Opinion
DOCKET NO. A-5754-12T3
04-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TAUREAN D. HOUSTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-02-0548. Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant Taurean D. Houston was found guilty of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). The charge was the only offense tried of a multi-count indictment which included: first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); two counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree possession of weapons and devices, N.J.S.A. 2C:39-3(j); and two counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). On March 15, 2014, defendant was sentenced to seventeen years imprisonment, subject to eight and one-half years of parole ineligibility. He now appeals and we affirm.
Although not clear from the record nor pertinent to the issues on appeal, a mistrial was declared days earlier on unspecified charges.
State Police Detective Edward Fallon and Deptford Township Police Officer Kevin Clements testified at defendant's pretrial suppression motion. Both were assigned to the United States Marshall's Regional Fugitive Task Force when the events at issue occurred.
The morning of May 21, 2010, Fallon acted as the "case agent" in defendant's arrest on a warrant on charges of "[a]ttempted homicide, aggravated assault with a weapon, unlawful possession of a weapon, possession of a weapon for unlawful purposes, and possession of a weapon by a convicted felon." The weapon defendant was charged with possessing was a handgun. Eight officers were involved in the arrest, including two canine officers. Fallon explained that the group was so large because safety is a concern when attempting to arrest a fugitive on weapons offenses.
Upon arrival at the home, a man was seen looking through a glass pane in the front door, and movement was heard through the house, including on the second floor. The officer assigned to monitor the rear of the residence radioed to Fallon that someone fitting defendant's description was trying to flee through the second floor rear window.
The officers then burst through the front door, and Fallon saw a man heading towards the downstairs kitchen area. Fallon ordered the individual to the ground. Because Fallon was not certain of defendant's identity at the time, the other officers "clear[ed]" the home to ensure no one else was in the premises. Defendant was searched, and police recovered a live .45 caliber round. A bullet-proof vest lay on the floor next to defendant.
Clements, who was third or fourth in the line or "stack" of officers during the approach to the front door, had been assigned the task of immediately going upstairs. He was familiar with defendant's outstanding charges.
Clements entered the doorway to the first bedroom in order to "clear that area and make sure that there was no one waiting to ambush [them] or hide from [them] because at that time, [they] still hadn't gotten the all clear that the target was in custody." He also said their task was not to locate drugs or evidence, only "bodies[.]"
Once in the bedroom, Clements saw a bed adjacent to a wall. The foot of the bed was closest to the door. The head of the bed, at the far end, had been pulled away some three feet from the wall. This caught Clements's attention because in his fifteen years of experience he had found suspects hiding in closets, underneath beds, and in crawl spaces.
While testifying, Clements stood to demonstrate his next step. He said:
I reached over because, you know, obviously, I'm not a very big guy. I had to move [the] box spring and mattress individually. So, I reached down, grabbed the mattress, pulled it back toward me, saw a weapon, secured the weapon in the back of my waistband, moved, grabbed the box spring, pulled it away, [and] backed into the space to confirm there was nobody in that space.The weapon was a loaded Glock .40 caliber.
On cross-examination, Clements repeated that his assignment that day was to go immediately to the second floor. He added, "there's a second floor of the residence, there's movement upstairs, you're definitely going up. We clear every section of the residence but once we've determined there is a possible threat upstairs and there is a second floor to the residence, yes, my role becomes second floor security."
Clements explained his only purpose was to make sure "that all of the officers go[t] home at the end of the day, and [he] hadn't gotten the all clear yet that the target was in custody." He further explained that his training dictated that he not make himself a ready target for a person underneath the bed by flashing a light under the bed. Clements testified:
If I'm crouched making myself this neat little package to shoot at and the light is down the center of my body, I'm going to take a round in the face because I'm crouched down, in the neck center mass. Even with the vest on, depending on what he's shooting at me with, it could cause some serious injury and/or death.Clements reiterated that because of his size he was unable to merely reach the length of the bed and pull it towards him while being able to see into the space and under the bed at the far end.
The judge found the officers credible witnesses. He therefore held that the weapon was properly seized pursuant to a protective sweep. He based his decision solely on an analysis of Arizona v. Hicks, 480 U.S. 321, 324-25, 107 S. Ct. 1149, 1152-53, 94 L. Ed. 2d 347, 353-54 (1987).
During the trial, Fallon and Clements testified to essentially the same facts. Additionally, Fallon testified that after Clements brought him the firearm, he advised defendant of his Miranda rights, and asked if the gun was his. Defendant initially denied ownership, later admitted it, and was taken into custody.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
State Police Sergeant William N. Sorino, the canine officer assigned to the rear of the home, also testified. As he began, the prosecutor conferred with defendant's attorney and the judge on the record, and told the judge that Sorino had a report not previously produced. The omission was not deliberate, as the prosecutor had not known it existed prior to Sorino's arrival. The report listed other locations, including one on the same street as defendant's home, to which the officer had gone on the day of defendant's arrest.
Defense counsel unsuccessfully moved for a mistrial. He stated that his client had insisted he had seen the officers earlier that morning and actually spoken to them, and that for that reason, "it fundamentally alter[ed] [his] defense." The court denied the application, but dismissed the witness for the day with the understanding that by doing so, defense counsel would have the opportunity to evaluate the information in the report, and conduct additional investigation if necessary.
Sorino returned to the stand the following day. He reiterated that defendant's home was the Task Force's first stop that day, although there was a second house on that same street where they later executed an arrest warrant. Sorino was certain that defendant's home was the first stop, because it was his practice to list the addresses in chronological order and defendant's address was the first.
The parties stipulated that the Task Force was executing a lawful arrest warrant on the morning of defendant's arrest. The jury was instructed not to speculate about this "lawful arrest[.]" Additionally, the judge informed the jury that the parties also stipulated that defendant had been previously convicted of a predicate crime under the statute and thus did not have the legal status to lawfully possess the firearm.
The State moved under N.J.S.A. 2C:44-3(a) for defendant to be sentenced as an extended-term offender based on his prior criminal convictions; the judge granted the State's application. Defendant's criminal history included a 2001 third-degree conviction for receiving stolen property, N.J.S.A. 2C:20-7, a 2007 conviction for distribution of a controlled dangerous substance within 1000 feet of a school, N.J.S.A. 2C:35-7 and 2C:35-5, and a 2006 fourth-degree resisting arrest conviction, N.J.S.A. 2C:29-2(a)(2). The predicate crime referred to in the indictment—which made defendant a person not to possess—was a 2003 possession with intent to distribute within 1000 feet of school property. When discussing jail credits, counsel noted that defendant was being held on bail for an unrelated homicide matter and thus asked to preserve "any Hernandez argument[.]"
The appendix on appeal does not include a complete presentence report. Accordingly, we have relied upon the transcript of the sentence and the briefs for information regarding defendant's prior criminal history. --------
Because of his criminal history, the judge found aggravating factor three, the risk that defendant will re-offend, N.J.S.A. 2C:44-1(a)(3); six, the extent of defendant's prior criminal record and the seriousness of the offenses, N.J.S.A. 2C:44-1(a)(6); and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9). He found in mitigation only factor eleven, the excessive hardship of imprisonment, N.J.S.A. 2C:44-1(b)(11). The judge concluded that the aggravating factors substantially outweighed the mitigating, and imposed the sentence accordingly.
Defendant raises the following claims of error:
POINT I
THE SEIZURE OF A HANDGUN FOUND BETWEEN A BOXSPRING AND MATTRESS IN A SECOND FLOOR BEDROOM DURING THE EXECUTION OF AN ARREST WARRANT OF DEFENDANT ON THE FIRST FLOOR OF THE PREMISES VIOLATED THE FOURTH AMENDMENT.
POINT II
THE FAILURE OF THE STATE TO MAKE TIMELY DISCLOSURE OF A POLICE REPORT OF THE INCIDENT VIOLATED THE RULES OF DISCOVERY AND DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT III
THE DISCRETIONARY EXTENDED TERM SENTENCE IMPOSED UPON THE DEFENDANT OF SEVENTEEN . . . YEARS WITH . . . EIGHT AND A HALF YEARS PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED.
I.
We first address defendant's contention that the trial court erred in finding that the protective sweep of the home was lawful. On appellate review of a motion to suppress, we defer to the trial court's fact-finding when supported by sufficient credible evidence in the record. State v. Puryear, 441 N.J. Super. 280, 292 (App. Div. 2015). Such deference is especially appropriate when a trial judge's findings "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Id. at 293 (alteration in original) (citing State v. Davila, 203 N.J. 97, 109-10 (2010)). The trial court's factual findings will not be reversed unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention and correction. State v. Elders, 192 N.J. 224, 245 (2007). Our review of the trial court's legal conclusions, however, is plenary. State v. Coles, 218 N.J. 322, 342 (2014).
We agree that the motion to suppress should have been denied but do so employing a different analysis. In Davila, supra, 203 N.J. at 125-26, our Supreme Court held that:
a protective sweep of a home may only occur when (1) law enforcement officers are lawfully within the private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger. Where those substantive conditions are met, as a matter of procedure, the sweep will be upheld only if (1) it is cursory, and (2) it is limited in scope to locations in which an individual could be concealed. As additional guidance, we add the following. The search should be strictly limited in duration to the time frame during which police are lawfully within the premises.We defer to the trial judge's finding that the officers were credible witnesses.
[Ibid.]
Assuming the officers' testimony was truthful, safety was clearly a primary concern while arresting this defendant because he was charged with attempted murder and handgun possession. The officers implemented protocols to minimize possible injuries to the officers, such as approaching defendant's front door with officers in a line or stack, as opposed to approaching shoulder-to-shoulder, and assigning specific roles in advance of the approach to the house, including directing Clements to the second-floor and Sorino to the rear of the premises. Eight officers were assigned to the detail.
Clements—who readily acknowledged he was five feet seven and one-half or five feet eight inches tall, and therefore unable to simultaneously pull away the mattress and box spring—convincingly explained why it would have been dangerous to have merely bent down to flash a light to look under the bed for a suspect. Clements expressed a heightened sense of caution given the nature of defendant's charges, including firearm possession.
If Clements was a credible witness, his explanation for pulling back only the mattress first, thereby unwittingly discovering the presence of a gun, has to be accepted at face value. He acted before being advised that defendant had been apprehended. Based on the speed at which events occurred after entry, his conduct was in line with lawful protective measures.
Accordingly, the State has met the test for a protective sweep under Davila. The officers were lawfully in the premises. Given that defendant was wanted for an attempted murder involving a firearm, the officers had a "reasonable articulable suspicion that the area to be swept harbors an individual posing a danger." See id. at 125. Clements pulling the mattress away from the box spring was not a search, it was the only means he had to safely look under the bed, to look in the space between the far end of the bed and the wall. He had no interest, as he put it, in drugs or evidence. His interest was in ensuring his own safety and that of the other officers present in the house.
Under these circumstances, we are satisfied that the motion judge's decision was sound, and that Clements's actions fall within the purview of the protective sweep doctrine expressed in Davila. The officer's actions were objectively reasonable.
Once having seen the weapon in plain view, the authorities were entitled to seize it. See State v. Bruzzese, 94 N.J. 210, 236-38 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Pursuant to the plain view exception to the warrant requirement, an officer may seize evidence if "'lawfully . . . in the viewing area' when he discovers the evidence, and it is immediately apparent the object viewed is 'evidence of a crime, contraband, or otherwise' subject to seizure.'" State v. Keaton, 222 N.J. 438, 448 (2015) (quoting State v. Johnson, 171 N.J. 192, 206-07 (2002). "The officer must discover the evidence 'inadvertently, meaning that he did not know in advance where evidence was located nor intend beforehand to seize it.'" Ibid. (quoting Johnson, supra, 171 N.J. at 206-07). Therefore, the weapon was properly seized. Thus we affirm the judge's denial of defendant's motion to suppress.
II.
Neither appellate counsel nor trial counsel offer an explanation of the prejudice allegedly wrought on defendant by virtue of Sorino's failure to provide the State with a copy of his report prior to testifying. The report corroborated all the officers' testimony that defendant's arrest was the task force's first stop. The information contained in the report could not have altered the defense theory or in any way affected any aspect of defendant's presentation during the trial.
Defendant's claim he had seen the officers earlier in the day may have had some relevance in an attempt to impeach the officers' credibility during the motion to suppress. It could have been argued that encountering the officers before they came to his home meant their entry was unnecessary, designed to discover evidence, and therefore improper. But the report did not corroborate his claim and neither did Sorino's testimony. We do not consider the argument to have sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
III.
Finally, defendant contends his sentence was excessive and should be modified. Our "review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). Our obligation is to ensure the sentence falls within the statutory guidelines, and that the aggravating and mitigating factors the trial judge found are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). Applying those standards, we discern no error.
It was not disputed that defendant was eligible for an extended-term sentence based on his prior criminal convictions. See N.J.S.A. 2C:44-3(a). The judge supported the aggravating factors and mitigating factor by evidence in the record. The sentence the judge imposed was consistent with the Code of Criminal Justice and does not shock our judicial conscience. See State v. Fuentes, 217 N.J. 57, 70 (2014); Bieniek, supra, 200 N.J. at 608; State v. Cassady, 198 N.J. 165, 181 (2009); State v. Roth, 95 N.J. 334, 364-65 (1984).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION