July 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TAUREAN NIXON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-1236.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 11, 2010
Before Judges Cuff, Payne and C.L. Miniman.
Defendant Taurean Nixon pled guilty to first-degree robbery, contrary to N.J.S.A. 2C:15-1, and second-degree burglary, contrary to N.J.S.A. 2C:18-2, after his motions to suppress a lineup, a cell phone seized from defendant, and his videotaped confession were denied. He was sentenced to a fifteen-year term of imprisonment on the robbery conviction and a concurrent five-year term on the burglary conviction. Defendant now appeals the denial of his suppression and Wade*fn1 motions and the sentence imposed. We affirm.
The following facts were developed at the suppression motions. On July 8, 2005, Detective Sergeant Michael Kilker investigated a home invasion and robbery in Metuchen, which had been reported to the police at 11:12 a.m. Upon arriving at the home, he found Sergeant Ayotte and Corporal Anthony Carro already at the scene. Carro had found the victim, Frank McKendrick, on the porch covered in blood. The victim reported that he was in bed when two perpetrators entered into his bedroom. The perpetrators attacked him, stabbed him, tied him up, and placed him in a closet. The victim described the perpetrators as two black males; slight to medium build; close-cropped hair; five feet, eight inches, to six feet tall; one wearing a dark-colored shirt and the other a plaid or striped shirt.
Carro observed a disabled vehicle on the scene, which the perpetrators had told the victim had broken down. Carro surmised the perpetrators had left on foot. He broadcast the description of the perpetrators and left the scene to search for them. He checked the train and bus stations and drove around the area near the scene of the crime. In doing so, he ran into two State Troopers, who asked what he was doing. He told them he was searching for two perpetrators and gave them the descriptions given by the victim.
When Kilker arrived, the victim was in the upstairs bathroom, still covered in blood. Kilker asked the victim to go downstairs to await the First Aid Squad and the paramedics. Kilker then conferred with the Chief of Police, who had also responded to the scene. The Chief instructed him to contact Detective David Irizarry and Patrolman Connolly*fn2 and tell them to respond to the scene. Connolly photographed the scene.
The State Troopers observed two individuals matching the description given by the victim walking on Route 27 in the vicinity of Grove Avenue. As the troopers passed them, the two individuals split up for a while and then continued to walk southbound on Grove Avenue. The officers stopped them in the area of Grove Avenue and East Chestnut Street. A steady rain was falling, but the suspects had no rain gear. When asked from where they had come, the individuals responded they had been visiting a friend on Blueberry Road or Avenue in Metuchen.
There is no such street. Both individuals appeared extremely nervous and would not maintain eye contact. Defendant was wearing a red shirt with distinctive blue patches. The suspects attempted to divert further questioning by interrupting to say that they were not sure how to get to Edison. The troopers asked them for identification and detained them until the Metuchen police arrived.
Carro received a call from the troopers, who reported they had two individuals that matched the description he gave them, and he responded to their location. Ayotte and Patrolman Mosko had already arrived there at 11:45 a.m., and Ayotte performed a pat-down search of the suspects. No weapon was recovered from either of them. However, the victim's checking-account statement was recovered from co-defendant Christopher Dease. The police arrested the suspects, handcuffed them, and transported them to police headquarters. Once there, they performed an inventory search and recovered the victim's driver's license, an ATM card, and a business card with the victim's social security number on the reverse side from co-defendant Dease. The victim's cell phone was recovered from defendant.
After the Chief of Police said he would take control of the scene, Kilker returned to headquarters. At headquarters, the two suspects were separated, and Kilker interviewed defendant in the presence of Carro. First, Kilker advised defendant of his Miranda*fn3 rights, and defendant signed the Miranda rights card at 12:29 p.m. Then, Kilker conducted a preliminary interview during which he outlined the events that had taken place at the victim's home. He asked defendant if he was willing to give a taped interview and he agreed. As reflected on the tape recording and the simultaneous videotape, which began at 1:24 p.m., at that time Kilker again advised defendant of his Miranda rights.*fn4
Defendant argued at the hearing that there was no probable cause to arrest or search him. This was so because there was no description that one of the individuals involved was six feet tall wearing a red shirt with distinctive blue patches. He contended that the search of Dease was illegal and the fruit of that search resulted in defendant's arrest. He urged that the items seized from defendant and Dease, the photographic identification of defendant, and defendant's statement should all be suppressed as the fruit of the illegal search of Dease and the subsequent illegal arrest of defendant.
The State responded that there was probable cause to arrest because the victim gave a description of two black males, with slim to medium builds, and short-cropped hair. Carro knew they were on foot because their car was disabled and abandoned at the scene of the crime. The individuals were found within a mile of the crime scene, and the incriminating bank statement was taken from Dease, not defendant. The State urged that a dark-colored shirt and a red shirt with blue patches could be the same thing, everything else in the description matched, and the difference between six feet and six feet two inches was very close for an approximation. Defendant and Dease were soaking wet when they were found, and the discovery of the bank statement was irrelevant because these individuals were going to the police station whether that had been found or not.
Judge Bradley Ferencz found that defendant did not have standing to object to the search of Dease. He also found the search was not illegal. He found Carro reasonably believed the perpetrators would be on foot. Within a relatively short period of time, the State Troopers discovered two individuals on foot within a mile of the crime scene who generally matched the description given by Carro. He found they were appropriately questioned by the troopers based on more than an articulable suspicion. The suspects then gave false information to the troopers, clearly creating a heightened suspicion. At that point, he found that there was probable cause to believe that the suspects were the perpetrators of the home invasion. As a result, their detention was perfectly appropriate even without the papers seized from Dease. He continued:
Because even without those papers, we have gentlemen in the rain, on a Friday, a workday, in the mid-afternoon, without reason, giving false information to the police, being the approximate height, fitting the description, short-cropped hair, race. [Defense counsel] fairly points out, that it's not a plaid shirt. One might clearly argue that the blue patch on a pocket, a blue patch on the shoulder, while not, as this [c]court would find something to be plaid, may very well have been legitimately thought to be a plaid shirt. Though, clearly, the [c]court acknowledges, not in the classic sense that one would understand plaid.
So, this [c]court finds that there is probable cause to arrest and detain and further question both parties, even without the folder papers found in the co-defendant, Dease's back pocket. There has been no testimony, as to what the officers felt, when he felt that folded piece of paper. The testimony is that, he removed it for purposes of thinking it... may be a weapon.
The officer, on the stand, appropriately testified, that if he felt a piece of paper, he may not have considered it to be a weapon. I do not know what the State Police would have testified to. Nonetheless, clearly upon detention, and giving the Miranda warnings, being taken down to the station, shows that rather the information found in the pocket of the co-defendant, would have inevitably been discovered at the station. Whether it be by inventory or identification prior. And, in fact, there was, as the [c]court finds, a full and open confession made by the defendant. The Miranda warnings appear to have been given appropriately, more than once. The signed card, or copies of it, have been supplied to the [c]court. A statement was given, and it was videotaped. The [c]court watched it.
... [I]n reviewing the videotape, it is clear that there is no threats, no promises, no coercion. And that the statement clearly appears to have been given freely and voluntarily. The Miranda warnings, the [c]court finds were given. And, beyond a reasonable doubt, understood and waived.
As a result, the suppression motion was denied.
Irizarry testified for the State with respect to defendant's Wade motion. When Irizarry arrived at police headquarters on July 8, 2005, Kilker asked him to set up a photo array. He started with pictures of both suspects. He next went through their mug-shot books and selected five individuals in their late teens or early twenties for each of the two arrays plus the suspects. Then the photographic arrays were taken to Robert Wood Johnson Hospital for display to the victim. After being shuffled, the pictures were presented to the victim one by one. The victim selected defendant's photograph and wrote down that he was one-hundred percent sure.
