March 31, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM SUAREZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-07-0698.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2008
Before Judges Lisa, Lihotz and Simonelli.
Defendant, William Suarez, was the subject of a ten-count indictment. After severance of six counts charging carjacking, robbery, and other offenses, defendant went to trial on the following four counts, which are the subject of this appeal: first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) (count one); third-degree unlawful possession of a handgun without a permit on December 30, 2003, N.J.S.A. 2C:39-5b (count two); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a(1) (count three); and third-degree unlawful possession of a handgun without a permit on December 31, 2003, N.J.S.A. 2C:39-5b (count nine). The jury found defendant guilty of all four counts. After merging count three with count one, the judge imposed a sentence for murder on count one of sixty years imprisonment with an 85% parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. On count two, the judge imposed a sentence of five years imprisonment consecutive to count one. On count nine, the judge imposed a five-year sentence with a two-year parole disqualifier consecutive to counts one and two. Therefore, defendant's aggregate sentence is seventy years imprisonment, of which he must serve 85% of sixty years plus an additional two years before being eligible for parole.
Defendant argues on appeal:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS BECAUSE SERGEANT PINHO'S INITIAL ENTRY INTO THE DEFENDANT'S APARTMENT WAS PRETEXTUAL AND WITHOUT LEGAL JUSTIFICATION, AND BECAUSE SERGEANT PINHO DID NOT OBTAIN A VALID "CONSENT" TO ENTER.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE ORAL AND WRITTEN STATEMENTS HE MADE TO THE POLICE.
THE TRIAL COURT FAILED TO APPLY THE "TOTALITY OF THE CIRCUMSTANCES" TEST IN ADMITTING THE DEFENDANT'S STATEMENTS.
THE POLICE FAILED TO "SCRUPULOUSLY HONOR" THE DEFENDANT'S INITIAL REQUEST TO SPEAK WITH AN ATTORNEY.
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN THE PROSECUTOR ELICITED TESTIMONY THAT THE DEFENDANT'S APARTMENT WAS SEARCHED AND THAT THE DEFENDANT WAS ARRESTED PURSUANT TO WARRANTS THAT WERE SIGNED BY "JUDGE MOYNIHAN." (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN DETECTIVE OLIVERO TESTIFIED THAT HE SPOKE TO "A CERTAIN PERSON THAT I CAN'T MENTION."
THE AGGREGATE 70 YEAR BASE CUSTODIAL SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION, AND VIOLATED STATE V. NATALE.
THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A BASE CUSTODIAL TERM ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE TERM OF 30 YEARS.
THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCES IMPOSED ON COUNTS ONE, TWO, AND NINE CONSECUTIVE TO EACH OTHER.
We reject these arguments and affirm.
On December 30, 2003, shortly before 6:00 p.m., defendant was an occupant of a 1988 Honda Accord, being driven in Elizabeth by Tomas Gonzalez.*fn1 Defendant was in the front passenger seat. Two women, Josanna Robles and Stephanie McDougald, were in the back seat. The car was owned by defendant's girlfriend, Vanessa Cambert.*fn2
The Honda was involved in a minor accident with a new 2004 Nissan Altima being driven by its sole occupant, Joshua Meltzer. Gonzalez drove away from the scene of the accident. According to him, it was a very minor collision, his driving privileges were suspended, he did not know whether Cambert's vehicle was insured, and he did not want to report the accident to the police. However, Meltzer followed the Honda, attempting to have it pull over.
Finally, Gonzalez drove into the rear of a supermarket parking lot. Meltzer followed. Meltzer got of his car, and all four occupants got out of the Honda.*fn3 Meltzer wanted to exchange insurance information. Defendant and Gonzalez (and perhaps the two women) attempted to "negotiate" with Meltzer. They refused to exchange information. Gonzalez reportedly offered to pay for any minor damage to Meltzer's car. Meltzer persisted and eventually took out his cell phone to call the police. Defendant grabbed the cell phone from Meltzer's hand and threw it toward a wall bordering the parking lot, on the other side of which was the Elizabeth River. Defendant directed the other three individuals to get back into the Honda. As they did, defendant removed a loaded .38 caliber handgun from his waist. Meltzer had just gotten back into the driver's seat of his car, with the door still open. From a range of one to two feet, defendant fired one shot into the back of Meltzer's head, causing his death. Defendant jumped back into the Honda and the four sped away from the scene, with Gonzalez driving.
Defendant lived in a two-bedroom, third floor apartment at 579 Madison Avenue in Elizabeth. Defendant and Cambert shared the back bedroom. Gonzalez and his girlfriend, Jeanette Perez, shared the other bedroom. Each of the men had a safe in his respective bedroom.
On December 31, 2003, an Elizabeth motorcycle officer saw a 1988 Honda Accord matching the description of one that was involved in a carjacking earlier that day in Union. The officer stopped the car, then driven by its only occupant, Jason Branch. The car also matched the description of one that had been involved in several robberies of fast food or convenience stores in the area. The officer began questioning Branch about the carjacking, and Branch volunteered that he was not involved in a bank robbery. This was unusual, because the officer did not mention a bank robbery. In any event, Branch informed the officer that three other occupants of the Honda had recently taken a taxi to go elsewhere. The police contacted the taxi company, and learned that the three occupants were taken to 579 Madison Avenue.
Detectives Stephen Owsiany and Keith White went to 579 Madison Avenue. Owsiany spoke to the building's owner and showed him composite sketches of suspects in the investigation pertaining to the robberies. The owner believed the sketches resembled the people occupying the third floor apartment. Other officers were called to the scene.
Sergeant William Pinho went to the front door of the third floor apartment, while Owsiany went to the rear. Pinho knocked on the door. He was in plain clothes but wearing his police badge around his neck. Cambert answered the door. Pinho identified himself as a police officer and said he was investigating a robbery and carjacking. Cambert allowed him into the apartment. Pinho saw a woman run down a hallway toward the rear of the apartment. He asked Cambert who else was in the apartment. She said no one else was there. Recognizing that this investigation involved individuals involved in violent crimes, who were armed with firearms during their commission, Pinho feared for his safety and went to the area of the apartment to which the woman apparently secreted herself. Other officers entered the apartment.
When Pinho entered the back bedroom, he did not see anyone, but he saw a piece of plywood covering the entry to a small attic crawl space. He removed the plywood and, with his weapon pulled, shined his flashlight into the crawl space. He saw two women hiding there. He directed them to come out. They refused. He reached in and pulled one out; the other followed.
With the illumination from his flashlight, Pinho observed in the crawl space large quantities of currency and unopened cellophane packets containing lottery tickets. The two women in the crawl space were Robles and McDougald. They were arrested, as was Cambert. Gonzalez and his girlfriend, Perez, were in Gonzalez's bedroom. They were also arrested.
Owsiany was in charge of the investigation. Upon learning of the presence of the currency and lottery tickets, he immediately directed that the other officers refrain from searching the apartment until after a search warrant was obtained.
While these events were occurring inside the apartment, there was an obvious police presence outside the apartment building. Defendant walked toward the apartment building. He was encountered on the front porch by a uniformed Elizabeth police officer, Lateef Banks, who was assisting in securing the perimeter, but was not familiar with or involved in the investigation being conducted by the detectives inside the apartment. Banks had known defendant from the neighborhood for about ten years, and he knew defendant's mother and other family members. Banks asked defendant if he lived in the building. When defendant responded affirmatively, Banks asked on which floor, to which defendant responded, "the third floor."
Accordingly, Banks detained defendant and placed him in the back seat of his patrol car. Banks sat in the front seat, and the two conversed for about twenty minutes.
The individuals arrested were being escorted from the building within the view of defendant and Banks. Defendant was not free to leave, and the State concedes that he was in custody. Banks did not administer Miranda*fn4 warnings. In the course of the conversation, Banks told defendant that defendant's mother was concerned about him and that he hoped that defendant was staying out of trouble and doing the right things. According to Banks, defendant volunteered, "Lateef, I got guns and money in the safe and the girls have nothing to do with nothing that's going on." Defendant was eventually transported to the stationhouse and arrested in connection with the investigation pertaining to the carjacking and bank robbery (later to include the convenience and fast food store robberies).
