October 20, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CALVIN RIGGINS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-02-00282.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 7, 2010
Before Judges R. B. Coleman and Coburn.
Following a trial before Judge Frederick P. DeVesa and a jury, on charges set forth in Middlesex County Indictment No. 07-02-00282, defendant Calvin Riggins was found guilty of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a) (count one); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count four); and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1 (count six). The jury returned a verdict of not guilty of fourth-degree attempted aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count two) and fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5(d) (count seven). Judge DeVesa found defendant eligible for an extended-term sentence as a persistent offender, pursuant to N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3(a) and sentenced defendant to a seven-year extended term of imprisonment with three years of parole ineligibility on count one, a concurrent one-year term of imprisonment on count six, and a consecutive five-year term of imprisonment with twoand-a-half years parole ineligibility on count four.
On this appeal, defendant argues the trial court erred in denying his motion to suppress evidence, his motion for acquittal and erred in imposing a consecutive sentence. Defendant also argues the verdict was against the weight of the evidence presented and that the extended term sentence was excessive, illegal and unconstitutional. We find no reversible error and affirm the judgment of conviction.
The record discloses the following facts. On November 7, 2006, at approximately 4:50 a.m., Officer Jason Muller of the Borough of Jamesburg Police Department was dispatched to investigate a report of a suspicious male trespassing in the backyard of a residence at 68 West Railroad Avenue. Muller spoke to the caller in person and learned that the trespasser was a black male. From his marked police vehicle, Muller saw a black male on the front porch of 199 Gatzmer Avenue, the property whose backyard abuts 68 West Railroad Avenue. As Muller slowed his vehicle to obtain a better view, he saw that the man on the porch was "trying to stand between the storm door and the regular house door," without attempting to enter the house.
Muller found the man's behavior suspicious and called for backup. As he exited his vehicle to investigate, Muller walked towards the porch and, from the sidewalk, asked the man what he was doing. When the man turned around to face the street, Muller recognized him as defendant, whom Muller had known for ten years. Muller believed that defendant did not live at 199 Gatzmer Avenue, so he asked him to come down from the porch and explain what he was doing there. Muller knew the house to be that of T.N., but he did not know whether any tenants lived there as well.
Defendant came down from the porch and indicated he was visiting a friend, but when asked, could not supply his friend's name. Muller testified that he directed defendant to turn around and place his hands behind his head. Defendant complied at first, but when Muller placed his hand on defendant's waist, defendant took his hands off his head and turned toward Muller. When Muller ordered defendant to turn around a second time, defendant started running. Muller chased defendant and yelled at him to stop running. While Muller trailed behind defendant about five to ten yards, Jamesburg Chief of Police Martin Horvath, who had arrived on the scene just as defendant began to run, followed closely behind defendant.
As Muller ran through the backyard of 199 Gatzmer Avenue, he tripped over an obstruction and fell to the ground. He got up and, hearing a commotion nearby, he found Chief Horvath struggling to handcuff defendant. According to Muller, Horvath was on top of defendant trying to place handcuffs on him, while defendant was "struggling, kicking and . . . trying to swing his arms." Muller joined Horvath in attempting to place handcuffs on defendant. He noted that defendant had one fist clenched, as if holding something; with the other hand, defendant repeatedly attempted to reach for his own waist. By the time Muller had placed handcuffs on defendant, he testified he had been kicked by defendant several times in the legs. Once defendant was securely restrained, Muller found a folding knife in defendant's "front pocket" and a bag of white powder, later identified as cocaine, in defendant's pants pocket.
Muller testified that during the encounter he strained two fingers on his left hand, an injury that kept him out of work for about two weeks. Muller believed that he sustained the injury while trying to handcuff defendant because the injured fingers were the same he "wrapped around the cuff." Muller admits, however, it was possible he hurt his fingers when he fell during the chase.
Horvath, a sergeant at the time of defendant's arrest, testified that shortly after he arrived on the scene and exited his vehicle, defendant began to flee. Horvath ran past Muller as Muller fell, and Horvath eventually caught defendant when he attempted to cut through a row of hedges but was blocked by a stack of pallets on the other side. Defendant immediately began to struggle when Horvath grabbed him. Horvath observed defendant clutching something in his hand while attempting to avoid being handcuffed. Defendant also tried to bite Horvath's hands and, when Muller arrived, defendant was "bucking and thrashing around on the ground and kicking[.]" Horvath did not see defendant's feet make contact with Muller.
After defendant was subdued and placed in a secure area, Horvath returned to the area of the struggle to search for the item that he believed had been in defendant's hand. There he found "a large plastic bag that had been torn open and some loose tissue and . . . remnants of [a] white powdery substance . . . scattered around on the ground[.]" Horvath gathered as much as the white powdery substance as he could and marked it for testing. The substance later tested positive for cocaine.
During trial, the defense presented the testimony of J.W. J.W. explained that he rented the downstairs apartment of 199 Gatzmer Avenue, a two-family house, from T.N. The front door entrance led to J.W.'s apartment. J.W. testified he invited defendant to stay over at his apartment the night before defendant's arrest; he left the front door open for defendant because defendant had been drinking, and J.W. did not want him to drive.
Defendant also elected to testify in his own defense. He explained that he had been invited to stay at J.W.'s house because he was having family problems and had been drinking. He was drinking at Sloppy's Bar (where T.N. worked as a bartender) until about midnight, and he spent the next four hours at his cousin's house. Then, he decided to go to J.W.'s house "to get maybe an hour or two of sleep[.]" He arrived at the Gatzmer Avenue address at about 4:40 a.m. and was smoking a cigarette before heading inside. Defendant testified that as he was walking into the house, Muller's police light "restricted [his] movement." Muller told him "in an amplified voice" to step off the porch, calling him "homeboy," and referring to him as a boy. He testified the officer asked him what he was doing in this neighborhood, and said "[t]his ain't the hood, boy."
According to defendant, Muller patted him down, during which he hit defendant in the back of the head with either his fist or his flashlight. That caused defendant to fear for his safety, so he ran. Defendant claims that he was "attacked." He denied using any force against the officers. Defendant stated that if he flailed, it was because the police officers put him in a position in which he was unable to breathe. Defendant also denied having any drugs in his possession at the time of his arrest. He admits having a pocket knife on him, but explained that it was for his work as a painter. On cross-examination, defendant admitted he was on probation at the time of his arrest.
In spite of the testimony offered by the defense, the jury found defendant guilty of count one, third-degree aggravated assault for "knowingly or recklessly causing bodily injury to [Officer] Jason Muller"; count four, third-degree possession of a controlled dangerous substance; and count six, fourth-degree obstruction of the administration of law by "purposely attempting to prevent a public servant from lawfully performing an official function by means of flight or physical interference." Defendant filed a motion for a new trial, but that motion was denied. On appeal, defendant raises the following arguments:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION OF ACQUITTAL AT THE CONCLUSION OF THE STATE'S CASE.
POINT II: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE CONVICTIONS MUST THEREFORE BE REVERSED.
POINT III: THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE EVIDENCE AND THE CONVICTIONS MUST THEREFORE BE REVERSED.
POINT IV: THIS MATTER SHOULD BE REMANDED FOR SENTENCING BECAUSE IMPOSITION OF THE EXTENDED TERM SENTENCE WAS ILLEGAL AND UNCONSTITUTIONAL.
POINT V: THIS MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCE IMPOSED IS EXCESSIVE.
POINT VI: THIS MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES.
Defendant's pro se supplemental brief adds the following arguments:
POINT VII: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE FOR THE AGGRAVATED ASSAULT AGAINST JASON MULLER AND THE CONVICTION MUST THEREFORE BE REVERSED.
POINT VIII: THE PROSECUTION FAILED TO MEET ITS BURDEN OF PROVING A NON-DISCRIMINATORY BASIS FOR OFFICER MULLER'S FIELD INQUIRY AND/OR INVESTIGATORY STOP.
POINT IX: DEFENDANT SUFFERED A VIOLATION TO HIS CONSTITUTIONAL RIGHTS BY VIRTUE OF HIS INDICTMENT FOR OBSTRUCTION OF JUSTICE PURSUANT TO N.J.S.A. 2C:29-1.
POINT X: THE TRIAL COURT ERRE [SIC] IN REFUSING TO GRANT DEFENSE REQUEST TO CHARGE TO THE JURY THE APPROVED DOCTRINE, "FALSE IN ONE, FALSE IN ALL."
In his appellant's brief and in his supplemental pro se brief, defendant argues that the trial court erred in denying the motion of acquittal at the close of the State's case. In so arguing, defendant does not cite any relevant cases or refer to any specific facts in the record. Pursuant to Rule 3:18-1, the court shall enter judgment of acquittal if the evidence is insufficient to warrant a conviction. However, "the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967).
In light of applicable law and giving due deference to the testimony of the police officers and to the findings and conclusions of the trial court, we are satisfied that the record contained sufficient evidence, which if believed, would support a reasonable jury's verdict finding defendant guilty of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a); and obstructing the administration of law, N.J.S.A. 2C:29-1, based on his flight and physical altercation with Muller. Indeed, our Supreme Court has observed that "[u]nder New Jersey's obstruction statute, when a police officer commands a person to stop, or . . . orders him to place his hands on his head for a pat-down search, that person has no right to take flight or otherwise obstruct the officer in the performance of his duty." State v. Williams, 192 N.J. 1, 11 (2007). See also State v. Crawley, 187 N.J. 440, 460 (determining that a defendant could be convicted of violating the obstruction statute even if he fled from an investigatory stop that was later deemed unconstitutional), cert. denied, 549 U.S. 1078, 127 S.Ct. 740, 166 L.Ed. 2d 563 (2006).
Defendant argues, again without any reference to specific facts, that the jury verdict was against the weight of the evidence and therefore his conviction should be reversed.
Defendant contends he presented evidence that showed he justifiably fled to protect himself from the police officer's illegal and unwarranted physical attack. No other trial errors are cited. Rule 3:20-1 directs that
[t]he trial judge shall not . . . set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.
Here, quite simply, the jury was free to credit the testimony of the police officers of an unprovoked flight or to credit defendant's account of an unwarranted police attack. See State v. Coleman, 46 N.J. 16, 43 (1965), cert. denied, 383 U.S. 950, 86 S.Ct. 1210, 16 L.Ed. 2d 212 (1966); see also Reyes, supra, 50 N.J. at 464. "On a motion for a new trial, the objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error." State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). The jury heard the testimony of all of the participants in the incident. By their verdict, the jurors obviously rejected defendant's version of his encounter with the police. We find no basis to second-guess or to disturb that verdict.
Defendant next argues that the trial court erred in denying his motion to suppress the evidence seized at the scene of his arrest. During defendant's motion to suppress hearing, Muller testified that he drove past 199 Gatzmer Avenue looking for the male reported to be trespassing on the same block. He observed a "male standing on the porch of a house[,]" and decided to take a closer look. When the person on the porch saw Muller's marked police car, the person "positioned himself . . . to fit so the door would close behind him [to look] like there was no one standing there." Muller exited his car and asked the person to come down from the porch. At that point, Muller recognized defendant and asked him what he was doing on the porch. Muller was aware defendant had a criminal history and had served time in prison. Defendant claimed he was visiting a friend, but could not or would not provide his friend's name.
Muller testified he "didn't know if [defendant] was trying to break into the house or what he was doing so [he] . . . went to pat him down and see if he had anything on him, any weapons or anything." While he was performing the pat-down, Muller testified defendant took off running. By the time defendant was apprehended and subdued, he had broken open a plastic bag holding cocaine. Police found another plastic bag in his pocket containing cocaine after the arrest.
The motion judge concluded the police had conducted a "valid investigative stop or detention," and a valid search incident to arrest thereafter. The judge found that Muller: had reasonable suspicion to believe that criminal activity may have been afoot after appearing at the scene, seeing the defendant, an ex-convict, knowing that he didn't live [at the house of] the porch in question, seeing him attempting to conceal himself, and so in order to make further inquiry he had a right to pat the defendant down or try to pat the defendant down for his own safety.
The judge found it significant that the incident occurred at 4:50 a.m., that it followed a citizen report of a suspicious trespassing black male in a nearby yard, and that defendant appeared to be trying to conceal himself from the view of the occupants of the marked police car.
Defendant argues that Muller lacked reasonable suspicion to search him because "there was no indication that a crime of violence had been committed" and no "objectively credible reason for Officer Muller to conclude that defendant was armed or dangerous." The State argues that Muller had reasonable suspicion to frisk defendant, and when defendant reacted to the frisk by fleeing, the police developed probable cause for a search. See Williams, supra, 192 N.J. at 12.
Appellate review of a trial court's ruling on a motion to suppress evidence is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing such a ruling, we 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, 192 N.J. 224, 243 (2007).
We recognize that "[w]arrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions." State v. Pineiro, 181 N.J. 13, 19 (2004). If a search or seizure is conducted without a warrant, the State must demonstrate that the search or seizure falls within an exception to the warrant requirement. Ibid. The State must prove the absence of a constitutional violation by a preponderance of the evidence. State v. Wilson, 178 N.J. 7, 13 (2003). Three exceptions to the warrant requirement apply to the dynamics of the present case.
First, police are constitutionally permitted to conduct a warrantless "field inquiry" by approaching an individual and asking whether he or she is willing to answer the officer's questions. Pineiro, supra, 181 N.J. at 20. Our Supreme Court has described the parameters of an appropriate field inquiry as follows:
[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. If there is no detention - no seizure within the meaning of the Fourth Amendment - then no constitutional rights have been infringed. [State v. Maryland, 167 N.J. 471, 483 (2001) (quoting Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324, 75 L.Ed. 2d 229, 236 (1983)).]
"Whether a detention has occurred is measured from the citizen's perspective." Ibid. Thus, "[a] field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Pineiro, supra, 181 N.J. at 20 (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). Under the uncontroverted facts, Muller's encounter of defendant at 4:50 a.m. on the porch of a residence at which he did not live and whose occupant he could not identify, warranted further inquiry.
Second, an "investigatory stop," "stop and frisk," or a "Terry stop" is constitutionally permitted and the police may temporarily detain and search a suspect for weapons if the officer has "reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed. 2d 889, 909 (1968); Pineiro, supra, 181 N.J. at 20. "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Ibid. Police officers conducting a valid Terry stop supported by reasonable suspicion are "legally entitled to order defendant to halt, and they [are] entitled to use non-lethal force to compel compliance with their command." State v. Doss, 254 N.J. Super. 122, 127-28 (App. Div. 1992).
Our Supreme Court has stated that a Terry stop is valid "if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity." Nishina, supra, 175 N.J. at 511. In reviewing whether a Terry stop was supported by reasonable suspicion, a court should consider the totality of the circumstances surrounding the stop, including the officer's experience and knowledge. Pineiro, supra, 181 N.J. at 22. Facts supporting a finding of reasonable suspicion of criminal activity include a defendant's furtive movements or attempts to hide from a police officer, a police officer's knowledge of the defendant's criminal history, a defendant's failure to properly answer a police officer's questions or to make eye contact, and an isolated encounter at a late hour. See State v. Valentine, 134 N.J. 536, 553-54 (1994). The totality of the circumstances in this case warranted the Terry stop.
Third, the police may search a person incident to a lawful arrest grounded upon probable cause. Probable cause "'is a well-grounded suspicion that a crime has been or is being committed.'" Nishina, supra, 175 N.J. at 515 (quoting State v. Sullivan, 169 N.J. 204, 211 (2001)). Though a defendant's flight upon seeing a police car, without any other evidence of criminal activity, will not supply probable cause for an arrest, State v. Tucker, 136 N.J. 158, 173 (1994), flight from the police is a strong enough indicator of criminality to create probable cause when combined with other evidence, such as an anonymous tip. See State v. Nittolo, 194 N.J. Super. 344, 346 (App. Div. 1984). As noted above, our Supreme Court has recently held that as long as the police are acting in good faith, a subject's flight from a Terry stop gives rise to probable cause for obstruction of police under N.J.S.A. 2C:29-1(a), even if the Terry stop is unsupported by reasonable suspicion. Williams, supra, 192 N.J. at 13; Crawley, supra, 187 N.J. at 460-61.
Muller's request for defendant to step off the porch to answer questions was a valid field inquiry in response to the report of a trespasser in the area, the defendant's strange behavior (appearing to hide between the doors of 199 Gatzmer Avenue) and the time at which the encounter occurred. Once defendant stepped off the porch, Muller recognized him as a former convict who, to the officer's knowledge, did not live at that address. Critically, defendant could not explain who he was visiting at the address, which would have aroused in a reasonable police officer a suspicion that defendant might be attempting to burglarize the home at which he was found. Based on these objective facts, Muller, who was alone at the time, had a reasonable, articulable suspicion that warranted a Terry frisk of the potential burglar to ensure his own safety. When defendant fled from a valid Terry stop made in good faith and grounded in reasonable suspicion, the police developed probable cause to arrest him for obstruction of the administration of law, N.J.S.A. 2C:29-1(a). Williams, supra, 192 N.J. at 13.
Defendant concedes that he met the statutory predicates to be sentenced as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). He, nevertheless, argues that the trial court's exercise of discretion in imposing a discretionary sentence within the extended range violated his Sixth Amendment right to a trial by jury because it was based on judicial fact-finding, contrary to Blakely v. Washington, 542 U.S. 296, 125 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). More specifically, defendant contends it was improper for the judge to influence his sentence based upon judicial findings of aggravating and mitigating factors. This argument is foreclosed by the New Jersey Supreme Court's holding in State v. Pierce, 188 N.J. 155, 169 (2006).
In Pierce, the Court held that as long as the length of the actual sentence imposed falls between the minimum of the ordinary-term range and the maximum of the extended range, it "remains in the sound judgment of the court - subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors and the court's weighing and balancing of those factors found." Ibid. The Court explicitly stated that such a scheme is fully compliant with the Blakely prohibition on sentence-enhancing judicial fact-finding. Id. at 172.
The seven-year term imposed for the extended-term third-degree conviction is within the permissible range, and the five-year term imposed for the third-degree conviction for possession of CDS with intent to distribute is within the permissible range. Ibid. On appellate review, an abuse of discretion standard applies, and we perceive no abuse of discretion. Id. at 166.
We are "'bound to affirm a sentence . . . [a]ssuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience.'" State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)). As stated above, the trial court complied with the sentencing guidelines, and we do not find defendant's sentence is so excessive as to shock the judicial conscience. Ibid. It cannot be said that the trial court's discretionary decision to impose a consecutive sentence for the conviction on count four was improper. State v. Yarbough, 100 N.J. 627, 633-34 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986).
To the extent they are not duplicative of arguments made by counsel, and already addressed, we find the defendant's pro se points to be without merit. Two of defendant's pro se arguments relate to his post-trial discovery of a medical report that indicates Muller injured his right hand during defendant's arrest, contradicting Muller's testimony that he injured his left hand. Defendant contends he is entitled to a new trial because the prosecutor withheld that exculpatory evidence contained in the report in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963). Defendant also argues that the medical report is newly discovered evidence that calls into question Muller's credibility, necessitating a new trial.
"In order to establish a Brady violation the defense must demonstrate that (1) the prosecution failed to disclose the evidence; (2) the evidence was of a favorable character for the defense; and (3) the evidence was material." State v. Carter, 85 N.J. 300, 311 (1981). A threshold determination of prosecutorial knowledge, either actual or in the prosecutor's possession, must be made for the Brady rule to apply. Id. at 313.
First, defendant never alleged that the prosecution knew of or possessed the report, and the report on its face does not appear to be germane to the prosecution. Defendant therefore fails to make a threshold showing of prosecutorial knowledge of the allegedly exculpatory evidence. Ibid. Second, defendant's argument that the report is "newly discovered evidence" necessitating a new trial falls short. A defendant seeking a new trial on the ground of newly discovered evidence must show the newly discovered evidence is "material, and not 'merely' cumulative, impeaching, or contradictory." State v. Ways, 180 N.J. 171, 187 (2004) (quoting Carter, supra, 85 N.J. at 314). Defendant's newly discovered evidence, at most, impeaches Muller's credibility and is not grounds for a new trial. Ibid. The evidence does not purport to dispute that Muller was injured following defendant's flight, but solely that the injury was to the right hand, rather than the left hand. The offense of obstruction would still be established, as would the charge of aggravated assault, since a person is guilty of aggravated assault if he commits a simple assault upon any law enforcement official acting in the performance of his duties while exhibiting evidence of his authority. N.J.S.A. 2C:12-1(b)(5)(a). Any bodily injury will suffice for simple assault.
Defendant also argues pro se that Muller's inquiry of defendant was impermissibly race-based, requiring suppression of the evidence seized incident to defendant's arrest. If race is the sole motivator for an investigatory stop or search, the police conduct violates the Equal Protection Clause of the Fourteenth Amendment and the resulting evidence must be suppressed. Maryland, supra, 167 N.J. at 485. However, a defendant alleging that the police stopped him based on his race "bears the preliminary obligation of establishing a prima facie case of discrimination. A prima facie case is one in which the evidence, including any favorable inference to be drawn therefrom, could sustain a judgment." State v. Segars, 172 N.J. 481, 494 (2002).
Defendant's arguments on appeal do not establish a prima facie case. Defendant claims that Muller acted with a race-based motivation. More particularly, he asserts that Muller was seeking someone matching the description of a black male, and later Muller called him "boy." Defendant ignores the fact that Muller was called to the scene to investigate a report of a black male trespassing in a nearby yard, that defendant was on the property abutting the caller's property, and that he appeared to be hiding between doors when he spotted the police car. We find defendant has not established that race was the sole motivator for Muller's actions. Maryland, supra, 167 N.J. at 485.
To the extent we have not directly addressed the balance of defendant's arguments, we find those arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). This includes defendant's argument that he suffered a violation of his constitutional rights because a criminal complaint issued by Muller on November 7, 2006 charged him with a violation of N.J.S.A. 2C:29-2(a), whereas he was indicted by the grand jury and found guilty of violating N.J.S.A. 2C:29-1, and his argument the court erred in denying his request to charge the jury with the "false in one, false in all" instruction, see Model Jury Charge (Criminal), "False in One -False in All" (1991).
© 1992-2010 VersusLaw Inc.