STATE OF NEW JERSEY VS. KEITH R. EVANS (13-08-1082, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 6, 2018
• Docket: A-5238-15T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5238-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEITH R. EVANS,

Defendant-Appellant.

Submitted March 7, 2018 – Decided June 6, 2018

Before Judges Alvarez and Currier.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-08-1082.

Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Keith Evans was convicted of third-

degree unlawful possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); and third-degree possession with intent to distribute

heroin, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count three).1

The trial judge sentenced defendant to a mandatory extended term

as a repeat drug distributor, pursuant to N.J.S.A. 2C:43-6(f) and

2C:43-7, to eight years of imprisonment subject to four years of

parole ineligibility. Appropriate fines and penalties were also

imposed.

We glean the following facts and circumstances from the trial

record and, where relevant, the record of the pretrial suppression

motion. On April 9, 2013, Woodbridge Police Detective Matthew

Herbert observed a blue and black Dodge Charger with an obstructed

Ohio license plate and a missing or nonfunctional rear light.

Herbert, accompanied in the patrol car by a Detective Grogan,2

also observed the vehicle make a left turn without signaling. They

stopped the car; Herbert approached on the driver's side while his

partner approached the passenger's side.

Herbert asked Giardina, the driver, to provide his

credentials and step outside of the vehicle. Giardina's pupils

were dilated, he was stuttering, his hands were shaking, and he

1 Co-defendant Christopher Giardina was charged with one count of third-degree unlawful possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count two). He entered a guilty plea and was admitted into the pretrial intervention program. 2 Grogan's first name is not found in the record.

2 A-5238-15T3 had remnants of dried chewing tobacco encrusted around his mouth.

Giardina was also "blading" his body, which Herbert concluded was

his attempt to keep him away from the car. The officer asked

Giardina for the name of his passenger, which he denied knowing

other than "J." Giardina said that the men were on their way to

a McDonalds.

Herbert recalled that he

had recently received information from a confidential informant stating that an individual named -- referred to as Joker, whose real name is Keith Evans, and who is a 39-year old black male from Newark, travels to Woodbridge daily in order to distribute heroin. Also was advised that . . . Evans frequently has younger individuals from Woodbridge drive him around.

He received that intelligence information within a month of the

stop. The passenger, defendant, told Herbert when asked that he

was thirty-nine and from Newark. Defendant also stated the men

were looking for a pull-up bar. Herbert requested backup because

the informant had also claimed that defendant sometimes carried

weapons.

Herbert spoke to Giardina a second time, asking him for

consent to search the vehicle. He explained that if Giardina

refused, he would request a police canine to conduct a "sniff,"

and if the dog alerted to the vehicle, they would obtain a search

3 A-5238-15T3 warrant. Herbert explained that Giardina and defendant were free

to leave, but that the car would stay until the dog arrived.

Giardina asked to speak to Herbert behind the vehicle. Once

the men had moved to the back of the car, Giardina told the officer

that defendant had dropped heroin on the passenger's side when he

pulled over. Giardina did not know exactly how much heroin, but

thought it was four bundles, or forty bags. Herbert approached

defendant on the passenger's side and asked him to exit the

vehicle. When he asked defendant if he had heroin, defendant

responded with "heroin?"

Defendant invited Herbert to search him; he had $560——

consisting of three hundred-dollar bills, nine twenty-dollar

bills, six ten-dollar bills, and four five-dollar bills——along

with two cell phones. When a third officer arrived at the scene,

it was learned that defendant had an active Newark Municipal Court

warrant. Giardina agreed to Herbert's second request for consent

to search and signed a written consent form.

Herbert's initial search of the vehicle was unsuccessful. He

asked Giardina if he knew where defendant had put the heroin, and

Giardina responded that he must have thrown it out the window.

The officer asked Giardina to help him move the passenger seat

back in the car. While doing so, Giardina stomped his foot,

indicating there was something in the undercarriage. There,

4 A-5238-15T3 Herbert found a paper towel containing sixty-four bags or wax

folds of heroin stamped with the word "ozone." A third cell phone

was found in the vehicle, belonging to Giardina, along with an

empty bag of heroin, also stamped "ozone," and a cut straw.

