STATE OF NEW JERSEY VS. KEITH R. EVANS (13-08-1082, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-5238-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEITH R. EVANS,
Defendant-Appellant.
Submitted March 7, 2018 – Decided June 6, 2018
Before Judges Alvarez and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
13-08-1082.
Joseph E. Krakora, Public Defender, attorney
for appellant (John Douard, Assistant Deputy
Public Defender, of counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Tried by a jury, defendant Keith Evans was convicted of third-
degree unlawful possession of heroin, N.J.S.A. 2C:35-10(a)(1)
(count one); and third-degree possession with intent to distribute
heroin, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count three).1
The trial judge sentenced defendant to a mandatory extended term
as a repeat drug distributor, pursuant to N.J.S.A. 2C:43-6(f) and
2C:43-7, to eight years of imprisonment subject to four years of
parole ineligibility. Appropriate fines and penalties were also
imposed.
We glean the following facts and circumstances from the trial
record and, where relevant, the record of the pretrial suppression
motion. On April 9, 2013, Woodbridge Police Detective Matthew
Herbert observed a blue and black Dodge Charger with an obstructed
Ohio license plate and a missing or nonfunctional rear light.
Herbert, accompanied in the patrol car by a Detective Grogan,2
also observed the vehicle make a left turn without signaling. They
stopped the car; Herbert approached on the driver's side while his
partner approached the passenger's side.
Herbert asked Giardina, the driver, to provide his
credentials and step outside of the vehicle. Giardina's pupils
were dilated, he was stuttering, his hands were shaking, and he
1
Co-defendant Christopher Giardina was charged with one count of
third-degree unlawful possession of heroin, N.J.S.A.
2C:35-10(a)(1) (count two). He entered a guilty plea and was
admitted into the pretrial intervention program.
2
Grogan's first name is not found in the record.
2 A-5238-15T3
had remnants of dried chewing tobacco encrusted around his mouth.
Giardina was also "blading" his body, which Herbert concluded was
his attempt to keep him away from the car. The officer asked
Giardina for the name of his passenger, which he denied knowing
other than "J." Giardina said that the men were on their way to
a McDonalds.
Herbert recalled that he
had recently received information from a
confidential informant stating that an
individual named -- referred to as Joker,
whose real name is Keith Evans, and who is a
39-year old black male from Newark, travels
to Woodbridge daily in order to distribute
heroin. Also was advised that . . . Evans
frequently has younger individuals from
Woodbridge drive him around.
He received that intelligence information within a month of the
stop. The passenger, defendant, told Herbert when asked that he
was thirty-nine and from Newark. Defendant also stated the men
were looking for a pull-up bar. Herbert requested backup because
the informant had also claimed that defendant sometimes carried
weapons.
Herbert spoke to Giardina a second time, asking him for
consent to search the vehicle. He explained that if Giardina
refused, he would request a police canine to conduct a "sniff,"
and if the dog alerted to the vehicle, they would obtain a search
3 A-5238-15T3
warrant. Herbert explained that Giardina and defendant were free
to leave, but that the car would stay until the dog arrived.
Giardina asked to speak to Herbert behind the vehicle. Once
the men had moved to the back of the car, Giardina told the officer
that defendant had dropped heroin on the passenger's side when he
pulled over. Giardina did not know exactly how much heroin, but
thought it was four bundles, or forty bags. Herbert approached
defendant on the passenger's side and asked him to exit the
vehicle. When he asked defendant if he had heroin, defendant
responded with "heroin?"
Defendant invited Herbert to search him; he had $560——
consisting of three hundred-dollar bills, nine twenty-dollar
bills, six ten-dollar bills, and four five-dollar bills——along
with two cell phones. When a third officer arrived at the scene,
it was learned that defendant had an active Newark Municipal Court
warrant. Giardina agreed to Herbert's second request for consent
to search and signed a written consent form.
Herbert's initial search of the vehicle was unsuccessful. He
asked Giardina if he knew where defendant had put the heroin, and
Giardina responded that he must have thrown it out the window.
The officer asked Giardina to help him move the passenger seat
back in the car. While doing so, Giardina stomped his foot,
indicating there was something in the undercarriage. There,
4 A-5238-15T3
Herbert found a paper towel containing sixty-four bags or wax
folds of heroin stamped with the word "ozone." A third cell phone
was found in the vehicle, belonging to Giardina, along with an
empty bag of heroin, also stamped "ozone," and a cut straw.
Officers later found an April 9, 2013 text message on one of
defendant's cell phones received from a person identified as "Coco"
stating "I have some sales for you." The number for Coco matched
the phone number Giardina provided police following his arrest.
There was also an outgoing text message sent on April 7, 2013, to
a person identified only as "AJ," stating "Jump on that Ozone,
bro." A third text message sent on April 4 also referred to
"ozone." The judge excluded the April 4 message, since it was
somewhat remote from the day of the arrest. The other two,
however, were moved into evidence by the State.
At the suppression hearing, the judge found that during the
traffic stop, Giardina's appearance credibly alerted Herbert that
something was amiss. Once Giardina named his passenger as "J,"
the officer reasonably connected the name with the information he
had previously received. The judge noted that according to the
confidential informant, "J" needed someone to drive him because
he was visually impaired, as was defendant. Since the judge found
the officer credible, he also found Giardina's consent to have
been freely, knowingly, and voluntarily given. It was Giardina
5 A-5238-15T3
himself who drew Herbert's attention to the passenger side
undercarriage of the car where he recovered the paper towel
containing the heroin stamped ozone.
The judge ruled the April 9 text admissible because he
considered it "intrinsic to the criminal activity that allegedly
took place on that day." Although the phone was not registered
to defendant, it was found on his person. The text from Giardina
to the effect that he had "sales" for defendant was also admitted
as intrinsic to the charges. Applying the Cofield3 analysis, the
judge concluded that the probative value of the word "ozone" and
the dates of the messages were not outweighed by any potential for
prejudice. When the messages were admitted during the trial, the
court instructed the jury regarding prior bad acts,4 and reiterated
the instruction in the final charge.
The judge granted the State's application for defendant to
be sentenced as an extended-term offender because it was
defendant's fourth conviction for drug distribution. In
sentencing defendant, the judge found aggravating factors three,
six, and nine, and mitigating factor eleven. See N.J.S.A.
2C:44-1(a)(3); N.J.S.A. 2C:44-1(a)(6); N.J.S.A. 2C:44-1(a)(9);
3
State v. Cofield, 127 N.J. 328 (1992).
4
Model Jury Charges (Criminal), "Proof of Other Crimes, Wrongs,
or Acts, (N.J.R.E. 404(b))" (rev. Sept. 12, 2016).
6 A-5238-15T3
N.J.S.A. 2C:44-1(b)(11). Defendant was the custodial parent of
his five children and was visually impaired, but those
circumstances recognized by mitigating factor eleven did not
outweigh the aggravating factors, given defendant's substantial
prior criminal history. The judge concluded that the aggravating
factors substantially outweighed the mitigating factor. He
properly merged the possession of heroin into the possession with
intent.
Now on appeal, defendant raises the following:
POINT I
THE PHYSICAL EVIDENCE FROM THE WARRANTLESS
AUTOMOBILE SEARCH ON APRIL 9 MUST BE
SUPPRESSED BECAUSE THE POLICE HAD NO
CONSTITUTIONALLY VALID REASONS TO STOP AND
DETAIN THE CAR AND TO SEIZE ANYTHING FOUND
INSIDE IT.
A. Automobile Stops Must Be Limited In
Scope To The Purpose Of The Stop.
B. The Trial Court Erred Finding a Valid
Consent Search.
POINT II
MR. EVANS' APRIL 7 TEXT CONTAINED PREJUDICIAL
N.J.R.E. 404b EVIDENCE THAT WAS IMPROPERLY
SUBMITTED TO THE JURY AND DEPRIVED MR. EVANS
OF HIS RIGHT TO A FAIR TRIAL. U.S. CONST.
AMENDS. VI, XIV; N.J. CONST., ART. I, PARS.
1, 10.
POINT III
THE EIGHT-YEAR SENTENCE WITH A FOUR-YEAR
PERIOD OF PAROLE INELIGIBILITY IS MANIFESTLY
EXCESSIVE.
7 A-5238-15T3
I.
