STATE OF NEW JERSEY v. JERRELL MURRAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3695-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERRELL MURRAY,

Defendant-Appellant.

________________________________________________

June 6, 2013

Submitted April 30, 2013 Decided

Before Judges Messano and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 11-01-0032.

Zucker, Steinberg, Sonstein & Wixted, P.A., attorneys for appellant (Jeffrey C. Zucker, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following the denial of his motion to suppress evidence, defendant Jerrell Murray pled guilty to second-degree certain persons not to possess firearms, N.J.S.A. 2C:39-7b(1). Defendant was sentenced to a five-year term of imprisonment with a five-year period of parole ineligibility.1 Ibid. The judge granted defendant's motion for bail pending appeal.

Before us, defendant raises the following issues for our consideration:

Point I: The Trial Court Considered and Applied Facts Not in Evidence

Point II: The Trial Court Failed to Make Any Credibility Findings in its Opinion

Having considered these arguments in light of the record and applicable legal standards, we reverse and remand the matter for further proceedings consistent with this opinion.

We briefly synopsize the testimony at the evidentiary hearing on defendant's motion to suppress. The State called two witnesses, Willingboro police officer John Michener and detective Michael Dalesio.

Michener testified that, at about 11:40 p.m. on November 4, 2010, he responded to a dispatch advising that "a Civic was being chased by a tan Durango." Michener saw defendant exit a Durango that had just been parked in front of a home on Galton Lane; the car was facing in the wrong direction. Defendant approached Michener and told him that he was coming home from work and heard gunshots. Defendant drove around the block to see if he could ascertain the source and, finding nothing unusual, he drove home and parked in front of his house. Michener discovered there were warrants for defendant's arrest based on outstanding traffic tickets.

Michener arrested defendant, handcuffed him, placed him in another officer's vehicle and responded to a location around the corner, on General Lane, where other officers were interviewing the occupants of a Civic. The people in the Civic claimed that a Durango had struck their car, and they heard "a loud pop coming from . . . the Durango."

Detective Dalesio responded to the area on a call of "a road rage incident." Dalesio met Michener and discussed the possible involvement of a "firearm." Dalesio went to Galton Lane to "check for a weapon . . . and also to look at the [Durango]" to verify any damage to the vehicle. Using his flashlight, Dalesio looked in the Durango, saw a firearm on the "front passenger floor board" and seized it. Before he did, other officers photographed the inside of the Durango. Dalesio identified photos of the weapon as it lay in the car.

Defendant produced two witnesses at the hearing. Roberto Reyes lived across the street from defendant on Galton Lane and came out of his house when he saw police cars in the street. Reyes testified that he saw "the whole chain of events . . . ." He saw defendant being arrested and placed in the police vehicle. Reyes then observed an officer enter defendant's car through the passenger door, shine a flashlight on the interior of the car and open the glove compartment. When the officer emerged, Reyes saw he had a pistol. Reyes saw the officer go back into the car, and then witnessed police photograph the interior of the vehicle.

Tamika Chambliss, defendant's wife, testified that defendant routinely returned home from work around 11 p.m. On the night in question, she went outside when she heard her dog barking. She witnessed the officers arrest defendant, after which Chambliss returned inside and continued to look out the window of her home. She observed a "detective" arrive at the scene with a flashlight. Defendant had already been taken away from the scene.

Chambliss again exited her home, approached the Durango and spoke briefly to the detective before re-entering her home. From the window, she saw the detective, using a flashlight, enter the passenger side of the Durango, open the glove compartment and take out a gun.

At the conclusion of the testimony, the judge agreed to have counsel return and present oral argument on the motion. That occurred approximately seven weeks after the hearing. The judge reserved decision, indicating he intended to issue a written opinion. He did so approximately three weeks later.

In his written decision, the judge recounted the conflicting testimony of the witnesses. He also noted that on November 5, Dalesio

conducted an interview with . . . [d]efendant . . . . [d]efendant confessed to possessing the weapon[] and admitted to being the only person in the car during the incident. . . . [d]efendant admitted to firing a gunshot to scare the victims.

The judge then reviewed the competing legal arguments. The State contended the weapon was legally seized pursuant to the "plain view" exception to the warrant requirement. The judge noted that "[i]n juxtapose, . . . [d]efendant argue[d] that the plain view [wa]s impossible given the fact that the handgun was in a locked glove compartment."

At the end of the opinion, in that portion labeled "Conclusion," the judge simply wrote:

The Defense makes their arguments with strong conviction and supporting case law. However, based on the evidence presented, it [is] this Court's decision to follow the Prosecutor's factual presentation. In doing so, the Plain View Doctrine is applicable and the search of the vehicle was constitutionally valid.

In the conforming order entered three weeks later, the judge stated "the State has established . . . that the handgun . . . was seized pursuant to the plain view exception to the warrant requirement." Defendant entered his guilty plea, and this appeal followed.

Defendant first contends it was inappropriate for the judge to reference defendant's subsequent "confession." The State argues the judge did so only to place defendant's motion in the proper "context." As we explain in greater detail below, it is unclear to us whether the judge attached any significance to defendant's admission in reaching his decision on the motion. In any event, the facts surrounding defendant's admission were never adduced at the hearing, and, therefore, it was improper to include them in the written decision on the motion. See, e.g., State v. Turcotte, 239 N.J. Super. 285, 299 (App. Div. 1990) (noting on appeal this court "may only consider whether the motion to suppress was properly decided based on the evidence presented at that time"). More importantly, whether defendant subsequently confessed is irrelevant to determining whether the seizure of the gun was constitutionally permissible.

Our decision, however, is compelled by a more significant omission in the judge's written decision. It is axiomatic that pursuant to Rule 1:7-4(a), the judge was required to "find the facts and state [his] conclusions of law thereon . . . ." The "rule has been interpreted as requiring a trial court sitting without a jury to 'state clearly its factual findings and correlate them with the relevant legal conclusions.'" State v. Locurto, 157 N.J. 463, 470 (1999) (quoting Curtis v. Finneran, 83 N.J. 563, 570 (1980)). As the Court explained:

Failure to perform that duty constitutes a disservice to the litigants, the attorneys and the appellate court. Naked conclusions do not satisfy the purpose of R[ule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions.

[Curtis, supra, 83 N.J. at 569-70 (quotation marks and internal citations omitted).]

This is particularly true in these circumstances because, pursuant to our standard of review regarding denial of a motion to suppress evidence, "[a]n appellate court 'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

In this case, the judge made no credibility findings at all. Instead, in his "[c]onclusion," he simply stated he was "follow[ing]" the State's factual presentation. This was inadequate. As the Court explained in Locurto, supra, 157 N.J. at 475, while an expansive statement of the "subjective analyses of factors such as demeanor and appearance to support credibility determinations on each and every witness presented" is unnecessary, the judge must nonetheless sufficiently state, in a general sense, his credibility determinations.

We therefore agree with defendant's second point, i.e., that the judge failed to make any credibility determinations. Because the entire motion turned upon the competing, and diametrically opposed, testimony of the State's and defense witnesses, this omission compels us to reverse and remand the matter for further proceedings.

On remand, the judge shall expressly comply with the requirements of Rule 1:7-4(a). If, after doing so, he concludes the credible evidence supports application of the plain view exception to the warrant requirement, he shall enter the appropriate order denying defendant's motion to suppress.2 Defendant is free to file a subsequent appeal in a timely fashion.

If, however, the judge determines the credible facts do not support application of the plain view exception to the warrant requirement, he shall grant defendant's motion to suppress and vacate his guilty plea. The State shall then be free to decide whether to continue prosecution of the indictment.

Reversed and remanded. We do not retain jurisdiction.

1 We have not been supplied with a transcript of the plea allocution or sentencing. However, the State asserts the sentence was in accordance with the plea agreement, which is confirmed by the plea form in the State's appendix.

2 Before the motion judge, the State argued that no other exception to the warrant requirement was applicable. The prosecutor stated, "We're just arguing straight plain view."