Opinion
DOCKET NO. A-4597-11T1
12-16-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HUMMLER ETIENNE a/k/a ETIENNE HUMMLER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-12-2483. Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a seven-day trial, defendant Hummler Etienne was convicted of third-degree possession of a prohibited weapon (sawed-off shotgun), N.J.S.A. 2C:39-3b, (count one), and was later sentenced to a four-year term of imprisonment with a three-year period of parole ineligibility. Defendant appeals his conviction and sentence raising the following issues:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED BY POLICE.In light of the record and applicable legal standards, we affirm defendant's conviction and remand the matter solely for entry of an amended judgment of conviction (JOC).
II. EVIDENCE OF OTHER BAD ACTS WAS IMPROPERLY INTRODUCED BEFORE THE JURY, AND THE TRIAL COURT FAILED TO GIVE SUFFICIENT LIMITING INSTRUCTIONS TO THE JURY, VIOLATING THE RULES OF EVIDENCE AND DEFENDANT'S RIGHT TO A FAIR TRIAL ON THE CHARGES IN QUESTION. (Not Raised Below)
III. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL OF THE ILLEGAL WEAPONS CHARGE.
IV. THE TRIAL COURT ERRED BY PERMITTING DEFENDANT'S PRETRIAL STATEMENTS TO BE USED AGAINST HIM AT TRIAL IN VIOLATION OF HIS MIRANDA AND FIFTH AMENDMENT RIGHTS.
V. DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
I
The events giving rise to this matter started on July 4, 2009, at approximately 8:30 p.m., when Asbury Park Police Officers Lorenzo Pettway and Eddy Raisin received a report of an assault in the vicinity of First Avenue. Once at the scene, the officers observed an individual, later identified as Nandie Lopez, lying on the ground and bleeding from his head. According to witnesses, two individuals, whose street names were "G.U." and "Hum," were responsible for the assault and one of them drove away in a dark colored sedan, possibly a Sable. Pettway believed he knew "Hum" as defendant, so he and Raisin drove to defendant's home, approximately two blocks from the location of the assault.
Upon arriving at the residence, the officers observed a dark blue four-door Mercury Sable, idling in the driveway without its headlights on. After speaking with the vehicle's two occupants, the officers walked to the back door of the residence and Pettway knocked on the door. Pettway testified that defendant came to the door "sweating[,]" looking "nervous," "kind of excited and asked why [the officers] were there." He explained to defendant that an assault had occurred nearby "and that his name came up as being one of the people involved and that he may possibly have a weapon." Defendant, eighteen years old at the time, was the only person home as his parents were at work. He claimed that he had just returned from the store, and denied any involvement in the assault or that he had a weapon. Upon request from the police, defendant signed a written form consenting to the search of his home. A cursory search of defendant's bedroom and other areas of the home did not reveal any weapon so the officers left. They conceded "a real thorough search" was not done because they were concerned about defendant's age and that his parents were not present. Once outside, the officers noticed that the Sable was no longer parked in the driveway, but the officers found a bag containing what was later determined to be crack cocaine. Defendant was not charged with possession of cocaine at that time. Before leaving, Pettway advised defendant that he was going to speak with his mother the next day and conduct a follow up investigation at his home.
The next afternoon, Pettway and Raisin went back to defendant's home. Ms. Etienne, defendant's mother, invited the officers into her home and agreed to let them search the house, as evidenced by the consent to search form she signed after it was explained to her by Raisin in English and her native language, Creole. Defendant was not home at the time. In defendant's bedroom, the officers discovered a box of .22 caliber bullets inside a latex glove, a gun holster and two full metal jacket rounds of ammunition underneath a bag wedged near the bed, a variety of other ammunition, including .12 gauge shotgun shells inside a duffle bag, and a marijuana cigarette inside a dresser.
The officers then asked Ms. Etienne for permission to search the detached garage area, which was at the end of the driveway. Nothing was found in the garage. However, in between the garage and fence, which was part of the Etienne's property, Pettway found a gray duffle bag that concealed a sawed-off shotgun. At the motion to suppress and at trial, Ms. Etienne testified that the shotgun was not found on her property, but rather in an area belonging to the next door neighbor, who put his property there.
The following day, Pettway observed defendant driving the dark blue Mercury Sable and arrested him. At the police station, after being advised of and waiving his Miranda rights, defendant gave a video recorded statement admitting that he owned the shotgun and bullets found by the officers. At trial, defendant recanted and testified that he never saw the shotgun and ammunition before the police showed them to him at the police station. He claimed that the police coerced him into giving a false confession out of fear that his parents would be charged with possession of the shotgun.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed. 2d 694 (1966).
Defendant did not testify at the hearing on his motion to suppress his confession.
At the trial's conclusion, the jury found defendant guilty of fourth-degree possession of a prohibited weapon and not guilty of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), count three. Count two, third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5c(1), was dismissed. As part of a plea agreement, defendant pled guilty to obstruction of justice, N.J.S.A. 2C:29-1, a charge contained in another indictment. On the conviction of possession of a prohibited weapon, defendant was sentenced to four years' imprisonment, subject to a three-year period of parole ineligibility. The sentence was to run consecutive to the one-year prison term on the obstruction of justice conviction.
Defense counsel pointed out during sentencing, a charge of possession of a sawed-off shotgun is a third-degree offense. See N.J.S.A. 2C:39-3b ("Any person who knowingly has in his possession any sawed-off shotgun is guilty of a crime of the third degree."). As discussed below, the judgment of conviction must be corrected.
II
Initially, we address the appeal issues related to the denial of defendant's two separate pretrial suppression motions, regarding the seizure of the shotgun and defendant's confession.
It is well recognized that "[a]ppellate courts reviewing a grant or denial of a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). We must give deference to the motion judge's findings that are substantially influenced by his opportunity to hear and see the witnesses and to have the sense of the case that we necessarily lack. Elders, supra, 192 N.J. at 244; State v. Johnson, 42 N.J. 146, 161 (1964). It is only the judge's legal conclusions that we review de novo. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Deference is given to credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). The findings below should not be disturbed merely because our court may have reached a different conclusion. Elders, supra, 192 N.J. at 244.
Defendant's motion to suppress the shotgun involved a warrantless search of his residence. Such searches are presumptively unreasonable, and for that reason, they are prohibited unless they fall within a recognized exception to the warrant requirement. State v. Wilson, 178 N.J. 7, 12 (2003). A consent to search "is a well-recognized exception to the warrant requirement." State v. Farmer, 366 N.J. Super. 307, 313 (App. Div.), certif. denied, 180 N.J. 456 (2004). Yet, the State has the burden to prove that a person's consent to search was freely and voluntary given, with the knowledge of the right to refuse. State v. Lamb, 218 N.J. 300, 318 (2012)(citations and quotations omitted). The voluntariness of the consent is a question of fact, which the motion court must consider the totality of the circumstances to make sure the person giving consent knows that the search may be refused. State v. Chapman, 332 N.J. Super. 452, 466 (App. Div. 2000). Further, consent to search must be "informed and voluntary consent [that] is not coerced consent." State v. Domicz, 188 N.J. 285, 309 (2006).
Defendant contends that the motion judge erred in denying his motion to suppress the shotgun because there was insufficient proof that valid and informed consent was given by his mother, and if there was valid consent, the search exceeded the scope of the consent. In denying defendant's suppression motion, the judge found that prior to seeking consent to search, the police officers explained to Ms. Etienne in English and Creole her rights with respect to a search of her home. The judge found her testimony that she was coerced into signing the form untruthful, ruling instead that her consent was knowingly and voluntarily given. As to the scope of the search, the judge found there was no reason to suppress the seizure because of where the shotgun was found. He determined,
based upon the fact that part of the yard was fenced in, that there was a walkway behind it, the bag was found behind the defendant's own garage. It was the garage of the Etienne household. The defendant previously consented to a search of the same area. The evidence established a belief that defendant's mother had authority to consent to the search of that area.We find no error in the motion judge's decision.
The evidence discovered behind the garage is part of that common authority. [The court] also find[s] that irrespective of the argument of the defense counsel, this, if it's on somebody else's property, it's abandoned property, under those circumstances this is, this defendant has no standing in regard to that.
For all those reasons, the motion to suppress will be denied.
The decision not to suppress the evidence was based upon motion judge's assessment of the witnesses' credibility. His reasoning for rejecting Ms. Etienne's account of the search, while accepting the testimony of Pettway and Raisin, was sound. The record contains substantial, credible evidence that the officers advised her of her rights through the use of consent to search form with explanations in two languages to ensure she fully understood them and voluntarily consented to the search.
Given the consent to search, there is no basis to conclude the officers exceeded the scope of the consent to search the area outside the garage where they found the shotgun. Ms. Etienne consented to a search of both the residence and the detached garage. As such, the area surrounding the detached garage, which was determined to still be on her property, was well within the scope of the consent given. Further, Ms. Etienne was made aware she could terminate the search at any time, but did not do so. Moreover, if the shotgun was found on a neighbor's property as defendant argues, it must be considered abandoned — without defendant having any standing to suppress the evidence. See State v. Hurton, 216 N.J. 211, 233-34 (2013) (defendant must have a reasonable expectation of privacy to establish a violation of a state constitutional right).
Under these circumstances, we see no reason to disturb the judge's credibility findings, and conclude his finding that the officers obtained voluntary and informed consent to search the Etienne's home and the area outside the garage are supported by the record. As such, the weapon obtained during this search was properly admitted at trial.
We turn next to defendant's contention that the motion judge erred in not suppressing his pretrial confession. Defendant argues his Miranda and the Fifth Amendment rights were violated as a result of the officers' threats to arrest other members of his family for possessing the shotgun if he did not admit to it. We are not persuaded.
There were different judges who decided the respective pretrial motions.
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In reviewing denial of a motion to suppress for violation of Miranda, we analyze police-obtained confessions using a "searching and critical" standard of review to ensure that constitutional rights have not been trampled upon. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.), certif. denied, (2003)(citations and internal quotation marks omitted). Generally, "if the trial court has had the benefit of and has relied upon testimony of witnesses, appellate courts must give due deference to those findings because it is the trial court that had the opportunity to evaluate the credibility of the witnesses who appeared and testified." State v. Diaz-Bridges, 208 N.J. 544, 565 (2011). However, "[w]hen the trial court's factual findings are based only on its viewing of a recorded interrogation that is equally available to the appellate court and are not dependent on any testimony uniquely available to the trial court, deference to the trial court's interpretation is not required." Id. at 566.
"The State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." State v. Knight, 183 N.J. 449, 462 (2005). When a suspect invokes his right to remain silent, "it [must] be scrupulously honored." Diaz-Bridges, supra, 208 N.J. at 564. "In determining the voluntariness of a defendant's confession, we traditionally look to the totality of the circumstances to assess whether the waiver of rights was the product of a free will or police coercion." State v. Nyhammer, 197 N.J. 383, 402 (2007). The court must specifically consider the defendant's "characteristics . . . and the nature of the interrogation," and may include in its consideration the defendant's "age, education and intelligence, advice concerning constitutional rights, length of detention, whether . . . questioning was repeated and prolonged in nature, and whether physical punishment [or] mental exhaustion were involved." State v. Galloway, 133 N.J. 631, 654 (1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862 (1973)). Unlike cases of physical coercion, however, the use of psychological techniques is not in and of itself coercive; rather, courts must analyze whether the confession was the result of the defendant's change of mind and not a broken will. Id. at 654-55. A confession is voluntary if it is "'the product of an essentially free and unconstrained choice'" where the defendant's will has not been "'overborne and his capacity for self-determination [has not been] critically impaired.'" State v. P.Z., 152 N.J. 86, 113 (1997) (quoting Schneckloth, supra, 412 U.S. at 225-26, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862). Cases which hold that a defendant's will has been overborne typically require the defendant to demonstrate a showing of "very substantial psychological pressure." Galloway, supra, 133 N.J. at 656.
The motion judge determined "[n]othing that was audible in that [confession] from defendant's verbalizations would suggest that his statement was involuntary and that his will was overborne during the giving of that statement." The judge also found that "there's not even credible evidence that the defendant was threatened pre-video concerning the parents' or family members' arrest." We have independently reviewed the videotaped interrogation, and we agree with the motion judge that there is no credible evidence that defendant's confession was procured through the use of psychological or physical coercion.
III
We now address the issues raised regarding defendant's trial. Defendant contends that his identification, through the officers' testimony, as a suspect in the Lopez assault was unnecessary to determine his guilt for the weapon possession charges. Defendant argues of the evidence violated N.J.R.E. 404(b), and deprived him of a fair trial.
The Sixth Amendment of the United States Constitution and Article I, Paragraph 9 of the New Jersey Constitution guarantee every criminal defendant the right to be tried by a fair and impartial jury. State v. Handy, 215 N.J. 334, 350 (2013). "Courts have a gatekeeping role to ensure that unreliable, misleading evidence is not admitted." State v. Chen, 208 N.J. 307, 318 (2011). However, whereas in this case, defendant did not object to evidence regarding the Lopez assault, we review its admission "for plain error, only reversing if the error is 'clearly capable of producing an unjust result.'" State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2).
We disagree with defendant's characterization of this evidence as Rule 404(b) evidence. That Rule provides,
evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.At trial, the State made clear that it did not intend to introduce this evidence in order to prove that defendant committed the Lopez assault. Instead, the State argued the officers should be permitted to explain how it was they arrived at the driveway of defendant's home.
However, the evidence was inadmissible, because it ran afoul of the Court's holdings in State v. Branch, 182 N.J. 338 (2005), and State v. Bankston, 63 N.J. 263 (1973). Those cases stand for the broad proposition that police officers generally may not testify about information supplied to them by non-testifying witnesses. "When the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Bankston, supra, 63 N.J. at 271. As the Court later stated, the phrase "'based on information received' may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and only if the . . . phrase does not create an inference that the defendant has been implicated in a crime by some unknown person." Branch, supra, 182 N.J. at 352.
In this case, there was no assertion that the police officers "acted arbitrarily" in going to defendant's home following the Lopez assault. Therefore, the officers' testimony, albeit relatively brief, was improperly admitted.
In her opening statement and again in her summation, the prosecutor briefly referred to the Lopez assault. In her closing, specifically referencing information the police officers received at the scene of the assault, the prosecutor told the jury that "[t]here was a thread that led from dot one to dot two to dot three." Defendant argues the prosecutor's comments were improper and denied him a fair trial. There was no objection to any of these comments, and, in fact, defense counsel, in his closing, referenced the officers' "suspect" investigation that led to defendant's home.
Although "[p]rosecutors are expected to assert vigorously the State's case and are given considerable leeway" to do so in summation, State v. Daniels, 182 N.J. 80, 96 (2004), they have a corresponding duty to pursue justice and "refrain from any conduct lacking in the essentials of fair play." State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v. Siciliano, 21 N.J. 249, 262 (1956)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). "A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)).
"Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make. In every instance, the performance must be evaluated in the context of the entire trial . . . ." State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). Also relevant to our review is a defendant's failure to object to the prosecutor's remarks at the time they were made because this "deprives the court of an opportunity to take curative action" and suggests that defendant did not find the remarks prejudicial. Frost, supra, 158 N.J. at 84. "In evaluating claims of prosecutorial misconduct and plain error the fundamental question we must answer is whether it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict if the questioned conduct had not occurred." State v. Walden, 370 N.J. Super. 549, 562 (App. Div.), certif. denied, 182 N.J. 148 (2004).
We conclude that the admission of the police officers' testimony and the prosecutor's summation comments that followed did not amount singly or collectively to plain error warranting reversal of defendant's conviction. Initially, we note that the judge gave multiple limiting instructions regarding the use of this evidence. See State v. Zapata, 297 N.J. Super. 160, 176 (App. Div. 1997), certif. denied, 156 N.J. 405 (1998) (instructions are sometimes necessary to remedy the potential prejudice arising from the jury's exposure to inadmissible evidence). Furthermore, the evidence and the prosecutor's summation comments about the evidence do not "raise a reasonable doubt" in our minds that the jury was "led . . . to a result it otherwise might not have reached." State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Macon, 57 N.J. 325, 336 (1971)) (internal quotation marks omitted). Defendant's confession was powerful and substantial evidence of his guilt. Our conclusion in this regard is further borne out by the fact that the jury convicted defendant only of the weapons charge, something he admitted in his confession, but acquitted him of the drug charge, which defendant never admitted possessing the drugs.
The last trial issue on appeal concerns defendant's contention that the trial judge erred in denying his Rule 3:18-1 motion for acquittal. At the close of the State's case, defendant argued that there was insufficient evidence to find him guilty beyond a reasonable doubt of the possession of a sawed-off shotgun charge because the weapon was found behind the garage of his parents' home, and there was no proof that he knowingly possessed the weapon.
In reviewing a motion for acquittal based on insufficiency of evidence pursuant to Rule 3:18-1, our review is limited and deferential, and we apply the same standard that binds the trial court. State v. Reddish, 181 N.J. 553, 620 (2004). Thus, we must decide when viewing the evidence in its entirety, with the State having the benefit of all favorable inferences, and recognizing that such evidence need not exclude "every other hypothesis except that of guilt," State v. Brown, 80 N.J. 587, 598 (1979), whether there is sufficient evidence to find guilt beyond a reasonable doubt. R. 3:18-1; State v. Reyes, 50 N.J. 454, 458-59 (1967).
Applying these standards, we agree with the trial judge's decision to deny defendant's motion for acquittal. Reviewing the totality of the State's case, the State met its burden to overcome a judgment of acquittal. The State established that the shotgun was found on the property where defendant lived with his parents, ammunition fitting the weapon was found in defendant's bedroom, and, most significantly, defendant's confession to possessing the shotgun was presented to the jury. Accordingly, we conclude there was no basis to grant defendant's motion for acquittal.
IV
Finally, we consider defendant's two arguments that his sentence was improper and excessive. He first argues that his four-year term of imprisonment with a three-year period of parole ineligibility exceeds the range for a fourth-degree crime. Defendant is correct that the indictment and the JOC provide that count one of the indictment, possession of a prohibited weapon is a fourth—degree offense. In accordance with N.J.S.A. 2C:43-6, a custodial term for a fourth—degree offense shall not exceed eighteen months. However, defendant was sentenced to third-degree possession of a prohibited weapon when the judge agreed with defendant's attorney at sentencing that the presentence report needed to be changed to reflect that the conviction was for a third-degree offense. As noted, defense counsel also mentioned this mistake at sentencing. Thus, we remand to the trial court to amend the JOC to reflect that the conviction for possession of a prohibited weapon (a sawed-off shotgun) is a third-degree offense.
Defendant's second argument is that the sentencing judge erred in not applying mitigating factors one (conduct neither caused nor threatened serious harm), two (not contemplate conduct would cause or threaten serious harm), and seven (no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time), N.J.S.A. 2C:44-1(b) (1), (2), and (7). Defendant contends had these factors been applied, the mitigating factors would have outweighed the aggravating factors and justified a lighter sentence.
On appeal, a sentence should be affirmed if the sentencing court identified and balanced the aggravating and mitigating factors, and their existence is grounded in sufficient credible evidence in the record. State v. Cassady, 198 N.J. 165, 180 (2009). A sentence should only be modified if the application of the facts to the law "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-65 (1984). The reviewing court is not permitted to substitute its own judgment for that of the sentencing court but rather must determine whether, on the basis of the evidence, "no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989).
In this case, the judge properly applied aggravating factor nine (need to deter), and not mitigating factor seven, based on defendant's lengthy criminal history as a juvenile, and as specifically permitted by our holding in State v. Torres, 313 N.J. 129, 162 (App. Div.), certif. denied 156 N.J. 425 (1998) (citing State v. Tanksley, 245 N.J. Super. 390 (App. Div. 1991)). The judge was within his discretion not to apply mitigating factors one and two given the legislature's declaration in N.J.S.A. 2C:39-3 that sawed-off shotguns were inherently dangerous weapons. Thus, the trial court's sentence is in harmony with our sentencing guidelines. There was no abuse of discretion and the sentence imposed does not shock our judicial conscience.
Affirmed in part and remanded solely for the court to correct defendant's judgment of conviction consistent with this opinion. 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