STATE OF NEW JERSEY VS. RICO PARKS(12-06-0475, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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

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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.

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 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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