August 6, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAY BRITT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-10-2025.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2008
Before Judges Skillman and Collester.
Following a jury trial defendant Jay Britt was found guilty of attempted murder, N.J.S.A. 2C:5-1, (count one); two counts of aggravated assault, N.J.S.A. 2C:12-1(b)(1) and (2), (counts two and three); possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), (count four); unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), (count five); hindering his own prosecution by suppression of evidence, N.J.S.A. 2C:29-3(b)(1), (count six); and tampering with evidence, a handgun, N.J.S.A. 2C:28-6(1), (count seven). He was sentenced to a custodial term of fifteen years with a No Early Release Act (NERA) minimum of twelve years and nine months on count one, and terms of four years on counts five and six, concurrent with each other and with count one. Counts two, three, and four were merged with count one; count seven was merged with count six. We affirmed defendant's convictions and sentence on direct appeal (A-5354-01T04), and defendant's petition for certification was denied. State v. Britt, 180 N.J. 357 (2004).
Defendant filed a petition for post-conviction relief (PCR), asserting that he was deprived of effective assistance by trial counsel. Following argument on December 19, 2005, the trial judge denied the petition. This appeal followed.
The facts adduced at defendant's trial are set forth at length in our earlier opinion on defendant's direct appeal. In this appeal we consider only those facts relevant to defendant's PCR claim of ineffective assistance of counsel.
At about 3:15 a.m. on September 4, 2000, a fight broke out at Martini's Bar at the Quality Inn on South Carolina and Pacific Avenues in Atlantic City. Everyone in the bar was forced to leave, but within a few minutes fighting resumed on the street. Adrian Howard and his girlfriend, Tiya Cheatham, left the bar and were in the area of the fight when a gold-colored Chevrolet Malibu came speeding up the street and separated the two groups who were fighting. The car stopped, and the driver got out of the car. He fired up to six shots from a handgun, and then got into the car and fled.
Howard was shot five times. He managed to get to the lobby of the Quality Inn whose front desk person called for an ambulance. An Atlantic City police officer arrived before the ambulance. Howard told him that three African American males were in the Malibu and that the driver was the shooter. When the ambulance arrived Howard was taken to the Atlantic City Medical Center where he underwent emergency surgery.
Tiya Cheatham told police detectives that after the gold-colored car pulled up, a man got out and started shooting. She said she was unable to identify the man. No handgun was found at the scene.
Jeff Spencer was a retired police officer working as a limousine chauffer in the early hours of September 9, 2000. He was driving west on Pacific Avenue and about to make a left turn on South Carolina Avenue when he heard gunshots coming from the area between Pacific Avenue and Boardwalk on South Carolina Avenue. He called 9-1-1 and asked that the police be notified. Afterward, a gold car came from the area where the shots were fired and sped by. Spencer saw three men in the vehicle and noted the license plate number, which he later gave to police officers.
Further investigation disclosed that a gold-colored Malibu with the license plate number given by Spencer was an Enterprise Leasing rental car leased to the defendant. Although he gave an address in Brooklyn, he supplied an Atlantic City telephone number which was then traced to the apartment of Latasha Reid in a high rise apartment complex at 130 Vermont Avenue.
On receipt of this information, Detectives Barnhart and Dreager went to the area of 130 Vermont Avenue at about 10:15 a.m. They spotted the gold Malibu with the described license plate about a block away from the high rise. The detectives then called for backup to go to the apartment listed for Latasha Reid.
After other officers arrived, Detective Dreager knocked on the door of the apartment and identified himself as a police officer. Someone behind the door asked Dreager who it was. He repeated that it was the police and requested that person open the door because they were looking for defendant. After silence for about thirty seconds, Detective Dreager knocked again and asked for defendant. At that point, a K-9 officer arrived and called out that police would forcibly enter with the K-9 dogs if the door was not opened. The door was opened, and police found inside the apartment Latasha Reid, a child, and three men. Detective Dreager identified himself and said he was investigating a shooting earlier that morning. He said a gold-colored Malibu was seen leaving the scene that was traced to the defendant, who in turn was traced to the apartment.
