NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3753-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICO PARKS a/k/a JAMES R. PARKS,
JAMEEL PARKS, PARKS JAMES,
JAMEEL PARTLOW, JAMES R. PARTOW,
RICCIO J. PARK, ERIC R. PARKS,
ERIC PARK, REO PARKS, REKO PARKS,
RECO PARKS JR., RECO J. PARKS,
RICO J. PARKS, PARKS R. JAMES,
RECO PARKS,
Defendant-Appellant.
Submitted June 1, 2017 – Decided July 31, 2017
Before Judges Alvarez and Manahan.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Indictment
No. 12-06-0475.
Joseph E. Krakora, Public Defender, attorney
for appellant (Brian P. Keenan, Assistant
Deputy Public Defender, of counsel and on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Jenny M. Hsu, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
Tried by a jury, defendant Rico Parks was convicted of first-
degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), and third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(d). He was sentenced on February 20, 2015, to life subject to
the No Early Release Act's eighty-five percent parole
ineligibility, see N.J.S.A. 2C:43-7.2, and a concurrent five-year
term on the possession of a weapon offense. Defendant now appeals,
contending that his videotaped confession should have been
suppressed, and that the judge improperly included aggravating
factors in his sentencing decision. We disagree and affirm.
During the trial, the jury heard first from William Cook, the
uncle of the victim Thya Wilson, who was defendant's wife. Cook
lived with defendant and Wilson. He testified that on January 3,
2012, a Tuesday, defendant left for work at his normal time around
7:00 p.m.; the victim had not yet returned home. Cook was already
in bed at 11:00 p.m. when he heard the victim's keys rattling, and
heard her coming through the door and walking down the hallway.
She went into her bedroom, to the kitchen, and then back to the
bedroom. Although Cook did not see or speak to Wilson, he was
certain she was in the apartment because of the sound of her keys.
In the middle of the night, Cook awakened to the sound of
Wilson's voice saying, "I'm sorry, I'm sorry." Cook said it
2 A-3753-14T2
sounded as if she was crying, and as if someone was "gettin[g] hit
with a belt about three times." Cook was cross-examined on an
earlier statement he had made in which he acknowledged the
possibility the sound may have originated from "upstairs over"
him. He did not get up to investigate because he thought Wilson
was speaking on the phone. Cook went back to sleep, awakening the
following morning at around 8:00 a.m. when defendant asked if he
wanted anything from the store. Defendant and Cook remained in
the apartment all day.
Cook noticed that Wilson's car was parked outside. When he
looked into her bedroom he observed that it was clean, which was
unusual for her because she normally kept it "messy," and never
made her bed. Defendant made no efforts to reach Wilson. Cook
tried to call Wilson four times, but only reached her voicemail.
By Thursday morning, Cook was becoming concerned because
ordinarily when Wilson did not return home, she would reach out
to him. Defendant behaved normally that Thursday, except that
Cook noticed defendant left briefly with Wilson's vehicle. They
stayed home that night and watched television. Defendant did not
look for Wilson on Thursday.
On Friday morning, Cook was awakened by defendant telling him
that Wilson was outside. When Cook went to the door, he saw his
niece lying on the floor.
3 A-3753-14T2
Neighbors had contacted police to report a body in the
hallway. When they arrived, defendant identified the body as his
wife.
One of the residents in the building said that on Tuesday,
January 3, 2012, around 7:45 p.m., as she was walking back into
the building, she saw someone with a ski mask on. As she entered
the building, she recognized that it was defendant from his voice.
Wilson's son-in-law also testified for the State. He said
that Wilson and his wife, Wilson's daughter, were very close and
spoke daily. He learned Wilson was missing on Wednesday from his
wife, and after he left work in the afternoon, they went to the
apartment. The son-in-law and his wife looked around for ten to
fifteen minutes while defendant remained in the living room. They
looked in the closets, under the bed, and in the bathroom. The
bedspread on Wilson's bed at the time police photographed her
bedroom was different from the one he recalled her using. The
son-in-law testified that it was peculiar that her bedroom was
neat since normally she kept it "really disheveled and jumbled
around and stuff." When he checked the bedroom closet, he could
see nothing inside because there was a "wall of bags[.]" Defendant
did not join them as they searched the apartment.
A representative from defendant's employer also testified.
He said that on Tuesday, defendant called and said he was unable
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to work. On Thursday, he received a call from defendant asking
if he could pick up his check. Defendant also asked if he could
defer returning to work until Sunday because his wife was missing
and he needed to look for her.
Another neighbor testified that on Thursday defendant helped
him work on his van from 11:00 a.m. until 6:00 p.m. Throughout
the day, defendant acted normally and did not mention that his
wife was missing. When the neighbor found out about it later in
the day, defendant did not respond to his questions.
Investigators examined the scene with luminal spray, locating
blood traces on the victim's bedroom floor. Sergeant Frank Coon
of the Union County Sheriff's Department, said that when he opened
the victim's bedroom closet he smelled a foul odor he identified
with death. He saw a "sharp instrument, a knife," on the floor
under a dresser in the bedroom. It was part of a set found in the
kitchen.
A DNA forensic expert and chemist with the Union County
Prosecutor's forensic laboratory identified blood swabs taken from
Wilson's dresser and the floor of the bedroom as coming from the
victim. The expert could not exclude Wilson as a contributor from
swabs taken from the floor of the closet, but did exclude
defendant. The knife, when tested, had traces of Wilson's blood,
as did the interior of a suitcase found in Wilson's bedroom closet.
5 A-3753-14T2
The medical examiner testified that Wilson had died two days
before the body was discovered on January 6, 2012. The cause of
death was multiple blunt and sharp force injuries, and she had
defensive wounds on her hands.
The day the body was discovered, defendant and Cook were
driven to the local police station to be interviewed. They were
initially seated together in a waiting area. Defendant was then
taken to the Union County Prosecutor's Office because he had an
outstanding child support warrant.
When the officers began defendant's interview at that
location, they explained that he was in custody because of the
civil contempt warrant. Detective William Lord of the Union County
Prosecutor's Office Homicide Unit, then said: "Okay. That's why
you [are] here right now and we need to speak to you about something
else that occurred earlier today." Lord reviewed defendant's
Miranda1 rights with him, which he waived after acknowledging that
he understood them. Defendant asked if he was being charged with
anything else. Lord responded that there were no other charges
at that time. Defendant agreed to speak to the detectives, and
from the outset of the interview, complained about injuries to his
hand.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
6 A-3753-14T2
Lord opened the interview by stating that he was
"investigating a homicide that took place and the victim was
[Wilson]" and that officers were "speaking with everyone who had
any contact with her within the last couple of days." Defendant
said that while he had worked on Monday, he did not work on
Tuesday. When he arrived home on Tuesday morning, Wilson was not
there. Defendant also said the last time he saw his wife was on
Sunday, that they had argued, and Wilson was not speaking to him
because she thought he had stolen money from her. Defendant denied
that it was strange for him not to have seen or spoken to her
since Sunday, given their work schedules, and because she usually
would not "speak to [him] for a while" after they had a
disagreement.
Defendant mentioned that Wilson's daughter and husband had
come by to look for Wilson on Wednesday night. Earlier that day,
defendant had knocked on Wilson's door, and asked Cook where she
was because she was "suppose[d] to be there Wednesday, that's her
day off." Defendant said Cook told him he had heard her crying
on Tuesday and saying, "I'm sorry," but that he had not checked
on her.
Defendant initially told the police that he was out Tuesday
night. He claimed that on Tuesday morning the staffing agency
told him there was no work so he went to downtown Elizabeth, bought
7 A-3753-14T2
some alcohol, ran into a friend and got high, drove around in his
friend's car, and went to a park. He did not return home until
Wednesday morning. Cook was there at the time and when defendant
did not see Wilson, he asked Cook where she was. Her car was
parked by the apartment and he moved it after Cook asked him to.
During the interview, Lord asked defendant about his hand.
Defendant said that he had injured it on Sunday lifting boxes at
work and it was "locked up." Detective Jose Vendas of the Union
County Prosecutor's Office Homicide Unit asked defendant if he
would mind showing them his hands and commented that both looked
swollen, one more than the other. A photo of defendant's swollen
and bruised hand was introduced at trial.
After the officers inquired further about defendant's work
schedule and the reason he had not worked after Monday, defendant
said, "You [are] asking me the same question . . . . You [are]
confusing -- . . . . This is harassment what you [are] doing
now." The officers apologized and defendant said, "You ask me the
same questions over and over again like you [are] not believing
me." He then said he did not want to talk anymore because they
did not believe him.
Vendas confirmed that defendant did not want to talk anymore,
said it was not a problem, and indicated the time for the record.
Defendant then interrupted and said, "What else ya'll wanna know?"
8 A-3753-14T2
Lord said he would not continue the interview if defendant did not
want to and that he was "not [going to] force [defendant] to talk
to [them.]" Defendant said that they could continue talking.
Defendant told the officers that he sometimes slept in a
different bed after an argument with Wilson. After discussing his
whereabouts between Monday and Friday, the detectives informed
defendant that the blood traces found in the apartment pointed to
him as the perpetrator. Defendant repeatedly denied killing
Wilson. He also denied failing to look for her.
Defendant told the officers, "[t]he way ya'll just asking me,
like ya'll charging me." Lord responded that they had already
explained why he was there. Defendant said that he was "basically"
being charged and that he had known he would be charged.
At this point in the interview, Detective Jorge Jimenez of
the Union County Prosecutor's Office came into the room, introduced
himself, reminded defendant that he was being video-taped and
explained, in very frank terms, how the "system works." He said
that he did not know whether or not defendant would be charged
that night but that he was giving defendant an opportunity to
apologize and acknowledge that he messed up. Defendant promptly
confessed, saying that he "f----d up," and that he was sorry.
On Tuesday, after Wilson returned home, defendant overheard
Wilson on the phone with someone with whom he suspected she was
9 A-3753-14T2
having an affair. He had previously overheard Wilson's
conversations with this individual. Defendant waited until she
went to bed, checked to make sure she was asleep, and "thought
about it." He walked out of the bedroom and into another room,
then "walked [back into] the room and clobbered her." Defendant
said he "[j]ust kept punching her." Wilson fell onto her stomach
and he "kept pounding her." "After a while she [] stopped moving."
Defendant initially stated that he just punched her with gloved
hands, but later admitted he hit her with a "metal piece" after
the officers pointed out that some of Wilson's injuries did not
come from being punched.
Defendant eventually dragged Wilson's body to the bathroom,
undressed her, bathed her, put her clothes back on, and placed her
body in a suitcase in the closet. He threw away the clothes he
wore while cleaning up. The "metal piece" he used broke into "a
thousand pieces," which he threw into a nearby river. He moved
Wilson's body to the hallway early Friday morning, afraid that
otherwise the apartment would start to smell.
During the suppression hearing, Vendas testified in addition
to Elizabeth Police Department Detective Thomas Koczur. Defendant
challenged the admissibility of his statement on the basis that
police did not advise him that he was going to be charged with
murder. Koczur testified that when police arrived at the apartment
10 A-3753-14T2
building on January 6, defendant was on the living room couch.
Defendant and Cook agreed to speak with Koczur, and within five
minutes were transported to headquarters. Koczur found
defendant's extremely calm demeanor unusual given that his wife's
body had just been discovered outside his front door. Upon their
arrival at the police station, Cook and defendant were seated in
the reception area.
While defendant was waiting, Koczur learned there was an
active bench warrant. Defendant was then taken into custody,
handcuffed, and moved to an interview room at the Union County
Prosecutor's Office.
Vendas said defendant did not sign the Miranda waiver himself
because of his swollen hand, which he initially claimed he injured
at work, and only later admitted he injured while punching Wilson.
He never sought medical attention prior to being brought to the
station, nor did he request it during the interview. Defendant
was offered coffee and food. After being taken to the location
where the clothes worn during the homicide were discarded,
defendant was charged with murder. The clothing was not recovered.
He was treated for a sprain to his right hand, although no
medication was prescribed, just an ice pack.
11 A-3753-14T2
The Law Division judge found Koczur and Vendas to be credible
witnesses. He was satisfied that defendant clearly and
unequivocally understood his rights and his waiver of them.
The judge considered the precedent defendant relied upon,
State v. A.G.D., 178 N.J. 56 (2003), to be distinguishable because
in this case no complaint or warrant had issued before defendant's
interview. Defendant was in actual custody only because of the
civil matter.
When the judge sentenced defendant after trial, he found
aggravating factor one, the nature and circumstances of the
offense, N.J.S.A. 2C:44-1(a)(1). He listed the marital
relationship between defendant and the victim, the broken bond of
trust, and "the brutal and senseless nature of this crime, which
was followed by . . . a cover-up, such that Wilson was placed in
a . . . suitcase and stored in the closet," as the reasons which
supported the factor. He also found aggravating factor two,
N.J.S.A. 2C:44-1(a)(2), because the victim was asleep and helpless
when defendant's attack began. He noted defendant stood six foot,
two inches tall and weighed 190 pounds. He further found
aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk
defendant would reoffend in light of his significant criminal
history and ongoing drug problem, and factor six, N.J.S.A. 2C:44-
1(a)(6), as the murder conviction was defendant's eighth
12 A-3753-14T2
indictable offense. His criminal history began in 1983, his parole
was revoked on four occasions, and he had been arrested numerous
times. Defendant's prior convictions included robbery, burglary,
and drug possession. The judge included factor nine, N.J.S.A.
2C:44-1(a)(9), the need to deter, in his sentence calculus, and
he found no mitigating factors.
On appeal, defendant raises the following points for our
consideration:
POINT I
DEFENDANT'S WAIVER OF HIS NEW JERSEY COMMON
LAW PRIVILEGE AGAINST SELF-INCRIMINATION WAS
NOT VALID BECAUSE THE POLICE FAILED TO INFORM
HIM THAT HE WAS THE "TARGET" OF THEIR
INVESTIGATION WHEN THE POLICE ACKNOWLEDGED AT
THE SUPPRESSION HEARING THAT PARKS WAS A
SUSPECT AT THE START OF THE INTERVIEW.
POINT II
THE TRIAL JUDGE'S ERROR IN FINDING AGGRAVATING
FACTORS ONE AND TWO THAT WERE NOT SUPPORTED
BY THE RECORD RESULTED IN A MANIFESTLY
EXCESSIVE SENTENCE.
I.
When reviewing a decision on a motion to suppress, an
appellate court upholds the factual findings of the trial court
when they are based upon "sufficient credible evidence in the
record." State v. Elders, 192 N.J. 224, 243 (2007) (citation
omitted). Deference is given to the trial court's factual findings
13 A-3753-14T2
because of its firsthand observations of the witnesses. Id. at
244 (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We do not
disturb a trial court's factual findings merely because we would
have reached a different conclusion. Ibid. (citing Johnson, supra,
42 N.J. at 162). However, the trial court's factual findings will
be overturned if justice so demands. Ibid.
The standard of review of a trial court's sentence is "one
of great deference and 'judges who exercise discretion and comply
with the principles of sentencing remain free from the fear of
second guessing.'" State v. McGuire, 419 N.J. Super. 88, 160
(App. Div.) (quoting State v. Dalziel, 182 N.J. 494, 501 (2005)),
certif. denied, 208 N.J. 335 (2011).
II.
Defendant asserts that the relevant law regarding the
voluntariness of his confession is State v. A.G.D., 178 N.J. 56
(2003). We do not agree.
"The privilege against self-incrimination, as set forth in
the Fifth Amendment to the United States Constitution, is one of
the most important protections of the criminal law." State v.
Presha, 163 N.J. 304, 312 (2000). Therefore, in order for a
"confession to be admissible as evidence, prosecutors must prove
beyond a reasonable doubt that the suspect's waiver was knowing,
intelligent, and voluntary in light of all the circumstances."
14 A-3753-14T2
Id. at 313. A confession cannot be the product of police coercion.
Ibid.
In determining whether a suspect's confession
is the product of free will, courts
traditionally assess 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."
[Ibid. (quoting State v. Miller, 76 N.J. 392,
402 (1978)).]
In our view, the relevant and dispositive case is State v.
Nyhammer, 197 N.J. 383, cert. denied, 558 U.S. 831, 130 S. Ct. 65,
175 L. Ed. 2d 48 (2009). There the Court reiterated that police
must inform a suspect that a complaint or arrest warrant has been
lodged. Id. at 404-05. In Nyhammer, the defendant was not told
that allegations had been made by a sexual assault victim against
him. Id. at 390. At the time he spoke with police, at least
initially, the defendant stated that he believed he was assisting
in the investigation of another family member whom the child had
also accused. Id. at 389-90. He was then questioned in a manner
which was not coercive, and that was relatively brief. Id. at
391-92. The defendant acknowledged understanding his rights. Id.
at 390.
15 A-3753-14T2
The Court found the defendant's inculpatory statement to be
admissible, and affirmed the trial court's decision denying
suppression, because:
Unlike the issuance of a criminal complaint
or arrest warrant, suspect status is not an
objectively verifiable and discrete fact, but
rather an elusive concept that will vary
depending on subjective considerations of
different police officers. A suspect to one
police officer may be a person of interest to
another officer.
[Nyhammer, supra, 197 N.J. at 405.]
The failure to advise a suspect that he or she is a suspect is
only one of several factors in applying the totality of the
circumstances test when reviewing the admissibility of a
statement. Id. at 407. The Court went on to say:
[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. We must acknowledge the
reality that in many, if not most cases, the
person being questioned knows he is in custody
on a criminal charge. We also are mindful
that the Miranda warnings themselves strongly
suggest, if not scream out, that a person is
a suspect, . . . . Those and the other
warnings should be a sobering wake-up call to
a person under interrogation. [] [T]he nature
of police questioning would be another stark
reminder that the person under interrogation
is deemed a suspect. For example, there can
be little doubt that when [the investigating
officer] told defendant that [the victim] had
made sexual allegations against him that he
knew – at that moment – that he was a suspect
in a criminal investigation.
16 A-3753-14T2
[Id. at 407-08.]
Clearly, the officers in this case suspected that defendant
might have been involved in the murder. Just as clearly, because
the investigation was only beginning, everyone was a potential
suspect and source of information. Police brought both defendant
and Wilson's uncle into the station. Initially, neither had their
freedom of movement restrained. Defendant was not taken into
custody until officers learned he had an outstanding warrant.
Defendant's atypical response may have been a signal that he
warranted a second look, but the investigation was not focused
just on him. For that reason, the outcome here is controlled by
Nyhammer. Applying the totality of the circumstances test,
defendant's status at the beginning of the investigation was
ambiguous enough that the officers' disclosures to him sufficed
to guarantee that he exercised his Miranda rights knowingly and
intelligently.
III.
Appellate review of a sentence involves ensuring that the
trial court's "exercise of discretion [is] based on findings of
fact that are grounded in competent, reasonable credible
evidence," and that it "appl[ied] correct legal principles in
exercising its discretion." State v. Roth, 95 N.J. 334, 363
17 A-3753-14T2
(1984). Sentences should only be modified when the trial court
made "such a clear error of judgment that it shocks the judicial
conscience." Id. at 364. Aggravating and mitigating factors
identify "individual circumstances which distinguish the
particular offense from other crimes of the same nature." State
v. Yarbough, 195 N.J. Super. 135, 143 (App. Div. 1984), remanded
for resentencing on other grounds, 100 N.J. 627 (1985), cert.
denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
Although the sentencing judge took into account the
relationship between the parties as a significant fact
contributing to aggravating factor one, he also acknowledged the
"brutal" nature of the onslaught. The force employed by defendant,
who acknowledged repeatedly striking the victim while she lay
helpless on the floor, on her stomach so she could not resist, is
alone appropriate evidence supporting this aggravating factor.
Similarly, aggravating factor two focuses on the
circumstances that make a victim vulnerable. Wilson was asleep
when this attack began. That is a sufficient basis for factor
two. Under the circumstances, we are satisfied that the judge
correctly applied sentencing principles based on facts grounded n
competent, reasonably credible evidence. He did not err in his
analysis. The sentencing decision does not shock our conscience.
Affirmed.
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