STATE OF NEW JERSEY v. JEFFREY B. HILL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5843-02T45843-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JEFFREY B. HILL,

Defendant-Appellant.

__________________________________

 

Argued: September 12, 2005 - Decided:

Before Judges Cuff, Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-12-2428.

Linda Mehling, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Mehling, of counsel and on the brief).

Courtney M. Silvern, Assistant County Prosecutor, argued the cause for respondent (Jeffrey S. Blitz, Atlantic County Prosecutor, attorney; Ms. Silvern, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant Jeffrey B. Hill was convicted of two counts of second degree robbery, contrary to N.J.S.A. 2C:15-1 (Counts One and Two); simple assault, contrary to N.J.S.A. 2C:12-1a (Count Three); and first degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and 2C:15-1 (Count Four). At sentencing, the judge merged Counts One, Three and Four with Count Two and imposed an eight-year term of imprisonment subject to a NERA 85% parole ineligibility term.

On appeal, defendant raises the following issues:

POINT I

IN THIS CASE, WHERE THE VICTIM WAS THE ONLY PERSON WHO IDENTIFIED DEFENDANT, THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY EXCLUDING EVIDENCE THAT THE VICTIM'S ALCOHOL LEVEL WAS 0.23 AND EXPERT TESTIMONY THAT THE VICTIM'S SEVERE INTOXICATION SUBSTANTIALLY IMPAIRED HIS PERCEPTIONS AND MEMORY OF THE CRIME.

POINT II

DETECTIVE BOCELLE'S PROMISE TO HILL THAT ANYTHING HILL TOLD THE DETECTIVE WOULD BE "OFF THE RECORD" RENDERED HILL'S STATEMENT INVOLUNTARY. THE TRIAL COURT'S ERRONEOUS RULING THAT THE STATEMENT WAS VOLUNTARY AND THUS COULD BE ADMITTED TO IMPEACH HILL'S TRIAL TESTIMONY DEPRIVED HILL OF HIS CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF.

POINT III

THE TRIAL COURT'S INSTRUCTIONS ON CIRCUMSTANTIAL EVIDENCE, WHICH BOTH MISSTATED THE EVIDENCE AND SUMMARIZED IT IN AN UNBALANCED AND MISLEADING MANNER, DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below.)

POINT IV

BY REPEATEDLY CASTIGATING DEFENDANT, DISPARAGING DEFENSE COUNSEL'S ROLE, AND APPEALING TO THE JURORS' SYMPATHY FOR THE VICTIM THROUGHOUT HIS SUMMATION, THE PROSECUTOR OVERSTEPPED THE BOUNDS OF PROPRIETY AND DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. (Not Raised Below.)

POINT V

DEFENDANT'S EIGHT-YEAR SENTENCE MUST BE VACATED AND REDUCED TO THE PRESUMPTIVE, BECAUSE THE PRESUMPTIVE TERM IS THE MAXIMUM SENTENCE THAT WAS AUTHORIZED BY THE JURY'S VERDICT.

The charges against defendant arise from an assault and theft of money from the patron of a bar in the early morning hours of October 22, 2001. On October 21, 2001, the victim, Greg Lang, attended a benefit at Raffici's Restaurant in Absecon from 3 p.m. to 9 p.m. at which he consumed food and five or six beers. At approximately 9 p.m., Lang drove to the Black Cat Inn where he played pool with friends, consumed food and another three or four alcoholic beverages. When the Black Cat closed at 1 a.m., he walked across the street to the High Point Pub where he played pool for money, and drank several rum and cokes.

At approximately 3 a.m., defendant, accompanied by two or three males and one woman, asked Lang to buy him a drink. Lang pulled out a crumpled ball of money, paid for the drinks and engaged in a conversation with defendant.

Lang left the High Point Pub at approximately 4 a.m. The bartender testified that defendant left the pub at about the same time. Lang was found in his car by two friends at approximately 8:30 a.m. Because Lang was bleeding from his face, hands and ear, the men brought Lang to a hospital and persuaded him to accept treatment. The emergency room charge nurse testified that Lang sustained "a lot of facial injuries." Lang reported to her that he was beaten.

During the afternoon of October 22, police investigators noticed a pool of blood next to a broken beer bottle in the High Point Inn parking lot. Police also found medallions that Lang wore as charms on gold chains prior to the incident, as well as eight unsmoked cigarettes belonging to the victim.

When interviewed by police, Lang stated that a group of people called him over to a poorly lit section of the High Point Pub parking lot. As he approached the group, defendant grabbed at the chains and punched him in the face. Then, as he attempted to repel the attack, others repeatedly punched Lang and struck him twice in the head with a beer bottle. Ultimately, Lang testified that he collapsed. When he regained consciousness, he walked to his car where he lost consciousness again.

On October 26, 2001, Lang selected defendant's photo from a photo array. The bartender also identified defendant from a photo array as the person to whom Lang spoke in the bar prior to the incident. Defendant was arrested on November 1, 2001.

On November 24, 2002, defendant appeared in municipal court in Absecon on other charges. He saw Sergeant Bocelle of the Absecon Police, and said to him, "Get me out of here." The officer interpreted this statement as a desire by defendant to provide information about the October 2001 incident involving Lang. Bocelle noted that the police believed others were involved, but no other arrests had been made. Therefore, Bocelle initiated a conversation with defendant and informed defendant that it was important to the officer and the victim to identify the others involved in the attack and that anything defendant said about that night would be off the record. Defendant asked Bocelle to call his attorney, and Bocelle informed defendant he would do so in the morning. Defendant then told Bocelle that he would identify the others involved in the assault.

The threshold issue is whether defendant's statement to Sergeant Bocelle that he would identify the other assailants can be considered a voluntary statement and available to impeach defendant if he testified at trial. Following an evidentiary hearing, the trial judge held that defendant's statement was voluntary and available to impeach him if he testified at trial. We hold that the record does not support the finding that it was a voluntary statement; therefore, the ruling that the statement could be used at trial to impeach defendant was error that requires a new trial.

Immediately prior to trial, the trial judge commenced an evidentiary hearing to address defendant's motion to suppress the November 2002 statement to Sergeant Bocelle about his ability to identify the other assailants. Sergeant Bocelle conceded that defendant was in custody at the time of their conversation and that he knew that defendant had been indicted for the October 2001 incident at the High Point Pub. Nevertheless, he did not administer Miranda warnings to defendant when they spoke. Therefore, the trial judge correctly held that the State could not use defendant's statement that he would or could identify the persons involved in the October 2001 incident in its direct case against defendant. The trial judge, however, also found that defendant initiated the conversation and that the promise made by Bocelle followed rather than preceded defendant's statement; therefore, the statement could be used by the State to impeach defendant's credibility if he testified at trial. Bocelle's testimony at the suppression hearing is, therefore, critical.

On direct examination, Sergeant Bocelle testified as follows:

Q. Where did you encounter defendant on that day, November 25, 2002?

A. . . . and that night in the courtroom he had looked at me and first thing he said was ["]Get me out of here.["] And all along I wanted to work with him the best that I could because as far as this case was concerned, there was more than one person involved. There were several people.

Q. When he said this to you: Get me out of here, did you speak with him further?

A. Yes, I did. After he was done appearing in front of our judge for this other matter, we went back into the detective bureau and I spoke with him and . . . I told him that it was important for me to find out at least this one main other suspect that was involved in this, that hit the victim on the head with a beer bottle.

* * *

Q. When you had this discussion with him, what did he indicate to you when you said . . . you knew more people were involved and someone was involved with the bottle?

A. He . . . said he would let me know who they were, but hopefully we could work something out that would help him out. And I said I would do whatever I could.

Q. Did he tell you at that point he was represented by counsel?

A. Well, actually I knew he was, yeah.

Q. Okay. And this is why you were talking with him?

A. I talked with him because he had first said to me, ["]Get me out of here,["] and I thought, Well, here's an opportunity to talk and we'll see if we can come to some kind of an agreement. And he had asked me to call his attorney, and I said I would call him in the morning because I didn't want to talk to him too much without his attorney knowing what was going on.

Q. But he said he would tell you who the others were involved, is that what you said?

A. Yes.

In this exchange, there was no mention of any promises of confidentiality. On cross-examination, Bocelle revealed the promise in response to an inquiry about the officer's knowledge that defendant had been indicted for the October 2001 incident. The following exchange occurred:

Q. And of course you knew that he was indicted cause you testified in front of the grand jury?

A. Well, I didn't know what he was there for that night, and I told him, I said, You know, Jeff, anything you . . . say to me that night, I'll keep off the record and we'll see if we can work something out.

I told him it was important to me and the victim to get the fellow that hit him in the head with the beer bottle and he said he would give me that name.

It is now well-established that, in circumstances when Miranda warnings should have been administered to a defendant, a statement, given freely and voluntarily without the prior administration of those rights, does not bar the use of a voluntarily given statement for impeachment purposes. State v. Burris, 145 N.J. 509, 523 (1996). On the other hand, a statement given following a grant of immunity or a promise of confidentiality cannot be considered a voluntary statement and cannot be used to impeach the defendant at trial. New Jersey v. Portash, 440 U.S. 450, 459, 99 S. Ct. 1292, 1297, 59 L. Ed. 2d 501, 510 (1979); State v. Pillar, 359 N.J. Super. 249, 266 (App. Div.), certif. denied, 177 N.J. 572 (2003).

In Pillar, the defendant was administered his Miranda warnings and was also advised that he could make an off-the-record statement. Id. at 257, 262. Immediately thereafter, the defendant made a highly inculpatory statement. Ibid. Addressing police agreement to a request to speak off-the-record, we said:

There are two bases upon which such an agreement renders the resulting statement inadmissible. First, such a misrepresentation directly contradicts and thereby neutralizes the entire process of the Miranda warnings. Second, such misrepresentation, may, and in this case did, render the statement involuntary.

[Id. at 265.]

As to the second basis, the voluntary nature of the statement, we emphasized that whether a statement is voluntary is a legal question that requires an independent appellate determination. Id. at 268.

Any inquiry of voluntariness of a statement requires a consideration of the totality of the circumstances and a recognition that not every misrepresentation by a police officer during an interrogation will effect the voluntariness of the statement. State v. Cooper, 151 N.J. 326, 355 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000). On the other hand, "it has been held that a promise of immunity in the form of an assurance by police that a statement would not be used against an accused, or would be considered confidential, without more, renders the statement involuntary." Pillar, supra, 359 N.J. Super. at 269 (citations omitted). This is so because "'[a] promise that statements made will not be used against the defendant purports to remove the specter of proving one's own guilt by making a statement. Such a promise is a truly powerful one, going to the heart of a declarant's reservations about giving a statement.'" Id. at 273 (quoting United States v. Conley, 859 F. Supp. 830, 836 (W.D. Pa. 1994).

Recently, in State v. Fletcher, ___ N.J. Super. ___ (App. Div. 2005), we re-stated this rule. In Fletcher, the defendant agreed to go to police headquarters and speak to the investigating officer after a two-hour discussion with another officer who assured him that anything he said would be off the record. Id. at ___ (slip op. at 11). The first officer had explained to the defendant that the police just needed information about the guns used in a recent burglary and robbery. Ibid. Although the investigating officer administered Miranda warnings to the defendant on his arrival at police headquarters, id. at ___ (slip op. at 13), we held that the statements made after administration of the Miranda warnings were not voluntary because the officer who made the promise was present during the interrogation and the investigating officer knew of the promise. Id. at ___, ___ (slip op. at 16, 18). We noted that the promise must be viewed from the defendant's perspective, and the interrogating officer had an obligation to advise the defendant that the prior promise was not in force. Id. at ___ (slip op. at 20).

Our review of Bocelle's entire testimony demonstrates that defendant told Bocelle he would or could name the other participants only after the officer stated that any information defendant provided to him would be off the record. As in Pillar, the statement was in direct and immediate response to a promise of confidentiality and, as such, cannot be considered a voluntary statement.

Having determined that defendant's statement was involuntary and inadmissible for any purpose, we must determine whether defendant is entitled to a new trial. Defendant did not testify at trial; however the trial judge ruled that defendant's statement, that he could name the other participants, could be used to impeach his credibility if he testified.

When an error implicates a constitutional right or rights, the State must convince the appellate tribunal "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710 (1967); State v. Scherzer, 301 N.J. Super. 363, 452 (App. Div. 1997). This is known as the contribution test. Pillar, supra, 359 N.J. Super. at 278.

Here, the jury never heard the statement because defendant did not testify and was not subject to impeachment. Nevertheless, we cannot say with any certainty that the ruling did not contribute to the result. The State's case was founded entirely on the bartender's testimony that defendant was present in the bar during the early morning hours and was in the company of several other persons, as well as the victim's identification of defendant as one of his assailants. The victim, however, was highly inebriated at the time of the attack and remained intoxicated when he gave his initial account of the attack hours later. Thus, the State's case rested on defendant's mere presence at the scene around the time of the attack and on defendant's perhaps impaired ability to recollect the event and identify his assailants. Under these circumstances, we cannot say whether defendant's decision not to testify because of the possibility of impeachment contributed to his conviction. Therefore, we conclude that the conviction must be reversed and that defendant is entitled to a new trial.

Due to our holding, we need not address whether defendant should have been able to introduce expert testimony of the victim's degree of intoxication and his ability to perceive and recollect events. Because defendant is to be retried, there is ample time to procure an expert, if defendant elects to pursue that course. Moreover, if defendant is convicted following a retrial, any sentence will be imposed in accordance with State v. Natale, 184 N.J. 458 (2005) and State v. Abdullah, 184 N.J. 497 (2005).

Reversed and remanded for a new trial.

 

No Early Release Act, N.J.S.A. 2C:43-7.2.

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

(continued)

(continued)

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A-5843-02T4

October 3, 2005