Opinion
DOCKET NO. A-3373-11T1
03-03-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KAFELE K. BOMANI, a/k/a SHAUN A. GOODING, SHAWN GOODING, SHAUN GRANT, Defendant-Appellant.
Marcia Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Blum, of counsel and on the brief). James F. Smith, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Mr. Smith, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and St. John
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-08-2019.
Marcia Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Blum, of counsel and on the brief).
James F. Smith, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Mr. Smith, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Kafele Bomani appeals from his conviction by a jury for attempted murder and from his sentence of life imprisonment. We affirm the conviction but reverse and remand for resentencing.
I.
The jury found defendant guilty of shooting another man on a street corner in Atlantic City. The victim survived the shooting but refused to cooperate with the police and never identified his assailant. The defense at trial was that the police had incorrectly identified defendant as the shooter seen on a surveillance recording.
On appeal, defendant challenges the admission of highly incriminating clothing evidence seized without a warrant from his residence, his identification by an eyewitness, the prosecutor's improper questioning of a police witness, the court's denial of a new trial based on newly discovered exculpatory evidence, and the consideration of improper factors in imposing a life sentence. The facts were developed at pretrial hearings and at defendant's six-day trial.
At about 2:18 a.m. on October 20, 2007, Lameck Ganda was working in the security booth of the Wyndham Resort Hotel in Atlantic City. He heard a commotion outside and then saw on the hotel's security camera monitors that four men were arguing and fighting on hotel property. One of the men was wearing a red shirt and another man was wearing a distinctive multi-colored checkered shirt. Lameck went outside and spoke to the men, approaching to within about eight feet of them. He directed the men to leave the hotel property. The four men went in the direction of the nearby Resorts Casino.
Our record does not indicate clearly the witness's first and last names. The attorneys at trial referred to the witness as Lameck. We will do the same in this opinion.
Shortly before 6:40 a.m., Lameck again saw four men on the video monitors who appeared to be arguing. He was able to zoom the surveillance cameras in and out. He zoomed in on the men's faces and saw that the disturbance involved the same men that he had approached earlier in the night.
Lameck then saw the man wearing the checkered shirt go to a dark-colored SUV parked nearby in the street and retrieve something from inside the vehicle. That man walked up to the man in the red shirt and fired a shot at him. The man in the red shirt held his stomach and fled in one direction as the gunman ran back to the SUV and drove away.
A few minutes later, a police officer on duty outside the Taj Mahal Casino was approached by the man who had been shot. The officer called for medical assistance at 6:43 a.m. The victim talked to the officer, but he would neither identify himself nor his shooter. Emergency responders arrived and took him to a hospital. He was eventually identified as Cullen Green. Doctors later told the police Green had been shot in the chest and suffered lacerations to his liver and diaphragm. After emergency surgery, Green recovered and was released from the hospital within a few days. When a detective approached him several weeks later, he refused to cooperate and gave no information about the shooting.
Meanwhile, at the scene of the shooting on October 20, the police quickly learned that the Wyndham Hotel security cameras had captured and recorded the crime. At about 7:00 that morning, Lameck replayed the soundless video recordings for the police in the hotel's security office. The police could see the shooting as it occurred at the intersection of North Carolina and Pacific Avenues. The shooter was wearing a distinctive checkered shirt, which the police described as white, green, blue, and yellow. He was also wearing a white T-shirt, jeans, tan boots, and a light-colored cap with an emblem. The police could not get a clear view of the shooter's face. They saw him run away from the intersection to a dark-colored SUV and drive away.
The SUV was mostly obscured on the video by an awning or banner hanging from the hotel in front of the surveillance camera, but a police officer could see the wheels of the vehicle and believed it was either a Ford or a Nissan from his familiarity with those SUVs. The police description of the shooter and the vehicle was broadcast to police officers on patrol.
At the same time, the investigating detectives learned that another Wyndham Hotel employee had witnessed the shooting. John Lopez had arrived early that morning to begin his shift as a bellman and valet parking attendant. At the time of the shooting, he was sitting outside the hotel in his car. He saw three men who were apparently arguing. He then saw the man in the checkered shirt go to a dark-colored SUV and retrieve an item. That man approached the man in the red shirt and shot him. Although Lopez did not see the shooter's face, he described his clothing and general appearance consistently with Lameck and the appearance of the man on the video recording. More significant, Lopez had observed and memorized the license plate number of the SUV and gave that information to the police.
The police quickly matched the plate number to a vehicle registered to defendant Bomani at an address on Memorial Avenue, which is within four blocks of the site of the shooting. Sergeant James Sarkos of the Atlantic City Police was in the area, and he was familiar with the Memorial Avenue address. It was a four-floor rooming house owned by the father of a police officer. Sergeant Sarkos had been inside that building previously and knew it contained three apartments and twenty-one individual rooms. The owner had given the police permission to enter the building, and in fact had requested that the police patrol inside the building because of drug and other criminal activity in the neighborhood and because of trespassing vagrants. A key to the front door of the building was kept at the police department's vice squad, and some individual officers also had the key. The police periodically entered the building to conduct "walk-through" inspections for the safety of the residents and others. Often, the key was not needed because tenants would prop the front door open as they sat outside on the stoop, and the police could readily enter, as well as other members of the public. Sergeant Sarkos was also acquainted with the manager of the building and had gained access in the past simply by knocking on the door when it was locked and being granted entry into the common areas by the manager or other tenants.
At approximately 7:07 a.m., Sergeant Sarkos and another police officer, Cecil Randall, arrived at the Memorial Avenue address. As Sergeant Sarkos approached the front door, a woman was leaving. Sergeant Sarkos held the door as the woman left, and he and Officer Randall entered the hallway. Almost immediately, Sergeant Sarkos saw a man wearing jeans and sandals but no shirt and carrying a bottle of liquor. He questioned the man, who identified himself as defendant Bomani. Defendant said he lived in room 11 on the second floor and that a woman was present in the room at that time. He said he had been at a bar earlier that night. Sergeant Sarkos detained defendant and directed Officer Randall to secure room 11.
As Officer Randall went to the second floor, he saw a woman wrapped in a towel near the common bathroom in the hallway. He asked her whether she knew where room 11 was, and she said no. The officer found the room and saw that the door had been propped wide open by placing carpet underneath it. The officer looked into the room and immediately saw on the floor a checkered shirt, a light-colored cap, and tan boots as had been described in the police dispatch. He entered the room to determine whether anyone was present there. No one was in the room.
At that time, the woman in the towel entered the room, and Officer Randall questioned her. She said she had arrived between 6:30 and 7:00 a.m., that defendant was present when she arrived, and that defendant had gone downstairs to get a bottle of liquor while she went to the bathroom. The officer instructed the woman to get dressed, and she was taken to police headquarters to be questioned further. Although the identity of the woman was known, neither the State nor defendant called her as a witness at the trial.
Still in the first-floor hallway, defendant told Sergeant Sarkos that his vehicle was parked at a nearby garage on New York Avenue. At 7:17 a.m., an officer found a black Ford SUV in the garage with the license plate number provided by the eyewitness. The officer touched the vehicle's hood and found it to be warm, indicating it had been driven recently. Sergeant Sarkos was notified. Defendant then voluntarily gave him the vehicle's key, and a police officer drove the SUV out of the garage and parked it on the street near the rooming house.
At a later time and at the trial, the manager of the garage provided relevant information. He said that the garage did not have surveillance video available, but its business records generated by the entry ticket machine showed that two vehicles had entered before 7:15 that morning, at 6:44 and 6:55. The prosecution argued before the jury that defendant's vehicle must have been the second of these entries, and the defense argued that defendant would not have had enough time to park his vehicle, dispose of evidence, get to his room, undress, and be present shirtless in the hallway of his rooming house in time for Sergeant Sarkos to find him just after 7:07 a.m.
At 8:15 a.m. in the rooming house, a detective formally warned defendant of his Miranda rights. Defendant answered a few questions, stating that he lived alone in room 11 and no one else had a key to his room. At 8:30 and 8:45 a.m., defendant signed consent forms permitting the police to search, respectively, his vehicle and his room. From the apartment, the police seized the clothing and some other items not relevant to this appeal. They did not find a gun there. They also did not find a gun or any other evidence in the vehicle.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The police then transported Lameck and Lopez together to the area of the rooming house to see if they could identify defendant and the vehicle. From inside the police car, they both looked at the vehicle and at defendant, who was in police custody and still shirtless. Lopez did not identify defendant, testifying before the jury that he never saw the shooter's face, but he said that defendant's appearance was similar to the man he had seen. Lopez confirmed the license plate number of the black Ford SUV as the vehicle he had observed immediately before and after the shooting. Lameck identified defendant but not the vehicle.
Defendant was indicted on six counts: first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3a(1), (2); second-degree aggravated assault causing serious bodily injury, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault with a deadly weapon causing bodily injury, N.J.S.A. 2C:12-1(b)(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun by a convicted person, N.J.S.A. 2C:39-7.
At a pretrial suppression hearing to determine the admissibility of the clothing taken from defendant's room, Sergeant Sarkos was the only witness, and he testified as summarized here to the circumstances of the police entry into the Memorial Avenue rooming house and room 11. The court denied defendant's motion to suppress, concluding that the warrantless entry of the building and the room was justified by exigent circumstances.
At a pretrial Wade identification hearing before a different judge, the State represented that Lopez would not make a positive identification of defendant at trial but would only describe the person he saw. The judge heard testimony from Lameck and concluded that his identification of defendant would be admissible at the trial.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
At the trial, the prosecution presented the two eyewitnesses and the garage manager, the doctor who had performed emergency surgery on Green, numerous police officers and detectives who had participated in the investigation, and expert testimony establishing that DNA of two persons was found in the checkered shirt and cap taken from defendant's room and that one of the profiles was consistent with defendant's DNA.
The video surveillance recording was admitted in evidence but not in an original form. The detectives had never been able to make a copy of the digital surveillance recording from the Wyndham Hotel security system. Instead, they had used their own video recorder to film what they were looking at on the monitor in the Wyndham security office. The trial court conducted a pretrial hearing and ruled that the copied surveillance evidence would be admissible at trial. A slow motion version of that five-minute recording was played for the jury, showing the moment of the shooting and the shooter's flight on foot to the SUV. We have viewed the video recording as part of the appellate record. Because of the angle of the surveillance view and the quality of the recording, the face of the shooter is not clear, although his general appearance, clothing, and actions are readily visible.
Defendant did not testify at his trial. Green was subpoenaed and testified in the defense case. He said that defendant was not the person who shot him, and he did not know who the shooter was. Green further testified that at the time of trial he was serving an eighteen-year sentence on a narcotics conviction. He testified on direct examination that a prosecutor's detective had approached him in prison and offered him leniency on his own charges if he would identify defendant as the shooter. The prosecution presented rebuttal testimony from two police detectives to contradict Green's claim that he had been offered leniency in exchange for identifying defendant.
The jury convicted defendant of all six counts of the indictment.
The sixth count, charging possession of a firearm by a convicted person, was bifurcated and tried separately before the same jury after the verdict on the other five counts.
Several weeks after the verdict, defendant moved for a new trial on the ground that newly discovered evidence would demonstrate he was wrongly identified. He presented a handwritten certification from an inmate named Matthew Hayes who was housed at the county jail at the same time as defendant during the trial. Hayes said he was a friend of Green and also familiar with defendant. He claimed he was with Green at the time of the shooting, that several individuals had fought with him and Green, and defendant was not one of them and did not shoot Green. The court conducted a post-trial hearing, took testimony from Hayes, and concluded that his testimony was not credible. The court denied defendant's motion for a new trial.
The court then granted the State's motion for an extended term Graves Act sentence because defendant had a prior conviction for an aggravated assault involving the use of a firearm. See N.J.S.A. 2C:43-6(c). The court merged counts two through five of the indictment with count one and sentenced defendant on the attempted murder charge to a life term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed a concurrent term of ten years imprisonment on the sixth count.
On appeal before us, defendant makes the following arguments through his attorney's brief:
POINT IIn a supplemental pro se brief, defendant raises the following additional arguments:
THE CLOTHING AND STATEMENTS OBTAINED FROM DEFENDANT MUST BE SUPPRESSED BECAUSE THEY ARE THE RESULT OF THE WARRANTLESS ENTRY OF HIS HOME.
POINT II
WHERE THE VICTIM TESTIFIED THAT HE DECLINED THE PROSECUTOR'S OFFER TO TESTIFY AGAINST DEFENDANT IN EXCHANGE FOR LENIENCY ON HIS CHARGES, IT WAS FLAGRANT MISCONDUCT FOR THE PROSECUTOR TO TELL THE JURY THAT HE WOULD
NEVER HAVE MADE SUCH AN OFFER BECAUSE IT WOULD CONSTITUTE AN ILLEGAL BRIBE. (Not Raised Below).
POINT III
THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL BASED ON THE NEWLY DISCOVERED EYEWITNESS EVIDENCE EXONERATING DEFENDANT.
POINT IV
A LIFE TERM IS GROSSLY EXCESSIVE FOR THIS DEFENDANT AND THIS OFFENSE.
POINT I
THE IDENTFICATION "SHOW UP" EVIDENCE SHOULD HAVE BEEN SUPPRESSED BECAUSE THE PROCEDURE WAS IMPERMISSIBL[Y] SUGGESTIVE AND UNRELIABLE AND ITS ADMISSION VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR I OF THE NEW JERSEY CONSTITUTION.
POINT II
THE TRIAL COURT DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PARA. I OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LAW OF THE MATERIAL FACTS OF THE CASE.
A. THE TRIAL COURT ERRED BY GIVING AN UNBALANCED FOCUS ON THE ASPECT OF THE IDENTIFICATION THAT WERE FAVORABLE TO THE STATE. BY ATTEMPTING TO "MOLD" THE JURY INSTRUCTION TO THE FACTS OF THE CASE.
B. THE TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY ON THE USE OF
THE "VIDEOTAPE" ACCORDING TO THE LAW.POINT III
C. TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY ON CONTRADICTION AND INCONSISTENT STATEMENT.
THE DEFENDANT FOURTEENTH AMENDMENT RIGHTS WERE VIOLATED BY THE ATLANTIC CITY POLICE DEPARTMENT AND THE ATLANTIC COUNTY PROSECUTORS OFFICE BY ACTING IN "BAD FAITH" BY NOT PRESERVING THE SURVEILLANCE TAPE EVIDENCE.
