STATE OF NEW JERSEY v. SHAZIM KHAN

NOT FOR PUBLICATION WITHOUT THE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.

SHAZIM KHAN,

Defendant-Appellant.

____________________________________________________________

September 2, 2016

Submitted January 13, 2016 Decided

Before Judges Koblitz, Kennedy, and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-10-1851.

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

Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

The Bergen County Grand Jury returned an indictment against defendant, charging him with second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (Count One); third-degree aggravated assault with a deadly weapon, contrary to N.J.S.A. 2C:12-1b(2) (Count Two); and third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (Count Three). Following a jury trial, defendant was convicted of two counts of third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(2), and one count of third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d. The trial judge merged Count Two into Three and sentenced defendant on Counts One and Three to concurrent terms of one year of probation, conditioned upon serving 180 days in the Bergen County Jail, and ordered him to pay fines.

Defendant appeals and argues as follows

POINT I: THE STATE FAILED TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF SELF-DEFENSE, DESPITE STATEMENTS BY TWO WITNESSES THAT CORROBORATED [DEFENDANT]'S STATEMENTS THAT HE ACTED BECAUSE WILLIAMS HAD APPROACHED HIM WITH A KNIFE, THEREBY PRECLUDING THE GRAND JURY FROM CONSIDERING WHETHER THERE WAS SUFFICIENT EVIDENCE FOR AN INDICTMENT.

POINT II: THE COURT ERRED IN FAILING TO CHARGE SELF-DEFENSE WHEN THE DEFENSE WAS CLEARLY INDICATED BY THE FACTS.

POINT III: IN LIGHT OF [defendant]'S DEMONSTRABLE CONFUSION ABOUT HIS RIGHT TO AN ATTORNEY, THE JUDGE ERRED IN DENYING HIS MOTION TO SUPPRESS THE STATEMENT GIVEN IN THE POLICE STATION; MOREOVER, [defendant]'S UNWARNED STATEMENT AT THE SCENE VIOLATED HIS RIGHT AGAINST SELF-INCRIMINATION.

POINT IV: THE KNIFE SHOULD HAVE BEEN SUPPRESSED BECAUSE THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE OF PROBABLE CAUSE OR EXIGENT CIRCUMSTANCES TO SUPPORT THE WARRANTLESS SEARCH OF THE HOME.

POINT V: DEFENDANT'S CONVICTION AND SENTENCE FOR AGGRAVATED ASSAULT, BODILY INJURY MUST MERGE INTO AGGRAVATED ASSAULT WITH A DEADLY WEAPON.1

We have carefully considered defendant's arguments, and for the reasons stated hereinafter, we affirm his convictions, but we remand to the Law Division to address the merger issue that defendant has raised. The State concurs with defendant on that point.

I.

The following facts are gleaned from the record established at the pre-trial motions, given that defendant's arguments on appeal challenge the court's resolution of those motions. Other facts pertinent to defendant's claims of trial error are drawn from the trial record.

On May 7, 2011, Eric Williams visited Evon Blake at a residence in Hackensack, New Jersey. The residence was a two-family home, with defendant living in the front and Blake in the back. Upon Williams' arrival, defendant confronted him regarding their estranged friendship. Later that evening, as Williams was leaving, defendant again confronted him. This time, however, the confrontation resulted in defendant reaching into his waistband for a knife and slashing Williams in the face with it.

When the police arrived, they found the injured Williams away from the residence, near his car. According to the testimony of Officer Furcal at the motion to suppress, while the officers were tending to Williams, defendant was standing on his porch, exclaiming that he had acted in self-defense. In response, the officers approached defendant and inquired about the location of the knife. Defendant, while standing in front of his open doorway, pointed to a table inside. Officer Sellitto entered the residence and retrieved the knife. Both officers testified that the knife was visible from where they were standing on the porch.

The officers arrested defendant and escorted him to the police station, where Detective Mora read him his Miranda2 rights. The record from the motion to suppress indicates that after being read Miranda, defendant initially did not appear to fully comprehend his right to an attorney. After the detective asked him again, however, defendant indicated that he understood his rights and signed a voluntary statement form, waiving his right to an attorney, and thereafter provided a statement to the officers, which consisted of his version of the events that took place earlier that day, namely, his insistence that he acted in self-defense.

The State presented evidence to the grand jury on October 24, 2011. Despite defendant's insistence that he acted in self-defense, the State did not charge the grand jury on that defense. Defendant moved for a dismissal of the indictment pursuant to Rule 3:10-2 on the grounds that the State should have, and failed to, charge self-defense to the grand jury. The trial court rejected this argument.

Next, defendant filed a motion to suppress his statement to the officers regarding the location of the knife while they were on his porch, on the grounds that this was a custodial interrogation in violation of Miranda. He also sought to suppress the statement that he provided at the station after he was arrested and, finally, sought to suppress the knife itself, arguing that it had been retrieved in violation of his Fourth Amendment rights. Each motion was denied by the trial court.

At trial, defendant elected not to testify and did not call any witnesses. However, through cross-examination of the State's witnesses, defense counsel attempted to elicit testimony in support of defendant's claim of self-defense. On cross-examination, Officer Furcal admitted after defendant exclaimed that he acted in self-defense, the officer never inquired as to what he meant. He also admitted that while no other knife was found, he did not search the scene for an additional one. Furthermore, Officer Furcal stated that at some point after they arrested defendant, a female came out of the residence, also exclaiming that defendant acted in self-defense. The officer was unaware if anyone followed up with that woman thereafter.

On cross-examination of Detective Mora, defense counsel attempted to elicit testimony regarding defendant's sworn statement at the police station. The State, however, never presented this evidence, and, therefore, the judge ruled that it was inadmissible hearsay. The only statement regarding self-defense that was presented to the jury was the conclusory one that defendant made while he was standing on his porch before he was arrested.

The court permitted defense counsel to elicit testimony from Detective Mora that defendant did provide a voluntary statement, but the contents of that statement were excluded. Detective Mora testified that despite canvassing the area for witnesses, he did not locate any individuals who claimed to have witnessed the altercation.

On the final day of trial, Blake testified that Williams said he might slap defendant in the face, at which point defendant pulled out the knife from his waistband and slashed Williams across the face.3 Blake also testified that at no point did he see the victim brandishing a knife.

At the close of trial, defense counsel requested that the judge instruct the jury on self-defense. The trial judge concluded that there was insufficient evidence to warrant the charge. While the judge acknowledged that defendant did say he acted in self-defense, and that another woman also made a similar remark, he concluded that evidence alone was insufficient to warrant the charge of self-defense.

II.

Initially, as we stated earlier, defendant's arguments on appeal pertain to the court's denial of his pre-trial motions. He also argues that the trial court erred by refusing to instruct the jury on self-defense. We first address defendant's

arguments that the State misled the grand jury by failing to charge self-defense.

We begin our analysis with the standard of review. Specifically, we examine the court's action to determine whether the court abused its discretion by denying the motion. State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). A judge's abuse of discretion occurs only when the judge makes a decision without a rational explanation, departing from established policies. Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002).

We have held repeatedly that an indictment should be dismissed for failure to charge self-defense only when the prosecutor's decision not to charge the grand jury was clearly capable of producing an unjust result. State v. Hogan, 336 N.J. Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635 (2001). Moreover, we have acknowledged that, "a prosecutor's obligation to instruct the grand jury on possible defenses is a corollary to his [or her] responsibility to present exculpatory evidence." Id. at 341. Insofar as exculpatory evidence is concerned, a prosecutor is required to provide the same only when it is "so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused." Ibid. (quoting State v. Hogan, 144 N.J. 216, 236 (1996)).

The facts in the record that support defendant's claim of self-defense are, frankly, non-existent. While there are unsworn witness statements and defendant's own claim that he acted in "self-defense," such conclusory evidence does not rise to the level of "clearly exculpatory." Nowhere are there any factual details that would have suggested such conclusory remarks were justified. Defendant's claims of self-defense must be predicated upon facts demonstrating that they have some basis in the evidence. See State v. Burks, 208 N.J. Super. 595, 606 (App. Div. 1986) (citing State v. Kelly, 97 N.J. 178, 200 (1984)).

Also, there is a plethora of evidence that suggests defendant was the first aggressor. He twice confronted the victim, including immediately before the incident occurred, while he was carrying a concealed weapon. Therefore, we perceive no error in the denial of defendant's motion to dismiss the indictment.

Addressing defendant's suppression issues, we are generally deferential, State v. Robinson, 200 N.J. 1, 15 (2009), and "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). On the other hand, our review of the trial court's legal conclusions is plenary, and we need not defer to the trial court's decisions when a question of law is at stake. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

On appeal, defendant seeks to suppress the statement that he made to the officers on his porch, viz., that he "acted" in self-defense. He argues that he was subject to a custodial interrogation at this point, and the officers violated the strictures of Miranda by failing to read him his rights. "The Miranda requirement is triggered by custodial interrogation, i.e., questioning by law enforcement officers after a suspect has been deprived of freedom of action in a significant way." State v. Timmendequas, 161 N.J. 515, 614 (1999) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

Tellingly, defendant never sought suppression of this statement at any time prior to this appeal. Indeed, the admission of that statement was part of defendant's theory that he acted in self-defense. More importantly, the evidence was clear that defendant made the statement from the porch at the same time that police arrived on the scene and "before anybody was surrounding him." Therefore, defendant was not in custody at the time that he made this statement and, accordingly, no Miranda violation occurred.

Moreover, as a general proposition, this court does not entertain arguments that were not raised below, unless they pertain to the jurisdiction of the court or a matter affecting the public interest. Robinson, supra, 200 N.J. at 20 22. Therefore, we need not analyze this argument any further. However, we note briefly that ample evidence exists to support the fact that defendant was not in custody at this point. Moreover, defendant uttered this statement well before the officers had even approached the porch.

At the point when defendant indicated to the officers the location of the knife, they were conducting their initial investigation. See Timmendequas, supra, 161 N.J. at 614 ("In determining whether the defendant would have felt free to leave, the court should consider the nature and degree of pressure applied to detain the suspect, the duration of the questioning, the physical surroundings, and the language used by police.").4 Consequently, we reject defendant's argument.

Next, defendant contends that although the police read him his Miranda rights at the station, he was nevertheless unable to fully comprehend the same specifically, his right to speak with an attorney. Consequently, defendant argues that the court erred in denying his motion to suppress the admissions that he made to the police thereafter.

The crux of this issue is whether defendant waived his right to speak with an attorney before providing a statement to the officers, after having been taken into police custody. Such waiver must be done "voluntarily, knowingly and intelligently." Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707.

While the State submits that it never presented this evidence, "[h]armful error may result from an erroneous in limine decision to admit evidence even when the evidence is never actually presented to the jury." Pressler, Current N.J. Court Rules, comment 2.1 on R. 2:10-2 (2016) (citing State v. P.S., 202 N.J. 232, 260 (2010)). Nevertheless, we perceive no error in the denial of defendant's motion to suppress this statement, substantially for the reasons stated in the motion judge's opinion from the bench. We add that despite defendant's expression of some initial confusion, he nonetheless initialed the Miranda waiver form, and told the officers that he understood his rights. As our Supreme Court has stated

[W]aiver [is] no less "voluntary" and "knowing" and "intelligent" because [the defendant] misconceived the inculpatory thrust of the facts he admitted, or because he thought that what he said could not be used because it was only oral or because he had his fingers crossed, or because he could well have used a lawyer. A man [or woman] need not have the understanding of a lawyer to waive one.

[State v. McKnight, 52 N.J. 35, 55 (1986).]

Defendant also argues that the court erred in denying the motion to suppress the knife, on the grounds that it was retrieved pursuant to a warrantless search, in violation of defendant's Fourth Amendment right to protection against unreasonable search and seizures.

A warrantless search is presumptively invalid unless it falls within one or multiple narrowly-drawn exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 454 55, 91 S. Ct. 2022, 2032, 29 L. Ed. 2d 564, 576 (1971). In the case sub judice, we perceive two exceptions that, when viewed from the totality of the circumstances, justified the officer's warrantless retrieval of the knife.

The first, as argued by the State, is the community-caretaker exception. "[P]olice officers perform a wide range of social services, such as aiding those in danger of harm, preserving property, and creat[ing] and maintain[ing] a feeling of security in the community." State v. Bogan, 200 N.J. 61, 73 (2009) (citation omitted) (second and third alteration in original). In doing so that is, carrying out their community-caretaking function courts have allowed warrantless searches by police officers. Ibid.

Here, the court found that the community-caretaking exception applied based on the credible testimony of the officers involved in the search. In particular, the officers testified that there were people in and around the house and, therefore, it was necessary to locate the weapon and secure the area. We do not weigh the evidence or assess the credibility of witnesses. See State v. Locurto, 157 N.J. 463, 470 71 (1999). Instead, we defer to the trial court's factual findings as long as they are "supported by sufficient credible evidence in the record." Elders, supra, 192 N.J. at 243 (quoting Elders, supra, 286 N.J. Super. at 228).

The judge found that the officers' testimony was credible, and that they reasonably believed that they were preventing further harm by securing the area and retrieving the knife. Moreover, the operative word when a "police officer [is] conducting a search or seizure under one of the exceptions to the warrant requirement is not that they always be correct, but that they always be reasonable." Illinois v. Rodriguez, 497 U.S. 177, 185, 110 S. Ct. 2793, 2800, 111 L. Ed. 2d 148, 159 (1990) (emphasis added).

Further, defendant's voluntary and spontaneous response to the officer's question about the location of the knife, indicating that it was inside his home, where the officers could plainly see it through the open door from the porch, suggests that the consent exception to the warrant requirement is applicable. See Schneckloth v. Bustamonte, 412 U.S. 218, 227-28, 93 S. Ct. 2041, 2048, 36 L. Ed. 2d 854, 863 (1973). An individual "who possesses common authority over or has a sufficient relationship to the premises or effects sought to be inspected may voluntarily consent to a lawful search." State v. Lamb, 218 N.J. 300, 315 (2014). "[T]he question whether a consent to search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth, supra, 412 U.S. at 227, 93 S. Ct. at 2048, 36 L. Ed. 2d at 863.

When asked about the location of the knife, defendant pointed to the table on which it was resting, through his open doorway. It follows that after inquiring about the location of the knife, to which a defendant points inside his doorway, and the knife is immediately visible to both officers from the vantage on the porch, that naturally one would step inside to retrieve it. See State v. Koedatich, 112 N.J. 225, 262 (1988) ("An implied consent to search is as efficacious and effective as an express consent to search." (quoting People v. Engel, 164 Cal. Rptr. 454, 463 (1980))), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).

Turning now to defendant's argument that the trial judge erred in failing to instruct the jury on self-defense, we note that a claim of error in the jury instructions is reviewed de novo. See Rest. Enters., Inc. v. Sussex Mut. Ins. Co., 96 N.J. Super. 26, 32 (App. Div. 1967), rev'd on other grounds, 52 N.J. 73 (1968).

"Self-defense requires an actual, honest, and reasonable belief . . . of the necessity of using force." State v. Josephs, 174 N.J. 44, 101 (2002), superseded on other grounds by statute, N.J.S.A. 2C:11-3. Furthermore

N.J.S.A. 2C:3-4(b)(2) provides that the use of deadly force is not justifiable "unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm," and is not justifiable if the actor "knows he can [49] avoid the necessity of using it with complete safety" by means of a retreat . . . . Justification by self-defense is similarly unavailable if a lesser degree of force could have been used to respond to an attack.

[State v. Galicia, 210 N.J. 364, 390 (citation omitted) (citing State v. Bryant, 288 N.J. Super. 27, 37 (App. Div.), certif. denied, 144 N.J. 589 (1996)).]

"The trial judge must charge the jury on self-defense if there exists evidence in either the State's or the defendant's case sufficient to provide a rational basis for [its] applicability." State v. Blanks, 313 N.J. Super. 55, 69 70 (App. Div. 1998) (alteration in original) (quoting Bryant, supra, 288 N.J. Super. at 35). It is not error for a judge to refuse to charge a defense unsupported by the evidence despite defense counsel's express reliance on the same. See Galicia, supra, 210 N.J. at 390 91.

Nothing in the trial record, including defendant's conclusory remark from his porch, supplies a sufficient rational basis for the judge to charge the jury with self-defense. Defendant's argument that he slashed Williams in the face with a knife simply because Williams suggested that he may have to slap defendant does not provide a rational basis to charge self-defense. It is well-settled that self-defense is unavailable if the defendant could have used a lesser degree of force to respond to an attack. See Bryant, supra, 288 N.J. Super. at 37.

Moreover, this case is similar to the facts in Galicia. In that case, the court determined that, because the "defendant had the option to drive away from the scene instead of aiming for the victim, [he] is accordingly not entitled to invoke the justification of self-defense." Galicia, supra, 210 N.J. at 391 (citing N.J.S.A. 2C:3-4(b)(2)(b)). Here, defendant has not shown that he lacked any means of retreat, as he could have simply walked away and returned to his apartment.

Consequently, we reject defendant's arguments, and we affirm his convictions. However, we remand this matter to the Law Division to merge the offenses of aggravated assault and aggravated assault with a weapon.

Affirmed in part, reversed and remanded in part. We do not retain jurisdiction.

1 The State concedes this issue, and urges the court to remand to reflect the appropriate sentencing merger.

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

3 At trial, Mr. Blake refers to the victim as "Andrew." We understand this to be the same person, Eric Williams.

4 We note, nevertheless, that the portion of defendant's statement on the porch with which he takes issue on appeal appears to be where he said that he cut the victim in self-defense, rather than his indication to the police as to the whereabouts of the knife.