September 18, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
FOSHEA D. WOODEN, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-05-1264.
Muhammad Ibn Bashir argued the cause for appellant.
Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Guerrero, of counsel and on the brief).
Before Judges Harris and Kennedy.
Defendant Foshea D. Wooden appeals his conviction for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), which resulted from a guilty plea following the denial of a motion to suppress. Wooden argues, among other things, that the motion judge improperly ruled that there was sufficient evidence to justify the motor vehicle stop that ultimately led to the discovery of a bag of bullets on Wooden's person and a handgun in the car. We remand to the Law Division for supplementation and reconsideration of the motion to suppress to allow Wooden an opportunity to present the testimony of a witness who was barred from testifying. Because of the remand, we do not reach the other issues raised on appeal.
The motion record reveals the following facts and procedural history.
On December 21, 2009, State Trooper Nicholas Rubino was on patrol with Trooper Louis Gardenia in a marked troop vehicle eastbound on Interstate 280 near Newark and East Orange. Shortly after midnight, Trooper Rubino observed a lone vehicle, later determined to be a 2006 black, four-door KIA exiting the Garden State Parkway ramp at Exit 145 and merging eastbound onto Interstate 280 "at a high rate of speed." Trooper Rubino began to follow and "pace" the KIA to the First Street exit, a distance that he testified was "approximately maybe two miles." The trooper determined that the KIA was traveling at eighty-five miles per hour. In addition to traveling at a high rate of speed, Trooper Rubino said that he observed the vehicle travel in between two other vehicles in an attempt to make a lane change from the left lane to the center lane. Ultimately, based upon these observations, a motor vehicle stop was initiated at the intersection of First and Orange Streets in Newark for speeding and an unsafe lane change.
Both Troopers Rubino and Gardenia exited their vehicle and approached the stopped KIA. Trooper Rubino approached the driver's side while Trooper Gardenia approached the passenger side.
Trooper Rubino observed three individuals inside the KIA: the driver, Wooden; and two passengers, one in the passenger front seat (Rasheed Simmons) and the other seated in the back (Tamara Brantley). After approaching the driver's side of the vehicle, Trooper Rubino testified that he detected an odor of an alcoholic beverage and noticed Wooden had "bloodshot and glassy" eyes. Wooden told Trooper Rubino he consumed three beers prior to being stopped. Trooper Rubino, after instructing Wooden to move his head toward the driver's side window, then checked Wooden's pupils by performing the horizontal gaze nystagmus (HGN) test. After administering the HGN test on Wooden inside the car, Trooper Rubino then asked Wooden to exit the vehicle for a further sobriety examination, the "standardized field sobriety test." Wooden calmly and politely complied.
Trooper Rubino testified that after he conducted several field sobriety tests, it was his opinion that Wooden had failed them, and Wooden was "placed under arrest for suspicion of [driving while intoxicated (DWI)]." Trooper Rubino conceded that there is no record or document of what field sobriety tests, or aspects of a single field sobriety test, Wooden failed.
Subsequent to Wooden's arrest, Trooper Rubino "conducted a search incidental to arrest of the driver, " which revealed a clear, plastic bag containing bullets in Wooden's front right pocket. Trooper Rubino testified that he was concerned, for both trooper and pedestrian safety, that there was a firearm either on Wooden's person or inside the stopped vehicle where the two other passengers remained. As a result, Trooper Rubino asked Wooden, who was already under arrest and without advising him of his Miranda rights, "where the gun was." After denying there was a gun, Wooden later stated that he threw the gun inside the vehicle.
At hearing this, Trooper Rubino advised Trooper Gardenia, and the remaining vehicle occupants were ordered to exit the vehicle at gunpoint. Once all of the occupants were out of the vehicle and safely secured, Trooper Rubino commenced a warrantless search of the vehicle. Trooper Rubino entered the vehicle through the already-opened driver's door, and initially limited his search to the driver's seat. During this examination, the trooper did not see a weapon. However, an Essex County Sheriff's sergeant who had arrived and positioned himself on the passenger side of the KIA verbalized his observation that he saw, in plain view, the "butt" of a gun "sticking out of the seat and center console, passenger side." Upon the sergeant's alert, Trooper Rubino retrieved a loaded .45 Ruger handgun from between the passenger seat and center console.
Wooden was transported to the New Jersey State Police substation in Totowa for DWI processing. There, at approximately 2:00 a.m., an Alcotest was administered to Wooden, which registered 0.06 percent blood alcohol content. Trooper Rubino testified that Wooden did not receive a DWI citation because he was under the legal limit for such offense. However, Wooden was issued two motor vehicle summonses: one for speeding, and the other for an unsafe lane change.
Wooden moved to suppress the bullets and the handgun recovered from the KIA. At the hearing, Wooden sought to introduce lay opinion testimony from David Foster, a private investigator, whose testimony was promised to be "extremely short." Defense counsel explained the following:
Your honor, he's [going to] testify . . . at my instruction, he entered the [Interstate] 280 east from [Exit] 145 on [Interstate] 280 east and he drove 57 to 58 miles per hour and it took him one minute to get from the point where he entered [Interstate] 280 to [First] Street. That's what he's going to testify to.
Foster's testimony was intended to impeach and contradict Trooper Rubino's testimony that detailed Wooden's pacing for two minutes at eighty-five miles per hour. It was offered in a straightforward effort to cast doubt upon the bona fides of the motor vehicle stop. If Trooper Rubino was ultimately not believed by the motion judge, Wooden was prepared to argue that the arrest, search, and seizure that followed were improper and inadmissible because the initial motor vehicle stop was unjustified.
The motion judge determined that because an exact replication of the situation at issue was impossible (e.g., road conditions and a precise starting point are different), and the proposed testimony was "too loosey goosey, " she refused to hear the testimony citing its lack of relevancy.
Ultimately, after hearing all of the remaining testimony, including that of back seat passenger Brantley, the motion judge denied Wooden's motion to suppress. She found that Trooper Rubino's testimony regarding Wooden's speeding "appeared credible, " thus concluding Trooper Rubino had both probable cause and reasonable, articulable suspicion to stop Wooden for observed motor vehicle violations. Wooden's arrest for suspicion of DWI, based upon the field sobriety tests, also was found to be justified. As such, the judge concluded that the subsequent discovery of the bullets on Wooden's person was the result of a legal search incident to arrest; Wooden's statement that precipitated the discovery of the gun in the vehicle was justified; and the warrantless entry into the KIA to find a gun was a legal search.
On appeal, Wooden raises the following issues for our consideration:
POINT I: THE TRIAL COURT'S EVIDENTIARY RULINGS DENIED THE DEFENDANT A FAIR HEARING AND WAS A CLEAR ABUSE OF DISCRETION (NOT RAISED BELOW).
POINT II: THE MOTOR VEHICLE STOP WAS A PRETEXT AND THE DEFENDANT WAS A VICTIM OF RACIAL PROFILING AND/OR SELECTIVE ENFORCEMENT OF THE LAWS ENTITLING HIM TO THE GRANTING OF HIS MOTION TO SUPPRESS AND/OR REMAND FOR PURPOSES OF RACIAL PROFILING DISCOVERY. (NOT RAISED BELOW).
POINT III: THE DECISION OF THE COURT BELOW WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE AND THE COURT ERROR IS AND WAS CAPABLE OF PRODUCING AN UNJUST RESULT PURSUANT TO R. 2:10-2. (NOT RAISED BELOW) THE MOTOR VEHICLE STOP, THE SUBSEQUENT SEARCH OF DEFENDANT, AND HIS ARREST WERE ALL IN VIOLATION OF HIS FOURTH AND FOURTEENTH AMENDMENT RIGHTS.
Wooden asserts that the motion judge mistakenly exercised her discretion in refusing to allow Foster's testimony. According to Wooden, the court's evidentiary ruling denied him "the opportunity to present a complete defense" as guaranteed by the Sixth Amendment. Although permitting the testimony to be considered would not result in an automatic disposition of the motion in Wooden's favor, we agree that the motion judge erred in not permitting its introduction.
Our Supreme Court has explained the standard of review applicable to a motion to suppress:
In reviewing a motion to suppress, we defer to the trial court's findings of fact. See State v. Elders, 192 N.J. 224, 244 (2007) ("A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" (quoting State v. Johnson, 42 N.J. [146, ] 162 [(1964)])). However, we need not defer to a trial or appellate court's interpretation of the law. See State v. Gandhi, 201 N.J. 161, 176 (2010). We review such legal issues de novo. Ibid.
[State v. Shaw, 213 N.J. 398, 411 (2012).]
A trial court's discretionary decision to exclude otherwise admissible evidence is reviewed under the abuse of discretion standard. Benevenga v. Digregorio, 325 N.J.Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Under N.J.R.E. 403, a judge is specifically allowed to exclude otherwise admissible evidence under specified circumstances. Appellate courts must give substantial deference to the trial judge's discretion in evidentiary rulings. Benevenga, supra, 325 N.J.Super. at 32. Therefore, the decision of the motion court must be affirmed unless it is shown that the trial court's findings were "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
A motion to suppress allows a judge to relax the Rules of Evidence to determine admissibility in accordance with N.J.R.E. 101(a)(2)(E). Here, Wooden argues the relevancy standard established under N.J.R.E. 401 is broad and favors the admissibility of Foster's lay opinion because it has a tendency to establish a proposition of probative value in the case. Evidence is probative if it tends "to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. "In determining whether evidence is relevant, the inquiry should focus on 'the logical connection between the proffered evidence and a fact in issue.'" State v. Darby, 174 N.J. 509, 519 (2002) (quoting State v. Hutchins, 241 N.J.Super. 353, 358 (App. Div. 1990)). Moreover, "[i]f the evidence offered makes the inference to be drawn more logical, then the evidence should be admitted unless otherwise excludable by a rule of law." State v. Covell, 157 N.J. 554, 565 (1999).
Wooden sought to use Foster's lay opinion to contradict Trooper Rubino's testimony that he paced Wooden for two minutes at eighty-five miles per hour. Foster's testimony was offered to prove that traveling the same distance at fifty-seven or fifty-eight miles per hour (nearly thirty miles per hour slower than Wooden's alleged speed), from a greater distance, rendered a total travel time of only one minute. If Wooden's vehicle was paced for two miles traveling at eighty-five miles per hour according to Trooper Rubino's testimony, Wooden argues he would have overshot the First Street exit where he was eventually stopped. Moreover, on the night in question, the roadway was said to have snow on both sides due to snowfall the previous night. Thus, in addition to a substantial decrease in speed, the conditions on the day Foster conducted his test also were more optimal compared to those on the night in question, which arguably would create a "slower road" due to the snowfall. Foster's testimony, although not conclusive on any point, is relevant and material to this case because it directly contradicts testimony from the State's only fact witness.
"If evidence is relevant and necessary to a fair determination of the issues, the admission of the evidence is constitutionally compelled." State v. Garron, 177 N.J. 147, 171 (2003). Here, there is a logical connection between Foster's proffered testimony and a fact issue in the case —— the time and speed at which Wooden was traveling. Because Foster's testimony, if found credible, would strengthen the inference that Wooden was not speeding, which might further erode Trooper Rubino's other testimony, the motion court erred by refusing to hear what Foster had to say.
Furthermore, Foster's proffered testimony is admissible as lay opinion under N.J.R.E. 701. Rule 701 states:
If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue. To be admissible, lay opinion must be based on the perception of the witness and provide evidence that will assist the factfinder in performing its function. State v. McLean, 205 N.J. 438, 456 (2011). Ultimately, the admissibility of lay opinion rests with the discretion of the trial court. State v. LaBrutto, 114 N.J. 187, 197 (1989).
Here, Foster's lay opinion seeks to introduce information contrary to that of the State's only fact witness. Foster's testimony would be based on his perceptions of driving the recreated route, and it was not offered as a means to establish a conclusive fact or represent Foster's personal knowledge of the case. Rather, Foster's testimony would be used to attack the evidence put forth by Trooper Rubino, who, on the issue of Wooden's alleged driving, was deemed to have provided unsound testimony relating to speed. It is certainly possible that a further erosion of Trooper Rubino's recitation of events would result in a rejection of more, or even all, of the trooper's explanation for making the motor vehicle stop.
Here, the motion court analogized Foster's testimony to that of an "experiment" that would be more akin to expert testimony. In this case, however, no particular expertise beyond making sure Foster had an accurate watch and that his speedometer was properly calibrated is needed. The ability to conduct and testify to the results of such an "experiment" is well within the capabilities of a lay witness to observe.
Consequently, we remand the motion to suppress to the motion judge for supplementation of the record and reconsideration. Defense counsel shall be permitted to present Foster as a witness. The State and Wooden may seek to supplement the record in other ways, subject to the motion judge's exercise of sound discretion. The judge must then reconsider her prior rulings and explain her decision in detail.
In light of the remand, we do not reach the other issues raised on appeal. We do not retain jurisdiction.
Reversed and remanded for further proceedings consistent with this opinion.