Officers later found an April 9, 2013 text message on one of

defendant's cell phones received from a person identified as "Coco"

stating "I have some sales for you." The number for Coco matched

the phone number Giardina provided police following his arrest.

There was also an outgoing text message sent on April 7, 2013, to

a person identified only as "AJ," stating "Jump on that Ozone,

bro." A third text message sent on April 4 also referred to

"ozone." The judge excluded the April 4 message, since it was

somewhat remote from the day of the arrest. The other two,

however, were moved into evidence by the State.

At the suppression hearing, the judge found that during the

traffic stop, Giardina's appearance credibly alerted Herbert that

something was amiss. Once Giardina named his passenger as "J,"

the officer reasonably connected the name with the information he

had previously received. The judge noted that according to the

confidential informant, "J" needed someone to drive him because

he was visually impaired, as was defendant. Since the judge found

the officer credible, he also found Giardina's consent to have

been freely, knowingly, and voluntarily given. It was Giardina

5 A-5238-15T3 himself who drew Herbert's attention to the passenger side

undercarriage of the car where he recovered the paper towel

containing the heroin stamped ozone.

The judge ruled the April 9 text admissible because he

considered it "intrinsic to the criminal activity that allegedly

took place on that day." Although the phone was not registered

to defendant, it was found on his person. The text from Giardina

to the effect that he had "sales" for defendant was also admitted

as intrinsic to the charges. Applying the Cofield3 analysis, the

judge concluded that the probative value of the word "ozone" and

the dates of the messages were not outweighed by any potential for

prejudice. When the messages were admitted during the trial, the

court instructed the jury regarding prior bad acts,4 and reiterated

the instruction in the final charge.

The judge granted the State's application for defendant to

be sentenced as an extended-term offender because it was

defendant's fourth conviction for drug distribution. In

sentencing defendant, the judge found aggravating factors three,

six, and nine, and mitigating factor eleven. See N.J.S.A.

2C:44-1(a)(3); N.J.S.A. 2C:44-1(a)(6); N.J.S.A. 2C:44-1(a)(9);

3 State v. Cofield, 127 N.J. 328 (1992). 4 Model Jury Charges (Criminal), "Proof of Other Crimes, Wrongs, or Acts, (N.J.R.E. 404(b))" (rev. Sept. 12, 2016).

6 A-5238-15T3 N.J.S.A. 2C:44-1(b)(11). Defendant was the custodial parent of

his five children and was visually impaired, but those

circumstances recognized by mitigating factor eleven did not

outweigh the aggravating factors, given defendant's substantial

prior criminal history. The judge concluded that the aggravating

factors substantially outweighed the mitigating factor. He

properly merged the possession of heroin into the possession with

intent.

Now on appeal, defendant raises the following:

POINT I THE PHYSICAL EVIDENCE FROM THE WARRANTLESS AUTOMOBILE SEARCH ON APRIL 9 MUST BE SUPPRESSED BECAUSE THE POLICE HAD NO CONSTITUTIONALLY VALID REASONS TO STOP AND DETAIN THE CAR AND TO SEIZE ANYTHING FOUND INSIDE IT.

A. Automobile Stops Must Be Limited In Scope To The Purpose Of The Stop.

B. The Trial Court Erred Finding a Valid Consent Search.

POINT II MR. EVANS' APRIL 7 TEXT CONTAINED PREJUDICIAL N.J.R.E. 404b EVIDENCE THAT WAS IMPROPERLY SUBMITTED TO THE JURY AND DEPRIVED MR. EVANS OF HIS RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST., ART. I, PARS. 1, 10.

POINT III THE EIGHT-YEAR SENTENCE WITH A FOUR-YEAR PERIOD OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE.

7 A-5238-15T3 I.

In reviewing a motion to suppress, we defer to the factual

and credibility findings of the trial court, "so long as those

findings are supported by sufficient credible evidence in the

record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State

v. Elders, 192 N.J. 224, 243 (2007)). Deference is afforded

"because the 'findings of the trial judge . . . are substantially

influenced by his opportunity to hear and see the witnesses and

to have the "feel" of the case, which a reviewing court cannot

enjoy.'" State v. Reece, 222 N.J. 154, 166 (2015) (quoting State

v. Locurto, 157 N.J. 463, 471 (1999)). Appellate courts "should

disregard those findings only when a trial court's findings of

fact are clearly mistaken." State v. Hubbard, 222 N.J. 249 (2015)

(citing State v. Johnson, 42 N.J. 146, 161 (1964)); see also State

v. Best, 403 N.J. Super. 428, 434 (App. Div. 2008) (quoting Elders,

192 N.J. at 244) (reasoning that a motion court's findings may be

disturbed only when "they are so clearly mistaken 'that the

interests of justice demand intervention and correction'"). The

legal conclusions of the trial court are subject to de novo review.

Hubbard, 222 N.J. at 263 (citing State v. Gandhi, 201 N.J. 161,

176 (2010)).

The Fourth Amendment of the United States Constitution and

Article I, Paragraph 7 of the New Jersey Constitution protect

8 A-5238-15T3 individuals from unreasonable searches and seizures. U.S. Const.

amend. IV; N.J. Const. art. I, ¶ 7. "There is a constitutional

preference for" law enforcement officers to obtain a warrant from

a neutral magistrate before conducting a search or seizure. State

v. Pineiro, 181 N.J. 13, 19 (2004) (citing State v. Demeter, 124

N.J. 374, 381 (1991)); State v. Ravotto, 169 N.J. 227, 236 (2001).

Exceptions to a search or seizure conducted without a warrant

include an investigatory stop, a search incident to arrest, an

automobile search, and a search conducted pursuant to consent.

State v. Coles, 218 N.J. 322, 342 (2014); State v. Oyenusi, 387

N.J. Super. 146, 153 (App. Div. 2006) (citing Chimel v. Cal., 395

U.S. 752 (1969)); State v. Witt, 223 N.J. 409, 422 (2015); State

v. Domicz, 188 N.J. 285, 305 (2006).

Defendant now challenges the admissibility of the evidence

seized because the search exceeded the purpose for the traffic

stop. We find this argument to be so lacking in merit as to

warrant little discussion in a written opinion. R. 2:11-3(e)(2).

Police ordinarily stop motorists for driving infractions.

If, during the stop, the circumstances indicate some other

criminality is afoot and the officers have some lawful basis to

proceed, like the consent in this case, they may lawfully

investigate.

9 A-5238-15T3 Defendant also challenges the validity of the search

conducted once Giardina consented. This claim too lacks merit.

The judge found Herbert's testimony credible. Once stopped,

Herbert's description of Giardina's appearance, conduct, and his

identification of defendant as "J," gave rise to a lawful basis

to request a consent to search.

A consent to search is a well-recognized exception to the

warrant requirement. Domicz, 188 N.J. at 305. Consent must be

voluntarily given and cannot "be coerced, by explicit or implicit

means, by implied threat[,] or covert force." Schneckloth v.

Bustamonte, 412 U.S. 218, 228 (1973). The threshold issue where

defendants later contest the validity of a search based on consent

is "whether a person has knowingly waived his right to refuse to

consent to the search." Domicz, 188 N.J. at 308 (citation

omitted). The burden is on the State to prove that consent was

voluntary. State v. Johnson, 68 N.J. 349, 354 (1975).

To determine if consent was coerced, the court must examine

the "surrounding circumstances." Schneckloth, 412 U.S. at 229.

"Voluntariness is a question of fact to be determined from all the

circumstances" surrounding the stop, consent, and search. Id. at

248-49. An essential element in determining whether consent is

voluntary is proof that the individual was aware of the right to

refuse consent to search. Johnson, 68 N.J. at 353-54. Herbert's

10 A-5238-15T3 testimony unquestionably established that the consent to search

was voluntary.

Defendant attacks the consent on the basis that Giardina was

in custody. Again, we do not agree.

Herbert told Giardina that while the dog was being brought

to the scene, he and defendant were free to leave. That

uncontested statement establishes that Giardina was not in

custody. Giardina's cooperation and willing execution of the

consent to search is further corroborated by the fact that he

actually directed the officer to the drugs.

II.

We give great deference to a trial court's determination on

the admissibility of other crimes evidence. State v. Goodman, 415

N.J. Super. 210, 228 (App. Div. 2010) (citing State v. Foglia, 415

N.J. Super. 106, 122 (App. Div. 2010)). There must be a "clear

error of judgment" before we overturn the trial court's decision.

State v. Castagna, 400 N.J. Super. 164, 183 (App. Div. 2008).

Pursuant to N.J.R.E. 404(b),

evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity[,] or absence of mistake or accident when such matters are relevant to a material issue in dispute.

11 A-5238-15T3 "[T]he underlying danger of admitting other-crime [or bad-

act] evidence is that the jury may convict the defendant because

he is a bad person in general." State v. Skinner, 218 N.J. 496,

514 (2014) (citation omitted) (quoting Cofield, 127 N.J. at 336).

In Cofield, the Court established a four-part test to avoid the

over-use of other crimes evidence pursuant to N.J.R.E. 404(b). 127

N.J. at 338. The four-part Cofield test requires:

1. The evidence of the other crime must be admissible as relevant to a material issue; 2. It must be similar in kind and reasonably close in time to the offense charged; 3. The evidence of the other crime must be clear and convincing; and 4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[Ibid. (quoting Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989) (footnote omitted)).]

Defendant challenges the admission in evidence of only the

April 7, 2013 text message. This was the outgoing text message

sent to "AJ" which said, "Jump on that Ozone, bro."

The judge found that the text message was admissible because

it was so uniquely relevant to the material issue of defendant's

possession and possession with intent. It connected the quantity

of drugs, defendant's possession, the cash on his person, and the

stamp on the bags. The cell phone with the incriminating message

12 A-5238-15T3 was found on defendant's person when he was searched. The fourth

element of the Cofield test requires a balancing of prejudice

versus probative value. The risk of undue prejudice must not

outweigh the probative value. See State v. Rose, 206 N.J. 141,

161-62 (2011). The probative value of the evidence, establishing

ownership, was not outweighed by the apparent prejudice and was

properly admitted. Additionally, the judge instructed the jury

as to the limited purpose for admission of the text message, both

when it was admitted and in the final jury charge. We assume that

jurors follow instructions. State v. Witte, 13 N.J. 598, 612

(1953).

III.

We review sentencing determinations deferentially. State v.

Grate, 220 N.J. 317, 337 (2015); State v. Case, 220 N.J. 49, 65

(2014). We begin with the fact that defendant's extended-term

sentence was mandatory. He was convicted of a third-degree

offense, which means that he could be sentenced within the second-

degree range. This was defendant's fourth conviction for drug

distribution. The judge had the discretion to sentence defendant

to up to ten years, half of which could have been made parole-

ineligible time. The judge carefully analyzed the aggravating

factors and the sole mitigating factor, and properly identified

and balanced the statutory considerations which were "supported

13 A-5238-15T3 by competent credible evidence in the record." Grate, 220 N.J.

at 337 (citing State v. Lawless, 214 N.J. 594, 606 (2013)). This

sentence does not shock our judicial conscience. See State v.

Roth, 95 N.J. 334, 364 (1984).

We do not agree that the judge did not accord sufficient

weight to mitigating factor eleven——the traumatic effect the

sentence would have on defendant's children and defendant's vision

impairment. The judge did not ignore those considerations. He

merely balanced them against defendant's substantial prior history

of drug distribution and the other aggravating factors, and

therefore engaged in a proper analysis before making his decision.

Affirmed.

14 A-5238-15T3