STATE OF NEW JERSEY VS. MALCOLM A. BRADLEY (11-10-1031 AND 11-07-1083, MIDDLESEX COUNTY, UNION COUNTY AND STATEWIDE)(CONSOLIDATED) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3707-15T3
A-0060-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MALCOLM A. BRADLEY, a/k/a HOOP
BRADLEY, MALCOLM H. BRADLEY,
MALCOM BRADLEY, and MALCOM
A. BRADLEY,
Defendant-Appellant.
____________________________________
Argued September 12, 2018 – Decided September 28, 2018
Before Judges Sabatino and Sumners.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 11-10-1031;
and Middlesex County, Indictment No. 11-07-1083.
James K. Smith, Jr., Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; James K. Smith, Jr., of
counsel and on the briefs).
Jane C. Schuster, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Sarah C. Hunt, Deputy Attorney
General, of counsel and on the brief in A-3707-15; Jane
C. Schuster, of counsel and on the brief in A-0060-16).
PER CURIAM
These back-to-back appeals 1 concern a homicide prosecution in Union
County (A-3707-15) and a separate narcotics/firearms possession prosecution in
Middlesex County (A-0060-16). The two cases involve the same warrantless
search by police of a house in Edison in Middlesex County. Through the
tracking of his girlfriend's cell phone, the police found defendant Malcolm A.
Bradley at the house several days after a fatal shooting in Plainfield in Union
County of Curtis Stroud.
According to the State's proofs, defendant and Stroud had an argument on
the evening of March 15, 2011. The shooting occurred later that night when a
rented Toyota being driven by defendant pulled up at a stoplight next to an Acura
in which Stroud was a back-seat passenger. Words were exchanged between the
young men, and a gunshot was fired that hit Stroud in the chest and killed him.
The State contends the fatal shot was fired by defendant, whereas
defendant claims Stroud was accidently shot by Stroud's brother Kenneth
1
We consolidate the appeals for purposes of this combined opinion.
A-3707-15T3
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Roberts, a front-seat passenger in the Acura. After the gunfire, defendant sped
away in the Toyota with his cousin Jamie Scott, who was in a relationship with
Roberts.
The Acura driver, Dashaun Randolph, drove Stroud to the hospital with
Roberts. Randolph and Roberts then got back into the Acura and drove away.
They were stopped by police and taken to the police station. The police found
five nine-millimeter bullet cartridges in Roberts' pocket, containing bullets
which a ballistic expert found to be "very, very similar, if not identical to" the
lethal bullet recovered from the rear seat of the Acura. The recovered projectile
was determined to be a ".38 caliber class" bullet, meaning that it could have
been fired from several different types of handguns. However, since the gun
that fired the fatal shot was never recovered, the projectile could not be matched
to the actual handgun.
Roberts denied shooting Stroud, and eventually described the shot as
having been fired from the Toyota. Randolph testified he heard a "firecracker"
sound and smelled and saw smoke coming from outside of the Acura after the
Toyota had pulled alongside. Scott stated she did not see who shot Stroud, and
specifically denied seeing defendant fire a gun.
A-3707-15T3
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Ten days after the shooting, homicide investigators obtained two
Communications Data Warrants ("CDW") and traced the cell phone of
defendant's girlfriend, Nicole Timmons, to the Edison residence. The police had
a warrant to arrest defendant, but not a warrant to search the residence. Later
that evening, more than ten law enforcement officers converged at the Edison
house, after several of them had met at a nearby diner to plan their entry. The
Toyota was parked about a block away.
Several of the officers approached the house. The lead detective rapped
on the front door. The officers entered the house after an occupant named Mikiel
Adl opened the door and stepped to the side. Once inside, the police saw
defendant on a couch. A handgun was found under defendant wedged between
the sofa cushions, although it was not the gun used to shoot Stroud. The police
also found drugs in plain view on a table near defendant.
The police arrested and handcuffed defendant and took him outside to a
squad car. Defendant asked the police for his jacket, which was inside the house.
The police went inside and retrieved the jacket. At trial, Roberts testified that
defendant was wearing this jacket the night of the shooting.
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Before being taken down to headquarters, defendant initiated a
conversation with one of the officers, Sergeant George R. Jiminez. He asked if
Jiminez had spoken "to the [unidentified] girl to get the whole story."
Defendant was charged in Middlesex County with illegal possession of
the confiscated firearm and various drug offenses. He moved to suppress the
gun and drugs seized from the house without a warrant.
The Middlesex County judge conducted a suppression hearing. The judge
heard what he found to be credible testimony by the lead detective describing
the activities of the police in the investigation and the search of the residence.
Following that hearing, the judge ruled the seized contraband was admissible.
Specifically, the judge found that Adl had given the police valid consent to enter
the house. The judge also found that Adl had apparent authority to provide such
consent.
After losing the suppression motion in Middlesex County, defendant
entered into a negotiated guilty plea to second-degree unlawful possession of
the seized gun, N.J.S.A. 2C:39-5(b) and fourth-degree possession of the seized
marijuana with intent to distribute it, N.J.S.A. 2C:35-5. The Middlesex County
judge imposed a six-year custodial sentence on the gun charge, subject to a
three-year parole disqualifier. The judge also imposed a one-year consecutive
A-3707-15T3
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term on the marijuana count, with a six-month period of parole ineligibility.
Pursuant to Rule 3:5-7(d), defendant preserved his right to appeal the Middlesex
County suppression ruling.
Before trial in the Union County case, defendant moved to suppress the
jacket and his post-arrest statement to Sergeant Jiminez. With the consent of
the parties, the Union County judge considered a transcript of the Middlesex
County suppression hearing. The Union County judge also considered
additional testimony, which included the lead detective's revelation about the
officers' planning session that had occurred at the diner before they entered the
Edison residence.
The Union County judge upheld the warrantless entry of the Edison house
on different grounds than the Middlesex County judge. Rather than resting on
a theory of consent, the Union County judge concluded the search was justified
under the exigent circumstances doctrine. The Union County judge found the
police had reasonably believed defendant to be armed and dangerous, and on the
move. The judge concluded it was impracticable to obtain a search warrant
under the circumstances.
The first trial in Union County in the fall of 2014 resulted in a hung jury.
The second trial, which lasted ten days in November 2015, resulted in defendant
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being convicted of murder, N.J.S.A. 2C:11-3(a)(1) and (2), possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and criminal restraint,
N.J.S.A. 2C:13-2.
At sentencing, the Union County judge imposed a forty-two-year term on
the murder count, subject to a parole disqualifier under the No Early Release
Act ("NERA"), N.J.S.A. 2C:43-7.2, plus a concurrent four-year term on the
weapons count. The criminal restraint count merged into the murder count.
In both of these appeals, defendant principally challenges the Middlesex
County and Union County judges' respective denials of his pretrial suppression
motions. Among other things, he maintains the United States Supreme Court's
opinion in Steagald v. United States, 451 U.S. 204 (1981), requires police to
obtain a search warrant in order to enter a third party's residence and execute a
warrant to arrest an occupant located inside the premises. Defendant also
contests the applicability of the consent and exigency exceptions to the warrant
requirement.
Defendant further argues in the Union County appeal that a police witness
who testified at trial for the State gave improper opinion testimony about the
trajectory of the bullet found in the Acura seat cushions. Lastly, defendant
complains that the Union County judge should have issued, sua sponte, a jury
A-3707-15T3
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charge on the concept of third-party guilt relating to defendant's theory that
Stroud had been shot by Stroud's brother Roberts.
More specifically, defendant raises the following points in his brief in the
Union County case (A-3707-15):
POINT I
BECAUSE THE SEARCH WAS COMMITTED IN
CLEAR VIOLATION OF STEAGALD v. UNITED
STATES, 451 U.S. 204 (1981), AND BECAUSE
NEITHER THE CONSENT, APPARENT
AUTHORITY, NOR EXIGENT CIRCUMSTANCES
EXCEPTIONS APPLY, THE MOTION TO
SUPPRESS THE JACKET AND THE DEFENDANT'S
RESULTING ORAL STATEMENT SHOULD HAVE
BEEN GRANTED.
A. The Steagald Rule
B. Mikiel Adl's Act Of "Stepping Aside" For The Police
Did Not Equate To Consent To Enter.
C. Adl's Act Of Answering The Door Did Not, By
Itself, Provide The Police With A Reasonable Basis To
Believe That He Had Apparent Authority To Consent
To A Search Of The Premises.
D. There Were No Exigent Circumstances To Justify
The Entry Into [H.G.'s] House Some Ten Days After
The Shooting.
E. The Jacket Seized After Defendant's Arrest And
Defendant's Subsequent Oral Statement Must Both Be
Suppressed As Fruit Of The Poisonous Tree.
A-3707-15T3
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1. The Seizure of the Jacket
2. The Oral Statement
POINT II
THE DEFENDANT WAS DENIED A FAIR TRIAL
WHEN DET. ADRIAN GARDNER, WHO WAS NOT
QUALIFIED AS AN EXPERT IN CRIME SCENE
PROCESSING, BALLISTICS, OR BULLET
TRAJECTORY, WAS ALLOWED TO GIVE HER
OPINION THAT THE FATAL SHOT HAD COME
FROM THE AREA OF THE REAR PASSENGER
SIDE WINDOW OF THE BLACK ACURA.
A. The Trial Testimony
B. Legal Argument
POINT III
BECAUSE THE DEFENSE OF THIRD[-]PARTY
GUILT WAS THE ONLY DEFENSE PRESENTED,
AND BECAUSE THE FACTS SUPPORTING THAT
DEFENSE WERE CLEARLY INDICATED IN THE
RECORD, THE TRIAL COURT COMMITTED
PLAIN ERROR IN FAILING TO CHARGE THE
JURY ON THAT DEFENSE. (Not raised below)
In his brief in the Middlesex County case (A-0060-16), defendant repeats
verbatim the arguments set forth in Points I (A) through (D) of his brief in the
Union County case.
Having considered these arguments in light of the applicable law and the
record, we affirm defendant's conviction in the Union County case. In doing so,
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we note our disagreement with the Union County judge's analysis of the
suppression issues and his reliance on the exigent circumstances exception.
Nevertheless, we conclude the erroneous suppression ruling was harmless, in
light of the independent evidence of defendant's guilt of the homicide and of the
other Union County charges.
As to the Middlesex County case, we disagree with that judge's denial of
the suppression motion and, in particular, his conclusion that Adl provided valid
consent to allow the police to enter the residence. Because the gun and drugs
seized as a result of the warrantless police entry were an integral aspect of
defendant's negotiated guilty plea to the Middlesex County possessory offenses,
we vacate that judgment of conviction. We remand to allow defendant to
withdraw his plea in that case.
I.
The primary issue in both appeals is the constitutionality of the police
officers' entry into the Edison house without obtaining a search warrant to
authorize their entry. Given the importance of that issue, we recite in greater
depth the factual evidence developed concerning the search and seizure.
A-3707-15T3
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A.
The Middlesex County Suppression Hearing
Detective Sergeant Michael Triarsi of the Union County Prosecutor's
Office was the only witness to testify at the suppression hearing in Middlesex
County. Triarsi was the lead detective on the Stroud homicide case.
Following Stroud's death, Triarsi's office suspected defendant of shooting
Stroud and obtained a warrant for defendant's arrest. Triarsi learned defendant
may have been with his girlfriend, Timmons, after the shooting.
Triarsi's office obtained a CDW to track Timmons' cell phone in an effort
to locate defendant. After the phone was traced to the general area of Fox Road
in Edison, Triarsi obtained another CDW so that the State Police could assist
him in pinpointing the phone's precise location.
With the aid of the CDW information, Timmons' phone was traced to a
certain house on Fox Road in Edison. On March 25, Triarsi and his fellow
officers "observed the vehicle which was a silver Toyota, which was known to
be involved in the homicide, parked approximately a block from the house."
Triarsi then "contacted [the] Edison Police Department, [and] we had them come
to the house. We then went to the house and knocked on the front door."
A-3707-15T3
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Triarsi initially testified that he rapped on the door around 11:30 p.m.
Although Triarsi was wearing plain clothes when he went to the door, he had a
badge around his neck or something identifying himself as a police officer.
Triarsi recalled there were other officers present at the house from the Union
County Prosecutor's Office and patrol officers from the Edison Police
Department.
Triarsi estimated that about ten law enforcement officers had converged
on the house. He recalled about three to five officers were standing directly
around him when he knocked on the door.
According to Triarsi, he "banged on the door, and eventually somebody
came to the door, which [he] subsequently found out was Mikiel Adl." Adl
opened the door. Triarsi asked Adl, "[W]here is he, where is he[?]" Adl then
stepped to the side, at which point the officers went into the house.
When asked to clarify at the Middlesex County hearing whether he had
knocked or banged on the door, Triarsi testified that, "Banged is probably a
better description." Triarsi could not recall if he identified himself as
"Detective" Triarsi at that time, but that he believed he identified himself as a
police officer.
Triarsi described how he entered the home, as follows:
A-3707-15T3
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I banged on the door, Adl opened the door. The door
opens inward, I guess it's inward to the right it would
be. He was standing in front of the doorway. The door
was here, he was standing – the door was to his right.
So, [Adl] was standing in the doorway itself in place of
the door, holding onto the – the door handle. So, as I –
you know, I think I said something to the effect of
where is he, where is he, or something to that effect. At
that point Adl then steps to the side.
Triarsi described Adl as "[k]ind of leaning his body and allowing us access
to the home." He recalled that the other law enforcement officers standing near
him were "all behind" him and that they went inside with him.
The following exchange occurred concerning Triarsi's interaction with
Adl:
Q Did you request Mr. Adl's identification when
you arrived, or did you simply go in as soon as he
stepped to the side?
A Once Mr. Adl stepped to the side we went in the
house.
Q Okay. Did you ask him who he was?
A No.
Q Did you present any documentation to him?
A No.
Q Did you ask Mr. Adl if the owner of the house
was present?
A-3707-15T3
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A No. You're talking initially when we came into
the door?
Q Correct.
A No.
Describing the entry into the house, Triarsi testified, "As you come in the
front door there's a small foyer, and then maybe three feet, four feet, and then
there's the front room, which I – which was what I would call a den, that had a
coffee table and a couch and something there. And that's where [defendant]
was." "We walked in the room, I believe [a] Sergeant . . . at the time was behind
me, he said, there he is. We then went over to the couch were [defendant] was.
At that point in time we took [defendant] into custody."
Triarsi described defendant as laying on his back on the couch when the
officers entered. Once defendant was removed from the couch, the officers
found "a handgun, a 38 [caliber gun]" underneath him. The handgun "was kind
of wedged between [defendant] and the cushions." Triarsi did not need to move
the cushions to find the gun. In addition, Triarsi observed "drugs on the – on
the glass top table, which [wa]s situated in front of that chair – in front of that
couch."
Triarsi acknowledged he had "no idea" who Adl was in relation to the
home when he entered. According to Triarsi, no one indicated to him that he
A-3707-15T3
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could not enter the premises. He testified that no one asked for any information
when the police entered, and that Adl had moved to the side. Triarsi had no idea
who the owner of the home was until after he had entered it and spoke to the
occupants.
Triarsi did not know if defendant lived at the Edison residence. He had
several possible addresses for defendant, and this was not one of them. Police
officers had checked "two or three" known locations they had for defendant, but
he had not been present at any of them. Triarsi stated he had no reason to believe
the Fox Road house was owned by defendant or Timmons, or that they were
living there.
The Middlesex County Judge's Findings of Consent and Adl's Apparent
Authority
The Middlesex County judge found Detective Triarsi's testimony credible.
Upon considering that testimony, the judge concluded that Adl's act of stepping
aside, as described by Triarsi, amounted to an "invitation" for the police to enter
the dwelling. As that judge perceived it:
It is clear that there may not have been words used, but
actions often speak louder than words. And the opening
of the door, stepping aside in an answer to the question
of 'where is he' is clearly, in the [c]ourt's mind, in
finding an invitation to step into the dwelling. And
upon stepping in the dwelling [the police officers]
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observed the person whom they were seeking, Mr.
Bradley, laying on the couch.
[(Emphasis added).]
Based on these findings, the Middlesex County judge denied the
suppression motion on consent grounds, concluding:
This [c]ourt relies on State [v.] Suazo [2] . . . [an opinion
which] recognize[d] that authority to consent arises
from the mutual use of property, but persons generally
having joint access or control for the most purposes.
And in this case clearly the person who came to the door
was exercising what could only be seen as [a] legitimate
right to open that door and invite people in.
[(Emphasis added).]
Alternatively, the Middlesex County judge found that, even if Adl did not
have actual authority to consent to the police entry, he at least had the apparent
authority to do so. The judge noted in this regard, "[c]oming to the door,
opening the door, clearly was an invitation by somebody authorized, having
either direct legitimate authority or apparent authority to enter into the
premise[s]."
The Middlesex County judge recognized the court's responsibility to
consider whether the officers' belief that Adl, a third party, had authority to
2
State v. Suazo, 133 N.J. 315 (1993).
A-3707-15T3
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consent to the police entry was "objectively reasonable in view of all the facts
and circumstances at the time of the search." Applying that test of objective
reasonableness, the judge concluded that Adl had both direct and apparent
authority to consent to the entry and search. Therefore, the judge denied the
motion to suppress the gun and drugs.
Testimony at the Union County Suppression Hearing
At the later suppression hearing in the homicide case, the Union County
judge obtained the parties' consent to allow him to consider the transcript of the
Middlesex County suppression motion, which was moved into evidence.
Triarsi supplemented his testimony at the Union County hearing. His
testimony substantially echoed his earlier testimony from the Middlesex county
hearing, with certain variations and additions.
At the Union County hearing, Triarsi elaborated more fully upon how the
police were monitoring the area around Fox Road, after they tracked Timmons'
phone to that general area. Triarsi explained:
At that point in time we had – we had stayed in the area
where [Timmons' cell] phone was continually pinging
on and we would drive by different locations and look
and – and we had one person watching the vehicle. In
the event we saw somebody coming out of a house or
that looked like [defendant], we knew what he looked
like, so it was just a matter if we saw a car coming out
of the general vicinity we would try to catch up to the
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car, take a look in the car, see if it was [defendant] or
Ms. Timmons or anybody you know that we knew
running license plates, those type of things.
Triarsi described what he and the other law enforcement officers did after
they spotted the Toyota involved in the shooting incident and found the exact
location of Timmons' cell phone. In particular, he recounted 3 that he and several
other officers met at a local diner to plan their entry into the residence:
[The Union County officers] had been in contact with
[the] Edison Police Department because it was
happening in Edison. We had a meet[ing] at the diner
which is down the street from – from this house. We
had some other people watching the house in the event
somebody were to leave. We explained to the Edison
Police Department why we were there, that we had a
search warrant, not a search warrant but we had an
arrest warrant for [defendant] and that we were going
to go knock on the door of [the house on] Fox Road that
he was wanted for a homicide and you know everybody
– make everybody apprised of what was going on.
[(Emphasis added).]
The diner was approximately two blocks away from the Fox Road house,
which the officers kept under surveillance. The meeting at the diner was to
discuss the officers' next steps and course of action. Triarsi testified that not all
3
Notably, the diner meeting was not the subject of testimony at the Middlesex
County suppression hearing.
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of the officers left the house, but that he did, despite the fact that he was in
charge of the investigation.
In his Union County testimony, Triarsi increased his estimate of the
number of police officers who were at the residence. "At the time we knocked
on the door I believe there w[ere] probably five or six people, some five to seven
people from my off—our office meaning the homicide and maybe seven or eight,
six or seven from [the] Edison Police Department."
Triarsi elaborated how he and the other officers were able to get into the
house. According to Triarsi, he
knocked on the door, waited a couple of seconds, you
know, knocked. Inevitably after a short period of time
somebody came to the door. A white male came to the
door. He opened the door. He opened it. Stood in the
doorway where it was opened and I said ["W]here is he,
where is he [?"] or something to that effect. At that
point in time he stepped I guess to – I guess his left foot
backwards and allowed us into the house.
After defendant was arrested inside the house and placed in handcuffs, he
was taken out of the house to Triarsi's vehicle. Triarsi testified that he did not
immediately speak with defendant, but rather issued him warnings using "a
Miranda4 [w]arnings card from [his] wallet." Triarsi testified that he explained
4
Miranda v. Arizona, 384 U.S. 436 (1966).
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to defendant "why he was under arrest . . . that [Triarsi] would like to talk to
him about the homicide but . . . didn't wish to do it at that particular point in
time." Triarsi further stated that, "At some point in the conversation between
[defendant] and [him] [defendant] explained to [him] that the gun that was found
underneath him and the drugs on the table were his. But everything – anything
else in that house was not his."
According to Triarsi, defendant asked for his jacket because he was cold.
In response, Triarsi asked defendant what the jacket looked like, and defendant
apparently gave Triarsi a description of it and said it was inside the house in the
room where he had been arrested. Triarsi recalled that defendant described the
jacket as "either black or green and it had fur on the collar and . . . on the cuffs
also[.]"
Triarsi entered the home to retrieve the jacket, which he found "on the
floor in the room where [defendant] was arrested." Triarsi checked the jacket
for weapons, brought it back to the car, and gave it to defendant by placing it
over his shoulders.
Although Triarsi stated at one point during the Middlesex County
suppression hearing that he had "banged" on the door, at the Union County
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suppression hearing he modulated that description, stating that he had
"knocked." He asserted, "It was not an aggressive bang by any means."
Triarsi reiterated at the Union County hearing that he had no basis for
believing that defendant or Timmons resided at the Fox Road residence. The
officers did not ask whose house they were in or who lived there, until after they
had entered and placed the occupants in handcuffs. After learning that another
woman, H.G., lived in the house and that her father owned it, the police asked
H.G. if she would consent to a search of the home. According to Triarsi, H.G.
refused to consent to such a search. After defendant and the other occupants of
the home were arrested, Triarsi applied for a search warrant. 5
Sergeant Jiminez, who had not testified at the Middlesex County hearing,
testified for the State at the Union County suppression hearing. Jiminez
principally described his post-arrest interaction with defendant in his patrol car.
As Jiminez recounted on direct examination:
Q When you transported [] defendant into your
vehicle did he say anything to you?
A Yes, he did.
Q And what did he say to you?
5
The fruits of any subsequent search of the house are not at issue on appeal.
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A We had a very brief conversation. He asked me
questions about his charges. I told him to hang on, we
were on our way to our office where I was going to put
him on video tape and Mirandize him again on video
and I could answer any questions he had. He continued
to engage me in conversation, I told him a couple of
times just hang on, we'll get into the office pretty soon,
we'll go up to my office and I'll talk to you right away.
On the way in he mentioned that he was anemic
and we spoke about that for a quick second, he then
made reference to – he stated actually something along
the lines did you speak to the girl to get the whole story.
Again, I told him sit tight we'll be in our office in a
couple of minutes and at that point I took him – once
we arrived to our office I brought him upstairs to the
homicide unit.
[(Emphasis added).]
According to Sergeant Jiminez, he did not start any of this conversation with
defendant. Jiminez denied asking defendant any questions. In addition, Jiminez
did not answer defendant's questions, but rather told him "to sit tight, [and] wait
until we get to the office."
After considering the testimony, the Union County judge denied
defendant's motion to suppress his jacket and defendant's post-arrest statement
to Jiminez about talking to "the girl." Unlike the Middlesex County judge, the
Union County judge upheld the police entry and search on exigency grounds
A-3707-15T3
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rather than on a theory of consent. In his written opinion, the Union County
judge reasoned as follows:
The defendant was charged with a brutal murder, an
execution with a firearm after an argument at a KFC.
The defendant was not at any of the usual[ ] places he
lived or stayed. He was on the move. The defendant
was known to use his girlfriend's silver Toyota on a
regular basis. It was the car that allegedly was used in
the murder and was parked near [the address on] Fox
Road. The defendant was known to be frequently with
his girlfriend Nicole Timmons. Prior to the arrest,
Timmons' cell phone was moving. The defendant was
not in any of the locations where he lived or stayed, he
appeared to be on the move, the car he used was near
the [house on] Fox Road, there was a direct hit that the
phone was located [there], and the police had every
reason to believe he would not be staying there on a
permanent basis and was armed and dangerous.
Under these circumstances I find that the police
had reason to believe the defendant was at [the house
on] Fox Road, that he was dangerous, and that exigent
circumstances justified their entry.
In support of this analysis, the Union County judge cited to State v. Craft,
425 N.J. Super. 546, 554-55 (App. Div. 2012). The judge quoted a portion of
that opinion, which states:
Whether exigent circumstances justify dispensing with
the need for a search warrant must be determined on a
case-by-case basis with the focus on police safety and
preservation of evidence. In each case it is the
circumstances facing the officers that tell the tale.
While there is no magic formula, a court must consider
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the totality of the circumstances to determine whether
it was impracticable to secure a warrant prior to the
search.
[Ibid. (internal quotation marks and citations omitted).]
The Union County judge analogized the present case to the situation in Craft:
"As in Craft, . . . defendant [in this case] was potentially armed and dangerous,
and I therefore find it was impractical to get a warrant and the safety of the
officers dictated that they proceed in the manner in which they did."
B.
Under the Fourth Amendment of the United States Constitution and under
Article 1, 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), overruled on
other grounds by, State v. Witt, 223 N.J. 409 (2015). A defendant has a
constitutional right to be free from indiscriminate searches and seizures by
police without a warrant, unless one or more of the recognized exceptions to the
warrant requirement apply. Witt, 223 N.J. at 422 (citation omitted).
In connection with these principles, defendant argues the Supreme Court's
opinion in Steagald v. United States, 451 U.S. 204, renders unconstitutional the
police entry into the Edison residence, without a search warrant, for the purpose
A-3707-15T3
24
of executing an arrest warrant on defendant, an occupant within the premises.
On the facts presented in Steagald, the Court held that the search violated the
Fourth Amendment because warrantless searches of homes are generally
impermissible, absent consent or exigent circumstances. Id. at 216.
However, Steagald does not address the precise context presented in this
case. As this court recognized in State v. Miller, 342 N.J. Super. 474, 477, 489
(App. Div. 2001), in interpreting Steagald, the issue of whether evidence found
during a search "conducted upon execution of a . . . warrant for [a] defendant's
arrest, but without a search warrant," and "in a third-party's home" should be
suppressed is "a factual situation one step removed from Steagald [.]"
To be sure, the first line of the Steagald opinion broadly reads, "The issue
in this case is whether, under the Fourth Amendment, a law enforcement officer
may legally search for the subject of an arrest warrant in the home of a third
party without first obtaining a search warrant." 451 U.S. at 205. Nevertheless,
the opinion later reflects that the discrete issue the Court actually decided in
Steagald was more limited in scope.
As the Court clarified in Steagald, "the narrow issue before [the Court] is
whether an arrest warrant – as opposed to a search warrant – is adequate to
protect the Fourth Amendment interests of persons not named in the warrant,
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25
when their homes are searched without their consent and in the absence of
exigent circumstances." Id. at 212 (emphasis added). The Court expressly noted
that it was not addressing a situation in which a defendant is the subject of the
arrest warrant, but not a resident or owner of the searched premises. Id. at 219.
As the Court explained, "The issue here, however is not whether the subject of
an arrest warrant can object to the absence of a search warrant when he is
apprehended in another person's home, but rather whether the residents of that
home can complain of the search." Ibid. (emphasis added). Hence, Steagald is
not on point for the present case.
That said, we agree with defendant that he has standing under New Jersey
case law to challenge the warrantless police entry into the Edison house, despite
the fact that he did not own the house or reside there and was not perceived by
the police to be an owner or resident. In Miller, we addressed an appeal that
arose from "the trial court's grant of [the] defendant's motion to suppress
evidence that was found . . . in a third-party's home in a search conducted upon
execution of a parole warrant for [the] defendant's arrest, but without a search
warrant." 342 N.J. Super. at 477. Miller is thus similar factually to the present
appeal.
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26
We noted in Miller that "our principles of standing to bring a motion to
suppress evidence obtained in an unlawful search and seizure are broader than
those which govern the application of the standards developed under the Fourth
Amendment to the Constitution of the United States." Id. at 478 (citation
omitted). "Under State law, the motion may be brought by a defendant against
whom evidence is proffered 'if he has a proprietary, possessory or participatory
interest in either the place searched or the property seized.'" Ibid. (citation
omitted).
The New Jersey Supreme Court recently reaffirmed these broader
standing principles under our State law in State v. Randolph, 228 N.J. 566, 585-
89 (2017), holding that when a defendant is charged with a possessory offense,
standing is automatic, unless the State can show the premises searched were
abandoned or the defendant was a trespasser. Moreover, the Court in Randolph
noted it has "roundly rejected hinging a defendant's right to challenge a search
based on 'a reasonable expectation of privacy' analysis." Id. at 583 (citations
omitted). Hence, even if a non-owner and non-resident occupant of a dwelling
does not have the same privacy interest in the premises as an owner or resident,
he or she nonetheless can object in our State courts to the constitutionality of a
warrantless police entry into the house.
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27
Here, defendant was charged with, among other things, possession of the
gun found in the house underneath him on the sofa and the drugs found on the
table next to him. He therefore had a presumed possessory interest enabling him
to object to the seizure of those items.
In addition, the jacket the police removed from the premises was used by
the State in the Union County case as evidence of defendant's participation in
the homicide. Accordingly, he had a participatory interest to support his motion
to suppress the jacket evidence. See State v. Mollica, 114 N.J. 329, 339-40
(1989) (explaining the concept of a defendant's "participatory interest" in
evidence of a crime, which can confer standing upon "a person who, challenging
the seizure and prosecutorial use of incriminating evidence, had some culpable
role, whether as a principal, conspirator, or accomplice, in a criminal activity
that itself generated the evidence").
Thus, regardless of the inapplicability of Steagald, defendant has standing
under New Jersey law to move to suppress these physical items. Neither of the
exceptions to standing apply. There is no evidence that the Edison house was
abandoned, or that defendant was trespassing on the premises. Cf. Randolph,
228 N.J. at 583 (noting the exceptions for abandoned premises and trespassers).
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C.
We now turn to whether the State demonstrated that the consent or exigent
circumstances exceptions to the constitutional warrant requirement pertain here.
In doing so, we remain mindful of our scope of appellate review. We must defer
to the trial court's findings of fact "so long as those findings are supported by
sufficient evidence in the record." State v. Hubbard, 222 N.J. 249, 262 (2015)
(internal citations omitted); see also State v. Gonzales, 227 N.J. 77, 101 (2016)
(recognizing factual findings will be upheld if there is sufficient credible
evidence in the record to support the findings).
However, we owe no deference to the trial court's conclusions of law. See
State v. Hinton, 216 N.J. 211, 228 (2013) (internal citations omitted). Nor are
we "obliged to defer to clearly mistaken findings . . . that are not supported by
sufficient credible evidence in the record." State v. Gibson, 218 N.J. 277, 294
(2014).
To a considerable extent, the respective rulings of both the Middlesex
County and Union County judges on the suppression motions embody a mixture
of factual and legal determinations, and the significance, under search -and-
seizure principles, of factual details that emerged at the two hearings. Our scope
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29
of review is therefore a mixed one, depending upon the particular facet of the
trial court's decision in question.
1.
We first consider the consent exception relied upon by the Middlesex
County judge. It is well-established that a resident of property may vitiate the
warrant requirement by consenting to a search by the police. State v. Domicz,
188 N.J. 285, 305 (2006); see also State v. Legette, 227 N.J. 460, 474-75 (2017)
(ruling the State failed to establish consent to justify the warrantless police entry
of a residence).
An "essential element" of such consent to conduct a warrantless search is
the individual's "knowledge of the right to refuse [it]." State v. Johnson, 68 N.J.
349, 353-54 (1975); see also Legette, 227 N.J. at 475 (reversing a finding of
consent by a defendant who had been stopped by an officer on a reasonable
suspicion of illegal drug use, because the State had not shown the defendant
"thought he could refuse [the officer's] entry into his apartment"). In a
noncustodial setting such as the present one, the State does not necessarily have
to establish that police officers expressly advised the person who allowed their
entry of the right to refuse consent, but that burden remains on the State to
demonstrate that person's knowledge of right to refuse. Johnson, 68 N.J. at 354.
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30
"[C]onsent to a warrantless search . . . must be shown to be unequivocal,
voluntary, knowing, and intelligent." State v. Sugar, 108 N.J. 151, 156 (1987).
Consent is a factual question determined by an examination of the totality of the
circumstances. State v. Koedatich, 112 N.J. 225, 264 (1988).
Applying these legal standards, we respectfully disagree with the
Middlesex County judge's conclusion that Adl, who opened the front door of the
Edison house, gave the large group of assembled police officers valid consent
to enter and search the dwelling. The State did not offer any evidence that
Detective Triarsi or any of the other officers on the premises advised Adl of his
right to refuse consent. Nor did the State establish that Adl already was aware
of that right.
The mere fact that Adl leaned aside after he encountered the officers at
the door is insufficient proof that he knowingly and voluntarily consented to
their entry into the dwelling. As described at the two hearings, Triarsi either
"knocked" or "banged" on the door. He was wearing garb that identified him as
a law enforcement officer. He was joined by three or more other officers
assembled behind him, with several other officers on site. Rather than identify
himself or converse with Adl, Triarsi immediately demanded to know "[W]here
is he[?]" referring to the suspect.
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31
Although there is no proof in the record as to whether any of the officers
had their guns drawn, the totality of circumstances objectively would have been
intimidating or alarming for a citizen opening the door to this encounter. As the
Court observed in Johnson, "[m]any persons, perhaps most, would view the
request of a police officer to make a search as having the force of law." 68 N.J.
at 354. Hence, "[u]nless it is shown by the State that the person involved knew
that he had the right to refuse to accede to such a request, his assenting to the
search is not meaningful." Ibid.; see also State v. Rice, 115 N.J. Super. 128,
130-31 (App. Div. 1971) (ruling that where a police officer knocked on an
apartment door and entered, without any words being spoken between the officer
and the person who opened the door, the entry was not with knowing consent
and instead was, "[a]t best . . . permitted in submission to authority").
Given the setting here, the Middlesex County judge's conclusion that Adl
voluntarily "invited" the group of officers to enter the house is unrealistic and
not supported by substantial credible evidence. We thus conclude the consent
exception does not apply.
We likewise are unpersuaded the record suffices to establish Adl had
apparent authority to allow the officers into this private dwelling. The United
States Supreme Court has applied the apparent authority doctrine "when officers
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32
enter without a warrant because they reasonably (though erroneously) believe
that the person who has consented to their entry is a resident of the premises [.]"
Illinois v. Rodriguez, 497 U.S. 177, 186 (1990) (emphasis added); see also
Georgia v. Randolph, 547 U.S. 103, 109 (2006) (noting that police may
reasonably rely upon consent given by "a co-occupant whom the police
reasonably, but erroneously, believe to possess shared authority as an occupant"
(emphasis added)).
The Court has warned in this context that Fourth Amendment rights must
not be "eroded . . . by unrealistic doctrines of 'apparent authority.'" Stoner v.
California, 376 U.S. 483, 488 (1964). The Middlesex County trial court's
analysis here threatens such an erosion. It is not objectively reasonable for
police to assume that whenever an adult answers a door to a dwelling, the adult
has the apparent authority to consent to the police entering.
The officers did not ask Adl if he owned or lived in the house. They
obtained no information before entering about his reason for being on the
premises. Adl's conduct in opening the door in response to Triarsi's knocking
or banging, and in thereafter leaning his body away from the officers' path does
not provide sufficient objective indicia that he possessed the right to decide who
may enter the premises.
A-3707-15T3
33
Indeed, the police appeared to know little about the Edison house other
than that it was the present location of Timmons' cell phone. They had no
information that defendant or Timmons lived there or whether Adl was their
relative or guest. There simply is not enough evidence in this record to
conclude, as a matter of law, that Adl possessed the apparent authority to consent
to the police entry.
Lastly, we note that it is somewhat instructive that the Union County
judge, who was supplied in advance of his own hearing with the suppression
transcript containing the Middlesex County judge's earlier oral ruling, did not
adopt a consent or apparent authority justification for the search. Instead, as we
discuss, infra in Part I(c)(2), the Union County judge rested his suppression
ruling on different grounds of exigent circumstances.
2.
The doctrine of exigent circumstances is a long-recognized exception to
the Fourth Amendment requirement that police obtain a search warrant in order
to gain non-consensual entry to a private residence. See Payton v. New York,
445 U.S. 573, 587-88 (1980). "To invoke [this] exception, the State must show
that the officers had probable cause and faced an objective exigency." State ex
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34
rel. J.A., 233 N.J. 432, 448 (2018) (citations omitted). The latter inquiry is fact-
sensitive. Id.Generally, our courts examine several factors in evaluating whether law
enforcement officials have sufficient exigent circumstances to enter a home
without a warrant. These factors typically include:
(1) the degree of urgency involved and the amount of
time necessary to obtain a warrant; (2) reasonable belief
that the contraband is about to be removed; (3) the
possibility of danger to police officers guarding the site
of contraband while a search warrant is sought; (4)
information indicating the possessors of the contraband
are aware that the police are on their trail; (5) the ready
destructibility of the contraband and the knowledge that
efforts to dispose of narcotics and to escape are
characteristic behavior of persons engaged in narcotics
traffic; (6) the gravity of the offense involved; (7) the
possibility that the suspect is armed; (8) the strength or
weakness of the facts establishing probable cause[;] and
(9) the time of the entry.
[State v. Alvarez, 238 N.J. Super. 560, 568 (App. Div.
1990) (citations omitted).]
These factors are "highly fact-sensitive." Ibid. (citation omitted). With respect
to the proper weight to assign to these respective considerations, the New Jersey
Supreme Court has recognized that "[p]olice safety and the preservation of
evidence remain the preeminent determinants of exigency." State ex rel. J.A.,
233 N.J. at 448 (citing State v. Dunlap, 185 N.J. 543, 551 (2006)).
A-3707-15T3
35
"The determinative factor in many exigency cases is whether the location
could have been secured or placed under surveillance for the time period it
would have taken to obtain a warrant." Kevin G. Byrnes, New Jersey Arrest,
Search & Seizure, § 11:4-1(e) (2018-2019); see, e.g., State v. De La Paz, 337
N.J. Super. 181, 198 (App. Div. 2001) (ruling that the ability of the police to
secure the premises effectively weighed against a finding of exigency).
