Opinion
DOCKET NO. A-3487-14T1
01-23-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEWIS ROMAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Lila B. Leonard, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fisher and Leone. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-07-1698. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Lila B. Leonard, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Lewis Roman appeals his February 17, 2015 judgment of conviction. Principally, he challenges the denial of his motion to suppress. We affirm.
I.
At the suppression hearing, Officer George Hines testified as follows. On September 11, 2012, Hines received a radio call relating that a caller reported shots fired in the area of Chadwick and West Runyon Streets in Newark. He was given the description that the suspect was a "tall, black, dark skinned male . . . having dreads, wearing a white t-shirt, blue jeans."
Upon arriving at that intersection, Officer Hines saw defendant, who matched the description, talking to a female. Hines approached and asked if they heard shots fired. They both replied they had not. Hines told defendant he received information that someone fitting his description fired shots, to which defendant did not respond. Meanwhile, Officers Samantha Robinson and Marion Solomon arrived and entered a bodega across the street.
Defendant looked around "quite a bit" and did not make eye contact with Officer Hines, which "heightened [his] suspicion." Hines looked at defendant's waistband and saw a bulge, which appeared to be a gun, tucked into defendant's pants under his shirt. In Hines's experience, that was a common place to keep a handgun.
Accordingly, Officer Hines grabbed the object that appeared to be a gun, drew his service weapon, pointed it at defendant, and advised him not to move. Feeling that the object was in fact a gun, he "trapped the gun," meaning he "held the gun down into [defendant's] waistband" to prevent defendant from "get[ting] a hold of the gun." Hines called out to Officers Robinson and Solomon across the street and said he found a gun, at which point Solomon ran across and handcuffed defendant, and Hines retrieved the gun from defendant's waistband.
At the suppression hearing, defendant's acquaintance Stanley Bacote testified as follows. He was across the street and could see an officer and defendant talking but could not hear what they were saying. He saw Officer Hines "bend down" near a parked car and "when he came up he was just acting different — he had a different demeanor on him." Hines acted like "he found something," but a car was blocking Bacote's view of what he found. He did not see the officers take anything out of defendant's waistband, he never saw the officers recover a gun, and he never saw a pat-down.
The motion judge denied defendant's motion to suppress. The judge found that Officer Hines's testimony was credible, but discredited Bacote's testimony.
At trial, Officer Hines gave similar testimony. Officer Robinson corroborated Hines's testimony. A crime scene officer and ballistics detective testified that the gun was loaded with ten hollow-nose bullets, was operable, bore no fingerprints, and had its serial number scratched off.
Defendant testified as follows. He and the female came outside shortly after a shooting at West Runyon and Chadwick Streets. Defendant was wearing a white t-shirt and blue jeans and had dreadlocks. Officer Hines arrived and asked if they heard the shots fired. After defendant said no and was unable to produce identification, Hines searched him and found nothing. After searching the area, the officers arrested him and showed him a gun, which he believed they found between two cars.
The jury found defendant guilty of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-9(e), and possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f).
The trial court sentenced defendant to: eight years in prison with four years of parole ineligibility for unlawful possession of a handgun; eighteen months in prison with eighteen months of parole ineligibility for possession of a defaced weapon; and eighteen months in prison for possession of hollow-nose bullets. The sentences were to run concurrently.
II.
Defendant makes the following arguments on appeal:
POINT I - THE OFFICER DISCOVERED AND SEIZED THE WEAPON IN VIOLATION OF THE CONSTITUTIONAL PROHIBITION AGAINST UNREASONABLE SEARCHES AND SEIZURES. THEREFORE, THIS COURT SHOULD REVERSE THE ORDER DENYING MR. ROMAN'S MOTION TO SUPPRESS EVIDENCE.
A. The Officer Possessed Neither the Requisite Suspicion That Mr. Roman Was Involved in Criminal Activity, Nor That He Was Armed and Dangerous.
B. The Officer's Act of Grabbing the Bulge in Mr. Roman's Waistband Exceeded the Scope of a Valid Terry Frisk. By Grabbing the Bulge and Simultaneously Pointing a Gun at Mr. Roman While Ordering Him Not to Move, the Officer Conducted an Unconstitutional Search and Seizure.
POINT II - THE TRIAL JUDGE ERRED IN FAILING TO APPROPRIATELY ADDRESS THE JURY'S QUESTION REGARDING THE STATE'S FAILURE TO ELICIT TESTIMONY FROM OFFICER SOLOMON.
POINT III - OFFICER MARSHALL'S OPINION TESTIMONY REGARDING THE DIFFICULTY OF RECOVERING FINGERPRINT EVIDENCE FROM A GUN EXCEEDED THE BOUNDARIES OF N.J.R.E. 701. (Not Raised Below).
POINT IV - THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCING COURT FAILED TO ADEQUATELY EXPLAIN THE BASIS FOR IMPOSING THE SENTENCE.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
III.
Defendant argues the motion judge erred in denying his motion to suppress because (1) a Terry stop was not permitted and, (2) even if permitted, Officer Hines's actions exceeded the scope of a permissible Terry stop.
"Appellate review of a motion judge's factual findings in a suppression hearing is highly deferential." State v. Gonzales, ___ N.J. ___, ___ (2016) (slip op. at 32). "'[A]n appellate court reviewing 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. Rockford, 213 N.J. 424, 440 (2013) (citations omitted). "Those findings warrant particular deference when they are 'substantially influenced by [the trial court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (citations omitted). "Thus, appellate courts should reverse only when the trial court's determination is 'so clearly mistaken "that the interests of justice demand intervention and correction."'" State v. Gamble, 218 N.J. 412, 425 (2014) (citations omitted). We must hew to our "deferential standard of review." Rockford, supra, 213 N.J. at 440.
"[U]nder both the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of our State Constitution, searches and seizures conducted without warrants issued upon probable cause are presumptively unreasonable and therefore invalid." State v. Elders, 192 N.J. 224, 246 (2007). "[T]he State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure 'falls within one of the few well-delineated exceptions to the warrant requirement.'" Ibid. (quoting State v. Pineiro, 181 N.J. 13, 19-20 (2004)).
"A 'field inquiry' is the least intrusive encounter, and occurs when a police officer approaches an individual and asks 'if [the individual] is willing to answer some questions.'" Pineiro, supra, 181 N.J. at 20 (citation omitted). Such field inquiries "do not constitute searches or seizures for purposes of the warrant requirement," State v. Privott, 203 N.J. 16, 24 (2010), and may be conducted "'without grounds for suspicion,'" State v. Rodriguez, 172 N.J. 117, 126 (2002) (citation omitted). When Officer Hines approached defendant and the female to ask whether they heard shots fired, this was a permissible field inquiry.
Thereafter, the totality of the circumstances gave rise to reasonable suspicion justifying an investigatory stop. An investigatory stop, otherwise known as a Terry stop, "is valid if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity." State v. Mann, 203 N.J. 328, 338 (2010) (quoting Pineiro, supra, 181 N.J. at 20). "The totality of the circumstances must be considered in evaluating whether an officer had a reasonable suspicion to conduct a brief investigatory stop. An officer's experience and knowledge are factors courts should consider in applying the totality of the circumstances test." Pineiro, supra, 181 N.J. at 22 (citation omitted).
Here, reasonable suspicion that defendant was carrying a firearm illegally arose from several circumstances. First, the officer had a report of shots fired at that location, and defendant matched the description of the shooter. Second, Officer Hines saw a bulge that resembled a gun at defendant's waistband, a location where guns are commonly carried in Hines's experience. "The bulge . . . permitted the officer to conclude that [defendant] was armed and thus posed a serious and present danger to the safety of the officer." Pennsylvania v. Mimms, 434 U.S. 106, 112, 98 S. Ct. 330, 334, 54 L. Ed. 2d 331, 338 (1977). Third, "defendant refused to make eye contact with Officer [Hines], and he repeatedly looked around the area," which "contributed to Officer [Hines]'s reasonable belief that defendant was armed and dangerous." State v. Valentine, 134 N.J. 536, 551, 553-54 (1994). "'[N]ervousness and furtive gestures may, in conjunction with other objective facts, justify a Terry search.'" Gamble, supra, 218 N.J. at 430 (citation omitted).
Defendant argues that a bulge in one's waistband could originate from an innocuous item as well as a dangerous one. However, "simply because a defendant's actions might have some speculative innocent explanation does not mean that they cannot support articulable suspicions if a reasonable person would find the actions are consistent with guilt." Mann, supra, 203 N.J. at 339 (citation omitted).
Defendant argues the report of shots fired was essentially an anonymous tip, which, "standing alone, is rarely sufficient to establish a reasonable articulable suspicion of criminal activity." Rodriguez, supra, 172 N.J. at 127; see Florida v. J.L., 529 U.S. 266, 273, 120 S. Ct. 1375, 1380, 146 L. Ed. 2d 254, 262 (2000). Here, even assuming the radio call was based on an anonymous phone call, there was more than "an isolated anonymous tip of a man with a gun at a particular location." Privott, supra, 203 N.J. at 28. "Defendant appeared nervous" and had a bulge in his waistband, and "the officer was aware that the waistband is an area commonly used by armed persons to conceal a weapon." Id. at 29. Thus, based on the totality of the circumstances, "there were specific and particularized reasons for the officer to conduct an investigatory stop." See ibid.
Under these circumstances, it was reasonable for Officer Hines to draw his weapon after he spotted the bulge at defendant's waistband, and convert the field inquiry into an investigatory stop. Hines was "authorized to take such steps as were reasonably necessary to protect [his] personal safety and to maintain the status quo during the course of the stop." United States v. Hensley, 469 U.S. 221, 235, 105 S. Ct. 675, 683-84, 83 L. Ed. 2d 604, 616 (1985). In Hensley, the United States Supreme Court held that an officer's conduct in approaching with gun drawn in a Terry stop "was well within the permissible range in the context of suspects who are reported to be armed and dangerous." Id. at 223-24, 235, 105 S. Ct. at 677-78, 684, 83 L. Ed. 2d at 608-09, 616. "The courts have rather consistently upheld such police conduct when the circumstances . . . indicated that it was a reasonable precaution for the protection and safety of the investigating officers." 4 Wayne R. LaFave, Search and Seizure § 9.2(d), at 403 & n.124 (5th ed. 2012).
Moreover, these circumstances justified a protective frisk. "[W]hen a police officer has a 'specific and particularized basis for an objectively reasonable suspicion that defendant was armed and dangerous[,]' the officer may 'conduct a carefully limited search of the outer clothing of such person . . . in an attempt to discover weapons which might be used to assault him.'" Privott, supra, 203 N.J. at 26 (citations omitted). "Indeed, a bulge alone has been held sufficient to validate a protective pat-down." State v. Smith, 134 N.J. 599, 621 (1994).
Thus, there was a sufficient basis for a frisk regardless of whether defendant had denied he was armed.
Defendant notes Officer Hines did not conduct a normal pat-down but rather grabbed and held the bulge. Defendant contends this constituted a full-blown warrantless search. To the contrary, Hines only grabbed the bulge through defendant's clothing. In any event, his "action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude that it was reasonable." Privott, supra, 203 N.J. at 32 n.2 (quoting Adams v. Williams, 407 U.S. 143, 148, 92 S. Ct. 1921, 1924, 32 L. Ed. 2d 612, 618 (1972)). In grabbing the bulge, Hines felt a handgun, giving him probable cause to arrest defendant and seize the gun. See State v. Roach, 172 N.J. 19, 29 (2002); see also State v. Toth, 321 N.J. Super. 609, 614-15 (App. Div. 1999), certif. denied, 165 N.J. 531 (2000). Accordingly, the motion judge properly denied defendant's motion to suppress.
IV.
At trial, Officer Hines testified that when he found the gun he yelled over to Officers Robinson and Solomon who were across the street, that they ran over, and that Solomon helped handcuff defendant while Hines removed the gun from defendant's waistband. Officer Robinson also testified and corroborated Hines's testimony. During deliberations, the jury submitted a note asking: "Is it permissible to consider the lack of Officer Solomon's testimony in our deliberations?"
The trial court told counsel its intention
to reinstruct the jury that they are the judges of the facts, and they are to determine the credibility of the various witnesses as well as the weight to be attached to their testimony. And that they alone are the sole and exclusive judges of the evidence, of the credibility of the witnesses, and the weight to be attached to the testimony of each witness.
Defense counsel stated he "d[id]n't have any objection." He added: "I don't really think that [the jurors] should be getting into that area. I think you explained to them previously who testified, and the fact that somebody wasn't called, they're not supposed to determine whether that person would or should've said anything." Defense counsel continued:
I think [w]hat they're trying to determine is, what is the significance, if any for the prosecutor not to call a particular witness.
And I don't know if that really is something that has to be addressed or not. The fact that the prosecutor may have a bunch of police officers and chose only to call two, doesn't necessarily mean anything. But they seem to be attaching some significance for the failure of a particular officer to be called to testify.
The trial court again described the instruction it planned to give, and defense counsel replied "all right." When asked specifically whether he "ha[d] any objection to . . . rereading the instruction to the jury regarding the function of the jury," defense counsel stated "I don't, I just don't know if that actually answers their question."
The trial court instructed the jurors:
I'm going to reinstruct you again as to what your function is as the jury in the case. As I instructed you when we started this case, you are the judges of the facts. And as the judges of the facts, you are to determine the credibility of the various witnesses as well as the weight to be attached to their testimony. And you and you alone are the sole and exclusive judges of the evidence, of the credibility of the witnesses, and the weight to be attached to the testimony of each witness or any evidence.
So it is your function as the jury to be the sole and exclusive triers of the facts in this case, and to attach whatever weight to whatever evidence you deem is appropriate. I believe that's answered your inquiry. If you have any further notes when you return to the jury room, please let us know.
On appeal, however, defendant argues for the first time that "[t]he judge should have answered the jury's question in the affirmative." However, defense counsel took the opposite position at trial. "Under the invited error doctrine, 'trial errors that "were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal."'" State v. Munafo, 222 N.J. 480, 487 (2015) (quoting State v. A.R., 213 N.J. 542, 561 (2013)). A defendant cannot agree to a particular instruction, "'and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.'" State v. Ramseur, 106 N.J. 123, 281-82 (1987) (citation omitted).
Defense counsel clearly encouraged and acquiesced in the instruction given to the jury. Accordingly, defendant "is barred from raising an objection for the first time on appeal." A.R., supra, 213 N.J. at 561.
The doctrine of invited error should not "'automatically apply'" if it would "'cause a fundamental miscarriage of justice.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010) (citation omitted). However, "this case presents no fundamental injustice that would warrant relaxing the invited error doctrine." Ibid.
Defendant argues the trial court should have instructed the jury that "evidence not presented can engender reasonable doubt." In fact, in its jury charge, the court instructed: "A reasonable doubt may arise from the evidence itself, or from a lack of evidence." That instruction was not negated by anything in the court's response to the jury's question. In any event, defendant has not shown plain error.
Notably, defendant does not argue an adverse-inference instruction should have been given under State v. Clawans, 38 N.J. 162 (1962).
V.
On appeal, defendant challenges for the first time the trial testimony of Officer Kelvin Marshall, a member of the Newark Police Department Crime Scene Response Unit. Marshall testified that he examined the gun seized from defendant, placed it in the fuming tank to detect fingerprints, and could not recover any fingerprints from the gun.
Officer Marshall testified it was common not to recover fingerprints from a weapon "because actually processing myself I have zero prints come off a weapon." He testified that he "ha[d] never recovered a print off a weapon," and that "it's actually hard to pull prints off" because of "the poor surface" and "the ridge detail." He said most guns "have rubber handles and wooden handles which we can't get . . . prints off of."
Defendant did not object to Officer Marshall's testimony at trial. On appeal, however, defendant argues Marshall's testimony regarding the low likelihood of recovering fingerprints from a gun exceeded the bounds of lay witness testimony under N.J.R.E. 701.
Lay opinion testimony and expert testimony are governed by N.J.R.E. 701 and N.J.R.E. 702, respectively. N.J.R.E. 701 provides that "[i]f a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." N.J.R.E. 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."
Defendant does not dispute that Officer Marshall's explanations why no fingerprints were found fell "outside the common understanding of the jurors" and would assist the jury in understanding his testimony and determining the facts at issue. Cf. State v. McLean, 205 N.J. 438, 461-62 (2011) (holding an officer cannot offer expert or lay opinion about whether a transaction was a drug transaction "because it is not outside the ken of average jurors"). Furthermore, Marshall's explanations were "based on, and supported by testimony about, the officer's personal perception and observation" in his years of testing guns. See id. at 459 (citing LaBrutto, supra, 114 N.J. at 197-98). "Courts in New Jersey have permitted police officers to testify as lay witnesses, based on their personal observations and their long experience in areas where expert testimony might otherwise be deemed necessary." LaBrutto, supra, 114 N.J. at 198.
In any event, as defendant did not object to Officer Marshall's testimony at trial, he must show plain error, including that the claimed error was "clearly capable of producing an unjust result." R. 2:10-2.
If defendant objected at trial, the State could have attempted to qualify Officer Marshall as an expert. Defendant has not shown Marshall was not qualified, and the evidence introduced at trial suggests that qualifying Marshall as an expert witness may have been a simple task. We have held that where "enough evidence was presented to qualify [an individual] as an expert in [his] area, [a] trial court's error in failing to specifically qualify him as an expert [i]s harmless." State v. Kittrell, 279 N.J. Super. 225, 236 (App. Div. 1995).
Officer Marshall testified that he was employed with the police department for fourteen years at the time of trial and was in the crime scene response unit for three-and-a-half years, and he examined close to one hundred guns for fingerprints.
Further, Officer Marshall's testimony was not prejudicial to defendant. Defendant likely welcomed testimony that the gun did not bear his fingerprints, and Marshall's explanation why no fingerprints were found also fit defendant's claim that someone else dropped the gun between the cars. Defendant has not shown that admitting Marshall's testimony without first qualifying him as an expert witness was clearly capable of producing an unjust result.
Indeed, in his summation, defense counsel noted that "[e]verybody conceded that there w[ere] no fingerprints found on the gun." --------
VI.
Lastly, defendant challenges his sentence. We review a trial court's sentencing decision under an abuse of discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014). "Appellate review of sentencing is deferential, and appellate courts are cautioned not to substitute their judgment for those of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014).
The sentencing court is required to "state . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting [the] sentence." R. 3:21-4(g); accord N.J.S.A. 2C:43-2(e) ("The court shall state on the record the reasons for imposing the sentence, including . . . the factual basis supporting its findings of particular aggravating or mitigating factors affecting [the] sentence."). "[I]f the trial court fails to identify relevant aggravating and mitigating factors, or merely enumerates them, or forgoes a qualitative analysis, or provides little 'insight into the sentencing decision,' then the deferential standard will not apply," Case, supra, 220 N.J. at 65, and the "appellate court may remand for resentencing," Fuentes, supra, 217 N.J. at 70.
Defendant argues the sentencing court did not articulate a basis for finding aggravating factors three and nine or provide a qualitative analysis for those aggravating factors. See N.J.S.A. 2C:44-1(a)(3), (9). However, the court noted that it was
familiar with the facts of this case, having presided over the trial of this matter. I reviewed the PSI, I have listened to the arguments of counsel, the statement of the defendant.
. . . .
He has 20 prior arrests and 2 prior indictable convictions. One in October of 2000 for conspiracy to possess CDS, cocaine. And one other in November of 2003 for possession of a controlled substance. . . .
. . . .
. . . I have considered and find the following factors. The Court finds aggravating factors 3 and 9, the risk that the defendant will commit another offense, and the
need for deterring the defendant and others violating the law.The court added that "defendant was found guilty at the trial of very serious charges, one a second degree offense. As such, the sentences imposed are appropriate."
The sentencing court's comments provided a brief but adequate qualitative analysis of the aggravating factors and its reasoning for imposing the sentence. The cited facts supported the court's finding of aggravating factors three and nine and its imposition of a mid-range sentence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION