STATE OF NEW JERSEY v. JONATHAN NYCE

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1516-05T41516-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JONATHAN NYCE,

Defendant-Appellant.

________________________________

 

Submitted: September 24, 2008 - Decided:

Before Judges Fisher, C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-04-0234.

Jonathan W. Nyce, appellant pro se.

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jonathan Nyce appeals from the September 22, 2005, Judgment of Conviction and Order for Commitment after a jury found him guilty of the second-degree passion-provocation manslaughter of his wife, contrary to N.J.S.A. 2C:11-4b(2), and fourth-degree tampering with physical evidence, contrary to N.J.S.A. 2C:28-6(1). Defendant was sentenced to seven years in prison for manslaughter and to a consecutive one-year term for evidence tampering. We affirm.

I.

Defendant, a scientist with a doctorate, was the founder and chief executive officer of Epi-Genesis Pharmaceuticals. He had been married to his wife Michelle for twelve years prior to her murder. They had three children, ages twelve, ten, and five, and lived in a large home in Hopewell Township. In 2001 and 2002, the Nyces hired a landscaping firm to do some work at their home and in 2002 one of its employees, Miguel de Jesus, knocked on the door to inquire about the bill and met Michelle. They exchanged cell phone numbers, communicated frequently there after, and then began a sexual relationship.

Defen dant learned of the affair in July 2003, and called de Jesus, leaving a message to stay away from his wife or he was "a dead man." That month, defendant contacted the FBI claiming that de Jesus was trying to extort money from him. The FBI referred the matter to defendant's local police department, which interviewed defendant. He claimed that he received two phone calls on July 10, 2003, seeking to extort $500,000 in exchange for a tape recording of Michelle having sex with some one. The police could not trace the calls back to de Jesus and, after having several conversations with defendant and Michelle, the investigating officer, Daniel McKeown, concluded the charges were unfounded and refused to take any action. Defendant then signed a harassment complaint against de Jesus. It was condi tionally dismissed if de Jesus refrained from contacting defen dant and Michelle for two years. De Jesus and Michelle resumed their sexual relationship a few weeks later.

On Thursday, January 15, 2004, Michelle arranged to meet de Jesus at 9:15 p.m. after she finished work at Macy's. After meeting, they drove to Hamilton Plaza and left Michelle's Toyota Land Cruiser and de Jesus drove her to the Mount Motel in Law renceville. After engaging in sexual rela tions, they took a shower and Michelle got dressed and put on some perfume. De Jesus drove her back to get her car and she left. He drove to a bar and had a few drinks before he went home to make his live-in girlfriend believe that he had been out drinking.

At 6:58 a.m. the next morning, Hopewell Police Officer Lin coln Karnoff was dispatched to defendant's home on a report from an alarm company that the basement burglar alarm had been acti vated. The day was very windy and there were snowdrifts on the driveway because it had snowed the day before. Karnoff noticed tire tracks on the lawn. He walked around to the basement French doors, which were at ground level, but determined that there were no signs of attempted entry.

Around the same time, Public Service Electric & Gas Company employee Richard Archer saw a Land Cruiser, with its engine run ning, resting against an embankment on Jacob's Creek Road. He did not immediately investigate, but after breakfast, he told the driver of the PSE&G vehicle, Chuck Black, to pull over. Archer walked down the embankment and saw a woman inside the car slumped over on a pillow with her eyes open. He noticed foot prints going away from the car and across the ice on the creek and up the other side. He also noted minimal damage to the vehicle and frozen blood on the running board. Black alerted authorities.

Various Hopewell police officers responded to the scene. In addition to the observations made by Archer, they saw blood on the exterior of the rear driver's side door. Photo graphs and a cast impression were taken of the footprint next to the pas senger side of the vehicle. A Division of Motor Vehicles search revealed that the vehicle was registered at defendant's home, which was located nine-tenths of a mile from the scene.

Sergeant Michael Cseremsak and Officer Michael Sherman went to defendant's house at 9:13 a.m., walked through a single, open, garage door, and knocked on the door from the garage to the house. Two children answered and said neither of their par ents was home, but that their dad, who had taken their brother to school, would be home soon. The officers waited in their police car until defendant, appearing disheveled, drove up. Cseremsak told him that they needed to talk and asked if they could come in. Defendant agreed and drove up the driveway and parked in front of the house, simultaneously closing the open garage door. They all entered through the front door.

Cseremsak advised defendant that the Land Cruiser had been in an accident. Defendant said that his wife used that vehicle and he asked how she was and what hospital she was in. Instead of responding, the officers asked defendant when he last saw her. Defendant responded that she was supposed to work from 6:00 p.m. until 10:00 p.m. and then go out with a friend. She had told him she would be home by 1:00 a.m., but he knew from experience that she would not get home until later and sometimes did not come home until the morning.

Cseremsak excused himself and called his supervisor, Lieu tenant Frank Fecher, and told him about defendant closing the garage door when he arrived at the house. By this time, Michelle had been definitely identified at the scene by McKeown, so Fecher told Cseremsak that he believed the dead woman was defendant's wife, to tell defendant the news, to Mirandize him, and to take a statement. Defendant was not a suspect at this time. After Cseremsak advised defendant of his rights, defen dant said that he under stood them and stated he was not under the influence of drugs or alcohol. Defendant did not appear upset when Cseremsak said Michelle was dead. Cseremsak asked him if she had been seeing anyone, and defendant said she had. He again claimed her boyfriend had tried to extort money from him.

After checking the basement for signs of an intrusion, which defendant permitted, Cseremsak and Sherman left the house and waited outside in a police car until McKeown and Mercer County Prosecutor's Detective Sergeant Karen Ortman arrived at the house at approximately 10:45 a.m. McKeown and Ortman went to the front door and told defendant's daughter that they would like to speak to defendant, but they had to wait fifteen minutes before he responded. When defendant opened the door, his hair was a mess, his clothes were wrinkled, and he was wearing no shoes or socks. McKeown asked defendant to come to the station to give a statement and defendant agreed, accepting McKeown's offer to drive him to the police station. On the way, defen dant stated that de Jesus's "wife" had to be involved in Michelle's death.

For two-and-a-half hours at police headquarters, McKeown asked defendant questions while Ortman typed his improbable answers. Defendant recounted the previous summer's extortion attempt and added that Michelle told him that de Jesus had made threats against him. He alleged that de Jesus called him once screaming he was "going to kill the bitch." He also claimed that Michelle told him that de Jesus's girlfriend had sent her "nasty" text messages. He asserted Michelle told him that she needed a new car because "people" were following her from work and that she suspected it was de Jesus or one of his friends.

At one point, defendant said that he wore a size twelve shoe. McKeown noticed some small cuts on defendant's hands, which he agreed to have photographed. Defendant permitted buc cal swabs for DNA comparison. After the interview, McKeown drove defendant to his son's school to pick him up. On the way, defendant said that he really had thought things were going to work out, but admitted that he and his wife fought about her moving out of the house. McKeown asked when they last had that conversation, and defendant replied, "Last night."

Meanwhile, State Trooper Geoffrey Noble made a number of com pelling observations that led him to conclude that Michelle's death was not consistent with an automobile accident. When Mer cer County Medical Examiner Raafat Ahmad arrived at the scene at about 6:16 p.m. on the day of the murder, she too con cluded, based on the injuries to the victim's forehead, that the "acci dent" had been staged. The body was then removed from the Land Cruiser and taken to the Medical Examiner's office, where, at 7:25 p.m., Ahmad viewed the victim's body, which reinforced her opinion that the injuries were not the result of a car accident.

Based on these observations and defendant's statements, police believed it was likely that Michelle had been killed at her home. At about 8:30 p.m., a team of state and municipal officers went to defendant's home and asked him to vacate it pending the issuance of a search warrant. Defendant asked to call a lawyer and did so, leaving a mes sage when he was unable to reach the lawyer directly. The police did not question him at this time. Defendant took a few personal items and left the home; he was not permitted to take his cell phone. Defendant gathered his children from the home of a friend and told her that he was taking the children to his parents' home in Collegeville, Penn sylvania. The next morning, the friend read the local newspaper, which suggested Michelle's death was a homi cide, and called defendant to read the article to him.

On Saturday, January 17, 2004, Ahmad performed an autopsy on Michelle, who had three deep, gaping lacerations to her fore head, an extensive skull fracture, and massive intracranial hem orrhages caused by excessive force. She had multiple other internal and external injuries, including defensive wounds. From the froth that had developed in Michelle's lungs, Ahmad determined that she had lived for ten minutes after the trauma had been inflicted. The cause of her death was massive blunt-force trauma to the head, fractures of the skull, contusions of the brain, and intracranial bleeding.

Police obtained a warrant at 10:30 a.m. Saturday morn ing for a search of defendant's home. However, they did not have enough staff to execute the search warrant until 6:00 p.m. that evening. The house had seventeen rooms plus a full basement, attic, and three-car garage. New Jersey State Police Detective John Ryan processed the garage. He found Michelle's blood on the rail and doorjamb of the door from the garage to the house and her blood was spat tered on a snow blower, wet vacuum, and a recycling bucket in the garage that contained a bloody sock. There were bloodstains on the garage floor that someone had attempted to clean. There was also a partial, bloody footprint in the garage. Soaking wet, large pajama pants were found behind a couch in an upstairs office and reddish-brown water was found in the washing machine.

On Sunday morning, January 18, 2004, defendant voluntarily returned to the Hopewell police station. In the presence of McKeown, State Police Detective Sergeant William Scull again advised defendant of his Miranda rights; he signed a Miranda waiver form and denied being under the influence of medication or alcohol. Scull said they did not believe that Michelle's death was an accident, and that the evidence implicated him. Defendant said that "maybe it would be best for [him] to get an attorney if he was a suspect." Scull said that defendant was a suspect and he should decide whether he wanted an attorney. Defendant then said he did not want an attorney.

Defendant told Scull that he should be looking at de Jesus and his "wife" based on Michelle's affair and the alleged extor tion attempt. He claimed that Michelle was so afraid of de Jesus's wife that she had disabled the light bulbs in the garage so she could not be seen in it. Scull replied that this story did not make sense. Defendant then asked whether he should obtain the opinion of an attorney regarding his theory of the murder. Scull told him that he could not give him any advice and asked him what he wanted to do. Defendant asked if he could go home and think about it, but Scull told him that there was probable cause to arrest him and that he was not free to leave. Defendant again said that he did not want an attorney. Defen dant offered to make an incriminating statement in exchange for a short jail term so he could take care of his children. Scull refused to bring such a suggestion to the prosecutor and for the third time asked whether defendant wished to exercise his constitutional rights. Defendant said, "No."

Defendant's demeanor became deflated and he grew quiet. Defendant repeatedly said, "I did not kill my wife." Scull asked him to define "kill," to which defendant replied, "Shoot, stab, or choke." Scull replied defendant could not convince him that he was not involved in Michelle's death and asked, if defendant were in Scull's place, whether he would believe his denial. Defendant replied, "Probably not."

At 10:24 a.m., Captain George Meyer interrupted the inter view and called Scull out of the room. Defendant's brother, Michael Nyce, who was at the police station, had received a phone call from Lee Engleman, the attorney whom defendant had called Friday evening. Engleman had told Michael that he wanted defendant to call him and asked Michael to tell him to stop talking to the police. Michael wrote Engle man's number on a piece of paper and related Engleman's instruc tions for defendant to the police. Meyer conveyed the information to Scull and handed the piece of paper to him. Scull returned to the inter view room and told defendant that Engleman had called and wanted him to return the call. He put the piece of paper with the phone number on the table in front of defendant and told him that Engleman would probably tell him not to talk to the police. Scull told defendant for the fourth time that he needed to make a decision, and defendant pushed the paper away and said he wanted to be helpful and did not want to call Engleman.

Scull asked defendant what was stopping him from giving his version. Defendant became quiet for a while and then said he wanted to know whether Michelle had been with de Jesus the night she died. Scull said she had been. Defendant became somewhat emotional and asked how he could be sure that Scull was telling the truth. Scull said it was up to him to determine whether he was being honest, but he added he knew defendant had called Michelle on her cell phone, she had turned it off, and she had doused herself in per fume before she came home. Upon hearing this, defendant stated, "I didn't mean to kill her."

In an unrecorded statement, defendant explained that the children tried to call their mother before they went to sleep, but the call went to voice mail. He then took lorazepam and went to sleep. He woke up at midnight and called Michelle's cell phone, but it again went to voice mail, and he went back to sleep. He was awakened at 2:00 a.m. by the sound of car tires crunching on the snow outside. He went to the garage to talk to Michelle because he suspected that she had been with de Jesus. He claimed he got to the garage before she got out of the Land Cruiser. When she opened the car door, he stood in the space created by the open door and asked where she had been. She refused to answer and defendant claimed she tried to attack him with a stiletto shoe. He grabbed her hand, put his other hand on her back, and pushed her onto the garage floor. He heard a "thunk" and she started to bleed profusely from her head. He claimed he went inside to get some com presses and, when he returned, she was on her stomach on the floor with the shoe still in her hand. He knelt on her back and she started to "flail" in an attempt to assault him with the shoe. He pushed her head down, again hitting her forehead on the floor; then she went motionless. After finding no pulse, defendant realized his wife was dead. Thereafter, he explained how he faked the car accident and what he did to clean up and hide the evidence.

After explaining these events, defendant agreed to give a taped statement. He asked for a pen and paper to write down some thoughts, and Scull gave them to him. Scull then left the room to relay what he had learned that was pertinent to the search, which was to resume that day. At 12:03 p.m., defendant began his taped statement, and it lasted until 1:48 p.m. Addi tional hidden evidence was later retrieved from defendant's home based on the information he provided.

II.

On December 7, 8, and 9, 2004, the judge assigned to the case heard testimony bearing upon defendant's motion to suppress certain evidence. He denied that motion in a written opinion filed January 10, 2005. In March 2005, the court conducted a Miranda hearing in response to defendant's motion to suppress the various statements he made to police. The judge also denied this motion in a written opinion filed May 9, 2005.

The judge made findings of fact and reached conclusions of law in accordance with the requirement of Rule 1:7-4(a). The judge determined that the statements made by defendant as he traveled to and from the police station on Friday, January 16, 2004, were unsolicited and not the product of any interrogation. Defendant was not in custody at the time as he was free to refuse to go to the police station and was free to use his own car to go there if he wished. The judge concluded that any statements made during this time were admissible at trial because there was no custodial interrogation. The judge also found that the formal, written statement defendant gave to the police that day was also not the product of any custodial ques tioning. As a result, he concluded there was no obligation to advise defendant of his Miranda rights.

