NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
RAHEEM CUNNINGHAM, a/k/a RAHEEM H. SMITH, HISON R. CUNNINGHAM,
Defendant-Appellant. ___________________________________________________
Submitted January 4, 2011 – Decided April 4, 2011 Before Judges Messano and Waugh. On appeal from the Superior Court of New
Jersey, Law Division, Camden Indictment No. 07-10-3400.
Yvonne Smith Segars, Public attorney for appellant (Todd Designated Counsel, on the brief).
County,
Defender, Wilson,
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Raheem Cunningham appeals from the judgment of
conviction and sentence imposed following a jury trial at which he was found guilty of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0105-08T2
two); and third-degree possession of cocaine with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three).
At sentencing, pursuant to the State's motion, the judge determined that defendant was eligible for an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3(a) (permitting imposition of an extended term if defendant is a "persistent offender"). The judge found aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a) (3), (6), and (9), and no mitigating factors, N.J.S.A. 2C:44-1(b). After merging counts one and two into count three, the judge sentenced defendant to a nine-year term of imprisonment, with a four-year period of parole ineligibility. Appropriate statutory penalties were also imposed.
Defendant raises the following issues on appeal: POINT I
THE COCAINE SHOULD HAVE BEEN SUPPRESSED BECAUSE DEFENDANT WAS STOPPED ILLEGALLY, HIS FLIGHT WAS NOT UNLAWFUL, AND THE SEIZURE WAS NOT SUFFICIENTLY [ATTENUATED] FROM THE TAINT OF THE UNCONSTITUTIONAL STOP TO JUSTIFY ITS ADMISSION.
A. SERGEANT FRETT'S INVESTIGATORY STOP OF DEFENDANT WAS UNCONSTITUTIONAL.
B. DEFENDANT'S FLIGHT FROM THE ILLEGAL STOP WAS NOT OBSTRUCTION BECAUSE THE STOP WAS COMPLETELY ARBITRARY.
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C. EVEN IF DEFENDANT'S FLIGHT COULD BE DEEMED OBSTRUCTION, THE EVIDENCE SHOULD HAVE BEEN SUPPRESSED BECAUSE IT WAS NOT SUFFICIENTLY [ATTENUATED] FROM THE TAINT OF THE UNCONSTITUTIONAL STOP TO JUSTIFY ITS ADMISSION.
POINT II
THE TRIAL COURT ERRED IN ADMITTING THE COCAINE INTO EVIDENCE BECAUSE THE STATE FAILED TO ESTABLISH AN UNINTERRUPTED CHAIN OF CUSTODY AND THE INTRODUCTION OF THE EVIDENCE VIOLATED THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT.
A. THE STATE FAILED TO ESTABLISH AN UNINTERRUPTED CHAIN OF CUSTODY.
B. THE ADMISSION OF THE COCAINE DESPITE THE STATE'S FAILURE TO PRODUCE THE WITNESSES TO THE CHAIN OF CUSTODY VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION.
POINT III
THE TRIAL COURT'S REFUSAL TO CHARGE THE JURY ON THE LESSER INCLUDED OFFENSE OF FAILING TO DELIVER A CONTROLLED DANGEROUS SUBSTANCE TO THE NEAREST LAW ENFORCEMENT OFFICER CONSTITUTES REVERSIBLE ERROR.
POINT IV
THE TRIAL COURT'S ERROR IN CHARGING THE JURY TWICE ON THE ISSUE OF FLIGHT OVER DEFENDANT'S OBJECTION PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT V
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT MS. MOORE'S EXERCISE OF HER CONSTITUTIONAL RIGHTS SHOULD NOT BE HELD AGAINST HER PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL (PARTIALLY RAISED BELOW).
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POINT VI
DEFENDANT'S SENTENCE TO NINE YEARS IN STATE PRISON WITH FOUR YEARS OF PAROLE INELIGIBILITY FOR A THIRD DEGREE OFFENSE VIOLATED STATE V. NATALE AND WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION.
A. DEFENDANT'S SENTENCE IS EXCESSIVE AND BASED ON INAPPROPRIATE FACTORS.
B. DEFENDANT'S SENTENCE VIOLATES THE DICTATES OF STATE V. NATALE.
POINT VII
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS (PARTIALLY RAISED BELOW).
We have considered these arguments in light of the record and applicable legal standards. We reverse.
I. At a pre-trial evidentiary hearing on defendant's motion to
suppress, the State elicited the following testimony from Camden police sergeant Jeffrey Frett, a fourteen-year veteran. At approximately 1:00 a.m. on August 6, 2007, Frett received a radio "report of shots fired and a vehicle containing evidence of such." Frett and Officer Robert Thomas independently responded to the scene and discovered a bullet fragment resting on the dashboard of a parked van. While investigating, the officers heard more shots fired from the direction of Louis
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Street, one block away. However, a search of the immediate area proved fruitless.
Frett testified this was a high-crime area of "drug sales, fights, [and] gun violence." He decided to remain at the scene "in an effort to curtail any future shots fired or drug sales." Thomas returned to the scene of the original call and waited for the "ID Bureau to respond and collect evidence from the initial shooting." At 2:00 a.m., Frett parked his marked vehicle on the 1100 block of Morton Street, closer to its intersection with Louis Street. He turned off his headlights and "watch[ed] the pedestrians and the motor vehicle traffic for any indication of criminal activity."
There was "a lot of pedestrian traffic," which was usual for the area, and "a reasonable amount of motor vehicle traffic." Frett observed a black male, later identified as defendant, walking toward the police car. Defendant "abruptly stopped," indicating to Frett that the presence of the police car "startled him for some reason." Frett was approximately ten feet from defendant when he saw him place an unidentified object in his pocket, turn around, and walk back in the direction he
came from. Frett explained his decision to investigate
The two incidents of gunfire, the high crime area, the sale of illegal drugs in the area, [defendant's] reaction compared to the reaction of the dozens of pedestrians that
further:
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walked past me without interference . . . his actions alerted me that something may be . . . going on.
While still in his police car, Frett followed defendant and noticed him "continually turning around looking." After traveling a block, Frett stopped his car, stepped out, and asked defendant to stop. Defendant stated he was "going home," and continued walking. Frett returned to his car and again followed defendant. "Through the opened passenger's side window [Frett] . . . asked [defendant] to stop again and he just basically, again, stated he was going home." When Frett asked defendant to stop a third time, defendant ran. Following in his car, Frett saw defendant discard an unidentified object before running onto the porch of a nearby house, later determined to be his residence.
Defendant entered the house and Frett followed onto the porch and radioed for assistance. A woman, later identified as defendant's mother, Gail Moore, opened the door. Moore told Frett that "she was tired of this crap," but, nevertheless, permitted him to enter. Frett drew his weapon, pointed it towards the defendant, and told him to lay on the ground. At that point, backup officers arrived and arrested defendant. A search of defendant produced a clear zip-lock bag containing a
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small amount of marijuana.1 Frett testified that he tried to secure Moore's consent to conduct a further search of the premises. "She refused."
Less than fifteen seconds later, Frett returned to the area where he saw defendant discard the object which was "right near [defendant's] house." He discovered and seized "a clear sandwich bag containing [fifty-three] orange, transparent heat- sealed bags" of crack cocaine.
No other witnesses were produced at the evidentiary hearing. The judge found Frett's testimony to be credible. He determined that Frett initially engaged in an "investigatory inquiry" with defendant. After twice refusing to stop, the judge noted that defendant "t[ook] off and that's where [N.J.S.A.] 2C:29-1 comes in." Citing State v. Crawley, 187 N.J. 440, certif. denied, 549 U.S. 1078; 127 S. Ct. 740; 166 L. Ed. 2d 563 (2006), and State v. Williams, 192 N.J. 477 (2007) (Williams I), the judge concluded that "a snap" occurred when defendant ran, giving rise to "probable cause . . . for an arrest for an obstruction of a lawful function." The judge further determined that "[a]t that point in time, . . . the officer had lawful authority to place the defendant under arrest
1 The propriety of the seizure of this small amount of marijuana is not an issue raised on appeal.
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and defendant kept going." Noting that defendant did not run "a very far distance" to his home, the judge concluded it was "credible" that Frett retrieved the cocaine within fifteen seconds of detaining defendant in his home. He denied the motion to suppress.
We begin our analysis with some basic principles. "'[A]n appellate court reviewing a motion to suppress 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. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). "A trial court's findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Instead, "an appellate court must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 336-37 (alteration in original) (quoting Johnson, supra, 42 N.J. at 161). Nevertheless, "[i]t is a well-established principle of appellate review that a reviewing court is neither bound by, nor
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required to defer to, the legal conclusions of a trial . . . court." State v. Gandhi, 201 N.J. 161, 176 (2010) (citing Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).
The judge determined that Frett's initial questioning of defendant was an "investigatory inquiry," more commonly referred to as a "field inquiry." "A field inquiry 'is a limited form of police investigation that, except for impermissible reasons such as race, may be conducted without grounds for suspicion.'" State v. Nishina, 175 N.J. 502, 510 (2003) (quoting State v. Rodriguez, 172 N.J. 117, 126 (2002) (internal quotation marks omitted). There can be no quarrel with Frett's decision to investigate in the first instance because "[a] police officer has [a] duty to investigate suspicious behavior." State v. Stovall, 170 N.J. 346, 363 (2002).
However, ordering defendant to stop on three occasions escalated the encounter from a field inquiry to an investigatory stop. See Crawley, supra, 187 N.J. at 445 (finding the defendant was seized when a police officer "rolled down the passenger side window and called out, "Police. Stop. I need to speak with you"); and see State v. Williams, 410 N.J. Super. 549, 554-55 (App. Div. 2009) ("It is undisputed that defendant was subject to [an investigatory stop] when [the officer]
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ordered him to stop . . . ."), certif. denied, 201 N.J. 440 (2010) (Williams II).
The State contends that Frett possessed a reasonable, articulable suspicion that criminality was afoot, thus justifying his command and the resulting detention.
An investigatory stop is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced.
[State v. Rodriguez, 172 N.J. 117, 127 (2002) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).]
"A police officer must be able 'to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant' the intrusion." State v. Thomas, 110 N.J. 673, 678 (1988) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889, 906 (1968)). Specific and articulable facts are not a police officer's "'inchoate and unparticularized suspicion or 'hunch.'" State v. Privott, 203 N.J. 16, 29 (2010) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 900).
"No mathematical formula exists for deciding whether the totality of circumstances provided the officer with an
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articulable or particularized suspicion that the individual in question was involved in criminal activity." Davis, supra, 104 N.J. at 505. In evaluating the "totality of the circumstances," we "are to give weight to 'the officer's knowledge and experience' as well as 'rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise.'" State v. Citarella, 154 N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). "The fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as 'a reasonable person would find the actions are consistent with guilt.'" Id. at 279-80 (quoting Arthur, supra, 149 N.J. at 11).
The motion judge noted the time of day, the high-crime neighborhood, the verified call that shots had been fired, a second round of shots fired, defendant's actions in turning around and putting something in his pocket, and the officer's experience. Indeed, these are the same factors the State urges upon us as justification for a Terry stop. The judge concluded that these "multiple objective observations . . . g[ave] rise to a gut feeling" on Frett's part that was the basis for "th[e] investigatory inquiry." The judge did not conclude that they provided justification for an investigative detention.
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Viewed in isolation, none of these factors arise to the level of reasonable suspicion. A high-crime-area and the lateness of the hour do not justify an investigatory stop. State v. Valentine, 134 N.J. 536, 547 (1994). Similarly, "flight alone does not create reasonable suspicion for a stop." State v. Dangerfield, 171 N.J. 446, 457 (2002). We have said that "the mere act of putting something from one's hand into one's own pocket while departing alone signifies nothing additional by way of reasonable suspicion." State v. L.F., 316 N.J. Super. 174, 179 (App. Div. 1998); and see Williams II, supra, 410 N.J. Super. at 556-57 ("The fact that defendant also put his hand in his pocket did not provide any additional foundation for an objectively reasonable suspicion that defendant had engaged or was about to engage in criminal activity.").
The State cites to State v. Pineiro, 181 N.J. 13 (2004), Citerella and Valentine to support its position that the totality of circumstances in this case demonstrated an objectively reasonable, articulable suspicion that criminality was afoot. However, an important factor in each of those cases was the police officer's prior knowledge of the defendant and his criminal history. In Pineiro, supra, 181 N.J. at 18, the officer knew that defendant was a suspected drug dealer; he had
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"'cleared him off the corners' in the same area." Id. at 25. In Citarella, supra, 154 N.J. at 275, the officer "had arrested defendant several times for drug offenses and was present at his most recent arrest in January for driving under the influence of a controlled dangerous substance (CDS) while on the suspended list." The officer knew the defendant lived in the opposite direction from where he was heading, and that he drove a certain make and model automobile, as opposed to the bicycle he was now using. Ibid. In Valentine, supra, 134 N.J. at 540, the officer "recognized [defendant] from previous encounters" and knew he that "had a lengthy arrest sheet, that he had been involved in weapons offenses, armed robberies, prior C.D.S. complaints and stuff like that." (quotations omitted). In this case, there was no evidence that Frett had ever encountered defendant before.
We view the facts in this case as similar to those presented in Williams II. In that case, thirteen to fifteen officers were dispatched to a housing complex to deter "a possible retaliatory shooting for a homicide committed several days earlier." Williams II, supra, 410 N.J. Super. at 552. The officers arrived to the scene at 8:30 p.m. and noticed a crowd "just hanging out" in the courtyard. Id. at 553 (quotations omitted). However, the defendant acted differently from the
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others in that he "quickly started pedaling away [on his bike] and also put his right hand in his pants pocket." Ibid. The officers ordered the defendant to stop, and after a brief chase, apprehended him. Ibid. "As the officers grabbed him, defendant pulled his hand out of his pocket and threw a box to the ground. The box was later determined to contain a substantial amount of cocaine." Ibid. "[O]nly four or five seconds elapsed between when [the officer] ordered [the] defendant to stop and when he grabbed him on his bicycle." Ibid. We concluded that the officers lacked the requisite reasonable, articulable suspicion to order defendant to stop, reasoning,
This case is similar to State v. L.F., in which the State argued that defendant's act of walking away when the police approached and also putting his hand in his pocket created the reasonable suspicion of criminal activity required for a Terry stop. In rejecting this argument, we observed that the mere act of putting something from one's hand into one's own pocket while departing alone signifies nothing additional by way of reasonable suspicion. This observation is equally applicable to the present case.
[Id. at 557 (citations and internal quotation marks omitted).]
In this case, the early morning hour, the prior verified call of shots fired, and a second series of gunshots provide some distinctions from the facts in Williams II. The State urges that these distinctions make all the difference. However,
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Frett testified that he parked his car on the street at approximately 2:00 a.m., an hour or so after he investigated the call of shots fired. While it is unclear how long Frett remained in his car before noticing defendant, it is clear that numerous pedestrians passed the police cruiser. Frett testified that "[s]ome of them actually said 'hi.'" There was substantial vehicular traffic. None of these circumstances provided additional objective factors that supported a reasonable, articulable suspicion that defendant was engaged in criminality. Indeed, it was only defendant's decision to turn around and walk away that drew Frett's attention at all. Our reasoning in Williams II leads us to conclude that under the totality of the circumstances, the investigatory stop of defendant was unreasonable.
That does not end the inquiry. The motion judge concluded that defendant's flight provided probable cause for his arrest for obstruction. As a result, Frett had a basis to pursue defendant the short distance to his home, and defendant's action, i.e., tossing the plastic bag to the ground near his home, provided the basis for a lawful seizure.
Initially, we note that defendant's contention that there was no probable cause to arrest him for obstruction is unpersuasive. N.J.S.A. 2C:29-1(a) provides, that "[a] person
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commits an offense if he . . . prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight . . . ." In Williams I, supra, 192 N.J. at 11, the Court held that "[u]nder New Jersey's obstruction statute, when a police officer commands a person to stop . . ., that person has no right to take flight or otherwise obstruct the officer in the performance of his duty." That is true even if the investigative stop is unconstitutional. See Crawley, supra, 187 N.J. at 460 ("We hold that a defendant may be convicted of obstruction under N.J.S.A. 2C:29-1 when he flees from an investigatory stop, despite a later finding that the police action was unconstitutional.").
Probable cause to arrest defendant still does not end the inquiry. "'[T]he critical determination is whether the authorities have obtained the evidence by means that are sufficiently independent to dissipate the taint of their illegal conduct.'" Williams I, supra, 192 N.J. at 15 (quoting State v. Johnson, 118 N.J. 639, 653 (1990)). As the Court noted:
In evaluating whether evidence is sufficiently attenuated from the taint of a constitutional violation, we look to three factors: "(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct."
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[Ibid. (quoting Johnson, supra, 118 N.J. at 653).]
Little time elapsed between Frett's first command that defendant stop and when he discarded the drugs, "a house or two" from his residence. Frett followed defendant a short distance before he saw defendant discard the drugs. According to Frett, it was not a high-speed chase. However, "temporal proximity 'is the least determinative' factor.'" Williams I, supra, 192 N.J. at 16 (quoting State v. Worlock, 117 N.J. 596, 622-23 (1990)).
As to the third factor, there was no showing that Frett acted in bad faith. Ibid. The second factor, whether defendant's obstruction was an "intervening circumstance" sufficient to purge any taint of the improper investigatory stop, is the determinative one.
In evaluating this prong, the Williams I Court concluded that "eluding the police and resisting arrest in response to an unconstitutional stop . . . constitute[d] intervening acts and the evidence seized incident to those intervening criminal acts will not be subject to suppression." Ibid. The State essentially argues before us that any obstruction by flight presents a sufficient intervening act purging any taint from the improper investigatory detention.
However, we rejected any such bright-line reasoning in Williams II.
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[O]ur Supreme Court in Williams [I] did not say that any conduct that could be found to constitute obstruction automatically constitutes an intervening act . . . that completely purge[s] the taint from the unconstitutional investigatory stop. Instead, the Court indicated that the determination whether evidence is sufficiently attenuated from the taint of a constitutional violation must be made on a case-by-case basis in light of the three- factor test set forth in Johnson . . . and reaffirmed in Williams [I] . . . .
[Williams II, 410 N.J. Super. at 560 (quotations omitted) (second alteration in original).]
In Williams II, we distinguished the facts presented from those in Williams I, and two cases the Williams I Court relied upon, State v. Seymour, 289 N.J. Super. 80 (App. Div. 1996), and State v. Casimono, 250 N.J. Super. 173 (App. Div. 1991), certif. denied, 127 N.J. 558, cert. denied, 504 U.S. 924, 112 S. Ct.
1978, 118
L.Ed. 2d 577 (1992). We noted:
Most importantly, there were no significant "intervening circumstances" between the unlawful police command to defendant to stop his bicycle and defendant's discard of the box that resulted in the seizure of cocaine. Defendant did not . . . flee in a car resulting in a mile and a quarter police pursuit, as in Seymour, or seek to avoid apprehension by returning to a lawfully stopped car after the police had removed him from the car, as in Casimono. In those cases the defendant's intervening criminal acts not only constituted a break in the chain of causation between the unlawful police conduct and seizure of evidence but also posed a risk of physical injury to
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police officers and, at least in Seymour, members of the public. In contrast, defendant did not force the officers to engage in a lengthy and dangerous pursuit to apprehend him or engage in any act of physical aggression against Officer Delaprida and his partner. . . . Therefore, there is no basis for concluding that the police seized the cocaine discarded by defendant "by means that [were] sufficiently independent to dissipate the taint of their [prior] illegal conduct."
....
In New Jersey, the three-factor test reaffirmed in Williams delineates the circumstances in which the attenuation exception may be properly applied. Under those factors, the State failed to establish a "significant attenuation" between the unconstitutional stop of defendant and the seizure of the drugs he discarded following that stop.
[Williams II, supra, 410 N.J. Super. at 563- 64 (alteration in original) (citation and quotations omitted).]
In this case, defendant's flight for a short distance from the point where Frett issued his command was not an "intervening circumstance" sufficient to purge any taint from the improper investigatory stop. Like the actions of the defendant in Williams II, the series of events unfolded quickly and seamlessly. After being ordered to stop on two occasions, defendant fled. Frett followed for a short distance in his police car before he saw defendant discard the drugs. During that time, defendant did not resist with force, as did the
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defendant in Williams I, or endanger other members of the public. Under these circumstances, the seizure of the drugs was not attenuated from the illegal investigatory stop. We therefore reverse the order denying defendant's motion to suppress.
Reversed and remanded.
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