State v. Stout

• Decision Date: 07 May 2020
• Docket Number: DOCKET NO. A-5799-17T4
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. DEVON STOUT, a/k/a DEVIN STOUT, and DEVIN AGOLIO-STOUT, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. DEVON STOUT, a/k/a DEVIN STOUT, and DEVIN AGOLIO-STOUT, Defendant-Appellant.

DOCKET NO. A-5799-17T4

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted February 24, 2020

May 7, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 17-10-1463.

Joseph E. Krakora, Public Defender, attorney for appellant (David J. Reich, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Devon Stout appeals from his conviction by jury of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and fourth-degree unlawful possession of a defaced firearm, N.J.S.A. 2C:39-3(d), and the sentence imposed by the trial judge,¹ arguing:

POINT I

THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS BECAUSE THE POLICE OFFICER DID NOT HAVE A VALID BASIS TO STOP OR SEIZE [DEFENDANT].

POINT II

THE IMPROPER ADMISSION OF THE POLICE OFFICER'S LAY OPINION TESTIMONY AND REMARKS BY THE ASSISTANT PROSECUTOR INDICATING [DEFENDANT] DISCARDED THE GUN WHICH WAS SUBSEQUENTLY DISCOVERED DEPRIVED [DEFENDANT] OF A FAIR TRIAL.

POINT III

THE TRIAL COURT ERRED IN ADMITTING [DEFENDANT'S] JAILHOUSE STATEMENT.

POINT IV

A NEW TRIAL IS REQUIRED IN VIEW OF THE TRIAL COURT'S FAILURE TO MAKE SUFFICIENT VOIR DIRE INQUIRY TO ENSURE THAT DISCUSSION AMONG CERTAIN JURORS OUTSIDE THE JURY ROOM AFTER DELIBERATIONS HAD BEGUN DID NOT IMPROPERLY TAINT THE JURY DELIBERATION PROCESS.

POINT V

A REMAND IS REQUIRED IN VIEW OF ERRORS THE TRIAL COURT COMMITTED IN IMPOSING SENTENCE.²

We are unpersuaded by these arguments and affirm.

I.

In considering defendant's argument that the Asbury Park police officer who first encountered defendant had no right to stop him, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). Those facts found credible by the motion judge from thetestimony of the officer at the suppression hearing reveal the officer was on patrol at approximately 9:20 p.m. on a mid-August evening when he heard "two loud pops" which he "immediately recognized" as gunshots. About thirty to sixty seconds after he heard the shots, as he proceeded in his unmarked police car to the area approximately two blocks west of his position from whence the sound of the shots came, he saw defendant walking out of a backyard and cross directly in front of the officer's vehicle.

Defendant was immediately recognizable to the officer from previous investigations, and from encounters with defendant who had been previously fired upon thrice. The officer knew defendant to be affiliated with the Bloods and that his street name was "Balie." The officer "slowed his vehicle and called . . . defendant by [his given] name," whereupon defendant looked at the officer "and immediately began to flee while clutching at his waistband."

The officer exited his vehicle and gave serpentine chase to defendant, "repeatedly shout[ing] out commands to . . . defendant, by name, . . . directing him to [']stop, police['], in a loud, clear voice." As defendant ran, the officer observed from a distance of five to ten yards in a "lightly illuminated" backyard, the silhouette of defendant's right hand motioning toward the ground and "heard a thud, consistent with something heavy landing on the ground."

Within five minutes, the officer lost sight of defendant and returned to the area where he heard the thud; there he located the handgun which defendant was charged with possessing.

We defer to the motion judge's findings, especially because they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). The motion judge's application of his factual findings to the law, however, is subject to plenary review. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999).

Defendant's present contention that the motion judge "incorrectly assumed that the stop and seizure of [defendant] did not occur until after the police officer began to chase him on foot rather than when the police officer first confronted [defendant] from his motor vehicle" is at odds with the motion judge's perception, "[b]ased on the submissions of both parties['] counsel . . . that the seizure occurred when [the officer] began chasing . . . defendant." We were not provided with those submissions. See R. 2:6-1(a)(2). As such, we do not know what defendant contended therein. But if the motion judge correctly explained defendant's position—and we have no reason to doubt he did, especiallyconsidering defendant did not deny that position in his merits brief—the concession that the stop did not occur until the officer gave chase amounts to invited error which bars a party from taking a position on appeal contrary to a position advanced to the motion judge. See State v. Pontery, 19 N.J. 457, 471 (1955). "Elementary justice in reviewing the action of a [motion judge] requires that [the judge] should not be reversed for an error committed at the instance of [the] party alleging it." State v. Scioscia, 200 N.J. Super. 28, 47 (App. Div. 1985) (third alteration in original) (quoting Bahrey v. Poniatishin, 95 N.J.L. 128, 133 (E. & A. 1920)).

Nonetheless, we find no such error was committed by the motion judge. "A 'field inquiry' is the least intrusive" form of police encounter, occurring "when a police officer approaches an individual and asks 'if [the person] is willing to answer some questions.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). "[A] field [inquiry] is not a Fourth Amendment event 'so long as the officer does not deny the individual the right to move.'" State v. Egan, 325 N.J. Super. 402, 409 (Law Div. 1999) (quoting State v. Sheffield, 62 N.J. 441, 447 (1973)); see also State v. Rosario, 229 N.J. 263, 273-74 (2017) (citing Egan favorably). Theofficer is permitted to ask questions during the field inquiry as long as they are not "harassing, overbearing, or accusatory in nature." Nishina, 175 N.J. at 510.

By contrast, an investigatory stop, familiarly known as a Terry stop, occurs when police detain a person who would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry v. Ohio, 392 U.S. 1, 21 (1968). Under Terry, a police officer can detain an individual for a brief period, if the stop "is based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." State v. Rodriguez, 172 N.J. 117, 126-27 (2002) (quoting Terry, 392 U.S. at 21). Under this standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." State v. Davis, 104 N.J. 490, 504 (1986).

Applying these principles and our standard of review, we discern no basis for disturbing the motion judge's determination that the stop and subsequent search were valid. By calling defendant's name, the officer did not conduct an investigatory stop. Indeed, although his clear purpose was to inquire about defendant's knowledge, if any, about the gunshots, the officer did not even havean opportunity to pose a question to defendant before he ran. Obviously, defendant did not feel compelled to remain at the location. See Rosario, 229 N.J. at 271-72 ("The test of a field inquiry is 'whether [a] defendant, under all of the attendant circumstances, reasonably believed he [or she] could walk away without answering any of [the officer's] questions." (first and third alterations in original) (quoting State v. Maryland, 167 N.J. 471, 483 (2001))). To that point in time, the encounter was no more than a field inquiry.

That inquiry quickly escalated to a Terry stop when the officer gave chase, announced he was a police officer—a status evidenced by the officer's neck-worn badge and top with "police" emblazoned in large silver lettering on front and back—and commanded him to stop. See State v. Tucker, 136 N.J. 158, 166 (1994) (holding an investigatory stop occurs when police officers chase a suspect and, under the totality of the circumstances, "the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter" (quoting Florida v. Bostick, 501 U.S. 429, 439 (1991))). We agree that defendant's flight alone did not justify a Terry stop. State v. Williams, 410 N.J. Super. 549, 555 (App. Div. 2009).

"However, flight 'in combination with other circumstances . . . may support [the] reasonable and articulable suspicion' required to justify a stop." Ibid. (alterations in original) (quoting Pineiro, 181 N.J. at 26); see also State v. Citarella, 154 N.J. 272, 281 (1998) (recognizing flight as one factor justifying police chase of a bike rider who was a known narcotics offender acting suspiciously); State v. Morrison, 322 N.J. Super. 147, 155-56 (App. Div. 1999) (upholding the stop of a fleeing suspect based upon high-narcotics area and...