November 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DWAYNE WATT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-04-0499.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 2010
Before Judges R. B. Coleman and J. N. Harris.
On April 21, 2005, a Passaic County Grand Jury returned an eight--count indictment charging defendant Dwayne Watt with several drug and weapons offenses: fourth-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(3) (count one);*fn1 fourth-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) (count two); third-degree distribution of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-5(a) and -7 (count three); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(11) (count four); third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(a) and -7 (count five); second-degree possession of a rifle while committing an N.J.S.A. 2C:35-7 offense, N.J.S.A. 2C:39-4.1 (count six); third-degree possession of a weapon, N.J.S.A. 2C:39-5(c)(1) (count seven); fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count eight).
Defendant was tried over a three-day period before Judge Nestor F. Guzman and a jury on these charges. The jury convicted defendant on all counts. On September 11, 2006, Judge Guzman sentenced defendant to an aggregate term of eleven years incarceration with three years of parole ineligibility,*fn2 and imposed appropriate fees and penalties.
Defendant appeals the denial of his motion to suppress and seeks the reversal of his conviction due to improper comments made to the jury by the prosecutor. Lastly, defendant claims that his sentence is excessive and should be reduced. Except for the remand for resentencing on count three, we affirm.
These are the facts developed at the motion to suppress. The only persons to testify at the suppression hearing were two government witnesses. Defendant elected not to testify and he did not present any other witnesses at that time.
Shortly after noon on October 27, 2004, Paterson Detective Orlando Robinson was engaged in a surveillance investigation in a neighborhood known for street gang activities and where the police had received numerous complaints of illicit drug trafficking and violent crimes. Through binoculars, Detective Robinson observed two persons -- defendant and a companion -- briskly walking along Tenth Avenue. The fast pace of their walk having attracted his attention, Detective Robinson moved his unmarked motor vehicle to a position where he could readily observe the two approach the driveway of a dwelling at 411 East 28th Street.*fn3 The detective watched as defendant strode down the driveway to a white automobile parked just outside the garage, approximately seventy-five feet from the street. Defendant opened the front passenger side door, reached inside, then closed the door, and returned to the accompanying person who had waited near the street. The two then proceeded to walk away towards Tenth Avenue.
During this watchfulness, Detective Robinson noticed defendant reach into his left front pants pocket and remove an object that he handed to his companion. At the same time, the companion handed defendant what appeared to be United States currency. Believing that he had just witnessed a hand-to-hand drug transaction, Detective Robinson contacted backup police officers and described to them what he had just observed.
Detectives Marvin Sykes and Evelyn Gonzalez responded to the call and after observing the suspects themselves, made arrests. Defendant was discovered to be in possession of United States currency and his cohort possessed three bags of marijuana. Armed with this information, two other detectives, George Vazquez and Vaughn Patterson, were dispatched to the location of the white automobile and walked to the end of the driveway where it was parked. Detective Vazquez looked in the rear of the vehicle and immediately noticed a large box on the rear seat with "the tip of [a] rifle sticking out of the box." The detective also saw a label on the box that said ".22 caliber."
Upon this observation of the rifle, Detective Vazquez explained, "as soon as I recognized the rifle in -- inside the back of the vehicle I -- I -- it had to -- it had to be retrieved as far as I was concerned. I'm not [going to] take a chance of losing a rifle and having the rifle on the streets." The detective further made clear his concern of "[h]aving that car pull out, having some -- some -- somehow, some way that car leaves and -- or having someone -- [some]body come in there and take that rifle." Thereupon, the detectives entered the unlocked automobile to secure the weapon, and at the same time they recovered a large, open brown paper bag that contained numerous smaller bags of suspected marijuana. Inside the box containing the rifle, the police found a.22 caliber magazine and a hollow point.357 caliber bullet. The evidence was tagged, transported to a local police station, and inventoried.
The evidence that was presented at trial by the State largely mirrored the evidence that was presented during the motion to suppress. Defendant, however, produced two witnesses at trial -- his mother and father -- who testified to very different versions of what happened in the driveway of their home on October 27, 2004.
