STATE OF NEW JERSEY v. RASHID PETERSON-GAINES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4154-02T44154-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHID PETERSON-GAINES,

Defendant-Appellant.

_____________________________

 

Submitted November 29, 2005 - Decided May 19, 2006

Before Judges Kestin, Lefelt and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Middlesex County,

01-02-0230.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Alan I. Smith,

Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County

Prosecutor, attorney for respondent

(Simon Louis Rosenbach, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury over seven days in October 2002, defendant was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and third-degree hindering apprehension, N.J.S.A. 2C:29-3b(1). He was sentenced to a twenty-year custodial term on the aggravated manslaughter conviction, subject to the eighty-five percent period of parole ineligibility and the five-year post-release period of supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He was sentenced to a consecutive four-year custodial term on the hindering apprehension conviction. Appropriate fines and penalties were imposed together with a restitution requirement. Defendant appeals from the convictions and from the sentences imposed. We affirm.

Because defendant does not challenge the sufficiency of the evidence to sustain the convictions, we relate only the facts necessary to permit an understanding of the errors claimed by him. On Sunday of the 2000 Memorial Day weekend, defendant was seen with the victim, eighteen year-old Corey Stewart, in defendant's car. Stewart did not return home and, three days later, Stewart's mother, after unsuccessful attempts to locate him, filed a missing person report.

Some two weeks later, Stewart's mother and a Newark police detective visited defendant's home. Defendant explained that he had been with Stewart on Memorial Day weekend but that they had separated after defendant refused Stewart's request that defendant help him steal a car. Over the next two or three weeks, various individuals encountered defendant and inquired as to Stewart's whereabouts. Defendant admitted having been with Stewart but provided conflicting information as to when and where he had last seen him.

On June 21, 2000, Stewart's decomposed and unclothed body was found in Piscataway. The Piscataway Police Department began investigating the death and, by late August or early September, Piscataway Detective Chrisafulli began trying to locate defendant. On September 12, 2000, Chrisafulli arrived for work and was told that defendant was waiting to see him. Chrisafulli invited defendant to discuss the investigation he was conducting and defendant agreed.

They entered the police station and defendant was assured that he was neither under arrest nor a suspect. He immediately replied "I took Cory to the [Edison] train station." Over the next 14 hours, defendant provided at least three other explanations of his last contact with Stewart. Those explanations included a recitation that: (a) Stewart had been shot by persons who had previously insulted defendant and upon whom defendant and Stewart sought revenge; (b) Stewart had been strangled by defendant's cousin; and (c) defendant did not know how Stewart died but had viewed the body at the scene after reading newspaper accounts of the death.

During this period, defendant described the position of the body and revealed that he knew it to have been unclothed. That information had not been made public. Moreover, the body had been removed from the site before the publication of any newspaper account.

The investigating detective testified that defendant was not originally a suspect. During the course of the interview at the police station, he was provided with three meals and had access to snacks and soda. During breaks in the interview, while the police attempted to verify each of defendant's most recent explanations, he was permitted to move about the station. Nevertheless, as the investigation continued, defendant became more and more upset and his position continued to change. The police administered Miranda warnings on three separate occasions. Immediately after the last warning, defendant provided a full confession that was recorded and eventually provided to the jury.

Defendant moved to suppress the confession. After a hearing that included testimony concerning defendant's mental health history, the judge found defendant had voluntarily waived his Fifth Amendment rights and denied the motion to suppress. Defendant challenges that denial, claiming that the totality of the circumstances demonstrated the waiver to have been involuntary.

"Confessions are not voluntary if derived from 'very substantial' psychological pressures that overbear the suspect's will." State v. Cook, 179 N.J. 533, 563 (2004) (quoting State v. Galloway, 133 N.J. 631, 656 (1993)). Determining whether a statement is made voluntarily requires evaluating all of the circumstances surrounding the statement. The judge must weigh both

the characteristics of the defendant and the nature of the interrogation. Relevant factors to be considered 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.

 
[State v. Galloway, 133 N.J. 631, 654, (1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862 (1973) and State v. Miller, 76 N.J. 392, 402 (1978)).]

Consideration must also be given to a defendant's prior police experience and the time elapsed between the Miranda warning and the statement. State v. Knight, 183 N.J. 449, 463 (2005). "However, unlike physical abuse, 'use of a psychologically-oriented technique . . . is not inherently coercive.'" Ibid. (quoting State v. Galloway, supra, 133 N.J. at 654).

The motion judge considered the relevant factors:

As discussed by both counsel it is undisputed that there were not coercive measures that took place during the time that Mr. Gaines was detained. He was in a juvenile intake room at the station where he was free to use bathroom facilities, he was given food, he was taken out in a car on a site visit without handcuffs. I don't find that the police were overreaching in the way that they dealt with Mr. Gaines while he was detained.

The judge accepted as credible the testimony of Detective Chrisafulli respecting defendant's mannerisms, which provided no evidence of coercion. The judge also listened to the tape-recorded statement and found no basis to believe the statement given by defendant was anything but voluntary.

Defendant argues that participation of the police in conversations unrelated to the investigation, while police sought to confirm details provided by defendant, constitute an improper attempt to "bond" with him and render the statements inadmissible. Defendant recognizes that "there doesn't exist evidence that such egregious solicitations" described in those reported cases considering the issue and excluding the resulting statements "were made to defendant in this appeal." He contends for the same result, however, because of a request, made early in the interview and at a time when defendant was inconsistent in his reporting, that he "tell the truth" and because of a discussion in which defendant and an officer spoke of "the basic things in life.".

The motion judge considered all of the evidence and concluded that, "I find that the police acted appropriately in this case, that the defendant did, in fact, knowingly and voluntarily waive [his] rights . . . ." That conclusion is supported by substantial credible evidence and may not be reversed on appeal. State v. Watson, 261 N.J. Super. 169, 177 (App. Div. 1992), certif. denied, 133 N.J. 441 (1993); State v. Boone, 114 N.J. Super. 521, 525 (App. Div.), certif. denied sub nom., State v. Terry, 58 N.J. 595 (1971).

We reject, as without merit, defendant's claim that he was entitled to be advised that he was a suspect before the last Miranda warning was given. No authority requires such advice. State v. A.G.D., 178 N.J. 56 (2003), cited by defendant in support of his claim, is limited to "imposing the basic requirement to inform an interrogatee that a criminal complaint or arrest warrant has been filed or issued." Id. at 68-69. That situation simply does not exist here.

Defendant's remaining arguments do not require extensive discussion. Two of those arguments deal with evidence presented during the trial. The first relates to trial testimony about a blue bag. Defendant's confession included a statement that he had removed a blue bag from the car in which he had strangled Stewart and thrown it into a lake. The bag was recovered shortly before trial. It was identified at trial by a witness who testified that the bag was owned by him, had been placed in the car when Stewart and defendant were present, and was left in the car when Stewart and defendant drove off. In the course of that testimony, the witness indicated that he and Stewart intended to steal a car and that the bag contained tools to be used for that purpose.

Defendant objected to the admission of the bag because of the timing of its discovery; he did not object to the testimony that Stewart and the witness planned to steal a car. "[T]the admission or exclusion of evidence is within the discretion of the trial court." State v. Torres, 183 N.J. 554, 567 (2005). The blue bag was marginally relevant since it confirmed details contained in defendant's statement and its admission was well within the judge's discretion.

The testimony concerning the proposed theft was not the subject of an exception and, accordingly, is reviewed in accordance with the "plain error rule." State v. Green, 86 N.J. 281, 289 (1981). "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. Indeed, the lack of objection strongly suggests that defendant was not prejudiced by the statement. State v. Tierney, 356 N.J. Super. 468, 481-82 (App. Div.), certif. denied, 176 N.J. 72 (2003). In the context of this trial, given defendant's confession and the other evidence produced, we cannot conceive that this statement had the capacity to lead the jury to a verdict it would not otherwise have reached.

Defendant also failed to object to testimony given by Stewart's mother describing her son's character and his activities during the last days of his life. Our independent review of the transcripts of this trial convinces us that, while some of the testimony may have been improper, in context it was not "clearly capable of producing an unjust result."

Defendant next asserts the judge erred in refusing a request to charge self-defense. A criminal defendant "is entitled to have the jury consider any legally recognized defense theory which has some foundation in the evidence, however tenuous." State v. Powell, 84 N.J. 305, 317 (1980) (quoting People v. Dortch, 314 N.E.2d 324, 326 (1st Dist. 1974)). Nevertheless, the theory espoused by the defense must be "legally recognized."

Self-defense is not available to one who initiated the conflict in which he claims he was required to defend himself against the actions of the victim. State v. Moore, 158 N.J. 292, 312 (1999). The only evidence before the jury indicated that defendant and Stewart were arguing when defendant began to choke Stewart. That Stewart thereafter fought back, does not allow defendant to avoid the consequences of his role as the aggressor. The judge properly determined self-defense was not legally available to defendant and properly refused the request to advise the jury of that defense.

In the last argument addressed to the convictions, defendant asserts that "counsel's decision to pursue only a denial defense, and to forego a diminished capacity defense, constitutes an act of ineffective assistance of counsel." To prevail on this claim defendant was required to show both that counsel's performance was objectively unreasonable and that the deficient performance materially contributed to the conviction. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The decisions of counsel are not to be second-guessed and are insulated to the extent they represent reasonable, tactical choices. State v. Fisher, 156 N.J. 494, 499-500 (1998).

We assume, without deciding, that the record before us would allow us to conclude that a claim of diminished capacity was evidentially justified. Nevertheless, it does not permit us to determine whether the decision to forego that defense was a reasonable, tactical choice. Similarly, we are unable to determine from this record whether the failure to present the defense contributed to the result of the trial. We, therefore, decline to consider this argument which may, nevertheless, be raised on an application for post-conviction relief. See State v. Preciose, 129 N.J. 451 (1992).

Defendant's argument respecting the length of his sentence is without merit. The sentences were no higher than the presumptive sentences then in effect and we have no cause to substitute our judgment for that of the judge. See State v. Jarbath, 114 N.J. 394, 410 (1989) (the power to modify a sentence must be "used only sparingly: when trial courts are 'clearly mistaken' and 'the interests of justice demand intervention and correction'.") (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

We recognize that, although consecutive sentences were imposed, the sentencing judge did not specifically analyze all of the factors described in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). However, he did note that the failure to report the death caused distress to the victim's family, allowing the inference that he found the crimes to have separate victims. When the record is clear that consecutive sentences are appropriate, as is the case here, the failure of the sentencing judge to perform a complete Yarbough analysis does not compel a remand. State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.), certif. denied, 177 N.J. 492 (2003).

Affirmed.

 
 

 

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

(continued)

(continued)

12

A-4154-02T4

May 19, 2006