NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3502-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAROD MASSEY, a/k/a STYKEEM DAVIS,
Defendant-Appellant. ________________________
Argued October 2, 2023 – Decided February 4, 2025
Before Judges DeAlmeida, Berdote Byrne and Bishop- Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 19-10-2903.
Thomas P. Belsky, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Thomas P. Belsky, of counsel and on the brief).
Hannah Faye Kurt, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Hannah Faye Kurt, of counsel and on the brief).
The opinion of the court was delivered by
DeALMEIDA, J.A.D.
Defendant Sharod Massey appeals from the March 4, 2020 judgment of
conviction entered after a jury found him guilty of two counts of second-degree
possession of a weapon by certain persons not to have weapons, N.J.S.A. 2C:39-
7(b)(1), as well as the extended-term sentence he received under N.J.S.A. 2C:44-
3(a). We affirm defendant's convictions, vacate his extended-term sentence, and
remand for proceedings consistent with the holdings in Erlinger v. United States,
602 U.S. 821 (2024), and State v. Carlton, ___ N.J. Super. ___, ___ (App. Div.
2024).
I.
On October 7, 2018, Shane Rouse was shot and killed in Newark. Police
suspected defendant was involved in the murder, although he was never charged
in relation to Rouse's death.
On November 16, 2018, Detective Ramon Candelaria obtained a warrant
to search for evidence, including ballistic and cellular evidence, connected to
the Rouse murder in defendant's Newark apartment. The warrant described
defendant's premises by its street address and "Apartment #31." At the same
A-3502-19 2 time, Candelaria obtained a warrant to search defendant's 2001 Ford Explorer.
The detective submitted affidavits he signed in support of the warrant
applications.
The warrants were executed on November 20, 2018. When Candelaria
knocked on the door of Apartment #31, defendant answered. The detective told
defendant he had questions to ask him about the Rouse murder. Defendant
agreed to go to the prosecutor's office with the detective for an interview.
At the prosecutor's office, Candelaria and another detective questioned
defendant about the shooting. After waiving his Miranda1 rights, defendant
denied involvement in the murder. At the end of the interview, the detectives
released defendant.
While the interview was taking place, investigators searched defendant's
residence and vehicle. They found a safe inside the bedroom closet of the
residence, which they took to the prosecutor's office and logged in as evidence.
Candelaria subsequently obtained a warrant to search the safe. He submitted an
affidavit in support of the warrant application. Candelaria opened the safe the
following day and discovered two handguns and a New Jersey motor vehicle
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-3502-19 3 title for defendant's Ford Explorer. The search of defendant's vehicle did not
uncover evidence of criminal activity.
Candelaria obtained a complaint-warrant charging defendant with: (1)
possession of a weapon by certain persons not to have weapons, N.J.S.A. 2C:39-
7(b)(1) (.38-caliber special revolver); (2) possession of a weapon by certain
persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (.40-caliber revolver); and
(3) possession of a defaced handgun, N.J.S.A. 2C:39-3(d) (.38-caliber special
revolver). After learning that one of the guns found in defendant's safe was a
ballistics match to the Rouse murder, Candelaria had defendant return to the
prosecutor's office for further interrogation. Candelaria and Detective Murad
Muhammad told defendant he was under arrest for "possession of a handgun"
before he waived his Miranda rights and agreed to be questioned. The detectives
did not inform defendant Candelaria had obtained a complaint-warrant or tell
him the specific charges lodged against him. During the interrogation,
defendant admitted he purchased and possessed the handguns found in his safe.
A grand jury subsequently indicted defendant, charging him with two
counts of second-degree possession of a weapon by certain persons not to have
weapons, N.J.S.A. 2C:39-7(b)(1).
A-3502-19 4 Before trial, defendant moved to suppress the handguns, arguing the
affidavits supporting the warrants for his residence and safe did not establish
probable cause that evidence related to the Rouse murder would be found in
either location. At the hearing on the suppression motion, neither party called
witnesses. They instead relied on the affidavits submitted in support of the
warrants. Defendant argued the affidavits failed to show how the information
in them linked him to Rouse's murder or established that evidence related to the
murder was likely to be found in his apartment or the safe. In an oral decision,
the court denied the motion.
Also prior to trial, the State moved to admit defendant's recorded
statement to the detectives during his second interrogation, with redactions to
reflect only questions and responses related to the weapons charges. Defendant
objected, arguing he did not knowingly and voluntarily waive his Miranda rights
because he was not verbally informed of the complaint-warrant or of the specific
charges against him.
The court held a hearing at which Candelaria was a witness. He testified
that when defendant arrived at the prosecutor's office Candelaria had a copy of
the complaint-warrant charging defendant with the certain persons offenses. He
did not testify that he verbally informed defendant of the complaint-warrant or
A-3502-19 5 of the specific charges against him prior to defendant's waiver of his Miranda
rights.
The transcript and video recording of defendant's interrogation confirm
that neither detective notified defendant of the complaint-warrant or the specific
charges lodged against him. The following exchange took place before
defendant waived his Miranda rights:
DET. MUHAMMAD: You – you are currently – you're under arrest.
DEFENDANT: I'm under arrest now?
DET. MUHAMMAD: Yeah.
DET. CANDELARIA: Yes.
DEFENDANT: For what?
DET. MUHAMMAD: For possession of a handgun.
DEFENDANT: Right. So right now I'm under arrest.
DET. CANDELARIA: You're under arrest right now, yes.
....
DEFENDANT: . . . I just want to know, right? Y'all told me I was under arrest, right? So –
A-3502-19 6 DET. MUHAMMAD: Yeah.
DEFENDANT: So for right – so I'm arrested for possession of handguns.
DET. MUHAMMAD: That's correct.
DET. CANDELARIA: Right.
DEFENDANT: Right now that's what I'm arrested for.
DET. CANDELARIA: Yes. That's true.
DEFENDANT: All right.
The court issued an oral decision granting the State's motion. The court
found defendant was informed he was under arrest for possession of a weapon,
was informed of his Miranda rights, and made a knowing and intelligent waiver
of those rights. Although the court did not mention in its decision defendant's
argument that his waiver was invalid because he was not informed of the
complaint-warrant or the precise charges he faced, it is apparent the court was
not persuaded by that argument.
The only disputed issue at trial was whether defendant constructively
possessed the firearms charged in the indictment. The parties stipulated to the
element of the offenses concerning defendant's predicate prior conviction. Proof
A-3502-19 7 that defendant was the lessee of Apartment #31 was entered into evidence. The
detectives who conducted the search of defendant's residence testified defendant
was present at the apartment and the safe was found in defendant's closet.
Candelaria testified the handguns and title to defendant's vehicle were found in
the safe the following day. A video recording of defendant's interrogation,
which included his admission to having purchased the handguns, was admitted
into evidence. A jury convicted defendant of both charges.
At sentencing, the court granted the State's motion to sentence defendant
to an extended-term sentence as a persistent offender pursuant to N.J.S.A.
2C:44-3(a). In support of its application, the State produced evidence defendant
had thirteen convictions over a period of twelve years prior to his convictions in
this matter. In response to the State's motion, defendant's counsel stated "[h]e's
clearly a persistent offender. You could grant that motion and declare him a
persistent offender," but requested the court exercise its discretion to sentence
defendant to a term at the lower end of the applicable range. The court found
the State established each of the elements of N.J.S.A. 2C:44-3(a).
The court found the applicable aggravating factors preponderated over the
mitigating factors and warranted sentencing at the higher end of the range for an
extended term. The court sentenced defendant to eighteen years in prison, with
A-3502-19 8 a nine-year period of parole ineligibility, on each count of the indictment and
directed the sentences be served concurrently.2
This appeal follows. Defendant raises the following arguments.
POINT I
BECAUSE THE SUPPORTING AFFIDAVITS, WHICH WERE BASED ON UNRELIABLE HEARSAY, FAILED TO ESTABLISH PROBABLE CAUSE THAT EVIDENCE OF THE MURDER WOULD BE FOUND IN ROOM #31 NEARLY TWO MONTHS AFTER THE CRIME OCCURRED, THE WARRANTS AUTHORIZING THE SEARCHES WERE INVALID AND THE TRIAL COURT SHOULD HAVE GRANTED [DEFENDANT'S] MOTION TO SUPPRESS THE GUNS FOUND PURSUANT TO THOSE WARRANTS.
POINT II
BECAUSE THE INTERROGATING DETECTIVES DID NOT TELL [DEFENDANT] THAT HE HAD ALREADY BEEN CHARGED ON A COMPLAINT- WARRANT WITH THE CERTAIN PERSONS OFFENSES, HE COULD NOT HAVE KNOWINGLY AND VOLUNTARILY WAIVED HIS RIGHTS AGAINST SELF-INCRIMINATION. THEREFORE, HIS STATEMENT SHOULD HAVE BEEN SUPPRESSED.
2 Although the court stated it was imposing an extended-term sentence on both convictions, the judgment of conviction (JOC) indicates defendant received an extended-term sentence only on count one. According to the JOC, the court sentenced defendant to a ten-year term of imprisonment with a five-year period of parole ineligibility on count two concurrent with the sentence on count one. Because we vacate defendant's sentence, we need not address this discrepancy. A-3502-19 9 POINT III
THE TRIAL COURT DEPRIVED [DEFENDANT] OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JURY BY REJECTING, IN DEFIANCE OF SUPREME COURT GUIDANCE IN CERTAIN PERSON CASES, HIS REQUEST TO EXPLORE WITH POTENTIAL JURORS THE ISSUE OF PROPENSITY AND WHETHER KNOWLEDGE OF A DEFENDANT'S PRIOR CONVICTION WOULD IMPACT THEIR BELIEF THAT HE WAS GUILTY OF NEW CHARGES.
POINT IV
BECAUSE THE STATE DEPRIVED [DEFENDANT] A FAIR TRIAL BY REPEATEDLY AND UNNECESSARILY REFERENCING MULTIPLE SEARCH WARRANTS AND AN ARREST WARRANT ISSUED IN RELATION TO HIM, AND BECAUSE THE TRIAL COURT FAILED TO GIVE A LIMITING INSTRUCTION CONCERNING THIS EVIDENCE, THE COURT SHOULD SET ASIDE [DEFENDANT'S] CONVICTIONS AND SENTENCE.
POINT V
THE CUMULATIVE EFFECT OF THE ERRORS IN THIS CASE, ESPECIALLY THE ERRORS RELATED TO JURY SELECTION AND THE UNNECESSARY REFERENCES TO WARRANTS, DEPRIVED [DEFENDANT] OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL SUCH THAT HIS CONVICTIONS SHOULD BE REVERSED.
A-3502-19 10 POINT VI
RESENTENCING IS REQUIRED BECAUSE THE SENTENCING COURT, AFTER ALREADY EXPANDING [DEFENDANT'S] SENTENCING RANGE BY FINDING HIM A PERSISTENT OFFENDER, IMPROPERLY GAVE "SIGNIFICANT WEIGHT" TO AGGRAVATING FACTORS THREE, SIX, AND NINE BASED SOLELY ON HIS CRIMINAL RECORD WHICH RESULTED IN AN EXCESSIVE SENTENCE OF EIGHTEEN YEARS' INCARCERATION WITH A NINE-YEAR PERIOD OF PAROLE INELIGIBILITY FOR AN ORDINARY CERTAIN PERSON CASE.
II.
A. Motion to Suppress.
Our review of the denial of a suppression motion is limited. State v.
Handy, 206 N.J. 39, 44 (2011). We review a motion judge's factual findings
after a suppression hearing with great deference. State v. Gonzales, 227 N.J.
77, 101 (2016). We "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. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders,
192 N.J. 224, 243 (2007)). We defer "to those findings of the trial judge which
are substantially influenced by [the] opportunity to hear and see the witnesses
and to have the 'feel' of the case, which a reviewing court cannot enjoy." Elders,
192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We owe no
A-3502-19 11 deference, however, to the trial court's legal conclusions or interpretation of the
legal consequences that flow from established facts. Our review in that regard
is de novo. State v. Watts, 223 N.J. 503, 516 (2015).
The Fourth Amendment of the United States Constitution and Article I,
Paragraph 7 of the New Jersey Constitution "protect [the State's] citizens against
unreasonable police searches and seizures by requiring warrants issued upon
probable cause 'unless [the search] falls within one of the few well-delineated
exceptions to warrant requirement.'" State v. Maryland, 167 N.J. 471, 482
(2001) (second alteration in original) (quoting Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973)). "A search that is executed pursuant to a warrant is
'presumptively valid,' and a defendant challenging the issuance of that warrant
has the burden of proof to establish a lack of probable cause 'or that the search
was otherwise unreasonable.'" State v. Boone, 232 N.J. 417, 427 (2017)
(quoting Watts, 223 N.J. at 513-14).
Probable cause is "consistently characterized . . . as a common-sense,
practical standard for determining the validity of a search warrant." State v.
Novembrino, 105 N.J. 95, 120 (1987). It is met when police have "a 'well
grounded' suspicion that a crime has been or is being committed." State v.
Waltz, 61 N.J. 83, 87 (1972) (quoting State v. Burnett, 42 N.J. 377, 387 (1964)).
A-3502-19 12 The United States Supreme Court similarly described probable cause as a
"practical, nontechnical conception." Illinois v. Gates, 462 U.S. 213, 231 (1983)
(quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). Probable cause
requires more than mere suspicion; it requires a showing of a "fair probability"
that criminal activity is taking place. State v. Demeter, 124 N.J. 374, 380-81
(1991) (quoting Gates, 462 U.S. at 238). Courts must base a probable cause
determination on the totality of the circumstances and consider the probabilities.
State v. Jones, 179 N.J. 377, 389 (2004) (citing Schneider v. Simonini, 163 N.J.
336, 361 (2000)).
In assessing the showing of probable cause upon a motion to suppress,
"[t]he critical and only question is whether a sufficient showing of probable
cause to search was presented to the warrant-issuing judge," State v. Chippero,
201 N.J. 14, 31-32 (2009), and "substantial deference must be paid by a
reviewing court to th[at] determination," State v. Evers, 175 N.J. 355, 381
(2003).
In asserting the foundation for probable cause, the affidavit may rely on
inadmissible evidence such as hearsay. State v. Smith, 155 N.J. 83, 92 (1998);
State in Interest of E.S., 470 N.J. Super. 9, 21 (App. Div. 2021) ("A probable
cause finding may be supported by hearsay or other inadmissible proof.").
A-3502-19 13 Hearsay may be used to provide the basis for probable cause so long as there is
independent evidence supporting its reliability. Smith, 155 N.J. at 92.
Generally, two factors that are considered highly relevant, if not essential, to the
use of such statements "are the informant's 'veracity' and the informant's 'basis
of knowledge.'" Id. at 93 (quoting Gates, 462 U.S. at 238). Along the same
lines, an informant's tip can be relied upon so long as it has a basis in veracity
and knowledge. State v. Sullivan, 169 N.J. 204, 212 (2001).
Candelaria's affidavits were based on two hearsay statements. First, an
unidentified source or sources in Rouse's family told members of the
prosecutor's office Rouse had an argument approximately two days before the
murder with defendant, whom they identified only by his street name. Second,
a named witness told members of the prosecutor's office "that word on the street"
was that defendant murdered Rouse. That witness stated that when Rouse was
released from prison he began selling controlled dangerous substances (CDS) in
an area of South Fifteenth Street which defendant considered to be his exclusive
territory for the distribution of CDS. According to the witness, defendant
warned Rouse to stop selling CDS at that location.
The detective investigated the reliability of the witness statements and
discovered: (1) a phone number associated with defendant's street name was
A-3502-19 14 found in Rouse's cellphone; (2) defendant had several CDS-related arrests in the
area where one witness claimed defendant was selling CDS; (3) defendant's
social media account displayed a photograph of a tattoo of the street name
identified by Rouse's family on defendant's back; (4) motor vehicle records
indicated defendant owned a two-door Ford Explorer; (5) defendant's social
media account displayed a photograph of defendant next to a two-door, dark
Ford Explorer; (6) video surveillance cameras captured a black Ford Explorer
travelling close to, and parking near, the location of Rouse's murder shortly
before the murder before driving away; (7) a video surveillance camera captured
the Ford Explorer return to the location of the murder three minutes prior to the
shooting and park. No one exited the vehicle and its headlights were turned off.
When the shooting of Rouse commenced, the Ford Explorer slowly drove away
after its headlights were turned on; (8) a video surveillance camera captured
defendant parking his Ford Explorer in the driveway of his residence and
entering his apartment about an hour after the murder, leaving about eight
minutes later, and returning about an hour after that; and (9) defendant signed a
lease for Apartment #31 approximately eight months prior to the murder.
Defendant argues the motion court erred when it denied his motion to
suppress because Candelaria did not provide sufficient information to establish
A-3502-19 15 the veracity of the statements made by the witnesses. Although defendant
concedes the witnesses were ordinary citizens entitled to a presumption of
veracity, State v. Basil, 202 N.J. 570, 586 (2010) ("Generally speaking,
information imparted by a citizen directly to a police officer will receive greater
weight than information received from an anonymous tipster."), he argues
Candelaria failed to provide substantial corroboration of the information they
conveyed to establish probable cause for the warrants. Defendant characterizes
the witness statements as unsubstantiated rumors.
Defendant argues his history of arrests, with no accompanying evidence
of convictions, do not establish he was involved in selling CDS at the location
of the murder. Nor, defendant argues, did the detective uncover any evidence
that Rouse was engaged in distributing CDS near the location of the murder.
Defendant also argues the detective produced no evidence the Ford
Explorer seen in surveillance videos was defendant's vehicle. Candelaria did
not state in his affidavits that the truck depicted in the video had any distinctive
characteristics that matched those of defendant's truck. Nor, defendant argues,
did the detective provide any information connecting the Ford Explorer in the
videos to the murder. To the contrary, defendant argues, the fact that no one
exited the vehicle in the minutes before the murder and that the truck drove away
A-3502-19 16 when the shooting began suggests the Ford Explorer was not connected to the
murder. In addition, defendant notes the affidavits state that eyewitnesses saw
Rouse's murderer approach on foot and flee down an alley after the shooting.
Defendant also argues Candelaria produced no information suggesting
evidence of the murder would be found in Apartment #31 or in the safe found in
the apartment. He notes the surveillance video of defendant entering his
residence does not depict him carrying any bags or packages into the apartment.
In addition, defendant argues the detective was aware defendant was also
associated with an address in Orange, diminishing the likelihood evidence of the
murder would be found at his Newark apartment.
Finally, defendant argues the information in the affidavits was stale. In
support of this argument, defendant notes the search warrants were issued nearly
two months after the murder.
We see no basis on which to reverse the motion court's denial of
defendant's suppression motion. The family members provided detailed
information regarding Rouse's fight with defendant. They identified when the
fight happened and the street name of the person with whom Rouse fought.
Candelaria corroborated the information in part when he discovered a number
in Rouse's cellphone for a person with the street name identified by his family
A-3502-19 17 members. The detective also discovered evidence defendant had the street name
identified by Rouse's family tattooed on his back.
Candelaria also corroborated in part the information provided by the other
witness. The detective determined, consistent with the witness's report,
defendant had been arrested several times for CDS-related offenses in the area
where Rouse was killed, corroborating the witness's statement that "word on the
street" was defendant killed Rouse because of a dispute over control of CDS
distribution in the location of the murder.
The detective also confirmed defendant's ownership of a vehicle of the
type seen near the location of the murder, including at the time of the shooting.
He confirmed defendant's lease of Apartment #31, his occupancy of that unit for
approximately eight months, and his presence there shortly after the murder.
With respect to the search of defendant's apartment, based on the totality
of the circumstances, the record contains sufficient support for the conclusion
that Candelaria's affidavits establish "that there is probable cause to believe that
a crime has been committed, or is being committed, at a specific location or that
evidence of a crime is at the place sought to be searched." Boone, 232 N.J. at
426 (quoting Jones, 179 N.J. at 388).
A-3502-19 18 We reach the same conclusion with respect to the warrant to search the
safe found in defendant's apartment. Given the validity of the warrant to search
defendant's apartment, it is evident probable cause existed to search a locked
safe in the bedroom of the apartment. If defendant was harboring evidence of
his involvement in a murder in his apartment, it is likely the evidence would be
stashed in a locked safe.
We are not persuaded by defendant's argument the motion court erred
because the information in Candelaria's affidavits was stale. Undoubtedly,
"probable cause to justify the issuance of a search warrant must exist at the time
the warrant is issued." State v. Blaurock, 143 N.J. Super. 476, 479 (App. Div.
1976). However, "[t]he question of the staleness of probable cause depends
more on the nature of the unlawful activity alleged in the affidavit than the dates
and times specified therein." Ibid. (quoting United States v. Harris, 482 F.2d
1115, 1119 (3d Cir. 1973)). Indeed,
"the vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts relied upon and the issuance of the affidavit. Together with the element of time we must consider the nature of the unlawful activity. Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous
A-3502-19 19 nature, a course of conduct, the passage of time becomes less significant."
[Ibid. (quoting United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972)).]
While it is possible defendant could have discarded evidence between the
time of the murder and issuance of the search warrants, it was reasonable for the
motion court to conclude evidence of the murder, including ballistic and cellular
evidence, which were identified in the affidavit, was likely to be found in
defendant's apartment and safe.
B. Miranda Waiver.
Our review of the record revealed no basis on which to conclude the
motion court erred when it granted the State's motion to admit the inculpatory
statements defendant made during his interrogation. "The right against self-
incrimination is guaranteed by the Fifth Amendment to the United States
Constitution and this state's common law, now embodied in statute, N.J.S.A.
2A:84A-19, and evidence rule, N.J.R.E. 503." State v. S.S., 229 N.J. 360, 381-
82 (2017) (quoting State v. Nyhammer, 197 N.J. 383, 399 (2009)). "Our law
maintains 'an unyielding commitment to ensure the proper admissibility of
confessions.'" State v. Sims, 250 N.J. 189, 211 (2022) (quoting State v.
Vincenty, 237 N.J. 122, 132 (2019)).
A-3502-19 20 Generally, "a knowing, intelligent, and voluntary waiver" of Miranda
rights "is determined by the totality of the circumstances surrounding the
custodial interrogation based on the fact-based assessments of the trial court."
State v. A.M., 237 N.J. 384, 398 (2019); see also State v. Presha, 163 N.J. 304,
313 (2000). When making this analysis, courts consider the defendant's age,
education, and intelligence, whether they were advised of their constitutional
rights, the length of the detention, whether the interrogation was repeated and
prolonged, and whether physical punishment or mental exhaustion were
involved. Nyhammer, 197 N.J. at 402. Because New Jersey provides greater
protections than afforded under federal law, Vincenty, 237 N.J. at 132, "our
review of police-obtained statements is 'searching and critical' to ensure
protection of a defendant's constitutional rights." State v. Burney, 471 N.J.
Super. 297, 314 (App. Div. 2022) (quoting State v. Patton, 362 N.J. Super. 16,
43 (App. Div. 2003)). "[F]or the statement to be admissible, the court must find
it was voluntary beyond a reasonable doubt." Id. at 315.
We are not persuaded by defendant's argument that his waiver of Miranda
rights was invalid because Candelaria did not inform him the detective had
obtained a complaint-warrant or identify with specificity the charges lodged
against him. We are guided in our analysis by three Supreme Court precedents.
A-3502-19 21 In State v. A.G.D., 178 N.J. 56, 59 (2003), detectives obtained an arrest
warrant for the defendant after interviewing the victim of a sexual assault. They
subsequently met with the defendant and told him they wanted to interview him
about allegations of sexual abuse made against him. Ibid. They did not inform
him of the warrant or the specific charges against him. Ibid. The detectives
thereafter obtained the defendant's waiver of his Miranda rights after which he
made inculpatory statements. Id. at 60. After his conviction, the defendant
argued, among other things, "that the detectives had violated his rights by failing
to inform him about the outstanding arrest warrant, notwithstanding his signed
waiver of Miranda rights." Id. at 61.
We rejected the defendant's claims. Id. at 61-62. The Supreme Court
reversed. Id. at 69. The Court held that "[t]he government's failure to inform a
suspect that a criminal complaint or arrest warrant has been filed or issued
deprives that person of information indispensable to a knowing and intelligent
waiver of rights." Id. at 68. The Court reasoned,
a criminal complaint and arrest warrant signify that a veil of suspicion is about to be draped on the person, heightening his risk of criminal liability. Without advising the suspect of his true status when he does not otherwise know it, the State cannot sustain its burden to the Court's satisfaction that the suspect has exercised an informed waiver of rights, regardless of other factors that might support his confession's admission.
A-3502-19 22 [Ibid.]
In Vincenty, the defendant was interrogated by detectives after charges
had been filed against him. 237 N.J. at 127. The officers obtained the
defendant's waiver of his Miranda rights without informing him that charges had
been filed. Ibid. After the defendant signed the waiver that detectives stated
that "the judge already charged" him and that the detectives "have the charges."
Ibid. During the interrogation, the defendant denied involvement in criminal
activity. Id. at 128. In response, the detectives stated "that they 'presented the
evidence to the judge,' who 'put the charges in.'" Ibid. The detectives later
showed the defendant a list of the charges lodged against him. Ibid.
The defendant moved to suppress inculpatory statements he made during
the interrogation, arguing the detectives failed to comply with A.G.D. by not
informing him of the arrest warrant and charges pending against him prior to
obtaining his Miranda waiver. Id. at 129. The trial court denied the motion. Id.
at 130. We affirmed. Ibid.
The Supreme Court reversed. Id. at 136. The Court explained that
"A.G.D. . . . calls for law enforcement officials to make a simple declaratory
statement at the outset of an interrogation that informs a defendant of the essence
of the charges filed against him." Id. at 134. The Court continued, "[t]he State
A-3502-19 23 may choose to notify defendants immediately before or after administering
Miranda warnings, so long as defendants are aware of the charges pending
against them before they are asked to waive the right [against] self-
incrimination." Ibid. The Court concluded the defendant's wavier was not
knowing and intelligent because he was unaware "that charges had been filed
against him" before he waived his Miranda rights. Ibid. The Court noted that
when detectives asked the defendant "to waive his right against self-
incrimination, they failed to inform him of the specific criminal charges filed
against him." Id. at 135.
In Sims, 250 N.J. at 199, after an investigation, but before a complaint or
warrant was issued, two detectives arrested the defendant and transported him
to a police station for an interrogation. After the detectives read him his Miranda
rights, the defendant asked, "[s]o, I'm under arrest of something?" Ibid. A
detective responded, "[y]ou are under arrest[,] yes . . . . I'm sure you have a ton
of questions. I'll be happy to get into all that, okay, in just a few minute s. Let's
just finish this form. Okay?" Ibid. The defendant then waived his Miranda
rights. Ibid. During the interview that followed, the defendant made inculpatory
statements. Ibid. The detectives did not inform the defendant of any specific
charges that might be brought against him as a result of the investigation.
A-3502-19 24 The defendant was later indicted. Id. at 199-200. He moved to suppress
his statement to police on grounds not relevant here. Id. at 200. The trial court
denied his motion. Ibid. On appeal, the defendant for the first time argued the
waiver of his Miranda rights was invalid because the detectives "did not tell him
why he was arrested" prior to the interrogation. Id. at 204. In a split decision,
we held that the trial court committed plain error when it admitted defendant's
statement to police during his interrogation. Ibid. The majority held that A.G.D.
and Vincenty required a defendant to be advised of the "actual" and "specific"
charges he is facing whether or not such charges have been formally filed. Id.
at 205.
The Supreme Court reversed. The Court held that
The rule announced in A.G.D. is clear and circumscribed. If a complaint-warrant has been filed or an arrest warrant has been issued against a suspect whom law enforcement officers seek to interrogate, the officers must disclose that fact to the interrogee and inform him in a simple declaratory statement of the charges filed against him before any interrogation.
[Id. at 213.]
"The rule of A.G.D. mandates disclosure of factual information about pending
charges that the officer can readily confirm and clearly convey." Id. at 214.
A-3502-19 25 Our review of defendant's custodial interrogation does not demonstrate a
violation of the principles articulated in A.G.D., Vincenty, and Sims. Prior to
signing a waiver of his Miranda rights, defendant was told he had been charged
with possession of a weapon and was under arrest for those charges. Almost
immediately after being informed of the charges defendant admitted to
purchasing the weapons on the street a few days before the search of his
apartment. While the detectives did not mention they had obtained a complaint-
warrant, they repeatedly and plainly stated defendant was under arrest for
possession of a weapon.
We agree the detectives did not abide by the clear holding in A.G.D.
requiring disclosure of the complaint-warrant to defendant. However, they
made "a simple declaratory statement at the outset of an interrogation that
inform[ed] defendant of the essence of the charges filed against him." Vincenty,
237 N.J. at 134. Before making inculpatory statements, defendant repeatedly
expressed his understanding that he had been arrested for possession of a
weapon. On the record before us, we do not consider the detectives' failure to
inform defendant of the complaint-warrant to be fatal to the validity of
defendant's Miranda waiver.
A-3502-19 26 In addition, we see no departure from the holding in A.G.D. in the
detectives' failure to specify precisely the charges lodged against defendant in
the complaint-warrant. Unlawful possession of a weapon, N.J.S.A. 2C:39-5,
and possession of a weapon by certain persons not to have weapons, N.J.S.A.
2C:39-7(b)(1), are distinct offenses. The penalty for a conviction of a certain
persons offense is more severe than that for a conviction of unlawful possession
of a weapon. Compare N.J.S.A. 2C:39-7(b)(1) with N.J.S.A. 2C:43-6(c). We
do not see the distinction between the charges to be of sufficient significance to
invalidate defendant's waiver.
Although the detectives failed to specify the exact nature of the charges
pending against defendant, they did not "deliberately and designedly misle [a]d
defendant as to his true legal status by providing a vague and incomplete answer
to [his] inquiry as to the reason for his arrest" as part of a "planned investigative
strategy to elicit incriminating statements . . . ." See State v. Diaz, 470 N.J.
Super. 495, 503, 518-19 (App. Div. 2022) (finding Miranda waiver invalid under
the totality of the circumstances where before obtaining the waiver detectives,
who had not secured a complaint or warrant, informed the defendant they were
conducting an investigation "involving narcotics" when they were actually
investigating the defendant for a strict liability drug-induced death about which
A-3502-19 27 he was unaware). Here, defendant was certainly aware that he was a felon and
not permitted to possess handguns. The fact that detectives informed him that
he had been charged with "possession of a weapon" as opposed to "possession
of a weapon by certain persons not to have weapons" did not deprive defendant
of a full understanding of the charges he faced.
C. Jury Selection.
The Sixth Amendment and Article I, Paragraph 10 of our State
Constitution guarantee criminal defendants the right to be tried by an impartial
jury. State v. Williams, 93 N.J. 39, 60 (1983); U.S. Const. amend VI; N.J. Const.
art. I, ¶ 10. "The securing and preservation of an impartial jury goes to the very
essence of a fair trial." Williams, 93 N.J. at 60. "'The purpose of voir dire is to
ensure an impartial jury'" by detecting jurors who cannot fairly decide a matter
because of partiality or bias." State v. O'Brien, 377 N.J. Super. 389, 412 (App.
Div. 2004) (quoting State v. Martini, 131 N.J. 176, 210 (1993)). "[T]rial courts
must be allotted reasonable latitude when conducting voir dire and, therefore , a
reviewing court's examination should focus only on determining whether 'the
overall scope and quality of the voir dire was sufficiently thorough and probing
to assure the selection of an impartial jury.'" State v. Winder, 200 N.J. 231, 252
(2009) (quoting State v. Biegenwald, 106 N.J. 13, 29 (1987)).
A-3502-19 28 A certain persons charge "requires proof of a specific prior conviction,"
which "automatically entails a risk of prejudice to a defendant in a jury trial."
State v. Bailey, 231 N.J. 474, 484 (2018). Where a defendant is tried on a certain
persons charge, the prior conviction's potential for "prejudice is minimized by
appropriate curative jury instructions." State v. Brown, 180 N.J. 572, 582
(2004). "[O]ur case law has continued to reinforce the principle that appropriate
limiting instructions balance the State's efforts to present relevant evidence
against a defendant's right to a fair trial." Id. at 583. "[W]e are satisfied that
strong limiting instructions regarding prior-crimes evidence . . . will protect a
defendant against unfair prejudice." Ibid. In addition, "[i]t is important that
potential jurors be informed during voir dire that a defendant is charged with
possession of a weapon by a convicted felon so that they can be questioned
adequately concerning whether the defendant's criminal past would prejudice
their ability to determine the possession issue." Id. at 582.
During voir dire, defendant proposed each prospective juror be asked
"[w]ould the fact that someone has previously been convicted of a crime make
you more likely, less likely, or as likely to believe they were guilty of the new
charges? Please explain your answer." (Question 31). According to defendant,
the question was designed to elicit whether a juror believes that a person
A-3502-19 29 previously convicted of a crime has the propensity to commit more crimes. The
State objected, arguing the question had the potential to cause confusion or
mislead the jurors and the model jury charges adequately address the question
of propensity to commit crimes based on a prior conviction.
The trial court excluded the question, finding three other questions posed
to prospective jurors addressed "the . . . gravamen of Question 31 talking about
presuppositions of potential jurors, their thoughts on propensity, their ability to
be fair and impartial, to treat this case independently." The three questions to
which the trial court referred were: (1) "[i]s there anything about the nature of
the charges themselves that would interfere with your impartiality?"; (2) "[t]he
indictment is not evidence of guilt. The fact that the defendant's been arrested
and indicted and is facing these charges, would you have any preconceived
opinions on his guilt or innocence?"; and (3) "[w]ould you have any difficulty
following the principle that the defendant on trial is presumed to be innocent
and must not be found guilty of a charge unless each and every essential element
of the offense charged is proven beyond a reasonable doubt?" In addition, the
model jury charge, which was read to the jury, instructs jurors that evidence of
the predicate offense cannot be used to decide that defendant has a tendency to
commit crimes.
A-3502-19 30 It was error for the trial court to exclude the question proposed by
defendant. As the Supreme Court held in Brown, it is important that prospective
jurors are informed a defendant charged with a certain persons offense is a
convicted felon so their tendency to equate that conviction with a propensity to
commit crimes can be explored. The three questions on which the trial court
relied when excluding defendant's proposed question do not address propensity.
In addition, the trial court did not explain why defendant's proposed question
had the potential to confuse or mislead jurors.
The trial court's error, however, does not warrant reversal of defendant's
conviction. In Brown, the Court held an appropriate limiting instruction is
sufficient to protect defendants from jurors using the fact of a prior conviction
to determine propensity. 180 N.J. at 583. Here, the trial court instructed the
jury with respect to defendant's predicate conviction that "[y]ou may not use this
evidence to decide that defendant has a tendency to commit crimes or that he is
a bad person. That is, you may not decide that, just because the defendant has
committed a prior offense, he must be guilty of the present offense." We are
satisfied the instruction given by the trial court adequately protected defendant.
with respect to his prior conviction.
A-3502-19 31 D. Prosecutorial Misconduct.
Defendant argues the State repeatedly drew the jury's attention to the fact
that investigators obtained search warrants related to defendant. The State
referred to the warrants in its opening statement. In addition, three of the State's
witnesses were questioned about the warrants and two identified copies of the
warrants even though they were not submitted as evidence. In addition,
Candelaria testified he submitted the affidavits, which contained "facts" that led
to the issuance of the warrants. Defendant argues the repeated references
unfairly reminded jurors that a judicial authority had suspected defendant of
criminal activity, denying him a fair trial.
Because defendant did not object to questions concerning the warrants at
trial or request a limiting instruction, we review the record for plain error. State
v. Ross, 229 N.J. 389, 407 (2017). Our inquiry is to determine whether the
alleged error was "clearly capable of producing an unjust result . . . ." R. 2:10-
2. "Not any possibility of an unjust result will suffice as plain error, only 'one
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. Coclough, 459 N.J. Super.
45, 51 (App. Div. 2019) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). "It
A-3502-19 32 may be fair to infer from the failure to object below that in the context of the
trial the error was actually of no moment." Macon, 57 N.J. at 333.
A prosecutor may convey to a jury that police were authorized by warrant
to search a home to "dispel any preconceived notion" the jury may have that the
officers acted arbitrarily. State v. Cain, 224 N.J. 410, 435 (2016). However,
"repeated statements that a judge issued a search warrant for a defendant's home
– when the lawfulness of the search is not at issue – may lead the jury to draw
the forbidden inference that the issuance of a warrant by a judge supports
rendering a guilty verdict." Id. at 433.
Here, the State made no reference to the underlying homicide
investigation and did not elicit testimony that a judge had approved the warrants.
In addition, defense counsel raised the homicide investigation in her opening
statement, suggesting the State brought the certain persons charges against
defendant only because it could not solve the Rouse murder. The State's
questions concerning the warrants were intended to counter defendant's
suggestion that the underlying investigation was incomplete or improper. While
the extent of the questioning about the warrants could have been limited without
unfairly hindering the State's ability to present its case, the record does not
support a finding of plain error.
A-3502-19 33 E. Cumulative Error.
When addressing claims of cumulative error, the Supreme Court
repeatedly [has] made clear that "[t]he proper and rational standard [for the review of claimed trial errors] is not perfection; as devised and administered by imperfect humans, no trial can ever be entirely free of even the smallest defect. Our goal, nonetheless, must always be fairness. "'A defendant is entitled to a fair trial but not a perfect one.'"
[State v. Wakefield, 190 N.J. 397, 537 (2007) (second and third alterations in original) (quoting State v. R.B., 183 N.J. 308, 333-34 (2005)).]
Thus, where legal errors occur but do not individually warrant reversal of a
conviction, if those errors "in their aggregate have rendered the trial unfair, our
fundamental constitutional concepts dictate the granting of a new trial before an
impartial jury." State v. Orecchio, 16 N.J. 125, 129 (1954). "[T]he predicate
for relief for cumulative error must be that the probable effect of the cumulative
error was to render the underlying trial unfair." Wakefield, 190 N.J. at 538.
We disagree with defendant's argument that the errors he raised have the
cumulative effect of rendering his trial unfair.
F. Sentencing.
Defendant was sentenced to a discretionary extended term of
imprisonment pursuant to N.J.S.A. 2C:44-3(a). That sentence was imposed after
A-3502-19 34 the court found the State established each of the elements of the extended -term
statute. During the pendency of this appeal, the United States Supreme Court in
Erlinger held that "the Fifth and Sixth Amendments generally guarantee a
defendant the right to have a unanimous jury find beyond a reasonable doubt
any fact that increases his exposure to punishment." 602 U.S. at 828. The Court
further held, "[v]irtually 'any fact' that 'increase[s] the prescribed range of
penalties to which a criminal defendant is exposed' must be resolved by a
unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea)."
Id. at 834 (second alteration in original) (quoting Apprendi v. New Jersey, 530
U.S. 466, 490 (2000)).
We recently held that in light of Erlinger, the holding in State v. Pierce,
188 N.J. 155 (2006), is abrogated and "a unanimous jury must find beyond a
reasonable doubt that all . . . of the [N.J.S.A. 2C:44-3(a)] factual predicates are
present, or the defendant must admit these predicates as part of a knowing and
voluntary waiver of the right to a jury trial with respect to extended-term
eligibility." Carlton, ___ N.J. Super. at ___ (slip op. at 22-23). We further
concluded that application of the holding in Erlinger to the persistent offender
statute, N.J.S.A. 2C:44-3, applies retroactively to pipeline cases. Id. at ___ (slip
op. at 20); see also Griffith v. Kentucky, 479 U.S. 314, 328 (1987) ("We
A-3502-19 35 therefore hold that a new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, pending on direct review or
not yet final, with no exception for cases in which the new rule constitutes a
'clear break' with the past.").
We also rejected the State's argument that the harmless constitutional error
doctrine applies to the pipeline cases to which Erlinger is retroactively applied.
Carlton, ___ N.J. Super. at ___ (slip op. at 60-65). We based that holding on
"the Erlinger majority's unambiguous rejection of the notion that overwhelming
evidence obviates the need to have a jury make the decision" that the elements
of an extended-term statute have been met. Id. (slip op. at 33). We see no reason
to depart from that holding, even where, as is the case here, the defendant did
not contest the State's argument that the elements of N.J.S.A. 2C:44-3(a) had
been satisfied.
We therefore afford the holding in Erlinger pipeline retroactivity to
defendant's direct appeal of his sentence. We vacate defendant's extended-term
sentence and remand for resentencing consistent with Erlinger and Carlton. If
the State seeks to impose an extended-term sentence on remand, the court shall,
in the absence of a knowing waiver of defendant's right to a jury trial, hold a
jury trial limited to the question of whether defendant is a persistent offender.
A-3502-19 36 See N.J.S.A. 2C:44-3(a). The State shall have the burden of proving, beyond a
reasonable doubt, the required persistent offender elements. A jury shall
determine whether defendant: was twenty-one years of age or older at the time
of committing the crime; "has been previously convicted on at least two separate
occasions of two crimes"; committed the earlier crimes "at different times"; was
"at least [eighteen] years of age" when he committed the prior crimes; and that
the latest of the prior convictions, or the last release from confinement,
whichever is later, was "within [ten] years of the date of the crime for which the
defendant is being sentenced." N.J.S.A. 2C:44-3(a).
Affirmed in part, vacated in part, and remanded for further proceedings
consistent with our opinion. We do not retain jurisdiction.
A-3502-19 37