STATE OF NEW JERSEY v. BRENT A. PETTIT
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3827-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRENT A. PETTIT,
a/k/a BRENT PETTIT,
KRIS N. CISROWE, and BRENT
PETITE,
Defendant-Appellant.
_______________________________________________
Argued December 11, 2017 – Decided March 22, 2018
Before Judges Messano and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 14-10-0764.
Rebecca Gindi, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Rebecca Gindi, of counsel and on the briefs).
Lila B. Leonard, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Lila
B. Leonard, of counsel and on the brief).
PER CURIAM
A jury convicted defendant Brent A. Pettit of third-degree
possession of heroin,
N.J.S.A. 2C:35-10(a)(1).1 The judge granted
the State's motion for an extended term of imprisonment,
N.J.S.A.
2C:44-3(a), and imposed a seven-year term with a three-and-one-
half years of parole ineligibility. Before us, defendant raises
the following arguments:
POINT I
THE HEROIN AND STATEMENT MUST BE SUPPRESSED
BECAUSE THEY WERE A COMPELLED RESPONSE TO
UNWARNED CUSTODIAL INTERROGATION.
A. THE TRIAL COURT CORRECTLY FOUND
THAT A REASONABLE PERSON IN PETTIT'S
SITUATION WOULD NOT HAVE FELT FREE
TO LEAVE AFTER POLICE REQUIRED THAT
HE EXIT SOMEONE ELSE'S CAR, AND
MULTIPLE OFFICERS IMMEDIATELY
ACCUSED HIM OF ENGAGING IN CRIMINAL
ACTIVITY.
B. THE TRIAL COURT'S FINDING THAT
THE OFFICERS' QUESTIONING WAS NOT AN
INTERROGATION WAS ERRONEOUS BECAUSE
THE OFFICERS TOLD PETTIT THEY
BELIEVED HE WAS SELLING DRUGS AND
ASKED HIM A QUESTION THAT WAS LIKELY
TO ELICIT AN INCRIMINATING
RESPONSE.
C. THE HEROIN AND STATEMENT "YEAH,
I DO" WERE COMPELLED RESPONSES TO
THE OFFICERS' CUSTODIAL
INTERROGATION AND MUST BE
SUPPRESSED.
1
Before trial, the State dismissed the second count of the
indictment charging defendant with possession with intent to
distribute.
2 A-3827-15T4
POINT II
BECAUSE THE TRIAL COURT FAILED TO VOIR DIRE
THE JURY AFTER LEARNING THAT AT LEAST ONE
JUROR WAS HAVING TROUBLE HEARING DEFENSE
COUNSEL DURING HER OPENING AND THE EXAMINATION
OF THE STATE'S KEY WITNESS – A CRITICAL
PORTION OF THE TRIAL – PETTIT WAS DENIED HIS
RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (NOT
RAISED BELOW).
POINT III
IMPOSITION OF A DISCRETIONARY EXTENDED TERM,
A SENTENCE WITHIN THE SECOND-DEGREE RANGE, AND
A DISCRETIONARY PAROLE DISQUALIFIER FOR THIRD-
DEGREE POSSESSION OF LESS THAN HALF AN OUNCE
OF CDS BASED ONLY ON DEFENDANT'S PRIOR RECORD
WAS INAPPROPRIATE AND RESULTED IN AN EXCESSIVE
SENTENCE.
Having considered these contentions in light of the record and
applicable legal standards, we affirm.
I.
Defendant moved pre-trial to suppress physical evidence
seized from his person without a search warrant, as well as
statements he made to police officers at the scene of a motor
vehicle stop. At the evidentiary hearing, Vineland Police Officers
Jose Torres and Christopher Ortiz testified, after which the judge
determined both officers were credible and made the following
factual findings. We defer to those findings because "the trial
court . . . had the opportunity to hear and see the . . .
witness[es] at the suppression hearing and to evaluate the
3 A-3827-15T4
credibility of [their] testimony." State v. Scriven,
226 N.J. 20,
32 (2016) (citing State v. Elders,
192 N.J. 224, 244 (2007)). We
uphold those factual findings because they are supported by
sufficient credible evidence in the record. Elders,
192 N.J. at
243.
The judge found that Officer Torres witnessed a motor vehicle
violation and lawfully stopped a car driven by Christopher
Constante. Torres knew Constante and the front-seat passenger,
Jessica Dakin, as "drug users," and defendant, seated in the rear,
as "a drug dealer." Torres called for backup and Ortiz arrived
shortly thereafter with two other officers.
