NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2137-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROE N. WRIGHT, a/k/a ROENINO WRIGHT,
Defendant-Appellant. _______________________________
Submitted May 8, 2018 – Decided June 14, 2018
Before Judges Yannotti and Carroll.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 15-04-0234.
Joseph E. Krakora, Public Defender, attorney for appellant (Margaret McLane, Assistant Deputy Public Defender, of counsel and on the briefs).
John T. Lenahan, Salem County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Roe N. Wright was tried before a jury and found
guilty of second-degree possession of a firearm without a permit,
contrary to N.J.S.A. 2C:39-5(b). Defendant appeals from the
judgment of conviction dated September 27, 2016. We affirm.
I.
Defendant was charged under Salem County Indictment No. 15-
04-0234 with possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-4(a), and possession of a firearm without first
having obtained a permit to carry same, N.J.S.A. 2C:39-5(b). Ojuwan
Jenerette also was charged under the indictment with various drug
offenses, but defendant's charges were severed for trial.
Defendant filed motions to suppress the statement he provided to
the law enforcement officers and the handgun.
At the hearing on defendant's motion to suppress his
statement, James Gillespie, an investigator in the Salem County
Prosecutor's Office (SCPO), testified that in the early morning
hours of January 23, 2015, he and police officers from the Salem
City Police Department (SCPD) entered a room at a motor lodge to
execute a search warrant. Defendant, Jenerette, J.P., and J.P.'s
two children were in the room and sleeping.1 Gillespie handcuffed
1 We refer to J.P. by her initials to protect her privacy and the privacy of her children.
2 A-2137-16T3 and detained the adults. Gillespie said defendant did not appear
or smell intoxicated.
Gillespie placed defendant in handcuffs and searched him.
Gillespie also "searched the area where [he] found [defendant],"
which included a lounge chair that defendant had been sleeping on.
Gillespie found "a revolver near the edge of the chair," "[u]nder
the cushion on the left-hand side." Gillespie said defendant could
easily have reached the revolver. In the room, the officers also
found marijuana and cocaine. At the scene, Jenerette admitted the
drugs in the room were his, but no one admitted to ownership of
the firearm.
Defendant, Jenerette, and J.P. were transported to the SCPD.
While Gillespie was fingerprinting and photographing the suspects,
"they asked collectively what they were being charged with."
Gillespie explained that because everything was found in the common
area of the room, they were all going to be charged with narcotics
and weapons offenses.
Gillespie told the suspects that if anyone wanted to take
ownership of either the drugs or the gun, he would take a recorded
statement from that person and only that person would be charged.
Jenerette provided a statement indicating that he owned the drugs,
and defendant provided a statement admitting to ownership of the
gun. On cross-examination, Gillespie denied that he told defendant
3 A-2137-16T3 that if J.P. was charged with possession of the weapon, she would
likely lose custody of her children.
Defendant testified that on the morning of January 23, 2015,
he was at the motor lodge with Jenerette, J.P., and J.P.'s
children. He claimed he had been drinking liquor from about 7:00
p.m. on the previous evening until about 1:00 a.m. of the following
day. Defendant said he arrived at the room around 3:00 a.m., went
to the bathroom, "jumped in the chair," and fell asleep. He stated
that he woke up when the police "raided" the room and said they
had a search warrant for Jenerette.
Defendant further testified that he heard the officers say
they found a gun. The officers said Jenerette had admitted
ownership of the drugs. The officers transported defendant,
Jenerette, and J.P. to the police station and said they were going
to charge all of them because no one had admitted ownership of the
gun. Defendant testified that he told the officers it was not his
gun.
He further testified that one of the officers stated that if
J.P. was charged "she will lose her kids." The officer asked
defendant if he wanted that to happen. Defendant said he did not
want that to happen because he had been in the custody of the
4 A-2137-16T3 Division of Youth and Family Services (Division)2 for thirteen
years and he knew "how that felt." He decided to claim ownership
of the gun.
The trial judge determined that defendant's statement would
not be suppressed. The judge noted that he had listened to the
audiotape of the statement, which was admitted into evidence. As
indicated on the tape, defendant had been informed of his Miranda
rights,3 and he indicated that he understood his rights. Defendant
then signed the form waiving his Miranda rights. The judge found
that there was no indication that defendant did not know what he
was doing at that time.
The judge also noted that Gillespie had testified he did not
smell any liquor and there was nothing to indicate that defendant
was intoxicated. The judge stated that defendant claimed he took
responsibility for the gun so that J.P. would not be charged.
According to the judge, this indicated that defendant was someone
who knew exactly what he was doing. According to the judge,
defendant was willing to "manipulate the system" to obtain "a
certain goal."
2 The Division is now known as the Division of Child Protection and Permanency. 3 Miranda v. Arizona, 384 U.S. 436 (1966).
5 A-2137-16T3 The judge found that Gillespie's testimony was more credible
than defendant's testimony. The judge stated that he did not
believe defendant, noting that he had "much to gain" from
presenting testimony that was not true. The judge found, however,
that even if defendant had been told J.P.'s children would "end
up in" the Division's custody, that did not render his statement
involuntary.
The judge also considered defendant's age, education, and
intelligence, and noted that there was no evidence defendant did
not know what was going on when he provided the statement. The
judge gave slight weight to the fact that defendant had a prior
criminal record. The judge pointed out that defendant had been
informed of his Miranda rights. The judge observed that defendant
had been through the criminal justice system before as a juvenile
and adult, and he "understood what was happening" when he gave his
statement.
The judge further found that defendant had not been detained
for a lengthy period of time before he gave his statement, and the
questioning was neither repetitious nor prolonged. The judge noted
there was no evidence defendant had been punished physically or
was exhausted. The judge concluded, based on the totality of the
circumstances, that the State had proven beyond a reasonable doubt
6 A-2137-16T3 that defendant knowingly and voluntarily gave his statement to the
police.
Thereafter, the trial judge conducted an evidentiary hearing
on defendant's motion to suppress the handgun. At that hearing,
Richard Ware, an investigator in the SCPO, testified about the
execution of the search warrant at the motor lodge on January 23,
2015. Defendant also testified.
The judge denied that motion, finding that Ware's testimony
was credible. The judge found that the officers knocked on the
door to the room and announced their presence. When no one answered
the door, the officers breached the door and entered the room. The
judge found that the seizure of defendant was "proper and
necessary" in order to ensure the officers' safety and the
integrity of the scene, and to ensure that any contraband was not
damaged or destroyed.
The judge determined that the initial seizure was not an
arrest. The judge found that the search was reasonable and, while
the warrant authorized a search for CDS, the officers were entitled
to look anywhere CDS could be located. The judge found that
Gillespie properly recovered the handgun, and at that point, the
officers had probable cause to arrest defendant.
The judge noted that the gun was found in the cushion of the
chair where defendant had been sleeping. Defendant was the only
7 A-2137-16T3 person with access to the gun, and there were no facts indicating
that the gun belonged to someone else.
The court then granted the State's motion to dismiss the
count in which defendant was charged with possession of a weapon
for an unlawful purpose. Defendant was later tried before a jury
on the remaining charge, unlawful possession of a weapon. Gillespie
and Ware testified for the State, and defendant testified in his
own defense. The jury found defendant guilty of the charge.
Thereafter, the judge sentenced defendant to seven years of
incarceration, with a forty-two-month period of parole
ineligibility. This appeal followed.
On appeal, defendant argues:
POINT I THE TRIAL COURT ERRONEOUSLY FAILED TO SUPPRESS DEFENDANT'S STATEMENT.
POINT II THE COURT'S EXCLUSION OF ANY TESTIMONY ABOUT DEFENDANT'S EXPERIENCE WITH [THE DIVISION] VIOLATED DEFENDANT'S CONSITUTIONAL RIGHT TO PRESENT A DEFENSE AND REQUIRES REVERSAL OF HIS CONVICTION.
POINT III THE SEVEN-YEAR SENTENCE WITH [FORTY-TWO] MONTHS OF PAROLE INELIGIBLITY IS MANIFESTLY EXCESSIVE.
II.
As noted, defendant contends the trial judge erred by failing
to suppress his statement. He argues that the officer conducted a
8 A-2137-16T3 "two-stage interrogation." According to defendant, the officer
first conducted an unrecorded custodial interrogation without
informing him of his Miranda rights. Defendant contends that after
reading the Miranda warnings, the officer then conducted a second,
recorded interrogation, but failed to inform him that his prior
incriminating statement could not be used against him. Defendant
contends the trial court failed to address this "two-staged
interrogation." He argues that this "two-stage interrogation
technique" led to the recorded incriminating statement, which
should have been suppressed.
We note that defendant never argued in the trial court that
his statement should be suppressed because the officer allegedly
used a "two-stage interrogation" technique. We conclude, however,
that the trial court correctly decided to deny the suppression
motion.
In reviewing a trial court's ruling on a motion to suppress,
we must defer to the court's factual findings provided they are
supported by sufficient credible evidence in the record. State v.
Scriven, 226 N.J. 20, 32-33 (2016) (citing State v. Elders, 192
N.J. 224, 243-44 (2007)). Our deference to the trial court's
factual findings is especially appropriate when those findings
"are substantially influenced by [an] opportunity to hear and see
the witnesses and to have the 'feel' of the case, which a reviewing
9 A-2137-16T3 court cannot enjoy." State v. Gamble, 218 N.J. 412, 424-25 (2014)
(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). However, we
owe no deference to the trial court's ruling on an issue of law,
which we review de novo. State v. Watts, 223 N.J. 503, 516 (2015).
"[T]o safeguard a suspect's Fifth Amendment right against
self-incrimination, confessions obtained during custodial
interrogations are inadmissible as evidence unless the defendant
has been advised of his or her constitutional rights." State v.
Hubbard, 222 N.J. 249, 265 (2015) (quoting Miranda, 384 U.S. at
492). The term "custodial interrogation" is defined as
"questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom
of action in any significant way." Id. at 265-66 (quoting Miranda,
384 U.S. at 444). "[I]f the questioning is simply part of an
investigation and is not targeted at the individual because she
or he is a suspect, the rights provided by Miranda are not
implicated." Id. at 266 (quoting State v. Timmendequas, 161 N.J.
515, 614-15 (1999)).
Miranda's protections extend only to words or actions of law
enforcement officers "reasonably likely to elicit an incriminating
response." Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
"[B]ooking procedures and the routine questions associated
therewith are ministerial in nature and beyond the right to remain
10 A-2137-16T3 silent. Even unexpected incriminating statements made by in-
custody defendants in response to non-investigative questions by
the police without prior Miranda warnings are admissible." State
v. M.L., 253 N.J. Super. 13, 21 (App. Div. 1991) (citations
omitted).
In State v. Mallozzi, 246 N.J. Super. 509, 511 (App. Div.
1991), the defendant was arrested and informed of his pending
charges during the booking process, which included fingerprinting
and photographing. Defendant then "made certain statements which
were . . . incriminating" before Miranda warnings were read to
him. Ibid. The trial court denied the defendant's motion to
suppress the statements that he made during the booking process.
Id. at 513. On appeal, we held "there was clearly no questioning,
nor can it be fairly concluded that [the] defendant was subjected
to the functional equivalent of questioning." Id. at 516.
We further explained that "informing [the] defendant of the
charges against him was not designed or done to elicit any type
of response from defendant and thus places [the officer's] actions
outside the Innis definition of 'interrogation.'" Ibid. Rather,
the officer "was merely providing [the] defendant information to
which he was otherwise entitled." Ibid. Accordingly, we affirmed
the trial judge's denial of the defendant's motion to suppress the
statements that he made while being processed. Id. at 518.
11 A-2137-16T3 As was the case in Mallozzi, Gillespie spoke to defendant and
the other two suspects while he was processing them at the police
station. He stated that the person who admitted ownership of the
gun would be the only person charged with a weapons offense. This
statement was not, however, part of an interrogation, nor was it
designed to elicit an incriminating response from defendant.
Defendant said the gun was his, he was informed of his Miranda
rights, and he provided a recorded statement.
We are convinced there is sufficient credible evidence in the
record supporting the trial judge's findings of fact. We also
conclude that the judge's decision to deny defendant's motion to
suppress his statement was legally correct.
III.
Next, defendant argues that the trial judge erred by
precluding him from testifying about his experience while in the
Division's custody. He contends the judge's ruling denied him his
constitutional right to present a defense. We disagree.
A trial court's evidentiary rulings are "entitled to
deference absent a showing of an abuse of discretion, i.e., there
has been a clear error of judgment." State v. Marrero, 148 N.J.
469, 484 (1997); see also Verdicchio v. Ricca, 179 N.J. 1, 34
(2004) (holding that admissibility of evidence falls within the
broad discretion of the trial judge). The court's evidentiary
12 A-2137-16T3 ruling must be upheld on appeal "unless it can be shown that the
trial court palpably abused its discretion, that is, that its
finding was so wide of the mark that a manifest denial of justice
resulted." State v. Carter, 91 N.J. 86, 106 (1982).
Like any other evidence presented at trial, a witness's
testimony must be relevant; that is, it must "hav[e] a tendency
in reason to prove or disprove any fact of consequence to the
determination of the action." N.J.R.E. 401. Once deemed relevant,
the evidence is admissible "[e]xcept as otherwise provided in [the
evidence] rules or by law." N.J.R.E. 402. 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." Brenman v. Demello, 191 N.J. 18, 30 (2007)
(quoting N.J.R.E. 403).
During direct examination, defendant's attorney asked him why
he had claimed possession of the gun. Defendant said he did so to
prevent the Division from taking custody of J.P.'s children. He
explained, "I was in [the Division] and I didn't want the kids to
be in the system. I [was] in [the Division] from one to [thirteen]
years old. I was sexually abused, physically abused, starved and
separated from my brother."
13 A-2137-16T3 The assistant prosecutor objected to this testimony and
requested to be heard outside the presence of the jury. At sidebar,
the prosecutor asserted that defendant's testimony was "getting a
little out of hand." The prosecutor noted that defendant had
testified that he was sexually abused while in the Division's
care, and the State had no way "to corroborate any of this
information." The prosecutor argued that defendant's testimony
regarding his experience with the Division should be excluded
because it was clearly designed to elicit the sympathy of the
jury, and the State could not challenge defendant's assertions.
Defense counsel responded by asserting that the testimony was
addressed to defendant's "motivation as to why he claimed
[ownership of] the [gun] . . . , [and] the[] jury needs to know
why it is that he would confess to owning the gun if it wasn't
true." The judge decided to strike defendant's comments from the
record and instructed the jurors that they were not to consider
the comments during their deliberations.
Defense counsel then continued his direct examination of
defendant:
[DEFENSE COUNSEL]: Okay. So how long were you in [the Division's] care?
[DEFENDANT]: Thirteen years.
[DEFENSE COUNSEL]: Thirteen years? And how would you evaluate your experience while in
14 A-2137-16T3 [the Division's] care? Was it positive or negative?
[DEFENDANT]: It was the worst experience I ever had. Worst.
[THE STATE]: Objection
THE COURT: I'm going to overrule the objection. I find that that falls outside of the lines of what my ruling was.
[DEFENSE COUNSEL]: Thank you, Judge.
. . . .
[DEFENSE COUNSEL]: So I'm sorry; you said that your experience was?
[DEFENDANT]: The worst experience I ever had.
[DEFENSE COUNSEL]: Could you speak up a little bit, please?
[DEFENDANT]: It was the worst experience I ever had.
[DEFENSE COUNSEL]: And what you're characterizing as the worst experience you ever had, this endured for how long?
We are convinced the judge did not mistakenly exercise his
discretion by limiting defendant in testifying about his
experiences while in the Division's care. As noted, defendant
testified that he accepted responsibility for the gun because he
was concerned that if J.P. was charged with possession of the gun,
the Division might take custody of her children. The judge allowed
15 A-2137-16T3 defendant to testify that he had been in the Division's care and
state three times that it was "the worst experience" he ever had.
The judge properly exercised his authority under N.J.R.E. 403
by precluding defendant from testifying that he had been sexually
and physically abused, starved, and separated from his brother
while in the Division's care. Detailed testimony about defendant's
experience with the Division had little probative value. Moreover,
the probative value of this testimony was substantially outweighed
by the risk of undue prejudice to the State, and the likelihood
that the jury would be misled and confused by the testimony.
Even if the court erred by limiting the testimony, the error
is not grounds for reversal because it was harmless. State v.
J.R., 227 N.J. 393, 417 (2017) (quoting State v. Macon, 57 N.J.
325, 337-38 (1971)). "Convictions after a fair trial, based on
strong evidence proving guilt beyond a reasonable doubt, should
not be reversed because of a technical or evidentiary error that
cannot have truly prejudiced the defendant or affected the end
result." State v. W.B., 205 N.J. 588, 614 (2011).
Here, defendant explained to the jury three times that his
time under DYFS's care was the "worst experience" of his life.
Furthermore, during closing arguments, defense counsel referenced
defendant's experience while in the Division's care. Counsel
argued that defendant only took responsibility for the gun because
16 A-2137-16T3 he "feared greatly the prospect" that J.P.'s children would be
taken away and "suffer the same fate" that he suffered.
The jury nevertheless found that the State had proven beyond
a reasonable doubt that defendant unlawfully possessed the weapon.
In light of the strong if not overwhelming evidence of defendant's
guilt, it is unlikely the jury would have reached a different
verdict if defendant had been allowed to provide more details
concerning his experiences under the Division's care. We therefore
conclude that even if the court's evidentiary ruling was erroneous,
defendant was not prejudiced and the error had no effect upon the
jury's ultimate determination.
IV.
Defendant further argues that his sentence is manifestly
excessive. As noted previously, the judge sentenced defendant to
a seven-year prison term, with forty-two months of parole
ineligibility.
When reviewing a trial court's sentencing determination, we
apply a deferential standard of review. State v. Fuentes, 217 N.J.
57, 70 (2014). We must affirm the sentence if (1) the trial court
followed the sentencing guidelines; (2) the court's findings of
aggravating and mitigating factors were based on competent and
credible evidence in the record; and (3) the resulting sentence
is not clearly unreasonable so as to "shock the judicial
17 A-2137-16T3 conscience." Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).
Here, the sentencing court found aggravating factors three,
N.J.S.A. 2C:44-1(a)(3) (risk that defendant will reoffend); six,
N.J.S.A. 2C:44-1(a)(6) (defendant's prior criminal record); and
nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others
from violating the law). The judge found no mitigating factors.
Regarding aggravating factor three, the judge stated that
although defendant was young, he already had one conviction for
which he was on probation when he committed the instant offense.
The judge reasoned that this was "certainly an indicator of someone
that's going to commit another offense." With regard to aggravating
factor six, the judge noted that defendant had convictions for
"obstruction, [defiant] trespassing, and ha[d] a pending charge"
for contempt at the time of his sentencing. Defendant also had a
prior indictable conviction for resisting arrest for which he
violated probation and received jail time. Regarding aggravating
factor nine, the judge found that there was a "need to deter this
defendant and others from violating the law." The judge addressed
and determined that no mitigating factors applied.
On appeal, defendant argues that the judge erred by failing
to find mitigating factors one, N.J.S.A. 2C:44-1(b)(1)
(defendant's conduct did not cause or threaten serious harm); two,
18 A-2137-16T3 N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his
conduct would cause or threaten serious harm); and seven, N.J.S.A.
2C:44-1(b)(7) (defendant has no prior history of delinquency or
criminal activity).
Defendant asserts that although he was convicted of
possession of a handgun, he did not cause or intend to cause any
harm. He states he does not have an extensive prior record, and
this is his first prison sentence. He argues that any sentence
longer than the minimum five years is "unnecessary."
Here, the judge found that mitigating factors one and two did
not apply. The judge stated that "[t]he very nature of possession
of a handgun is the contemplation [of] or the threat of serious
harm." The judge also found that mitigating factor seven was not
applicable because defendant has a prior history of delinquency
and criminal activity.
Thus, the judge followed the sentencing guidelines, and there
is sufficient credible evidence in the record to support the
court's findings regarding the aggravating and mitigating factors.
The seven-year sentence, with forty-two months of parole
ineligibility, is reasonable and does not shock the judicial
conscience.
Affirmed.
19 A-2137-16T3