STATE OF NEW JERSEY v. MAURICE D. BAGLEY

NOT FOR PUBLICATION WITHOUT THE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.

MAURICE D. BAGLEY,

Defendant-Appellant.

_______________________________

May 21, 2014

Submitted March 10, 2014 Decided

Before Judges Kennedy and Guadagno.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-04-0511.

Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).

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

PER CURIAM

Defendant appeals his conviction and sentence for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), which resulted from a jury verdict following the denial of motions to suppress. Defendant was sentenced to six years of imprisonment, subject to three years of parole ineligibility. Defendant raises the following arguments on appeal:

POINT I

BECAUSE MIRANDA1 WARNINGS WERE NOT PROPERLY ADMINISTERED AT THE SCENE OF THE AUTO STOP, AND BECAUSE THE GUN AND MARIJUANA INSIDE THE CAR WOULD NOT HAVE BEEN OTHERWISE FOUND, ALL STATEMENTS MADE BY BAGLEY, AND ALL EVIDENCE DERIVED THEREFROM, MUST BE SUPPRESSED.

POINT II

BECAUSE BAGLEY'S RECORDED STATEMENT TO BOBAL AT THE BARRACKS WAS NOT VOLUNTARY, IT SHOULD HAVE BEEN SUPPRESSED.

POINT III

THE SENTENCE IMPOSED IS EXCESSIVE AND UNDULY PUNITIVE AS A RESULT OF THE COURT'S FAILURE TO FIND MITIGATING FACTORS THAT WERE AMPLY SHOWN ON THE RECORD.

We have considered these arguments in light of the record and applicable law, and we affirm.

I.

We derive the facts from the record developed during the hearings on the suppression motions.

On December 19, 2009, shortly after 11:00 a.m., State Trooper Edward Bobal was patrolling the New Jersey Turnpike in Middlesex County and observed defendant's vehicle travelling erratically at speeds in excess of eighty miles per hour. Bobal activated the lights on his vehicle and brought defendant's vehicle to a stop. Upon approaching the passenger side of defendant's Durango, Bobal saw defendant in the driver's seat and two passengers occupying the front and rear seats respectively. He also detected the odor of marijuana emanating from the interior of the Durango, and, after obtaining defendant's driver's license, vehicle registration and insurance information, returned to his own vehicle to request backup officers.

When the first backup officer arrived, Bobal approached the front passenger window of the Durango and engaged defendant in conversation about a "problem" with his license. After a second backup officer arrived, Bobal asked defendant to exit his vehicle. After getting out of the car, defendant was placed under arrest and handcuffed. As he was handcuffing defendant, Bobal testified that he recited the Miranda warnings to defendant, who replied that he understood the rights.

Although he arrested defendant for possession of marijuana2, Bobal sensed a distinct "tensing" and a change of demeanor in defendant, which caused the officer to believe "at this point there was more going on in the vehicle." Bobal then asked defendant "Is there a weapon in the car, a gun in the car?" Defendant nodded his head affirmatively and said, "yes", at which point Bobal yelled "Gun, gun, gun" to the other troopers, who thereupon brought the passengers out of the Durango. In response to another question, defendant indicated the gun was in the center console of the Durango, and Bobal entered the vehicle and retrieved a handgun from the console.

At State Police headquarters, defendant was again apprised of his Miranda rights, and signed two Miranda cards acknowledging that he understood and waived his rights. During the interview that followed defendant stated he bought the gun "on the street" for protection, because he had earlier been threatened by "guys from Philly." He explained that he and the others in his vehicle were headed to Philadelphia to sell bottles of perfume on the street when they were stopped by Bobal.

II.

Defendant initially argues that the trooper's entry into his vehicle occurred "after [the trooper] commenced custodial interrogation about marijuana and a gun" and prior to the administration of Miranda warnings. He adds that "it was impossible" for the motion judge "to find beyond a reasonable doubt that [he] knowingly and intelligently waived his right to remain silent when he gave information to [the trooper] about items inside his car" because the videotape was "garbled" at the point where the trooper claimed to have administered the warnings. Defendant points out that the only audible Miranda warnings on the tape occurred after the officer was heard advising the other officers that there was a gun in the car.

We begin by setting forth the legal principles which guide our review. In reviewing a motion to suppress evidence, we owe no deference to the trial court in deciding questions of law, State v. Shaw, 213 N.J. 398, 411 (2012), but we must defer to the trial court's fact findings so long as they are supported by sufficient credible evidence in the record. State v. Mann, 203 N.J. 328, 336 (2010); State v. Elders, 192 N.J. 224, 243-44 (2007). "A trial court's findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal' . . . ." Mann, supra, 203 N.J. at 336 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). In particular, we defer to the trial court's credibility determinations. State v. Locurto, 157 N.J. 463, 474 (1999).

When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162. Additionally, we defer to a trial judge's findings "which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy . . . ." State v. Davila, 203 N.J. 97, 109-10 (2010) (quotation omitted).

The scope of the New Jersey privilege against self-incrimination and the procedures that New Jersey law requires to protect it are generally consistent with those for the federal constitutional right against self-incrimination. State v. Knight, 183 N.J. 449, 461 (2005); State v. Burris, 145 N.J. 509, 520 (1996). "[T]he Fifth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, guarantees the right against self-incrimination[.]" State v. W.B., 205 N.J. 588, 604-05 (2011) (citations and footnote omitted). "Inherent in every Fifth Amendment analysis is the question of whether the statement was voluntary, and, independently, whether the law enforcement officers taking it complied with Miranda." Id. at 605. "The State must prove beyond a reasonable doubt that a defendant's confession was voluntary . . . ." Knight, supra, 183 N.J. at 462 (citing State v. Galloway, 133 N.J. 631, 654 (1993)).

In determining whether a statement was made voluntarily, "[a] court must look at the totality of the circumstances[.]" Galloway, supra, 133 N.J. at 654. We apply a deferential standard in reviewing the court's findings at a hearing on the voluntariness of a defendant's statement, and reverse only if they are not supported by substantial credible evidence in the record. State v. J.A.C., 210 N.J. 281, 295 (2012); Knight, supra, 183 N.J. at 468.

A defendant's waiver of Miranda rights must be made voluntarily, knowingly, and intelligently. State v. Bey, 112 N.J. 123, 134 (1988); Knight, 183 N.J. at 462. Where a court has determined that a defendant has made a knowing, intelligent and voluntary waiver of his Miranda rights, any uncoerced custodial statement made thereafter is admissible. Ibid; State v. Hartley, 103 N.J. 252, 260 (1986).

Guided by these principles, we are satisfied on the basis of our review of the record, including the videotape made at the scene, that the motion judge's determination that Miranda warnings were, in fact, given to defendant prior to his statement at the scene is justified. We have also viewed the videotape of the stop captured on the mobile video recorder mounted on Bobal's State Police vehicle. That tape corroborates Bobal's testimony that he gave defendant a Miranda warning upon removing him from the vehicle. Nothing in the record warrants rejection of the motion judge's determination that the officer's testimony was accurate and credible.

We next turn to the argument made by defendant that the trial court erred in admitting his recorded statement given at the police station following his arrest. Defendant argues that he was "too physically and emotionally exhausted to withstand the overbearing circumstances in which he found himself" at the station when he waived his Miranda rights. We disagree.

As noted earlier, "[t]he State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." Knight, supra, 183 N.J. at 462 (citing Galloway, supra, 133 N.J. at 654 (1993)). In determining whether a statement was made voluntarily, "[a] court must look at the totality of the circumstances[.]" Ibid. Such circumstances would include the characteristics of the accused and the details of the interrogation. Ibid.; Bey, supra, 112 N.J. at 134-35. "Relevant factors include the defendant's age, education, intelligence, advice concerning his constitutional rights, [the] length of detention, . . . the nature of the questioning," Bey, supra, 112 N.J. at 135, the defendant's "previous encounters with law enforcement, and the period of time between [the] 'administration of the [Miranda] warnings and the volunteered statement[.]'" Knight, supra, 183 N.J. at 463 (citation omitted).

Again, guided by this standard, we are satisfied that the second motion judge did not err in denying defendant's motion. There was no evidence to support defendant's claim he was intoxicated at the police station and, although he appeared fatigued, defendant was still able to understand and comprehend the Miranda rights he had been given at the scene and that were repeated prior to his statement at the police station. The questioning of defendant was not prolonged or oppressive and only four hours had passed between the initial stop and defendant's statement.

Defendant argues that his sentence was excessive under the circumstances. He asserts that as a "widowed, working father of four," he should only have been sentenced to five years of imprisonment, rather than the six years that were imposed. He adds that further mitigating factors based upon his military service, demeanor and state of mind should have been applied.

An appellate court's review of a sentence is limited and governed by an abuse of discretion standard. State v. Miller, 205 N.J. 109, 127 (2011); State v. Blackmon, 202 N.J. 283, 297 (2010). Thus, "[a]n appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). Also, a reviewing court may not "substitute its assessment of aggravating and mitigating factors" for that of the trial court. State v. Bieniek, 200 N.J. 601, 608 (2010) (citing O'Donnell, supra, 117 N.J. at 215).

Here, the judge's determination that two aggravating factors, risk and deterrence, applied, and that one mitigating factor, hardship, applied, as well, was manifestly supported by the record and the six-year sentence was below the mid-range for a second-degree offense. We find no abuse of discretion.

Affirmed.

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

2 Defendant does not argue that his arrest at that point was not supported by probable cause. In the absence of a warrant, a police officer must have probable cause to effectuate an arrest. Although "probable cause" has not been precisely defined by the courts, it is well-established "that a principal component of the probable cause standard 'is a well-grounded suspicion that a crime has been or is being committed.'" State v. Moore, 181 N.J. 40, 45 (2004) (quoting State v. Nishina, 175 N.J. 502, 515 (2003)). Thus, an officer must have a "well-founded suspicion or belief" the arrestee is guilty of some crime. State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (citing State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985)). Probable cause requires more than a bare hunch or suspicion, but less than the legal evidence required for conviction beyond a reasonable doubt. State v. Waltz, 61 N.J. 83, 87 (1972). The smell of marijuana itself can give rise to probable cause. Nishina, supra, 175 N.J. at 515-16.