March 19, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KHORI WILLIAMS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 06-08-0774 and 06-08-0773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges A. A. Rodríguez and Payne.
Following a jury trial, defendant, Khori Williams, was convicted of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and of fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d. Following his conviction for those crimes, pursuant to agreement, defendant pled guilty to a separate indictment charging second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. He was sentenced to a term of imprisonment of five years for unlawful possession of a weapon, to a concurrent term of eighteen months for possession of a defaced weapon and to a concurrent term of five years for the second-degree "certain persons" crime. On appeal, defendant raises the following issues:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S MOTION TO SUPPRESS THE EVIDENCE.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING APPELLANT'S APPLICATION FOR A MISTRIAL.
At the suppression hearing conducted in this matter, it was established by Elizabeth police officer Raul DeLaPrida that, on April 5, 2006, at approximately 3:30 to 4:00 a.m., he and Elizabeth police officer Franklin Idrovo were on patrol in plain clothes at a housing complex located at 400 Irvington Avenue as the result of citizen complaints of trespassers and past arrests at the location arising from drug sales and violent crimes. While on the fourth floor of the building, the officers observed Reinaldo Bonilla exit from one of the apartments, "sweating profusely" and holding a handgun in his left hand. DeLaPrida recognized Bonilla from a recent arrest for narcotics distribution. As Bonilla started walking toward the officers, they identified themselves and ordered Bonilla to stop. Bonilla ignored the police officers' order, running back toward the same apartment that he had just left.
According to DeLaPrida, Bonilla's actions suggested to him [t]hat there's possibly somebody else in the apartment he wants to warn, possibly something else going on, some kind of criminal activity inside the apartment, or even somebody else is hurt in that apartment.
DeLaPrida also recognized a possibility that somebody had already been shot in the apartment -- a possibility that was heightened by the fact that Bonilla was a known drug dealer and that he was armed. The officers handcuffed Bonilla before he could re-enter the apartment and called for backup. A post-arrest search disclosed a silver handgun in Bonilla's possession as well as sixty-seven baggies of cocaine.
DeLaPrida then knocked on the apartment's door "to check if anybody was hurt inside or any . . . activity was going on." Victoria Tankard, defendant's aunt, responded. DeLaPrida testified that he identified himself as a police officer and asked for permission to enter, which was given. According to DeLaPrida, while he was speaking to Tankard about what he had just observed, DeLaPrida observed two adult males inside the apartment run from one bedroom, across a hall, and into another bedroom. DeLaPrida testified that he alerted his partner Idrovo to what was occurring and then ran down the hall to the bedroom into which the two men had run, observing two males and two females lying in bed with the covers pulled over their heads. The men were fully dressed with their boots on. DeLaPrida, who had drawn his gun as he approached the bedroom, ordered the four out of the bed and out of the bedroom. Idrovo then patted down the men, finding a handgun on defendant, as well as another handgun and marijuana on the other man.
According to DeLaPrida, and as confirmed by Victoria Tankard, he then obtained written consent from Aaliya Tankard, Victoria's daughter, to search the bedroom. The State did not enter a consent to search form into evidence at the suppression hearing or at trial. However, no additional evidence was obtained as the result of the search. Bonilla, defendant, and the third man were then taken to police headquarters and charged with various offenses.
Victoria Tankard's testimony differed from that of DeLaPrida. She testified that she was awakened by a knock on the door and a command that it be opened. Upon obeying the command, two men whom she later determined to be police officers ran past her and into the apartment. When she asked who they were looking for, the officers identified themselves as police, but then kept on going. Tankard testified that, at that point, she stated that she was a paralegal and told the police "that's illegal what you're doing." She then testified that one of the officers explained that they had just detained an Hispanic male with a gun and drugs on him, and the officer inquired whether Tankard was safe.
Tankard testified further that she called her employer, Randy Davenport, a criminal defense attorney, who advised her to tell the police to leave because they lacked a warrant. Tankard then testified that the officers requested that she sign a consent to search form, which she refused to do. Tankard said the officer explained that if she gave consent and he found anything illegal, "I'll put it all on the Hispanic boy outside," apparently referring to Bonilla. Tankard testified that the officers searched the apartment without her consent.
Attorney Davenport, who also testified at the hearing, stated that when Tankard called him, the police had already detained the three men, and he confirmed that he advised Tankard not to consent to a search. Davenport then spoke to DeLaPrida on the telephone, who told him that if Tankard consented to the search and the police found anything in the apartment, they would not charge the women, whereas if a warrant were required and evidence of criminal activity were found, everyone would be charged. After that conversation, Davenport advised Tankard that "if there is nothing in the house go ahead and consent." Tankard told Davenport, "I don't think anything is in the house," and Davenport "told her to go ahead and consent because the officer had personally advised [him] that he would not be charging the women."
Following the hearing, the motion judge rendered an oral opinion in which he ruled the gun seized from defendant was admissible at trial. In doing so, he acknowledged that the defense had conceded that the police had the right to knock on Tankard's door to determine the safety of those in the apartment. The judge then determined that the warrantless search of the Tankard apartment was authorized as a protective or fan-out search pursuant to State v. Henry, 133 N.J. 104, cert. denied, 510 U.S. 984, 114 S.Ct. 486, 126 L.Ed. 2d 436 (1993) and State v. Smith, 140 N.J. Super. 368 (App. Div. 1976), aff'd o.b., 75 N.J. 81 (1977), and that the subsequent searches of defendant and his friend were authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968). After describing applicable precedent, the judge observed:
Similarly here, the police arrested Mr. [Bonilla] coming out of [apartment] 4-D with a gun clearly displayed in his hand, a large amount of C.D.S. on his person and when he saw the police he tried to go back into the apartment 4-D. It's a reasonable inference that one or two things were going on --either one, that other confederates of his were in the apartment and that he was going back there either to warn them or for safety purposes. This may further be supported by the fact that he openly carried a gun coming out of the apartment and didn't have any concern for the people inside the apartment seeing the gun.
The other possibility is that he had done some harm in there or was planning to do some harm by having the gun displayed and sweating and so forth. I would also note it's a high crime, high narcotics area.
Combined with this, while the police were in the apartment or the police officer was in the apartment he saw the defendants run in a situation where the police, . . . in all likelihood[,] their presence was known by their voice and knocking on the door and so forth. (Paragraphing altered to conform to narrative.)
After confirming the right of the police to be present in the apartment, that at least one officer was situated in a location where the hall to the bedrooms could be observed, and that the officer had observed two young men darting from one room to another, the judge held that "it was reasonable to assume that they knew the police were there and were reacting to it." The judge continued: "Under these facts it gave the police reason to believe that there may be a danger from third parties while they were carrying out their duties." Quoting Smith, the judge stated:
In this setting it would have been preposterous to assume that other confederates might not be in the apartment and would not have the means of resisting the efforts of the police or otherwise imperiling them. Indeed it would have been foolhardy for the police not to search for other persons on the premises. [Smith, supra, 140 N.J. Super. at 373.]
The judge then found in the present case, as in Smith, that it would have been "preposterous to assume that the two defendants who ran from the one back room to the other would not have the means of resisting the efforts of the police or otherwise impeding them. Indeed it would have been foolhardy for the police not to search them." The motion to suppress was thus denied.
At trial, Officer Idrovo testified that once inside the apartment, he patted down the defendant, finding a semiautomatic handgun in his pants pocket. Idrovo identified the gun marked into evidence as the gun he recovered from defendant. Idrovo examined the weapon and testified that the serial number had been "filed off." He testified that on the night of the arrest, the gun had been loaded with five bullets in its magazine. The parties stipulated that the gun in evidence was an operable handgun, and that defendant did not have a New Jersey gun permit.
At the end of the State's case in chief, defense counsel moved for a judgment of acquittal, and the motion was denied. Upon conclusion of all evidence, the jury found defendant guilty of the third- and fourth-degree gun charges, and as previously stated, he pled guilty to the second-degree "certain persons" charge. This appeal followed.
Our review of the record in light of applicable precedent satisfies us that the gun found in defendant's possession by the police in a warrantless pat-down search following defendant's removal from the bed in which he had been discovered, hiding, was properly found to be admissible in evidence. We commence our analysis by addressing the police's entry into the apartment that Bonilla had recently left. Although the parties do not contest the propriety of that entry, we confirm that it was a lawful exercise of the police's community caretaking function.
As DeLaPrida testified, the fact that Bonilla was observed leaving Tankard's apartment, gun in hand and sweating profusely, that he sought to return once sighted by the police, reasonably gave rise to a suspicion by the police that Bonilla had harmed the occupants of the apartment, requiring their further investigation. See State v. Frankel, 179 N.J. 586, 610, cert. denied, 543 U.S. 876, 125 S.Ct. 108 160 L.Ed. 2d 128 (2004); State v. Laboo, 396 N.J. Super. 97, 103-04 (App. Div. 2007). Moreover, although Victoria Tankard testified that she did not consent to a search of the apartment, she did consent to the police's entry, following their knock and direction to her that she should open the door.
Thereafter, and while legally on the premises at approximately 4:00 a.m., and while conversing with Victoria Tankard, Officer DeLaPrida saw two fully-clothed males make a dash from one room, across the hall, into another room. Upon investigation, the males were found to be hiding in a bed also occupied by two females. Defendant argues on appeal that, at the time, Victoria Tankard expressed no concern for her personal safety. Defendant further characterizes the conduct of the two males, himself included, as "innocent." He thus claims that the police's action in investigating the whereabouts of the two males, rousting them from bed, and, when taken to a secure location, patting them down, constituted a violation of their Fourth Amendment rights.
We disagree, finding exigent circumstances of sufficient gravity to warrant the police's further intrusion into Tankard's apartment and the police's eventual detention and search of defendant and his male companion, resulting in the discovery of the weapons. We note in this regard that Bonilla's conduct and a post-arrest search of his person gave rise to a concern by the police either that he may have harmed the occupants of Tankard's apartment or that he may have engaged with those occupants in criminal drug activity.
The conduct of defendant and his male companion in fleeing from one room to another, after they could be assumed to have learned of the police's presence in the apartment, reasonably suggested that the two were attempting to hide themselves or some objects secreted on their persons, or to destroy evidence. In context, that evidence was most likely guns or drugs. See Henry, supra, 133 N.J. at 114 (noting that weapons are usually found where illegal drugs are sold, and that because drug-selling is a violence-prone business, police can act in apprehension that other persons could cause them harm). In the circumstances, it would not have been possible for the police to seek a warrant. The circumstances were instead exigent. See State v. Alvarez, 238 N.J. Super. 560, 567-68 (App. Div. 1990) (citing factors that should be considered in finding exigency, including the degree of urgency involved, the reasonable belief that contraband is about to be destroyed, the possibility of securing the premises, the knowledge that the parties are aware of police pursuit, and the possibility that the suspects are armed). See also State v. Wilson, 362 N.J. Super. 319, 332-33 (App. Div.), certif. denied, 178 N.J. 250 (2003); State v. De La Paz, 337 N.J. Super. 181, 195-96 (App. Div.), certif. denied, 168 N.J. 295 (2001).
We are further satisfied that the police had reasonable suspicion to conduct a pat-down search of defendant and his friend pursuant to Terry v. Ohio, supra, 392 U.S. at 26-27, 88 S.Ct. at 1882-83, 20 L.Ed. 2d at 909; see also, State v. Roach, 172 N.J. 19, 27-28 (2002); State v. Valentine, 134 N.J. 536, 546-51 (1994). The police were in a high-crime area in the early hours of the morning. A known and armed drug dealer had been observed leaving the apartment in which defendant and his companion were found. Both defendant and that companion were observed to be acting in a manner that suggested their unwillingness to be confronted by the police. And the circumstances suggested their complicity in drug dealing and the likelihood that they were armed.
As a consequence, we affirm the judge's denial of defendant's motion to suppress evidence consisting of his weapon.
At trial, defendant argued that he should have been acquitted of the charge of possession of a defaced weapon, N.J.S.A. 2C:39-3d, because the State had not adduced evidence of his knowledge of the defacement. The argument was raised again on appeal.
At the time this appeal was briefed, the law was unsettled as to whether a defendant had to have knowledge that a weapon found in his possession was defaced, or whether the State was required to prove only the defendant's knowing possession of a defaced weapon. That issue was determined recently by the Supreme Court in State v. Smith, ___ N.J. ____ (Jan. 27, 2009) in a decision that held that knowledge of the defacement did not constitute an element of the crime of possession of a defaced weapon. Accordingly, we reject defendant's argument on this issue.
As a final matter, defendant challenges the trial judge's determination not to declare a mistrial after members of the jury partially overheard a side-bar argument regarding the testimony of a police witness. At trial, Officer Idrovo testified concerning the events of the night of defendant's arrest. On direct examination, the prosecutor asked Idrovo if he had ever seen defendant before that night. Defense counsel objected, and the trial judge called a side-bar conference, where the following colloquy took place between Assistant Prosecutor, Henry Goldfine, and defense counsel, Sebastian Bio.
[THE COURT]: Do you know the answer to this question ?
MR. GOLDFINE: Yes sir.
THE COURT: And does he know him from before?
MR. GOLDFINE: Yes. He arrested him two weeks before. I'm not asking him why or where or under what circumstances.
MR. BIO: The jury is listening.
THE COURT: Mr. Bio, hold on, please. Keep your voice lower.
MR. GOLDFINE: Yes sir. I'm asking him where he had seen him and how he was able to identify him.
THE COURT: How are you going to get that in?
MR. GOLDFINE: He's going to say yes.
THE COURT: How are you going to leave that open out there? It's too prejudicial, Mr. Goldfine, just as the other is. You can't say he was --
MR. GOLDFINE: I wasn't going to say that. That -- you asked me where.
THE COURT: Is identification an issue in this case?
MR. BIO: No, Judge.
THE COURT: I'm not going to allow the question.
After defense counsel reiterated his concern that the jury had heard the side-bar conference, the trial judge queried its members on the record, but out of the hearing of the other jurors. His inquiry revealed that one juror had heard "something about prejudicial to my client, you know -- something to do with the fact that why would this police officer have known my client, other than just for the purposes of, you know, he happened to show up at the location in question." Another juror overheard the comment that "it was too prejudicial."
Defense counsel then moved for a mistrial, and his motion was denied. The judge stated:
I'm going to deny your application for a mistrial because of a couple of things. No one heard that the defendant was arrested two weeks prior, which is paramount. Thank goodness that they didn't hear that.
The second reason is, the comments that they heard could have really been made in open court when I sustained an objection. I could say -- I always say, what does that have to do with the case? That is not prejudicial. The fact that they heard it was prejudicial to my client and that it was too prejudicial, I believe, can be corrected by a curative instruction that they are not only to strike the question, but strike any speculation about the question and what they may have heard at side bar. It's not evidence.
Immediately following his ruling, the trial judge instructed the jury in the following terms:
The objection is sustained.
Remember, that means I'm ruling in favor of the party making the objection, Mr. Bio.
I'm also striking the question. The question isn't evidence, anyway, remember, because what is said by the lawyers isn't evidence, but I'm striking the question.
You are not to consider that question.
Don't consider any answer that you think may have been given and, certainly, don't consider anything that you heard, overheard at side bar because, again, what is said by the lawyers is not evidence. Right? What is said by the Judge is not evidence. The witnesses are the only source you could consider as evidence. So strike that out of your mind. I'm not going to allow the question. I'm not going to allow any further questioning abut that issue. Don't speculate as to what the answer may have been. Disregard any comments you may have overheard. Okay? I can't say that strongly enough.
We are satisfied, in light of the limited nature of what jurors overheard with respect to the side-bar conference and the strong curative instruction that the judge gave immediately after questioning the jury, that the judge acted within his discretion in declining to declare a mistrial, and that no substantial prejudice to defendant resulted from the episode at issue. State v. Loyal, 164 N.J. 418, 435-36 (2000); State v. Winter, 96 N.J. 640, 646-47 (1984) (holding that a mistrial may only be granted if the error cannot be remedied by "corrective or limiting instruction" or other means). Further, we note that there is no indication in this case that the outcome of the trial would have been different, but for the alleged inferences that the jury may have drawn, nor does the defendant argue as much. Thus, it is far from apparent that any prejudice would have affected the jury's verdict, resulting in a manifest injustice.
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