Defendant argued that the photographs were impermissibly suggestive because the five other individuals were older than defendant, some of them had facial hair whereas defendant did not, and their photographs were very clear whereas defendant's was not. The State responded that the individuals were all within the same age range, that it was not clear that they actually had facial hair, that the victim had significant opportunity to observe the perpetrators, and the array was not suggestive.
The judge found the identification procedure was "perfect" and properly done. He did not find the somewhat different backgrounds troublesome or that all of the photographs were distinctly different and suggestive. He also found photographs four (defendant's picture), five, and six had the same exact facial features and six and two looked to be cousins or brothers. He found the only photograph that did not look like it belonged in the array was photograph one, which appeared to be of a somewhat older person. All of them had short cropped hair and none had distinct facial hair. As a result, he denied the Wade motion.
Defendant pled guilty to first-degree robbery and second-degree burglary on a recommendation of fifteen years subject to the eighty-five percent parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He preserved his right to appeal the judge's ruling on his suppression and Wade motions. Defendant then established a factual basis for the plea. He was sentenced on October 26, 2006, to fifteen years on the robbery conviction subject to NERA with a five-year period of parole supervision and to a concurrent term of five years on the burglary conviction. Appropriate fines and penalties were imposed. This appeal followed.
Defendant raises the following issues for our consideration:
POINT I - DEFENDANT HAS STANDING TO CHALLENGE THE SEARCH AND SEIZURE OF THE BANK STATEMENT FOUND IN THE POCKET OF HIS CO-DEFENDANT.
POINT II - THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE POLICE ENCOUNTER WITH DEFENDANT AND HIS CO-DEFENDANT CONSTITUTED AN IMPERMISSIBLE INVESTIGATORY STOP AND FRISK THAT WAS WITHOUT A REASONABLE AND ARTICULABLE SUSPICION THAT EITHER DEFENDANT WAS ENGAGED IN CRIMINALITY OR WAS ARMED AND DANGEROUS. MOREOVER, THE ENSUING SEARCH, WHICH EXCEEDED THE SCOPE OF A PERMISSIBLE TERRY*fn5 FRISK, WAS NOT SUPPORTED BY PROBABLE CAUSE.
POINT III - UNDER ALL OF THE RELEVANT CIRCUMSTANCES, THE COURT ABUSED ITS DISCRETION IN REFUSING TO SENTENCE DEFENDANT TO A 12 YEAR TERM OF IMPRISONMENT SUBJECT TO NERA.
The scope of our review of a motion to suppress evidence or a photographic array is limited. Our Supreme Court has stated:
Our analysis must begin with an understanding of the standard of appellate review that applies to a motion judge's findings in a suppression hearing. As the Appellate Division in this case clearly recognized, an appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of the motion judge that the... investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy."
Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction."
Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions."
Ibid. [State v. Elders, 192 N.J. 224, 243-44 (2007).]
Applying that scope of review here, after carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that defendant's arguments in Point II "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).
We affirm substantially for the reasons expressed by Judge Ferencz in his oral opinion delivered on April 19, 2006. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. Locurto, supra, 157 N.J. at 471. Even without having found the victim's checking-account statement, there was probable cause to arrest based on all of the circumstances, including but not limited to the descriptions of the perpetrators, the location where defendants were apprehended, their attire during a heavy rainstorm, and their behavior when they were initially stopped. This determination renders defendant's first point on appeal moot. Because defendant has not included the photographic array in his appendix, we cannot determine whether that evidence supported or contradicted the judge's fact-findings on the Wade hearing.
With respect to defendant's sentence, we do not consider fifteen years to be excessive. Defendant had three prior adjudications as a juvenile for acts that would constitute the crimes of burglary and aggravated assault if committed by an adult. We see no error in the judge's weighing of the aggravating and mitigating factors.