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State of New Jersey v. Russell Hemmings

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 30, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RUSSELL HEMMINGS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 99-12-2224.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 12, 2011

Before Judges Espinosa and Roe.

Defendant was charged in a fourteen-count indictment with various drug and weapons possession counts, resisting arrest and aggravated assault on a police officer. Prior to his trial in 2002, defendant announced to the court that he had elected to represent himself. However, five months later, on the trial date, defendant told the court that he now realized he could not handle his case alone and intended to retain a new lawyer within two weeks. The trial was adjourned and, ultimately, defendant asked the court to compel a member of the bar to serve as standby counsel because the Office of the Public Defender (OPD) had declined to do so. His request was denied and the trial proceeded. Defendant was convicted by a jury of two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5); third-degree possession of controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1); third-degree resisting arrest, N.J.S.A. 2C:29-2; two counts of fourth-degree possession of a weapon (hollow-nose bullets), N.J.S.A. 2C:39-3(f); two counts of third-degree unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b); two counts of fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a); and two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).

In an unpublished opinion, State v. Hemmings, Docket No. A-3631-02 (App. Div. June 20, 2006), we concluded that the trial court failed to conduct the "penetrating and comprehensive inquiry of defendant before allowing him to represent himself" at the suppression hearing and trial, in not making a greater effort to accommodate defendant's request for standby counsel, and in declining to admit the results of a polygraph test at the suppression hearing. We reversed his convictions and the denial of his suppression motion and remanded for a new hearing and trial.

Because the facts underlying defendant's convictions are set forth in detail in our prior unpublished opinion, they need not be repeated here except as relevant to the issues raised by defendant in this appeal.

Upon remand, defendant sent the court an affidavit in which he again stated that he wanted to represent himself. Standby counsel from the OPD was appointed and appeared at a hearing scheduled for August 23, 2006. The trial court conducted a Crisafi*fn1 hearing. The trial court inquired how far defendant had gone in school. Defendant responded that he completed about a year and a half of college. Asked about the prior trial, defendant stated he was not competent to proceed in that trial without standby counsel to aid and advise him. In response to questioning, defendant stated he understood the charges against him and the elements of all the charges and the various defenses available to him like alibi, diminished capacity, mistake, and duress, all of which did not apply to his case. The judge informed defendant he was facing the same previously imposed sentence and asked defendant if he understood the penalties he was facing. He responded, "Yes, sir. . . I'm serving 14 years. I'm well aware of that." The judge asked defendant whether he was ever diagnosed with a learning disability or treated for an emotional illness or psychiatric problems. Defendant answered that he had not. The judge informed defendant he would be bound by the Rules of Evidence at trial and the Rules of Criminal Procedure, with which he lacked familiarity. Defendant admitted he understood all of this. Furthermore, the trial court clarified for defendant that his standby counsel could only serve to answer any questions defendant had, but standby counsel could not ask or raise questions for defendant. The court reminded defendant that he had a right to remain silent and that by acting as his own attorney "a jury or fact finder may infer from the questions that [he] [has] knowledge of incriminating evidence not derived from police reports or . . . [t]hey may think that [he] [was] a participant." Defendant stated he understood this and understood that such an inference could prejudice him. The court also reminded defendant that his lack of knowledge could impair his ability to represent himself and that a trained lawyer would be much better suited to defend him.

Even after urging from the trial court that he should not defend himself without a lawyer, defendant stated it was his voluntary desire to represent himself.

The court conducted an evidentiary hearing over the course of nine days on defendant's motion to suppress evidence seized from his apartment at the time of his arrest. Defendant represented himself and had standby counsel from the OPD present for all proceedings.

Officers Daryl Bagnuolo, Kevin Pell and John Inglese of the Bergen County Sheriff's Office testified about the events of the evening of September 11, 1998. Bagnuolo and Pell were directed to defendant's residence in Rutherford to assist Inglese in arresting defendant on an active warrant. The three officers approached defendant's door on the ground floor. After Inglese knocked or rang the door bell, defendant came to the door but did not open it all the way. Inglese informed defendant there was a warrant from Leonia. Defendant denied his identity, denied ever being in Leonia and said, "You have the wrong guy. I'm not the guy." The officers tried "to explain to him that if it wasn't him [they] would bring him back to his apartment but for now [they] had to take him into custody and bring him down to headquarters." Defendant continued to protest.

