Opinion
DOCKET NO. A-4964-10T3
02-28-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RONNELL HEDGESPETH a/k/a RONEL HARRIS, Defendant-Appellant.
James S. Friedman argued the cause for appellant. Linda Claude-Oben, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Ms. Claude-Oben, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi and Hayden.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-11-01928.
James S. Friedman argued the cause for appellant.
Linda Claude-Oben, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Ms. Claude-Oben, on the brief). PER CURIAM
Defendant Ronnell Hedgespeth appeals from his conviction by a jury on drug and weapons charges. Primarily, he claims the police violated his federal and State constitutional rights against unreasonable search and seizure because he did not consent knowingly and voluntarily to the seizure of heroin and firearms from his residence. We reject defendant's contentions and affirm his conviction.
The facts developed at a pretrial suppression hearing and at trial are as follows. A confidential informant told Jersey City police detectives that defendant was selling illegal drugs and carried a handgun when making his drug deliveries. The police set up surveillance in the area of defendant's residence. At about 10:00 a.m., a surveillance officer saw defendant leaving his apartment building and walking toward his car. The officer observed defendant taking small packages from a "brick" of heroin he held in one hand and putting them into a small box. The officer testified he was familiar with a "brick" as a pack of fifty smaller packages of heroin. The officer notified other police officers assigned to the surveillance, and they made "an aggressive" motor vehicle stop as defendant was driving away from the vicinity of his residence.
Five police cars surrounded defendant's car with lights and sirens activated. Weapons drawn, the police pulled defendant out of his car, forced him to the ground, and restrained him by physical force. They did not find a gun on his person or in the car, but they found sixty small bags of heroin. Defendant was handcuffed and placed in the back of a police car. A detective advised defendant of his Miranda rights but did not ask him any questions at that time.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
As defendant was being transported to headquarters, he initiated conversation with the police detective. He used a colloquial expression indicating that he had just been released from prison and did not want to be in the same situation again. He asked whether the police could "help" him. The detective stopped the car and read the standard Miranda warnings again. Defendant waived his right to remain silent and told the detective there was no contraband in his car but he had guns in his apartment. The detective called in to his sergeant and reported defendant's admission. He was instructed to seek formal consent from defendant to search his apartment.
The detective did not have a consent-to-search form with him. An officer was sent to a local police precinct to obtain such a form, and other officers were instructed to secure defendant's apartment. The detective and defendant then drove back to defendant's apartment. In the hallway of the apartment building, the detective read to defendant the consent-to-search form that had been retrieved. Defendant said he understood his rights and signed the consent form.
The police and defendant entered the apartment. Defendant directed the police to the location of his handguns and illegal drugs. The police recovered three handguns, ammunition, body armor, a money counter, a police scanner, and seven bricks (350 small bags) and five additional bundles of heroin.
A Hudson County grand jury indicted defendant on fifteen counts, including second-degree firearms charges for possession of the three handguns without a permit, N.J.S.A. 2C:39-5(b), possession of the firearms for an unlawful purpose, N.J.S.A. 2C:39-4(a), and possession of the firearms by a convicted person, N.J.S.A. 2C:39-7(b). The drug charges included third-degree possession of heroin in a school zone with intent to distribute, N.J.S.A. 2C:35-7.
Judge Melvin Kracov conducted a suppression hearing at which the surveillance officer and the detective were the only witnesses. By oral decision and pretrial order, Judge Kracov denied defendant's motion to suppress the physical evidence obtained from his apartment.
At trial before Judge Alvaro Iglesias, the jury convicted defendant on all thirteen counts presented for its decision. For purposes of sentencing, Judge Iglesias merged several counts and sentenced defendant to an aggregate term of twenty years imprisonment with ten years of parole ineligibility.
On appeal, defendant argues:
A. THE MOTION COURT'S DECISION TO DENY THE SUPPRESSION MOTION WAS ERROR BECAUSE THE OFFICERS' SEARCH OF THE APARTMENT WAS ILLEGAL.We find no merit in these arguments.
