STATE OF NEW JERSEY v. FLORIBETH CHINCHILLA

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4492-04T44492-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

KEITH ROBERT MIDDLETON,

Defendant-Appellant.

__________________________________

 

Submitted: November 9, 2006 - Decided December 7, 2006

Before Judges Cuff, Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-04-0953.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On August 31, 2002, Floribeth Chinchilla placed a few belongs in defendant Keith Robert Middleton's car and left her home in Summit to start a new life with defendant. At 4:15 the following morning, her body was found in a park in Bergen County by a woman walking her dog. Chinchilla had been stabbed multiple times. Defendant confessed the following morning. A jury convicted him of knowing or purposeful murder, contrary to N.J.S.A. 2C:11-3a(1) and (2); possession of a weapon (a knife) for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d; and hindering apprehension, contrary to N.J.S.A. 2C:29-3b. He is serving a life term of imprisonment subject to an 85% parole ineligibility term pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant married Elisa Tallerico in October of 1995. The couple lived with defendant's teenage son in a house located at 180 Beechwood Avenue in Bogota. Elisa worked as a freelance makeup artist and hair stylist for MTV television. Defendant was employed as executive chef at the Office Restaurant (the Office) in Summit. During summer 2002, defendant's wife was working at the site of an MTV production in Seaside Heights and was home only on weekends.

Floribeth Chinchilla worked with defendant at the Office. Floribeth moved to the United States from Costa Rica in 1995, leaving behind her daughter, Mayerlin, and her parents so she could earn money to send Mayerlin to college. Shortly after moving to the United States, Floribeth obtained employment as a bus girl at the Office. She eventually became the main prep cook and worked closely with defendant.

Floribeth lived at 7 Edgar Street in Summit, where she rented a room from Maria Lobo. Floribeth moved in with Maria and her family in 1998. The women, who were both from Costa Rica, became very close.

Floribeth's daughter, Mayerlin, spoke to her mother about once a week and came to the United States to visit on three occasions. Mayerlin first visited for two months in 1997. On her second visit in December 1999, Mayerlin again stayed for about two months. During this visit, Mayerlin spent time at the Office with her mother and met defendant for the first time. At the time, Floribeth and defendant were just friends. However, in February 2000, Floribeth telephoned Mayerlin in Costa Rica to tell her that she was dating defendant. Floribeth told Mayerlin that defendant was divorced and had a son. Defendant contends that Floribeth knew he was married.

When defendant first started working at the Office in October 1999, he told his general manager, Mohamed Awad, that he was married. After his intimate relationship with Floribeth began, defendant told his co-workers that he was divorced "so it wouldn't look bad on her especially." Defendant told Edwin Rodriguez, the subsequent general manager, that he obtained a divorce. Defendant also told Nicole Fleming, a bartender at the Office, that he was divorced.

As Floribeth's and defendant's relationship became more serious, defendant wrote love letters to her. In one letter, he asked Floribeth, "Will you marry me? I love you, mula woman with all my heart." In another letter, he wrote, "Hi, my sexy wife to be. Time is getting closer and closer, my love. You are my life -- I can't wait to spend the remaining time I have on this planet with you. I love you." In addition, in October 2000, defendant gave Floribeth an antique silver ring as an engagement ring. Although defendant denied that the ring was an engagement ring, Floribeth showed the ring to Fleming one day at work. When Fleming congratulated defendant on his engagement, he answered "Thanks."

During telephone calls to Costa Rica, Floribeth told her father that he was going to meet his son-in-law "because they were going to get married very soon." In September 2001, Mayerlin and her grandfather came to the United States to visit Floribeth. Floribeth and defendant picked them up at the airport and, during their visit, they saw defendant almost every day. When Floribeth showed them her ring, defendant confirmed that it was an engagement ring.

During their stay, defendant made Mayerlin, her grandfather and Floribeth dinner at his house in Bogota. Defendant told Mayerlin that after he and Floribeth were married, they were going to take a trip to Costa Rica. He also asked her if she wanted to take his last name. After Mayerlin returned to Costa Rica, she spoke to her mother and defendant on the phone and sent emails to her mother using defendant's email address. Several months later, in an email dated June 2, 2002, Mayerlin congratulated her mother on her upcoming wedding. At some point, Floribeth called Mayerlin to tell her that she was pregnant and "that she and [defendant] were very happy. That [defendant] wanted it to be a girl and apparently it was a boy."

Prior to Mayerlin's email, in May 2002, problems began to arise at the Office over defendant's relationship with Floribeth. The kitchen staff began to complain that defendant showed favoritism towards Floribeth. As a result, Awad met with defendant and told him that either defendant or Floribeth had to leave the restaurant because "it's not a good working situation." Awad indicated that he wanted to transfer Floribeth to another Office Restaurant in Morristown. Defendant responded, "No, don't waste your time. I'll be the one to leave," and quit. Floribeth quit two days later.

Defendant did not tell his wife that he quit his job at the Office. Instead, he told her that he had been promoted and would be traveling to different restaurants. As a result, she could only reach defendant on his cell phone. Defendant paid the bills that summer, using the couple's joint account. His wife transferred money into the account and assumed defendant was also depositing his check into the account. Elisa's assignment in Seaside Heights finished in late August when she would return to commuting to Manhattan and return home every night.

In August 2002, Floribeth told Maria Lobo that she was moving into defendant's house at the end of the month. She told Maria that she was leaving most of her belongings behind because defendant was going to buy her new things. Defendant testified that Floribeth was moving into her own apartment in Ridgewood or Hackensack.

On August 25, 2002, Floribeth suffered a miscarriage. When Mayerlin spoke to Floribeth after her miscarriage, Floribeth was sad, but her plans to move remained unaltered. On Friday, August 30, 2002, Mayerlin spoke with her mother for the last time. During their conversation, Floribeth explained that defendant was going to pick her up the following Saturday, take her to a restaurant and then to his house. She told Mayerlin to call her at defendant's house from then on and she promised to send Mayerlin a package of things she no longer needed.

That same day, Floribeth got a haircut in Summit. Floribeth told the owner, Anthony Pelsh, that she was leaving Summit and planned to live with defendant. She told Pelish that she was leaving most of her belongings behind because they were going to start fresh and buy new things. That night, Floribeth called the hairdresser and asked if he knew anyone who wanted to buy bunk beds because she was not going to be able to bring them with her to defendant's house. Anthony was going to ask around and they would speak in the morning. The next morning, on August 31, 2002, Anthony told Floribeth he would store them for her. Floribeth indicated that defendant was on his way to pick her up and that when he got there she would contact Pelish and tell him what they wanted to do. Pelish never heard from Floribeth again.

In the afternoon of August 31, 2002, Maria Lobo returned home from work and heard Floribeth yelling, "Maria, Maria." Floribeth was standing in front of the house and defendant was sitting in his Ford Escape in front of the house. Floribeth was leaving and wanted to say goodbye and thank Maria for everything. Defendant contends Floribeth told him that she was moving to Ridgewood. Maria had the impression that Floribeth was afraid of something so she told Floribeth that she did not have to leave. Floribeth said she had to go. She gave Maria a hug and kiss and got into the Ford Escape with defendant. Before they left, Maria asked for Floribeth's address and phone number. Floribeth promised to return in the middle of the week to give it to her. That was the last time Maria heard from or spoke to Floribeth.

On September 1, 2002, at about 4:15 a.m., Antoinette Bush was in Overpeck Park walking her dog when she came upon the body of a woman lying on the grass near the running track. The body appeared lifeless. The woman was wearing jeans, sneakers, a T-shirt and a white sweater. There was an oval shaped bloodstain on the back of the woman's white sweater from her neck to the mid portion of her back. Ms. Bush called 9-1-1 with her cell phone.

Officers Christopher Jones and Heather Murphy of the Leonia Police Department responded to the scene. After realizing the young woman was dead, they sectioned off the area, closed the park and contacted Leonia and Bergen County Police.

Detective Gerard Dargan of the Bergen County Prosecutor's Office responded to the scene at 5:49 a.m. and was ordered to conduct a crime scene investigation. Detective Lynn Morrissey of the Bergen County Prosecutor's Office and several Bergen County police officers also responded to the scene.

At approximately 6:00 a.m., Dr. Sunandan Singh, the Bergen County Medical Examiner, arrived at the scene. Dr. Singh's external examination of the body revealed thirteen injuries including nine stab wounds. The stab wounds were to the neck, chest region, collarbone, bellybutton, shoulder, left arm, torso, and left ring finger. Dr. Singh characterized several of the wounds as defensive wounds.

Dr. Singh performed an autopsy of the body at around 10:30 a.m. The deepest wound was six inches in depth, and Dr. Singh opined that a double edged sharp cutting instrument, such as a knife, was used to inflict the injuries. As a result of the autopsy, Dr. Singh determined the cause of death was multiple stab wounds of the body and the manner of death was homicide.

There was no identification on the body. Officers of the Bergen County Sheriff's Department took the victim's fingerprints at the autopsy and entered them into the Automated Fingerprint Identification Service (AFIS). Shortly thereafter, the victim was identified as Floribeth Chinchilla. An arrest report from 2000 listed Maria Lobo as next of kin and led police to the Summit apartment.

Detective Dargan and Detective Cleri spoke to Maria Lobo and other family members. They learned that Floribeth had left the house the night before with her fiancé, "Keith." Floribeth was moving into an apartment with Keith and worked with him at the Office in Summit.

At the Office, where they spoke to general manager Edwin Rodriguez, the detectives learned that Floribeth and Keith had quit their jobs at the Office prior to Mother's Day and that Floribeth was involved in an intimate dating relationship with defendant. Rodriguez provided the detectives with defendant's last known address, 180 Beechwood Avenue in Bogota.

At 7:30 p.m., the detectives proceeded to 180 Beechwood Avenue along with a patrolman from the Bogota Police Department. After Dargan rang the doorbell, defendant answered the door. Dargan advised defendant that they were conducting an investigation and they needed information regarding his fiancée, Floribeth Chinchilla. Defendant responded that Floribeth was not his fiancée and, pointing toward the living room area, stated that "I live here with my wife." Defendant's wife walked over to the door. At that point, defendant stepped outside and closed the door behind him. Defendant claimed he had not seen Floribeth in months. He agreed to accompany the detectives to Dargan's office.

Prior to being placed into Dargan's car and handcuffed, defendant was advised of his Miranda rights at approximately 7:45 p.m. At Dargan's office, an officer removed the handcuffs and defendant was escorted into an interview room. Prior to the interview, Dargan advised him of his Miranda rights at approximately 7:54 p.m., utilizing a Bergen County Prosecutor's Office Miranda rights form. Defendant read the form and waived his rights.

During the interview, defendant claimed he and Floribeth were friends and co-workers. When Dargan told defendant that they had information that they were more than friends and that defendant had helped her move out the night before, defendant admitted to being in Floribeth's company the night before. He told Dargan that he had lied because "he didn't want anyone to think he was doing anything wrong due to the fact that he was married."

When Dargan recounted all the information gathered from her friends and colleagues regarding their dating relationship, defendant admitted to having an intimate relationship with Floribeth for the last two and a half years. Defendant then asked if she was all right, to which Dargan responded that she had been murdered. Defendant became upset and asked who did it. He asked Dargan if they thought he had done it, to which Dargan responded "absolutely." Defendant denied any involvement in Floribeth's murder and said he had lied about his intimate relationship with Floribeth because his wife was still under the impression that he worked at the Office.

When Dargan asked defendant if he had ever been in the area of Overpeck Park, he said no. However, when defendant was told that a Leonia police officer in the area had seen his vehicle near the park, defendant admitted to being in that area. This initial denial/recantation pattern continued throughout the interrogation. Every time defendant was confronted with a statement contradicting something he had said, he would admit the truth. Despite these admissions, defendant still denied killing Floribeth.

At approximately 9:45 p.m., Dargan stopped the interview to speak with Detective Morrissey. Dargan was advised that defendant's wife was in the building. Dargan reentered the interview room and asked defendant what Floribeth was wearing during their last encounter. "He described her clothing down to a 'T' leaving out the sweater, the ivory sweater that was blood soaked." Because Dargan thought the cream sweater seemed oversized and not something Floribeth would wear, he asked defendant if it was his sweater or his wife's, to which defendant answered no. When Dargan told defendant that he was going to ask defendant's wife who the sweater belonged to, defendant became upset and commented, "How are you going to show my wife my girlfriend's bloody sweater." Dargan had never revealed to defendant anything about the sweater or that it was bloody. Nor had Dargan mentioned anything about the way Floribeth's body was found or that there was blood anywhere. In this light, Dargan suspended the interview at approximately 11:00 p.m. and placed defendant under arrest, charging him with Floribeth's homicide.

After defendant was transported to the Bergen County Police Department and placed in a holding cell, Dargan conducted a search of defendant's Ford Escape and his wife's Ford Explorer. Defendant had consented to a search of his home, his Ford Escape and his wife's Ford Explorer during the interview. The vehicles were towed from defendant's residence to the Bergen County Sheriff's Department where Dargan conducted the search. In defendant's Ford Escape, Dargan found Floribeth's cell phone with a smear of blood on the number seven; blood on the carpet; a television; a CD player; a large brown Coach box; a black cordless phone; a case of Goya beans; and a pocketbook. The Coach box and pocketbook contained numerous items belonging to Floribeth including a passport, credit cars, identification, a hair clip, perfume, and a picture. The box also contained letters from defendant professing his love to Floribeth and asking her to marry him. No items of evidentiary value were discovered in the Ford Explorer driven by defendant's wife.

Meanwhile, Detective Gilbert Breit of the Bergen County Prosecutor's Office conducted an outside search of defendant's home. While nothing was found on the perimeter of the house or grounds, a garbage can on the side of the house contained a black plastic bag. Inside the bag, Breit found a bloody grey sweater and a small white plastic bag that contained two knives in sheaths. Detective Breit also found numerous personal items, including ladies clothing and toiletries. In a leather jacket, Breit found a Visa card in Floribeth's name. Tests performed on the grey sweater were positive for Floribeth's DNA.

After completing the vehicle searches, Dargan secured the evidence and proceeded to the Bergen County Police Department where defendant was being held. Upon their arrival at approximately 5:00 a.m., Dargan and Detective Cleri removed defendant from the holding cell and escorted him to an interview room in the Detective Bureau. Prior to speaking with defendant, Dargan re-administered his Miranda rights with a copy of the Miranda form he had used earlier. After reading the form, defendant signed it. Dargan did not ask defendant to answer each question on the form because defendant said he understood his rights as Dargan had already gone through them with him earlier.

After advising defendant of his rights, defendant became very anxious. Dargan told him that two knives were found in his garbage can as well as bloody clothing, at which point defendant's attitude and demeanor changed. He became upset and blurted out, "It happened in the park. It happened in the park. I did it." At that point, defendant told Dargan what occurred on the evening of August 31, 2002.

Defendant told Dargan that, on the evening of August 31, 2002, he was helping Floribeth move, but did not know where she was moving or with whom she intended to live. After moving her belongings into his car, they had dinner at the Broadway Diner. They were having a rough week because of Floribeth's miscarriage and because defendant was trying to end the relationship. After eating, they drove into New York, around Prospect Park and then over the George Washington Bridge into New Jersey. Defendant told Dargan that he was trying to end the relationship that night. Floribeth would get upset. On the way to her home to Summit, around 11:00 p.m., Floribeth told defendant she wanted to go to Overpeck Park and directed him there. They walked around the exercise track and talked and she became upset about the breakup and yelled at him, saying that she was going to tell his wife about their relationship. Floribeth became afraid while they were walking because she heard something in the bushes, so defendant went back to the car to get a cigarette and a knife for protection. He put the knife up his sleeve and went back to Floribeth, who subsequently went "ballistic." At that point, defendant "lost it" and remembered stabbing Floribeth once with the knife. She fought back.

After stabbing Floribeth, defendant remembered sitting on the ground and holding her for a while. Defendant then left the park and drove to CVS to get a soda. He then went back to the park to check on her. After looking at Floribeth's body from his car, defendant drove home, spoke to his wife briefly and went to sleep. The following morning he woke up and smelled and tasted blood, which made him remember what he did. He went out to his car and saw his bloody sweater and his knives and discarded them in his garbage can and cleaned up the car.

After recounting the events of August 31, defendant told Dargan, "I'm a monster. I'm a monster. I need to be punished. I'm sorry. I'm sorry." At that point, Dargan asked defendant if he was willing to give a formal stenographic statement. When the stenographer arrived, defendant refused to give a statement. He also refused to give a taped statement. Then, defendant requested the assistance of an attorney and Dargan returned him to his cell. At trial, defendant's testimony was consistent with his oral statement.

On appeal, defendant raises the following arguments:

POINT I

THE DEFENDANT'S ORAL STATEMENTS MADE TO DETECTIVE DARGAN SHOULD HAVE BEEN SUPPRESSED ON THE GROUNDS THAT THE "TOTALITY OF THE CIRCUMSTANCES" WERE SO INHERENTLY COERCIVE AS TO RENDER THEM INADMISSIBLE.

POINT II

THE TRIAL COURT ERRED IN ADMITTING THE DECEASED'S "STATE OF MIND" HEARSAY STATEMENTS.

(A)

THE STATE OF MIND HEARSAY STATEMENTS WERE NOT RELEVANT TO A MATERIAL ISSUE OR FACT OF CONSEQUENCE IN GENUINE DISPUTE AND WERE ADMITTED FOR AN IMPROPER PURPOSE.

(B)

THE TRIAL COURT APPLIED AN ERRONEOUS "DYING DECLARATION" RATIONALE IN ADMITTING THE DECEASED'S STATE OF MIND STATEMENTS.

(C)

THE EVIDENCE SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403.

POINT III

THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION WAS VIOLATED.

POINT IV

THE TRIAL COURT VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION BY PRECLUDING THE DEFENDANT FROM ADMITTING EVIDENCE THAT THE DECEASED WAS AN ILLEGAL ALIEN WHO USED A FALSE IDENTIFICATION.

POINT V

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION BECAUSE THE HYPOTHETICAL SCENARIO USED MISREPRESENTED THE FACTS, THE LAW, AND THE STATE'S BURDEN OF PROOF.

POINT VI

THE MANNER IN WHICH DEFENSE COUNSEL PORTRAYED THE DEFENDANT IN HIS OPENING STATEMENT CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW).

POINT VII

IMPOSITION OF A LIFE SENTENCE WITH THIRTY (30) YEARS OF PAROLE INELIGIBILITY ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

(A)

IMPOSITION OF A LIFE SENTENCE, INSTEAD OF A THIRTY (30) YEAR SENTENCE WITH THIRTY (30) YEARS OF PAROLE INELIGIBILITY, WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

(B)

IMPOSITION OF A LIFE SENTENCE VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

All of these arguments are without merit, and we affirm the conviction and sentence.

I

Defendant contends his statements to Detective Dargan should have been suppressed because "the Detective's conduct was unduly coercive under the 'totality of the circumstances' test.'" He specifically argues that Dargan used deceit and intentionally lied to defendant in the course of his interrogation and only advised defendant of the nature of the police investigation after several hours of questions. In addition, the court failed to consider the length of the interrogation, Dargan's persistence in questioning defendant after he denied involvement in Floribeth's death, and Dargan's attempt to bond with defendant. Finally, defendant claims to have been threatened with higher bail and the arrest of his wife unless he cooperated and gave a statement to police.

Judge Conte found that defendant understood his Miranda rights, that he voluntarily waived those rights, and that he voluntarily made his statement to Dargan. We agree. Confessions obtained by police during custodial interrogation are barred from evidence unless, prior to questioning, the accused has been advised (1) of the right to remain silent; (2) that any statement made may be used against him or her; (3) that the person has a right to an attorney; and (4) that if the person cannot afford an attorney, one will be provided. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707. The accused may waive these rights, provided the waiver is made "voluntarily, knowingly and intelligently." Ibid.

A waiver that "'appears knowing, intelligent, and voluntary, may still be deemed invalid when elicited in an atmosphere of coercion.'" State v. Knight, 183 N.J. 449, 467 (2005) (quoting State v. Reed, 133 N.J. 237, 256 (1993)). However, "[t]he fact that an investigative officer is friendly, sympathetic, and encourages the trust of the defendant to give a statement ordinarily would not render the confession involuntary." State v. Di Frisco, 118 N.J. 253, 257 (1990). Rather, a detective's statements must be so "'manipulative or coercive that they deprived [defendant] of his ability to make an unconstrained, autonomous decision to confess.'" Ibid. (quoting Miller v. Fenton, 796 F.2d 598, 605 (3d Cir.), cert. denied sub nom, Miller v. Neubert, 479 U.S. 989, 107 S. Ct. 585, 93 L. Ed. 2d 587 (1986)).

The State has the burden of proving beyond a reasonable doubt that "a defendant's confession was voluntary and was not made because the defendant's will was overborne." Knight, supra, 183 N.J. at 462. In determining whether a statement was made voluntarily, the court must consider the "'totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation.'" Ibid. (quoting State v. Galloway, 133 N.J. 631, 654 (1993)). Factors the court must consider 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.

[Id. at 462-63 (quoting Galloway, supra, 133 N.J. at 654.]

In addition, factors such as a defendant's previous encounters with law enforcement, State v. Presha, 163 N.J. 304, 313 (2000), and the period of time between "administration of the [Miranda] warnings and the volunteered statement" have also been considered. State v. Timmendequas, 161 N.J. 515, 614 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

Here, nothing in the record supports a conclusion that defendant's statement was not the "product of 'an essentially free and unconstrained choice.'" State v. Pickles, 46 N.J. 542, 577 (1966) (quoting Culombe v. Conn., 367 U.S. 568, 602, 81 S. Ct. 1860, 1879, 6 L. Ed. 2d 1037, 1057 (1961)). This is not a case where defendant's inculpatory statement was "extracted by basically unfair means." Compare Ibid. (finding confession not voluntary when pregnant defendant was "easy prey to interrogative pressure" by being questioned alone after son's funeral); with State v. Miller, 76 N.J. 392, 405 (1978) (finding confession voluntary notwithstanding police officer's appeal to suspect as a friend by telling him he needed medical help, not punishment). Here, defendant voluntarily confessed after knowingly and intelligently waiving his Miranda rights three times.

Prior to being transported to the Bergen County Prosecutor's Office on September 1, 2002, defendant was first informed of his Miranda rights at 7:45 p.m. Less than ten minutes later, at 7:54 p.m., he was again informed of his Miranda rights at the prosecutor's office. Dargan read defendant his rights utilizing a Bergen County Prosecutor's Office Miranda Rights form. Defendant acknowledged that he understood his rights by writing "yes" and placing his initials after each right. After defendant had an opportunity to read the form, Dargan read the waiver portion of the form aloud. At that time, defendant waived his rights and agreed to speak with Dargan without an attorney present.

Approximately nine hours later, at 5:00 a.m. on September 2, 2002, Dargan advised defendant of his Miranda rights for a third time. Dargan used a photocopy of the Miranda rights form previously read to defendant. Defendant again agreed to speak with Dargan. At that point, Dargan told defendant that two knives and bloody clothing had been found in his garbage can. Defendant became upset and blurted out, "It happened in the park. It happened in the park. I did it." Defendant subsequently told Dargan the events of the evening of August 31, 2002.

In addition to being advised of his Miranda rights several times, defendant's interview sessions were not unreasonably long. His first interview commenced around 8:00 p.m. on September 1, 2002 and ended at 11:00 p.m. the same evening. There was a six-hour break in questioning. At 5:00 a.m., Dargan re-administered defendant's Miranda warnings and defendant subsequently confessed to the murder of his girlfriend.

