STATE OF NEW JERSEY v. JAMAAL A. SHOCKLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01063-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMAAL A. SHOCKLEY,

Defendant-Appellant.

______________________________

August 13, 2014

Submitted April 8, 2014 Decided

Before Judges Messano and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 11-03-00161.

Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Jamaal A. Shockley appeals from his conviction after a trial in which a jury found him guilty of charges relating to his possession of a controlled dangerous substance (CDS) and eluding police officers. The Law Division sentenced him to a term of eight years with four years of parole ineligibility as to the eluding, and a concurrent term of six years with three years of parole ineligibility as to the CDS charges.

Defendant's CDS charges arose from a corrections officer's alleged discovery of crack cocaine in defendant's clothing, after defendant had taken them off. Defendant had initially been wearing the clothing when he entered the county jail, and police and corrections officers had patted down and searched defendant three separate times while still in his clothing. Thereafter, defendant removed his clothing while being processed for incarceration in the county jail. The CDS was subsequently discovered in defendant's sweatshirt pocket, outside defendant's presence. At trial, corrections officer Robert Brooks, testified to the jury that when he told defendant about the discovery, defendant remained silent.

On appeal, defendant argues:

POINT I

THE STATE COMMITTED REVERSIBLE ERROR BY ELICITING TESTIMONY AS TO MR. SHOCKLEY'S POST-ARREST SILENCE WHEN HE WAS CONFRONTED WITH THE SUSPECTED COCAINE BY BROOKS. U.S. CONST., AMENDS. V, XIV. (Not Raised Below).

POINT II

THE IMPOSITION OF A DISCRETIONARY PAROLE DISQUALIFIER WAS UNWARRANTED AND IT THEREFORE SHOULD BE VACATED.

POINT III

A REMAND IS NECESSARY TO DETERMINE IF MR. SHOCKLEY SHOULD RECEIVE ADDITIONAL JAIL CREDITS UNDER THE NEWLY DECIDED COMPANION CASES OF STATE V. HERNANDEZ AND STATE V. ROSE.

In a supplemental pro se brief, defendant also argued:

POINT 1

Trial attorney rendered ineffective assistance of counsel in violation of the 6th Amendment of the U.S. Constitution.

A. Trial counsel failed to conduct a pre-trial investigation.

B. Trial counsel failed to timely object to testimony that violated the defendant's right to remain silent.

POINT 2

The six year term for conviction of third degree crime exceeds the statutory maximum and is illegal.

We have considered these arguments in light of the record and we agree with defendant that the officer's testimony about defendant's silence violated defendant's constitutional right to remain silent. We therefore reverse and vacate defendant's conviction for the charges relating to his conviction for possession of CDS (counts one and two of his indictment),1 and we remand this matter to the Law Division for a new trial on those counts, as well as for re-calculation of defendant's jail credits after consideration of the Supreme Court's holding in State v. Hernandez, 208 N.J. 24 (2011).

I.

A Salem County Grand Jury returned an indictment charging defendant with third-degree possession of CDS (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS (cocaine), with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count two); and second-degree eluding a law enforcement officer, N.J.S.A. 2C:29-2(b) (count three). Defendant's conviction of all of these charges arose from his arrest for eluding police while riding a dirt bike after he ignored their signal to stop. Instead of pulling over, defendant rode away from the police at a high rate of speed. While doing so, he failed to heed stop signs on at least fourteen occasions. Eventually, the pursuit ended when defendant fell off his bike while attempting to turn. Even then, defendant continued to avoid his apprehension by running away from the police. It was not until one of the officers tackled defendant that he was apprehended and arrested.

At the time of his arrest, defendant was wearing dark colored jeans, a hooded sweatshirt, a black jacket and a ski mask. The arresting officer conducted a pat down to ensure defendant did not have any weapons. The officer did not go into defendant's pockets. No weapons or CDS were found on defendant.

The police initially took defendant to their headquarters, but because he complained of an injury to his shoulder, they eventually had an ambulance take him to a hospital. While at the hospital, one of the accompanying officers searched defendant's jacket while it was not being worn by defendant. The officer did not find anything in defendant's pockets. He did not examine any other clothing that belonged to defendant.

After doctors treated and released defendant, the police took him to the county jail. Before leaving, the officers checked defendant's shoes and jacket. Later, Brooks processed defendant. According to Brooks, defendant was only wearing a hooded sweatshirt but not a jacket when he arrived at the jail. Defendant was thoroughly searched and patted down by Brooks before defendant removed his clothes. This search did not disclose any contraband, including CDS.

Later, after defendant's clothing had been removed from him and he was incarcerated, Brooks discovered "14 bags of a rock-like substance in a purple Crown Royal Bag" in defendant's sweatshirt's right pocket. The substance later tested positive for cocaine. Brooks contacted the police who ultimately charged defendant with CDS offenses. Brooks also notified defendant of his discovery. As Brooks testified, he "eventually" told defendant. When asked by the prosecutor, "Did [defendant] say anything [to you]?," Brooks testified, "No, sir."

II.

In response to defendant's argument that it was plain error to permit Brooks to testify as to defendant's silence when confronted with Brooks' discovery, the State argues that defendant's silence was not "protected silence" because Brooks was not required to advise defendant of his Miranda2 rights before telling him that Brooks discovered cocaine in his clothing and, if it were protected, "it was clearly harmless in the context of the entire trial." We disagree.

Defendant did not raise an objection to Brooks' testimony at trial. "In the absence of an objection by defendant before theLaw Division,we reviewfor plainerror." State v. Stas, 212 N.J. 37, 59 (2012) (citing R. 2:10-2). "Under this standard, an error is reversible if it was clearly capable of producing an unjust result." Ibid. (quotingState v.Taffaro, 195N.J. 442,454 (2008)) (internal quotation marks omitted). Applying that standard, we are satisfied that defendant's conviction for CDS offenses must be reversed, because Brooks' impermissible testimony about defendant's silence was clearly capable of persuading the jury that defendant was not surprised by Brooks' alleged discovery of CDS in his clothing. The inference is inescapable, especially after considering that there was no other evidence of defendant's guilt, except Brooks' testimony.3

"New Jersey['s] state statutory and common law privilege against self-incrimination [is] codified in N.J.S.A. 2A:84A-19 and N.J.R.E. 503." Stas, supra, 212 N.J. at 50. The statute and the rule "provide that 'every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate.'" Id. at 50-51.

As a general matter, the privilege against self- incrimination embedded in the Fifth Amendment of the United States Constitution has been construed to preclude the State's admission of a defendant's post-arrest silence following the administration of Miranda warnings. Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91, 98 (1976). That protection extends even further to certain evidentiary uses of a defendant's pre-arrest silence. In New Jersey, a suspect has "the right to remain silent when in police custody or under interrogation." State v. Muhammad, 182 N.J. 551, 571 (2005) (quoting State v. Brown, 118 N.J. 595, 610 (1990)) (internal quotations omitted). Thus, under New Jersey law, a defendant's "silence 'at or near' the time of his arrest may not be intro-duced to impeach his credibility." Ibid. (quoting Brown, supra, 118 N.J. at 610); see also State v. Deatore, 70 N.J. 100, 108-09 (1976).

"[T]he admissibility of a defendant's pre-arrest silence is not determined based on whether the silence arose before or after the police administered Miranda warnings." Muhammad, supra, 182 N.J. at 569. "New Jersey law . . . focuses on the circumstances of the defendant's silence." Stas, supra, 212 N.J. at 53. "Our state law privilege does not allow a prosecutor to use at trial a defendant's silence when that silence arises 'at or near' the time of arrest, during official interrogation, or while in police custody." Muhammad, supra, 182 N.J. at 569 (emphasis added). "Barring the use of silence 'at or near' the time of arrest avoids the often murky inquiry into pinpointing the precise moment a suspect is placed in custody or under arrest."4 Ibid.

In Muhammad, supra, 182 N.J. at 567 (internal quotation marks and citations omitted) (emphasis added), the Court explained,

[T]he right of . . . a suspect to remain silent when in police custody or under interrogation has always been a fundamental aspect of the privilege in this state." When in custody, a suspect is privileged to say nothing" at all to the police and "is under no duty to give a statement. . . . The reason for a suspect's silence in a police dominated setting cannot easily be discerned. Because we cannot know whether a suspect is acquiescing to the truth of an accusation or merely asserting his privilege, such silence is equivocal. We have recognized that a likely explanation for a suspect's silence while under official interrogation or in custody may be that he is exercising his right to remain silent. Therefore, we do not permit a jury to infer guilt from that silence.

Defendant was not only in custody but actually in jail when Brooks confronted him about the CDS. As a corrections officer, Brooks represented law enforcement within the institution. Under those circumstances, anything defendant might have said or, as in this case, his silence, was in response to a law enforcement officer's conversation with him about a crime he was suspected of having committed. The use of his silence at trial therefore violated his constitutional right against selfincrimination.

