NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6123-11T3
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, January 15, 2015
v. APPELLATE DIVISION
JEROME L. FAUCETTE, a/k/a
LEROY DANIEL THOMAS,
Defendant-Appellant.
_______________________________
Submitted September 15, 2014 - Decided January 15, 2015
Before Judges Lihotz, Espinosa and
Rothstadt.
On appeal from the Superior Court of New
Jersey, Law Division, Burlington County,
Indictment No. 08-08-0865.
Joseph E. Krakora, Public Defender, attorney
for appellant (Frank M. Gennaro, Designated
Counsel, on the brief).
John J. Hoffman, Acting Attorney General,
attorney for respondent (Jane C. Schuster,
Deputy Attorney General, of counsel and on
the brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
In reviewing the Law Division's order denying defendant's
motion to suppress his custodial statement, we consider not only
whether defendant's statement was voluntarily and knowingly
made, but also whether the fourteen-day break-in-custody period
following a defendant's invocation of the right to counsel,
announced in Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213,
175 L. Ed. 2d 1045 (2010), and applied by our Supreme Court in
State v. Wessells, 209 N.J. 395 (2012), must also be applied
when a defendant invokes the right to remain silent. In
Shatzer, the United States Supreme Court specifically recognized
an enhanced protective period must follow a break in custody
caused by a suspect's invocation of the right to counsel. We
conclude such an extensive period of protection need not
accompany a break in custody caused by a defendant's request to
cease the interrogation.
Defendant Jerome L. Faucette was charged under Indictment
No. 08-08-0865 with first-degree offenses of felony murder,
N.J.S.A. 2C:11-3(a)(3) (count one); and robbery, N.J.S.A.
2C:15-1 (count two). The charges stem from an incident
occurring on April 14, 2008, when defendant acted as the driver
for co-defendant Terrance S. Clemons, who robbed and shot a gas
station attendant. Following trial, a jury acquitted defendant
of felony murder, but found him guilty of first-degree robbery.
Defendant was sentenced to thirteen years in prison, subject to
2 A-6123-11T3
the 85% parole ineligibility period required by the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appeals from his conviction and sentence arguing:
POINT ONE
DEFENDANT'S MAY 15, 2008 STATEMENT WAS NOT
THE PRODUCT OF A VOLUNTARY, KNOWING, AND
INTELLIGENT WAIVER OF HIS RIGHT TO REMAIN
SILENT AND, THEREFORE, SHOULD HAVE BEEN
SUPPRESSED BY THE TRIAL COURT.
A. Waiver of Miranda Rights.
B. Defendant Invoked his Right to Remain
Silent.
C. Fruit of the Poisonous Tree.
POINT TWO
THE PUBLICATION TO THE JURY OF GRAPHIC
AUTOPSY PHOTOGRAPHS, WHICH WERE NOT ADMITTED
INTO EVIDENCE, WAS ERROR WHICH UNDULY
PREJUDICED DEFENDANT.
POINT THREE
THE TRIAL COURT WRONGFULLY DENIED
DEFENDANT'S MOTION FOR A NEW TRIAL.
POINT FOUR
DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.
In a separately filed supplemental brief, defendant presents
these issues:
ISSUE I
APPELLANT'S CONVICTION FOR FIRST DEGREE
ROBBERY ON BASIS OF ACCOMPLICE LIABILITY
THEORY REQUIRES REVERSAL FOR INSUFFICIENCY
OF EVIDENCE.
ISSUE II
THE TRIAL COURT'S JURY INSTRUCTIONS ON
ACCOMPLICE LIABLITY FOR FIRST DEGREE ROBBERY
3 A-6123-11T3
WERE INSUFFICIENT, DEFECTIVE AND ERRONEOUS
AND THE ERROR WAS SO FUNDAMENTAL AS TO
CONSTITUTE PLAIN ERROR (PLAIN ERROR).
ISSUE III
DEFENDANT'S MAY 15, 2008 STATEMENT WAS THE
PRODUCT OF PSYCHOLOGICAL COERCION AND WAS
NOT THE PRODUCT OF A VOLUNTARY, KNOWING AND
INTELLIGENT WAIVER OF HIS RIGHT TO REMAIN
SILENT AND THEREFORE SHOULD HAVE BEEN
SUPPRESSED BY THE TRIAL COURT.
Following our review of these issues, in light of the
record and the applicable law, we affirm.
I.
In Point One and Issue III, defendant challenges the
voluntariness of his custodial statements. These facts are
taken from the record of the three-day Miranda1 hearing, during
which Detective Stephen Craig was the sole witness and the State
admitted DVD recordings of defendant's custodial interviews.
On May 14, 2008, Detective Craig and another police
detective met defendant at his place of employment around 7:00
p.m. and asked if he would come with them for questioning. Once
at the police station, the detectives advised defendant of his
Miranda rights.
At approximately 8:00 p.m., defendant stated he "d[id not]
want to be [t]here" and "[he] want[ed] to be at work working, go
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
4 A-6123-11T3
home and get in [his] bed and then wake up and do the whole same
thing again." Thereafter, he asserted, "I ain't going to talk
[to] you I just want to leave, my God," and "I'm done talking
yo." Despite these protests, which were repeated, Detective
Craig continued the interrogation, which lasted for seven hours.
Police did not charge defendant and drove him home at
approximately 2:30 a.m.
That same day, police returned to defendant's home at
approximately 4:30 p.m. and asked him to accompany them to the
prosecutor's office. Police had requested a warrant for
defendant's arrest, which had not yet been issued. Defendant
agreed to go with the officers and his mother followed in her
car. Defendant's mother stayed in the lobby, while defendant
was taken into an interview room.
Detective Craig advised defendant of his Miranda rights,
"read[ing] them aloud from a standard Miranda card," which
defendant signed and dated.2 Upon receipt of the warrant, he
also informed defendant he was under arrest for "murder and
. . . related offenses" and provided a copy of the warrant
reflecting the charges. The detectives also confronted
defendant with information police had gathered from other
witnesses since defendant's earlier interview.
2
Defendant did not execute a waiver of his Miranda rights.
5 A-6123-11T3
Specifically, Detective Craig learned Detective Brian
Weisbrot, the lead investigator on the case, questioned Ms.
Spencer, defendant's former girlfriend, and Mr. Gaddy,3 defendant's
friend. Spencer told police defendant admitted he and Clemons
were involved in the robbery and shooting. Spencer then
revealed this to Gaddy, who confirmed what she had told him.
Defendant responded emotionally to this news, screaming,
crying, protesting his innocence, insisting he was telling the
truth and pacing around the room. After calming down, and upon
further police interrogation, defendant described his role in
the gas station robbery and killing. Defendant admitted he knew
Clemons intended to rob the gas station because he told him
"it's easy . . . it's an easy spot to go get." Despite
initially declining, defendant agreed to "just drive [Clemons]
around." At 11:00 p.m., he dropped Clemons off at the gas
station, and waited in his vehicle for Clemons to "go[] and do[]
it." Clemons returned to the car and during the drive back,
told defendant "he shot the guy," meaning the attendant, stating
"[he] shot him in his leg and then he was on the ground and he
. . . just shot him" in the head. The victim later died of the
inflicted gunshot wounds.
3
Mindful that our opinion will be posted on the internet, we
have omitted the full names of witnesses wherever possible to
protect their privacy.
6 A-6123-11T3
Defendant told police, shooting the attendant was not part
of the plan. He insisted "[he] didn't know [Clemons] had a gun
on him" and told detectives he did not take any of the proceeds
of the robbery. When asked if Clemons wore a mask, defendant
responded Clemons had a "bulgy pocket," which he thought "could
have had a mask in there . . . ." Defendant also recounted
driving Clemons to his girlfriend's house after the shooting,
and encountering Spencer, who he told about the robbery,
including how "[Clemons] shot somebody."
Throughout the interview, defendant did not appear to be
under the influence of alcohol or controlled substances, nor did
he display "visual signs of injury or any complaint of any type
of injury that would have precluded [the police] from speaking
with him." Detective Craig noted defendant, "appeared to be
well rested," "cognizant of the communications [the detectives]
were having with him" and to understand the rights as explained
to him. According to Detective Craig, defendant declined to
invoke his right to remain silent and agreed to answer questions
without an attorney present.
In a written statement accompanying his order, the Law
Division judge credited Detective Craig's testimony. The judge
found, in the first meeting with police, defendant expressed a
desire to end the interview after one hour of questioning.
7 A-6123-11T3
Thereafter, the interview "bec[ame] an interrogation" and
"continued in a persistent, relentless fashion" and was "laced
with . . . defendant's continued protestations . . . ." Thus,
the court found "[p]atently, beginning at 8:03 p.m., the
detectives failed to comply with the dictates of Miranda," a
point the State conceded.
Nevertheless, despite the "flagrant" Miranda violations on
May 14, the "extensive" questioning that night "did not deprive
. . . defendant of the normal use of his faculties, nor did it
constitute psychological manipulation that diminished his free
will," when questioned a second time. Regarding the second
interview, the trial court made the following factual findings:
Initially, . . . defendant, often
screaming or crying, denied any involvement
or saying anything to Spencer about the gas
station crimes. The detectives confronted
. . . defendant with his inconsistent
statements or failure to disclose, while
prying from him gradual admissions of
involvement. At no time did he make any
request, even a subtle one, to terminate the
interrogation or to have a lawyer. Although
he probably had no more than five hours
sleep the previous night, he exhibited no
signs of sleep deprivation, mental
incapacity or being physically overwhelmed.
Mid-way through the interrogation, the
defendant, becalmed, gave narrative
statements during an eight-minute segment,
admitting that he served as the driver for
Clemons who committed a robbery at the . . .
gas station, and the later robbery-murder at
the . . . [g]as station. Throughout the
8 A-6123-11T3
balance of the interrogation . . . defendant
was calm and cooperative.
The judge reasoned that neither the length of the
interviews nor their proximity in time nullified the
voluntariness of defendant's statements made in the second
interview. The judge found statements in that interview were
voluntarily made, as "[a] review of the recorded interrogations
reveal[ed] a defendant of normal intelligence, free of any
indicia of influential alcohol or medications, able to
understand the questions posed and respond to them." Moreover,
the judge determined defendant's May 15 statement did not
constitute "fruit of the poisonous tree," noting he was again
read his Miranda rights prior to the second interview; the
interviews were separated by more than fourteen hours; and
defendant was confronted with additional evidence at the later
interview. Accordingly, the judge concluded "[t]he record
reflect[ed] compliance with Miranda" during the May 15
interview, as "defendant made no request to terminate
questioning or ask for a lawyer."
The December 14, 2011 order suppressed defendant's
statements made after 8:03 p.m. on May 14 until the early
morning hours of May 15. However, the balance of defendant's
statements to police were deemed admissible, including his May
9 A-6123-11T3
15 disclosure of his role in the crime made after a second
issuance of Miranda warnings.
The principal issue on appeal is whether, examining the
totality of the circumstances, defendant's second custodial
statement was freely and voluntarily given. Defendant argues
his admission "was extracted in violation of [his] right to
remain silent" and contends it was the "product of government
coercion[,] which . . . overcame [his] will." Defendant also
posits the judge erred because the initial questioning, which
the State conceded violated Miranda's protections, "cannot
neatly be separated" from the subsequent interview, rendering
any statements made during this latter interview "fruit of the
poisonous tree."
"[A] finding of compliance with Miranda and voluntariness
turn[s] on factual and credibility determinations . . . ."
State v. W.B., 205 N.J. 588, 603 n.4 (2011). In our review, we
determine whether there is "sufficient credible evidence in the
record to sustain the trial judge's findings and conclusions."
Ibid. If so, our "task is complete and [we] should not disturb
the result . . . ." State v. Johnson, 42 N.J. 146, 162 (1964).
In our review, we defer to the trial judge's factual findings
that are "'substantially influenced by his [or her] opportunity
to hear and see the witnesses and [develop a] feel of the case,
10 A-6123-11T3
which a reviewing court cannot enjoy.'" State v. Davila, 203
N.J. 97, 109-10 (2010) (quoting Johnson, supra, 42 N.J. at 161)
(internal quotation marks omitted). However,
when the trial court's sole basis for its
findings and conclusions is its evaluation
of a videotaped interrogation, there is
little, if anything, to be gained from
deference. In that circumstance, . . .
appellate courts are not confined to a
review of a transcript nor obliged to defer
to the trial court's findings, but may
consider the recording of the event itself.
[State v. Diaz-Bridges, 208 N.J. 544, 565-66
(2011) (citing State v. Alston, 204 N.J.
614, 626 n.2 (2011)).]
Importantly, if necessary, this court will not "hesitate to
make new fact findings on the record in a situation where the
findings are not exclusively factual but intertwined with legal
conclusions drawn from the Miranda case and its progeny." State
v. Godfrey, 131 N.J. Super. 168, 174-75 (App. Div. 1974) (citing
State v. Yough, 49 N.J. 587, 596 (1967)), aff'd, 67 N.J. 80
(1975). Generally, if "a trial court's findings [are] so
clearly mistaken 'that the interests of justice demand
intervention and correction[,]' . . . an appellate court
properly reviews 'the record as if it were deciding the matter
at inception and make[s] its own findings and conclusions.'"
State v. Hreha, 217 N.J. 368, 382 (2014) (quoting Johnson,
supra, 42 N.J. at 162). Further, we are not bound by a trial
11 A-6123-11T3
court's resolution of legal issues, which remain subject to our
de novo review. State v. Shaw, 213 N.J. 398, 411 (2012).
Defendant's constitutional challenge invokes his right to
remain silent. "The Fifth Amendment privilege against self-
incrimination, made applicable to the states through the
Fourteenth Amendment, provides that '[n]o person . . . shall be
compelled in any criminal case to be a witness against
himself.'" State v. P.Z., 152 N.J. 86, 100 (1997) (quoting U.S.
Const. amend. V). Under New Jersey law, "the right against
self-incrimination is founded on a common-law and statutory
. . . basis," but similarly establishes "'no person can be
compelled to be a witness against himself.'" State v. Reed, 133
N.J. 237, 250 (1993) (citation omitted). Attendant to this
right is the "absolute right to remain silent while under police
interrogation . . . ." Ibid.
Because the privilege against self-incrimination is not
self-implementing, the right is safeguarded through the use of
Miranda's "'prophylactic-procedural safeguards . . . .'" State
v. Knight, 183 N.J. 449, 461 (2005) (quoting State v. Burris,
145 N.J. 509, 520 (1996)). Without question, "[c]onfessions
obtained . . . during a custodial interrogation are barred from
evidence unless the defendant has been advised of his or her
constitutional rights." Ibid. (citing Miranda, supra, 384 U.S.
12 A-6123-11T3
at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707). Moreover, it
is the State which bears the burden of "prov[ing] the
voluntariness of a confession beyond a reasonable doubt." State
v. Galloway, 133 N.J. 631, 654 (1993).
Our "inquiry begins with whether the suspect invoked his or
her right to remain silent." Diaz-Bridges, supra, 208 N.J. at
564. "'If [an] individual indicates in any manner, at any time
prior to or during questioning, that he [or she] wishes to
remain silent, the interrogation must cease.'" State v.
Hartley, 103 N.J. 252, 263 (1986) (quoting Miranda, supra, 384
U.S. at 473-74, 86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723).
"Although a clear assertion of [the] right must of course be
scrupulously honored, officers confronted with an ambiguous
invocation are authorized to make inquiry in order to clarify
the suspect's intent." Diaz-Bridges, supra, 208 N.J. at 569.
As it relates to the invocation of the right
to remain silent, both the words used and
the suspect's actions or behaviors form part
of the inquiry into whether the
investigating officer should have reasonably
believed that the right was being asserted.
As a result, the court's inquiry necessarily
demands a fact-sensitive analysis to discern
from the totality of the circumstances
whether the officer could have reasonably
concluded that the right had been invoked.
[Id. at 565.]
13 A-6123-11T3
When assessing the validity of a defendant's waiver of his
right to remain silent, a court considers the totality of the
circumstances, including both the characteristics of the
defendant and the nature of the interrogation. Ibid. Relevant
factors "include the suspect's age, education and intelligence,
advice concerning constitutional rights, length of detention,
whether the questioning was repeated and prolonged in nature,
and whether physical punishment and mental exhaustion were
involved." Galloway, supra, 133 N.J. at 654.
In this matter, defendant maintains "during the May 15[]
interrogation, he both clearly and equivocally invoked his right
to remain silent, and . . . therefore, the police should have
terminated the interrogation." For support, he emphasizes that
when the second interview commenced, he expressed an
unwillingness "to be here." Defendant presents several reasons
he believes demonstrate his statement was involuntary. We have
considered and rejected each of these arguments.
The important facts influencing our review are repeated.
Defendant willingly accompanied police to the prosecutor's
office for further questioning. He rode with police,
unrestrained, and was taken to an interview room. Defendant was
left alone for a few minutes, then Detective Craig and his
colleagues entered the room and read defendant his rights.
14 A-6123-11T3
Defendant initialed the Miranda card, acknowledged it was read
to him and noted he understood the rights, including the right
to remain silent and the right to terminate questioning at any
time. By then, Detective Craig had obtained the arrest warrant
and told defendant he was charged with armed robbery and murder.
Defendant initially could not control his emotions. He
repeatedly denied culpability and insisted he had been truthful
and Spencer was lying. However, as police revealed the evidence
gathered, defendant changed his position and began to relate
those facts evincing his participation. Detective Craig
informed defendant both Clemons and Spencer had implicated him.
He revealed Spencer's statement included the number of times and
locations where the attendant was shot, information not made
public, and only available to Spencer because defendant had told
her. Detective Craig repeated he had no interest in defendant's
denials, assertions of ignorance or attempts to minimize his
involvement in the incident. He said he did not believe
defendant's claims and gave him "one last chance" to state his
involvement and provide new information. At that point
defendant confessed.
Defendant never requested the questioning cease. More
important, he never invoked his right to counsel. Rather, he
continued the interview, offering the events as he knew them.
15 A-6123-11T3
As the conversation continued, defendant gradually admitted he
drove Clemons and "dropp[ed] him off" at the service station.
Defendant admitted he asked Clemons "what he was going to do,"
and Clemons responded, "I'm about to go get some money." He
also told the detectives, Clemons said "he shot the man and he
probably killed him."
As the trial judge noted, defendant, although emotional
and, at times crying and screaming because he was arrested and
going to jail, never exhibited fatigue, confusion or any
inability to comprehend what was happening. He understood his
rights, understood he was charged with first-degree offenses and
clearly understood police spoke to Clemons and Spencer. Police
never threatened or coerced defendant; they told defendant they
thought he was lying, believed he was involved and suggested he
look out for himself. When told he had one last chance to tell
the truth, defendant sat calmly and clearly responded to the
detectives' questions.
Reviewing the DVD and Detective Craig's testimony, we
concur with the trial judge that defendant did not invoke his
right to remain silent. He was not coerced, but ultimately
convinced to confess his role to aid his self-interests. He was
calm and related detailed information in response to the
detectives' inquiries. Considering the words used and
16 A-6123-11T3
defendant's behaviors as depicted on the DVD, we find defendant
waived his right to remain silent. See Diaz-Bridges, supra, 208
N.J. at 565. Accordingly, we conclude he knowingly and
voluntarily provided his statement of his role in the crimes and
interaction with Clemons on April 14, 2008.
Addressing defendant's contention he lost his ability to
make "an intelligent evaluation of the situation and [form] a
voluntarily intention to make a statement without the assistance
of counsel" after being told he was charged with murder, we are
not persuaded. "[T]he fact that [a] defendant was distressed
and emotional is not by itself sufficient to render his [or her]
confession involuntary." Galloway, supra, 133 N.J. at 657.
Defendant argues his confession was "the product of
intimidation, coercion and deception," as police capitalized on
his fear of Clemons' retaliation against him or his mother,
essentially forcing him to talk. He cites as a threat,
Detective Craig's comment he would "drop [him] downstairs,"
meaning take him to the county jail where Clemons was being
detained, "if he didn't start talking."
Having considered the events depicted on the DVD, we reject
defendant's argument as lacking merit. Use of psychological
tactics is not prohibited. Miller v. Fenton, 796 F.2d 598, 605
(3d Cir. 1986). "Unlike the use of physical coercion, . . . use
17 A-6123-11T3
of a psychologically-oriented technique during questioning is
not inherently coercive." Galloway, supra, 133 N.J. at 654.
Such ploys may "play a part in the suspect's decision to
confess, but so long as that decision is a product of the
suspect's own balancing of competing considerations, the
confession is voluntary." Miller, supra, 796 F.2d at 605. Cf.
State v. Patton, 362 N.J. Super. 16, 32 (App. Div.) ("[A] police
officer in the interrogation process may, by the officer's
statements, make misrepresentations of fact or suggest that
evidence in the form of reports or witnesses exist that will
implicate a suspect."), certif. denied, 178 N.J. 35 (2003).
Here, no physical force or threats of same were made. The
interview was not lengthy, lasting a little more than an hour.
During the interrogation, there were no signs defendant was
fatigued, confused or under the influence of intoxicating
substances. Detective Craig's comments expressed frustration
with defendant's changing story, but the remark "[w]e're not
offering to do anything for you other than drop you downstairs
in the middle of the population and you fend for yourself,"
merely stated police responsibility to effectuate the arrest
warrant and place defendant in jail.
As to the police discussion of Clemons' past violence and
affiliation with a gang, these facts were known to defendant,
18 A-6123-11T3
who admitted he had known Clemons for a long time. Police
acknowledgement and discussion of these facts was not the "'very
substantial' psychological pressure[]" necessary for finding a
defendant's will was overborne. State v. Cook, 179 N.J. 533,
563 (2004). Accordingly, we reject the notion Detective Craig's
comments acted to "strip[] defendant of his capacity for self-
determination and actually induce the incriminating statement
. . . ." State v. Fletcher, 380 N.J. Super. 80, 89 (App. Div.
2005) (citation and internal quotation marks omitted).
Defendant suggests requests to have his mother present in
the room constituted equivocal assertions of his right to remain
silent. We disagree.
Before Detective Craig informed him of the charges,
defendant, who was age twenty-two, asked "[w]here's my mom," as
he thought "my mom[] is gonna be here." Once informed of his
arrest, defendant exclaimed, "I thought you were going to be
bringing my mom in here." Subsequent to revealing his role in
the robbery, defendant requested "[c]an my mom be in here while
. . . we do this, please?" At that point, Detective Craig
replied "she's a little tied up right now," but later he would
"take a break at a certain point [and he would] go find out
where she's at [sic] . . . ." Toward the end of the interview,
defendant again asked for his mother.
19 A-6123-11T3
The Court recently
considered the analytical implications of
requests by an adult to speak with someone
other than an attorney, concluding that such
requests do not imply or suggest that the
individual desires to remain silent. See,
e.g., State v. Martini, 131 N.J. 176, 228-32
(1993) (concluding that defendant's request
to speak with paramour before "lay[ing] out
his entire involvement" was not an
invocation of right to remain silent); State
v. Timmendequas, 161 N.J. 515, 616 (1999)
(concluding that request to speak with
housemate was not, under the circumstances,
invocation of right to remain silent).
[Diaz-Bridges, supra, 208 N.J. at 567.]
The Court explained, "[a]lthough the mere request by an adult to
speak with a parent does not equate to an invocation of the
right to remain silent, it does necessitate a review of the
context in which the request was made." Ibid. Often "it [is]
not the request to speak with the parent, but that request in
the context of other facts that [gives] rise to the conclusion
that the right to silence had been invoked." Id. at 568.
Here, defendant made an inquiry of his mother's whereabouts
and repeated his belief she was to be present. Detective Craig
told him he would check during a break and later advised
defendant could see his mother before he was placed in jail.
Nothing about defendant's requests reflect continuation of the
conversation was contingent on his mother's presence. Rather,
defendant's statements suggest a desire for support and cannot
20 A-6123-11T3
be construed as an assertion of his right to remain silent. See
id. at 556, 572 (concluding the defendant's "frequent[] and
fervent[]" expressions of his desire to speak with his mother
over the course of a ten-hour interview did not amount to an
invocation of his right to remain silent).
Defendant's final suggestion is the judge mistakenly found
he executed a waiver of his Miranda rights, which led to the
erroneous conclusion his statement was voluntary. We are not
persuaded.
There was no written Miranda waiver executed. However,
"[f]ailure to sign a form of waiver does not preclude a finding
of waiver, nor does it make further questioning a violation of
[a] defendant's constitutional rights." State v. Warmbrun, 277
N.J. Super. 51, 62 (App. Div. 1994) (citation and internal
quotation marks omitted), certif. denied, 140 N.J. 277 (1995).
Defendant orally acknowledged he understood his rights,
including the rights to not say a word and to cease the
interview at any time.
The trial judge's conclusions were made after considering
the totality of the circumstances presented. State v. Nyhammer,
197 N.J. 383, 402, cert. denied, 558 U.S. 831, 130 S. Ct. 65,
175 L. Ed. 2d 48 (2009). They were not based, as defendant
suggests, on a mistaken factual finding he had executed a
21 A-6123-11T3
written waiver. We determine the facts support the conclusion
that defendant knew and understood his rights, which he
intelligently, knowingly and voluntarily waived in admitting his
culpability.
Although not directly raised, we consider whether the
minimum break in custody delineated in Shatzer and applied in
Wessells must be imposed under these facts where the break in
custody occurs when a defendant seeks to end the interrogation.
Following our review, we conclude it does not. Wessells adopted
the rule announced in Shatzer, regarding custodial statements
made following the invocation of the right to counsel.
Wessells, supra, 209 N.J. at 413. In Shatzer, the United States
Supreme Court recognized what had become known as an exception
to the longstanding Edwards rule, which mandates interrogations
cease once a suspect invokes the right to counsel, until counsel
is provided or the suspect later re-initiates communication.
Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885,
68 L. Ed. 2d 378, 386 (1981). Jurisprudence developed to
consider a "break-in-custody exception" to the bright-line rule
Edwards established, whereby the coercive taint of interrogation
and presumptive involuntariness of statements made during
reviewed interrogation were eliminated. Wessells, supra, 209
N.J. at 404-07. Specifically, the issue considered was whether
22 A-6123-11T3
a break in custody followed by a waiver of rights nullified the
prior invocation of the right to counsel and allowed police to
renew interrogation. See id. at 404-05 (discussing post-Edwards
holdings addressing the break-in-custody exception).
In Shatzer, the United State Supreme Court defined the
scope of this required break in custody. The Court held any
statements made by a defendant less than fourteen days following
invocation of the right to counsel were presumptively
involuntary and must be suppressed. Shatzer, supra, 559 U.S. at
111, 130 S. Ct. at 1223, 175 L. Ed. 2d at 1057. See also
Edwards, supra, 451 U.S. at 484, 101 S. Ct. at 1884, 68 L. Ed.
2d at 386 (noting "additional safeguards are necessary when the
accused asks for counsel"). As discussed, our Court in Wessells
adopted this fourteen-day standard to define the break-in-
custody exception, once the right to counsel had been invoked.
Wessells, supra, 209 N.J. at 413.
The rules in Shatzer and Wessells were limited to the right
to counsel. Although the opportunity presented itself, the
United States Supreme Court and our Supreme Court did not extend
the fourteen-day break-in-custody requirement to invocation of
other constitutional protections. A review of precedents leads
to the conclusion Shatzer's fourteen-day rule is specific to the
23 A-6123-11T3
right to counsel and is not generally imposed if a defendant
asserts the right to remain silent.
The Fifth Amendment right to counsel is distinguishable
from the right against self-incrimination, and actually is an
additional protection against self-incrimination. See Michigan
v. Mosley, 423 U.S. 96, 104 n.10, 96 S. Ct. 321, 326 n.10, 46 L.
Ed. 2d 313, 321 n.10 (1975) (acknowledging the invocation of the
right to counsel provides additional protection against self-
incrimination); State v. Reed, 133 N.J. 237, 258, 262 (1993)
(noting the right to counsel is distinct from the right against
self-incrimination). It is well-settled the State has the
burden to show a defendant relinquished the right to counsel.
State v. McCloskey, 90 N.J. 18, 28 (1982). This burden is
"heavy" and will not be implied. Ibid. Further, the
administration of new Miranda warnings has been held
insufficient to provide the necessary safeguards to ensure a
waiver is valid once legal representation is requested. Id. at
27; see also Mosley, supra, 423 U.S. at 104 n.10, 96 S. Ct. at
326 n.10, 46 L. Ed. 2d at 321 n.10. On the other hand,
safeguards for self-incrimination alone have not been so
circumscribed.
A voluntary intelligent statement by a defendant fully
informed of his rights is admissible. "[A] suspect is always
24 A-6123-11T3
free to waive the privilege and confess to committing crimes,"
so long as the waiver is not the product of police coercion.
State v. Presha, 163 N.J. 304, 313 (2000).
Following our assessment of the totality of circumstances
surrounding the arrest and interrogation, including such factors
as "the suspect's age, education and intelligence, advice as to
constitutional rights, length of detention, whether the
questioning was repeated and prolonged in nature and whether
physical punishment or mental exhaustion was involved," as well
as defendant's "previous encounters with the law," State v.
Miller, 76 N.J. 392, 402 (1978), we reject defendant's argument
that his "second statement represented nothing more than a
continuation of the first." We discern no due process
violations by police in conducting the May 15 interview.
Substantially for the reasons identified by the trial
judge, we conclude the second interrogation, preceded by newly
administered Miranda warnings, resulted in defendant's voluntary
uncoerced choice to reveal his involvement in the crimes under
investigation. There is no poisonous taint from the May 14
Miranda violations requiring exclusion of his confession.
Importantly, defendant never invoked the right to counsel,
which would require the extra protections discussed in Shatzer
and Wessells. Here, the break in custody resulted because
25 A-6123-11T3
defendant said nothing inculpatory during the first interview
and was allowed to leave. We recognize that interrogation
should have ended sooner, but ultimately defendant was taken
home.
The first and second interviews were separated by fourteen
hours, during which defendant was not in custody, but home and
free to move about as he chose. When police asked him to
accompany them to the prosecutor's office because Detective
Craig wanted to ask him additional questions, he freely agreed,
fully cognizant of the subject matter and the fact that police
wanted to question him further. Prior to commencing any
questioning, Detective Craig carefully read each right afforded
defendant under Miranda, and asked him each time if he
understood that right. Defendant acknowledged he understood his
rights both orally and by initialing the Miranda card. Once
police informed defendant they obtained sufficient information
showing he was with Clemons during the robbery and murder,
satisfying the requirements to secure an arrest warrant,
defendant confessed. We conclude this confession was admissible
and the judge properly denied defendant's motion to suppress.
Defendant's next argument advanced the exclusion of his
custodial statement invoking the "fruit of the poisonous tree"
doctrine. Defendant maintains the "egregious constitutional
26 A-6123-11T3
violations" of the initial interview tainted the subsequent
questioning and his custodial statement is inadmissible as
"fruit of the poisonous tree." Following our review, we
conclude this argument is unavailing.
"The fruit-of-the-poisonous-tree doctrine denies the
prosecution the use of derivative evidence obtained as a result
of a Fourth or Fifth Amendment violation." State v. O'Neill,
193 N.J. 148, 171 n.13 (2007) (citations omitted). Our Supreme
Court noted the doctrine as developed by United States Supreme
Court holdings had "'never gone so far as to hold that making a
confession under circumstances which preclude its use,
perpetually disables the confessor from making a usable one
after those conditions have been removed.'" Ibid. (quoting
United States v. Bayer, 331 U.S. 532, 540-41, 67 S. Ct. 1394,
1398, 91 L. Ed. 1654, 1660 (1947)). "Under either state or
federal law, the critical determination is whether the
authorities have obtained the evidence by means that are
sufficiently independent to dissipate the taint of their illegal
conduct." State v. Johnson, 118 N.J. 639, 653 (1990).
In this regard, "when law-enforcement authorities obtained
an initial confession in violation of the defendant's common-law
privilege against self-incrimination," a subsequent confession
made despite properly informing a defendant of his rights may be
27 A-6123-11T3
excluded. Id. at 652. The critical factual examination is
whether a second statement was the product of unconstitutional
police conduct tainting the first, considering "the time between
confessions, any intervening circumstances, whether there was a
change in place, whether the defendant received an adequate
warning of his rights, whether [the] defendant initiated the
second confession, the effect of his having made a confession,
and the purpose and flagrancy of police misconduct." Hartley,
supra, 103 N.J. at 283 (citation and internal quotation marks
omitted).
When viewing all facts and circumstances, we conclude, as
did the trial judge, defendant's confession was not the
culmination of coercion carrying over from the previous night,
but of his own volition upon learning the new evidence against
him. The information obtained from Spencer constitutes
"intervening circumstances" separating the tenor and outcome of
the two periods of questioning. See ibid.
As the trial judge considered, the gaps between the two
interrogations allowed defendant to freely return home to his
family. He rested and showed no signs of fatigue. Although he
had insisted on ending the May 14 examination, he freely
accompanied police during the early evening on May 15 when told
they had more questions for him. Before a single question was
28 A-6123-11T3
uttered, defendant was advised of his Miranda rights and
informed of the charges against him, as set forth in the warrant
presented. Finally, defendant had prior interactions with the
criminal justice system and repeatedly acknowledged he was aware
of and understood his rights. Defendant made no specific
inculpatory statements on May 14. Police brought defendant in
on May 15 because Spencer and information obtained during the
continued police investigation linked him to the gas station
robbery and shooting.
Based on these facts, we do not agree the two periods of
questioning were inextricably linked such that the May 15
statement was somehow tainted. Therefore, there was no evidence
wrongfully obtained that led to the additional questioning. We
conclude defendant's confession was the product of
constitutionally appropriate procedures. It did not result from
police misconduct.
II.
Defendant also challenges the introduction of graphic
autopsy photographs, during the medical examiner's testimony,
which depicted death-rendering wounds of the victim. Defendant
characterizes this evidence as "unduly inflammatory."
Succinctly, the judge's ruling allowed the photographs as a
demonstrative aid to the coroner's testimony; they were not
29 A-6123-11T3
introduced into evidence. See State v. Scherzer, 301 N.J.
Super. 363, 434 (App. Div.) ("There is nothing inherently
improper in the use of demonstrative or illustrative
evidence."), certif. denied, 151 N.J. 466 (1997).
Importantly, defendant has not provided the challenged
exhibits in the appellate record. Nonetheless, the issue does
not require discussion because no demonstrated prejudice
resulted to defendant by the use of the photographs because the
jury acquitted defendant of felony murder, showing it thoroughly
evaluated all evidence in reaching its verdict. See State v.
Dellisanti, 203 N.J. 444, 463 (2010) (noting an error did not
deprive the defendant of a fair trial where the jury ultimately
acquitted him of a related charge).
III.
Finally, we reject, as lacking merit, defendant's related
claims (1) the judge erroneously denied his motion for a new
trial, R. 3:20-1, which asserted the State failed to prove all
elements of armed robbery (Point Three); (2) the State failed to
prove each element of accomplice liability related to the armed
robbery such that his motion for acquittal should have been
granted, R. 3:18 (Issue I); and (3) the jury charge on this
offense was flawed (Issue II). The challenges key on the intent
element, as defendant argues no evidence showed he "shared the
30 A-6123-11T3
intent with . . . Clemons to commit an armed robbery." See
State v. Sims, 140 N.J. Super. 164, 173 (App. Div. 1976) ("It is
clear in New Jersey that a defendant can be held as an aider or
abettor only if he [or she] had the same criminal intent that
must be possessed by the principal wrongdoer.").
The arguments are rejected substantially for the reasons
set forth by the trial judge. Specifically, the State presented
circumstantial evidence, which if accepted by the jury, proved
defendant's knowledge and aid in completing the armed robbery of
the gas station. He knew Clemons "possessed guns" and expressed
a desire "to get money"; revealed he and Clemons selected the
gas station for the robbery because it was "an easy spot to go
get"; drove Clemons to the gas station and waited for his
return; "parked the vehicle at a location removed from any
commercial establishment"; and admitted to Spencer "we" had
committed a robbery.
"Faith in the ability of a jury to examine evidence
critically and to apply the law impartially serves as a
cornerstone of our system of criminal justice." State v.
Afanador, 134 N.J. 162, 178 (1993). "Appellate intervention is
warranted only to correct an injustice resulting from a plain
and obvious failure of the jury to perform its function." State
v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (citation and
31 A-6123-11T3
internal quotation marks omitted), certif. denied, 134 N.J. 476
(1993). If the evidence presented allowed a rational jury to
find beyond a reasonable doubt the essential elements of the
crime, the court will not interfere. State v. Jackson, 211 N.J.
394, 413-14 (2012); Afanador, supra, 134 N.J. at 178.
The jury was provided with defendant's testimony disputing
his awareness Clemons was carrying a firearm when driving to the
gas station to get some money. The jury verdict signals its
rejection of his testimony as not credible and a conclusion the
significant circumstantial evidence supported defendant's
knowledge Clemons was armed. Defendant's contention the jury's
verdict rested "merely upon suspicion, speculation, or
conjecture or an[] overly attenuated piling of inference upon
inference" is rejected.
We also find unavailing defendant's suggestion the jury
charge on accomplice liability and first-degree robbery was
defective. No objection to the charge was made, requiring our
examination on appeal under the plain error rule, R. 2:10-2.
State v. Torres, 183 N.J. 554, 564 (2005). In the context of
challenges to jury charges, plain error is: "legal impropriety
in the charge prejudicially affecting the substantial rights of
the defendant and sufficiently grievous to justify notice by the
reviewing court and to convince the court that of itself the
32 A-6123-11T3
error possessed a clear capacity to bring about an unjust
result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied,
399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). "If a
defendant fails to object to a trial court's instructions, the
failure to challenge the jury charge is considered a waiver to
object to the instruction on appeal." State v. Maloney, 216
N.J. 91, 104 (2013). However, we will reverse if the error is
"clearly capable of producing an unjust result." R. 2:10-2.
Reviewing the charge as a whole, State v. Jordan, 147 N.J.
409, 422 (1997), we note the trial court charged first-degree
robbery, addressing the elements of N.J.S.A. 2C:15-1(a) and (b),
as well as accomplice liability, as set forth in the Model Jury
Charges. Model Jury Charge (Criminal), "Liability for Another's
Conduct" (1995). The charge related the elements of accomplice
liability, found in N.J.S.A. 2C:2-6(c)(1)(b) (providing that one
is legally accountable for the conduct of another when he or
she, "[w]ith the purpose of promoting or facilitating the
commission of the offense . . . [a]ids or agrees or attempts to
aid such other person in planning or committing it"). Included
also were the definitions of "aid" and "purposely." See
33 A-6123-11T3
N.J.S.A. 2C:2-2(1); Model Jury Charge (Criminal), "Liability for
Another's Conduct" (1995).4
In delivering the accomplice liability charge, the judge
described the underlying crime as robbery, rather than armed
robbery. Defendant contends this instruction was "fatally
defective." Defendant is incorrect.
Defendant's argument asserting the crime he was accused of
was "armed robbery," ignores that first-degree robbery includes
conduct "if in the course of committing the theft the actor
attempts to kill anyone, or purposely inflicts or attempts to
inflict serious bodily injury, or is armed with, or uses or
threatens the immediate use of a deadly weapon." N.J.S.A.
2C:15-1(b). The jury was told the State had to prove defendant
aided Clemons, who either must have "killed [the gas station
attendant] and/or [] was armed with a deadly weapon." Because
defendant could be convicted under either theory, the trial
court appropriately declined to refer to the offense as "armed
robbery."
We reject defendant's claims this charge as delivered
misstated the law or confused the jury. We conclude the charge
adequately identified the applicable accomplice liability
4
The judge distributed an outline to aid the jury "[i]n
order to facilitate [its] understanding of the [c]ourt's
instructions with regard to robbery and felony murder . . . ."
34 A-6123-11T3
principles and articulated the elements necessary for a
conviction of first-degree robbery, explaining "[t]he State must
prove it was . . . defendant's conscious object that a specific
crime charged be committed." Also, because defendant alone was
on trial and no lesser-included offenses were charged, the jury
would not be confused or misunderstand the accomplice liability
charge regarding the first-degree robbery.
IV.
We review the imposed thirteen-year sentence, in light of
defendant's suggestion of excessiveness and his claim the judge
misapplied applicable aggravating factors. "Appellate review of
the length of a sentence is limited." State v. Miller, 205 N.J.
109, 127 (2011). A reviewing court "does not sit to substitute
its judgment for that of the trial court." State v. O'Donnell,
117 N.J. 210, 215 (1989). "The critical focus of the appellate
power to review and correct sentences is on whether the basic
sentencing determination of the lower court was 'clearly
mistaken.'" State v. Jarbath, 114 N.J. 394, 401 (1989). Thus,
appellate review of a sentencing decision requires this court
consider:
first, whether the correct sentencing
guidelines, or . . . presumptions, have been
followed; second, whether there is
substantial evidence in the record to
support the findings of fact upon which the
sentencing court based the application of
35 A-6123-11T3
those guidelines; and third, whether in
applying those guidelines to the relevant
facts the trial court erred by reaching a
conclusion that could not have reasonably
been made upon a weighing of the relevant
factors.
[State v. Roth, 95 N.J. 334, 365-66 (1984).]
Defendant focuses his challenge on the inclusion of
aggravating factor two, "[t]he gravity and seriousness of harm
inflicted on the victim," N.J.S.A. 2C:44-1(a)(2). He asserts
"the facts adduced at trial suggested that [d]efendant's role in
th[e] incident was limited to driving the car that took Clemons
to and from the scene of the crime."
The trial court considered application of the factor and
recognized the seriousness of the harm that resulted from
defendant's actions. The judge noted, "[t]here isn't [a harm]
more serious than death." Further, he found defendant drove
Clemons to and from the gas station knowing he intended to use a
firearm to accomplish the robbery, and should have known a
violent encounter was imminent. The judge made these additional
findings:
[T]he statute provides, including whether or
not the defendant knew or reasonably should
have known that the victim of the offense
was particularly vulnerable or incapable of
resistance. Here we have a retail gas
station attendant 11 o'clock at night all
alone and we have somebody who is going to
get money and we know that person possesses
guns. How anyone who is helping that
36 A-6123-11T3
person, in this case [defendant], would
conclude anything other than there was going
to be either a very violent physical type
robbery or that . . . Clemons was armed,
this [c]ourt can't imagine.
[Defendant] had to know . . . Clemons
was armed, that's why he stayed out of sight
and let . . . Clemons do what . . . Clemons
was going to do. The victim was just plain
vulnerable and had no chance whatsoever
. . . . Therefore, the [c]ourt finds that
aggravating factor two applies.
Based on this analysis, we cannot say the judge abused his
discretion.
Additional aggravating factors applied included factor
three, "[t]he risk that the defendant will commit another
offense," N.J.S.A. 2C:44-1(a)(3), given defendant's pattern of
previous offenses, and factor nine, "[t]he need for deterring
the defendant and others from violating the law," N.J.S.A.
2C:44-1(a)(9). Unchallenged is the trial court's finding there
were no mitigating factors.
Following our review, we determine the judge's conclusion
the aggravating factors outweighed the non-existent mitigating
factors constituted a reasonable application of the guidelines
to the facts, State v. Lawless, 214 N.J. 594, 606 (2013), and
properly reflected New Jersey's sentencing paradigm focusing on
the offense and not the offender, State v. Hodge, 95 N.J. 369,
375 (1984). Finally, the length of the sentence was within the
37 A-6123-11T3
first-degree range, N.J.S.A. 2C:43-6(a)(1), and does not shock
our judicial conscience, State v. Ghertler, 114 N.J. 383, 393
(1989). Our intervention is unwarranted.5
Affirmed.
5
We reject as lacking merit defendant's claim that his
sentence was disparate in light of the two concurrent fifteen-
year sentences imposed on Clemons following his guilty plea. R.
2:11-3(e)(2).
38 A-6123-11T3