July 17, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD C. HOLMES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-0406.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2012
Before Judges Grall, Alvarez and Skillman.
Tried by a jury, defendant Richard C. Holmes was convicted of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and on June 18, 2010, was sentenced to eight years imprisonment subject to four years of parole ineligibility.
Appropriate fees and penalties were imposed. He appeals and we affirm.
As established during the motion to suppress hearing, the handgun was discovered during a routine motor vehicle stop. On September 16, 2008, at approximately 2:00 a.m., Newark Police Detective James Cosgrove was on patrol working narcotics, accompanied by Detectives Mario DeSilva and Richard Weber. Towards the end of the patrol shift, Cosgrove observed a Pontiac disregard a traffic signal at Thirteenth Avenue and Tenth Street. He signaled the car to stop, activating his lights and siren. The Pontiac "slowly pulled up to the curb and then slowed to a stop[,]" just before Twelfth Street on Thirteenth Avenue. Before defendant, who was driving, stopped the car, he reached into the rear seat area, "fumbling in the back[.]" As a result, since the area of the stop was a "high crime narcotics and weapons area[,]" Cosgrove and the other officers approached the Pontiac cautiously. Although nighttime, the street was well-lit. Cosgrove ordered the driver to sit forward and shut off the vehicle; the passenger, Roshan Coles, kept his hands in front of his body and did not move.
Cosgrove shone his flashlight into the rear of the car to see "if there was somebody ducking down, maybe if there was a weapon being placed on the floor, drugs being stashed in the car, whatever that may be." When he did so, Cosgrove saw that the rear seat was "not all the way folded[,]" and that the butt of a gun, from the trigger to the rear of the weapon, was "wedged in between the seat." The weapon contained one live round in the chamber and five live rounds in the ammunition magazine. Only the driver was arrested and charged,*fn1 as the passenger was not observed reaching into the rear of the vehicle.
When Cosgrove wrote his incident report, he indicated the traffic signal defendant ignored was a stop sign. He acknowledged during the suppression hearing that he was mistaken, as the signal was actually a traffic light.
The judge*fn2 who heard the motion found, among other things, that the officer's mistake as to the type of traffic signal ignored by defendant was inadvertent and inconsequential. He also found, despite "vigorous cross examination[,]" the State's version of events - that defendant ignored a traffic signal and was observed reaching into the rear of the vehicle as his car was signaled to pull over - was "reasonable and believable[.]" Because of the suspicious nature of the behavior, the officer was justified in flashing his light onto the back seat of the Pontiac, and once having seen the handgun, was equally justified in seizing it. The State therefore established by a preponderance of the credible evidence that the warrantless seizure was lawful.
The trial judge conducted a Rule 104 hearing regarding a potential defense witness, Ousmame Ouedraogo,*fn3 who testified that he had tinted the windows on the Pontiac. The car actually belonged to Ramona Addison, the mother of defendant's children. Ouedraogo said that although he completed the job after the date of defendant's arrest in 2008, defendant asked him for a receipt indicating that the job was completed on December 15, 2007.
Defendant attempted to move into evidence at trial an insurance inspection report dated June 18, 2008, regarding the condition of the Pontiac, completed by Addison's insurer, GEICO. Attached to the report were some photographs purporting to depict the vehicle with tinted windows at a date prior to the arrest. Because Addison was the source of the information contained in the GEICO report, and no representative from GEICO was available to testify about it, initially the court did not find the report to be a business record within the meaning of the rule. See N.J.R.E. 803(c)(7). The State also objected to the admission of the report because Addison had been present in the courtroom during the trial. After Addison testified regarding the origin of the report and photographs, however, they were admitted into evidence. In any event, the inspection report did not have the appropriate box checked that would have indicated the vehicle had tinted windows.
Before the trial commenced, the judge issued a very detailed sequestration order. It included the admonition that "[a]ll witnesses must remain out of the courtroom while the trial is in progress . . . ."
On the stand, Addison admitted that she knew there was a sequestration order in effect. She claimed that she remained in the courtroom during trial because she did not realize she was going to be called upon to testify.
