State v. Cope

• Decision Date: 25 April 2016
• Docket Number: A-13 September Term 2014, 074206.
• Citation: 135 A.3d 562,224 N.J. 530
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. Demetrius C. COPE (a/k/a Raashid Habshin, Rasheed Cope, Demetrius M. Cope, and Demetrias Cope), Defendant–Respondent.
• Court: New Jersey Supreme Court

224 N.J. 530

135 A.3d 562

STATE of New Jersey, Plaintiff–Appellant

v.Demetrius C. COPE (a/k/a Raashid Habshin, Rasheed Cope, Demetrius M. Cope, and Demetrias Cope), Defendant–Respondent.

A-13 September Term 2014, 074206.

Supreme Court of New Jersey.

Argued Nov. 9, 2015.

Decided April 25, 2016.

Jane C. Schuster, Deputy Attorney General, argued the cause for appellant (John J. Hoffman, Acting Attorney General of New Jersey, attorney).

Theresa Yvette Kyles, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Kyles and John V. Saykanic, Designated Counsel, on the briefs).

Justice ALBIN

delivered the opinion of the Court.

Defendant Demetrius C. Cope was convicted by a jury of second-degree possession of a weapon by a person previously convicted of a crime, N.J.S.A. 2C:39–7(b)

.

In this appeal, we must determine whether the trial court properly denied defendant's motion to suppress a rifle discovered during a protective sweep of his apartment immediately following his arrest in his living room. The court rejected defendant's claim that the limited search exceeded constitutional limits. We must also determine whether the trial court denied defendant his right to present a defense of third-party guilt by barring the testimony of a witness who took responsibility for placing the rifle in defendant's apartment. The court precluded the third-party-guilt testimony because it believed that the witness's account was factually impossible.

The Appellate Division reversed defendant's conviction. The appellate panel concluded that the rifle should have been suppressed because the police did not have a reasonable and articulable suspicion of danger that justified the protective sweep. The panel also found that the trial court improperly denied defendant the right to advance a third-party-guilt defense.

We agree with the Appellate Division that defendant's conviction must be reversed because defendant was denied the right to present a full third-party-guilt defense. The witness's account of having placed the rifle in defendant's apartment was not factually impossible, however implausible it may have seemed to the trial court. The final arbiter of the witness's credibility should have been the jury, not the court. A witness whose testimony is central to a defense of third-party guilt cannot be kept off the stand unless the expected version of events is so patently false that the events could not possibly have occurred. That exceedingly high standard was not met here, and therefore it was for the jury to determine the ultimate reliability of the witness's testimony.

We disagree, however, with the Appellate Division's conclusion that the trial court erred in not suppressing the rifle. After arresting defendant in his living room, the police conducted a protective sweep of an adjoining porch to ensure that no individuals posing a safety risk were on the premises. The protective sweep did not violate constitutional standards.

We remand to the trial court for proceedings consistent with this opinion.

I.

A.

In October 2006, defendant was indicted on the charge of second-degree possession of a weapon by a person previously convicted of a crime, N.J.S.A. 2C:39–7(b)

.¹ The charge arose from the discovery of an assault-type rifle in defendant's apartment when police took defendant into custody on an unrelated arrest warrant.

Defendant moved to suppress the rifle, claiming that the seizure of the rifle by the police violated his federal and state constitutional rights to be free from unreasonable searches and seizures. In April 2011, the trial court conducted a suppression hearing. The State called the only witness to testify at the hearing, Burlington Township Police Sergeant David Brintzinghoffer. The factual record of the suppression hearing is based primarily on the officer's testimony.

B.

On July 5, 2006, at approximately 6:20 p.m., Sergeant Brintzinghoffer, along with five other police officers, went to defendant's unit at the Chateau Apartment complex in Burlington Township to execute a warrant for his arrest. Sergeant Brintzinghoffer knew that defendant had a number of prior criminal convictions and had information that he “[m]ight be armed” with a weapon.²

Defendant resided in a second-floor apartment that has a back porch adjacent to the unit's living room. The apartment is accessed by a door on the first floor. Three officers positioned themselves behind the building, allowing them to observe defendant's back porch, while Sergeant Brintzinghoffer and two other officers knocked on the front door. After knocking, Sergeant Brintzinghoffer heard what sounded like a “commotion”—the movement of something and “multiple people inside the apartment.” The sergeant announced that he had a warrant, and seconds later an officer guarding the rear called out that defendant had run into the apartment from the back porch. Sergeant Brintzinghoffer then banged on the door. A female voice responded, “[H]old on.” The sergeant stated that he had an arrest warrant for defendant and that the door would be kicked in unless defendant answered.

April Grant, defendant's adult daughter, opened the door, and Sergeant Brintzinghoffer and one other officer climbed the stairs, which opened into the apartment's living room. There, the officers found defendant lying on a couch. Defendant was handcuffed and placed under arrest.

Sergeant Brintzinghoffer then conducted a protective sweep of the bedroom, bathroom, and back porch to ensure that no one could launch a surprise attack against the officers. A sliding glass door separating the living room from the porch was open. When Sergeant Brintzinghoffer stepped onto the porch, he observed a camouflage rifle bag on the floor next to a storage bin in which he feared someone might be hiding. He picked up the bag and knew by its weight and feel that a rifle was inside. He opened the bag and found an assault-type rifle, a “banana clip,” and “numerous rounds of ammunition, other magazines, [and] speed loaders.” The rifle and contents of the bag were seized as evidence.

The trial court determined that Sergeant Brintzinghoffer was a credible witness and denied defendant's motion to suppress on the basis that the sergeant conducted a permissible protective sweep during which he discovered, in plain view, the rifle and its accoutrements.

C.

During a four-day jury trial in May 2011, the State called several police officers as witnesses, including Sergeant Brintzinghoffer, whose testimony tracked the account he gave at the suppression hearing. Burlington Township Police Officer Christopher Ent, who was part of the perimeter team guarding the rear of defendant's apartment during the execution of the arrest warrant, recalled seeing the back porch's sliding glass door open, its screen door come crashing down, and defendant step onto the porch.

Burlington Township Sergeant (then-officer) Richard Sullivan, who also was on the perimeter team, remembered the screen door falling and defendant coming onto the balcony.³ After he and defendant made eye contact, Sullivan trained his rifle on defendant and ordered him back into the apartment. Defendant put his hands up and complied.

The State offered expert testimony that the assault-type rifle seized from defendant's apartment was operable and that no identifiable fingerprints were lifted from the weapon. Defendant and the State stipulated that “defendant has been convicted of a predicate prior offense.”

Defendant asserted as his defense that, without his knowledge, someone put the rifle on his porch. In support of that defense, defendant called as a witness his adult daughter, April, then a college student, who was visiting her father when the police arrived. April testified that she did not see defendant go onto the balcony that day. She stated that the screen to the porch's sliding glass door fell when she opened it. She described the balcony as a cluttered area where defendant stored his tools and where junk had accumulated. She remembered that, on other occasions, her father's construction-business employees were present in the apartment. She also averred that she had never seen or heard her father talk about a rifle.

Testifying in his own defense, defendant stated that he owned a home-improvement construction company that employed ex-felons.

He explained that, given his own past, he wanted to give others with a prior criminal record an opportunity for gainful employment. Defendant also stated that his employees had access to his apartment and stored work gear and tools inside. He recalled workers loading tools from his balcony on July 5, 2006, the day of his arrest.

Defendant maintained that in 2006 he was living in two separate residences, the unit at the Chateau Apartment complex and at the home of his then fiancée and now wife (April's mother). According to defendant, when the police arrived at his door, the television was playing, and he was leaning over the porch screen onto his balcony when the screen fell off its hinges. He became scared when he saw a “shotgun” pointing at him. Defendant denied ever owning or seeing the rifle or ammunition found on his balcony.

D.

Defendant intended to call as a witness Dante Santiago, a former employee of defendant's construction business, who claimed that he owned the rifle and placed it on the porch unbeknownst to defendant. In a notarized statement dated April 22, 2011, Santiago wrote:

On my third day at work I not only brought an “SK” with me (gun), but without permission I also decided to stash it on the boss man's balcony until work was finished because I was going to sell it to an associate of mine that resides in North Camden. Well what was suppose[d] to take place obviously didn't, because after work this day me and [my friend] headed back to boss man Cope's apartment so that we could receive payment for the day's work and so that I could also pick up my shit, but as we approached the

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