May 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAYQUAN BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-07-1406.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 20, 2010
Before Judges Carchman and Parrillo.
Tried by jury, defendant Rayquan Brown was found guilty of the lesser-included disorderly person's offense of simple assault, N.J.S.A. 2C:12-1a(1) (count 1); third-degree possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10a(1) (count 2); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count 3); second-degree possession of a weapon, a handgun, while in the course of committing, attempting to commit or conspiracy to commit the crime of possession of heroin with intent to distribute, N.J.S.A. 2C:39-4.1a (count 4); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count 5). After merger, defendant was sentenced to a five-year term of imprisonment on count 3 (possession with intent to distribute); a mandatory consecutive term of eight years, pursuant to N.J.S.A. 2C:39-4.1d on count 4 (committing a drug offense while in possession of a firearm); and a concurrent eight-year term with a mandatory five-year parole ineligibility period under N.J.S.A. 2C:39-7 on count 5 (convicted persons not to have weapons), for an aggregate term of thirteen years with a five-year parole disqualifier. Defendant appeals, and we affirm.
At 3:15 a.m. on May 18, 2004, Atlantic City Police Officer Gary Stowe responded to a report from a neighbor of a disturbance at an apartment on Magellan Avenue. Upon arrival at the residence, Stowe encountered twenty-two year old Davina Taliaferro, who had cuts and bruises on her neck and face and a swollen jaw. The inside of the apartment itself had signs of a disturbance, namely a hole in the wall and items in disarray, consistent with an altercation. Taliaferro reported that defendant, the boyfriend of her cousin Juanisha Swain, had assaulted her and had left the residence on his bicycle after the attack. An ambulance was summoned and Taliaferro was transported to Atlantic City Medical Center, where she was treated for her injuries, given medication and released that same morning.
Upon her release from the hospital at around 6:00 a.m., Taliaferro flagged down a nearby police car and told Officer Melvin Murray that she had been involved in an altercation, had just been treated at the hospital and needed a ride "home." After Taliaferro provided her address - the specific street and apartment number of the Magellan Avenue residence which police responded to only hours earlier - Murray drove her home. As they pulled up to the residence, Taliaferro expressed concern to Murray that defendant was inside because his bicycle was chained to the rail outside. Murray then radioed for back-up and Officers Black-Taylor, John Devlin and Stowe arrived within seconds.
Using her key, Taliaferro unlocked the door and allowed the officers into the apartment, advising them that defendant occupied the rear bedroom on the second floor. At the officers' direction, Taliaferro remained outside. Once inside, the officers announced their presence and began checking the first floor. Finding no one there, they proceeded to the second floor and after checking several rooms, headed to the rear bedroom. Murray knocked on the door, announced his presence, and when no one answered, proceeded to open the door. Murray saw Swain standing by the dresser and defendant standing on a 45-degree angle inside the archway of a closet that had no door. Because he could only see defendant's left hand, and concerned for his safety, Murray ordered defendant to come out of the closet and show his hands. The officer had to repeat this command three times before defendant finally complied. As defendant turned slowly to face the officer, he dropped an object. Murray heard a hard thud as the object hit the closet floor and suspected it was a weapon.
The officers handcuffed defendant and took him into custody. Searching defendant incident to the arrest, Officer Devlin found thirty-one clear bags stamped "white house," which later tested positive for heroin. Officer Murray advised defendant of his Miranda*fn1 rights. Murray then returned to the closet area where he retrieved a small silver semi-automatic handgun. Defendant was then transported to police headquarters, where he was placed in a holding cell at about 9:40 a.m.
At 10:00 a.m., after speaking with Taliaferro and learning that defendant had already been advised of his Miranda rights, Detective Kevin Burrows met with defendant to determine whether he wanted to give a statement. When defendant indicated he wanted to talk only about the gun, Burrows re-read him his Miranda rights. Defendant waived his rights in writing and agreed to give a taped statement. Appearing alert, cooperative and "anxious" to explain his possession of the weapon, defendant told Burrows that he did not intend to shoot the officers; that the gun was not loaded; that someone had given him the gun; and that it was not his.
On that same day, Burrows took a statement from Taliaferro. According to Taliaferro, on May 18, 2004, she had been temporarily living with her cousin at her apartment on Magellan Avenue for about two months and remained at the residence for a total of about five months. Defendant, who fathered Swain's baby, lived there with Swain as well. In the early morning hours of May 18, the cousins went out for pizza and to play pool. When they returned to the apartment around 1:00 a.m., defendant was inside, throwing Swain's clothes down the steps and into the trash. In her cousin's defense, Taliaferro started throwing the clothes back upstairs. Defendant tried to snatch the clothes from Taliaferro, so she pushed him, and they both fell. When Taliaferro stood up, defendant pushed her into the wall. He then put her in a frontward chokehold for about five minutes where she could not breathe and punched her several times in the face. When defendant finally released the victim from the chokehold, he left the apartment. Taliaferro called 9-1-1 and reported the assault, giving a description of defendant.
At trial, Swain gave a different version of the incident, portraying Taliaferro as the aggressor who had hit defendant in the head with a combination lock, although she failed to mention this fact in her signed statement to Officer Murray on May 18, 2004. According to Swain's trial testimony, Taliaferro struck defendant because she thought that defendant had hit Swain during an argument. Defendant did not strike back, but attempted to restrain her as he took the lock from her. Thereafter, defendant left to take a walk, and Taliaferro called the police. When defendant returned fifteen minutes later, Taliaferro was no longer there and next saw her when she entered Swain's apartment with the police.
Swain denied that Taliaferro resided with her. According to Swain, Taliaferro never had a key to the apartment nor authority to enter the home without Swain's permission. She admitted, however, that police found heroin in defendant's pants pocket and a firearm in the bedroom. Swain confirmed that defendant was a drug user and often saw him use drugs. She had no knowledge of the firearm found in her home and had never seen it before.
After the judge denied defendant's motion to suppress the physical evidence and defendant's statement, trial proceeded for three days following which the jury convicted defendant of the drug and weapons offenses charged as well as the disorderly person's offense of simple assault. On appeal, defendant raises the following issues:
I. THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ILLEGAL WARRANTLESS SEARCH AND SEIZURE.
A. THE POLICE HAD NEITHER ACTUAL AUTHORITY NOR APPARENT AUTHORITY TO SEARCH THE DEFENDANT'S BEDROOM.
B. THERE WAS NO LEGITIMATE EXIGENCY THAT REQUIRED THE POLICE TO TAKE IMMEDIATE COMMUNITY CARETAKING ACTION.
II. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT KNOWINGLY AND VOLUNTARILY WAIVED HIS MIRANDA RIGHTS.
III. THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEE BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LAW OF PRIOR INCONSISTENT STATEMENTS.
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 AMBIGUOUS AND CONFUSING INSTRUCTIONS ON THE LAW OF POSSESSING A FIREARM IN THE COURSE OF COMMITTING THE CRIME OF INTENT TO DISTRIBUTE CDS. (Not Raised Below).
V. 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.
Defendant contends the trial court erred in denying his motion to suppress because Taliaferro neither gave a valid consent to search nor had the apparent authority to grant such consent. We disagree.
A third party other than defendant who possesses "common authority over or other sufficient relationship" to the property or premises sought to be inspected may consent to its search. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed. 2d 242, 250 (1974); see also State v. Suazo, 133 N.J. 315, 320 (1993); State v. Douglas, 204 N.J. Super. 265, 276-77 (App. Div.), certif. denied, 102 N.J. 378 (1985); State v. Miller, 159 N.J. Super. 552, 557-59 (App. Div.), certif. denied, 78 N.J. 329 (1978). The issue, for present purposes, of whether a person has common control and authority over the property turns "upon the appearances of control at the time, not any subsequent resolution of questions of title or property rights." State v. Santana, 215 N.J. Super. 63, 71 (App. Div. 1987); accord State v. Powell, 294 N.J. Super. 557, 563 (App. Div. 1996) (same, in context of automobile). In this context, courts employ an objective test in determining whether at the time of entry the police reasonably believed that the third party possessed common authority over the premises, even if it is later discovered that such third party had no such authority. See Illinois v. Rodriguez, 497 U.S. 177, 185-86, 110 S.Ct. 2793, 2800, 111 L.Ed. 2d 148, 159-60 (1990); Suazo, supra, 133 N.J. at 320. Thus, if a law-enforcement officer at the time of the search erroneously, but reasonably, believed that a third party possessed common authority over the property to be searched, a warrantless search based on that third party's consent is permissible under the Fourth Amendment. Suazo, supra, 133 N.J. at 320.
