STATE OF NEW JERSEY VS. JARRED D. WIGGINS (13-02-0129, UNION COUNTY AND STATEWIDE) ( 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NOT FOR PUBLICATION WITHOUT THE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 NO. A-2048-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JARRED D. WIGGINS, a/k/a J-LO
and JAY,
Defendant-Appellant.
_________________________________
Argued May 16, 2018 — Decided June 21, 2018
Before Judges Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No.
13-02-0129.
Joshua D. Sanders, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Joshua D. Sanders, Assistant Deputy Public
Defender, of counsel and on the brief).
Michele C. Buckley, Special Deputy
Attorney/Acting Assistant Prosecutor, argued
the cause for respondent (Michael A. Monahan,
Acting Union County Prosecutor, attorney; N.
Christine Mansour, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Jarred D. Wiggins appeals from his November 20,
2015 conviction after trial of second-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(b) (count one); fourth-degree
unlawful possession of hollow-point bullets, N.J.S.A. 2C:39-3(f)
(count three); and fourth-degree obstructing the administration
of law by flight, N.J.S.A. 2C:29-1 (count four).1 The trial judge
sentenced defendant to a nine-year prison term with a fifty-four
month period of parole ineligibility on count one, and one-year
in prison on counts three and four to run concurrent to the nine-
year sentence. Defendant appeals from the denial of his motion
to suppress evidence. For the first time on appeal, he raises the
argument that the flight charge given by the judge
unconstitutionally shifted the burden of proof to defendant. He
also maintains that his sentence was excessive. We affirm.
At the motion to suppress, the following testimony was given.
On July 19, 2012, around 10:00 p.m. in a "well known high narcotics
area where numerous arrests have been made," Officer Matthew
Jakubowski of the Roselle Police Department began surveilling East
1
Count two, third-degree receiving stolen property, N.J.S.A.
2C:20-7, was dismissed by the State prior to trial.
2 A-2048-15T1
Ninth Avenue in Roselle in an unmarked undercover vehicle. He saw
four individuals, one of whom was defendant, rolling dice outside
defendant's residence. Jakubowski testified that during a half-
hour period, on four occasions, he observed defendant receive a
phone call, have a brief conversation, leave on a purple mountain
bike, and return within two to three minutes. Based on his
training and experience, Jakubowski thought the defendant was
meeting buyers for narcotics transactions.
Jakubowski then saw defendant enter his home and exit within
about five minutes, go over to his bicycle, lift up his shirt to
place an unknown object "in the waistband of his pants, in the
front," and then leave the area on his bicycle. Jakubowski radioed
two officers to stop and detain defendant.
Officer John Lynn testified he observed defendant two blocks
away and he and Sergeant Brian Byrnes stopped their marked patrol
car and identified themselves as police officers, where upon
defendant took off running. Officer Lynn pursued defendant on
foot. During the chase, defendant reached into his waistband and
discarded an object that made a "distinctive [] metallic sound"
when it "hit the ground." After defendant was arrested, Officer
Lynn went back to the area of the discarded object and found a
loaded handgun with nine hollow-point bullets.
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At trial, Officers Jakubowski and Lynn testified in accord
with their earlier testimony given during the suppression hearing.
The parties stipulated that defendant did not have a permit to
either purchase or carry a handgun.
On appeal defendant raises the following issues through
counsel:
POINT I: THE COURT ERRED IN DENYING THE MOTION
TO SUPPRESS BECAUSE THE POLICE LACKED AN
ARTICULABLE REASONABLE SUSPICION TO STOP MR.
WIGGINS.
A. THE POLICE LACKED AN ARTICULABLE REASONABLE
SUSPICION TO CONDUCT AN INVESTIGATORY STOP.
B. MR. WIGGINS'S ACTIONS DID NOT VALIDATE THE
SEIZURE OF THE HANDGUN.
POINT II: THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY ISSUING AN
UNCONSTITUTIONAL INSTRUCTION ON FLIGHT AS
CONSCIOUSNESS OF GUILT.
POINT III: MR. WIGGINS'S SENTENCE IS
EXCESSIVE, UNDULY PUNITIVE, AND MUST BE
REDUCED.
Defendant raises the following issues in his pro se
supplemental brief:
POINT I: THERE EXISTED NO REASONABLE
SUSPICION TO STOP APPELLANT.
POINT II: APPELLANT'S DEPARTURE FROM THE
ROSELLE POLICE CANNOT FORM THE IMPETUS WHEREBY
EVIDENCE SO SEIZED THEREAFTER BECOMES
ADMISSIBLE DUE TO THE FACT THAT THE TERRY STOP
OF APPELLANT WAS ILLEGAL AND THEREFORE THE
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PRESUMED DERIVATIVE EVIDENCE, IF ANY, MUST BE
SUPPRESSED AS A FRUIT OF THE POISONOUS TREE.
POINT III: THE OFFICERS LACKED PROBABLE CAUSE
TO ARREST APPELLANT AND HIS CONVICTIONS MUST
BE VACATED.
POINT IV: APPELLANT'S CONSTITUTIONALLY
PROTECTED [RIGHT] TO A FAIR AND IMPARTIAL JURY
WAS VIOLATED WHEN A BIASED JUROR WAS SEATED
THAT BELIEVED THAT THE POLICE "DO NOT LIE" AND
THEREFORE APPELLANT'S CONVICTIONS MUST BE
VACATED AND A NEW TRIAL ORDERED.
POINT V: THE LOWER TRIAL COURT ERRED IN NOT
INSTRUCTING THE JURY ON THE ADVERSE INFERENCES
TO BE DRAWN FROM SGT. BYRNES, ET AL, FAILURE
TO ACTIVATE HIS MVR.
POINT VI: THE JURY SHOULD HAVE BEEN GIVEN A
DURESS CHARGE AS AN AFFIRMATIVE DEFENSE TO THE
"OBSTRUCTION" COUNT AND COUNSEL WAS
INEFFECTIVE FOR NOT REQUESTING AS MUCH.
I.
"When reviewing a trial court's decision to grant or deny a
suppression motion, [we] 'must defer to the factual findings of
the trial court so long as those findings are supported by
sufficient evidence in the record.'" State v. Dunbar, 229 N.J.
521, 538 (2017) (quoting State v. Hubbard, 222 N.J. 249, 262
(2015)). "We will set aside a trial court's findings of fact only
when such findings 'are clearly mistaken.'" Ibid. (quoting
Hubbard, 222 N.J. at 262). "We accord no deference, however, to
a trial court's interpretation of law, which we review de novo."
Ibid.
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Both the federal and State constitutions protect citizens
against unreasonable searches and seizures. U.S. Const. amend.
IV; N.J. Const. art. I, ¶ 7. An investigatory stop, sometimes
referred to as a Terry2 stop, implicates constitutional
requirements and must be based on "specific and articulable facts
which, taken together with rational inferences from those facts"
provide a "reasonable suspicion of criminal activity." State v.
Elders, 192 N.J. 224, 247 (2007) (quoting State v. Rodriquez, 172
N.J. 117, 126 (2002)). "Because an investigative detention is a
temporary seizure that restricts a person's movement, it must be
based on an officer's 'reasonable and particularized suspicion
. . . that an individual has just engaged in, or was about to
engage in, criminal activity.'" State v. Rosario, 229 N.J. 263,
272 (2017) (alteration in original) (quoting State v. Stovall, 170
N.J. 346, 356 (2002)). The officer's "articulable reasons" or
"particularized suspicion" is based on the officer's assessment
of the totality of the circumstances. State v. Davis, 104 N.J.
490, 504 (1986).
We disagree with defendant that this case is similar to State
v. L.F., 316 N.J. Super. 174 (App. Div. 1998). There, the officer
noticed the defendant place something in his pocket after following
2
Terry v. Ohio, 392 U.S. 1, 16 (1968).
6 A-2048-15T1
him down a dirt path in a high-crime area. We found that placing
something in a pocket without other suspicious behavior did not
give rise to a reasonable articulable suspicion. Id. at 179-81.
Nor is this situation like State v. Williams, 410 N.J. Super.
549 (App. Div. 2009). In Williams, the police observed defendant
riding a bicycle in a housing complex. When defendant saw them,
he put his hand in his pocket and pedaled away. No other facts
indicated the defendant was involved with drugs or drug sales. We
found the police lacked an objectively reasonable basis to stop
defendant based on these observations.
This case is also different from State v. Tucker, 136 N.J.
158 (1994). There, the defendant was sitting on a curb when he
saw the police and fled. As the police pursued him, he discarded
packets containing cocaine. Our Supreme Court found no reasonable,
articulable basis for the police to stop the defendant merely
because he fled when he saw the police.
We "must decide if the officer's observations, in 'view of
the officer's experience and knowledge, taken together with
rational inferences drawn from those facts,' warrant a 'limited
intrusion upon the individual's freedom.'" Stovall, 170 N.J. at
361 (quoting State v. Caldwell, 158 N.J. 452, 459 (1999)). "[D]ue
weight must be given . . . to the specific reasonable inferences
which [an officer] is entitled to draw from the facts in light of
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his [or her] experience." Ibid. (alteration in original) (quoting
Terry, 392 U.S. at 27). "A court must first consider the officer's
objective observations," and then "must determine whether the
evidence 'raises a suspicion that the particular individual being
stopped is engaged in wrongdoing.'" Davis, 104 N.J. at 501(quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).
We are satisfied here that the totality of the circumstances
provided reasonable articulable suspicion that defendant was
engaging in criminal activity. The officer observed defendant at
night in a high crime area respond to phone calls on his bicycle
four times before he went into his house and came out, put
something in his waistband and set forth again on his bicycle.
Even had the court been mistaken in determining that this
observed activity constituted reasonable articulable suspicion of
criminal activity, defendant did not stop when the police
confronted him, and was convicted of obstruction of justice. Thus,
discarding the gun was attenuated from the original cause for the
stop. See State v. Williams, 192 N.J. 1, 10-11 (2007) (holding
that regardless of the propriety of the stop, the defendant is
obligated to submit to it, and obstruction will break the chain
of the investigatory stop). We affirm the trial court's denial
of defendant's suppression motion.
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II.
Defendant did not testify and the judge gave the model flight
charge without objection from defense counsel. "Pursuant to Rule
1:7-2, a defendant is required to challenge instructions at the
time of trial or else waives the right to contest the instructions
on appeal." State v. Belliard, 415 N.J. Super. 51, 66 (App. Div.
2010). "Where there is a failure to object, it may be presumed
that the instructions were adequate." Ibid. (quoting State v.
Morais, 359 N.J. Super. 123, 134-35 (App. Div. 2003)).
Nonetheless, we briefly consider this argument.
Because defendant failed to object to the jury charge, we
apply a plain error standard, and reverse only if we find a "legal
impropriety in the charge prejudicially affecting the substantial
rights of the defendant and sufficiently grievous . . . to convince
the court that of itself the error possessed a clear capacity to
bring about an unjust result." State v. Nero, 195 N.J. 397, 407
(2008) (quoting State v. Hock, 54 N.J. 526, 538 (1969)).
"Flight from the scene of a crime, depending on the
circumstances, may be evidential of consciousness of guilt,
provided the flight pertains to the crime charged." State v.
Randolph, 228 N.J. 566, 594 (2017). "If a defendant offers an
explanation for the departure, the trial court should instruct the
jury that if it finds the defendant's explanation credible, it
9 A-2048-15T1
should not draw any inference of the defendant's consciousness of
guilt from the defendant's departure." State v. Mann, 132 N.J.
410, 421 (1993).
The model jury charge pertaining to flight where a defendant
offers an explanation for departure, which the judge read to the
jury, states:
There has been some testimony in the case from
which you may infer that the defendant fled
shortly after the alleged commission of the
crime. The defense has suggested the
following explanation . . . . If you find the
defendant’s explanation credible, you should
not draw any inference of the defendant’s
consciousness of guilt from the defendant’s
departure. If, after a consideration of all
the evidence, you find that the defendant,
fearing that an accusation or arrest would be
made against him/her on the charge involved
in the indictment, took refuge in flight for
the purpose of evading the accusation or
arrest, then you may consider such flight in
connection with all the other evidence in the
case, as an indication or proof of a
consciousness of guilt. It is for you as
judges of the facts to decide whether or not
evidence of flight shows a consciousness of
guilt and the weight to be given such evidence
in light of all the other evidence in the case.