Ortiz was also familiar with Constante and Dakin from prior
contacts, but he did not know defendant. The officers ordered
Constante, who appeared nervous and reluctant to talk while in the
car with the other passengers, out of the vehicle and to the rear
of the car. At that point, another officer located a piece of
suspected crack cocaine on the driver's seat. Ortiz issued
Miranda2 warnings to Constante, who provided further information
regarding defendant and Dakin.3 The officers asked defendant to
2
Miranda v. Arizona,
384 U.S. 436 (1966).
3
Although the judge did not provide the details of this additional
information in his findings, Ortiz testified that he asked
Constante, "what was going on" and Constante said he was driving
Dakin around so she could "possibly buy narcotics" from defendant.
4 A-3827-15T4
exit the car, and, when he did, without issuing Miranda warnings,
asked defendant "if there was anything on him that [they] should
be aware of." Defendant said, "'Yeah, I do,'" and removed twenty
packets of heroin from his waistband.
Although the judge did not specifically reference the
testimony in his factual findings, the record reflects that in
response to questions posed by the judge, Ortiz acknowledged that
from the moment crack cocaine was found on the front seat, he had
probable cause to arrest all three occupants of the vehicle. He
also said police would routinely "frisk" a defendant as part of
the arrest.
Following the testimony, defense counsel argued there was no
reason to order defendant out of the car and no authority for
police to question defendant without Miranda warnings. The
prosecutor countered by arguing defendant was not subject to
custodial interrogation but only "roadside questioning." The
prosecutor also contended police had probable cause to search
everyone in the car after finding crack cocaine on the front seat,
alluding to the inevitable discovery of the heroin on defendant.
The judge concluded Torres had reason to stop the car for a
motor vehicle violation, and the officers properly ordered
Constante out of the car. The judge determined that when police
discovered crack cocaine, "at that moment, . . . there was probable
5 A-3827-15T4
cause to arrest all of the individuals within the vehicle for the
possession of that controlled substance." Based upon Constante's
statements, the judge concluded police had "sufficient cause to
remove" both passengers from the car. The judge reasoned once the
crack cocaine was found, "this turned from a traffic stop into an
investigative stop[] into an arrest."
The judge concluded that the question posed to defendant —
"Do you have anything on you I should know about?" — "was not
asked to elicit any inculpatory evidence, or response." The judge
reasoned police ask such questions to prevent injury, because
"there may be injectables, or something like that involved."
Police also ask such questions "because, sometimes it's just easier
than frisking [the person], for them to produce anything they have
on them, and it's less intrusive on the side of the roadway." In
sum, the judge concluded "there was probable cause to
arrest. . . . [T]here was the intent to search, incident to
arrest, at the time. And, . . . the question . . . was a predicate
to the search, incident to arrest. It was not for the purposes
of interrogation." He denied the motion to suppress both the
physical evidence and defendant's response to the officers'
question.
Defendant argues that his answer to the officers' question
and his surrender of the heroin from his waistband were compelled
6 A-3827-15T4
responses to custodial interrogation without prior Miranda
warnings, and the judge should have suppressed both his statement
and the heroin. The State contends defendant was neither in
custody nor being interrogated when Officer Ortiz asked, "Do you
have anything on you I should know about?"
We do not defer to the judge's legal conclusions drawn from
established facts, because we review all legal issues de novo.
State v. Vargas,
213 N.J. 301, 327 (2013) (citing State v. Gandhi,
201 N.J. 161, 176 (2010)). The State's argument ignores the
judge's finding that not only was there probable cause to arrest
defendant before Ortiz asked the question, but also that Ortiz
"was intending to place [defendant] under arrest" when he asked
the question. Defendant correctly asserts, and the judge
essentially concluded, that defendant was not free to leave at
that point. See State v. P.Z.,
152 N.J. 86, 103 (1997) (holding
that "[t]he critical determinant of custody is whether there has
been a significant deprivation of the suspect's freedom of action
based on the objective circumstances").
As a result, the State's reliance upon cases like Berkemer
v. McCarty,
468 U.S. 420 (1984), and State v. Hickman,
335 N.J.
Super. 623 (App. Div. 2000), is misplaced. Those cases deal with
limited investigative detentions, not arrests, and permit police,
for example, to "ask the detainee a moderate number of questions
7 A-3827-15T4
to determine his identity and to try to obtain information
confirming or dispelling the officer's suspicions," without
providing Miranda protections. Berkemer,
468 U.S. at 439.
This case is most similar to the facts presented by State v.
