NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1028-13T2
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
August 7, 2015
v. APPELLATE DIVISION
AMIR RANDOLPH,
Defendant-Appellant.
_____________________________________
Submitted February 25, 2015 – Decided August 7, 2015
Before Judges Ashrafi, Kennedy and O'Connor.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 12-02-0279.
Joseph E. Krakora, Public Defender, attorney
for appellant (Emily A. Kline, Designated
Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County
Prosecutor, attorney for respondent
(Gioiella A. Mayer, Special Deputy Attorney
General/Acting Assistant Prosecutor, on the
brief).
The opinion of the court was delivered by
KENNEDY, J.A.D.
Following a jury trial, defendant was found guilty of
various controlled dangerous substance (CDS) offenses and was
sentenced in the aggregate to seven years of imprisonment,
subject to three years of parole ineligibility. Defendant
appeals and raises the following arguments:
POINT I: THE TRIAL COURT ERRED IN FAILING
TO GRANT DEFENDANT'S MOTION TO SUPPRESS
WHERE THE EVIDENCE SEIZED WAS IN VIOLATION
OF DEFENDANT'S FOURTH AMENDMENT RIGHT.
POINT II: THE COURT COMMITTED PLAIN ERROR BY
CHARGING THE JURY ON FLIGHT.
POINT III: THE COURT ERRED IN FAILING TO
GIVE A REQUESTED INSTRUCTION ON "MERE
PRESENCE" AS AN ESSENTIAL PART OF THE
DEFINITION OF CONSTRUCTIVE POSSESSION.
POINT IV: THE SENTENCE WAS EXCESSIVE BECAUSE
THE TRIAL JUDGE FAILED TO CONSIDER
APPLICABLE MITIGATING FACTORS.
We have considered these arguments in light of the record and
applicable law, and for reasons expressed hereinafter, we
reverse defendant's conviction and we remand for a new trial.
I.
We initially address the Law Division's denial of
defendant's motion to suppress evidence. We discern the facts
that follow from the record developed at the suppression
hearing.1
1
"'[O]n appeal, we may only consider whether the motion to
suppress was properly decided based on the evidence presented at
that time.'" State v. Robinson, 200 N.J. 1, 15 (2009) (citation
(continued)
2 A-1028-13T2
On September 19, 2011, at about 10:00 a.m., Jersey City
Detective Anthony Goodman was conducting a surveillance of the
area at Grant Avenue and Martin Luther King Drive in Jersey City
– a known high crime area. From his unmarked patrol car,
Goodman observed a group of men standing on the sidewalk in
front of a three-story apartment building on Grant Avenue (the
building). As the group dispersed, one individual, later
identified as co-defendant, Markees King, entered the building.
Approximately fifteen minutes later, Goodman saw an older man,
later identified as co-defendant, Edward Wright, standing across
the street from the building who appeared to be watching one of
the upper level windows. Goodman noticed King watching the
street from a window on the building's second floor.
Shortly thereafter, King exited the front entrance of the
building, met briefly with Wright, and engaged in what Goodman
believed to be a narcotics transaction. Goodman continued
watching as King participated in another hand-to-hand
transaction with another individual. King then went back into
the building.
(continued)
omitted); see also State v. Tavares, 364 N.J. Super. 496, 501-02
(App. Div. 2003) (on appeal from a judge's decision regarding
the justification of a warrantless search, parties generally
cannot rely on factual testimony or other proof not submitted as
part of the record at the suppression hearing).
3 A-1028-13T2
Goodman alerted perimeter police units that he "had a
sale" and provided a description of Wright. Sergeant Stephen
Trowbridge was with a perimeter unit and he stopped Wright a
short distance from the building. Trowbridge recovered one
glassine bag containing heroin from Wright's pants pocket and
placed him under arrest. At this time, Goodman watched King
leave the building, and he requested his perimeter units to stop
and arrest him. Officers in the perimeter units quickly stopped
and arrested King as he walked toward Martin Luther King Drive.
A search of King revealed a small amount of marijuana and $132
in small denominations.
Following the arrests of Wright and King, Trowbridge
decided to "close in," and began moving from his perimeter
location toward the building. However, before Trowbridge got to
the front door, a man later identified as Andrew Bentley left
the building and began walking toward the vehicle from which
Goodman was conducting his surveillance. Goodman testified that
Bentley was using a cell phone and he heard Bentley state, "They
are at the front door. They’re coming in."
Having arrived at the building's locked front door,
Trowbridge knocked repeatedly on the door and the first floor
windows, until the first floor tenant opened the door and
permitted him to enter the building. While in the first floor
4 A-1028-13T2
vestibule, Trowbridge heard someone "running" from the second to
the third floor, and saw a barbeque grill situated near the
staircase. He opened the lid to the grill and found a handgun.
Within a minute, another Jersey City officer arrived in the
vestibule. Trowbridge gave him the handgun and walked up the
staircase to the second floor.
From the hallway in the second floor, Trowbridge observed
one of the doors to the second floor apartment was open.
Peering into the apartment from the hallway, Trowbridge could
see "debris thrown about" inside, a couch, and nothing else. He
concluded that the apartment was "vacant" or "abandoned," and
entered to see if there were "any additional actors in there."
The apartment door opened directly into the living room.
Trowbridge walked through the apartment from the back to the
front and found no one inside. During this walk-through, he
observed in various rooms of the apartment, an open backpack and
a pair of shoes near the front door, clothing draped over the
couch, a television, and a gaming console. Trowbridge also saw
marijuana, empty glassine bags and a small amount of cash on the
floor next to the gaming console. Before leaving the apartment,
Trowbridge found a silver box containing glassine envelopes of
heroin and a Newport cigarette box containing additional amounts
of marijuana.
5 A-1028-13T2
A few pieces of mail were also on the floor near the gaming
console, one of which was addressed to defendant, Amir Randolph,
on Mallory Avenue in Jersey City. At this point, Trowbridge
left the apartment and walked downstairs where he encountered
members of the U.S. Marshals Fugitive Task Force, who,
unbeknownst to the Jersey City police officers, were also
watching the building at the time.
The federal agents advised Trowbridge they had a warrant
for defendant’s arrest for an alleged homicide, and believed he
either resided there or was staying at the building. The
federal agents then proceeded directly to the third floor
apartment where defendant was found hiding in a closet. A woman
and young child also occupied the third floor apartment. No one
from the Narcotics Unit was present when defendant was arrested,
and the Marshals subsequently took defendant into custody.
Bentley was also taken into custody by federal agents.
Following the State's presentation at the suppression
hearing, at which only Trowbridge and Goodman testified, the
judge denied an application by defendant to call Jersey City
Detective Matthew Stambuli. Defense counsel indicated that
Stambuli had "investigated" Bentley's cellphone and would
testify it was "inoperable." The State opposed the motion,
arguing that the defense had indicated it would offer no
6 A-1028-13T2
witnesses, and proffered that cellphone records showed the phone
was "on and working" on September 19, and had first been
cancelled on September 25. The judge then denied defendant's
application and explained that there was "no testimony
indicating that that phone call was actually made . . ." and
that "it's irrelevant to what the police officers did at the
time."
The judge denied the motion to suppress and explained, in
part, that:
The door to the second floor apartment was
open, and from his vantage point, Sergeant
Trowbridge observed that the apartment was
vacant.
Sergeant Trowbridge entered the apartment to
search for additional actors. He observed
drugs, debris and paperwork scattered on the
floor of the apartment. Finding no actors,
he chose to return to the first floor where
he met with U.S. Marshals who informed
Sergeant Trowbridge that they had been
investigating the premises as the residence
of Mr. Randolph.
. . . .
In regards to the search of [the apartment],
none of the defendants have provided any
evidence that they had an expectancy of
privacy in the first floor hallway where the
gun was recovered, in the second floor
vacant apartment where narcotics, narcotic
paraphernalia and paperwork was recovered,
or in the third floor apartment where Mr.
Randolph was arrested.
7 A-1028-13T2
As an overall rule, social and legal norms
dictate whether . . . an expectation of
privacy will be held to exist and/or be
reasonable in particular factual
circumstances.
. . . .
Absent any evidence, this Court does not
find an expectation of privacy, and as such,
the search of [the apartment] is valid. See
State versus Linton, 356 New Jersey Super.
at 255, at page 256, Appellate Division
2002, holding a defendant who hid his drugs
in someone else's vacant property had no
reasonable expectation of privacy.
The judge then entered an order denying the motion for
suppression.
On appeal, defendant relies upon State v. Brown, 216 N.J.
508 (2014), and argues that the Law Division erred in concluding
that defendant had no reasonable expectation of privacy in
"someone else's vacant apartment" and that, in making such a
finding, the judge improperly imposed a burden of proof upon
defendant. The State argues that defendant has no standing to
object to the search because police had an "objectively
reasonable belief" that the apartment was abandoned, and that,
even if the judge's legal conclusions were flawed, the
warrantless search was nonetheless valid because "exigent
circumstances . . . required immediate police action." In
making the latter argument, the State relies, in part, on the
alleged fact that "Bentley called [defendant]" to advise police
8 A-1028-13T2
were entering the building as Trowbridge had gained access to
the first floor hallway.
Under the Fourth Amendment of the United States
Constitution and Article I, Paragraph 7 of the New Jersey
Constitution, "[a] warrantless search is presumed invalid unless
it falls within one of the recognized exceptions to the warrant
requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing
State v. Alston, 88 N.J. 211, 230 (1981)). The same is true of
the warrantless seizure of a person or property. Terry v. Ohio,
392 U.S. 1, 19-21, 88 S. Ct. 1868, 1879-80, 20 L. Ed. 2d 889,
904-06 (1968) (seizure of a person); State v. Hempele, 120 N.J.
182, 216-17 (1990) (seizure of property). It is the burden of
the State to show by a preponderance of the evidence that the
search falls within a recognized exception to the warrant
requirement and that the search was permissible. Brown, supra,
216 N.J. at 527.
In the case before us, it appears that the Law Division
concluded the apartment on the second floor was vacant or
abandoned and that, consequently, defendant had no reasonable
expectation of privacy therein. In reaching this conclusion,
the judge apparently found that defendant had a burden of proof
to show he had a reasonable expectation of privacy in the
9 A-1028-13T2
premises. In reaching these conclusions, the Law Division
erred.
In New Jersey, "a criminal defendant [has standing] to
bring a motion to suppress evidence obtained in an unlawful
search and seizure if he has a proprietary, possessory or
participatory interest in either the place searched or the
property seized." Alston, supra, 88 N.J. at 228; accord Brown,
supra, 216 N.J. at 528-29. "[S]tanding to seek suppression of
evidence" is a "separate issue" from "the existence of a
reasonable expectation of privacy," which pertains to the merits
of the police action. State v. Hinton, 216 N.J. 211, 235
(2013). Defendant's automatic standing to contest the
constitutional validity of the seizure "does not equate to a
finding that he . . . has a substantive right of privacy in the
place searched that mandates the grant of that motion." Ibid.
"'[A]lthough we do not use a reasonable expectation of privacy
analysis for standing purposes in criminal cases, we do apply
that analysis to determine whether a person has a substantive
right of privacy in a place searched or an item seized.'" Ibid.
(quoting State v. Johnson, 193 N.J. 528, 547 (2008)). "[T]he
objective reasonableness of the defendant's expectation of
privacy in that property, for purposes of Article I, Paragraph
10 A-1028-13T2
7, turns in large part on his or her legal right to occupy the
property at issue." Id. at 236.
A defendant cannot successfully "challenge a search if an
officer had an objectively reasonable basis to believe he was a
trespasser." Brown, supra, 216 N.J. at 535. "That follows
because a trespasser, by definition, does not have a possessory
or proprietary interest in property where he does not belong —
where he does not have permission or consent to be." Ibid.
Thus, "a trespasser who hides drugs in someone else's vacant and
unsecured property" does not have a "'constitutionally-
reasonable expectation of privacy'" in that vacant property.
Id. at 537 (quoting State v. Linton, 356 N.J. Super. 255, 259
(App. Div. 2002)).
In State v. Smith, 291 N.J. Super. 245, 250-52 (App. Div.
1996), rev'd on other grounds, 155 N.J. 83, 102, cert. denied,
525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998), for
example, the defendant was storing drugs in an apartment without
the permission of the tenant, who was in the hospital. We held
that because the "defendant had no right to enter the
apartment," the "defendant lacked a sufficient privacy interest
in the apartment to support the conclusion that the search
violated his constitutional rights." Id. at 261.
11 A-1028-13T2
"Establishing an abandonment of real property is 'a
difficult standard to meet.'" Brown, supra, 216 N.J. at 530
(quoting United States v. Harrison, 689 F.3d 301, 309 (3d Cir.
2012)). "'Before the government may cross the threshold of a
home without a warrant, there must be clear, unequivocal and
unmistakable evidence that the property has been abandoned.'"
Id. at 530-31 (internal citations omitted). The test is one of
objective reasonableness, State v. Edmonds, 211 N.J. 117, 132
(2012), and turns on whether, given the totality of the
circumstances, an objectively reasonable police officer would
believe the property is abandoned. Harrison, supra, 689 F.3d at
308. Because the officer’s subjective beliefs are irrelevant to
this inquiry, a police officer’s sincere, good-faith but
unreasonable belief that real property is abandoned will not
justify a warrantless search when a defendant has an apparent
possessory interest in that property. Brown, supra, 216 N.J. at
531.
In Brown, the Supreme Court identified a number of factors
to be considered in determining whether a police officer has an
objectively reasonable basis to believe a property is abandoned:
In deciding whether a building is abandoned,
or a person is a trespasser, one reasonable
step an officer might take is to examine
readily available records on ownership of
property. Deeds are kept in the county
recording office and provide the address of
12 A-1028-13T2
the property owner. See 13A New Jersey
Practice, Real Estate Law and Practice §
33.2 at 502, § 33.10(4) at 508 (John A.
Celentano, Jr. (2d ed. 2002).
. . . .
Moreover, utility records, which can be
secured by a grand jury subpoena, will
reveal not only the name of the property
owner, but also whether electricity has been
used in the premises. Such record checks
are not the exclusive means of determining
whether property is abandoned, but just one
factor in assessing whether a police officer
acted in an objectively reasonable manner.
Other factors to consider in assessing
whether a building is abandoned is the
property’s condition and whether the
putative owner or lessee has taken measures
to secure the building from intruders.
There are impoverished citizens who live in
squalor and dilapidated housing, with
interiors in disarray and in deplorable
condition, and yet these residences are
their homes. As succinctly stated, there is
not a "'trashy house exception' to the
warrant requirement." Harrison, supra, 689
F.3d at 311. Yet, a police officer may be
familiar with an unoccupied building with
missing doors and broken windows, and an
interior in utter shambles and lacking
electricity, and reasonably conclude that
the structure is abandoned. The decrepit
condition of the exterior and interior of a
building is a factor, but other
circumstances will necessarily come into
play. For example the boarding of windows
and bolting of doors of a shabby-looking
building will suggest an intent to keep
people out by a person exercising control
over the property and therefore may be
evidence that conflicts with abandonment.
. . . .
13 A-1028-13T2
A Home is not deemed 'abandoned' merely
because a person is dealing drugs from it.
Id. at 533-34.
Finally, the legitimacy of a search will not depend on what was
learned by the police after entry into the home. Wong Sun v.
United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415, 9 L. Ed.
2d 441, 453 (1963)("A search unlawful at its inception may [not]
be validated by what it turns up.").
The State relies on Linton, supra, 356 N.J. Super. 255, to
validate the reasonableness of Trowbridge's belief that the
apartment was abandoned. In Linton, two police officers were
informed that a man was selling drugs from a certain address in
the municipality. Id. at 257. Upon arriving at that address,
the officers observed garbage in the front and back yards, a
broken lock on the front door, a broken front window, a living
room littered with garbage and damaged furniture, and no lights
on in the residence. Ibid. Additionally, the officers had not
seen anyone at the residence for a month despite frequently
patrolling the area. Ibid. We reversed the trial court's
suppression of drugs that the officers had found hidden in a
torn couch, concluding that there was no Fourth Amendment
violation because "a defendant who hides drugs in someone else's
14 A-1028-13T2
vacant property has no constitutionally-reasonable expectation
of privacy." Id. at 259.
Linton is not persuasive here. First, in the case before
us, the State offered only a few, equivocal observations about
the condition of the apartment. Trowbridge merely saw a couch
and what he characterized as "debris" on the floor, when he
peered into the open door. The windows in the apartment were
intact; one needed a key to enter the locked building; King
apparently had a key to get into the locked building; other
tenants lived in the building, one of whom permitted Trowbridge
to enter; and the door to the apartment itself did not appear to
have been forced open. In Linton, by contrast, the police
offered much more detail respecting the property at issue.
Second, in Brown, supra, the Supreme Court opined that
"whether the evidence of abandonment in Linton meets our current
Article I, Paragraph 7 jurisprudence is certainly debatable."
216 N.J. at 538. In Brown, the Supreme Court affirmed our
decision upholding the trial court's order suppressing evidence,
concluding that the following facts did not objectively support
the conclusion that a property was abandoned: one of two front
windows to the residence was broken; the front door had a
padlock; the rear door was off the hinges and propped closed;
trash bags filled with old clothes and soda cans littered the
15 A-1028-13T2
living room; and the electric meter was missing. Unlike the
neighboring houses, the residence in question was not boarded
up. Id. at 523. The Supreme Court explained also that nothing
in the record showed that some basic research into the ownership
of the property "would have been difficult or unduly
cumbersome." Id. at 542.2
We conclude that, in the circumstances of this case, the
fact that the apartment appeared to contain only one couch and
"debris" was seen on the floor is an insufficient basis on which
to reasonably conclude that the apartment was vacant, unrented
or abandoned. The fact that the door to the apartment was left
open does not warrant a contrary conclusion. The law is clear
that "[t]he Fourth Amendment does not . . . protect only
hermetically sealed residences" and the rule prohibiting the
police from entering a residence to conduct a warrantless search
applies even if the door to the residence is left open. State
v. Penalber, 386 N.J. Super. 1, 11-12 (App. Div. 2006) (quoting
United States v. Oaxaca, 233 F.3d 1154 (9th Cir. 2000)).
In the circumstances of this case, the State cannot argue
credibly that defendant had no expectation of privacy in an
apartment where he was allegedly conducting an illegal drug
2
Goodman testified that while it appeared to him that the
landlord was not renting the unit at the time, he "didn't speak
to the landlord to verify that."
16 A-1028-13T2
distribution operation. In fact, at one point, the judge
determined that the presence of a letter addressed to defendant
found inside the apartment was "sufficient evidence" that he
"occupied the area." Trowbridge testified that he assumed the
apartment was "not rented out" but conceded no effort had been
made to ascertain from the landlord or building superintendent
whether that was so.
Beyond this, the apartment had furniture inside, as well as
a gaming console, other electronic equipment, clothing, bags,
Nike sneakers and Timberland boots. This is not consistent with
an apartment being abandoned or vacant, and, more importantly,
does not suggest in any manner that the apartment is being
occupied by a trespasser. Given these proofs, the Law Division
erred in finding that defendant had no reasonable expectation of
privacy in the apartment.
The Law Division compounded its error by requiring
defendant to meet a burden of proof demonstrating his reasonable
expectation of privacy. Defendant has no such burden, however.
"[T]he State bears the burden of proving by a preponderance of
the evidence" that, "in light of the totality of the
circumstances, a police officer had an objectively reasonable
basis to conclude that . . . a defendant was a trespasser before
17 A-1028-13T2
the officer entered or searched the home." Brown, supra, 218
N.J. at 529, 535-36.
Now, the State argues that even if the judge's reasoning in
denying the suppression motion was flawed, we should nonetheless
uphold the order denying suppression on grounds of exigency or
protective sweep. While it is true that "we affirm or reverse
judgments and orders, not reasons[,]" State v. Maples, 346 N.J.
Super. 408, 417 (App. Div. 2002), we decline to do so on the
basis of this record, and, given our holding hereinafter
reversing defendant's judgment of conviction. Instead, we elect
to vacate the order of suppression and remand the issue to the
Law Division for further hearing.3
In part, our decision to order a further hearing on
suppression is prompted by our conclusion that the Law Division
erred in refusing to grant defendant's application for leave to
call Detective Stambuli as a witness with respect to the
operability of Bentley's cell phone. Indeed, we find it
3
On remand for a rehearing of a pretrial motion to suppress
physical evidence, the second trial judge is not bound by the
findings of fact or conclusions of law reached by the trial
judge in the first instance. State v. Hale, 127 N.J. Super. 407
(App. Div. 1974)(explaining that "law of the case" doctrine most
commonly applies to the binding nature of appellate decisions
upon a trial court on remand for further proceedings).
Accordingly, on remand, the trial court may conduct an expanded
hearing to gather additional information relevant to the issue
of suppression. State v. Henderson, 208 N.J. 208, 300 (2011).
18 A-1028-13T2
especially ironic that the State now urges us to accept as a
fact that Bentley called "[defendant] and indicated, 'they're at
the front door. They are coming in[,]'" when, in fact, the judge
made no such finding and explicitly found the claim to be
"irrelevant," partially at the urging of the State.
"Where there is a dispute as to material facts on a motion
to suppress . . . the trial court should not restrict the State
or defendant in the presentation of all relevant evidence so
that, if appellate review is had, the record will be complete,
and a final adjudication can be made." State v. Hope, 85 N.J.
Super. 551, 555 (App. Div. 1964); see also State v. Wilson, 178
N.J. 7, 14 (2003); State v. Gaudiosi, 97 N.J. Super. 565, 568-69
(App. Div. 1967).
In this case, the Law Division denied defendants' motion to
suppress without hearing all of the evidence because the judge
concluded that potentially key evidence was "irrelevant."
Indeed, even if such reasoning were correct, the judge should
not have precipitously aborted the hearing without allowing the
defense to complete its case. It is not self-evident that the
telephonic transmission was irrelevant to the suppression of
evidence discovered in the apartment. Moreover, such evidence
was at least pertinent to the issue of the credibility of the
testifying officer. While we express no opinion regarding the
19 A-1028-13T2
significance of this evidence, the complexities attendant upon
the issues of exigency and protective sweeps underscore the
point that the judge should not have undertaken to decide the
motion to suppress without hearing all the evidence.
Whether there were exigent circumstances sufficient to
justify a warrantless search or seizure is a "highly fact-
sensitive" inquiry. State v. Alvarez, 238 N.J. Super. 560, 568
(App. Div. 1990)(internal quotes omitted); see also Johnson,
supra, 193 N.J. at 552. The pertinent factors include:
the degree of urgency and the amount of time
necessary to obtain a warrant; the
reasonable belief that the evidence was
about to be lost, destroyed, or removed from
the scene; the severity or seriousness of
the offense involved; the possibility that a
suspect was armed or dangerous; and the
strength or weakness of the underlying
probable cause determination.
[State v. Walker, 213 N.J. 281, 292 (2013).]
"[E]xigent circumstances will be present when inaction due to
the time needed to obtain a warrant will create a substantial
likelihood that the police or members of the public will be
exposed to physical danger or that evidence will be destroyed or
removed from the scene." Johnson, supra, 193 N.J. at 553.
A protective sweep of the home may only occur when:
(1) police officers are lawfully within
private premises for a legitimate purpose,
which may include consent to enter; and (2)
the officers on the scene have a reasonable
20 A-1028-13T2
articulable suspicion that the area to be
swept harbors an individual posing a danger.
Where those substantive conditions are met,
as a matter of procedure, the sweep will be
upheld only if (1) it is conducted quickly;
and (2) it is restricted to places or areas
where the person posing a danger could hide.
[State v. Davila, 203 N.J. 97, 102 (2010).]
When the sweep is performed in the non-arrest setting, and "not
due to the execution of an arrest warrant, the legitimacy of the
police presence must be probed." Id. at 126. It is obvious,
therefore, that both issues are exquisitely fact-sensitive and
require the court's most discerning analysis.
In addition, it is unclear whether the State and the
defense presented all evidence relevant to the issues of
exigency and a protective sweep – issues that, in any event,
were not considered by the Law Division. Therefore, the State
should be afforded the opportunity to present any additional
evidence it may have relevant to these issues. Defendant also
should be afforded the opportunity to present evidence regarding
the claimed exigency and protective sweep.
Accordingly, the order granting defendants' motion to
suppress is reversed, and the matter is remanded to the trial
court for such further hearings it determines, after
consultation with the parties, are appropriate.
21 A-1028-13T2
II.
We turn now to the trial itself and we address defendant's
argument that he was denied a fair trial as a consequence of the
court's charge to the jury on flight, and the court's refusal to
give a "mere presence" charge.
The trial testimony of Trowbridge and Goodman was, in large
measure, similar to their testimony at the suppression hearing.
However, at trial, both testified in greater detail respecting
the alleged cellphone call made by Bentley. Goodman testified
that as Trowbridge was knocking on the front door of the
building, Bentley, who had left the building moments earlier,
walked near the surveillance vehicle with a cellphone held to
his face and said, "They're at the door, they're coming in now."
He conceded that he could not ascertain who Bentley was speaking
to at the time, and that Bentley was not arrested by Jersey City
police officers. He added that Bentley was taken from the scene
by "another agency."
Trowbridge testified that he "believe[d]" Goodman relayed
his purported conversation with Bentley over the radio and that
he heard the transmission. Moreover, although he had no
awareness that there was anyone inside the apartment on the
second floor, he decided to enter that apartment based on
Goodman's transmission, and the fact that he had heard someone
22 A-1028-13T2
running on the second floor. He conceded he could not identify
the person he heard running upstairs, and that defendant did not
have a cellphone at the time he was arrested.
Trowbridge also testified that "alerting individuals
involved in drug activity that there are police present" is a
crime; however, he explained that Bentley was not arrested in
connection with the narcotics investigation because Bentley's
phone call could have been made "for — the reason the other
agency was there for or it could have been for what [the
narcotics officers] were there for. [He] didn’t determine that.
The other agency at the time took [Bentley] with them."
Sergeant Trowbridge added, "I couldn’t determine if [Bentley]
was notifying them that, you know, as part of the drug
investigation, or the other investigation that was being
conducted." The nature of the "other investigation" – that the
U.S. Marshals were pursuing defendant on a warrant for an
alleged homicide — was not revealed at trial.
During the charge conference, defense counsel asked the
judge to give the jury a "mere presence" charge, in view of the
fact that the only link between defendant and the second floor
apartment was the presence of a letter bearing defendant's name.
That letter had a different address than the building where it
was found. The only other fact was that defendant was arrested
23 A-1028-13T2
in the apartment on the third floor. The judge declined to give
the charge because, in his view, "there is no such charge."
Additionally, the judge gave the jury an instruction on
flight as evidence of guilt. Model Jury Charges, Criminal—Flight
(May 2010). The instruction given by the judge on the issue of
flight, while otherwise consistent with the Model Charge,
nonetheless was untethered to any facts developed at trial. The
judge stated only that "some evidence" had been elicited at
trial from which the jury "may infer" that defendant fled.
During the State's closing statement, the prosecutor
argued, "You can consider the fact that [defendant] ran from the
second floor to the third floor as consciousness of guilt. . . .
He was putting distance between himself and those police
officers, who he knew, based upon Mr. Bentley's phone call, were
on their way into [the building]." This argument was made
without objection by defendant.
At the beginning of the first full day of deliberations,
the jury asked the court:
What happens if we are not unanimous about
the decision of one of the Defendants? Was
there statements provided about the
relationship between Randolph and tenant,
Randolph and Markees, Markees and tenant?
. . . .
24 A-1028-13T2
Where in the third floor apartment was
Randolph arrested from and where was he
hiding?
In response, the trial court instructed the jurors that they
should rely upon their own memory of the testimony at trial,
"use [their] own good common sense[,]" and to send a note if
they wanted a read-back of particular testimony. As we have
noted, the jury subsequently returned a guilty verdict on all
counts of the indictment.
Addressing first defendant's argument that the trial judge
erred in refusing to charge "mere presence," we hold that, in
the circumstances of this case, the judge's refusal to craft
that charge and instruct the jury with respect to its
applicability was prejudicial error, despite the judge's
comprehensive charge to the jury on the principle of
"constructive possession."
"Clear and correct jury instructions are essential for a
fair trial." State v. Brown, 138 N.J. 481, 522 (1994). "'A
[jury] charge is a road map to guide the jury, and without an
appropriate charge, a jury can take a wrong turn in its
deliberations.'" State v. Nelson, 173 N.J. 417, 446 (2002)
(quoting State v. Martin, 119 N.J. 2, 15 (1990)). Trial courts
have a sua sponte obligation to provide correct charges, State
v. Robinson, 136 N.J. 476, 489 (1994), and erroneous
25 A-1028-13T2
instructions are "poor candidates for rehabilitation under the
harmless error philosophy." State v. Loftin, 146 N.J. 295, 412
(1996)(quoting State v. Simon, 79 N.J. 191, 206 (1979)).
"Mere presence" at the place where the contraband is
located is insufficient to establish constructive possession.
State v. Whyte, 256 N.J. Super. 518, 523 (App. Div. 1992).
There must "be circumstances beyond mere presence" that permit a
reasonable inference of the defendant's intention and capacity
to exercise control over the object and the defendant's
knowledge of what the object is. Ibid.; see also State v.
Palacio, 111 N.J. 543, 551-54 (1988), and State v. Shipp, 216
N.J. Super. 662, 664-65 (App. Div. 1987).
We recognize that ordinarily the model jury instruction
leaves no "room to doubt that 'mere presence' [is] insufficient
to bring about a finding of the necessary elements of
possession." State v. Montesano, 298 N.J. Super. 597, 612-15
(App. Div.), certif. denied, 150 N.J. 27 (1997). However, we
have also held that in limited circumstances the jury charge
must be tailored to ensure that the jury understands that "mere
presence" will not suffice.
In Montesano, we held that an accurate and complete charge
on possession and constructive possession, read "as a whole, . .
. left no room to doubt that 'mere presence' was insufficient to
26 A-1028-13T2
bring about a finding of the necessary elements of possession."
Ibid. However, in the case before us, given the paucity of
proofs connecting defendant to the CDS found in the apartment,
and the jury question suggesting that jurors had concerns about
the issue, it was incumbent upon the judge to clearly apprise
the jury on the law pertaining to defendant's "mere presence" in
the building. The failure to do so invited the jury to
speculate about a legal issue that required a clear instruction
by the judge.
"When a jury requests clarification, the trial judge is
obligated to clear the confusion." State v. Conway, 193 N.J.
Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984).
"A question . . . means that one or more jurors need help and
that the matter is of sufficient importance that the jury is
unable to continue its deliberations until the judge furnishes
that help." State v. Parsons, 270 N.J. Super. 213, 221 (App.
Div. 1994). Here, the jury's question, reasonably understood,
sought guidance from the court respecting the relationship of
defendant to the apartment. That question had an unambiguous
and well-settled legal answer, which is that defendant's mere
presence in the building, without more, is a legally
insufficient basis to support a finding of constructive
possession, and that "all of the surrounding circumstances" must
27 A-1028-13T2
be considered in their "totality" in evaluating whether the
State has established that a defendant was in constructive
possession of contraband. Palacio, supra, 111 N.J. at 547
(quoting the jury charge given by the trial court with
approval).
In Shipp, supra, we concluded that the defendant's mere
presence, without more, in a vehicle where a passenger is
carrying drugs does not necessitate the conclusion that "he was
sharing in the international control and dominion over the
contraband." 216 N.J. Super. at 666. In Montesano, supra,
while we concluded that it was not reversible error for the
trial judge to refuse defendant's request to charge the jury on
"mere presence," 298 N.J. Super. at 614, we noted that unlike
Shipp, the defendant was the driver of a car containing CDS,
that he made inculpatory statements after the drugs were found,
and that he also had the same drug in his bag which he admitted
belonged to him. Thus "the charge, combined with the evidence .
. . and the jury charge taken as a whole, resulted in an
accurate statement of the law." Montesano, supra, 298 N.J.
Super. at 615.
In Palacio, supra, the Supreme Court approved a jury
charge which is instructive here. There, a large quantity of
cocaine was found hidden in a secret compartment in a vehicle
28 A-1028-13T2
behind the seat. 111 N.J. at 545. Both the driver and the
defendant, a passenger, were arrested. Ibid. At trial, the
judge instructed the jury that:
the fact that the defendant was an occupant
of a vehicle, which undoubtedly contained
cocaine, . . . the status of the defendant
in relation to the vehicle, how long . . .
the defendant [was] in the vehicle, . . .
the proximity of the defendant to the drugs
that were ultimately found in the vehicle, .
. . whether or not those drugs were easily
accessible to him, . . . his demeanor when
he was confronted by the police, his
nervousness, if any, [and] his feigning lack
of knowledge of the English language, if
any.
. . . .
[The jury may also] consider whether or not
it was reasonable for him to be an innocent
occupant of the motor vehicle, and . . . any
other evidence or lack of evidence that has
a bearing upon the elements in this case,
[including] anything that might have, or
might not have been found of an
incriminatory nature on the defendant's
person, [and proximity or lack thereof] . . .
of the defendant's personal articles . . .
to where the drugs were located.
[Id. at 547-48.]
The Court explained that the large quantity of cocaine, the
value of the drugs, and the conduct of the defendant as the
drugs were being seized were evidence that the defendant had
"guilty knowledge of the presence of the drugs." Id. at 552.
29 A-1028-13T2
In the present case, however, the judge gave no instructions to
the jury which explicated the significance of its fact-finding.
The judge should have provided direction focusing the
jurors' attention on relevant circumstances — the placement and
accessibility of the contraband in the apartment and defendant's
access to and connection with the apartment and its occupants.
Ibid.
We recognize that the model jury charge on constructive
possession does not include a charge on mere presence, but the
instruction given by the trial court and quoted by the Supreme
Court in Palacio illustrates how a court can fashion one that
gives the jurors guidance in considering the facts of a
particular case.
The difficulty here is that by directing the jurors, in
essence, to resolve a question about the law by using "their own
good common sense," the judge misinformed them. The question of
guilt was for the jury's determination based on their "common
sense" consideration of the evidence, but the legal sufficiency
of "mere presence" is a matter of law, not a question committed
to the common sense of the jurors deciding individual cases.
The court's response to the jurors' question, read as whole, was
clearly capable of leading the jurors to conclude that they were
free to infer that the State proved defendant's constructive
30 A-1028-13T2
possession by showing that he was in the building. Because we
have serious doubt about whether the jurors' verdicts are based
on a misunderstanding of the law, we reverse his conviction and
remand for a new trial. R. 2:10-2; State v. Macon, 57 N.J. 325,
335-36 (1971).
We shall briefly address the judge's charge on flight,
although, given our conclusion above, it is not necessary to do
so. Because the issue may arise again at trial, and because we
do not wish our failure to address the issue as signaling our
approval of the judge's instruction here, we provide the
following brief exegesis on the issue of flight.
It is well-established that certain conduct after the
commission of a crime may indicate a defendant's consciousness
of guilt. State v. Phillips, 166 N.J. Super. 153, 159 (App.
Div. 1979), certif. denied, 85 N.J. 93 (1980). To be
admissible, the conduct must be "intrinsically indicative of a
consciousness of guilt, such as unexplained flight, or an
unusual exhibition of remorse for the victim of the crime, or
the switching of clothes with a cell mate before a lineup."
State v. Pindale, 249 N.J. Super. 266, 283 (App. Div. 1991)
(quoting Phillips, supra, 166 N.J. Super. at 160). If the
alleged conduct is not intrinsically self-inculpatory but is
admitted to show culpability, there is the risk a jury will
31 A-1028-13T2
impermissibly "speculate, unaided by any evidential base, as to
defendant's motive in so conducting himself." Phillips, supra,
166 N.J. Super. at 160.
The most common example of conduct that can give rise to an
inference of consciousness of guilt is flight. Flight from
custody or the scene of a crime is generally admissible to draw
an inference of guilt, State v. Mann, 132 N.J. 410, 418 (1993),
if done with the purpose of avoiding apprehension, prosecution,
or arrest. Id. at 418-19; State v. Ingram, 196 N.J. 23, 46
(2008); State v. Wilson, 57 N.J. 39, 49 (1970). "Mere departure"
is not enough. State v. Long, 119 N.J. 439, 499 (1990).
"For departure to take on the legal significance of flight,
there must be circumstances present and unexplained which, in
conjunction with the leaving, reasonably justify an inference
that it was done with a consciousness of guilt and pursuant to
an effort to avoid an accusation based on that guilt." Ingram,
supra, 196 N.J. at 46. Accordingly, an adequate jury
instruction on flight would require the jury to find not only a
departure, but also "a motive for the departure, such as an
attempt to avoid arrest or prosecution, that would turn the
departure into flight." Mann, supra, 132 N.J. at 421.
Although evidence of flight is generally admissible, "[t]he
potential for prejudice to the defendant and the marginal
32 A-1028-13T2
probative value of evidence of flight," requires the court to
carefully consider the manner in which such evidence is
presented to a jury. Id. at 420. The probative value of flight
evidence depends on:
the degree of confidence with which four
inferences can be drawn: (1) from the
defendant's behavior to flight; (2) from
flight to consciousness of guilt; (3) from
consciousness of guilt to consciousness of
guilt concerning the crime charged; and (4)
from consciousness of guilt concerning the
crime charged to actual guilt of the crime
charged.
[Ibid. (quoting United States v. Myers, 550
F.2d 1036, 1049 (5th Cir. 1977)).]
Even in those instances where evidence of a defendant's
consciousness of guilt is admitted for another purpose, such
evidence must be accompanied by a limiting instruction advising
the jury that the evidence is probative for only that other,
limited purpose and may not be used to draw any inference of
defendant's consciousness of guilt. See State v. Williams, 190
N.J. 114, 134 (2007).
The conclusion we draw from examining precedent on flight
is that such evidence must unequivocally support a reasonable
inference that the actor's conduct following the commission of a
crime may be relied upon as evidence of the actor's guilt.
Given the indirect value of such evidence, and its potential for
profound prejudice to a defendant, we do not permit equivocal
33 A-1028-13T2
evidence to be utilized by a jury in this manner, and we
carefully craft a charge to the jury explaining the proper uses
and limits of such evidence. On re-trial, the judge must
carefully consider whether it is appropriate to charge flight,
and, if so, must tailor the charge to the facts of the case to
prevent juror confusion.
Finally, given our holdings as set forth above, we need not
address defendant's challenge to the sentence imposed.
Reversed and remanded.
34 A-1028-13T2