Also, there was absolutely no probative value to Brooks' testimony that defendant remained silent when he was confronted with the CDS discovery. The only possible purpose it served was to create an impermissible inference by the jurors that his silence was evidence of his guilt. That impermissible inference could have played a significant role in the jury's determination as the CDS was not discovered while actually in defendant's possession. The admission of defendant's silence, therefore, constituted plain error necessitating reversal of defendant's conviction on the CDS charges, as the prosecutor's violation of defendant's state law privilege against self-incrimination was "clearly capable of producing an unjust result." Muhammad, supra, 182 N.J. at 573 (citing R. 2:10-2).

Defendant also argues that the court's imposition of a four year parole disqualifier on his eight-year term of imprisonment for his conviction of second-degree eluding was "unwarranted" because the court did not state that the aggravating factors it found substantially outweighed the non-existent mitigating factors at defendant's sentencing. We disagree.

The court sentenced defendant to a discretionary term of parole ineligibly pursuant to N.J.S.A. 2C:43-6(b) after the court found that aggravating factors three, N.J.S.A. 44:-1(a)(3) (risk of reoffending), six, (a)(6) (extent of criminal record and seriousness of convictions), and nine, (a)(9) (need for deterrence), applied and that there were no applicable mitigating factors, N.J.S.A. 2C:44-1(b). While the court did not explicitly state that it found the aggravating factors substantially outweighed the mitigating factors, it did expressly cite to N.J.S.A. 2C:43-6(b) as the authority for the period of parole ineligibility. We are satisfied that the court provided "a detailed analysis of the crime, the defendant and the reasons for sentencing." State v. Porter, 210 N.J. Super. 383, 396-97 (App. Div.), certif. denied, 105 N.J. 556 (1986). That information, together with the court's express reference to the statute, satisfied the court's obligation to find that the aggravating factors substantially outweighed the mitigating factors. N.J.S.A. 2C:43-6(b).

Finally, defendant claims he is entitled to jail credits in addition to the forty-three days awarded at his sentencing. The State agrees that he may be entitled to additional credits, but disagrees with the amount claimed by defendant. Our review of the record does not provide us with adequate information to make a determination about defendant's jail credits. We therefore agree with the parties that a remand is necessary so that the parties can present their arguments and proof as to this issue and the court can make findings consistent with the Supreme Court's decision in Hernandez, supra, 208 N.J. 24.

Reversed as to counts one and two of the indictment, and remanded for a new trial as to those counts and re-calculation of defendant's jail credits. We do not retain jurisdiction.

1 Defendant does not challenge his conviction of eluding police officers. As to that charge, he only argues that the imposition of a discretionary parole ineligibility period pursuant to N.J.S.A. 2C:43-6(b) was unwarranted. We address that argument, infra.

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

3 Even defendant's clothing was not introduced into evidence.

4 The limitation on the use of a defendant's pre-arrest silence is not, however, absolute. Our Supreme Court has held that "once a defendant chooses to take the stand in his or her own defense[,] pre-arrest silence has a bearing on the credibility of the defendant." State v. Pepshi, 162 N.J. 490, 493 (1999) (citing Brown, supra, 118 N.J. at 613). The Court reasoned that "there is no legal constraint one way or the other either to speak or not to speak prior to an arrest[; c]onsequently, evidence of pre-arrest silence, particularly in the absence of official interrogation, does not violate any right of the defendant involving self-incrimination." Brown, supra, 118 N.J. at 613 (emphasis added). "Under New Jersey law, a defendant's pre-arrest silence can be used for impeachment purposes (1) 'if that silence significantly preceded his arrest and did not arise in a custodial or interrogation setting,' and (2) if a jury could infer that a reasonable person in the defendant's position would have come forward and spoken." State v. Taffaro, 195 N.J. 442, 455 (2008) (quoting Muhammad, supra, 182 N.J. at 571-72). In Stas, supra, 212 N.J. at 58 (internal citations omitted) (emphasis added), the Court explained,

[O]ur case law teaches that pre-arrest silence that is not "at or near" the time of arrest, when there is no government compulsion and the objective circumstances demonstrate that a reasonable person in a defendant's position would have acted differently, can be used to impeach that defendant's credibility with an appropriate limiting instruction. It cannot, however, be used as substantive evidence of a defendant's guilt.