April 1, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EMERY R. CHAPMAN A/K/A EMORY RODDERICK CHAPMAN, DAVID MOREIES, PEADRO MORELES, FACE CHAPMAN, JAHAD MORALES, EMORY CHAPMAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-01-0042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2007
Before Judges Cuff and Simonelli.
Defendant Emery Chapman was indicted for fourth degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(3) (count one); third degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b (counts two and five); third degree receiving stolen property, contrary to N.J.S.A. 2C:20-7 (count three); third degree possession of a controlled dangerous substance (CDS), cocaine, contrary to N.J.S.A. 2C:35-10a(1) (count four); and second degree possession of a weapon by a convicted person, contrary to N.J.S.A. 2C:39-7 (counts six and seven). Defendant also received four summonses for the following motor vehicle violations: driving with a suspended license, contrary to N.J.S.A. 39:3-40; careless driving, contrary to N.J.S.A. 39:4-97; failure to stop at a stop sign, contrary to N.J.S.A. 39:4-144; and operating a motor vehicle with possession of a CDS in a vehicle, contrary to N.J.S.A. 39:4-49.1
The trial judge dismissed count three prior to the trial. A jury convicted defendant on the remaining counts. At sentencing, after granting the State's motion to sentence defendant to a discretionary extended term as a persistent offender, the judge merged counts two and five into counts six and seven, and sentenced defendant to concurrent extended fourteen-year terms of imprisonment on counts six and seven, with a seven-year period of parole ineligibility, and concurrent four-year terms of imprisonment on counts one and four. The judge also imposed the appropriate penalties, fees and assessments, and suspended defendant's driver's license for two years.
On this appeal, defendant raises the following arguments:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE EVIDENCE WAS OBTAINED AFTER AN ILLEGAL STOP.
A. THE POLICE STOPPED THE SUV BASED ON A HUNCH.
B. THE POLICE DID NOT STOP THE SUV BASED ON ITS FAILURE TO STOP AT A STOP SIGN.
C. THIS CASE IS DISTINGUISHABLE FROM THE "PRETEXT" LINE OF CASES.
MR. CHAPMAN'S SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING PURSUANT TO STATE V. PIERCE, 188 N.J. 155 (2006).
MR. CHAPMAN'S SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT ILLEGALLY IMPOSED TWO DISCRETIONARY EXTENDED TERMS.
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
A. THE TRIAL COURT IMPERMISSIBLY SENTENCED MR. CHAPMAN TO AN EXTENDED TERM AS A PERSISTENT OFFENDER.
1. The Court Never Qualified Mr. Chapman as a Persistent Offender.
2. The Trial Court Could Not Have Used Mr. Chapman's Prior Convictions as a Basis for Qualifying Him as a Persistent Offender.
B. THE TRIAL COURT IMPERMISSIBLY COUNTED AN ELEMENT OF A CRIME AS AN AGGRAVATING FACTOR TO ENHANCE MR. CHAPMAN'S SENTENCE.
C. THE TRIAL COURT IMPERMISSIBLY COUNTED THE OFFENSES FOR WHICH MR. CHAPMAN WAS BEING SENTENCED AS AGGRAVATING FACTORS TO FURTHER ENHANCE HIS SENTENCE.
D. THE TRIAL COURT FAILED TO RECOGNIZE TWO MITIGATING FACTORS.
We affirm the conviction, but reverse and remand for re-sentencing in accordance with this opinion.
Shortly before 11:00 p.m. on November 29, 2003, Detective Reynold Theriault, of the Egg Harbor Township Police Department, received "a phone call from a concerned citizen" who reported that there was "some activity going on" near the Country Place Apartment Complex*fn1 located on 20 Country Hickory Lane (the Complex). The caller was a Complex resident, but Theriault did not know the caller, nor had he ever spoken to this person before this call. The caller also reported that a large, black SUV went to the Complex repeatedly, and "on a few occasions several black males got outside of the SUV and a black male would go inside." However, the caller never stated that he observed any drug transactions or weapons. The caller also reported there were other vehicles coming and going all day long. Based on his prior training and experience with drug transactions, Theriault associated the caller's observations with possible drug activity. Theriault gave the information to a dispatcher, and asked the dispatcher to send a patrol car to the Complex to "check the area."
The dispatcher directed Officer Mark Wagner to go to the Complex because a concerned citizen residing there had called and said she believed there was "possible drug activity going on" involving "a black SUV." Wagner went to the Complex, but left after not finding the SUV there. Five minutes later, the dispatcher advised Wagner that the same caller called again. The dispatcher directed Wagner to return to the Complex. Wagner parked his marked police car "just south of Country Hickory Lane on Country Lane" in close proximity to the Complex "[t]o observe any [potential] activity." He received a transmission that the SUV was coming out of the Complex and, although he did not see it, he prepared to stop it.
At trial, Wagner described his observations as follows:
A: On Country Hickory Lane, I saw a black SUV come off of Country Hickory coming towards Country Tree Lane. There's a stop sign. He [the driver] went through the stop sign, made a right, which would have been in my direction, stop[ped], decided to go left, which would have been Tilton Road. So it's [the SUV] traveling towards Tilton Road.
Q: Would I be correct the SUV made a U-turn?
A: Initially made a right initially towards me and then made a sharp left.
Q: Did you believe that the driver of the SUV saw your patrol car?
After the driver turned the SUV away from Wagner's car, Wagner activated his overhead lights and stated over the radio that he was going to stop the SUV. The SUV then continued at a "slow pace" for approximately one hundred yards on Country Lane before stopping. When the SUV stopped, Wagner was approximately twenty feet away. At trial, Wagner described his observations as follows:
Q: What happens when the doors open?
A: The driver exits, starts fleeing west, running west. The front seat passenger then exits. He initially runs west, but then turns north paralleling Country Lane and then the rear seat passenger behind the driver exited and fled west.
Q: How are the individuals dressed?
A: All in dark clothing.
Q: Did you see any of those individuals with something in their hand?
Q: Who is that?
A: The driver.
Q: What did the driver have in his hand? What did [he] appear to have [in] his hand?
A: Appear[ed] to have a gun in his right hand[.]
Q: Why do you say [he] appeared to have a gun in his right hand?
A: I can see the butt of a gun, but it wasn't being held the way you would normally hold a gun.
Wagner later identified defendant as the driver.
Wagner began chasing the rear seat passenger, Miles Vance, while Patrolman Paul Roden, who arrived at the scene, remained with the SUV. Wagner yelled to the fleeing occupants that he was a police officer, ordered them to stop, and advised them they were under arrest. When Wagner caught Vance, he heard a gunshot, and both men fell to the ground. Wagner eventually placed Vance in custody.
Officer Melvin Laramore, who was "at the corner of Country Oak and Country Lane" while the occupants were exiting the SUV, saw a man, later identified as Devon Brooks, running down Country Lane toward him. Laramore immediately got out of his vehicle and ordered Brooks to stop. When Brooks did not stop, Laramore began to chase him. Laramore said he saw a "second subject out of the corner of [his] eye," later identified as defendant. As Laramore chased Brooks, he saw defendant attempt "to remove something from his waistband," but he was not close enough to see what defendant was trying to remove. Laramore ordered defendant to stop, but defendant did not comply. Laramore then "[retreated] back with [his] weapon drawn" while defendant ran and hid behind some bushes. Laramore then saw defendant's "right arm reach out" and called for backup. K-9 Officer John Defazio arrived to assist him. The police eventually placed defendant in custody.
In the same general direction where defendant was reaching, Laramore found a .380 caliber handgun, approximately fifteen feet away from where defendant was hiding in the bushes. The gun had a spent shell casing in its chamber. After arresting defendant, Laramore and Defazio continued searching for Brooks in the area where they found defendant. Defazio's canine partner found a leather jacket, which was subsequently determined to belong to Brooks. A search of the jacket revealed a .45 caliber magazine of firearm ammunition, and a "white powdery substance." A pager and two cell phones were also recovered during the search.
Defendant was read his Miranda*fn2 rights. Upon hearing his rights, defendant blurted out that he was the driver and "had a little pot on him." Defendant was issued four summonses for motor vehicle violations. The police subsequently transported defendant to the police station where a search revealed a bag of cocaine.
Three days after the incident, Robert Goff, a landscaper working at the Complex, was raking leaves when an employee told him he found a gun with a holster. Goff informed the Complex administrator of the gun, and the police were called. The weapon was a loaded nine millimeter Glock semi-automatic handgun. No latent fingerprints were ever recovered from the Glock handgun, the .380 caliber handgun, the bullets, or the guns' magazines.
