May 12, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEXTER SULLIVAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-06-0559.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 27, 2010
Before Judges Cuff, C.L. Miniman and Waugh.
Defendant Dexter Sullivan and three others were involved in a home invasion. At the time of the incident, defendant was seventeen years old. Following waiver of Family Part jurisdiction, a jury found defendant guilty of second degree robbery, N.J.S.A. 2C:15-1 (Count One); second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count Two); second degree burglary, N.J.S.A. 2C:18-2 (Count Three); and second degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2 (Count Four).*fn1 At sentencing, the trial judge merged Count Two with Count One and Count Four with Count Three and imposed a nine-year term of imprisonment with an 85% No Early Release Act*fn2 (NERA) period of parole ineligibility on Count One and a concurrent term of five years imprisonment on Count Three. The appropriate penalties and assessments were also imposed. We now affirm.
On April 14, 2005, Maria Rodriguez was driving when she saw defendant, Albert Stanley, and Damien Vantull walking along the street in the Society Hill section of Franklin Park. The three males, whom Rodriguez knew from the neighborhood, asked her for a ride to a friend's house where they could "get some weed." Rodriguez agreed and they proceeded to the friend's house. As Rodriguez drove the group back to Society Hill, defendant suggested they stop at the home of Brooks Hanson, Jr. to find more marijuana. Defendant had prior problems with Hanson, Jr. and stated "he wanted to do a jux," meaning he wanted to rob him.
When the group arrived at Hanson, Jr.'s condominium, Stanley retrieved a .25 caliber automatic handgun from the trunk of Rodriguez's car. Defendant, Stanley, and Rodriguez approached the front door while Vantull remained at the bottom of the steps as lookout. Rodriguez knocked on the door and when asked who was there, she provided a false name. She then walked away, leaving defendant and Stanley at the door.
The intended target's father, Brooks Hanson, Sr., opened the front door and came "tumbling out." Hanson, Sr. had a prosthetic leg and required a wheelchair for most of his mobility. Stanley placed the gun to Hanson, Sr.'s head and defendant entered the condominium.
A neighbor heard the commotion, opened her front door, and observed the scene from about ten to twelve feet away. The neighbor could see that one African-American male had pushed Hanson, Sr. against his door, and another person was inside the home. After a few seconds, the neighbor locked her door and called 9-1-1. While on the phone, the neighbor witnessed from her window the two males running down the front steps and towards the street. She observed their clothing, height, age, and facial characteristics, and relayed this information to the 9-1-1 operator.
After ending the phone call, the neighbor waited outside with the visibly shaken Hanson, Sr. Once the police arrived, the neighbor described the clothing worn by the two males and the direction in which they fled.
Meanwhile, Rodriguez had returned to her car and picked up defendant, Stanley, and Vantull as she exited the complex. Rodriguez drove down the street to Delar Park. Defendant and Vantull exited the car and began walking. Stanley and Rodriguez placed the gun in the trunk and joined the others in the park. While walking, defendant displayed to the group the wallet, cash, and cellular phones he had taken from a safe in the Hanson residence. After he split the cash proceeds, the group noticed a police officer on foot in the park. Stanley promptly discarded his black T-shirt in the bushes and left the group.
Detective Sergeant Kenneth Williams of the Franklin Township Police Department was dispatched to Delar Park at approximately 12:19 p.m. He observed two African-American males and one Hispanic female, later identified as defendant, Vantull, and Rodriguez, in a wooded area. Vantull turned his black sweatshirt inside out to make it appear gray. Defendant discarded his black T-shirt, exposing a red T-shirt he had on underneath. Williams and another officer stopped and frisked the three individuals and found two cellular phones in defendant's possession. Rodriguez lied and stated that she did not know the others, so the officers let her leave.
The officers who remained at the condominium complex were then notified that Vantull and defendant had been apprehended. The officers informed the neighbor that the police had "caught two people," whom they wanted the neighbor and Hanson, Sr. to identify. The officers then drove Hanson, Sr. and the neighbor to Delar Park. The ride took about three minutes. From inside the car, the neighbor identified the two males based on their clothing, the face of one of the males, and the other male's hairstyle. Hanson, Sr. likewise made a positive identification of defendant.
Meanwhile, Detective Sergeant Darren Russo checked the license plate on Rodriguez's car, and learned the car was owned by her mother, Sylvie Vardanian. Around 4:30 p.m., Russo obtained Vardanian's verbal consent to search the car. Inside the trunk, the police found a cooler bag which contained a handgun, magazine, and bullets. Neither defendant, Vantull, Stanley, nor Rodriguez had a valid permit for the weapon.