Eventually defendant agreed to go with the officers but stated he first needed to go back up to his apartment to get his shoes. Inglese informed defendant that the officers would need to accompany him upstairs to get his shoes. Defendant protested that his girlfriend was upstairs naked. Defendant persisted in his objection to the officers coming into the apartment and started "to get loud, boisterous . . . [and] very agitated." The officers told defendant to tell his girlfriend to either put clothes on or go into the bathroom because they were going up with him. Bagnuolo testified that defendant then attempted to close the door, but Inglese stopped him from doing so by placing his foot and hand on the door.

While the officers were questioning defendant at the apartment door, defendant's neighbor, Norman Broulliard, opened his interior door. Bagnuolo opened the screen door and "advised him that he could go back inside, that everything [was] ok." According to Bagnuolo, Broulliard "was obviously intoxicated[,]" because he "could smell the odor of alcohol[,]" and told Bagnuolo that he did not think defendant was home even though Inglese was having a conversation with defendant right there. Broulliard went back inside and shut the door. When he testified at the hearing, Broulliard admitted he had no knowledge of what happened between defendant and the officers prior or subsequent to what he observed.

The officers told defendant they were going to arrest him. Defendant became further agitated and pushed Inglese "with both arms forward." The officers tried to grab defendant and defendant began flailing his arms and swatting the officers away, resulting in Bagnuolo being hit with an "open hand in the left side of [his] face and chest." Defendant ran up the stairs into his apartment and the officers pursued him. Officer Bagnuolo testified that defendant was able to cross his living room and was subdued by the officers at the threshold between the living room and bedroom. Inglese tackled defendant to the ground face forward while Pell grabbed his arms and Bagnuolo handcuffed him. Defendant "continued to resist" and "was very uncooperative."

After defendant was handcuffed, Officer Inglese told the other officers that there were two guns on the bed in the bedroom. Bagnuolo confirmed this observation when he looked up at the bed and Inglese then moved the guns up on the bed to be further away from defendant. Bagnuolo also noticed "clear, ziploc bags on the bed . . . and . . . a spoon with white residue . . . on the dresser in the room."

The officers then escorted defendant out of the apartment. Defendant was complaining, "I can't feel my fuckin' hands, can you loosen the handcuffs?" Bagnuolo stopped at the bottom of the stairs to readjust the handcuffs. As defendant was being escorted to the car with Bagnuolo holding one arm and Inglese holding the other, defendant remained uncooperative and irate, and was making lunging motions. Defendant ended up falling to the ground, chest first. The officers tried to calm him down before picking him up by each arm and bringing him to the car. Defendant was patted down for weapons and then placed in the police car. After detectives arrived at the scene, Inglese accompanied them into the apartment, where they seized the weapons. Defendant was then transported to the Sheriff's Office. Keys to safe deposit boxes at two banks were among defendant's personal property inventoried at the time of his arrest.*fn2

At the suppression hearing, the parties stipulated to the testimony given by Rosemary Gordon, one of defendant's neighbors, in the prior suppression hearing. Gordon stated that she looked out the window after hearing a loud noise and shouting.

Someone was on the ground, and it looked like there were two policemen around the person who was on the ground. And the individual that was on the ground was shouting, Norman, Norman, close my door, don't let them in.

I looked for a few minutes, and . . . I do remember or do believe that the person that was on the ground was taken away towards a car, and then I just walked away from the window.

Two other neighbors, John and Patrick Drury, also testified that they looked out the window after hearing a commotion in the courtyard. John Drury testified that he saw defendant "being escorted by the police, handcuffed to the squad car that was parked in the street . . . ." Patrick Drury, then twelve years old, saw the officers outside and returned to watching television. A little while later he got back up and saw that defendant was being taken away. Patrick gave conflicting testimony as to whether he saw defendant being handcuffed or whether he was already in handcuffs when he observed him. Patrick also admitted that he did not see what transpired between the door to defendant's apartment and when defendant fell on the ground between the apartment and the police car.

Another neighbor, Amy Cordo, gave a statement to private detective Richard Childs about the events of September 11, 1998, and later recanted, claiming she had been coerced into giving the statement. In the statement, Cordo indicated that she saw the officers talking to defendant in front of his apartment, after which a scuffle ensued and the officers handcuffed defendant. According to Cordo's statement, defendant then said to Brouillard, "they're taking me in, will you lock up my apartment." Cordo testified that in November 2002, she wrote a letter to the prosecutor indicating that she signed the statement under duress. She further testified that she did not know when defendant was handcuffed and assumed he was handcuffed because his hands were behind his back.

Jeffrey Fogel, Esq., defendant's prior attorney, hired Childs. Fogel testified that after receiving Cordo's statement, he called her to discuss it. Cordo was adamant with Fogel about not wanting to testify. Fogel further testified that during one of his conversations with Cordo, she indicated that, if there had been a scuffle between the officers and defendant in his apartment, she would have heard it because the walls between the apartments were very thin. Richard Childs denied any coercion of Cordo.

The trial court found the officers' testimony consistent and corroborated by Patrick Drury's testimony. As to the conflict with Brouillard's testimony, the court found "the officers' testimony as to the timing" more credible. The court accepted the testimony of the officers and determined the search was valid; that defendant "created the situation [which] required the officers to follow him upstairs in order to make that arrest." The motion to suppress was therefore denied.

Defendant pled guilty pursuant to a plea agreement to five counts of the indictment: possession of controlled dangerous substance (count four), resisting arrest (count five), unlawful possession of a weapon without a permit (count eight), unlawful possession of a weapon without a permit (count nine), and unlawful possession of a firearm by a convicted felon (count eleven). The plea form stated that the prosecutor had agreed to recommend the following sentence: "8 YEARS NJSP (FLAT -AGGREGATE TERM)." The court imposed a sentence of four years on count four; eighteen months on count five; three years on count eight; three years on count nine; and eighteen months on count eleven. The three-year sentence on count eight was to be consecutive to the four-year sentence imposed on count four. All other sentences were concurrent. As a result, the aggregate sentence imposed was seven years. Appropriate fines and penalties were also imposed.

Defendant raises the following issues in the brief submitted by his counsel:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS AS THE STATE FAILED TO INTRODUCE COMPETENT EVIDENCE THAT THERE EXISTED A VALID WARRANT FOR DEFENDANT'S ARREST, THUS RENDERING THE SEARCH MADE INCIDENT TO THE ARREST UNLAWFUL AND IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE FOURTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPH 7, OF THE N.J. CONSTITUTION. (NOT RAISED BELOW)

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS AS THE EVIDENCE INTRODUCED AT THE SUPPRESSION HEARING CLEARLY DEMONSTRATED THAT DEFENDANT WAS ARRESTED ON THE LAWN OF THE APARTMENT BUILDING AND THAT THE OFFICERS' SUBSEQUENT ENTRY INTO AND WARRANTLESS SEARCH OF DEFENDANT'S APARTMENT COULD NOT BE JUSTIFIED AS A SEARCH INCIDENT TO ARREST; U.S. CONST. AMEND IV; N.J. CONST., ART. I, PAR. 7

POINT III

THE TRIAL COURT ABUSED ITS SENTENCING DISCRETION BY IMPOSING CONSECUTIVE SENTENCES WITHOUT CONSIDERING THE APPLICABILITY OF THE YARBOUGH*fn3 GUIDELINES

POINT IV

THE TRIAL COURT FAILED TO CONDUCT THE NECESSARY SEARCHING INQUIRY TO DETERMINE WHETHER DEFENDANT COULD REPRESENT HIMSELF FOR PURPOSES OF THE MOTION TO SUPPRESS (NOT RAISED BELOW)

In defendant's supplemental pro se brief, he raises these arguments:

POINT I

DENIAL MOTION TO SUPPRESS

A. THE MOTION COURT'S BIAS

B. THE CREDIBILITY OF THE ARRESTING OFFICERS

C. DISINTERESTED WITNESSES After carefully reviewing the record and briefs, we are satisfied that none of these arguments have merit.

Defendant argues that the denial of his motion to suppress must be reversed because no "competent evidence" was introduced to prove there was a valid warrant for his arrest. Specifically, defendant argues that because the search of his apartment was based on the "search incident to arrest" exception to the warrant requirement, a valid arrest warrant must have been proven before the exception could apply.

Significantly, defendant raises this argument for the first time on appeal. In State v. Robinson, 200 N.J. 1 (2009), the Supreme Court found that the defendant had failed to preserve his complaints concerning the execution of a challenged warrant for appellate review because he had not presented them to the trial court, stating:

Appellate review is not limitless. The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves . . . . [W]e have insisted that, in opposing the admission of evidence, a litigant must "make known his position to the end that the trial court may consciously rule upon it." This is so because "[t]he important fact is that the trial court was alerted to the basic problem[.]" In short, the points of divergence developed in proceedings before a trial court define the metes and bounds of appellate review. [Id. at 19 (internal citations omitted).]

Although defendant argued with the arresting officers that the arrest warrant must have been issued in error, he posed no objection to the testimony of the officers at the hearing that there was an active warrant for his arrest. Therefore, he did not flag this claimed deficiency in the evidence to the trial court and did not preserve it for appellate review.

Nevertheless, we are satisfied that the State presented sufficient evidence to establish there was an outstanding warrant for defendant's arrest. The State presented hearsay evidence through Officers Bagnuolo and Pell that there was an outstanding warrant for defendant's arrest, the basis for considering the search and seizure here as a search incident to an arrest. Defendant's argument that "competent" evidence was required lacks merit because the State was not required to present evidence regarding the arrest warrant that was admissible pursuant to the rules of evidence. N.J.R.E. 104(a).

Defendant also challenges the trial court's factual findings, specifically, the findings supporting the court's conclusion that defendant was arrested inside the apartment.

When reviewing a decision on a motion to suppress, we "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," State v. Johnson, 42 N.J. 146, 164 (1964), and 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. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010) (quoting State v. Elders, 192 N.J. 224 (2007)), aff'd, 206 N.J. 39 (2011). We will disturb those findings "only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid.

In this case, the trial judge's conclusion was supported by the testimony of the police officers, whose testimony he found both credible and supported by the testimony of Patrick Drury. Defendant argues that his actual arrest occurred outside the building on the courtyard lawn and that this conclusion was supported by the testimony of the impartial witnesses called by the defense. However, each of those witnesses observed only a portion of the interaction between defendant and the officers. None of the alleged "impartial witnesses" was absolutely certain they saw defendant being handcuffed. Many of them only testified to seeing defendant on the ground in the courtyard and not to seeing the actual act of the officers placing the handcuffs on defendant. The testimony of defendant's neighbors fits squarely with the officers' testimony that defendant fell to the ground while they were escorting him to the police car.

The court's fact finding was, therefore, adequately supported by credible evidence and will not be disturbed.

Defendant next argues that his sentence must be vacated because the trial court failed to explicitly address the factors set forth in Yarbough, supra, 100 N.J. at 643-44, before imposing consecutive sentences.

As a preliminary matter, we note that defendant pled guilty to three third-degree offenses and two fourth-degree offenses. Therefore, the maximum exposure on any one charge was five years' imprisonment. However, defendant accepted a plea agreement that permitted the State to recommend an "aggregate" sentence of eight years. The court imposed only one consecutive sentence. The three years imposed on count eight (unlawful possession of a semi-automatic pistol) was consecutive to the four-year sentence imposed on count four (possession of controlled dangerous substance). All the other sentences were concurrent. As a result, the court imposed an aggregate sentence of seven years, less than the aggregate amount in the plea agreement.

A "'presumption of reasonableness . . . attaches to criminal sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super. 61, 71 (App. Div. 1996) (quoting State v. Sainz, 107 N.J. 283, 294 (1987)). A "court's decision to impose a sentence in accordance with the plea agreement should be given great respect[.]" Ibid. Furthermore, when deciding to impose a consecutive or concurrent sentence, "[a] plea agreement can appropriately be considered and weighed" as a factor in that decision. Ibid. By accepting a plea agreement that permitted the State to recommend a flat sentence longer than the maximum exposure on any one of the charges, defendant implicitly acknowledged that it would not be unreasonable for the court to impose a consecutive sentence.

Moreover, the charges that were the subject of the consecutive sentence are independent of one another. There is no commonality between possession of cocaine and unlawful possession of a handgun. The cocaine was seized in defendant's apartment on the day of his arrest, while the pistol was not seized until September 25, 1998, when detectives searched defendant's safe deposit box at First Union Bank. The crimes were, therefore, committed at different times and at different places, and should not be considered as "being committed so closely in time and place as to indicate a single period of aberrant behavior." Yarbough, supra, 100 N.J. at 644. Therefore, although the court did not explicitly address the Yarbough factors, we discern no abuse of discretion in the imposition of a consecutive sentence.

Defendant also contends, for the first time on appeal, that the trial court failed to conduct the necessary inquiry to determine whether he could represent himself at the suppression hearing. Although defendant did not preserve this issue for appeal, we have noted the extensive inquiry conducted by the court and are satisfied that the court reviewed all necessary issues with defendant. See State v. Dubois, 189 N.J. 454, 468-69 (2007); State v. Reddish, 181 N.J. 553, 594 (2004); Crisafi, supra, 128 N.J. at 510-12.

We are satisfied that defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.


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