June 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PETER KLAH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 07-06-0681 and 06-02-0157.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2012
Before Judges Carchman, Baxter and Maven.
Following an unsuccessful motion to suppress and a jury trial, defendant Peter Klah*fn1 was found guilty of first-degree murder, N.J.S.A. 2C:11-3a(2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree theft by receiving stolen property, N.J.S.A. 2C:20-7, 2C:2-6; and third-degree possession of a controlled dangerous substance with intent to distribute on or near school property, N.J.S.A. 2C:35-7, 2C:2-6. After appropriate mergers, the trial judge sentenced defendant on the murder charge to an aggregate minimum term of seventy-five years' imprisonment, subject to an eighty-five percent minimum period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The sentences on the other convictions were to run concurrent to the sentence imposed on the murder conviction. Defendant appeals, and we affirm.
These are the relevant facts adduced at both the hearing on the motion to suppress and the trial. Trenton Police Detective Matthew Przemieniecki and his partner, Officer Joseph D'Ambrosio, were driving an unmarked police patrol car near the intersection of Monmouth and Clinton Streets in Trenton on October 24, 2006, at 11:09 p.m., when Przemieniecki heard a gunshot and saw the muzzle flash of a gun being fired by defendant Peter Klah. According to Przemieniecki, after hearing the gunshot and turning his head to the right in the direction of the gunshot sound, he put his car in reverse to turn down Monmouth street. He then had an unobstructed view as he watched defendant fire a handgun at a man running down the sidewalk, who was later identified as the victim, Charles Bennett. Przemieniecki then observed defendant enter a silver Buick. Przemieniecki radioed surrounding units and headquarters, relaying what he had witnessed and indicating that the shooter was traveling down Monmouth Street in a silver Buick. A marked police car, driven by Officer Samuel Gonzalez, pulled into the intersection of Walnut and Monmouth Streets to cut off the silver Buick's path.
Upon exiting his vehicle, Przemieniecki approached the driver's side of the silver Buick with his weapon drawn; his partner approached the passenger side. According to Przemieniecki, he "approach[ed] the vehicle[,] . . . opened the driver-side door and removed the driver Chad Dillard from the vehicle." At the suppression hearing, Przemieniecki related the events that followed.
Q: Were you able to get the occupants out? A: Yes. . . .
Q: And were both occupants asked out of the -- removed from the vehicle at that point?
A: They were.
Q: Now, initially when the occupants were removed from the vehicle, were they patted down for your safety?
Q: Were any weapons located on Dillard at that point?
A: No . . .
Q: After the occupants were removed from the vehicle, . . ., were the doors left open or closed?
A: They were left open. . . .
Q: What did you do next?
A: Once . . . both occupants were secured, they were put into police vehicles, made sure the car was secured and [I] basically just stood by to make sure everything was . . . the whole scene was secured . . .
Q: After those two individuals were secured, did you have occasion to look in the interior of the vehicle?
A: Yes, we did.
Q: And particularly why did you look in the vehicle?
A: Again, because we just saw an individual enter that same vehicle that just got done firing a handgun so --
Q: And no weapons were found on the occupants as you got them out?
A: Absolutely . . . .
Q: When you looked in the vehicle, what if anything did you see?
A: Saw a clear bag.
Q: And based on your training and experience, what did the bag look to have . . . or contain . . .
A: It looked to contain suspected CDS marijuana. . . .
Q: In addition to the CDS, Detective, did you observe any other contraband in the vehicle at that time?
Q: And what did you observe?
A: Handle of what appeared to be a handgun.
Przemieniecki did not touch or seize either item of contraband, and a search warrant for the car was subsequently obtained. Detective Thomas Ertel, an employee of the Trenton Police Department Crime Scene Unit, responded to the scene of the shooting, photographed the scene and removed the handgun and marijuana from the car. Additionally, Detective Mark Berkeyheiser, also from the Trenton Police Department Crime Scene Unit, recovered four shell casings from the sidewalk in the area where Przemieniecki had observed defendant standing.
Officer Douglas Moreland heard the radio call about shots being fired and headed to the area to determine if anyone had been struck. He observed a female screaming and pointing to a black male, later identified as Charles Bennett, lying face down in the street. Bennett was dead.
Dr. Raafat Ahmad, the Mercer County medical examiner, performed an autopsy on the victim's body and found the victim had been shot four times. At trial, Dr. Ahmad testified that the cause of death was perforating gunshot wounds to the heart and lungs. She opined that the manner of death was "homicide."