Defendant's father testified that on the date in question he observed his son being questioned by a police officer a few blocks from home. Eventually, defendant was transported by police to 411 East 28th Street, and defendant's father followed. There, the father observed police officers searching a gray car in the driveway and afterwards watched as they moved on to search a white automobile parked near the garage. The police were described as finding a bullet inside the passenger compartment of the white car, along with a bag containing a green substance that looked like marijuana. Next, according to defendant's father, the police opened the trunk and removed a closed box that contained a rifle.
Defendant's mother testified that she exited her home when she heard defendant call her name. There, she saw four police officers in the driveway next to two parked cars. After observing a bullet perched on the hood of the white car, she watched as a police officer pulled a box out of the trunk of the white automobile, revealing a rifle.
The Law Division denied the motion to suppress. The court determined that Detective Robinson's observations of defendant's actions around the white car in the driveway of 411 East 28th Street, the hand-to-hand transaction moments later, and the lack of contraband on defendant's person when he was arrested, raised a reasonable suspicion that "the drugs [in the possession of defendant's companion] came from a stash... in the vehicle that was located on the driveway."
The court held that "it was logical to conclude that the drugs were coming from that vehicle." Accordingly, it was proper for the police to approach the vehicle where "in plain view" there were "drugs which were on the front seat of the car." Additionally, the court noted, "[u]pon peering into the vehicle, the -- detective... observed the -- the rifle which was in the back seat in the -- in a -- it actually was in a cardboard box and then protruding from the box was a -- what he... observed was a barrel of a... weapon, a rifle."
The court validated the warrantless search and denied suppression, finding "[d]efinite... exigent circumstances existed here to... retrieve that weapon from a car." Moreover, the court found that there was probable cause to sustain the police officers' interest in the white automobile, which legalized their unimpeded entry onto defendant's parents' driveway to enable them to see the rifle and contraband inside.
On appeal, defendant raises the following points:
POINT I: THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE CDS FOUND IN THE CAR; NO EXIGENCY PREVENTED THE POLICE FROM SEEKING A WARRANT.
POINT II: WHEN THE PROSECUTOR MATERIALLY MISSTATED THE LAW IN HER OPENING STATEMENT, AND VOUCHED FOR THE CREDIBILITY OF HER WITNESSES IN SUMMATION, SHE DEPRIVED THE DEFENDANT OF A FAIR TRIAL. U.S. Const., Amends. V, VI, XIV; N.J. Const. Art. I, Para. 10. (Not Raised Below).
POINT III: DEFENDANT'S SENTENCE IS EXCESSIVE AND SHOULD BE REDUCED.
Defendant contends that the plain view doctrine, see e.g., State v. Bruzzese, 94 N.J. 210, 235-38 (1983), which would legitimize the police conduct in seizing the drug contraband, is inapplicable because the police were not lawfully in the viewing area (the driveway) and the evidence was not inadvertently discovered. Additionally, defendant claims that there were no exigent circumstances to justify entry into the automobile without a warrant to seize the rifle and hollow point bullet. See State v. Pena-Flores, 198 N.J. 6, 29-30 (2009).
In reviewing a motion to suppress, we determine whether the motion judge's factual findings and legal conclusions are reasonably supported by "sufficient credible evidence... in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "In reviewing a motion to suppress, [an appellate court] 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. Mosner, 407 N.J. Super. 40, 59 (App. Div. 2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)) (internal quotation marks omitted); State v. Robinson, 200 N.J. 1, 15 (2009). Also, we defer to a trial court's factual determinations, "'which are substantially influenced by [its] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 161). "It is not our function... to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment...." State v. Emery, 27 N.J. 348, 353 (1958). We reverse only when the determination is "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162).
The United States and New Jersey constitutions guard against unreasonable searches and seizures by requiring the government to obtain a warrant prior to engaging in a search. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "A warrantless search [or seizure] is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Moore, 181 N.J. 40, 44 (2004) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)).
Additionally, both federal and state law requires a showing of probable cause. State v. Wilson, 354 N.J. Super. 548, 553 (App. Div. 2002), aff'd, 178 N.J. 7 (2003). "[T]he determination regarding those elements must be made on a case-by-case basis." State v. Dunlap, 185 N.J. 543, 549 (2006). "In general terms, [probable cause] 'means less than legal evidence necessary to convict though more than mere naked suspicion.'" State v. Sullivan, 169 N.J. 204, 210-11 (2001) (quoting State v. Mark, 46 N.J. 262, 271 (1966)). Moreover, probable cause exists if there is "a 'well grounded' suspicion that a crime has been or is being committed." State v. Waltz, 61 N.J. 83, 87 (1972)(quoting State v. Burnett, 42 N.J. 377, 387 (1964)). "Probable cause requires 'a practical, common-sense decision whether, given all the circumstances... there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Demeter, 124 N.J. 374, 380-81 (1991) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed. 2d 527, 548 (1983)).
Probable cause existed in this case because of Detective Robinson's well-founded belief that a drug transaction had been conducted by defendant, using criminal inventory stored in the white vehicle. It was entirely reasonable for police officers to be sent to the scene of this potential mobile drug warehouse to secure it pending further investigation.
"The protections of the Fourth Amendment are limited to a person's house and the 'curtilage' of the house." State v. Nikola, 359 N.J. Super. 573, 581 (App. Div.), certif. denied, 178 N.J. 30 (2003) (citing United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed. 2d 326, 334 (1987)). "'[W]hen the police [come] on to private property to conduct an investigation... and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment.'" Id. at 581-82 (quoting State v. Johnson, 171 N.J. 192, 209 (2002)).
Here, the white automobile was parked out in the open, on the driveway that was readily accessible from 28th Street. There is no evidence that the police strayed from the driveway and their presence there was legitimized by the earlier observed conduct of defendant in connection with the supposed unlawful drug transaction.
The plain view doctrine first requires the police officer to legally be in the viewing area. State v. Lane, 393 N.J. Super. 132, 144 (App. Div.), certif. denied, 192 N.J. 600 (2007). Second, the discovery of the evidence must be "inadvertent," meaning that the officer "did not know in advance where evidence was located nor intend beforehand to seize it." Ibid. (citations omitted). "[T]hird, the officer must have probable cause to associate the property with criminal activity." Ibid. In other words, the criminality of the object must be "immediately apparent." Id. at 149. All of these conditions were satisfied at the moment the rifle was observed in the box in the white car. Although the police had a predestined interest in the car because of its connection with a putative drug transaction, the discovery of the exposed rifle in an unlocked vehicle was surely inadvertent and unexpected. We find no basis to suppress the totality of the evidence as the product of a Fourth Amendment violation.
Defendant argues that under New Jersey law, exigent circumstances are required for the police to conduct a warrantless search of an automobile. State v. Pena-Flores, 198 N.J. 6, 13-14 (2009); Cooke, supra, 163 N.J. at 670. "Exigency above and beyond the mere mobility of the vehicle is required." Pena-Flores, supra, 198 N.J. at 24. In this regard, "'exigent circumstances do not dissipate simply because the particular occupants of the vehicle may have been removed from the car, arrested, or otherwise restricted in their freedom.'" Cooke, supra, 163 N.J. at 672 (citing State v. Alston, 88 N.J. 211, 234 (1981)). "[U]ntil the vehicle is seized by the police and removed from the scene, 'it is potentially accessible to third persons who might move or damage it or remove or destroy evidence contained in it.'" Ibid. Exigency will be found "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." State v. Johnson, 193 N.J. 528, 553 (2008). "The question of whether exigent circumstances exist is to be determined, as it has always been, on a case-by-case basis with the focus on police safety and preservation of evidence." State v. Pena-Flores, supra, 198 N.J. at 11.
Based upon the fact finding of the motion judge, we are satisfied exigent circumstances existed to validate the police seizures of evidence in the white car. Although there were ultimately four police officers present and defendant was in their custody, the pertinent events were occurring in the presence of defendant's parents, at their residence located in a high-crime area, and in close proximity to observed drug trafficking. The circumstances here were too dynamic to conclude otherwise.
Firearms and the special threat they pose to public safety has been recognized by this court in other Fourth Amendment cases. See, e.g., State v. Wilson, 362 N.J. Super. 319, 331-36 (App. Div. 2003) (permitting search of car for handgun even though "both suspects were in custody and the automobile under police control"), certif. denied, 178 N.J. 250 (2003). The presence of a rifle in an open vehicle, regardless of whether defendant was detained, triggers enhanced safety concerns and constitutes a significant factor in determining whether exigent circumstances exist. State v. Diloreto, 180 N.J. 264, 281-82 (2004). We are satisfied that the warrantless search of the white car and seizure of the rifle, hollow point bullet, and drug contraband were proper.
Defendant argues for the first time on appeal that he was the victim of an unfair trial due to prosecutorial misconduct. He points to two discrete events in the course of the trial: (1) the alleged misstatement of law by the prosecutor in her opening remarks to the jury, which suggested to jurors that their only decision was to decide whether to believe the State's witnesses, nothing more and nothing less, and (2) the alleged bolstering of the credibility of police testimony in her summation when she argued, "[t]he police officers had no reason to lie."
Issues not raised at the trial level, including constitutional ones, generally will not be considered by an appellate tribunal. State v. Arthur, 184 N.J. 307, 327 (2005). Nevertheless, "an issue not raised below may be considered by the court if it meets the plain error standard or is otherwise of special significance to the litigant, to the public or to the achieving of substantial justice and the record is sufficiently complete to permit its adjudication." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2011) (citing State v. Romero, 191 N.J. 59, 80 (2007)); see also R. 2:10-2.
In such a circumstance, an appellate court will not reverse on the ground of such error unless defendant shows that the error was "clearly capable of producing an unjust result." R. 2:10-2. Said another way, "reversal of defendant's conviction is required if there was error 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotations omitted); see also State v. Daniels, 182 N.J. 80, 95 (2004); State v. Macon, 57 N.J. 325, 337 (1971). Such has not been demonstrated on this record. "[N]ot 'any' possibility can be enough for a rerun of the trial. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, supra, 57 N.J. at 336.
Moreover, to determine whether prosecutorial misconduct in opening remarks or summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). The prosecution's obligation to promote substantial justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987)(internal citation omitted), cert. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993). Indeed, the Supreme Court has recognized that criminal trials often create a "'charged atmosphere... [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Id. at 320, 323 (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958)) (noting that the absence of a timely defense objection to a prosecutor's remarks in summation generally signifies that the remarks are not prejudicial).
Our canvass of the entire trial record convinces us that the prosecutorial comments were inconsequential under the totality of the circumstances and had no capacity to divert the jury from its obligation to follow the instructions provided by the trial judge. The stray comment in the opening referring to the police testimony could not reasonably have been understood to instruct jurors that the State's case rose or fell solely upon the credibility of its police witnesses. Moreover the single comment in closing about a police officer's supposed lack of motivation to lie was part of an overall exposition of the worth of all of the witnesses' testimony. We have no basis for concern that the jury verdict was in any way compromised by the fleeting remarks of the State.
Defendant's final argument on appeal relates to his view that the sentence that was imposed by Judge Guzman was excessive. We disagree.
We review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984). In so doing, we "may not substitute [our] judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, we may review and modify a sentence in those instances where the judge's determination was "'clearly mistaken.'" State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In determining the propriety of a sentence, we must make sure that sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on the evidence presented, and lastly, decide whether application of the guidelines makes a particular sentence so clearly unreasonable that it shocks the judicial conscience. State v. Bieniek, 200 N.J. 601, 608 (2010); Roth, supra, 95 N.J. at 364-65; O'Donnell, supra, 117 N.J. at 216.
In imposing the sentence, the judge found aggravating factors N.J.S.A. 2C:44-1(a)(3) (the risk that the defendant will commit another offense), N.J.S.A. 2C:44-1(a)(6) (the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been previously convicted) and N.J.S.A. 2C:44-1(a)(9) (the need for deterring the defendant and others from violating the law), and no applicable mitigating factors. We discern no abuse of discretion in defendant's sentence. The judge's findings of aggravating and mitigating factors are amply supported by the evidence, and the sentence imposed is the aggregate result of mid-range consecutive sentences, together with a mandatory minimum term. This is neither surprising nor shocking.
However, as we previously noted, the minimum term for count three lies in a range of from one to two years, N.J.S.A. 2C:35-7(a), and the court's imposition of three years of parole ineligibility was clearly in error. Accordingly, we remand for resentencing without exercising original jurisdiction because the trial court is free to impose a minimum term in the statutory range. The exercise of principled discretion in this sentencing decision is best left to the Law Division.
Affirmed as to the suppression motion and convictions on all counts; remanded for resentencing in accordance with this opinion.