March 22, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGELO L. FELICIANO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-08-2647.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2011
Before Judges Lisa, Sabatino, and Alvarez.
After a jury trial, defendant Angelo L. Feliciano was convicted of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree unlawful possession by certain persons not authorized to have a weapon, N.J.S.A. 2C:39-7.
The handgun was found by the police in defendant's waistband during a pat-down search incident to his arrest after a motor vehicle stop. The trial court initially sentenced defendant as a persistent offender under N.J.S.A. 2C:44-3a to an aggregate ten-year custodial term, which was thereafter modified on reconsideration to a five-year term with a five-year period of parole ineligibility on the second-degree offense, with a concurrent four-year term with a two-year parole disqualifier on the third-degree offense.
On appeal, defendant raises the following points for our consideration:
A. It was plain error to admit the handgun into evidence because it is the fruit of an illegal search and arrest in violation of Feliciano's 4[th] Amendment Rights, not raised below.
B. It was plain error not to apply the warrant requirement standard, because the arrest of Feliciano was not a search incident to arrest, consent search or exigent circumstances, not raised below.
A. Feliciano was denied due process and a fair trial [b]ecause evidence was withheld that impeaches a state
[w]itness's credibility; this requires that his [c]onviction be reversed, plain error, not raised below.
B. It was plain error to admit handgun evidence when insufficient credible evidence was presented at the suppression hearing and trial, resulting in an unjust result, not raised below.
A new trial is required based on newly discovered material videotape evidence withheld by Lieberum in violation of Feliciano's [r]ight to due process and fair trial, plain error, not raised below.
The State's failure to produce an exculpatory [v]ideotape violated Brady and requires remand [f]or a full evidentiary hearing, plain error. Not raised below. POINT V
A. The court abused its discretion by denying [t]he defense an adverse witness charge and [t]he prosecution's removal of witnesses caused Feliciano to suffer actual harm.
B. The court's allowing a jury charge to infer [p]ossession of a gun by Feliciano contrary [t]o what inherently reliable fingerprint identification may reveal was an abuse of discretion.
The finding of theft and joyriding against Feliciano was plain error, because the [p]rosecution never proved other crimes by [c]lear and convincing evidence, not raised below.
Feliciano's Sixth Amendment Right to a jury trial [a]nd his right to material evidence at the sentencing [s]tage was violated; the court failed to apply [m]itigating factors supported by credible [e]vidence, plain error, not raised below.
For the reasons that follow, we affirm the judgment of conviction and defendant's sentence.
The State's proofs at trial established the following facts relevant to our review of the issues presented.
The case arises out of a motor vehicle stop on March 9, 2007. That afternoon, while on patrol in Bellmawr, State Trooper Robert Lieberum overheard another State Trooper, Eaton,*fn1
call out a license plate number for a red Dodge Durango SUV to the dispatcher. Trooper Lieberum heard the dispatcher respond that the Durango had a valid registration, but had been reported as stolen to the National Crime Information Center ("NCIC"). After learning that Trooper Eaton had lost sight of the vehicle, Trooper Lieberum drove around the area searching for it.
Trooper Lieberum spotted the Durango at a traffic light at the exit ramp from Interstate 676 northbound at Atlantic Avenue in Camden. Trooper Lieberum activated his overhead lights and the Durango pulled to the side of the road. Camden City Police Officer Lee then arrived at the scene.
Trooper Lieberum and Officer Lee each approached the Durango. Trooper Lieberum went to the driver's side of the vehicle and Officer Lee went to the passenger's side. The driver, Cordaro M. Rhoades, was instructed to get out of the vehicle. Rhoades was placed under arrest, handcuffed, searched, and secured in Trooper Lieberum's vehicle.
Trooper Lieberum then proceeded to arrest each passenger for receiving stolen property, doing so one at a time for safety reasons. The front seat passenger, Gladwin Russell, was instructed to get out of the vehicle, then was placed under arrest and handcuffed. A search of Russell's person revealed two small, zip-loc baggies of suspected marijuana. Next, the back seat left passenger, Levar Cranshaw, was directed to get out of the vehicle. He was likewise placed under arrest and handcuffed. A pat-down of Cranshaw turned up a Llama .45 caliber handgun in his waistband on his right hip. A piece of loose-leaf paper with information relating to an apparent street gang was also found in Cranshaw's back left pocket.
