Opinion
DOCKET NO. A-2661-14T3
06-28-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CALVIN PIERCE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 14-03-0482. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant pled guilty to second-degree aggravated assault. He appeals the trial court's decisions to: (1) allow a defense witness to invoke the privilege against self-incrimination; (2) not suppress evidence arising out of a consent search; and (3) not to dismiss the charge. We affirm.
I.
The evidence at the suppression hearing included the following facts. On June 12, 2013, defendant and his cousin and co-defendant, Yusuf Francis, approached M.G. on a Matawan street. Defendant, armed with a shotgun, demanded that M.G. give him what he had in his pockets. Defendant gave the shotgun to Francis and told Francis that if M.G. tried to "get up" on defendant, to "take care of him." M.G. tried to run, but Francis grabbed him and pushed him to the ground. Then, both defendant and Francis kicked and punched M.G. Defendant took the contents of M.G.'s pockets, which included a few hundred dollars.
We use initials to protect the privacy of the victim and the witnesses.
Francis was arrested on June 14, and defendant was arrested in North Carolina on June 19, and extradited to Monmouth County.
On July 8, 2013, a confidential informant notified Matawan Borough Detective Joseph Lovallo that D.D. and J.E. had buried the shotgun in the backyard of a house in Matawan. Lovallo determined that J.E. lived in that house, which belonged to J.E.'s mother. Lovallo then conducted separate videotaped interviews of J.E. and D.D.
D.D. admitted that J.E. had asked him to help bury the shotgun, and that it was buried in J.E.'s yard, but denied having any personal knowledge of the robbery or assault of M.G. J.E. similarly admitted that he buried the shotgun. J.E. said that the first time he saw the shotgun was on the morning of June 13, 2013, and that defendant had stashed it in the back of his van the night before.
Detective Lovallo then asked J.E. for consent to search the property, including the backyard, to retrieve the shotgun. Lovallo advised J.E. that he was not under arrest, that he was not facing charges or the possibility of jail, and that J.E. had two choices: (1) J.E. could consent to the search; or (2) the police would apply for a search warrant.
Detective Lovallo then provided J.E. with a standard consent to search form, and advised J.E. of his rights to refuse consent, to revoke consent at any time, and to be present during the search. J.E. initialed after each of the aforementioned rights, and he also signed the portions of the form that authorized police to remove any items of evidentiary value, and confirmed that he had given consent voluntarily without coercion.
Detective Lovallo and J.E. then traveled to J.E.'s home where they met with J.E.'s mother, the homeowner. Lovallo advised the mother that he hoped to search the backyard. He then provided J.E.'s mother with the same type of consent form he had given J.E., which the mother also initialed and signed. Lovallo executed the consent search and found a shotgun buried in the yard, wrapped in a white plastic garbage bag, in the location he was told it would be. In a second interview, J.E. told Detective Lovallo that defendant had told him that the shotgun had been used to commit a robbery.
Defendant was indicted for first-degree robbery, N.J.S.A. 2C:15-1 (Count 1); third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39-5(c)(1) (Count 2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count 3); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (Count 4); second-degree burglary, N.J.S.A. 2C:18-2 (Count 5); and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7(b)(1) (Count 6).
Francis was also charged on counts 1 through 5, but not Count 6. --------
Defendant filed a motion to dismiss Counts 4 and 5, arguing that insufficient supporting evidence had been presented to the grand jury. The trial court dismissed Count 5 by agreement, but denied the dismissal of Count 4.
Defendant filed a motion to exclude transcripts of telephone calls between defendant and J.E., recorded while defendant was incarcerated. Defendant also filed a motion to suppress the shotgun. Judge Anthony J. Mellaci, Jr. heard both motions on September 4, 2014.
At the hearing, defendant's counsel cross-examined Detective Lovallo with excerpts from one of the phone calls between defendant and J.E., in an attempt to show that J.E. had been coerced into consenting to the search. During the call, J.E. told defendant that he was at the police station "for like 10 hours until everything was over," that he was told police already had a search warrant, and that he was told if he did not consent, he would be sent to jail for three years. However, Detective Lovallo testified that J.E.'s assertions in the phone call were false. In particular, Lovallo testified that J.E. had only arrived at the station shortly before the time marked on J.E.'s Miranda form, which was approximately two hours before the time indicated on his mother's consent form.
The judge excluded all but three of the phone calls, but denied defendant's motion to suppress the shotgun. The court found Detective Lovallo to be "highly credible [and] believable." The court found that J.E. and his mother had been apprised of their rights, based on the two consent forms and the videotape of J.E.'s interview with Lovallo. The court found that Lovallo did not coerce J.E., and that J.E.'s consent was voluntary. Indeed, the court found that the transcript of J.E.'s interview reflects that Lovallo handled J.E. "with kid gloves," and that "[t]here was no threatening."
Defendant then pled guilty to second-degree aggravated assault (Count 4), subject to a negotiated plea agreement, and he provided the following allocution: On June 12, 2013, he assaulted and caused serious bodily injury to M.G., and that having read M.G.'s medical records, defendant knew that as a result of the attack, M.G. had sustained broken ribs, shoulder pain, and fluid in his lungs — all of which required M.G. to be hospitalized for several weeks. On December 19, 2014, pursuant to the plea agreement, the judge sentenced defendant to five years in prison with 85% to be served before parole eligibility.
Defendant appeals, arguing:
POINT I — THE TRIAL COURT MISAPPLIED ITS DISCRETION AND VIOLATED DEFENDANT'S RIGHT TO COMPULSORY PROCESS BY PERMITTING DEFENSE WITNESS [J.E.] TO INVOKE A SPECIOUS AND UNREALISTIC FIFTH AMENDMENT CLAIM (NOT RAISED BELOW).
POINT II — DEFENDANT'S MOTION TO SUPPRESS THE SHOTGUN SHOULD HAVE BEEN GRANTED BECAUSE THE "CONSENT" TO SEARCH OBTAINED BY
DETECTIVE LOVALLO WAS THE RESULT OF POLICE COERCION AND THREAT.
POINT III — DEFENDANT'S MOTION TO DISMISS COUNT FOUR OF THE INDICTMENT CHARGING SECOND DEGREE AGGRAVATED ASSAULT SHOULD HAVE BEEN GRANTED BECAUSE THE STATE FAILED TO PRESENT THE GRAND JURY WITH ANY EVIDENCE REGARDING THE SERIOUSNESS OF M.G.'S INJURIES.
II.
On appeal, defendant argues that the trial court should have compelled J.E. to testify, because his invocation of the Fifth Amendment was "specious and unrealistic," and that this violated defendant's right to compulsory process. Defendant did not raise this claim before the trial court. Moreover, when defendant pled guilty, he waived this constitutional claim.
"Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea." State v. Crawley, 149 N.J. 310, 316 (1997) (citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)). "Those constitutional rights include the privilege against compulsory self-incrimination, the right to trial by jury, the right to confront one's accusers, and the right to a speedy trial." Ibid. (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274, 279-80 (1969)). Defendant's guilty plea similarly waived any claim of denial of his right to compulsory process. United States v. Moussaoui, 591 F.3d 263, 279 (4th Cir. 2010); Nobles v. Beto, 439 F.2d 1001, 1002 n.1 (5th Cir. 1971).
"[A] defendant may appeal those adverse decisions specifically reserved by a conditional guilty plea entered in accordance with" Rule 3:9-3(f). State v. Davila, 443 N.J. Super. 577, 586 (App. Div. 2016). However, defendant did not enter into a conditional plea preserving this claim with the "approval of the court and the consent of the prosecuting attorney." R. 3:9-3(f). "[T]he failure to enter a conditional plea under Rule 3:9-3(f) generally bars appellate review of non-Fourth Amendment constitutional issues." State v. J.M., 182 N.J. 402, 410 (2005).
In any event, defendant's argument is without merit. He argues that J.E.'s testimony would have shown that Detective Lovallo coerced J.E. and his mother into consenting. Before J.E. was called to the stand, J.E.'s attorney advised the court that J.E. "would be exercising his Fifth Amendment rights," which J.E. did when questioned. The court noted that "a prosecuting authority may feel that there is probable cause to bring charges against" J.E., and did not compel J.E. to testify.
Additionally, when the trial court asked if defense counsel wanted to he heard in response to its decision not to compel J.E. to testify, defense counsel responded, "No." The prosecutor added that, based on his discussions with defense counsel, what the defense hoped to elicit from J.E. had already been elicited using the transcripts of the phone calls. Defense counsel agreed that because the transcripts were already admitted into evidence, he would rest. Thus, defendant is further barred from raising this claim by the doctrine of invited error. "Under that settled principle of law, 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. A.R., 213 N.J. 542, 561 (2013) (citation omitted).
Moreover, J.E. properly invoked the privilege against self-incrimination. Detective Lovallo testified that when he interviewed J.E., J.E. disclosed: (1) he found the shotgun in the trunk of his car the day after the robbery and assault; (2) defendant told him that defendant robbed someone and asked him to "put the gun away for him"; and (3) J.E. then buried the shotgun in his backyard. Thus, if J.E. took the stand, he risked incriminating himself for unlawful possession of a shotgun, conspiracy, hindering apprehension, tampering with evidence, and other offenses. See In re Ippolito, 75 N.J. 435, 440-41 (1978). That risk was not removed by Detective Lovallo's earlier statements, which did not constitute a grant of immunity from prosecution based on subsequent testimony.
Defendant relies on State v. Jamison, 64 N.J. 363, 373-74 n.1 (1974), where our Supreme Court explained, "[w]hen the State calls as a witness an accomplice of the defendant or one known to have had some connection with the crime, knowing the witness will plead his privilege against self-incrimination, it is ordinarily preferable first to examine the witness on voir dire, as otherwise the circumstances may lead the jury to draw unfavorable inferences against defendant." Ibid. Here, "no similar policy considerations would seem to apply," because it was defendant who called J.E. as a witness, and because there was no jury at the suppression hearing. Ibid.
III.
Next, defendant argues that the trial court wrongly denied his motion to suppress, alleging that J.E.'s consent was not voluntary.
When considering a motion to suppress, we have a "deferential standard of review," and 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) (citation omitted). "Those findings warrant particular deference when they 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."'" Ibid. (citation omitted). "In particular, the appellate court must defer to the credibility determinations of the trial court between competing factual testimony." State v. Jefferson, 413 N.J. Super. 344, 349 (App. Div. 2010). "The issue of consent . . . is basically factual, to be determined in the context of all the relevant circumstances." State v. Sugar, 108 N.J. 151, 174 (1987). We must hew to our standard of review.
A search without a warrant is presumptively unreasonable. State v. Wilson, 178 N.J. 7, 12 (2003). "[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,'" such as consent. State v. Elders, 192 N.J. 224, 246 (2007). Searches "conducted pursuant to consent" are a well-established exception to the warrant requirement. State v. Domicz, 188 N.J. 285, 305 (2006).
Defendant notes Detective Lovallo told J.E. that if he did not consent to a search, the police would apply for a search warrant. Defendant claims that statement was a threat which rendered J.E.'s consent involuntary. However, as the trial court properly found, this statement that the police would "obtain[] a search warrant was a fair prediction of events that would follow, not a deceptive threat made to deprive [J.E.] of the ability to make an informed consent." State v. Cancel, 256 N.J. Super. 430, 434 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993). Here, Detective Lovallo plainly had probable cause to obtain a search warrant based on the informant's report, and the admission of J.E. and D.D. that the shotgun was buried in J.E.'s backyard.
Defendant also relies on the transcripts of calls between defendant and J.E., wherein J.E. asserted he had been detained for ten hours and was forced to consent. However, the trial court considered those transcripts, discredited J.E.'s assertions, and credited Detective Lovallo's testimony that J.E.'s assertions were false. The court found that J.E. was trying to minimize his cooperation and make defendant believe he was forced into consenting, so defendant would not be angry with him.
Moreover, defendant failed to present any evidence or even argue that the consent of J.E.'s mother was coerced at the suppression hearing. As the trial court found, her consent as the homeowner was all that was necessary.
IV.
Finally, defendant argues the trial court erred in denying his motion to dismiss the second-degree aggravated assault charge, N.J.S.A. 2C:12-1(b)(1) (Count 4), because the State failed to present sufficient evidence to the grand jury. The State argues that even if there were some defect in the grand jury proceedings, it was rendered moot by defendant's guilty plea.
"Generally, any motion based on defects in the grand jury process must be filed before trial. This rule governing the timing of the motion recognizes the right of the State to cure any irregularity." State v. Simon, 421 N.J. Super. 547, 551 (App. Div. 2011) (citations omitted). "The rule also allows preservation of the issue because a guilty verdict is universally considered to render error in the grand jury process harmless." Ibid. (emphasis added). Here, defendant sought to preserve his right to appeal the motion to dismiss. On his plea agreement form, he indicated that he "underst[ood] that by pleading guilty" he was waiving his "right to appeal the denial of all . . . pretrial motions except" his "Motion to Dismiss."
In any event, there was no defect in the grand jury proceeding. Our Supreme Court has reiterated that "[a]n indictment is presumed valid and should only be dismissed if it is 'manifestly deficient or palpably defective.'" State v. Feliciano, 224 N.J. 351, 380 (2016) (citation omitted). "A motion to dismiss is addressed to the discretion of the trial court, and that discretion should not be exercised except for 'the clearest and plainest ground.'" Ibid. (citation omitted). "At the grand jury stage, the State is not required to present enough evidence to sustain a conviction. As long as the State presents 'some evidence establishing each element of the crime to make out a prima facie case,' a trial court should not dismiss an indictment." Ibid. (citations omitted).
A person is guilty under N.J.S.A. 2C:12-1(b)(1) if he "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." Here, defendant contends that the evidence before the grand jury did not establish the element of serious bodily injury.
"Serious bodily injury" is defined as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1(b). Detective Lovallo testified before the grand jury that the victim suffered a punctured lung, broken ribs, and other injuries as a result of the assault, and that, when his statement was taken, the day after the assault, the victim was still at the hospital being treated for his injuries. The victim's punctured lung constituted "some evidence" of serious bodily injury, which was sufficient to make out a "prima facie case" for each element of the crime. Ibid.; see State v. Carey, 168 N.J. 413, 425, 428 (2001) (treating a collapsed lung as serious bodily injury).
Defendant contends that expert testimony was required to show that the victim suffered serious bodily injury, but cites no law in support of this assertion. "'[W]e will not consider' defendant's entirely unsupported and 'conclusionary statement.'" United States Bank Nat'l Ass'n v. Curcio, 444 N.J. Super. 94, 114 (App. Div. 2016) (citation omitted).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION