May 23, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RASHAD M. HAYES A/K/A NITTY HAYES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-12-1615.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 17, 2012
Before Judges Payne and Simonelli.
A grand jury indicted defendant Rashad Hayes for third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count one), and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (count two). A week before the trial, the trial judge gave defendant a Hudson*fn1 warning, and advised him when the trial would begin. Defendant failed to appear for trial and was tried in absentia. Prior to the commencement of the trial, the State dismissed count one and proceeded to trial on count two. The jury found defendant guilty on count two. The trial judge sentenced defendant to a five-year term of imprisonment with a five-year period of parole ineligibility, and imposed the appropriate assessments and penalty. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I - THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION TO SUPPRESS, FOR DEFENDANT WAS UNLAWFULLY DETAINED BY POLICE, AND HIS SUBSEQUENT ARREST ON THE OUTSTANDING WARRANT WAS AN INVALID RESULT OF THAT DETENTION.
POINT II - THE TRIAL COURT IMPROPERLY APPLIED THE PRINCIPLES OF STATE V. BROWN ONCE IT PERMITTED THE PROSECUTOR UNILATERALLY TO DISMISS COUNT ONE OF THE INDICTMENT, THE CHARGE OF UNLAWFUL POSSESSION OF A WEAPON. (Not raised below). POINT III - DEFENDANT'S ABSENCE FROM THE TRIAL WAS IMPROPERLY EMPHASIZED BY THE TRIAL COURT DURING ITS INITIAL CHARGE TO THE JURY AND WAS NOT REMEDIED BY SUBSEQUENT INSTRUCTION OR CHARGE.
We reject these contentions, and affirm.
Defendant contends in Point I that the trial judge should have granted his motion to suppress the handgun found in his back pocket after his arrest. He argues that his detention and arrest were unlawful because the police lacked reasonable suspicion that he was engaged in criminal activity. We disagree.
Lieutenant Robert Hess (Lt. Hess) of the Edgewater Park Police Department testified at the suppression hearing that at approximately 11:00 a.m. on June 25, 2007, he was dispatched to the Arbor Green Condominium Complex (the complex) after Police Officer Herkoperec advised that Ed Abriola, the complex's caretaker and maintenance man, called to report a "black male in the complex who was walking in circles and screaming into a cell phone." Abriola also reported that an employee of the complex had to leave the area because he was afraid.
Lt. Hess had known Abriola for twenty-five to thirty years. He testified that [Abriola] didn't call [the police] very often, only on certain cases that he couldn't handle himself. He was the type of guy who didn't back down from anybody and can handle himself. He has a lot of pride and he doesn't like to bother [the] police department with calls he thinks he can handle himself.
Lt. Hess responded to the complex approximately one minute after Abriola's call and Officer Herkoperec responded shortly thereafter. When Lt. Hess arrived at the complex he saw "a tall thin black male wearing a white shirt, blue pants, and he was yelling into a cell phone." The man, later identified as defendant, "[a]ppeared agitated, excited" and "was walking pretty quickly."
Lt. Hess stopped his patrol car approximately twenty to thirty feet away from defendant. As he exited the car, he yelled to defendant and asked him what was going on and to come in the officer's direction. Defendant started walking in Lt. Hess's direction and Lt. Hess walked to meet him. Defendant told Lt. Hess he was "having an argument with his girl on the phone." Lt. Hess observed that defendant was "agitated, irritated and he appeared to be sweating." In response to Lt. Hess's questions, defendant provided his name, date of birth, and Social Security number, and said that he lived in Willingboro. Lt. Hess asked defendant why he was walking through the complex, which was private property, if he lived in Willingboro. Defendant responded that he "was just walking and talking on the phone."
Lt. Hess asked defendant to "stand by" with Officer Herkoperec as he called a dispatcher to verify defendant's information. He then used the computer in his patrol car to ascertain if there were any pictures of defendant and to verify defendant's information. The computer search revealed "several mug shot photos" of defendant. In addition, the dispatcher reported that defendant had an outstanding warrant out of Burlington City.
Lt. Hess advised defendant that he was under arrest for the outstanding warrant. As he and Officer Herkoperec were attempting to handcuff defendant, defendant said that "he wanted to be honest with [the officers] and told [the officers] he had a handgun [in] his back pocket." Defendant volunteered this information -- it was not in response to a question from one of the officers. After handcuffing defendant, Lt. Hess looked into defendant's back, right pocket and "saw the barrel of a small handgun protruding from his pocket," which was later identified as a ".25 caliber Raven Arms semi automatic" handgun. Defendant "was very nervous" during the search and told Lt. Hess that "he was a convicted felon and . . . the gun was not his, he wouldn't carry something like that." Defendant also said that "he found [the gun] along with a blue bandana besides a dumpster in the complex somewhere."
Lt. Hess estimated that approximately twenty seconds had elapsed from the time he arrived at the complex to the time he first saw defendant, and another twenty seconds had elapsed from the time he stopped his patrol car and met up with defendant; he probably spoke to defendant for "maybe three or four minutes" before he went to his patrol car to call the dispatcher; and another ten minutes had elapsed from the time he called the dispatcher and the time the dispatcher reported defendant's active warrant.
The trial judge found that Lt. Hess conducted a proper investigatory stop of defendant based on a reasonable, articulable suspicion that defendant was involved in criminal activity. This articulable suspicion was grounded on Abriola's phone call and defendant's behavior, which the officer had observed.
Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, 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.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Additionally, we afford deference to a trial judge's findings "which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy."
State v. Davila, 203 N.J. 97, 109-10 (2010) (internal citation omitted).
When we are satisfied that the trial court's findings could reasonably have been reached on the record, "[our] task is complete and [we] should not disturb the result, even though [we have] the feeling [we] might have reached a different conclusion were [we] the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). Nevertheless, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then [we] should review 'the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting Johnson, supra, 42 N.J. at 162). "[We] owe no deference to the trial court in deciding matters of law. When a question of law is at stake, [we] must apply the law as [we] understand it." Ibid. (citations omitted).
An investigatory stop will be valid if the police officer had "'a particularized suspicion based upon an objective observation'" that the detained person was involved in criminal wrongdoing. State v. Otero, 245 N.J. Super. 83, 91 (App. Div. 1990) (quoting State v. Davis, 104 N.J. 490, 504 (1986)). "'The articulable reasons or particularized suspicion of criminal activity must be based upon the law enforcement officer's assessment of the totality of the circumstances'" before him. Ibid. The officer's "'observations are those that, in view of the officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonab[ly] warrant the limited intrusion upon the individual's freedom.'" Ibid.
Our review of the record satisfies us that, based on the totality of the circumstances, Lt. Hess had an objectively reasonable suspicion that defendant was engaged in criminal disorderly conduct, and therefore, justifiably conducted an investigatory stop. Defendant was on private property where he had no reason to be, and he was acting in a such an alarming manner as to frighten a complex employee and cause a reliable citizen to call the police. Lt. Hess observed defendant's conduct and demeanor, and had a duty to investigate possible criminal behavior. See Davis, supra, 104 N.J. at 499-500. Accordingly, the judge properly denied defendant's motion to suppress.
Defendant contends for the first time on appeal in Point II that the judge improperly applied State v. Brown, 180 N.J. 572 (2004), in dismissing count one charging unlawful possession of a weapon, but permitting unsanitized evidence of defendant's prior convictions in a unitary trial of the charge of possession of a weapon by a convicted felon. Defendant argues that, by depriving the jury of the opportunity to consider the charge of unlawful possession of a weapon before receiving evidence of his prior conviction, he was unfairly prejudiced. We review a decision to dismiss a charge under an abuse-of-discretion standard. State v. Ward, 303 N.J. Super. 47, 58 (App. Div. 1997).
Because the State moved to dismiss count one before the start of the trial, defendant's consent was not required. R. 3:25-1(b). Nonetheless, defense counsel did not object to the dismissal. Defense counsel also did not object to the admission of a certified copy of defendant's prior judgment of conviction for third-degree burglary, and agreed to the following instruction, which the judge gave to the jury:
Normally evidence of a defendant's prior conviction is not permitted under our rules of evidence. This is because our rules specifically exclude evidence that a defendant has committed a prior crime when it is offered only to show that he has a predisposition or a disposition or a tendency to do wrong and, therefore, must be guilty of the present offense. You recall we went through considerable effort to make sure that that wouldn't be on your mind when you were considering the facts in this case during the voir dire process that led ultimately to your selection. In this case, however, our rules do permit evidence of the prior crime when the evidence is used for some other purpose, and in this case it's used for the specific purpose of establishing an element of the present offense. It's one of the three elements that the State must prove beyond a reasonable doubt. But you may not use this evidence to decide that a defendant has a tendency to commit a crime or that he is a bad person. That is, you may not decide that just because the defendant has committed a prior crime he must be guilty of the present crime.
This instruction is consistent with Brown and Model Jury Charge (Criminal), "Certain Persons Not to Have Any Firearms" (2005). The instruction thoroughly instructed the jury on the limited manner in which they could utilize defendant's prior convictions and their duty to ensure that they did not use this evidence to improperly infer defendant's predisposition to commit the present offense. The judge, thus, did not abuse his discretion in dismissing count one.
Defendant contends in Point III that the judge erred in denying his motion for a mistrial following the judge's preliminary instructions to the jury. The judge had instructed the jury that they were not to speak to anyone affiliated with the trial, including defendant, "if he does show up as he can do if he wants." Defendant argues that this comment highlighted his absence from the trial and prejudiced him. Defendant also contends that the judge failed to cure this error with a subsequent instruction. Defendant's contentions lack merit.
"The grant of a mistrial is an extraordinary remedy to be exercised only when necessary 'to prevent an obvious failure of justice.'" State v. Yough, 208 N.J. 395, 397 (2011) (quoting State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000)). "For that reason, an appellate court should not reverse a trial court's denial of a mistrial motion absent a 'clear showing' that 'the defendant suffered actual harm' or that the court otherwise 'abused its discretion.'" Ibid. (quoting State v. Labrutto, 114 N.J. 187, 207 (1989)). We discern no abuse of discretion here.
Faced with the possibility that the jury would draw an adverse inference from defendant's absence, the judge addressed defendant's absence at the start of the trial. Almost immediately after making the comment to which defendant objected, the judge gave the following cautionary instruction:
He has pleaded not guilty to the charge. He is presumed to be innocent. Unless each and every essential element of the offense charged is proved beyond a reasonable doubt, the defendant must be found not guilty of that charge. And as I already told you he has - - he does not have to offer anything relating to his defense in this case. As I already told you, he's elected not to be here and that if he doesn't want to be here he doesn't have to be here. The burden of proving each element of the charge beyond a reasonable doubt rests upon the State. That burden never shifts to the defendant. It's not the obligation or the duty of the defendant in a criminal case to prove his innocence or to offer any proof relating to his innocence. As I also told you earlier, the fact that he's not here must not be considered by you in assessing whether he's innocent or guilty of this charge. You have to decide that based upon the law that I tell you, that I'm telling you now and the law that I tell you that exists at the end of the case.
The judge also gave the following final instruction:
As you know, the defendant elected not to testify at trial. It is his constitutional right to remain silent. You must not consider for any purpose or in any manner in arriving at your verdict the fact that the defendant did not testify. Similarly, you should not consider that he's not here in arriving at your verdict. That fact - - those two facts should not enter into your deliberations or discussions in any manner at any time. The defendant is entitled to have the jury consider all of the evidence presented at the trial. He is presumed innocent even if he chooses not to testify.
Jurors are presumed to have followed the court's instructions in the absence of evidence demonstrating otherwise. State v. Martini, 187 N.J. 469, 477 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007). There is no such evidence here.
We are satisfied that the judge sufficiently instructed the jury regarding defendant's constitutional right not to be present at trial, and that the jury must not draw any adverse conclusions from his absence. Accordingly, the judge properly denied defendant's motion for a mistrial.