Opinion
DOCKET NO. A-0550-13T4
12-28-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL A. PRYOR, a/k/a MICHAEL POLITE, MICHAEL A. POLITE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-12-2180. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After a jury trial, defendant Michael Pryor was convicted of one count of third-degree possession of cocaine, a controlled dangerous substance (CDS), in violation of N.J.S.A. 2C:35-10a(1). Prior to trial, defendant moved to suppress the evidence, but the motion was denied. The court sentenced defendant to three years' incarceration. Appropriate fines and penalties were also imposed.
The record of the suppression hearing and trial discloses the following facts. On October 11, 2011, at 5:30 a.m., Bradley Beach Police Officer Michael Tardio was parked at the intersection of Main Street and Ocean Park Avenue, patrolling for traffic violations. He was approached by an individual, previously unknown to him, N.P. N.P. informed Tardio that a white woman named B.B. was currently at a Quick Check convenience store about a block away, and that she told him she was going to purchase crack cocaine from a "black[,] overweight and short" male. N.P. explained that she said the drugs would either be delivered to her at the Quick Check, or that she would take a taxi to her apartment, where the drugs would be delivered. N.P. said B. lived on Ocean Avenue in Bradley Beach. N.P. entered Tardio's patrol car, and the two men drove to the Quick Check.
We use initials to preserve the privacy of those involved.
There, N.P. identified a white female sitting on the curb outside of the store as the woman in question. Tardio observed a taxi pull up, which the woman entered. Tardio followed the taxi until it came to a stop at 1101 Ocean Avenue, at which time the woman exited the taxi and entered Apartment 7. The building was one story and each apartment had its own entrance. Tardio parked his vehicle where he had an unobstructed view of the entrance to Apartment 7. Tardio then contacted fellow police officer, Kevin Gale, to come and pick up N.P. to drive him to his requested destination in Neptune Township. Gale picked up N.P. and, approximately three minutes later, returned to the location outside of 1101 Ocean Avenue. Tardio instructed Gale to position himself north of the apartment complex facing south to continue observation. During this time, no one approached the apartment.
Approximately fifteen minutes later, Tardio observed a black Nissan Maxima pull up and park at the corner of Newark Avenue and Ocean Avenue. Tardio saw a short, overweight black male exit the vehicle and "[walk] right to Apartment No. 7, 11-01 Ocean Avenue." Tardio advised Gale to approach the subject, and also exited his own vehicle and advanced towards the suspect. As they approached, the suspect, who was defendant, "[k]nocked on Apartment No. 7." Tardio initiated communication with defendant just outside of the entrance to Apartment 7, and advised defendant about the information he had received from N.P., including the allegation that defendant was in possession of narcotics. According to Tardio, defendant admitted that he had crack cocaine in his possession. He also contends that when asked where the narcotics were, defendant responded, "[i]n his front pocket." Defendant denies having made these admissions. He asserted the officers approached him, said "freeze," and began to search his pockets while stating that they had information that he was in possession of narcotics.
Following defendant's alleged admission, Tardio placed him in handcuffs and retrieved the narcotics from defendant's front-right pants pocket, where defendant had said the drugs were located. Gale then escorted defendant to the patrol car. At that time, Gale gave defendant his Miranda warnings.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). --------
Upon further questioning, defendant stated that "he was going to see B.B. in Apartment Number 7 and that he was going to share the crack with her and was hoping to get some sex." Tardio went to Apartment 7, where he met B.B. and V.C. Tardio recognized B.B. as the woman he saw enter and exit the taxi. B.B. and V.C. were uncooperative, denying knowing defendant or what he was doing on the premises.
Thereafter, Tardio and Gale took defendant to headquarters and processed him and the seized substance, which was .61 grams of cocaine.
Defendant and Tardio testified at the suppression hearing. Importantly, in denying defendant's suppression motion, the court found that Tardio's testimony "was more credible" than defendant's testimony. By order filed August 31, 2012, the motion judge denied defendant's motion to suppress the evidence.
Thereafter, defendant was tried before a jury and a second judge and convicted of the only charge, possession of the CDS.
On appeal, defendant presents the following issues for our consideration:
POINT I
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF HIGHLY PREJUDICIAL EVIDENCE WITH NO PROBATIVE VALUE.
POINT II
THE DEFENDANT'S RIGHT TO CONFRONTATION, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION, AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTIUTTION, WERE VIOLATED BY THE ADMISSION OF ACCUSATIONS BY A NON-TESTIFYING WITNESS.
POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE ERRONEOUSLY AND PREJUDICIALLY RELIED ON A LAY WITNESS OPINION. (Not Raised Below).
POINT IV
THE STATE FAILED TO PROVE THE LAWFULNESS OF THE WARRANTLESS SEARCH AND SEIZURE.
Defendant argues the trial court improperly allowed the State to introduce his statement made at the time of arrest that that he was hoping to have sex with B.B. in exchange for sharing his CDS. More specifically, defendant contends that "[t]he only reason the State proffered [defendant's statement] was to offend jurors, women in particular." Defendant argues that the evidence suggests a number of unduly prejudicial inferences about defendant; such as that he intended to share the drugs in order to "obtain[] consent for sex that might otherwise be withheld," and that he "intended to commit a form of sexual assault by intoxicating the recipient." Defendant also argues that the evidence had no probative value because "the issue of the defendant's intent [was] not even before the jury."
"Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). See also Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 403 (2015) ("The burden is clearly on the party urging exclusion of evidence to convince the court that the N.J.R.E. 403 considerations should control."). Our review of a trial judge's purely legal conclusions, however, is plenary. State v. Wolfe, 431 N.J. Super. 356, 360 (App. Div. 2013) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 217 N.J. 285 (2014).
N.J.R.E. 403 specifically grants a trial court discretion to exclude otherwise admissible evidence under specified circumstances. State v. Buckley, 216 N.J. 249, 261 n.3 (2013). Its decision will be reversed on appeal only on a finding of an abuse of discretion. State v. Rose, 206 N.J. 141, 157 (2011). N.J.R.E. 403 provides, in pertinent part:
[R]elevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.
The factors favoring exclusion must be shown to substantially outweigh the probative value of the contested evidence. See Morton, supra, 155 N.J. at 453. The party challenging inclusion of evidence has a difficult burden under N.J.R.E. 403. "The mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Swint, 328 N.J. Super. 236, 253 (App. Div.) (citing Morton, supra, 155 N.J. at 453), certif. denied, 165 N.J. 492 (2000). Thus, evidence claimed to be prejudicial can only be excluded if its probative value "is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation" of the case. State v. Thompson, 59 N.J. 396, 421 (1971).
Some types of evidence require a very strong showing of prejudice to justify exclusion. One example is evidence of a defendant's state of mind. A defendant's state of mind at the time of an alleged crime is inherently intangible and, therefore, is proven predominantly through witness testimony and circumstantial evidence. See State v. Williams, 190 N.J. 114, 124 (2007) (recognizing difficulty of proving mental state through direct evidence).
Here, it was the State's burden to not only prove the defendant possessed the CDS, but that the defendant acted "knowingly or purposefully in obtaining or possessing" the CDS. In this case, a jury could not hold defendant criminally liable for the CDS possession offense with which he was charged unless it found that he knew or, at a minimum, was aware that he possessed the CDS. State v. Pena, 178 N.J. 297, 305 (2004). Defendant's statement that he was hoping to have sex with B.B. in exchange for sharing his narcotics is highly probative proof that he knew he possessed the CDS. Therefore, we conclude the judge's decision to admit the statement was not an abuse of discretion.
Next, defendant maintains he was denied a fair trial when the prosecutor, in his opening statement to the jury, said Tardio and Gale approached defendant "and advised him that they were conducting an investigation which led them to believe he was in possession of narcotics." The statement did not elicit an objection. Defendant's argument on appeal suggests the prosecutor's statement prejudicially implied he had incriminating evidence outside the record. See State v. Branch, 182 N.J. 338, 351 (2005) ("[A] police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant.").
In our review, we must determine whether the statement complained of wrongly contributed to defendant's conviction. See State v. Bankston, 63 N.J. 263, 273 (1973). Defendant contends that the statement amounted to misconduct requiring reversal. While prosecutors occupy a special position in our system of criminal justice, see, e.g., State v. Daniels, 182 N.J. 80, 96 (2004), they are nevertheless entitled to zealously argue the merits of the State's case. State v. Smith, 212 N.J. 365, 403 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). "The duty of the prosecutor 'is as much . . . to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'" Ibid. (quoting State v. Frost, 158 N.J. 76, 83 (1999)).
Even if the prosecutor exceeds the bounds of proper conduct, "[a] finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting Frost, supra, 158 N.J. at 83). One factor to consider is whether there was a proper and timely objection to the comment, State v. Jackson, 211 N.J. 394, 409 (2012), because the lack of any objection indicates defense counsel "perceived no prejudice." Smith, supra, 212 N.J. at 407.
Following our review of the record, we conclude any error by including this statement by the prosecutor was harmless. We weigh heavily the fact that the comment did not evoke an objection or a subsequent request for a curative instruction.
Finally, defendant argues that the police lacked reasonable suspicion to stop and question him and therefore any resultant search was unconstitutional. Both the United States and the New Jersey Constitutions protect citizens against unreasonable searches and seizures. U.S. Const. amend. IV, N.J. Const. art. I, ¶ 7. Warrantless searches are presumptively unlawful. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854, 858 (1973). Consequently, a "warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citation omitted). One such exception allows a search incident to arrest. State v. Minitee, 210 N.J. 307, 318 (2012).
A field inquiry "occurs when a police officer approaches an individual and asks 'if the person is willing to answer some questions.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)) (alteration omitted). So long as the questioning "is not harassing, overbearing, or accusatory in nature," Nishina, supra, 175 N.J. at 510, and the person is free to refuse to answer and "'go on his way,'" Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983) (citations omitted), the person's Fourth Amendment rights are not implicated, ibid.
A police officer may conduct an investigative stop when, "based on specific and articulable facts," he has a reasonable suspicion that a person is engaged in criminal activity. Pineiro, supra, 181 N.J. at 20 (citations omitted). An investigative stop occurs when "a reasonable person would have believed that he was not free to leave," constituting a "seizure" under the Fourth Amendment. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980). An officer's subjective, good-faith hunch does not justify an investigatory stop -- even if that hunch proves correct. See State v. Arthur, 149 N.J. 1, 8 (1997). The duration of an investigative stop must be limited in time and scope to the purpose that justified the stop in the first place. Royer, supra, 460 U.S. at 500, 103 S. Ct. at 1325, 75 L. Ed. 2d at 238.
Here, the police had reasonable suspicion to stop defendant. The citizen's report to police provided reasonable suspicion that defendant had committed the offense of possession of CDS in violation of N.J.S.A. 2C:35-10a(1). The citizen gave B.B.'s location at the Quick Check and pointed her out to the officer. He stated she would either get the CDS there or leave in a taxi and proceed to her apartment. The citizen provided a matching description of defendant and that defendant would go to B.B.'s apartment. All of these statements were corroborated prior to the officers' stop of defendant. Additionally, defendant was the only person to approach the apartment and knock on the door.
Defendant claims that the citizen's report was insufficiently reliable because, among other reasons, N.P. has no firsthand "knowledge of the incriminating facts," but was only repeating B.B.'s hearsay statement. When a tip is furnished by an ordinary citizen, such as N.P., rather than a criminal informant, "New Jersey courts assume that the informant has sufficient veracity and require no further demonstration of reliability." State v. Stovall, 170 N.J. 346, 362 (2002) (citation omitted). This is because there is an assumption that a report by an ordinary citizen "is motivated by factors that are consistent with law enforcement goals." State v. Davis, 104 N.J. 490, 506 (1986).
Additionally, a tip received in person is generally considered more reliable than one received from an anonymous telephone caller because the officer "can observe the informant's demeanor and determine whether the informant seems credible enough to justify immediate police action without further questioning." State v. Basil, 202 N.J. 570, 586 (2010) (citation omitted).
It is against this backdrop that we review the specific facts of this case. The independent police investigation corroborated material aspects of N.P.'s statement. Specifically, defendant matched the description given by N.P. and he was stopped while knocking on the door of B.B.'s apartment. Although defendant's presence at the apartment was not necessarily an incriminating circumstance, it tended to confirm the information that had been given to the police. State v. Zapata, 297 N.J. Super. 160, 173 (App. Div. 1997). Under these circumstances, the police would have been derelict in their duty had they ignored the citizen's complaint and failed to investigate.
We are satisfied that the police conducted themselves reasonably in acting upon N.P.'s complaint. Here, Tardio's testimony at the suppression hearing demonstrated that facts known to the police provided reasonable suspicion. Defendant's statement provided probable cause for his arrest and the CDS was seized incident to the arrest. Minitee, supra, 210 N.J. at 318.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION