March 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES BASKERVILLE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-06-0810.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2007
Before Judges Axelrad and Payne.
Defendant, James Baskerville, appeals from his convictions on one count each of third-degree burglary, N.J.S.A. 2C:18-2, and third-degree theft, N.J.S.A. 2C:20-3, as well as from his extended-term sentence of seven years with a three-year parole disqualifier for the burglary.
On appeal, defendant raises the following issues:
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS THE RESULT OF THE TRIAL COURT'S FAILURE TO SANITIZE ALL OF THE DEFENDANT'S PRIOR CONVICTIONS DEEMED ADMISSIBLE TO IMPEACH HIS CREDIBILITY. (Not Raised Below.)
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED BY THE PROSECUTOR DURING CROSS-EXAMINATION OF THE DEFENDANT REFERENCING THE DEFENDANT'S FAILURE TO PROVIDE CERTAIN INFORMATION WHICH HE TESTIFIED TO DURING DIRECT EXAMINATION TO THE POLICE, THE PROSECUTOR'S OFFICE OR ANYONE ELSE FOLLOWING HIS ARREST. (Not Raised Below.)
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS.
THE TRIAL COURT ERRED IN ITS ASSESSMENT OF APPLICABLE AGGRAVATING AND MITIGATING FACTORS IN IMPOSING SENTENCE.
THE DEFENDANT IS ENTITLED TO A REMAND FOR A RESENTENCING PURSUANT TO STATE v. PIERCE.
We affirm defendant's convictions and remand for resentencing.
The record of the suppression hearing establishes that, in April 2004, after a string of local, residential burglaries, occurring on weekend evenings, the Edison Police Department set up a task force to apprehend the culprit. At approximately 7:50 p.m. on April 18, 2004, Edison Detective Thomas Lacik, a member of the task force, was patrolling in an unmarked car in the area of 231 West First Street. At that time, he observed an African-American man wearing dark clothing, later identified as defendant, come onto the roadway from behind shrubbery on a corner lot. When the person observed Lacik, he paused, appearing that he would go back into the bushes. However, he did not, but instead looked down and started cleaning his glasses, and then continued walking while still cleaning, eventually reaching a car parked at some distance from the spot where he had initially emerged. His eyes never made contact with Lacik's approaching vehicle.
Suspicious, Lacik requested Detective Darren Cerminaro, patrolling in another unmarked car, to follow defendant while Lacik investigated the neighborhood for signs of burglary, which were found at the fourth house that Lacik explored, located at 236 West First Street. There, Lacik found the rear door of the darkened house open and a window smashed with a rock, the residents absent, and two of the bedrooms ransacked. Upon discovering that a burglary had occurred, Lacik informed Cerminaro and requested that he stop defendant.
Detective Cerminaro testified that he received Lacik's request after he had followed defendant for approximately three-quarters of a mile into Plainfield. Cerminaro, in turn, radioed for a marked vehicle to assist in stopping defendant's car, and the stop was accomplished after defendant had been boxed in between the vehicle operated by Cerminaro and the marked police vehicle. Once stopped, Cerminaro approached defendant's vehicle, looked down at defendant's waist to see if he was reaching for a weapon, and in doing so, observed a "cluster of gold jewelry" between defendant's legs. Cerminaro then opened the car's door, removed defendant, handcuffed him, and informed defendant of his Miranda rights.*fn1 A search incident to arrest disclosed more jewelry in defendant's right jacket pocket, as well as $215 in currency. Later, the jewelry and money were found missing by the residents of the burglarized house, and the burglary's spoils were identified and returned to them.
Detective Lacik testified that, after defendant was taken to police headquarters, Miranda warnings were again administered in the cell block area, and administered for a third time in the interview room, at which time an acknowledgement of the warnings was signed by defendant. Defendant did not request the presence of a lawyer or assert his right to silence. During the course of ensuing questioning by Lacik and Cerminaro, defendant admitted to committing the burglary that had just occurred, without giving any specifics of what had taken place. He refused to admit to any of the prior crimes. Defendant refused to provide a written or taped statement.
At the conclusion of the suppression hearing, the motion judge found the testimony of Detectives Lacik and Cerminaro to be credible. He further found that defendant's appearance from behind bushes on a Sunday evening in a residential area in which there had been a string of robberies was suspicious, and that the police's reasonable suspicions that defendant might be a burglar were heightened when Lacik determined that a burglary had just occurred in the immediate area. Those suspicions, the judge found, provided sufficient grounds for Detective Cerminaro's action in stopping defendant's vehicle. Thereafter, the stolen jewelry was seen in plain view by Cerminaro as he looked at defendant waist area to determine whether he was reaching for a weapon. The presence of the jewelry, the judge found, provided grounds for defendant's arrest, and discovery of the remaining jewelry and cash was the fruit of a proper search incident to arrest. Additionally, the judge found that defendant had received the requisite Miranda warnings, and that defendant had voluntarily, knowingly and intelligently waived his Miranda rights prior to his admission that he had committed the burglary discovered by Lacik, which admission was procured without coercion or threats. As a consequence, the judge permitted the introduction into evidence of the fruits of defendant's crime, as well as his admission that he had committed it.
At trial before a different judge, defendant testified that he was innocent of all burglaries, that he was in the area for benign purposes and that, when returning to his car, he had followed a trail of dropped jewelry, which he had merely picked up, not stolen. He testified:
Well, it was dark out. I had my glasses on because basically I can't see without them. And as I was heading towards the front of the car coming to the driver's side, I, accidentally I stepped on something. I didn't know what it was at the time but I stepped on something. And I had sneakers on, and whatever it was, you know, it imbedded into my sneakers. I picked my feet up to see what it was. I pulled something out, and, um, I stepped on something else. I couldn't see what it was so I slid my foot, you know kick it to see what it was. I seen something was shiny. I picked up two or three items, opened up my car door, got in the car. I turned my interior light on to see what it was. And once I saw what it was, it was some jewelry, I put it on the passenger side of my car seat, on the passenger. I just put it on the passenger side, cut the light out, and continued to go home.
At the conclusion of the trial, defendant was acquitted by the jury of charges relating to other burglaries, but was convicted of the burglary and theft occurring on April 18, 2004. As stated, he was sentenced to seven years in custody, with a three-year parole disqualifier.
As an initial matter, we reject defendant's challenge on appeal to the motion judge's denial of his suppression motion. In this regard, we find that, once the police had confirmed the recent occurrence of a burglary in an area near where defendant emerged from the bushes, their reasonable suspicion that defendant was the culprit provided a sufficient basis for their stop of defendant's vehicle. State v. Pineiro, 181 N.J. 13, 20-21 (2004); State v. Nishina, 175 N.J. 502, 511 (2003); State v. Stovall, 170 N.J. 346, 356-57 (2002). Once stopped, Detective Cerminaro's observation of the interior of defendant's car from his position next to the driver's door, which disclosed jewelry in plain view in defendant's lap, was unexceptionable. State v. Johnson, 171 N.J. 192, 206 (2002). Defendant's subsequent arrest, based upon evidence of a recent burglary in an area in which defendant had been seen and the disclosure of jewelry in defendant's possession, was supported by probable cause. State v. O'Neal, 190 N.J. 601, 612-13 (2007). The search of defendant's person and discovery of additional jewelry and cash was validly conducted as a search incident to arrest. State v. Eckel, 185 N.J. 523, 528-30 (2006). As a final matter, evidence of proper administration of Miranda warnings, and the lack of any evidence of defendant's exercise of his Miranda rights, or of coercion or threats during questioning, rendered defendant's subsequent confession to the April crime properly admissible. State v. Adams, 127 N.J. 438, 444-46 (1992).
Defendant also argues that the trial judge committed plain error by partially sanitizing his criminal record to omit specific reference to his substantial history of similar theft-related crimes while disclosing the existence of a drug conviction. State v. Brunson, 132 N.J. 377, 394 (1993) establishes that the judge was mistaken in employing the selective sanitation of which defendant now complains. The State concedes as much. However, we find that, in light of the manifest evidence of defendant's guilt of the particular crimes of which he was convicted, the error does not warrant reversal, since it clearly was incapable of producing an unjust result. State v. Macon, 57 N.J. 325, 336 (1971). The judge gave a proper and complete limiting instruction as to the jury's use of prior convictions, State v. Sands, 76 N.J. 127, 142 n.3 (1979); State v. Sinclair, 57 N.J. 56, 63 (1970), and it is highly unlikely that the jury would have assumed from the partial sanitization that the sanitized crimes consisted of theft-related matters. Even if it did so, as we have stated, defendant's guilt was manifest.
Defendant also claims plain error in cross-examination conducted by the State, which defendant claims violated his right to remain silent.
As we have noted, despite his prior confession, at trial defendant denied having committed the April 18 robbery, instead testifying that he had happened upon a trail of jewelry, which he innocently scooped up and placed in his car. Additionally, defendant testified that, without provocation, he had been stopped by the police, pulled out of his car, placed on the ground at gunpoint, and arrested; only later, after the police found jewelry on the passenger seat, being advised that the arrest was for burglary.
Upon cross-examination, the following exchange occurred.
Q: After this incident happened, did you go back to the Edison Police Department and go to Internal Affairs, police internal affairs, and say these police officers unjustly picked me, put a gun to me and charged me with these crimes, and I'm innocent. Did you go to anybody and explain about that?
A: No, I didn't.
After establishing that the Middlesex County Prosecutor's Office supervises the Edison Police Department, this additional exchange occurred:
Q: During the course of this case, did you ever approach me or any prosecutor telling that you were unjustly prosecuted and put a gun to you head by the Edison Police Department?
Q: You're telling the jury today that that's the story that happened that day?
A: No, I'm telling them what happened that day.
Q: But this is the first time you're telling anyone, both sides, your defense attorney, what happened?
A: Would you have listened if I told you?
Q: I might have if you told me something if it was the truth.
No objection to this line of questioning was raised by counsel during trial testimony. Nonetheless, defendant now claims that it was objectionable. The right to remain silent while in custody or during interrogation is a "fundamental aspect" of the privilege against self-incrimination, recognized at common law as well as by statute and court rule. State v. Muhammad, 182 N.J. 551, 567 (2005) (quoting State v. Deatore, 70 N.J. 100, 114 (1976)); N.J.S.A. 2A:84A (codifying Rules of Evidence); N.J.R.E. 503). Although a suspect's silence may be ambiguous, courts presume that it indicates a desire to take advantage of the privilege. Ibid. As a consequence, a jury may not permissibly infer guilt from such silence. Ibid. Moreover, "a defendant is under no obligation to volunteer to the authorities at the first opportunity the exculpatory story he later tells at his trial and cannot be penalized directly or indirectly if he does not." Id. at 570 (quoting Deatore, supra, 70 N.J. at 115).
In its brief on appeal, the State argues nonetheless that the cross-examination of defendant was proper, as recognized in the Court's recent decisions in State v. Brown, 190 N.J. 144 (2007), State v. Elkwisni, 190 N.J. 169 (2007) and State v. Tucker, 190 N.J. 183 (2007). We agree that the cross-examination would have been proper if it attacked defendant's credibility by pointing out the differences between various statements given by defendant. See Tucker, supra, 190 N.J. at 190 ("We hold that whether the asserted inconsistencies by a defendant are between two or more statements or between a statement and testimony at trial, the State may seek to impeach the validity of those statements.") We are far less confident that a defendant who has given a post-arrest statement can be cross-examined regarding his failure to provide an exculpatory version of events at that time, except in those circumstances in which he claims that the exculpatory version was given previously, but was not recorded. Compare Elkwisni, supra, 190 N.J. 177-79 ("once defendant testified concerning statements he made to the police after his arrest about the coercion and intimidation he experienced in the store [where the crime occurred], the State may fairly cross-examine defendant concerning those statements") with id. at 180 (expressing "some reservation" regarding cross-examination concerning silence at time of arrest).
Nonetheless, we are satisfied that in the present case, any error that may have occurred was cured as the result of the trial judge's prompt recognition that the cross-examination might be deemed improper, defense counsel's curative statements in his closing argument, and the judge's thorough instruction to the jury when striking the testimony at issue. In this regard, prior to summations, the trial judge identified the cross-examination at issue, stating that as a result of the testimony, she would charge the jury on the right to remain silent. Then, during the course of his summation, defense counsel emphasized defendant's right to remain silent. And finally, the judge instructed the jury:
During cross-examination of the defendant, Mr. Baskerville, the prosecutor asked why he did not inform the police about his finding the jewelry that evening. It is the constitutional right of every person to remain silent. One's failure to disclose an exculpatory or innocent explanation to the police at the time of one's arrest or sometime thereafter is not -- that statement is not required. You may not consider the defendant's failure to tell the police that he found the property near his car that evening in deciding this case or in judging the credibility of the defendant in court. A defendant cannot be penalized if the first time he testifies as to what occurred takes place in the courtroom at the time of trial. A defendant is under no obligation to volunteer information to authorities.
Additionally, the judge informed the jury that any testimony that she had stricken from the record was not evidence and could not be used by the jury in its deliberations.
We regard the judge's instruction to have been adequate to cure any prejudice that may have resulted from the prosecutor's challenged cross-examination. State v Farrell, 61 N.J. 99, 107 (1972).
As a final matter, we concur with the parties' position that defendant is entitled to resentencing on his burglary conviction pursuant to State v. Pierce, 188 N.J. 155, 171 (2006) and on his theft conviction pursuant to State v. Natale, 184 N.J. 458, 492 (2005). In light of our remand for resentencing, we decline to address defendant's remaining sentencing arguments, which we permit defendant to raise before the sentencing judge.
Defendant's conviction is affirmed; the matter is remanded for resentencing.