Opinion
DOCKET NO. A-0098-14T4 DOCKET NO. A-0327-14T4
05-13-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BERNARD A. VALENTIN, a/k/a VALENTINE BERNARD A., Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALTONIO WILLIAMS, a/k/a ASA FANN, ATONIOY WILLIAMS, ANTONIO FANN, ANTHONY A. WILLIAMS, SHY GUY, ALTONIA D. WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Bernard A. Valentin (John A. Albright, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Altonio Williams (Frank M. Gennaro, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Lisa Sarnoff Gochman, Legal Assistant, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Carroll and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-02-0223. Joseph E. Krakora, Public Defender, attorney for appellant Bernard A. Valentin (John A. Albright, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Altonio Williams (Frank M. Gennaro, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Lisa Sarnoff Gochman, Legal Assistant, on the brief). PER CURIAM
Defendants Bernard Valentin and Altonio Williams were tried together and convicted of burglary and related theft offenses in connection with their involvement in three residential burglaries in Tinton Falls and Manalapan on February 24, 2011. Each defendant raises various issues in challenging their convictions and sentences, but they join in challenging the denial of a pre-trial motion to suppress the fruits of a motor vehicle search. Having considered the parties' arguments in light of the record and applicable legal principles, we find no error and affirm, although a remand is required for a correction of Williams's judgment of conviction (JOC).
We calendared these matters back-to-back and now consolidate them for purposes of rendering a single opinion.
I.
The charges brought against defendants and a co-defendant, Creg Curry, involve events that took place at three separate residences on February 24, 2011. That morning, Williams and Valentin borrowed a red Nissan Pathfinder from a female acquaintance of Williams. In connection with a prior offense, Valentin was wearing a GPS tracking device around his ankle, which enabled his location to be monitored every three minutes. The GPS tracking device placed Valentin at various single-family homes on Winchester Drive in Tinton Falls between 10:19 a.m. and 11:19 a.m. During that period, jewelry was stolen from a home on Winchester Drive. A second home in close proximity on Winchester Drive was also burglarized, and a handgun, jewelry, a coin collection, and other currency that included a stack of $2 bills were stolen. In both instances, pillow cases were used to carry away the stolen items.
At 12:22 p.m., Valentin's GPS device placed him on Thomas Drive in Manalapan. At approximately 12:30 p.m., a housekeeper witnessed Valentin and Williams using a crowbar to pry open the back door of a home on Thomas Drive, and observed a "reddish" truck parked in the driveway. The housekeeper fled and ran to the home of a neighbor, who called 9-1-1. The back door was damaged, the house ransacked, $1000 in cash stolen, and a pillow case containing a valuable watch was left behind.
At 12:34 p.m., Officer Richard Gallo of the Manalapan Police Department (MPD) responded to the 9-1-1 call. As Gallo was about to turn on to Thomas Drive, the dispatcher informed him that a burgundy SUV had just left the home. Three minutes later, Gallo observed MPD Officer Felicia stop the vehicle on Tennent Road between Thomas Drive and Craig Road. Curry was the driver and sole occupant of the vehicle, which proved to be the same Nissan Pathfinder that Williams and Valentin had previously borrowed.
Felicia instructed Curry to exit the vehicle and sit on the curb, and then asked what he was doing in the area. Curry responded that he was looking for a girl he met on the Internet but did not know her name or address. When other officers confirmed that the home on Thomas Drive had been burglarized, Curry was arrested and handcuffed. A search incident to Curry's arrest yielded two cell phones, $594 in cash, and twenty-four $2 bills.
At 12:30 p.m., a worker who was installing carpet at a neighboring home on Thomas Drive saw two suspicious-looking African-American males running nearby. One then crouched down behind a black Toyota Celica, and the other appeared lost. The worker described that one of the men wore a white thermal shirt, and also observed that a white item and a black item were dropped.
Police saw two sets of muddy footprints and a crow bar outside the Thomas Drive home, leading them to search the surrounding area for the burglars. The worker directed them toward the men he had seen. At 12:45 p.m., the officers found Valentin hiding in a hedge just a few houses away from the burglarized home. They recovered two knit gloves, one black and the other white, approximately thirty feet from where Valentin was found. The officers later determined that the distinctive tread on the soles of Valentin's boots matched one of the muddy foot prints at the crime scene. At 12:51 p.m., Detective Joseph Moreto and Captain Chris Marsala of the MPD found Williams a "very short distance" away from the Thomas Drive home, wearing a white thermal shirt and in possession of a Uniden two-way radio.
The next evening, after learning of the Tinton Falls burglaries, Moreto sought and obtained a warrant to search the Nissan Pathfinder. Inside the vehicle police discovered a Uniden two-way radio, along with two pillow cases that contained a handgun, coin collection and jewelry that the owners of the Tinton Falls homes later identified as their stolen property.
Prior to trial, defendants and their co-defendant, Curry, moved to suppress the items seized from the Nissan. Moreto testified that, after the vehicle was stopped, Curry was removed, patted down for safety, and seated on the curb. Curry was informed he was not under arrest but was being detained. Because the vehicle's tinted windows prevented Moreto from seeing inside, he and MPD Officer Grant opened the car doors to see whether any other passengers were present. The motion judge described the police video recording of the stop as showing "the two officers opening the driver and passenger side door, looking in the car and under the seat briefly, and then shutting the door. Nothing was removed from the Pathfinder." The following evening, Moreto obtained and executed the search warrant that led to the discovery of the items linking defendants to the three burglaries.
The motion judge, who was not the trial judge, in a written opinion, denied the motion. He concluded:
The investigative stop of co-defendant Curry was supported by sufficient legal grounds. Any search of the vehicle done prior to receiving the warrant was improper as there were no exigent circumstances. However, it does not appear that any item was recovered or even observed during the [roadside] inspection of the Pathfinder. It does not appear that the roadside inspection was used to obtain the search warrant, so that the evidence discovered in the vehicle is admissible. This evidence is probably also admissible under the doctrine of inevitable discovery.
On February 14, 2014, before the trial judge was on the bench, the following colloquy occurred in the presence of the jury:
DEFENDANT WILLIAMS: Why don't you tell the jurors how you won't let my witnesses come and testify on my behalf?
SHERIFF'S OFFICER: Whoa.
DEFENDANT WILLIAMS: No, man. It's messed up, man, and when I was in the back, I was only in the back of the house because I had went for Miami for a small court.
SHERIFF'S OFFICER: Hey, stop it.
DEFENDANT WILLIAMS: This man, this man be locked up for three years. These not my friends, man. I going to jail for what?
SHERIFF'S OFFICER: Listen, relax. Okay.
DEFENDANT WILLIAMS: Because I ain't want to tell nobody. I can't tell nobody because I don't know nothing. I don't know nothing. How can I tell you something that I ain't know? You going to be mad at me because I called her a fat c**t. Come on, man.
Defense counsel for Curry and Valentin jointly moved for a mistrial. The prosecutor conceded that Williams indicated that Valentin had previously been in jail for three years. Valentin's counsel argued that the jury would likely infer that based on the actions of Williams, and the connection between Valentin and Williams as codefendants, "what happened here cannot be undone even with any curative instruction." Curry's defense counsel additionally argued that the jury would likely presume that Williams' statement that he can't tell on them refers to Valentin and Curry.
The trial judge denied Valentin and Curry's joint mistrial motion, accompanied by the following explanation:
THE COURT: . . . with regard to [] Valentin, my thought is this: I will bring the jurors out. I'm going to instruct the jurors to totally disregard anything that [] Williams said. I'm not going to grant a mistrial. I think that these jurors are quite capable of making a decision based upon the evidence that's presented without regard to these kind of miscellaneous, somewhat nonsensical statements that were made.
I know you object, . . . you've already indicated that on the record, but with regard to the statement regarding [] Valentin being in jail, I can do what I just indicated I was going to do, . . . and I'm going to do that at a minimum.
What I could also do is indicate to the jurors that . . . they can't take into consideration the fact that someone is in jail. I can give them an instruction in that regard.
. . . .
THE COURT: . . . so with regard to the jury instruction, would you like me to specifically address the being in jail part of [] Williams' comments or not? Because I am prepared to do that . . . . but this isn't the first time in the history of court cases where a jury has or may have learned that an individual has been in custody. There are instructions that can be given with regard to that to diffuse that
. . . .
[VALENTIN'S DEFENSE COUNSEL]: Well, . . . I would prefer you say that to totally disregard the comments of [] Williams, [] Williams's . . . comments have nothing to do with the other two defendants or his knowledge whether they were incarcerated or not. . . . In fact, I prefer you didn't say
anything about the incarceration, just to disregard any statements made by [] Williams.
. . . .
[VALENTIN'S DEFENSE COUNSEL]: I'm sorry, Judge. In retrospect, protecting the record, not knowing what an [a]ppellate [c]ourt is going to review, I think you should say something about disregarding, you know, any comments about being arrested. . . . You heard comments about him being in jail . . . . Whether or not he was in jail has nothing to do with this case.
THE COURT: Well, one instruction I might give with regard to that is when people are arrested and bail is set, the fact that a person might not be able to make bail and might be incarcerated is not something that the jurors can consider in any fashion. Is that the type of instruction you would like me to give?
[VALENTIN'S DEFENSE COUNSEL]: That's fine, Judge, respectfully.
The trial judge subsequently proceeded to question each juror individually. Following this questioning, Valentin and Curry renewed their joint mistrial motion. The trial judge reiterated his decision to deny the motion and issued a comprehensive curative instruction to the jury. After the luncheon recess, and as the jurors were filing out of the courtroom to resume their deliberations, Williams initiated a similar disruption:
DEFENDANT WILLIAMS: Again, Valentin locked up -
THE COURT: That's it, [] Williams.
You can all go in the jury room.
DEFENDANT WILLIAMS: -- three days --
THE COURT: Okay, sir.
You can all go in the jury room.
DEFENDANT WILLIAMS: -- on a drug charge and Curry got a rape charge, too.
THE COURT: Okay.
DEFENDANT WILLIAMS: He raped . . . my cousin and they told me . . . if I [] testify . . . they were going to beat me up and they going to kill me. They said they was going to kill me.
THE COURT: You can escort [] Williams out.
THE COURT CLERK: Now.
DEFENDANT WILLIAMS: They say they going to kill me.
SHERIFF'S OFFICER: Lock him up. Let's go. Let's go. Get him out. Get him out. Let's go.
DEFENDANT WILLIAMS: They told me if I . . . ain't testify because there's no two people did it.
Valentin and Curry, for the second time, moved for a mistrial, arguing they had done nothing to create the problem and that no curative instruction could cure the taint of Williams's two outbursts. This time, the trial judge admitted he was concerned that Williams's conduct was "affecting his codefendants." Faced with the choice to either absent himself from the rest of the proceedings, or remain while gagged, Williams chose the former.
The judge again questioned each juror individually about what they heard and saw in the courtroom, and their ability to remain fair and impartial. Satisfied with the jurors' responses, the judge denied the mistrial motion, and issued a curative instruction at the end of the day's proceedings, followed by an extensive curative instruction before the trial resumed.
On February 20, 2014, the jury found defendants guilty of three counts of third-degree burglary, N.J.S.A. 2C:18-2 (counts one, nine, and eleven); three counts of third-degree theft of movable property, N.J.S.A. 2C:20-3a (counts two, ten, and twelve); third-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2 (count three); fourth-degree criminal mischief, N.J.S.A. 2C:17-3a(1) (count four); and two counts of third-degree receipt of stolen property, N.J.S.A. 2C:20-7a (counts five and six). The jury acquitted defendants of second-degree unlawful possession of a handgun, N.J.S.A. 2C:58-4 (count eight), and was unable to reach a verdict on whether defendants were armed with or displayed a handgun while committing one of the Tinton Falls burglaries (count eleven). On February 21, the trial judge granted the State's motion to dismiss counts fourteen and sixteen, which charged Williams and Valentin, respectively, with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b(1). The trial judge also dismissed count thirteen, which charged Williams with fourth-degree possession of a box cutter.
Defendants were not charged in count seven of the indictment, which charged co-defendant Curry alone with third-degree receiving stolen property, N.J.S.A. 2C:20-7a.
On May 9, 2014, the judge sentenced Williams to an aggregate ten-year extended term of imprisonment with a five-year period of parole ineligibility on the charges that were the subject of the indictment. The judge also found Williams guilty of contempt for his disruptive conduct on February 14, and sentenced him to a consecutive six-month term of imprisonment. Both sentences were to be served consecutively to a prison term Williams was serving on an unrelated indictment. On May 23, Valentin received an aggregate extended term of eight years, with a four-year period of parole ineligibility. These appeals followed.
II.
Both defendants challenge the search of the Nissan Pathfinder that led to the seizure of various items linking them to the three burglaries. Valentin argues in Point I:
THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE — AFTER RULING THAT POLICE HAD CONDUCTED AN ILLEGAL SEARCH OF THE VEHICLE — BECAUSE THE MERE SUBSEQUENT ACQUISITION OF A SEARCH WARRANT DID NOT REMOVE THE TAINT OF THE INITIAL ILLEGAL SEARCH, OR MAKE THE ITEMS SEIZED ADMISSIBLE UNDER THE DOCTRINE OF INEVITABLE DISCOVERY.Williams argues in his Point I:
DEFENDANT'S MOTION TO SUPPRESS EVIDENCE WAS WRONGFULLY DENIED.
Valentin presents the following additional points:
POINT II
THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL, AS CO-DEFENDANT WILLIAMS' SEVERELY PREJUDICIAL OUTBURSTS IN THE PRESENCE OF THE JURY DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
POINT III
THE AGGREGATE EIGHT-YEAR DISCRETIONARY EXTENDED-TERM SENTENCE IMPOSED, WITH A DISCRETIONARY FOUR-YEAR PERIOD OF PAROLE INELIGIBILITY, IS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE LOWER COURT'S DISCRETION.
Williams presents the following additional points on his appeal:
POINT II
THE JURY INSTRUCTION ON FLIGHT WAS ERROR AND THE INSTRUCTION AS GIVEN WAS CONFUSING.
POINT III
DEFENDANT'S SENTENCE WAS EXCESSIVE, AND THE JUDGMENT OF CONVICTION IS INCORRECT AND MUST BE AMENDED.
III.
A.
We turn first to defendants' challenge to the trial court's order denying their motion to suppress the fruits of the search of the Nissan. Detective Moreto was the sole witness at the suppression hearing. He recounted the events we already described leading to the officers' initial entry into the vehicle after it was first stopped, and the subsequent entry and seizure of the incriminating evidence following issuance of the search warrant.
Defendants argue that the initial warrantless search of the vehicle was illegal. They contend that neither the subsequent acquisition of the search warrant nor the doctrine of inevitable discovery are sufficient to avoid suppression of the seized evidence as "fruit of the poisonous tree." We disagree.
The Supreme Court has recently explained the standard of review applicable to our consideration of a trial judge's fact-finding on a motion to suppress:
We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243-44 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). Deference to those findings is particularly appropriate when the trial court has the "opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record. Ibid. Moreover, we need not defer "to a trial . . . court's interpretation of the law" because "[l]egal issues are reviewed de novo." State v. Vargas, 213 N.J. 301, 327 (2013).
[State v. Watts, 223 N.J. 503, 516 (2015) (alteration in original).]
An appellate court remains mindful not to "disturb the trial court's findings merely because 'it might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side' in a close case." Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162). Rather, we reverse only when the court's findings "are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).
"A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000). The warrant requirement "is not lightly to be dispensed with, and the burden is on the State, as the party seeking to validate a warrantless search, to bring it within one of those recognized exceptions." State v. Alston, 88 N.J. 211, 230 (1981).
One of the well-established exceptions to the warrant requirement is the automobile exception. That exception "is grounded in the exigent circumstances created by the inherent mobility of vehicles and the somewhat lessened expectation of privacy in one's vehicle." State v. Patino, 83 N.J. 1, 9 (1980).
In the present case, at the time the search was conducted, "the warrantless search of an automobile in New Jersey [was] permissible where (1) the stop [was] unexpected; (2) the police ha[d] probable cause to believe that the vehicle contain[ed] contraband or evidence of a crime; and (3) exigent circumstances exist[ed] under which it [was] impracticable to obtain a warrant." State v. Pena-Flores, 198 N.J. 6, 28 (2009). Although the motion judge found that probable cause existed to search the Nissan, relying on Pena-Flores, he further found that the State failed to show "that there were 'exigent circumstances' allowing the vehicle to be searched prior to obtaining a warrant." Accordingly, the judge determined that the initial warrantless search of the vehicle by the police at the scene was invalid.
Since the trial court decided the suppression motion, our Supreme Court has abandoned the exigent circumstances standard set forth in Pena-Flores. State v. Witt, 223 N.J. 409, 455 (2015). The Court returned to the Alston standard, which provides that the automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe it contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous. Witt, supra, 223 N.J. at 447. Because Witt only applies prospectively, for purposes of this appeal, Pena-Flores is the governing law. Id. at 449-50. --------
The motion judge then went on to address whether the subsequent seizure of items from the vehicle was barred under the "fruit of the poisonous tree" doctrine. This rule requires the exclusion, with limited exceptions, of evidence seized as a direct consequence of unlawful police activity as well as any evidence subsequently discovered as a result of the illegality. Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 454 (1963).
The court found that independent grounds existed to validate the subsequent search of the vehicle. The motion judge reasoned:
In this case, [] Curry was legally detained. The officers had sufficient legal grounds to obtain a search warrant, and they did so. Nothing in the video showed the
officers doing more than opening the door and quickly looking under the seat. At the suppression hearing, the affidavit that Detective Moreto submitted to receive the warrant was admitted as evidence. The affidavit contains the statements made by an eye witness, a description of how and where the three defendants were caught by the officers, statements of an ICE employee who stated that [] Valentin[] was being monitored by a device on his ankle and he was at [the] Thomas Drive [address] the day of the arrest. Nothing regarding anything noted in the car was utilized in obtaining the warrant. Most importantly, the video does not show that the officers looking in the car actually noticed any item nor did any officer remove any item [from] the car at that time. Accordingly, a warrant was issued on independent grounds and evidence in the vehicle [that] was discovered pursuant to a lawful search warrant signed by a Superior Court judge is admissible.
We are satisfied that the facts as found by the motion judge are well supported in the record. These facts establish that the police had a valid independent basis to obtain the search warrant that was free of any taint from the prior invalid warrantless search. See State v. Mather, 147 N.J. Super. 522, 528 (Law Div. 1977) (declining to suppress evidence where the court found that there was an independent source of information upon which to base the issuance of search warrants, i.e., a burglary investigation, and also that the challenged evidence would have been inevitably discovered through legal means regardless of the initial warrantless search).
The motion judge also found that the evidence seized from the Nissan was "probably also admissible under the doctrine of inevitable discovery." Under this doctrine, unlawfully obtained evidence is admissible, if it "would inevitably have been discovered without reference to the police error or misconduct, [because] there is no nexus sufficient to provide a taint[.]" Nix v. Williams, 467 U.S. 431, 448, 104 S. Ct. 2501, 2511, 81 L. Ed. 2d 377, 390 (1984). The analysis "ensures that the prosecution is not put in a worse position simply because of some earlier police error or misconduct." Id. at 443, 104 S. Ct. at 2508, 81 L. Ed. 2d at 387; see also State v. Sugar, 100 N.J. 214, 237 (1985) (Sugar II) (deterrent purposes of exclusionary rule are not served by excluding evidence that would inevitably have been discovered).
In order to invoke the doctrine in New Jersey, the State must show by clear and convincing evidence that:
(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.
[Sugar II, supra, 100 N.J. at 238].
In other words, the State must show that "had the illegality not occurred, it would have pursued established investigatory procedures that would have inevitably resulted in the discovery of the controverted evidence, wholly apart from its unlawful acquisition." Id. at 240; see also State v. Johnson, 120 N.J. 263, 290 (1990) (inevitable discovery applied where detective was in process of preparing affidavit in support of search warrant based on information independent of tainted source); State v. Sugar, 108 N.J. 151, 157 (1987) (Sugar III) (body buried in shallow ground behind house would have inevitably been discovered); State v. Finesmith, 406 N.J. Super. 510, 523-24 (App. Div. 2009) (laptop computer admissible under inevitable discovery exception).
"[T]he central question to be addressed in invoking the 'inevitable discovery' rule 'is whether that very item of evidence would inevitably have been discovered, not merely whether evidence roughly comparable would have been so discovered.'" State v. Worthy, 141 N.J. 368, 390 (1995) (quoting Wayne LaFave, Search and Seizure, § 11.4(a), at 380 (1987)). However, "the State [does] not have to prove clearly and convincingly 'under what precise circumstances the [evidence] would have been inevitably discovered.'" State v. Smith, 212 N.J. 365, 392 (2012) (quoting Sugar III, supra, 108 N.J. at 158), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). "A number of possibilities may cumulatively constitute clear and convincing evidence that the evidence would be discovered." Sugar III, supra, 108 N.J. at 159.
In applying the facts established at the suppression hearing, we find that the State proved by clear and convincing evidence the three elements of the inevitable discovery doctrine. Here, the police did not learn of the Tinton Falls burglaries until after the Nissan was impounded. Therefore, Moreto could not have predicted that any of the property stolen from the two Tinton Falls homes would be inside the Nissan at the time it was stopped. Subsequently, police pursued proper, normal, and specific investigatory procedures to complete the investigation of the case. Specifically, the police learned that the Nissan had been loaned by its owner to Williams and Valentin. Both defendants were apprehended in close proximity to the Thomas Drive home where the vehicle was seen by the housekeeper. They also learned that Valentin's GPS tracking device placed him at the Thomas Drive address and at residences located on Winchester Drive in Tinton Falls that had also been burglarized. Based on the results of this investigation, utilizing information obtained from wholly independent sources, Moreto applied for, and obtained, the search warrant that led to the recovery of the evidence seized from the vehicle.
Summarizing, the State presented clear and convincing evidence that the search warrant was issued wholly independently of the initial warrantless search, and that the items seized were discovered during the execution of the warrant. Consequently, as the evidence would inevitably have been discovered regardless of the invalid warrantless search, it was admissible and the motion to suppress was properly denied.
B.
Valentin separately argues that the trial court erred in denying his motions for a mistrial based on the outbursts of Williams, including accusing Valentin of prior bad acts not charged in the indictment. We disagree.
The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution ensure that "everyone charged with [a] crime has an absolute constitutional right to a fair trial in an atmosphere of judicial calm, before an impartial judge and an unprejudiced jury." State v. Marchand, 31 N.J. 223, 232 (1959) (quoting State v. Rios, 17 N.J. 572, 590 (1955)). "[T]he right of a defendant to be tried by an impartial jury is of exceptional significance," and "[t]he securing and preservation of an impartial jury goes to the very essence of a fair trial." State v. Williams, 93 N.J. 39, 60 (1983).
Our courts also recognize that "a mistrial imposes enormous costs on our judicial system, from the expenditure of precious resources in a retrial to the continued disruption in the lives of witnesses and parties seeking closure." State v. Musa, 222 N.J. 554, 565 (2015) (quoting State v. Jenkins, 182 N.J. 112, 124 (2004)). Trial by an impartial jury and judicial economy are both "important goals," and the Rule "delicately balances" them. Jenkins, supra, 182 N.J. at 124.
"A mistrial is an extraordinary remedy" that should be employed "[o]nly when there has been an obvious failure of justice[.]" State v. Mance, 300 N.J. Super. 37, 57 (App. Div. 1997). The decision to grant a mistrial lies within the sound discretion of the trial court, and is reviewed for an abuse of that discretion. State v. Winter, 96 N.J. 640, 646-47 (1984). In particular, the decision on whether inadmissible evidence may be "cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial," is "peculiarly" within the competence of the trial judge, who has the "feel" of the case. Ibid.
Not every admission at trial of inadmissible evidence is reversible error. State v. Vallejo, 198 N.J. 122, 132 (2009).
Generally, however, if "a defendant misbehaves in the jury's presence, the misbehavior usually will not compel a separate trial for his codefendants"; rather, the co-defendant seeking severance or mistrial must "demonstrate the existence of some special prejudice" that the court could not remedy through other means. United States v. Pierro, 32 F.3d 611, 616 (1st Cir. 1994). If the rule were otherwise, co-defendants could provoke mistrials at will.
[United States v. DeCologero, 530 F.3d 36, 54 (1st Cir.), cert. denied, 555 U.S. 1005, 129 S. Ct. 513, 172 L. Ed. 2d 376 (2008).]
Here, the trial judge took prompt and proper steps to ensure that Valentin was not unduly prejudiced by Williams's outbursts. The judge individually questioned each juror. We are satisfied from our review of the jurors' responses that they understood they were required to disregard Williams's remarks; that those remarks were not evidence; that the issue of jail time was not for them to consider; and that they were able to remain fair and impartial.
The trial judge also issued several prompt, forceful, and comprehensive curative instructions to ameliorate the adverse effects of Williams's comments upon his co-defendants. The judge instructed the jurors, among other things, that they were to totally disregard Williams's statements and "not [] consider them for any purpose in deciding the guilt or innocence of Mr. Williams, Mr. Valentin, or Mr. Curry." Jurors are presumed to follow the court's instructions. State v. Montgomery, 427 N.J. Super. 403, 410 (App. Div. 2012), certif. denied, 213 N.J. 387 (2013); see also State v. Martini, 187 N.J. 469, 477 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007).
Further, we conclude that denial of the mistrial motion did not result in an "obvious failure of justice." Here the proofs of Valentin's guilt were overwhelming. Notably, the GPS monitoring device placed Valentin at the site of each burglary, and the distinctive tread on the boots he was wearing when he was found hiding in a hedge a short distance from the Thomas Drive burglary matched a muddy foot print left at that crime scene. In addition, the car the stolen goods were ultimately recovered from was the same car that was loaned to Valentin and Williams the morning of the three burglaries. Accordingly, denial of the mistrial motions, if error, was harmless. R. 2:10-2. "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." Ibid.; see also State v. Macon, 57 N.J. 325, 338 (1971).
C.
We next address Williams's separate contention that the trial court erred in instructing the jury on the doctrine of flight. Specifically, Williams argues that the evidence did not support a flight charge. Alternatively, he contends that the charge as given failed to clearly limit its application to count one of the indictment that related to the burglary of the Thomas Drive home.
Whether there exists a sufficient evidentiary basis to support a flight charge is within the trial judge's discretion. State v. Long, 119 N.J. 439, 499 (1990). An instruction on flight "is appropriate when there are 'circumstances present and unexplained which . . . reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.'" State v. Latney, 415 N.J. Super. 169, 175-76 (App. Div. 2010) (alteration in original) (quoting State v. Mann, 132 N.J. 410, 418-19 (1993)). "The jury must be able to find departure and 'the motive which would turn the departure into flight.'" Id. at 176 (quoting State v. Wilson, 57 N.J. 39, 49 (1970)).
Here, the trial judge instructed the jury as follows:
There was some testimony of the burglary at [] Thomas Drive, Manalapan, New Jersey. Each of the defendants denies any flight or denies that the acts constituted flight.
The question of whether a defendant fled after the commission of a crime is another question of fact for your determination. Mere departure from a place
where a crime has been committed does not constitute flight. If you find that a defendant fearing that an accusation or arrest would be made against him on the charge involved in the indictment took refuge in flight for the purpose of evading the accusation or arrest on that charge, then you may consider such flight in connection with all the evidence in the case as an indication or proof of [that defendant's] consciousness of guilt.
Flight may . . . only be considered as evidence of consciousness of guilt if you should determine that a defendant's purpose in leaving was to evade accusation or arrest for the offense charged in the indictment. If, after considering [all of] the evidence, you find that a defendant fearing that an accusation or arrest would be made against him on the charge involved in the indictment took refuge in flight for the purpose of evading the accusation or arrest, then you may consider such flight in connection with all the other evidence in the case as an indication or proof of a consciousness of guilt for that defendant.
It is for you as judges of the facts to decide whether or not flight shows a consciousness of guilt and the weight to be given such evidence in light of all the other evidence in the case.
We are satisfied that the trial judge properly exercised his authority in administering the flight charge. The State presented evidence regarding (1) the convergence of multiple police cars on the Thomas Drive home; and (2) the presence of two-way radios and cell phones that Curry likely used to alert defendants of the approaching police presence. Defendants were observed running from the crime scene. The jury was entitled to evaluate that evidence and the potential inferences to be drawn from it and determine whether Williams's actual motivation for fleeing was to evade arrest. The judge did not abuse his discretion in providing the requested charge. Long, supra, 119 N.J. at 499-500.
Moreover, the charge as given substantially tracked the language in the model instruction. See Model Jury Charge (Criminal), "Flight" (2010). Defense counsel merely asked the trial court to use "fled" rather than "ran" in its flight charge, and the court acquiesced. A jury charge that tracks the language of the governing statute, and which is consistent with the applicable Model Jury Charge, is not plainly erroneous. State v. Rodriguez, 365 N.J. Super. 38, 53-54 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004). Further, the court's reference to the address of the Thomas Drive burglary at the outset of the flight charge was sufficient to properly focus the jury on those actions by Williams that could legally constitute flight. Accordingly, we reject Williams's alternative contention that the flight charge as given was erroneous or overbroad.
D.
Finally, both defendants challenge their respective sentences. Williams argues that his sentence is excessive and that the JOC must be amended to correct technical errors. Valentin challenges only the imposition of the four-year parole ineligibility period, arguing that the court failed to provide any independent reasoning or explanation to support the imposition of the discretionary parole disqualifier.
Defendants' sentencing arguments warrant little discussion. As the Supreme Court has recently reaffirmed, sentencing determinations are reviewed on appeal with a highly deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014). As the Court has instructed:
The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."Once the trial court has balanced the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and -1(b), it "may impose a term within the permissible range for the offense." State v. Bieniek, 200 N.J. 601, 608 (2010). See also State v. Case, 220 N.J. 49, 65 (2014) (instructing that appellate courts may not substitute their judgment for that of the sentencing court, provided that the "aggravating and mitigating factors are identified [and] supported by competent, credible evidence in the record").
[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984))].
In sentencing each defendant, the court found significant the following aggravating factors: (1) the risk of re-offense (factor three), N.J.S.A. 2C:44-1(a)(3), (2) the extent of defendant's prior criminal record and the severity of those offenses (factor six), N.J.S.A. 2C:44-1(a)(6), and (3) the need for deterrence (factor nine), N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors.
The court appropriately pointed out several important considerations bearing on its sentencing analysis. With respect to aggravating factor three, the court found that despite having the opportunity to obtain the rehabilitative benefits of probation and parole, defendants continued to reoffend. Further, Valentin brazenly broke into three homes while aware he was wearing a GPS device monitoring his location at all times. The court concluded that this conduct "suggests a character or inclination to commit offenses without regard to the possible consequences that causes me concern that in the future he would commit offenses." Additionally, the court cited Williams's long-standing history of substance abuse, which he had allowed to go untreated, to support aggravating factor three.
The court gave aggravating factor six substantial weight, in light of the consistency, length, and varied nature of each defendant's criminal history. With respect to aggravating factor nine, the court discerned a particular need to deter defendants, who had both committed burglaries in the past and received prison sentences for doing so, yet continued to burglarize homes without apparent concern. Lastly, the court recognized the need to protect the public from defendants who will "drive from town to town during the day for the sole purpose of breaking into another person's home and [stealing] their belongings." Defendants were convicted of not one, but three, burglaries, which the court characterized as "crimes committed against [the] public through the burglaries of their homes." In each case, the court was clearly convinced that the aggravating factors substantially outweighed the non-existing mitigating factors.
In sum, we find no clear error of judgment in the court's application of the facts to the law that would shock our conscience. Accordingly, as to each defendant, we find no abuse of discretion in the imposition of an extended term or the particular sentence imposed here, including the period of parole ineligibility. See State v. Pierce, 188 N.J. 155, 166 n.4 (2006); see also State v. Hudson, 209 N.J. 513, 526 (2012).
We also find no error in the court's decision to run Williams's sentence consecutive to a sentence he was serving on an unrelated indictment. N.J.S.A. 2C:44-5h specifically provides that:
When a defendant is sentenced to imprisonment for an offense committed while released, with or without bail, pending disposition of a previous offense, the term of imprisonment shall run consecutively to any sentence of imprisonment imposed for the previous offense, unless the [c]ourt in consideration of the character and conditions of the defendant, finds that imposition of consecutive sentences would be a serious injustice [which] overrides the need to deter such conduct by others.Accordingly, because Williams was released on bail at the time he committed the present offenses, and because the court declined to find the serious injustice exception applicable, the court correctly concluded that it was required to impose a consecutive sentence.
The State agrees with Williams that his JOC must be amended to correct technical errors. First, the extended-term sentence on count one was imposed pursuant to N.J.S.A. 2C:44-3a rather than N.J.S.A. 2C:44-5. Additionally, various other counts are incorrectly numbered. On remand, the JOC should be corrected to amend count eight to count nine; count nine to count ten; count ten to count eleven; and count eleven to count twelve.
Defendants' convictions and sentences are affirmed. In No. 12-02-0223, we remand to the sentencing court to amend Williams's JOC in accordance with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION