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State v. Toro

Decided: December 5, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
OSMAN TORO, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Morris County.

King, Brody and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

Defendant was indicted together with Jose Alberto Lotaro Mazo for possession of a controlled dangerous substance, cocaine, in violation of N.J.S.A. 24:21-20(a)(1); possession of a controlled dangerous substance with the intent to distribute, in violation of N.J.S.A. 24:21-19(a)(1), and conspiracy to possess a controlled dangerous substance with the intent to distribute, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 24:21-24. Mazo absconded prior to trial and defendant was tried alone.

The State presented the following evidence at trial. Two State Police officers observed defendant's automobile weaving back and forth on Route 80 during the early morning hours of December 11, 1986. The officers also noticed that one of the vehicle's taillights was cracked. Consequently, they signaled the vehicle to the side of the road and asked defendant for his driver's license. Defendant was unable to produce a license.

The officers then observed a package wrapped with duct tape near defendant's feet which they suspected contained narcotics. At this point, the officers ordered defendant and his passenger, Mazo, out of the car and patted them down for weapons. Without administering Miranda warnings, one of the officers asked defendant what was in the package and his response was "coca." The officers then placed defendant and Mazo under arrest. As the officers placed handcuffs on Mazo, defendant said: "It's all my stuff. He doesn't have anything to do with it." However, defendant changed his story after he was brought to police headquarters and said: "It's both of ours." A laboratory analysis of the package disclosed that it contained 501 grams of 65.9% pure, free-base cocaine.

Defendant testified that he was a taxicab driver hired by Mazo to drive from New York City to Pennsylvania for $500. According to defendant, Mazo was carrying the package when he entered defendant's vehicle but did not disclose its contents until after the police apprehended them. Defendant also testified that, contrary to the police officer's testimony, Mazo placed the package by his own feet rather than by defendant's feet. Defendant stated that Mazo told him the package contained cocaine as the police were removing them from the car, and that he revealed this fact to the officers in response to their inquiry.

Based on this evidence, the jury found defendant guilty of possession of a controlled dangerous substance and possession with the intent to distribute but acquitted him on the charge of conspiracy to distribute. The trial judge merged the conviction for possession into the conviction for possession with the intent to distribute and sentenced defendant to life imprisonment. Defendant's subsequent motion for a reduction of sentence was denied.

On appeal defendant argues:

(1) His statements to the police regarding the contents and ownership of the package were the product of "custodial interrogation" conducted without Miranda warnings and therefore should not have been admitted into evidence.

(2) The trial judge should have precluded the State from presenting the testimony of its expert witness because the State failed to disclose his name or the subject of his testimony before trial.

(3) The trial judge erred in permitting the State's expert to testify that a person in possession of the quantity and purity of the cocaine found in defendant's automobile would be involved in the distribution of cocaine.

(4) The life sentence imposed upon defendant was excessive.

We reject the first three arguments and affirm the judgment of conviction. However, we conclude that the sentence of life imprisonment imposed on defendant was excessive and therefore remand for resentencing.

I

Miranda warnings are required only when a person is subject to "custodial interrogation." Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Police questioning under other circumstances does not involve "inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." 384 U.S. at 467, 86 S. Ct. at 1624. Consequently, the police are not required to give Miranda warnings before conducting "[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact finding process." 384 U.S. at 477, 86 S. Ct. at 1629; see generally LaFave & Israel, Criminal Procedure (1984), § 6.1 et seq.

In Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984), the Court relied upon the exception to the requirements of Miranda for "general on-the-scene questioning" in holding that roadside questioning of a motorist incident to a routine traffic stop does not constitute "custodial interrogation." The Court rested its holding on two grounds. First, "a traffic stop is presumptively temporary and brief" and thus "questioning incident to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek." 468 U.S. at 437-438, 104 S. Ct. at 3149. Second,

"the typical traffic stop is public, at least to some degree," which "reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist's fear that, if he does not cooperate, he will be subjected to abuse." 468 U.S. at 438, 104 S. Ct. at 3149.

The Court in Berkemer also analogized the "usual traffic stop" to a " Terry stop":

In both of these respects, the usual traffic stop is more analogous to a so-called " Terry stop," see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), than to a formal arrest. Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose "observations lead him reasonably to suspect" that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to "investigate the circumstances that provoke suspicion." United States v. Brignoni-Ponce, 422 U.S. 873, 881, 45 L. Ed. 2d 607, 95 S. Ct. 2574 [2580] (1975). "[T]he stop and inquiry must be 'reasonably related in scope to the justification for their initiation.'" Ibid. (quoting Terry v. Ohio, supra, [392 U.S. ] at 29, 20 L. Ed. 2d 889, 88 S. Ct. 1868 [at 1884].) Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not "in custody" for the purposes of Miranda. [468 U.S. at 439-440, 104 S. Ct. at 3150].

We read the foregoing passage to indicate that the police may conduct general on-the-scene questioning of a suspect, as authorized by Terry v. Ohio, without giving Miranda warnings. Only when "a suspect's freedom of action is curtailed to a 'degree associated with formal arrest'" will "the safeguards prescribed by Miranda become applicable." Berkemer v. McCarty, 468 U.S. at 420, 104 S. Ct. at 3140, quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77 L. Ed. 2d 1275 (1983); see also New York v. Quarles, 467 U.S. 649, 655, 104 S. Ct. 2626, 2631, 81 L. Ed. 2d 550 (1984); LaFave & Israel, supra, § 6.6 (1988 ...


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