STATEOF NEW JERSEY v. WALTER LOCKWOOD
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3851-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WALTER LOCKWOOD,
Defendant-Appellant.
______________________________
Submitted December 20, 2017 - Decided February 22, 2018
Before Judges Alvarez and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment No.
14-01-0001.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jack L. Weinberg, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Brian Uzdavinis,
Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Walter Lockwood appeals from his conviction
following a jury trial. After a review of his contentions in
light of the record before us and the applicable principles of
law, we affirm.
Defendant was charged in an indictment, along with others,
with manufacturing, distributing, or possessing with intent to
manufacture, distribute, or dispense less than one half ounce of
cocaine,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(3) (count
one); possession of heroin,
N.J.S.A. 2C:35-10(a)(1) (count four);
aggravated assault by attempting to cause bodily injury to a law
enforcement officer,
N.J.S.A. 2C:12-1(b)(5)(a) (count six); and
possession of a weapon — a machete — for an unlawful purpose,
N.J.S.A. 2C:39-4(d) (count seven). The charges arose out of
evidence seized from defendant's home following the execution of
a search warrant.
Several officers were involved in executing the no-knock
warrant and, upon entering the residence, they saw defendant and
several other individuals. Defendant was holding a machete that
he raised as the police came through the door, despite the officers
yelling "police" and "search warrant."1 When he refused to drop
the weapon, an officer lunged at him and the two men fell to the
ground and into a closet at which point defendant dropped the
1
All officers were wearing bullet proof vests with the word
"POLICE" written on the front and back of the vest and had their
badges visible upon entering the residence.
2 A-3851-15T1
machete. None of the other individuals on the premises resisted
arrest. Once the officers were able to handcuff defendant, Manville
Police Department Detective David Sheffrin advised defendant of
his Miranda rights, to which defendant replied, "Okay."
Officers proceeded to search defendant's residence where they
recovered a sealed glassine fold filled with heroin, a spoon
containing a liquid substance suspected to be heroin, and a
flowered pouch containing hypodermic needles and empty glassine
folds.2 The officers also found a utility bill bearing defendant's
name and the address of that location. Following the search,
Sheffrin went to speak with defendant who was seated in a patrol
car. Sheffrin testified that he reminded defendant that he had
been apprised of his Miranda rights. He then informed defendant
of the items found during the search of the residence, to which
defendant replied, "It's mine." None of the other individuals
present in the residence claimed ownership of the seized items.
Prior to trial, defendant filed motions to disclose the
identity of a confidential informant (CI), and to suppress the
2
The officers also recovered a purse holding hypodermic needles
and empty glassine folds appearing to have previously held heroin.
A woman who was in the apartment at the time of the search claimed
ownership of the purse.
3 A-3851-15T1
evidence seized from his residence. The judge3 granted the motion
to disclose the CI's identity. During oral argument on the
suppression motion, however, the State advised it would dismiss
count one of the indictment if the judge would reconsider her
decision requiring disclosure of the CI's identity. The judge
agreed, finding that the dismissal of count one would change her
analysis because the CI had no integral involvement in the events
surrounding the execution of the search warrant. The judge
accordingly entered an order on December 19, 2014, dismissing
count one and granting reconsideration of her prior decision to
disclose the informant's identity.
In addressing the motion to suppress evidence, defendant
argued that the no-knock search warrant was based upon "materially
false information," specifically with regard to a past conviction,
provided by Sheffrin and, therefore, the evidence recovered during
the search should be suppressed. In his testimony supporting the
issuance for the warrant, Sheffrin stated that defendant had "a
criminal history from 1981 [that included] an aggravated assault
on police."4 Sheffrin continued, reciting further history of
3
Three different judges handled the search warrant application,
the pretrial motions, and the trial.
4
Sheffrin referred to defendant's New Jersey Criminal History
Detailed Record which shows that defendant was found guilty of
4 A-3851-15T1
obstruction in 1991, third degree resisting arrest and eluding,
and a conviction of substance abuse in 2008. Defendant was also
a victim of a drive-by shooting outside of his home in 2012.
The judge considering the search warrant application found
probable cause to believe that a crime had been committed, and
that evidence of the crime might be found at defendant's residence.
She stated:
I will grant the no-knock warrant . . . based
upon the criminal history of [defendant] which
includes . . . some CDS and assault and eluding
violations . . . but also the fact that
approximately a year ago there was a drive by
shooting . . . at that residence and I believe
[defendant] . . . was the victim of that
. . . shooting . . . . [G]iven that concern,
I will . . . authorize a no[-]knock warrant.
In her comprehensive written decision addressing defendant's
motion to suppress the warrant, the judge noted that the criminal
history record listed the charge of aggravated assault on a police
officer. She also reviewed the transcript from the application
for the search warrant proceeding in which Sheffrin was asked by
the court: "[Defendant] has a criminal history from 1981 there was
an aggravated assault on police is that correct?" Sheffrin
aggravated assault on a police officer,
N.J.S.A. 2C:12-1(b)(5)(a),
in June 1981. In support of his motion to suppress the evidence
seized from the search warrant, defendant provided a Judgment of
Acquittal dated May 12, 1981, stating that he was found not guilty
on the charge.
5 A-3851-15T1
responded affirmatively. The judge found the detective's
affirmation was not false or misleading, noting that he did not
state that defendant "was found guilty for the aggravated assault,
just that it was included in his criminal history." "Referencing
inclusion of an offense in a defendant's criminal history does not
translate to the offense as an actual criminal conviction." She
denied defendant's motion, stating that even if that portion of
Sheffrin's testimony was disregarded, there was still ample
evidence for a sufficient finding of probable cause to justify the
issuance of the warrant.
Defendant's case was tried before a jury on several dates in
January 2016. At the close of the State's case, defendant moved
for a judgment of acquittal under Rule 3:18-1. In denying the
motion, the trial judge stated:
[t]here is certainly sufficient evidence with
regard to the ag[gravated] assault and the
weapons offenses. There's direct testimony,
as a matter of fact, from the witnesses
indicating the elements with regard to those
charges.
As to the CDS charge, yes, there [are]
four people in the apartment. Clearly it is
the defendant's apartment. Clearly there are
drugs there, heroin specifically as defined
by the chemist, and there apparently is an
admission by the defendant that it was his,
and the jury will take those factors into
consideration.
6 A-3851-15T1
After being convicted on the remaining counts in the
indictment, defendant renewed his motion for a judgment of
acquittal, specifically as to the possession charge. He argued
that since there were other individuals found in the location
where the heroin was seized, that it was against the weight of the
evidence to conclude that the drugs were his. The judge denied
the motion, stating:
clearly there was an indication in the case
that the defendant did not use heroin . . .
himself but used other drugs. And it was
apparent from the testimony in this case that
this was basically a drug house and that there
was pretty open notorious use of drugs . . .
there, and that was backed up by the search
warrant that was executed by the police.
In the charge to the jury, I know that
the Court gave the charge that there were
concepts of joint possession; that people can
share custody and control of various items
within the household. In addition to that,
we have the heroin found at his house. We
have the defendant admitting that it was his
when questioned by the police. . . .
[C]onsidering the evidence, . . . the jury
could find beyond a reasonable doubt that he
was guilty of that offense.
Defendant also filed a motion for a post-verdict jury inquiry
and requested a new trial based on the juror issue. Defense
counsel advised that, several days after the verdict, her office
had received a call from an attorney on behalf of a juror who
advised that the juror was "afraid of [defendant]" because he had
7 A-3851-15T1
given her a "dirty look" during trial. Although the attorney had
subsequently reached out to the juror several times, she had
stopped returning his calls. Defense counsel was concerned that
if this juror had relayed the information to any other jurors, it
might have played an "inappropriate part in their deliberations."
She requested the court interview the juror to determine if "there
was any taint during the deliberation, or at any part prior to the
jurors deliberating."
In a thorough oral decision, the trial judge denied the
request for a juror inquiry and for a new trial on those grounds.
He carefully considered the applicable rules and case law and
determined that that the information provided was too speculative
to vault the high threshold required to recall a jury. He noted
the lack of information concerning the juror's observations,
surmising that defendant might have reacted to a testifying police
officer with a "dirty look" or made an expression while testifying
himself. The jury had been advised that part of their
responsibility was to judge the credibility of the witnesses. In
doing so, they are instructed to take into account a "variety of
factors[,] including their appearance, [and] their demeanor during
the course of the trial."
Defendant presents the following issues on appeal:
8 A-3851-15T1
POINT I: THE COURT DEPRIVED THE DEFENDANT OF
A FAIR TRIAL WHEN IT PERMITTED THE STATE TO
PROCEED WITHOUT IDENTIFYING THE CONFIDENTIAL
INFORMANT. IN THE ALTERNATIVE, THE COURT ERRED
WHEN IT DID NOT RECONSIDER WHETHER THE SEARCH
WARRANT WAS BASED ON STALE INFORMATION AFTER
IT DETERMINED THAT THE STATE DID NOT HAVE TO
REVEAL THE IDENTITY OF THE CONFIDENTIAL
INFORMANT. (PARTIALLY RAISED BELOW).
POINT II: THE COURT ERRED WHEN IT DENIED THE
DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE
SEIZED PURSUANT TO A SEARCH WARRANT. THE
STATE'S FAILURE TO ADVISE THE ISSUING COURT
THAT THE DEFENDANT WAS ACQUITTED OF THE CHARGE
OF AGGRAVATED ASSAULT ON A POLICE OFFICER
CONSTITUTED FALSE AND MISLEADING INFORMATION.
THERE WAS NO JUSTIFICATION FOR THE ISSUANCE
OF A NO-KNOCK PROVISION TO THIS WARRANT.
POINT III: PROSECUTORIAL MISCONDUCT DURING THE
TRIAL AND SUMMATION DEPRIVED THE DEFENDANT OF
A FAIR TRIAL. (PARTIALLY RAISED BELOW).
POINT IV: THE COURT ERRED WHEN IT DENIED THE
DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL
PURSUANT TO R. 3:18-1. IN THE ALTERNATIVE, THE
COURT ERRED WHEN IT DENIED THE DEFENDANT'S
MOTION FOR A NEW TRIAL PURSUANT TO R. 3:18-2
AND 3:20-1.
POINT V: THE TRIAL COURT ERRED IN DEALING
WITH THE POST-VERDICT JUROR ISSUE. THE COURT'S
FAILURE TO PROPERLY INVESTIGATE THE SITUATION
HAS DEPRIVED THE DEFENDANT OF A FAIR TRIAL,
ONE THAT INSTILLS CONFIDENCE IN THE VERDICT.
We have carefully considered each of defendant's contentions
and find them to be without merit. Count one of the indictment
was based on a CI's controlled purchases of controlled dangerous
substances from defendant. After the State dismissed that count,
9 A-3851-15T1
the CI was no longer "an active participant in the crime for which
defendant [was] prosecuted." State v. Foreshaw,
245 N.J. Super.
166, 180-81 (App. Div. 1991) (citing State v. Oliver,
50 N.J. 39,
42, 45 (1967)). The remaining charges stemmed from the evidence
seized following the search of defendant's residence. Under those
circumstances, the judge did not abuse her discretion in denying
disclosure of the CI's identity. The New Jersey Supreme Court has
affirmed that a motion to compel the disclosure of an informer
should be denied if the informer only played a marginal role in
the events leading up to the arrest, "such as providing information
or 'tips' to the police or participating in the preliminary stage
of a criminal investigation." State v. Milligan,
71 N.J. 373, 387
(1976); see also State v. Brown,
170 N.J. 138, 149 (2001).
Although not raised to the trial court, defendant argues on
appeal that, upon denying the disclosure of the CI's identity, the
motion judge should have reconsidered whether the information
relied upon in the search warrant application was stale. We must
consider whether the totality of the information in the affidavit
permitted the judge who issued the warrant to find "a fair
probability that contraband or evidence of a crime [would] be
found" if defendant's premises were searched during the time
permitted in the warrant. State v. Smith,
155 N.J. 83, 93 (1998).
In short, staleness is a question of whether probable cause existed
10 A-3851-15T1
both when the warrant was issued and at the time of the search.
State v. Blaurock,
143 N.J. Super. 476, 479 (App. Div. 1976).
Here, defendant failed to demonstrate plain error under Rule
2:10-2 because the probable cause that existed when the warrant
was issued still existed at the time of the search. The warrant
issued on November 12, 2013, was based on Sheffrin's testimony
that defendant engaged in two controlled buys with a CI on October
6 and November 7, 2013. The judge found "probable cause to believe
that [a] crime has been committed and that evidence of that crime
may[] be . . . found at the [defendant's] residence." The search
was executed on November 13, 2013. As the warrant was issued and
executed within one week of the most recent controlled buy from
defendant, there was a fair probability that evidence of the crime
would be found at the time of the search.
We next consider defendant's argument that the motion judge
erred in denying the suppression of the evidence seized pursuant
to the warrant because the warrant was based on false testimony.
"We are bound to uphold a trial court's factual findings in a
motion to suppress provided those 'findings are supported by
sufficient credible evidence in the record.'" State v. Watts,
223 N.J. 503, 516 (2015) (quoting State v. Elders,
192 N.J. 224, 243-
44 (2007)).
11 A-3851-15T1
As the search of defendant's residence was executed pursuant
to a warrant, it enjoys a presumption of validity. See State v.
Marshall,
199 N.J. 602, 612 (2009). Defendant's burden in
challenging the search is "to prove 'that there was no probable
cause supporting the issuance of the warrant or that the search
was otherwise unreasonable.'" State v. Jones,
179 N.J. 377, 388
(2004) (quoting State v. Valencia,
93 N.J. 126, 133 (1983)).
To support his claim of suppression here, defendant must
make "a substantial preliminary showing" of material falsity, by
specifying the information that the police included or withheld
from the judge, "either deliberately or with reckless disregard
of the truth." State v. Dispoto,
383 N.J. Super. 205, 216 (App.
Div. 2006) (quoting State v. Sheehan,
217 N.J. Super. 20, 25 (App.
Div. 1987)), aff'd as mod. on other grounds,
189 N.J. 108 (2007).
The defendant must also show that the false or withheld information
was material because it "would have militated against issuance of
the search warrant." Ibid. (quoting Sheehan,
217 N.J. Super. at
25).
In his challenge to the warrant, defendant claims that
Sheffrin intentionally made a false statement that defendant was
convicted of a previous aggravated assault charge. In her
consideration of this argument, the motion judge concluded that
the detective had not made an affirmative misleading or false
12 A-3851-15T1
statement. Furthermore, there was ample evidence to support the
finding of probable cause to issue the warrant. Defendant had an
extensive criminal history (even disregarding the 1981 aggravated
assault charge), there was testimony regarding controlled buys
made from defendant, and the purchased substance was tested and
confirmed to be cocaine. We are satisfied that the judge's
determination to deny the suppression motion was based on the
sufficient credible evidence in the record.
Defendant argues that he was deprived of a fair trial due to
prosecutorial misconduct during trial and summation. He refers
to testimony given by Sheffrin at trial, who, while detailing the
items found during the search of defendant's apartment, referred
to a spoon that he described as containing liquid heroin.5
Following a defense objection, the judge advised that the
prosecutor should just refer to the spoon as containing "a liquid."
The prosecutor confirmed with Sheffrin that the liquid in the
spoon had not been tested to confirm that it was heroin. During
his summation, the prosecutor referred to "the spoon with the
substance in it that Detective Sheffrin thought to be." Defense
counsel objected before the prosecutor could finish his sentence.
5
The substance in the spoon was never tested by a lab to confirm
its identity.
13 A-3851-15T1
The court sustained the objection and the prosecutor continued
with his argument without ever naming the substance in the spoon.
While a "prosecutor may be zealous in enforcing the law[,]
. . . he must nevertheless refrain from any conduct lacking in the
essentials of fair play." State v. Wakefield,
190 N.J. 397, 437
(2007) (quoting State v. Siciliano,
21 N.J. 249, 262 (1956)).
Where a prosecutor's "conduct has crossed the line and resulted
in foul play," reversal of the judgment is proper. Ibid. As
such, "in order to justify reversal, the misconduct . . . must
have been 'clearly and unmistakably improper,' and . . . 'must
have been so egregious that it deprived the defendant of a fair
trial.'" Id. at 438 (quoting State v. Smith,
167 N.J. 158, 181-
82 (2001)).
