State v. Pugh

• Decision Date: 13 July 2020
• Docket Number: DOCKET NO. A-2495-17T2
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. KIRK J. PUGH, a/k/a HUGH PUGH, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. KIRK J. PUGH, a/k/a HUGH PUGH, Defendant-Appellant.

DOCKET NO. A-2495-17T2

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted May 26, 2020

July 13, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Sabatino, Sumners and Natali.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 15-02-0127.

Joseph E. Krakora, Public Defender, attorney for appellant (Janet Anne Allegro, Designated Counsel, on the brief).

Christopher L.C. Kuberiet, Acting Middlesex County Prosecutor, attorney for respondent (Nancy Anne Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After the trial court denied his motions to suppress and to proceed pro se, a jury convicted defendant Kirk Pugh of third-degree theft, N.J.S.A. 2C:20-2(b)(2)(D). The same court also denied defendant's post-trial motion for a judgment of acquittal and subsequently sentenced him to a discretionary persistent offender extended term of eight years in prison with four years of parole ineligibility pursuant to N.J.S.A. 2C:44-3(a) and assessed applicable fines and penalties.

Defendant raises the following issues on appeal:

POINT I

THE POLICE MADE A WARRANTLESS ARREST OF DEFENDANT IN HIS HOME VIOLATING HIS CONSTITUTIONAL RIGHT TO PRIVACY, THEREFORE THE SUBSEQUENT SEIZURE OF HIM AND SEARCH OF HIS PERSON AND HOME WAS UNCONSTITUTIONAL, WARRANTING A REVERSAL OF THE CONVICTION.

A. The Court Incorrectly Applied the Standards of Terry v. Ohio, 392 U.S. 1 (1968) to the Present Unconstitutional Arrest and Search.

B. Detective Hamer Testified Incredibly Regarding His Encounter with [Defendant] at His Home.

C. A Warrant and Probable Cause was Required for the Arrest and Search of [Defendant].

POINT II

SINCE THE POLICE DID NOT CONDUCT A LAWFUL ARREST AND DETENTION OF DEFENDANT, ENTERING HIS HOME WAS UNLAWFUL WHILE HE WAS BEING DETAINED INSIDE A POLICE CAR RIGHT IN FRONT OF HIS HOME AND THE COURT ERRED IN GRANTING A RECONSIDERATION OF THE SUPPRESION ORDER REGARDING ITEMS FOUND INSIDE THE HOME.

POINT III

INADMISSIBLE LAY OPINION TESTIMONY FROM THE INVESTIGATING DETECTIVES IDENTIFYING DEFENDANT AS THE PERSON IN THE SURVEILLANCE FOOTAGE DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL AND VIOLATED THE COURT'S DIRECTIVES PRECLUDING SUCH TESTIMONY.

POINT IV

THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AFTER A GUILTY VERDICT WAS RENDERED.

POINT V

THE TRIAL COURT FAILED TO APPLY THE CORRECT LEGAL STANDARD REGARDING DEFENDANT'S REQUEST TO PROCEED PRO SE.

POINT VI

THE SENTENCE IMPOSED BY THE TRIAL COURT WAS UNDULY EXCESSIVE.

After reviewing the record in light of the contentions on appeal and the applicable law, we affirm.

I.

We glean the following facts from the record developed during the suppression hearing and trial. On October 18, 2014, at around 11:00 p.m., Detective Theodore Hamer of the Edison Police Department (EPD) received a phone call regarding an incident at an Edison gas station. He responded to the scene and reviewed surveillance video footage of the incident provided by the owner. Hamer testified that when reviewing the footage, he observed a male wearing glasses inside a vehicle getting gas. He then stated that as the attendant removed the gas nozzle from the vehicle's tank, "the individual gets out of the car and as he approaches [the attendant], he appears to be holding . . . a knife in his right hand." Hamer then observed the individual "grabbing the attendant with his left hand and push[ing] him down to the ground. And then you can see him . . . go through the victim's pockets with his left hand before getting back in the car and fleeing the scene."

Officer Wilfredo Brown, also of the EPD, brought the victim, Mohammad Aslam, to police headquarters for an interview. Hamer stated that Aslaminformed him that "when he put the gas cap back on the vehicle, the driver exited his vehicle, grabbed him, threw him to the ground, went through his pockets, and stole approximately $300 and then fled the scene on Route 1 South." Aslam described the perpetrator to Hamer as "a black male in his late [forties]" and that he "was wearing a hat and a hooded sweatshirt pulled up." Hamer stated that Aslam's description was consistent with his review of the surveillance footage.

Hamer also noted that from the video footage, he was able to read the front license plate of the vehicle. He eventually determined that the registered owner of the vehicle was Donna Tutt, a resident of North Brunswick. Hamer testified that he contacted the North Brunswick Police Department, who dispatched officers to Tutt's residence in order to determine whether the same vehicle was at the home. The officers informed Hamer that the vehicle was at the residence.

Hamer, Brown, and another EPD officer drove to the residence and observed the vehicle, as well as "the apartment with the lights on inside." Hamer testified that he knocked on the front door, and after what "might have been a minute or so," a man "who looked like the guy from the video," later identified as defendant, opened the door. He described defendant as "a black male, approximately [fifty] years old, approximately [five feet eight inches] tall" and stated, "he was carrying a white tee shirt at the time" and "had glasses on."

From this point forward, Hamer's testimony of events differs drastically from defendant's. Hamer testified that when defendant opened the door, "as he walked outside the apartment, he asked without any solicitation, 'Is this about the incident at the gas station[?]'" At that time, Hamer "looked [defendant] up and down" and "saw a bulge in his front right pocket," which prompted him to "conduct . . . a pat down to make sure there [were] no weapons on him."

Hamer testified he conducted a pat down because "after watching the video, . . . I wanted to make sure that he didn't have any weapons on him." Hamer stated that as he patted down the outside of defendant's pants, he "heard a jingle of . . . keys and . . . felt a hard object which would be consistent with a knife." He retrieved a "box-cutter-type folding knife and a set of keys" from defendant's pocket, placed him in handcuffs, and seated him in the back of Brown's patrol vehicle.

Hamer also stated that Tutt, defendant's sister, asked what was happening and "invited us into her house . . . to explain to her what was going on." In a voluntary recorded statement, Tutt informed Hamer and Brown that "she just came back from work," and that "shortly after she came home . . . defendant came home, us[ed] her car, and told her that he stopped at a friend's house . . . to borrow money and had to get gas in the car."

During the course of the conversation, Brown notified Hamer that he noticed "a black zippered sweatshirt and a . . . black and silver . . . baseball cap . . . on the edge of the couch in the living room that we were standing in." Hamer testified that he recognized that clothing from the surveillance video and as a result, he and Brown seized the clothing.

While waiting for a towing company to arrive to impound the vehicle, Hamer testified that he returned to Brown's patrol car, where defendant was seated, "told [defendant] that he was under arrest[,] and . . . verbally [M]irandized him because I knew we were going to be in the car driving back to headquarters." Hamer indicated he did not carry a Miranda¹ card with him because he knew defendant's Miranda rights from memory.

In transporting defendant to the EPD, Hamer testified he did not ask defendant questions while in the patrol car, but that "[defendant] was making some statements in the back of the car." According to Hamer's report, defendant stated, "I was only arguing with the gas station attendant over how much gas he put in my car," and that he reiterated this "a few times." Hamer admitted, however, that while Brown's patrol car possessed a motor vehicle recording(MVR) unit, he did not know "if it was operational at the time" and that he did not "believe it was activated."

At headquarters, a search of defendant during processing revealed two cell phones, cash, and a bail bonds receipt. Hamer then brought defendant to the interview room and read his Miranda rights from a written form. Defendant initialed that he understood his rights but elected not to waive them and did not provide a statement.

As noted, defendant's version of events at the house and in the patrol vehicle differed significantly from Hamer's. He testified that at around 2:00 a.m., he was in bed and heard "banging" on the front door. Defendant stated he was sleeping in a t-shirt and underwear, so he quickly put more clothes on and went to the door. He testified that he looked out the window and saw "a group of police." As defendant opened the door, he stated that he did not "step out," but that he stepped to the door front. He testified that Hamer "grabbed [him] . . . right above [his] tricep . . . [and] pulled [him] out the door." Defendant reiterated that he did not step outside because there was "no need for [him] to go outside," he "had [prior] interactions with the police," and it was "freezing" outside.

Defendant stated that Hamer led him "about [twenty] feet away . . . [to] the sidewalk in front of [his] house," and that the other officers "boxed [him] in." Defendant claimed he tried to close his front door because his sister was purportedly sick, but Hamer "grabbed [him] up again" and informed him not to worry about the door, while "the other three stepped into [him], reaching for the mace or guns." Defendant stated that for three minutes, Hamer refused to answer why defendant was removed from his house. In response, defend...