The men were all given Miranda*fn1 warnings and searched. When questioned, defendant admitted that he drove a gold Chevrolet Malibu the night before and that no one else used the car. Police then asked Ms. Reid for her consent to search the apartment. She agreed and signed the consent to search form. No weapon or other contraband was found as a result of the search.
Defendant and the other men were taken to Atlantic City police headquarters and separately interviewed. After again being advised of his Miranda rights, defendant acknowledged driving the gold Malibu with two passengers to Martini's Bar and hearing shots. However, he denied being the shooter.
Prior to trial, defense counsel moved to exclude defendant's statements both in the Reid apartment and at police headquarters, alleging that police violated defendant's Fifth Amendment right under Miranda. Following an evidentiary hearing, the trial judge denied the application. We affirmed on direct appeal.
Defendant argues in his PCR petition that he was deprived of his Sixth Amendment right to effective legal counsel by the failure of his trial attorney to challenge the warrantless entry of the police into the Reid appellant as an unlawful search under the Fourth Amendment which required suppression of defendant's statements to police.
Specifically, defendant now argues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
1. INEFFECTIVE ASSISTANCE CLAIMS ON POST-CONVICTION RELIEF.
2. DEFENDANT SATISFIED STRICKLAND BY AVERRING THAT HIS TRIAL COUNSEL FAILED TO CHALLENGE THE LEGALITY OF THE OFFICERS' ENTRY INTO THE APARTMENT.
3. RAISING MIRANDA AND A FIFTH AMENDMENT CHALLENGE WAS NOT THE SAME AS CHALLENGING THE WARRANTLESS ENTRY INTO THE APARTMENT ITSELF AND ARGUING THAT DEFENDANT'S SUBSEQUENT STATEMENTS SHOULD BE SUPPRESSED UNDER THE FOURTH AMENDMENT.
4. IF COUNSEL HAD RAISED THE FOURTH AMENDMENT CHALLENGE TO THE WARRANTLESS ENTRY INTO THE APARTMENT, DEFENDANT'S SUBSEQUENT STATEMENTS TO THE POLICE MIGHT HAVE BEEN SUPPRESSED AS FRUITS OF THE PRIOR FOURTH AMENDMENT VIOLATION.
5. AT THE VERY LEAST, THE TRIAL COURT SHOULD HAVE HELD AN EVIDENTIARY HEARING BEFORE REJECTING DEFENDANT'S INEFFECTIVE ASSISTANCE CLAIM.
To prevail on an ineffective assistance of counsel claim, a defendant must meet the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987). The defendant must demonstrate that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed to the defendant by the Sixth Amendment" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." Ibid.; see also State v. Allah, 170 N.J. 269, 283 (2002).
Under the first prong of the Strickland/Fritz test, a reviewing court is obliged to review the performance of a defendant's attorney with "extreme deference . . . requiring a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . .'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Furthermore, the reviewing court must make "every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2066, 80 L.Ed. 2d at 694.
Under the second prong a defendant alleging ineffective assistance of counsel must show that there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.
In few contexts such as the actual or constructive deprivation of counsel altogether, prejudice may be presumed. However, failure to file a motion to suppress does not constitute prejudice per se. State v. Goodwin, 173 N.J. 583, 597 (2002) (quoting State v. Fisher, 156 N.J. 494, 501 (1998)). Rather, prejudice must be proved by the defendant. Fritz, supra, 105 N.J. at 52. Accordingly, when defense counsel fails to file a suppression motion, the defendant must satisfy not only the two-prong test of Strickland/Fritz but also prove that the suppression motion was meritorious. Ibid.; see also Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed. 2d 305, 319 (1986).
In Goodwin, supra, 173 N.J. 583, the Court concluded that the police had probable cause to arrest defendant and that the search of his vehicle was incident to a valid arrest. Accordingly, the Court held that there was no merit to defendant's contention that his trial counsel should have filed a motion to suppress the evidence discovered during the search of the defendant's vehicle. Therefore, defendant's argument of ineffective assistance did not satisfy the Strickland/Fritz prong that counsel made an error so serious that he was not functioning as the counsel guaranteed to defendant by the Sixth Amendment. Id. at 599-601.
In this case, we conclude that there was probable cause for the police to enter the apartment, apprehend defendant and search for the handgun used in the assault and that due to exigent circumstances, a warrantless search was justified.
When the police arrived at the scene of the shooting, there was considerable confusion and a crowd of persons to be interviewed. After speaking with the victim, his girlfriend and other witnesses, information was received that the shooter was the driver of a gold-colored Chevrolet Malibu which had fled the scene. By fortuitous circumstances, police received a license plate identification from a bystander, the former police officer. The lookup on the license plate disclosed that a rental car was involved, and the police then sought and determined from the rental agency that defendant had rented the vehicle and left a New Jersey telephone number as a contact. From the telephone number police investigators discovered the name of Ms. Reid, whose relationship to the lessee of the motor vehicle was as yet unknown. The police then conducted surveillance of the streets outside the high rise apartment in which Ms. Reid lived and found the gold Malibu parked a block away. Notably, the weapon used in the assault had not been recovered at the scene, and the officers had every right to assume that it remained in the possession of the shooter who drove the Malibu. Therefore, there was a likelihood that in Ms. Reid's apartment was not only the perpetrator of the assault but also the handgun indiscriminately fired into a crowd and wounding the victim.
In State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990), we stated that there was no single test to determine whether police conduct was objectively reasonable in response to alleged exigent circumstances, but we indicated factors which should be considered in making such a determination. Among those factors relevant to the instant case included are the possibility of that the suspect is armed, the gravity of the offense involved, the possibility of danger to police officers seeking entry to the apartment, and the danger presented to members of the public, both inside and outside the apartment because a loaded handgun was likely in the possession of a person in the apartment who had hours earlier, indiscriminately fired into a crowd of people.
[T]he term "exigent circumstances" is, by design, inexact. It is incapable of precise definition because, by its nature, the term takes on form and shape depending on the facts of any given case. We reiterate that exigency in the constitutional context amounts to "circumstances that make it impracticable to obtain a warrant when the police have probable cause. . . ." [State v. Cooke, 163 N.J. 657, 676 (2000) (quoting from State v. Colvin, 123 N.J. 428, 437 (1991)).]
Even the factors listed in Alvarez, were not meant to exhaust all factual considerations determining what may be "exigent" in a given factual setting. Alvarez, supra, 238 N.J. Super. at 569-72. However, our courts have placed special emphasis on the possession and potential use of firearms to present exigent circumstances. State v. Wilson, 362 N.J. Super. 319, 332 (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).
Our State has long recognized a special significance of firearms and a threat to public safety. See, e.g., State in the Interest of H.B., 75 N.J. 243, 245-47 (1977). As we stated in Wilson, Our State law has long recognized the special significance of firearms and the threat they represent to public safety. See, e.g., State in the Interest of H.B., 75 N.J. 243, 245-47 (1977). A deadly weapon poses a special threat to both the public and police, and its presence is a significant factor in evaluating whether there are exigent circumstances which justify a warrantless search. [362 N.J. Super. at 333.]
See also State v. Alston, 88 N.J. 211, 440 (1981); State v. Esteves, 93 N.J. 498, 505 (1983).
Under the circumstances of this case, there was an urgent need to apprehend defendant and seize the handgun used in the assault, and swift action was necessary to eliminate the potential for deadly harm in a congested area, especially since shots were fired into a crowd not far away.
We conclude that the entry into the apartment was lawful and that defendant's statements should not be suppressed under the Fourth Amendment. The failure of counsel to file a motion to suppress did not constitute prejudice to defendant so as to satisfy the second prong of the Strickland/Fritz test required for a finding of ineffective assistance of counsel.