NOT FOR PUBLICATION WITHOUT THE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-1141-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ZAKARIYYA AHMAD,
Defendant-Appellant.
___________________________
Submitted September 16, 2019 – Decided November 18, 2019
Before Judges Rothstadt, Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 15-03-0640.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stefan Van Jura, Deputy Public Defender, of
counsel and on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Stephen Anton
Pogany, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Zakariyya Ahmad appeals from his conviction, following a jury
trial, of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), as a
lesser included offense on count three, as well as all other indicted charges. 1
The charges stemmed from a robbery or attempted robbery of a café on
October 27, 2013, by defendant and two codefendants, Ja-Ki Crawford and
Daryl Cline during which Joseph Flagg was shot and killed. On the same day,
as admitted in defendant's merits brief, defendant was treated at a hospital for
multiple gunshot wounds.
Rahsaan Johnson, a detective with the Essex County Prosecutor's Office,
testified at both a hearing on defendant's motion to suppress his statement to
Johnson and another detective and at trial. Johnson claimed he became aware
that defendant had been shot and believed the same person or persons who shot
Flagg also shot defendant. He consequently interviewed defendant on October
27, 2013, and obtained a statement which was played to the jury at defendant's
trial.
1
Defendant was indicted for second-degree conspiracy to commit robbery,
N.J.S.A. 2C:5-2 and 15-1(a)(1) (count one); first-degree robbery, N.J.S.A.
2C:15-1(a)(1) (count two); first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2)
(count three); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four);
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count
five); and second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count six).
A-1141-17T3
2
On appeal, defendant argues:
POINT I
THE STATEMENT OF DEFENDANT – WHO WAS
A JUVENILE – SHOULD HAVE BEEN
SUPPRESSED BECAUSE HE WAS IN CUSTODY
AND NOT GIVEN MIRANDA WARNINGS PRIOR
TO INTERROGATION; IN ADDITION, THE
POLICE AFFIRMATIVELY MISREPRESENTED
DEFENDANT'S STATUS AS A VICTIM TO OBTAIN
PERMISSION FROM HIS PARENTS FOR THE
INTERROGATION.
POINT II
THE TRIAL COURT ERRED IN INSTRUCTING
THE JURY THAT IT COULD CONVICT THE
DEFENDANT OF FELONY MURDER ON THE
BASIS OF BEING A MERE CO-CONSPIRATOR TO
ROBBERY. ACCORDINGLY, THE FELONY
MURDER CONVICTION MUST BE VACATED.
POINT III
THE RECKLESS MANSLAUGHTER CONVICTION
SHOULD BE VACATED BECAUSE THE JURY
WAS NEVER INSTRUCTED ON HOW TO
RECONCILE THE PURPOSEFUL STATE OF MIND
REQUIRED TO IMPOSE ACCOMPLICE LIABILITY
WITH THE RECKLESS STATE OF MIND THAT IS
AN ESSENTIAL ELEMENT OF MANSLAUGHTER.
Unpersuaded by any of these arguments, we affirm.
A-1141-17T3
3
I.
Defendant contends that his statement to detectives on the day of the
murder, should have been suppressed because he was in custody and not given
Miranda2 warnings prior to his interrogation. He claims the custodial nature of
the interrogation is evidenced by: his transportation from the hospital to the
Newark Police Department following his release after emergency surgery to
treat multiple gunshot wounds and his concomitant receipt of five doses of
Fentanyl; his subsequent transportation in the back of a police car to the Essex
County Prosecutor's Office after "sitting in an interview room, at the police
department 'for a couple of hours,'" for questioning; and his interview, that lasted
for a few hours, during which he was asked "accusatory" questions by detectives
who were "deeply skeptical" of his claim that he had been shot at a different
location.
Defendant, who was seventeen at the time, also claims the detectives
"affirmatively misrepresented" his status as a victim in order to obtain his
parent's permission for the interrogation. As support for this claim, he cites both
his mother's entry into the interview room after a crime-scene detective was
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-1141-17T3
4
called to take photographs of defendant's hands and her demand that detectives
stop interrogating her son.
Unless Miranda warnings are administered, statements made by a
defendant while in custody, whether exculpatory or inculpatory, may not be used
in the prosecutor's case-in-chief. State v. Hartley, 103 N.J. 252, 275 (1986).
"Custodial interrogation" means "questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way." Miranda, 384 U.S. at 444. Absent a
formal arrest, the "critical determinant of custody is whether there has been a
significant deprivation of the suspect's freedom of action based on the objective
circumstances[.]" State v. P.Z., 152 N.J. 86, 103 (1997).
Relevant circumstances and factors considered in
evaluating the restraint involved under the
circumstances of the case include: the time, place and
duration of the detention; the physical surroundings;
the nature and degree of the pressure applied to detain
the individual; language used by the officer; and
objective indications that the person questioned is a
suspect.
[State v. Smith, 374 N.J. Super. 425, 431 (App. Div.
2005) (citing Stansbury v. California, 511 U.S. 318,
325 (1994)).]
Judge Alfonse J. Cifelli conducted an evidentiary hearing during which he
heard testimony from Johnson, defendant and his mother; the judge also
A-1141-17T3
5
reviewed the transcript of the interview. Based on his review of the transcript
and Johnson's testimony, which the judge found to be "candid, consistent, and
unwavering both on direct and cross[-]examination," Judge Cifelli found, in a
comprehensive oral decision:
[D]efendant was interrogated as a victim of a shooting
as opposed to a suspect. The interrogation, again
pursuant to the transcript, was limited to the facts and
circumstances surrounding his injuries without any
questions or references of the shooting and/or death of
Joseph Flag[g]. Nor did [defendant] disclose any
information or any involvement in the shooting of Mr.
Flag[g].
The judge acknowledged defendant was questioned by two detectives in
an interview room at the Prosecutor's Office shortly after he was treated for
gunshot wounds but, nonetheless found the questioning was not conducted in a
custodial setting because:
One, [defendant] presented himself to officers as a
victim of a shooting several blocks from where another
man had just been murdered. Two, the detective did
not pressure [defendant], nor did their questioning
appear to be pursued in order to obtain any
incriminating statements. [Defendant] was not linked
to the homicide in question at the time of his
questioning. Objectively, defendant was not a suspect
at the time of the questioning. The detectives only later
received [the Newark Police Department Ballistics
Laboratory's] report and incriminating statements . . .
from others connecting [defendant] at the scene of the
homicide. Detectives did not ask [defendant] any
A-1141-17T3
6
questions whatsoever pertaining to the murder of
Joseph Flag[g] and restricted their questioning
specifically to his injuries and/or the gunshots causing
those injuries.
[Defendant] was at no time told during the
questioning that he was not free to leave. [Defendant]
appeared to be responsive and receptive to the
detective’s questioning indicating he was neither
coerced nor restrained. Defendant was never promised
anything for his cooperation or threatened for
noncompliance.
Judge Cifelli had already found defendant's testimony that he was told by
the police that he was not free to leave or to go with his parents, and that he was
agitated and wanted to leave, was "not corroborated either by his mother's
testimony [or] more importantly the testimony of [the] detective and/or the
transcript of the discourse between" defendant and the detective. The judge
further found:
Defendant, during the course of the interrogation, did
not ask for any breaks; specifically did not ask to go to
the bathroom, eat, drink, et cetera. He never asked to
stop the statement. He never asked for an attorney or
his parents. He never refused to continue. He answered
all questions without any reluctance or hesitation. He
made no complaints -- contrary to his testimony, I
should say, during the course of the [e]videntiary
[h]earing, he made no complaints of pain, no problem
understanding or speaking. And after the statement was
-- and nor did the parents at anytime seek to obtain
entrance or admission into the interrogation room.
After the statement was completed, defendant left with
his parents.
A-1141-17T3
7
The scope of our review of a judge's findings of fact on a motion to
suppress is limited. State v. Robinson, 200 N.J. 1, 15 (2009). "We do not weigh
the evidence, assess the credibility of witnesses, or make conclusions about the
evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only "determine
whether the findings made could reasonably have been reached on sufficient
credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162
(1964). We are not in a good position to judge credibility and should not make
new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only
where we are "thoroughly satisfied that the finding is clearly a mistaken one and
so plainly unwarranted that the interests of justice demand intervention and
correction . . . [that we] appraise the record as if [we] were deciding the matter
at inception and make [our] own findings and conclusions." Johnson, 42 N.J. at
162 (citations omitted).
The testimony and evidence Judge Cifelli found to be credible and reliable
were sufficient to support his findings and are entitled to our deference on
appeal. See State v. Elders, 192 N.J. 224, 243-44 (2007). Although his
conclusions as to matters of law are not entitled to deference, State v. Shaw, 213
N.J. 398, 411 (2012), we are in accord with his cogent application of the law to
the facts he found. We agree defendant was not subject to custodial
A-1141-17T3
8
interrogation by the detectives at the Essex County Prosecutor's Office. "The
rights set forth in Miranda are not implicated 'when the detention and
questioning is part of an investigatory procedure rather than a custodial
interrogation[.]'" State v. Smith, 307 N.J. Super. 1, 9 (App. Div. 1997) (quoting
State v. Pierson, 223 N.J. Super. 62, 66 (App. Div. 1988)).
Judge Cifelli's findings also scotch defendant's claim that the police
misrepresented his status as a victim to his parents in order to obtain their
permission to question him. The judge found testimony of defendant's mother
and Johnson established that defendant's "parents were aware of defendant being
questioned about his injuries." He also found the transcript of defendant's
statement "contain[ed] acknowledgement from both detectives as well as
[defendant] that defendant's parents gave the detective permission to speak with
[defendant]." Further, the judge found defendant's parents remained just outside
the interview room during questioning, were aware defendant was being
questioned, "never asked to be permitted to accompany" defendant in the room,
and, as admitted by defendant's mother during the evidentiary hearing, she
interjected when pictures were taken of her son's hand and asked the detectives
to stop; they complied. Those findings, in tandem with the judge's finding that
the detectives viewed defendant as a victim during questioning, did not have
A-1141-17T3
9
information linking him to Flagg's homicide until after the interview was
completed and, indeed, did not ask defendant about the Flagg homicide, are
supported by the record and are entitled to our deference.
We thus affirm the denial of defendant's motion to suppress evidence
substantially for the reasons set forth in Judge Cifelli's well-reasoned decision.
II.
Defendant also argues the trial judge erred in instructing the jury. He first
contends the trial court improperly instructed the jury that it could convict
defendant of felony murder on the basis of being a co-conspirator to robbery,
because conspiracy to commit robbery is not a predicate offense to felony
murder. Relying on State v. Grey, 147 N.J. 4 (1996), defendant contends the
instructions did not clearly inform the jury that if it found defendant guilty as
only a co-conspirator to robbery, it could not also find him guilty of felony
murder.
Defendant did not raise any objection to the instruction to the trial judge,
and we previously recognized, "[t]he appropriate time to object to a jury charge
is 'before the jury retires to consider its verdict.'" State v. Funderburg, 225 N.J.
66, 79 (2016) (quoting R. 1:7-2). As such, we review for plain error. Ibid.
Under that standard, the error will be disregarded "unless it is of such a nature
A-1141-17T3
10
as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. The
error "must be sufficient to raise 'a reasonable doubt . . . as to whether the error
led the jury to a result it otherwise might not have reached.'" Funderburg, 225
N.J. at 79 (alteration in original) (quoting State v. Jenkins, 178 N.J. 347, 361
(2004)).
In Grey, our Supreme Court perpended the predicate offenses for felony
murder listed in N.J.S.A. 2C:11-3(a)(3), and recognized "the substantive crime
of conspiracy is not a predicate offense for felony murder." 147 N.J. at 15. As
such, the Court mandated, "[i]n felony-murder cases, courts should instruct
juries that they may not convict a defendant of felony murder unless they convict
the defendant of the underlying offense that is a predicate to the felony-murder
conviction." Id. at 16.
Viewing the entire jury charge as a whole, Boryszewski v. Burke, 380 N.J.
Super. 361, 374 (App. Div. 2005), including the instructions on the separate
charges of conspiracy to commit robbery (count one) and robbery (cou nt two),
we discern Judge James W. Donohue followed that mandate in instructing the
jury:
You cannot find [defendant] guilty of felony murder
unless you first find him guilty, beyond a reasonable
doubt, o[f] having committed or attempting to commit
the crime of robbery as charged in count two.
A-1141-17T3
11
I have previously defined for you the elements of
conspiracy to commit robbery as charged in count one
of the indictment. Conspiracy to commit robbery is a
separate offense from robbery and cannot be the basis
of a conviction of felony murder. Therefore, if you find
[defendant] guilty, beyond a reasonable doubt of
conspiracy to commit robbery, as charged in count one,
but you find the defendant not guilty of robbery as
charged in count two, then you must find him not guilty
of felony murder.
The judge—in accordance with the Grey Court's determination that "[t]he
felony murder charge required that the jurors first find that defendant was
'engaged in the commission of [the predicate offense]' (emphasis added) for the
jurors to convict of felony murder[,]" 147 N.J. at 15 (emphasis in original)—
told the jury on several occasions that the State was required to "prove beyond
a reasonable doubt that [defendant] was engaged in the commission of, or
attempt to commit, or flight after committing , or attempting to commit the crime
of robbery[.]" And Judge Donohue explicitly instructed the jury, "You cannot
find [defendant] guilty of felony murder unless you first find him guilty, beyond
a reasonable doubt, [of] having committed or attempting to commit the crime of
robbery as charged in count two" of the indictment.
We disagree with defendant's contention that Grey prohibits a conviction
for felony murder if a defendant is guilty of the predicate offense as a co -
conspirator. The Court acknowledged the plain language of the felony-murder
A-1141-17T3
12
statute did not list the substantive crime of conspiracy. Ibid. Robbery, however,
is a listed predicate offense, N.J.S.A. 2C:11-3(a)(3), and the jury properly
considered—in accordance with the judge's instructions—if defendant was
engaged in the commission of the robbery.
Judge Donohue's instruction conveyed the law and was unlikely to
confuse or mislead the jury; as such, we will not reverse. Boryszewski, 380 N.J.
Super. at 374. We perceive no error, much less one that "is of such a nature as
to have been clearly capable of producing an unjust result[.]" R. 2:10-2.
We also view defendant's other jury-instruction argument under that plain
error standard as he did not lodge any objection to the reckless-manslaughter
instruction. Defendant argues the instruction was confusing because the judge
"separated the charge on accomplice liability from the substantive offenses,"
and then, in the context of the substantive offenses, used the term "a person for
whom he is legally responsible" instead of the words "accomplice" or "co-
conspirator." Defendant contends the instruction left the jury in a quandary as
to how to reconcile the purposeful state of mind required to impose accomplice
liability with the reckless state of mind it considered in its deliberations on
manslaughter. He also argues that the accomplice liability instruction "directed
the jury to consider whether defendant had a purpose to promote a reckless act."
A-1141-17T3
13
We determine defendant's arguments regarding the manslaughter jury
instruction are without sufficient merit to warrant discussion in this opinion. R.
2:11-3(e)(2). The jury charge paralleled the Model Jury Charge on reckless
manslaughter, and "[i]t is difficult to find that a charge that follows the Model
Charge so closely constitutes plain error." Mogull v. CB Commercial Real
Estate Grp., 162 N.J. 449, 466 (2000). See Model Jury Charges (Criminal),
"Reckless Manslaughter (N.J.S.A. 2C:11-4(b)(1))" (rev. Mar. 22, 2004). We
add only that Judge Donohue made clear that "accomplice liability [was] not to
be considered" in the jury's deliberations on count three, which included reckless
manslaughter as a lesser-included crime to murder. He specified at the start of
his instruction on count three that the State alleged defendant committed murder
as a principal, "or that another for whom he is legally responsible as a co-
conspirator committed" the murder. (Emphasis added). Thus, any reference in
the reckless manslaughter instruction to a person for whom defendant was
legally responsible did not, contrary to defendant's contention, include an
accomplice.
Affirmed.
A-1141-17T3
14