The handgun retrieved from the vehicle, the spent shell casings, and the bullet recovered from the victim's body were forwarded to the New Jersey State Police Laboratory. Detective James Ryan, a firearms expert employed as a supervisor in the New Jersey State Police ballistics unit opined that the bullet and shell casings recovered from the crime scene were fired from the weapon found in the vehicle.
At the hearing on the motion to suppress, defendant argued that the contraband was not in plain view; he also challenged the constitutionality of his seizure on the grounds that the police lacked probable cause to stop him. Judge Kelly denied the motion, concluding:
I just don't find there's any justification for me to find that there was a violation of constitutional rights here by the stop and seizure of these two parties under the totality of these circumstances here . . . [there was] a particularized suspicion that at least when you see somebody shooting a handgun in the middle of the street after 11 o'clock at night in the City of Trenton, . . . at someone who was running down the street, there's enough there in my opinion to justify that stop.
The jury found defendant guilty on all counts of the indictment. This appeal followed.
On appeal, defendant asserts:
THE MOTION COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS BECAUSE DETECTIVE PRZEMIENIECKI'S TESTIMONY WAS A PRETEXTUAL FICTION DESIGNED TO CONCEAL HIS INITIAL UNLAWFUL WARRANTLESS SEARCH OF THE VEHICLE.
THE TRIAL COURT ERRED IN CHARGING FLIGHT, AND ITS FAILURE TO PROVIDE THE JURY WITH A CONTEXT TO APPLY THE DOCTRINE DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
COMMENTS MADE BY THE PROSECUTOR IN HIS OPENING STATEMENT SUBSTANTIALLY PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
DR. AHMAD'S TESTIMONY THAT HE [SIC]
DETERMINED THE MANNER OF DEATH TO BE HOMICIDE WAS PLAIN ERROR (NOT RAISED BELOW).
THE [SEVENTY-FIVE-YEAR] SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF THE COURT'S SENTENCING DISCRETION.
Defendant also filed a pro se supplemental brief, in which he contends that the trial judge erred in permitting the State to admit crime scene photographs without a proper foundation for the admission of such evidence.
We first address the motion to suppress and set forth our standard of review. When reviewing a trial court's decision on a motion to suppress, we will "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. Elders, 192 N.J. 224, 243 (2007) (internal citation omitted); see also State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990) (concluding that the trial judge's findings to support the denial of a motion to suppress could reasonably be reached based on sufficient credible evidence in the record). We will defer to factual findings that are substantially influenced by the trial court's ability to hear witness testimony and make judgments as to credibility. Elders, supra, 192 N.J. at 243.
Although the State ultimately obtained a warrant, defendant asserts that the initial viewing of the interior of the vehicle, at which point the contraband was observed, was an unconstitutional warrantless search.
Warrantless searches and seizures are presumptively invalid. State v. Mann, 203 N.J. 328, 337 (2010); State v. Pineiro, 181 N.J. 13, 19 (2004). A search without a warrant will be deemed invalid unless it falls within one of the well-established exceptions to the warrant requirement. Mann, supra, 203 N.J. at 340. Under the plain view exception, the State must prove three factors:
First, the police officer must be lawfully in the viewing area.
Second, the officer has to discover the evidence [']'inadvertently,'['] meaning that he did not know in advance where evidence was located nor intend beforehand to seize it. Third, it has to be [']'immediately apparent'['] to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure. [Id. at 340-41 (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983)).]
Here, Przemieniecki indicated that he heard a gunshot and saw defendant standing in a shooting position in the street.
Przemieniecki further claimed to have seen defendant stop firing and another man running away; he also maintained that defendant looked at him as defendant entered his vehicle. Judge Kelly found that Przemieniecki never lost sight of defendant as the officers pursued defendant's car.
These findings support the conclusion that Przemieniecki was lawfully in the area because he had "specific and articulable facts which, taken together with rational inferences from those facts, [gave] rise to a reasonable suspicion of criminal activity." State v. Nishina, 175 N.J. 502, 511 (2003) (internal quotation marks and citations omitted). The factors also support a finding that Przemieniecki had probable cause to arrest defendant.*fn2 Probable cause exists "where the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant 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) (citations omitted). Przemieniecki witnessed a crime in progress. His presence at the vehicle in which defendant was a passenger was lawful.
