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State v. Chappee

Decided: June 19, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DOUGLAS DAVID CHAPPEE AND GLEN FULLER, DEFENDANTS-APPELLANTS



On appeal from the Superior Court, Law Division, Middlesex County.

Morton I. Greenberg, J. H. Coleman and Long. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.

Greenberg

This matter comes on before this court on appeals by defendants Douglas D. Chappee and Glen S. Fuller from convictions and sentences entered on their pleas of guilty in these criminal cases. We consolidate the appeals for disposition in this opinion.

The proceedings started when defendants were indicted in Middlesex County for the following offenses: possession of a controlled dangerous substance, marijuana, N.J.S.A. 24:21-20(a)(4) (count one); possession of a controlled dangerous substance, methaqualone, N.J.S.A. 24:21-20(a)(1) (count two); possession of a controlled dangerous substance, cocaine of which more than 3.5 grams was free base, N.J.S.A. 24:21-20(a)(2) (count three); possession of a controlled dangerous substance with intent to distribute, more than 3.5 grams of free base cocaine, N.J.S.A. 24:21-19(a)(2)*fn1 and N.J.S.A. 24:21-19(b)(2) (count four); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count five).

On July 2 and July 9, 1981, defendants moved for admission of counsel pro hac vice, Chappee seeking to have John Van Ness, a Colorado attorney, admitted and Fuller seeking to be represented by Keith Stroup, a member of the District of Columbia bar, and his partner, a Mr. Pritzler, a member of the Illinois bar, partners in a four person multi-state firm. Judge

Hamlin denied these motions, noting the difficulties in scheduling cases when out-of-state counsel are involved and the complications their admission could cause. Further, the judge considered that the nature of the case was such that in-state counsel could ably represent defendants.

On July 17, 1981 defendants moved (1) to suppress evidence recovered from the trunk of the car in which they were riding when arrested; (2) to dismiss part of the indictment based on an alleged unconstitutionality of the New Jersey statute classifying cocaine as a narcotic; (3) to dismiss the indictment by reason of an underrepresentation of women in the position of grand jury foreperson; (4) to sever count five of the indictment; (5) to dismiss the indictment because it contained multiplicious charges, and (6) for Judge Hamlin to recuse himself from hearing the suppression motion as he issued the warrant for the search. The judge at that time made no ruling on the first three motions but denied the last three.

After evidentiary hearings, Judge Hamlin denied defendants' motion to dismiss the indictment based on the allegation there had been discrimination against women in the position of grand jury foreperson on March 8, 1983 and denied the motion to suppress in a written opinion dated August 6, 1983. In denying the motion to dismiss Judge Hamlin pointed out that the duties of a foreperson are ministerial. The motion to dismiss the indictment on the grounds that cocaine was unconstitutionally classified as a narcotic was denied and that issue is not raised on this appeal.

Another significant pretrial proceeding related to a plea agreement offered to defendants providing for maximum incarceration of Chappee and Fuller of two years and six years respectively. Fuller accepted the offer immediately but Chappee hesitated. The State rescinded the offer before it was put on the record and before Chappee accepted or rejected it. Defendants subsequently moved to enforce the offer but on April 29, 1983 Judge Muscatello denied their motion.

Chappee moved for a severance of his case from Fuller's. While this motion was initially granted, on the State's interlocutory appeal on leave granted we reversed and remanded the matter to the trial court for a hearing, at which the motion was denied.

Pursuant to a plea agreement, reserving to defendants the right to appeal from certain of the pretrial orders, on April 10, 1984 defendants pleaded guilty to count four of the indictment. On November 20, 1984, Fuller was sentenced to a term of 20 years and a fine of $25,000 and on March 18, 1985 Chappee was sentenced to a term of seven years and a $5,000 fine. The remaining counts were dismissed.

Defendants appeal raising the following issues. Chappee asserts:

(1) The consent to search the trunk, sought during custodial interrogation, was invalid under the state and federal constitutions because no Miranda warnings or other advisement of the right to counsel and the consequences of the consent were given.

A. Defendants were in custody and subjected to custodial interrogation at the time consent to search was sought.

B. The failure to administer Miranda warnings prior to the custodial interrogation in which consent was sought invalidated the purported consent.

1. Miranda warnings must precede a request for consent.

2. Regardless of whether Miranda warnings are per se a prerequisite to a valid consent, where consent is obtained as the tainted and derivative fruit of a Miranda violation, the consent is invalid and the product of the ensuing search must be suppressed.

C. Under the New Jersey Constitution, Article I Paragraph 7, a consent during custodial interrogation is valid only if preceded by warnings adequate to insure an effective waiver and relieve the compulsion inherent in custodial interrogation. These must include advisements of the right to counsel and the consequences of consent.

(2) The conduct of the hearing on the motion to suppress was prejudicially erroneous, and a remand for a new hearing on the motion is required.

A. The preclusion of defendants' proffered expert testimony on the issue of defendant Fuller's lack of capacity in the circumstances to give a voluntary and knowing consent was prejudicially erroneous.

B. The judge presiding at the motion to suppress erred in failing to disqualify himself, since he had issued the search warrant after a testimonial hearing at which he passed on the credibility of one of the State's key witnesses and determined one of the central facts at issue on the motion.

(3) The State's withdrawal of the plea bargain violated New Jersey law and policy; the State falsely induced Chappee and Fuller to waive their constitutional rights; the precedent will cause plea negotiations to become unworkable.

(4) The arbitrary denial of counsel of choice violated defendants' Sixth Amendment rights.

(5) Discrimination against women in the selection of grand jury forepersons constitutes a constitutional violation.

(6) Denial of Chappee's motion for a severance constituted a prejudicial abuse of discretion.

Fuller claims:

(1) The consent to search the trunk, sought during custodial interrogation, was invalid under the state and federal constitutions because no Miranda warnings or other advisement of the right to counsel and the consequences of the consent were given.

(2) The conduct of the hearing on the motion to suppress was prejudicially erroneous, and a remand for a new hearing on the motion is required.

(3) The State's withdrawal of the plea bargain violated New Jersey law and policy; the precedent will cause plea ...


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