STATE OF NEW JERSEY v. ERIC R. SHAW

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1533-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ERIC R. SHAW a/k/a KENNETH
WILLIAMS, and TYRONE
JOHNSON,

     Defendant-Appellant.
_________________________________

              Argued January 17, 2018 – Decided March 13, 2018

              Before Judges Fuentes, Manahan, and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 14-
              05-0433.

              Tamar Y. Lerer, Assistant Deputy Public
              Defender, argued the case for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Tamar Y. Lerer, of counsel and on the briefs).

              Jane C. Schuster, Deputy Attorney General,
              argued the cause for respondent (Gurbir S.
              Grewal, Attorney General, attorney; Jane C.
              Schuster, of counsel and on the brief).

PER CURIAM
     A Grand Jury indicted defendant Eric Shaw on one count of

second-degree certain persons not to have weapons, 
N.J.S.A. 2C:39-

7(b).    The court denied defendant's motion to suppress a statement

he gave to the police.        At trial, a jury convicted defendant and

the judge sentenced him to an eight-year term of imprisonment with

five years of parole ineligibility.           In this appeal, defendant

contends the trial court erred by denying his motion to suppress

his videotaped statement.       We disagree and affirm.       We gather the

following facts from the record developed at the suppression

motion.

     City    of   Plainfield    Police     Officer     Christopher   Donovan

testified that on the night of October 29, 2013, he was advised a

gunshot victim was in the emergency room of the Muhlenberg Medical

Center.      He   responded    to   the   hospital    with   the   intent   of

interviewing the person whom he believed was the victim of this

crime.      Defendant was in pain from a gunshot wound to his leg.

Donovan    testified   that    despite    this,   defendant    was   able   to

understand and respond to his questions.                Donovan spoke with

defendant for about thirty minutes, but not continuously, because

medical personnel were attending to him.             Donovan testified that

defendant's account of events changed several times before saying

what actually happened.



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      Plainfield Detective Thomas Collina testified that he also

went to the hospital in response to the report that a gunshot

victim was there.     Upon arrival, Officer Donovan told him that

defendant's "story was a little off.            Something wasn't making

sense.   He was changing his story a bit."         Collina also noted that

defendant was in pain.       Collina spoke with defendant for about

thirty   seconds   before   he   and   Detective    Jean   Calvin   recorded

defendant's statement on a cell phone.             Defendant told Collina

that he was a passenger in a car; he said the shooting was a

"mistake."   According to defendant, "the weapon had gone off in

the car" and hit him in the leg.           He claimed "his friend[,] who

was driving[,] had shot the gun."

      Defendant did not tell the detectives that he did not want

to make a statement at any time during this interview.          The police

officers did not restrain defendant’s movements nor advise him he

was not free to leave the hospital.           The record also shows the

officers did not give defendant Miranda1 warnings before taking

his recorded statement.     The hospital records in evidence reported

that defendant had been administered morphine at 11:12 p.m., which

was before his statement was recorded from 11:46 pm to 11:52 p.m.




1
    Miranda v. Arizona, 
384 U.S. 436 (1966).

                                       3                             A-1533-15T3
     Lieutenant Kevin O'Brien testified he also responded to the

hospital because of the report of a gunshot victim.         He was aware

there had been reports of shootings in the east and west ends of

Plainfield that evening.   While driving into the hospital parking

lot, he saw a male, whom he identified as Mitchell Britton,

standing by a car.    The car "looked like [the] description of a

car that was . . . involved in a shooting earlier."         Britton told

O'Brien that he was there because a friend had been shot.       Britton

went into the hospital to visit him.     After Britton came back out,

O'Brien advised Britton about the east end shooting and asked for

consent to search his vehicle.        Britton said he would sign the

consent but then went back into the hospital.     O'Brien looked into

the car from the outside and saw what appeared to be a bullet hole

around the center console area. He went into the hospital briefly,

saw the wound on defendant's leg and went back outside.              When

Britton again came out of the hospital, he consented to a search

of the vehicle.   A gun was found in the trunk.

     The trial judge denied defendant's motion to suppress.           The

judge   found   the   officers'   were    "credible   and    believable

witnesses[.]"   The judge determined that a Miranda warning was not

needed because defendant was not in custody when he gave his

statement to the police.    The judge observed "the only thing that

kept him wired to that hospital setting was the IV that was in his

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arm."    Defendant was not arrested, charged or incarcerated at that

time.    Although there were inconsistencies in his statement, the

police officers did not doubt that the shooting was accidental.

Defendant's concern was about his friend and not that he would be

charged. The judge found the videotaped statement showed defendant

to be in pain, but that "his will was not overborne," concluding

therefore, that defendant's statement was freely and voluntarily

given.

     Before the trial commenced, the trial judge discussed how his

"preliminary comments to the jury would introduce the subject

matter of this case."     Defendant's counsel offered to stipulate

that defendant "is among a class of persons who is forbidden from

owning a firearm."     The State rejected the stipulation because

"it's important for jurors to be informed during voir dire the

person is charged with possession of a weapon by a convicted felon

so it will be questioned adequately."   The court suggested telling

the jury that "this defendant had previously been convicted of a

criminal offense which would preclude him from ever possessing a

handgun."    Defense counsel observed that because defendant's prior

conviction was for a nonviolent drug offense, the conviction should

not be "sanitized."    At trial, the court instructed the jury that

the parties entered three stipulations.



                                  5                         A-1533-15T3
         The parties agree that the defendant was
         convicted of possession of a controlled
         dangerous substance with intent to distribute
         prior to this indictment.    The parties also
         agree that the gun recovered by police in this
         case is an operable handgun.      The parties
         further agree that Mitchell Britton has
         previously pled guilty to possession of this
         gun and has been sentenced on this charge.

    The jury returned a guilty verdict on the certain persons not

to have weapons offense.

    On appeal, defendant raises these issues:

         I.   BECAUSE   DEFENDANT’S    STATEMENT  WAS
         ELICITED IN VIOLATION OF HIS RIGHTS AGAINST
         SELF-INCRIMINATION, WAS INVOLUNTARY, AND WAS
         UNRELIABLE, THE TRIAL COURT ERRED IN DENYING
         THE MOTION TO SUPPRESS THE CONFESSION.

         A.   Introduction.

         B.   Because Defendant Was Subjected To
         Custodial Interrogation At The Hospital, The
         Failure to Inform Him of His Miranda Rights
         Renders The Statement Inadmissible.

         C.   Because The Effect of Both The Severe
         Pain And The Pain Medication On Defendant’s
         Cognitive   State Rendered   His  Statement
         Involuntary And Unreliable, It Should Have
         Been Suppressed.

         D.   Conclusion.

         II. THE     TRIAL   COURT’S   ERRONEOUS    AND
         MISLEADING INSTRUCTION TELLING THE JURY IT MAY
         INFER THAT IF THE GUN WAS IN THE CAR IT
         BELONGED TO ALL OF THE OCCUPANTS – EVEN IF IT
         ALSO FOUND FACTS GIVING RISE TO THE INFERENCE
         THAT THE GUN BELONGED SOLELY TO THE DRIVER –
         NECESSITATES     REVERSAL   OF     DEFENDANT’S
         CONVICTION.

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            III. THE TRIAL COURT’S DENIAL OF THE DEFENSE
            REQUEST TO FULLY SANITIZE THE FACT OF
            DEFENDANT’S PRIOR CONVICTION WAS ERRONEOUS,
            PREJUDICIAL, AND NECESSITATES REVERSAL OF
            DEFENDANT’S CONVICTION.

            IV. THE CUMULATIVE IMPACT OF         THE   ERRORS
            DENIED DEFENDANT A FAIR TRIAL.

            V.   DEFENDANT’S     SENTENCE   IS     MANIFESTLY
            EXCESSIVE.


The defendant raises the following points in his reply-

letter brief:

            I.   POLICE OFFICERS CANNOT AVOID MIRANDIZING
            A PERSON WHO THEY ARE INTERROGATING AND WHO
            IS UNABLE TO LEAVE THE SCENE OF THE
            INTERROGATION MERELY BY LABELING THAT PERSON
            A “VICTIM” INSTEAD OF A “SUSPECT.”

            II. THE STANDARD OF REVIEW FOR INSTRUCTIONAL
            ERRORS NOT OBJECTED TO BELOW IS PLAIN ERROR.
            MOREOVER, AN INSTRUCTION IS NOT SHIELDED FROM
            REVIEW SIMPLY BECAUSE IT STEMS FROM THE MODEL
            CHARGE.

            III. THE TRIAL COURT’S REJECTION OF THE
            DEFENSE   STIPUALTION  THAT  DEFENDANT   WAS
            PROHIBITED FROM POSSESSING A WEAPON REQUIRES
            REVERSAL OF HIS CONVICTION.

     Defendant   appeals   the   trial   court's   order   denying   his

suppression motion. We defer to the trial court's factual findings

on a motion to suppress unless they were "clearly mistaken" such

that appellate intervention is necessary in "the interests of

justice."    State v. Elders, 
192 N.J. 224, 244 (2007) (quoting


                                    7                           A-1533-15T3
State v. Johnson, 
42 N.J. 146, 162 (1964)).           Our review of "purely

legal conclusions" is plenary.         State v. Goodman, 
415 N.J. Super.
 210, 225 (App. Div. 2010).            There is no merit to defendant's

contention that the court erred in rejecting defendant's motion

to suppress.

     "[T]o safeguard a suspect's Fifth Amendment right against

self-incrimination,        confessions     obtained     during    custodial

interrogations are inadmissible as evidence unless the defendant

has been advised of his or her constitutional rights."             State v.

Hubbard, 
222 N.J. 249, 265 (2015) (quoting Miranda, 
384 U.S. at
 492).   Custodial interrogation means "questioning initiated by law

enforcement officers after a person has been taken into custody

or otherwise deprived of his freedom of action in any significant

way."    Id. at 265-66 (quoting Miranda, 
384 U.S. at 444).              "[I]f

the questioning is simply part of an investigation and is not

targeted at the individual because she or he is a suspect, the

rights provided by Miranda are not implicated."                  Id. at 266

(quoting State v. Timmendequas, 
161 N.J. 515, 614-15 (1999).

        In   determining    whether    a   custodial    interrogation    has

occurred, a court must examine all circumstances surrounding the

interrogation.     State v. O'Loughlin, 
270 N.J. Super. 472, 477

(App. Div. 1994). "The critical determinant of custody is whether

there has been a significant deprivation of the suspect's freedom

                                       8                            A-1533-15T3
of action based on the objective circumstances." Ibid. (quoting

State v. P.Z., 
152 N.J. 86, 103 (1997)).         The inquiry is "'how a

reasonable     [person]   in   the   suspect's    position   would   have

understood his situation.'"      Ibid. (quoting Berkemer v. McCarty,


468 U.S. 420, 442 (1984)).           The State must also prove that

defendant's statement was freely and voluntarily given.         State v.

Hreha, 
217 N.J. 368, 383 (2014).

     We agree with the trial court here that when the police

questioned defendant at the hospital he was not in custody. A

hospital room generally lacks the "compelling atmosphere inherent

in the process of in-custody interrogation."          State v. Zucconi,


50 N.J. 361, 364 (1967) (quoting Miranda v. Arizona, 
384 U.S. 436,

478 (1966)).     Defendant was not restrained, arrested or detained

by the police. The questioning was relatively short and the nature

of the questions were to elicit what had occurred. Defendant could

not leave because of his injuries, not because of the police.

     Defendant's reliance on State v. O'Loughlin, 
270 N.J. Super.
 472, 485 (App. Div. 1999) is misplaced.          In that case, defendant

was under "continuous police supervision" for nearly three hours

before being interrogated while she was sitting on a gurney.            By

that time, the officers had permitted defendant's passenger to

leave, thereby singling defendant out for special treatment.             A



                                     9                           A-1533-15T3
reasonable person in defendant's circumstances would have believed

that he or she was not free to leave.        Id. at 488.