There is no evidence presented from which to infer that Przemieniecki had prior knowledge that there was marijuana in the car. State v. Lane, 393 N.J. Super. 132, 146-47 (App. Div.), certif. denied, 192 N.J. 600 (2007). Defendant was stopped because Przemieniecki had witnessed him firing a weapon at someone; one of Przemieniecki's reasons for stopping defendant was to determine where the gun was. Defendant was removed from the car, patted down for weapons, and secured, but the detective did not find the gun on his person. Przemieniecki could reasonably believe there would be a gun in the vehicle. His subsequent scanning of the vehicle cannot be deemed a pretext. Cf. Lane, supra, 393 N.J. Super. at 146-49.
The plain view doctrine requires that the item in plain view be readily apparent as one relating to criminal activity, id. at 149; in other words, the police must have probable cause to associate the seized item with criminal activity. Mann, supra, 203 N.J. at 341. Przemieniecki indicated that after the occupants of the vehicle were removed and he visibly scanned the vehicle, he noticed what looked like the butt of a handgun underneath the seat where defendant had been sitting, as well as a bag of what appeared to be marijuana. Having just witnessed defendant firing a weapon, Przemieniecki, had probable cause to believe that the weapon was associated with criminal activity.
The detective was confronted with a situation where a weapon that had been the subject of an observed shooting was not yet found. Even without applying a plain view analysis, we cannot fault the detective for making a cursory investigation through an open door for the purpose of finding the weapon. A shooting had just taken place and securing the weapon was critical. Even with defendant secured, we find no basis to question the stop or the observation. We reject defendant's arguments that defendant's arrest and the seizure of evidence from the car violated his constitutional rights.
We next address the issue of the jury charge regarding flight. Defendant objected to that portion of the jury instruction which informed the jury that if it found that defendant had fled the scene, it could infer from that act a consciousness of guilt. Defendant contends the jury instruction on flight was error, as he did not flee.
Evidence of flight is generally admissible because it tends to demonstrate a consciousness of guilt and is regarded as probative of guilt. State v. Mann, 132 N.J. 410, 418 (1993). A mere departure from the area does not, however, imply guilt. State v. Sullivan, 43 N.J. 209, 238 (1964). For a departure to constitute flight, "there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." Id. at 238-39. A jury may find that a defendant fled the scene of a crime by finding that he or she left intending to avoid apprehension for that crime. State v. Wilson, 57 N.J. 39, 49 (1970). The propriety of admitting evidence of flight and charging the jury on flight depends on the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. [State v. Latney, 415 N.J. Super. 169, 176 (App. Div. 2010).]
In Latney, we concluded that the trial court erroneously charged the jury on flight because there was no evidence that the defendant's flight resulted from consciousness of guilt for the crime charged as opposed to consciousness of guilt for another crime previously committed. Id. at 176-77.
The facts in the record show that defendant left the scene and did not respond when the detective activated his overhead lights. He did not stop while Przemeiniecki pursued him en route until another patrol car cut it off.
We are satisfied that the charge was not erroneous. Although the issue of flight was contested, ultimately, the jury could make a finding as to the nature of defendant's conduct.
As to the prosecutor's opening statement, as well as the medical examiner's testimony, in both of which the cause of death was characterized as homicide, we first note that defendant did not object to either the opening statement or the testimony. As a result, our consideration of these arguments is guided by the plain error standard. R. 2:10-2; State v. Black, 380 N.J. Super. 581, 592 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006).
The plain error standard dictates that a conviction will be reversed only if an error was "clearly capable of producing an unjust result." State v. McGuire, 419 N.J. Super. 88, 106 (App. Div.), certif. denied, 208 N.J. 335 (2011). There must be a reasonable doubt as to whether the jury would have reached the same conclusion had the error not occurred. Ibid. Generally, if the defendant did not object to the remarks, they will not be considered prejudicial. State v. Atwater, 400 N.J. Super. 319, 337 (App. Div. 2008).
In neither instance do we find the arguments meritorious. Nor do we find any merit in the argument raised in defendant's pro se brief. R. 2:11-3(e)(2). We add the following comments.
Prosecutors are tasked with striking a "balance between promoting justice and achieving a conviction." State v. Williams, 113 N.J. 393, 447 (1988). Opening remarks geared solely at eliciting an emotional response from the jury are inappropriate because they tend to shift the focus away from the evidence, thereby producing a result fueled by the jurors' emotions rather than an independent review of the State's evidence. Black, supra, 380 N.J. Super. at 594-95 (finding a prosecutor's summation that discussed how medical examiners had to remove the organs from a child's body to determine the cause of death to be inappropriate because it was intended to appeal to the jurors' emotions). The Court has recognized that "criminal trials are emotionally charged proceedings. A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall. He is entitled to be forceful and graphic in his summation to the jury, so long as he confines himself to fair comments on the evidence presented." State v. Frost, 158 N.J. 76, 83 (1999) (citation omitted).
The prosecutor's language*fn3 was evidently designed to create a vivid mental image of the events that took place on October 24, 2006, but it did not mischaracterize the evidence. Cf. Frost, supra, 158 N.J. at 85. On the contrary, the prosecutor's opening remarks were consistent with evidence introduced during the trial. Even if these remarks overstated the prosecution's case, we conclude that the remarks were incapable of producing an unjust result. Cf. Atwater, supra, 400 N.J. Super. at 337.
We reach the same result regarding defendant's argument that his right to a fair trial was prejudiced by the medical examiner's testimony that the cause of death was homicide. Defendant did not object to the medical examiner's testimony; therefore, his argument on appeal must be viewed utilizing the plain error standard. State v. Baluch, 341 N.J. Super. 141, 184-85 (App. Div.), certif. denied, 170 N.J. 89 (2001).
In Baluch, in response to an argument identical to that which defendant advances here, we concluded that the medical examiner's testimony that the cause of death was homicide "was the functional equivalent of ruling out the possibility that [the victim's] multiple injuries were self-inflicted or sustained as a mere result of inadvertence (i.e., accident)." Id. at 185. We explained that the testimony "was neither the expression of a forbidden lay opinion unnecessary to the determination of a fact in issue within the ken of an average juror, nor a prohibited direct opinion that defendant was guilty of any form of homicide. Rather, it was a legitimate expert opinion that the instrumentality and manner of [the victim's] death were . . . a human agency [and] . . . another human being." Ibid.
This is not an instance in which the medical examiner expressed a direct opinion as to defendant's guilt. Here, the medical examiner did not testify that defendant murdered or recklessly caused the death of the victim. Instead, the medical examiner's testimony supported a finding that the victim's death was caused by another human being, by excluding all other possible causes of death, such as natural causes or self-inflicted wounds. See State v. Odom, 116 N.J. 65, 77 (1989). Cf. State v. Jamerson, 153 N.J. 318, 337-41 (1998) (finding testimony that a death was "homicide" to be inappropriate and restricting a forensic pathologist's testimony to the subject of mechanics of death).
Moreover, any error arising from Dr. Ahmad's testimony was harmless. Even if the medical examiner's testimony were excluded the evidence was unrefuted that the victim died of four gunshot wounds, which a police officer observed defendant inflicted on the victim.
Finally, we address the issue of sentencing. Defendant argues that his sentence is excessive and represents a clear misapplication of the trial court's sentencing discretion because the court did not "place on the record a qualitative analysis of its reasons why the aggravating factors present merited the imposition of the extra-minimum sentence."
Criminal sentences are subject to limited appellate review. State v. Cassady, 198 N.J. 165, 180 (2009). Despite this limited review, "'appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts[.]'" Ibid. (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In reviewing a defendant's sentence, we may not substitute our own judgment for that of the trial court. Cassady, supra, 198 N.J. at 180. We must assess the trial judge's application of aggravating and mitigating factors to determine whether it is based on substantial credible evidence in the record. State v. Bieniek, 200 N.J. 601, 608 (2010). We will modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).
In sentencing defendant, Judge Billmeier applied the following factors: the nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1); the risk that defendant would commit another offense; N.J.S.A. 2C:44-1a(3); the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1a(6); and the need to deter him and others from violating the law, N.J.S.A. 2C:44-1a(9). He found no mitigating factors. He then sentenced defendant to seventy-five years' imprisonment for first-degree murder.
Judge Billmeier's findings regarding the aggravating and mitigating factors are supported by substantial credible evidence in the record. Judge Billmeier recited, on the record, defendant's criminal history, which included charges filed against defendant on twenty-six occasions, resulting in eight municipal court convictions, two New Jersey Superior Court convictions, one North Carolina misdemeanor, and five Pennsylvania convictions, four of which were misdemeanors. For these various infractions, defendant received fines, the loss of his driver's license, probation or confinement in county jail. The judge's conclusion that aggravating factors (1) and (3) were present is supported by substantial credible evidence. Judge Billmeier's conclusion that aggravating factor (9) applied is likewise supported by substantial credible evidence. The judge found that defendant "led a life . . . where you constantly disregard the rules and laws of our society." The judge's finding of no mitigating factors is also supported by the record. While defendant does have a daughter, the judge concluded defendant was not her sole caregiver and, noted that he had a substantial arrearage in child support payments.
The seventy-five year sentence is within the statutorily permitted range for first-degree murder. N.J.S.A. 2C:11-3b(1). The sentence imposed does not shock the judicial conscience.