STATE OF NEW JERSEY v. BRUCE MORRIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRUCE MORRIS, a/k/a BRUCE

JACKSON, a/k/a CHICKEN WING,

Defendant-Appellant.

______________________________

March 12, 2014

Submitted October 22, 2013 Decided

Before Judges Reisner and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-08-1077.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Bruce Morris pleaded guilty to third-degree possession of cocaine, N.J.S.A.2C:35-10(a)(1), after the court denied his motion to suppress evidence following a lengthy plenary hearing in 2010. Pursuant to his plea agreement, the court sentenced defendant to three years, with one year of parole ineligibility. The court also dismissed the remaining eight counts of the indictment charging defendant with third-degree resisting arrest, N.J.S.A.2C:29-2(a)(3), and other third-degree CDS crimes, including distribution, possession with intent to distribute, and doing so in a school zone. N.J.S.A.2C:35-5(a)(1) and -5(b)(3), and N.J.S.A.2C:35-7. Defendant now appeals from the denial of his suppression motion, based on the court's admission into evidence, at defendant's request, of the transcript of the plea allocution of his co-defendant, Weldon F. McWilliams.1 Having reviewed these arguments in light of the facts and applicable law, we affirm.

I.

We defer to the trial court's factual findings on a motion to suppress. State v. Elders, 192 N.J.224, 254 (2007). The court credited the testimony of Paterson Police narcotics detective Anthony DeGiglio, who arrested defendant after he observed defendant engaged in a hand-to-hand transaction with McWilliams. The court rejected as incredible the testimony of defendant and an eyewitness Rhonda Young, who had custody of McWilliams's daughter. The court also considered the allocution of McWilliams, who pleaded guilty in October 2008.

DeGiglio testified that he was driving an unmarked police vehicle at around 9:00 p.m. on April 21, 2008, accompanied by three other officers, near 10th Avenue and 26th Street in Paterson. He was responding to complaints of drug-dealing in the area. He observed defendant, who was on foot, flag down McWilliams by using a hand motion. Based on his experience, DeGiglio believed a drug-transaction was about to occur.

DeGiglio then parked nearby, maintaining an unobstructed view of the two men. He saw defendant receive what appeared to be paper currency from McWilliams. He then observed defendant remove from his front right pants pocket a large item, remove a smaller item from within it, and hand it to McWilliams.

Believing the men had consummated a drug transaction, DeGiglio drove up to the two men, the officers exited, and DeGiglio identified himself as a police officer. DeGiglio confronted defendant, who had his hands in his pocket. While defendant refused to obey DeGiglio's command that he remove his hands, another officer reported that McWilliams had surrendered two bags of suspected CDS. DeGiglio then advised defendant he was under arrest. He and another officer then removed defendant's hands, and DeGiglio seized a clear knotted plastic bag from defendant's pocket. The bag contained forty-six bags of crack cocaine. Defendant also possessed five glassine bags of heroin. Defendant resisted the officers, who had to force him to the ground to handcuff him.

DeGiglio testified that he seized $25 from defendant, but then returned it to him because police policy was not to confiscate less than $50. A county sheriff's officer testified that he did not find currency on defendant during intake at the county jail. However, the court found that there were many potential reasons why the money was not discovered.

DeGiglio also found no crack pipes in defendant's possession. He denied that Young was present at the scene. He also insisted that defendant was on foot and not riding a bicycle.

The court rejected defendant's and Young's contrary versions of events. Young testified that she lived near the location of the arrest. She happened to drive by, saw McWilliams, and stopped to ask him why he was in the area. Defendant came by the two on a bicycle and greeted McWilliams. Young testified she observed no transaction between the two men. Police then appeared and seized both men. Young saw a wrapped item on the ground by defendant's feet. Young asserted a female officer searched her and her vehicle, and then she was permitted to leave.

In rejecting Young's testimony, the court noted that she had not come forward as a witness until October 2009. Her version of events was undermined by the testimony of a female police officer on duty at the time, and the lack of a corroborating police report. The court also found it implausible that Young would ask what McWilliams was doing in the area.

Defendant testified that he was merely talking to McWilliams by a car at the intersection. Defendant had arrived on his bicycle. He admitted he was a crack user at the time. Defendant claimed he asked McWilliams if he could see his phone, which was in his hand. Defendant denied flagging down McWilliams. He also denied that he exchanged drugs for money with McWilliams.

According to defendant, after the police arrived, they immediately threw him to the ground and seized drugs. Defendant asserted he possessed two crack pipes, five bags of heroin, a couple bags of cocaine, and other cocaine he had stolen from a drug-dealer's stash. Defendant admitted to numerous prior convictions, which the court found undermined his credibility.

Defendant had called McWilliams as a witness, but he ultimately invoked his privilege against self-incrimination. Defense counsel had proffered that McWilliams would recant significant parts of his plea allocution and deny that he purchased drugs from defendant. In lieu of his testimony, defense counsel asked the court to take judicial notice of McWilliams's plea testimony, which in some respects corroborated DeGiglio's testimony, but in several respects was at odds with it.

In his allocution, McWilliams initially admitted that he purchased two bags of cocaine at the corner of 10th Avenue and 26th Street on April 21, 2008, from a man he did not previously know. However, in contrast to DeGiglio's version, McWilliams testified he was standing by a car, the seller approached him on a bike, and did not flag him down. McWilliams also stated he was arrested before the "actual transaction." The seller gave him the cocaine, and McWilliams had money in his hand, but he did not give it to the seller. After conferring with counsel, McWilliams stated that he might have been mistaken about the bicycle, by confusing the April 2008 incident with one in August 2008, which gave rise to a separate charge. He stated the seller resisted arrest, but he did not.

The court declined to take judicial notice of McWilliams's plea hearing, reasoning that doing so would implicitly credit McWilliams's testimony. However, as an alternative, defendant asked the court to admit the transcript of the allocution into evidence, stating, "I want to offer it into evidence." The judge initially stated, "You can offer it into evidence . . . ." However, the State voiced an objection and the court deferred a final decision on the matter.

Defense counsel renewed his request at the close of his case, stating,

Now there was some other documents that . . . I wanted the Court to accept as evidence as well. . . . I marked them myself informally as appendices.

And we had some discussion concerning them. And one of the items . . . was the Plea Hearing of Weldon McWilliams. I wanted to offer that formally into evidence. It's been attached to the papers that I submitted to the Court.

The State objected on the ground that the plea hearing was hearsay. The assistant prosecutor also recalled that the court had previously ruled that the transcript was inadmissible.

Defense counsel responded that McWilliams's statement was "independently admissible" as prior sworn testimony of a witness; he had become unavailable because he had asserted his privilege not to testify after the State threatened to prosecute him for perjury if he recanted his testimony at his plea hearing; and the State had the opportunity to cross-examine him at his plea hearing. Counsel also recalled, contrary to the assistant prosecutor, that the court had agreed to admit the transcript and would determine what it deemed was credible and not.

The judge candidly could not recall his prior ruling. The transcript or tape was not immediately available. The court raised the possibility that it would await some evidence of its prior ruling, or it would re-decide the issue. But, the court did not definitively resolve the matter.

The court next addressed the issue in the course of its decision, when it confirmed that it would consider McWilliams's allocution. But, the court ultimately gave it little weight. As the admission of McWilliams's testimony is the central point of defendant's appeal, we quote at length from the court's discussion:

And one last item that I'll . . . consider, or did consider was the factual basis by Mr. McWilliams. Admittedly that . . . factual basis . . . could be a problem. Now I can understand the defense counsel's arguments in that regard.

. . . .

I've listened to . . . hundreds of factual bas[e]s over the years. And they don't always match the police report. I find a lot of defendants who put . . . a factual basis on the record through a bare bones minimum. And as guilty as that person might be, and even if they know it, . . . they're still hesitant to admit what they did.

And even more so with respect to . . . putting a factual basis in against the co-defendant where most of the time they don't want to do that. Most defendants don't want to walk out of this courtroom being known as a rat. So if . . . Mr. McWilliams sounded hesitant to speak about Mr. Morris, that's not so surprising to me based upon my experience. That he was [attempting] to put in a bare bones factual basis, both about himself, and probably about . . . Mr. Morris.

The day after the court denied the motion to suppress, defendant entered his guilty plea. The court imposed sentence on May 7, 2010. This appeal followed. Defendant presents the following point for our consideration:

POINT II

THE MOTION JUDGE IMPROPERLY USED THE CODEFENDANT'S FACTUAL BASIS FROM HIS GUILTY PLEA TO SWAY HIS JUDGMENT IN HOLDING THAT HE FOUND THE STATE'S EVIDENCE AT THE MOTION TO SUPPRESS TO BE MORE BELIEVABLE THAN THE DEFENDANT'S.2

II.

Defendant argues that the court erred in admitting the transcript of McWilliams's plea. We disagree.

Defense counsel vigorously requested that the court admit the transcript of McWilliams's plea, over the State's objection. As an initial matter, we reject defendant's argument that counsel only sought the admission into evidence of excerpts of McWilliams's testimony that contradicted the police version of events. As the above-quoted statements indicate, defense counsel sought the admission of the transcript without limitation.

Since defendant asked the court to admit the transcript in evidence, the invited error doctrine bars defendant from complaining now that the court granted his request.

We have stated that a "defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." State v. Pontery, 19 N.J.457, 471 (1955). Thus, when a defendant asks the court to take his proffered approach and the court does so, we have held that relief will not be forthcoming on a claim of error by that defendant. On another occasion, we characterized invited error as error that defense counsel has "induced." State v. Corsaro, 107 N.J.339, 346 (1987).

[State v. Jenkins, 178 N.J.347, 358 (2004).]

See also State v. Ramseur, 106 N.J.123, 282 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993).

We recognize that a court will not "automatically apply the doctrine [of invited error] if it were to cause a fundamental miscarriage of justice." N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J.328, 342 (2010) (internal quotation marks and citation omitted). However, we find none here. While McWilliams's out-of-court statements were unquestionably hearsay, N.J.R.E.801(c), which is generally inadmissible unless it satisfies an exception, N.J.R.E.802, the rule against hearsay does not apply in a suppression hearing. State v. Wright, 431 N.J. Super.558, 565 n.3 (App. Div. 2013) (citing N.J.R.E.102(a)(2)(E)); see alsoN.J.R.E.104(a) (stating that the Rules of Evidence do not apply to a preliminary hearing to determine the admissibility of evidence, except N.J.R.E.403 and claims of privilege).

Defendant also asserts that admission of the allocution infringed upon his constitutional right of confrontation. However, the confrontation right set forth in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), is inapplicable in a preliminary suppression hearing, as opposed to a trial on the merits. State v. Williams, 404 N.J. Super. 147, 171 (App. Div. 2008), certif. denied, 201 N.J.440 (2010).3 See alsoState v. Williams, 239 N.J. Super.620, 629 (App. Div. 1990) (distinguishing between the weighty confrontation rights at trial, and less weighty rights at a suppression hearing).

In any event, the court did not view McWilliams's allocution as corroborating DeGiglio's and the State's version of events. Rather, the court essentially acknowledged that McWilliams was hesitant to implicate defendant. The court concluded, however, that a "bare bones" allocution was not unusual. Therefore, McWilliams's statement did not weigh heavily in defendant's favor. In short, the admission of McWilliams's testimony was harmless.

1 McWilliams was charged in only one count with third-degree possession of cocaine.

2 Defendant's Point I pertained to the apparent absence of testimony supporting the State's version of events. After an additional transcript was produced, defendant withdrew that point on appeal.

3 "The overwhelming majority of state courts that have addressed the question of whether Crawford applies to a preliminary hearing such as a motion to suppress, have also held that the right of confrontation is not implicated." Washington v. Fortun-Cebada, 241 P.3d 800, 807 (Wash. Ct. App. 2010) (collecting cases, including Williams, supra).