However, "[t]he ability to maintain security or surveillance is often
compromised if the suspects are aware of police activity, and that in itself can
constitute exigent circumstances sufficient to either conduct a full search or to
justify the entry onto premises to secure them pending a warrant." Byrnes, §
11:4-1(e); see, e.g., State v. Galvin, 161 N.J. Super. 524, 530, 542-43 (Law Div.
1978) (finding exigent circumstances justified police entering and securing a
second-floor apartment without a warrant, where they had intercepted a phone
call asking about cops in the area). Here, the record contains no evidence that
the persons inside of the Edison house were aware of the presence of the police
and the surveillance of the dwelling.
Objectively assessed, the pertinent factors weigh against a conclusion of
exigency in this case. To be sure, the recent homicide was a grave and violent
offense. The person who shot the victim could reasonably be expected to be
A-3707-15T3
36
dangerous and armed, since the gun used in the shooting had not been recovered.
There was probable cause that a serious crime had been committed, and the
police had reason to suspect that defendant, who had been seen arguing earlier
with the victim, was the culpable shooter.
On the other hand, the urgent necessity of police to burst into the house
without first attempting to obtain a telephonic warrant is not fairly supported by
the record. The State admits that the police were not in "hot pursuit" of
defendant. See State ex rel. J.A., 233 N.J. at 449 (defining hot pursuit as the
"immediate or continuous pursuit of the [suspect] from the scene of [a] crime."
(citations omitted)). In fact, the police were not confident that defendant was
actually inside of the house. There is no evidence that defendant or Timmons
had been seen going into the dwelling. It was uncertain whether any contraband
or evidence of the "drive-by" shooting that occurred ten days earlier was in the
house. Numerous law enforcement officers were assembled at the location,
monitoring whether someone would leave or enter the house, all poised to take
action.
Perhaps the most significant fact that deflates the State's claim of exigency
is the revelation at the Union County suppression hearing that Detective Triarsi
and several of the officers had the time to meet at a local diner to discuss and
A-3707-15T3
37
plan their entry into the house. While that meeting was occurring, other officers
were back surveilling the house and securing the location. The length of the
diner meeting is not disclosed in the record, and we do not know if the officers
stayed long enough to have a meal or a beverage there. Regardless of the actual
duration, the State has failed to show why the time spent at the diner could not
have been used by one of the officers to contact an emergent duty judge and
seek a telephonic warrant. Notably, the Union County judge's written opinion
does not address the diner meeting, or its bearing upon the State's claim of
urgency. In addition, we note the police were able to obtain two CDW warrants
a few hours earlier without any apparent difficulty.
In State v. Penalber, 386 N.J. Super. 1, 13 (App. Div. 2006), this court
recognized a distinction between "planned" arrests and unplanned arrests made
in the course of an ongoing investigation. In Penalber, we faulted law
enforcement authorities for not arresting the defendant immediately after the
officer had purchased drugs from the defendant. Id. at 14. Instead, the officer
"walked back to the police station, met with the officers on his backup team,
which resulted in a decision to arrest [the defendant], and then returned to the
apartment house to make the arrest." Ibid. We noted that "[a] period of thirty
to forty-five minutes elapsed between the undercover purchase of cocaine and
A-3707-15T3
38
the officers' return to the apartment house, which would have provided ample
time to obtain a telephone warrant for [the defendant]'s arrest." Ibid. Thus, we
concluded the exigent circumstances exception to the warrant requirement did
not apply. Id. at 15. We noted in Penalber that:
In determining whether a warrantless entry into a
residence was justified by genuine exigent
circumstances or was instead the product of a police-
created exigency, a court should "appraise the
[officers'] conduct during the entire period after they
had a right to obtain a warrant and not merely from the
moment when they knocked at the [suspect's] front
door."
Id. at 13 (citations omitted).
As we have noted, the Union County judge analogized this case to the
scenario presented in State v. Craft, 425 N.J. Super. 546 (App. Div. 2012). Craft
is distinguishable from the present case. In Craft "the primary issue on appeal
[was] whether the police violated [the] defendant's constitutional rights when
they entered the bedroom in his mother's apartment without a search warrant,"
once the defendant's mother had already consented to the officers' entry into her
apartment. Id. at 552, 555. There, unlike the present case, law enforcement
personnel knew the defendant's family resided at the address, the defendant's
mother consented to the officers' entry, and officers had reason to believe the
defendant was in the next room when a cell phone started to ring just after the
A-3707-15T3
39
defendant's mother began to call her son's phone. Id. at 554-55. We noted the
arrest warrant arose from a shooting and therefore the defendant was viewed as
potentially dangerous. Id. at 555.
Given the situation in Craft, we were satisfied "there was a compelling
need for immediate action to apprehend [the] defendant, and it was
impracticable for the officers to obtain a search warrant." Ibid. For the reasons
we have already set forth, including the time police spent planning at the diner
meeting, the large number of officers surveilling the house, and the apparent
ease in obtaining the CDWs, no comparable urgency or impracticability in
seeking a proper search warrant is shown by this record. The Union County
judge therefore erred in upholding the search and seizure based upon a premise
of exigent circumstances. 6
D.
Having concluded that neither the consent nor exigency exceptions to the
warrant requirement are supported by the record or the applicable law, we must
consider the ramifications of that conclusion.
6
We add that the Middlesex County judge, by comparison, did not rely on the
doctrine of exigent circumstances, although the transcript of that suppression
hearing contains no such argument by the State.
A-3707-15T3
40
With respect to the Middlesex County prosecution, it is clear that the
firearm and drugs police seized from the house after their illegal warrantless
entry were "fruits of the poisonous tree" and should have been suppressed.
Consequently, the Middlesex County case must be remanded to afford defendant
an opportunity to withdraw his guilty plea.
The outcome differs in the Union County case. It is not readily apparent
that the jacket Detective Triarsi retrieved from the house at defendant's request
was the fruit of an illegal search. To be sure, the police should not have been
inside of the house in the first place without a search warrant. But once
defendant had been arrested and brought outside, he initiated and requested the
re-entry of Triarsi in order to get his jacket. It is unclear whether defendant had
or lacked the authority to permit anyone into the residence. Even assuming he
did not have such authority, there is a substantial question, which we need not
resolve here, as to whether the jacket retrieval was sufficiently attenuated from
the original illegal intrusion to require its suppression. See, e.g., State ex rel.
J.A., 233 N.J. at 446-48 (delineating the contours of attenuation principles). As
the Union County judge noted, "This was nothing more than the police
complying with a reasonable request of a defendant in custody. The fact that
the police later realized that the jacket had some evidentiary value does not turn
A-3707-15T3
41
this into a search and seizure." The judge's observations, although not couched
with the term "attenuation," provide considerable support for such a legal
conclusion, although we need not decide that point here.
In any event, we are satisfied that any possible error in the admission of
the jacket evidence at the Union County trial was harmless, in light of the
independent proofs of defendant's guilt. State v. Macon, 57 N.J. 325, 333
(1971). The jacket was, at best, a minor ingredient of the prosecution's case.
The heart of the dispute at trial was whether the victim had been shot from the
Toyota or from his brother in the front seat of the Acura. The jacket did not
prove which person was the shooter. At most, it simply helped confirm that
defendant had been driving the Toyota, a fact that was separately established by
other proof, including Scott, the Toyota passenger.
We likewise discern no basis to grant defendant a new trial in the homicide
case because of the admission of his post-arrest statement to the sergeant. As
we have noted, the statement was blurted out by defendant without any
prompting from the officer. It was not a fruit of the illegal entry into the house.
The police already had a valid warrant to arrest defendant. If the police had
arrested defendant at another time and location, he conceivably might have tried
A-3707-15T3
42
to initiate a similar conversation with an arresting officer. In sum, the nexus
between the statement and the illegality of the house entry is highly attenuated.
Moreover, the content of the statement, and its unspecified reference to
"the girl," is not clearly incriminatory. It was hardly a key ingredient of the
State's case, which was supported by considerable independent evidence.
Although we are mindful the jury in the first trial was hung and the jurors in the
second trial initially reported they were deadlocked, we do not regard the post-
arrest statement as "clearly capable" of producing any unjust result in the Union
County case. R. 2:10-2.
II.
We next consider defendant's arguments concerning testimony the State
elicited at the second Union County trial from Detective Adrian Gardner
concerning the direction of what is known as a "trajectory rod" she placed into
the bullet hole in the Acura's back seat cushion.
The short portion of Gardner's testimony at the second trial that is the
focus of defendant's claim of reversible error is as follows:
Q [by Union County assistant prosecutor]
Detective, if you had continued that trajectory rod
several more feet, where would the trajectory rod have
led to?
A-3707-15T3
43
A The trajectory rod was leading towards the rear
passenger door at an upward angle towards the window.
Defendant argues it was improper for the court to have permitted Gardner to say
this without her being qualified as an expert witness under N.J.R.E. 702. H e
also maintains the testimony was unfairly prejudicial and the court was obligated
to exclude it under N.J.R.E. 403. We disagree.
Gardner testified as a lay witness. Under N.J.R.E. 701, lay witnesses may
testify about relevant matters based on their personal knowledge. Lay witnesses
may also present certain opinion testimony, provided those opinions are
"rationally based on the perception of the witness" and "will assist in
understanding the witness' testimony or in determining a fact in issue." N.J.R. E.
701; see also State v. McLean, 205 N.J. 438, 463 (2011) (explaining these
concepts and noting the limitations of allowing police witnesses to present what
are essentially expert opinions in the guise of lay opinion).
The State rightly notes that, at no point during the quoted exchange
concerning the trajectory rod does Gardner or the prosecutor refer to the bullet
that hit Stroud and passed through his body, including its trajectory or whether
the bullet's origin could be determined from the trajectory rod's orientation.
Gardner's testimony with respect to the rod, and identifying the direction in
A-3707-15T3
44
which it pointed, was based on her own factual observations of touch and sight.
Her brief testimony on the subject was not an expert opinion.
Even if we were to deem Gardner's testimony to be in the nature of an
opinion, its admission into evidence did not violate the lay opinion rule. The
testimony was grounded on her personal knowledge. It was potentially helpful
to the jury as an aid to determine the source and direction of the fatal shot and
the identity of the shooter. We discern no violation of N.J.R.E. 701 nor the
limitations espoused in McLean.
Nor do we conclude the trial judge abused his discretion in admitting this
testimony. Evidential rulings typically "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. Brown, 170 N.J. 138, 147
(2001)). We detect no such clear error here. Although the ultimate probative
value of the trajectory rod evidence may be reasonably debated (since the bullet
passed through the victim's body and logically could have altered course before
striking the seat cushion), we are unpersuaded that the probative value was
"substantially outweighed" by defendant's contention of undue prejudice. See
N.J.R.E. 403. We therefore reject defendant's claim for a new trial on this
asserted basis.
A-3707-15T3
45
III.
Little needs to be said about defendant's final argument that the Union
County judge was obligated, sua sponte, to supply the jury with the model
instruction about third-party guilt. See Model Jury Charges (Criminal), "Third
Party Guilt Jury Charge" (approved Mar. 9, 2015). This instruction essentially
reinforces the more general instruction to the jurors, which was repeatedly
delivered by the judge, underscoring that the State always maintains the burden
of proof in a criminal trial and the defense has no obligation to prove anything
or present any evidence. The third-party guilt instruction simply ties those
general precepts to a context where, as here, a defendant is suggesting that some
other person is responsible for the harm he is alleged to have caused.
Viewing, as we must, the charge as a whole in light of the record, we are
unpersuaded the court's omission of the unrequested third-party guilt charge was
likely to cause an unjust outcome in this case. "Plain error in the context of a
jury charge . . . [must be] sufficiently grievous . . . to convince the court that of
itself the error possessed a clear capacity to bring about an unjust result." State
v. Hyman, 451 N.J. Super. 429, 455 (2017) (quoting State v. Torres, 183 N.J.
554, 564 (2005)). "Under the plain error standard, 'defendant has the burden of
proving that the error was clear and obvious and that it affected his substantial
A-3707-15T3
46
rights.'" State v. Koskovich, 168 N.J. 448, 529 (2001) (citing State v. Morton,
155 N.J. 383, 421 (1998)).
That burden is not met here. The prosecutor did not suggest in
summations or otherwise that the defense had a burden to prove that Roberts,
rather than defendant, shot the victim, or that defendant was not allowed to re ly
on evidence from the State's case in chief to support such an alternative theory.
The third-party guilt charge was not needed here to defuse some misimpression
injected into the case. Nor is the situation even remotely akin to the omission
of a lesser-included offense instruction that is "clearly indicated" by the proofs.
Cf. State v. Jenkins, 178 N.J. 347, 361 (2004).
IV.
For these reasons, we affirm defendant's conviction in the Union County
case (A-3707-15) and reverse and remand in the Middlesex County case (A-
0060-16) to afford defendant an opportunity to withdraw his guilty plea and have
that judgment of conviction vacated.
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47