Opinion
DOCKET NO. A-3096-12T2
05-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EDGAR TORRES, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-09-1539. 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
At the conclusion of a thirteen-day jury trial, defendant was convicted of three counts of first-degree robbery, N.J.S.A. 2C:15-1, and three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). After merging the weapon convictions into the robbery convictions, the judge sentenced defendant to a forty-year prison term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first robbery conviction, as well as concurrent twenty-year prison terms on the other robbery convictions. Defendant appeals and argues, among other things, that the trial judge erred in denying his motion to suppress evidence obtained without a warrant and in denying his motion to suppress statements he made to police. We affirm.
From December 2010 to February 2011, three armed robberies occurred at banks in Howell Township and Ocean Township during which a male suspect with a gun entered each bank and demanded cash. During their investigation, police found the suspected getaway car — a white two-door Honda — parked near a Howell townhouse. Police also determined that a man fitting the suspect's description, and later identified as defendant, had recently used the vehicle.
On February 25, 2011, during surveillance of the townhouse, police observed a woman, later identified as the Honda's registered owner, drop a toddler off and leave. At approximately 2:45 p.m., officers observed another woman, later identified as Migdalia Torres, mother of the Honda's owner, exit the townhouse and drive away in the Honda. Police observed Migdalia driving to Asbury Park, where she engaged in a narcotics transaction. At 3:48 p.m., police stopped the Honda near the Howell townhouse. Migdalia told police she had just purchased and used heroin; she acknowledged there was heroin in the vehicle.
Although Migdalia Torres and defendant share the same last name, they are not married nor otherwise related. We will refer in this opinion to the former as Migdalia to avoid confusion.
During this stop, Migdalia told officers she was the lessee of the Howell townhouse and her boyfriend, whom she identified as defendant, "sometimes stayed there with her." She described herself as financially independent and asserted that defendant did not contribute to the household bills. Migdalia also informed police that her daughter owned the Honda, and defendant was alone inside the townhouse with Migdalia's three-year-old grandson. When police did not find in the Honda the gun suspected of being used in the bank robberies, officers turned their suspicions about the location of the gun to the townhouse; they also purported to be concerned for the child's safety in light of the possibility that the weapon was in the townhouse. According to police, Migdalia stated she "wanted the handgun out of the residence, and . . . would be more than willing to permit [police] to search the residence for any other evidence."
With Migdalia's cooperation, police developed and executed a plan to get defendant out of the townhouse. Migdalia telephoned defendant and asked him to come outside under the guise the vehicle had broken down. Defendant walked out of the residence alone within "seconds to minutes" of the phone call, where, at approximately 4:15 p.m., he was apprehended.
Defendant asked why he was being arrested and officers advised there were two outstanding warrants for his arrest and that they were also investigating his involvement in several recent bank robberies. The officers asked defendant, either just before or just after he was ushered into a police car — but indisputably before he was read his Miranda rights — whether there was a weapon in the townhouse and who was present inside. Defendant confirmed the three-year old was alone inside, and he stated "the weapon was not real, and . . . that [the police] could retrieve it from a second story bedroom where it was located inside . . . a blue basket."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Two police officers then entered the townhouse and found the child alone in a bedroom watching television. In addition to securing the child, the officers "did a preliminary search of the residence solely for any additional occupants or suspects, but [] did not search for any evidence." At 4:25 p.m., Migdalia executed a written consent to search the townhouse for "any items of evidential value." During the search, officers recovered a black pellet gun as well as several items of clothing, including a jacket, a sweatshirt, and a hat, consistent with descriptions of the robbery suspect's clothing.
Meanwhile, defendant was transported to the Howell Township Police department. Upon arrival, at approximately 5:13 p.m., defendant was read — and, in writing, waived — his Miranda rights. Defendant then made a videotaped statement in which he confessed to three bank robberies and identified himself in photos of those robberies. At 5:29 p.m., defendant executed a written consent to search the Howell townhouse.
On March 11, 2011, defendant was interviewed again by police. After again being advised of his rights and executing a written Miranda waiver, defendant made a one-hour videotaped statement in which he confessed to two additional Monmouth County bank robberies that occurred in 2006 and 2009.
Prior to trial, Judge Mullaney denied defendant's motion to suppress the evidence seized from the townhouse and motion to suppress the statements he made to police. And, as noted earlier, after a thirteen-day trial, defendant was convicted of three first-degree robberies and three weapons offenses and sentenced to a lengthy prison term.
Defendant raises the following arguments in this appeal:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED BY POLICE.
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS MADE TO POLICE.
III. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SEVER AND ORDER SEPARATE TRIALS FOR EACH COUNT OF THE INDICTMENT.
IV. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE UNFAIRLY PREJUDICIAL 404(b) OTHER-ACT EVIDENCE AND IMPROPERLY-AUTHENTICATED PHOTO AND VIDEO EVIDENCE.
V. THE TRIAL COURT ERRED IN PERMITTING THE JURY TO HEAR DEFENDANT'S STATEMENT TO INTERROGATING DETECTIVES THAT HE WAS MOTIVATED TO COMMIT THE BANK ROBBERIES BECAUSE OF DRUGS AND BILLS.
VI. THE TRIAL COURT ERRED IN PERMITTING DEFENDANT'S PRIOR CONVICTIONS TO BE USED AS IMPEACHMENT EVIDENCE BEFORE THE JURY.
VII. THE TRIAL COURT ERRED IN PERMITTING EXPERT TESTIMONY BEFORE THE JURY OF A "CRIME SCENE" EXPERT.
VIII. THE TRIAL COURT ERRED IN DECLINING TO CHARGE THE JURY ON FALSE IN ONE, FALSE IN ALL.
IX. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL.
X. THE TRIAL COURT ERRED IN CHARGING LESSER-INCLUDED OFFENSES OVER DEFENDANT'S OBJECTION.We find insufficient merit in the arguments contained in Points III through XII to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also reject Points I and II for the reasons that follow.
XI. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST TO CHARGE THE JURY ON THIRD-PARTY GUILT.
XII. DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
I
In considering defendant's argument that the judge erred in denying his motion to suppress evidence seized from the townhouse, we recognize that a warrantless search is presumptively invalid unless the State "demonstrate[s] that the search fits within an accepted exception to the warrant requirement, one of which is the long-recognized consent-to-search exception." State v. Coles, 218 N.J. 322, 337 (2014); see also Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973); State v. Domicz, 188 N.J. 285, 305 (2006). A warrantless search is valid when based on the consent of a third party if police have a reasonable belief the consenting individual has "common authority over the premises." Illinois v. Rodriguez, 497 U.S. 177, 185-89, 110 S. Ct. 2793, 2799-02, 111 L. Ed. 2d 148, 159-61 (1990); see also United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 249-50 (1974). In further refining these principles, the Court held that where one occupant consents and one refuses, "a physically present co-occupant's stated refusal to permit entry prevails, rendering [a] warrantless search unreasonable and invalid as to him." Georgia v. Randolph, 547 U.S. 103, 106, 126 S. Ct. 1515, 1519, 164 L. Ed. 2d 208, 217 (2006). More recently, the Court held that in the context of third-party consent, "an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason." Fernandez v. California, 571 U.S. ___, ___, 134 S. Ct. 1126, 1134, 188 L. Ed. 2d 25, 35 (2014).
Our courts also recognize "a third party's ability to consent to a search when the consenter has common authority for most purposes over the searched space." Coles, supra, 218 N.J. at 340; State v. Lamb, 218 N.J. 300, 315 (2014); State v. Suazo, 133 N.J. 315, 320 (1993). Common authority is premised
on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his [or her] own right and that the others have
assumed the risk that one of their number might permit the common area to be searched.
[State v. Earls, 420 N.J. Super. 583, 591-92 (App. Div. 2011) (quoting Matlock, supra, 415 U.S. at 171 n.3, 94 S. Ct. at 993 n.3, 164 L. Ed. 2d at 250 n.3) (internal quotation marks omitted), rev'd on other grounds, 214 N.J. 564 (2013).]
Defendant argues the evidence police seized from the townhouse should have been suppressed because the State failed to show Migdalia freely and voluntarily consented, that the search occurred before Migdalia executed the consent form, and even if the consent was properly obtained, police exceeded the scope of her consent. In addition, defendant argues his own consent was involuntary and that the State failed to show his consent was obtained prior to searching the townhouse.
We agree with Judge Mullaney's determination that Migdalia could effectively consent to the search of the townhouse. Despite defendant's argument that the bedroom "was one that [defendant] (or at least clearly a male occupant) occupied," the judge's holding that "[t]he room in which the majority of the evidence was found was a shared common space used for storage" was supported by sufficient credible evidence. The testimony adduced at the pretrial hearing revealed that the room contained neither a bed nor a dresser, and that there was men's, women's, and children's clothing as well as toys, lamps, and tools in the room; testimony from the hearing further revealed there were no "signs or anything to indicate that it was a room that was exclusively for [defendant]." Because, as the judge found, Migdalia told police defendant "often stayed [] but did not reside" at the townhouse, it was reasonable for investigating officers to believe Migdalia had authority over the entire townhouse. Earls, supra, 420 N.J. Super. at 592.
We are also satisfied the State met its burden of proving consent "was given freely and voluntarily," Coles, supra, 218 N.J. at 338, including showing the consenting party had knowledge of the right to decline consent, State v. Birkenmeier, 185 N.J. 552, 564 (2006). Migdalia executed a written consent form that authorized the search and removal of "any items of evidential value" from the townhouse and recognized her right to refuse to consent to the search. And, although there was testimony that Migdalia was under the influence of heroin when she consented, this fact alone does not necessarily preclude voluntary consent. See State v. Warmbrun, 277 N.J. Super. 51, 64 (App. Div. 1994) (holding that a defendant's Miranda waiver was voluntary where although "very intoxicated, he was capable of communicating and that he was responsive in answering questions and could answer correctly questions such as his name, age, etc."), certif. denied, 140 N.J. 277 (1995). An officer who observed Migdalia execute the consent form testified that she seemed "coherent," and "underst[ood] the statements that [an officer] read to her from [the consent] form."
Because the trial judge found as a fact that consent was properly obtained from Migdalia, and that there was no legal impediment to the application of her consent, we need not address defendant's additional arguments regarding the consent he purportedly gave. We, thus, reject defendant's Point I.
We also find defendant's arguments regarding the timing and scope of the search to be without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
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II
Defendant argues the trial judge improperly denied his motion to suppress statements he made to police both before and after he received Miranda warnings. We address these contentions separately.
A
The right against self-incrimination guaranteed by the Fifth Amendment is recognized in New Jersey through the common law, N.J.S.A. 2A:84A-19, and N.J.R.E. 503. State v. Nyhammer, 197 N.J. 383, 399-400 (2009).
The public-safety exception to the Miranda requirement applies "in limited circumstances, based on an objectively reasonable need to protect the police or the public from any immediate danger associated with [a] weapon." State v. O'Neal, 190 N.J. 601, 618 (2007) (quoting New York v. Quarles, 467 U.S. 649, 659 n.8, 104 S. Ct. 2626, 2633 n.8, 81 L. Ed. 2d 550, 559 n.8 (1984)) (internal quotation marks omitted). The totality of the circumstances must create "a compelling and exigent need" for police or public protection. State v. Stephenson, 350 N.J. Super. 517, 525 (App. Div. 2002). Specifically, when relying upon this exception, the State must show: "(1) there was an objectively reasonable need to protect the police or the public; (2) from an immediate danger; (3) associated with a weapon; and that (4) the questions asked were related to the danger and reasonably necessary to secure public safety." Ibid. (internal quotation marks and citations omitted). In cases involving a firearm, "it must be reasonably believed that the gun is in an unknown location, which is accessible to third parties that is incapable of being reasonably secured." State v. Melendez, 423 N.J. Super. 1, 24 (App. Div. 2011), certif. denied, 210 N.J. 28 (2012). We have recognized that the "danger that children or other persons who are inexperienced in the use of firearms may obtain access to a gun is one circumstance which may justify the police entering private property" without a warrant "in performance of their community caretaking responsibilities." State v. Navarro, 310 N.J. Super. 104, 109 (App. Div. 1998).
Defendant argues that the pre-Miranda questioning was improper because as soon as defendant exited the townhouse police entered and secured the child thereby eliminating any danger to the child. Defendant's asserted timeline of events is not borne out by the record. Here, there is no dispute that at the time defendant was questioned he had been arrested and was in police custody. We agree, however, with the trial judge's determination that "[t]here was a sufficient element of danger to necessitate the officers' actions at the scene of the crime." Suppression hearing testimony revealed that at the time defendant exited the townhouse, police correctly understood a three-year old was alone inside with a firearm, which created a risk to both police and the child. After arresting defendant but prior to providing Miranda warnings, the officer only asked defendant for "[t]he location of the weapon and who was in the residence." Despite defendant's argument to the contrary, these questions were "specifically frame[d] . . . to elicit a response concerning the possible presence of a weapon." O'Neal, supra, 190 N.J. at 618. In short, as the judge found, "the questioning was aimed at finding the gun, rather than incriminating the defendant."
In the final analysis, we must accept a trial court's factual findings on a motion to suppress, so long as they are supported by sufficient credible evidence in the record. State v. Smith, 212 N.J. 365, 387 (2012); State v. Handy, 206 N.J. 39, 44 (2011). We conclude that the judge's findings are grounded in the evidence he found credible and we are satisfied that he applied correct legal principles.
B
To be admissible a defendant's confession must be made voluntarily, knowingly, and intelligently. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707; State v. Knight, 183 N.J. 449, 461 (2005). When contested, a court must look to the totality of the circumstances to determine whether a statement was made voluntarily. Id. at 462. Relevant factors include a "suspect's age, education, and intelligence" as well as "advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." Knight, supra, 183 N.J. at 462-63 (citations and internal quotation marks omitted).
Defendant argues the State failed to show he knowingly, voluntarily, and intelligently waived his Miranda rights before rendering his videotaped confessions. In this regard, defendant maintains his statements were involuntary in light of his tenth-grade education and because he was exhausted and suffering from heroin withdrawal at the time. These facts, while relevant, are alone insufficient to compel suppression. See State v. Johnson, 309 N.J. Super. 237, 260-61 (App. Div.) (finding a statement admissible where a defendant had a seventh grade education and was under the influence of cocaine because "there was no testimony or indication from defendant's lack of formal education or his modest use of intoxicating substances that there was any negative impact on his ability to understand and waive his Constitutional rights and voluntarily confess"), certif. denied, 156 N.J. 387 (1998); see also Warmbrun, supra, 277 N.J. Super. at 64. Similarly, in considering defendant's videotaped confessions and medical records, the trial judge found "it was apparent that defendant's drug withdrawal, however serious it was at the time, was not effecting his ability to comprehend and communicate with the officers." The judge also found from the medical records that defendant was not "'incoherent or showing signs of withdrawal'" and his "thought process was described as logical." In addition, the judge recognized that "defendant was advised of his rights, and waived those rights, in writing, not once, but twice." There was ample evidence from which the judge was entitled to conclude that "defendant was fully competent to answer questions" and "his waiver was knowingly and voluntary."
Because we are obligated to defer to these findings, and because the judge applied correct legal principles to those facts, we reject defendant's Point II.
As observed earlier, we find no merit in any of defendant's remaining arguments.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION