Opinion
DOCKET NO. A-2219-08T4
12-19-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JERMAINE SANDERS, Defendant-Appellant.
James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the briefs). Ashlea D. Thomas, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Thomas, of counsel and on the briefs). Appellant filed a pro se supplemental brief .
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and
Ostrer.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 05-04-1004.
James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Mr. Smith, of counsel and on the
briefs).
Ashlea D. Thomas, Deputy Attorney General,
argued the cause for respondent (Jeffrey S.
Chiesa, Attorney General, attorney; Ms.
Thomas, of counsel and on the briefs).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Jermaine Sanders appeals from his conviction and sentence for murder, felony murder, and multiple armed robberies and carjackings. Defendant challenges the validity of the warrantless search of defendant's girlfriend's apartment; the voluntariness of his self-incriminating custodial statement; the admission of various hearsay statements; and his sentence. We affirm the convictions, but remand for resentencing.
I.
A.
According to the trial evidence, defendant and two other men, Quawee Jones and Hafiz Josey, took part in a crime spree in the early morning hours of July 3, 2004 that followed the theft of a 1999 blue Jeep Cherokee from a Maplewood residence before 12:45 a.m.; then followed a robbery outside a Newark bar around 2:30 a.m.; a shooting at Sixteenth Avenue and Nineteenth Street; a carjacking of a Mercedes between 3:15 and 3:30 a.m.; a robbery and carjacking of a Lexus before 5:00 a.m.; a robbery and carjacking of an Acura at around 5:00 a.m.; a homicide at around 5:20 a.m.; a robbery of a cabdriver at about 5:45 a.m.; and a carjacking of a Lexus at about 6:30 a.m.
Thomas Jeron testified that his blue Cherokee with tinted windows was stolen while parked in Maplewood. He could not recall when he discovered it was missing, but recalled it was not later than 12:45 a.m. Defendant claimed in his statement that he did not participate in the theft.
At around 2:30 a.m., according to witness Kendall Blake, an "ice bluish" Cherokee with tinted windows pulled up alongside his vehicle in front of a Newark bar at Mount Prospect Avenue. Blake was with a friend, Damian Clark. Blake testified that two men with handguns left the Jeep, approached each side of Blake's car, and ordered the two men to lie face down on the ground. They stole the men's wallets. As police sirens approached, the robbers fled in the Jeep. Clark confirmed Blake's version, but recalled three men, rather than two. Neither victim could later identify the robbers, but Blake recalled one of the handguns used was like a black revolver in evidence that was seized from defendant's home.
Another victim, Andrew DeSousa, testified that in the early morning hours of July 3, he was sitting with a woman in his vehicle at Sixteenth Avenue and Nineteenth Street. A man approached pointing a handgun and ordered him out of the car. Fearing he would be robbed and killed, DeSousa fled and was shot in the buttocks. He saw a dark Jeep Cherokee with tinted windows. A shell casing was found at the scene. Defendant admitted he was present, but claimed a codefendant shot DeSousa.
Tiking Wallace-Wilson testified about the Mercedes theft and carjacking. He said that between 3:15 and 3:30 a.m., he was in his Mercedes Benz 500, picking up a friend at West Runyon Street and Chadwick Avenue in Newark. An aqua blue Cherokee pulled in front of him; two men with guns exited and ordered Wallace-Wilson out of his vehicle; one drove off in his Mercedes, the other in the Cherokee. Wallace-Wilson testified one robber was about six feet tall, possibly with braids, and possessed a revolver. Defendant admitted he was present, but claimed his codefendant carjacked the vehicle.
Just before 5:00 a.m., a six-foot tall man with a revolver, similar to the one in evidence but chrome, approached a black Lexus at Irvine Turner and Muhammad Ali Boulevards, according to the Lexus driver, Jacque Thelemaque, who was accompanied by his cousin. The gunman demanded the vehicle and "everything else." Within a minute, a Cherokee pulled up, blocked the Lexus, and a second man exited bearing a shotgun. The two men took Thelemaque's keys, cell phone, and drove off in the Lexus. Defendant admitted he was present, but claimed he remained in the Jeep.
The next incident occurred at around 5:00 a.m., according to victim Alejandro Okoraogu-Loren. He testified he was in his Acura Legend at a red light at Elizabeth and Meeker Avenues, when a greenish-blue Cherokee pulled up, two men exited, and one put a gun to his neck, demanding he and his passenger exit. He said a six-foot-two man with dreadlocks possessed a revolver like the one in evidence, although he admitted that in his statement, he described the gun as silver. The two robbers took Okoraogu-Loren's cell phone and DVD player, and drove off in the Acura. Defendant admitted he participated in that carjacking, and drove the Acura off. Jones drove the Cherokee.
According to homicide detective Christopher Smith, Marquise Carter, Jr. was shot to death at around 5:20 a.m. while sitting in the rear seat of a Chevrolet Cavalier in front of 263 South Orange Avenue in Newark. Defendant admitted that he and Hafiz Josey pulled up behind the Cavalier in the stolen Acura, while Quawee Jones pulled in front in the Jeep. As defendant and Josey approached, two occupants fled. The Cavalier then began to pull away, and defendant fired one shot with a .45 caliber revolver from a distance of about half a car-length. Josey fired two shots with a .40 caliber semi-automatic handgun. The police found nearby two .40 caliber casings that matched the casing found at the Carter shooting. A .45 caliber spent projectile was recovered from the Cavalier's floorboard. Ballistics testing revealed it was fired from the revolver defendant admitted he owned, which police seized from his girlfriend's apartment where he lived. The medical examiner testified that Carter was hit by two fatal bullets to his head and neck, and one to his lower back.
After the homicide, the crimes continued. Cabdriver Andre Rossignol testified that at about 5:45 a.m., a tall man with dreads exited a Cherokee parked in front of him on Lyons Avenue in Newark, opened his cab door, pointed a gun at him that looked like the revolver in evidence, and demanded money. After taking the cabdriver's money, the man returned to the Cherokee and drove off. Rossignol picked a photo of defendant, wearing dreads, from a photo array on July 13 and affirmed his prior identification at trial, but was unable to make an in-court identification.
After a brief hearing, the court determined that defendant failed to establish anything suggestive in the photo array or the manner in which it was displayed to warrant a full Wade hearing. See United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); State v. Rodriguez, 264 N.J. Super. 261, 269 (App. Div. 1993) (stating that a defendant must "proffer . . . some evidence of impermissible suggestiveness" to obtain a Wade hearing), aff'd o.b., 135 N.J. 3 (1994).
At about 6:30 a.m., according to Josefina Rosa, a tall thin man with what she called "twists" of hair exited a nearby Jeep, approached her with a revolver, and demanded money while she sat in her Lexus at Second Street and Seventh Avenue. After she said she had no money, the gunman ordered her out of her car, took her license and cell phone, and drove off. Defendant admitted he carjacked Rosa's vehicle and stole her key, cell phone, and what appeared to be a license or identification card.
Later that morning, a citizen spotted a Jeep Cherokee that matched the description and license plate number announced in a police alert he heard on his police scanner. Police recovered the blue Jeep Cherokee at about 6:45 a.m. at Avon and Ridgewood Avenues.
After obtaining a communications data warrant ("CDW"), police learned calls from Okoraogu-Loren's stolen phone had been made to an apartment on Elizabeth Avenue. Essex County Prosecutor's Then-Lieutenant John Melody spoke to the apartment's resident, Debra Sanders. She stated her son sometimes called her at her home, he was not there, but could be found at his girlfriend's first floor apartment at South Tenth Street. Lt. Melody and Det. James Wright proceeded to the apartment, while Det. Michael Lally went to the rear of the building.
Although Lt. Melody was later promoted, we refer to him by his rank at the time of the crimes and his investigation.
The officers knocked and heard noises inside. They knocked again, announcing they were police officers, and heard a male and female voice talking. Eventually, a woman allowed the officers inside. Lt. Melody conducted a protective sweep to locate the male he heard. He found no one, but saw the rear bedroom window was open. Defendant admitted he fled out of the window when the officers arrived. Police ultimately seized a loaded .45 caliber revolver, as well as cell phones, Rosa's license, the vehicle registration for the stolen Mercedes, and Thelemaque's vehicle registration and insurance card.
Defendant was arrested on July 9, 2004. He gave police two statements, which we have already referenced.
Defendant was indicted, along with Jones and Josey, in a twenty-seven count indictment charging defendant with one count of first degree murder, N.J.S.A. 2C:11-3a(1)-3(a)(2), count four; one count of first degree felony murder, N.J.S.A. 2C:11-3a(3), count five; four counts of first degree robbery, N.J.S.A. 2C:15-1, counts two, eight, ten, and twelve; five counts of first degree carjacking, N.J.S.A. 2C:15-2, counts three, fourteen, sixteen, eighteen, and twenty; one count of second degree conspiracy N.J.S.A. 2C:5-2, 2C:15-1, -2, count one; nine counts of second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, counts seven, nine, eleven, thirteen, fifteen, seventeen, nineteen, twenty-one, and twenty-three; one count of second degree aggravated assault, N.J.S.A. 2C:12-1b(1), count twenty-two; two counts of third degree possession of a handgun, N.J.S.A. 2C:39-5b, one pertaining to possession on July 3, 2004, count six, and the other charging possession on July 7, 2004, count twenty-four.
B.
Additional evidence about the seizure of the gun was presented in a pre-trial suppression hearing. Lt. Melody testified that defendant's mother stated her son might be found at the apartment of his girlfriend, Wyjeeah Cooper on South Tenth Street. The police then considered him a suspect in the homicide.
Lt. Melody and Detectives Wright and Lally proceeded to the South Tenth Street apartment on July 7, 2004, at about 8:35 a.m., "to ascertain some information . . . and to . . . talk to Ms. . . . Cooper to see if she knew the whereabouts of Sanders or whether or not Sanders was, in fact, in that residence with his girlfriend." Lt. Melody testified he observed a black Lexus that police later learned was registered to Thelemaque. As Lt. Melody and Det. Wright approached the front door, Det. Lally remained outside, near the rear of the building, "just in case our suspect, Mr. Sanders, was inside and attempted to flee the location."
Lt. Melody testified he heard noise within, one male, and two female voices. "We knocked numerous times, we were announcing ourselves as police[.]" He heard the male talking and continued to hear movement within the apartment. He knocked "a little harder" and "command[ed]," "[O]pen up the door, this is the police." Then, a woman opened the door. Lt. Melody admitted he was "forcefully calling — asking those people within to open up that door[.]" He acknowledged that in his report, he wrote that he "demand[ed] they open the door."
The police officers said they were from the homicide squad and were looking for Jermaine Sanders, and she allowed the officers inside. Lt. Melody did not have his gun drawn, but could not recall if his partner did. A second woman, Cooper, told the officers defendant was her boyfriend and had just left.
Although the transcript is not clear, Lt. Melody apparently testified that the police intended to detain defendant if he were found. When the trial judge asked why he was looking for defendant, Lt. Melody said, "Basically for the questioning, he was [a] suspect in that homicide . . . and we were basically trying to ascertain [sic] him for questioning at that also." (emphasis added). Whether a transcription error, or a misstatement, it appears the witness intended to say "to detain him for questioning."
Lt. Melody testified that he then conducted a search, to determine whether the male speaker he had heard remained in the apartment, particularly based on information he might have been armed. After looking in closets and under beds, he found no one else in the apartment.
After Lt. Melody finished his sweep of the apartment, Det. Lally entered and reported he saw a man exit the apartment by the rear window. He tried, but failed to apprehend him.
Cooper told the officers defendant had spent the previous night with her in the rear bedroom. Lt. Melody testified he stated, "I'm going to go back and take a look," and Cooper responded, "Go 'head." Lt. Melody testified,
I went to the rear bedroom, and at that point I saw the window was opened. It appeared that there were miscellaneous items that were in disarray on the floor, which to me indicated that, you know, someone was trying to flee that location.
As I looked closer, I observed a black handgun, a .45 caliber I believe, from underneath the bed in plain view.
Lt. Melody explained that he did not see the gun under the bed during his initial search because his "first focus was to see if the body was there. . . . I looked real quick, I didn't see the body, and I just wanted to make sure that our safety was secure at that point[.]"
The additional items included four cell phones, vehicle registrations, insurance cards, and perhaps a drivers license. Those items were seized after crime scene unit personnel responded. After those items were seized, Cooper signed a consent to search, but police seized no additional items thereafter.
Lt. Melody was the sole witness before the parties submitted post-hearing briefs. However, the court thereafter asked the State to re-open its presentation, because factual allegations in the State's brief were not supported by hearing testimony. The State then presented Det. Smith and recalled Lt. Melody.
Those briefs are not part of the record before us.
Det. Smith testified that based on information received through the CDW, police were dispatched to locations called most frequently with the cell phones stolen in the several carjackings. Lt. Melody, and Dets. Wright and Lally were sent to the Elizabeth Avenue residence of Debra Sanders, defendant's mother. A description of defendant obtained from Debra Sanders matched the description of a participant in the crimes the police officers had developed from their investigation. Debra Sanders' statement that her son's name was Jermaine was also significant, because a witness had told police that Jones and someone he knew as Tramaine had pulled up on him, exited their vehicle, and then recognized the witness and decided not to rob him. Det. Smith also testified that when police went to Cooper's address, police found Thelemaque's Lexus parked in front.
Upon being recalled, Lt. Melody testified in greater detail about his interactions with Debra Sanders. He testified he did not know who resided at the Elizabeth Avenue address before he arrived; and Jermaine Sanders was not then a suspect. Rather, police were looking for someone named Tramaine. Lt. Melody testified that once they interviewed Debra Sanders, they traveled directly to Cooper's home, which took them five to seven minutes.
Lt. Melody testified that when they arrived, Det. Wright pointed out that a Lexus fitting the description of one of the carjacked vehicles was parked in front. Police eventually confirmed the license plate matched after they searched the apartment. Defense counsel elicited that Lt. Melody did not mention the presence of the Lexus in his report.
The trial judge denied the suppression motion in an oral decision in January 2007. He credited the officers' testimony that officers were led to Debra Sanders' residence as a result of CDW information; they went to Cooper's apartment suspecting that Jermaine Sanders was the Tramaine identified by a witness; and they saw the carjacked Lexus in front when they entered. The court found there was probable cause to enter the apartment. There was no "forcible entry." "[T]hey did not break down the door . . . they were let in." He stated that when police learned someone had exited by the window, "it was not unreasonable for law enforcement to go to the room where this actually took place[.]" He then concluded the items seized were in plain view.
The judge stated, "There is no testimony from [which] I can conclude that the items that were seized were not in plain view." Although this statement might be read to place the burden on defendant to disprove an exception to the warrant requirement, the court clearly found the State had met its burden to prove the items were in plain view, finding that Lt. Melody "saw in plain sight at that point the items that are the subject of this motion to suppress."
In June 2008, defense counsel supplemented the record of the suppression hearing with a police report. It was a continuation report of Det. Murad Muhammad stating that on July 3, 2004, the Lexus was impounded from in front of Cooper's address, which would counter prior testimony that the Lexus was present when the police entered. Although no formal motion for reconsideration was apparently made, the trial judge stated he would not revisit his ruling, as police reports are subject to error, he was persuaded by the sworn testimony, and the report's contents were not subject to direct or cross-examination.
The report is not included in the record before us, nor did counsel assert at the June 8 colloquy that the report was unavailable to defense counsel at the time of the hearing. During the trial, a police witness testified that Thelemaque's Lexus was towed from Cooper's address on July 4. As the court did not reopen the hearing to allow counsel to confront Lt. Melody with the evidence that the vehicle was removed July 4, it is unclear whether Lt. Melody's apparent misrecollection resulted from being told that the stolen vehicle had been recovered at the address three days earlier. Whether on July 7 or July 4, the presence of the stolen Lexus in front of Cooper's apartment, if known, was powerful circumstantial evidence of defendant's involvement.
C.
Defendant also moved to exclude his custodial statements. Defendant signed one statement at around 9:45 p.m. on July 9 in which he: identified Josey and Jones; confessed to his participation in the shooting of Marquise Carter, Jr.; described Josey's and Jones's participation; stated he obtained the Acura in an earlier carjacking of Okoraogu-Loren at Elizabeth Avenue and Meeker; and stated that he brought the gun used in the homicide to his girlfriend's apartment, from which he fled through the window when police arrived. In a second written statement signed at around 11:46 p.m., defendant admitted: he was present when Josey shot DeSousa; he participated in the Rosa carjacking; he discussed again his role in the Okoraogu-Loren carjacking and admitted he took a cell phone; and admitted he participated in carjacking Thelemaque's Lexus. At 11:55 p.m., in an addendum to the second statement, defendant admitted he participated in the carjacking of Wallace-Wilson's Mercedes at Chadwick Avenue and West Runyon.
At the hearing to exclude defendant's custodial statements, the court heard testimony from four Newark police officers including Marquise Carter, Sr., the father of the homicide victim, as well as defendant and Rasheed Simmons. Defendant testified he, Simmons, and another man were awakened at a friend's house on July 9, by at least eight police officers. Simmons said their guns were drawn. Defendant said once he identified himself, Det. Lally punched him in the left side of his face.
Defendant claimed that once he was taken to the police station, he was punched in the face by another detective, leaving a mark under his eye. Defendant asserted he was taken to an interrogation room where Det. Carter referred to previously attending his son's funeral and stated defendant was "going to tell him something." When defendant declined, another detective motioned for Det. Carter to leave the room, and proceeded to punch defendant twice in the face. Defendant claimed he was questioned before his Miranda rights were read. At 3:45 p.m., he signed the Miranda form because he had been tortured, beaten repeatedly, and was petrified. He testified he was in pain and had blood running from his mouth and eye. Defendant claimed Det. Muhammad squeezed defendant's throat, near a spot sensitive because a bullet was lodged there, when defendant did not give answers the police sought.
Defendant claimed that the detectives brought Jones into the room, to attempt to obtain statements implicating Josey. Jones already had bruises on his face and blood on his shirt. When Jones refused, Det. Muhammad allegedly punched him. Jones testified defendant's face was bloody and looked beaten, when Jones saw him.
Defendant's formal statement began at 7:45 p.m. and ended at 9:45 p.m. Defendant signed the typed copy. He acknowledged he gave some of the answers, but claimed he signed it without reading it because he was fearful, and "willing to do anything at that point." Defendant claimed he signed a second waiver of rights form at 10:40 p.m. without reading it, or having it read to him, because he feared for his life.
Police witnesses generally contradicted defendant's version. However, the trial judge observed no state witnesses addressed the circumstances of defendant's arrest. Det. Carter testified that he was not present at the police statement the day of his son's funeral and denied seeing defendant. Det. Smith testified he saw defendant after he was in custody. Det. Smith recalled that he either read the Miranda rights to defendant, or defendant read them aloud himself. Det. Muhammad testified that Smith read defendant his Miranda rights, defendant read them aloud, and signed the waiver of rights form. Det. Smith witnessed it at 3:51 p.m. Defendant did not express an unwillingness to talk, nor did he request a lawyer.
Dets. Smith and Muhammad testified that between the time the first waiver was signed, and the formal statement about four hours later, they coordinated information and conducted a pre-interview of defendant. Defendant refused to consent to having his statement recorded, signing a statement to that effect at 7:40 p.m. Det. Smith denied defendant's claim that officers squeezed his neck, threatened him, or used physical force against him. Det. Smith asserted defendant had a mark under his left eye when he first saw him at the police station. Det. Lassiter testified that he took defendant's second statement and the addendum, and testified defendant did not appear to be in distress, did not request medical attention, and waived his right to remain silent after reading the waiver form aloud.
The trial judge denied defendant's Miranda motion in an October 2006 written opinion. He found the testimony of police witnesses to be credible. He found defendant's testimony not credible. The court noted that medical records did not substantiate defendant's allegation that he was punched in the face numerous times, and was bleeding from the mouth and eye. The court particularly found Det. Carter's testimony credible.
