May 13, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD J. CHIPPERO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 91-09-1510.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 12, 2007
Before Judges Stern, A. A. Rodríguez and C.S. Fisher.
Defendant Richard J. Chippero appeals from his second conviction stemming from the homicide of Ermina Rose Tocci, who was found dead on July 23, 1991, in her North Brunswick mobile home at 51 Poe Road, by her longtime live-in boyfriend John Simmons. Tocci had been stabbed in the neck and raped. At the time of the homicide, defendant was a neighbor at 49 Poe Road in the Deer Brook Village mobile home park.
The police initially considered Simmons and the victim's brother as suspects. However, two days after the murder, the police were still investigating the homicide. That day, Kevin McMenemy, a former neighbor of Tocci, contacted the North Brunswick police and told them that on the day of the murder, he picked up his stepdaughter at her mobile home, located near Tocci's. At 2:39 p.m., while waiting for her, he saw a man running from the front of the victim's mobile home into the immediately-adjacent mobile home. This was defendant's residence. The man was perspiring, but there was no blood on the man or his clothing.
Based on the information from McMenemy, police investigators sought a search warrant for defendant's mobile home. A Superior Court judge (the warrant judge) issued the warrant. A group of detectives went to execute the search warrant. Defendant's grandmother let the detectives into the mobile home. When the detectives inquired about defendant's whereabouts, defendant's brother told them that defendant was fishing. While some detectives searched defendant's residence, others went to find defendant, including Investigator Charles V. Clark of the Middlesex County Prosecutor's Office and Lieutenant Frank Mozgai of the North Brunswick Police Department.
The detectives found defendant at nearby Farrington Lake. One detective approached defendant and identified himself as a police officer. Defendant acknowledged that he was Richard Chippero. Defendant waived his Miranda*fn1 rights and signed a rights waiver form. After a nine-hour custodial interrogation, defendant confessed to the crime.
Other investigators searched the mobile home and seized several items, including a pair of Chinese-made T-956 sneakers. One of the sneakers had a sole tread pattern that could match a bloody footprint impression left on the victim's back.
In 1995, defendant was convicted of capital murder, N.J.S.A. 2C:11-3a; second-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(1). The jury chose not to sentence defendant to death. The judge imposed concurrent terms aggregating two life terms with a fifty-five year parole disqualifier. At that trial, the State's evidence consisted of defendant's audio-recorded confession to the police; the testimony of McMenemy that he saw defendant walk quickly from near the victim's trailer into his own; testimony of neighbors that defendant made statements the night of the murder revealing that defendant had detailed knowledge of the crime before it became public; and the sneakers taken from under defendant's bunk-bed that could have left an imprint found on the victim's back.
Forensic expert Peter DeForest, a criminologist, opined only that the impression found on the victim's back "was made by a shoe with the same outsole pattern" as the sneaker seized from defendant's bedroom. DeForest also repeatedly admitted that his opinion was limited because: (1) there was no scale in place to measure the impression since the impression was not noticed at the time police processed the crime scene; (2) he did not have a high-quality imprint that revealed the individual features of the shoe and there was too much blood at the time of the impression; and (3) he was unable to find other T-956 sneakers for comparison. On cross-examination, DeForest again admitted the limitations of his opinion and stated that "[w]e're not saying that that particular shoe made that mark." Investigator John Haley also testified that they could not produce the photograph to scale because no measurements of the scene were taken at the time and because of the angle of the body.
Defendant, through the testimony of his mother, denied that the T-956 sneakers found in his bedroom even belonged to him.
We affirmed on direct appeal in an unpublished opinion. State v. Chippero, No. A-4948-95T4 (App. Div. 1999). However, the Supreme Court reversed the conviction and remanded for a new trial. State v. Chippero, 164 N.J. 342 (2000). The Court suppressed defendant's confession and remanded for a new trial "because [defendant] was arrested without probable cause, as the State acknowledged[,]" and "because there is an unbroken causal connection between defendant's arrest and his confession[.]"
Id. at 344, 362.
At the second trial, the confession was excluded. In all other respects, the State's proofs were substantially similar to the first trial, including evidence admitted over defendant's objection, that one of defendant's sneakers had a sole pattern that could have caused the imprint on victim's back.
Defendant was convicted of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and second-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d. The judge merged the convictions and imposed a life-term sentence with a thirty-year parole disqualifier.
Defendant appealed from the second conviction. One of his contentions was that, "the trial court erred by ruling that the search warrant was valid, compelling reversal of defendant's conviction." We thought this contention should be addressed first and ordered a telephone argument and supplemental briefing.
The State argued that the concession of lack of probable cause to arrest was made only to focus the argument on the attenuation issue. The State argued that the concession and Supreme Court opinion had to be understood in that context and did not affect the validity of the search. We remanded to permit the development of a record on that issue.
We temporarily remanded to the Law Division for consideration of "whether the Supreme Court ruling [of lack of probable cause to arrest] affected the determination of probable cause to support a search warrant which issued before the arrest." State v. Chippero, No. A-6401-02T4 (App. Div. Aug. 9, 2006). Specifically, we asked the Law Division to develop the contention that the State acknowledged an illegal arrest for purpose of the argument before the Supreme Court only. We also asked the judge to make findings of fact and conclusions of law on the issue of the search of defendant's mobile home.
On remand, the Law Division judge found "that any concession by the State that probable cause to arrest was lacking was confined to the arguments relating to the admissibility of the confession and did not affect nor impact the validity of [the warrant judge's] determination that probable cause existed to search defendant's [mobile home]."
Defendant now challenges that decision. He contends:
THE TRIAL COURT'S DETERMINATION THAT THE LACK OF PROBABLE CAUSE TO ARREST HAD NO EFFECT UPON NOR IMPACT ON THE VALIDITY OF THE DETERMINATION THAT PROBABLE CAUSE EXISTED TO SEARCH THE DEFENDANT'S RESIDENCE IS ERRONEOUS, REQUIRING THE EXCLUSION OF ANY ITEMS FOUND IN THE RESIDENCE FROM ADMISSION AT TRIAL, REQUIRING REVERSAL OF THE DEFENDANT'S CONVICTION, OR, IN THE ALTERNATIVE, REQUIRING A NEW TRIAL FOR THE DEFENDANT.
THE SUPREME COURT'S DETERMINATION THAT THERE WAS A LACK OF PROBABLE CAUSE TO ARREST IS THE LAW OF THE CASE AND MUST THEREFORE HAVE PRECLUSIVE EFFECT ON THE VALIDITY OF THE DETERMINATION THAT PROBABLE CAUSE EXISTED TO SEARCH THE DEFENDANT'S RESIDENCE.
We agree with defendant that there was no probable cause to issue a search warrant for defendant's mobile home and, in any event, that the facts relating to the search warrant cannot justify a holding that there was probable cause to search when our Supreme Court has already concluded that there was no probable cause to arrest.
The search warrant was obtained by an Assistant Middlesex County Prosecutor based on the testimony of Detective Clark. The substance of Clark's testimony was as follows:
[CLARK]: A witness came forward this morning who had been in the area of Poe Road who had been parked on Poe Road at approximately the time that the medical examiner lists as the time of death.
[ASST. PROSECUTOR]: Which was about when?
A: About 2:30 p.m. on Tuesday, and saw a white male, light colored hair running from what would be the area of the front door of the trailer on 51 Poe Road.
Q: The murder scene?
A: The murder scene. Directly between the cars parked in the drive area of 51 Poe Road and across the lawn and into the trailer next door, which is 49 Poe Road.
Q: He was running?
Q: And what was the description given to you by your witness?
A: He describes a white male with light colored hair. Stocky individual, he describes him as possibly 5'8", and believe he said around a hundred 85 pounds.*fn2
Q: And what was he wearing?
A: A light gray short sleeved shirt and a dark pair of shorts. He's unsure of footwear.
Q: Has your investigation identified such a person to be living next door to the victim's home?
A: Yes, sir, it has.
Q: And what is his name?
A: His name is Richard Chippero, C-H-I-P-PE-R-O, and he's described as having sandy colored hair, approximately six foot tall and approximately 215 pounds.
Q: Now, have you had time to look into the background of Mr. Chippero to determine whether he is a likely suspect?
A: Yes. We've had some time to look into it, yes.
Q: And what did you find out?
A: Mr. Chippero has just recently moved into 49 Poe Road which is the home of his mother Joyce Chiccarelli and Mr. Chippero has been convicted of several offenses in the past.
Q: Did one offense according to your investigation, your preliminary investigation involve a knife attack on his grandmother?*fn3
A: That's correct.
The judge issued the search warrant.
Presumably, the witness was McMenemy. Earlier in the day, McMenemy gave a formal statement to the police. He stated that at 2:39 p.m., on July 23, 1991, he saw a man "come around the corner of #51," cross the driveway in front of the car, and enter 49 Poe Road.
The first trial judge denied defendant's motion to suppress evidence based on the claim that the warrant was issued without probable cause. On his first direct appeal, defendant did not challenge that decision. Before the second trial, another judge denied defendant's motion for the same reason.
The Fourth Amendment to the United States Constitution prohibits "unreasonable searches and seizures" by providing that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. Protection of the right against unreasonable searches requires all federal and state courts to exclude evidence obtained in violation of the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed. 2d 1081, 1090 (1961).
The text of our State constitutional provision, N.J. Const. art. 1, par. 7, is "virtually identical" to its federal counterpart. State v. Novembrino, 105 N.J. 95, 146 (1987). And while "New Jersey courts do rely upon . . . United States Supreme Court case law in making reasonableness determinations under article 1, paragraph 7 of the New Jersey Constitution[,]"), State v. Otero, 245 N.J. Super. 83, 90 (App. Div. 1990), our Supreme Court has consistently held that the New Jersey Constitution "affords our citizens greater protection against unreasonable searches and seizures than does the fourth amendment." Novembrino, supra, 105 N.J. at 145. See e.g., State v. Eckel, 185 N.J. 523, 538 (2006); State v. Hempele, 120 N.J. 182, 195 (1990).
To be validly issued, "search warrants must be based on sufficient specific information to enable a prudent, neutral judicial officer to make an independent determination that there is probable cause to believe that a search would yield evidence of past or present criminal activity." State v. Keyes, 184 N.J. 541, 553 (2005). "Probable cause" is a "'flexible, non-technical concept' that requires balancing 'the governmental need for enforcement of the criminal law against the citizens' constitutionally protected right of privacy.'" Id. at 553-54 (quoting State v. Kasabucki, 52 N.J. 110, 116 (1968)). To determine whether probable cause existed, courts use a "totality of the circumstances" approach. Id. at 554.
The Supreme Court has "consistently held that 'a search executed pursuant to a warrant is presumed to be valid and that a defendant challenging its validity has the burden to prove that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" Ibid. (quoting State v. Jones, 179 N.J. 377, 388 (2004) (internal quotation marks omitted)). Thus, the discretionary determination that probable cause existed for the issuance of a search warrant is entitled to "substantial deference" and "[d]oubt as to the validity of the warrant should ordinarily be resolved by sustaining the search." Ibid. (internal quotation marks omitted).
Here, it is undisputed that McMenemy saw a man "walking quickly" alongside the victim's mobile home, which the officer seeking the search warrant reported as McMenemy seeing a white male running away from what would be the area of the front door of the mobile home that was the crime scene and enter the adjacent mobile home at 49 Poe Road, where he lived, at or around the time of the victim's death. This person was sweating. There was no blood on him. There is nothing in this information that provides "sufficient specific information to provide a prudent, neutral judicial officer to make an independent determination that there is probable cause to believe that a search would yield evidence of past or present criminal activity." Id. at 553.
In this context, we cannot conclude that, even if there is a basis for distinguishing between "probable cause to arrest" and "probable cause to search", the Supreme Court's holding on review of the first trial can be limited to the absence of probable cause to arrest. As previously noted, the Supreme Court indicated that "the State concedes that defendant was arrested without probable cause."
We affirmed Chippero's conviction after the first trial. We held "that the confession was admissible because the nine-hour interrogation of defendant purged the taint of the illegal arrest." State v. Chippero, supra, 164 N.J. at 345. We "found that the passage of time before the confession purged the taint of the illegal arrest" thus making the confession admissible as evidence of defendant's guilt." Id. at 352.
The Supreme Court concluded "that the defendant's confession must be suppressed" [b]ecause defendant was illegally arrested and interrogated, and because there is an unbroken causal connection between his arrest and confession" at 362.
There is no suggestion in the Supreme Court's opinion or otherwise that the probable cause to arrest, which was lacking, can be distinguished from the probable cause to search. The State points to no facts or brief in the Supreme Court with respect to the nature of its concession, justifying a distinction between the probable cause to arrest and the prior determination of probable cause for issuance of the search warrant. The record developed on the remand does not permit us to hold otherwise.
Given this holding, we need not reach the other contentions raised by defendant:
THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE THE FACT THAT A TELEPHONE CALL WAS MADE FROM THE MIDDLESEX COUNTY JAIL TO KEVIN McMENEMY AND ALSO ERRED BY ALLOWING A TRANSPARENCY TO BE USED BY DOCTOR DEFOREST DURING HIS TESTIMONY.
THE TRIAL COURT ERRED BY ADMITTING THE AUTOPSY PHOTOS AS THEY WERE UNDULY PREJUDICIAL AND NOT PROBATIVE.
THE CONDUCT OF THE PROSECUTOR, WHICH EXCEEDED THE BOUNDS OF PROPER ADVOCACY, DENIED THE DEFENDANT OF A FAIR TRIAL.
THE CONVICTIONS OF DEFENDANT FOR MURDER AND POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE ARE INCONSISTENT WITH HIS ACQUITTALS ON AGGRAVATED SEXUAL ASSAULT AND FELONY MURDER.
THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE DEFENDANT IS ENTITLED TO A NEW TRIAL ON THIS BASIS AS WELL AS ON THE BASIS THAT SEVERAL LEGAL ERRORS WERE COMMITTED BY THE TRIAL COURT DURING HIS TRIAL.
THE CHARGE TO THE JURY IN ITS ENTIRETY WAS CONFUSING, MISLEADING AND PREJUDICED THE DEFENDANT AND THE COURT IMPROPERLY RESPONDED TO JURY REQUESTS FOR CLARIFICATION.
THE TRIAL COURT ERRED BY NOT SEQUESTERING THE JURY SO THEY WOULD NOT HAVE BEEN AFFECTED BY THE HIGHLY PREJUDICIAL PUBLICITY THAT OCCURRED DURING THE TRIAL WHICH PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL.
THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A JUDGMENT OF ACQUITTAL.
THE ERRORS COMMITTED, IN THEIR ENTIRETY, DENIED THE DEFENDANT A FAIR TRIAL.
THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIATE AND MANIFESTLY EXCESSIVE.
Accordingly, the conviction is reversed and the matter is remanded for a new trial. We do not retain jurisdiction.