On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-05-0973.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2010
Before Judges Rodriguez, Grall and Miniman.
Defendant Christopher Etienne appeals from convictions following a jury trial and the sentence imposed on convictions following the entry of a negotiated plea.
A jury convicted defendant of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), and two counts of third-degree possession of a controlled dangerous substance (CDS), heroin and cocaine, with intent to distribute, N.J.S.A. 2C:35-5b(3). The judge imposed concurrent terms aggregating four years. We reverse the convictions based on two separate trial errors concerning defendant's pre and post-arrest silence and the admission of prejudicial evidence from non-testifying persons. Because these errors denied defendant a fair trial, we remand for a new trial.
Tinton Falls Police Detective Christopher Camilleri testified that he received complaints about drug sales from the management of local hotels. In response, Camilleri arranged for a surveillance operation. On October 31, 2005, he saw two individuals nervously inspecting the parking lot of the Holiday Inn hotel in Tinton Falls. The two entered a vehicle that was driven by a third person and passed items back and forth. Based on these observations, Camilleri concluded that the two had purchased narcotics in the hotel. He followed the vehicle and radioed for a backup unit. After stopping the vehicle, Camilleri interviewed the passengers. They stated that they had purchased narcotics in room 216 or 204 of the Holiday Inn from a man of Haitian descent.
Two days later, Camilleri and Monmouth County Prosecutor's Detective Scott Samis arranged to meet with a confidential informant. The informant later cancelled the meeting, but participated in a phone call. He told Camilleri and Samis that individuals were selling drugs in room 204 of the Holiday Inn and that the operation would end "shortly."
The Holiday Inn manager told the detectives that room 204 was registered to Roger Louis. Samis recognized the name because he had recently arrested Louis for distributing CDS. Moreover, Louis was Haitian and matched the descriptions given to Camilleri by the informant. The detectives decided to set-up surveillance across the hall from room 204, in room 205.
After the detectives arrived at room 205, they detected a strong odor of burnt marijuana emanating from room 204. The detectives immediately began conducting surveillance of the hallway outside room 204 through the peephole in room 205. Around 6:40 p.m. that night, seven individuals entered and exited room 204 within minutes. Upon exiting, each looked nervously around the hallway. Based on their mannerisms, Camilleri concluded that the individuals were purchasing narcotics in room 204. Due to the frequency of purchases, the detectives called for assistance.
At 10:40 p.m., Samis saw a man, later identified as defendant, exit room 204 using a cellular phone. The bolt on the door to room 204 prevented the door from completely closing. Defendant said that he had "to get out of here." Believing that the sellers were leaving, Samis exited room 205 and shouted to defendant, "stop, police." Defendant turned and ran towards room 204 while shouting to warn the occupants of the officers' presence. Samis tackled defendant into the floor of room 204, where he handcuffed and searched defendant.
Seeing Samis, the four other men in room 204 "scrambled." The police
handcuffed all four without incident, and gave each Miranda*fn1
warnings. Defendant, Roger Louis, Wilbert Mesidor, Casey
Pierre and Peter Mentor were present. Defendant had forty-one dollars,
Pierre, $1,145 and Mentor $1,983. Inside room 204, the officers saw
hypodermic needles and marijuana in plain view on top of a dresser.
Louis consented to a search of room 204, which revealed a scale; fourteen cellular phones; eleven bags of crack-cocaine and ten bags of powder cocaine contained in a shaving cream can with a false bottom; a black bag containing nine bags of crack-cocaine; a clear plastic bag containing twenty bags of crack-cocaine and twenty-nine bags of powder cocaine; and a heart-shaped container holding thirty-eight bags of crack-cocaine, eighteen bags of powder cocaine and seventy-two decks of heroin. During the search, several seized cellular phones rang. Monmouth County Prosecutor's Sergeant Barry Graves answered each call and concluded that the calls related to drug purchases.
After defendant was arrested, he was given Miranda warnings. He initially declined to make any statement to the police investigators. Later, he agreed to give a written statement.
Prior to trial, defendant moved to suppress his statement to the police investigators. At a pretrial hearing, Samis testified that he heard Detective Nuccio give defendant the Miranda warnings at 1:15 a.m. Defendant acknowledged and initialed each paragraph on the waiver form. He agreed to provide a statement and answer the questions. Detective Nuccio and Camilleri witnessed defendant's signature.
At 3:55 a.m., Samis gave defendant Miranda warnings a second time. Appearing coherent and calm, defendant again initialed each paragraph on the waiver form. After an interview, defendant authored a handwritten statement in which he admitted that he "willingly and knowingly" possessed narcotics and sold drugs to "three or four different people." Defendant also provided an affidavit, stating that:
Peter Mentor, Roger Louis, Wilbert Mesidor, Casey Pierre had nothing to do with the drugs [and] paraphernalia found in Room 204 [in] the Holiday Inn on the night of 11/1/05. I take full responsibility for every and only [sic] illegal substance recovered that night. They did not have any knowledge of the drugs in the room.
The judge denied the motion to suppress.
Defendant was tried by himself. At trial, the State presented Monmouth County Prosecutor's Detective Thomas Mahon, as an expert on narcotics distribution. Mahon explained that the amount of drugs found in room 204 was indicative of the intent to distribute. Further, because drug dealers were "territorial," the shared use of room 204 indicated that the five men were working together.
Pierre pleaded guilty and testified for the State. He testified that defendant visited room 204 to pick up drugs. Defendant sold drugs within twenty minutes of arriving. Despite testifying that each man had "a different stash," Pierre could not identify what type of drugs defendant sold or where defendant's drugs were located.
Mentor pleaded guilty to possession of cocaine and testified for the defendant. According to Mentor, defendant did not sell drugs in room 204, but did smoke marijuana there.
Defendant testified that he initially refused to provide a statement and did not agree until "six, seven hours" after his arrest. He agreed because he "got tired and [he] just gave up." Defendant repudiated his written statement in his direct testimony. He explained that he went to the Holiday Inn to visit Mesidor. He brought some food; smoked marijuana; and within twenty minutes the police arrived. Defendant admitted that he also sold $10 of marijuana to a co-worker to support his "habit," but did not know that the other men were selling cocaine and heroin. As for the telephone call in the hallway prior to his arrest, he explained that it was from his girlfriend and had nothing to do with drug sales.
The following colloquy occurred on cross-examination:
[ASSISTANT PROSECUTOR]: And from one o'clock-you indicated that your statement was given around four? [DEFENDANT]: Yes, ma'am.
Q. And from 1:15, the time that you signed that first Miranda warning, until four o'clock, you weren't questioned?
A. I was, but I refused to give a statement.
Q. Okay. So the police questioned you?
A. They asked me would I like to give a statement. And I responded, no.
Q. Because you didn't want to give a statement at that time, correct?
Q. You weren't afraid of them?
A. Can't say that but I didn't-
Q. Because you refused, correct?
A. Yea, I refused to give a statement at that time, yes, ma'am.
Q. You weren't succumbing to the pressure; you weren't giving into the pressure?
Q. Okay. And who was asking you questions between one o'clock and four o'clock in the morning.
A. I don't recall the officer's name, but I think it was the officer for the gang unit there, or something. And he was the one who kept questioning us, like are you ready to give your statement?
Q. And you don't recall his name?
Q. And how many times did he ask you if you want to ...