That evening, armed with a search warrant, police returned to the apartment and conducted a search. In the safe in the crawl space in defendant's bedroom they found several guns, including a .38 caliber revolver containing two live rounds.
They also found other ammunition and more than $5,000 in cash. In the safe in Gonzalez's room, the police found illegal drugs and drug paraphernalia.
Detective Ismael Olivero was assigned to investigate the murder of Joshua Meltzer. He began by going to the scene of that crime while Meltzer was still in the car and alive. Lifesaving efforts at the scene were attempted, and Meltzer was taken to a hospital, where he died. Meltzer's wallet was intact. His money and other items of value had not been removed. Thus, this was apparently not a robbery. Olivero had no leads.
The next day, when Olivero learned of the arrests made at 579 Madison Avenue, acting on a hunch that the same individuals involved in those violent crimes might have been involved in Meltzer's murder, he went to the Elizabeth jail and interviewed defendant. Although defendant was not a suspect in Meltzer's murder, Olivero, out of an abundance of caution, informed defendant of the nature of his investigation and administered Miranda warnings. Defendant initialed and signed the waiver form and agreed to speak to Olivero.
During the interview, he did not admit to any involvement in the shooting. However, in response to Olivero's questions, he said he had seen someone matching the description driving in the area about a week earlier. Olivero deemed these comments significant because the description defendant gave of the individual, including his size, build, and haircut, and the description of the car, matched Meltzer and his car very closely. He also stated that the car had temporary plates, which was consistent with Meltzer's car.
According to Olivero, defendant told him "if he did it, he wouldn't tell us, but if he knew who did it, he would tell us." According to Olivero, as the interview concluded, defendant said "don't put anything on me," meaning "don't frame me" for this murder. Defendant then said, "Do your homework and then once you do your homework you can come back and talk to me."
At 12:03 a.m. on January 1, 2004, Owsiany sought to interview defendant. He administered Miranda warnings and defendant initialed and signed the waiver form at 12:15 a.m. Defendant sought to terminate the interview, however, because he was tired. Owsiany complied and the interview ended. Owsiany resumed the interview later that morning, at 10:29 a.m. He again administered Miranda warnings, and defendant again initialed and signed the waiver form. Owsiany obtained a written statement from defendant regarding the robbery and carjacking offenses that occurred on December 31, 2003.
Over the several days following Meltzer's murder, Olivero obtained statements from others who were present when it occurred, describing the accident between the Honda and Meltzer's vehicle and the events in the supermarket parking lot. They said defendant shot Meltzer. With that information, Olivero obtained an arrest warrant for defendant for Meltzer's murder, and on January 3, 2004, while defendant was still in custody on the other charges, Olivero served the warrant, arrested him for the murder, and again advised him of his Miranda rights. Defendant initialed and signed the waiver form at 2:41 p.m. He gave a sworn written statement at 3:18 p.m. admitting he killed Meltzer. In particular, he described the events this way:
I had an accident at the stop sign, I got into an accident. I didn't see the car who was to the right of me. I turned right and I clipped him. I stopped the car, got out and we started arguing. Then I told [Gonzalez] to get in the car and let's go. [Gonzalez] got in the driver's side and took off. We went towards Elizabeth Avenue, and the guy that I got in the accident with was chasing us. When we got to Elizabeth Avenue [Gonzalez] made a left on Elizabeth Avenue. When we got to the parking lot by the liquor store I told [Gonzalez] to turn into the parking lot. Meanwhile, the guy was still behind us. We went behind the building. [Gonzalez] wanted to cut across the lot onto the next street by the high school. I told [Gonzalez] to stop the car, and that is when the car that was behind us was pulled behind us on the right side. Then I got out of the car and I started arguing with the guy. I told him what was the big deal about the minor bump, and he had his cell phone open trying to call 911. So I pushed him and snatched his cell phone and I threw it into the river. Then nobody in the car had knowledge that I had the gun in my waist.
By then they were all out of the car looking at us arguing. Then he got into his car and I told all of them to get back in the fuckin' car. When they were all in the car I was between the door and the car, and that is when I pulled out the gun, and his door was still open and I shot him in the head.
And after I shot him in the head everybody in the car was panicking and I -- and asking me why I shot him. I gave no response, but then I told them that if they say anything it will happen to them, too. [Emphasis added.]
Defendant's motion to suppress physical evidence seized from the apartment and his motion to suppress his oral and written statements were denied after a full evidentiary hearing. At trial, defendant's confession was read to the jury, including the passage set forth above, as well as other parts of his oral and written statements. A ballistics expert provided unrefuted testimony that the .38 caliber revolver found in defendant's safe was the murder weapon. A forensic expert provided unrefuted testimony that, based upon the damage to the 1988 Honda Accord and Meltzer's car, the two cars had collided with each other. Meltzer's cell phone was recovered from the Elizabeth River, and telephone company records established that he dialed 411 at 5:46 p.m. on December 30, 2003, which was ten minutes before the police were dispatched to the scene.
Gonzalez and Robles testified at trial. Gonzalez said as he was getting back into the Honda Accord, he heard a shot that came from outside the car, after which defendant "hopped in the car and I just pulled off." Robles said that after arguing with Meltzer and throwing his phone by the river, as Meltzer "was getting back into his car," defendant "shot the other dude in the head." Robles actually saw defendant shoot Meltzer and described how he was slumped over in the car with his door still open after being shot. This was consistent with police testimony that when they arrived at the scene the door was open, and Meltzer was slumped over, with one foot outside the door. Robles also testified that while the parties were in the same lockup, defendant communicated threats to her if she told what happened.
The defense strategy was to blame the murder on Gonzalez. Defendant testified at trial that Gonzalez argued with Meltzer regarding the accident and whether it should be reported, and then Gonzalez shot Meltzer. Defendant claimed that he and Gonzalez had access to each other's safes. Gonzalez denied that. Defendant said Gonzalez was a drug dealer and sometimes carried the .38 caliber revolver with him, although defendant admitted that he also sometimes carried that gun. Defendant contended that the day after the murder, he and Gonzalez put the murder weapon in defendant's safe.
At trial, defendant sought to repudiate his confession. He claimed that his girlfriend, Cambert, was two or three months pregnant. He was concerned for her well-being and wanted her to be released from custody. He claimed the officers told him on a number of occasions that if he would confess to the murder Cambert would be released. Indeed, shortly after he confessed, she was released on $2500 bail.
Defendant produced one other witness, a seventeen-year-old girl, Allison Matos. She is the daughter of Gonzalez's sister and friendly with defendant. She claimed that Gonzalez told her he committed the murder. She said this admission occurred on the night of the murder, when she saw Gonzalez with blood on his shirt and pants and said, "Oh, Tomas, you must have done something," and he said, "The murder that William is on trial for I did it." Matos never came forward with this information before the time of trial, more than two years after the crime. And, as argued by the prosecutor in summation, if her words are accepted as accurate, her description of what Gonzalez told her would make no sense, because on the night of the murder there was no reason to think that defendant (or anyone else) would be charged with the murder and, certainly, defendant was not then on trial for the murder.
Defendant argues that the physical evidence seized from the apartment at 579 Madison Avenue should have been suppressed because the initial police entry into the apartment was not pursuant to a valid consent, because no exigent circumstances justifying the entry existed, and thus, although a search warrant was later obtained, all evidence seized was the fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed. 2d 441, 455 (1963). We do not agree.
At the suppression hearing, Pinho provided unrefuted testimony regarding the circumstances of his entry into the apartment:
A: . . . . I proceeded to go to the third floor and I knocked on the door.
Q: What happened when you knocked on the door?
A: When I knocked on the door, a woman answered the door. I identified myself, I explained to her who I was. I told her we were investigating a possible robbery. She let me in and I continued to talk to her in -- I think it was the kitchen. There was a table there.
Q: When you went in, how were you dressed?
A: I was in plain clothes. I had a badge around my neck. I was with two or three other officers in plain clothes and I identified myself with the badge and identification.
Q: Once you got inside that apartment, what did you do?
A: I continued to explain to her the situation.
On cross-examination, he elaborated:
Q: Now, you say that the person who answered the door identified herself or not?
A: No, she opened the door. I identified myself.