[Model Jury Charges (Criminal), "Flight" (rev.
May 10, 2010).]
Model jury charges "should be followed and read in their
entirety to the jury. The process by which model jury charges are
adopted in this State is comprehensive and thorough; our model
jury charges are reviewed and refined by experienced jurists and
10 A-2048-15T1
lawyers." State v. Docaj, 407 N.J. Super. 352, 370 (App. Div.
2009) (quoting State v. R.B., 183 N.J. 308, 325 (2005)). Although
defendant did not testify, he was permitted via the flight charge
to insert his version of why he left the scene. The judge stated:
The defense has suggested the following
explanation:
during the encounter with Mr. Wiggins on July
19, 2012 the vehicle operated by Sergeant
Br[i]an Byrnes traveled into the opposing lane
of travel cutting off Mr. Wiggins as he rode
his bicycle.
Unlike the police vehicle depicted in
S-14A and S-15A the vehicle, which was being
operated by Sergeant Byrnes on July 19, 2012
had no emergency lights on the roof of the
vehicle. Sergeant Byrnes did not utilize his
emergency lights or siren in the encounter
with Mr. Wiggins and by opening the door of
the vehicle Sergeant Byrnes obstructed from
view a portion of the lettering identifying
the vehicle as a unit associated with the
Roselle Police.
Defendant argues the model jury charge improperly shifts the
burden of proof from the State to defendant. The charge conference
was unfortunately not placed on the record. See R. 1:2-2
(regarding the necessity of recording all court proceedings). The
defense explanation provided by the judge, however, also provided
defendant with a defense to obstruction of justice, because, if
believed, his departure from the scene was not with the purpose
to obstruct or impair the administration of law. See N.J.S.A.
11 A-2048-15T1
2C:29-1. Because the charge was so favorable to defendant and not
objected to by him, we see no reason to consider defendant's novel
argument with regard to burden-shifting.
III.
Defendant argues his sentence is excessive because the judge
ignored mitigating factor eleven, that imprisonment would entail
an excessive hardship on defendant's children. N.J.S.A. 2C:44-
1(b)(11). "The sentencing court is required to consider evidence
of a mitigating factor and must apply mitigating factors that 'are
amply based in the record.'" State v. Grate, 220 N.J. 317, 338
(2015) (emphasis added) (quoting State v. Dalziel, 182 N.J. 494,
504 (2005)). A sentencing court may not "simply decline to take
into account a mitigating factor that is fully supported by the
evidence." Dalziel, 182 N.J. at 505. But the trial court
determines the appropriate weight that a mitigating factor should
be accorded. Ibid.During the sentencing hearing, defendant explained he was
employed in Roselle prior to his incarceration. Defendant further
explained that while he was employed, he was a source of financial
support for his family. Defendant did not argue specifically that
imprisonment would impose an excessive hardship on his dependents.
The judge noted defendant lacked stable employment.
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Defendant relies on State v. Mirakaj, 268 N.J. Super. 48(App. Div. 1993), where we remanded for resentencing because the
trial judge failed to find mitigating factor eleven. Mirakaj, 268
N.J. Super. at 51-52. At sentencing, the defendant argued that
imprisonment would impose an excessive hardship on her children
because her husband had abandoned them and fled the country. Id.at 51 n.1. The State did not dispute the presence of mitigating
factor eleven. Ibid. The trial court failed to identify
mitigating factor eleven, although it was "apparently applicable"
based on the record. Id. at 51-52.
Unlike in Mirakaj, defendant did not argue that imprisonment
would entail an excessive hardship for his family, but rather that
he was a source of income for the family. Not all working
defendants with children are appropriate for mitigating factor
eleven.
Having considered the record, we conclude that the findings
of fact regarding aggravating and mitigating factors were based
on competent and credible evidence in the record, the judge
correctly applied the sentencing guidelines enunciated in the
Code, and the court did not abuse its discretion in imposing the
sentence. State v. Cassady, 198 N.J. 165 (2009); State v. Roth,
95 N.J. 334 (1984).
13 A-2048-15T1
Defendant's remaining arguments are without sufficient merit
to require discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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