In considering accusations of improper comments by the
prosecutor, we examine whether defense counsel made a timely
objection, whether the prosecuting attorney withdrew the remarks,
and whether the judge acted promptly and provided appropriate
instructions. See State v. Smith,
212 N.J. 365, 403 (2012). Here,
defense counsel objected both to the comments made during
Sheffrin's testimony and during summation. The judge sustained
the objections, and the testimony and argument continued without
incident. Defendant has failed to demonstrate that these fleeting
comments were so egregious as to require a new trial.
14 A-3851-15T1
Defendant points to an additional comment made by the State
in summation when it asked the jury to assess the credibility of
the defense witnesses who had felony convictions against the
testifying police officers. Defendant did not object to the
comment and we are satisfied the statement was not "clearly capable
of producing an unjust result." R. 2:10-2. The State was
commenting on evidence in the record. Two of the testifying
defense witnesses had admitted to criminal convictions.
Furthermore, defense counsel had argued to the jury in her
summation that police "have an interest in the outcome of [a]
case." And, that just because some of the witnesses had
convictions that "does not mean that everything they say is a
lie." The State is permitted to properly respond in its summation
to arguments made by the defense. We are satisfied that it did
so properly here.
We also conclude that defendant's arguments that the trial
judge erred in denying his motions for acquittal and a new trial
are without merit. The State presented testimony that a search
of defendant's apartment recovered a sealed glassine fold filled
with heroin, a purse holding hypodermic needles and empty glassine
folds appearing to have previously held heroin, a spoon containing
liquid suspected to be heroin, and a flowered pouch containing
hypodermic needles and empty glassine folds. Defendant admitted
15 A-3851-15T1
ownership of all of the items to the police.6 There was ample
evidence presented for a jury to render its determination of guilt.
"[A] motion for a new trial is addressed to the sound discretion
of the trial judge, and the exercise of that discretion will not
be interfered with on appeal unless a clear abuse has been shown."
State v. Russo,
333 N.J. Super. 119, 137 (App. Div. 2000) (citing
State v. Artis,
36 N.J. 538, 541 (1962)).
Defendant finally argues that the trial court erred in its
handling of the post-verdict juror issue by failing to conduct an
adequate investigation to insure defendant was not deprived of a
fair trial. We disagree. We review a trial court's determination
whether to conduct a post-verdict juror inquiry against the abuse
of discretion standard and accord deference to the trial court's
"unique perspective." State v. R.D.,
169 N.J. 551, 559 (2001).
Post-verdict juror inquiry is an "extraordinary procedure"
invoked only where a defendant makes a "strong showing" of harm
by "jury misconduct." State v. Griffin,
449 N.J. Super. 13, 19
(2017) (quoting Davis v. Husain,
220 N.J. 270, 279 (2014)). A
"bald accusation" that jurors considered extraneous information
6
At trial, defendant did not deny that he had made the statement
to the police. He did deny that any of the seized items were his,
however, and said he told the police otherwise because he was
angry and thought if he took ownership, the police would release
the other people.
16 A-3851-15T1
or some outside influence tainted the jury is simply not enough
to reconvene a jury that convicted a defendant. State v. Harris,
181 N.J. 391, 503-04 (2004); see also State v. Keodatich,
112 N.J.
225, 289-90 (1988).
Here, defense counsel's office received a communication from
an unidentified female juror's7 attorney stating that the juror
was "afraid of [defendant]" because defendant allegedly "gave her
a dirty look" during trial. Defendant sought a post-verdict juror
inquiry to determine whether a dirty look played an "inappropriate
part in [the jury's] deliberations."
The trial court took the appropriate steps to investigate the
issue: the presiding criminal judge contacted the unidentified
juror's attorney for more information, but the juror was no longer
responsive. The judge, thereafter, denied defendant's motion,
reasoning that there was insufficient information to "take the
drastic extreme step of calling this jury back" to inquire whether
anything had occurred that affected their verdict. We are
satisfied that the trial court did not abuse its discretion in
denying defendant's motion because defendant failed to make a
strong showing of potential jury misconduct.
Affirmed.
7
It was unknown whether the juror in question participated in
deliberations or was selected as an alternate.
17 A-3851-15T1
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