STATE OF NEW JERSEY v. CHRISTOPHER BRANTLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3745-03T43745-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER BRANTLEY,

Defendant-Appellant.

__________________________

 

Submitted May 1, 2006 - Decided August 4, 2006

Before Judges Holston, Jr., and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-02-00219-1.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel; Patricia L. Cronin, Legal Analyst, on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3) (Count Two); second-degree possession of a firearm while committing certain CDS crimes, N.J.S.A. 2C:39-4.1a (Count Six); and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7b (single count under separate indictment). Defendant was acquitted either on motion or by jury verdict of three other drug charges.

On August 21, 2002, the prosecutor filed an application for an extended term on the conviction on Count Two, because of defendant's prior conviction for distribution of cocaine within 1,000 feet of a school property. On September 27, 2002, defendant's motion for a new trial was denied. On January 13, 2003, the trial judge granted the State's motion for an extended term citing N.J.S.A. 2C:43-6f. Defendant was sentenced to an extended term of nine years imprisonment with a four-year period of parole disqualification on his conviction for third-degree possession of cocaine with intent to distribute; a consecutive term of eight years imprisonment with a three-year period of parole disqualification on his conviction for possession of a firearm while committing certain CDS crimes; and a concurrent nine-year term of imprisonment with a five-year period of parole disqualification on his conviction for certain persons not to have weapons. The conviction on Count One was merged into Count Two. Appropriate penalties and assessments were also imposed. Defendant appeals. We affirm the convictions, and remand for re-sentencing.

On appeal, defendant raises the following issues for our consideration:

POINT I.

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE HIS INVOLUNTARY CONFESSION VIOLATED THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT II.

DEFENDANT'S SENTENCE MUT BE VACATED[,] AND THIS MATTER MUST BE REMANDED FOR RESENTENCING. (NOT RAISED BELOW).

A. THE LOWER COURT FAILED TO RECOGNIZE AN APPROPRIATE MITIGATING FACTOR, "THE WILLINGNESS OF THE DEFENDANT TO COOPERATE WITH LAW ENFORCEMENT AUTHORITIES."

B. THE SENTENCE EXCEEDED THE PRESUMPTIVE STATUTORY TERMS[,] AND WAS BASED ON THE COURT'S FINDING OF AGGRAVATING FACTORS, OTHER THAN THE FACT OF A CRIMINAL CONVICTION.

C. DEFENDANT'S EXTENDED TERMS MUST BE VACATED BECAUSE THE PROSECUTION FAILED TO STATE ON THE RECORD THE REASONS FOR SEEKING THE EXTENDED TERM.

The salient facts concerning defendant's motion to suppress and the sentences are as follows.

Defendant is a twenty-nine year old male with a lengthy prior adult and juvenile criminal history dating back to when he was fifteen years old, including offenses which post-date the events underlying the present charges. Defendant's brother, Marvin Edwards (Marvin), was seventeen years old at the time of the present offenses.

Testifying at the suppression hearing were Detective Alvaro Goncalves of the Linden Police Department, and defendant. Detective Goncalves testified as follows. On the evening of January 12, 2001, Goncalves, along with Detectives David Dehler and Kenneth Mikolajczyk, Detective Sergeant Jeffrey Carhart, Detective Lieutenant Vantrano, and Officers Cheslock and Kahana, executed search warrants for contraband at the premises located at 555 Jackson Avenue, Linden and 15 East 19th Street, Linden, and for a white Mitsubishi automobile. The officers searched four rooms at 555 Jackson Avenue, and one room at 15 East 19th Street. At the Jackson Avenue residence, the officers found defendant's driver's license, and the license of defendant's girlfriend, Lydia Vasquez, in the second floor front bedroom; and found Marvin's identification in the first floor rear bedroom. Defendant's identification was also found at the 19th Street residence in the third floor rear bedroom. During the search of the three bedrooms at the two dwellings, cocaine, marijuana, razor blades, paper with CDS residue, a plate, "clear vials used for the packaging of CDS," rubber bands, various "Ziploc[]-type baggies," two metal balance scales, two handguns, a box of ammunition, and $802 in cash were found and seized.

Sometime during the search, while driving his girlfriend's car away from 555 Jackson Avenue, defendant was stopped, arrested, and brought to the police station. Marvin was detained outside one of the residences and then placed under arrest.

At the station, defendant was placed in a holding cell separate from Marvin. Pedigree information was obtained from defendant by an officer. He was handcuffed to a bar for a period of time, that "could . . . well have been several hours." While handcuffed, defendant asked to speak with an officer, and Goncalves responded to the holding area. After Goncalves asked defendant "what's up?"; defendant stated: "[M]y brother has nothing to do with this. This stuff is mine. And what can I do to help myself[?]" Goncalves responded, "You can give a statement." Goncalves then escorted defendant to the detectives' bureau room, because "I would always try to secure a statement if somebody would like to give one."

At about 12:46 a.m., defendant was orally advised of his Miranda rights; and after defendant read over his rights on the form, he initialed and signed the form in the waiver of rights section in the presence of Goncalves and Detective Larmore. At this point, Goncalves informed defendant of the charges against him.

Goncalves's interrogation of defendant began just before 1:00 a.m., in the presence of another detective, assuming a question and answer format, where Goncalves typed out the questions asked of defendant, as well as defendant's answers. During the interrogation, defendant neither asked for the questioning to stop, nor asked to have an attorney or anyone else present. At one point, defendant was provided with a bottle of water, but according to Goncalves, defendant neither asked for anything to eat, nor to go to the bathroom. Goncalves stated that defendant was not promised anything in return for the statement, and that defendant did not appear to be tired, or under the influence of any drugs or intoxicating liquors at the time the statement was made.

The entire interrogation spanned between one and two hours, and in the resulting five-page statement, defendant admitted that the drugs, weapons, and various paraphernalia belonged to him. Defendant reviewed the statement for accuracy, initialed each page, and signed the end of the statement, which signature was sworn to and witnessed by Detective Martin. During his review, defendant made a few corrections to the statement, including: in response to the question whether he was under the influence of alcohol, drugs, or a narcotic substance, Goncalves typed "yes", which defendant crossed out, wrote "no," and initialed the change. The statement encompasses Goncalves's entire conversation with defendant including their brief interaction in the holding cell.

Goncalves testified that Marvin had already been charged prior to defendant being questioned by the police; and as a result, Goncalves had no control over the charges. Goncalves also testified he never told defendant that if defendant were to give him a statement his brother would be released, because he had no authority to make such a representation.

Defendant testified that it was "light outside when we went [into the station]," and he estimated that he was in the holding cell for about an hour. He stated that he and Marvin were placed in the holding cell together, and at some point "Officer Meechikolowki [sic] . . . said you could help -- you should do the right thing . . . to free your brother." According to defendant, the officer stated "you do [not] want your brother to go down with you," and indicated that if defendant gave a statement "they [would] let my brother go home. But if I didn't, then my . . . brother was going to juvenile." Defendant claimed that Goncalves "said the same thing . . . as far as giving a statement to help myself and help my brother." Defendant knew Marvin had already been charged, but he believed that if he provided a statement, the charges against Marvin would be dropped and Marvin would be released.

Defendant stated that another three to four hours passed before he was taken upstairs to make the statement, during which time he was not allowed to go to the bathroom, even though he asked "a regular officer;" he was not given anything to eat; and he was not allowed to make a phone call, because the detectives in charge of his case were not present. However, defendant conceded that his response at the end of the statement concerning the quality of treatment by the police department was "good." Defendant also admitted that he never asked for an attorney, and that he understood the Miranda waiver form before he signed it.

The interrogation involved "yes or no" questions, and defendant testified that Goncalves told him that he "[had] to give a particular answer" to each question to ensure that he "did [not] implicate anyone else." Defendant claimed that his statement was made solely to protect "[my] brother[,] [my] girlfriend and her kids[,] . . . and my mother . . . so no one else got in trouble . . . [j]ust me." He stated that the statement given to police was not entirely truthful, and it represented what Goncalves had "told me to say." While denying the handguns, ammunition, and drugs found in both residences were his, defendant admitted the paraphernalia belonged to him. When asked by the judge "[w]hose drugs and guns was that [sic]?," defendant remained silent for "40 to 50 seconds" and eventually responded stating "I said they weren't mine[] . . . [they were] [m]y brother's." Defendant testified that he believed the statements of the officers and detectives, trusted they would fulfill the promise to release his brother, and knew the officers could not put a promise in the statement, because he had "been through it before."

At close of the hearing, the trial judge determined that Goncalves's testimony concerning defendant voluntarily asking what he could do to help himself was "credible and believable," and the Miranda warnings were properly administered. The judge also determined that defendant's testimony "as to what Officer Goncalves did" and as to the other officer's suggestion that he give a statement to protect others was not "credible . . . and believable," noting that even if the idea of giving a statement had been proposed to defendant by the police, he would not have found defendant's statement coerced. Concluding that the statement was freely and voluntary given, the judge ruled the statement admissible.

Following a jury trial during which defendant's statement was admitted, the trial judge granted defendant's motion for judgment of acquittal on the charge of possession of cocaine with intent to distribute within 1,000 feet of a school, concluding that the events "occurred outside the school zone." The jury returned its mixed verdict of guilty and not guilty on the remaining charges.

I.

Defendant argues that because his confession was involuntary, it was improperly admitted, warranting a reversal of the convictions. We disagree.

The Fifth Amendment of the United States Constitution, extended to the states by the Fourteenth Amendment, provides a privilege against self-incrimination, U.S. Const. amend. V; see State v. Presha, 163 N.J. 304, 312 (2000); State v. P.Z., 152 N.J. 86, 100-01 (1997), and a defendant may elect to waive his or her right against self-incrimination. Presha, supra, 163 N.J. at 313. Miranda warnings are "'prophylactic measures'" to ensure protection of the core fundamental rights of the Fifth Amendment, State v. Pillar, 359 N.J. Super. 249, 264 (App. Div.) (quoting State v. Burris, 145 N.J. 509, 518 (1996)), certif. denied, 177 N.J. 572 (2003), and a waiver of Miranda rights must be knowing, voluntary, and intelligent. Presha, supra, 163 N.J. at 313. However, even where a defendant knowingly and intelligently waives his Miranda rights, a statement made thereafter is inadmissible if the statement was not voluntary, and was elicited by improper means.

A confession must be free and voluntary, Pillar, supra, 359 N.J. Super. at 270, and therefore "an involuntary statement is inadmissible for any purpose." Id. at 265. The voluntariness of a confession must be proven beyond a reasonable doubt. State v. Cook, 179 N.J. 533, 552 (2004) (citing State v. Bey, 112 N.J. 123, 134 (1988)). Misrepresentations by police are "'usually insufficient to justify a determination of involuntariness or lack of knowledge' . . . 'unless the misrepresentation actually induced the confession.'" Pillar, supra, 359 N.J. Super. at 269 (quoting 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)). Further, most misrepresentations are entirely within the permissible scope of interrogation. Cook, supra, 179 N.J. at 562; State v. Galloway, 133 N.J. 631, 654 (1993); see also State v. Patton, 362 N.J. Super. 16, 29, 30-32 (App. Div.) (discussing permissible psychological tactics, including telling a defendant that the police possess incriminating physical evidence; telling a defendant that a co-defendant had confessed; and misstating the penalty a defendant would face if convicted, and noting that the falsehood generally "emanates from the 'voice' of the officer"), cert. denied, 178 N.J. 35 (2003). Notwithstanding, a promise of immunity that a statement will not be used against the defendant, or it would be confidential, renders a statement involuntary. Pillar, supra, 359 N.J. Super. at 264. These promises are so powerful that they "'actually induce[]' the incriminating statement," Id. at 273 (quoting Cooper, supra, 151 N.J. at 355), and cause a defendant's will to resist to be overborne. Presha, supra, 163 N.J. at 313.

In assessing whether a confession was voluntary, the court engages in a totality of the circumstances analysis, where "any promises or threats by police officers are simply one factor to be considered." Pillar, supra, 359 N.J. Super. at 271; see Presha, supra, 163 N.J. at 313. Among other factors to be considered, the court looks to the nature of the promise, the context of the promise, the defendant's characteristics, whether Miranda warnings were administered, and whether counsel was present. Pillar, supra, 359 N.J. Super. at 271 (citing United States v. Pinto, 671 F. Supp. 41, 57 (D. Me. 1987)); Patton, supra, 362 N.J. Super. at 42 (the court also considers police conduct). This list of factors is non-exclusive. Pillar, supra, 359 N.J. Super. at 271.

Defendant conceded that he understood his Miranda rights, and knowingly and intelligently waived them. He also conceded that he never requested an attorney. Accordingly, there was no procedural Miranda violation in this case. Defendant's argument focuses on the claim that he was coerced into making an involuntary statement based on the promise of release of his brother.

As to the nature of the promise, this promise is not of the type that we usually find to be "'so attractive'" as to "'render a resulting confession involuntary.'" Pillar, supra, 359 N.J. Super. at 273 (quoting Streetman v. Lynaugh, 812 F.2d 950, 957 (5th Cir.), reh'g denied, 818 F.2d 865 (1987)). Irresistible promises go to a defendant's reservations about making a statement, by proposing to him that the statement will not be used against him. Ibid.; see also Id. at 257 (holding that after the defendant requested an attorney, an officer's assurance that the defendant could make an "off-the-record" statement violated Miranda, and the statement elicited was involuntary). Here, the police did not suggest to defendant that his words would not be held against him; to the contrary, the claimed promise was that the police would hold defendant to his statement, the conferred benefit being the release of his brother.

By defendant's own admission, the promise was made some four hours before Goncalves's questioning began. This lapse in time is significant because defendant was provided ample time to change his mind and decide whether he wanted to make a statement to the police. The promise, if made, was not an immediate precedent to the statement. Patton, supra, 362 N.J. Super. at 46 n.7. See also Pillar, supra, 359 N.J. Super. at 274, discussing Carswell v. State, 491 S.E.2d 343, 346 (Ga. 1997), where a defendant's "off-the-record denial" was three hours before his subsequent post-Miranda confession, and the court stated that the defendant "could not reasonably have expected that his interrogation was being conducted off-the-record. . . . [The] confessions were quite remote from, and not prompted by, the investigator's claim that they were speaking off-the-record." Moreover, the time elapsed from initial arrest to the making of the statement was not so prolonged as to 'psychologically break down' defendant, spanning from some time on the evening of January 12, 2001, to about two hours after midnight. See State v. Driver, 38 N.J. 255, 282 (1962) (interrogation over nine days); State v. Fauntleroy, 36 N.J. 379, 397 (1962) (five-day delay in arraignment, and lack of food).

The determination as to whether the promise was in fact made involved questions of credibility. The judge found that the Miranda warnings were adequately provided, and that defendant knowingly and intelligently waived his rights. The trial judge found defendant not credible as to what was said in the holding cell, and during the interrogation and the making of the statement. The judge also determined Goncalves credible regarding defendant's un-elicited question, "What can I do to help myself?," the detective's response, and the format of the interrogation. On the basis of credibility and believability, the judge determined that the promise was not made. We grant deference to a judge's ability to hear the evidence and assess witness credibility, State v. Johnson, 42 N.J. 146, 161 (1964); accord State v. Locurto, 157 N.J. 463, 470-71 (1999), and we will not disturb the result where it is based on sufficient credible evidence in the record. Johnson, supra, 42 N.J. at 162.

We are convinced that the totality of the circumstances support the judge's determination that even if the promise was made, it would not, by itself, rise to the level of coercion necessary to render defendant's statement involuntary. We are satisfied that there was sufficient credible evidence for the judge to determine, beyond a reasonable doubt, that defendant voluntarily waived his right against self-incrimination and that the statement was voluntary; thus, the statement was properly admissible at trial.

II.

Defendant argues under Point II.B that the terms of imprisonment imposed violate Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). On appeal, the State concedes that the case should be remanded for re-sentencing in accord with State v. Natale, 184 N.J. 458 (2005) (Natale II). We agree.

In Natale II, supra, 184 N.J. at 466, our Supreme Court held "that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Thus, when a defendant receives a sentence higher than the presumptive term based on a judicial finding other than a prior criminal conviction, the sentence does not comply with the Sixth Amendment. Ibid. To remedy the constitutional defect in our sentencing code that permitted sentencing judges to impose a term above the presumptive based on the finding of aggravating factors other than a prior conviction, the Court eliminated presumptive terms, but left intact the sentencing ranges contained in N.J.S.A. 2C:43-6a. Id. at 487.

For those defendants whose cases were on direct appeal as of the date of the decision, or who had raised this challenge to their sentences at trial, or on direct appeal, and who had been sentenced to a term above the then presumptive term in violation of the Sixth Amendment, the Court ordered a new sentencing hearing. Id. at 494. At that hearing, which will be based on the record at the prior sentencing proceeding, the defendant is entitled to have "the trial court . . . determine whether the absence of the presumptive term in the weighing process requires the imposition of a [lesser] sentence." Id. at 495-96.

The judge found the following aggravating factors: N.J.S.A. 2C:44-1a(3) (risk that the defendant will commit another offense), N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record), and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). He did not find any mitigating factors. Although the judge only found recidivism factors (3), (6), and (9), those related to a defendant's criminal record, in cases where a defendant receives a sentence above the then presumptive term, we remand for re-sentencing in accord with Natale II.

In State v. Nesbitt, 185 N.J. 504 (2006), the defendant was convicted of third-degree possession of CDS; third-degree distribution of CDS; and third-degree distribution of CDS within 1,000 feet of school property. At sentencing, the trial court reviewed the defendant's criminal record and pre-sentence report, and determined that aggravating factors N.J.S.A. 2C:44-1a(3), (6), and (9), and no mitigating factors were applicable, sentencing the defendant to a nine-year term of incarceration with a four and one-half year period of parole ineligibility. Nesbitt, supra, 185 N.J. at 510. The Court affirmed the conviction, but reversed on sentencing, stating "[d]efendant received a mandatory extended term on Count 5 and was sentenced to nine years of incarceration. Because defendant's sentence on the extended term was set above the presumptive sentence applicable at the time to the extended-term range, the matter must be remanded to permit re-sentencing." Id. at 519 (citing Natale II, supra).

Here, defendant's sentence on all convictions exceeded the then presumptive terms: the conviction for third-degree possession of CDS with intent to distribute carried an extended term of five to ten years with a presumptive term of seven years; the conviction for second-degree possession of a firearm while committing certain CDS crimes carried a range of five to ten years, with a presumptive term of seven years; and the conviction for second-degree certain persons not to have a weapon carried a second-degree sentencing range of five to ten years, with a presumptive term of seven years. Defendant received custodial terms on the counts of nine years, eight years, and nine years, respectively. In accord with Natale II, we vacate the sentences, and remand for a new sentencing hearing.

We have considered defendant's remaining arguments under Points II.A and II.C, and conclude they are without merit. R. 2:11-3(e)(2). We add the following comments.

In determining the appropriate sentence to be imposed, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1a and b, balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record to review on appeal. State v. Kruse, 105 N.J. 354, 358 (1987); see R. 3:21-4(g). If a sentencing court properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Jabbour, 118 N.J. 1, 6 (1990).

The reasons provided by the judge in support of his finding on aggravating factors are somewhat sparse. He only recited the factors, and mentioned that he had reviewed the pre-sentence report. We are left to draw the inference, although a logical one, that the judge's findings of aggravating factors (3), (6), and (9) were based on defendant's substantial and significant criminal record. At the new sentencing hearing, the judge should clearly state his reasons for the finding of any aggravating and mitigating factors.

Defendant argues in Point II.C that the State failed to present proper reasons for the extended term. We disagree.

The State made an application for an extended term, specifically referring to defendant's conviction on Count Two and his prior conviction contrary to N.J.S.A. 2C:35-7, for distributing CDS within 1,000 feet of school property. The offense in Count Two, possession with intent to distribute cocaine is listed in N.J.S.A. 2C:43-6f as one for which a defendant "shall[,] upon application of the prosecuting attorney[,] be sentenced by the court to an extended term," if that defendant has any prior conviction for "manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog." The statute notes that "ordinarily" extended terms are discretionary, however, the plain meaning of the statute is that a defendant whose present conviction falls within N.J.S.A. 2C:43-6f, must be sentenced to an extended term. See also Nesbitt, supra, 185 N.J. at 510; 519 (imposing mandatory extended term pursuant to N.J.S.A. 2C:43-7, for enumerated offense in accordance with N.J.S.A. 2C:43-6f).

The convictions are affirmed; the sentences are vacated; and the matter is remanded to the trial court for a re-sentencing hearing in accordance with this opinion.

 

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

(continued)

(continued)

21

A-3745-03T4

August 4, 2006