B. APPELLANT'S CONVICTIONS MUST BE VACATED BECAUSE CERTAIN TESTIMONY ELICITED AT TRIAL VIOLATED HIS CONFRONTATION RIGHTS.
C. APPELLANT'S CONVICTION MUST BE VACATED BECAUSE THE STATE FAILED TO SUSTAIN ITS BURDEN OF PROOF AS TO THE WEAPONS OFFENSES.
Defendant contends the police entry and search of his apartment violated his federal Fourth Amendment and State constitutional rights because the police did not have a search warrant and he did not give knowing and voluntary consent. He contends the aggressive tactics the police used to seize his car and person constituted coercive police conduct that overbore his will and that he did not voluntarily consent to the search. Defendant also contends his consent was not made knowingly because the form he signed did not contain advice that he had the right to withdraw his consent after the search began.
When defense counsel argued at the suppression hearing that the consent form was deficient, Judge Kracov continued the hearing and gave the attorneys an opportunity to brief their legal arguments. Defense counsel was not able to find any case law that had adopted his novel constitutional proposition that the police are required to give advice that a person has a right to withdraw his consent to a police search of his property.
In his oral decision, Judge Kracov reviewed the evidence and made detailed findings of fact. He found the testimony of both the surveillance officer and the detective to be straightforward and credible. Judge Kracov concluded that the police had probable cause to stop and arrest defendant after the surveillance officer saw him in the street handling packages of illegal drugs. The use of five police cars to make "an aggressive stop" of defendant's vehicle was explained by the detective as a police tactic to disorient defendant momentarily at the time of the arrest and thus avoid a possible chase or shootout in a heavily-populated urban area. The judge found, however, that defendant signed the consent-to-search form knowingly and voluntarily, in particular, because he offered to assist the police in recovering guns and drugs from his apartment to obtain some benefit by his cooperation.
On appeal, defendant argues he was in fact so disoriented by the police conduct that he did not understand what he was doing when he consented to the search of his apartment. His argument might have been more persuasive to the judge who heard the evidence if the police had immediately requested consent to search his apartment. After defendant was arrested and sixty bags of heroin were found on his person, the police seemed satisfied and did not undertake to gather other evidence immediately. They read defendant the Miranda warnings and set about to transport him to their headquarters. They did not interrogate him at the scene and, specifically, did not ask to search his apartment.
In fact, the police were not prepared to conduct a consent search. The fact that they did not bring a consent form with them that morning corroborates the detective's testimony that the police had not planned to search defendant's residence and did not press him for consent to do so. That circumstance, in turn, supports the detective's testimony that defendant initiated the conversation about the contraband he kept in his residence.
Having recently been released from prison, defendant was apprehended while in possession of heroin intended for distribution. As a repeat offender, he faced a long term of imprisonment. He initiated conversation with the belief that his cooperation would mitigate the severity of the charges he was facing. Not only did he volunteer that he had guns in his apartment, but he also directed the police to the places in his apartment where they would find his guns and drugs. The evidence supports Judge Kracov's finding that defendant was not coerced but volunteered to permit the seizure of the contraband from his home as a means of ameliorating his situation.
In reviewing a motion to suppress evidence, we must defer to the trial court's fact findings and "feel" of the case and may not substitute our own independent conclusions regarding the evidence. State v. Elders, 192 N.J. 224, 243-44 (2007); State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 161-62 (1964). In particular, we defer to the credibility determinations of the trial court. Locurto, supra, 157 N.J. at 474; State v. Hodgson, 44 N.J. 151, 163 (1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966). Here, Judge Kracov credited the testimony of the police witnesses, and his findings and conclusions are amply supported by the evidentiary record.
Judge Kracov made his findings by the clear and convincing standard of proof. At the same time, he appropriately questioned the continuing viability of State v. King, 44 N.J. 346, 352 (1965), and State v. Rice, 115 N.J. Super. 128, 131 (App. Div. 1971), which refer to "clear and positive" proof that consent was intelligently and voluntarily given. In Elders, supra, 192 N.J. at 246, the Supreme Court stated that the prosecution bears the burden of proving by a preponderance of the evidence that a warrantless search falls within an exception to the warrant requirement, one such exception being a consent search. Because Judge Kracov applied the higher standard of clear and convincing evidence, we need not address in this appeal whether Elders supersedes the prior case law and states the controlling standard of proof for a consent search, preponderance of the evidence.
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Defendant argues a constitutional violation because the consent form he signed did not contain advice that he had the right to withdraw his consent after the search of his apartment had begun. The form explicitly informed defendant in bold letters that he had the "right to refuse to consent" to a search. See State v. Johnson, 68 N.J. 349, 353-54 (1975) (a valid consent under the New Jersey Constitution, Article I, paragraph 7, requires proof that the consenting person knew he could refuse to consent to a police search). But see Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 2059, 36 L. Ed. 2d 854, 875 (1973) (Under the Fourth and Fourteenth Amendments, knowledge of a right to refuse consent is one factor to be taken into account but is not "a prerequisite to establishing a voluntary consent."). Defendant has not cited any legal authority in New Jersey, or in any other jurisdiction, holding that a consent form must contain advice that the individual retains the right to terminate the consent search.
Defendant cites several New Jersey decisions supporting the proposition that a person has a right to stop a consent search after it has begun. See State v. Hampton, 333 N.J. Super. 19, 30 (App. Div. 2000); State v. Powell, 294 N.J. Super. 557, 563 (App. Div. 1996); State v. Santana, 215 N.J. Super. 63, 72 (App. Div. 1987). We do not dispute such a right. But no case brought to our attention has held the State can only prove knowing and voluntary consent if the police first informed the person of a right to withdraw his consent during the search.
Fourth Amendment law and our State search and seizure cases have never required a fixed series of advisory warnings to prove that a defendant knowingly and voluntarily waived his rights, such as the warnings required by Miranda and its progeny. The courts have treated differently the Fifth Amendment right against self-incrimination, as protected by Miranda, from the Fourth Amendment right against unreasonable search and seizure. The former right "implicate[s] the reliability of the truth determining process," while the thrust of the latter right is "[s]olicitude for individual privacy . . . [which] must be balanced . . . against the interest of the community." See State v. Chappee, 211 N.J. Super. 321, 333-34 (App. Div.) (quoting Hubbard v. Jeffes, 653 F.2d 99, 103-04 (3d Cir. 1981), certif. denied, 107 N.J. 45 (1986). In fact, even the State constitutional requirement that the prosecution prove a consenting person knew of the right to refuse consent has not been converted into a mandatory, Miranda-like, advisory statement that must be proven in every case. In Johnson, supra, 68 N.J. at 354, the Court stated that the State has the burden of proving knowledge of a right to refuse consent, but that proof may consist of evidence other than proof that the police affirmatively gave such advice.
We conclude that evidence of defendant's knowledge or lack of knowledge that his consent could be withdrawn was relevant to determining his knowing and voluntary waiver of State constitutional rights, but the prosecution was not required to prove that the police gave him specific advice about that right.
Moreover, in this case, the absence of such advice made no difference to the voluntariness of defendant's consent. Defendant personally accompanied the police into his apartment and pointed out the location of his guns and drugs. His participation resulted in a short period of police intrusion into his residence, only about twenty-five minutes, and the police seized only items of evidence relevant to the drug and weapons charges. By his cooperation, defendant accomplished what many persons who cooperate hope to do; he maintained some measure of control over the scope of the police intrusion into the privacy of his home. Defendant also hoped his cooperation would benefit him with respect to the charges he would face. Nothing in the record suggests that defendant had any second thoughts during the search or would have requested that it cease had he only known he had such a right. Affirmative police advice as to such a right had little relevance to the factual circumstances that led to the judge's findings and conclusions.
We conclude there was no error in the trial court's denial of defendant's motion to suppress physical evidence seized from his residence.
Defendant argues next that his Sixth Amendment right to confront witnesses was violated when the surveillance officer's testimony before the jury allegedly made reference to information provided by the informant. On redirect examination, the prosecutor asked the officer questions intended to refute an implication of defense counsel's cross-examination that the police randomly selected defendant and his car as the objects of their surveillance, and also that the police did not gather any evidence to determine whose guns and drugs were in the apartment. Defense counsel objected to the following questions and answers:
PROSECUTOR: When you set up your surveillance that day, officer, was there any particular vehicle you were watching?Upon defense counsel's renewed objection, Judge Iglesias held another sidebar conference. The judge denied defense counsel's motion for a mistrial and then instructed the jury that the defense objection to the last question and answer was sustained and that the jury was "to disregard the testimony concerning having a photograph."
A. Yes.
Q. And what was that vehicle?
A. It's a black Monte Carlo with New Jersey registration it was Yankee Yankee
Uniform 87, I forget the last character on the plate.
. . . .
[SIDEBAR CONFERENCE.]
. . . .
Q. And were you watching for anyone in particular?
A. Yes.
Q. Who was that?
A. The defendant, Ronnell Hedgespeth.
Q. How did you recognize him to be the defendant, Ronnell Hedgespeth?
A. I was provided a picture of him prior to my surveillance.
Defendant argues the officer's testimony violated his right to confront witnesses because it implied that other persons had made incriminating statements against him. Defendant's brief contains a lengthy discussion of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), but that argument is not helpful to our review. Crawford addressed Sixth Amendment implications of "testimonial" out-of-court statements admitted under a hearsay rule. No such statements of absent witnesses were admitted at defendant's trial.
The officer's testimony did not violate the strictures of State v. Branch, 182 N.J. 338 (2005), which held inadmissible "officers' hearsay testimony [that] permitted the jury to draw the inescapable inference that a non-testifying declarant provided information that implicated the defendant in the crime." Id. at 351 (citing State v. Bankston, 63 N.J. 263, 271 (1973); State v. Irving, 114 N.J. 427, 445-46 (1989)). Nothing in the officer's simple references to defendant's car or picture led to an "inescapable inference" that the sources of police information about those items included incriminating statements about defendant's drug-dealing activity. The officer's testimony was not more significantly inculpatory than the jury's knowledge that the police were conducting surveillance near defendant's home and were in fact observing his movements that morning. Nor was it inherently more inculpatory than testimony routinely presented in criminal trials that the police showed a witness a series of photographs that included a picture of the defendant. Such a general explanation of police conduct to provide background and context for an investigation is permissible "to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct." Bankston, supra, 63 N.J. at 268. Also, in this case, defense counsel's cross-examination of the surveillance officer prompted an appropriate response by the prosecution on redirect examination.
The evidence that defendant possessed more than 400 packs of heroin and three firearms was so clear-cut that the jury's verdict could not have been prejudicially affected by unspecified hearsay information defendant claims was provided by an absent witness he could not confront. There was overwhelming testimonial and physical evidence for the jury to conclude that defendant was engaged in selling heroin and that he illegally possessed firearms.
Next, defendant argues that the weapons charges should have been dismissed at the close of the State's case-in-chief. He contends the prosecution failed to prove he did not have a permit for his three handguns. Once the prosecution proved that defendant possessed the three handguns, however, the jury was permitted to infer that he lacked a permit for any of them in the absence of evidence to the contrary. N.J.S.A. 2C:39-2(b); State v. Ingram, 98 N.J. 489, 500 (1985).
Finally, we reject defendant's contention that the prosecution failed to prove the firearms were possessed for an unlawful purpose. While the unlawful purpose of protecting his drug business seems obvious in these circumstances, the prosecution also presented the testimony of a police sergeant who was qualified as an expert witness in street-level drug dealing. The sergeant testified that a drug dealer would keep guns to protect against violence by those who might steal his drugs and money. His testimony was sufficient for defendant's conviction on those charges of the indictment, which for purposes of sentencing, were merged with the other second-degree handgun charges.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION