October 16, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL BLACKNALL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-09-2118.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Fuentes and Gilroy.
Defendant Michael Blacknall was tried before a jury and convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), and the petty disorderly person offense of harassment, N.J.S.A. 2C:33-4, as a lesser-included offense of third-degree attempting luring or enticing of an adult, N.J.S.A. 2C:13-7.*fn1 The court sentenced defendant to a term of four years on the third-degree drug possession conviction and to a concurrent thirty-day jail term on the petty disorderly person offense. The court also imposed the mandatory fines and penalties.
We gather the following facts from the evidence presented before the trial court.
Karen Esposito was the State's principal complaining witness. She testified that on May 26, 2007, she was walking through Lake Topanemus Park in the morning hours of the day when a man seated on a park bench called out to her. This man, later identified as defendant, asked Esposito to take his picture. When Esposito agreed, defendant handed her the camera, "took out $20 and said, 'Here's $20. Let's go over there,' and pointed towards the woods."
Because this request made her nervous, Esposito offered to take the picture where she was standing. According to Esposito, defendant responded by saying: "'No, no, no. Here's $20. Let's go over there', and pointed to the woods." Fearing for her safety, Esposito dropped the camera on defendant's lap; she then pretended that she saw her father's car, and told defendant that she would return immediately after she informed her father of her whereabouts. Esposito explained that defendant was insistent, however, stating: "No, no. We'll do it real quickly let's just do it now[,]" to which she responded "No, no. Wait here, I'll be right back." As she backed away, defendant asked for her name, to which she replied "Laura."
Esposito ran from the scene, eventually encountering a couple who were walking on a nearby pedestrian path. She asked them to remain with her as she called the police to report this incident. Officers James McNamara and Frank Mount responded to the park on a report of a woman being lured into the woods. The description of the individual given to police was a "black male, medium build, bald head, wearing blue shorts, sneakers and a blue tank top."
As he walked on the trail near Robertsville Road, McNamara saw a parked car. After he called in the vehicle's license plate number, McNamara continued walking until he came upon a man fitting Esposito's description sitting on a bench with his shorts partially down. McNamara noticed that the man had a blanket next to him.
At this point, defendant grabbed the blanket, stood up and turned away. McNamara drew his weapon and ordered defendant to drop the blanket; defendant was immediately handcuffed upon showing his hands. When the blanket fell to the ground, a part of defendant's genitals were exposed. With McNamara's assistance, defendant eventually pulled up his pants and sat down.
As these events unfolded, Officer Simonetti arrived at the scene in time to see "something get released from [defendant's] hand." This item was later identified as a "crack pipe" that tested positive for a trace amount of cocaine. Also found next to defendant were three pornographic magazines, a digital camera, a box of tissues, a lighter and a broken wire hanger that, according to McNamara, is used to clean crack pipes. The police also confirmed that the car parked nearby was registered to defendant.
Before advising defendant of his Miranda*fn2 rights, Simonetti asked defendant whether the items found nearby belonged to him, to which defendant responded "yes." Simonetti then asked defendant what he was doing at the park; defendant replied that he was just "hanging out."
Simonetti placed the items recovered in his patrol car for transportation to police headquarters. Despite its possible probative value, the lighter was discarded "because the jail [would not] take it."
Notwithstanding these preliminary pre-Miranda inquiries, the record shows that the arresting officers informed defendant of his rights under Miranda before transporting him to police headquarters. Once at headquarters, Simonetti again advised defendant of his Miranda rights, then asked defendant to initial and sign a standard Miranda waiver form at 11:19 a.m., approximately one hour from the point of arrest. The trial court found that defendant knowingly and voluntarily signed the waiver form.
Armed with defendant's written waiver of his rights under Miranda, Simonetti questioned defendant about his activities in the park that lead to his arrest. According to Simonetti, defendant said that "he was in the park playing with himself, masturbating. He was smoking crack cocaine and he was trying to get some female to take his picture."
Defendant called four witnesses. Dr. Chang Soo Kim, a board certified plastic surgeon, testified that on May 14, 2007, (twelve days before the incident leading to defendant's arrest) defendant was admitted to CentraState Medical Center in Freehold for traumatic injuries to the right side of his face. Dr. Kim described in detailed the nature of these injuries and the surgery performed to repair the physical damage.
Sidney Blacknall, defendant's father, testified that he borrowed his son's camera one week before his arrest. He developed the film and found three photographs depicting defendant. Dawn Dupre, a civilian dispatcher at the Freehold Police Department, testified that she was on duty when Esposito called to report the incident in the park. Finally, Defendant called a private investigator who photographed the area where the incident with Esposito, and defendants' subsequent encounter with the police, allegedly occurred. These pictures were admitted into evidence.
Against these facts, defendant now appeals, raising the following arguments:
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT KNOWINGLY AND VOLUNTARILY WAIVED HIS MIRANDA RIGHTS AFTER THE POLICE HAD ALREADY OBTAINED A CONFESSION RESULTING FROM CUSTODIAL INTERROGATION WITHOUT ADVISING THE DEFENDANT OF HIS MIRANDA RIGHTS.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION AND RIGHT TO A GRAND JURY INDICTMENT AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 8 OF THE NEW JERSEY CONSTITUION WAS VIOLATED BY THE PROSECUTOR AMENDING AND SUPPLEMENTING THE CHARGE OF LURING WITHOUT A GRAND JURY FINDING.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE DESTRUCTION OF EVIDENCE. POINT IV THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO GIVE THE JURY A "SPOILIATION" INSTRUCTION. (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUION WAS VIOLATED [BY] THE TRIAL COURT'S ERRONEOUS AND CONTRADICTORY INSTRUCTION TO THE JURY ON THE LAW OF CONSTRUCTIVE POSSESSION. (Not Raised Below)
THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED BECAUSE THE STATE FAILED TO PRODUCE SUFFICIENT CREDIBLE EVIDENCE FOR A REASONABLE JURY TO CONVICT THE DEFENDANT.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT. (Not Raised Below)
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED: THE STATE FAILED TO PROVE THAT THE POLICE HAD PROBABLE CAUSE TO BELIEVE THAT THE DEFENDANT HAD COMMITTED A CRIME.
THE SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
C. THE DEFENDANT'S MOTION FOR A CHANGE OF CUSTODY SHOULD HAVE BEEN GRANTED.
Defendant also filed a pro se supplemental brief raising the following argument:
THE PROSECUTION KNOWINGLY USED PERJURED TESTIMONY TO OBTAIN A CONVICTION IN VIOLATION OF DEFENDANT[']S RIGHT TO DUE PROCESS AND A FAIR TRIAL WARRANTING A NEW TRIAL.
We affirm. We are satisfied that none of the arguments raised by defendant warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We nevertheless offer the following brief comments. Concerning defendant's arguments attacking the admissibility of statements he made to the arresting officer, we note that the trial court properly suppressed defendant's statements to Simonetti which were obtained before the administration of Miranda warnings. Additionally, the court correctly denied defendant's motion to suppress incriminating statements he made at police headquarters after he had been given his rights under Miranda and after executing a form waiving those rights.
In State v. O'Neill, 193 N.J. 148, 180-81 (2007), the Court held that "when Miranda warnings are given after a custodial interrogation has already produced incriminating statements, the admissibility of post-warning statements will turn on whether the warnings functioned effectively in providing the defendant the ability to exercise his state law privilege against self-incrimination."
In making that determination, courts should consider all relevant factors, including:
(1) the extent of questioning and the nature of any admissions made by defendant before being informed of his Miranda rights; (2) the proximity in time and place between the pre- and post-warning questioning; (3) whether the same law enforcement officers conducted both the unwarned and warned interrogations; (4) whether the officers informed defendant that his pre-warning statements could not be used against him; and (5) the degree to which the post-warning questioning is a continuation of the pre-warning questioning. [Id. at 181]
The Court specifically rejected a so-called "bright-line" approach, concluding instead that "[i]n a two-step interrogation case, courts must view the totality of the circumstances in light of the relevant factors and then determine whether the unwarned questioning and admissions rendered the Miranda warnings ineffective in providing a defendant the opportunity to exercise the privilege." Id. at 181-82.
Here, the administration of Miranda rights at police headquarters and the subsequent waiver of those rights by defendant sufficiently severed any connection to the constitutionally tainted pre-Miranda interrogation that took place at the park. The incriminating statements secured by the police at headquarters were the product of a constitutionally valid interrogation, and thus properly admissible at trial.
In support of this conclusion, we point to the following factual findings made by the trial court with respect to the O'Neill factors.
(1) The questioning at the park was brief and defendant's "admission, although incriminatory, was not critical in the sense that a reasonable person coming upon the scene could have inferred that the items found on the bench were his."
(2) There was a sufficient break between the statements "in the sense that he was taken to a different location." (3) Simonetti and McNamara conducted both the pre-Miranda and post-Miranda interrogation. (4) The officers "did not inform the defendant that his pre[-]warning statements... could not be used against him." (5) "The questioning at the police station was not a continuation of the pre[-]warning questioning in the sense that defendant's admission that he had contact with women was the key admission that he made and was not part of his pre[-] Miranda discussion." (6) "Defendant has an extensive prior experience with the criminal justice system" and he "fully acknowledged being given his [Miranda] warnings and understanding them... although he denies making any statements[,] that's a matter for credibility for the jury to determine." These findings are supported by competent evidence and are thus binding upon us on appeal. State v. Adams, 194 N.J. 186, 203 (2008) (citing State v. Locurto, 157 N.J. 463, 470-71 (1999)).
With respect to the State's failure to have secured the audio record of Esposito's telephone call reporting the incident and the lighter seized at the scene, we find no basis to conclude that these events were the product of bad faith by the State. See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed. 2d 281, 289 (1988). We further note that these items in no way constitute exculpatory evidence. See George v. City of Newark, 384 N.J. Super. 232, 243 (App. Div. 2006).
By way of summary, the balance of defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).