STATE OF NEW JERSEY v. KEITH OWENS

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1309-07T41309-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEITH OWENS,

Defendant-Appellant.

_______________________________


Submitted December 1, 2009 - Decided

Before Judges Skillman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 03-12-2436, 03-12-2334, 03-12-2312, 03-11-2249, 03-11-2240 and 03-11-2176.

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

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Keith Owens appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with thirty counts in six separate indictments. Following the denial of defendant's motion to suppress his taped statement inculpating him in certain crimes, he entered an unconditional guilty plea to several of those charges: first-degree robbery, N.J.S.A. 2C:15-1; three counts of third-degree burglary, N.J.S.A. 2C:18-2; third-degree theft by unlawful taking, N.J.S.A. 2C:20-3; two counts of third-degree conspiracy, N.J.S.A. 2C:5-2; third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h; and fourth-degree issuing or passing a bad check over $200. The trial judge sentenced defendant to an aggregate twelve-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed the appropriate penalties and assessments, and ordered defendant to pay restitution.

The following facts were adduced at the suppression hearing. According to Sergeant Robert Somers (Somers) of the Somers Point Police Department, on August 29, 2003, he received a call from a K-Mart store reporting suspicious activity involving a credit card. Two men had come into the store attempting to purchase more than one thousand dollars worth of merchandise with a credit card issued to a female. The men left the store after the card, which had not been reported stolen, was denied several times.

The following day, Somers went to the K-Mart to view a surveillance tape of the individuals. While there, the Ocean City Police Department called inquiring about the credit card because it had now been reported stolen. The matter then became a joint investigation between the Somers Point Police Department and the Ocean City Police Department.

Somers was unable to identify the individuals in the surveillance tape. He printed still pictures from the tape and later showed the pictures to some members of the Ocean City Police Department, who immediately identified defendant and co-defendant Kristoph Akarman as the individuals in the pictures who were suspects in numerous burglaries and an armed robbery in Somers Point. A warrant was then issued for their arrest.

At approximately 4:00 p.m. on August 30, 2003, the New Jersey State Police advised Somers that they had defendant in custody at the Bellmar barracks. Prior thereto, Akarman had been arrested and allegedly gave a statement inculpating defendant in the crimes. Somers drove to the barracks to retrieve defendant. Once there, Somers introduced himself to defendant, explained the arrest warrant, and read defendant his Miranda rights from a card, which was admitted into evidence without objection. Defendant, who did not appear to be under the influence of alcohol or drugs and appeared coherent, said he understood his rights.

Because of heavy rain and a bad accident, the drive back to Somers Point took over an hour. During the drive, Somers and defendant engaged in "quite a bit of idle chat" but did not discuss any crimes. Upon arriving at the police station, Somers read defendant his Miranda rights from a departmental form, which was also admitted into evidence without objection. Defendant read and initialed each right, said he understood his rights and had no questions about them, signed the form at 5:45 p.m., and agreed to answer Somers's questions.

Thereafter, Somers began questioning defendant about the K-Mart matter. Somers permitted defendant to use the restroom several times during questioning and walked him outside to "smoke[] a couple of cigarettes." Somers did not threaten defendant, promise him anything, or coerce him into making a statement. Rather, defendant answered Somers's questions voluntarily, and admitted being at the K-Mart with Akarman but denied attempting to use the credit card. Defendant also admitted using the card at an Acme and giving to Akarman money he had obtained from the card. Defendant denied involvement in any crimes.

At about 6:30 p.m., detective Laura Hall of the Ocean City Police Department joined in the interrogation. At approximately 6:55 p.m., Somers asked defendant if he would submit to a Computer Voice Stress Analyzer (CVSA) test, which Somers is certified to administer. Somers explained the test to defendant and made clear that the results are not admissible in court. Somers read defendant a CVSA consent form, which defendant also read and signed. The form, which was admitted into evidence without objection, indicates that defendant "freely and voluntarily" submitted to the test and that he was advised of his rights with respect thereto.

Following a "prepping procedure" involving a half-hour to forty-five minute "de-stressing" period, Somers administered the test, which concluded at approximately 7:06 p.m. Somers advised defendant that the test results indicated deception. Somers continued interrogating defendant, during which defendant did not request an attorney or refuse to answer any questions.

At approximately 9:00 p.m., defendant disclosed the location of a machete used in a robbery in which he was not involved. Detective Koob from the Ocean City Police Department, who had also joined the interrogation, went to that location and retrieved the machete. Defendant then stated that he knew the location of a safe stolen from an Ocean City church. The police drove with defendant to search for the safe but could not locate it. The search took approximately one-and-a-half hours, during which time there was "quite a bit of chatter" between the officers and defendant about the safe's location but not about any crimes.

