March 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILFREDO SUAREZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-05-1151.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 3, 2007
Before Judges Parrillo, Graves, and Alvarez.
Defendant, Wilfredo Suarez, appeals a jury verdict finding him guilty of conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, for which crime he was sentenced to five years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The jury acquitted him of the remaining counts of the indictment, including four counts of first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). We affirm the judgment of conviction.
All the charges arose from a robbery at a McDonald's orchestrated by defendant, his former girlfriend, Jennifer Brana, and Daniel Alfaro. Brana and Alfaro, who had previously worked together at the restaurant, were co-defendants also named in the indictment. Brana and Alfaro testified at trial, as did three of the McDonald's employees named as robbery victims in the indictment. Brana said that defendant conceived the idea of the robbery; Alfaro claimed that Brana and defendant developed it together. It is undisputed, however, that Brana convinced Alfaro to participate in the robbery. On January 8, 2005, as prearranged, she called Alfaro at approximately 5:30 a.m. to alert him to the fact that it was the appointed day. When Alfaro arrived for work approximately fifteen minutes later, he saw defendant sitting on the curb, wearing a mask and a hooded sweatshirt. Alfaro called the manager to let him in through the locked back door. When the manager opened the door, defendant ran inside. While holding the employees at gunpoint, he removed $600 from the safe. He took everyone's cell phones except for Alfaro's, and struck Alfaro a few times in order to make him appear innocent of any involvement. While defendant and Brana were at a laundromat that afternoon, he told her about the robbery, including the fact that he was armed and took money from the safe. Alfaro eventually admitted his involvement in the crime, as did Brana.
At trial, Alfaro and Brana acknowledged receiving favorable pleas in exchange for their testimony. Both pled guilty to third-degree conspiracy to commit robbery. Brana was admitted into PTI while Alfaro was sentenced to probation.
Immediately prior to the start of the trial, defense counsel moved to strike Brana's testimony entirely, or in the alternative, to conduct a taint hearing in accord with State v. Sugar (Sugar I), 84 N.J. 1, 25 (1980). Defense counsel made the application because the State sent Brana, after defendant had been indicted and had been assigned counsel, to meet with him on two different occasions at the county jail while wearing a wire. The wire malfunctioned completely during the first meeting and nothing whatsoever was recorded. At the second meeting, only Brana's voice was generally audible. Since the encounters garnered no useful recording, the State contended no taint hearing was necessary and agreed to simply limit Brana's testimony solely to the facts and circumstances leading up to and immediately subsequent to the robbery.
On appeal, defendant raises the following points:
THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO COUNSEL WERE FLAGRANTLY VIOLATED BY THE STATE'S TAPING OF CONVERSATIONS BETWEEN THE INDICTED, REPRESENTED DEFENDANT AND HIS CO-DEFENDANT GIRLFRIEND NECESSITATING DISMISSAL OR RETRIAL. U.S. Const., Amends. VI, XIV; N.J. Const. (1947), Art. 1, par. 10.
THE STATE COMMITTED PREJUDICIAL MISCONDUCT BY CONTINUALLY IMPLYING THAT THE PROSECUTOR WAS ARGUING FROM PERSONAL KNOWLEDGE. U.S. Const., Amend. XIV; N.J. Const. (1947), Art. I, par. 10. (Not raised below)
As contended by defendant, there can be no doubt that the use of a wire was prosecutorial misconduct which violated defendant's Sixth Amendment right to counsel. U.S. Const. amend. VI. Equally clearly, however, Brana's testimony was admissible because it was derived from an indisputably independent source, namely, her role as a co-conspirator actively involved in the crime and as defendant's then girlfriend.
Evidence is admissible, even if obtained illegally, when it would have been inevitably "discovered without reference to the police error or misconduct." Nix v. Williams, 467 U.S. 431, 448, 104 S.Ct. 2501, 2511, 81 L.Ed. 2d 377, 390 (1984). The inevitability of the discovery must be established by the State by clear and convincing evidence. State v. Sugar (Sugar II), 100 N.J. 214, 240 (1985). Here, the evidence the State presented through Brana's testimony existed before the taping, was information within the knowledge of a willing witness, and does not on its face appear to have been obtained by Brana during the course of her jailhouse meetings with defendant. Furthermore, the actual tapings were an abject failure. As a result, the State was not in a better position post-taping than they were prior to engaging in their improper efforts. Comparable to evidence that would have been inevitably discovered, Brana's testimony was properly admitted because the information she had about the crime was acquired independent from the taping efforts. See State v. Holland, 176 N.J. 344, 354-60 (2003). Thus, the State's proofs were not enhanced by the improper conduct. Accordingly, the failure to conduct a taint hearing, although error in light of Sugar I's mandate, was harmless error.
This conclusion is reinforced by three additional considerations. First of all, the four victims testified in virtually identical terms to Brana's description of the robbery as told to her by defendant during their post-robbery conversation at the laundromat. Similarly, her testimony about events leading up to the robbery was in complete accord with Alfaro's, except that he referred to the plan for the robbery as having been developed by defendant and Brana, while she described it as solely defendant's idea.
Second, the jury heard Brana exhaustively cross-examined about the dramatic difference between her admission into PTI and the possible eighty-year sentence she might have received if convicted of all charges. Alfaro was also extensively cross-examined about his favorable plea bargain in comparison to the sentencing potential if convicted at trial. These favorable sentences no doubt contributed to the jury's decision to convict defendant of only one offense, conspiracy, the charge to which Brana and Alfaro entered guilty pleas.
Third, the efforts to record defendant did not provide the State with any useful material. Nonetheless, defendant contends that since Brana did not provide police with a written statement until after the failed taping efforts, there is no way to verify that her trial testimony would actually be limited to information she knew before the failed taping attempts. For that reason alone, so goes the argument, her testimony should have been barred. In this case, however, as the circumstances of the plot and the crime itself were relatively simple, and Brana's testimony included only information she knew as a co-conspirator, the argument is without merit.
It is true, as defendant points out, that there was no way for Brana to be cross-examined about the level of animus she felt towards him as reflected in her efforts at taping their conversations. But the jury was made aware that they were no longer romantically involved, and the jury could draw their own conclusions about her feelings towards him as she voluntarily testified against him at trial. Indeed, Brana was actually cross-examined about her animosity towards defendant, thus it was not prejudicial that she could not be cross-examined about the taping attempts.
Lest we be misunderstood, in the more typical situation, a witness directly involved in a prosecuting authority's effort to wiretap a represented defendant would be excluded from testifying absent, at a minimum, a taint hearing. Sugar I, supra, 84 N.J. at 25-26. The conclusion we reach here is based on the narrow facts of this case.
In Sugar II, the court reiterated that it is necessary to conduct hearings as to whether witnesses can testify truthfully despite their "taint" when they are directly involved in an illegal wiretap. Sugar II, supra, 100 N.J. at 227. In this case, the intercept was not between an attorney and his client, however, but between co-conspirators. The wiretap was entirely ineffective mechanically and as a separate consideration, yielded no useful information. Although the circumstances are quite different, nonetheless, a taint hearing should have been conducted once requested by defendant. Although the trial judge did not explain why he did not conduct a taint hearing, he reasoned that Brana's testimony should not be barred because the wire failed and she had the right to testify about her conversations with defendant regardless. Given prosecutorial misconduct of this magnitude a taint hearing was necessary. The law requires it. Failure to do so in this case, as noted, was harmless error. See State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)).
As to defendant's second point, that the prosecutor's opening and closing statements were improper, only brief comment is warranted. The claim must be considered under the plain error standard as during the trial no objection was made to the statements. See R. 2:10-2 (defining plain error as error "clearly capable of producing an unjust result"). Defendant contends that the prosecutor described events as if coming from personal knowledge, as opposed to a summary of testimony of witnesses. No objection whatsoever was made to the State's opening. An unrelated objection was made to the closing. "Generally if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." State v. Frost, 158 N.J. 76, 83-84 (1999) (citing State v. Ramseur, 106 N.J. 123, 323 (1987)). Further, "[t]he failure to object suggests that counsel did not believe the remarks were prejudicial at the time they were made." Id. at 84. The prosecutor's recitation of the facts was nothing more than a review of the testimony of witnesses in narrative form. The record is devoid of any statements which suggested personal knowledge. No error was therefore committed.
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