Next, the judge addressed defendant's interaction with his attorney, Engleman. The judge rejected defendant's claim that his attempt to reach Engleman on Friday constituted an assertion of his Miranda rights, thereby precluding any further question ing by the police thereafter. He also rejected defendant's claim that his efforts to call Engleman before he returned to New Jersey constituted such an assertion of his right to remain silent and to secure the advice of counsel. In any event, the judge observed that defendant was again advised of his Miranda rights after he voluntarily returned to the police station on Sunday morning.

The judge then turned his attention to the claims made by defendant respecting the events that Sunday, beginning with his arrival at the police station. He found that defendant was immediately advised fully of his Miranda rights, acknowledged that he under stood them, read and signed the waiver form, and represented that he was not under the influence of drugs or alcohol. Only then did the interrogation begin. The judge found that defen dant was in custody at that juncture, concluded that defendant had been appropriately warned of his rights, and the subsequent questioning did not violate any of those rights.

Turning to defendant's first statement that "it may be best for [defendant] to obtain counsel if the police thought he was a suspect," the judge concluded that this was an equivocal request for counsel, triggering a duty on the police to stop questioning and make the further inquiry required by State v. Harvey, 151 N.J. 117, 221 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). Scull did so, telling defendant that he could not give him advice and that the decision was his to make. The judge con cluded that defendant, without any coer cion at that time, gave a knowing, intelligent, and voluntary waiver of his rights. He employed the same analysis and reached the same conclusion with respect to defendant's subsequent que ries about obtaining the opinion of an attorney regarding his theory of the murder, requesting to leave the police station, and to work out a deal. In any event, the judge concluded that none of these inquiries constituted an invocation of the right to remain silent and determined that all statements made through this point in time were admissible.

The judge's penultimate findings related to the efforts of Engleman to contact defendant and the response of the police to those efforts. He found that the police were required to inform defendant that Engleman was available to represent him and had asked defendant to call him. He further found that the police delivered Engleman's message minus the exact instruction not to speak to the police, although Scull did tell defendant that it was likely that Engleman would tell him "not to talk to them." The judge concluded that the essence of the message had been delivered, that defendant had all the information required to decide whether he wanted his attorney present, and knowingly, voluntarily, and intelligently decided to proceed without coun sel when he pushed away the note with Engleman's telephone number and said he "did not want to call an attorney just yet."

Last, the judge found defen dant was again advised of his Miranda rights before giving his tape-recorded statement and he knowingly, voluntarily, and intelligently waived them. He con cluded the statement was admis sible and "the Sixth Amendment did not attach at any point in time [defendant] was questioned at the Hopewell Township Police Station by Det. Scull." After the subject motion was denied, the matter was tried by a jury.

On November 22, 2005, defendant filed an untimely notice of appeal following his conviction, but on December 20, 2005, we granted leave to appeal out of time. After a remand hearing, the judge determined that defendant voluntarily, knowingly, and intelligently waived his right to appellate counsel and permitted him to litigate his appeal pro se.

III.

Defendant raises the following issues on appeal:

POINT I - DENIAL BY TRIAL JUDGE OF RIGHT TO EFFECTIVELY CROSS EXAMINE AND IMPEACH STATE WITNESSES, AND TO PRESENT WITNESSES FOR THE DEFENSE, PERMITTED ONLY PROSECUTOR'S VERSION TO BE PRESENTED TO JURY.

POINT II - TRIAL COURT IMPROPERLY BOL STERED STATE WITNESS AS EXPERT: SUCH BOL STERING LED TO THE ADMISSION OF CLEARLY FALSE EVIDENCE.

POINT III - DUE TO STATE'S UNCONSTITU TIONAL SEIZURE AND SEARCH, APPELLANT'S MOTION TO SUPRRESS EVIDENCE SHOULD HAVE BEEN GRANTED.

POINT IV - DUE TO VIOLATIONS OF APPEL LANT'S FIFTH AND SIXTH AMENDMENT RIGHTS, APPEL LANT'S MOTION TO SUPPRESS STATEMENTS SHOULD HAVE BEEN GRANTED.

POINT V - TRIAL COURT MADE ERRORS IN JURY CHARGE.

POINT VI - TRIAL COURT'S DEMEANING OF DEFENSE COUNSEL TAINTED JURY.

The scope of our review of a judge's findings of fact on a motion to suppress is limited. "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only determine "whether the findings made could reasonably have been reached on sufficient credible evi dence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand inter vention and correction . . . [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162 (citations omitted).

After carefully reviewing the record in light of the writ ten arguments advanced by the parties, we conclude that most of defendant's arguments "are without sufficient merit to war rant discussion in a written opinion." R. 2:11-3(e)(2). Those argu ments are contained in defendant's Points I, II, III, V, and VI, although we make the following brief comments:

With respect to the judge's evidence rulings as to which defendant charges error in Point I, such determinations are com mitted to the sound discretion of the trial judge. E.g., Ver dicchio v. Ricca, 179 N.J. 1, 34 (2004); State v. Catlow, 206 N.J. Super. 186, 193 (App. Div. 1985), cer tif. denied, 103 N.J. 465-466 (1986). We have carefully reviewed the many evidential issues raised in this appeal, some of which significantly mis characterize the record, and find no abuse of discretion in the judge's various decisions either admitting or rejecting evi dence. Furthermore, the alleged errors were all harmless in light of the overwhelming evidence of guilt.

In Point II defendant claims that the footprint analysis did not require the testimony of an expert and the judge's qualification of the expert improperly bolstered his testimony. It is clear from the expert's testimony that footprint analysis is a distinct area of forensic science beyond the ken of the ordinary juror. This determination, too, was committed to the broad dis cretion of the trial judge, State v. Johnson, 120 N.J. 263, 294 (1990), and we find no abuse of that discretion.

Defendant's complaint in Point III about the seizure of his home pending issuance of the warrant is also without merit. "Different interests are implicated by a seizure than by a search." Segura v. United States, 468 U.S. 796, 806, 104 S. Ct. 3380, 3386, 82 L. Ed. 2d 599, 609 (1984) (citations omitted). "A seizure affects only the person's possessory interests; a search affects a per son's privacy interests." Ibid. (citations omitted). As a result, "warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant" have been approved. Ibid. (citations omitted). That is all that occurred here. Defendant's constitutional rights were not violated by this seizure in any of the myriad respects that he asserts on appeal, all of which lack merit.

As to defendant's contention in Point III that there was no probable cause to issue a warrant to search his home, there was an abundance of such evidence. The police had a reasonable basis to believe that Michelle was murdered and that her body was trans ported to the scene of the staged accident. The foot prints leading away from the passenger side of Michelle's vehi cle even tually led to the vicinity of defendant's home where there were tire tracks in the snow on the lawn. Michelle had been having an affair and threats had been made. Defendant had fresh scratches on his hands and admitted to an argument with Michelle the evening before the murder. His action in closing the garage door on Friday was also suspicious. "Probable cause exists if at the time of the police action there is 'a "well grounded" suspicion that a crime has been or is being committed.'" State v. Sulli van, 169 N.J. 204, 211 (2001) (quot ing State v. Waltz, 61 N.J. 83, 87 (1972)). Probable cause cer tainly existed here for the search conducted pursuant to a properly issued warrant.

With respect to defendant's claim in Point V that it was error to charge the jury on self-defense, "[t]he trial judge must charge the jury on self-defense 'if there exists evidence in either the State's or the defendant's case sufficient to pro vide a "rational basis" for [its] applicability.'" State v. Blanks, 313 N.J. Super. 55, 69-70 (App. Div. 1998) (quoting State v. Bryant, 288 N.J. Super. 27, 35 (App. Div.), certif. denied, 144 N.J. 589 (1996)). At trial, defendant contended that Michelle accidentally fell from the Land Cruiser and was killed while she was trying to attack him. However, in his statement to police, which went into evidence, defendant claimed that Michelle attacked him and, to protect himself, he threw her down too hard and, when she tried to get up, he pushed her back down and she died as a result. Thus, the judge was required to give a self-defense charge in light of the evidence, even though he did not claim self-defense at trial. Id. at 70.

Finally, with respect to Point VI, we have carefully reviewed each of the half-dozen exchanges between the court and defense counsel and note that most of them were at sidebar. It was a hotly con tested case in which defendant's counsel put in a vigorous defense, occasionally ignoring judicial rulings and refusing to move on when objections were sustained. The occa sional repartee over this twenty-one-day trial was often in jest and did not prejudice defendant. It does not remotely approach the level for requiring a new trial.

IV.

In defendant's Point IV, he argues, based on various alleged violations of his Fifth and Sixth Amendment rights, his several statements to police should have been suppressed. The Fifth Amendment privilege against self-incrimination is binding on the states under the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492, 12 L. Ed. 2d 653, 658 (1964). The New Jersey Constitution has no direct counterpart, but the privilege "is firmly established as part of the common law of New Jersey and has been incorporated into our Rules of Evidence," In re Martin, 90 N.J. 295, 331 (1982) (citations omitted).

The privilege is not self-executing under either federal or state law and must be invoked to claim its protection. State v. P.Z., 152 N.J. 86, 101 (1997). "Generally, when the privilege is not asserted and the person questioned chooses to answer, the choice to respond is considered voluntary." Ibid. However, an exception to this rule was created for custodial interrogation because it is inherently coercive and automatically triggers the Fifth Amendment privilege against self-incrimination. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. A person in custody must be advised of the right to remain silent and warned that any statement may be used against that person. Ibid. Such a person must also be advised of the right to an attorney and, if he or she cannot afford an attorney, advised one will be provided. Ibid.

Absent Miranda warnings, statements made by a defendant while in custody, whether excul patory or inculpatory, may not be used in the prosecutor's case-in-chief. State v. Hartley, 103 N.J. 252, 275 (1986). "Custodial interrogation" means "ques tioning initiated by law enforcement officers after a person has been taken into cus tody or otherwise deprived of his freedom of action in any sig nificant way." Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. "The rights set forth in Miranda are not implicated 'when the detention and questioning is part of an investigatory procedure rather than a custodial interroga tion[.]'" State v. Smith, 307 N.J. Super. 1, 9 (App. Div. 1997) (quoting State v. Pierson, 223 N.J. Super. 62, 66 (App. Div. 1988)), certif. denied, 153 N.J. 216 (1998).

Defendant contends that he was in police custody from the moment he was advised of his Miranda rights on Friday morning until he exercised his right to call Engleman that evening. He asserts that he was not free to leave the police station "unless he was willing to walk miles in freezing temperatures back to his home." He urges that none of the statements he made while he was transported to and from the police station and while he was there were admissible in evidence. However, the judge made a finding of fact that defendant was never in custody during this time, there is substantial evidence in the record to sup port this fact finding, and we are thus bound by it. Johnson, supra, 42 N.J. at 162. Because he was never in custody on Fri day, his Miranda rights could not have been violated. See Smith, supra, 307 N.J. Super. at 9; see also Oregon v. Mathi ason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977); State v. Lacaillade, 266 N.J. Super. 522, 527-28 (App. Div. 1993).

This is also true of any statements defendant made later when the police arrived at his home and told him to leave. Not only was defendant not in custody, but police allowed him to travel to his parents' home in another state. His attempt to reach Engleman at that point did not preclude any questioning by the police that evening because an "anticipatory invocation of [the] right to counsel is ineffective outside of the custodial interrogation setting." State v. Boretsky, 186 N.J. 271, 284 (2006) (citing McNeil v. Wisconsin, 501 U.S. 171, 182 n. 3, 111 S. Ct. 2204, 2211 n.3, 115 L. Ed. 2d 158, 171 n.3 (1991)).

Defendant also argues that the police impermissibly inter fered with his Sixth Amendment right to counsel when they evicted him from his home and took his cell phone, which pre vented counsel from getting in touch with him. "The Sixth Amendment right to counsel attaches only at the initiation of adversary criminal proceedings, and before proceedings are ini tiated a suspect in a criminal investigation has no constitu tional right to the assistance of counsel." Davis v. United States, 512 U.S. 452, 456-57, 114 S. Ct. 2350, 2354, 129 L. Ed. 2d 392, 369-70 (1994). In any event, defendant was free to leave a telephone number where Engleman could reach him, and in fact he did so the next day, instructing Engleman to call him at his parents' home. The police never prevented the attorney from reaching defendant, who, again, was not in custody until Sunday morning and had no right to counsel until then. Ibid.

Defendant's major contentions revolve around the events on Sunday when he was in custody and Engleman tried to contact him. It is undisputed that he was advised of his Miranda rights, signed the Miranda waiver form, and repeatedly waived his rights thereafter. However, defendant claims that his will was over borne and he was "rendered insensible" by the combination of the following fac tors: (1) withdrawal from Wellbutrin and use of Ativan that blocked his memory; (2) refusal of police to acknowl edge his claims of innocence; (3) refusal of police to acknowledge his repeated requests for counsel and his right to remain silent; (4) presentation of false evidence to him, such as the footprint size leading to his house; (5) "presentation of a way to avoid being taken from his children forever: convinc ing the[ police] that Mrs. Nyce's death was accidental." Thus, he urges, con trary to the judge's fact findings, that any waiver of rights was not knowing, intelligent, and voluntary.

After being advised of Miranda rights, a person can waive them if the waiver is made voluntarily, knowingly, and intelli gently. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 86 L. Ed. 2d at 707; State v. Bey, 112 N.J. 123, 134 (1988). The State bears the burden of proof in this regard beyond a reason able doubt. Bey, supra, 112 N.J. at 134. The court must look into the totality of the circumstances to ascertain whether the accused in fact knowingly and voluntarily decided to forego his or her rights. Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S. Ct. 2830, 2834, 77 L. Ed. 2d 405, 412 (1983); State v. Miller, 76 N.J. 392, 402 (1978). Courts consider the characteristics of the accused, as well as the details of the interrogation. Bey, supra, 112 N.J. at 134-35; Miller, supra, 76 N.J. at 402. Rele vant factors include the defendant's age, education, intelli gence, previous encounters with the law, advice concerning his or her constitutional rights, length of detention, whether the ques tioning was repeated or prolonged, and whether physical pun ish ment or mental exhaustion was involved. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973) (citations omitted); Bey, supra, 112 N.J. at 135; Miller, supra, 76 N.J. at 402. A "waiver of the right against self-incrimination which, by all subjective indicia, appears knowing, intelligent, and voluntary, may still be deemed invalid when elicited in an atmosphere of coercion." State v. Reed, 133 N.J. 237, 256 (1993). "At the root of the inquiry is whether a suspect's will has been overborne by police conduct." State v. Presha, 163 N.J. 304, 313 (2000).

The "use of psychologically oriented interrogation tech niques is not inherently coercive." State v. Cook, 179 N.J. 533, 562-63 (2004). However, "[c]onfessions are not voluntary if derived from 'very substantial' psychological pressures that overbear that suspect's will." Id. at 563 (quoting State v. Galloway, 133 N.J. 631, 656 (1993)). "In determining whether a defendant's will was overborne, the totality of the circum stances must be examined, 'including both the characteristics of the defendant and the nature of the interrogation.'" Cook, supra, 179 N.J. at 563 (quoting Galloway, supra, 133 N.J. at 654); see also Schneckloth, supra, 412 U.S. at 226, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862.

The judge's fact findings are supported by substantial evi dence in the record. The interrogation began at 9:00 a.m., included an interruption, and then at 11:40 a.m., Scull asked to tape the interview and defendant agreed. The taped portion began at 12:00 p.m. and continued until 1:48 p.m. Thus, the entire interrogation took less than five hours. No coercive techniques were used during the taped interview. Defendant was well-educated and had developed and run his own business. He was not afraid to deal with the police, as evidenced by his con tact with them a year earlier. He also was not afraid to chal lenge them, as indicated when he questioned whether he had no choice other than to leave his home Friday night. The interview was scheduled for 9:00 a.m. after defendant had an opportunity to rest from Friday night until Sunday morning and was not physically or mentally exhausted. Defendant was in custody for only a few minutes before he waived his rights, at which time he denied being under the influence of any drugs. Refus ing to accept a claim of innocence hardly constitutes "very sub stan tial" psychological pressure. He did not assert his right to remain silent or to counsel. There is no evidence that supports defendant's claim that the police presented any false evidence to him. Finally, defendant's effort to convince the police that he accidentally killed his wife does not qualify as psychologi cal coercion by the police. As a consequence, the judge's con clusion that defendant's waiver of rights was knowing, volun tary, and intelligent has substantial support in the record and may not be set aside by us. Johnson, supra, 42 N.J. at 162.

Defendant next contends that the police did not honor his request for counsel. He correctly states that on Saturday, Engleman called the police station and told Meyer that he was looking for defendant who had left a message for him. Defendant argues that the police had an obligation to inform him of this call prior to asking him to waive his Miranda rights on Sunday. This communication is quite different from the communica tion in Reed, supra, where the suspect was being held at the prosecu tor's office and his girl friend called an attorney, who arrived at the prosecutor's office shortly thereafter. 133 N.J. at 241. In the meantime, with out informing the girlfriend, police moved defendant to another building, taking him down a back staircase to avoid seeing her. Ibid. When the attorney made his presence known to the prosecu tor, he was told that the defendant was being questioned as a witness and not a suspect, he could not walk into the investigation, and that police would call him if and when the suspect requested an attorney. Id. at 242-43. Meanwhile, the defendant waived his Miranda rights and confessed. Id. at 244.

Here, defendant was not in custody when Engleman called on Saturday. Defendant points to no authority that says the police had an obligation to inform defendant that an attorney called looking for him the day before. Unlike the defendant in Reed, defendant had the opportunity all day Satur day to continue call ing Engleman or to call another attorney. He could also have refused to speak to police until he was able to get in touch with Engleman. There simply is no legal author ity for defen dant's position that Engleman's call to the station on Saturday affected police obligations on Sunday.

Defendant next contends that the judge erred in concluding that his statement, "maybe it would be best for him to retain counsel," was ambiguous. If a suspect "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723. This is also true when a suspect invokes his right to counsel. State v. Perez, 334 N.J. Super. 296, 302 (App. Div. 2000), cer tif. denied, 167 N.J. 629 (2001). But, "unless and until a sus pect asserts his right to have counsel present following ade quate Miranda warn ings and waiver, the custodial interrogation may continue." Id. at 302-03. If police are unsure whether a defen dant is asserting his right to silence, they must either stop the interrogation completely or "ask only questions nar rowly directed to determining whether defendant was willing to con tinue." Johnson, supra, 120 N.J. at 284; see also State v. Chew, 150 N.J. 30, 63 (1997) (citing Bey, supra, 112 N.J. at 126; State v. Wright, 97 N.J. 113, 120 (1984)).

In Chew, the Court interpreted the defendant's request that his mother contact his attorney as "an equivocal invocation of the right to counsel that had to be clarified before questioning could take place." Id. at 63. By compari son, in State v. Mal lon, 288 N.J. Super. 139, 150 (App. Div.), certif. denied, 146 N.J. 497 (1996), we held that a sus pect's request that the police "go out and hire an attorney" was not ambiguous and required a cessation of questioning, unless the defendant reini tiated communication. Here, defendant's com ment that if he were a suspect, "maybe it would be best to retain counsel" was ambiguous, as the judge found. See Davis, supra, 512 U.S. at 461-62, 114 S. Ct. at 2356-57, 129 L. Ed. 2d at 371-72. Scull recognized the ambiguity and sought to clarify it. Defendant began telling Scull why he should be looking at de Jesus, but Scull stopped him and told him he needed to know if he wanted counsel before he continued talk ing, and defendant said he did not wish to invoke this right. Scull did all that was required to clarify defendant's ambiguous request. When defendant declined to invoke his rights, the interview appropriately con tinued. See Perez, supra, 334 N.J. Super. at 302-03. Defendant made a similar ambiguous comment shortly thereafter, Scull responded as before, and defendant said he did not wish to invoke his rights. We find no error in the judge's conclusions in this regard.

With respect to Engleman's efforts to reach defendant on Sun day, defendant first maintains that Meyer should have taken Michael Nyce's cell phone, with Engleman on the line, into the interrogation room "so that he could complete the call with his attorney." There is no evidence that Michael tried to hand Meyer the phone and he refused.

Defendant also appears to be arguing that the police should have told him that Engleman wanted him to stop talking to them, citing Thompson v. Wainwright, 601 F.2d 768 (5th Cir. 1979). There, after being advised of his Miranda rights, Thompson signed a waiver and said he would make a statement, "but added that he first wanted to tell his story to an attorney." Id. at 769. The officer told the suspect that an attorney could not relate his story to police and that an attorney would probably advise him to say nothing. Ibid. The suspect then proceeded with his statement, which was used at his trial. Id. at 769-70. The Fifth Circuit held that the statement was inadmissible because the police were not permitted to argue with a defendant over an "equivocal request for legal counsel." Id. at 772.

The Thompson case is factually distinct from this case. Here, Scull did not try to talk defendant out of consulting an attorney, nor did he tell him that he would not be able to tell his story if he contacted an attorney because an attorney would tell him not to talk. As the judge found, this case is governed by Reed, supra, 133 N.J. at 262: "When, to the knowledge of the police, such an attorney is present or available, and the attor ney has communicated a desire to confer with the suspect, the police must make that information known to the suspect before the custodial interrogation can proceed or continue." That is what the police did here. There is no further require ment to tell defendant that the attorney advised him to cease speaking. The police provided defendant with Engleman's home telephone number and told him that a phone would be provided if he wanted to call. Defendant said he wanted to be helpful, and did not wish to call the attorney, making it clear he was not exercising his right to counsel. Under these circumstances, the judge had substantial support in the record for his finding that defen dant's waiver of his right to counsel was voluntary, knowing, and intelligent.

We also find no merit to defendant's contention that the police did not scrupulously honor his right to remain silent and cease questioning when he asserted that right based on his que ries about contacting a lawyer, his request to go home and think about what he could tell them that would be helpful, and his offer to give a statement implicating himself if he could have an agreement that he would spend only a short time in jail. As the judge found, defendant's queries and his conditional offer to give an incriminating statement are "not viewed under New Jersey law as a request for counsel or an invocation of his right to silence." Harvey, supra, 151 N.J. at 222; see also Bey, supra, 112 N.J. at 138-39. The police properly made fur ther inquiry respecting these equivocal assertions, Johnson, supra, 120 N.J. at 283, following which defendant made another unequivocal waiver.

Defendant also contends that he invoked his right to remain silent when he twice refused to speak, as Scull acknowledged. The Johnson Court acknowledged that "[s]ilence itself has been interpreted as an invocation of the right to remain silent." Id. at 281 (citing Watson v. Texas, 762 S.W.2d 591, 597-98 (Tex. Crim. App. 1988)). In Watson, the court held that when a sus pect remained silent during a thirty- to forty-five-minute interrogation, the silence itself constituted an invocation of his right to remain silent. Watson, supra, 762 S.W.2d at 597-98. Here, however, the record does not reflect how long defen dant remained silent and it appears that this silence occurred while defendant was contemplating his decision about whether to call Engleman. We are satisfied that this was not an invocation of defendant's right to silence. Rather, it was merely contem pla tion of his decision about whether to continue with his statement without the advice of counsel.

 
Other arguments made by defendant respecting alleged viola tions of his Fifth and Sixth Amendment rights on January 18, 2004, are either unsupported by the record at the suppression hearing or lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

The two-count indictment returned on April 4, 2004, had charged defendant with first-degree murder contrary to N.J.S.A. 2C:11-3a(2), but he was convicted of the lesser-included offense of passion-provocation manslaughter.

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

This shoe size matched the footprint in the snow, which was linked to defendant through expert testimony.

Police located de Jesus on Saturday. He denied any involvement in Michelle's death and related the events surrounding his last contact with her. He gave them the clothes and size nine-and-a-half work boots he was wearing Thursday night. He also consented to a buccal swab for DNA purposes.

We note, in any event, that the police had advised defendant of his Miranda rights before he was transported to police headquarters and gave his voluntary statement of the events the prior evening and that morning.

The evidence on which defendant relies either does not support this proposition or it was not adduced at the suppression hearing, in which case, we do not consider it on appeal. State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999).

(continued)

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A-1516-05T4

May 7, 2009