Opinion
DOCKET NO. A-5186-14T2
01-23-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHA'QUILL AUSTIN a/k/a SHAQUILL J. AUSTIN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). Michael H. Robertson, Acting Somerset County Prosecutor, attorney for respondent (James L. McConnell, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Koblitz and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 13-04-00213 and 13-04-00214. Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). Michael H. Robertson, Acting Somerset County Prosecutor, attorney for respondent (James L. McConnell, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Sha'Quill Austin pled guilty to Indictment No. 13-04-00213, charging fourth-degree possession of dum-dum bullets, N.J.S.A. 2C:39-3(f), and fourth-degree illegal possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j). He also pled guilty to Indictment No. 13-04-00214, charging second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). Defendant received an aggregate sentence of seven years in prison with a five-year term of parole ineligibility. He appeals from his June 19, 2015 conviction, and in particular the denial of two pre-trial motions: a motion to suppress evidence obtained during a warrantless search and a motion to suppress his post-arrest oral statement. We affirm substantially for the reasons expressed by Judge Julie M. Marino in her oral and written opinions.
On March 21, 2013 at around 5:00 a.m., State Parole Officer Walkdek, Plainfield Detective Stanley and several other police officers from Plainfield and North Plainfield went to arrest defendant, who was on parole for a 2010 robbery. The arrest warrants from Plainfield were for aggravated assault with a deadly weapon; possession of a weapon for an unlawful purpose, unlawful possession of a firearm, and certain person not to have weapons; in addition, a parole warrant was active based on the Plainfield charges.
The State did not contend that defendant's right to privacy was diminished due to his status as a parolee. See Samson v. California, 547 U.S. 843, 857, 126 S. Ct. 2193, 2202, 165 L. Ed. 2d 250, 262 (2006) (holding "that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee" where parolees have given written consent as a condition of parole); State v. Maples, 346 N.J. Super. 408, 413-14 (App. Div. 2002) (permitting a parole officer to conduct a search of a parolee's residence when there is "reasonable suspicion" that evidence of a violation of the condition of parole will be found, and the officer had supervisor approval or exigent circumstances existed).
Defendant, a twenty-three-year-old member of the Crips street-gang, was wearing an ankle-monitor that verified his presence at the North Plainfield residence on this early morning. The police knocked on the door and were let into the residence. Several people were on the first floor. Using flashlights, the police fanned out inside the home to locate all the occupants, in what the police termed a "protective sweep."
Several officers went to the second floor, including Stanley, parole officer Waldek, and Plainfield Police Officer Goowacki. Waldek was familiar with defendant's house because he had been there on over a dozen occasions for parole supervision visits. He knew defendant slept in one of the three bedrooms on the second floor.
Upon reaching the second floor, Waldek opened a closed door, finding steps leading to a walk-up attic. He immediately noticed a machete on the steps, and then saw the butt of a gun higher up on the staircase.
Waldek "[p]roceded to [defendant's] room" where defendant had been sleeping and told him he was under arrest for a parole violation. Waldek testified that he "was one of the first" officers to arrive at defendant's bedroom.
Detective Stanley testified that defendant was arrested at the top of the stairs, which was consistent with defendant's statement when he was interviewed at the police station later that day.
Officer Goowacki testified that as part of the protective sweep, he went to a bedroom where he found another "male lying in bed." After making sure that the individual did not have any weapons under the covers, Goowacki "looked around the room . . . to . . . make sure nobody else was in there." He noticed a .45-caliber handgun on top of a two-drawer filing cabinet in an open closet.
While their testimony conflicted as to where defendant was arrested, both Stanley and Waldek agreed that after defendant was hand-cuffed, he was asked for consent to search his room and common areas of the house. In the presence of Stanley, Waldek gave defendant two different State Parole Board "Consent to Search" forms, which were read to him and signed in the two officers' presence. Waldek stated that he gave him two forms because "[o]ur agency, at the time, was going through an accreditation process, and I had two forms, and I didn't know which was the current application form." Waldek testified that he told defendant he was "going to jail regardless" of whether or not he signed the forms, both of which informed defendant of his right to refuse consent.
After defendant signed the two consent forms, the police officers found a pellet gun in defendant's bedroom closet, pellets, marijuana, and a glass pipe. Waldek testified that he was not sure when the .45-caliber handgun was found because he did not personally retrieve it, though his report indicated that it was during the "broader search" after the consent forms were signed.
After his arrest, defendant was transported to the Plainfield Police headquarters and was interviewed by Stanley and Detective Calvin. While Calvin was administering defendant's Miranda warnings during the recorded interview, he read the portion that stated "I'm willing to make a statement and answer your question." At that point, defendant stated "I'm not, I don't have no answers to no questions though." Calvin replied, "I'm sorry?" To which defendant again stated, "I don't have no answers to no questions." Calvin continued to administer the Miranda warnings, stating "Just, let me read it for you. I have, I have read that statements of my rights . . . ."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). --------
After defendant signed the Miranda warnings, he briefly answered questions regarding the incident which led to the aggravated assault charge. Defendant denied knowing the victim of the incident, and confirmed he was in a gang, but said he was no longer an active member. He also answered questions involving a robbery that took place at his residence that the police implied was motivation for the later assault. As the officers questioned defendant's whereabouts during the time of the assault, defendant asked: "Do I have to talk to ya'll?" Calvin stated he did not, to which defendant replied: "I don't wanna talk to you." The detectives concluded the interview.
Afterward, Stanley walked defendant from the first-floor interview area to the second-floor booking area of the station. During this walk defendant spoke to Stanley. No recording was made of the exchange. On direct, Stanley testified that defendant asked, "What's going to happen with those guns?" To which Stanley replied, "I really can't talk to you about it. You invoked your rights. You asked for a lawyer. So, I'll give you sometime [sic] to think about it. If you want to talk to me again I'll come back and check on you and we can talk then." On cross-examination, Stanley read from the report written after the incident. In it Stanley wrote that defendant stated, "I'll take that charge." To which, Stanley said "I don't know what you are talking about" and defendant replied "the shotgun. It was mine."
Three hours later, after interviewing others involved in the incident, Stanley approached defendant in his cell about his earlier comment. According to the detective, defendant said, "I want to talk to you about those guns." Stanley asked, "You still want to talk to me," and defendant said "yes."
Before issuing defendant his Miranda warnings again, Stanley discussed the topic of why they were back in the interview room.
[Stanley]: When I spoke to you earlier today and uh you terminated the interview, your [sic] said you didn't want to speak no longer.
[Defendant]: Yeah.
[Stanley]: Uh, now when I brought you back downstairs, did I say anything to you?
[Defendant]: No.
[Stanley]: When we were in the booking area, did you say anything to me?
[Defendant]: No. I said I wanted to, I wanted to know about what happened with my family at the house.
[Stanley]: That's all you said?
[Defendant]: Yeah and I wanted to ask, I was, I wanted to know what, what they was getting charged with cause they shouldn't get charged with anything.
[Stanley]: That's all you said?
[Defendant]: Yeah
[Stanley]: You didn't bring up anything about a gun or anything?
[Defendant]: Oh, the gun that was in the house.
[Stanley]: What'd you say about it?
[Defendant]: I said it was mine.
[Stanley]: Okay. Uh
[Florek]: Did you want to talk to us about that?
[Defendant]: About the gun?
[Florek]: Yeah.
[Defendant]: Yeah if they getting charged with, they don't have to get charged with it.
[Florek]: Well, we gotta go through your Miranda Warnings again.
When asked why he questioned defendant prior to administering defendant's Miranda rights, Stanley stated he did so "to clarify why we were in the room again." Because defendant had invoked his right to remain silent, Stanley wanted the record to be clear that defendant had initiated the conversation about the guns. Defendant admitted possession of all three of the guns found in the home.
Defendant raises the following issues on appeal:
POINT I: THE COURT FAILED TO MAKE THE FACTUAL FINDINGS NECESSARY TO SUPPORT ITS DECISION THAT WALDEK'S SEARCH OF THE ATTIC STAIRCASE WAS JUSTIFIED UNDER THE PROTECTIVE SWEEP DOCTRINE.
POINT II: THE TRIAL COURT ERRED IN FAILING TO SUPPRESS STATEMENT TWO BECAUSE IT WAS OBTAINED IN VIOLATION OF AUSTIN'S FIFTH AMENDMENT RIGHT TO REMAIN SILENT.
Although a guilty plea generally "constitutes a waiver" preventing a defendant from raising defects which occurred prior to the plea, an exception to this rule is provided by Rule 3:5-7(d) for motions to suppress evidence. State v. Davila, 443 N.J. Super. 577, 585 (App. Div. 2016) (quoting State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988). Defendant also reserved the right to appeal from the ruling on the pre-trial Miranda motion pursuant to Rule 3:9-3(f).
In her May 28, 2014 oral opinion and June 3, 2014 written opinion, Judge Marino found the initial protective sweep for unknown persons was "conducted reasonably and lawfully," given the danger facing the police in entering a home to arrest a parolee, on parole for a violent crime, facing new violent charges and where several unfamiliar occupants were found upon entry. Our Supreme Court's recent case regarding protective sweeps does not impact this ruling. State v. Bryant, ___ N.J. ___, ___ (2016) (slip op. at 7, 11-12) (discussing that a properly conducted protective sweep requires both that the police were lawfully present in defendant's living space and that the police had a particularized, reasonable and articulable suspicion that the space might harbor a hidden, dangerous person). Judge Marino determined that the weapons discovered during the protective sweep were found inadvertently. She further found that defendant had signed the consent to search voluntarily, having been told of his right to refuse.
Judge Marino acknowledged in her oral opinion the discrepancy in police testimony as to where exactly defendant was arrested, but her findings were appropriately not dependent on the precise location or timing of his arrest. Given the chaotic situation upon entry into the home in the early morning hours with officers from three different agencies, it is not remarkable that their testimony was not totally synchronized. Judge Marino found that the protective sweep prior to defendant's arrest was proper, as was the consent search that followed the arrest.
In her February 24, 2015 written opinion addressing the Miranda hearing, Judge Marino held that the first statement given by defendant to detectives Stanley and Calvin was inadmissible because defendant expressed clearly that he did not wish to waive his rights.
When evaluating the second statement, Judge Marino looked at whether or not defendant initiated the conversation and whether he waived the previously asserted right to remain silent. The judge found that the questions defendant asked regarding his family were a generalized discussion about the investigation and were unprovoked by Stanley. Thus, Judge Marino found defendant had reinitiated the conversation.
The judge stated that "[d]efendant does not contend, nor does any of the evidence in the record reflect, that any of the police officers pressured or coerced [d]efendant into signing his Miranda [warnings], and thus waiving his right to remain silent." Further, the judge determined that the three-hour passage of time between defendant's re-initiation of conversation and interview demonstrated defendant's willingness to waive his Miranda rights. "Th[e] Court [found] that the Defendant not only reinitiated a conversation pertinent to the investigation with Detective Stanley but also voluntarily discussed his possession of the firearms in the house after being properly administered his Miranda rights and signing the Miranda form."
We accord substantial deference "to the trial court's factual findings . . . 'when supported by adequate, substantial and credible evidence.'" Zaman v. Felton, 219 N.J. 199, 215 (2014) (quoting Toll Bros. Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)). "Deference to a trial court's fact-findings is especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). "We defer to the trial court's determination of a witness's credibility and demeanor." Riley v. Keenan, 406 N.J. Super. 281, 301 (App. Div.), certif. denied, 200 N.J. 207 (2009).
Judge Marino's decisions were well-grounded in the substantial and credible evidence presented during the pre-trial hearings.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION