STATE OF NEW JERSEY v. DANIEL TARVER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4508-04T44508-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL TARVER,

Defendant-Appellant.

____________________________________________________________

 

Submitted May 15, 2006 - Decided June 29, 2006

Before Judges Lintner and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-01-00008-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (Michael McLaughlin, Assistant Prosecutor, on the brief).

PER CURIAM

On January 8, 2003, a Somerset County Grand Jury returned Indictment No. 03-01-00008-I, charging defendant, Daniel Tarver, with first-degree robbery, contrary to N.J.S.A. 2C:15-1 and third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d.

On May 10, 2004, a Miranda hearing was held before Judge Edward M. Coleman, to determine the admissibility of defendant's statement to police. After finding defendant's statement admissible, a jury trial was held from September 28, 2004 through September 30, 2004. At the close of trial, defendant was found guilty of both charges. On February 4, 2005, defendant was sentenced to a twenty-year term of imprisonment with an 85% parole disqualifier on the first degree robbery conviction. The weapons conviction was merged with the robbery conviction. We affirm defendant's conviction but remand for re-sentencing.

The victim, Bayram Ercan testified that in the early morning hours of December 5, 2002, he was working the 6:00 p.m. to 6:00 a.m. shift alone as the night-shift attendant at a Mobil Gas Station (station) on Union Avenue in Bound Brook. The station was across the street from the Bound Brook Apartment Complex (complex), where Roxanne Dickens (Roxanne) lived. Between midnight and 4:45 a.m. that morning, defendant came to the station by himself three times. Ercan recognized defendant because he often came to the station asking for cigarettes and was usually accompanied by Roxanne.

Defendant's first visit to the station that morning was at about midnight, when he and Roxanne came to the station trying to sell children's shoes to Ercan and to the driver of a gasoline delivery truck. After their visit, they walked toward the apartment complex. Defendant's first visit alone occurred at approximately 1:30 a.m. At that time, defendant asked Ercan for a free cigarette and then walked toward the complex. About an hour later, defendant returned and asked Ercan to use the bathroom and again asked for a free cigarette.

At around 4:45 a.m. defendant returned for a third time and asked to buy a pack of cigarettes. The cigarettes were kept outside in an area between the gasoline pumps. Ercan walked toward the area to retrieve a pack of cigarettes and defendant followed him. As Ercan reached for the cigarettes, he sensed movement behind him. When Ercan turned around, he saw defendant standing about three feet away, holding a hammer close to his head. Defendant ordered Ercan to give him all of his money and Ercan handed him approximately $100.00 from his jacket pocket. Defendant took the money and ran towards one of the buildings in the complex. Ercan called the police.

The police arrived at the station about five minutes later. Officer John Mazuera recalled that Ercan was "very shaky, he was very scared." Mazuera also noticed that Ercan was very hesitant to report the details of the robbery for fear that "this person would come back being that he worked alone, he was afraid this person would retaliate against him, if he pursued this matter." Ercan described the suspect as a black male, approximately 5'8" to 5'10" in height, age thirty to forty years, with short hair and wearing a blue sweatshirt and jacket. He also told Mazuera that he believed the suspect's name was Steve and that he lived with Roxanne in Apartment 70D of the complex.

At the direction of Detective Ronald Brezin, Mazuera went to Apartment 70D. A black female answered the door and identified herself as Roxanne. Defendant, who was lying on the couch, identified himself and agreed to speak to the police outside. Defendant denied any involvement in the robbery and told Mazuera he had not been at the station that night. Brezin brought Ercan to the apartment to make an identification but Ercan told Brezin defendant was not the person who robbed him. Mazuera returned to the station at about 2:45 a.m. the following night to check on Ercan. Mazuera advised Ercan to carry a cell phone so that he could easily contact the police if the suspect returned. Ercan then told him that defendant was, in fact, the man who robbed him and that he did not identify defendant the previous morning because he feared retaliation. When asked whether the assailant had any distinguishing characteristics, Ercan told Mazuera, "he had facial hair and really bad teeth."

Based on this information, Brezin returned to Apartment 70D and spoke with Roxanne, who gave the detective permission to search the apartment. Brezin found a hammer on a bedroom nightstand. Defendant, who was also in the apartment, was wearing a blue hooded sweatshirt. Defendant agreed to go with Brezin to police headquarters for questioning.

At police headquarters, defendant appeared coherent, alert and responsive. Prior to asking defendant about the case, Brezin advised defendant of his Miranda rights by reading a standard department form and allowing defendant to read it himself. Each time Brezin advised defendant of one right, he asked defendant if he understood the right and Brezin recorded defendant's affirmative responses on the form. At 10:35 a.m., after the form was filled out, defendant voluntarily signed and dated the bottom of the form and agreed to waive his rights and speak with the police.

Defendant was interviewed for approximately an hour and a half. At first he denied any involvement in the robbery. However, on further questioning, he stated that prior to the robbery, Roxanne threatened to throw him out of the apartment "in the cold" unless he obtained some money for her. Roxanne told defendant that she knew where to get money "real quick" and that he should take whatever he needed "to help him with the robbery or help you to get the money."

Defendant described taking a hammer that was in the bedroom, walking to the station, asking to go to the bathroom and then asking for a pack of cigarettes. When Ercan reached for the cigarettes, defendant pulled out the hammer and demanded all of his money. After Ercan handed over approximately $90.00, defendant went back to the apartment and gave Roxanne the money. Defendant told Brezin that he was sorry, that he had never robbed anyone before and did not intend to hurt anyone. He said if the attendant had refused to give him money, he would have run.

After defendant confessed to the robbery, Brezin asked him to provide a taped statement. However, defendant refused to provide the statement and requested an attorney. At that point, Brezin ended the questioning.

Defendant presents the following arguments for our consideration:

POINT I

BECAUSE DEFENDANT'S MENTAL DISORDER OF PARANOID SCHIZOPHRENIA PRECLUDED A KNOWING, INTELLIGENT AND VOLUNTARY WAIVER OF HIS MIRANDA RIGHTS, HIS POLICE STATEMENT WAS OBTAINED IN VIOLATION OF HIS PRIVILEGE AGAINST SELF-INCRIMINATION AND HIS RIGHT TO DUE PROCESS OF LAW. U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT II

A REMAND FOR RE-SENTENCING IS REQUIRED UNDER STATE V. NATALE, 184 N.J. 458 (2005).

POINT III

DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.

I

Defendant challenges the validity of his purported waiver of his Miranda rights. Defendant's challenge is based on the testimony of Dr. Edward Dougherty, a forensic psychologist, who has lectured and published articles on issues involving the ability to understand Miranda warnings.

Dr. Dougherty's evaluation of defendant included intelligence testing that he conducted and a review of defendant's prior medical and hospital records, which contained diagnoses of long-term paranoid schizophrenia. The intelligence testing revealed that defendant was of below-average intelligence but not retarded. Defendant was able to communicate some of his personal and medical history but displayed problems with focus and concentration. Additional testing by Dr. Dougherty confirmed the prior diagnoses of schizophrenia, with strong indications of depression, thinking disorder, and deviant behavior. There was no indication of malingering.

In Dr. Dougherty's opinion, defendant did not have the ability to comprehend Miranda warnings and was unable to make a knowing and intelligent waiver of those rights. His opinion was based on two clinical interviews of defendant, police reports, medical records, and the psychological tests, including one specifically designed to assess the ability to understand Miranda warnings.

Dr. Dougherty concluded that although defendant's test scores alone would not preclude him from understanding Miranda warnings, under the totality of defendant's circumstances, including his mental illness, he did not have the capacity to understand his Miranda rights. Because defendant reported that he had been drinking and he could not recall if he had taken his medication the day before his arrest, his poor memory and cognitive abilities would have been further impaired, especially in a stressful situation.

Defendant was also evaluated on behalf of the State by Dr. Martin Weinapple, a forensic psychologist. Dr. Weinapple opined that defendant was able to comprehend criminal proceedings due to his level of education, intellect and experience in the criminal justice system. Dr. Weinapple noted that defendant has a tenth grade education, has held a number of jobs, and obtained a certificate from "votech" in electric technology, which indicates that defendant has a fairly decent level of cognitive functioning, he can get along with people, and he thinks reasonably. It was Dr. Weinapple's opinion that one missed dose of medication would not affect defendant's cognitive functioning and that combining alcohol with medication would only result in possible sedation. However, since the police indicated that defendant was cooperative and coherent, there did not appear to be any problems with sedation.

Dr. Weinapple concluded that defendant comprehended his Miranda rights. The fact that defendant asked for a lawyer clearly indicated that defendant was intelligent and aware enough to comprehend the situation he was in and the protections Miranda afforded him. Further, defendant's recall of the incident, his expression of remorse, and his request for an attorney suggested that he understood the Miranda warnings.

In finding that defendant knowingly and intelligently understood and waived his Miranda rights, the judge reasoned that defendant appeared alert and coherent when he was questioned and was not under the influence of alcohol at the time police spoke to him. The judge determined that defendant's exercise of his right to counsel by requesting an attorney before giving a taped statement further demonstrated that he comprehended the situation and understood the Miranda rights previously recited by the police. Accordingly, the judge found that defendant's statements would be admissible at trial.

The State has the burden to demonstrate that defendant knowingly and intelligently waived his right against self-incrimination and his right to counsel. Miranda, supra, 384 U.S. at 475, 86 S. Ct. at 1628, 16 L. Ed. 2d at 724. "The State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." State v. Knight, 183 N.J. 449, 462 (2005). In determining whether a statement was voluntary, 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 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).

Although a suspect's mental condition may be relevant in determining whether a confession was voluntary, it is not enough in itself. Colorado v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 520, 93 L. Ed. 2d 473, 482 (1986). "A defendant's [mental capacity] is merely a factor in the totality of the circumstances to be considered." State v. Carpenter, 268 N.J. Super. 378, 385 (App. Div. 1993), certif. denied, 135 N.J. at 467 (1994).

Defendant relies upon State v. Flower, 224 N.J. Super. 208 (Law Div. 1987), aff'd o.b., 224 N.J. Super. 90 (App. Div. 1988), to suggest that the holding in Connelly does not apply to the current set of circumstances. However, we are convinced that the facts in Flower are substantially distinguishable from the current case.

Flower had an I.Q. below seventy and a vocabulary level of a second or third grader. Id. at 211. He could not grasp conceptual thinking. Ibid. Observations by the trial judge of Flower related that Flower suffered from a "mental deficiency." Id. at 216. The court in Flower held that the defendant did not knowingly and intelligently waive his Miranda rights because he could not understand them. Id. at 216-17.

We are convinced that the facts here are more akin to those in Carpenter. In Carpenter, the court found that the confession by a defendant with an I.Q. of 71 was valid. Carpenter, supra, 268 N.J. Super. at 379. Despite defendant's low I.Q., defendant was able to comprehend the concepts that comprise the Miranda warnings, and was able to make an intelligent waiver of his rights. Id. at 386. Similarly, in State v. Morton, 155 N.J. 383 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001), our Supreme Court held that the defendant's limited intelligence did not preclude a determination that his statements were voluntary, where "[h]e was twenty-five years old, had graduated from high school, and completed a course in law enforcement." Id. at 449-50.

We are satisfied from our review of the record that defendant knowingly and intelligently waived his Miranda rights. The facts surrounding defendant's confession clearly support the judge's finding. Defendant voluntarily accompanied Brezin, uncuffed, to police headquarters for questioning on December 6, 2002. At that time, defendant appeared coherent, alert and responsive to Brezin and denied being under the influence of alcohol, although he had been drinking the night before. Prior to questioning, Brezin advised defendant of his Miranda rights by reading a standard department form and allowing defendant to read it again. Each time Brezin advised defendant of one right, he asked defendant if he understood and Brezin recorded defendant's responses on the form. After the form was filled out, defendant voluntarily signed and dated the bottom. Defendant agreed to waive his rights and speak with police and never indicated that the form was unclear to him.

After defendant waived his rights, Brezin questioned him for sixty to ninety minutes. At first, defendant denied any involvement in the robbery. Further questioning revealed that, prior to the robbery, Roxanne threatened to throw defendant out of the apartment unless he obtained some money for her. She told defendant to rob the station and take whatever he needed to protect himself, so defendant took a hammer. Defendant then described confronting Ercan with a hammer, taking money from him and returning to the apartment complex to give the money to Roxanne. After confessing to the robbery, defendant told Brezin that he was sorry. He had never robbed anyone before and did not intend to hurt anyone. When Brezin asked defendant if he would give a taped statement, he refused and requested an attorney. At that point, Brezin ended the questioning.

We are satisfied that these facts strongly indicate that defendant understood his rights. Additionally, defendant had prior criminal experience. Thus, this was not a novel situation for him. Most significantly, defendant refused to give Brezin a taped statement and then requested the assistance of an attorney, indicating that defendant was aware of his rights and knew how to exercise them.

Relying on the court's holding in Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961), defendant argues that his request for an attorney did not validate his waiver because "the relevant inquiry on his capacity was at the point of the waiver, not at some point thereafter." However, Culombe is factually inapposite to defendant's case.

In Culombe, defendant was held in police custody for over four days before confessing. Id. at 631, 81 S. Ct. at 1894, 6 L. Ed. 2d at 1074. "During that time he was questioned . . . with the avowed intention, not merely to check his story to ascertain whether there was cause to charge him, but to obtain a confession if a confession were obtainable." Ibid. In addition, "Culombe was not told that he had a right to remain silent." Ibid. Despite requesting a lawyer, "the police made no attempt to give him the help he needed to get one." Ibid. Accordingly, defendant's request for an attorney did not validate his waiver because "such an exploitation of interrogation" extorted "an unwilling admission of guilt from defendant." Id. at 635, 81 S. Ct. at 1896, 6 L. Ed. 2d at 1076.