POINT IV
THE TRIAL COURT FAILED TO INSTRUCT ON AGGRAVATED ASSAULT AS A LESSER OFFENSE OF ATTEMPTED MURDER UNDER COUNT I OF INDICTMENT. (Not Raised Below).
We have considered all of defendant's arguments. As to those pro se arguments that we do not address further, we have concluded they lack sufficient merit for discussion in a written opinion. R. 2:11-3(e)(2).
II.
Defendant contends the police violated his federal and State constitutional rights by entering the Memorial Avenue rooming house without a warrant and seizing the highly incriminating clothing from his room.
In reviewing a motion to suppress evidence, we must defer to the trial court's fact findings and "feel" of the case and may not substitute our own conclusions regarding the evidence even in a "close" case. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)); accord State v. Robinson, 200 N.J. 1, 15 (2009); State v. Elders, 192 N.J. 224, 243-44 (2007). However, "[i]f the trial court acts under a misconception of the applicable law," we need not defer to its ruling. State v. Brown, 118 N.J. 595, 604 (1990).
"[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 1382, 63 L. Ed. 2d 639, 653 (1980); accord State v. Penalber, 386 N.J. Super. 1, 11 (App. Div. 2006). In Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S. Ct. 2091, 2098, 80 L. Ed. 2d 732, 743 (1984), the Supreme Court stated: "Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries."
The State argues that an exception existed to the warrant requirement because the police in this case were in "hot pursuit" of a dangerous suspect. Defendant disputes the "hot pursuit" exception, arguing that the police had not pursued the shooter from the scene of the crime. He argues there was no exigency and the police had time and opportunity to present their evidence to a judge for a determination of whether there was probable cause for a warrant to enter the building and subsequently seize evidence from defendant's room.
Courts have found exigent circumstances justifying warrantless entry when the police are in pursuit of a dangerous suspect because delay to obtain a warrant endangers the lives of officers and bystanders. Warden, Md. Pen. v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); State v. Hutchins, 116 N.J. 457, 464 (1989). "Hot pursuit," as the term connotes, requires a close temporal link between a serious criminal event and the police chase that results in a warrantless entry. See Welsh, supra, 466 U.S. at 753, 104 S. Ct. at 2099, 80 L. Ed. 2d at 745. The nature of the offense that the police were investigating is very important in justifying warrantless entry of a home in "hot pursuit." See id. at 749-50, 104 S. Ct. at 2097-98, 80 L. Ed. 2d at 743 (no exigent circumstances existed for hot pursuit after a traffic offense); State v. Bolte, 115 N.J. 579, 596-97 (adopting Welsh's rationale in case involving driving while intoxicated), cert. denied, 493 U.S. 936, 110 S. Ct. 330, 107 L. Ed. 2d 320 (1989).
For instance, in Hayden, supra, 387 U.S. at 297-98, 87 S. Ct. at 1645, 18 L. Ed. 2d 786-87, police received information from witnesses that a suspect in an armed robbery had fled to a specific address. Within minutes, the police arrived and searched the residence, finding the defendant and his weapons. Ibid. In upholding the warrantless search and seizure, the Supreme Court emphasized the short time between the suspect's flight into the residence and the officers' arrival. Id. at 298, 87 S. Ct. at 1646, 18 L. Ed. 2d at 787. Likewise, in State v. Davis, 204 N.J. Super. 181, 184 (App. Div. 1985), certif. denied, 104 N.J. 378 (1986), the "hot pursuit" exception applied where the victim told officers the suspect in an armed robbery was at a specific address and the officers "within minutes took up the pursuit."
Defendant relies heavily on our decision in State v. Jefferson, 413 N.J. Super. 344, 356-57 (App. Div. 2010), and argues that we rejected the "hot pursuit" and exigency exceptions in factual circumstances similar to this case. However, Sergeant Sarkos's initial entry into the rooming house is not controlled by our holding in Jefferson. There, the police were investigating a citizen's tip of shots fired, and they located the suspected car of the alleged shooter in front of the defendant's residence, which was a multi-family house. Id. at 349-50. The police forcibly entered the otherwise locked front door as the defendant tried to keep them out. Id. at 350-51. A significant distinguishing factor of Jefferson and this case is that the common area of the multi-family house in Jefferson was not open to the police or the public. "The door was kept locked, and only the tenants and landlord had access to the common hallway." Id. at 350. Here, the police had ready access to the common areas of the Memorial Avenue rooming house and had, in fact, the owner's standing permission to enter for the purpose of conducting police work. The owner had given the front-door key to the police, and they were also routinely admitted by the manager or other tenants. Furthermore, the door was often left open so that members of the public could enter at will. In contrast to the facts of Jefferson, defendant Bomani had no reasonable expectation of privacy in the common hallway of the Memorial Avenue rooming house. He had no constitutional right to exclude the police from the building as a whole.
The more significant search and seizure issue is whether the police needed a warrant to enter room 11 and to seize the clothing. Since the public and the police did not have permission to enter defendant's room, the State needed to show an exception to the warrant requirement for Officer Randall's entry into the room and observation of the clothing on the floor. The trial court ruled correctly that exigent circumstances permitted a limited entry of the room for purposes of securing it against danger to the police and the public. Since the clothing was seen in plain view both before and after the officer entered the room, there was no further infringement upon defendant's constitutional rights in the police seizure of the clothing. Furthermore, the police obtained defendant's consent to enter and search the room before they actually seized the clothing.
The police arrived at defendant's residence less than thirty minutes after a shooting. They entered the common area of the building, as they were permitted to do by the landlord. The police immediately found and detained defendant, but they did not find a gun and could not know at that time whether anyone else was present in his room that had access to a handgun. They acted reasonably within the meaning of the Fourth Amendment in continuing their investigation to defendant's second-floor room to determine whether any danger still existed. There, Officer Randall found the door of room 11 wide open, and he immediately observed in plain view highly incriminating evidence that tied defendant directly to the recent shooting. The distinctive clothing described in the police broadcasts sat on the floor of the room in plain view. At that point, police suspicion that defendant was the shooter had clearly developed into probable cause for his arrest.
There was no violation of defendant's federal or State constitutional rights in Officer Randall's looking into room 11 because the officer had a right to be present at the threshold of the room and the door was open. The facts here are not like State v. Lewis, 116 N.J. 477, 485-86 (1989), where the police had no right to be present at the location from which they observed contraband drugs in the defendant's room. In this case, the officer's observation of incriminating evidence was justified by the plain view exception to the warrant requirement. See State v. Johnson, 171 N.J. 192, 206-07 (2002) (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct. 2022, 2037-39, 29 L. Ed. 2d 564, 582-84 (1971)); 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).
After observing the clothing in the room, Officer Randall acted reasonably in entering without a warrant to conduct a limited sweep for the presence of other persons or weapons. See Maryland v. Buie, 494 U.S. 325, 327, 334-36, 110 S. Ct. 1093, 1094, 1098-99, 108 L. Ed. 2d 276, 281, 286-87 (1990); see also State v. Wright, 213 N.J. Super. 291, 294, 296 (App. Div. 1986) (public safety exigency justified warrantless search of motel premises to find gun used in immediately-reported crime), certif. denied, 118 N.J. 235 (1989); cf. New York v. Quarles, 467 U.S. 649, 651-52, 655-56, 104 S. Ct. 2626, 2629, 2631, 81 L. Ed. 2d 550, 554, 557 (1984) (defendant's statement about where he discarded a gun in a supermarket was admissible under public safety exception to requirement that police give Miranda warnings to suspect in custody).
In State v. Laboo, 396 N.J. Super. 97, 99-101, 108 (App. Div. 2007), we concluded that police officers were justified in breaking down an apartment door and entering without a warrant in the continuing investigation of several armed robberies that had occurred thirty hours earlier. The exigent circumstances were created by the seriousness of the offense, the quickly developing probable cause, and the police objective of ensuring the public's safety. Id. at 103-05. Here, the officer's entry was much less intrusive than in Laboo, and the shooting had occurred only thirty minutes earlier.
Determining whether exigent circumstances permitted the police to dispense with a warrant "demands a fact-sensitive, objective analysis" under the totality of the circumstances. State v. Nishina, 175 N.J. 502, 516-17 (2003) (quoting State v. Deluca, 168 N.J. 626, 632 (2001)). The exception for exigent circumstances does not have "neatly defined contours." State v. Cassidy, 179 N.J. 150, 160 (2004); see State v. Cooke, 163 N.J. 657, 676 (2000) ("the term 'exigent circumstances' is, by design, inexact"). An exigency usually requires a showing of spontaneous and unforeseeable circumstances. Nishina, supra, 175 N.J. at 516-17; Cooke, supra, 163 N.J. at 668. An important consideration is whether the exigency arose in a fluid, ongoing investigation that precluded an earlier attempt to obtain a warrant. See Hutchins, supra, 116 N.J. at 470-71.
Here, it clearly did. The information that the police learned in the minutes preceding their entry into defendant's room reliably identified defendant as the prime suspect in an attempted murder on the street by gunfire. No gun had been found, although the shooting had occurred only minutes earlier. There was potential danger to the safety of the residents of the rooming house and the police if the room was not secured by a limited entry to make certain no one else was present who had access to a gun. See Buie, supra, 494 U.S. at 335-36, 110 S. Ct. at 1099, 108 L. Ed. 2d at 287; State v. Henry, 133 N.J. 104, 118, cert. denied, 510 U.S. 984, 114 S. Ct. 486, 126 L. Ed. 2d 436 (1993).
Finally, defendant's focus at the suppression hearing, and on appeal, has been the police entry of the rooming house building rather than defendant's room. We have rejected any constitutional impropriety in that initial entry. Furthermore, the actual seizure of the clothing occurred after defendant consented to the search of his room. Nevertheless, we conclude that even before the police obtained defendant's consent, they could seize the clothing without violating defendant's constitutional rights. Once the highly incriminating nature of the clothing was determined from outside the room, where the police were permitted to be, they could enter for the purpose of seizing the evidence provided that they conducted no further search for other evidence. State v. O'Donnell, 408 N.J. Super. 177, 185-87 (App. Div. 2009), aff'd o.b., 203 N.J. 160, cert. denied, ___ U.S. ___, 131 S. Ct. 803, 178 L. Ed. 2d 537 (2010).
Having considered all the potential search and seizure issues, we find no legal or factual error in the trial court's admission of the clothing seized from defendant's room.
III.
In his pro se brief, defendant argues that Lameck's identifications of him should not have been admitted before the jury because they were the product of a suggestive "show-up" procedure on the date of his arrest. The trial court agreed that the show-up procedure was inherently suggestive, and it conducted an evidentiary pretrial hearing to evaluate the reliability of the identification. After hearing testimony directly from Lameck, the court determined that his identification of defendant was reliable and thus admissible. See State v. Madison, 109 N.J. 223, 232 (1988) (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). We find no reason to disturb that ruling.
The identification of defendant occurred before our State Supreme Court's decision in State v. Henderson, 208 N.J. 208 (2011), which does not apply retroactively, id. at 220, 302. At the time of defendant's trial, courts determined whether an identification was admissible based on five factors: (1) the "opportunity of the witness to view the criminal at the time of the crime"; (2) "the witness's degree of attention"; (3) "the accuracy of his prior description of the criminal"; (4) "the level of certainty demonstrated at the time of the confrontation"; and (5) "the time between the crime and the confrontation." Id. at 237-41 (quoting Madison, supra, 109 N.J. at 239-40). Based on those factors, a reliable identification was admissible while an unreliable identification was not. Ibid. On appeal, the trial court's reliability findings are "entitled to considerable weight." State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003).
Lameck testified that he came within eight feet or less of defendant earlier in the night and spoke to defendant and the other three men for several minutes. He saw defendant's face. Lameck testified further that, when the men came back four hours later, he zoomed in on their faces with the surveillance camera, thus indicating his attention to their identity. The show-up identification occurred within a few hours of Lameck's observation of the crime. Finally, there was no evidence that the officer who transported Lameck to the scene made suggestive comments prompting the identification, or that Lopez and Lameck exchanged information, especially since Lopez could not positively identify defendant as the shooter.
See also State v. Wilkerson, 60 N.J. 452, 461 (1972) ("On or near-the-scene identifications have generally been supported upon three grounds. They are likely to be accurate, taking place, as they do, before memory has faded. They facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent.")
Furthermore, we reject defendant's contention that the show-up identification was unreliable because Lameck was focused only on defendant's clothing. Lameck testified that he observed the man's face. Moreover, at the time of the show-up, defendant was not wearing the same distinctive shirt and cap seen on surveillance recordings.
The clothing, however, is very important in the case because, when the record of the trial is viewed in its entirety, Lameck's identification testimony played a much lesser role in the prosecution's case than did the surveillance recording in conjunction with the other evidence tying defendant to the crime. Lameck had some language difficulties in communicating his observations as a trial witness, and his identification testimony was not the prosecution's central point of emphasis.
Nor was the lack of clarity in the video recording a substantial obstacle to identifying defendant. The prosecution had produced still photographs from the recording for the jury to compare to the other evidence tying defendant to the crime. The crucial evidence was the unexplainable circumstances of defendant's vehicle being used by the shooter, his possession of the key to his vehicle when Sergeant Sarkos confronted him, the presence of the distinctive clothing in defendant's room, defendant's admission that others did not have access to his room, and the jury's ability to see for itself that defendant's general appearance was not noticeably distinct from the general appearance of the shooter seen on the video and in the still photographs.
In that regard, the defense produced testimony of the victim Green that may have hurt the defense more than it helped. Green swore under oath that the unknown assailant who shot him was taller than Green. Yet, the jury could see for itself that the shooter was shorter than Green, and it could compare the general appearance of the person seen on the video and in the photographs with defendant as he appeared in the courtroom.
Defense counsel had advised defendant against calling Green as a defense witness but deferred to defendant's instruction that Green and his testimony be presented to the jury.
--------
In sum, the jury could determine from all the evidence whether Lameck's identifications were reliable. The trial court did not err in its application of the existing law at the time of the trial and in permitting the jury to hear that testimony.
IV.
Defendant argues that prosecutorial misconduct tainted his trial. During the defense case, Green testified that a prosecutor's detective visited him while in prison and offered him a reduction of his own sentence for narcotics crimes if he testified that defendant shot him. In rebuttal, the prosecutor presented the testimony of the two detectives that had spoken to Green. One testified that he merely served a trial subpoena on Green on May 3, 2011, shortly before the trial. The second, Sergeant Davis of the prosecutor's office, had earlier testified in the prosecution's case in chief that he had visited Green on November 12, 2007, and that Green had refused to cooperate in the investigation.
Defendant urges prejudicial error in the following testimony by Sergeant Davis in response to the prosecutor's questioning when he was recalled to the stand during the State's rebuttal case:
Q: Ever tell Mr. Green that if he identified Kafele Bomani as the shooter you would help him out on his drug case?There was no further defense objection to the last two questions and answers. On cross-examination, the witness explained that plea bargaining was conducted by the prosecutor's office and that he did not get personally involved in offering leniency to potential witnesses.
A: No, I did not.
Q: Would that be breaking the law?
A: Yes, it would be.
[Judge sustains defense objection that the question was leading.]
Q: Is bribing someone breaking the law as far as you know?
A: Yes, it is.
Defendant argues the prosecutor engaged in flagrant misconduct requiring reversal of his conviction because plea bargains in exchange for testimony are not against the law, but the prosecutor suggested otherwise to the jury. The plain error standard of review applies to this contention because defense counsel at trial did not object for the reason that defendant now argues. A conviction will be reversed for plain error only if it was "clearly capable of producing an unjust result," R. 2:10-2, that is, if it was "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
While we agree with defendant that the last two quoted questions of the prosecutor were misleading and objectionable, no reversible error occurred. Green's testimony in the defense case suggested that police investigators wanted defendant identified as the shooter even if that evidence was untrue. The prosecutor could properly question the investigators who had contacted Green and ask them whether they ever asked Green to provide false information about the identity of the shooter. See State v. Engel, 249 N.J. Super. 336, 378-80 (App. Div.), certif. denied, 130 N.J. 393 (1991). Such conduct by the investigators, if it had occurred, would be illegal.
The prosecutor's questioning, however, did not directly address the relevant point. Instead, the prosecutor misleadingly suggested to the jury that any offer of leniency to a witness facing his own charges would constitute a bribe and, therefore, be unlawful. That obviously is not so, since plea bargaining in exchange for cooperation and testimony is neither unlawful nor unusual. See, e.g., State v. Dent, 51 N.J. 428, 438 (1968). Had defense counsel made a timely objection to the misleading nature of the questions, the trial judge could have promptly corrected any misconception of the jury about the availability of plea bargaining to obtain evidence in a criminal case. Absence of contemporaneous objection may lead to a fair inference that "in the context of the trial the error was actually of no moment." State v. Nelson, 173 N.J. 417, 471 (2002) (quoting Macon, supra, 57 N.J. at 333).
The prosecutor distorted the subject, but the matter was peripheral to the issues before the jury. The important fact is that Green never identified defendant as the shooter. No prejudicial evidence against defendant resulted from the investigators alleged offer of leniency to Green. The impropriety of the brief testimony did not result in a "possibility [that is] real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.
V.
Next, defendant argues that he was entitled to a new trial because of newly discovered exculpatory evidence he obtained from fellow inmate Hayes. The court held a post-trial evidentiary hearing at which Hayes testified. By oral decision on the date of defendant's sentencing, the court rejected Hayes's testimony as lacking any credibility, and it denied defendant's motion for a new trial.
A defendant is entitled to a new trial on the ground of newly discovered evidence when that evidence is:
(1) material to the issue and not merely cumulative or impeaching or contradictory;All three prongs of the test must be satisfied before a defendant will be granted a new trial. Ibid.; State v. Artis, 36 N.J. 538, 541 (1962).
(2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted.
[State v. Carter, 85 N.J. 300, 314 (1981)].
In State v. Ways, 180 N.J. 171, 187 (2004), the Court confirmed the three-part test for granting a new trial, but it also commented that:
A jury verdict rendered after a fair trial should not be disturbed except for the clearest of reasons. Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial.
[Id. at 187-88 (citing State v. Buonadonna, 122 N.J. 22, 51 (1991)).]
Here, the trial court accepted that defendant's evidence satisfied the first two factors of the test, but it concluded that Hayes's testimony would probably not have changed the verdict because it was not at all credible. The court commented that Hayes's testimony was inconsistent with his signed certification. For instance, in his certification, Hayes did not say he saw the shooting, but in court he said he did. Hayes also said in his earlier statement that several individuals were fighting with him and Green on the date of the shooting, but in court he said there was only one person. The court also found Hayes lacked credibility because of his prior record of criminal convictions and because of his prior relationship with defendant and his relatives. Hayes was a friend of defendant's nephews and nieces. Most important, the court questioned Hayes's motivation for coming forward after the trial rather than before or during the trial. The court discredited Hayes's explanation that his inclination not to get involved was set aside because he learned only recently that defendant faced a potential life sentence for the crime. Just as the jury rejected Green's exoneration of defendant, the jury was likely to weigh Hayes's version against the other evidence tying defendant to the crime and find it to have been fabricated as well.
In short, the trial court "engage[d] in a thorough, fact-sensitive analysis to determine whether the newly discovered evidence would probably make a difference to the jury." Ways, supra, 180 N.J. at 191. It concluded that it would not, and we find no basis on this record to disagree with that conclusion.
VI.
At sentencing, the court determined that defendant was subject to a mandatory extended term sentence pursuant to N.J.S.A. 2C:43-6(c) and 44-3(d) ("the Graves Act") based on defendant's prior conviction from 1991 for aggravated assault with a firearm. As a young adult, defendant was convicted of pointing a loaded handgun at a police officer who was pursuing him. Because of the prior firearms offense, the mandatory sentencing range on the attempted murder charge was from twenty years to life in prison. N.J.S.A. 2C:43-7(a)(2).
The court reviewed defendant's adult criminal record and noted also that he had an extensive juvenile offense history. As an adult, defendant was convicted in 1989 of burglary, in 1991 of possession of a sawed-off shotgun, also in 1991 of the predicate Graves Act assault we described and other related weapons offenses, and separately in 1991 of distributing cocaine. His record showed that he had violated a probationary sentence and also the conditions of parole and that he was required in each instance to serve additional time in custody. In 1999, defendant was again convicted of a narcotics offense and sentenced to prison. He completed the last of his prison sentences in 2000, seven years before he committed the crimes in this case.
The court noted that defendant's prior arrests and sentences had not deterred him from possessing firearms in violation of the law, and, in fact, his conduct had escalated in 2007 in that he used a firearm against the person of another. Defendant's record and the circumstances of the offense in this case led to the court's finding of aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a), and no mitigating factors, N.J.S.A. 2C:44-1(b). We have no disagreement with those findings. See State v. Bieniek, 200 N.J. 601, 608-09 (2010).
In balancing the factors, the court concluded that a life sentence subject to the eighty-five percent parole ineligibility mandate of NERA, N.J.S.A. 2C:43-7.2, was justified in this case.
On appeal, a sentence will be affirmed unless the sentencing court abused its discretion (1) by failing to base findings of fact on competent, reasonable credible evidence; (2) by failing to apply correct legal principles; or (3) "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, 362-66 (1984). Here, we conclude that the court made findings regarding the weight and effect of general deterrence as part of aggravating factor nine based on considerations outside the record and based upon misapplication of the court's sentencing authority.
In eloquent language, the sentencing court expressed its dismay that the victim Green had determined not to cooperate with the police and had gone so far as giving obviously false testimony at defendant's trial. The court stated that Hayes's late emergence for a similar purpose was additional evidence that defendant and his witnesses were intent on following "some code other than the New Jersey code of criminal justice." The court attributed to defendant and others in the criminal community a belief that they could escape criminal liability because this other code of behavior would protect them. Citing State v. Byrd, 198 N.J. 319, 341 (2009), the court referred to the problem of witnesses refusing to testify for fear of retaliation by gangs, and it also referred to a newspaper editorial about the silence of crime victims in dangerous urban settings. In the same vein, the court referenced a recent amendment to the New Jersey Rules of Evidence, N.J.R.E. 804(b)(9), creating a hearsay exception where a party has wrongly procured the unavailability of the declarant as a trial witness. In closing on this subject, the court said "I see the aggravating factors — and, again, especially factor nine — as demanding aggressive and forceful response on behalf of the public."
While the court's concerns were legitimate and perhaps justified in this case, defendant was not charged with and was never convicted of suborning perjury from Green and Hayes, and there was no evidence other than the court's perception that he had orchestrated false defense testimony. Although the court understandably sought to address the problem of victim and witness intimidation, and neglect of an orderly system of criminal justice, it had no authority to sentence defendant for engaging in unproven conduct. Its sentencing authority was limited to the crimes for which defendant had actually been convicted, an attempted murder and the possession of a firearm by a convicted person. To accomplish the general deterrent effect that motivated the court, the State would have to charge and convict this defendant or others for engaging in criminal activity related to the separate code of justice to which the court referred.
Unless otherwise authorized by statute, a criminal sentence may not be based on "consideration[s] wholly unrelated to [the] underlying crime." State v. Ikerd, 369 N.J. Super. 610, 621 (App. Div. 2004); see also State v. Sainz, 107 N.J. 283, 293 (1987) (the court is not permitted to sentence for a crime to which defendant did not plead guilty). Although a general deterrence rationale is appropriate, including for crimes related to the offense of conviction, see State v. Ivan, 33 N.J. 197, 202-03 (1960), the court may not increase a defendant's sentence for crimes or wrongs that have not been proven and that are not part of the charges on which defendant stands convicted.
We reverse the life sentence imposed on defendant for attempted murder and remand for resentencing on that and the merged charges. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION