STATE OF NEW JERSEY v. CHRISTOPHER BEARDSLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2182-04T42182-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER BEARDSLEY,

Defendant-Appellant.

________________________________

 

Submitted August 15, 2006 - Decided August 24, 2006

Before Judges Parrillo and Sabatino.

On appeal from the Superior Court of New Jersey,

Law Division, Morris County, Indictment No.

03-10-1169-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel for Wronko & Loewen, attorneys; Mr. Miller, Of counsel and on the brief).

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for respondent (Joseph O'Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Christopher Beardsley, was charged in an indictment with third-degree distribution of methadone, N.J.S.A. 2C:35-5a(1), -5b(5); first-degree drug-induced death, N.J.S.A. 2C:35-9a; and second-degree manslaughter, N.J.S.A. 2C:11-4b(1). Pursuant to a negotiated plea bargain, defendant pled guilty to the distribution and manslaughter charges, preserving his right to appeal from the earlier denial of his motion to suppress and to exclude his statements. In accordance with the plea bargain, defendant was sentenced as a third-degree offender to concurrent three year terms, with an 85% period of parole ineligibility on the manslaughter conviction pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.

This criminal episode began with a renewed acquaintance at a local bar and ended two days later with the death of one of them, Brian Casper. According to the State's proofs, Casper and defendant had not seen each other since high school when they met at a bar in Mount Olive, the Brew-Ha-Ha, on Thursday evening, September 26, 2002. Defendant, who was 25 years old at the time, suffered from a chronic back condition for which he had been taking methadone for two years. His monthly prescription was for 960 10-mg. methadone pills and his dosage was 80 mg. (eight pills) every six hours. Through a mutual acquaintance, Casper knew of defendant's access to methadone.

During their encounter at the bar, Casper asked defendant if he had any methadone and defendant replied he did not, but was going to refill his 960-pill prescription the next day, intimating that he might give Casper some. They exchanged phone numbers and agreed to meet the next evening. On Friday, September 27, 2002, defendant filled his prescription only partially, as the pharmacy did not have enough pills in stock, and around 7:00 p.m. met Casper at the Roxbury home of Casper's girlfriend, Jessica Yates. There, defendant gave about four methadone pills each to Casper and Yates, and the couple in turn gave defendant marijuana and a line of cocaine. The three smoked marijuana and defendant used the cocaine. Thereafter, they agreed to meet later that night.

At about 11:30 p.m., defendant met Casper and Yates at a Taco Bell in Roxbury from where they drove to Mount Olive, to the home of defendant's girlfriend, Amanda Romeo. There, they talked, drank and smoked marijuana. When Casper asked for more methadone, defendant gave him and Yates several pills. Casper and Yates left shortly thereafter.

The next evening, Saturday, September 28, 2002, at about 8:30 p.m., Casper visited defendant who was at Romeo's home watching her two young children while she worked. Casper appeared to have been drinking or smoking marijuana. When defendant was in the bathroom helping the children brush their teeth, Casper again asked defendant for more methadone, and defendant replied the pills were in the pocket of his jacket hanging on a kitchen chair. Casper took several pills. After the children were in bed, Casper and defendant went outside to smoke cigarettes and marijuana. They went back inside where Casper drank from a bottle of Purple Passion wine that he retrieved from the refrigerator. A short time later, Casper asked for more methadone pills to which defendant replied "[Y]ou know where they are." Casper took several more pills. They watched television and Casper fell asleep.

When Romeo returned home at about 1:30 a.m., she was upset to find Casper unconscious in her living room. She and defendant were unable to wake Casper. Defendant, who was trained as an emergency medical technician and had worked for several first-aid squads, was troubled by Casper's inability to wake up, yet decided against seeking medical help. Instead, he and Romeo placed Casper on the floor and covered him with a blanket. Romeo retired to the bedroom while defendant stayed in the living room with Casper, and dozed off.

When defendant awoke at about 4:00 a.m., he noticed Casper was no longer snoring. He checked his pulse, but found none. Defendant then called 9-1-1 and began to administer CPR. Mount Olive Patrolman Carl Mase arrived at Romeo's home at 4:19 a.m., as defendant continued to perform CPR on Casper. The rescue squad arrived shortly thereafter and administered CPR to Casper for about twenty-five minutes. In the meantime, defendant and Officer Mase stepped outside. Defendant, who was visibly upset, attributed Casper's condition to alcohol, never mentioning the fact that Casper had taken methadone. Casper died en route to the hospital and Officer Mase advised defendant of Casper's death at 5:30 a.m. A subsequent autopsy uncovered methadone in Casper's blood and urine. From the high level of methadone detected, the medical examiner concluded that Casper died of a methadone overdose. Toxicology tests also showed cocaine and marijuana in Casper's system, but was negative for alcohol.

Meanwhile, the police commenced an investigation into Casper's death. Based on what defendant had told Officer Mase earlier that morning, and what the responding officer in turn reported, the police believed that Casper had died of alcohol poisoning. At the time, they did not suspect a drug overdose. In fact, at about 7:30 a.m. on September 29, 2002, Detective Phil Lucivero visited Casper's parents who advised that although he seemed fine the previous day and had no known medical problems, their son was a binge drinker and a recreational marijuana user.

Shortly thereafter, at 9:00 a.m., Lucivero and Officer Donald Gardner went to Romeo's house to speak with defendant and Romeo. Romeo invited them in and they all sat at the kitchen table. Defendant, who appeared tired and upset, but otherwise was cooperative, engaged in a free flowing conversation, once again blaming Casper's death on alcohol, and omitting any reference to drugs. He said that Casper had been drinking Purple Passion wine at Romeo's apartment, and identified an empty bottle of Purple Passion in the kitchen sink as the bottle of wine from which Casper drank. The officers, however, doubted that one bottle of wine could have caused Casper's death.

Lucivero then asked if Casper had been doing drugs. Defendant replied, "I gotta take a break. I gotta go have a smoke." Consequently, defendant left the apartment to smoke a cigarette, and Gardner followed. Defendant lit a cigarette, began to sob and said, "I gave him some of my methadone pills." For the next ten to fifteen minutes, defendant related to Gardner the events of the last several days. Witnessing his demeanor, Gardner believed defendant's narrative was cathartic.

When Gardner expressed surprise at the mention of defendant's 960-methadone pill monthly prescription, defendant said, "I'll show you", and proceeded to his car where he pulled three pill bottles from the glove compartment, each containing 100 methadone pills. Defendant even remarked that the pharmacy did not have enough pills to fill his entire prescription and showed Gardner a note from the pharmacist stating that the pharmacy owed his 560 pills.

After telling Gardner that he and Casper had smoked marijuana on Saturday night, defendant offered to show the officer the marijuana. After they had finished smoking, defendant went into his bedroom and retrieved the marijuana and pipe. He also went into his jacket pocket and retrieved a partially filled bottle of methadone, from which Casper had taken the pills the previous night.

At this point, the police asked defendant to come to headquarters to give a further statement. He agreed. The officers drove him to headquarters. At 10:01 a.m., Lucivero advised defendant of his Miranda rights. The officers then asked him how many methadone pills he had taken since he had had his prescription filled on Friday, to which defendant answered, 64 pills. The partially filled bottle contained 16 pills, leaving 20 pills unaccounted for. The officers asked defendant if he would give a written statement. He agreed and was re-advised of his rights. At 10:25 a.m., he began his written statement, which ended 30 to 40 minutes later. After he had finished his written statement, defendant was asked to give a taped statement, and he once again agreed. The officers re-advised defendant of his rights and took his statement. The interview ended at 1:05 p.m. According to the officers, defendant did not request his pain medications as he gave his statements.

Defendant's version of his encounter with the officers was different from that of Lucivero and Gardner. According to defendant, after ten minutes conversing at the kitchen table, Lucivero asked him if there were any narcotics in the house. Defendant advised him of his methadone prescription and said he had bottles of methadone pills in his car. Lucivero directed defendant to produce the bottles. When defendant went outside to retrieve them, Gardner followed close behind, kneeling down behind defendant as he leaned across the front seat and reached into the glove compartment. Defendant pulled out the three bottles of methadone pills and a prescription form and handed the items to Gardner.

When asked by Gardner, defendant admitted giving Casper some methadone pills and began to cry. Upon further inquiry by Gardner, defendant related how and when Casper obtained the pills. Gardner then supposedly asked defendant if there were any other drugs in Romeo's apartment, advising him that it would be better to turn them over than have them uncovered in a police search. Defendant and Gardner then reentered the house where Gardner handed Lucivero the three methadone bottles, instructing him to "[s]ecure these as evidence." Defendant meanwhile went into the bedroom to retrieve the marijuana Casper had given him and handed it over to Gardner, along with a marijuana pipe. When asked whether there were additional methadone bottles, defendant produced the bottle he was then using from his jacket. This bottle contained sixteen of its original 100 tablets. In response to Gardner's question, defendant said he consumed sixty-four pills, leaving twenty unaccounted for.

The officers advised defendant to accompany them in their car to headquarters to give a statement. He complied although he "was in a lot of pain" from missing one or two dosages of methadone. At headquarters, defendant signed a Miranda advisement form and completed a written statement in thirty to sixty minutes. After a ten-minute break, defendant gave a sixty-five-minute tape recorded statement during which he complained that his back was "hurting a lot." Despite his complaint, the police did not provide him with his medication until about 4:30 p.m. - seven hours after he arrived at headquarters - when Detective Mark Smith called defendant's doctor and confirmed the required dosage.

Crediting the police officers' testimony at defendant's Miranda hearing, the trial judge found that all of defendant's statements were voluntary and that those rendered at Romeo's house and yard were not the product of "custodial interrogation" requiring Miranda warnings. The judge concluded:

Essentially I accept the testimony of the officers that the issue about turning over the pills was not raised in the kitchen as Mr. Beardsley recalled. I believe Mr. Beardsley said he was told that the drugs came up and he was told to go outside and get them for him. And I don't accept that as the accurate manner. I think it came up more in the sense of was Mr. Casper doing drugs or were drugs involved.

. . . .

And that I accept Officer Gardner's testimony that they went out and had the cigarette and at that point Mr. Beardsley in fact opened up and did make those statements that he in fact had given Mr. Casper some of the methadone pills. And opened up to the whole story came out.

. . . .

And I'm satisfied as well that at point when Mr. Beardsley was talking about the prescription pills and what they were, that he said yes I get 960 pills a month. And the officer was quite surprised and said wow. And I'm satisfied and I accept the officer's testimony that it's at that point in time where Mr. Beardsley said yeah I'll show you and he got them.

He got the prescriptions for him, those three bottles that were in the car and turned them over to Officer Gardner. And also said he so had the marijuana and would get that for Officer Gardner from the room. In this context, I accept the testimony as I said of Officer Gardner that at that point in time the manner in which Mr. Beardsley was speaking to him was so cathartic it was that point where Mr. Beardsley was giving those details, expanding upon the evening. And giving those statements and turning over the evidence.

First, I would find that those statements again are voluntary. They're knowing. They were voluntary. I don't find that there was any additional police coercion that overcame the will of Mr. Beardsley at that point in time. But rather that this was the point where it was the whole emotional letting go of what had happened and in a voluntary way. And not a situation either by any of the factors that overcame his will as to and coerced as to be excluded on a lack of voluntary basis.

. . . .

And I find as well that there wasn't an interrogation going on out there. Nor do I conclude that at that point in time Officer Gardner intended this to be a custodial interrogation either objectively or subjectively. I find that the conduct of Officer Gardner at that point remained as a very investigative open one. That is did not appear at any time that he expected and intended to obtain incriminating evidence from Mr. Beardsley.

. . . .

So I find that as far as that statement outside and the turning over of the prescription pills that it was voluntary in the sense of the court allowing the jury to consider it. Again, the jury's determination ultimately whether what was done was a product of police coercion and how that would affect the juror's view. And I also conclude that the Miranda warnings were not required prior to any comments, statements, or continued discussion and interview outside between Officer Gardner and Mr. Beardsley.

That having been concluded, the officers obtained and again I find that Mr. Beardsley acted voluntarily in turning over the pills and the marijuana. And he was certainly not a suspect in the death of Mr. Casper at the time that information was being obtained. As the officers went into the house he was really just considered an observer, an eyewitness.

. . . .

That there was no subterfuge here. I find there's no subterfuge by Officer Gardner. Trying to get that information or the way he no tricking of Mr. Beardsley to get outside or tricking him to get it. But rather just that active initiation and involvement of Mr. Beardsley at the time and what was a heartfelt and true desire to let the police know what had really happened.

So the police having obtained those statements, having obtained the pills, and now having information that Mr. Beardsley had provided drugs to Mr. Casper, I find that they certainly at that point had the right to request that he go down to headquarters. And requested him to do so.

I think certainly at that point in time that had Mr. Beardsley not cooperated and said that although he would prefer to go to church that the officer certainly intended at that point in time to take him into custody. And certainly from that time forward it was a custodial situation. What occurred then was the officers taking him to headquarters. He was in a custodial situation without question. He was in the police headquarters.

. . . .

But again the Miranda rights were given, he proceeded. I will not exclude that statement as involuntary because certainly Mr. Beardsley was intelligent. He was cooperating. And I think when he went into the statement he certainly intended to continue to cooperate.

And I had no sense that he certainly I mean he didn't ask to stop. And wanted to continue what he perceived at that point to be a way to help. So I will not exclude it as voluntary, although certainly the jurors have a lot of situation in that circumstances to consider the statements that were made and manner in which given.

So in conclusion I guess the statements I find are all admissible. They're voluntary in the sense of being allowed to be considered by the jury. The Miranda rights were read at headquarters before the written and before the audio taped statements, which is appropriate and required.

It is against this background that we now consider the following issues raised by defendant on appeal:

I. THE INDICTMENT SHOULD HAVE BEEN DISMISSED BECAUSE THE PROSECUTOR'S GRAND JURY PRESENTATION DEPRIVED DEFENDANT OF DUE PROCESS AND HIS RIGHT TO INDICTMENT AND THE EVIDENCE PRESENTED WAS INSUFFICIENT.

A. The Prosecutor's Grand Jury Presentation Deprived Defendant of His Right to Due Process and his State Constitutional Right to Indictment.

B. Insufficient Evidence was Adduced to Support the Manslaughter and Drug-Induced Death Charges.

II. THE TRIAL COURT ERRONEOUSLY FAILED TO SUPPRESS DEFENDANT'S STATEMENTS AT ROMEO'S HOUSE AND THE POLICE STATION AND THE CONTROLLED DANGEROUS SUBSTANCES AND PIPE HE TURNED OVER IN THE COURSE OF MAKING THOSE STATEMENTS.

III. THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT'S MOTION FOR A BILL OF PARTICULARS.

IV. THE TRIAL COURT ERRONEOUSLY RULED ADMISSIBLE EVIDENCE OF OTHER BAD ACTS.

V. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

As a threshold matter, we note that in the absence of an express reservation, defendant's guilty plea operates to waive the issues raised in Points I, III and IV, that were addressed by the trial judge before defendant's guilty plea. See R. 3:9-3(f); State v. Truglia, 97 N.J. 513, 522-24 (1984); State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988). Here, the only issues explicitly preserved for appeal concern the confession controversy and the admissibility of physical evidence obtained as a result of defendant's confession, rendering all other issues, save for sentencing, non-appealable.

Nevertheless, we have considered each of the issues raised in Points I, III and IV in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We, therefore, limit our discussion to the issues raised in Points II and V.

(A)

Defendant contends the trial court failed to suppress his statements at Romeo's house and the police station as well as the controlled dangerous substances and pipe he turned over in the course of making those statements. We disagree. We are satisfied that the trial judge's decisions as to the voluntariness of defendant's statements and the lack of any Miranda violation are supported by substantial credible evidence in the record, State v. Johnson, 42 N.J. 146, 162 (1964); State v. Slinger, 281 N.J. Super. 538, 543 (App. Div. 1995), and fully comport with applicable legal principles.

As to the latter, it is well-settled that warnings apprising an individual of his Fifth Amendment right against self-incrimination are required whenever an individual is subjected to custodial interrogation by law enforcement officers. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07. Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. Accord Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528, 128 L. Ed. 2d 293, 298 (1994); State v. Keating, 277 N.J. Super. 141, 144 (App. Div. 1994). In determining whether a custodial interrogation has occurred, a court must examine all of the circumstances surrounding the interrogation. State v. O'Loughlin, 270 N.J. Super. 472, 477 (App. Div. 1994); State v. Coburn, 221 N.J. Super. 586, 596 (App. Div. 1987), certif. denied, 110 N.J. 300 (1988). "It is 'custodial interrogation' rather than the 'mere focus upon a particular suspect' which triggers the requirement that the Miranda warnings be given." Id. at 595 (quoting State v. Graves, 60 N.J. 441, 448 (1972)).

In our view, defendant's statements at Romeo's house and yard, before he was escorted to police headquarters, were not the product of "custodial interrogation." At that time, defendant was neither in "custody" nor being "interrogated" when he rendered the incriminating oral statements.

In the first place, it was defendant who first summoned the police for assistance. The second encounter later that morning occurred in a familiar setting, at defendant's girlfriend's home while sitting around a kitchen table. The interview was, by all accounts, cordial and non-coercive. By defendant's own admission, he was free to go outside for a cigarette. At the time, defendant was neither a focus nor target of the police investigation, which was still in the information gathering phase. Although earlier reports of accidental alcohol poisoning were being questioned, defendant was not a suspect in the investigation. See State v. Timmendequas, 161 N.J. 515, 614-15 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 157 L. Ed. 2d 89 (2001). Neither the actions of the police nor the "'surrounding circumstances . . . would reasonably lead [defendant] to believe [that] he could not leave freely.'" State v. Messino, 378 N.J. Super. 559, 576 (App. Div.) (quoting Coburn, supra, 221 N.J. Super. at 596), certif. denied, 185 N.J. 297 (2005). Indeed, defendant was not in "custody" until he had rendered a complete account of the events in question and was asked to accompany the officers to police headquarters.

Nor do we find that the police confrontation before defendant's arrival at headquarters constituted "interrogation" as the Court in Miranda used the word. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 308 (1980); see also United States v. Ganter, 436 F.2d 364, 370 (7th Cir. 1970). Indeed, during the interview, defendant was cooperative and the conversation free flowing. In this regard, we do not consider Lucivero's singular general inquiry as to whether Casper consumed drugs, raised in the course of defendant's narrative, to amount to "interrogation." See, e.g., State v. Reyes, 50 N.J. 454, 466 (1967). Nor were defendant's admissions thereafter responsive to any direct police questioning. See State v. Marks, 201 N.J. Super. 514, 528 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986). Rather, as found by the trial judge, defendant's statements were volunteered and spontaneous. Neither occasioned by, nor responsive to the officer's comment, defendant's statements are not the product of custodial interrogation requiring Miranda warnings in advance. See Parson v. United States, 387 F.2d 944 (10th Cir. 1968); Cotton v. United States, 371 F.2d 385 (9th Cir. 1967); DeHart v. State, 468 S.W.2d 435 (Tex. Crim. App. 1971); Cf. State v. Valentin, 105 N.J. 14, 18 (1987). Under the circumstances, the trial judge properly ruled they were admissible.

As were the statements rendered by defendant after he was given his Miranda rights at police headquarters. On this score, the trial judge, after considering all relevant factors including the three-hour period during which the statements at headquarters were given, the cigarette breaks, and the lack of medication during this time, found the statements to be voluntary. State v. Knight, 183 N.J. 449, 462-63 (2005). Substantial credible evidence in the record supports this finding, and we concur in the determination substantially for the reasons expressed by the trial judge in her oral opinion of August 11, 2004.

(B)

Lastly, defendant contends his three-year sentence, in accordance with a negotiated plea, is manifestly excessive. We disagree.

Even where, as here, a defendant is sentenced as a third-degree offender pursuant to a plea agreement, the presumption of imprisonment remains intact due to the second-degree conviction. State v. Partusch, 214 N.J. Super. 473, 476 (App. Div. 1987); State v. Rodriguez, 179 N.J. Super. 129, 134-35 (App. Div. 1981). This is because a defendant is not entitled to receive a "double benefit" for the mitigating factors: "once to reduce sentence from a term appropriate to the second degree crime to which defendant pleaded guilty, and then again to permit sentence as if defendant had in fact been convicted of a third degree crime." Id. at 135. It is also clear that the presumption of incarceration is not satisfied by "a term of imprisonment imposed as a condition of probation, [under N.J.S.A. 2C:43-2b(2),] commonly referred to as a 'split sentence.'" State v. O'Connor, 105 N.J. 399, 407-10 (1987); State v. Whidby, 204 N.J. Super. 312, 314 (App. Div. 1985).

On the contrary, defendant's second-degree conviction requires incarceration, N.J.S.A. 2C:44-1d, and the presumption of incarceration is overcome only if it is determined that "imprisonment would be a serious injustice which overrides the need to deter such conduct by others." N.J.S.A. 2C:44-1d. See State v. Rivera, 124 N.J. 122 (1991); State v. Jabbour, 118 N.J. 1 (1990). Here, defendant has not met this stringent standard, having failed to demonstrate that his imprisonment for a term consistent with that for which he bargained, amounts to a serious injustice.

Affirmed.

 

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

We note that the issue raised in Point IV concerning the admissibility of other bad acts evidence under N.J.R.E. 404(b) was the subject of a preliminary ruling by the trial judge on an in limine motion, subject to reconsideration at a trial.

(continued)

(continued)

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A-2182-04T4

August 24, 2006