Unlike the defendant in Culombe, defendant was read his Miranda warnings and was then questioned for approximately an hour and a half. Defendant confessed to the robbery less than an hour after questioning began and Brezin ended the interrogation as soon as defendant requested an attorney. Thus, there was no evidence of coercion on Brezin's part and defendant's request for an attorney clearly evidenced his comprehension of Miranda.

Based on the totality of the circumstances, we are convinced that the judge properly concluded that defendant knowingly and intelligently waived his Miranda rights. Despite Dr. Dougherty's opinion to the contrary, the judge appropriately determined that the results of defendant's testing, although perhaps valid, failed to:

demonstrate that the defendant didn't know and understand what he was doing at the time. The facts of the case demonstrate that he did. He's holding back on any admissions. He's not willing to admit it right away. He's hedging for the police, even when he starts to make admissions blaming somebody else. And when they get to the point of understanding what he is trying to say to the police and they try to get him on tape, he decides to exercise his Miranda rights and remain silent at that point and refuses to speak further and asks for an attorney. Eminent proof that he knew and understood his Miranda warnings and understood what it took to exercise those rights and did.

II

Defendant contends that the twenty-year sentence imposed by the judge is constitutionally infirm and that a remand for re-sentencing is required under State v. Natale (Natale II), 184 N.J. 458 (2005), because it exceeds the fifteen-year presumptive term for a first-degree offense. The State contends the judge's imposition of a twenty-year sentence was appropriate because all three aggravating factors identified by the court fell within the "recidivism exception" recognized in State v. Abdullah, 184 N.J. 497, 506 n.2 (2005).

In Natale II, our Supreme Court held that to pass constitutional muster under the Sixth Amendment "before any judicial factfinding, the maximum sentence that can be imposed based on a jury verdict or guilty plea is the presumptive term[,]" and therefore "the 'statutory maximum' . . . is the presumptive sentence." Natale II, supra, 184 N.J. at 484. Accordingly, the Court eliminated the presumptive terms and established the "'statutory maximum' authorized by the jury verdict or the facts admitted by a defendant at his guilty plea [as] the top of the sentencing range for the crime charged . . . ." Id. at 487.

The holding in Natale II is entitled to "pipeline retroactivity" and is thus applicable to defendant whose case was on direct appeal at the time of the decision. Id. at 492-96. Moreover, a new sentencing hearing is to be held "in each affected case based on the record at the prior sentencing." Id. at 495. At the hearing, the trial court must:

determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely [v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)] grounds will not be subject to a sentence greater than the one already imposed.

[Id. at 495-96.]

Defendant contends the trial court's imposition of a twenty-year sentence with an 85% parole disqualifier was manifestly excessive because the court failed to adequately acknowledge mitigating factors N.J.S.A. 2C:44-1b(2), (3), (4) and (13). Here, after finding aggravating factors (3), (6) and (9), and mitigating factor (4) applicable, the trial court imposed a twenty-year term, the maximum sentence for a first degree crime on his robbery conviction. The sentence clearly exceeds the pre-Natale II fifteen-year presumptive term for a first-degree offense under N.J.S.A. 2C:44-1f(1)(b).

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. State v. O'Donnell, 117 N.J. 210, 215 (1989) (citing State v. Kruse, 105 N.J. 354, 359-60 (1987)). In finding aggravating factors (3), (6) and (9) to be applicable, the judge reasoned that defendant has an extensive prior criminal record, spanning more than ten years. The judge described, in detail, defendant's criminal past:

This is his ninth indictable conviction. History starting off in 1990 in municipal court, disorderly for theft. Indictable in Union County for burglary, probation. '92, Middlesex, receiving stolen property, county jail, probation, violate probation. '92, cocaine possession, Union County probation. Disorderly convictions in Middlesex County, county jail time. Middlesex indictment, another conviction burglary, State Prison, max out. Another disorderly conviction in '95 in New Brunswick, simple assault. So this is not his first assaultive behavior. '96 Hudson County, State Prison, CDS charges. Probation here in Somerset County in 2002, again a CDS possession charge.

Because of his extensive criminal past, the judge determined that defendant would likely commit another offense and that there was a need to deter him and others from violating the law, "[e]specially when it comes down to armed robbery." Although the court also found mitigating factor (4) relevant because of defendant's extensive psychiatric history, the court ultimately determined that the aggravating factors substantially outweighed the mitigating factors.

While we are satisfied that the judge's findings were supported by sufficient evidence in the record, State v. Kromphold, 162 N.J. 345, 355 (2000), the Supreme Court decision in Natale II, nonetheless requires that defendant's sentence be remanded for re-sentencing. See also State v. Nesbitt, 185 N.J. 504, 519 (2006); Abdullah, supra, 184 N.J. at 506.

Affirmed as to conviction; remanded for sentencing.

 

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

(continued)

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A-4508-04T4

June 29, 2006