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State v. McCollum

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 23, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GERARD MCCOLLUM, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-12-2167.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 18, 2009

Before Judges Lyons and Waugh.

Defendant Gerard McCollum appeals his conviction on two counts of burglary with intent to commit an offense, N.J.S.A. 2C:18-2, and two counts of attempted theft by unlawful taking, N.J.S.A. 2C:5-1 and 2C:20-3, as well as the resulting sentence of incarceration for six years with two years of parole disqualification and related fines and penalties. We affirm.

I.

We glean the following facts from the record, including Judge Camille M. Kenny's decision with respect to a motion to suppress brought by McCollum. In the early morning hours of September 7, 2006, the Kearny Police Department received an anonymous call to the effect that two individuals had broken into a brown car on Devon Street near West Hudson Park. The caller was only able to describe one of the individuals - a white male wearing blue jeans and a dark-colored shirt or sweater.

Kearny Police Officers Norat and Bannon were on patrol that night and responded to the designated area on Devon Street. The officers observed pieces of glass on the sidewalk and two vehicles with broken windows, a brown Pontiac and a blue GMC SUV.

The officers saw no one in the immediate area of the burglarized vehicles, which was residential. Once another unit arrived at the scene, Norat and Bannon returned to their patrol car and began to patrol the area. After traveling several blocks, the officers spotted McCollum walking on Woodland Avenue, away from the area of the car burglaries. Norat and Bannon continued to follow McCollum, during which time they observed him briefly disappear near a green Jeep Cherokee and some bushes.

As the officers continued to follow McCollum, he repeatedly looked back at their vehicle. Norat characterized this behavior as "very suspicious." The officers eventually stopped, exited their patrol vehicle, and approached McCollum. They recognized McCollum as someone known to them who had been involved with car burglaries in the past. They also observed that he was sweating "profusely" and appeared to be nervous. He was wearing blue jeans and a dark sweater, an outfit consistent with the information conveyed by the anonymous caller.

The officers approached McCollum and asked him where he was coming from, to which he responded that he was coming from Fluffheads, a local bar. However, Fluffheads was located in the direction toward which McCollum had been walking. McCollum added that he was also checking on an apartment to rent at 28 Kearny Avenue, which was on the other side of the street and in the direction away from which he had been walking. The officers noticed small shards of glass on McCollum's sweater and sneakers.

When their supervisor, Sergeant Ellis, arrived, Norat and Banno pointed out the glass shards, which they suspected were from the broken car windows. They asked McCollum for identification. Norat asked McCollum if he was "carrying anything that [he] should be worried about." In response, McCollum became belligerent, but emptied his pockets to show what he had in them. The officers observed two blue cigarette lighters, a cell phone, a black magnetic cell phone pouch, a pack of Kools cigarettes, and some currency.

Because McCollum became belligerent as he emptied his pockets, Norat handcuffed him as a safety measure. McCollum was released shortly thereafter, apparently because the police did not believe they had sufficient evidence to arrest him. At that time, the Police Department had been unable to trace the anonymous caller or contact the owners of the two vehicles that had been broken into to obtain additional information.

Norat and Bannon returned to their patrol car and continued their investigation. In the area where McCollum had briefly stopped adjacent to the green Jeep Cherokee, they discovered a radar detector and a car radio on the sidewalk. In the interim, the Police Department had succeeded in contacting the owner of one of the cars, who informed them that his car radio and two blue cigarette lighters were missing. Based upon the new information, the officers sought and arrested McCollum.

Following his indictment, McCollum moved to suppress any evidence resulting from his first encounter with the police officers on September 7, 2006, arguing that the police had no constitutional basis to stop and question him at that time. The motion was heard on May 18, 2007, and decided on the basis of stipulated facts without testimony. The trial judge denied the motion, finding that the officers had sufficient information to warrant a field inquiry and then an investigatory stop.

McCollum was tried on June 27, 2007, and the jury returned a verdict of guilty on all counts. At sentencing on September 13, 2007, the trial judge granted the State's motion for an extended term and merged McCollum's attempted theft convictions into the corresponding burglary convictions. The judge imposed concurrent custodial terms of six years with a two-year parole disqualifier, as well as the required fines and penalties.

This appeal followed.

II.

On appeal, McCollum raises the following issues:

POINT I: THERE WAS NO LEGITIMATE REASON FOR THE POLICE TO STOP THE DEFENDANT INITIALLY.

POINT II: DEFENDANT'S CONSENT TO THE SEARCH WAS INVOLUNTARY, EVIDENCE AND STATEMENTS ARISING FROM THE SEARCH SHOULD HAVE BEEN BARRED. (Not Raised Below).

POINT III: THE PROSECUTION'S IMPROPER CLOSING REMARKS VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT IV: THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE R. 3:20-1; R. 4:49.

POINT V: THE SIX-YEAR SENTENCE WITH A TWO-YEAR PAROLE INELIGIBILITY FOR BURGLARY AND ATTEMPTED THEFT WAS MANIFESTLY EXCESSIVE.

Having reviewed defendant's arguments, the State's responses, and the record on appeal, we find McCollum's arguments to be without merit and not warranting an extended discussion in a written opinion on appeal. R. 2:11-3(e)(2). We nevertheless add the following.

McCollum argues that the police had no basis to stop him on the streets of Kearny in the early morning hours of September 7, 2006. Consequently, he argues, the evidence resulting from that stop were inadmissible as "fruits of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S.Ct. 407, 416, 9 L.Ed. 2d 441, 454 (1963); see also State v. Johnson, 118 N.J. 639, 653 (1990).

Judge Kenny determined that, when the police officers initially approached McCollum on the deserted street and asked him questions, they were properly conducting a field inquiry. See State v. Pineiro, 181 N.J. 13, 20 (2004) (defining a field inquiry as "the least intrusive encounter," which occurs when a police officer approaches a person and asks if he or she is willing to answer some questions). "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing or accusatory in nature.'" Ibid. (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). During such a field inquiry, "'the person approached . . . need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.'" State v. Maryland, 167 N.J. 471, 483 (2001) (quoting Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324, 75 L.Ed. 2d 229, 236 (1983)). That conclusion is appropriately supported by the law and the record.

Judge Kenny went on to determine that the interaction between the police officers and McCollum then became a Terry*fn1 stop because, after the initial questioning, "an objectively-reasonable person" would feel "that his right to move ha[d] been restricted." The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, and to pat him down for the officer's safety, if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriquez, 172 N.J. 117, 126 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968)). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986). See also State v. Love, 338 N.J. Super. 504, 507 (App. Div. 2001) ("There is a wide and rich diversity of street encounters between citizens and police officers, and appropriate deference must be given to an officer's experience in evaluating suspicious conduct and circumstances.").

Judge Kenny found that the officers had sufficient "reasonable suspicion," pointing to: (1) the anonymous call about the criminal activity on Devon Street; (2) their confirmation that criminal activity had in fact taken place at that location, including the broken car windows; (3) McCollum's presence in the general area, which was otherwise deserted; (4) the correlation between McCollum's appearance and the description given by the anonymous caller; (5) McCollum's suspicious activity while being followed by the patrol car; and (6) the shards of broken glass on McCollum's clothing. We agree with that analysis. We also note that, during the initial field inquiry, McCollum had stated first that he had come from a tavern towards which he was walking and then that he was going to look at a rental apartment, between 2:00 and 3:00 a.m., that was located in the opposite direction from that in which he was walking. In addition, McCollum was known to the officers as someone who had been involved with motor vehicle burglaries in the past.

McCollum cites a number of cases that stand for the proposition that many of the factors articulated above do not, by themselves or combined with one or two others, provide a sufficient basis for finding "reasonable suspicion." In this case, however, the number of factors and the circumstances under which they were observed, taken together, warrant a different result.

For the first time on appeal, McCollum argues that the search of his pockets was unconstitutional because there was no basis for the search and the State failed to prove that his consent was voluntary. He cites State v. Todd, 355 N.J. Super. 132, 139 (App. Div. 2002) (quoting State v. Johnson, 68 N.J. 349, 353-54 (1975)), which holds that "under our state constitution, as our Supreme Court has made clear, 'where the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent.'"

Because the issue of the search was not raised by defendant at trial, it is evaluated on appeal by the plain error standard. See R. 1:7-2 and R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

McCollum's assertion assumes that he was asked to empty his pockets by the police officers. At trial, however, Norat testified that he asked McCollum whether he should be worried about anything in his pockets and that, in response, McCollum became belligerent, said he had "nothing," and then emptied his pockets to show them. That testimony has never been disputed. Consequently, we find no plain error with respect to the issue of the supposed "search" of McCollum.

McCollum also contends that the prosecutor inappropriately stated during summation that the radio and radar detector found near the green Jeep Cherokee came from the blue GMC SUV. In fact, the prosecutor stated: "And what do we find by the green [] Jeep but the car radio that belonged to the blue GMC Suburban and part of the dashboard and a radar detector." A fair reading to the prosecutor's statement demonstrates that he only specifically asserted that the radio came from the blue GMC SUV. In addition, because there was no objection to the summation below, we again apply the plain error standard.

To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (citation omitted). Indeed, the Supreme Court has recognized that "criminal trials create a 'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958)).

Although the owner of the truck had testified that his radio was stolen, he never identified the radio found by the police as his, nor did he testify that his radar detector was missing. Nevertheless, the prosecutor could reasonably have sought to have the jury draw an inference that his missing radio was the one found by the Jeep. Certainly such an argument was not "egregious." In addition, the lack of objection deprived the trial judge of the opportunity to take corrective measures in the event she believed the argument was improper. We see no basis to conclude that the prosecutor's statement "deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83.

We find no merit in McCollum's argument that the jury's verdict was against the weight of the evidence. Because he failed to move for a new trial on that basis in the Law Division, the issue is not properly before us. R. 2:10-1 ("In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court."). In any event, our review of the record finds ample support for the jury's verdict and no basis for us to conclude that "it clearly appears that there was a miscarriage of justice under the law." Ibid.

Finally, our review of the sentencing transcript reveals no basis to overturn the six-year sentence imposed by the trial judge. Our role in reviewing sentences imposed by the trial courts is limited.

An appellate court should disturb the sentence imposed by the trial court only in situations where the sentencing guidelines were not followed, the aggravating and mitigating factors applied by the trial court are not supported by the evidence, or applying the guidelines renders a particular sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65 (1984). Only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience" should a sentence be modified on appeal. Id. at 363-64. [State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996).]

We do not consider whether we would have reached a different sentence, but whether "'on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review.'" State v. Munoz, 340 N.J. Super. 204, 222 (App. Div.), certif. denied sub nom. State v. Pantoja, 169 N.J. 610 (2001) (quoting State v. Ghertler, 114 N.J. 383, 388 (1989)).

McCollum was clearly eligible for an extended term pursuant to N.J.S.A. 2C:44-3(a). The enhanced sentencing range was from three to ten years, and Judge Kenny chose six years, which was only one year more than the maximum for a third-degree offense.

N.J.S.A. 2C:43-6(a)(3); N.J.S.A. 2C:43-7(a)(4). Her weighing of the aggravating and mitigating factors was thoughtful and appropriate. She properly merged offenses and chose to impose concurrent sentences. The two-year period of parole ineligibility was shorter than the three years the judge could have imposed, and also appropriate. See N.J.S.A. 2C:43-7(b). There is nothing about the sentence in this case that "shocks the judicial conscience."

III.

In summary, for the reasons set forth above, we affirm McCollum's conviction and the sentence imposed.

Affirmed.


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