Q: What did you tell her?
A: I told her we were investigating a possible robbery, carjacking.
Q: Why did you have to go inside to talk to her?
A: She actually let me in.
Q: I'm asking why did you have to go inside to talk to her?
A: Why wouldn't I?
Q: Couldn't you talk to her outside?
A: I could have.
Q: But you chose to --
A: I chose to take her welcoming and come inside. It is not odd for someone to do that, Counselor.
Pinho acknowledged that he did not believe he possessed probable cause to arrest anyone. He went to the apartment for the purpose of making an inquiry, pursuant to the investigation he was conducting.
The judge credited Pinho's testimony and found that Cambert "consented to let [the police] enter. . . . There is nothing here to show me that there was no consent." He further found that because the police were investigating violent crimes that had recently occurred involving armed perpetrators, the police were justified in proceeding to the back area of the apartment when Pinho saw someone run there and Cambert denied that anyone else was present. The judge found that the police had "a right to secure the premises to make sure they were not in danger. We are dealing with violent crimes here." The police did the minimum required to secure the premises, by locating and removing the two women from the crawl space, removing everyone from the apartment, and refraining from conducting a search until after a search warrant was obtained.
When Pinho saw the two women in the crawl space any contraband then observed was in plain view in a location in which the officers were permitted to look as part of their activities in conducting their protective sweep and securing the premises. That was not a search.
Defendant argues that the police entry into the apartment was not justified as a valid "consent search" because the State failed to prove that Cambert was aware of her right to refuse entry. Defendant relies upon the well established principle that a consent search is a recognized exception to the warrant requirement only upon a showing that consent was voluntarily given with knowledge of the right to refuse consent. See State v. Johnson, 68 N.J. 349, 353-54 (1975). This argument misperceives the nature of the police activity in entering the apartment. The officers were not there to search the premises, and they did not request permission to search the premises. They were there to make an inquiry pursuant to an investigation. They knocked on the door, and the apartment occupant willingly and voluntarily let them in. There is no requirement that the State prove that the occupant was aware of her right to refuse entry to the police. State v. Padilla, 321 N.J. Super. 96, 108 (App. Div. 1999), aff'd o.b., 163 N.J. 3 (2000). The entry here was lawful.
Once inside, as events unfolded, the police had a reasonable basis to fear for their safety. They were investigating violent crimes that had recently occurred involving firearms. They saw someone run to a back section of the apartment out of their view, and Cambert denied that anyone else was present. A protective sweep was well warranted. See State v. Henry, 133 N.J. 104, 118, cert. denied, 510 U.S. 984, 114 S.Ct. 486, 126 L.Ed. 2d 436 (1993); State v. Smith, 140 N.J. Super. 368, 372 (App. Div. 1976) aff'd o.b., 75 N.J. 81 (1977).
The trial court's factual findings are well supported by the record, see State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964), and we agree with the trial court's legal analysis in concluding that the police entry into the apartment was proper and that no unlawful search occurred.
Defendant argues that the trial court erred in denying his motion to suppress the oral and written statements he made to the police. Defendant contends the State used "unfair means" to obtain a confession. He contends the police placed undue coercion on him by telling him to "step up and be a man," and by using the circumstance of his girlfriend's custody and potential release to put pressure on him. Defendant further contends that the trial court failed to consider the totality of the circumstances in evaluating the voluntariness of his confession. Finally, at the Miranda hearing, defendant testified that he requested an attorney before making inculpatory statements but the police ignored his request and continued interrogating him. Therefore, defendant contends his statements should have been suppressed because the police failed to honor his request to speak to an attorney. We find these arguments unpersuasive.
To be admissible, a defendant's custodial statement must be the product of the voluntary, knowing and intelligent waiver of his or her constitutional right to remain silent. Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 707; State v. Knight, 183 N.J. 449, 461 (2005). The State must also prove beyond a reasonable doubt that a defendant's custodial statement was voluntary and was not made because the defendant's will was overborne. Knight, supra, 183 N.J. at 462. In determining whether a statement was made voluntarily, courts must look at the totality of the circumstances, including the character of the defendant and the nature of the interrogation. State v. Galloway, 133 N.J. 631, 654 (1993).
We first note that defendant makes no argument regarding the statements he made to Banks in the patrol car outside the apartment when he was first detained on December 31, 2003. For the sake of completeness, we observe that the trial court found that those statements were spontaneously made and were not the product of interrogation. Therefore, no Miranda warnings were required as a prerequisite to their admissibility. We agree with that conclusion.
We summarily dispose of the argument that defendant's later statements should have been precluded because the police failed to honor defendant's request to speak to an attorney. The police witnesses denied that defendant ever requested to speak to an attorney. The judge found that over the course of the several days that defendant was in custody, leading up to his ultimate confession on January 4, 2004, "he was Mirandized properly on five different occasions" between the two sets of investigators. The judge further found that defendant "never, repeat never, requested an attorney and on that key point I find him totally incredible." The judge credited the testimony of the police witnesses that defendant never requested an attorney. The judge's findings are well supported by the record. Locurto, supra, 157 N.J. at 470-71; Johnson, supra, 42 N.J. at 162. Therefore, there is no basis to preclude defendant's statements on this basis.
In evaluating defendant's understanding of the Miranda rights, the voluntariness of his waiver and, ultimately, the voluntariness of his statements, the judge considered defendant's significant record of arrests and experience with the criminal justice system and his ability to understand, read and write English. The judge took into consideration that defendant was held in the Elizabeth municipal jail for four days, rather than transferred to the county jail. The judge found that of no significance, noting that defendant had spent one-and-one-half to two years in a cell in Jamesburg and was therefore familiar with the experience. The judge further considered that defendant was offered food and water, and when he was tired during a statement, the police allowed him to rest until he was refreshed. Further, in defendant's statements, he repeatedly acknowledged that he was treated fairly, that the police made no threats against him, and the like. The police described defendant's demeanor during these sessions as calm, confident, and cooperative.
Considering all of these circumstances, the judge concluded that defendant was not coerced. With respect to defendant's girlfriend, the judge said:
Now, did he have a concern for the lady he loved? I am sure he did and that is the honorable thing to have but that does not mean that that concern was used as a hammer over him by the officers to make him give up what he didn't want to give up. Perhaps he considered it, part of his calculation to take care of his girlfriend. Perhaps that is true. But the ultimate issue is was that used to overcome his will and I find beyond a reasonable doubt it was not.
The judge's findings are amply supported by substantial credible evidence in the record. See Locurto, supra, 157 N.J. at 470-71; Johnson, supra, 42 N.J. at 162. And, the judge considered appropriate factors in evaluating the totality of the circumstances. See Knight, supra, 183 N.J. at 463-66.
We find no error in the trial court's determination that defendant was properly advised of his Miranda rights before making any statements while in custody in response to interrogation, that defendant understood his rights and knowingly and voluntarily waived them, that his will was not overborne, and that the statements he made were voluntary.
Defendant argues he was denied a fair trial because the prosecutor elicited testimony of the issuance of a search warrant to obtain a paint sample from the 1988 Honda Accord owned by his girlfriend and the issuance of an arrest warrant for defendant.
The search warrant was actually to obtain samples from Meltzer's car as well as the Honda, in order to enable forensic experts to analyze them to determine whether the two cars had collided with each other. The testimony about the search warrant and the arrest warrant was elicited by the prosecutor from Olivero as follows:
Q: Detective, I direct your attention to early the next day, which was January the 3.
Did you continue the investigation by going to obtain a search warrant from Judge Moynihan, a Judge of the Superior Court here in Union County.
A: Yes, I did.
Q: What was the focus of that search warrant, just in terms of what was the item that you were seeking to search?
A: Based on the information, we were trying to get search warrants for both cars to match the victim's car, the damage on the victim's car to the -- to any damage to the suspect's car.
Q: And while -- did you actually obtain that search warrant?
A: Yes, I did.
Q: Was that search warrant, subsequently, executed and the search was done in terms of the comparison between the two cars?
A: Yes, it was.
Q: While you were with Judge Moynihan, did you also obtain a Complaint for Mr. Suarez?
A: Yes, I did.
Q: Was that for murder?
A: That's correct.
Q: Do you recall about what time during the day on January 3, it was, that you went to meet with Judge Moynihan?
A: Early afternoon.
Defendant did not object to this testimony. We therefore consider the argument under the plain error standard and will reverse only if any error in admitting this testimony was clearly capable of producing an unjust result. R. 2:10-2. Not any possibility of an unjust result is sufficient. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Our Supreme Court has rejected the very argument made by defendant here:
We find those claims to be without merit. They have in common the proposition that the jury should be shielded from knowledge that search warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt. We are aware of no authority in support of such a rule. We are satisfied that a properly instructed jury will not presume guilt based on the issuance of a search warrant. We note, moreover, that the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly. [State v. Marshall, 148 N.J. 89, 240, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L. Ed. 2d 88 (1997).]
Defendant relies on our decision in State v. Milton, 255 N.J. Super. 514, 519-21 (App. Div. 1992), where we found an impropriety in the State's reference to an unexecuted search warrant for the person of the defendant. In Marshall, supra, the Court distinguished Milton, observing that the prosecutor's reference to a search warrant in that case "had the capacity to mislead the jury," a claim not made by Marshall. 148 N.J. at 240. The situation in the case before us is the same as in Marshall. There is no contention, and indeed no basis for such a contention, that the search warrant for paint samples and the arrest warrant for defendant on the murder charge in any way misled the jury. The fact that defense counsel did not object is strong evidence that in the context in which the information was presented and in the overall context of the trial, counsel did not perceive prejudice. Failure to object also deprived the trial court of any opportunity to take curative action, if such action was warranted. See State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001).
We are satisfied that the complained-of testimony did not have the capacity to lead the jury to a result it might not otherwise have reached. We find no error, let alone plain error.
We next consider defendant's argument that he was deprived of a fair trial because of Olivero's gratuitous comment in answer to a cross-examination question that he spoke to "a certain person that I can't mention." Defendant argues that this created the impression that an undisclosed witness, who did not testify at trial, provided inculpatory information against defendant.
Gonzalez's sister, Maria Parraguez (the mother of Allison Matos) apparently told the police initially that Gonzalez told her that defendant shot Meltzer. This information was provided to defendant in discovery. At the time of trial, however, the prosecutor announced he would not be calling Parraguez and disclosed that she also said that her brother admitted that it was he who shot Meltzer. Thus, Parraguez was available as a witness for the defense. Both sides chose not to call her, and the prosecutor agreed not to elicit any testimony about Parraguez's hearsay statements. The prosecutor said, "I might ask [Olivero] whether other statements were taken, but I'll not get into the content of the statements." Defense counsel responded, "Because, apparently, she gave a statement against Mr. Suarez, and they are not calling her as a witness, I don't believe. So it's hearsay, at this point." The prosecutor then said, "I'll not ask him about the contents of those statements, Judge." With those ground rules agreed upon, the prosecutor elicited this testimony on direct examination from Olivero:
Q: Did you receive information that there was -- that there were people that wanted to talk to you about this case at the Elizabeth Police Department?
A: Yes, I did.
Q: And did you, eventually, take a statement from a person in connection with the case when you got back to Elizabeth Police Department?
A: Yes, I did.
Q: Now, when you spoke with that person, was that, in fact, Maria Parraguez?
[DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: Objection sustained.
[PROSECUTOR]: I'm not offering -- I don't know what the objection is.
THE COURT: Well, we discussed, at side bar, you will not be asking questions about what Miss Parraguez said.
[PROSECUTOR]: I'm not getting into that, just the fact that he did that.
THE COURT: With that limitation, Counsel, you could proceed.
Q: Detective, without telling us what Miss Parraguez said, did you continue your investigation, from that point in time?
A: Yes, I did.
During cross-examination, Olivero made the complained-of comment, which we have highlighted:
Q: Okay. How long an interview did you have with Mr. Gonzalez before it was that he gave you your statement?
[PROSECUTOR]: Objection, Judge. I'm not sure how it's relevant to what Mr. Gonzalez, who has already testified here, who had an opportunity to be examined about the length of the interview, has anything to do with the examination done by Detective Olivero here.
[DEFENSE COUNSEL]: It has to do about the credibility of Mr. Gonzalez as a witness.
Q: How long?
A: I would say, a half hour.
Q: How many times did you have to say to him that he would be implicated if he didn't give a statement?
A: Sir, only once, because we utilized a certain person, that I can't mention.
[DEFENSE COUNSEL]: Judge, that is totally unnecessary.
[PROSECUTOR]: It's a fact in the case. He asked the question.
[DEFENSE COUNSEL]: Totally ridiculous comment.
THE COURT: Officer, just try to answer the questions without commentary. All right?
THE WITNESS: Yes, your Honor.
THE COURT: You will get an opportunity to say whatever you want to say when the Prosecutor questions you.
Q: One time?
During redirect examination, the prosecutor requested a sidebar. He advised the court that he anticipated a possible mistrial motion by the defense because of the complained-of comment by Olivero. The prosecutor suggested that he be permitted to elicit information clarifying that the person Olivero was referring to in the complained-of comment was Parraguez. Defense counsel responded that he had no objection to such a question "as long as it's tailored along the lines to just bring out he spoke to his sister or whatever she -- prior to giving the statement, not what was said, not what they talked to the sister about, just that." With both parties in agreement, the court authorized the prosecutor to question Olivero along those lines. The questioning was as follows:
Q: Detective, you were asked a number of questions on cross examination with regard to Tomas Gonzalez and your interview with him. And you've already stated that, in fact, there was some -- you said that he could be implicated in the murder, at some point. Is that correct?
A: That's correct.
Q: Was there, in fact, a meeting also between Tomas Gonzalez and Maria Parraguez, which immediately preceded his statement to you with regard to what happened at the homicide on December 30?
A: That's correct.
Defendant later moved for a mistrial, contending that Olivero's unsolicited comment was highly prejudicial and "[t]he jury is going to start speculating as to why is there a witness out there who this detective can't talk about." Defense counsel conceded that "the Prosecutor tried to clean it up on redirect, but I just don't think that was successful."
The judge was satisfied that the potential problem raised by the defense was cured by the State's redirect examination. Olivero did not say anything about the hearsay statements allegedly made by Gonzalez implicating defendant as the shooter. By clarifying that it was Parraguez who spoke to her brother before the police obtained a statement from him, there would be no basis for any speculation by the jury about the previously unidentified person Olivero referred to.
During the judge's final charge, he instructed the jury that evidence consisted only of "the testimony that you've heard and seen from this witness box and exhibits that have been admitted into evidence by Court order." (Emphasis added). The jury was also told that "speculation, conjecture and other forms of guessing play no role in the performance of [their] duties."
We presume that the jury understood and followed the instructions they were given. State v. Savage, 172 N.J. 374, 394 (2002). Although Olivero's gratuitous comment was improper, we agree with the trial court that any potential prejudice was eliminated by the clarifying redirect questioning, and further ameliorated by the jury instructions. A mistrial should be granted only where a manifest injustice would otherwise result. State v. DiRienzo, 53 N.J. 360, 383 (1969). We find no mistaken exercise of discretion in the denial of a mistrial here. See ibid.
Finally, we consider defendant's argument that his sentence was manifestly excessive. Defendant argues that the above-minimum base term on his murder conviction constituted a violation of the Supreme Court's holding in State v. Natale, 184 N.J. 458 (2005). We disagree. The Natale holding dealt with the impropriety of sentencing courts utilizing a presumptive sentence as a starting point, with the potential to adjust the sentence upward based upon judicial factfinding, rather than jury factfinding beyond a reasonable doubt. Id. at 484. Such is not the case with murder, which has no presumptive term. Stated simply, the Natale holding does not apply to murder.
Defendant further argues that the judge erred in finding certain aggravating factors and in imposing consecutive sentences. We disagree. We are satisfied from our review of the record that the aggravating factors found by the court were supported by competent and credible evidence in the record, that the court did not apply incorrectly the sentencing guidelines enunciated in the Code of Criminal Justice, that the judge articulated sufficient and well supported reasons for imposing consecutive sentences, and that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986); State v. Roth, 95 N.J. 334, 363-65 (1984).