State v. Flowers, DOCKET NO. A-2891-17T1

• Decision Date: 15 June 2020
• Docket Number: DOCKET NO. A-2891-17T1
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. ZACHARY D. FLOWERS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ZACHARY D. FLOWERS, Defendant-Appellant.

DOCKET NO. A-2891-17T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted May 12, 2020

June 15, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Fisher and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 15-12-0563.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the briefs).

Richard T. Burke, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant Zachary D. Flowers was convicted of felony-murder, armed robbery, conspiracy to commit robbery, and related weapons offenses for his involvement in the shooting death of a gas station attendant. Defendant was sentenced to an aggregate thirty-five-year prison term; he must serve eighty-five percent of that term under the No Early Release Act, N.J.S.A. 2C:43-7.2. During the nine-day trial, the State presented the testimony of twenty-five witnesses. But the case turned on defendant's words: six days after the shooting, defendant gave a detailed confession to police; at trial defendant recanted his post-arrest admissions, claiming they were a contrived attempt to protect his friend, David Beagell. Evidence seized from defendant's home corroborated the statement he gave to police; the prosecutor referenced that evidence in his closing remarks.

Defendant now appeals, arguing:

POINT I

[]DEFENDANT'S RIGHTS WERE VIOLATED BY THE PROSECUTOR'S USE AND RELIANCE ON . . . DEFENDANT'S MOTHER'S STATEMENT MADE DURING THE COURSE OF A POLICE INVESTIGATION IMPLICATING . . . DEFENDANT IN THE CRIME OF MURDER, EVEN THOUGH DEFENDANT'S MOTHER DID NOT TESTIFY.

A. []Defendant's Right of Confrontation Was Violated.

B. Putting Highly Prejudicial and Incriminating Hearsay Statements before the Jurors in the Guise of Cross-Examination Constitutes Egregious Prosecutorial Misconduct.

POINT II

[]DEFENDANT WAS DENIED THE RIGHT TO PRESENT A COMPLETE DEFENSE WHEN STATE WITNESSES VIOLATED THE SEQUESTRATION ORDER, UNDERMINING COUNSEL'S ABILITY TO IMPEACH THEM BASED ON INCONSISTENCIES.

POINT III

THE VIDEO RECORDING OF DEFENDANT'S STATEMENT SHOULD HAVE BEEN EXCLUDED BECAUSE IT WAS "INDISCERNIBLE."

(Not raised below)

POINT IV

THE STATE FAILED TO PROVE THAT THE WARRANTLESS SEARCH OF . . . DEFENDANT'S BEDROOM WAS LAWFULLY AUTHORIZED BY A THIRD[-]PARTY CONSENT SEARCH.

POINT V

THE STATE FAILED TO PROVE THAT THE CONFESSION WAS GIVEN VOLUNTARILY AND KNOWINGLY.

POINT VI

THE SENTENCE IS EXCESSIVE.

We reject the arguments challenging defendant's convictions, subject to a remand for an evidentiary hearing on his motion to suppress evidence, and we remand for resentencing without consideration of aggravating factor one, N.J.S.A. 2C:44-1(a)(1). In doing so, we find insufficient merit in the arguments raised in points II, III, and V to warrant extended discussion in a written opinion, R. 2:11-3(e)(2), beyond the comments that follow. We focus instead on points I, IV, and VI.

I.

Soon after midnight on January 5, 2012, police were dispatched to the BP gas station in Phillipsburg, following a report that the attendant was lying on the ground bleeding. Upon their arrival, officers saw Kismathdas Kasam lying in a pool of blood. Kasam was unconscious with a gunshot wound to his right leg. A shotgun-style ammunition "wad" lay on the ground nearby. Kasam's wedding band was removed, cash was missing from the booth, and the wires leading to the surveillance camera were severed. Medical efforts to save Kasam - including amputation of his leg - were made in vain; Kasam died from the gunshot wound two days later.

No one witnessed the crime, but police had some leads, including a neighbor's description of two men she saw running from the scene. She toldpolice the second man was carrying a shotgun. A police artist drew composite sketches of the suspects based on her descriptions, but police never asked the neighbor to identify a photograph of any suspects.

Within days of the incident, the police tip line also proved fruitful: a caller told police defendant admitted to the caller's sister, Sara Warfle, and her boyfriend, Jeremy Reed, that defendant was involved in the robbery. According to Warfle's trial testimony, defendant called Reed, sounding "upset" and asked whether he could come to Reed's home. When defendant arrived, he spoke with Warfle and Reed together, and told them that he and Andy Torres went to the BP gas station in Phillipsburg, intending to rob it; Torres went behind the building and cut the wires to the surveillance system; Torres and the attendant got into an argument; Torres shot the attendant in the leg with a shotgun; they took money, then ran from the scene. Defendant also said Alexis Flowers¹ - defendant's sister and Torres's girlfriend - drove them from the scene. Warfle did not recall defendant mentioning Beagell was involved in the incident. Reedessentially corroborated Warfle's testimony, adding defendant said Beagell was with them.

Shortly after his conversation with defendant, Reed agreed to participate in police-monitored text message communications with defendant. During their exchange of several messages about the ongoing police investigation, Reed told defendant print and television media had released sketches of the suspects. In response to defendant's inquiry, Reed messaged defendant that one of the sketches resembled defendant's "skin color, and his height, and everything looked like him." Defendant instructed Reed to "erase all our messages." Defendant thereafter messaged Reed:

Yeah, we're all good though. We were well equipped, completely covered, mask, hoods, gloves, we were ready for it. They don't got shit. None of those witnesses would be credible in court. But we took out the video surveillance an hour earlier so, yeah, I'm good. Have faith in me.

On January 11, detectives assigned to the Warren County Prosecutor's Office and the Allentown Police Department arrested Torres on an active warrant, and seized a shotgun from the home he shared with Alexis in Allentown, Pennsylvania. Detectives questioned Torres, Alexis and defendant,who implicated themselves, one another, and Beagell² in the incident.

Police also questioned Michelle Flowers, the mother of defendant and Alexis, after learning her car was involved in the incident. Pertinent to this appeal, Michelle told police defendant said "he was going down" for his participation in the robbery, explaining: "he was crossing the street, he had the money, he was running or whatever, and he turned back and saw [Kasam] fall to the ground." Defendant told Michelle, "I can never go in the military now." Michelle did not testify at defendant's trial.

After waiving his Miranda³ rights, defendant gave two detailed statements to police, totaling nearly two hours in duration. Defendant initially told police he planned the robbery with Torres and Alexis, then later acknowledged Beagell "unwillingly" went along for the ride. Defendant claimed Beagell was unaware Torres intended to bring his shotgun to the gas station; Beagell thought they would be using defendant's BB gun, baton and taser. Defendant vehemently denied Beagell was the shooter.

Defendant's video-recorded statements were played for the jury during the State's case-in-chief. Defendant testified on his own behalf and recanted hispre-trial admissions. He told the jury he lied to police because he was trying to protect Beagell, whose role defendant said he assumed when he confessed to Warfle, Reed, and the detectives.

Defendant testified that a few days after the incident, Beagell said he participated in the robbery with Torres and Alexis and acknowledged Kasam had been shot. Beagell "bugged" defendant to help him, so defendant agreed to "take his role and make a story about how [defendant] was involved and [Beagell] wasn't." Defendant said he practiced his story on Warfle and Reed, finding it funny "to portray" himself to his friends in "a gangster kind of role." Defendant claimed the lies he told to police were based on the details of the robbery provided to him by Torres, Beagell, and Alexis, which he "was able to coalesce into a story and then some of the stuff that [he] didn't know" he "winged it with mixing in fact and fiction."

The jury deliberated for one day - including playback of defendant's post-arrest statements - and returned a guilty verdict on all counts, except unlawful possession of the BB gun. Following defendant's sentence, he filed this appeal.

II.

A warrantless search of defendant's bedroom resulted in the seizure of his BB gun and baton, which corroborated his confession to police. Defendant andhis two younger siblings lived in the home, which was located in Allentown and owned by Michelle. Beagell and his girlfriend, Kirsten Piscitello, rented a bedroom in the residence.

In point IV of his merits brief, defendant primarily argues the State failed to satisfy its burden of proving the warrantless search of his bedroom was lawful, and the trial court impermissibly shifted the burden to defendant to demonstrate Michelle was not authorized to consent to the search of his room. Defendant seeks reversal and a new trial; he does not argue the court should have held an evidentiary hearing. Citing Pennsylvania case law, the State maintains "there was absolutely no evidence presented" to counter Michelle's apparent authority to grant consent. For the first time on appeal, the State alternatively argues the seizure was authorized under the inevitable discovery doctrine.⁴ Because it appears from the record that issues of fact precluded a decision based only on the...