O'Neal,
190 N.J. 601 (2007), upon which defendant relies. There,
after police observed the defendant engage in two drug transactions
and saw him stash the drugs in his sock, they approached and asked
"'what's going on?'" Id. at 607. Although the defendant denied
any wrongdoing, police patted down a bulge in his sock and asked
what it was. Ibid. Defendant admitted it was cocaine, and police
seized a bag containing vials of cocaine from his ankle area.
Ibid.
The defendant moved to suppress the incriminating statement
he made to police, arguing it was elicited without Miranda
warnings. Id. at 608. The trial court denied the motion,
concluding the defendant was not in custody, and we affirmed,
concluding Miranda warnings were unnecessary because the detention
was a valid investigatory stop. Id. at 609-10. Defendant was
convicted after trial, at which time his incriminatory statement
and the seized drugs were admitted into evidence. Id. at 610.
Viewing the facts objectively, the Court concluded the
officers "had probable cause to search and arrest [the] defendant."
Id. at 614. Furthermore, it did not matter whether the search
8 A-3827-15T4
preceded the arrest because "[i]t is the 'right to arrest,' rather
than the actual arrest that 'must pre-exist the search.'" Ibid.
(quoting State v. Doyle,
42 N.J. 334, 342 (1964)). The Court
"conclude[d] that the police had probable cause to arrest defendant
for a drug offense, and the seizure of the drugs during the search
that preceded the arrest was lawful." Id. at 615. The Court,
however, also concluded that defendant was in custody when police
asked what was in his sock. Id. at 616. We agree, therefore,
that defendant was in custody when Ortiz asked, "Do you have
anything on you I should know about?"
In O'Neal, because police had not issued Miranda warnings to
the defendant prior to posing the question, the Court held the
trial judge should have suppressed defendant's incriminatory
statement. Ibid. Defendant argues, therefore, the judge here
should have suppressed both his verbal response to the question
and his nonverbal response, i.e., producing the heroin from his
waistband. He relies in particular on our decision in State v.
Mason,
164 N.J. Super. 1 (App. Div. 1979).
There, police detained the defendant in an unmarked police
car, and, without giving her Miranda warnings, asked if she had
any drugs. Id. at 3. The defendant gave a noncommittal verbal
response but then produced drugs from her sweater. Ibid. We held
that her surrender of the drugs was a nonverbal response to
9 A-3827-15T4
interrogation that violated Miranda, and the trial court properly
suppressed the evidence. Id. at 4.
However, in Mason, we specifically rejected the State's
argument that the police conduct was "justified as incident to a
valid arrest[,]" because "the police did not arrest defendant but
chose to interrogate her." Ibid. As already noted, the motion
judge here concluded that police not only had probable cause to
arrest defendant but also intended to arrest him for the crack
cocaine found in the car before ever posing a question.4
That factual finding makes this case more similar to State
v. Barnes,
54 N.J. 1 (1969). There, police stopped a car driven
by the defendant, the subject of an arrest warrant because she had
escaped from prison. Id. at 4. After ordering everyone out of
the car, and arresting and handcuffing the defendant, police
transported the car a few blocks away to avoid a gathering crowd,
and, while conducting the initial cursory search of the car, found
stolen checks on its floor. Id. at 4-5. Without providing Miranda
warnings, police asked the defendant, "Whose stuff is this?" Id.
at 5. She answered the checks were hers. Ibid.
4
Defendant contends in his reply brief that "facts in the record
indicate that the officers would not have arrested [defendant]"
based solely on the crack cocaine found on the driver's seat
because they chose not to arrest Dakin, who was in closer proximity
to the drugs. The judge found otherwise, and we defer to those
factual findings.
10 A-3827-15T4
The Court specifically rejected the defendant's argument that
the officers' question violated Miranda, requiring suppression of
her answer. The Court said, "[W]e cannot believe that the
officer's single inquiry was the kind of custodial interrogation
which the Supreme Court in Miranda held to be barred in the absence
of prior warnings." Id. at 6-7; see also State v. Cunningham,
153 N.J. Super. 350, 351-54 (App. Div. 1977) (citing Barnes and finding
that even after Miranda warnings were issued and the defendant
invoked his right to remain silent, detective's question regarding
the defendant's address and with whom he lived did not violate
Miranda or require suppression of physical evidence found at the
address given).
The circumstances surrounding the question posed in this case
were qualitatively different from those presented in O'Neal.
There, police had witnessed defendant make two drug sales and hide
the drugs in his sock. They had physically frisked him and felt
the bulge in the same sock before asking what it was. The question
was clearly intended to elicit an incriminatory response. See
State v. Stott,
171 N.J. 343, 365 (2002) (citing Rhode Island v.
Innis,
446 U.S. 291, 301 (1980)). Here, as the judge found, the
circumstances were more ambiguous. Thus, we agree that the
officers' question in this case was not custodial interrogation
that violated Miranda.
11 A-3827-15T4
Even if our evaluation of the legal consequences flowing from
the particular facts of this case is incorrect, we still affirm
the denial of defendant's motion to suppress for other reasons,
only alluded to by the State and the judge. See State v. Scott,
229 N.J. 469, 479 (2017) ("It is a long-standing principle
underlying appellate review that 'appeals are taken from orders
and judgments and not from opinions . . . or reasons given for the
ultimate conclusion.'") (quoting Do-Wop Corp. v. City of Rahway,
168 N.J. 191, 199 (2001)).
In O'Neal, although concluding police violated Miranda, the
Court concluded the failure to suppress the statement was harmless
beyond a reasonable doubt.
The police had probable cause to search and
arrest defendant prior to asking the offending
question and would have discovered the cocaine
when they searched the sock. The fact that
defendant told the police what they were about
to discover had no bearing on the legality of
the seizure of the cocaine.
[O'Neal,
190 N.J. at 616 (emphasis added).]
We conclude the Court's reasoning applies with equal force to this
case.5
5
It is unnecessary to address whether the officers' question in
this case — "Do you have anything on you I should know about?" —
is the kind of "narrowly tailored" inquiry that falls within the
"safety exception to Miranda." O'Neal,
190 N.J. at 618 (citing
New York v. Quarles,
467 U.S. 649, 659 n.8 (1984)).
12 A-3827-15T4
Under the inevitable discovery doctrine, "[e]vidence is
admissible even though it was the product of an illegal[ity],
'when . . . the evidence in question would inevitably have been
discovered without reference to the police error or
misconduct[.]'" State v. Sugar,
108 N.J. 151, 156 (1987) (quoting
Nix v. Williams,
467 U.S. 431, 448 (1984)). The State must show
by clear and convincing evidence
(1) proper, normal and specific investigatory
procedures would have been pursued in order
to complete the investigation of the case; (2)
under all of the surrounding relevant
circumstances the pursuit of those procedures
would have inevitably resulted in the
discovery of the evidence; and (3) the
discovery of the evidence through the use of
such procedures would have occurred wholly
independently of the discovery of such
evidence by unlawful means.
[State v. Johnson,
120 N.J. 263, 289 (1990)
(citation omitted).]
Defendant correctly points out that the State's argument
before the motion judge, and its appellate brief before us, pays
little more than lip service to an assertion that inevitable
discovery justifies the warrantless seizure of heroin from
defendant. We recognize that the Court has cautioned against
review of issues not fully addressed by the parties in the trial
court, particularly when those proceedings "create[] a 'record
. . . barren of facts that would shed light on [the] issue.'"
13 A-3827-15T4
Scott,
229 N.J. at 479 (quoting State v. Witt,
223 N.J. 409, 418
(2015)). But, this is not such a case, because the record is
fully developed, and, contrary to defendant's argument in his
reply brief, the judge's factual findings support application of
the inevitable discovery doctrine.
The judge specifically found that police were in the process
of arresting defendant before Ortiz asked the offending question
and before defendant produced the heroin from his waistband. Ortiz
stated, when asked by the judge, that police routine would have
required him to "frisk" defendant at the time of arrest. Police
would have discovered the heroin even if Ortiz never asked
defendant a single question.
We affirm the denial of defendant's motion to suppress.
II.
We provide some factual context for the argument raised in
Point II. At trial, all the witnesses for the State and defense
testified in one day. After the first two witnesses testified,
the judge received a note from the jury attendant that a certain
juror wished to speak with him, and counsel agreed the judge and
counsel should speak to the juror outside the presence of the
14 A-3827-15T4
other jurors.6 Before that happened, the following exchange
occurred:
Judge: All right? The other one is – is that
another juror, I do not know which juror it
is – indicates that defense counsel needs to
speak up.
Defense counsel: Okay.
Judge: They're having trouble hearing you.
So you need to project a little bit more,
[counsel]; okay?
Defense counsel: Gotcha.
Defendant now argues it was plain error for the judge not to
conduct further inquiry of the unidentified juror who expressed
difficulty in hearing defense counsel. Defendant likens the
situation here to that where a juror is inattentive or asleep. In
State v. Mohammed,
226 N.J. 71, 75 (2016), the Court provided
guidance for trial judges when faced with such circumstances:
When it is alleged that a juror was
inattentive during a consequential part of the
trial, if the trial court concludes, based
upon personal observations explained
adequately on the record, that the juror was
alert, the inquiry ends. If the judge did not
observe the juror's attentiveness, the judge
must conduct individual voir dire of the
juror; if that voir dire leads to any
conclusion other than that the juror was
attentive and alert, the judge must take
appropriate corrective action.
6
At sidebar, the judge dealt with issues regarding that juror and
another which are irrelevant to defendant's argument.
15 A-3827-15T4
Here, there was no indication that the juror was inattentive
or asleep, or, for that matter, that he or she had not heard any
testimony. In his opening instructions, the judge told the jurors
to let him know if they had a problem hearing the witnesses, but
no one raised that issue with the judge. The argument requires
no further discussion. R. 2:11-3(e)(2).
III.
Lastly, defendant argues his sentence was excessive. He
contends the judge engaged in improper "double counting of his
criminal record," "overweigh[ed] . . . aggravating factors three,
six and nine," and "fail[ed] to find mitigating factors one and
two which were clearly supported by the record." We disagree and
affirm defendant's sentence.
The State moved to sentence defendant as a persistent
offender.
N.J.S.A. 2C:44-3(a). There is no dispute that he was
eligible, having had six prior indictable convictions. Once a
defendant is found to be a persistent offender, "the permissible
sentencing range expands; the maximum sentence of the higher-
degree range becomes the top of the extended-term range, while the
bottom remains the minimum sentence of the ordinary-term
sentencing range." State v. Hudson,
209 N.J. 513, 527 (2012)
(citations omitted). Thus, the range of possible sentences for
16 A-3827-15T4
defendant's third-degree conviction was three to ten years. As
noted, the judge imposed a seven-year term.
Defendant argues the judge used his prior criminal record to
both impose an extended term and set the actual term, which, he
contends, is a variation of impermissible double counting.7
However, in State v. Pierce,
188 N.J. 155, 170 (2006), the Court
made clear that in setting the appropriate term within the extended
range,
courts . . . will perform their sentencing
function by using the traditional approach of
finding and weighing aggravating and
mitigating factors and imposing a sentence
within the available range of sentences. That
determination will be reviewed for
reasonableness.
The court may consider the protection of
the public when assessing the appropriate
length of a defendant's base term as part of
the court's finding and weighing of
aggravating factors and mitigating factors.
The mechanics which must be followed by a sentencing court
in imposing a period of parole ineligibility are set forth in
State v. Kruse,
105 N.J. 354 (1987). "When determining parole
ineligibility . . . the court must be clearly convinced that the
7
The case cited by defendant in support of this proposition, State
v. Vasquez,
374 N.J. Super. 252, 267 (App. Div. 2005), is
inapposite since there we dealt with the use of the same
aggravating factors to impose an extended term above the then
permissible "presumptive" extended term sentence.
17 A-3827-15T4
aggravating factors substantially outweigh the mitigating factors.
The different standard reflects the fact that [p]eriods of parole
ineligibility are the exception and not the rule. They are not
to be treated as routine or commonplace." Id. at 359 (citation
omitted) (emphasis added).
"Appellate review of sentencing is deferential, and appellate
courts are cautioned not to substitute their judgment for those
of our sentencing courts." State v. Case,
220 N.J. 49, 65 (2014)
(citing State v. Lawless,
214 N.J. 594, 606 (2013)). We assess
whether the aggravating and mitigating factors "were based upon
competent credible evidence in the record." State v. Miller,
205 N.J. 109, 127 (2011) (quoting State v. Bieniek,
200 N.J. 601, 608
(2010)). We do not "'substitute [our] assessment of aggravating
and mitigating factors' for the trial court's judgment." Ibid.
(quoting Bienek,
200 N.J. at 608). When the judge has followed
the sentencing guidelines, and his findings of aggravating and
mitigating factors are supported by the record, we will only
reverse if the sentence "shocks the judicial conscience" in light
of the particular facts of the case. State v. Roth,
95 N.J. 334,
364 (1984); accord State v. Cassady,
198 N.J. 165, 183-84 (2009).
In this case, the judge carefully explained his findings as
to aggravating factors three, six and nine and explained why he
rejected certain mitigating factors. The judge made the necessary
18 A-3827-15T4
additional findings justifying imposition of a period of parole
ineligibility. We find no basis to disturb the judge's exercise
of his broad discretion.
Affirmed.
19 A-3827-15T4
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