     That was not the case here where there was no supervision or

singling out of defendant.          There was ample support for the

conclusion that defendant was not in custody when he gave his

statement to the police.

        For the first time on appeal, defendant alleges that the

statement was not freely and voluntarily given because defendant

was in pain and had been given morphine.         Whether a statement is

“voluntary” is a finding of fact to be determined under the

totality of circumstances.        State v. Galloway, 
133 N.J. 631, 654

(1993)   (citing    Schneckloth   v.   Bustamonte,   
412 U.S. 218,   226

(1973)).   That a person is in the hospital does not preclude them

from giving a voluntary statement.          See State v. Figueroa, 
212 N.J. Super. 343, 350 (App. Div. 1986) (admission of statements

made by defendant while in hospital bed deemed appropriate where

there    was   no    "overbearing      or   overreaching"    during      the

interrogation).

        The trial court’s factual findings must be upheld if they

are "supported by sufficient credible evidence in the record."

State v. Handy, 
206 N.J. 39, 44 (2011) (quoting Elders, 
192 N.J.

at 243).   Here, the court relied on the testimony of the officers

and on its review of the videotaped statement, concluding that the

                                    10                             A-1533-15T3
police questioning did not overbear defendant's will.     The trial

court considered that defendant was in pain and had been given

medication. However, defendant was able to understand and answer

the questions and it did not appear to the court that his will was

overborne.      We have no reason to disagree with these findings.

See State v. S.S., 
229 N.J. 360, 375 (2017).

      Defendant contends the trial court's jury instruction about

the possession of a weapon in a vehicle was confusing because it

did not explain how the three inferences in 
N.J.S.A. 2C:39-2(a)

"interacted and specifically that they were mutually exclusive."

This objection was not raised at trial, but the defense did object

to instructing the jury on the "presumptions" under 
N.J.S.A. 2C:39-

2.   The court overruled the objection, explaining that these were

inferences not presumptions.

      Because the issue raised here was not raised to the trial

court, we review defendant's contentions under a plain error

standard, meaning that our inquiry is to determine whether this

was an error that was "clearly capable of producing an unjust

result."     R. 2:10-2.   Under that standard, reversal is required

if there was error "sufficient to raise a reasonable doubt as to

whether [it] led the jury to a result it otherwise might not have

reached."     State v. Green, 
447 N.J. Super. 317, 325 (App. Div.

2016) (quoting State v. Macon, 
57 N.J. 325, 336 (1971)).

                                 11                         A-1533-15T3
     "[A]ppropriate and proper jury charges are essential to a

fair trial."     State v. Baum, 
224 N.J. 147, 158-59 (2016).                 We

consider the charge as a whole in determining whether it was

prejudicial.     State v. Figueroa, 
190 N.J. 219, 246 (2007).           Model

jury charges are often helpful to trial courts performing this

important function.     See Mogull v. CB Commercial Real Estate Grp.,


162 N.J. 449, 466 (2000) (holding that instructions given in

accordance    with   model   charges,   or   which   closely    track   model

charges, are generally not considered erroneous).

     There was nothing prejudicial about the judge's charge to the

jury in this case.     The portion of the charge at issue tracked the

model   charge   for   
N.J.S.A.   2C:39-2.     See   Model     Jury   Charges

(Criminal), "Possession Of Firearms, Weapons, Destructive Devices,

Silencers or Explosives In A Vehicle (N.J.S.A. 2C:39-2)" (approved

Mar. 1993).

     Looking at the challenged charge, it was accurate on the law

and it did not misinform or mislead the jury.         This charge was not

confusing or "clearly capable of producing an unjust result."                R.

2:10-2.

     Defendant contends the trial court erred by rejecting its

request to fully sanitize the fact of defendant's prior conviction.

The Supreme Court recently addressed this issue in State v. Bailey,

__ N.J. __ (2018).     There, the Court considered,

                                   12                                 A-1533-15T3
          the propriety of [a] conviction under the
          Certain Persons Not to Have Weapons Statute,
          
N.J.S.A. 2C:39-7, when the redacted evidence
          prevented the jury from confirming that
          defendant's prior conviction was indeed an
          enumerated offense under the statute.

          [Id. at 9.]

     In Bailey, defendant would not agree to stipulate that he was

convicted of an offense that would have       prohibited him from

possessing a weapon. The court held that:

          a certain persons conviction cannot stand
          without proof that a defendant has been
          previously    convicted    of    an    offense
          specifically enumerated in the certain persons
          statute.     When a defendant refuses to
          stipulate to a predicate offense under the
          certain persons statute, the State shall
          produce evidence of the predicate offense: the
          judgment of conviction with the unredacted
          nature of the offense, the degree of the
          offense, and the date of conviction.

          [Id. at 31.]

     However, where there is a stipulation, "evidence of the

predicate offense is extremely limited: '[t]he most the jury needs

to know is that the conviction admitted by the defendant falls

within the class of crimes that . . . bar a convict from possessing

a gun[.]'"   Ibid. (quoting Old Chief v. United States, 
519 U.S. 172, 190-91 (1997)).

     Defendant's initial request would not have instructed the

jury that defendant had a prior conviction that brought him within


                               13                          A-1533-15T3
the certain persons statute. 
N.J.S.A. 2C:39-7.              This was the same

issue addressed in Bailey.      Without information about a qualifying

conviction, the State would not have met its burden of proof with

respect to one of the elements of the offense.                   When the State

rejected     this   proposed   stipulation,       the      defense     suggested

identifying the nature of the prior conviction because it had not

involved an act of violence. That was a strategic choice by the

defense, not an error by the court.

     Defendant      contends   the    trial    suffered     from     "cumulative

errors" that deprived him of a fair trial.                See State v. Simms,


224 N.J. 393, 407 (2016) (reversing conviction based on the

"cumulative effect of the errors").           In light of our opinion, this

argument is without sufficient merit to warrant discussion in a

written opinion.      R. 2:11-3(e)(2).

     We    reject   defendant's      contention    that    his     sentence   was

excessive.    Our review of a sentencing determination is limited.

State v. Roth, 
95 N.J. 334, 364-65 (1984).                We review a judge's

sentencing decision under an abuse of discretion standard.                 State

v. Fuentes, 
217 N.J. 57, 70 (2014). We must determine whether:

            (1) the sentencing guidelines were violated;
            (2) the aggravating and mitigating factors
            found by the sentencing court were not based
            upon competent and credible evidence in the
            record; or (3) 'the application of the
            guidelines to the facts of [the] case makes


                                      14                                 A-1533-15T3
          the sentence clearly unreasonable so as to
          shock the judicial conscience.'

          [Ibid. (alteration in original) (quoting State
          v. Roth, 
95 N.J. 334, 364-65 (1984)).]

     The sentencing guidelines were not violated in this case.

Defendant concedes that he was sentenced within the range, but

that it was near the maximum.         Where the aggravating factors

predominate, the sentence imposed can be toward the higher end of

the range, giving appropriate weight to all the factors.        State

v. Case, 
220 N.J. 49, 64-65 (2014).

     Here, the court found aggravating factors: 
N.J.S.A. 2C:44-

1(a)(3) the risk of re-offense; (6) the extent of defendant's

prior criminal record and the seriousness of the offenses; and (9)

the need to deter.   Defendant contends that the court focused on

defendant's record and not the seriousness of the offense.      Also,

defendant argues that the court should have found mitigating

factors: 
N.J.S.A. 2C:44-1(b)(1), that defendant did not cause or

threaten to cause serious harm; and (2) that defendant did not

contemplate that his conduct would harm or threaten to cause

serious harm.

     We perceive no mistake of discretion by the court.     The trial

court considered the two suggested mitigating factors and rejected

their application.   The court reasoned that defendant's conduct

caused   serious   harm   that   should   have   been   contemplated.

                                 15                           A-1533-15T3
Similarly, the court's analysis of the aggravating factors was not

mistaken given the offense and defendant's past criminal record.

There was nothing erroneous about the analysis nor did the sentence

shock one's conscience, given the nature of the offense.

     Affirmed.




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