February 13, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JONATHAN A. BLACK, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County Docket No. 04-10-1303.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2008
Before Judges Payne and Waugh.
Defendant, Jonathan Black, was charged with and convicted of second-degree aggravated assault causing serious bodily injury, N.J.S.A. 2C:12-1(b)(1), first-degree armed robbery, N.J.S.A. 2C:15-1, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), following the shooting by defendant of a gas station attendant in the chest in the course of a robbery attempt. Defendant, who was apprehended following another armed robbery of a Foot Locker store, confessed to the earlier crime but repudiated his confession at trial. After trial on charges arising from the gas station shooting and attempted robbery, defendant was sentenced to sixteen years in prison with an eighty-five percent parole disqualifier, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant has appealed from his conviction and sentence, raising the following arguments:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS.
A. FACTUAL INTRODUCTION.
B. THE TRIAL COURT ERRED IN CONCLUDING THE SEARCH AND SEIZURE WAS JUSTIFIED PURSUANT TO THE AUTOMOBILE EXCEPTION TO THE SEARCH WARRANT REQUIREMENT.
C. THE TRIAL COURT ERRED IN CONCLUDING THE CONDUCT OF THE POLICE WAS PROPER ON THE BASIS THAT THE OCCUPANTS OF THE VEHICLE THE DEFENDANT WAS OPERATING WERE ARMED, THUS PERMITTING THE SEARCH OF THE OCCUPANTS AS WELL AS THE INTERIOR OF THE VEHICLE ITSELF.
D. THE IMPROPER SEARCH AND SEIZURE WHICH RESULTED IN THE DEFENDANT'S ARREST NECESSARILY TAINTED THE STATEMENT THE POLICE SUBSEQUENTLY OBTAINED FROM HIM AT HEADQUARTERS.
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW.)
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Prior to trial for the gas station armed robbery, defendant challenged the admissibility of his confession, arguing that it should be suppressed as the fruit of an illegal search and seizure. A hearing occurred, at which evidence was presented, which established that, during the evening of April 26, 2004, a Foot Locker store located on Morris Avenue in Union was robbed. Following the robbery, the victims reported that the crime had been committed by four masked and gloved black men, one wearing a black hoodie and one wearing a green camouflage jacket. On the day after the robbery, a customer who had attempted to enter the store while the robbery was in progress, but had been turned away, informed the police that, upon leaving the location, he had seen a 1995 silver Mitsubishi Galant with gray tinted windows, a damaged front fender and a broken right front headlight partially blocking the exit to the parking lot where the Foot Locker was situated.
Shortly after midnight on April 28, a car matching the description given by the customer was sighted by two police officers, Pietro DiGena and his partner, Barry Coleman, driving west on Morris Avenue in the vicinity of the Foot Locker store. They stopped it. Following the stop, the officers ordered the car's occupants to roll down the windows and, while waiting for a back-up unit to arrive, the officers observed the car's passengers to be passing something from the front to the back seat, and then they observed the back seat passengers to be turning as though placing an object or objects behind them. After the arrival of the second police unit, DiGena approached the driver's side of the car, and at that time, he noted that the driver was wearing a black hooded sweatshirt and the occupant of the front passenger seat was wearing a green military jacket. Both items of clothing matched descriptions of clothing worn by the perpetrators of the Foot Locker robbery. Additionally, DiGena observed masks and gloves on the floor of the vehicle. In response to questioning, the car's driver denied passing anything from the front to the back seat while waiting for the police to approach.
The four were ordered to exit the vehicle and to sit on the curb. Thereafter, the police searched the vehicle for weapons, and in the process, moved the rear seat cushion, which was already displaced, revealing a cocked and loaded handgun located in the trunk, which the police viewed through a hole in the partition between the cab and the trunk. Rather than reaching for the gun from the cab of the car, the police opened the trunk to retrieve it, finding two weapons. A subsequent weapons test revealed that one of the guns had been used in the gas station robbery. All four of the vehicle's occupants were arrested and taken separately to headquarters. Although four police vehicles were on the scene for purposes of transport, at the time the search of the car took place, only two vehicles and four officers were present.
Following the hearing, defendant's motion to suppress was denied. In a written opinion, Judge Wertheimer noted that both parties had agreed that the police had lawfully stopped the car containing defendant, his companions, and the guns as the result of the broken headlight. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed. 2d 660 (1979). The judge then found the search of the vehicle to have been justified as a protective search pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). In finding reasonable suspicion that defendants were armed, the judge relied on the fact that (1) the vehicle had been sighted at the location of an armed robbery; (2) the two front-seat passengers were wearing clothing that matched the descriptions provided by the robbery victims; (3) masks and gloves were seen on the car's floor; (4) the officers observed the front-seat passengers passing something to the back seat; (5) the observed movements were denied by defendants; and (6) the stop occurred after midnight. The judge also found the scope of the search to have been permissible in the circumstances under standards established in State v. Brown, 160 N.J. Super. 227, 231-35 (App. Div. 1978). Alternatively, the judge determined that the warrantless search could be justified under the automobile exception to the warrant requirement as articulated in cases such as State v. Cook, 163 N.J. 657. 664-71 (2000), finding probable cause to have been established by "the vehicle's potential link to an armed robbery, the masks and gloves on the floor of the vehicle, and the furtive movements coupled with the denial of such movements." Additionally, the judge ruled that exigent circumstances existed as the result of the ongoing robbery investigation, the police's reasonable belief that the car's occupants were its perpetrators, the mobility of the car, and the danger to the police and others posed by the presence of the weapons.
At trial before a different judge, testimony by Robert Walker, an acquaintance of defendant's who witnessed the gas station incident, established that, on April 12, 2004, while returning to Hillside from a gathering in Newark, Walker stopped for gas, opening the door to request ten dollars worth of fuel. While the door was open, defendant reached across Walker while holding a gun and stated to the gas station attendant, "Give me the damn money or I'll kill you." When the attendant retreated in panic, defendant shot him in the chest and then ordered Walker to drive off. The bullet passed through the attendant's body, exited through his armpit, reentered his arm, and again exited in the area above the elbow. The attendant, although believing that he would die, survived the attack. Both the bullet and casing were recovered, and ballistic tests connected the ammunition with one of the guns found in the vehicle that defendant was driving on April 28. Defendant, testifying on his own behalf, denied any involvement with the crime and stated that his confession had been manufactured by the police without any involvement on his part except to sign the fraudulently created document. The jury did not accept defendant's story, finding him guilty on all counts of the indictment against him.
On appeal, defendant challenges Judge Wertheimer's ruling that the search of the vehicle on April 28 and the seizure of the weapons found in it was valid. We affirm, substantially for the reasons set forth in the judge's written opinion. In doing so, we agree with the judge that there was no poisoned tree to bear defendant's confession as fruit, and that his confession was admissible. We add only that the United States Supreme Court has recently reaffirmed the validity of Terry stop and frisks in the context of a police stop of a vehicle for an insurance-related violation and the subsequent frisk of a passenger, suspected of gang membership, who was removed from the vehicle. Arizona v. Johnson, 2009 U.S. Lexis 868 (January 26, 2009). Although the decision differs factually from the circumstances of the present case, its emphasis on the risk to the police and the public as the result of the potential for a violent encounter stemming, not from the stop itself, but from the fact that evidence of a more serious crime might be uncovered during the stop, has direct relevance here. In the circumstances presented, we find the police's conduct in searching the vehicle driven by defendant, including the area behind the displaced back seat, to have been reasonable and exigency to have been established as the result of the even match between numbers of police present and occupants of the vehicle and the likelihood that guns remained secreted in that vehicle. Compare, State v. Dunlap, 185 N.J. 543, 549-51 (2006) (finding no exigent circumstances to be present when defendant was vastly outnumbered by responding police, and his vehicle, thought to contain drugs, was parked on a residential street).
Defendant next challenges, as plain error, aspects of the prosecutor's summation that defendant claims exceeded the scope of permissible argument by inferring that the police lacked any motive to lie. We reject his position, finding that the prosecutor's comments were a proper response to defense counsel's closing argument. In summation, defense counsel argued that it was unreasonable to believe that defendant would have confessed to participation in a series of armed robberies,*fn1 including this one, having been informed of his right to remain silent as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). Counsel continued:
So, the suggestion that it's ridiculous that the detectives could make up a story and give details and then force Mr. Black to sign it, why not? Why couldn't they? It's done everyday. It's done on America's Most Wanted. You see it when you turn the TV on.
In response, the prosecutor argued that to believe defendant, the jury would have to believe that the police fabricated evidence, and what sense did that make?
In evaluating the prosecutor's closing, we note the absence of any objection at trial, a circumstance that suggests that defense counsel did not regard the prosecutor's arguments as prejudicial at the time. State v. Josephs, 174 N.J. 44, 126 (2006), State v. Engel, 249 N.J. Super. 336, 377 (App. Div.), certif. denied, 130 N.J. 393 (1991). Further, we note that a prosecutors are afforded considerable leeway in summing up, "so long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). As a final matter, we note that we have frequently held that a prosecutor may respond to an argument made by defense counsel during closing. State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996); State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000); Engle, supra, 249 N.J. Super. at 379. We are also mindful of the principle that "[i]t is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." State v. Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935)). Our review of the record in this matter, in light of these principles, satisfies us that the prosecutor's closing remained within proper bounds in this case, and that it failed to create reversible error. We therefore affirm defendant's conviction.
In Point III of his brief, defendant attacks his sentence of sixteen years, subject to NERA, claiming that it was excessive, and that the aggravating factors cited to support it were improperly invoked. In that connection the judge relied upon aggravating factors 1 (the nature and circumstances of the offense, arising from the fact that, when the gas station attendant ran in panic, defendant shot him); 2 (the gravity and seriousness of the harm inflicted by a shot that, just by lucky happenstance, failed to cause death); 3 (the risk that defendant would commit another offense); and 9 (the need for deterrence). N.J.S.A. 2C:44-1a(1), (2), (3), and (9). Although the judge found as a mitigating factor defendant's lack of a prior criminal record, N.J.S.A. 2C:44-1b(7), the judge found that the aggravating factors "clearly and convincingly and substantially" outweighed the single mitigating factor, justifying a sentence above the mid-range.
We find the sentencing judge's invocation of aggravating factor 1 to have been mistaken. Defendant, as we have stated, was convicted of second-degree aggravated assault under a provision that required evidence that he had attempted "to cause serious bodily injury to another, or cause[d] such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly cause[d] such injury." N.J.S.A. 2C:12-1b(1). At sentencing, the second-degree aggravated assault conviction was merged with the first-degree armed robbery conviction, and defendant was sentenced for the robbery. In invoking aggravating factor one as justification for imposing a sixteen-year sentence on that charge, the judge focused on the circumstances under which serious bodily injury to the victim was inflicted - a shooting at close range of a panicked but otherwise unresisting victim. In doing so, the judge characterized a mindset on defendant's part that mirrored an element of the crime of second-degree aggravated assault that had been merged into the robbery conviction. We find that to have been double counting. Similarly, in invoking aggravating factor 2, the judge did little more than describe the serious bodily injury that elevated defendant's assault on the gas station attendant to a second-degree crime. We thus find that factor to have been mistakenly invoked as well. We thus remand for resentencing, expressing no opinion as to whether the sixteen-year term that was imposed was appropriate in the circumstance.
Defendant's conviction is affirmed; his sentence is vacated, and the matter is remanded for resentencing.