Opinion
DOCKET NO. A-5597-12T1
01-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MIGUEL JONES, a/k/a JAMAL TAJI and TAJI J. JONES, Defendant-Appellant.
Michael J. Confusione, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Confusione, on the brief). Emily R. Anderson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Anderson, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and Suter. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-02-0175. Michael J. Confusione, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Confusione, on the brief). Emily R. Anderson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Anderson, of counsel and on the brief). PER CURIAM
A jury convicted defendant Miguel Jones of two counts of certain persons not to have weapons offenses, N.J.S.A. 2C:39-7, and the judge sentenced him to an aggregate term of nine years' imprisonment, with a mandatory five-year period of parole ineligibility. He appeals, challenging the consent search that led to the discovery of the weapon, the prosecutor's conduct at trial and his sentence. Finding no reversible error, we affirm.
The only witnesses to testify at the suppression hearing were three members of the Elizabeth Police Department. The three testified consistently regarding their arrest, on a warrant, of one Torian Clark on a public street during the day in a high-crime area of the city. The police were in the area following reports that a new gang from Linden was moving into Elizabeth. One of the detectives recognized Clark as a reputed member of this new gang. In the course of arresting Clark, the detectives discovered he was in possession of cocaine. After the officers handcuffed him, he yelled out to people nearby urging them to hurry to the house. Believing that Clark was directing unknown persons to his house before the police could get there, the detectives went immediately to Clark's home a few blocks away.
Outside, they encountered a woman with a large laundry bag about to step into a taxi. When the woman said she lived with Clark, one of the officers explained they had just arrested Clark and discovered him with drugs. The officer asked the woman's permission to search the apartment. The woman made clear that she had no involvement in whatever had prompted Clark's arrest and no reason to object to the police searching her apartment, which she advised she and Clark shared with defendant and Tiffany Greene. She told the officers she thought defendant and Greene were asleep in the back bedroom. She also explained there were dogs inside. She walked upstairs behind the first officer, who knocked loudly at the apartment door, announcing the police presence and cracking the door slightly to ensure the dogs weren't loose before entering.
Once inside two officers sat with the woman and reviewed with her the consent-to-search form, including advising her that she could refuse the officers' request to search, while the other stood nearby. After the woman executed the form, Detective Diorio walked toward the back bedroom looking for any other people in the apartment. The door to the bedroom was open, and he saw what appeared to be two people, defendant and his girlfriend, Greene, sleeping in a bed under a blanket.
Diorio announced his presence and asked the couple to get out from under the covers and stand up. Conscious of his safety, he watched as the two got out of the bed. As defendant did so, he turned his back toward the detective, who heard something fall to the floor. Looking at the floor, Diorio saw a gun that defendant was attempting to cover with his feet. The detective arrested defendant. A subsequent search of the bedroom revealed four pieces of identification for defendant and a spent nine millimeter shell casing.
After hearing the testimony, the judge rejected defendant's argument that the consent to search the apartment was improperly obtained. The judge found the officers' testimony credible in establishing the events of Clark's arrest and the subsequent consent search of his apartment. He found consent was properly obtained from Clark's girlfriend, who told police she lived in the apartment with Clark, as well as with defendant and Greene, and who voluntarily executed a consent-to-search form after being advised of her right to refuse consent.
The judge also found that seizure of the gun was justified under the plain-view exception to the warrant requirement. He reasoned that Officer Diorio was lawfully in the hallway of the apartment with one of the tenants' consent when he saw defendant and Greene lying in bed through the open door of their bedroom. The judge found that "Detective Diorio initially went to the bedroom containing defendant Jones to safely secure Jones and Greene while the search was being conduct[ed] of the apartment. . . . Without searching the bedroom, Detective Diorio asked defendant Jones to come out from under the covers and when defendant Jones complied" the gun fell to the floor making it visible to the detective. Finding the officer's discovery of the gun plainly inadvertent and the gun obviously contraband, the judge found it met the requirements to qualify as a plain-view seizure.
At trial, Officer Diorio testified consistently with the testimony he offered at the suppression hearing. Both Greene and defendant testified that the gun belonged to Greene. Greene testified she bought the gun for protection and kept the loaded weapon in her closet during the day and on the floor by the side of her bed at night. She was forced to admit on cross-examination, however, that she initially told the police she did not know about the gun and that "[t]here was no way that it could have been in the bed." Defendant testified that he thought the gun was a "setup" and had no idea how it got to be on the floor beside the bed. He did admit trying to kick it under some clothes when he felt it under his feet because he knew that being caught in possession of a gun would immediately terminate his parole and send him back to prison.
Both defendant and Greene testified that although the gun belonged to Greene, defendant was initially inclined to say the gun was his in order to avoid Greene's arrest, which would end her plans of becoming a teacher. After "going back and forth" with Greene and his parents about this, defendant decided it "wouldn't be fair to [his] kids and it wouldn't be fair to [his] family" to go to jail for a crime he did not commit to spare Greene. Greene testified that she wanted to tell the officers who arrested defendant that the gun was hers but was afraid to do so at the time of defendant's arrest.
A forensic scientist testified for the State that she found a mixture of the DNA of a man and a woman on the grip and the slide of the gun. She concluded defendant could not be excluded as the one person in 16 million unrelated African Americans who could have contributed to the DNA mixture found on the grip of the handgun; or the one person in 990 million unrelated African Americans who could have contributed to the DNA found on the slide.
Defendant also testified he did not live in the apartment with Greene, notwithstanding that his name was on the lease. He explained that he co-signed the lease for Greene because she was unemployed at the time and needed his signature to get the apartment. He claimed he lived with his parents. He told the jury that on the day of his arrest, he had taken his parents to the airport early that morning. Coming back from the airport, he stopped in at his fiancé's apartment to see her and take a nap before work. In her statement to the police at the time of defendant's arrest, Greene claimed defendant had spent the night with her in the apartment, and they had been awakened by the police standing in their bedroom.
Greene initially told the jury that she and defendant lived together in the apartment. She later testified that defendant did not live in the apartment. She also claimed she had been engaged to defendant for five months at the time of his arrest. Defendant testified that he and Greene had been engaged "[g]oing on five years" at the time of trial. Defendant's father testified that defendant lived with him in Linden, "99 percent of the time," although he admitted defendant did not sleep there every night.
In his summation, defendant's counsel argued to the jury that it was not defendant's apartment, that it was not defendant's gun but instead the gun belonged to Greene, and that the only time defendant ever touched the gun was when he inadvertently stepped on it getting out of the bed at Diorio's command.
On appeal, defendant makes the following arguments:
I. THE PROSECUTOR PLACED UNFAIRLY PREJUDICIAL EVIDENCE BEFORE THE JURY THAT PAINTED DEFENDANT AS A BAD PERSON.
II. THE PROSECUTOR IN HER OPENING STATEMENT AND CLOSING ARGUMENT DISTORTED THE BURDEN OF PROOF (PLAIN ERROR).
III. THE PROOFS FAILED TO ESTABLISH THE REQUIRED ELEMENTS OF THE CRIME BEYOND A REASONABLE DOUBT (PLAIN ERROR).In a supplemental brief, defendant refined his argument on point IV as follows:
IV. THE MATTER SHOULD BE REMANDED FOR FURTHER CONSIDERATION AND RULING ON WHETHER THE WARRANTLESS ENTRY BY POLICE ON THE DAY IN QUESTION WAS CONSTITUTIONAL (PLAIN ERROR).
V. DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
IV. THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED BY POLICE FOLLOWING THEIR WARRANTLESS ENTRY INTO THE RESIDENCE IN QUESTION (RAISED BELOW).We reject all of these arguments.
Defendant first contends that the prosecutor improperly elicited "bad-act" evidence in violation of N.J.R.E. 404(b) and placed him in a negative light before the jury when she highlighted that while engaged to Greene, defendant had fathered a child by another woman. The exchange occurred during the prosecutor's cross-examination of defendant. The prosecutor appeared to be exploring defendant's relationship with Greene and his claim that he talked with his parents and Greene the night of his arrest about whether he should continue to let the police think it was his gun or whether Greene should confess the gun belonged to her. Defendant's counsel objected at sidebar to further questions on the topic and the prosecutor agreed to abandon it. When the judge asked defense counsel whether he wanted a curative instruction, however, counsel declined.
As the Supreme Court has reminded, "a trial is not a perfectly scripted and choreographed theatrical presentation," rather "[i]n any trial, 'inadmissible evidence frequently, often unavoidably, comes to the attention of the jury.'" State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v. Winter, 96 N.J. 640, 646 (1984)). We may not order a new trial in such circumstance unless we are convinced the inadmissible evidence coming before the jury was "clearly capable of producing an unjust result." R. 2:10-2; see also id. at 397-98.
We understand defendant's argument that the prosecutor should not have queried him about his having fathered a child by a woman other than his fiancé. The information was likely only marginally relevant and could cause some jurors to view him unfavorably. We cannot, however, conclude the error, if there was one, was capable of causing the jury to wrongly convict him of the certain persons offenses.
First, the jury had already learned through defendant's father that defendant was not faithful to Greene. In trying to establish that defendant lived with his parents and would only occasionally stay with Greene in her apartment, defense counsel asked defendant's father if he knew where defendant stayed when he wasn't at home. Defendant's father responded: "Well, to be honest with you Miguel was messing around with so many different girls that sometimes he would stay with — he has three kids with this one girl. Sometimes he would stay with her. And sometimes he would stay with Tiffany [Greene]. And who knows who else."
Second, defense counsel declined the court's offer of a curative instruction. The transcript makes clear that counsel went to sidebar to limit the prosecutor's further exploration of this topic. When the prosecutor agreed to abandon the line, counsel was satisfied. Defense counsel is obviously in the best position to gauge when to object and whether a curative instruction is necessary. See State v. Witte, 13 N.J. 598, 611-12 (1953), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). Counsel's refusal of the court's offer of a curative instruction here suggests he had achieved his objective of limiting further inquiry into this topic and deemed the brief exchange between the prosecutor and defendant to be "actually of no moment." State v. Macon, 57 N.J. 325, 333 (1971). Having chosen that course, he should not be heard to complain of it now. See Yough, supra, 208 N.J. at 400-01.
Defendant next asserts that the prosecutor distorted the burden of proof in her opening when, after telling the jury "[t]he State submits . . . you'll come to the conclusion at the end of this case that the Defendant is in fact guilty of possessing a firearm," she said:
And if the State does in fact prove that beyond a reasonable doubt, I will be given the opportunity to come back here and speak to you again at the end of the case. And at that time I will ask you for a verdict of guilty.She reminded the jurors of those remarks in her closing.
We agree with defendant that the prosecutor's remarks improperly suggested that "if the prosecutor was allowed to give a summation at the close of the case, then the prosecutor must have proven the crime beyond a reasonable doubt." Although not condoning the remarks, we do not conclude they were so egregious as to have deprived defendant of a fair trial. See State v. Frost, 158 N.J. 76, 83 (1999). Defendant's counsel did not object to the remarks, suggesting he did not consider them prejudicial when he listened to the prosecutor's entire opening and summation. Id. at 84. Moreover, we are satisfied that Judge Daniel's clear instruction to the jury on the burden of proof, and his admonition to jurors that the prosecutor's opening was only what the State contends it will prove and is not evidence was sufficient to render the prosecutor's misstatement harmless beyond a reasonable doubt. See Smith, supra, 212 N.J. at 409.
We reject as not worthy of discussion in a written opinion defendant's contention that the prosecutor "distorted" the "nature" of the parties' stipulations as to the operability of the firearm and defendant's prior felony conviction. R. 2:11-3(e)(2). The record leaves no doubt that the jury understood it was free to accept or reject the stipulations, and that the State bore the burden of proving all elements of the offenses beyond a reasonable doubt. See State v. Smith 212 N.J. 365, 409 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
We next reject as without merit defendant's argument that the State failed to prove he was in actual or constructive possession of the gun. See R. 2:11-3(e)(2). In addition to the very strong DNA evidence, the State demonstrated that the gun was either on defendant's person or so close to him that it fell at his feet when he rose from the bed. Viewed in the light most favorable to the State, as required, see State v. Nero, 195 N.J. 397, 410 n.3 (2008), the State's proofs were sufficient to establish defendant's intentional control and dominion over the gun or his capacity to exercise control of it under the circumstances. See State v. Brown, 80 N.J. 587, 597 (1979).
Defendant next contends in an argument not raised to the trial court that we should remand for "further consideration and ruling on whether the warrantless entry by police on the day in question was constitutional." He claims that the judge deciding the suppression motion "did not make findings as to whether the back bedroom where defendant was located was his own unit or private space — apart from [the consenting tenant's] area and beyond the area over which [the consenting tenant] possessed 'common authority.'" We agree that the motion judge did not make such specific findings, but that was obviously due to defendant having not made the argument to the trial court he now makes to us.
In response to defendant's new argument that Greene's co-tenant had no authority to consent to the search of the back bedroom Greene shared with defendant on the day of his arrest, the State has responded with its own new argument that the search was justified as a protective sweep. Although the motion judge was without the benefit of either of these arguments, we are satisfied his findings on the evidence presented were sound and support denial of the motion, even in light of the new arguments.
The State advised at oral argument that it was "not affirmatively asserting" that defendant's co-tenant had authority to give consent to search the back bedroom it asserts defendant shared with Greene.
Our standard of review on a motion to suppress is, of course, limited. We must defer to the trial court's factual findings, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention and correction. State v. Elders, 192 N.J. 224, 245 (2007). Our review of the trial court's application of the law to the facts, however, is plenary. State v. Coles, 218 N.J. 322, 342 (2014).
There is no dispute that the co-tenant possessed authority to give the police consent to search the bedroom she shared with Clark and the common areas of the apartment the two shared with Greene and defendant. See Fernandez v. California, 571 U.S. ___, 134 S. Ct. 1126, 1129, 188 L. Ed. 2d 25, 30 (2014) (holding police officers may search jointly occupied premises if one of the occupants consents); see also United States v. Matlock, 415 U.S. 164, 171 n.7, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 250 (1974) (holding third party who possesses common authority over or other sufficient relationship to property sought to be inspected may consent to its search); Coles, supra, 218 N.J. at 340 (noting state law has recognized third party's ability to consent to a search when the consenter has common authority for most purposes over searched space).
The motion judge, who was not the same judge who presided over the trial, found, based on unrebutted testimony, that Officer Diorio was lawfully in the common hallway of the apartment pursuant to the co-tenant's consent when he observed defendant and Greene through the open door of their bedroom. Although not expressly stating that the officer's act of ordering defendant and Greene out of the bed was justified as a protective sweep, see Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 1094, 108 L. Ed. 2d 276, 281 (1990), the judge expressly found that "Detective Diorio initially went to the bedroom containing defendant Jones to safely secure Jones and Greene while the search was being conduct[ed] of the apartment." The judge further found that upon viewing the two and "[w]ithout searching the bedroom, Detective Diorio asked defendant Jones to come out from under the covers and when defendant Jones complied" the gun fell to the floor making it visible to the detective.
Our Supreme Court in State v. Davilla, 203 N.J. 97, 125 (2010), held a protective sweep of a home "may only occur when (1) law enforcement officers are lawfully within the private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger." The Court held "[w]here those substantive conditions are met, as a matter of procedure, the sweep will be upheld only if (1) it is cursory, and (2) it is limited in scope to locations in which an individual could be concealed." Ibid. Applying those principles to the facts found by the motion judge, we are satisfied that Officer Diorio was justified in rousting defendant and Greene from their bed after receiving their co-tenant's consent to search the apartment and seizing the gun that fell to the floor when defendant got to his feet.
When the officers arrested Clark, they were aware that he was a reputed member of the Bloods, the gang trying to move into Elizabeth from Linden. In addition to finding Clark in possession of cocaine, the officers heard him yell out to some people nearby to hurry to the house. Believing that Clark was directing confederates to his home, the officers went directly there. Thus when they obtained the co-tenant's consent to search the apartment, the officers were legitimately concerned there might be others in the apartment engaged in criminal activity. Under those circumstances, we are satisfied that the motion judge's finding that Officer Diorio walked to the rear of the apartment to secure defendant and Greene was sound, and that the officer was justified in doing so pursuant to the protective sweep doctrine. The officer's actions were certainly objectively reasonable, and we agree with the motion judge that the detective properly seized the gun in plain view for the reasons stated in his oral opinion on the suppression motion. See State v. Bruzzese, 94 N.J. 210, 236-38 (1983).
Whether the police lawfully seized the four pieces of identification belonging to defendant they found on the bedside table and on the top of a dresser in the bedroom and the spent shell casing recovered from the bedroom floor is a much closer question on this record. Because the parties proceeded on different theories at the suppression hearing, the questioning of the officers and the findings of the judge were not so sharply focused on the seizure of these items. Indeed, there was no testimony at the suppression hearing about these items or where they were found. The motion judge only mentioned them in recapping the facts, and the State does not refer to them in their arguments to this court. Defendant argues in his supplemental and reply briefs that seizure of defendant's identification and the spent shell casing exceeded the scope of any search incident to arrest under State v. Rose, 357 N.J. Super. 100, 104 (App. Div.), certif. denied, 176 N.J. 429 (2003), and no other exception to the warrant requirement applies.
Defendant filed a brief arguing to the judge hearing the suppression motion that the co-tenant had been coerced into giving consent to search the apartment. The lead investigator who spoke to defendant's co-tenant and obtained her consent to search had already testified and been excused before defense counsel noted on the record that he was also relying on State v. Douglas, 204 N.J. Super. 265, 278 (App. Div.) (noting a protected expectation of privacy may exist where a defendant has taken some special steps to protect his personal effects from the scrutiny of others but holding no such expectation existed where bedroom searched did not have a door), certif. denied, 102 N.J. 378 (1985), regarding defendant's "expectation of privacy" in the back bedroom of the apartment. That isolated reference is the only one we could find to the argument on which defendant now relies on appeal. --------
We do not need to decide the issue of whether any exception to the warrant requirement justified seizure of these items for two separate reasons. First, having scoured the trial record, we cannot discern any harm to defendant presented by the State's having introduced into evidence defendant's identification, specifically a Capital One MasterCard, two social security cards and a driver's license. See State v. Hunt, 91 N.J. 338, 350 (1982). The State does not appear to have made any use of these items in its case against defendant, while defendant used the driver's license, which bore his parents' address, to buttress his argument that he did not live at Greene's apartment.
Second, as to the spent shell casing, the State did not mark or introduce it into evidence. Defendant marked the shell casing for identification during his cross-examination of Detective Diorio. He used it to highlight the State's failure to test it, as well as the magazine and the bullets recovered from the gun, for DNA. Defense counsel argued to the jury in closing that defendant's DNA on the gun came from his foot when he stood on it as he got out of the bed, and that the State's failure to test the magazine, the bullets and the spent shell casing, where one would certainly expect to find defendant's DNA if he possessed the gun as the State asserted, was telling.
As we can find no harm to defendant from the admission of his identification, which only he made use of at trial, and any harm flowing from the spent shell casing was clearly invited, see State v. Munafo, 222 N.J. 480, 487 (2015), we reject defendant's argument that the use of this evidence at trial requires reversal of his conviction or a remand for reconsideration of whether seizure of these items was lawful.
Finally, we reject defendant's argument that his sentence is excessive. It is axiomatic that "[a]ppellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure the sentence imposed was within the statutory guidelines, and the aggravating and mitigating factors the trial judge found are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). Applying those standards here, we discern no error in defendant's sentence.
There is no dispute that defendant was eligible for an extended-term sentence based on his prior criminal convictions. N.J.S.A. 2C:44-3a. Indeed, the State sought an extended-term sentence of twenty years with a ten-year period of parole ineligibility. Judge Daniel, however, was satisfied that an appropriate sentence could be fashioned within the ordinary range for a second-degree crime. He thus denied the State's motion for an extended term and sentenced defendant to a term of nine years with a five-year period of parole ineligibility.
The judge carefully explained his reasons for finding aggravating factors three, the risk that the defendant will commit another offense, N.J.S.A. 2C:44-1a(3); six, the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1a(6); and nine, the need for deterring the defendant and others from violating the law, N.J.S.A. 2C:44-1a(9); and mitigating factor one, the defendant's conduct neither caused nor threatened serious harm, N.J.S.A. 2C:44-1b(1). He also explained his reasons for rejecting the other mitigating factors urged by defense counsel. We are satisfied that Judge Daniel's careful findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record; the sentence he imposed is consistent with sentencing provisions of the Code of Criminal Justice, and it does not shock our judicial conscience. See State v. Fuentes, 217 N.J. 57, 70 (2014); Bieniek, supra, 200 N.J. at 608; State v. Cassady, 198 N.J. 165, 180-81 (2009); State v. Roth, 95 N.J. 334, 364-65 (1984).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION