State v. Harden, DOCKET NO. A-5935-17

STATE OF NEW JERSEY, Plaintiff-Respondent, v. KENNETH D. HARDEN,a/k/a KENNETH HARDEN,and BK BABY K, Defendant-Appellant.

DOCKET NO. A-5935-17

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued January 13, 2021

June 10, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Accurso, Vernoia and Enright.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 17-03-0190 and 17-04-0387.

Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Peter T. Blum, of counsel and on the brief).

Andre R. Araujo, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Andre R. Araujo, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Kenneth D. Harden of unlawful possession of a weapon, certain persons not to have weapons, and possession of a controlled dangerous substance (CDS). The court imposed an aggregate twenty-year sentence with a ten-year period of parole ineligibility. Defendant appeals from his convictions and sentence, and we reverse and remand for a new trial because the court erred by denying defendant's motion to suppress statements he made during a custodial interrogation and by improperly instructing the jury it was obligated to reach a unanimous verdict after reporting it was deadlocked.

I.

In November 2016, a grand jury indicted defendant for charges arising out of an April 29, 2016 incident during which a handgun and heroin were found in an automobile defendant was observed driving and had just exited. The indictment charged defendant with: second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1); third-degree possession of CDS, heroin, N.J.S.A. 2C:35-10(a)(1); third-degree possession with intent to distribute CDS, heroin, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); third-degree possession with intent to distribute CDS in a school zone, N.J.S.A. 2C:35-7(a); and second-degreepossession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b)(1). Defendant was represented by counsel at his January 17, 2017 arraignment on the charges in the indictment.

On February 1, 2017, defendant was arrested on charges arising out of an alleged attempted murder on April 28, 2016, the day before the incident that gave rise to the offenses charged in the indictment. Ballistics testing revealed the gun used in the April 28, 2016 alleged attempted murder was the same gun recovered from the automobile on April 29, 2016 and for which defendant was charged with possessory offenses in the indictment.

Immediately following his arrest on February 1, 2017, a detective spoke with defendant. Prior to advising defendant of his Miranda¹ rights and outside of the presence of counsel representing defendant on the charges in the indictment, the detective told defendant the gun used in the alleged attempted murder was the same gun defendant "got caught with" the following day. In response, defendant said, "I wasn't the only one in the car with that gun." Defendant later also stated, "It wasn't my gun."

In April 2017, a grand jury returned a superseding indictment that included charges related to the April 28 and 29, 2016 incidents. The indictmentcharged that on April 28, 2016, defendant committed the following offenses: second-degree possession of a community gun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(2), and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1). The indictment charged the following offenses related to the April 29, 2016 incident involving the automobile: second-degree possession of a weapon while committing the offense of possession of heroin with intent to distribute, N.J.S.A. 2C:39-4.1(a); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3); and third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). The superseding indictment also charged defendant with second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b)(1), on April 28 and 29, 2016.

The court later dismissed all charges based on the alleged April 28, 2016 incident. A bifurcated trial proceeded on the five charges arising out of the April 29, 2016 incident. Prior to trial, defendant moved to suppress the February 1, 2017 statements he made to the detective following his arrest on the charges related to the April 28, 2016 incident. Defendant argued the statements were obtained in violation of his Miranda rights and his right to remain silent. The court held an evidentiary hearing and denied the motion, finding that althoughdefendant was in custody when the statements were made, the statements were not the product of an interrogation. Defendant moved for reconsideration, arguing the court erred in the first instance by denying the motion and also that the statements were obtained in violation of his right to counsel who, at the time, represented him in connection with the then-pending initial indictment charging him with the offenses related to the April 29, 2016 automobile incident. The court denied the reconsideration motion.

The evidence at trial showed that on April 29, 2016, officers were looking for defendant and observed him driving a silver Chevy Impala that was registered to his mother. A detective testified he had previously seen defendant driving the car, but he did not know who else had access to it and he had not seen defendant driving it on the days immediately prior to April 29.

Shortly after the officers saw the car, defendant drove it into a parking lot, stopped, and got out. Officers immediately approached defendant, who was the car's sole occupant. While the officers waited for a tow truck to move the car to another location to be searched, defendant's mother appeared and asked to take the car. The officers denied the request.

A subsequent search of the car revealed: a loaded handgun magazine in the center console; a loaded, operable handgun under the front passenger seat;and a brown box under the front passenger seat in which the officers found a digital scale, 137 unused wax paper folds, and a plastic bag containing 2.5 grams of heroin. The search of the car's center console also yielded a pill bottle for an April 26, 2016 prescription issued to defendant, and a bank card and identification card, both of which were issued in defendant's name. In the car's trunk, officers found a piece of mail dated April 5, 2015, addressed to defendant. The State tested the gun for fingerprints and DNA, but none was discovered linking defendant to the weapon.

Defendant argued at trial the State failed to prove beyond a reasonable doubt the gun belonged to him or was possessed by him. Defendant asserted the car was not registered to him; others, including his mother, had access to it; and the State lacked forensic evidence linking him to the weapon. The State argued the other items found in the car—each of which referred to defendant—showed defendant had control over, and possessed, all the items in the car. The State also argued defendant's February 1, 2017 statement to the detective—that defendant "wasn't the only one in the car with that gun. Guns get passed around all the time"—was, "at the very least," an admission by defendant that he jointly possessed the gun.

In the initial phase of the bifurcated trial, the jury found defendant not guilty of possession of heroin with intent to distribute and unlawful possession of a weapon while committing a CDS offense. The jury found defendant guilty of second-degree unlawful possession of a weapon and third-degree unlawful possession of heroin. In the second phase of the trial, the jury found defendant guilty of second-degree certain persons not to have weapons.

At sentencing, the court found aggravating factors three, the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3), six, the nature and extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6), and nine, the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9); found no mitigating factors, see generally N.J.S.A. 2C:44-1(b)(1) to (14); and determined the aggravating factors substantially outweighed the mitigating factors. The court sentenced defendant to eight years with a four-year period of parole ineligibility for second-degree unlawful possession of a weapon, to run concurrently with defendant's four-year sentence for third-degree possession of CDS, heroin. The court also imposed an extended term twelve-year sentence with a six-year period of parole ineligibility on defendant's conviction for second-degree certain persons not to have weapons, to run consecutively to the sentence imposed on the unlawful possession of a weaponand possession of CDS charges. Thus, the court imposed an aggregate twenty-year sentence with a ten-year period of parole ineligibility on the charges in the superseding indictment. The court further directed that the twenty-year aggregate sentence run consecutive to concurrent five-year sentences the court imposed on charges in an unrelated indictment to which defendant pleaded guilty following his convictions at trial.²

Defendant appealed from his convictions and the sentence imposed on the charges in the superseding indictment. He offers the following arguments on appeal:

POINT I

[DEFENDANT'S] STATEMENTS SHOULD BE SUPPRESSED AND A NEW TRIAL SHOULD BE GRANTED (A) BECAUSE OF A VIOLATION OF HIS SIXTH-AMENDMENT RIGHT TO COUNSEL AND (B) BECAUSE OF A FIFTH-AMENDMENT MIRANDA VIOLATION.

A. The Detective Should Not Have Tried to Question [Defendant] About the Indicted Case Because [Defendant's] Assigned Cou

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