State of New Jersey v. Reginald Anthony

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2658-12T3

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
January 19, 2016

v. APPELLATE DIVISION

REGINALD ANTHONY,

Defendant-Appellant.
____________________________________________

Argued September 21, 2015 – Decided January 19, 2016

Before Judges Messano, Carroll and Sumners.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 11-04-0702.

Mark H. Friedman, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Mr. Friedman, on the brief).

Lucille M. Rosano, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Carolyn A. Murray,
Acting Essex County Prosecutor, attorney;
Ms. Rosano, on the brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D.

Tried by a jury, defendant Reginald Anthony was convicted

of second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2

and 2C:18-2(b)(1). The jury acquitted defendant of the
remaining counts of the indictment, including burglary, robbery,

murder, felony-murder and related weapons offenses. The judge

granted the State's motion to sentence defendant as a persistent

offender, N.J.S.A. 2C:44-3(a), and imposed the maximum extended

term of twenty years' imprisonment, with an eighty-five percent

period of parole ineligibility pursuant to the No Early Release

Act, N.J.S.A. 2C:43-7.2.

Defendant raises the following issues for our consideration

on appeal:

POINT I

THE TRIAL COURT ERRED PREJUDICIALLY IN
RULING THAT UNDER [RULE] 3:17 THE POLICE
WERE NOT REQUIRED TO RECORD THE QUESTIONING
OF DEFENDANT BETWEEN HIS ARREST AND HIS
STATEMENT THAT "PIPE MADE ME DO IT" BECAUSE
THEY VIEWED HIM AS A WITNESS RATHER THAN A
SUSPECT FOR THE CRIMINAL ACTS COMMITTED
AGAINST [THE VICTIM].

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE
AND UNDULY PUNITIVE BECAUSE IT IS FOUNDED ON
IMPROPER FINDINGS REGARDING AGGRAVATING
FACTORS.

We have considered these arguments in light of the record and

applicable legal standards. We affirm defendant's conviction

and remand the matter for reconsideration of the sentence

imposed.

2 A-2658-12T3
 I.

A pre-trial evidentiary hearing was held regarding the

admissibility of defendant's statement to investigators.1

Lieutenant Thomas J. Kelly of the Essex County Prosecutor's

Office Homicide Squad testified that on Thursday, April 15,

2010, he responded to a single-family home in Essex Fells to

investigate a homicide. The ninety-one-year-old victim was

found dead in his home office with his hands and feet bound.

The home was in disarray, and the victim's body bore "defensive

type wounds" on his forearms as well as a laceration to his

neck.

Kelly learned that the victim's wife last had contact with

him at approximately 7:00 p.m. the night before. She told

detectives that the couple regularly used a car service to drive

to New York City where they had an apartment. On April 13, she

went to New York alone. The driver was not her usual driver but

someone "with the name Reggie." According to Kelly, using

several "databases," police were able to identify "Reggie" as

1
Defendant was indicted with Shaun Woodson. Both defendants
participated in the pre-trial evidentiary hearing; however,
defendant was tried separately.

3 A-2658-12T3
defendant, and they located his possible residence in East

Orange. Defendant was the subject of an open arrest warrant.2

Detectives arrived at the East Orange address and took

defendant into custody on the active warrant. Kelly advised

defendant of his Miranda3 rights by reading from a card Kelly

kept in his wallet. At approximately 8:30 p.m., after being

transported to the Prosecutor's Office, defendant agreed to

speak with detectives. We quote extensively from Kelly's

testimony which sets forth in detail the foreknowledge

detectives possessed at this point in the investigation.

At this point[,] we . . . believed
[defendant] possibly was the last person to
have contact with our victim. We questioned
him about . . . his Aunt . . . Sheila
Humphreys . . . who either owns or operates
the company that the [victim and his wife]
utilize when they travel back and forth from
the City. . . . Mrs. Humphreys . . . had
asked [defendant] to make the pickup. . . .
[T]his wasn't the first time. He had done
it one other time he told us in that initial
interview.

[Defendant] reported that he went to
the location on [April 13], picked up [the
victim's wife]. He advised us that [the
victim] did not make the trip with her, and
. . . he noted that. . . . [H]e drove her
into the City.

2
On cross-examination, Kelly confirmed this was a "municipal
traffic warrant out of West Orange."
3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

4 A-2658-12T3
 [Defendant] explained . . . that the
normal procedure . . . is the driver goes to
the person's house in their own car, and
then you pick up the person's car, make the
transport to and from in that vehicle, and
return the vehicle to the person's house and
then get in your own vehicle and go about
your business.

[Defendant] advised us that on [April
13] that's not what he did. He told us that
he came back from the City and instead of
going back to . . . the [victim's]
residence, he took their car for a ride. In
the course of doing that, . . . he . . . met
up with a friend of his named Pipe. . . .
[H]e believed his first name [w]as Shaun and
that he was from East Orange . . . .

[Defendant] told us that at some point
he received a phone call from his aunt
making sure that he was back with the
transport . . . . [H]e went back up with
the [victim's] car and returned it to [the
victim's] home . . . . [P]ipe was with him
when he returned the car. . . . [T]hey
parked the car the way they're supposed to,
and they got back into the car that
[defendant] drove to get up there and they
left Essex Fells.

Defendant denied ever returning to the Essex Fells house.

At approximately 2:45 a.m., detectives applied for and

obtained a communication data warrant (CDW) to "plot out

[defendant's] cell phone to see if his movements as . . .

described . . . in his interview were accurate." While this

occurred, defendant remained in custody in the interrogation

room on the active warrant, but was not questioned further.

5 A-2658-12T3
 By 9:00 a.m., records secured through the CDW revealed that

defendant's cellphone had "hit off a cell tower" near the

victim's home at approximately 8:00 p.m. on April 14. This was

contrary to defendant's claim that he had never returned to the

victim's home after leaving there the prior evening. Confronted

with this information, defendant asked to speak to Kelly alone

and told him, "Pipe made me take him back up there."

At this point, Kelly had another detective "start the video

camera so we could start recording anything that was said . . .

from that point forward." Kelly re-administered Miranda

warnings to defendant, who executed a waiver of rights form and

agreed to provide a statement to detectives, but that process

was not recorded. The video recording, approximately thirty-

eight minutes in length, was played for the judge.4

Kelly denied that defendant suffered any injuries while in

custody, or that defendant ever asked to speak to an attorney.

On cross-examination, Kelly acknowledged the "Attorney General

Guidelines" regarding the recordation of statements, but

asserted that "[t]he [G]uidelines don't require that the Miranda

itself [be] recorded." Kelly stated that defendant first became

a suspect in the homicide "when I knew his cell phone was up in

th[e] area" of the victim's home.

4
The video is not part of the appellate record.

6 A-2658-12T3
 Detective Philip Gregory testified as a defense witness.

He accompanied Kelly during defendant's arrest, corroborated

that Miranda rights were read to defendant in the police

vehicle, and started the video recording machine outside of the

interview room. Gregory believed that the re-administration of

Miranda rights to defendant was recorded. Gregory also denied

that any officer used physical force against defendant, or that

defendant was injured in any way during the time he was in

custody.

Defendant's girlfriend testified that, when defendant drove

her to work during the afternoon hours on the date of his

arrest, he bore no signs of physical injury. Defendant

testified that he was treated harshly when arrested, and

detectives neither read him his Miranda rights nor told him why

he was arrested. Defendant claimed that in the interrogation

room, detectives made him "feel" like he was in custody for the

homicide and denied defendant's request for an attorney.

Defendant testified that Gregory and other officers physically

assaulted him. He acknowledged initialing the Miranda waiver

form for Kelly, but he only did so after first refusing because

he feared additional physical abuse. Defendant further

testified that Kelly told him what to say prior to recording the

statement. Defendant was in pain upon his arrival at the county

7 A-2658-12T3
jail, and sheriff's officers transported him to the hospital

where he was diagnosed with contusions and a "ruptured eardrum."5

On cross-examination, defendant admitted familiarity with

the Miranda warnings, as evidenced by three waiver forms

defendant admittedly executed following prior arrests, and also

acknowledged his prior criminal convictions. Although initially

claiming that he had never given a statement to police in the

past, the prosecutor confronted defendant with a signed

statement from one of his prior arrests. Defendant had

forgotten because it occurred long ago.

After argument by the attorneys, the judge orally explained

his decision to admit defendant's statement into evidence. In a

written opinion that followed, the judge specifically credited

Kelly's testimony and discredited defendant's. The judge made

various observations from the video recording that belied

defendant's assertions of maltreatment and physical abuse, and

noted that medical notes did not support a conclusion that

5
In argument that followed the testimony, defense counsel
referenced some nurse's notes from the hospital, which he
claimed were "stipulated to by the State." There was no
reference to them during the testimony, but the notes apparently
contained observations of "fresh blood in [defendant's] ear
canal caused by a ruptured eardrum, a contusion on his forehead,
[and] a swelling of his right jaw." At trial, the nurse
practitioner who treated defendant at the hospital testified to
his injuries.

8 A-2658-12T3
defendant's ear had been injured seven hours earlier, as

defendant claimed.

Addressing the salient issue on appeal, the judge wrote:

[D]efendant was . . . read his Miranda
warnings at the time he was taken into
custody. Further, while defendant argues
that the Miranda waiver should have been
electronically recorded pursuant to [Rule]
3:17(a), the rule requires only that
"custodial interrogations conducted in a
place of detention must be electronically
recorded when the person being interrogated
is charged." Moreover, "the failure to
electronically record a defendant's
custodial interrogation . . . shall be a
factor for consideration by the trial court
in determining the admissibility of a
statement." R. 3:17(d). Here, as both
officers testified, defendant was a witness
because he was possibly the last person to
see [the] victim alive and did not become a
suspect until he indicated he wanted to
talk, when he was again issued the Miranda
warnings and given a waiver form to sign
before providing an electronically recorded
statement.

[(Emphasis added).]

The judge concluded that the "custodial interrogation was

properly conducted[,] . . . the requisite warnings [were]

given[,] . . . [and] the State ha[d] proven beyond a reasonable

doubt that . . . defendant knowingly and intelligently waived

each and every one of those rights . . . and that . . .

defendant neither invoked nor attempted to invoke any of those

rights thereafter."

9 A-2658-12T3
 The State introduced defendant's statement at trial. It

suffices to say that defendant claimed Woodson demanded that

they return to the victim's home on the night of April 14, and

told defendant he wanted to "rob[]" the place. Defendant

reluctantly drove there and waited in the car as Woodson entered

through the front door of the home. Defendant never knew the

victim had been murdered until his aunt told him.

Defendant testified before the jury and gave a similar

account of events, admitting that he agreed to drive Woodson to

the home with the intention that Woodson enter to burglarize the

house if no one was at home. He also testified regarding the

physical abuse he sustained during interrogation by police. As

noted, the jury convicted defendant of conspiracy to commit

burglary but acquitted him of all other charges.

II.

Before us, defendant contends that the judge erred by

concluding the interrogation did not need to be recorded

pursuant to Rule 3:17 (the Rule) until defendant uttered the

phrase, "Pipe made me take him back up there." Defendant

contends that the judge erred as a matter of law by concluding

the officers' subjective belief controlled, and he argues we

should review de novo the judge's conclusion that defendant was

not a suspect until that point. He urges "an objective

10 A-2658-12T3
standard" should apply, i.e., application of the Rule should

turn on whether a defendant is a "suspect" based upon "objective

rather than subjective circumstances." Defendant argues that,

although the Rule does not mandate suppression of his statement

if violated, the error nevertheless requires reversal in this

case.

The State argues that the detectives were not required to

record their initial interview with defendant because he was not

arrested for any of the crimes listed in the Rule which trigger

law enforcement's obligation to record the interrogation.

Alternatively, the State argues that objectively looking at the

facts known to Kelly, defendant was not a suspect in the murder

until Kelly confronted him with the CDW information, and

defendant blurted out, "Pipe made me take him back up there."

From that point, the State argues investigators complied with

the Rule. Lastly, the State contends that any error was

harmless, because the jury obviously believed defendant's

version of events and acquitted him of all but the conspiracy

count at trial.

The Rule is relatively new, having been adopted by the

Court in 2005, following its decision in State v. Cook, 179 N.J.

533 (2004), the formation of a special committee, id. at 562,

and receipt of the committee's report. No reported decision has

11 A-2658-12T3
fully construed the Rule's somewhat ambiguous provisions.6 We

begin by clarifying our standard of review.

A.

As the Court most recently said, "[a]ppellate courts

reviewing a grant or denial of a motion to suppress must defer

to the factual findings of the trial court so long as those

findings are supported by sufficient evidence in the record."

Hubbard, supra, 222 N.J. at 262. "We defer to those findings of

fact because they 'are substantially influenced by [an]

opportunity to hear and see the witnesses and to have the "feel"

of the case, which a reviewing court cannot enjoy.'" Ibid.

(quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We do not,

however, defer to the trial court's legal conclusions, which we

6
In State v. Hubbard, 222 N.J. 249 (2015), the Court referred to
the Rule by stating,

[T]he Court adopted Rule 3:17 in 2005, which
generally requires electronic recordation of
custodial interrogations of those charged
with certain enumerated serious offenses.
Rule 3:17(a) outlines a series of
circumstances in which the electronic
recordation requirement applies when the
person being interrogated is charged with
murder, aggravated manslaughter, or
manslaughter.

[Id. at 263.]

We believe this passing reference was dicta, since the Rule
itself had little to do with the issue confronting the Court in
Hubbard.

12 A-2658-12T3
review de novo. Id. at 263. "And for mixed questions of law

and fact, we give deference . . . to the supported factual

findings of the trial court, but review de novo the lower

court's application of any legal rules to such factual

findings." State v. Harris, 181 N.J. 391, 416 (2004).

Because interpretation of a court rule is a legal issue,

our review is de novo. State v. Tate, 220 N.J. 393, 405 (2015).

"The approach taken in respect of the construction of court

rules is the same as that for the construction of statutes."

State v. Clark, 191 N.J. 503, 508 (2007) (citing Wiese v.

Dedhia, 188 N.J. 587, 592 (2006)). "[W]e typically begin by

examining the plain language of a court rule, and give the words

their ordinary meaning." Ibid. (citing Wiese, supra, 188 N.J.

at 592). "We turn to extrinsic materials when the language of

the rule is ambiguous and lends itself to more than one

plausible interpretation." Id. at 508-09 (citing Wiese, supra,

188 N.J. at 592).

B.

In Cook, supra, 179 N.J. at 542-46, the defendant was

arrested on outstanding municipal warrants and interrogated on

four separate occasions over two days; the sessions were not

electronically recorded. The Court rejected defendant's claim

that his due process rights were violated by the State's failure

13 A-2658-12T3
to record the interrogations, but it concluded "[t]he proverbial

'time has arrived' . . . to evaluate fully the protections that

electronic recordation affords to both the State and to criminal

defendants." Id. at 562. The Court "establish[ed] a committee

to study and make recommendations on the use of electronic

recordation of custodial interrogations." Ibid.

The Supreme Court Special Committee on Recordation of

Custodial Interrogations (the Committee) issued its report on

April 15, 2005. The report included a comprehensive analysis of

the different recordation requirements adopted throughout the

United States, as well as statutes and case law from sister

states where policies had already been enacted. Report of the

Special Committee on Recordation of Custodial Interrogations, at

6 (Apr. 15, 2005) (the Committee Report). The Committee made a

series of recommendations including:

RECOMMENDATION 3: Electronic recording
should occur when a custodial interrogation
is being conducted in a place of detention
and should begin at, and include, the point
at which Miranda warnings are required to be
given.

. . . .

RECOMMENDATION 4: Electronic recording of
custodial interrogations occurring in a
place of detention should occur when the
adult or juvenile being interrogated is
charged with an offense requiring the use of
a warrant pursuant to [Rule] 3:3-1c.

14 A-2658-12T3
 . . . .

RECOMMENDATION 5. The requirement for
electronic recordation of custodial
interrogations occurring in a place of
detention should not apply in circumstances
where:

. . . .

(f) a statement is given at a time when the
accused is not a suspect for the crime to
which that statement relates while the
accused is being interrogated for a
different crime that does not require
recordation[] . . . .

[Committee Report at 37-40.]

The rule proposed by the Committee included recommendation four

and five but did not explicitly include the requirement in

recommendation three, i.e., that recordation "begin at, and

include, the point at which Miranda warnings are required to be

given." Id. at 44-46.

On October 14, 2005, the Court ordered implementation of

the Rule, effective January 1, 2006, in respect of all homicide

offenses and January 1, 2007, for all other offenses specified

in paragraph (a) of the Rule. The Rule as adopted mirrored the

Committee's proposed rule and provides in relevant part:

a) Unless one of the exceptions set forth
in paragraph (b) are present, all custodial
interrogations conducted in a place of
detention must be electronically recorded
when the person being interrogated is
charged with murder, . . . aggravated
manslaughter, manslaughter, robbery, . . .

15 A-2658-12T3
 burglary, . . . any crime involving the
possession or use of a firearm, or
conspiracies or attempts to commit such
crimes.

. . . .

(b) Electronic recordation pursuant to
paragraph (a) must occur unless:

. . . .

(vi) a statement is given at a time when
the accused is not a suspect for the crime
to which that statement relates while the
accused is being interrogated for a
different crime that does not require
recordation,

. . . .

The State shall bear the burden of proving,
by a preponderance of the evidence, that one
of the exceptions is applicable.

[R. 3:17 (emphasis added).]

The failure to record the interrogation does not require

suppression of a defendant's statement, but it "shall be a

factor for consideration by the trial court in determining the

admissibility of a statement, and by the jury in determining

whether the statement was made, and if so, what weight, if any,

to give to the statement." R. 3:17(d). Further, in the absence

of recordation, the court "shall, upon request of the defendant,

provide the jury with a cautionary instruction." R. 3:17(e);

see Model Jury Charge (Criminal), "Statements of Defendant (When

16 A-2658-12T3
Court finds Police Inexcusably Failed to Electronically Record

Statement)," (Approved 11/7/05).

With this background in mind, we return to the arguments

advanced on appeal.

C.

The State contends that the detectives were under no

obligation to record their initial interview with defendant

because he was in custody on municipal warrants and had not been

"charged with" the homicide or any other crime listed in

subsection (a) of the Rule. Defendant counters by arguing such

an interpretation would permit police to question suspects in

homicides without recording the interrogation, thereby defeating

the prophylactic purposes of the Rule. Defendant also argues

that the State's interpretation is inconsistent with the

exception provided by subsection (b)(vi). We agree with

defendant.

Although subsection (a) is triggered when the person in

custody is "being interrogated" and "charged with" one of the

listed offenses, subsection (b)(vi) excepts from the Rule's

requirements the need to record a statement if "the accused is

not a suspect for the crime to which that statement relates

while the accused is being interrogated for a different crime

that does not require recordation." R. 3:17 (emphasis added).

17 A-2658-12T3
The State concedes the ambiguity of the operative terms used in

the Rule, i.e., "charged with" versus "not a suspect." Under

the State's rationale, the Rule does not require recordation of

a statement made by a defendant who is not charged with a listed

crime, even if he is a suspect.

The construction urged by the State would render exception

(b)(vi) superfluous, a circumstance we seek to avoid in

interpreting a statute or court rule. See, e.g., In re N.B.,

222 N.J. 87, 101 (2015) ("Such an interpretation would

contravene the canon of statutory construction that directs

courts to interpret laws so as to give meaning to all of the

. . . text."). Instead, "[t]he Court must 'seek an

interpretation that will make the most consistent whole of the

statute.'" Ibid. (quoting State v. Sutton, 132 N.J. 471, 479

(1993)).

A more consistent interpretation, and one that supports the

policy of the Rule, is that urged by defendant. Law enforcement

officials must record custodial interrogations of those who are

suspected of committing, and will be questioned about, any crime

listed in subsection (a) of the Rule. This interpretation is

supported by other provisions in the Rule. For example,

subsection (b)(iv) excepts from the recordation requirements

statements made "by a suspect who indicated, prior to making the

18 A-2658-12T3
statement, that he/she would participate in the interrogation

only if it were not recorded; provided however, that the

agreement to participate under that condition is itself

recorded." R. 3:17 (b)(iv) (emphasis added).

This interpretation finds support in the Committee Report,

which examined existing laws and case law in Alaska, Minnesota,

Illinois, Maine, Massachusetts and the District of Columbia. In

each instance, the Committee noted the procedures enacted or

contemplated in those states expressly applied to "suspects" or

to the "accused" at trial. Committee Report, supra, at 6-12.

The State argues that the Court's adoption of the "charged

with" language in subsection (a) was a conscious decision to

depart not only from the direction charted by other states, but

also from the path plotted by, and being voluntarily implemented

by, New Jersey's law enforcement community when the Rule was

adopted. The State cites to the Committee's review of the

Interim Policy Statement of the New Jersey Attorney General and

the New Jersey County Prosecutors' Association (Apr. 13, 2004),

and the Amended Policy Statement (Dec. 17, 2004), which provided

for electronic recording of "a person who is suspected of

committing" certain crimes. The State contends the Court

intended to limit the Rule's application to only those instances

19 A-2658-12T3
where the person "being interrogated" was already "charged with"

certain crimes. We disagree.

First and foremost, the defendant in Cook, the decision

which spawned enactment of the Rule, was not "charged with" the

homicide or any other enumerated offense when questioned by

police, although he was surely a suspect at the time. Cook,

supra, 179 N.J. at 541-43. Like defendant in this case, he was

arrested on municipal court warrants. Ibid. The Court's charge

to the Committee was "to study and make recommendations on the

use of electronic recordation of custodial interrogations[,]"

without limiting consideration to interrogations of only those

"charged with" certain offenses. Id. at 562.

Additionally, although not precisely on point with the

issue here, the Court has considered whether a defendant's

statement should be suppressed in a variety of circumstances

where the defendant was not fully appraised of his status as a

suspect prior to receiving or waiving his Miranda rights. For

example, in State v. A.G.D., 178 N.J. 56, 68 (2003), the Court

held that a suspect was deprived of "information indispensable

to a knowing and intelligent waiver of [Miranda] rights" when

the detectives interrogating him failed to advise that they

already possessed a warrant for his arrest. The Court concluded

that "[w]ithout advising the suspect of his true status when he

20 A-2658-12T3
does not otherwise know it, the State cannot sustain its burden

. . . that the suspect has exercised an informed waiver of

rights, regardless of other factors that might support his

confession's admission." Ibid.

In State v. O'Neill, 193 N.J. 148, 180 (2007), the Court

concluded that "[t]he two-step, 'question-first, warn-later'

interrogation is a technique devised to undermine both the

efficacy of Miranda and our state law privilege." The Court

held that "as a matter of state law, . . . when Miranda warnings

are given after a custodial interrogation has already produced

incriminating statements, the admissibility of post-warning

statements will turn on whether the warnings functioned

effectively in providing the defendant the ability to exercise

his state law privilege against self-incrimination." Id. at

180-81.

In State v. Nyhammer, 197 N.J. 383, 406 (2009), cert.

denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009),

the Court made clear that failing to inform a person of his

"suspect status" does not necessarily vitiate the voluntary

waiver of his Miranda rights "or . . . require[] automatic

suppression of a statement." "[T]he failure to be told of one's

suspect status still would be only one of many factors to be

considered in the totality of the circumstances." Id. at 407.

21 A-2658-12T3
 Even though suppression of a defendant's statement is not a

fait accompli if the Rule is violated, the cited cases reflect

the Court's concern that a defendant's status as a suspect be

part of the calculus in determining the voluntary nature of any

waiver of the right to remain silent. Additionally, the Court

in Cook cited its historical concern "for the reliability and

trustworthiness of confessions as a prerequisite for their use."

Cook, supra, 179 N.J. at 560; see also N.J.R.E. 104(c)

(requiring the judge to preliminarily determine the

admissibility of any statement by a defendant).

The critical role of the jury in evaluating the

truthfulness of a defendant's statement has been long-recognized

by our courts. See State v. Hampton, 61 N.J. 250, 272 (1972)

(jury must "decide whether in view of all the . . .

circumstances the defendant's confession is true"); State v.

Kociolek, 23 N.J. 400, 421-22 (1957) (requiring jury to be

charged on factors affecting accuracy of extra-judicial oral

statements); see also Model Jury Charge (Criminal), "Statements

of Defendant," (revised June 14, 2010). The model jury charge

approved to implement the Rule further convinces us that

defendant's interpretation is correct. The charge provides in

pertinent part:

Our Rules require the electronic recording
of interrogations by law enforcement

22 A-2658-12T3
 officers when a defendant is charged with
[insert applicable offenses] so as to ensure
that you will have before you a complete
picture of all circumstances under which an
alleged statement of a defendant was given,
so that you may determine whether a
statement was in fact made and, if so,
whether it was accurately reported by
State’s witnesses and whether it was made
voluntarily or is otherwise reliable or
trustworthy. Where there is a failure to
electronically record an interrogation, you
have not been provided with a complete
picture of all of the facts surrounding the
defendant's alleged statement and the
precise details of that statement. By way
of example, you cannot hear the tone or
inflection of the defendant’s or
interrogator’s voices, or hear firsthand the
interrogation, both questions and responses,
in its entirety. Instead you have been
presented with a summary based upon the
recollections of law enforcement personnel.
Therefore, you should weigh the evidence of
the defendant's alleged statement with great
caution and care as you determine whether or
not the statement was in fact made and if
so, whether what was said was accurately
reported by State’s witnesses, and what
weight, if any, it should be given in your
deliberations. The absence of an electronic
recording permits but does not compel you to
conclude that the State has failed to prove
that a statement was in fact given and if
so, was accurately reported by State's
witnesses.

[Model Jury Charge (Criminal), supra
(emphasis added).]

If we accepted the State's rationale — only interrogations of

those "charged with" enumerated crimes need be recorded —

portions of a defendant's statement, unrecorded through

23 A-2658-12T3
conscious decision of his interrogators, would be unavailable to

the jury, depriving it of "a complete picture of all of the

facts surrounding the defendant's alleged statement and the

precise details of that statement." Ibid.

In sum, we conclude that 1) the Rule requires electronic

recordation of "all custodial interrogations" if the person is

suspected of having committed one of the enumerated crimes

contained in subsection (a) and is ultimately charged with one

of those crimes; and 2) law enforcement authorities need not

record the interrogation if at the time "the accused is not a

suspect for the crime to which that statement relates." R.

3:17(b)(vi).

D.

We must still address how the trial judge should consider

whether a defendant was "a suspect for the crime to which th[e]

statement relates," so as to trigger the recordation

requirement. We agree with defendant that the judge cannot

simply accept the interrogators' subjective belief that

defendant was not a suspect. See, e.g., State v. O'Neal, 190

N.J. 601, 615-16 (2007) ("The determination whether a suspect is

in 'custody depends on the objective circumstances of the

interrogation, not on the subjective views harbored by either

the interrogating officers or the person being questioned'")

24 A-2658-12T3
(quoting Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct.

1526, 1529, 128 L. Ed. 2d 293, 298 (1994)); State v. Pineiro,

181 N.J. 13, 27 (2004) (an investigative detention and any

seizure that results "cannot . . . be justified merely by a

police officer's subjective hunch") (quoting State v. Davis, 104

N.J. 490, 505 (1986)).

Defendant posits that the standard should be whether a

reasonable person in defendant's situation believed he was a

suspect. We reject the contention, if for no other reason than

"that the Miranda warnings themselves strongly suggest, if not

scream out, that a person is a suspect." Nyhammer, supra, 197

N.J. at 407. Certainly, any person being interrogated who

actually committed the crime would reasonably conclude he was a

suspect, regardless of what law enforcement actually knew at the

time.

Instead, we believe the judge must apply an objective

standard that takes into account the totality of the

circumstances then known to the interrogator, and decide whether

a reasonable police officer in those circumstances had a

reasonable basis to believe a defendant was a "suspect" in the

crime about which he was being questioned. That standard

mirrors the one we apply in many other police-citizen

encounters. See, e.g., State v. Mann, 203 N.J. 328, 338 (2010)

25 A-2658-12T3
("[A] reviewing court must assess whether 'the facts available

to the officer at the moment of the seizure or the search

warrant a man of reasonable caution in the belief that the

action taken was appropriate.'") (quoting Piniero, supra, 181

N.J. at 21); O'Neal, supra, 190 N.J. at 615-16; State v. Moore,

181 N.J. 40, 46 (2004) (noting that probable cause to arrest or

search "exists where the facts and circumstances within . . .

[the officers'] knowledge and of which they had reasonably

trustworthy information [are] sufficient . . . to warrant a

[person] of reasonable caution in the belief that an offense has

been or is being committed") (quoting Schneider v. Simonini, 163

N.J. 336, 361 (2000)). Under this standard, the State must

prove by a preponderance of the evidence that the defendant was

not a suspect for the crime to which the statement relates at

the time of the interrogation. R. 3:17(b).

We recognize that this standard does not draw a "bright-

line" demarking interrogations that must be recorded versus

those that need not, and that the judgment officers exercise in

the moment may subsequently be questioned and scrutinized well

after the fact. Of course, an easy answer to that problem is

that all custodial interrogations conducted during

investigations of crimes listed in the Rule should be recorded,

and, indeed, at least one of our sister states has adopted that

26 A-2658-12T3
practice. See Committee Report, supra, at 7 (describing

practice in Alaska). Moreover, as already noted, practices in

those states examined by the Committee explicitly required law

enforcement officers to record interrogations of "suspects," not

just defendants charged with predicate crimes.

E.

In this case, although the judge did not expressly apply

the objective standard we have now defined, we conclude that he

did so implicitly. Defendant seizes on a snippet of the judge's

written opinion in which he wrote, "both officers testified,

defendant was a witness" when interrogated, and argues the judge

applied a purely subjective test. We disagree.

Kelly explained that they knew defendant had been to the

victim's house two evenings before his body was found, surmising

defendant might have been the last person to have seen the

victim alive, other than the victim's wife, who had,

additionally, spoken to the victim the night before the body was

found. The judge found that testimony to be believable, and,

the testimony did not demonstrate that Kelly possessed other

information pointing to defendant as a suspect. Kelly explained

that only after the CDW reports indicated defendant had lied did

defendant become a suspect. The judge credited this testimony,

too, and concluded that defendant only became a suspect when "he

27 A-2658-12T3
indicated he wanted to talk" to Kelly. Notably, Kelly started

the recording immediately thereafter.7

It is easy in hindsight to say that defendant was an

obvious suspect in the murder. But, the record reveals that, at

the time defendant was arrested on municipal warrants, police

only knew that he drove the victim's wife from her house to New

York, and returned the family's car, two nights before the

victim's body was found. Under these circumstances, the

interrogators' belief that defendant was not a suspect in the

murder was reasonable, and therefore there was no violation of

the Rule.

Having reached that conclusion, we leave for another day

consideration of what would be the appropriate remedy if the

Rule was violated, and the judge failed to properly find a

violation or charge the jury appropriately.

III.

At sentencing, the judge stated that he did "not intend to

consider any other charge . . . than the charge that [defendant]

7
We express some concern that Kelly testified he "confronted"
defendant with the information from the CDW before defendant
asked to speak to him alone. Defendant was clearly a suspect
when Kelly realized he had lied about never returning to the
Essex Fells house. However, it appears from the testimony that
this was a fluid series of events that occurred in rapid
succession and that the recording began immediately after
defendant made his remark about Woodson.

28 A-2658-12T3
was found guilty of . . . ." Citing defendant's extensive

criminal history that included four prior indictable

convictions, the judge found defendant was a "persistent

offender." Focusing on the "violence . . . perpetrated," the

judge found aggravating factor one. N.J.S.A. 2C:44-1(a)(1)

("the nature and circumstances of the offense").8 He also found

aggravating factor two, stating that defendant "knew or should

have known that the victim of the offense was particularly

vulnerable." See N.J.S.A. 2C:44-1(a)(2) ("[t]he gravity and

seriousness of harm inflicted on the victim, 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 due to advanced age"). Citing

defendant's recidivism, the judge found aggravating factors

three, six and nine. N.J.S.A. 2C:44-1(a)(3) (the risk of re-

offense); (a)(6) (extent and seriousness of prior record);

(a)(9) (the need to deter defendant and others). Again citing

the victim's age, the judge found aggravating factor twelve.

N.J.S.A. 2C:44-1(a)(12) (offense committed against a person

8
We note that the judgment of conviction does not include a
finding as to aggravating factor one. However, the judge's oral
opinion controls. See State v. Warmbrun, 277 N.J. Super. 51, 58
n.2 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).

29 A-2658-12T3
sixty years of age or older). The judge found no mitigating

factors and imposed the sentence referenced above.

Defendant argues the judge mistakenly found aggravating

factors one and two by relying "heavily on the facts of the very

offenses that defendant was acquitted on." We agree.

We begin by noting that "[a]ppellate review of the length

of a sentence is limited." State v. Miller, 205 N.J. 109, 127

(2011). As the Court has recently reiterated:

The appellate court must affirm the sentence
unless (1) the sentencing guidelines were
violated; (2) the aggravating and mitigating
factors found by the sentencing court were
not based upon competent and credible
evidence in the record; or (3) "the
application of the guidelines to the facts
of [the] case makes the sentence clearly
unreasonable so as to shock the judicial
conscience."

[State v. Fuentes, 217 N.J. 57, 70 (2014)
(alteration in original) (quoting State v.
Roth, 95 N.J. 334, 364-65 (1984)).]

"When applying [factor one], 'the sentencing court reviews the

severity of the defendant's crime, the single most important

factor in the sentencing process, assessing the degree to which

defendant's conduct has threatened the safety of its direct

victims and the public.'" Id. at 74. (quoting State v. Lawless,

214 N.J. 594, 609 (2013)). "[A] sentencing court may justify

the application of aggravating factor one . . . by reference to

the extraordinary brutality involved in an offense . . . . A

30 A-2658-12T3
sentencing court may consider 'aggravating facts showing that

[a] defendant's behavior extended to the extreme reaches of the

prohibited behavior.'" Id. at 75 (alteration in original)

(citations omitted) (quoting State v. Henry, 418 N.J. Super.

481, 493 (Law. Div. 2010)).

"[Aggravating factor two] compels 'a pragmatic assessment

of the totality of harm inflicted by the offender on the

victim.'" Lawless, supra, 214 N.J. at 610 (quoting State v.

Kromphold, 162 N.J. 345, 358 (2000)). "It focuses on the

setting of the offense itself with particular attention to any

factors that rendered the victim vulnerable or incapable of

resistance at the time of the crime." Id. at 611 (citing

N.J.S.A. 2C:44-1(a)(2)).

Defendant was acquitted of all substantive offenses. The

jury only found defendant responsible for the criminal agreement

to commit the burglary, rejecting the claim, despite being

appropriately charged, that defendant was legally responsible

for Woodson's conduct either as an accomplice or co-conspirator.

See N.J.S.A. 2C:2-6(b)(3) and (4) (making one "legally

accountable for the conduct of another" if an accomplice of the

other person or "engaged in a conspiracy" with the other

person).

31 A-2658-12T3
 As a general proposition, "[a]lthough a defendant may be

vicariously accountable for the crimes his accomplice commits,

he is not vicariously accountable for aggravating factors that

are not personal to him." State v. Rogers, 236 N.J. Super. 378,

387 (App. Div. 1989), aff'd, 124 N.J. 113 (1991). In this case,

defendant was not found vicariously culpable for the crimes of

his co-defendant. Respecting that verdict as we must, the judge

erred in attributing the violent, heinous acts of defendant's

co-defendant to defendant, and, while there is certainly support

in the record for the judge's conclusion that defendant knew the

victim was very old, the jury concluded he did not know that

Woodson would do personal violence to the victim.

We conclude it was error to find aggravating factors one

and two on this record. We remand the matter to the trial court

to re-sentence defendant without consideration of those two

factors. We do not express any opinion as to the appropriate

sentence.

Affirmed in part; reversed in part and remanded. We do not

retain jurisdiction.

32 A-2658-12T3