In reviewing a motion to suppress, we defer to the factual
and credibility findings of the trial court, "so long as those
findings are supported by sufficient credible evidence in the
record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State
v. Elders, 192 N.J. 224, 243 (2007)). Deference is afforded
"because the 'findings of the trial judge . . . are substantially
influenced by his opportunity to hear and see the witnesses and
to have the "feel" of the case, which a reviewing court cannot
enjoy.'" State v. Reece, 222 N.J. 154, 166 (2015) (quoting State
v. Locurto, 157 N.J. 463, 471 (1999)). Appellate courts "should
disregard those findings only when a trial court's findings of
fact are clearly mistaken." State v. Hubbard, 222 N.J. 249 (2015)
(citing State v. Johnson, 42 N.J. 146, 161 (1964)); see also State
v. Best, 403 N.J. Super. 428, 434 (App. Div. 2008) (quoting Elders,
192 N.J. at 244) (reasoning that a motion court's findings may be
disturbed only when "they are so clearly mistaken 'that the
interests of justice demand intervention and correction'"). The
legal conclusions of the trial court are subject to de novo review.
Hubbard, 222 N.J. at 263 (citing State v. Gandhi, 201 N.J. 161,
176 (2010)).
The Fourth Amendment of the United States Constitution and
Article I, Paragraph 7 of the New Jersey Constitution protect
8 A-5238-15T3
individuals from unreasonable searches and seizures. U.S. Const.
amend. IV; N.J. Const. art. I, ¶ 7. "There is a constitutional
preference for" law enforcement officers to obtain a warrant from
a neutral magistrate before conducting a search or seizure. State
v. Pineiro, 181 N.J. 13, 19 (2004) (citing State v. Demeter, 124
N.J. 374, 381 (1991)); State v. Ravotto, 169 N.J. 227, 236 (2001).
Exceptions to a search or seizure conducted without a warrant
include an investigatory stop, a search incident to arrest, an
automobile search, and a search conducted pursuant to consent.
State v. Coles, 218 N.J. 322, 342 (2014); State v. Oyenusi, 387
N.J. Super. 146, 153 (App. Div. 2006) (citing Chimel v. Cal., 395
U.S. 752 (1969)); State v. Witt, 223 N.J. 409, 422 (2015); State
v. Domicz, 188 N.J. 285, 305 (2006).
Defendant now challenges the admissibility of the evidence
seized because the search exceeded the purpose for the traffic
stop. We find this argument to be so lacking in merit as to
warrant little discussion in a written opinion. R. 2:11-3(e)(2).
Police ordinarily stop motorists for driving infractions.
If, during the stop, the circumstances indicate some other
criminality is afoot and the officers have some lawful basis to
proceed, like the consent in this case, they may lawfully
investigate.
9 A-5238-15T3
Defendant also challenges the validity of the search
conducted once Giardina consented. This claim too lacks merit.
The judge found Herbert's testimony credible. Once stopped,
Herbert's description of Giardina's appearance, conduct, and his
identification of defendant as "J," gave rise to a lawful basis
to request a consent to search.
A consent to search is a well-recognized exception to the
warrant requirement. Domicz, 188 N.J. at 305. Consent must be
voluntarily given and cannot "be coerced, by explicit or implicit
means, by implied threat[,] or covert force." Schneckloth v.
Bustamonte, 412 U.S. 218, 228 (1973). The threshold issue where
defendants later contest the validity of a search based on consent
is "whether a person has knowingly waived his right to refuse to
consent to the search." Domicz, 188 N.J. at 308 (citation
omitted). The burden is on the State to prove that consent was
voluntary. State v. Johnson, 68 N.J. 349, 354 (1975).
To determine if consent was coerced, the court must examine
the "surrounding circumstances." Schneckloth, 412 U.S. at 229.
"Voluntariness is a question of fact to be determined from all the
circumstances" surrounding the stop, consent, and search. Id. at
248-49. An essential element in determining whether consent is
voluntary is proof that the individual was aware of the right to
refuse consent to search. Johnson, 68 N.J. at 353-54. Herbert's
10 A-5238-15T3
testimony unquestionably established that the consent to search
was voluntary.
Defendant attacks the consent on the basis that Giardina was
in custody. Again, we do not agree.
Herbert told Giardina that while the dog was being brought
to the scene, he and defendant were free to leave. That
uncontested statement establishes that Giardina was not in
custody. Giardina's cooperation and willing execution of the
consent to search is further corroborated by the fact that he
actually directed the officer to the drugs.
II.
We give great deference to a trial court's determination on
the admissibility of other crimes evidence. State v. Goodman, 415
N.J. Super. 210, 228 (App. Div. 2010) (citing State v. Foglia, 415
N.J. Super. 106, 122 (App. Div. 2010)). There must be a "clear
error of judgment" before we overturn the trial court's decision.
State v. Castagna, 400 N.J. Super. 164, 183 (App. Div. 2008).
Pursuant to N.J.R.E. 404(b),
evidence of other crimes, wrongs, or acts is
not admissible to prove the disposition of a
person in order to show that such person acted
in conformity therewith. Such evidence may be
admitted for other purposes, such as proof of
motive, opportunity, intent, preparation,
plan, knowledge, identity[,] or absence of
mistake or accident when such matters are
relevant to a material issue in dispute.
11 A-5238-15T3
"[T]he underlying danger of admitting other-crime [or bad-
act] evidence is that the jury may convict the defendant because
he is a bad person in general." State v. Skinner, 218 N.J. 496,
514 (2014) (citation omitted) (quoting Cofield, 127 N.J. at 336).
In Cofield, the Court established a four-part test to avoid the
over-use of other crimes evidence pursuant to N.J.R.E. 404(b). 127
N.J. at 338. The four-part Cofield test requires:
1. The evidence of the other crime must be
admissible as relevant to a material issue;
2. It must be similar in kind and reasonably
close in time to the offense charged;
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence must
not be outweighed by its apparent prejudice.
[Ibid. (quoting Abraham P. Ordover, Balancing
the Presumptions of Guilt and Innocence: Rules
404(b), 608(b), and 609(a), 38 Emory L.J. 135,
160 (1989) (footnote omitted)).]
Defendant challenges the admission in evidence of only the
April 7, 2013 text message. This was the outgoing text message
sent to "AJ" which said, "Jump on that Ozone, bro."
The judge found that the text message was admissible because
it was so uniquely relevant to the material issue of defendant's
possession and possession with intent. It connected the quantity
of drugs, defendant's possession, the cash on his person, and the
stamp on the bags. The cell phone with the incriminating message
12 A-5238-15T3
was found on defendant's person when he was searched. The fourth
element of the Cofield test requires a balancing of prejudice
versus probative value. The risk of undue prejudice must not
outweigh the probative value. See State v. Rose, 206 N.J. 141,
161-62 (2011). The probative value of the evidence, establishing
ownership, was not outweighed by the apparent prejudice and was
properly admitted. Additionally, the judge instructed the jury
as to the limited purpose for admission of the text message, both
when it was admitted and in the final jury charge. We assume that
jurors follow instructions. State v. Witte, 13 N.J. 598, 612
(1953).
III.
We review sentencing determinations deferentially. State v.
Grate, 220 N.J. 317, 337 (2015); State v. Case, 220 N.J. 49, 65
(2014). We begin with the fact that defendant's extended-term
sentence was mandatory. He was convicted of a third-degree
offense, which means that he could be sentenced within the second-
degree range. This was defendant's fourth conviction for drug
distribution. The judge had the discretion to sentence defendant
to up to ten years, half of which could have been made parole-
ineligible time. The judge carefully analyzed the aggravating
factors and the sole mitigating factor, and properly identified
and balanced the statutory considerations which were "supported
13 A-5238-15T3
by competent credible evidence in the record." Grate, 220 N.J.
at 337 (citing State v. Lawless, 214 N.J. 594, 606 (2013)). This
sentence does not shock our judicial conscience. See State v.
Roth, 95 N.J. 334, 364 (1984).
We do not agree that the judge did not accord sufficient
weight to mitigating factor eleven——the traumatic effect the
sentence would have on defendant's children and defendant's vision
impairment. The judge did not ignore those considerations. He
merely balanced them against defendant's substantial prior history
of drug distribution and the other aggravating factors, and
therefore engaged in a proper analysis before making his decision.
Affirmed.
14 A-5238-15T3