In Miller, supra, we held that the consent to search rooms given by a woman who possessed keys to both rooms in the rooming house, who unlocked the doors to allow police entry and who told the officers that she occupied both rooms with defendant and another man, was valid, so that the warrantless search of the rooms was proper. 159 N.J. Super. at 555-59. We noted that "special significance has been placed on the fact that the consenting person had a key to the premises." Id. at 558; see also United States v. Murphy, 506 F.2d 529 (9th Cir. 1974) (consenting party's custody of keys to the premises gave him sufficient dominion over the warehouse to enable him to grant the requisite consent), cert. denied, 420 U.S. 996, 95 S.Ct. 1433, 43 L.Ed. 2d 676 (1975).
Here, in denying defendant's suppression motion, the trial judge, crediting the police officers' testimony, concluded that there was "sufficient indicia of association and control with respect to [the apartment for] an officer to objectively and reasonably conclude that there is authority particularly with one who has the described association and, in fact, is able to produce a key to enter into the premises." We agree.
Taliaferro asked Officer Murray to take her "home" and directed him to the Magellan Avenue apartment, specifically providing him with the street address and apartment number. She then produced a key to the residence and unlocked the door to allow police entry into the house. Moreover, she had earlier reported being assaulted in the house at 3:00 a.m. and personally knew of both defendant's connection with the residence and his presence inside based on his bicycle on the outside of the house. Under the totality of the circumstances, the officers' belief that Taliaferro had the authority to consent was objectively reasonable.
A third party who possesses the authority to consent to a search of premises generally may lack the authority to consent to a search of a specific area on those premises. State v. Coyle, 119 N.J. 194, 217 (1990). Here, however, there was no proof that the second floor rear bedroom wherein defendant was found was within his exclusive use and control. Suazo, supra, 133 N.J. at 320. Moreover, having probable cause to believe the crime of assault was committed in the residence only hours earlier, that defendant was inside the second floor rear bedroom, and that the alleged victim was in need of protection, police entry into the bedroom was further justified by the exigency of the situation, State v. Johnson, 193 N.J. 528, 552-53 (2008) (exigent circumstances permit a warrantless search "when inaction due to the time needed to obtain a warrant will create a substantial likelihood that the police or members of the public will be exposed to physical danger or that evidence will be destroyed or removed from the scene") as well as pursuant to their community caretaking function. State v. Bogan, 200 N.J. 61, 74 (2009); State v. Frankel, 179 N.J. 586, 613-14 (2004). And finally, having lawfully entered the second floor rear bedroom, the events that unfolded justified a protective sweep of the closet for the object discarded by defendant, his arrest and subsequent search incident to that arrest. State v. Sharpless, 314 N.J. Super. 440, 454 (App. Div.), certif. denied, 157 N.J. 542 (1998).
Defendant contends that his statement should have been suppressed because Detective Burrows failed to re-administer Miranda rights before asking defendant whether he wished to give a statement. This argument is without merit.
"'Once a defendant has been apprised of his constitutional rights, no repetition of these rights is required.'" State v. Nyhammer, 197 N.J. 383, 401 (quoting State v. Melvin, 65 N.J. 1, 14 (1974) (internal editing marks omitted), cert. denied, ___ U.S. ___, 130 S.Ct. 65, 175 L.Ed. 2d 48 (2009). Here, there were no intervening events that would have vitiated the initial Miranda warnings. To the contrary, the police advised defendant of his Miranda rights at the scene, just after he was arrested for possession of the gun. Defendant was then taken to police headquarters where he was fed and housed in a cell with other inmates. At 10:00 a.m., just three hours after his arrest, Detective Burrows approached defendant and asked him if he wished to give a statement. No pressure was exerted on defendant, nor was he offered any incentives to cooperate. Burrows simply asked defendant if he wanted to give a statement, and defendant anxiously agreed to talk about the gun. Most significant, the statement that followed was preceded by another rendition of full and proper Miranda warnings. See State v. Magee, 52 N.J. 352, 372-75 (1968), cert. denied, 393 U.S. 1097, 89 S.Ct. 891, 21 L.Ed. 2d 789 (1969).
In determining the voluntariness of a defendant's confession, we traditionally look to the totality of the circumstances to assess whether the waiver of rights was the product of a free will or police coercion. See State v. Presha, 163 N.J. 304, 313 (2000). Here, in denying defendant's motion to suppress his statement, the trial judge found that there was "not even a hint here that [defendant's] free will was overborne," or that defendant was under the influence of drugs or alcohol. The judge concluded that defendant gave his statement because, although he did not want to discuss the altercation with Taliaferro, he did want to explain the gun incident since he had been caught red-handed with it. Defendant's explanation that "some guy" had given him the gun to hold for him, and that the day defendant decided to get rid of the gun happened to be the day that police found him in the closet with it, was not only convenient, but given after police twice advised defendant of his Miranda rights, which defendant fully understood. Consequently, the judge ruled that defendant had freely waived his Miranda rights and agreed to give a statement to police. We find no error in this conclusion.
Defendant contends the court erred in failing to instruct the jury on the law of prior inconsistent statements in assessing Taliaferro's credibility. We disagree.
In determining whether to give the Model Jury Charge regarding the use of inconsistent statements as substantive evidence, the question is whether the prior inconsistent statement has any significant exculpatory value, as where, for instance, there are one or more conflicting versions of the same event. State v. Hammond, 338 N.J. Super. 330, 342-43 (App. Div.), certif. denied, 169 N.J. 609 (2001). Such an inconsistency obviously would be valuable substantive evidence, from which a defendant could urge the jury that the State had not proved his guilt beyond a reasonable doubt.
Here, however, the claimed inconsistency merely concerned where Taliaferro was living at the time of the incident, May 18, 2004. She testified on direct that she lived at the Magellan Avenue apartment in Atlantic City but later explained that she was "staying" there with her cousin and defendant. On cross, Taliaferro admitted giving police a home address in Pleasantville and went on to explain this was not where she was living at the time, but where her mail was being sent.
Not only is the claimed inconsistency anything but clear cut, it has no substantive exculpatory value concerning the drug, weapons and assault charges for which defendant was being tried. To the extent there was any inconsistency at all, the discrepancy goes solely to the issue of credibility, the assessment of which the jury received adequate and proper instruction on. We conclude, therefore, that it was not error to omit from the jury instructions that portion of the Model Jury Charge informing of the use of a prior inconsistency as substantive evidence.
Defendant also faults, for the first time, the jury charge on possession of a firearm in the course of committing a drug offense. We find no error, much less plain error, in the court's instruction. R. 2:10-2. The court appropriately used the Model Jury Charge without objection from defendant. The charge, we find, was neither misleading nor confusing, but clearly conveyed to the jury the requisite elements of the offense, namely not only that there was a weapon, and that defendant possessed the weapon, but that defendant was in the course of committing or attempting to commit the crime of possession with intent to distribute CDS.
Lastly, defendant challenges his aggregate sentence of thirteen years with a five-year parole disqualifier as excessive. We find no need to interfere with defendant's sentence. It reflects a proper consideration of the relevant aggravating factors, N.J.S.A. 2C:44-1a(3), (6) and (9), the absence of any mitigating circumstances, N.J.S.A. 2C:44-1(b), and the mandatory consecutive term on count 4, N.J.S.A. 2C:39-4.1d, as well as the mandatory parole ineligibility term on count 5, N.J.S.A. 2C:39-7b.