Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Sunday, February 12, 2017

Police should not have searched house for baseball bat used in attack State v KENNETH W. BARBOUR

Police should not have searched house for baseball bat used in attack
State v  KENNETH W. BARBOUR, a/k/a 

October 27, 2016


Before Judges O'Connor and Suter.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 12-12-1141.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent, (Vanessa I. Craveiro, Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

SUTER, J.S.C. (temporarily assigned)
Defendant Kenneth W. Barbour appeals the denial of his motion to suppress evidence, his motion in limine to admit medical records for impeachment purposes, and his request for a "false in one, false in all" jury instruction. We reverse the denial of defendant's suppression motion and remand for further proceedings on that issue, but affirm the other issues raised.
Following a jury trial, defendant was convicted of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d),1 and sentenced to two years of probation. His conviction stemmed from an incident on December 5, 2012. Shortly after 11 a.m., Patrol Officer DeCesari of the Franklin Township Police Department responded to an "assault call" at a residence on Tuckahoe Road in Gloucester County. He found the victim, J.K.,2 bloodied and complaining that defendant, his neighbor, struck him in the head with a black baseball bat following an argument about the location of defendant's fence. Defendant had already returned to his house. 
When other officers arrived, they formed a perimeter around defendant's house. Using the patrol car's loudspeaker, Patrol Officer DeCesari repeatedly commanded defendant to come out to be arrested. There was no response. The victim advised that defendant was violent and possibly had weapons in the house. The police confirmed there were outstanding warrants for defendant's arrest for driving while intoxicated and hindering apprehension. The police did not have a copy of Barbour's digital driver's license or his firearms identification and purchaser card, which might have had his photograph. 
Following repeated entreaties over the loudspeaker, for approximately twenty minutes, a male emerged from the house. As instructed by the police, he came down the front steps, turned around, and then backed away from the house about ten to thirty feet, whereupon he was handcuffed and arrested without incident. He did not identify himself. 
The police then conducted a "protective sweep" of the house for their own safety, searching for the presence of any other suspects or individuals. They searched each room in areas where an individual might hide. There was no one else in the house. As the police were leaving, one of the officers noticed a black bat or broom handle leaning against the wall near the front door and seized it. For purposes of this opinion, we refer to this object as a bat. The victim later identified this as the object used to strike him. Once defendant was placed in the patrol car and under arrest, he was identified. 
The trial judge denied defendant's motion to suppress evidence of the bat, finding it was discovered during a lawful protective sweep. Because of the time that had elapsed from the time defendant was commanded to come out of the house and the time he finally emerged, the fact the police did not know if there were other persons in the house, and because the identity of defendant was not established, the trial judge found the police had been lawfully in the premises. The judge found it reasonable for the police to conduct a protective sweep of the house and to seize the bat when it was observed. The judge found the sweep did not go beyond what was permissible. 
The State provided medical records to defendant about medical treatment the victim received two weeks after the assault for a fall from a bar stool while intoxicated. Defendant filed a motion in limine, in which he sought to use those records at trial to support his alternate defense that, on the day of the alleged assault, the victim sustained injury from falling in the driveway - not from an assault - but because his blood alcohol level was .143. 
The trial judge denied defendant's motion finding that the records of the fall were not relevant to the alleged assault which had occurred two weeks earlier. The court found the records inadmissible under N.J.R.E. 608(a), because they proved a specific instance of conduct that was not related to the victim's truthfulness or untruthfulness. However, the court observed defendant was not precluded from arguing the victim's injuries stemmed from inebriation, rather than from an assault. 
Defendant also appeals the trial judge's decision to not read the "false in one, false in all" instruction to the jury. The judge found there were no intentional misrepresentations or blatant false statements that would warrant the instruction. The judge concluded the standard instruction on credibility was all that was necessary because that instruction "opens the ability for any counsel to argue that if you find certain facts not to be truthful or their credibility to be in question . . . you can reject it all if you want." 
Typically, we defer to the trial court's factual findings unless "clearly mistaken" such that appellate intervention is necessary in "the interests of justice." State v. Elders, 192 N.J. 224, 244 (2007) (internal citations omitted). Our review of purely legal conclusions is plenary.  State v. Goodman415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied205 N.J. 78 (2011). 
Defendant appeals the trial court's denial of his suppression motion. The Fourth Amendment to the United States Constitution and Article I, ¶ 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 and seizure] falls within one of the few well-delineated exceptions.'"  State v. Maryland167 N.J. 471, 482 (2001) (quoting Schneckloth v. Bustamonte412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed.2d 854, 858 (1973)). 
"[A] 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others."  State v. Davila203 N.J. 97, 113 (2010) (adopting Maryland v. Buie494 U.S. 325, 327, 110 S. Ct. 1093, 1094, 108 L. Ed.2d 276, 281 (1990)). The sweep is "narrowly confined to a cursory visual inspection of those places in which a person may be hiding." Ibid. (quoting Buiesupra, 494 U.S. at 327, 110 S. Ct. at 1094, 108 L. Ed. 2d at 281). 
To justify a sweep beyond the "spaces immediately adjoining the place of arrest from which an attack could be imminently launched . . . there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing the area to be swept harbors an individual posing a danger to those on the arrest scene."  Id. at 114 (emphasis added) (quoting Buiesupra, 494 U.S. at 334, 110 S. Ct. at 1098, 108 L. Ed. 2d at 286). 
Thus, a protective sweep of premises is only valid when "(1) law enforcement officers are lawfully within the private premises for a legitimate purpose . . . and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger."  Id. at 125. Then, the sweep will be upheld only if it is cursory and "limited in scope to locations in which an individual could be concealed."  Id. at 125.
There was no dispute that the bat was found pursuant to a warrantless search of defendant's premises. The State bears the burden of showing the search was authorized under a recognized exception to the warrant requirement.  Davilasupra, 203 N.J. at 127. Defendant did not consent to the search. Because defendant was arrested outside the house, the search was not a search incident to arrest.  See State v. Doyle42 N.J. 334, 344 (1964) (search incident to arrest is limited to the person and "things within his immediate possession or control, or of the place of arrest to the extent that it is within his immediate possession or control"). 
Defendant was ten to thirty feet from the house when he was handcuffed. This case is unlike State v. Cope224 N.J. 530, 549 (2016), where defendant was arrested in his living room and the protective sweep of the bedroom, bathroom, and back porch was affirmed by the Court because those areas were "immediately adjoining" and thus in "such close proximity" to the place of arrest.  Ibid. Here, defendant was out of the house before he was arrested. In Buiesupra, 494 U.S. at 337, 110 S. Ct. at 1099-1100, 108 L. Ed. 2d at 288, where defendant voluntarily exited a basement before arrest, the court found a protective sweep required "a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." See  Davilasupra, 203 N.J. at 125. 
There was no reasonable articulable suspicion here that another individual posing a danger was present. The police were unable to identify any specific facts to indicate there was another person in the house, as required under Davila. They did not hear or see anyone other than defendant; there was no indication a second person was involved in the assault; and there were no other cars in the driveway. Officer DeCesari testified in the negative when asked about whether he saw "anything else indicative that there was someone else inside the house." The police had no "preexisting police knowledge" that defendant was a violent criminal, aside from the victim's claim defendant was violent.  See Davilasupra, 203 N.J. at 129 (considerations contributing to a finding of articulable suspicion may include "preexisting police knowledge that a specific individual is a dangerous or violent criminal"). Defendant had active warrants, but they were for driving while intoxicated and hindering apprehension, and not for any violent crimes. The police did not know about defendant's firearms identification and purchaser card before the sweep. 
We reject the contention the protective sweep satisfied Constitutional protections. The State failed to show the police had a reasonable articulable suspicion another individual was present in the house posing a danger. As such, we reverse the decision denying defendant's motion to suppress and remand for proceedings consistent with this decision. 
Evidentiary rulings by a trial court require our considerable deference. Such rulings generally "should be upheld 'absent a showing of an abuse of discretion, [i.e.], there has been a clear error of judgment.'"  State v. J.A.C.210 N.J. 281, 295 (2012) (quoting State v. Brown170 N.J. 138, 147 (2001)). "An appellate court applying this standard 'should not substitute its own judgment for that of the trial court, unless "the trial court's ruling is so wide of the mark that a manifest denial of justice resulted."'"  Ibid. (quoting Brownsupra, 170 N.J. at 147).
We agree the trial court had a sound basis to find that N.J.R.E. 404(b) would not justify the admission of the victim's medical records from his subsequent fall. Under 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 a person acted in conformity therewith."  N.J.R.E. 404(b) is generally a rule of exclusion, subject to certain exceptions, rather than a rule of admission.  State v. Herrera211 N.J. 308, 339 (2012). None of the enumerated exceptions listed within N.J.R.E. 404(b) applies here to the admission of these records. Defendant wanted to admit the records to show the victim acted in conformity with a disposition to become intoxicated and fall down. Such evidence is prohibited under N.J.R.E. 404(b). Additionally, records regarding a fall two weeks after the alleged assault have no relevance to the incident. 
The judge analyzed N.J.R.E. 608, which allows the character of a testifying witness to be impeached by certain means. However, the judge correctly ruled that N.J.R.E. 608 is not applicable because, subject to certain caveats not applicable here, a witness's character trait for truthfulness or untruthfulness is only demonstrable by opinion or reputation evidence and "cannot be proved by specific instances of conduct."  N.J.R.E. 608(a). See also State v. Parker216 N.J. 408, 418-19 (2014). 
Defendant claims the judge erroneously failed to charge the jury with the "false in one, false in all" instruction.  Model Jury Charge (Criminal – Non 2C Charges), "False in One – False in All" (2013). In reviewing the adequacy of the judge's charge to the jury, we must consider the charge as a whole in determining whether it was prejudicial.  State v. Figueroa190 N.J. 219, 246 (2007); State v. Wilbely63 N.J. 420, 422 (1973). "[A]ppropriate and proper charges to a jury are essential for a fair trial."  State v. Collier90 N.J. 117, 122-23 (1982) (internal citations omitted). 
The false in one, false in all charge can be given when it is shown a witness consciously lied about a material fact.  State v. Ernst32 N.J. 567, 583-84 (1960), cert. denied364 U.S. 94381 S. Ct. 4645 L. Ed.2d 374 (1961). The decision to give this instruction is discretionary.  State v. D'Ippolito22 N.J. 318, 324 (1956).  SeeState v. Melendez129 N.J. 48, 60 (1992). We are satisfied, based on our review of the record, that the trial judge appropriately exercised discretion in declining to give the instruction. There was no indication the victim's inconsistences about how much he had to drink, when he was struck, whether he fell down, and what defendant was wearing at the time of the assault were anything more than impaired recollection, as opposed to giving willfully false testimony about material facts. 
Reversed on the denial of the suppression motion and remanded. Because the bat was not the sole evidence of the assault and because neither side expressly addressed the effect the suppression of the bat would have had on the outcome of the trial, we decline to address and we remand this issue to the trial court for either party to make whatever application a party may deem appropriate within the next forty-five days. We affirm as to the remaining issues. We do not retain jurisdiction. 

1  Defendant was acquitted of third degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2).
 We initialized the victim's name to protect his privacy.