STATE OF NEW JERSEY VS. WILLIAM A. MARSHALL (11-06-0593, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2974-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM A. MARSHALL, a/k/a BILL
A. BERRY, DOLLAR BI MARSHALL,
Defendant-Appellant.
_________________________________________
Submitted April 25, 2017 – Decided May 10, 2017
Before Judges Leone and Moynihan.
On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Indictment No. 11-06-0593.
Joseph E. Krakora, Public Defender, attorney
for appellant (Margaret McLane, Assistant
Deputy Public Defender, of counsel and on the
brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Christopher
Malikschmitt, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant appeals the denial of his motion to suppress
evidence and the trial judge's ruling that an unavailable witness's
statement was admissible under N.J.R.E. 803(c)(1). Following the
trial court's rulings, defendant pleaded to an open indictment
charging him with second degree certain persons not to possess a
firearm, N.J.S.A. 2C:39-7b. The State had previously moved to
dismiss the other six counts of the indictment, all of which
related to the alleged armed robbery of the victim. Defendant
preserved his right to appeal the trial judge's decisions regarding
the motion to suppress and the evidentiary ruling.
On appeal, defendant raises the following arguments:
I. THE TRIAL COURT ERRED IN DENYING THE
SUPPRESSION MOTION BECAUSE THE OFFICER'S
WARRANTLESS ENTRY INTO DEFENDANT'S BACKYARD
WAS UNCONSTITUTIONAL.
II. THE PRETRIAL RULING ALLOWING THE ADMISSION
OF TESTIMONIAL HEARSAY IDENTIFYING THE
DEFENDANT MUST BE REVERSED. THE ADMISSION OF
THIS HEARSAY AT TRIAL WOULD HAVE VIOLATED THE
DEFENDANT'S RIGHTS TO CONFRONT WITNESSES AND
TO DUE PROCESS OF LAW.
After reviewing the record in light of the defendant's
contentions, we affirm.
I. The Suppression Motion
Our review of the trial court's denial of a motion to
suppress is limited. See State v. Handy, 206 N.J. 39, 44 (2011).
"We must uphold a trial court's factual findings at a motion to
2 A-2974-15T2
suppress hearing when they are supported by sufficient credible
evidence in the record." State v. Hathaway, 222 N.J. 453, 467
(2015). We will "not disturb the trial court's findings merely
because '[we] might have reached a different conclusion' . . . or
because 'the trial court decided all evidence or inference
conflicts in favor of one side' in a close case." State v. Elders,
192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146,
162 (1964)). Only when we are "thoroughly satisfied that the
finding is clearly a mistaken one and so plainly unwarranted that
the interests of justice demand intervention and correction [will
we] appraise the record as if [we] were deciding the matter at
inception and make [our] own findings and conclusions." Johnson,
supra, 42 N.J. at 162.
We owe no deference to a trial court's "interpretation of the
law"; such issues are reviewed de novo. Hathaway, supra, 222 N.J.
at 467. "A trial court's interpretation of the law . . . and the
consequences that flow from established facts are not entitled to
any special deference." State v. Lamb, 218 N.J. 300, 313 (2014).
The trial judge found the following facts after two separate
3 A-2974-15T2
hearings on the motion to suppress, and one on the evidentiary
issue.1
Officer Czajkowski responded to the area of Southard Street
and New Willow Street2 in Trenton after receiving a dispatch that
a black male wearing a blue jacket was walking down New Willow
Street. The man was reportedly in possession of a gun.
From his marked patrol vehicle, he saw a man matching the
description jump over a fence into the backyard of a house on New
Willow. That man was later identified as the defendant. The
officer had an unobstructed, well-lit view. He saw the defendant
briefly bend over to the ground and then run toward New Willow.
As the officer turned his vehicle onto New Willow, he saw a
man on a cell phone running up New Willow, pointing to residences
on the street. The man was still on the phone with the 911
dispatcher, reporting that he was the victim of a robbery. His 911
call was the source of the original dispatch of the officer. When
1 The judge's findings of fact on April 30, 2013, related only to
the motion to suppress. He found defendant was a trespasser on
the property in question. On June 11, 2013, the judge took
testimony relating to the motion to suppress and the evidentiary
issue. He made additional findings, including that defendant
lived at the property; he was not a trespasser.
2 New Willow Street was, at times, referred to as North Willow in
the proceedings below. We refer to the street as New Willow, as
did the responding officer during his testimony.
4 A-2974-15T2
the officer pulled his vehicle up to the man on the cell phone,
the officer looked in the direction to which the man was pointing
and saw the defendant next to another house on New Willow. The
man on the cell phone told the officer, "[h]e's right fucking
there."
Only then did the officer exit his vehicle, approach the
defendant and place him in custody. He then went to the grassy
area where he had seen the defendant bend toward the ground.
There, he saw a gun. The gun was subsequently seized. Defendant's
certain persons conviction stems from the possession of that gun.
The trial judge found that defendant had no expectation of
privacy in the location where the gun was found and denied his
motion to suppress.
A. Curtilage
Defendant claims the grassy area was protected curtilage and
that the officer had no right to enter that location where the gun
with which defendant is charged was found.
"Curtilage is land adjacent to a home and may include
walkways, driveways, and porches." State v. Domicz, 188 N.J. 285,
302 (2006) (citing State v. Johnson, 171 N.J. 192, 208-09 (2002)).
The extent to which curtilage is protected against unreasonable
searches and seizures depends on the well-known factors set forth
by the Unites States Supreme Court in United States v. Dunn, 480
5 A-2974-15T2
U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334-35
(1987):
[T]he proximity of the area claimed to be
curtilage to the home, whether the area is
included within an enclosure surrounding the
home, the nature of the uses to which the area
is put, and the steps taken by the resident
to protect the area from observation by people
passing by.
New Jersey courts have utilized these same factors in
determining the propriety of a search of curtilage. See Domicz,
supra, 188 N.J. at 302; Johnson, supra, 171 N.J. at 208-09; State
v. Lane, 393 N.J. Super. 132, 145 (App. Div.), certif. denied, 192
N.J. 600 (2007).
The trial court's detailed findings of fact, considering the
testimony and photographs adduced at the testimonial suppression
hearing, supported its conclusion that, although he lived in a
house adjacent to the grassy area where the gun was found,
defendant did not have a legitimate expectation of privacy in that
area. The grassy area was primarily used for parking, but also
had other potential recreational uses. The area was accessible
from six homes located on New Willow Street. The trial judge
found that, notwithstanding a concrete wall that ran along two
sides of the property, no barrier prevented "any resident of any
of six homes on New Willow from parking anywhere in that grassy
area, nor is there any barrier that prevents individuals walking
6 A-2974-15T2
from New Willow back into that grassy area." Anyone could have
accessed the area by walking between the houses on New Willow
Street using what the judge described as a "common walkway." The
judge also found that the grassy area was accessible, without any
impediment, from Southard Street.
No user of curtilage that can be accessed by multiple persons
can have a reasonable expectation of privacy in that area. Johnson,
supra, 171 N.J. at 209 (citing State v. Ball, 219 N.J. Super. 501,
506-07 (App. Div. 1987)).
Furthermore, the judge found that the officer was in his
patrol vehicle, with a clear line of sight unobstructed by the
wall, when he viewed defendant jump over the fence, enter the
yard, and bend to the ground. Defendant had no reasonable
expectation of privacy in the area that was observable from a
public place. Lane, supra, 393 N.J. Super. at 146; State v.
Gibson, 318 N.J. Super. 1, 10-11 (App. Div. 1999).
B. Exigent Circumstances
The officer's entry on the property was also justified by the
exigency of the circumstances.
A search without a warrant is presumptively invalid unless
it "falls within one of the few well-delineated exceptions to the
warrant requirement." Elders, supra, 192 N.J. at 246 (citations
omitted). One of the exceptions is the emergency aid doctrine,
7 A-2974-15T2
which is a "species of exigent circumstances." Hathaway, supra,
222 N.J. at 468-69 (quoting United States v. Martins, 413 F.3d
139, 147 (1st Cir. 2005)).
The Supreme Court, in Hathaway, set the parameters necessary
to endorse an emergency aid search:
To justify a warrantless search under the
emergency-aid doctrine, the State must satisfy
a two-prong test. State v. Edmonds, 211 N.J.
117, 132 (2012). The State has the burden to
show that "(1) the officer had an objectively
reasonable basis to believe that an emergency
require[d] that he provide immediate
assistance to protect or preserve life, or to
prevent serious injury and (2) there was a
reasonable nexus between the emergency and the
area or places to be searched." Ibid.
(internal quotation marks omitted). "The
emergency aid doctrine only requires that
public safety officials possess an objectively
reasonable basis to believe - not certitude -
that there is a danger and need for prompt
action." State v. Frankel, 179 N.J. 586
(2004). The reasonableness of a decision to
act in response to a perceived danger in real
time does not depend on whether it is later
determined that the danger actually existed.
[Id. at 470.]
The officer's actions here certainly met the two prong test.
"Police officers oftentimes must rely on information provided
by others in assessing whether there is probable cause to believe
a crime has been committed or whether there is an objectively
reasonable basis to believe an ongoing emergency threatens public
safety." Id. at 470-71. "Ordinary citizen[s]" who report crimes,
8 A-2974-15T2
either in person or by calling 911, have been deemed reliable
sources whose information can establish the reasonable basis to
believe an emergency required the immediate action of law
enforcement. Id. at 471-74, 477.
Here the source of the information was the person reporting
he was the victim of a robbery. He was both an eyewitness who had
direct contact with the officer, and a 911 caller. He reported
that defendant had a gun, and told the officer where the defendant
was located. This was a rapidly unfolding event. Once the officer
arrested defendant and discovered he did not have a gun on his
person, the danger to be prevented was obvious. Id. at 476. The
gun posed a threat to anyone who found it on the ground. See
State v. Wright, 213 N.J. Super. 291, 295 (App. Div. 1986)
(recognizing that the potential danger posed to public safety by
weapons presents a sufficient exigency to justify a warrantless
search). That information provided the reasonable basis to satisfy
the first prong of Hathaway. The officer would have been remiss
if he failed to enter and search the grassy area where he had seen
defendant bend to the ground.
The officer observed defendant jump over the fence, bend down
toward the ground and then run. Those actions provided the
reasonable nexus between the emergency and the place searched,
satisfying the second Hathaway prong. It was reasonable to
9 A-2974-15T2
conclude that the man, who reportedly had a gun, put that gun down
as he ran, after seeing the officer driving in the area in a marked
vehicle.3
The search of the grassy area and the seizure of the gun were
justified under the emergency aid doctrine.
II. The Hearsay Statement
The State claimed the 911 caller was unavailable and wanted
to introduce his statement, "[h]e's right fucking there," through
the testimony of the officer to whom the statement was made. The
trial court admitted the 911 caller's statement, made as he pointed
toward the location where defendant was standing, as a present
sense impression pursuant to N.J.R.E. 803(c)(1).
Defendant claims error. He argues that the admission of the
statement, had the case gone before a jury, would have violated
his Confrontation Clause rights.4
This court reviews "the trial court's evidentiary rulings for
abuse of discretion." State v. Gorthy, 226 N.J. 516, 539 (2016).
Thus, "trial courts are granted broad discretion in making
3 This was not a case where the abandonment of the weapon was
occasioned by the approach of the suspect by the police officer.
The officer made no effort to stop and seize defendant; he had not
yet exited his vehicle when defendant bent toward the ground. See
Gibson, supra, 318 N.J. Super. at 9.
4 Defendant does not contest the trial judge's ruling that the
statement was admissible as a present sense impression.
10 A-2974-15T2
decisions regarding evidentiary matters, such as whether a piece
of evidence is relevant . . . and whether a particular hearsay
statement is admissible under an appropriate exception." State v.
Scharf, 225 N.J. 547, 572 (2016) (citations omitted). To reverse
the trial court's evidentiary ruling, we must find that the trial
judge's decision was "so wide of the mark that a manifest denial
of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
A present sense impression is not dependent on the declarant's
availability. N.J.R.E. 803(c). Nonetheless, "[t]estimonial
statements of witnesses absent from trial have been admitted only
where the declarant is unavailable, and only where the defendant
has had a prior opportunity to cross-examine." Crawford v.
Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d
177, 197 (2004).
The question here centers on whether the 911 caller's
statement was testimonial or nontestimonial. The United States
Supreme Court, in Davis v. Washington, 547 U.S. 813, 822, 126 S.
Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006) (footnote
omitted), distinguished between the two types of statements:
Statements are nontestimonial when made in the
course of police interrogation under
circumstances objectively indicating that the
primary purpose of the interrogation is to
enable police assistance to meet an ongoing
emergency. They are testimonial when the
circumstances objectively indicate that there
11 A-2974-15T2
is no such ongoing emergency, and that the
primary purpose of the interrogation is to
establish or prove past events potentially
relevant to later criminal prosecution.
The statement here was not made in response to any question,
statement, or gesture from the officer. The 911 caller blurted
it out while he was looking directly at the defendant who he knew
had been, moments before, in possession of a gun. Indeed, the
whole exchange was one-sided; the officer said nothing to the
caller. The emergent nature of these circumstances still existed.
Again, the caller was still on the phone with the dispatcher. Like
the statement made by the 911 caller in Davis, the primary purpose
of the 911 caller here was to notify the officer on the scene of
the proximate whereabouts of a man with a gun in a still unfolding
situation.
The trial judge properly ruled that the 911 caller's statement
was nontestimonial. The admission of the statement through the
testimony of the police officer would not have violated the holding
in Crawford.
Affirmed.
12 A-2974-15T2