Detective Gregory Borlan questioned defendant that afternoon at the police station. In the presence of defendant's mother, Borlan advised him of his Miranda*fn3 rights, and both defendant and his mother signed a form waiving these rights. During the questioning, defendant gave conflicting stories, and his mother eventually left the room frustrated. Borlan asked the mother if he could continue the interview, to which the mother replied, "I don't care what you do anymore." Borlan then proceeded to take defendant's formal statement which concluded at 7:44 p.m.
About ten minutes later, defendant offered to show the police where he discarded Hanson, Sr.'s wallet in Delar Park. Detective William Ziarkoski took defendant to the park, and at defendant's direction, Ziarkoski retrieved the wallet from some bushes along a fence.
After defendant's arrest, the State moved to transfer jurisdiction of defendant from the Family Part to the Law Division. The Family Part judge conducted a hearing and transferred jurisdiction. A grand jury indicted defendant on six counts: robbery, burglary, conspiracy, and weapons offenses.
Defendant filed several pretrial motions including: (1) a motion for a Wade*fn4 hearing to exclude the neighbor's out-of-court identification of defendant; (2) a Miranda motion to suppress defendant's statement to the police; and (3) a motion to suppress the seized handgun. The judge concluded the neighbor's identification would be admissible at trial. The judge also denied defendant's motion to suppress the handgun evidence. However, the judge ruled defendant's pretrial statement inadmissible for the State's case-in-chief, but admissible for impeachment purposes.
Trial commenced immediately following the pretrial motions. Defendant elected not to testify. Pursuant to a Rule 104 hearing, defendant's post-arrest statement in which he disclosed the location of the stolen wallet was ruled inadmissible, but the judge permitted testimony on facts related to the discovery of the wallet. At the close of the State's case, defendant unsuccessfully moved for a judgment of acquittal pursuant to Rule 3:18-1 on the basis defendant lacked possession of a weapon. Defendant also unsuccessfully moved for a mistrial based on statements made by the prosecutor during summation, and transfer to the Family Part for sentencing.
On appeal, defendant raises the following arguments:
Point 1. The trial court erred in ruling that defendant's pretrial statements to police, obtained while defendant was a juvenile and ruled inadmissible in the State's case-in-chief, were admissible to impeach defendant if he took the witness stand.
Point 2. The trial court erred in admitting into evidence the wallet police recovered from the park because this evidence was obtained as result of inadmissible statements by the juvenile that the trial court had already declared inadmissible.
Point 3. The trial court should have suppressed the handgun which police seized from a bag in the trunk of a third-person's car.
Point 4. The show-up identification made by the witness was unduly suggestive and should have been excluded from evidence at trial.
Point 5. Once defendant was found not guilty of first-degree robbery - the offense for which he was tried as an adult - the matter should have been remanded for disposition by the Family Part in accordance with defendant's status as a juvenile at the time of the offense.
Point 6. The comments by the prosecutor during summation were prejudicial and denied defendant a fair trial.
Point 7. The trial court denied defendant's right to confront the State's case against him and produce impeaching evidence on his own behalf.
Point 8. The accomplice liability charge was insufficient (plain error).
Point 9. The trial court violated defendant's confrontation rights by allowing a witness to relay the victim's out-of-court hearsay testimony that he'd identified a man detained at the park (one of whom was defendant) as a perpetrator.
Point 10. Defendant's right to a fair jury trial was infringed because at least one juror may have seen defendant in shackles during trial (plain error).
Point 11. Even if valid, defendant's conspiracy convictions constituted a single crime, not multiple ones; and the second-degree burglary conviction should have merged with the second-degree robbery conviction.
Point 12. Defendant's sentence is excessive and improper.
Defendant contends that his acquittal of first degree robbery warranted a transfer to the Family Part for sentencing in accordance with juvenile delinquency standards. First, we discern no error in the initial decision to transfer jurisdiction to the Law Division. Defendant was seventeen years old at the time of the commission of the crime, and the judge properly found probable cause that defendant committed first degree robbery by relying upon statements by defendant, statements by the co-perpetrators, and the handgun and wallet evidence. N.J.S.A. 2A:4A-26; State v. J.M., 182 N.J. 402, 412 (2005).
"New Jersey law makes it clear that once a juvenile is referred to an adult court, his entire case falls under the Code of Criminal Justice rather than the Code of Juvenile Justice."
United States v. Moorer, 383 F.3d 164, 168 (3d Cir. 2004), cert. denied, 544 U.S. 1024, 125 S.Ct. 1992, 161 L.Ed. 2d 868 (2005). We recognize the harsher penal consequences of adult prosecution, State v. R.G.D., 108 N.J. 1, 14 (1987), and the legislative policy favoring disposition in the Family Part, State in Interest of J.M., 222 N.J. Super. 597, 601-02 (App. Div.), certif. denied, l11 N.J. 634 (1988). However, once a matter is transferred to the Law Division, the dispositional provisions for juvenile incarceration are inapplicable, and a defendant is subject to the Code of Criminal Justice. State in Interest of A.B., 214 N.J. Super. 558, 564 n.3 (App. Div. 1987), aff'd, 109 N.J. 195 (1988).
This is not a case where the underlying charge qualifying defendant for adjudication in the Law Division was dropped prior to trial. See J.M., supra, 222 N.J. Super. at 599. Nor is this a case where defendant produced evidence at the initial waiver hearing to minimize his involvement in the criminal incident. See State in Interest of G.W., 206 N.J. Super. 50, 58 (App. Div.), certif. denied, 102 N.J. 355 (1985). Thus, we perceive no reason to remand the matter to the Family Part.
Defendant also contends the judge erred in permitting the State to use, for impeachment purposes, the statement he provided to the police in the absence of his mother. Defendant asserts he did not voluntarily waive his Miranda rights. He further argues the judge's ruling admitting the statement precluded him from exercising his right to testify in his own defense. We disagree.
A defendant is free to waive the privilege of self-incrimination and confess committing crimes. State v. Presha, 163 N.J. 304, 312-13 (2000). A confession, however, can only be admissible as evidence if the State "prove[s] beyond a reasonable doubt that the suspect's waiver was knowing, intelligent, and voluntary in light of all the circumstances." Id. at 313. For both adult and juvenile confessions, the inquiry is the same and asks whether the "suspect's will has been overborne by police conduct." Ibid. This involves a consideration of "'the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved.'" Ibid. (quoting State v. Miller, 76 N.J. 392, 402 (1978)).
The admissibility of a juvenile confession presents additional considerations. The presence of a parent is significant, because "[p]arents are in a position to assist juveniles in understanding their rights, acting intelligently in waiving those rights, and otherwise remaining calm in the face of an interrogation." Id. at 314-15. Therefore, in determining whether a juvenile suspect's confession is voluntary, "courts should consider the adult's absence as a highly significant factor among all other facts and circumstances." Id. at 315. Further, the police must employ their "best efforts" to locate the parent prior to the interrogation. Id. at 316.
Applying these principles at the Miranda hearing, the judge held defendant's confession was not admissible evidence for the State's case-in-chief. The judge considered the mother's absence a "highly significant fact" and determined the police did not use their best efforts to relocate her before continuing defendant's questioning. At the same time, however, the judge found no evidence suggesting defendant's will was overborne because the interrogation was relatively brief, it took place during the day, there was no indication of any physical or mental exhaustion, there was no sign of force by the police, and only one officer was involved.
A statement obtained in violation of a defendant's Miranda rights may nevertheless be used to impeach the defendant's testimony at trial. See Oregon v. Hass, 420 U.S. 714, 723-24, 95 S.Ct. 1215, 1221, 43 L.Ed. 2d 570, 578 (1975); Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 646, 28 L.Ed. 2d 1, 5 (1971); State v. Burris, 145 N.J. 509, 529 (1996). To be admissible, the statement must be "trustworthy and reliable in that it was given freely and voluntarily without compelling influences." Burris, supra, 145 N.J. at 525.
Here, the judge made several factual findings that support the decision to admit defendant's statement for impeachment purposes. Following administration of his Miranda warnings, defendant remained cooperative during the interrogation. He did not request that his mother return, and in fact, told Borlan he did not want to talk in her presence. Thus, we discern no reason to disturb the judge's decision. Moreover, we see nothing fundamentally unfair in allowing the State to impeach defendant with his own statement if defendant elected to testify at trial and did so inconsistently. See Burris, supra, 145 N.J. at 530.
Defendant also argues that the wallet recovered by the police after he provided his statement should not have been admitted as evidence under the "fruit of the poisonous tree" doctrine. Defendant asserts that nothing in the record below demonstrates an exception to this doctrine, and the wallet was only discovered because defendant directed the police to it.
The exclusionary rule prevents the State from "introducing into evidence the 'fruits' of an unlawful search or seizure by the police." State v. Badessa, 185 N.J. 303, 311 (2005) (citing Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed. 2d 441, 454 (1963)). The inevitable discovery exception to this rule, however, allows the introduction of otherwise excluded evidence if the State demonstrates "'by clear and convincing evidence that had the illegality not occurred, it would have pursued established investigatory procedures that would have inevitably resulted in the discovery of the controverted evidence, wholly apart from its unlawful acquisition.'" State v. Holland, 176 N.J. 344, 362 (2003) (quoting State v. Sugar, 100 N.J. 214, 240 (1985)).
Although the judge did not clearly state the reasons for introducing evidence about the discovery of the wallet, we nevertheless affirm the judge's decision under the inevitable discovery exception. The record contains sufficient evidence to satisfy the State's clear and convincing burden to demonstrate the wallet would have been discovered in the absence of defendant's statement. Namely, the police had apprehended defendant, Rodriguez, and Vantull in Delar Park shortly after the home invasion; the police were in the midst of an exhaustive search at the park when defendant offered to show them the location of the wallet; the police had already recovered clothing items discarded by defendant and the co-perpetrators; and the wallet included identification clearly indicating it belonged to Hanson, Sr. Given these facts, we hold the inevitable discovery exception applies.
Defendant also contends the trial judge erroneously admitted into evidence the handgun retrieved from a cooler bag inside the trunk of Rodriguez's mother's car. Defendant insists there was insufficient evidence to support the judge's findings that Vardanian owned the vehicle, that she had validly consented to the search, and that the consent included permission to search the cooler bag inside the trunk. We disagree.
A warrantless search of property is permissible under both the Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution when the search is preceded by valid consent. State v. Suazo, 133 N.J. 315, 319 (1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2044, 36 L.Ed. 2d 854, 858 (1973)). "Consent may be obtained from the person whose property is to be searched, from a third party who possesses common authority over the property, or from a third party whom the police reasonably believe has authority to consent." State v. Maristany, 133 N.J. 299, 305 (1993) (citations omitted). When third-party consent is obtained, "we consider whether the officer's belief that the third party had the authority to consent was objectively reasonable in view of the facts and circumstances known at the time of the search." Suazo, supra, 133 N.J. at 320.
Here, the record amply supports the findings that Vardanian owned the vehicle, she freely and voluntarily verbally consented to the search of the car, she provided the car keys to the police, and she later signed a formal consent form. Although the police had to remove a backseat to enter the trunk because Vardanian's set of keys did not include a trunk key, the record is absent of any evidence demonstrating she did not have the authority to access the trunk. Nor is there any evidence that Vardanian disclaimed ownership of items located within the trunk or that she knew her keys did not open the trunk. Thus, there is sufficient credible evidence in the record, State v. Elders, 192 N.J. 224, 243 (2007), to support the finding that Vardanian validly consented to the warrantless search of the cooler bag, because a reasonable officer would have believed she had common authority to do so, Suazo, supra, 133 N.J. at 320.
Defendant further argues that the show-up identification made by Hanson, Sr.'s neighbor following the incident was unduly suggestive and should have been excluded from evidence at trial. Though we agree the identification was suggestive, the judge determined the identification was reliable, and thus we find no reason to disturb the decision below.
The admissibility of an eyewitness's out-of-court identification turns on a two-pronged analysis. First, we determine whether the identification procedure was "impermissibly suggestive." State v. Madison, 109 N.J. 223, 232 (1988). If so, we must "decide whether the objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" Ibid. (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. 2d 1247, 1253 (1968)). This second prong focuses on the reliability of the identification based upon the totality of the circumstances of the particular case. Id. at 232-33. The following factors are considered: "[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977); State v. Adams, 194 N.J. 186, 204 (2008).
Here, the judge found that the show-up procedure was suggestive, but also noted several factors which made the neighbor's identification reliable under the totality of the circumstances: she had the opportunity to view defendant at the crime scene from a distance of no more than twelve feet; she was attentive to detail in her descriptions; she was consistent in her initial description to the 9-1-1 operator and her subsequent one to the police; she demonstrated a high level of certainty when she identified defendant at the park; and "very little time lapse[d]" between the crime and the identification. These findings are "'entitled to very considerable weight'" and are based upon sufficient credible evidence in the record. See Adams, supra, 194 N.J. at 203 (quotation and citation omitted). Thus, we discern no reason to disturb the judge's decision to admit the neighbor's identification of defendant into evidence.
Aside from the evidentiary matters on appeal, defendant also asserts the judge erred in failing to issue a sufficient accomplice liability charge to the jury. He contends the charge was fatally flawed because it did not explain to the jury that it need not find defendant guilty of the same degree crime as his co-perpetrator Stanley if defendant did not share the same intent as Stanley. See State v. Bielkiewicz, 267 N.J. Super. 520, 533 (App. Div. 1993).
We initially note defendant did not raise this issue at trial, thus we can only reverse upon a finding of plain error. R. 2:10-2. We also note that even in the absence of a request by defense counsel, "the court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability." Bielkiewicz, supra, 267 N.J. Super. at 527. When an alleged accomplice is charged with a different degree offense than the principal, or lesser-included offenses are submitted to the jury, the court must instruct the jury on the distinction between the specific intent required for the different degrees of the offense. Id. at 528. We are satisfied that this occurred here. Further, even if the jury charge fell short of the Bielkiewicz model, the harm to defendant is nonexistent since the jury acquitted him of first degree robbery and the weapons offenses.
Defendant further contests that he was denied a fair trial because at least one juror saw him in shackles. During jury selection, the judge dismissed seven potential jurors who may have seen defendant in shackles. Once trial began, the judge became concerned that one of the jurors may have viewed defendant in "cuffs" standing in the hallway outside the courtroom. The judge questioned the juror outside the presence of the jury, and the juror unequivocally denied seeing defendant in the hallway. Thus, we find no merit in defendant's argument that the judge should have ordered a new trial.
First, we note defendant did not object to the judge's questioning of the juror or the treatment of this issue below, and thus, the plain error standard applies. R. 2:10-2. Moreover, even if the juror did see defendant restrained in the hallway, defendant has failed to indicate that the exposure was sufficiently prejudicial and denied him the right to a fair trial.
Defendant also presents three arguments that are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). First, we do not find the prosecutor's summation comments rose to the level of misconduct. Second, we find no error in the judge excluding Stanley's guilty plea from trial, for Stanley elected not to testify. Lastly, we need not address defendant's argument that his confrontation rights were denied when the neighbor relayed an out-of-court statement made by Hanson, Sr., as the judge ruled the statement inadmissible and provided a sufficient curative instruction.*fn5
Finally, defendant contests two aspects of his sentencing. First, defendant contends the judge erred by not merging the two conspiracy convictions, and by not merging the second degree robbery and second degree burglary convictions. He relies on N.J.S.A. 2C:5-2c, which states in part: "If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship." We note, however, the two conspiracy counts merged with the substantive offenses, thus eliminating any concern regarding double punishment.
Likewise, we see no reason why the burglary and robbery charges should have merged. A person is guilty of burglary if he enters a structure with the purpose to commit an offense therein. N.J.S.A. 2C:18-2a(1). Burglary is elevated to the second degree when the person inflicts or attempts to inflict injury, or the person is armed with or displays a weapon. N.J.S.A. 2C:18-2b. Robbery, on the other hand, occurs when a person, in the course of committing a theft, either inflicts bodily injury upon another; threatens another or puts him in fear of immediate bodily injury; or commits or threatens to commit any crime of the first or second degree. N.J.S.A. 2C:15-1a. Here, defendant committed burglary when he unlawfully and forcibly entered the Hanson home with the intent to commit a theft on Hanson, Jr. Defendant's criminal acts did not cease with entry to the home. When Hanson, Sr. opened the door, defendant and Stanley assaulted him, destroyed his wheelchair, and forced him to empty the contents of his safe. We view these crimes as separate harms predicated upon different facts, see, e.g., State v. Pyron, 202 N.J. Super. 502 (App. Div. 1985) (trial judge erred by merging third degree burglary into second degree robbery), and find no reason to disturb the judge's decision below.
Second, defendant appeals his sentence as excessive and improper, arguing he should have been sentenced to a youth correctional facility pursuant to N.J.S.A. 2C:43-5, and that the nine-year aggregate term was unwarranted. We reject defendant's argument regarding the youth facility. N.J.S.A. 2C:43-5, which permits offenders under the age of twenty-six at the time of sentencing to serve an indeterminate term at a youth correctional facility, is inapplicable to the present case. The jury convicted defendant of second degree robbery, a crime subject to the provisions of NERA. Offenders sentenced to mandatory minimum terms are not eligible for youth offender treatment. State v. Corriero, 357 N.J. Super. 214, 218-20 (App. Div. 2003).
Nor do we find defendant's nine-year sentence excessive. The record confirms that the judge complied with the sentencing guidelines, appropriately balanced the aggravating and nonexisting mitigating factors, and did not impose an unreasonable sentence. See State v. Carey, 168 N.J. 413, 430 (2001); State v. Roth, 95 N.J. 334, 364-66 (1984). Therefore, we refuse to substitute our judgment for that of the trial judge and modify defendant's sentence. See State v. Evers, 175 N.J. 355, 386 (2003).