Citing State v. Patton, 362 N.J. Super. 16, 31 (App. Div.), certif. denied, 178 N.J. 35 (2003), defendant argues that his statements to Dargan should have been suppressed because Dargan used deceit and lied to defendant to elicit a confession. The facts in Patton are clearly distinguishable from the instant case. In Patton, the police fabricated an audio tape from an alleged eyewitness and played it for the defendant. Id. at 19-23. Here, Dargan did not fabricate false tangible evidence to elicit a confession from defendant. Rather, Dargan's trickery was entirely verbal. For instance, Dargan told defendant that his car had been seen in Overpeck Park on the evening in question when, in reality, no such sighting was made. Such a tactic was utilized because defendant admitted the truth when confronted with information contrary to a prior statement. Such trickery is permissible and did not render defendant's confession inadmissible.

Defendant's contention that his confession should have been suppressed because Dargan attempted to "bond" with him is equally without merit. As stated earlier, "[t]he fact that an investigative officer is friendly, sympathetic, and encourages the trust of the defendant to give a statement ordinarily would not render the confession involuntary." Di Frisco, supra, 118 N.J. at 257. Rather, an investigator's statements must be "'so manipulative or coercive that they deprived [the defendant] of his ability to make an unconstrained, autonomous decision to confess.'" Ibid. (quoting Miller, supra, 796 F. 2d at 605). Here, the fact that defendant used Dargan's first name during the interrogation and asked Dargan, after confessing, whether he needed an attorney, does not evidence either manipulative or coercive conduct on Dargan's part that deprived defendant of his ability to make an unconstrained, autonomous decision to confess. Notably, defendant asked whether he should consult an attorney only after confessing to the killing. The solicitation of advice had no effect on defendant's decision to confess.

Defendant further contends that the trial court erred in failing to consider Dargan's persistent questioning of defendant after he denied involvement in Floribeth's death. However, Dargan conducted only two interviews of defendant, neither of which were unreasonably long and both were separated by approximately six hours.

Finally, defendant claims to have been threatened with higher bail and the arrest of his wife unless he cooperated and gave a statement to police. Even assuming that such threats were made, they were not so "manipulative or coercive that they deprived [defendant] of his ability to make an unconstrained, autonomous decision to confess." Ibid. This is evidenced by the fact that, after receiving those alleged threats from Dargan, defendant continued to deny involvement in Floribeth's killing for several hours. Defendant only confessed to the crime after being confronted with inculpatory evidence.

In sum, the trial court's determinations of voluntariness and waiver were amply supported by the record. The totality of the circumstances in this case demonstrated that defendant's right to a fair trial was not violated because his statement was not obtained by coercion on the part of Dargan.

II

The trial judge admitted in evidence several statements made by Floribeth to friends and family regarding her intimate relationship with defendant and her plans to marry and move in with him. Defendant contends the trial judge erred in admitting Floribeth's statements under the state of mind hearsay exception because her state of mind was not relevant to any material issue in genuine dispute and because such statements were improperly offered to prove defendant's intent and motive.

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). The hearsay rule applies when a statement is introduced to prove the truth of the matter stated. State v. Long, 173 N.J. 138, 152 (2002). If a statement is not offered for the truth of the matter asserted, the statement is not hearsay and no exception to the hearsay rule is necessary to introduce that statement at trial. Ibid. However, if hearsay evidence is presented, it can only be admitted under one of the exceptions to the hearsay rule. N.J.R.E. 802.

One of those exceptions, referred to as the state of mind exception, covers "statement[s] made in good faith of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health). . . ." N.J.R.E. 803(c)(3). Such statements are "considered reliable because the surrounding circumstances guarantee [their] trustworthiness." Long, supra, 173 N.J. at 154. As a predicate to admission of such evidence, the statement must reflect a mental condition of the declarant that constitutes a genuine issue in the case or must be otherwise relevant to explain the declarant's conduct. State v. Downey, 206 N.J. Super. 382, 390 (App. Div. 1986).

Here, defendant cites both State v. Benedetto, 120 N.J. 250 (1990) and State v. Machado, 111 N.J. 480 (1988) in support of his contention that Floribeth's statements to friends and family concerning their relationship should have been suppressed. In Machado, supra, 111 N.J. at 489-90, the Supreme Court held that a victim's extrajudicial statements of fear were inadmissible to show the defendant's state of mind. The Court reaffirmed that position in Benedetto, supra, 120 N.J. at 255-61. Nevertheless, in both Machado and Benedetto, the Court left the door open for admission of a victim's statements as background to establish the nature of the relationship between the victim and the defendant. Machado, supra, 111 N.J. at 489; Benedetto, supra, 120 N.J. at 257-58. The Court found such statements to be "indirectly relevant as part of the 'mosaic' of the event." Machado, supra, 111 N.J. at 489 (citing State v. Baldwin, 47 N.J. 379, 394, cert. denied, 385 U.S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966)).

Here, the trial judge reasoned that Floribeth's statements shed some light on her relationship with defendant and helped explain her conduct on August 31, 2002. We agree. The admission of these statements as "part of the mosaic of the criminal event" are consistent with the Court's holdings in Machado and Benedetto. Furthermore, the nature of the relationship was hotly contested at trial.

We also reject the argument that the victim's statements were inadmissible because they caused undue prejudice to defendant. N.J.R.E. 403 provides that evidence, otherwise admissible, may nevertheless be excluded if the judge, in his discretion, finds that its probative value is substantially outweighed by the risk of undue prejudice. In performing the weighing process called for by the rule, the trial judge's "discretion is a broad one." State v. Sands, 76 N.J. 127, 144 (1978). Thus, determinations by the trial court pursuant to this rule will not be overturned on appeal "unless it can be shown that the trial court palpably abused its discretion." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (citing State v. Thompson, 59 N.J. 396, 420 (1991)).

In deciding whether to exclude evidence based on its potential for prejudice, "a court must consider the availability of other evidence that can be used to prove the same point." State v. Covell, 157 N.J. 554, 569 (1999). Probative value is enhanced by the absence of such other evidence. Ibid. Conversely, relevant evidence loses some of its probative value if there is other less inflammatory evidence available to prove that point. Ibid.

Here, defendant contends Floribeth's statements "had little probative value because the nature of the relationship between the defendant and Ms. Chinchilla was never in genuine dispute and was clearly established by other evidence in the case including the defendant's oral statements." We disagree. Floribeth's statements were highly relevant to a contested and central issue.

These statements shed some light on Floribeth's relationship with defendant and her conduct on the day of her death. Contrary to defendant's argument on appeal, the nature of their relationship and defendant's intentions regarding this relationship were hotly contested. These statements went a long way to depict the impossible situation in which defendant found himself. He had been leading a double life and his duplicity was about to be uncovered by both women. The evidence was certainly prejudicial; yet its relevance substantially outweighed the prejudice.

III

At trial, Dargan testified that the interview finally stopped when defendant requested an attorney. Defendant contends that this testimony violated his privilege against self-incrimination. The judge properly found that Dargan's testimony did not violate defendant's privilege against self-incrimination as defendant had already confessed to killing Floribeth when he requested counsel. Defendant never invoked his right to remain silent and, therefore, Dargan could not have remarked on defendant's silence.

The privilege against self-incrimination is deeply rooted in New Jersey common law and codified in N.J.S.A. 2A:84A-19 and N.J.R.E. 503. State v. Muhammad, 182 N.J. 551, 567 (2005). Both the statute and rule provide that "every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate. . . ." N.J.S.A. 2A:84A-19; N.J.R.E. 503.

A suspect's right to remain silent while in police custody or under interrogation "'has always been a fundamental aspect of the privilege [against self-incrimination] in this state.'" Muhammad, supra, 182 N.J. at 567 (quoting State v. Deatore, 70 N.J. 100, 114 (1976)). Thus, a suspect in custody "'is privileged to say nothing' at all to the police and 'is under no duty to give a statement. . . .'" Ibid. (quoting State v. Ripa, 45 N.J. 199, 204 (1965)). Even when a suspect speaks with police, his right to invoke the privilege and remain silent at a later point remains intact. Id. at 568. Because the court cannot accurately determine whether a suspect's silence is a concession to the truth of an accusation or merely an assertion of his privilege, a jury is not permitted to deduce guilt from a defendant's silence. Id. at 567.

Here, Dargan testified that defendant orally confessed to the murder of Floribeth. Subsequent to his confession, Dargan asked defendant to provide a stenographic or taped statement of the confession. After some equivocation, defendant opted to invoke his right to have an attorney present and questioning ceased. Defense counsel objected to this testimony and moved for a mistrial, claiming the testimony violated defendant's right against self-incrimination. The court denied the motion, noting that defendant never invoked his right to remain silent. Defense counsel then requested that the court refrain from giving a limiting instruction "rather than bring it to [the jury's] attention." However, on the following morning, Judge Conte instructed the jury that:

a defendant's right to request an attorney or his right to remain silent in no way is to be used against him or to be used to infer guilt on his part . . . the mere fact that he revoked his right to remain silent before speaking to an attorney is not in any way at all to be considered by you during your deliberations.

Such an instruction ameliorated any potential prejudice to defendant as a result of Dargan's testimony. Although defendant now contends the court's instruction was untimely, Judge Conte's hesitation was entirely due to defense counsel's opposition to a curative instruction. The instruction was appropriate and provided no basis for a mistrial.

IV

Defendant contends the trial court violated his Sixth Amendment right to confrontation by precluding evidence of Floribeth's non-citizen status and her use of false identification for employment purposes. Defendant also contends certain comments made by the prosecutor during summation constituted harmful error and deprived him of a fair trial. Specifically, he contends the prosecutor referred to a hypothetical scenario that was unrelated to the crime for which he was charged and, thus, resulted in a misrepresentation of the facts and a dilution of the State's burden of proof. Both of these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The victim's immigration status had no relevance to any issue in the case. Furthermore, viewed in the context of the entire summation, the jury could not have been misled.

V

Defendant contends he received ineffective assistance of counsel when, during his opening statements, trial counsel told jurors that defendant was "guilty." Read in context, defense counsel's concession was clearly made in an attempt to obtain a conviction to a lesser grade of homicide for his client.

We also note that ineffective assistance of counsel claims are generally not entertained on direct appeal because they "involve allegations and evidence that lie outside the trial record" and are more likely to require an evidentiary hearing where counsel has an opportunity to explain the reasons for his conduct or inaction. State v. Preciose, 129 N.J. 451, 460, 462 (1992); State v. Fritz, 105 N.J. 42, 67 (1987). Direct appellate review is only appropriate when the trial record discloses all of the essential facts supporting a defendant's claims. State v. Allah, 170 N.J. 269, 285 (2002). Therefore, claims of ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a); Preciose, supra, 129 N.J. at 460. Although we find no basis for this claim based on the trial record, this disposition is without prejudice to a later petition for post-conviction relief.

VI

Defendant contends the court's imposition of a life sentence with an 85% NERA parole disqualifier was manifestly excessive and violated his constitutional rights under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Natale, 184 N.J. 458 (2005) (Natale II). We disagree.

"In sentencing, trial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). Thus, when reviewing a trial court's sentencing decision, "an appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). This court may review and modify a sentence only when the trial court's determination was "'clearly mistaken.'" State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). Within these limitations, this court is empowered to:

"(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case make the sentence clearly unreasonable so as to shock the judicial conscience."

[Dalziel, supra, 182 N.J. at 501 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

In imposing a sentence, a trial court should "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215 (citing State v. Kruse, 105 N.J. 354, 359-60 (1987)). Aggravating and mitigating factors are not simply to be balanced and accorded equivalent value, but rather the focus around which factors are to be weighed is always the severity of the crime. State v. Hodge, 95 N.J. 369, 377-79 (1984). New Jersey's "sentencing statute contemplates a thoughtful weighing of the aggravating and mitigating factors, not a mere counting of one against the other." State v. Denmon, 347 N.J. Super. 457, 467-68 (App. Div.), certif. denied, 174 N.J. 41 (2002).

Here, the trial court found two aggravating factors applicable to defendant's sentence: "[t]he nature and circumstances of the offense . . . including whether or not it was committed in an especially heinous, cruel, or depraved manner," N.J.S.A. 2C:44-1(a)(1); and "[t]he need [to] deter[] . . . defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9). Despite defendant's claim that the trial court abused its discretion in finding aggravating factor N.J.S.A. 2C:44-1(a)(1) applicable, the trial judge's finding is well supported by the record. Defendant had led a life of duplicity. He tricked the victim into leaving her friends and home and killed her when his double life was about to be exposed. The attack was violent. The victim was stabbed thirteen times. Any one of six of her wounds would have been fatal. The violence and cruelty of Floribeth's death, in addition to the need for both personal and general deterrence, supported the finding of aggravating factors (1) and (9).

Weighing against those factors, the trial judge found one mitigating factor applicable to defendant's sentence: the lack of a prior criminal record, N.J.S.A. 2C:44-1(b)(7). Nevertheless, the court determined that the two aggravating factors, i.e., the cruelty of the attack and the need to deter defendant and others from murdering, substantially outweighed the one mitigating factor. In making that determination, the court properly focused on the severity of defendant's crime. Hodge, supra, 95 N.J. at 377-79.

Defendant contends the imposition of a life sentence violated his constitutional rights under Blakely, supra, and Natale II, supra. Murder has no presumptive term. N.J.S.A. 2C:11-3(b)(1); State v. Abdullah, 184 N.J. 497, 507 (2005). Therefore, the standard sentencing range for murder is between thirty years and life imprisonment and the trial judge has discretion to impose a sentence within that statutory range based on his consideration of the applicable sentencing factors. Abdullah, supra, 184 N.J. at 507. In addition, because murder has no presumptive term, "defendant, like every murderer, knows he is risking life in prison." Id. at 508 (internal quotations omitted). In short, defendant's life sentence does not implicate the constitutional concerns of either Blakely or Natale II. Ibid.

Affirmed.

 

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

Defendant's contention that the victim's statements were admitted as dying declarations pursuant to N.J.R.E. 804(b)(2) finds no support in this record.

(continued)

(continued)

37

A-4492-04T4

December 7, 2006

 


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