At approximately 11:30 p.m., the interrogation continued at the Somers Point police station, and concerned numerous burglaries in Somers Point, Ocean City and Cape May County. During the interrogation, everyone enjoyed a meal, including defendant. At approximately 1:42 a.m., defendant again received his Miranda right after agreeing to give a taped statement. In the taped statement, which was played to the judge and admitted into evidence without objection, defendant inculpated himself in numerous crimes. Defendant was placed in a holding cell at and later transported to the Atlantic County jail.

According to defendant, he was high on crack cocaine and marijuana when the State Police arrested him around noon on August 30, 2003, he was still high when Somers arrived at the barracks, he did not receive his Miranda rights at the barracks, and Somers questioned him about the crimes on the trip back to Somers Point. He was still high upon arriving at the Somers Point police station and when the high began wearing off at approximately 6:00 p.m., he became nauseous and vomited, had a headache, was unable to eat the food given to him, and was denied a blanket. He did not receive his Miranda rights prior to the CVSA test, and Somers got angry at him and hit him in the head after telling him the test results. He then requested an attorney.

Defendant also testified that he fabricated the story about the safe because Somers and Hall said they would let him go home and get his drugs. The officers also offered him "diplomatic immunity" if he provided information inculpating Akarman. The offer was reduced to writing and he, Somers, Hall, Koob, Caracchioli and Lieutenant Boyd of the Somers Point Police Department signed it. The next day, an unknown State Police detective came to Somers Point, took the document from him and never returned it.

Defendant also testified that he only gave the taped statement because he was granted immunity, and that he read from notes or police reports provided to him for the statement. However, on cross-examination, defendant admitted that he lied during the statement and told the officers what they wanted him to say because "they told me that if you'd say this, you can go home and I said it."

Hall testified in rebuttal that defendant did not appear to be under the influence of drugs or alcohol, did not complain about having to vomit or appear to be vomiting, ate some of the food given to him, was not promised diplomatic immunity, never refused to answer any questions, and never requested an attorney.

In an oral opinion dated June 25, 2004, the judge found the officers' testimony credible and defendant testimony not credible, and denied defendant's motion. The judge stated:

[Y]ou can't listen to that tape and believe for a moment that [defendant] is saying anything other than what he recalls in terms of the crimes committed. You can't believe for a minute that [defendant] is looking at writings being offered . . . . I mean, it has a distinct flavor of being truthful and, I may add at this point, also voluntary. There is . . . a very responsive give and take that is occurring between defendant and police.

So any chance [defendant] had as far as I'm concerned of credibility, you know, ended when I heard him say that that entire taped statement was fabricated and based upon his being fed information from police.

The judge also found defendant's claim that the police offered him diplomatic immunity "almost comical[]" and "another indication of his fabrication." The judge concluded that defendant was properly advised of his Miranda rights and waived them, and that there was no overbearing by the police in the context of the officers' entire interaction with defendant.

Defendant appealed. Because the plea was unconditional, the appeal was placed on the excessive sentencing calendar. R. 2:9-11. We affirmed defendant's sentence. State v. Owens, A-1654-04 (App. Div. December 14, 2005).

Defendant then filed a PCR petition, contending that he was denied the effective assistance of trial and appellate counsel. Although defendant raised numerous claims of counsels' deficiencies, the only claims relevant to this appeal are trial counsel's failure to preserve the right to appeal the trial court's denial of his motion to suppress, and counsel's failure to present expert evidence about the impact of defendant's drug use on defendant's ability to voluntarily confess. To support the latter claim, defendant submitted a report from a psychologist. In an oral opinion dated August 9, 2007, the judge rejected this report because the psychologist's opinion relied on information provided by defendant, which the judge had already found not credible.

The judge also found that trial counsel's representation was deficient in failing to preserve the right to appeal the denial of the motion to suppress. Nonetheless, the judge denied the petition without a hearing finding that defendant could not show that the outcome would have been different. The judge reasoned that defendant had no realistic likelihood of success on appeal because the denial of the motion rested on the judge's credibility determinations, which the appellate court affords great deference.

On appeal, defendant raises the same contentions about trial counsel's deficiencies that he raised below. We affirm the denial of defendant's PCR petition substantially for the reasons expressed by the judge in his oral opinion dated August 9, 2007. We agree, based on our review of the record of the motion to suppress, that had defendant appealed, we would have affirmed.


Affirmed.

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

The CVSA measures deception through the AM and FM frequencies of your voice.

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A-1309-07T4

April 29, 2010