Addison was asked on cross-examination if defendant had received other motor vehicle summonses on other occasions while operating her vehicle, and she responded in the affirmative. When the testimony was proffered, defense counsel objected on the basis of relevance. In her opening statement, counsel made reference to defendant driving the Pontiac.
Coles testified at trial that when the men were stopped, he was "grabbed" and told to get out of the automobile. He said defendant was also removed from the vehicle and that police subsequently searched the front, back, and trunk of the Pontiac, and that "a few minutes after the search," a detective announced he had found a gun in the car. Coles added that he drove the car back because police gave him the keys, a statement contradicted by Cosgrove, who said Coles was allowed to walk away from the car, and defendant allowed to keep his keys, after arrest. On cross-examination Coles denied owning the gun and explained he had not previously come forward regarding the manner in which he testified police conducted the search, even though he knew the prosecutor's office wanted to speak to him, because he thought his only obligation was to appear in court.
On appeal, defendant raises the following points, which we address in the order presented:
THE WARRANTLESS SEIZURE OF THE FIREARM FOUND IN THE PONTIAC VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM UNLAWFUL AND UNREASONABLE SEARCHES AND SEIZURES GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTION[S] POINT II
TESTIMONY ELICITED BY THE PROSECUTOR OF OTHER INSTANCES WHERE DEFENDANT WAS STOPPED BY POLICE IN THE MOTOR VEHICLE INVOLVED IN THIS CASE WAS IMPROPER N.J.R.E. 404(b) EVIDENCE THAT SHOULD HAVE [BEEN] EXCLUDED FROM EVIDENCE POINT III
THE DEFENSE OPENING AND THE CALLING OF MR. [OUEDRAOGO] AS A WITNESS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL POINT IV
THE TRIAL COURT'S RULING THAT THE GEICO INSURANCE DOCUMENTS WERE NOT BUSINESS RECORDS PURSUANT TO N.J.R.E. 803(c)(7) WAS ERRONEOUS POINT V
THE TRIAL COURT'S RULING THAT DEFENSE WITNESS, RAMONA ADDISON, VIOLATED A SEQUESTRATION ORDER AND HIS CHARGE TO THE JURY ON THAT ISSUE WAS ERROR WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL POINT VI
THE TESTIMONY OF DET. COSGROVE THAT THE PASSENGER IN THE AUTOMOBILE HAD NOTHING TO DO WITH THE POSSESSION OF THE FIREARM DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not raised below)
CERTAIN COMMENTS MADE BY THE PROSECUTOR DURING SUMMATION WERE GROSSLY IMPROPER AND DEPRIVED DEFENDANT OF A FAIR TRIAL POINT VIII
THE SENTENCE IMPOSED UPON THE DEFENDANT WAS EXCESSIVE AND SHOULD BE REDUCED. (Not raised below)
Defendant contends that the warrantless seizure of the handgun violated his right to be free from unlawful searches. Clearly, warrantless searches are presumptively unreasonable and unconstitutional unless they fall within a recognized exception. See State v. Wilson, 178 N.J. 7, 12 (2003) (quoting State v. Cooke, 163 N.J. 657, 664 (2000)). But the stop of a motor vehicle on the suspicion of a motor vehicle infraction is permissible so long as a reasonable and articulable suspicion exists that such an infraction has occurred. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 674 (1979); see also State v. Sloane, 193 N.J. 423, 432 (2008) (citing State v. Dickey, 152 N.J. 468, 475 (1998)). It is the State's burden to establish that a stop comes within a recognized exception. State v. Alston, 88 N.J. 211, 230 (1981).
We are also mindful that "an appellate court reviewing a motion to suppress 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. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted).
In the present case, the trial judge's findings were supported by such evidence. The trial court determined the State had met its burden of proof because Cosgrove was credible. His characterization of the kind of stop signal ignored by defendant was an inadvertent error and not "made up." The judge was satisfied that "there was a motor vehicle violation at that intersection, that the individuals came right through that intersection, whether it was controlled by a traffic light or whether it was controlled by a stop sign . . . ." The stop was lawful because it was "based on reasonable and articulable suspicion" that defendant violated the motor vehicle code. State v. Carty, 170 N.J. 632, 639-40 (2002) (citing Prouse, supra, 440 U.S. at 663, 99 S. Ct. at 1401, 59 L. Ed. 2d at 673). As the stop was lawful, the officers were "lawfully in the viewing area." State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
Moreover, it is well settled that officers may look into the windows of a vehicle after a lawful stop. "A simple observation into the interior of an automobile by a police officer located outside the automobile is not a 'search' within the meaning of the Fourth Amendment." State v. Foley, 218 N.J. Super. 210, 215 (App. Div. 1987) (citing Texas v. Brown, 460 U.S. 730, 739-40, 103 S. Ct. 1535, 1541-42, 75 L. Ed. 2d 502, 513 (1983)). "There is no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers." Brown, supra, 460 U.S. at 740, 103 S. Ct. at 1542, 75 L. Ed. 2d at 513 (internal citation omitted). As the judge said, the officers "didn't decide they were going to go looking for a weapon in the back seat of that car and then the circumstances would become . . . emergent, rather they were just pulling over a car for a motor vehicle stop. They made an observation."
Since looking in the windows was not a search, the fact that a flashlight was used makes no difference. When an officer "observe[s] the evidence in plain view from his position in the public street, . . . the ultimate seizure of the evidence was reasonable. [And] use of a flashlight was clearly permissible." State v. Moller, 196 N.J. Super. 511, 515 (App. Div. 1984) (internal citations omitted).
Therefore, once defendant was lawfully stopped for failure to honor a traffic signal, the observation and subsequent seizure of the handgun was permissible. It is inconsequential whether the windows were tinted or not, or even if the driver of the vehicle was observed reaching towards the rear seat. The officers' approach of the car, while flashing their light into the vehicle, did not violate defendant's right to be free from unconstitutional searches and seizures, see ibid., particularly in an area known to be rife with narcotics and weapons.
Even when the officers' purpose is to look into a car after a valid motor vehicle stop, the use of a flashlight is not considered a "search." The motion to suppress was properly denied. See State v. Johnson, 171 N.J. 192, 210-11 (2002); Moller, supra, 196 N.J. Super. at 515.
Defendant also contends that Addison's cross-examination testimony that he had previously been stopped, while driving her car, for motor vehicle infractions, violated N.J.R.E. 404(b). The rule prohibits admission of "prior bad acts" evidence absent certain circumstances not present in this case. We review the claim of error employing an abuse of discretion standard. See State v. Rose, 206 N.J. 141, 157 (2011).
During the course of cross-examination, Addison denied frequently lending her car to defendant. It appears from our reading of the record that the State asked subsequent questions regarding other summonses issued to defendant solely to weaken Addison's credibility; the State's purpose in eliciting the testimony was not to prove a negative about defendant's character through prior bad acts.
Furthermore, the nature of the unlawful conduct was only motor vehicle infractions, not crimes or disorderly persons offenses. Even if we accept defendant's premise that the admission of the evidence was error, clearly, it was harmless error. See State v. Bankston, 63 N.J. 263, 273 (1973) (stating that "[t]he test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict.").
Defendant makes the further point that his trial attorney's opening statement conceding that he was the driver of the motor vehicle, and her decision to call Ouedraogo, constituted ineffective assistance of counsel. Such claims are best deferred to petitions for post-conviction relief. We therefore make no further comment on the subject. See State v. Abdullah, 372 N.J. Super. 252, 277 (App. Div. 2004), aff'd in part and rev'd in part on other grounds, 184 N.J. 497 (2005); Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 3:22-2 (2012).
Contrary to defendant's characterization of the facts in the brief, the GEICO inspection report was eventually admitted into evidence after Addison testified the form was completed by an insurance agent. The photographs were also admitted into evidence. Since the record does not bear out the claim, we will not address the argument. See R. 2:11-3(e)(2).
Defendant contends that the trial court's charge to the jury that Addison violated the sequestration order was error which deprived defendant of a fair trial. "Sequestration of witnesses is governed by N.J.R.E. 615, which states, '[a]t the request of a party or on the court's own motion, the court may, in accordance with the law, enter an order sequestering witnesses.' Sequestration is discretionary with the trial judge." State v. Williams, 404 N.J. Super. 147, 159 (App. Div. 2008) (citing State v. Miller, 299 N.J. Super. 387, 399 (App. Div.), certif. denied, 151 N.J. 464 (1997)), certif. denied, 201 N.J. 440 (2010).
On the stand, Addison acknowledged that she knew there was a sequestration order in effect and remained in the courtroom regardless. Based on her statements, the court found that she intentionally violated the order, but nonetheless permitted her to testify, subject to instructing the jury they could consider that fact when assessing the weight to give to her testimony. We commend the trial judge for allowing her to testify, as opposed to precluding her testimony. See State v. Dayton, 292 N.J. Super. 76, 91 (App. Div. 1996). The instruction merely gave the jury additional factors for assessing credibility and did not prejudice defendant in any fashion that we can discern. The judge's charge was not erroneous.
Defendant also contends that Cosgrove's testimony deprived him of a fair trial because he said defendant's passenger was not arrested as, in his "opinion," he did not have any "bearing on the case." The officer had earlier testified that defendant, not the passenger, was observed "reaching into the backseat area[,]" and that the passenger was quite inebriated. This point is also subject to plain error review, as no objection was raised at trial. R. 2:10-2.
To the extent the jury could have understood Cosgrove's statements explaining the reasons the passenger was not charged as the simultaneous expression of an opinion as to defendant's guilt, it was improper. See State v. McLean, 205 N.J. 438, 463 (2011). As we have said, defendant did not object to the testimony, however, which warrants the assumption that he did not consider it prejudicial. See State v. Marshall, 123 N.J. 1, 104 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). In light of the fact no proofs were presented linking the passenger with the gun, and that when called by defendant, Coles denied any knowledge of the gun, we conclude that the outcome would have been the same even if the evidence would have been excluded. See State v. Castagna, 187 N.J. 293, 312 (2006). In other words, regardless of the officer's improper statement of opinion regarding the passenger, defendant would have been convicted.
The purpose in admitting the statement was to explain the reason the passenger was not arrested. It did not interfere with the jury's fact-finding function. His testimony did not result in plain error.
Defendant also contends that certain statements in the prosecutor's summation were grossly improper and deprived him of a fair trial, including comments regarding Coles's testimony in which he attempted to cast doubt on Cosgrove's credibility. Defendant also claims the prosecutor impermissibly vouched for Ouedraogo's credibility, and disparaged defense counsel.
"To justify reversal the prosecutor's conduct must have been clear[ly] and unmistakabl[y] improper, and the improper conduct must have resulted in substantial prejudice to the defendant's fundamental right to have a jury fairly assess the persuasiveness of his case." State v. Williams, 113 N.J. 393, 452 (1988) (internal quotation marks omitted). Additionally, "[t]he prosecutor is accorded considerable latitude in summing up the State's case forcefully and graphically and to pursue the prosecutorial duty with earnestness and vigor." State v. Tilghman, 345 N.J. Super. 571, 575 (App. Div. 2001). As long as the prosecutor "confines himself to the facts and reasonable inferences, what he says in discussing them, by way of comment, denunciation or appeal, will afford no ground for reversal." State v. Johnson, 31 N.J. 489, 510 (1960).
Coles testified that he did not go to the police to explain that defendant had been wrongfully charged, among other reasons, because he thought Addison would take care of it. The prosecutor argued in summation that "[i]f Mr. Coles is going to sit up there and testify that the cops essentially violated himself and [defendant], don't you think he would bring that up to someone before . . . almost two years later?" Defendant now argues that this portion of summation implicated his right to remain silent.
The State never mentioned defendant's silence, however. In its questioning of Coles, the State attempted to demonstrate to the jury that his story was not believable, in part because it was being presented for the first time at trial.
The Supreme Court has noted in a similar context that defense witnesses may be cross-examined about their failure to disclose an alibi offered by the defendant: "if a witness appears to know of the charges and would naturally be expected to have come forward with the alibi testimony, the witness may be cross-examined about those circumstances of non-disclosure."
State v. Silva, 131 N.J. 438, 442 (1993). The Court cited a Massachusetts case in support:
There are many situations, however, where the natural response of a person in possession of exculpatory information would be to come forward in order to avoid a mistaken prosecution of a relative or a friend. In such situations, the failure of a witness to offer the information when it would have been natural to do so might well cast doubt on the veracity of the witness' trial testimony. A witness's silence in such circumstances is akin to a witness's "prior inconsistent statement," and, therefore, has probative value. [Id. at 446 (quoting Commonwealth v. Brown, 416 N.E. 2d 218, 224 (Ma. 1981)).]
Accordingly, the prosecution's comment on Coles' prior silence did not infringe on defendant's right to remain silent.
Defendant also claims the prosecutor impermissibly vouched for Ouedraogo's credibility. The State argued in its closing:
[Ouedraogo] came here, and realized he had to swear to tell the truth, and sit in front of the jury, he wasn't going to play the game anymore. He sat up there, and told you the truth. He told you exactly what I told you, and he showed why Mr. Holmes has tried to deceive you.
"A prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness's testimony." State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993) (citing State v. Marshall, 123 N.J. 1, 154, 156 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1307, 122 L. Ed. 2d 694 (1993)). "[A] prosecutor is free to argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Bradshaw, 392 N.J. Super. 425, 437 (App. Div. 2007) (quoting State v. Walden, 370 N.J. Super. 549, 590 (App. Div.), certif. denied, 182 N.J. 148 (2004)), aff'd on other grounds, 195 N.J. 493 (2008).
Here, the prosecutor's comments about Ouedraogo's credibility are of some concern. They are, however, harmless error. See State v. McGuire, 419 N.J. Super. 88, 145 (App. Div.), certif. denied, appeal dismissed by, 208 N.J. 335 (2011);
R. 2:10-2 (stating that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]"). The harmless error standard means that there must be "some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." Bankston, supra, 63 N.J. at 273.
It is clear that the error in this case does not raise such a doubt. Ouedraogo's testimony about the vehicle's tinted widows was a red herring. Upon lawfully stopping an automobile for a traffic violation, police officers may lawfully look inside car windows, see Foley, supra, 218 N.J. Super. at 215, utilizing a flashlight for the inspection. See Moller, supra, 196 N.J. Super. at 515. Ouedraogo's testimony also raised doubts about Addision's credibility, but her credibility had already been attacked by the State during cross-examination on other points. In light of the overwhelming evidence marshaled against defendant, the prosecutor's "vouching" for Ouedraogo's veracity was harmless error.
Finally defendant claims the prosecutor "cast unjustified aspersions" on the defense and defense counsel. State v. Frost, 158 N.J. 76, 86 (1999) (quoting State v. Lockett, 249 N.J. Super. 428, 434 (App. Div.), certif. denied, 127 N.J. 553 (1991)). The prosecutor argued that the claim that Addison "testified to stuff not relevant to what [Ouedraogo] testified to, that's absurd, they both testified with regards to the window tint." This was in response to defense counsel's argument that Addison and Ouedraogo did not testify about the same things. "A prosecutor is permitted to respond to an argument raised by the defense so long as it does not constitute a foray beyond the evidence adduced at trial." State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied sub nom. State v. Pantoja, 169 N.J. 610 (2001). The State did not "demean the role of defense counsel or cast unjust aspersions upon a lawyer's motives," id. at 218, rather it pointed out a flaw in her argument.
Defendant's final contention is that his sentence was excessive and should be reduced to a flat sentence of five years. We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. See State v. Bieniek, 200 N.J. 601, 607-09 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Id. at 608-09.
In this case, the court found three aggravating factors: the risk that defendant will reoffend, N.J.S.A. 2C:44-1(a)(3); his prior criminal history and the seriousness of prior offenses, N.J.S.A. 2C:44-1(a)(6); and the need to deter him and others from violating the law, N.J.S.A. 2C:44-1(a)(9). No mitigating factors were found.
We note that the sentencing judge denied the State's application that defendant be sentenced as a persistent offender. Defendant did, however, have twelve adult arrests and four indictable convictions including drug distribution within 1000 feet of school property. He had been previously charged with weapons offenses. Defendant's prior criminal history, and prior sentences, which included a state prison term, established substantial evidence in the record supporting the aggravating factors and absence of mitigating factors, which the judge properly weighed.
We do note, however, that the judgment of conviction does not list the aggravating and mitigating factors. Although we affirm the conviction and sentence, correction of the judgment may be appropriate.