant's conviction became final." State v. Natale, 184 N.J. 458, 492-93 (2005) (quoting State v. Knight, 145 N.J. 233, 250-51 (1996) (internal quotations omitted)). A.G.D.'s rule, as "announced today," 178 N.J. at 68, clearly meets that criterion.

In determining whether to retroactively apply a new rule, three factors are generally considered:

(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice.

 

[State v. Dock, 205 N.J. 237, 255 (2011) (quoting Knight, supra, 145 N.J. at 251).]

 

Although those three factors have been extensively analyzed in decisions in which retroactivity was an issue, decisions "also indicate that the retroactivity determination often turns more generally on the court's view of what is just and consonant with public policy in the particular situation presented." Ibid. (quoting Knight, supra, 145 N.J. at 251).

When considering the three factors that we have set forth, the Court has observed that they are not of equal weight. State v. Cummings, 184 N.J. 84, 97 (2005). "The first factor, the purpose of the new rule, is often the pivotal consideration." State v. Burstein, 85 N.J. 394, 406 (1981). "The second and third factors come to the forefront of the retroactivity analysis when the inquiry into the purpose of the new rule does not, by itself, reveal whether retroactive application of the new rule would be appropriate." Knight, supra, 145 N.J. at 252.

In discussing whether the purpose of a new rule would be advanced by retroactivity, the Court has observed:

At one extreme, a new rule may be intended solely to deter police misconduct. Burstein, supra, 85 N.J. at 406. In such a case, retroactivity would almost certainly be denied because the new rule's deterrent purpose would not be advanced by retroactive application to past misconduct. Ibid. At the other extreme are new rules that "'overcome an aspect of a criminal trial that substantially impairs its truth-finding function' and which [raise] 'serious questions about the accuracy of guilty verdicts in past trials.'" Id. at 406-07 (internal citations omitted). In those cases, given the fundamental constitutional implications, the new rule is often given "complete retroactive effect, regardless of how much the State justifiably relied on the old rule or how much the administration of justice is burdened." Id. at 407.

 

In between those two extremes lies a third category of cases "where the new rule is designed to enhance the reliability of the factfinding process but the old rule did not 'substantially' impair the accuracy of that process." Id. at 408. In deciding the question of retroactivity with regard to this third category, "[courts] will not burden the criminal justice system with the post-conviction-relief applications [on collateral attack] and retrials that would result from a fully retroactive application of the [new rule]. Knight, supra, 145 N.J. at 258.

 

[State v. Purnell, 161 N.J. 44, 54 (1999) (footnote omitted).]

 

As the State points out, the present matter resembles State v. Reed, 133 N.J. 237 (1993). In that case, the Court announced a new rule that a person undergoing custodial interrogation must be advised that an attorney retained to represent him by a third party is available to assist him. Failure to give such advice rendered the defendant's waiver of the privilege against self-incrimination ineffective. Id. at 253-60.

In a subsequent decision, we held that Reed should not be retroactively applied, and our decision was affirmed by the Supreme Court. State v. Abronski, 281 N.J. Super. 390 (App. Div. 1995), aff'd o.b., 145 N.J. 265 (1996). In reaching our decision, we evaluated the three factors that we have just been discussing. With respect to the first factor, the purpose of the new rule, we determined that it both enhanced the reliability of confessions and deterred police misconduct. Id. at 400. However, we found that the "old" rule that permitted the presence or availability of counsel to be withheld did not "substantially" impair the accuracy of the truth-finding process. Id. at 400-401 (quoting Burstein, supra, 85 N.J. at 408). Because the purpose of the new rule did not, by itself, suggest whether retroactive application would be appropriate, we then balanced the extent to which the old rule impaired the reliability of the truth-finding process against the State's reliance on the old rule and the disruptive effect that retroactivity would have on the administration of justice. As a result of that balancing, we concluded that the latter considerations substantially outweighed any potential of the old rule to impair the reliability of confessions given pursuant to it. Id. at 401-02. As a consequence, we determined that Reed should not be applied retroactively to confessions rendered prior to the date of that decision. Id. at 402; see also Abronski, supra, 145 N.J. at 268.

We discern no basis for departing from the reasoning of Abronski in the present case, determining that the old rule did not substantially impair the accuracy of the truth-finding process, and that any such impairment is outweighed by the State's reliance on the old rule and the potential disruption to the administration of justice if some form of retroactivity were to be recognized.

Moreover, we note that in this case, the fact that defendant had become a target of the police's investigation was revealed to him early in the course of the interrogation on June 7 when the police disclosed that a DNA match had been determined to exist between the semen in Contreras's underpants and defendant's DNA and exhaustively explained to defendant the scientific principles involved in analyzing DNA. Further, at 3:45 p.m., before any incriminating statements were made, Detective Gannon in fact informed defendant of the charges pending against him in conjunction with the administration of renewed Miranda warnings and advised defendant that he would be jailed.5 Although defendant was informed of the charges after he had waived his Miranda rights, he clearly understood that "a veil of suspicion" was about to be draped on him, heightening his risk of criminal liability. A.G.D., supra, 178 N.J. at 68. Under the circumstances, even if A.G.D. were retroactively applied, we find that its precepts were substantially honored by the police in this matter. See State v. Henderson, 397 N.J. Super. 398, 404 (App. Div. 2008), aff'd as modified on other grounds, ___ N.J. ___ (2011). As a consequence, we find no error in the trial judge's determination not to suppress defendant's incriminating statements.

IV.

In his final argument, defendant contends that the trial judge erred in failing to grant a mistrial after the State's rebuttal witness, Dr. Schlesinger, accused the defense's insanity expert, Dr. Apolito, of "malingering by proxy," thereby fabricating a defense on behalf of defendant. Instead, the judge struck the comment and issued a curative instruction that

Dr. Apolito had not been hired to create a defense for defendant. He had simply given an opinion that differed from that of Dr. Schlesinger a not unusual circumstance. It was up to the jury to determine whose opinion to accept. Further, in his charge, the judge stated:

To the extent, if at all, from the testimony of Dr. Schlesinger you have the impression that the defense hired Dr. Apolito to create a defense for the defendant, I have stricken that from your consideration. There is absolutely no evidence of that at all in this case. The experts have varied opinions and you have to decide what weight, if any you give to either opinion, whether that be great or slight. Once again, you are the sole determiners of the facts.

 

We do not accept defendant's position that a mistrial was legally required. "The determination by the trial court to abort a criminal proceeding where jeopardy has attached is not one to be lightly undertaken, since the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one." State v. Rechtschaffer, 70 N.J. 395, 408 (1976) (quoting Illinois v. Somerville, 410 U.S. 458, 471, 93 S. Ct. 1066, 1073, 35 L. Ed. 2d 425, 435 (1973)). Whether to grant a mistrial is left to "'the sound discretion of the court[,]'" and "'is reviewable only for an abuse of discretion.'" State v. Winter, 96 N.J. 640, 647 (1984) (quoting State v. Witte, 13 N.J. 598, 611 (1953), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 2d 1097 (1954)). Mistrial as of right should only be granted when "'the vice is plainly ineradicable by an instruction to the jury[.]'" Ibid.

Our review of Dr. Schlesinger's testimony, together with the judge's curative instruction, satisfies us that this was not a circumstance where a right to a mistrial existed. In reaching this conclusion, we note that the preponderance of Dr. Schlesinger's statement was premised on the manifest and demonstrated weaknesses in Dr. Apolito's testimony and on his own published study of examiner bias.6 To that extent, it thus had a basis in the record. Indeed, it can be argued that Dr. Schlesinger's testimony in that regard was not objectionable. See State v. Pontery, 19 N.J. 457, 472 (1957) ("[A]s a general rule, any fact which bears against the credibility of a witness is relevant to the issue being tried, and the party against whom the witness is called has a right to have that fact laid before the jury in order to aid them in determining what credit should be given to the person testifying"); State v. Smith, 101 N.J. Super. 10, 13 (App. Div. 1968) ("A witness may be impeached by showing his bias"), certif. denied, 53 N.J. 577 (1969); see also State v. Gorrell, 297 N.J. Super. 142, 148 (App. Div. 1996) (same).

However, to the extent that the statement was objectionable, in that it suggested that Dr. Apolito manufactured a defense for defendant, the statement was brief, it was immediately stricken, and a strong curative instruction was given. In our view, the trial judge did not abuse his discretion in determining that Dr. Schlesinger's single comment that some experts feel their task is "to help the defendant or create a defense," while unfortunate, did not constitute the type of prolonged, sustained and vitriolic attack on the character and integrity of the defense's expert that has been sufficient to cause mistrials in other cases. Further, to the degree that the comment may have inadvertently created prejudice, the judge's prompt curative instruction, issued immediately after the purportedly prejudicial testimony and repeated in the jury charge, sufficiently addressed any vice in the testimony. We therefore find that the judge properly exercised his discretion in denying a mistrial.

In summary, we find none of the arguments raised by defendant to be sufficient to warrant reversal and a new trial.

Consequently, we affirm defendant's convictions.

Affirmed.

1 See L. 2007, c. 204.

2 Jury selection took place between September 8 and 29, 2008; trial took place between October 1 and 27; sentencing occurred on February 6, 2009. Disposition of the matter was delayed by the multiple motions filed by the parties and subsequent appeals from the decisions on those motions.

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

4 A court may decide to apply a new rule prospectively only, to the case under consideration and all future cases, to "pipeline" cases that have not been concluded by final appeal, or to all cases, regardless of whether final judgment had been entered and all avenues of appeal have been exhausted. State v. Dock, 205 N.J. 237, 256 (2011) (citing State v. Knight, 145 N.J. 233, 251 (1996)).

5 Defendant argues that he was not informed that an arrest warrant had issued. However, he was informed that he was to be jailed on specified charges. The fact that a warrant had issued could thus be logically deduced from the information given.

6 See Louis B. Schlesinger, Incompetent Defendant, Incompetent Examiner, or "Malingering by Proxy"?, 9 Psychol. Pub. Pol'y & L. 381 (2003).