At trial, the parties stipulated that both guns in evidence were operable; defendant did not have a permit to carry a firearm in New Jersey; and "the jacket found in the woods was sent to a laboratory where it was tested for the existence of gunshot residue and gunshot residue was found in the area of the pockets." Sergeant Robert Kelly of the Atlantic County Prosecutor's Office, the State's expert on firearms and handgun holsters, testified that it is possible for a person to wear a handgun holster inside one's clothing and that, in his experience, individuals who illegally possess firearms often wear holsters in such a manner. Defendant did not testify at trial.
Defendant contends the judge improperly denied his motion to suppress. He argues that because Wagner did not have reasonable articulable suspicion to stop the SUV, the stop was illegal, and the judge should have suppressed any evidence obtained as a result as "fruit of the poisonous tree."
In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990). We "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We should not change the lower court's findings simply because we "might have reached a different conclusion were [we] the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side[.]" Johnson, supra, 42 N.J. at 162. Rather, we should only modify a trial court's findings if they are so clearly mistaken and "so plainly unwarranted that the interests of justice demand intervention and correction[.]" Ibid. In that instance, "[we] should appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Ibid. With these standards in mind, we review defendant's contentions.
Law enforcement officers "may stop motor vehicles where they have a reasonable or articulable suspicion that a motor vehicle violation has occurred." State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990). "Reasonable suspicion" means that "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968). "Reasonable suspicion" is "less than proof . . . by a preponderance of evidence," and "less demanding than that for probable cause," but must be something greater "than an 'inchoate or unparticularized suspicion or' 'hunch.'" United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed. 2d 1, 10 (1989).
"The fact that the officer does not have the state of mind hypothesized by the reasons which provide the legal justification for the search and seizure [or investigatory stop] does not invalidate the action taken, so long as the circumstances, viewed objectively, support the police conduct." State v. Kennedy, 247 N.J. Super. 21, 28 (App. Div. 1991) (citing State v. Bruzzese, 94 N.J. 210, 220 (1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed. 2d 695 (1984)); see also Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed. 2d 89, 97 (1996) (citing United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 477, 38 L.Ed. 2d 427, 441 (1973)). A Fourth Amendment violation is assessed based upon an objective viewing of the officer's actions considering the circumstances confronting him at that time, not his actual state of mind. Maryland v. Macon, 472 U.S. 463, 470, 105 S.Ct. 2778, 2783, 86 L.Ed. 2d 370, 378 (1985) (citing Scott v. United States, 436 U.S. 128, 136, 138, 139 n.13, 98 S.Ct. 1717, 1722-24, 1724 n.13, 56 L.Ed. 2d 168, 177-79, 178 n.13 (1978)).
Ultimately, "courts will not inquire into the motivation of a police officer whose stop of an automobile is based upon a traffic violation committed in his presence." Kennedy, supra, 247 N.J. Super. at 28. "The fact that the justification for the stop was pretextual . . . [is] irrelevant," id. at 29, and the State need not prove that the suspected motor vehicle violation has in fact occurred. Locurto, supra, 157 N.J. at 470 (citing State v. Williamson, 138 N.J. 302, 304 (1994)). Investigatory stops are valid in situations where the objective basis for the stop was a minor traffic infraction. Id. at 466 (the stop was justified based upon the officer's observations that the defendant was driving "at 'a high rate of speed'" in a zone where "[t]he posted speed limit was thirty-five miles per hour"); see also State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997) (the stop was justified based upon the officer's observations of the defendant weaving in and out of lanes); Murphy, supra, 238 N.J. Super. at 548-49 (the stop was justified where the vehicle's license plate was in a diagonal position, which the officer believed violated N.J.S.A. 39:3-33); State v. Carter, 235 N.J. Super. 232, 237 (App. Div. 1989) (the stop was justified based upon the officer's observations that defendant was tailgating another vehicle).
Here, in denying the motion to suppress, the judge found Wagner's testimony credible, and determined he had a reasonable suspicion that defendant committed a motor vehicle violation justifying the stop. We agree.
Wagner observed the SUV travel through a stop sign. Thus, he had a reasonable suspicion that the following motor vehicle violation occurred, in relevant part:
No driver of a vehicle or street car shall . . . cross an intersecting street marked with a "stop" sign unless he has first brought his vehicle . . . to a complete stop at a point within 5 feet of the nearest crosswalk or stop line . . . and shall proceed only after yielding the right of way to all traffic on the intersecting street which is so close as to constitute an immediate hazard. [N.J.S.A. 39:4-144.]
Wagner also observed the SUV make a sharp turn. Thus, he had reasonable suspicion that the following motor vehicle violation occurred:
A person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving. [N.J.S.A. 39:4-97.]
Defendant does not dispute he traveled through a stop sign and made a sharp turn. Thus, there is sufficient credible evidence in the record supporting the judge's denial of the motion to suppress.
We next address defendant's contention his sentence is excessive. We agree, as does the State, that this matter must be remanded for the trial judge's reconsideration of the applicable aggravating and mitigating factors and imposition of an appropriate sentence because this matter was decided before State v. Pierce, 188 N.J. 155 (2006), and because the judge improperly imposed two discretionary extended sentences. See N.J.S.A. 2C:44-5a(2); State v. Papasavvas, 163 N.J. 565, 627 (2000) (citing State v. Pennington, 154 N.J. 344, 360-61 (1998)); State v. Mays, 321 N.J. Super. 619, 636 (App. Div.), certif. denied, 162 N.J. 132 (1999); State v. Latimore, 197 N.J. Super. 197, 223 (App. Div. 1984), certif. denied, 101 N.J. 328 (1985). This matter also must be remanded pursuant to State v. Dunbar, 108 N.J. 80 (1987).
We review a judge's sentencing decision under an abuse of discretion standard. Pierce, supra, 188 N.J. at 169-70; State v. Roth, 95 N.J. 334, 363-64 (1984). When reviewing a judge's sentencing decision, we "may not substitute [our] judgment for that of the trial court[.]" State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, we may review and modify a sentence when the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In determining the propriety of a sentence, we must make sure that sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on the evidence, and decide whether application of the guidelines make a particular sentence clearly unreasonable. Roth, supra, 95 N.J. at 364-65.
Here, the judge sentenced defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a, which provides as follows:
A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
Defendant's record consists of three prior convictions: third degree distribution of CDS is a school zone, fourth degree obstruction of justice, and third degree receiving stolen property. In qualifying defendant as a persistent offender, the judge found as follows:
The defendant is 27 years old and a high school drop out with a sporadic work history. His criminal record includes 14 arrests with prior convictions for distribution of CDS in a school zone, receiving stolen property, obstructing justice. The defendant's juvenile record includes 8 arrests with 9 violations of probation and 9 delinquency adjudications.
Among his adjudications is possession of CDS with intent to distribute. I note that he also has an arrest record in Georgia, however dispositions were not determined. I find aggravating factors 3, 6 and 9 apply; no mitigating factors apply. The aggravating factors clearly substantially outweigh the mitigating. Now on the issue of whether or not the Court should impose an extended term. It is discretionary. My thinking is that without an extended term this defendant would essentially receive the same sentence as someone without his criminal record, although the necessary record to make a possession of a firearm a second degree offense. But he would stand in the same situation as someone else charged with a single handgun, because my view is that the sentences will, I think mandated to run concurrently under case law, and that's my view. So I will be giving him concurrent sentences for the two second degree guns. And given that aspect of the sentence there has to be something, in my view, that separated him from somebody without his record or without the, all the crimes he committed in this case, which by the way I will be running concurrently. So in my view the extended term sentence is necessary to separate this defendant from someone without as serious a criminal record he has and without the myriad of offenses that I'm otherwise sentencing him for today which I will give him concurrent sentences for.
These findings fail to comply with the multi-step process required by Dunbar. On remand, the judge must first determine "whether the minimum statutory predicates for subjecting the defendant to an extended term have been met[,]" and then determine "whether to impose an extended sentence." Dunbar, supra, 108 N.J. at 89. The judge must then focus on the offense that occasioned the sentence, "weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence," evaluate the need to protect the public, id. at 89-91, and state the reasons "and the factual basis supporting a finding of particular aggravating and mitigating factors[.]" R. 3:21-4(g); State v. Natale, 184 N.J. 458, 466, 488 (2005); State v. Dalziel, 182 N.J. 494, 504-05 (2005); Roth, supra, 95 N.J. at 360. Finally, the judge must determine whether to impose a period of parole ineligibility, which shall not exceed one-half of the authorized term. Dunbar, supra, 108 N.J. at 91-92 (citing N.J.S.A. 2C:43-7b); Pierce, supra, 188 N.J. at 164. Once the judge decides to impose an extended sentence, he must then determine where, within the minimum of the ordinary-term range and the maximum of the extended-term range, to sentence defendant. Pierce, supra, 188 N.J. at 168-70.
Defendant's conviction is affirmed. We reverse and remand for further proceedings consistent with this opinion.