Opinion
DOCKET NO. A-4137-10T1
05-02-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DERRICK DUNNELL a/k/a DERICK D. DUNNELL, MALIK DUNNELL, DERRICK DURAND, DERRICK JOHNSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, 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NOT FOR PUBLICATION WITHOUT THE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 Lihotz and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-03-0761.
Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Derrick Dunnell, along with his co-defendant James Spotswood, was charged under Essex County Indictment No. 09-03-0761 with third-degree burglary, N.J.S.A. 2C:18-2 (count one); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a (count two); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count three). Following a Miranda hearing, defendant's motion to suppress his custodial statements to police was denied.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
A jury acquitted defendant of the burglary charge and convicted him of the remaining charges of theft and receiving stolen property. Defendant was sentenced to two concurrent five-year terms of imprisonment.
Defendant appeals from his conviction, presenting these arguments for our review:
POINT I
DESPITE THE STATE'S FAILURE TO MEET ITS BURDEN TO PROVE BEYOND A REASONABLE DOUBT THAT POLICE ADVISED DEFENDANTS OF THEIR RIGHT AGAINST SELF-INCRIMINATION PRIOR TO ANY CUSTODIAL INTERROGATION, THE TRIAL COURT ERRONEOUSLY DENIED DUNNELL'S MIRANDA MOTION.
POINT II
THE PROSECUTOR COMMITTED MISCONDUCT WHEN HE MISLED THE TRIAL JURY TO BELIEVE THAT THE GRAND JURY HEARD "ALL THE . . . EVIDENCE" AGAINST POTENTIAL CO-DEFENDANT VERNON KING BUT DECIDED NOT TO INDICT HIM, AND SUGGESTED THAT THE JURY COULD CONSIDER THIS AS SUBSTANTIVE EVIDENCE; THE TRIAL JUDGE ERRED IN REFUSING TO PROVIDE ANY LIMITING INSTRUCTION TO THE JURY.
POINT III
THE TRIAL JUDGE OMITTED CRITICAL COMPONENTS OF THE MODEL JURY CHARGE IN RESPECT OF STATEMENTS ALLEGEDLY MADE BY DEFENDANTS, AND FAILED TO INSTRUCT THE JURY IN RESPECT OF THE POLICE'S FAILURE TO RECORD ANY SUCH STATEMENTS, THEREBY DENYING DUNNELL A FAIR TRIAL (Not Raised Below).
We have considered these arguments in light of the record and applicable law. We affirm.
The factual circumstances surrounding the crime and defendant's conviction are taken from the trial evidence. As necessary, more specific facts relative to defendant's arguments have been included in the discussion of those issues.
On December 17, 2008, James Robinson, the manager of Sims Metal Management (Sims), which operates a warehouse and scrap yard on Doremus Avenue, Newark, learned the warehouse had been vandalized, the building was breached, and items were stolen. Robinson provided the police with a hand-written inventory list, showing more than $11,000 worth of stolen items.
Plainclothes Detectives Jose Barrows and Jeff Weber responded to investigate. After interviewing Sims employees and inspecting the warehouse area of the break-in, the two detectives drove back to the station. In the course of their travels, approximately 1.3 miles from the Doremus warehouse, the detectives spotted defendant and co-defendant pushing a personal shopping cart, "like one . . . to take your groceries home."
The transcript from the suppression hearing records Detective's name as Barros; however, the trial transcript records it as Barrows. We have chosen to use the latter.
As the detectives pulled their vehicle alongside the two men, defendant and co-defendant began to walk faster. Barrows grabbed co-defendant and defendant took off toward a housing complex. Barrows placed co-defendant in the car and Weber chased defendant. Defendant was quickly apprehended and placed in the police vehicle. Then, co-defendant escaped from the vehicle and was apprehended as he attempted to flee to the housing complex.
Detective Barrows saw copper cores at the top of a black plastic bag contained in the shopping cart. He suspected the copper cores were stolen from Sims. The copper cores were placed in the trunk of the police car and the suspects were driven to the precinct.
Robinson was called to the station. He identified the copper cores seized from the shopping cart as Sims' property and estimated their value at between $400 and $500. He asserted he did not know defendant or co-defendant, and stated neither was authorized to be at the Doremus warehouse. Defendant and co-defendant were arrested and charged with burglary and other offenses. At that point, defendant and co-defendant, who had been separated, each stated they found the copper cores in a truck, but each man gave a different description of the truck.
Sims operates another facility on Hawkins Street, Newark. Within a half hour of discovering the break-in at the Doremus warehouse, Robinson was called because Vernon King, a scrapyard operator from Elizabeth, appeared at the Hawkins Street facility offering to sell material. Upon inspection, Robinson identified the material offered for sale as items stolen from Sims' Doremus facility. In fact, Sims inventory numbers were readily visible on several items.
Police were called to the Hawkins Street facility. Police found additional items containing Sims inventory markings in King's van. King told police he obtained the material from defendant and co-defendant, and a third man, who had arrived at his Newark home three times the night of December 16, 2008, offering to sell the scrap materials. King paid defendant and co-defendant for three loads of scrap, without questioning its source. King was not charged.
It is unclear from the record whether King referenced a third-party participating in these events with defendant and co-defendant. He mentioned someone named "Ali," but later referred to Spotswood as "Ali."
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Prior to trial, co-defendants sought to suppress their statements to police describing the truck where they allegedly found the copper cores. Detective Barrows was the sole witness. He could not remember exactly when he Mirandized the suspects and did not note this event in his initial or supplemental police report; however, he affirmed, "I always read Miranda[.]" Detective Barrows testified defendant's and co-defendant's statements regarding where they found the copper cores were made after he told them they were under arrest and they were informed of their Miranda rights. He stated their assertions were not uttered in response to interrogation, but "more of an outburst on their end"; when he advised they were under arrest for burglary, defendant and co-defendant "started uttering all their statements" and "tried to explain it . . . away."
"Notwithstanding Detective Barrows' inability to recall miscellaneous minor details, as was brought out in cross-examination," the hearing judge found "his testimony overall to be credible and reliable[,] . . . candid, consistent and unwavering[.]" The judge found defendant's comments about the discovery of the copper cores were "spontaneous[,]" "unsolicited conversations" initiated by defendant and co-defendant, rather than "the product of police interrogation or its equivalent." Therefore, the statements were deemed admissible. Further, the judge found defendant and co-defendant were Mirandized prior to interrogation. Consequently, he denied their motion to suppress.
At trial, the State presented Detective Barrows and Robinson. In addition, King testified to substantially the same facts he had told police. Both Detective Barrows and King provided in-court identifications of defendant and co-defendant. Detective Weber did not testify.
On appeal, defendant maintains the State failed to meet its burden, making the denial of his motion to suppress erroneous. We disagree.
We begin our analysis with some basic principles. In reviewing a denial of a Miranda motion, we analyze police-obtained statements using a "searching and critical" standard of review to ensure a defendant's constitutional rights — especially the right prohibiting self-incrimination — have not been trampled. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (internal quotation marks and citations omitted), certif. denied, 178 N.J. 35 (2003). Without question, the police must scrupulously honor a suspect's right to remain silent. State v. Burno-Taylor, 400 N.J. Super. 581, 589 (App. Div. 2008) (citations omitted). It is the State that must prove beyond a reasonable doubt, based on the totality of the circumstances, that police conduct did not violate a suspect's rights, see State v. Smith, 32 N.J. 501, 544 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961), and that the suspect's statement is admissible.
In our review, we do not engage in an independent assessment of the evidence, as if we were the court of first instance. State v. Locurto, 157 N.J. 463, 471 (1999) (citations omitted). Nor will we make conclusions regarding a witness's credibility. State v. Barone, 147 N.J. 599, 615 (1997). Rather, "'an appellate court reviewing a motion to suppress 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. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). "A trial court's findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Instead, "an appellate court must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 336- 37 (alteration in original) (quoting Johnson, supra, 42 N.J. at 161).
Nevertheless, "[i]t is a well-established principle of appellate review that a reviewing court is neither bound by, nor required to defer to, the legal conclusions of a trial . . . court." State v. Gandhi, 201 N.J. 161, 176 (2010) (citation omitted).
Voluntary statements not elicited through interrogation, which are made by a suspect in custody, are admissible at trial. State v. Bohuk, 269 N.J. Super. 581, 594 (App. Div.), certif. denied, 136 N.J. 29, cert. denied, 513 U.S. 865, 115 S. Ct. 183, 130 L. Ed. 2d 117 (1994). Stated differently, a statement is admissible into evidence when it is "voluntarily blurted out by an accused in custody where the police have not subjected him [or her] to an interrogative technique or where the police are about to begin giving the Miranda warnings." State v. Ward, 240 N.J. Super. 412, 4l9 (App Div. 1990). As we explained in Ward, "'the police surely cannot be held accountable for the unforeseeable results of their words or actions[.]'" Id. at 418 (quoting Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S. Ct. 1682, 1690, 64 L. Ed. 2d 297, 308 (1980)).
Here, the judge, crediting Detective Barrows' testimony, specifically found defendant and co-defendant spontaneously attempted to explain they had found the copper cores in a truck, to avoid arrest. He determined there was no interrogation being conducted when the utterance was made. These findings of fact were supported by sufficient credible evidence in the record before him. Elders, supra, 192 N.J. at 243-44. His legal conclusions based upon those facts were consistent with applicable law as outlined above. Consequently, we affirm the denial of the motion to suppress based upon a claimed Miranda violation.
Next, defendant cites a comment by Detective Barrows, asserting it misled the jury and wrongfully reinforced the State's witnesses' credibility. Further, in summation, the State compounded the error by reinforcing the misleading statements.
Defendant's trial strategy was to assert King committed the crimes. Detective Barrows was cross-examined about King's role and admitted King was not charged with any criminal offense. On redirect, Detective Barrows was asked whether he explained the information regarding King's involvement during his grand jury testimony, to which he responded, "Yes, I did." Then the assistant prosecutor asked, "Now, do you have any discretion as to whether or not the grand jury indicts someone?" Defense counsel initially objected, but was overruled. Detective Barrows responded, "No."
Later, in summation, the assistant prosecutor asserted "[t]he Grand Jury made the decision that [defendant and co-defendant] would be indicted. They could have indicted Vernon King and he could be sitting here, but they didn't." When the summation was concluded, defense counsel objected. The trial judge rejected counsel's suggested curative instruction, but included a comment informing the jury the indictment was not evidence of defendant's guilt. See Model Jury Charge (Criminal), "Preliminary Instructions to the Jury" (2010).
We find no error in the trial judge's admission of Barrows' responses to the questions posed. As framed and in the context of the entirety of his testimony, the questions were not necessarily misleading. Barrows acknowledged he determined not to charge King, told the grand jury of King's involvement, and had no discretion over the ultimate outcome of the grand jury proceeding.
The judge's statement that the grand jury could have returned an indictment charging King was accurate. State v. Hogan, 144 N.J. 216, 227-28 (1996). Nevertheless, we conclude the prosecutor's statements were improper as they were designed to suggest the grand jury had weighed King's culpability and declined to return an indictment, which are facts not in evidence.
We conceive of no basis supporting the prosecutor's invocation of the grand jury's role in rendering an indictment of defendant and co-defendant, coupled with a comment that no indictment was issued against King. An indictment is not admissible evidence of guilt, and the failure to indict is not admissible evidence of innocence. We caution against inclusion of comments invoking the grand jury's confidential process, as such comments are generally improper. See Doe v. Klein, 143 N.J. Super. 134 (App. Div. 1976) (discussing the confidentiality of grand jury proceedings, which shall not be released except upon a showing of compelling circumstances). Notwithstanding the State's improper comment, we conclude the error was harmless.
"[W]e will not reverse unless the error was 'clearly capable of producing an unjust result.'" State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div.) (quoting R. 2:10-2), certif. denied, 188 N.J. 489 (2006). See also State v. Jenkins, 178 N.J. 347, 361 (2004). Not any possibility of an unjust result is sufficient. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Our assessment of error "depends on an evaluation of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).
Here, had King not testified, the State's evidence was more than sufficient to support the jury's convictions of defendant for theft and receiving stolen property. Defendant, who was identified in court by Detective Barrows, was caught in possession of the stolen copper cores from Sims. The jury acquitted him of burglary of the Sims facility. However, defendant himself admitted that he removed the copper from a truck. The jury's theft and receiving stolen property convictions were amply supported by evidence unrelated to the prosecutor's comment. We conclude the prosecutorial misconduct in making the cited comments in summation did not prejudice defendant's right to a fair trial. See State v. Jackson, 211 N.J. 394, 409 (2012) ("Prosecutorial comments are deemed to have violated the defendant's right to a fair trial when they so infect the trial with unfairness as to make the resulting conviction a denial of due process.") (internal quotation marks and citation omitted).
Finally, defendant contends the instructions to the jury omitted critical components set forth in the Model Charge addressing statements by a defendant and the failure of police to record the statement. These issues were not raised before the trial court.
Our review is guided by the plain error standard, which provides reversal will be ordered only when an error was clearly capable of producing an unjust result, leading the jury to reach a conclusion "it otherwise might not have reached." Macon, supra, 57 N.J. at 336. See also R. 2:10-2. With respect to a jury charge, a defendant must show "'[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).
Rule 3:17(a) mandates that custodial interrogation of an individual charged with enumerated crimes, committed on or after January 1, 2007, must be electronically recorded. Burglary is one of those enumerated offenses to which the recording requirement applies. Ibid. Absent such a recording, a jury instruction shall issue on request of a defendant. R. 3:17(e). We note a specific exception to the recording requirement results from a defendant's "spontaneous statement . . . made outside the course of an interrogation." R. 3:17(b)(ii). The facts here support application of this exception.
Also, we are not persuaded reversal is warranted by a claimed omission from the jury charge addressing the jury's consideration of statements by a defendant. Model Jury Charge (Criminal), "Statements of Defendant" (2010). Defendant contends the trial judge failed to instruct the jury "you should take into consideration the circumstances and facts as to how the statement [by defendant] was made, as well as other evidence in this case relating to the issue." Additionally, he asserts the jury should have been informed "[i]f, after consideration of all these factors, you determine that the statement was not actually made, or that the statement is not credible, then you must disregard the statement completely."
Reviewing the charge as a whole, State v. Wilbely, 63 N.J. 420, 422 (1973), we find the jury was comprehensively instructed regarding its role to weigh the evidence, determine the credibility of witnesses, and make factual findings. We reject the notion that this charge deprived the jury of "the tools to determine whether the statements [by defendant] were in fact made[.]" The omission would not have the capacity to bring about an unjust result. Jordan, supra, 147 N.J. at 422.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION