Opinion
DOCKET NO. A-2946-14T3
12-27-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. D.D.S., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the briefs). Defendant filed a pro se supplemental brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Simonelli and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 13-07-0718. Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, of counsel and on the briefs). Defendant filed a pro se supplemental brief. PER CURIAM
A grand jury indicted defendant for fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4) (count one); two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts two and three); three counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (counts four, five and six); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count seven); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count eight); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count nine); and second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7 (count ten).
The charges against defendant stemmed from a domestic dispute with his girlfriend, T.P. on the night of February 17, 2013. The dispute occurred in the apartment of T.P.'s mother, R.P., where defendant did not live. Defendant was at the apartment visiting his and T.P.'s infant daughter. R.P.'s boyfriend, J.T., was also there. During the dispute with T.P., and in the child's presence, defendant choked and pointed a gun at T.P., threatened to kill her, and fired three shots into the bedroom ceiling when R.P. and J.T. tried to intervene. Defendant fled the apartment with the gun when he learned that the police were called, leaving behind a red sweatshirt and his backpack, which contained loose bullets.
We use initials to protect the victims' identities.
The backpack is also referred to in the record as a book bag. --------
Captain Thomas Ryan of the Woodbury City Police Department was advised of the domestic dispute and shooting when he arrived at the apartment. While processing the scene, the three victims told him that a backpack, which lay open and unzipped on the kitchen floor, belonged to defendant and defendant left it behind when he fled from the apartment. Captain Ryan photographed the backpack, the red sweatshirt, and the holes in the bedroom ceiling where the shooting occurred. He then picked up the backpack and "clearly" saw several loose bullets and an orange plastic container that holds ammunition inside the backpack. Not knowing if the backpack contained something more dangerous, he secured it and transported it to police headquarters, where it was searched and the bullets were seized. Defendant was arrested eleven days after the incident at a motel in Runnemede, where he was found with T.P. and their child.
Defendant filed a motion to suppress the backpack and bullets. In opposition, the State argued that defendant lacked standing to bring the motion because he had abandoned the backpack and had no reasonable expectation of privacy in it. The State also argued that the bullets were in plain view. At the motion hearing, Captain Ryan testified to the facts stated above. Defendant testified that he did not return to the apartment because of the argument he had with T.P.; however, he admitted that he and T.P. reconciled shortly after the incident, and he did not disclaim ownership of the backpack.
The motion judge found that defendant did not live in the apartment and discarded the backpack when he fled from the apartment. The judge determined that by discarding and leaving the backpack at the apartment, defendant abandoned a reasonable expectation of privacy in it or its contents. The judge did not address the plain view doctrine.
Trial began on September 30, 2014. Following completion of the State's case, the trial judge dismissed counts two, three, five, and six. The jury found defendant guilty on count one (fourth-degree aggravated assault with a firearm); count four (third-degree terroristic threat); count seven (second-degree endangering the welfare of a child); count eight (third-degree unlawful possession of a weapon); and count nine (second-degree possession of a weapon for an unlawful purpose). Following a second trial before the same jury, defendant was convicted on count ten (second-degree certain persons not to have weapons). The judge sentenced defendant on count ten to an eight-year term of imprisonment with five years of parole ineligibility, and imposed concurrent terms on the remaining counts.
On appeal, defendant raises the following contentions:
POINT I
THE TRIAL JUDGE ERRED IN DENYING THE MOTION TO SUPPRESS THE CONTENTS OF THE [BACKPACK], U.S. CONST., AMENDS. VI, XIV; N.J. CONST., ART. I, [¶] 10.
POINT II
THE TRIAL JUDGE ERRED IN ADMITTING INTO EVIDENCE THE PRIOR STATEMENTS OF THE THREE ALLEGED VICTIMS AS THE STATE FAILED TO SATISFY THE STANDARDS OF STATE V. GROSS, 216 N.J. SUPER. 98 (App. Div. 1987), AFF'D. 121 N.J. 1 (1990). U.S. CONST., AMENDS. VI, XIV; N.J. CONST., ART. I, [¶] 10.
POINT III
THE TRIAL JUDGE ERRED IN DENYING THE MOTION TO DISMISS BECAUSE INSUFFICIENT PROOFS WERE PRESENTED BY THE STATE TO SUSTAIN A CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD BEYOND A REASONABLE DOUBT AS REQUIRED BY IN RE WINSHIP, 397 U.S. 358 (1970). U.S. CONST., AMENDS. VI, XIV; N.J. CONST., ART. I, [¶] 10.
POINT IV
Defendant raises the following contention in a pro se supplemental brief:COUNT NINE SHOULD MERGE WITH COUNT ONE.
[POINT I]
THE TRIAL COURT ERRED IN NOT SUPPRESSING THE CONTENTS OF THE BOOK[]BAG THAT THE DEFENDANT HAD A RIGHT OF PRIVACY PURSUANT TO U.S. CONST., AMENDS. [VI], XIV; N.J. CONST., ART. I, [¶] 10.
We decline to address defendant's arguments in Point I that the search of the backpack was illegal because Captain Ryan lacked a reasonable belief that R.P. had authority to give consent to search it; failed to ask necessary questions to resolve any ambiguity as to ownership; and lacked probable cause to believe the bag contained evidence of a crime when he seized it. Defendant did not raise these arguments before the motion judge and they do not involve the trial court's jurisdiction or a matter of public importance. State v. Robinson, 200 N.J. 1, 20 (2009). We limit our review of the denial of the motion to suppress to the argument defendant raised in his pro se supplemental brief.
The State agrees with defendant's contention in Point IV that his conviction on count nine should merge with count one. Accordingly, we remand to the trial court to enter an amended judgment of conviction to reflect the merger. We affirm defendant's sentence in all other respects, as well as his conviction.
I.
Defendant contends in his pro se supplemental brief that the motion judge erred in denying his motion to suppress the bullets found in the backpack. He argues that he did not forfeit his expectation of privacy in the backpack, and putting the bullets inside indicated that he wanted the contents to remain private and secreted from public view. He also argues that the backpack was discovered in a private residence, not a public place, and there was no indication that he wanted to forever relinquish control and dominion over it.
Our Supreme Court has established the standard of review applicable to consideration of a trial judge's ruling on a motion to suppress:
We are bound to uphold a trial court's factual findings in a motion to suppress provided those findings are supported by sufficient credible evidence in the record. Deference to those findings is particularly appropriate when the trial court has the opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy. Nevertheless, we are not required to accept findings that are clearly mistaken based on our independent review of the record. Moreover, we need not defer to a trial . . . court's interpretation of the law because [l]egal issues are reviewed de novo.We defer to a trial judge's finding that a defendant abandoned property "if the finding could reasonably have been reached on sufficient credible evidence present in the record." State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981), aff'd o.b., 89 N.J. 378 (1982). Applying these standards, we discern no reason to disturb the judge's ruling that defendant abandoned the backpack.
[State v. Watts, 223 N.J. 503, 516 (2015) (citations omitted) (internal quotation marks omitted).]
"[A] defendant has automatic standing to move to suppress evidence from a claimed unreasonable search or seizure if he has a proprietary, possessory or participatory interest in either the place searched or the property seized." State v. Carvajal, 202 N.J. 214, 222 (2010) (citation omitted) (internal quotation marks omitted). Generally, "[u]nder our standing jurisprudence . . . a defendant charged with a possessory offense, such as possession of a controlled dangerous substance with intent to distribute, has standing to challenge the seizure of the evidence that constitutes the possession element of the offense." Id. at 222-23. However, "a defendant has no constitutionally protected interest in property that has been abandoned[,]" and lacks standing to object to the search or seizure of that property. Id. at 223. "For standing purposes, 'property is abandoned when a person, who has control or dominion over property, knowingly and voluntarily relinquishes any possessory or ownership interest in the property and when there are no other apparent or known owners of the property.'" Ibid. (quoting State v. Johnson, 193 N.J. 528, 549 (2008)). "The State bears the burden of proving 'by a preponderance of the evidence that the defendant abandoned the property and therefore had no standing to object to the search.'" Id. at 223-24 (quoting Johnson, supra 193 N.J. at 548, n.4).
"Abandonment is 'the voluntary relinquishment of all right, title, claim and possession, with the intention of not reclaiming it.'" Farinich, supra, 179 N.J. Super. at 5-6 (citation omitted). "In the context of the Fourth Amendment a defendant 'abandons' property when he voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question so that he can no longer retain a reasonable expectation of privacy with regard to it at the time of the search." Id. at 6 (citation omitted). "The issue of whether property has been abandoned is factual in nature." Ibid. (citation omitted).
Here, the record confirms that defendant abandoned the backpack. The undisputed proofs are that defendant left the backpack behind when he fled the apartment and there is nothing indicating that he attempted to reclaim it. Once defendant left the backpack behind, he knowingly and voluntarily relinquished any possessory or ownership interest in it. Accordingly, he lacked standing to challenge the search or seizure of the abandoned property, and lacked a reasonable expectation of privacy in the backpack, even in a residential setting. See e.g., ibid.; State v. Johnson, 171 N.J. 192, 209-10 (2002); State v. Anglada, 144 N.J. Super. 358, 360-61, 363 (App. Div. 1976).
Even if the denial of the motion to suppress was error, it was harmless error. Under the "harmless error" rule, "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971). This rule recognizes that not every error possibly resulting in an injustice requires reversal. Rather, "[t]he possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.
There was no harmful error here. Defendant was not charged with possession of bullets. Thus, he had no standing to challenge the seizure of the backpack and bullets. Carvajal, supra, 202 N.J. at 222-23. In addition, introduction of the backpack and bullets would not have changed the result of the convictions for aggravated assault with a firearm, terroristic threats, endangering the welfare of a child, and the weapons-related offenses. There was sufficient evidence that during a domestic dispute defendant choked and pointed a gun at T.P., threatened to kill her, and fired three shots into the bedroom ceiling, all in the presence of his infant child. The jury would not have reached a different result had the backpack and bullets been suppressed.
II.
Defendant contends in Point II that the trial judge erred in admitting the videotaped statements that T.P., R.P. and J.T. gave to Captain Ryan at police headquarters on the night of the incident. This contention lacks merit.
N.J.R.E. 803(a)(1) provides that the following statements are not excluded by the hearsay rule:
(a) Prior statements of witnesses. A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement:Thus, prior inconsistent statements may be admissible as substantive evidence if they are inconsistent with a witness's trial testimony and, if offered by the party calling the witness, are contained in a sound recording or in a writing made or signed by the witness. State v. Mancine, 124 N.J. 232, 247 (1991); State v. Gross, 121 N.J. 1, 7-9 (1990).
(1) is inconsistent with the witness' testimony at the trial or hearing and is offered in compliance with [N.J.R.E.] 613. However, when the statement is offered by the party calling the witness, it is admissible only if, in addition to the foregoing requirements, it (A) is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability[.]
When in dispute, a prior inconsistent statement sought to be admitted for substantive purposes under N.J.R.E. 803(a)(1) must be the subject of a preliminary hearing to establish its reliability as a pre-condition to its admissibility. Gross, supra, 121 N.J. at 16. In determining the reliability of pre-trial statements, the Supreme Court in Gross enumerated fifteen factors to be considered:
(1) the declarant's connection to and interest in the matter reported in the out-of-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion of the summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement, and (15) the presence or absence of corroborating evidence.
[Id. at 10 (quoting State v. Gross, 216 N.J. Super. 98, 109-10 (App. Div. 1987)).]The trial court should make the determination of the reliability of the statement, based upon all of the relevant factors, outside the presence of the jury. Gross, supra, 216 N.J. Super. at 110. Once the court determines a prior statement is reliable and admissible, it is the jury's function to assess the statement's credibility and probative worth. Gross, supra, 121 N.J. at 17.
We defer to the trial court's credibility determinations and factual findings from a Gross hearing. State v. Johnson, 421 N.J. Super. 511, 517 (App. Div. 2011). We review the trial court's admission of a prior inconsistent statement for abuse of discretion. State v. Merritt, 247 N.J. Super. 425, 434 (App. Div.), certif. denied, 126 N.J. 336 (1991).
In his videotaped statement, J.T. stated that he and R.P. heard a "thump" and he told R.P. to "[g]et up. Go in [T.P.'s bedroom], see what's going on." R.P. told him that she saw defendant grab T.P. by the neck, so R.P. grabbed defendant off of T.P. J.T. grabbed defendant after defendant exited the bedroom and started coming at R.P. At that point, defendant "got in an argument with everyone and pulled the gun out" and pointed it at all of them, including the child. J.T. jumped in front of R.P. and said to defendant, "[h]old on man. What are you doing?" Defendant then shot three bullet holes and left the apartment, leaving behind "the stuff in the house."
On direct examination at trial, J.T. initially denied that he was in the apartment at the time of the domestic dispute, and claimed that he had been drinking all day, was drunk, had a blackout, and did not recall speaking to Captain Ryan. He later admitted that he spoke to defendant, told him to leave the apartment, and defendant left.
In her videotaped statement, R.P. stated that she heard a thump, went into R.P.'s bedroom, and saw that defendant had his hand "around [T.P.'s] throat, up against the wall[.]" She pushed defendant off T.P. and he pushed her back. When she told defendant to leave, he took out a gun, waved it around, threatened to kill T.P., fired three shots into the ceiling, and "took off running out the back door." On direct examination at trial, R.P. testified that she did not recall anything from the night of the incident, including whether defendant was present in the apartment. She claimed that she was drunk and had a blackout.
In her videotaped statement, T.P. stated that defendant got mad and started choking her, and she stood up and turned on the light because their child was crying. Defendant then choked her against the wall, pulled out a gun, and threatened to kill her and her family. R.P. entered the bedroom and told defendant to leave. Defendant then pushed R.P. and J.T. and fired shots into the ceiling.
On direct examination at trial, T.P. denied that anything physical happened between her and defendant, and she did not recall whether defendant had a gun. She also did not recall telling Captain Ryan that defendant choked her, that their child was crying, or that defendant threatened to kill her and her family or fired a gun. She claimed that she was on medication for postpartum depression on the day of the incident and had a blackout, but she could not recall the name of the medication.
After the direct testimony of each witness, the judge held a N.J.R.E. 104 hearing to determine the reliability of their videotaped statements. Captain Ryan testified that he interviewed each witness and viewed them as victims and witnesses, not suspects. As to J.T., he testified that he did not induce J.T. to give a statement, and J.T. did not appear drunk or under the influence of drugs at the time of his interview, did not smell of alcohol, and was calm and coherent.
As to R.P., Captain Ryan testified that he did not induce her to give a statement, and she seemed fine and awake at the time of the interview, was responsive to his questions, and gave appropriate answers. He also testified that R.P. did not smell of alcohol, and she did not appear drunk or under the influence or show any slurred speech, glassy or watery eyes, or inability to walk. Captain Ryan also reviewed the audio-recording of R.P.'s 9-1-1 call and testified that he did not believe she was under the influence of alcohol when she made the call; rather, she sounded frantic and scared.
As to T.P., Captain Ryan testified that he did not induce or threaten her to give a statement. He also testified that she was physically fine at the time of the interview, was not injured, did not indicate she was not feeling well or was under the influence of postpartum medication, was alert and aware, and did not complain of any pain or illness.
The three witnesses also testified at the N.J.R.E. 104 hearings, and their testimony was consistent with their direct testimony. The judge found they were not credible and Captain Ryan was credible. Based on Captain Ryan's testimony, the judge determined that each of the videotaped statements was reliable and admissible. Trial testimony resumed, during which defense counsel cross-examined the three witnesses, each of whom maintained their earlier direct testimony. Captain Ryan read relevant portions of their videotaped statements from transcripts, and the judge gave the jury an instruction that mirrored Model Jury Charge (Criminal) "Recanting Witness (Substantive)" (1994).
We discern no abuse of discretion in the admission of the videotaped statements. Those statements were clearly inconsistent with the witnesses' trial testimony, and the record amply supports the judge's credibility findings, as well as his ruling that the videotaped statements were reliable and admissible. Each witness was a victim and witness to a crime; they voluntarily gave their statements to the police at police headquarters on the night of the crime; they were not physically or mentally impaired at the time; there was no evidence of any motive to fabricate; and they were not induced or threatened into giving their statements. Ultimately, it was for the jury to assess the credibility and probative worth of each statement. Gross, supra, 121 N.J. at 17. Accordingly, admission of the relevant portions of the videotaped statements was proper.
III.
Defendant contends in Point III that the judge erred in denying his motion for judgment of acquittal at the close of the State's case on the charge of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2). He argues that the proofs were insufficient to support a conviction beyond a reasonable doubt. We disagree.
We use the same standard as the trial judge in reviewing a motion for judgment of acquittal at the close of the State's case. State v. Bunch, 180 N.J. 534, 548-49 (2004). We must determine
whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967).]
Under Rule 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977), certif. denied, 77 N.J. 473 (1978). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).
N.J.S.A. 2C:24-4(a)(2) provides as follows, in pertinent part:
Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who causes the child harm that would make the child an abused or neglected child as defined in [N.J.S.A. 9:6-1, N.J.S.A. 9:6-3 and N.J.S.A. 9:6-8.21] is guilty of a crime of the second degree.To prove the charge of second-degree endangering the welfare of a child, the State had to prove beyond a reasonable doubt that: (1) the victim was a child; (2) defendant knowingly caused the child harm that would make the child abused or neglected; (3) defendant knew that such conduct would cause the child harm that would make the child abused or neglected; and (4) defendant had a legal duty for the care of the child or had assumed responsibility for the care of the child. See Model Jury Charge (Criminal), "Endangering the Welfare of a Child, Abuse or Neglect (Second Degree) N.J.S.A. 2C:24-4a(2)" (2015).
An abused or neglected child means,
that the defendant created or allowed to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ[.]In addition, abuse of a child consists of "the performing of any indecent, immoral or unlawful act or deed, in the presence of a child, that may tend to debauch or endanger or degrade the morals of the child[.]" Ibid. Further,
[Ibid.]
[a] person acts knowingly with respect to the nature of [his] conduct or the attendant circumstances if [he] is aware that the conduct is of that nature or that such
circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if [he] is aware that it is practically certain that such conduct will cause a result.
[Ibid.]
Here, defendant was engaged in a domestic dispute with T.P. when he pointed a gun at everyone in the apartment, including the child, threatened to kill everyone, and fired the gun three times within close proximity to the child. Viewing this evidence in the light most favorable to the State, and giving the State the benefit of all favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find defendant guilty of second-degree endangering the welfare of a child beyond a reasonable doubt.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION