July 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRANCE LABOO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-10-3458.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2008
Before Judges Stern, Collester and C. L. Miniman.
Defendant was indicted for possession of a handgun without a permit, possession of hollow-nose bullets and possession of a handgun as a convicted felon. After denial of his motion to suppress, he was found guilty of the permit violation, but not the possession of the bullets.*fn1 The convicted-felon violation count was severed and ultimately dismissed,*fn2 and defendant was sentenced to a seven-year extended term on the permit offense with three and-a-half years to be served before parole eligibility.*fn3 The State acknowledges that defendant is entitled to resentencing under State v. Pierce, 188 N.J. 155 (2006).
On this appeal defendant argues:
POINT I: TRIAL COURT ERRED IN NOT SUPPRESSING THE EVIDENCE SEIZED FROM DEFENDANT BECAUSE THE POLICE HAD NO PROBABLE CAUSE TO ARREST DEFENDANT IN VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHT UNDER THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.
A. THE POLICE HAD NO PROBABLE CAUSE TO ARREST DEFENDANT UNDER THE TOTALITY-OFTHE-CIRCUMSTANCES TEST.
B. THE CAMDEN ANTI-CRIME PARTNERSHIP LAW ENFORCEMENT OFFICERS ARRESTED DEFENDANT ON A MERE HUNCH IN VIOLATION OF THE WARRANT CLAUSE OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
C. DEFENDANT'S SEARCH WAS NOT INCIDENT TO A LAWFUL ARREST.
POINT II: TRIAL COURT ERRED IN NOT SUPPRESSING THE EVIDENCE SEIZED FROM THE GREEN CHEVY CAVALIER BECAUSE THE SEARCH OF THE AUTOMOBILE WAS UNLAWFUL AND INVALID IN VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
A. THE WARRANTLESS SEARCH OF THE GREEN CHEVY CAVALIER CANNOT BE VALIDATED UNDER THE PLAIN VIEW EXCEPTION.
B. THE WARRANTLESS SEARCH OF THE GREEN CHEVY CAVALIER CANNOT BE VALIDATED UNDER THE PLAIN AUTOMOBILE EXCEPTION.
C. THE WARRANTLESS SEARCH OF THE GREEN CHEVY CAVALIER CANNOT BE VALIDATED AS A SEARCH INCIDENT TO ARREST.
D. THE WARRANTLESS SEARCH OF THE GREEN CHEVY CAVALIER CANNOT BE VALIDATED AS A LAWFUL SEARCH UNDER THE CRIME SCENE EXCEPTION.
POINT III: TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A NEW TRIAL IN VIOLATION OF THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT IV: THE SEVEN (7) YEAR SENTENCE IMPOSED BY THE TRIAL COURT ON THE DEFENDANT'S CONVICTION FOR VIOLATING N.J.S. 2C:58-4 AND 2C:39-5b WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS.
The unusual aspect of this case is that the observation of an ongoing series of drug transactions involving defendant and co-defendant Bennett served as the basis for the subsequent police conduct, but this defendant was not charged with any CDS offense and Bennett was not convicted of any drug charge. In fact, defendant emphasizes that he was not involved in any drug transaction. However, Detective Jennifer Ingram of the State Police, who was assigned to the Camden Anti-Crime Partnership, testified at the motion to suppress that she overheard defendant demanding "[his] money" after Bennett directed purchasers to an unknown man*fn4 who gave them packages in exchange for currency. The detention and search of the defendant's person based on the totality of circumstances was justified (see State v. Anaya, 238 N.J. Super. 31, 36 (App. Div. 1990)). A total of $2,437 in cash, but no drugs, was found on his person. Drugs were found behind a vacant building at the intersection.
After defendant and Bennett were arrested*fn5 Ingram "walked past [defendant's] vehicle, . . . looked in the inside and . . . saw there was a black grip of a handgun right . . . underneath the driver's side." She was "on the sidewalk at the time," and "peeked in" the vehicle "from outside the window of the car." According to Ingram, she then opened the "unlocked" door to defendant's car and "rendered the weapon safe."
We agree with Judge John T. McNeill III, who concluded "that at least initially there was a reasonable suspicion to think that Mr. Laboo was involved in some level," and that Ingram "had reasonable suspicion at that time to look in the car" and "open the vehicle door" after she saw the gun.
The incriminating evidence resulting in the conviction was a gun found in defendant's car, and the State seeks to uphold the seizure based on a search incident to the lawful arrest and a plain view observation. The gun handle was observed in plain view by Detective Ingram, the "loaded" handgun with "a ten round magazine" was seized, and defendant's car was thereafter searched resulting in the finding of "two more magazines" that were loaded.
Defendant acknowledges that "Detective Ingram was legitimately in a position that afforded the plain view of the [gun]." Once the gun handle was observed in plain view from outside the car, that observation warranted entry of the vehicle in light of the danger of guns in movable automobiles. Neither State v. Eckel, 185 N.J. 523 (2006), nor any other New Jersey post-Belton case*fn6 with respect to the "search-incident" doctrine changes the law with respect to post arrest searches for guns, particularly in a motor vehicle when there is reasonable suspicion to believe a gun is therein.*fn7 The concern about guns and related protection of the public has always been different than when other searches are involved. See, e.g., State v. Wilson, 362 N.J. Super. 319, 331-36 (App. Div. 2003) (permitting search of car for handgun even though "both suspects were in custody and the automobile under police control"), certif. denied, 178 N.J. 250 (2003).
In any event, even if there can be no search of the passenger compartment for a gun when the sole occupant is arrested and cannot return to the vehicle, Eckel, supra, 185 N.J. at 541, Eckel does not affect the "plain-view" doctrine. In State v. Oyenusi, 387 N.J. Super. 146, 153-59 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007), we read Eckel narrowly and as not affecting the federal "search-incident" doctrine "except for its rejection of the Belton rule" and impact on a "search of the passenger compartment of an arrestee's automobile . . . incident to [an] arrest." Thus, even if a search for a suspected gun within a motor vehicle cannot be conducted incident to a lawful arrest (absent probable cause and some exigency despite the detention), see State v. Cooke, 163 N.J. 657 (2000), we uphold the denial of defendant's motion to suppress under the plain-view doctrine. See, e.g., State v. Bruzzese, 94 N.J. 210, 237-38 (1983) ("plain view" doctrine). See also State v. Cooke, supra, 163 N.J. at 657 (automobile exception requiring probable and exigent circumstances). Based on the motion judge's fact-finding, we reject defendant's contention that the vehicle had to be secured until a warrant was obtained. In this case, the gun handle had been observed in plain view.
Defendant states no facts relating to his third point except that, at the outset of the legal argument relating thereto, he says:
The trial court erred in not declaring a mistrial and granting defendant's motion for a new trial after it was discovered that Juror #10 was a convicted felon, failed to disclose he was closely associated with defendant and his family, allegedly approached defendant for monetary gain to influence the jury, and exhibited inappropriate behavior during jury deliberations. The trial court erroneously concluded that "I'm not asked in this inquiry to find somebody guilty of a crime.
I'm being asked to make a determination as to whether I think this verdict, as it stands right now, should essentially be thrown out because the process is tainted to the point where that puts me in a position where I would be constrained to throw it out and declare a mistrial. Everything considered, I think there is sufficient evidence to support the verdict that has been rendered. I do not find from what is before the court that there is sufficient taint for me to throw the verdict out. So the verdict stands as far as this court is concerned."
After the verdict the judge entertained defendant's motion for mistrial based on alleged juror taint because of the defendant's assertions concerning juror 10, George F. Following an evidentiary hearing*fn8 and an interview of all jurors, the motion was denied. The judge expressly concluded there was sufficient evidence to sustain the conviction; that the juror had originally filled out the juror questionnaire to indicate "that he had a prior conviction" but "then crossed it out and checked no" because "[i]n his mind he had thought the prior conviction, because of successfully completing ISP, put him in a position where he could say in his mind that he didn't have a prior indictable conviction"; that juror 10 was "a pretty credible witness"; that defendant was not "particularly credible" and that the other jurors were credible and "[t]here was nothing said to fellow jurors or to them directly in regard to any past connection between Juror No. 10 and Mr. Laboo."
After the jury was discharged and before sentencing, the judge also denied a motion for new trial. In rendering his oral opinion, the judge said:
Interestingly enough, when the jury questionnaire sheet was obtained, the juror in Seat No. 10 had initially answered the question in regard to prior convictions by checking yes. He then crossed it out and indicated no. This, of course, took place on the morning that he appeared for jury service and was obtained by the Court and certainly lends some corroboration to his feeling that he had no conviction as a result of completing ISP program.
After going through all the questioning that took place, this Court ruled that Juror No. 10, based on everything that I heard, did not go to the Laboo home, did not demand money for his vote. The testimony, of course, between Mr. Laboo and his sisters and the juror was significantly in conflict and the Court made that ruling. In effect, finding Mr. Laboo and his sisters not to be credible and finding the juror to be credible in regard to the bribe.
In the case before this Court the Defendant Laboo personally and directly prevented this Court from taking the type of corrective action employed effectively in the Farmer case or any other type of action and that type of gamesmanship cannot be countenanced by this Court.
Just as our New Jersey Supreme Court has indicated that a person by their own conduct can waive a substantial right, the vast majority of other state courts have reached the same conclusion. And I reviewed a number of cases from around the country and I'll just report one for reference purposes. State -vs- Robbins, Missouri decision, 455 Southwest 2nd, 24, 1970 case.
As I say, I lost count of the number of cases that I read that all basically made the same finding I paraphrase from the holding in State -vs - Robbins. "A defendant, aware of a jurors misconduct, cannot gamble through silence on a verdict of acquittal; and, after a verdict of guilty is returned, take advantage of the matter by first asserting it in his motion for a new trial."
It is clear that, at some time before the verdict was returned, defendant was aware of the fact the juror was a convicted felon, but decided not to raise the matter until after the verdict was returned. In his testimony on the motion for mistrial, defendant said he asked his sister to come to court to look at the juror to see if he was the George they knew of, and that "[i]f that was George, I didn't want him on my jury any way because I knew he was convicted felon and [he knew] about the murder" of which defendant had been accused.
In any event, defendant certainly knew the allegations about the bribe attempt, and the related background involving the juror, were going to be raised in light of the alleged events of the night before, and he knew it before the deliberations ended. As a result, and because the judge conducted a lengthy evidentiary hearing and found the defendant's witnesses concerning a bribe attempt by the juror to be incredible, and that no juror heard anything about the matter or any relationship between defendant and juror 10,*fn9 and because the record suggests juror 10 knew nothing about the allegations before the verdict was returned, we decline to reverse the conviction.
We recognize the statutory policy embodied in N.J.S.A. 2B:20-1(e), but in this case the judge found the juror to be credible in believing his conviction had been eliminated through the Intensive Supervision Program, and therefore answered the juror questionnaire and jury voir dire during jury selection as he did. Unlike State v. Williams, 190 N.J. Super. 111 (App. Div. 1983), defendant knew for some time before the verdict about the juror's disqualification, and was "hedging his bets." See also State v. Farmer, 366 N.J. Super. 307 (App. Div.), certif. denied, 180 N.J. 456 (2004). As the trial judge noted, the defendant's "gamesmanship" "personally and directly prevented [the] court from taking the type of corrective action employed effectively in the Farmer case or any other type of action . . . ." In other words, had defendant called to the court's attention what he knew before the verdict was announced, the judge could have substituted an alternate juror and directed the jury to begin deliberations anew, as in Farmer.
We do not hold that the statutory policy now embodied in N.J.S.A. 2B:20-1 can be avoided merely because a juror believes he or she need not reveal a conviction. See Williams, supra. Nor does the fact the defendant failed to raise his knowledge of the disqualification always require an affirmance. However, in the extraordinary aggregate of facts before us, including both of the factors - the juror's good faith belief and the defendant's "gamesmanship" - and the judge's conduct of an evidentiary hearing and fact-finding as to credibility, see State v. Locurto, 157 N.J. 463 (1999), we see no basis to reverse the conviction.
As a result of the remand, we do not discuss the impact of the sentencing judge's comments about the hollow-nose bullets and the fact that "[t]he testimony was uncontested that the gun was loaded with hollow[-]nose bullets." Nor do we have to address the disparity between the stated parole-ineligibility term as stated at the sentencing and in the judgment of conviction.
The judgment of conviction on the permit violation is affirmed, but the matter is remanded for resentencing pursuant to State v. Pierce, 188 N.J. 155 (2006).