The court also denied a motion by Josey to exclude a voluntary statement he made upon his arrest "to the effect 'You got me Dog' and 'Did my shorty rat me out'." However, the court granted Jones's motion to bar a written statement obtained from him while in custody. Like defendant, Jones asserted he was coerced to give a statement by physical assault. The court noted a sharp dispute between Jones's and the police's version of what happened, Jones's "obvious injuries," the police's failure to corroborate their assertion that Jones sustained his injuries while resisting arrest, and "too many inconsistencies and contradictions" of the police officers' testimony. The court held the State failed to prove Jones's statement was voluntary beyond a reasonable doubt.
D.
Defendant was tried before a jury over fourteen days in June and July 2008. The jury found defendant guilty of all counts except it found him not guilty of carjacking Marquise Carter, Jr., and second-degree aggravated assault on Andrew DeSousa — causing or attempting to cause serious bodily injury — but found defendant guilty of lesser-included third-degree aggravated assault by causing bodily injury with a deadly weapon. The court denied defendant's motion for a new trial but granted a judgment notwithstanding the verdict on the charge of handgun possession on July 7, 2004 based on defendant's residence in the apartment.
The court found aggravating factor three, likelihood of reoffending, based on defendant's nineteen prior arrests, two prior indictable convictions, and the number of crimes committed in a short time period. The court found aggravating factor six, prior criminal record, noting both his prior adult criminal convictions, and his juvenile record; aggravating factor nine, need to deter; and aggravating factor thirteen, because a stolen car was used. The court found no mitigating factors.
The court sentenced defendant to the following prison terms: fifty years with thirty years of parole ineligibility for felony murder, count five; twenty years with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for armed robbery, count eight, consecutive to count five; thirty years with an eighty-five percent parole disqualifier pursuant to NERA for carjacking, count fourteen, consecutive to counts five and eight; five years for unlawful possession of a weapon, count six, concurrent with count five; twenty years with eighty-five percent parole disqualifiers pursuant to NERA for additional two armed robbery convictions, counts ten and twelve, concurrent with each other and with count eight; thirty years with eighty-five percent parole disqualifiers for additional two carjacking convictions, counts sixteen and eighteen, concurrent with each other and with count fourteen; and five years for third-degree aggravated assault, count twenty-two concurrent with count five. The conspiracy conviction, the armed robbery conviction in count two, and the nine counts of possession of a firearm for an unlawful purpose were all merged into other counts.
Defendant filed a notice of appeal on December 26, 2008. He raises the following points for our consideration:
POINT I
THE DEFENDANT'S FOURTH AMENDMENT RIGHTS WERE VIOLATED WHEN THE STATE WAS ALLOWED TO PRESENT IN EVIDENCE THE .45 CALIBER REVOLVER AND OTHER ITEMS SEIZED FROM THE BEDROOM IN A WARRANTLESS SEARCH MADE WITHOUT CONSENT.
A. THE SUPPRESSION HEARING.
B. THE LACK OF A "FORCIBLE ENTRY" DOES NOT EQUAL CONSENT TO ENTER THE APARTMENT.
C. EVEN IF THE OFFICERS HAD LEGALLY ENTERED THE APARTMENT, THE SECOND ENTRY INTO THE REAR BEDROOM CANNOT BE JUSTIFIED UNDER THE CONSENT, PROTECTIVE SWEEP, OR PLAIN VIEW THEORIES.
POINT II
THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED BY THE PROSECUTOR'S EXTENSIVE USE OF HEARSAY, INCLUDING STATEMENTS ABOUT THE VICTIM'S PRESENCE AT THE SCENE OF THE SHOOTING AND DEFENDANT'S CONNECTION TO THE APARTMENT WHERE THE .45 CALIBER REVOLVER WAS FOUND.
POINT III
THE TRIAL COURT ERRED IN FINDING THAT THE STATE HAD MET ITS BURDEN OF ESTABLISHING, BEYOND A REASONABLE DOUBT, THAT DEFENDANT'S STATEMENT WAS VOLUNTARY.
POINT IV
DEFENDANT'S SENTENCE FOR FELONY MURDER IS ILLEGAL. (Not Raised Below).
II.
A.
We turn first to defendant's argument the court erred in denying his motion to suppress the fruits of the warrantless search of Cooper's apartment. The State bears the burden to prove by a preponderance of the evidence the validity of a warrantless search, which is otherwise presumed invalid, by establishing one of the recognized exceptions to the warrant requirement. State v. Edmonds, 211 N.J. 117, 128 (2012); State v. Best, 201 N.J. 100, 107 (2010). A search of a home is entitled to special protection, because entry into a home is the "chief evil" the Fourth Amendment was intended to address. State v. Davila, 203 N.J. 97, 112 (2010) (citation omitted). Warrantless searches and seizures in the home are "'presumptively unreasonable.'" Ibid. (quoting Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639, 651 (1980)).
We defer to the trial court's factual findings on a motion to suppress, unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require appellate intervention. State v. Elders, 192 N.J. 224, 245 (2007). However, we exercise plenary review of a trial court's application of the law to the facts on a motion to suppress. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).
Defendant principally argues (1) the police's initial entry into Cooper's apartment was unlawful; and (2) even if the entry were lawful, no warrant exception justified Lt. Melody's return to the back bedroom after Det. Lally observed defendant flee. We consider the two arguments in turn.
Defendant asserts the police's initial entry into Cooper's home was unlawful because it was a non-consensual entry "to search for and arrest the suspect." The State responds, relying on State v. Padilla, 321 N.J. Super. 96 (App. Div.), certif. denied, 162 N.J. 198 (1999), that the police were permitted to enter the residence without a warrant to make reasonable inquiries because they had the occupants' permission. We are persuaded that the police's entry into the home was non-consensual. However, we conclude it was justified by exigent circumstances and probable cause to arrest defendant.
Our analysis is guided by well-established principles. Our courts have identified three forms of police encounters with the public. The most intrusive is an actual arrest or search, which must be supported by probable cause. See State v. Pineiro, 181 N.J. 13, 21 (2004). On the other hand, a field inquiry is the least intrusive. It occurs when a police officer approaches and asks a person to answer some questions. So long as the questions are not harassing, overbearing or accusatory, the police need not establish any level of suspicion or probable cause. See Elders, supra, 192 N.J. at 246; Pineiro, supra, 181 N.J. at 20. A police officer does not violate a citizen's right to be free from unreasonable searches and seizures by "merely approaching . . . [him] on the street . . ., by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen[.]" State v. Davis, 104 N.J. 490, 497 (1986) (quotation and citation omitted).
Likewise, a non-coercive attempt to question occupants at their front door requires no pre-requisite suspicion.
Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's 'castle' with the honest intent of asking questions of the occupant thereof — whether the questioner be a pollster, a salesman, or an officer of the law.
[Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964), overruled on other grounds, United States v. Perea-Rey, 680 F.3d 1179 (9th Cir. 2012).]
The middle form of encounter is an investigatory stop or detention, which is constitutional only "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." Elders, supra, 192 N.J. at 247 (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002)). When a police officer encounters a citizen who is walking or traveling, and a reasonable person under the circumstances would believe he or she was not "free to leave," a seizure occurs, triggering the "reasonable and articulable suspicion" requirement. See, e.g., State v. Stovall, 170 N.J. 346, 355 (2002).
However, when the person is already stopped in a confined space from which the person would not want to leave regardless of the police encounter, such as on a bus about to depart, "the appropriate inquiry is whether a reasonable person would feel free to decline the officers' request or otherwise terminate the encounter." Florida v. Bostick, 501 U.S. 429, 436, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d 389, 400 (1991). This is also the appropriate inquiry when determining whether a police officer's request to interview a person at the door of his or her place of abode has escalated to a detention. See, e.g., United States v. Jerez, 108 F.3d 684, 689-90 (7th Cir. 1997) (applying Bostick inquiry to police encounter at motel room door); Scott v. State, 67 S.W.3d 567, 574 (Ark. 2002) (applying Bostick inquiry to police effort to question defendant at his residence); Scott v. State, 782 A.2d 862, 869-73 (Md. 2001) (applying Bostick inquiry to police knock on house door and request to talk to occupants).
In Padilla, supra, we found reasonable a police officer's knock on a door, and non-coercive request for permission to speak to the occupant within. "As part of the investigation the officers had the right to knock on the door and identify themselves for the purpose of continuing their investigation and making reasonable inquiries. Moreover, we see nothing unreasonable about their request for permission to enter the room[.]" 321 N.J. Super. at 107-08. We concluded the teenager who opened the door validly consented to the officers' entry. Id. at 108; see also State v. Brown, 205 N.J. 133, 146 (2011) (stating that police do not need a warrant to approach defendant's girlfriend's apartment building and knock on the door).
Our conclusion in Padilla was consistent with authority in other jurisdictions holding that the police's non-coercive "knock and talk" procedure does not rise to a seizure. See, e.g., United States v. Adeyeye, 359 F.3d 457 (7th Cir. 2004) (stating that no seizure occurred where police knocked twice, stated they could return later if it was an inconvenient time, and motel occupant allowed officers to enter); United States v. Cormier, 220 F.3d 1103, 1110 (9th Cir. 2000) (finding no seizure where police officer in plain clothes knocked on door only "briefly," never announced she was a police officer, did not display weapon, never demanded defendant to open the door, was not "unreasonably persistent," and "never spoke . . . in an authoritative tone or led [defendant] to believe that he had no choice other than to answer her questions"); Scott, supra, 67 S.W.3d at 576 (stating no reasonable suspicion required where police approached residence, requested assistance, and did not indicate resident was obligated to cooperate); Scott, supra, 782 A.2d at 872 (stating no seizure, notwithstanding late hour, where "[t]here was a knock - perhaps a loud knock, but not a sustained or persistent one," occupants were awake, and police "merely asked, not demanded" that occupants open the motel room door to talk to them).
However, when the police act in such a way that a reasonable person in the occupant's position would not feel free to "decline the officers' request or otherwise terminate the encounter," then a seizure occurs and the police must show at least a reasonable and articulable suspicion of a crime. See 4 Wayne R. LaFave, Search & Seizure § 9.4(c) (4th ed. 2004) (reviewing cases involving "knock and talk" encounters and factors determining whether they rise to level of seizure). Consequently, in Jerez, supra, 108 F.3d at 695-96, the Court of Appeals determined the police unlawfully seized the occupants of a motel room, when the officers, without reasonable and articulable suspicion of a crime, compelled the occupants to open the door.
The court deemed there to be a seizure, as opposed to a consensual encounter, based on the totality of the circumstances. Id. at 693-94. The police knocked on the door "in the middle of the night[.]" Id. at 690. The officers both requested and commanded the occupants to open the door. Id. at 692. The knocking persisted despite the occupant's lack of response. Two officers knocked on the door for three minutes; then an officer knocked on the exterior window for one-and-a-half to two minutes, and did so loudly enough to be heard in the interior hallway. Id. at 692. The police shined flashlights through an opening in the drapes. Ibid.
Simply stated, this is a case in which the law enforcement officers refused to take "no" for an answer. . . . When Mr. Solis finally opened the door to his motel room in his underwear, he was submitting to the deputies' show of authority. We hold that the totality of the circumstances surrounding this encounter . . . makes clear that a seizure took place. The record simply will not support the conclusion that a reasonable person in the position of Mr. Jerez and Mr. Solis would have felt free toSee also United States v. Barker, 437 F.3d 787, 790 (8th Cir. 2006) (analyzing, as an investigatory stop, police encounter with occupant of motel room, where police telephoned room, no one answered, and police remained outside the door for three to ten minutes, with their guns drawn, until occupant exited); United States v. Beaudoin, 362 F.3d 60, 67-69 (1st Cir. 2004), cert. denied, 543 U.S. 979, 125 S. Ct. 484, 160 L. Ed. 2d 357 (2004) (applying Terry analysis to police command to motel room occupant to exit once he opened door and police had reasonable concern for their safety); United States v. Conner, 127 F.3d 663, 666 n. 2 (8th Cir. 1997) (finding police entry was non-consensual where four police officers near door knocked "longer and more vigorously than would an ordinary member of the public," the knocking was so loud it woke a nearby guest, occupants did not open the door for several minutes, and then "[o]nly after two of the officers had identified themselves as police and demanded 'open up'"); United States v. Edmondson, 791 F.2d 1512, 1515 (11th Cir. 1986) (stating defendant did not act consensually when FBI agents drew weapons, surrounded front of apartment, knocked on door, and after defendant looked out window, an agent yelled, "FBI. Open the door"); Keenom v. State, 80 S.W.3d 743, 747-48 (Ark. 2002) (finding a seizure where police encountered defendant outside his home, and police refused defendant's request that they leave and come back ten minutes later, refused to allow defendant to retrieve clothing from house, and questioned him in the glare of patrol light headlights).
ignore the deputies and to continue about their business.
[Id. at 692-93.]
Applying these principles, we are constrained to conclude the police seized Cooper and the other woman when they compelled them to open the door to the apartment. As defendant correctly observes, the trial judge did not specifically address whether a detention had occurred in the course of the police entry. Neither his finding that there was no forcible entry, which was predicated in part on the fact the police did not knock down the door, nor his additional finding that the officers "were let in" by occupants, address the issue whether reasonable people in the occupants' position would have felt free to deny the officers entry.
We consider the totality of circumstances in reaching our conclusion. Although the hour was not late, the occupants initially ignored the knocks on the door. The officers knew people were awake and inside the apartment. But, the police persisted, knocking more loudly and in various ways forcefully commanding or demanding, in the name of the police, that the occupants open the door. This was not a mere request to converse. Although Lt. Melody said he did not draw his gun, he could not recall if Det. Wright did. The facts are therefore distinguishable from those in Padilla, supra, where police non-threateningly requested the opportunity to question defendant.
We also find inapposite other authority relied upon by the State. For example, in State v. Cleveland, 371 N.J. Super. 286, 300-01 (App. Div.), certif. denied, 182 N.J. 148 (2004), the door to the motel room was already open. In State v. Pineiro, 369 N.J. Super. 65, 73 (App. Div.), certif. denied, 181 N.J. 285 (2004), a case involving theft of computers at defendant's workplace, police were voluntarily admitted into an apartment where they rang the doorbell, and stated they had come to defendant's house because of a problem at work. Likewise, in State v. Bogan, 200 N.J. 61, 78 (2009), police rang a doorbell at an apartment building where a fourteen-year-old girl had claimed to have been sexually molested that morning. In response, a boy who looked about twelve years old came to the downstairs door, opened it, and the officers accompanied the boy up the stairs to the door of his apartment. The police did not command entry, nor did they rush inside. They questioned the boy at the threshold and when the phone rang inside, and the boy explained it was his father, an officer asked if he could speak to him, the boy agreed, and the officer then entered the apartment to speak on the phone. There was no evidence in any of the three cases cited by the State of the kind of compulsion exerted in this case.
Had the police remained at the threshold of the apartment to conduct their inquiry — even though it constituted a seizure — it could have been sustained on the basis of their reasonable and articulable suspicion that a criminal or evidence of a crime could be found. However, the police entered the apartment.
Entry is significantly different from inquiries at the threshold. It implicates the fundamental right to privacy in one's own home, and requires a different level of analysis. Referring not to arrests, but to seizures, the Supreme Court has declared, "In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton, supra, 445 U.S. at 590, 100 S. Ct. at 1382, 63 L. Ed. 2d at 653; see also LaFave, supra, § 6.1(e) (discussing distinction between arrests within and at threshold of home).
The Supreme Court in Payton held that absent exigent circumstances, police may not enter a home, without the occupant's consent, to make a routine felony arrest. As one Court of Appeals reasoned, Payton applies to "all warrantless seizures[.]" United States v. Reeves, 524 F.3d 1161, 1167 (10th Cir. 2008). The court explained:
If we were to hold otherwise, it would allow a seizure in the home when only reasonable suspicion exists, yet prohibit a seizure in the home when an officer has probable cause to arrest, but no exigent circumstances. It cannot be the case that Payton's "firm line at the entrance to the house" offers less protection to individuals for whom probable cause to arrest does not exist.
[Ibid. (citation omitted).]
We do not address the issue of a "constructive entry" to the home, by which police compel an occupant outside the home, which divided the majority and concurring opinion, in Reeves.
Thus, the police's warrantless entry into the home cannot be justified as a consensual entry as the State asserts, nor even as an investigative detention supported by reasonable and articulable suspicion. It can only be justified by probable cause and exigent circumstances. However, we conclude the facts support such a justification.
Probable cause for an arrest exists if there is "probable cause to believe that a crime has been committed and that the person sought to be arrested committed the offense." State v. Chippero, 201 N.J. 14, 28 (2009) (quotation and citation omitted). "Although it is difficult to define the concept with precision, probable cause requires 'more than a mere suspicion of guilt' but less evidence than is needed to convict at trial." Brown, supra, 205 N.J. at 144 (2011) (citations omitted) (quoting State v. Basil, 202 N.J. 570, 585 (2010)).
The court must consider the totality of the circumstances. Basil, supra, 202 N.J. at 585. "Although several factors considered in isolation may not be enough, cumulatively these pieces of information may 'become sufficient to demonstrate probable cause.'" State v. Moore, 181 N.J. 40, 46 (2004) (quoting State v. Zutic, 155 N.J. 103, 113 (1998)). The court must consider "the witness's veracity, reliability and basis of knowledge." Basil, supra, 202 N.J. at 585-86. A concerned citizen's statement is entitled to greater weight than that of an anonymous source, id. at 586, or an informant who seeks some favorable treatment in return. State v. Kurland, 130 N.J. Super. 110, 114 (App. Div. 1974) (distinguishing between "police informer" and ordinary citizen who "does not expect any gain or concession in exchange for his information").
The trial court held, "I am well satisfied that the officers involved had probable cause[.]" We understand him to mean probable cause to arrest defendant. The court cited: the communications data warrant, which connected a cell phone stolen in the carjackings with phone calls to defendant's mother's house; the statement by defendant's mother, which connected defendant physically to the person involved in the crime, and connected defendant by name, given the similarity between Tramaine and Jermaine; and the presence of the black Lexus parked in front of Cooper's apartment.
We discern no error in the judge's determination, which was supported by the evidence. In addition to the facts the court identified, we note the physical description and the name Tramaine were supplied by a concerned citizen who was almost victimized by defendant and had prior knowledge of him. At the very least, the police had probable cause to arrest defendant for receiving stolen property, as there was a basis for more than mere suspicion that he possessed one of the cell phones and one of the vehicles stolen in the carjackings.
Defendant's argument that the police were there only to question defendant is belied by the record. Lt. Melody apparently stated he intended to detain defendant for questioning. Det. Lally was sent to the back of the building to capture defendant if he attempted to leave. Lt. Melody stated he was looking for defendant upon entry. That he did not disclose to Cooper his intention to arrest does not disprove that was his intention.
Absent a warrant, probable cause must also be accompanied by exigent circumstances to justify a lawful search or seizure. Steagald v. United States, 451 U.S. 204, 216, 101 S. Ct. 1642, 1649-50, 68 L. Ed. 2d 38, 48 (1981) (stating police need both arrest warrant and search warrant to arrest suspect in third party's home, absent exigent circumstances); Payton, supra, 445 U.S. at 590, 100 S. Ct. at 1382, 63 L. Ed. 2d at 653 (stating absent exigent circumstances, arrest warrant needed to arrest defendant in his own home). Like "probable cause," "exigent circumstances" is not susceptible to precise definition. State v. Cassidy, 179 N.J. 150, 160 (2004).
According to defendant's statement, he resided at Cooper's apartment. Thus, police did not enter a third-party's home.
--------
"[C]ircumstances have been found to be exigent when they 'preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both.'" Ibid. (citation omitted). Courts must employ a "fact-sensitive and objective analysis[.]" Ibid. Pertinent factors may include:
the degree of urgency and the amount of time necessary to obtain a warrant; the reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene; the severity or seriousness of the offense involved; the possibility that a suspect was armed or dangerous; and the strength or weakness of the underlying probable cause determination.Other factors include: whether police have "information indicating the possessors of the contraband are aware that the police are on their trail"; "the possibility that the suspect is armed"; "the time of the entry"; and whether the "physical character of the premises is conducive to effective surveillance . . . while a warrant is procured." State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div. 1990). The exigent circumstances exception does not justify a search outside the scope of the exigency. See State v. Frankel, 179 N.J. 586, 599 (2004), overruled on other grounds, Edmonds, supra, 211 N.J. at 131.
[State v. DeLuca, 168 N.J. 626, 632-33 (2001).]
We are persuaded that exigent circumstances were present. The probable cause to arrest defendant arose while the police were in the field, after they interviewed Debra Sanders. "[W]hen the occasion for arrest arises while the police are already out in the field investigating the prior or ongoing conduct which is the basis for the arrest, there should be a far greater reluctance to fault the police for not having an arrest warrant." LaFave, supra, § 6.1(f). There was an obvious risk that Debra Sanders would alert her son that the police investigation was focused on him and she had directed the police to Cooper's apartment. A delay in seeking a warrant would have given defendant an opportunity to flee, and remove potential evidence.
The multiple crimes involved were extremely serious. There was a strong possibility that defendant would be armed and dangerous, since the offenses involved armed robbery, carjacking and murder, and victims reported seeing multiple firearms used in the commission of the crimes. The circumstantial evidence tying defendant to the crimes was also strong. Defendant's apparent possession of one of the stolen cell phones, his almost-common name with the person the witness identified, his physical similarity to the description received, and the presence of the Lexus outside the apartment, all created a reasonable sense of urgency. Moreover, notwithstanding the police's effort to secure the building by posting Det. Lally at the rear of the building, defendant's successful flight demonstrated the difficulty in successfully securing the scene pending obtaining a warrant. We therefore conclude the police were authorized, without a warrant, to compel Cooper to allow them to enter her apartment so they could attempt to arrest defendant.
Defendant argues that even if the police entry into the apartment were lawful, Lt. Melody's second entry into the rear bedroom, where he saw the revolver and other items in plain view, violated defendant's constitutional rights. Defendant does not challenge Lt. Melody's authority to conduct an initial protective sweep of the apartment, to ascertain if a male whose voice he heard was hiding in the apartment. See, e.g., Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990) (authorizing "protective sweep" exception for Fourth Amendment warrant requirement). Nor does he challenge the applicability of the plain view doctrine to the seizure of the revolver and other items, if Lt. Melody were lawfully in the viewing area. See State v. Johnson, 171 N.J. 192, 206-07 (2002) (stating that plain view exception applies when officer is "lawfully . . . in the viewing area," discovers the evidence inadvertently, and it is immediately apparent the object viewed is "evidence of a crime, contraband or otherwise subject to seizure"). However, defendant argues, Lt. Melody was not lawfully in the bedroom. He asserts once Lt. Melody initially assured himself that he faced no threat from a hidden person, no exception to the warrant requirement permitted him to return to the back bedroom, even after Det. Lally reported seeing someone flee through the bedroom window. We disagree.
Exigent circumstances — grounded in concerns for officer safety and preservation of evidence — also justified Lt. Melody's return to the bedroom. Defendant's flight through the bedroom window was further evidence that defendant was involved in the carjackings, homicide and related crimes. See State v. Citarella, 154 N.J. 272, 281 (1998) (stating that flight may add weight to factors supporting seizure). Police reasonably perceived defendant as a potentially dangerous and armed person.
Although defendant argues there were no possible safety threats because defendant had left the apartment, police had no assurance defendant would not return. "Exigent circumstances have . . . been found to exist where 'the events leading up to the search were spontaneous and unforeseeable, and posed a potential threat to officer safety.'" State v. Laboo, 396 N.J. Super. 97, 103 (App. Div. 2007) (quoting State v. Cooke, 163 N.J. 657, 668 (2000)). We held in Laboo, supra, 396 N.J. Super. at 107 that police officers were authorized, under the exigency exception, to enter an apartment to avoid an ambush, noting the risks attendant in remaining in an enclosed space in an apartment building. In the analogous context of automobile searches, we have recognized that the potential interference from confederates can create an exigency that justifies dispensing with a warrant. See State v. Pena-Flores, 198 N.J. 6, 29 (2009).
A comparable safety threat is presented by the risk of the return of the suspect himself. Although Cooper said Sanders had left, police could not be certain that the man who fled by the window was Sanders, or the only man in the apartment. While Lt. Melody saw no one in his first sweep, he may have overlooked a hiding spot. The flight of one person certainly justified another look in the bedroom to ascertain whether anyone else remained. Protective sweeps have been held authorized, even after a suspect is placed in custody, where there is a reasonable fear that others may be present. LaFave, supra, § 6.4(c) (citing cases allowing post-arrest protective sweep for other dangerous persons). Certainly, then, a protective sweep may be reasonable when the suspect remains at large.
In United States v. Tisdale, 921 F.2d 1095 (10th Cir. 1990), cert. denied, 502 U.S. 986, 112 S. Ct. 596, 116 L. Ed. 2d 619 (1991), the Court of Appeals approved a protective sweep of a trailer after a target of a parole violator's warrant with a history of firearm violations escaped through a window and gunshots were heard.
Defendant contends that no reasonable person could perceive danger after watching him flee in his underwear, chased by sheriff deputies. Contrary to defendant's assertion, however, the danger which justifies a protective sweep comes from the possible presence of other armed and dangerous persons in the vicinity.
. . . .
The fact that defendant fled, along with the sounds of gunshots, was ample justification for a protective sweep. Given defendant's actions and background it was not unreasonable for [the officer] to believe that other dangerous people might be present or that defendant would return.
[Id. at 1097 (latter emphasis added).]
Entry into the backroom was also justified by the need to secure the scene and assure the preservation of evidence until a warrant, or valid consent were obtained to conduct a thorough search. See State v. Speid, 255 N.J. Super. 398, 403 (Law Div. 1992) ("The police may, with probable cause, enter a home to secure it while a search warrant is obtained.").
In sum, we conclude the police were authorized to gain non-consensual entry to Cooper's apartment without a warrant, and were subsequently authorized to enter the rear bedroom after defendant's flight, where the police seized the revolver and other items in plain view.
B.
We turn briefly to defendant's remaining challenges to his conviction, considering first his argument the court erred in admitting his custodial statements.
Our review of a trial judge's ruling on a police-obtained confession, must be "'searching and critical.'" State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (quoting State v. Pickles, 46 N.J. 542, 577 ( 1966)), certif. denied, 178 N.J. 35 (2003). In conducting that review, however, we do not independently assess the evidence, State v. Locurto, 157 N.J. 463, 472 (1999), nor do we reach our own conclusions about witness credibility. State v. Barone, 147 N.J. 599, 615 (1997).
The State was required to prove beyond a reasonable doubt that defendant made his statement voluntarily. State v. Galloway, 133 N.J. 631, 654 (1993). Testifying on his own behalf, defendant claimed he was physically coerced into making his statements. The State's witnesses asserted no physical compulsion was brought to bear.
The trial judge, who was able to assess defendant's demeanor and that of the other witnesses, credited the police officers. Although he concluded the State could not meet its burden regarding co-defendant Jones's custodial statement in view of inconsistencies and other facts, the judge was persuaded the State met its burden in defendant's case. Mindful of our standard of review, we find sufficient credible evidence to support the court's determination.
Defendant also argues that the court erred in allowing various hearsay statements into evidence. We review a trial court's evidentiary decisions for an abuse of discretion, State v. Burns, 192 N.J. 312, 332 (2007), and extend "substantial deference" to the trial court. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We have carefully reviewed the alleged errors and conclude that the court did err in allowing police witnesses to present certain out-of-court statements, for the truth of the matters asserted, without satisfying a hearsay exception, or allowing cross-examination of the declarant. See N.J.R.E. 801(c) (defining hearsay as an out-of-court "statement . . . offered in evidence to prove the truth of the asserted"); Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004) (admission against accused of testimonial hearsay statements of unavailable witness without right of cross-examination violates constitutional right of confrontation). However, these errors provide insufficient basis to reverse defendant's conviction.
The State presented testimony that Okoraogu-Loren's cell phone records obtained through the CDW included phone numbers he did not recognize. Det. Smith testified that one of the unrecognized numbers was Debra Sanders' phone number, which led police to interview her at her home. Defense counsel's objection was well-founded. Although the State argues the testimony was elicited simply to show why police went to Debra Sanders' home, it is evident the State used the records for the truth of the matter asserted — that Okoraogu-Loren's stolen phone was used to call the number associated with Debra Sanders.
Likewise, hearsay statements of Debra Sanders were admitted into evidence in error. Defendant did not object when Lt. Melody testified that he ascertained defendant was not present at his mother's home, and learned he could be located at Cooper's address. However, defense counsel properly objected to Lt. Melody's testimony, "We met at the door by Ms. Debra Sanders. We identified ourselves as police officers. At that point . . . we interviewed Ms. Sanders and it was ascertained that she had a son Jermaine who would call her at that residence."
The import of that testimony was that Ms. Sanders said, in an out-of-court statement, that her son called her there. The State did not seek simply to prove the officer's state of mind, to establish the reason he ultimately went to Cooper's apartment. Cf. State v. Bankston, 63 N.J. 263, 268-69 (1973) (stating it does not violate the hearsay rule for officer to explain that "upon information received" he went to crime scene). The State also implied that Ms. Sanders said defendant was her son and called her. See State v. Roach, 146 N.J. 208, 225 (1996) ("[I]t is the 'creation of the inference, not the specificity of the statements made,' that determines whether the hearsay rule was violated") (quoting State v. Irving, 114 N.J. 427, 447 (1989)). Simply stating "it was ascertained" does not avoid the hearsay, given the clear implication that Ms. Sanders was the sole source of the information that the jury was asked to accept as true.
Defendant also argues the court should not have permitted Lt. Melody to explain, on redirect, why police did not conduct a DNA or fingerprint analysis of the rear bedroom. Defense counsel's question dovetailed with a defense theme that the State's investigation was lax, driven by emotion related to the killing of a fellow officer's son, and lacked forensic evidence tying defendant to the crimes, such as fingerprints or hair evidence in the vehicles involved. However, defense counsel opened the door to the State's response. See State v. Branch, 182 N.J. 338, 352 (2005) (stating that if "the defendant . . . opens the door by flagrantly and falsely suggesting that a police officer acted arbitrarily or with ill motive" then "the officer might be permitted to dispel that false impression, despite the invited prejudice the defendant would suffer"). Once the defense suggested that police were arbitrary, or lax in failing to conduct a forensic analysis in the apartment, the witness was permitted to respond, "I didn't feel it was a mystery at that point. We knew who went out that window. . . . Because we ascertained the identity of that person that was utilized in that room that day."
Although we agree the court erred in allowing certain hearsay statements, we conclude they do not warrant reversal. "[I]t is axiomatic that '[n]ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error . . .; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently.'" State v. Winter, 96 N.J. 640, 646 (1984) (quoting Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1620, 1627, 20 L. Ed. 2d 476, 484 (1968); see also State v. Hightower, 120 N.J. 378, 410 (1990) ("For a hearsay error to mandate reversal, '[t]he possibility [of an unjust verdict] 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.'") (quoting Bankston, supra, 63 N.J. at 273)). We are convinced the errors were not capable of leading to an unjust result, in light of the substantial evidence of defendant's guilt, including defendant's confession, Rossignol's photo identification, and the victims' physical description of the robber that generally matched defendant. R. 2:10-2.
Lastly, we are unpersuaded by defendant's argument, asserted in a pro se supplemental brief, that he is entitled to a new trial because the court did not deliver a Hampton charge. See State v. Hampton, 61 N.J. 250, 272 (1972); N.J.R.E. 104(c) (stating that if a court finds a defendant's out-of-court statement admissible, the jury "shall be instructed to disregard the statement if it finds that it is not credible"). The failure of a trial court to provide a Hampton charge is reversible error only when, "in the context of the entire case, the omission is 'clearly capable of producing an unjust result[.]'" State v. Jordan, 147 N.J. 409, 425 (1997) (quoting R. 2:10-2).
We perceive that not to be the case. First, defendant challenged in cross-examination and in summation the credibility of the officers who testified they took defendant's statement. The judge instructed the jury to weigh the credibility of the evidence. And, there was substantial evidence of defendant's guilt: the seizure in Cooper's apartment of the revolver matched the bullet used to kill Marquise Carter, Jr.; the seizure in the apartment of cell phones and documents that belonged to the victims of the robberies and carjackings; defendant fit victims' general description of one of the robbers; and one victim identified him from a photo array.
C.
Defendant argues the court erred in sentencing defendant on the felony murder, count five, to fifty years, with a thirty-year period of parole ineligibility, because NERA required imposition of a parole ineligibility term equal to eighty-five percent of the prison sentence. N.J.S.A. 2C:43-7.2b. The sentence was therefore illegal. See State v. Colon, 374 N.J. Super. 199, 203 (App. Div. 2005). Defendant argues the court must resentence defendant, but that double jeopardy principles bar the court from imposing a sentence that results in a parole ineligibility period longer than thirty years. The State agrees the court erred in omitting a NERA-based period of parole ineligibility, the sentence is illegal, and resentencing is required, but asserts the court is not barred from increasing the parole ineligibility term, citing State v. Kearns, 393 N.J. Super. 107, 113 (App. Div. 2007).
We detect a more fundamental problem with the sentence for felony murder. The court should have merged the felony murder conviction, count five, into the intentional murder conviction, count four, instead of the reverse. See State v. Brown, 138 N.J. 481, 561 (1994) (concluding that felony murder conviction must merge into conviction for purposeful and knowing murder). The court should have sentenced defendant for intentional murder, not felony murder. Since defendant has not completed his sentence, the court may correct the illegality and impose a sentence for purposeful and knowing murder subject to NERA. State v. Schubert, 212 N.J. 295, 309 (2012).
Affirmed, but remanded for resentencing.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION