STATE OF NEW JERSEY VS. WILLIAM A. MARSHALL (11-06-0593, MERCER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 10, 2017
• Docket: A-2974-15T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2974-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM A. MARSHALL, a/k/a BILL A. BERRY, DOLLAR BI MARSHALL,

Defendant-Appellant.

_________________________________________

Submitted April 25, 2017 – Decided May 10, 2017

Before Judges Leone and Moynihan.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-06-0593.

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

Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Christopher Malikschmitt, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant appeals the denial of his motion to suppress

evidence and the trial judge's ruling that an unavailable witness's

statement was admissible under N.J.R.E. 803(c)(1). Following the

trial court's rulings, defendant pleaded to an open indictment

charging him with second degree certain persons not to possess a

firearm, N.J.S.A. 2C:39-7b. The State had previously moved to

dismiss the other six counts of the indictment, all of which

related to the alleged armed robbery of the victim. Defendant

preserved his right to appeal the trial judge's decisions regarding

the motion to suppress and the evidentiary ruling.

On appeal, defendant raises the following arguments:

I. THE TRIAL COURT ERRED IN DENYING THE SUPPRESSION MOTION BECAUSE THE OFFICER'S WARRANTLESS ENTRY INTO DEFENDANT'S BACKYARD WAS UNCONSTITUTIONAL.

II. THE PRETRIAL RULING ALLOWING THE ADMISSION OF TESTIMONIAL HEARSAY IDENTIFYING THE DEFENDANT MUST BE REVERSED. THE ADMISSION OF THIS HEARSAY AT TRIAL WOULD HAVE VIOLATED THE DEFENDANT'S RIGHTS TO CONFRONT WITNESSES AND TO DUE PROCESS OF LAW.

After reviewing the record in light of the defendant's

contentions, we affirm.

I. The Suppression Motion

Our review of the trial court's denial of a motion to

suppress is limited. See State v. Handy, 206 N.J. 39, 44 (2011).

"We must uphold a trial court's factual findings at a motion to

2 A-2974-15T2 suppress hearing when they are supported by sufficient credible

evidence in the record." State v. Hathaway, 222 N.J. 453, 467

(2015). We will "not disturb the trial court's findings merely

because '[we] might have reached a different conclusion' . . . or

because 'the trial court decided all evidence or inference

conflicts in favor of one side' in a close case." State v. Elders,

192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146,

162 (1964)). Only when we are "thoroughly satisfied that the

finding is clearly a mistaken one and so plainly unwarranted that

the interests of justice demand intervention and correction [will

we] appraise the record as if [we] were deciding the matter at

inception and make [our] own findings and conclusions." Johnson,

supra, 42 N.J. at 162.

We owe no deference to a trial court's "interpretation of the

law"; such issues are reviewed de novo. Hathaway, supra, 222 N.J.

at 467. "A trial court's interpretation of the law . . . and the

consequences that flow from established facts are not entitled to

any special deference." State v. Lamb, 218 N.J. 300, 313 (2014).

The trial judge found the following facts after two separate

3 A-2974-15T2 hearings on the motion to suppress, and one on the evidentiary

issue.1

Officer Czajkowski responded to the area of Southard Street

and New Willow Street2 in Trenton after receiving a dispatch that

a black male wearing a blue jacket was walking down New Willow

Street. The man was reportedly in possession of a gun.

From his marked patrol vehicle, he saw a man matching the

description jump over a fence into the backyard of a house on New

Willow. That man was later identified as the defendant. The

officer had an unobstructed, well-lit view. He saw the defendant

briefly bend over to the ground and then run toward New Willow.

As the officer turned his vehicle onto New Willow, he saw a

man on a cell phone running up New Willow, pointing to residences

on the street. The man was still on the phone with the 911

dispatcher, reporting that he was the victim of a robbery. His 911

call was the source of the original dispatch of the officer. When

1 The judge's findings of fact on April 30, 2013, related only to the motion to suppress. He found defendant was a trespasser on the property in question. On June 11, 2013, the judge took testimony relating to the motion to suppress and the evidentiary issue. He made additional findings, including that defendant lived at the property; he was not a trespasser.

2 New Willow Street was, at times, referred to as North Willow in the proceedings below. We refer to the street as New Willow, as did the responding officer during his testimony.

4 A-2974-15T2 the officer pulled his vehicle up to the man on the cell phone,

the officer looked in the direction to which the man was pointing

and saw the defendant next to another house on New Willow. The

man on the cell phone told the officer, "[h]e's right fucking

there."

Only then did the officer exit his vehicle, approach the

defendant and place him in custody. He then went to the grassy

area where he had seen the defendant bend toward the ground.

There, he saw a gun. The gun was subsequently seized. Defendant's

certain persons conviction stems from the possession of that gun.

The trial judge found that defendant had no expectation of

privacy in the location where the gun was found and denied his

motion to suppress.

A. Curtilage

Defendant claims the grassy area was protected curtilage and

that the officer had no right to enter that location where the gun

with which defendant is charged was found.

"Curtilage is land adjacent to a home and may include

walkways, driveways, and porches." State v. Domicz, 188 N.J. 285,

302 (2006) (citing State v. Johnson, 171 N.J. 192, 208-09 (2002)).

The extent to which curtilage is protected against unreasonable

searches and seizures depends on the well-known factors set forth

by the Unites States Supreme Court in United States v. Dunn, 480

5 A-2974-15T2 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334-35

(1987):

[T]he proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

New Jersey courts have utilized these same factors in

determining the propriety of a search of curtilage. See Domicz,

supra, 188 N.J. at 302; Johnson, supra, 171 N.J. at 208-09; State

v. Lane, 393 N.J. Super. 132, 145 (App. Div.), certif. denied, 192

N.J. 600 (2007).

The trial court's detailed findings of fact, considering the

testimony and photographs adduced at the testimonial suppression

hearing, supported its conclusion that, although he lived in a

house adjacent to the grassy area where the gun was found,

defendant did not have a legitimate expectation of privacy in that

area. The grassy area was primarily used for parking, but also

had other potential recreational uses. The area was accessible

from six homes located on New Willow Street. The trial judge

found that, notwithstanding a concrete wall that ran along two

sides of the property, no barrier prevented "any resident of any

of six homes on New Willow from parking anywhere in that grassy

area, nor is there any barrier that prevents individuals walking

6 A-2974-15T2 from New Willow back into that grassy area." Anyone could have

accessed the area by walking between the houses on New Willow

Street using what the judge described as a "common walkway." The

judge also found that the grassy area was accessible, without any

impediment, from Southard Street.

No user of curtilage that can be accessed by multiple persons

can have a reasonable expectation of privacy in that area. Johnson,

supra, 171 N.J. at 209 (citing State v. Ball, 219 N.J. Super. 501,

506-07 (App. Div. 1987)).

Furthermore, the judge found that the officer was in his

patrol vehicle, with a clear line of sight unobstructed by the

wall, when he viewed defendant jump over the fence, enter the

yard, and bend to the ground. Defendant had no reasonable

expectation of privacy in the area that was observable from a

public place. Lane, supra, 393 N.J. Super. at 146; State v.

Gibson, 318 N.J. Super. 1, 10-11 (App. Div. 1999).

B. Exigent Circumstances

The officer's entry on the property was also justified by the

exigency of the circumstances.

A search without a warrant is presumptively invalid unless

it "falls within one of the few well-delineated exceptions to the

warrant requirement." Elders, supra, 192 N.J. at 246 (citations

omitted). One of the exceptions is the emergency aid doctrine,

7 A-2974-15T2 which is a "species of exigent circumstances." Hathaway, supra,

222 N.J. at 468-69 (quoting United States v. Martins, 413 F.3d

139, 147 (1st Cir. 2005)).

The Supreme Court, in Hathaway, set the parameters necessary

to endorse an emergency aid search:

To justify a warrantless search under the emergency-aid doctrine, the State must satisfy a two-prong test. State v. Edmonds, 211 N.J. 117, 132 (2012). The State has the burden to show that "(1) the officer had an objectively reasonable basis to believe that an emergency require[d] that he provide immediate assistance to protect or preserve life, or to prevent serious injury and (2) there was a reasonable nexus between the emergency and the area or places to be searched." Ibid. (internal quotation marks omitted). "The emergency aid doctrine only requires that public safety officials possess an objectively reasonable basis to believe - not certitude - that there is a danger and need for prompt action." State v. Frankel, 179 N.J. 586 (2004). The reasonableness of a decision to act in response to a perceived danger in real time does not depend on whether it is later determined that the danger actually existed.

[Id. at 470.]

The officer's actions here certainly met the two prong test.

"Police officers oftentimes must rely on information provided

by others in assessing whether there is probable cause to believe

a crime has been committed or whether there is an objectively

reasonable basis to believe an ongoing emergency threatens public

safety." Id. at 470-71. "Ordinary citizen[s]" who report crimes,

8 A-2974-15T2 either in person or by calling 911, have been deemed reliable

sources whose information can establish the reasonable basis to

believe an emergency required the immediate action of law

enforcement. Id. at 471-74, 477.

Here the source of the information was the person reporting

he was the victim of a robbery. He was both an eyewitness who had

direct contact with the officer, and a 911 caller. He reported

that defendant had a gun, and told the officer where the defendant

was located. This was a rapidly unfolding event. Once the officer

arrested defendant and discovered he did not have a gun on his

person, the danger to be prevented was obvious. Id. at 476. The

gun posed a threat to anyone who found it on the ground. See

State v. Wright, 213 N.J. Super. 291, 295 (App. Div. 1986)

(recognizing that the potential danger posed to public safety by

weapons presents a sufficient exigency to justify a warrantless

search). That information provided the reasonable basis to satisfy

the first prong of Hathaway. The officer would have been remiss

if he failed to enter and search the grassy area where he had seen

defendant bend to the ground.

The officer observed defendant jump over the fence, bend down

toward the ground and then run. Those actions provided the

reasonable nexus between the emergency and the place searched,

satisfying the second Hathaway prong. It was reasonable to

9 A-2974-15T2 conclude that the man, who reportedly had a gun, put that gun down

as he ran, after seeing the officer driving in the area in a marked

vehicle.3

The search of the grassy area and the seizure of the gun were

justified under the emergency aid doctrine.

II. The Hearsay Statement

The State claimed the 911 caller was unavailable and wanted

to introduce his statement, "[h]e's right fucking there," through

the testimony of the officer to whom the statement was made. The

trial court admitted the 911 caller's statement, made as he pointed

toward the location where defendant was standing, as a present

sense impression pursuant to N.J.R.E. 803(c)(1).

Defendant claims error. He argues that the admission of the

statement, had the case gone before a jury, would have violated

his Confrontation Clause rights.4

This court reviews "the trial court's evidentiary rulings for

abuse of discretion." State v. Gorthy, 226 N.J. 516, 539 (2016).

Thus, "trial courts are granted broad discretion in making

3 This was not a case where the abandonment of the weapon was occasioned by the approach of the suspect by the police officer. The officer made no effort to stop and seize defendant; he had not yet exited his vehicle when defendant bent toward the ground. See Gibson, supra, 318 N.J. Super. at 9. 4 Defendant does not contest the trial judge's ruling that the statement was admissible as a present sense impression.

10 A-2974-15T2 decisions regarding evidentiary matters, such as whether a piece

of evidence is relevant . . . and whether a particular hearsay

statement is admissible under an appropriate exception." State v.

Scharf, 225 N.J. 547, 572 (2016) (citations omitted). To reverse

the trial court's evidentiary ruling, we must find that the trial

judge's decision was "so wide of the mark that a manifest denial

of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

A present sense impression is not dependent on the declarant's

availability. N.J.R.E. 803(c). Nonetheless, "[t]estimonial

statements of witnesses absent from trial have been admitted only

where the declarant is unavailable, and only where the defendant

has had a prior opportunity to cross-examine." Crawford v.

Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d

177, 197 (2004).

The question here centers on whether the 911 caller's

statement was testimonial or nontestimonial. The United States

Supreme Court, in Davis v. Washington, 547 U.S. 813, 822, 126 S.

Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006) (footnote

omitted), distinguished between the two types of statements:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there

11 A-2974-15T2 is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

The statement here was not made in response to any question,

statement, or gesture from the officer. The 911 caller blurted

it out while he was looking directly at the defendant who he knew

had been, moments before, in possession of a gun. Indeed, the

whole exchange was one-sided; the officer said nothing to the

caller. The emergent nature of these circumstances still existed.

Again, the caller was still on the phone with the dispatcher. Like

the statement made by the 911 caller in Davis, the primary purpose

of the 911 caller here was to notify the officer on the scene of

the proximate whereabouts of a man with a gun in a still unfolding

situation.

The trial judge properly ruled that the 911 caller's statement

was nontestimonial. The admission of the statement through the

testimony of the police officer would not have violated the holding

in Crawford.

Affirmed.

12 A-2974-15T2