Finally, Trooper Lieberum arrested defendant who was the back seat
right passenger, for receiving stolen property. Upon
patting down defendant incident to his arrest, Trooper Lieberum
discovered a loaded P38 9mm handgun tucked in defendant's front
waistband. The handgun was secured by the police. A small plastic
baggie containing vegetation suspected to be marijuana was also
discovered in defendant's jacket pocket. Defendant was directed to sit
on the curb and cross his legs. He was administered Miranda*fn2
warnings, and he indicated that he understood them.
The State Police Firearms Investigative Unit determined that the handgun found in defendant's waistband was not registered, that defendant did not have a firearms purchaser identification card nor a permit to carry or to purchase a handgun or an assault weapon.
Defendant was initially charged with receiving stolen property, possession of marijuana, and the aforementioned weapons offenses. His indictment followed, omitting only the marijuana charge.
Prior to trial, defendant moved to suppress the physical evidence seized from him by Trooper Lieberum. At the suppression hearing, defendant argued that the police had no right to search defendant incident to his arrest, because the police allegedly lacked probable cause to arrest him. Defendant conceded that the police had probable cause to believe that the Durango was a stolen car, and that Trooper Lieberum had probable cause to stop it. Defendant further conceded that Trooper Lieberum had probable cause to arrest the driver. However, defendant argued that Trooper Lieberum did not have probable cause to arrest him as a passenger in the back seat of the vehicle. He argued that there was no evidence that he knew that the Durango was stolen. The State, in opposition, maintained that Trooper Lieberum had probable cause to arrest all of the passengers in the stolen car, including defendant.
The trial judge agreed with the State's position and denied the motion to suppress. Applying the standards of State v. Daniels, 393 N.J. Super. 476, 487 (App. Div. 2007), the judge concluded that "Trooper Lieberum had a well[-]grounded suspicion that a crime had been or was being committed . . . . at least, joyriding." Consequently, the judge found there was probable cause to arrest the vehicle's occupants. The judge determined that, in effectuating the arrests, Trooper Lieberum essentially had the right to perform "[an] unlimited search of [each] arrestee's person, as a matter of course." The judge further noted that "when [Trooper Lieberum] did the pat[-]down [of defendant], [he] felt an object in [defendant's] waistband that turned out to be a handgun. And so this search was a valid search incident to a valid arrest. And, therefore, the motion to suppress must be denied."
Prior to trial, the State dismissed count one of the indictment, which charged defendant with the receipt of stolen property. The parties stipulated that the evidence was handled, stored, and transported at all times in accordance with standard police evidence procedures to prevent tampering. The parties also agreed that, based upon a forensic examination, the handgun seized from defendant was operable and capable of being discharged.
At the two-day jury trial, the state called Trooper Lieberum, who recounted the events substantially in accord with the testimony that he had previously given at the suppression hearing. The State also relied upon the previously-noted stipulations concerning the handgun and defendant's lack of handgun permits.
Defendant did not testify at trial. He presented testimony from Cranshaw, the other passenger who had been in the back seat of the Durango. Cranshaw, who himself had been armed with a handgun, had pled guilty to a weapons offense and was sentenced to five years in prison with a two year minimum term.
Cranshaw testified that when Trooper Lieberum stopped the Durango, Rhoades, the driver of the vehicle, tossed his loaded handgun into defendant's lap. According to Cranshaw, he saw defendant put the handgun in his waistband. Cranshaw claimed that defendant had tried to return the handgun to Rhoades, but that he ceased that attempt when Trooper Lieberum approached the car.
Cranshaw maintained that it was Officer Lee that arrested him and defendant, not Trooper Lieberum. Cranshaw further alleged that he had never met defendant prior to this encounter, and they had not discussed the incident at any time.
Upon considering the proofs, the jury found defendant guilty of both weapons counts in the indictment.
At the initial sentencing in April 2008, the trial judge granted the State's motion to impose a discretionary extended term upon defendant, who had five prior indictable convictions, as a persistent offender. As to the second-degree offense, the judge imposed a ten-year prison sentence, with a five-year period of parole ineligibility. On the other weapons count, the judge imposed a five-year prison sentence, with a two-and-a-half year period of parole ineligibility, to run concurrent with the sentence imposed on the other count. The judge imposed appropriate fines and penalties, and also awarded jail credits.
Defendant filed a motion for reconsideration of his sentence, arguing that the imposition of a ten-year sentence was excessive because all of his prior convictions involved only drugs and not weapons. The judge agreed and, in the exercise of his discretion, resentenced defendant on the second-degree offense to a five-year term, with a five-year period of parole ineligibility, and on the other count to a four-year term, with a two-year period of parole ineligibility, to run concurrent with the other sentence imposed.
This appeal ensued.
We first address defendant's claim that the trial court improperly denied his suppression motion. In doing so, we recognize that under the Fourth Amendment of the Federal Bill of Rights and under Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000); see also State v. Alston, 88 N.J. 211, 230 (1981).
Here, the State relies upon the well-established Fourth Amendment exception authorizing the warrantless search of persons incident to their lawful arrest. See Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969); State v. Dangerfield, 171 N.J. 446, 461 (2002). Such police conduct is lawful if the police had probable cause to arrest prior to the search.
Probable cause to arrest is "something less than [the] proof needed to convict and something more than a raw, unsupported suspicion." State v. Davis, 50 N.J. 16, 23 (1967), cert. denied, 389 U.S. 1054 (1968). Probable cause exists when the totality of the facts and circumstances presented to the arresting officer would support "a [person] of reasonable caution in the belief that an offense has been or is being committed." State v. Sims, 75 N.J. 337, 354 (1978) (quoting Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, 333, 3 L. Ed. 2d 327, 332 (1959)). The "principal component of the probable cause standard [for search and arrest] 'is a well-grounded suspicion that a crime has been or is being committed.'" State v. Harris, 384 N.J. Super. 29, 47 (App. Div.) (quoting State v. Moore, 181 N.J. 40, 45 (2004)), certif. denied, 188 N.J. 357 (2006); see also Daniels, supra, 393 N.J. Super. at 486 (quoting State v. Waltz, 61 N.J. 83, 87 (1972)).
The present case involves the arrest of passengers who were ordered to exit a car believed to be stolen. In the specific context of a motor vehicle stop, a police officer may order persons out of a vehicle if the officer can "point to specific and articulable facts that would warrant heightened caution to justify ordering the occupants to step out of [the] vehicle[.]" State v. Smith, 134 N.J. 599, 618 (1994). Such grounds for heightened caution need not rise to the level of a reasonable suspicion that the occupants are engaged in criminal activity or are armed and dangerous. Id. at 618-19; see also State v. Baum, 199 N.J. 407, 424 (2009); State v. Pena-Flores, 198 N.J. 6, 30-31 (2009). Based on the facts of record, we are satisfied that, at a minimum, Trooper Lieberum and his police colleagues had the authority to order defendant and the other occupants out of the Durango.
We turn to the question of probable cause to arrest defendant. The motion judge found such probable cause was present, as Trooper Lieberum had a well-grounded basis to conclude that defendant had engaged in joyriding, or some other related offense arising out of the illegal use of a car. We agree that such probable cause manifestly existed here.
Under N.J.S.A. 2C:20-10, the criminal statute that encompasses joyriding, a passenger in a stolen vehicle may be prosecuted if he enters a vehicle knowing that it was stolen. The statute provides that "[a] person commits a crime of the fourth degree if he enters and rides in a motor vehicle knowing that the motor vehicle has been taken or is being operated without the consent of the owner or other person authorized to consent." N.J.S.A. 2C:20-10d. Trooper Lieberum had ample grounds for probable cause to arrest defendant for such illegal joyriding.
The Durango, as defendant concedes, was lawfully stopped based upon the NCIC report identifying it as stolen. The police had the lawful authority to order each of the occupants, including defendant, out of the vehicle. The police further had reason to infer from the surrounding circumstances that defendant either knew, or had reason to know, that the vehicle was stolen or at least was being operated without the owner's consent. The record is bereft of any indication that the driver or any of the passengers claimed to be the owner of the Durango or told the officers that they had been given permission by the owner to use the vehicle.
It was unnecessary for defendant to announce explicitly to the police that he was aware that the car was stolen or that it was being used without the owner's permission. The surrounding context was more than ample to furnish probable cause. It is inconsequential to the search-and-seizure analysis that the receipt of stolen property charge against defendant was ultimately dismissed. What matters instead is what the police perceived, and could reasonably infer from those perceptions, at the time of the arrest and search. The police clearly had probable cause to arrest defendant based upon the circumstances that were apparent at the time.
Having probable cause to arrest defendant, Trooper Lieberum acted completely within his authority to search defendant's person and, in particular, to seize the handgun found in his waistband and the baggie of suspected marijuana in his jacket pocket. See Daniels, supra, 393 N.J. Super. at 480. This is not a scenario, such as in State v. Eckel, 185 N.J. 523, 541 (2006), in which the contraband was seized from a compartment within the motor vehicle, as to which the incident-to-arrest exception is inapplicable.
In sum, the trial court properly denied defendant's motion to suppress.
Defendant makes two related arguments concerning a videotape of the motor vehicle stop. First, he contends that the State violated the discovery rules and the principles of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to provide defense counsel with the videotape before trial. Second, he argues that the trial court should have provided the jury with an adverse-inference charge concerning the State's failure to put the videotape in evidence. Neither of these arguments has merit.
The State concedes that a videotape of the stop was not furnished to defense counsel in discovery. However, as the prosecutor explained to the trial judge, defense counsel never stated in a pretrial discovery demand that he wanted to have such a videotape produced. There is no indication in the record before us*fn3 that such a request was ever made before trial. Nor does it appear that defendant ever moved before trial to compel discovery. Instead, it appears that defense counsel did not consider the possible existence of a videotape until the day of his summation. During that summation, defense counsel suggested, without any objection by the prosecutor, that a camera may have been mounted on the trooper's patrol car, and that defendant's motor vehicle stop had been videotaped.
It is completely speculative to assume that the videotape would have depicted a sequence of events of the motor vehicle stop contrary to the sworn testimony of Trooper Lieberum, which the trial judge implicitly found credible at the suppression hearing and which the jurors likewise presumably found credible at trial. There has been no showing that the tape would have been exculpatory, and thus there is no Brady violation. See Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218. Moreover, no adverse witness charge was required because there is no basis to assume or infer that the videotape was unfavorable to the State. See State v. Clawans, 38 N.J. 162, 170-72 (1962).
We reject defendant's argument that the trial court erred in instructing the jury that it could infer his possession of the firearm, which he claims was passed to him by the driver Rhoades, without evidence of defendant's own fingerprints. Such a jury charge substantially comports with the Model Charges. See Model Jury Charge (Criminal), "Possession of Firearms, Weapons, Destructive Devices, Silencers or Explosives in a Vehicle" (1993). The charge is also in accord with the statutory scheme and the case law, which permit such an inference. See N.J.S.A. 2C:39-2a(1); State v. Cassady, 198 N.J. 165, 176-79 (2009). The proofs were more than adequate to permit such a reasonable inference, including Cranshaw's testimony that he saw defendant place the gun in his waistband, the exact place it was found by Trooper Lieberum. No fingerprint evidence was needed to support an inference of intentional possession. Moreover, the judge's instruction fairly took pains to remind the jury that defendant would not be guilty of possession if he physically possessed it but did not intend to possess or conceal it. The charge was justified and it did not deprive defendant of a new trial. See State v. Afanador, 151 N.J. 41, 54-56 (1997).
Defendant further contends, for the first time on appeal, that the trial court erred in allowing Trooper Lieberum to testify about the nature of defendant's arrest and the Trooper's reference to the arrest being based upon joyriding and the receipt of stolen property. He maintains that because such joyriding or receipt of stolen property was never proven by clear and convincing evidence, the Trooper's testimonial references comprised inadmissible "other crimes" evidence. See N.J.R.E. 404(b). This argument is unavailing. The Trooper's reference to the basis for defendant's arrest was part and parcel of the surrounding circumstances, and relevant under N.J.R.E. 401, to explain to the jury what occurred at the scene and why defendant was being arrested and searched. The trial judge did not abuse his discretion in allowing such testimony. State v. Ramseur, 106 N.J. 123, 266 (1987).
There is no merit to defendant's final argument, in which he contends that his sentence, as modified on reconsideration, was excessive. The trial court properly determined that aggravating factors three, N.J.S.A. 2C:44-1a(3); six, N.J.S.A. 2C:44-1a(6); and nine, N.J.S.A. 2C:44-1a(9) applied. Defendant has a long history of criminality dating back to 1990, including five prior indictable convictions. He received the minimum legally-allowable sentence of five years on the second-degree offense. See N.J.S.A. 2C:39-7b(1). The parole ineligibility periods were also appropriate. Defendant failed to demonstrate excessive hardship under mitigating factor eleven. See N.J.S.A. 2C:44-1(b)(11). On the whole, we detect no reason to second-guess the trial judge's sound application of sentencing principles in this case. See State v. Bieniek, 200 N.J. 601, 612 (2010); State v. Roth, 95 N.J. 334, 365 (1984).