STATE OF NEW JERSEY v. JEROME L. FAUCETTE

Annotate this Case

(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6123-11T3

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION

Plaintiff-Respondent, January 15, 2015

v. APPELLATE DIVISION

JEROME L. FAUCETTE, a/k/a
LEROY DANIEL THOMAS,

Defendant-Appellant.
_______________________________

Submitted September 15, 2014 - Decided January 15, 2015

Before Judges Lihotz, Espinosa and
Rothstadt.

On appeal from the Superior Court of New
Jersey, Law Division, Burlington County,
Indictment No. 08-08-0865.

Joseph E. Krakora, Public Defender, attorney
for appellant (Frank M. Gennaro, Designated
Counsel, on the brief).

John J. Hoffman, Acting Attorney General,
attorney for respondent (Jane C. Schuster,
Deputy Attorney General, of counsel and on
the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

In reviewing the Law Division's order denying defendant's

motion to suppress his custodial statement, we consider not only
whether defendant's statement was voluntarily and knowingly

made, but also whether the fourteen-day break-in-custody period

following a defendant's invocation of the right to counsel,

announced in Maryland v. Shatzer,
559 U.S. 98,
130 S. Ct. 1213,

175 L. Ed. 2d 1045 (2010), and applied by our Supreme Court in

State v. Wessells,
209 N.J. 395 (2012), must also be applied

when a defendant invokes the right to remain silent. In

Shatzer, the United States Supreme Court specifically recognized

an enhanced protective period must follow a break in custody

caused by a suspect's invocation of the right to counsel. We

conclude such an extensive period of protection need not

accompany a break in custody caused by a defendant's request to

cease the interrogation.

Defendant Jerome L. Faucette was charged under Indictment

No. 08-08-0865 with first-degree offenses of felony murder,

N.J.S.A. 2C:11-3(a)(3) (count one); and robbery,
N.J.S.A.

2C:15-1 (count two). The charges stem from an incident

occurring on April 14, 2008, when defendant acted as the driver

for co-defendant Terrance S. Clemons, who robbed and shot a gas

station attendant. Following trial, a jury acquitted defendant

of felony murder, but found him guilty of first-degree robbery.

Defendant was sentenced to thirteen years in prison, subject to

2 A-6123-11T3
the 85% parole ineligibility period required by the No Early

Release Act (NERA),
N.J.S.A. 2C:43-7.2.

Defendant appeals from his conviction and sentence arguing:

POINT ONE
DEFENDANT'S MAY 15, 2008 STATEMENT WAS NOT
THE PRODUCT OF A VOLUNTARY, KNOWING, AND
INTELLIGENT WAIVER OF HIS RIGHT TO REMAIN
SILENT AND, THEREFORE, SHOULD HAVE BEEN
SUPPRESSED BY THE TRIAL COURT.

A. Waiver of Miranda Rights.

B. Defendant Invoked his Right to Remain
Silent.

C. Fruit of the Poisonous Tree.

POINT TWO
THE PUBLICATION TO THE JURY OF GRAPHIC
AUTOPSY PHOTOGRAPHS, WHICH WERE NOT ADMITTED
INTO EVIDENCE, WAS ERROR WHICH UNDULY
PREJUDICED DEFENDANT.

POINT THREE
THE TRIAL COURT WRONGFULLY DENIED
DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT FOUR
DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.

In a separately filed supplemental brief, defendant presents

these issues:

ISSUE I
APPELLANT'S CONVICTION FOR FIRST DEGREE
ROBBERY ON BASIS OF ACCOMPLICE LIABILITY
THEORY REQUIRES REVERSAL FOR INSUFFICIENCY
OF EVIDENCE.

ISSUE II
THE TRIAL COURT'S JURY INSTRUCTIONS ON
ACCOMPLICE LIABLITY FOR FIRST DEGREE ROBBERY

3 A-6123-11T3
WERE INSUFFICIENT, DEFECTIVE AND ERRONEOUS
AND THE ERROR WAS SO FUNDAMENTAL AS TO
CONSTITUTE PLAIN ERROR (PLAIN ERROR).

ISSUE III
DEFENDANT'S MAY 15, 2008 STATEMENT WAS THE
PRODUCT OF PSYCHOLOGICAL COERCION AND WAS
NOT THE PRODUCT OF A VOLUNTARY, KNOWING AND
INTELLIGENT WAIVER OF HIS RIGHT TO REMAIN
SILENT AND THEREFORE SHOULD HAVE BEEN
SUPPRESSED BY THE TRIAL COURT.

Following our review of these issues, in light of the

record and the applicable law, we affirm.

In Point One and Issue III, defendant challenges the

voluntariness of his custodial statements. These facts are

taken from the record of the three-day Miranda1 hearing, during

which Detective Stephen Craig was the sole witness and the State

admitted DVD recordings of defendant's custodial interviews.

On May 14, 2008, Detective Craig and another police

detective met defendant at his place of employment around 7:00

p.m. and asked if he would come with them for questioning. Once

at the police station, the detectives advised defendant of his

Miranda rights.

At approximately 8:00 p.m., defendant stated he "d[id not]

want to be [t]here" and "[he] want[ed] to be at work working, go

1
Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966).

4 A-6123-11T3
home and get in [his] bed and then wake up and do the whole same

thing again." Thereafter, he asserted, "I ain't going to talk

[to] you I just want to leave, my God," and "I'm done talking

yo." Despite these protests, which were repeated, Detective

Craig continued the interrogation, which lasted for seven hours.

Police did not charge defendant and drove him home at

approximately 2:30 a.m.

That same day, police returned to defendant's home at

approximately 4:30 p.m. and asked him to accompany them to the

prosecutor's office. Police had requested a warrant for

defendant's arrest, which had not yet been issued. Defendant

agreed to go with the officers and his mother followed in her

car. Defendant's mother stayed in the lobby, while defendant

was taken into an interview room.

Detective Craig advised defendant of his Miranda rights,

"read[ing] them aloud from a standard Miranda card," which

defendant signed and dated.2 Upon receipt of the warrant, he

also informed defendant he was under arrest for "murder and

. . . related offenses" and provided a copy of the warrant

reflecting the charges. The detectives also confronted

defendant with information police had gathered from other

witnesses since defendant's earlier interview.

2
Defendant did not execute a waiver of his Miranda rights.

5 A-6123-11T3
Specifically, Detective Craig learned Detective Brian

Weisbrot, the lead investigator on the case, questioned Ms.

Spencer, defendant's former girlfriend, and Mr. Gaddy,3 defendant's

friend. Spencer told police defendant admitted he and Clemons

were involved in the robbery and shooting. Spencer then

revealed this to Gaddy, who confirmed what she had told him.

Defendant responded emotionally to this news, screaming,

crying, protesting his innocence, insisting he was telling the

truth and pacing around the room. After calming down, and upon

further police interrogation, defendant described his role in

the gas station robbery and killing. Defendant admitted he knew

Clemons intended to rob the gas station because he told him

"it's easy . . . it's an easy spot to go get." Despite

initially declining, defendant agreed to "just drive [Clemons]

around." At 11:00 p.m., he dropped Clemons off at the gas

station, and waited in his vehicle for Clemons to "go[] and do[]

it." Clemons returned to the car and during the drive back,

told defendant "he shot the guy," meaning the attendant, stating

"[he] shot him in his leg and then he was on the ground and he

. . . just shot him" in the head. The victim later died of the

inflicted gunshot wounds.

3
Mindful that our opinion will be posted on the internet, we
have omitted the full names of witnesses wherever possible to
protect their privacy.

6 A-6123-11T3
Defendant told police, shooting the attendant was not part

of the plan. He insisted "[he] didn't know [Clemons] had a gun

on him" and told detectives he did not take any of the proceeds

of the robbery. When asked if Clemons wore a mask, defendant

responded Clemons had a "bulgy pocket," which he thought "could

have had a mask in there . . . ." Defendant also recounted

driving Clemons to his girlfriend's house after the shooting,

and encountering Spencer, who he told about the robbery,

including how "[Clemons] shot somebody."

Throughout the interview, defendant did not appear to be

under the influence of alcohol or controlled substances, nor did

he display "visual signs of injury or any complaint of any type

of injury that would have precluded [the police] from speaking

with him." Detective Craig noted defendant, "appeared to be

well rested," "cognizant of the communications [the detectives]

were having with him" and to understand the rights as explained

to him. According to Detective Craig, defendant declined to

invoke his right to remain silent and agreed to answer questions

without an attorney present.

In a written statement accompanying his order, the Law

Division judge credited Detective Craig's testimony. The judge

found, in the first meeting with police, defendant expressed a

desire to end the interview after one hour of questioning.

7 A-6123-11T3
Thereafter, the interview "bec[ame] an interrogation" and

"continued in a persistent, relentless fashion" and was "laced

with . . . defendant's continued protestations . . . ." Thus,

the court found "[p]atently, beginning at 8:03 p.m., the

detectives failed to comply with the dictates of Miranda," a

point the State conceded.

Nevertheless, despite the "flagrant" Miranda violations on

May 14, the "extensive" questioning that night "did not deprive

. . . defendant of the normal use of his faculties, nor did it

constitute psychological manipulation that diminished his free

will," when questioned a second time. Regarding the second

interview, the trial court made the following factual findings:

Initially, . . . defendant, often
screaming or crying, denied any involvement
or saying anything to Spencer about the gas
station crimes. The detectives confronted
. . . defendant with his inconsistent
statements or failure to disclose, while
prying from him gradual admissions of
involvement. At no time did he make any
request, even a subtle one, to terminate the
interrogation or to have a lawyer. Although
he probably had no more than five hours
sleep the previous night, he exhibited no
signs of sleep deprivation, mental
incapacity or being physically overwhelmed.

Mid-way through the interrogation, the
defendant, becalmed, gave narrative
statements during an eight-minute segment,
admitting that he served as the driver for
Clemons who committed a robbery at the . . .
gas station, and the later robbery-murder at
the . . . [g]as station. Throughout the

8 A-6123-11T3
balance of the interrogation . . . defendant
was calm and cooperative.

The judge reasoned that neither the length of the

interviews nor their proximity in time nullified the

voluntariness of defendant's statements made in the second

interview. The judge found statements in that interview were

voluntarily made, as "[a] review of the recorded interrogations

reveal[ed] a defendant of normal intelligence, free of any

indicia of influential alcohol or medications, able to

understand the questions posed and respond to them." Moreover,

the judge determined defendant's May 15 statement did not

constitute "fruit of the poisonous tree," noting he was again

read his Miranda rights prior to the second interview; the

interviews were separated by more than fourteen hours; and

defendant was confronted with additional evidence at the later

interview. Accordingly, the judge concluded "[t]he record

reflect[ed] compliance with Miranda" during the May 15

interview, as "defendant made no request to terminate

questioning or ask for a lawyer."

The December 14, 2011 order suppressed defendant's

statements made after 8:03 p.m. on May 14 until the early

morning hours of May 15. However, the balance of defendant's

statements to police were deemed admissible, including his May

9 A-6123-11T3
15 disclosure of his role in the crime made after a second

issuance of Miranda warnings.

The principal issue on appeal is whether, examining the

totality of the circumstances, defendant's second custodial

statement was freely and voluntarily given. Defendant argues

his admission "was extracted in violation of [his] right to

remain silent" and contends it was the "product of government

coercion[,] which . . . overcame [his] will." Defendant also

posits the judge erred because the initial questioning, which

the State conceded violated Miranda's protections, "cannot

neatly be separated" from the subsequent interview, rendering

any statements made during this latter interview "fruit of the

poisonous tree."

"[A] finding of compliance with Miranda and voluntariness

turn[s] on factual and credibility determinations . . . ."

State v. W.B.,
205 N.J. 588, 603 n.4 (2011). In our review, we

determine whether there is "sufficient credible evidence in the

record to sustain the trial judge's findings and conclusions."

Ibid. If so, our "task is complete and [we] should not disturb

the result . . . ." State v. Johnson,
42 N.J. 146, 162 (1964).

In our review, we defer to the trial judge's factual findings

that are "'substantially influenced by his [or her] opportunity

to hear and see the witnesses and [develop a] feel of the case,

10 A-6123-11T3
which a reviewing court cannot enjoy.'" State v. Davila,
203 N.J. 97, 109-10 (2010) (quoting Johnson, supra,
42 N.J. at 161)

(internal quotation marks omitted). However,

when the trial court's sole basis for its
findings and conclusions is its evaluation
of a videotaped interrogation, there is
little, if anything, to be gained from
deference. In that circumstance, . . .
appellate courts are not confined to a
review of a transcript nor obliged to defer
to the trial court's findings, but may
consider the recording of the event itself.

[State v. Diaz-Bridges,
208 N.J. 544, 565-66
(2011) (citing State v. Alston,
204 N.J.
614, 626 n.2 (2011)).]

Importantly, if necessary, this court will not "hesitate to

make new fact findings on the record in a situation where the

findings are not exclusively factual but intertwined with legal

conclusions drawn from the Miranda case and its progeny." State

v. Godfrey,
131 N.J. Super. 168, 174-75 (App. Div. 1974) (citing

State v. Yough,
49 N.J. 587, 596 (1967)), aff'd,
67 N.J. 80

(1975). Generally, if "a trial court's findings [are] so

clearly mistaken 'that the interests of justice demand

intervention and correction[,]' . . . an appellate court

properly reviews 'the record as if it were deciding the matter

at inception and make[s] its own findings and conclusions.'"

State v. Hreha,
217 N.J. 368, 382 (2014) (quoting Johnson,

supra,
42 N.J. at 162). Further, we are not bound by a trial

11 A-6123-11T3
court's resolution of legal issues, which remain subject to our

de novo review. State v. Shaw,
213 N.J. 398, 411 (2012).

Defendant's constitutional challenge invokes his right to

remain silent. "The Fifth Amendment privilege against self-

incrimination, made applicable to the states through the

Fourteenth Amendment, provides that '[n]o person . . . shall be

compelled in any criminal case to be a witness against

himself.'" State v. P.Z.,
152 N.J. 86, 100 (1997) (quoting U.S.

Const. amend. V). Under New Jersey law, "the right against

self-incrimination is founded on a common-law and statutory

. . . basis," but similarly establishes "'no person can be

compelled to be a witness against himself.'" State v. Reed,
133 N.J. 237, 250 (1993) (citation omitted). Attendant to this

right is the "absolute right to remain silent while under police

interrogation . . . ." Ibid.

Because the privilege against self-incrimination is not

self-implementing, the right is safeguarded through the use of

Miranda's "'prophylactic-procedural safeguards . . . .'" State

v. Knight,
183 N.J. 449, 461 (2005) (quoting State v. Burris,

145 N.J. 509, 520 (1996)). Without question, "[c]onfessions

obtained . . . during a custodial interrogation are barred from

evidence unless the defendant has been advised of his or her

constitutional rights." Ibid. (citing Miranda, supra, 384 U.S. 12 A-6123-11T3
at 444,
86 S. Ct. at 1612,
16 L. Ed. 2d at 707). Moreover, it

is the State which bears the burden of "prov[ing] the

voluntariness of a confession beyond a reasonable doubt." State

v. Galloway,
133 N.J. 631, 654 (1993).

Our "inquiry begins with whether the suspect invoked his or

her right to remain silent." Diaz-Bridges, supra,
208 N.J. at
564. "'If [an] individual indicates in any manner, at any time

prior to or during questioning, that he [or she] wishes to

remain silent, the interrogation must cease.'" State v.

Hartley,
103 N.J. 252, 263 (1986) (quoting Miranda, supra,
384 U.S. at 473-74,
86 S. Ct. at 1627-28,
16 L. Ed. 2d at 723).

"Although a clear assertion of [the] right must of course be

scrupulously honored, officers confronted with an ambiguous

invocation are authorized to make inquiry in order to clarify

the suspect's intent." Diaz-Bridges, supra,
208 N.J. at 569.

As it relates to the invocation of the right
to remain silent, both the words used and
the suspect's actions or behaviors form part
of the inquiry into whether the
investigating officer should have reasonably
believed that the right was being asserted.
As a result, the court's inquiry necessarily
demands a fact-sensitive analysis to discern
from the totality of the circumstances
whether the officer could have reasonably
concluded that the right had been invoked.

[Id. at 565.]

13 A-6123-11T3
When assessing the validity of a defendant's waiver of his

right to remain silent, a court considers the totality of the

circumstances, including both the characteristics of the

defendant and the nature of the interrogation. Ibid. Relevant

factors "include the suspect's age, education and intelligence,

advice concerning constitutional rights, length of detention,

whether the questioning was repeated and prolonged in nature,

and whether physical punishment and mental exhaustion were

involved." Galloway, supra,
133 N.J. at 654.

In this matter, defendant maintains "during the May 15[]

interrogation, he both clearly and equivocally invoked his right

to remain silent, and . . . therefore, the police should have

terminated the interrogation." For support, he emphasizes that

when the second interview commenced, he expressed an

unwillingness "to be here." Defendant presents several reasons

he believes demonstrate his statement was involuntary. We have

considered and rejected each of these arguments.

The important facts influencing our review are repeated.

Defendant willingly accompanied police to the prosecutor's

office for further questioning. He rode with police,

unrestrained, and was taken to an interview room. Defendant was

left alone for a few minutes, then Detective Craig and his

colleagues entered the room and read defendant his rights.

14 A-6123-11T3
Defendant initialed the Miranda card, acknowledged it was read

to him and noted he understood the rights, including the right

to remain silent and the right to terminate questioning at any

time. By then, Detective Craig had obtained the arrest warrant

and told defendant he was charged with armed robbery and murder.

Defendant initially could not control his emotions. He

repeatedly denied culpability and insisted he had been truthful

and Spencer was lying. However, as police revealed the evidence

gathered, defendant changed his position and began to relate

those facts evincing his participation. Detective Craig

informed defendant both Clemons and Spencer had implicated him.

He revealed Spencer's statement included the number of times and

locations where the attendant was shot, information not made

public, and only available to Spencer because defendant had told

her. Detective Craig repeated he had no interest in defendant's

denials, assertions of ignorance or attempts to minimize his

involvement in the incident. He said he did not believe

defendant's claims and gave him "one last chance" to state his

involvement and provide new information. At that point

defendant confessed.

Defendant never requested the questioning cease. More

important, he never invoked his right to counsel. Rather, he

continued the interview, offering the events as he knew them.

15 A-6123-11T3
As the conversation continued, defendant gradually admitted he

drove Clemons and "dropp[ed] him off" at the service station.

Defendant admitted he asked Clemons "what he was going to do,"

and Clemons responded, "I'm about to go get some money." He

also told the detectives, Clemons said "he shot the man and he

probably killed him."

As the trial judge noted, defendant, although emotional

and, at times crying and screaming because he was arrested and

going to jail, never exhibited fatigue, confusion or any

inability to comprehend what was happening. He understood his

rights, understood he was charged with first-degree offenses and

clearly understood police spoke to Clemons and Spencer. Police

never threatened or coerced defendant; they told defendant they

thought he was lying, believed he was involved and suggested he

look out for himself. When told he had one last chance to tell

the truth, defendant sat calmly and clearly responded to the

detectives' questions.

Reviewing the DVD and Detective Craig's testimony, we

concur with the trial judge that defendant did not invoke his

right to remain silent. He was not coerced, but ultimately

convinced to confess his role to aid his self-interests. He was

calm and related detailed information in response to the

detectives' inquiries. Considering the words used and

16 A-6123-11T3
defendant's behaviors as depicted on the DVD, we find defendant

waived his right to remain silent. See Diaz-Bridges, supra,
208 N.J. at 565. Accordingly, we conclude he knowingly and

voluntarily provided his statement of his role in the crimes and

interaction with Clemons on April 14, 2008.

Addressing defendant's contention he lost his ability to

make "an intelligent evaluation of the situation and [form] a

voluntarily intention to make a statement without the assistance

of counsel" after being told he was charged with murder, we are

not persuaded. "[T]he fact that [a] defendant was distressed

and emotional is not by itself sufficient to render his [or her]

confession involuntary." Galloway, supra,
133 N.J. at 657.

Defendant argues his confession was "the product of

intimidation, coercion and deception," as police capitalized on

his fear of Clemons' retaliation against him or his mother,

essentially forcing him to talk. He cites as a threat,

Detective Craig's comment he would "drop [him] downstairs,"

meaning take him to the county jail where Clemons was being

detained, "if he didn't start talking."

Having considered the events depicted on the DVD, we reject

defendant's argument as lacking merit. Use of psychological

tactics is not prohibited. Miller v. Fenton,
796 F.2d 598, 605

(3d Cir. 1986). "Unlike the use of physical coercion, . . . use

17 A-6123-11T3
of a psychologically-oriented technique during questioning is

not inherently coercive." Galloway, supra,
133 N.J. at 654.

Such ploys may "play a part in the suspect's decision to

confess, but so long as that decision is a product of the

suspect's own balancing of competing considerations, the

confession is voluntary." Miller, supra, 796 F.2d at 605. Cf.

State v. Patton,
362 N.J. Super. 16, 32 (App. Div.) ("[A] police

officer in the interrogation process may, by the officer's

statements, make misrepresentations of fact or suggest that

evidence in the form of reports or witnesses exist that will

implicate a suspect."), certif. denied,
178 N.J. 35 (2003).

Here, no physical force or threats of same were made. The

interview was not lengthy, lasting a little more than an hour.

During the interrogation, there were no signs defendant was

fatigued, confused or under the influence of intoxicating

substances. Detective Craig's comments expressed frustration

with defendant's changing story, but the remark "[w]e're not

offering to do anything for you other than drop you downstairs

in the middle of the population and you fend for yourself,"

merely stated police responsibility to effectuate the arrest

warrant and place defendant in jail.

As to the police discussion of Clemons' past violence and

affiliation with a gang, these facts were known to defendant,

18 A-6123-11T3
who admitted he had known Clemons for a long time. Police

acknowledgement and discussion of these facts was not the "'very

substantial' psychological pressure[]" necessary for finding a

defendant's will was overborne. State v. Cook,
179 N.J. 533,

563 (2004). Accordingly, we reject the notion Detective Craig's

comments acted to "strip[] defendant of his capacity for self-

determination and actually induce the incriminating statement

. . . ." State v. Fletcher,
380 N.J. Super. 80, 89 (App. Div.

2005) (citation and internal quotation marks omitted).

Defendant suggests requests to have his mother present in

the room constituted equivocal assertions of his right to remain

silent. We disagree.

Before Detective Craig informed him of the charges,

defendant, who was age twenty-two, asked "[w]here's my mom," as

he thought "my mom[] is gonna be here." Once informed of his

arrest, defendant exclaimed, "I thought you were going to be

bringing my mom in here." Subsequent to revealing his role in

the robbery, defendant requested "[c]an my mom be in here while

. . . we do this, please?" At that point, Detective Craig

replied "she's a little tied up right now," but later he would

"take a break at a certain point [and he would] go find out

where she's at [sic] . . . ." Toward the end of the interview,

defendant again asked for his mother.

19 A-6123-11T3
The Court recently

considered the analytical implications of
requests by an adult to speak with someone
other than an attorney, concluding that such
requests do not imply or suggest that the
individual desires to remain silent. See,
e.g., State v. Martini,
131 N.J. 176, 228-32
(1993) (concluding that defendant's request
to speak with paramour before "lay[ing] out
his entire involvement" was not an
invocation of right to remain silent); State
v. Timmendequas,
161 N.J. 515, 616 (1999)
(concluding that request to speak with
housemate was not, under the circumstances,
invocation of right to remain silent).

[Diaz-Bridges, supra,
208 N.J. at 567.]

The Court explained, "[a]lthough the mere request by an adult to

speak with a parent does not equate to an invocation of the

right to remain silent, it does necessitate a review of the

context in which the request was made." Ibid. Often "it [is]

not the request to speak with the parent, but that request in

the context of other facts that [gives] rise to the conclusion

that the right to silence had been invoked." Id. at 568.

Here, defendant made an inquiry of his mother's whereabouts

and repeated his belief she was to be present. Detective Craig

told him he would check during a break and later advised

defendant could see his mother before he was placed in jail.

Nothing about defendant's requests reflect continuation of the

conversation was contingent on his mother's presence. Rather,

defendant's statements suggest a desire for support and cannot

20 A-6123-11T3
be construed as an assertion of his right to remain silent. See

id. at 556, 572 (concluding the defendant's "frequent[] and

fervent[]" expressions of his desire to speak with his mother

over the course of a ten-hour interview did not amount to an

invocation of his right to remain silent).

Defendant's final suggestion is the judge mistakenly found

he executed a waiver of his Miranda rights, which led to the

erroneous conclusion his statement was voluntary. We are not

persuaded.

There was no written Miranda waiver executed. However,

"[f]ailure to sign a form of waiver does not preclude a finding

of waiver, nor does it make further questioning a violation of

[a] defendant's constitutional rights." State v. Warmbrun,
277 N.J. Super. 51, 62 (App. Div. 1994) (citation and internal

quotation marks omitted), certif. denied,
140 N.J. 277 (1995).

Defendant orally acknowledged he understood his rights,

including the rights to not say a word and to cease the

interview at any time.

The trial judge's conclusions were made after considering

the totality of the circumstances presented. State v. Nyhammer,

197 N.J. 383, 402, cert. denied,
558 U.S. 831,
130 S. Ct. 65,

175 L. Ed. 2d 48 (2009). They were not based, as defendant

suggests, on a mistaken factual finding he had executed a

21 A-6123-11T3
written waiver. We determine the facts support the conclusion

that defendant knew and understood his rights, which he

intelligently, knowingly and voluntarily waived in admitting his

culpability.

Although not directly raised, we consider whether the

minimum break in custody delineated in Shatzer and applied in

Wessells must be imposed under these facts where the break in

custody occurs when a defendant seeks to end the interrogation.

Following our review, we conclude it does not. Wessells adopted

the rule announced in Shatzer, regarding custodial statements

made following the invocation of the right to counsel.

Wessells, supra,
209 N.J. at 413. In Shatzer, the United States

Supreme Court recognized what had become known as an exception

to the longstanding Edwards rule, which mandates interrogations

cease once a suspect invokes the right to counsel, until counsel

is provided or the suspect later re-initiates communication.

Edwards v. Arizona,
451 U.S. 477, 484-85,
101 S. Ct. 1880, 1885,

68 L. Ed. 2d 378, 386 (1981). Jurisprudence developed to

consider a "break-in-custody exception" to the bright-line rule

Edwards established, whereby the coercive taint of interrogation

and presumptive involuntariness of statements made during

reviewed interrogation were eliminated. Wessells, supra,
209 N.J. at 404-07. Specifically, the issue considered was whether

22 A-6123-11T3
a break in custody followed by a waiver of rights nullified the

prior invocation of the right to counsel and allowed police to

renew interrogation. See id. at 404-05 (discussing post-Edwards

holdings addressing the break-in-custody exception).

In Shatzer, the United State Supreme Court defined the

scope of this required break in custody. The Court held any

statements made by a defendant less than fourteen days following

invocation of the right to counsel were presumptively

involuntary and must be suppressed. Shatzer, supra,
559 U.S. at
111,
130 S. Ct. at 1223,
175 L. Ed. 2d at 1057. See also

Edwards, supra,
451 U.S. at 484,
101 S. Ct. at 1884,
68 L. Ed. 2d at 386 (noting "additional safeguards are necessary when the

accused asks for counsel"). As discussed, our Court in Wessells

adopted this fourteen-day standard to define the break-in-

custody exception, once the right to counsel had been invoked.

Wessells, supra,
209 N.J. at 413.

The rules in Shatzer and Wessells were limited to the right

to counsel. Although the opportunity presented itself, the

United States Supreme Court and our Supreme Court did not extend

the fourteen-day break-in-custody requirement to invocation of

other constitutional protections. A review of precedents leads

to the conclusion Shatzer's fourteen-day rule is specific to the

23 A-6123-11T3
right to counsel and is not generally imposed if a defendant

asserts the right to remain silent.

The Fifth Amendment right to counsel is distinguishable

from the right against self-incrimination, and actually is an

additional protection against self-incrimination. See Michigan

v. Mosley,
423 U.S. 96, 104 n.10,
96 S. Ct. 321, 326 n.10,
46 L. Ed. 2d 313, 321 n.10 (1975) (acknowledging the invocation of the

right to counsel provides additional protection against self-

incrimination); State v. Reed,
133 N.J. 237, 258, 262 (1993)

(noting the right to counsel is distinct from the right against

self-incrimination). It is well-settled the State has the

burden to show a defendant relinquished the right to counsel.

State v. McCloskey,
90 N.J. 18, 28 (1982). This burden is

"heavy" and will not be implied. Ibid. Further, the

administration of new Miranda warnings has been held

insufficient to provide the necessary safeguards to ensure a

waiver is valid once legal representation is requested. Id. at

27; see also Mosley, supra,
423 U.S. at 104 n.10,
96 S. Ct. at
326 n.10, 46 L. Ed. 2d at 321 n.10. On the other hand,

safeguards for self-incrimination alone have not been so

circumscribed.

A voluntary intelligent statement by a defendant fully

informed of his rights is admissible. "[A] suspect is always

24 A-6123-11T3
free to waive the privilege and confess to committing crimes,"

so long as the waiver is not the product of police coercion.

State v. Presha,
163 N.J. 304, 313 (2000).

Following our assessment of the totality of circumstances

surrounding the arrest and interrogation, including such factors

as "the suspect's age, education and intelligence, advice as to

constitutional rights, length of detention, whether the

questioning was repeated and prolonged in nature and whether

physical punishment or mental exhaustion was involved," as well

as defendant's "previous encounters with the law," State v.

Miller,
76 N.J. 392, 402 (1978), we reject defendant's argument

that his "second statement represented nothing more than a

continuation of the first." We discern no due process

violations by police in conducting the May 15 interview.

Substantially for the reasons identified by the trial

judge, we conclude the second interrogation, preceded by newly

administered Miranda warnings, resulted in defendant's voluntary

uncoerced choice to reveal his involvement in the crimes under

investigation. There is no poisonous taint from the May 14

Miranda violations requiring exclusion of his confession.

Importantly, defendant never invoked the right to counsel,

which would require the extra protections discussed in Shatzer

and Wessells. Here, the break in custody resulted because

25 A-6123-11T3
defendant said nothing inculpatory during the first interview

and was allowed to leave. We recognize that interrogation

should have ended sooner, but ultimately defendant was taken

home.

The first and second interviews were separated by fourteen

hours, during which defendant was not in custody, but home and

free to move about as he chose. When police asked him to

accompany them to the prosecutor's office because Detective

Craig wanted to ask him additional questions, he freely agreed,

fully cognizant of the subject matter and the fact that police

wanted to question him further. Prior to commencing any

questioning, Detective Craig carefully read each right afforded

defendant under Miranda, and asked him each time if he

understood that right. Defendant acknowledged he understood his

rights both orally and by initialing the Miranda card. Once

police informed defendant they obtained sufficient information

showing he was with Clemons during the robbery and murder,

satisfying the requirements to secure an arrest warrant,

defendant confessed. We conclude this confession was admissible

and the judge properly denied defendant's motion to suppress.

Defendant's next argument advanced the exclusion of his

custodial statement invoking the "fruit of the poisonous tree"

doctrine. Defendant maintains the "egregious constitutional

26 A-6123-11T3
violations" of the initial interview tainted the subsequent

questioning and his custodial statement is inadmissible as

"fruit of the poisonous tree." Following our review, we

conclude this argument is unavailing.

"The fruit-of-the-poisonous-tree doctrine denies the

prosecution the use of derivative evidence obtained as a result

of a Fourth or Fifth Amendment violation." State v. O'Neill,

193 N.J. 148, 171 n.13 (2007) (citations omitted). Our Supreme

Court noted the doctrine as developed by United States Supreme

Court holdings had "'never gone so far as to hold that making a

confession under circumstances which preclude its use,

perpetually disables the confessor from making a usable one

after those conditions have been removed.'" Ibid. (quoting

United States v. Bayer,
331 U.S. 532, 540-41,
67 S. Ct. 1394,

1398,
91 L. Ed. 1654, 1660 (1947)). "Under either state or

federal law, the critical determination is whether the

authorities have obtained the evidence by means that are

sufficiently independent to dissipate the taint of their illegal

conduct." State v. Johnson,
118 N.J. 639, 653 (1990).

In this regard, "when law-enforcement authorities obtained

an initial confession in violation of the defendant's common-law

privilege against self-incrimination," a subsequent confession

made despite properly informing a defendant of his rights may be

27 A-6123-11T3
excluded. Id. at 652. The critical factual examination is

whether a second statement was the product of unconstitutional

police conduct tainting the first, considering "the time between

confessions, any intervening circumstances, whether there was a

change in place, whether the defendant received an adequate

warning of his rights, whether [the] defendant initiated the

second confession, the effect of his having made a confession,

and the purpose and flagrancy of police misconduct." Hartley,

supra,
103 N.J. at 283 (citation and internal quotation marks

omitted).

When viewing all facts and circumstances, we conclude, as

did the trial judge, defendant's confession was not the

culmination of coercion carrying over from the previous night,

but of his own volition upon learning the new evidence against

him. The information obtained from Spencer constitutes

"intervening circumstances" separating the tenor and outcome of

the two periods of questioning. See ibid.

As the trial judge considered, the gaps between the two

interrogations allowed defendant to freely return home to his

family. He rested and showed no signs of fatigue. Although he

had insisted on ending the May 14 examination, he freely

accompanied police during the early evening on May 15 when told

they had more questions for him. Before a single question was

28 A-6123-11T3
uttered, defendant was advised of his Miranda rights and

informed of the charges against him, as set forth in the warrant

presented. Finally, defendant had prior interactions with the

criminal justice system and repeatedly acknowledged he was aware

of and understood his rights. Defendant made no specific

inculpatory statements on May 14. Police brought defendant in

on May 15 because Spencer and information obtained during the

continued police investigation linked him to the gas station

robbery and shooting.

Based on these facts, we do not agree the two periods of

questioning were inextricably linked such that the May 15

statement was somehow tainted. Therefore, there was no evidence

wrongfully obtained that led to the additional questioning. We

conclude defendant's confession was the product of

constitutionally appropriate procedures. It did not result from

police misconduct.

II.

Defendant also challenges the introduction of graphic

autopsy photographs, during the medical examiner's testimony,

which depicted death-rendering wounds of the victim. Defendant

characterizes this evidence as "unduly inflammatory."

Succinctly, the judge's ruling allowed the photographs as a

demonstrative aid to the coroner's testimony; they were not

29 A-6123-11T3
introduced into evidence. See State v. Scherzer,
301 N.J.

Super. 363, 434 (App. Div.) ("There is nothing inherently

improper in the use of demonstrative or illustrative

evidence."), certif. denied,
151 N.J. 466 (1997).

Importantly, defendant has not provided the challenged

exhibits in the appellate record. Nonetheless, the issue does

not require discussion because no demonstrated prejudice

resulted to defendant by the use of the photographs because the

jury acquitted defendant of felony murder, showing it thoroughly

evaluated all evidence in reaching its verdict. See State v.

Dellisanti,
203 N.J. 444, 463 (2010) (noting an error did not

deprive the defendant of a fair trial where the jury ultimately

acquitted him of a related charge).

III.

Finally, we reject, as lacking merit, defendant's related

claims (1) the judge erroneously denied his motion for a new

trial, R. 3:20-1, which asserted the State failed to prove all

elements of armed robbery (Point Three); (2) the State failed to

prove each element of accomplice liability related to the armed

robbery such that his motion for acquittal should have been

granted, R. 3:18 (Issue I); and (3) the jury charge on this

offense was flawed (Issue II). The challenges key on the intent

element, as defendant argues no evidence showed he "shared the

30 A-6123-11T3
intent with . . . Clemons to commit an armed robbery." See

State v. Sims,
140 N.J. Super. 164, 173 (App. Div. 1976) ("It is

clear in New Jersey that a defendant can be held as an aider or

abettor only if he [or she] had the same criminal intent that

must be possessed by the principal wrongdoer.").

The arguments are rejected substantially for the reasons

set forth by the trial judge. Specifically, the State presented

circumstantial evidence, which if accepted by the jury, proved

defendant's knowledge and aid in completing the armed robbery of

the gas station. He knew Clemons "possessed guns" and expressed

a desire "to get money"; revealed he and Clemons selected the

gas station for the robbery because it was "an easy spot to go

get"; drove Clemons to the gas station and waited for his

return; "parked the vehicle at a location removed from any

commercial establishment"; and admitted to Spencer "we" had

committed a robbery.

"Faith in the ability of a jury to examine evidence

critically and to apply the law impartially serves as a

cornerstone of our system of criminal justice." State v.

Afanador,
134 N.J. 162, 178 (1993). "Appellate intervention is

warranted only to correct an injustice resulting from a plain

and obvious failure of the jury to perform its function." State

v. Smith,
262 N.J. Super. 487, 512 (App. Div.) (citation and

31 A-6123-11T3
internal quotation marks omitted), certif. denied,
134 N.J. 476

(1993). If the evidence presented allowed a rational jury to

find beyond a reasonable doubt the essential elements of the

crime, the court will not interfere. State v. Jackson,
211 N.J.
394, 413-14 (2012); Afanador, supra,
134 N.J. at 178.

The jury was provided with defendant's testimony disputing

his awareness Clemons was carrying a firearm when driving to the

gas station to get some money. The jury verdict signals its

rejection of his testimony as not credible and a conclusion the

significant circumstantial evidence supported defendant's

knowledge Clemons was armed. Defendant's contention the jury's

verdict rested "merely upon suspicion, speculation, or

conjecture or an[] overly attenuated piling of inference upon

inference" is rejected.

We also find unavailing defendant's suggestion the jury

charge on accomplice liability and first-degree robbery was

defective. No objection to the charge was made, requiring our

examination on appeal under the plain error rule, R. 2:10-2.

State v. Torres,
183 N.J. 554, 564 (2005). In the context of

challenges to jury charges, plain error is: "legal impropriety

in the charge prejudicially affecting the substantial rights of

the defendant and sufficiently grievous to justify notice by the

reviewing court and to convince the court that of itself the

32 A-6123-11T3
error possessed a clear capacity to bring about an unjust

result." State v. Hock,
54 N.J. 526, 538 (1969), cert. denied,

399 U.S. 930,
90 S. Ct. 2254,
26 L. Ed. 2d 797 (1970). "If a

defendant fails to object to a trial court's instructions, the

failure to challenge the jury charge is considered a waiver to

object to the instruction on appeal." State v. Maloney,
216 N.J. 91, 104 (2013). However, we will reverse if the error is

"clearly capable of producing an unjust result." R. 2:10-2.

Reviewing the charge as a whole, State v. Jordan,
147 N.J.
409, 422 (1997), we note the trial court charged first-degree

robbery, addressing the elements of
N.J.S.A. 2C:15-1(a) and (b),

as well as accomplice liability, as set forth in the Model Jury

Charges. Model Jury Charge (Criminal), "Liability for Another's

Conduct" (1995). The charge related the elements of accomplice

liability, found in
N.J.S.A. 2C:2-6(c)(1)(b) (providing that one

is legally accountable for the conduct of another when he or

she, "[w]ith the purpose of promoting or facilitating the

commission of the offense . . . [a]ids or agrees or attempts to

aid such other person in planning or committing it"). Included

also were the definitions of "aid" and "purposely." See

33 A-6123-11T
3 N.J.S.A. 2C:2-2(1); Model Jury Charge (Criminal), "Liability for

Another's Conduct" (1995).4

In delivering the accomplice liability charge, the judge

described the underlying crime as robbery, rather than armed

robbery. Defendant contends this instruction was "fatally

defective." Defendant is incorrect.

Defendant's argument asserting the crime he was accused of

was "armed robbery," ignores that first-degree robbery includes

conduct "if in the course of committing the theft the actor

attempts to kill anyone, or purposely inflicts or attempts to

inflict serious bodily injury, or is armed with, or uses or

threatens the immediate use of a deadly weapon."
N.J.S.A.

2C:15-1(b). The jury was told the State had to prove defendant

aided Clemons, who either must have "killed [the gas station

attendant] and/or [] was armed with a deadly weapon." Because

defendant could be convicted under either theory, the trial

court appropriately declined to refer to the offense as "armed

robbery."

We reject defendant's claims this charge as delivered

misstated the law or confused the jury. We conclude the charge

adequately identified the applicable accomplice liability

4
The judge distributed an outline to aid the jury "[i]n
order to facilitate [its] understanding of the [c]ourt's
instructions with regard to robbery and felony murder . . . ."

34 A-6123-11T3
principles and articulated the elements necessary for a

conviction of first-degree robbery, explaining "[t]he State must

prove it was . . . defendant's conscious object that a specific

crime charged be committed." Also, because defendant alone was

on trial and no lesser-included offenses were charged, the jury

would not be confused or misunderstand the accomplice liability

charge regarding the first-degree robbery.

IV.

We review the imposed thirteen-year sentence, in light of

defendant's suggestion of excessiveness and his claim the judge

misapplied applicable aggravating factors. "Appellate review of

the length of a sentence is limited." State v. Miller,
205 N.J.
109, 127 (2011). A reviewing court "does not sit to substitute

its judgment for that of the trial court." State v. O'Donnell,

117 N.J. 210, 215 (1989). "The critical focus of the appellate

power to review and correct sentences is on whether the basic

sentencing determination of the lower court was 'clearly

mistaken.'" State v. Jarbath,
114 N.J. 394, 401 (1989). Thus,

appellate review of a sentencing decision requires this court

consider:

first, whether the correct sentencing
guidelines, or . . . presumptions, have been
followed; second, whether there is
substantial evidence in the record to
support the findings of fact upon which the
sentencing court based the application of

35 A-6123-11T3
those guidelines; and third, whether in
applying those guidelines to the relevant
facts the trial court erred by reaching a
conclusion that could not have reasonably
been made upon a weighing of the relevant
factors.

[State v. Roth,
95 N.J. 334, 365-66 (1984).]

Defendant focuses his challenge on the inclusion of

aggravating factor two, "[t]he gravity and seriousness of harm

inflicted on the victim,"
N.J.S.A. 2C:44-1(a)(2). He asserts

"the facts adduced at trial suggested that [d]efendant's role in

th[e] incident was limited to driving the car that took Clemons

to and from the scene of the crime."

The trial court considered application of the factor and

recognized the seriousness of the harm that resulted from

defendant's actions. The judge noted, "[t]here isn't [a harm]

more serious than death." Further, he found defendant drove

Clemons to and from the gas station knowing he intended to use a

firearm to accomplish the robbery, and should have known a

violent encounter was imminent. The judge made these additional

findings:

[T]he statute provides, including whether or
not the defendant knew or reasonably should
have known that the victim of the offense
was particularly vulnerable or incapable of
resistance. Here we have a retail gas
station attendant 11 o'clock at night all
alone and we have somebody who is going to
get money and we know that person possesses
guns. How anyone who is helping that

36 A-6123-11T3
person, in this case [defendant], would
conclude anything other than there was going
to be either a very violent physical type
robbery or that . . . Clemons was armed,
this [c]ourt can't imagine.

[Defendant] had to know . . . Clemons
was armed, that's why he stayed out of sight
and let . . . Clemons do what . . . Clemons
was going to do. The victim was just plain
vulnerable and had no chance whatsoever
. . . . Therefore, the [c]ourt finds that
aggravating factor two applies.

Based on this analysis, we cannot say the judge abused his

discretion.

Additional aggravating factors applied included factor

three, "[t]he risk that the defendant will commit another

offense,"
N.J.S.A. 2C:44-1(a)(3), given defendant's pattern of

previous offenses, and factor nine, "[t]he need for deterring

the defendant and others from violating the law,"
N.J.S.A.

2C:44-1(a)(9). Unchallenged is the trial court's finding there

were no mitigating factors.

Following our review, we determine the judge's conclusion

the aggravating factors outweighed the non-existent mitigating

factors constituted a reasonable application of the guidelines

to the facts, State v. Lawless,
214 N.J. 594, 606 (2013), and

properly reflected New Jersey's sentencing paradigm focusing on

the offense and not the offender, State v. Hodge,
95 N.J. 369,

375 (1984). Finally, the length of the sentence was within the

37 A-6123-11T3
first-degree range,
N.J.S.A. 2C:43-6(a)(1), and does not shock

our judicial conscience, State v. Ghertler,
114 N.J. 383, 393

(1989). Our intervention is unwarranted.5

Affirmed.

5
We reject as lacking merit defendant's claim that his
sentence was disparate in light of the two concurrent fifteen-
year sentences imposed on Clemons following his guilty plea. R.
2:11-3(e)(2).

38 A-6123-11T3

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