STATE OF NEW JERSEY v. BRYAN C. BOSTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3663-07T43663-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRYAN C. BOSTON,

Defendant-Appellant.

__________________________________________

 

Submitted November 18, 2009 - Decided

Before Judges Stern, Sabatino and Lyons.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-06-1397.

Yvonne Smith Segars, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).

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

PER CURIAM

Defendant, Bryan Boston, appeals from his conviction for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). The victim was his girlfriend, Cynthia Williams.

The following factual and procedural history is relevant to our consideration of the issues raised on appeal. On May 2, 2005, defendant, who was then forty-nine years old, and his girlfriend were staying at the Trump Plaza Hotel in Atlantic City. That evening, defendant and the victim engaged in an argument at a restaurant. According to defendant, the victim yelled at him, called him vulgar names, and slapped his glasses off. Defendant proceeded to throw a drink in the victim's face.

Afterwards, defendant left the casino, purchased a half-pint of Bacardi rum from a liquor store, and returned to their hotel room. At that point, defendant had been drinking for approximately three hours. The victim had been drinking, too. There, another argument ensued between defendant and the victim. Defendant eventually hit the victim in the head with a lamp, and he subsequently strangled the victim with the lamp's cord.

About one hour later, at 12:05 a.m., the following Trump Plaza employees were dispatched by the Trump Plaza's security staff to room 1477 because "something bad was going on": Tremaine Johnson, a security investigator; Larry Kelder, a chief investigator; Tim Shea, a security shift manager; and Layne Williamson, a shift supervisor. They found defendant standing in the hallway. Shea asked defendant, "what was going on, and his response was, [s]he's dead." When asked who was dead, defendant responded, "[i]n the room," and that he "killed her," pointing at room 1477. Johnson described defendant as being "pretty calm," initially.

Kelder, Williamson, and Shea opened the door and found a body, later identified as the victim, within a large pile of bedding on the floor; a large puddle of what appeared to be blood in front of the bedding; and broken glass on the floor.

Meanwhile, Johnson and defendant waited in the hallway for about fifteen minutes until the police arrived. Johnson did not ask defendant any questions. Defendant repeatedly stated that he "had killed her," and that he was glad "she's dead." Defendant also said, "[s]he pushed my buttons. She got what she deserved." Johnson observed defendant "became more agitated" during this time.

At some point, Shea advised Johnson to handcuff defendant. Johnson and a co-worker handcuffed defendant with his hands behind his back. According to Johnson, defendant continued to speak very loudly, appeared very upset and very agitated, and made further incriminating statements.

Johnson detected an odor of alcohol from defendant's breath, but Shea did not. Johnson did not notice defendant was staggering, slurring his speech, or doing anything else unusual. Shea said that defendant's walk and gait were fine but that defendant's speech was slurred. Defendant neither fell nor lost consciousness in Shea or Johnson's presence. In Johnson's opinion, defendant appeared to be oriented.

Detective Charles Miller, in plain clothes, and several other police officers of the Atlantic City Police Department responded to a radio call regarding a possible homicide of a female at the Trump Plaza. As he exited the Trump Plaza's elevator on the fourteenth floor, Detective Miller could hear defendant yelling and screaming.

After being apprised of the situation, Detective Miller positioned himself in front of defendant, identified himself as a police officer to defendant, told defendant that he was under arrest, and read defendant a Miranda warning from a piece of paper. While Detective Miller read defendant these rights, defendant continued to talk, but Detective Miller said that defendant looked at and listened to him as he read the warning. When Detective Miller asked defendant if he understood each of his rights, defendant said "[y]es," and "[y]es, I killed her." According to Detective Miller, defendant was oriented to what the detective was saying and the surrounding circumstances. Detective Miller did not ask defendant any further questions.

Detective Miller and several other police officers then escorted defendant to the detective bureau for questioning. Detective Miller noted defendant was able to follow orders and walk to the police car under his own power. He further recalled that defendant neither staggered nor fell. Detective Miller smelled alcohol on defendant's breath, but he could not recall if defendant exhibited any other symptoms of intoxication.

While being transported in the police car, defendant said, "[s]he disrespected me. She slapped my glasses off my face in front of a bunch of white people. We went up to the room and began to argue and then I strangled the bitch. I strangled the bitch." As they arrived at the detective bureau around 12:45 a.m., defendant said, "[a]s soon as you mix Bicardi [sic] and Hennessy you know what you got to do and I did what I had to do: I killed her. She's dead, I know."

Detectives Neil Kane and Michael Graham, who were on duty at the detective bureau, overheard defendant repeatedly state, "I killed her," as he entered the bureau. Defendant was then placed in an interview room and turned over to Detective Kane.

According to Detective Kane, when he entered the interview room, defendant was loud and vulgar, screaming and pounding his fist on the table. Defendant continued to make incriminating statements. Detective Kane attempted to calm defendant by giving him a cigarette, leaving him alone for a few minutes, and telling him to calm down.

Detective Kane then returned to the interview room and read defendant his Miranda rights from a form. Defendant stated that he understood the rights and would waive them, and he signed the waiver at 1:01 a.m. Detective Kane said that defendant continued to talk while his rights were read to him but that defendant "listen[ed] intently" and reviewed the Miranda form before waiving his rights. Detective Graham witnessed the reading of the form and defendant's execution of the waiver. He said that defendant commented once or twice but was otherwise listening to Detective Kane while the form was being read. Defendant wrote his name, address, date of birth, social security number, phone number, and age on the form.

Detective Kane characterized defendant as "slightly upset" and "angry" at the time, and he smelled alcohol on defendant's breath. Detective Graham also detected alcohol on defendant's breath and noticed defendant appeared to be "under the influence." Both detectives observed that defendant's speech was slurred.

Detective Kane conducted a twenty-four minute pre-interview with defendant. Afterwards, the detective conducted a thirty-three minute interview, which was audio recorded, with defendant that ended at 1:58 a.m. Defendant described in vivid detail the events of that day and evening leading up to and including the victim's death.

Defendant said that when he returned to his room and the victim was there, the victim started calling defendant names. He claimed that the victim grabbed defendant by his collar and chain, which began to cut his neck. Defendant said that he told her to get off of him or that he was "going to kill" her. Defendant indicated that the victim then either punched him or said something, so he "then busted her in the head with the . . . lamp." Defendant said that the victim "kept coming and kept on coming," so he proceeded to strangle her with the cord. Defendant said that the victim "kept breaking up and coughing, and I wanted her dead."

As the interview progressed, it appeared to Detective Kane that defendant's level of intoxication seemed to increase. Yet, the detective also perceived that defendant was oriented to where he was, what he was doing, and what he was saying. Detective Graham said that defendant did not seem to be under any physical or mental distress that interfered with his ability to understand what was going on around him.

Detective Kane noticed defendant had some cuts on the ring finger of his left hand and that there was "a slight injury underneath [defendant's] lip."

Following the interview, defendant was transported by Detectives Robert Campbell and Robert Norocki to the Atlantic County Prosecutor's office for processing. During this time, without any provocation by the detectives, defendant said, "[b]itch pushed by buttons, man," and "it's been five years."

At approximately 7:30 a.m., Detective Norocki informed Detective Campbell that defendant was offering new details about the crime. So, Detective Campbell met with defendant, who consented to the audio recording of his statement. At first, defendant consented to speaking to the detective, but when the detective advised defendant of his Miranda rights, defendant said, "I don't want to be questioned any more until I get a lawyer and I tell my side of the story to the media."

The detective then left defendant alone. The detective described defendant as "very coherent and fine," and said that defendant's speech was not slurred at that point.

At approximately 8:35 a.m., the detective, who was in another room, overheard defendant say loudly from the holding area, "[y]ou take these cuffs off and I'll kill the judge just like I killed her."

On June 29, 2005, an Atlantic County grand jury returned Indictment No. 05-06-1397, charging defendant with first-degree murder, contrary to N.J.S.A. 2C:11-3a(1)(2), and third-degree possession of a weapon, a blunt object and a cord, with the purpose to use it unlawfully against a person, contrary to N.J.S.A. 2C:39-4d.

On September 28, 2006, and April 4, 2007, a N.J.R.E. 104(b) hearing was held to determine the admissibility of defendant's statements to private security personnel and law enforcement officers under Miranda.

Dr. Kenneth Weiss, a psychiatrist testifying as an expert witness for defendant, examined defendant three times. On the first occasion, Dr. Weiss examined defendant regarding his state of mind at the time of the homicide and concluded that, although defendant "may have been mentally ill and intoxicated, it did not rise to the level as I understood it of a defense in New Jersey."

During the subsequent examinations, Dr. Weiss focused on defendant's state of mind when he made his statements to the security officers and police. Dr. Weiss listened to the audio tape of defendant's interview with the police and the audio tape of defendant's statements the subsequent morning. He opined that it would be obvious to anyone that defendant was drunk when he spoke because his speech was slurred and his judgment was "clearly impaired." Dr. Weiss opined that "his waiver . . . was incompetent" and "done without an understanding of what was in [defendant's] . . . liberty interest." Based on defendant's use of profanity and the manner in which he spoke to the officers, Dr. Weiss stated that defendant "was not in good emotional control." The doctor said that defendant's unstable emotional state would tend to support a conclusion that defendant was too drunk to understand what he was doing.

Dr. Weiss contrasted the second audio tape, which was recorded at around 7:30 a.m., with the first tape: defendant's speech "was much more subdued, was in control, reasonably well modulated and not sounding drunk like it did in the first statement." Dr. Weiss said that defendant's invocation of his right to remain silent, made without hesitation, indicated defendant understood his rights. Dr. Weiss opined that defendant was sober during the second audio tape. Dr. Weiss concluded that a reasonable person who saw defendant at the time of the first interview would have known that defendant was drunk. Dr. Weiss admitted that he did not rely on the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) to determine if defendant was intoxicated.

Dr. Louis Schlesinger was called by the State at the Miranda hearing as an expert in forensic psychology. Dr. Schlesinger never met with defendant, but he reviewed Dr. Weiss's report and noted several areas that he would have approached differently compared to Dr. Weiss's methodology.

First, Dr. Schlesinger said that although defendant's speech was slurred, Dr. Weiss did not review nor indicate whether defendant exhibited any of the specific symptoms of intoxication: "incoordination, unsteady gait, a nystagmus, which means eyeballs just moving from dizziness, impairment in retention or memory, stupor or coma" according to DSM-IV. Dr. Schlesinger could not find any evidence that any police officers or witnesses who observed defendant noticed those symptoms.

Dr. Schlesinger said that defendant's loud, unmodulated speech; blurting of information; and use of profanity and braggadocio may have been indicative of defendant's personality rather than his level of intoxication.

Dr. Schlesinger would have reached out to determine how defendant functions in jail, instead of how defendant functions at an individual examination. Dr. Schlesinger noted that defendant had an excellent recollection of the events that took place prior to the homicide.

Next, Dr. Schlesinger would have explored defendant's psychiatric history to a greater degree. The doctor was interested in how defendant's psychiatric medications interacted with alcohol. Notably, defendant had been receiving mental health treatment since 1999.

Dr. Schlesinger also would have considered defendant's prior criminal history. The doctor counted that defendant had eighteen prior arrests and eight prior convictions. Dr. Schlesinger believed that defendant's familiarity with the arrest process would be important in discerning whether defendant understood he was waiving his Miranda rights. Dr. Schlesinger pointed out that defendant said that he understood everything during the first statement. Dr. Schlesinger said that he would not have drawn a distinction between defendant's first and second statements. Dr. Schlesinger observed that defendant wanted to speak to the media in the second statement and would not characterize that as an invocation of defendant's right to remain silent. Dr. Schlesinger also pointed out that in the second statement, after time had elapsed for defendant's intoxication to dissipate, defendant loudly said that he would kill the judge, if his handcuffs were taken off.

Daniel Stevens, one of the victim's sons, described defendant as generally a rude and loud person. Harry Williams, the victim's other son, said that defendant cursed, was wild, blurted things out, and commonly bragged when he was sober and when he was drunk.

At the conclusion of the N.J.R.E. 104(b) hearing, the trial court admitted all of defendant's oral and recorded statements made to private security personnel and law enforcement officers.

At some point, defendant notified the State that he may utilize the defenses of self-defense and intoxication.

The State sought to introduce evidence of defendant's prior physical abuse of the victim. The trial court held a N.J.R.E. 104 hearing on June 20 and August 9, 2007, regarding the admissibility of such evidence under N.J.R.E. 404(b).

At the hearing, Williams recalled that he overheard defendant and the victim arguing on the evening of February 12, 2004. The next morning, when Williams left for a half-day of school, defendant and the victim were still home. When Williams returned home, only the victim was home and her face was badly bruised. Williams said he did not recognize his mother because of her swollen face. Williams also said that the victim "was upset, she was really upset. She was basically trying to talk to me, but she couldn't."

Williams called Stevens about the beating; Stevens visited the victim in the hospital the same day. Stevens said, "[w]hen I got to her bedside, she was laying in bed, her face was beaten up pretty bad. She couldn't talk. Only emotional signs she showed, she, you know, she started crying when I saw her. You know, I just saw tears coming out her eyes." Stevens said one of the victim's eyes was swollen shut and that the rest of her face was swollen. He said that he had learned that the victim sustained these injuries as a result of a beating.

The victim stayed in the hospital for a period of time, and even after she returned home, defendant lived elsewhere for about one month.

The State also introduced testimony about another domestic violence incident. According to Officers Andre Simpson and Damon Vasquez of the Philadelphia Police Department, on April 4, 2004, they responded to defendant and the victim's house on account of a woman screaming. The victim answered the door "visibly upset, crying," followed by defendant.

When the victim went to retrieve a key from upstairs to unlock the front door, the officers observed defendant walk into the kitchen. The officers noticed defendant emerged from the kitchen holding a butcher knife in his hand. Officer Simpson yelled at defendant to put the knife down; defendant looked in Officer Simpson's direction but proceeded upstairs. Officer Simpson, then, kicked in a window and entered the house.

Officer Simpson ascended the stairs and found the victim descending them. The victim told Officer Simpson that defendant was in the front bedroom. At that time, Officer Simpson observed some scratches on the victim's face. The officers then confronted defendant, and Officer Simpson physically brought defendant to the floor and restrained him. As the officers escorted defendant outside, defendant yelled at the victim, blaming her for the police arriving and cursing at her.

Afterwards, Officers Simpson and Vasquez spoke with the victim, who was still crying. Officer Simpson observed a ligature mark around the victim's neck and swelling of the victim's lip. The victim told the officers that defendant used a cable cord to strangle her; she described the cable cord and the location to the officer, and Officer Simpson found the cable cord in the front bedroom. Stevens saw the victim that day and noticed marks on her neck resembling those of someone who had been strangled.

When the hearing concluded, the trial court ruled that it would admit evidence regarding the incidents of domestic violence that occurred on February 13 and April 4, 2004.

On August 29, 2007, before the trial court, defendant was presented by the State with the following choices: (1) plead to aggravated manslaughter and serve twenty-two years of imprisonment with an eighty-five percent parole disqualifier pursuant to the New Early Release Act (NERA); (2) go to trial; or (3) plead open to aggravated manslaughter and serve between ten to thirty years in prison with an eighty-five percent parole disqualifier pursuant to NERA. After initially rejecting all three options, defendant consulted with his attorney and decided to plead open to aggravated manslaughter. Defendant retained all rights to appeal pursuant to his plea. At the plea hearing, defendant admitted that he fought with the victim and strangled her, but he said that he did not know he was strangling her tightly enough to kill her. He admitted that this conduct was reckless.

On January 4, 2008, the sentencing court imposed a sentence of twenty-two years imprisonment upon defendant, subject to the eighty-five percent parole disqualifier and applicable fines. The sentencing court dismissed count two. Defendant was credited with 976 days for time served.

Defendant filed a pro se motion for reconsideration of his sentence on April 10, 2008, but the sentencing court denied the motion because it was untimely pursuant to Rule 3:21-10(a) and it failed to state sufficient reasons for the grant of relief.

Defendant filed a notice of appeal on March 28, 2008 and an amended notice of appeal on May 21, 2008.

Defendant raises the following issues in his appeal:

POINT I

THE COURT ERRED IN ADMITTING THE DEFENDANT'S CUSTODIAL STATEMENTS BECAUSE HIS LEVEL OF INTOXICATION PRECLUDED HIS ABILITY TO MAKE A VALID MIRANDA WAIVER.

POINT II

THE ADMISSION OF TWO PRIOR DOMESTIC VIOLENCE INCIDENTS VIOLATED N.J.R.E. 403 AND 404(b) AS THEY WERE HIGHLY PREJUDICIAL AND INFLAMMATORY.

POINT III

THE COURT'S FAILURE TO CONSIDER THE APPLICABLE MITIGATING FACTORS RESULTED IN AN EXCESSIVE SENTENCE.

In Point I, defendant claims that his level of intoxication was so high that he was incapable of validly waiving his constitutional rights while he was in police custody. This point only addresses the statements made to the police officers from the time of their response until the conclusion of the interview at approximately 1:58 a.m.

The State asserts that defendant's intoxication did not prevent him from voluntarily and intelligently waiving his Miranda rights.

The trial court ruled that it would admit defendant's statements. The trial court opined that "defendant was not intoxicated to the point of being unable to give a statement or unable to be questioned."

The trial court found each witness to be highly credible and candid, but it did not give much weight to Dr. Weiss's opinion. This was because Dr. Weiss did not rely on the DSM and instead focused almost solely on the fact that defendant was loud. The court explained that the record reflected that defendant was loud and acted in poor judgment when sober or drunk. The trial court pointed out that even when defendant was arguably sober, he was still loud, agitated, obnoxious, antisocial, acting against his interest, and exhibited poor judgment when he shouted, "[y]ou take these cuffs off of me and I'll kill the judge just like I killed her."

The trial court found beyond a reasonable doubt that no interrogation was conducted by the police officers who responded to the hotel or by those who transported defendant. The trial court determined that defendant's statements were purely voluntary and spontaneous and not in violation of Miranda.

The trial court also determined defendant's statements before his pre-interview, during the pre-interview, and during the interview were admissible. The trial court recognized that defendant exhibited some degree of intoxication, evidenced by his slurred speech. The trial court explained that it considered whether defendant was "so intoxicated that it overcame or overbore his free will and that the statements he gave to Detective Kane and Graham were not voluntary, intelligent[,] or knowingly given." The court found beyond a reasonable doubt that "defendant's statements were given knowingly, intelligently, and voluntarily and that Miranda [warnings] had been given on at least two prior occasions, had been understood by defendant, had been proffered to be given again and the defendant just blew them off . . . ." The trial court took into account defendant's prior experience with the criminal justice system: at least eighteen arrests and eight prior convictions. The trial court also noted that defendant provided his information on the waiver form in a "cogent and coherent manner."

The Fifth Amendment of the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . ." New Jersey is bound to this right by the Fourteenth Amendment of the Constitution, and the privilege has been established as part of our common law and incorporated into our Rules of Evidence. State v. Burris, 145 N.J. 509, 518 (1996). In Miranda, supra, 384 U.S., 86 S. Ct., 16 L. Ed 2d, the United States Supreme Court fashioned Miranda warnings to ensure an accused individual's Fifth Amendment rights are protected. "The prophylactic Miranda warnings . . . are 'not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.'" Burris, supra, 145 N.J. at 519 (quoting Oregon v. Elstad, 470 U.S. 298, 305, 105 S. Ct. 1285, 1291, 84 L. Ed. 2d 222, 229-30 (1985)) (quotation marks omitted).

A Miranda warning should be administered to an individual in custody or "otherwise deprived of his freedom of action in any significant way," Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706, before he or she is subjected to either "express questioning [or] . . . to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 308 (1980).

In New Jersey, to prove an individual waived his or her Miranda rights, the State must demonstrate beyond a reasonable doubt that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights. Miranda, supra, 384 U.S. at 475, 86 S. Ct. at 1268, 16 L. Ed. 2d at 724; State v. Knight, 183 N.J. 449, 461 (2005); State v. Adams, 127 N.J. 438, 447 (1992). A Miranda waiver need not be written. State v. Warmbrun, 277 N.J. Super. 51, 62 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).

In assessing the voluntariness of an individual's waiver, a court must inquire as to "whether the suspect's will was overborne and whether the confession was the product of a rational intellect and a free will." Burris, supra, 145 N.J. at 534. When inquiring as to whether a defendant waived his rights knowingly and intelligently, a court must examine whether a defendant waived his right "with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." State ex rel. A.S., 409 N.J. Super. 99, 116 (App. Div. 2009) (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410, 421 (1986)). "Only if the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Ibid. (quoting Moran, supra, 475 U.S. at 421, 106 S. Ct. at 1141, 89 L. Ed. 2d at 421) (quotation marks omitted). Factors relevant to this determination include defendant's age, education, and prior encounters with law enforcement officers. Knight, supra, 183 N.J. at 462-63.

A confession given when an individual is under the influence is not per se involuntary. State v. Wade, 40 N.J. 27, 35, cert. denied, 375 U.S. 846, 84 S. Ct. 100, 11 L. Ed. 2d 73 (1963).

If the State does not administer a Miranda warning and obtain a valid waiver, a defendant's subsequent statements must be suppressed. State v. Jordan, 147 N.J. 409, 419 (1997).

When a trial court's factual findings are reviewed by an appellate court, affirmation is proper when the findings are supported by substantial credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-75 (1999).

In Warmbrun, supra, 277 N.J. Super. at 64, this court considered whether a defendant was too intoxicated to make a knowing and intelligent waiver of his Miranda rights. In that case, a law enforcement officer observed the defendant had difficulty standing, his breath smelled like alcohol, his eyes were bloodshot, and he was moving slowly. Id. at 56. The defendant failed several balance tests and an alphabet test. Id. at 55. An officer who observed the defendant's Miranda waiver noted that defendant looked coherent but that his speech was slurred. Id. at 56. Another witness of the waiver testified that defendant appeared intoxicated with slurred speech, red eyes, a flushed face, and the odor of alcohol. Ibid. Lastly, defendant's blood sample revealed his blood alcohol content (BAC) was between .23 and .25. Ibid.

Although it acknowledged that testimony indicated that defendant was very intoxicated, the panel emphasized that the record demonstrated that defendant was "capable of communicating . . ., responsive in answering questions, and . . . [correctly] answer[ed] . . . questions such as his name, age, etc." Id. at 64. This court, therefore, found that substantial credible evidence in the record supported a finding that defendant knowingly and intelligently waived his Miranda rights. Ibid.

Likewise, in the case at bar, defendant was capable of communicating and responsive in answering questions. He wrote his personal information on the Miranda waiver form. Defendant responded to the questions asked, and he shared with great detail his recollection of the previous day. The record reflects that defendant listened to both Detective Kane and Detective Miller, when they administered defendant's Miranda rights. Moreover, as noted by the trial court, defendant has an extensive criminal record evincing a familiarity with arrest and police procedures. Although defendant's speech was slurred, the record does not reflect that his waiver was unintelligent or involuntary. The record before us indicates that defendant was aware of the consequences of his waiver and subsequent statements and that defendant voluntarily made such statements. The trial court further found all of the witnesses were credible.

We, therefore, affirm the trial court's decision to admit defendant's custodial statements because substantial credible evidence supports the trial court's finding that defendant validly waived his Miranda rights.

In Point II, Defendant argues that the trial court erred in finding the two prior domestic violence incidents admissible because they were highly prejudicial and inflammatory, thereby failing Cofield's fourth prong. Defendant also raises the issue that the prior incidents "do not shed light" on defendant's criminal acts.

N.J.R.E. 404(b) states, in pertinent part:

evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

This rule precludes the admission of evidence for the purpose of proving a defendant's propensity towards criminal conduct, except in limited circumstances. State v. Pitts, 116 N.J. 580, 602 (1989). In Cofield, supra, 127 N.J. at 338, the Court set out the following four-pronged test to determine the admissibility of other crimes or wrongs evidence:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

Appellate review of a trial court's determination on the admissibility of evidence of other crimes is conducted under the abuse of discretion standard. State v. Lykes, 192 N.J. 519, 534 (2007). "Only where there is a clear error of judgment should the trial court's conclusion with respect to that balancing test be disturbed." State v. Barden, 195 N.J. 375, 391 (2008) (quoting State v. Marrero, 148 N.J. 469, 483 (1997)).

Before reading its decision from the bench, the trial court acknowledged that defendant notified the State that he may utilize defenses of self-defense and intoxication. The court understood that by using either of these defenses, defendant would likely assert that he lacked the requisite mental state on the evening of the crime.

The trial court also stated that it found Officers Simpson, Vasquez, Williams, and Stevens were highly credible.

The trial court then reviewed whether the incidents of February 13 and April 4, 2004, satisfied the four prongs of Cofield.

Turning first to the issue of whether the prior domestic violence incidents satisfied prong one, the trial court determined that the incidents were relevant to defendant's intent, a material issue in this case. The trial court pointed out that case law suggests that evidence of prior threats or prior assaults against a crime victim may be admissible under N.J.R.E. 404(b) to prove a defendant's intent in a separate incident.

Relevant evidence tends "to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. When assessing the relevance of evidence, a court should focus its inquiry on the "logical connection between the proffered evidence and a fact in issue." State v. Covell, 157 N.J. 554, 565 (1999) (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)).

"The material elements of murder that must be proved are that a defendant purposely or knowingly caused death or serious bodily injury resulting in death." State v. Denofa, 187 N.J. 24, 40 (2006); see N.J.S.A. 2C:11-3(1), (2). The State must prove these elements beyond a reasonable doubt. Denofa, supra, 187 N.J. at 40. An individual acts purposefully "if it is his conscious object to engage in conduct of that nature or to cause such a result." N.J.S.A. 2C:2-2b(1). "A person acts knowingly . . . if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence." N.J.S.A. 2C:2-2b(2). "'Serious bodily injury' means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protected loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b.

Our courts have permitted evidence of prior domestic violence incidents to prove a defendant's intent in a later murder. See, e.g., State v. Ramseur, 106 N.J. 123, 267 (1987).

Defendant's intent is particularly critical in this case based on defendant's statements at the plea hearing that he did not intend to kill the victim. Defendant previously strangled the victim with a cord. One could infer from that incident that on May 2, 2005, it was defendant's conscious object to cause serious bodily injury or death to the victim when he strangled her with the cord. The prior domestic incident would also tend to show defendant's awareness of the high probability that the victim could be seriously injured or killed by strangulation. Defendant's retrieval of the butcher knife further relates to his conscious object to engage in his conduct on May 2, 2005. Moreover, after the February 13, 2004, beating, the victim was hospitalized and one of her sons could barely even recognize her. A jury may infer that after this incident, defendant was aware of how easily he could inflict serious bodily injury upon the victim. Further, that incident would tend to prove defendant's conscious object was to cause serious bodily injury or death to the victim at the Trump Plaza.

The issue of defendant's intent was also raised by defendant when he provided notice that he may raise defenses of self-defense and intoxication. See State v. Nance, 148 N.J. 376, 388 (1997); State v. Warren, 104 N.J. 571, 577 (1986); State v. Keys, 331 N.J. Super. 480, 493-94 (Law Div. 1998), aff'd, 331 N.J. Super. 429 (App. Div.), certif. denied, 165 N.J. 607 (2000). "By relying on those defenses, defendant 'put[] his own state of mind in issue.'" Nance, supra, 148 N.J. at 388 (quoting State v. Oliver, 133 N.J. 141, 155 (1993)).

Hence, the trial court did not abuse its discretion in finding that the first prong of Cofield was satisfied because defendant's prior domestic violence incidents tended to prove his intent to commit the charged crime and defendant had raised the issue of his intent by notifying the State that he may raise defenses of intoxication and self-defense.

For prong two, the trial court found that the February 13 and April 4, 2004, incidents occurred reasonably close in time and were similar in kind to the May 2, 2005, killing.

Regarding the third prong, the trial court found that clear and convincing evidence evinced that defendant committed the acts of domestic violence on April 4, pointing out that the police officers had no agenda to lie. Regarding the February 13 incident, the trial court found, "it's an inescapable clear-cut, logical and reasonable inference . . . that clearly whatever . . . occurred to [the victim] was done by this defendant . . . ." The trial court relied on the facts that there was an argument the night before the beating, only defendant and the victim were home when Williams left the house, and defendant was not home when Williams returned. The trial court decided to exclude two other prior incidents because it was unclear when they occurred. However, the trial court said that it would allow the State to present further evidence in a N.J.R.E. 104 hearing and that, perhaps, then the court would admit that evidence.

Defendant's brief does not raise any arguments relating to prongs two and three. Nonetheless, we find that the trial court did not abuse its discretion in determining that the two prior incidents satisfied the second and third prongs of the Cofield test.

Lastly, under prong four, the court found that the undue prejudice of the evidence was not outweighed by its probative value. The court also said that a limiting instruction would be administered to the jury regarding the other crimes evidence.

Our Supreme Court has recognized that our courts have generally admitted a wide range of evidence to prove a defendant's motive or intent. State v. Long, 173 N.J. 138, 162-65 (2002). "A decision to admit . . . evidence [of other crimes] should not be upset unless 'the danger of undue prejudice . . . outweigh[s] probative value so as to divert jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" Marrero, supra, 148 N.J. at 490 (quoting State v. Moore, 122 N.J. 420, 467 (1991)). "[E]vidence of motive or intent[] 'require[s] a very strong showing of prejudice to justify exclusion.'" State v. Koskovich, 168 N.J. 448, 486 (2001) (quoting Covell, supra, 157 N.J. at 570). Evidence may be "shrouded with unsavory implications[,] [but that] is no reason for exclusion when it is a significant part of the proof. The unwholesome aspects, authored by defendant himself [or herself], if the evidence is to be believed, [is admissible if] inextricably entwined with the material facts." Long, supra, 173 N.J. at 165 (quoting State v. West, 29 N.J. 327, 335 (1959)) (quotation marks omitted).

Here, the evidence of February 13 and April 4, 2004, are relevant to prove defendant's intent. Therefore, a higher threshold must be met to exclude this evidence under the fourth prong of Cofield. The testimony regarding defendant's conduct and the victim's injuries do not rise to such a threshold. Further, the trial court stated that it would administer a limiting instruction to the jury at trial regarding the limited purpose of such evidence. See Williams, supra, 190 N.J. at 133-34. Thus, the trial court did not abuse its discretion in determining that the probative value was not outweighed by the apparent prejudice of the other crimes evidence.

Accordingly, we affirm the trial court's decision to admit the other crimes evidence.

In Point III, defendant claims that the sentencing court should have found that mitigating factors number five and number twelve were applicable and, therefore, his imposed sentence was excessive.

The State counters that the sentencing court's findings were limited to those supported by credible evidence.

The sentencing court found the following aggravating factors applicable to defendant: number one, the nature and circumstance of the offense; number three, the risk the defendant will commit another offense; number six, the extent of his prior record; and number nine, the need to deter. The sentencing court applied aggravating factor number one based on defendant's admissions in his guilty plea and the testimony of witnesses. The court cited defendant's "lengthy history of alcoholism; physical and domestic abuse and violence; his frequent use of cocaine; and 21 arrests with 9 known convictions - several involving acts of violence" in applying aggravating factors three and six. The court found aggravating factor number nine applicable because of defendant's history of domestic violence.

The sentencing court found mitigating factors number three, the defendant acted under a strong provocation, and number four, the defendant's age, mental health, and physical condition, were applicable to defendant.

The sentencing court did not find mitigating factor number five, the victim induced or facilitated the crime's commission, applicable. The sentencing court reasoned that the criminal acts were too violent for the victim to have induced or facilitated their commission. However, the sentencing court found that the victim sufficiently provoked defendant for the application of mitigating factor number three.

In balancing the aggravating and mitigating factors, the sentencing court found the aggravating factors substantially outweighed the mitigating factors. The sentencing court decided to impose a midrange sentence, specifically twenty-two years imprisonment subject to an eighty-five percent parole disqualifier.

A sentence should be affirmed unless a reviewing court determines that legislative policies were violated, the aggravating or mitigating factors were not supported by credible evidence, or the sentence, in accordance with the sentencing guidelines, is "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984). A reviewing court "may not substitute its judgment for that of the trial court." State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Evers, 175 N.J. 355, 386 (2003)) (quotation marks omitted). However, a sentencing court may not simply ignore mitigating factors supported by the record. State v. Dalziel, 182 N.J. 494, 504-05 (2005).

The record does not support a finding of mitigating factor number five.

Mitigating factor number five is "[t]he victim of the defendant's conduct induced or facilitated its commission." N.J.S.A. 2C:44-1b(5). The term inducement is defined as "[t]he act or process of enticing or persuading another person to take a certain course of action." Black's Law Dictionary 779 (7th ed. 1999). Entice means "[t]o lure or induce; . . . to wrongfully solicit (a person) to do something." Id. at 553. The term facilitate means "[t]o make the commission of a crime easier." Id. at 610. There is not credible evidence in the record before us that the victim induced or facilitated the commission of her murder.

The record also does not reflect that credible evidence supports a finding of mitigating factor number twelve.

Mitigating factor number twelve is "[t]he willingness of the defendant to cooperate with law enforcement authorities." N.J.S.A. 2C:44-1b(12).

In State v. Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196 N.J. 85 (2008), a defendant claimed that a sentencing court should have applied mitigating factor number twelve because he confessed to the crime of armed robbery. However, this court stated that it

question[ed] whether a confession qualifies as "cooperation" within the intent of this subsection, at least in the absence of any indication the confessions identified other perpetrators or assisted in solving other crimes, compare State v. Reed, 211 N.J. Super. 177, 189 n.2 (App. Div. 1986), certif. denied, 110 N.J. 508 (1988), with State v. Morant, 241 N.J. Super. 121 (App. Div. 1990), certif. denied, 127 N.J. 323 (1990), and in any event, defendant's confession was not entitled to any substantial weight in determining his sentence in view of its limited benefit to the State.

[Ibid.]

In Reed, supra, 211 N.J. Super. at 189 n.2, the court refrained from holding whether a defendant's confession or inculpatory statement involving the defendant himself is or is not "cooperation" within the meaning of N.J.S.A. 2C:44-1b(12).

Following this court's analysis in Read, defendant's confession did not identify other perpetrators or assist in solving other crimes, and his confession was of limited benefit of the State. Credible evidence does not support a finding of mitigating factor number twelve for defendant.

Because credible evidence does not support the finding of either mitigating factors number five and twelve, and because defendant's sentence does not shock the judicial conscience, we affirm defendant's sentence.

 
Affirmed.

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

N.J.S.A. 2C:43-7.2

For a detailed discussion of cases outside of this State that considered whether an individual's waiver was invalid because of his or her intoxication, see George L. Blum, Annotation, Sufficiency of Showing that Voluntariness of Confession or Admission Was Affected by Alcohol or Other Drugs -- Self-Intoxication, 9 A.L.R. 6th 1 (2009).

We have listened to the audio tape of the first police interview, and it substantiates the trial court's overall assessment, notwithstanding defendant's loud and slurred speech.

State v. Cofield, 127 N.J. 328 (1992).

We note that under Lykes, supra, 192 N.J. at 535, and State v. Williams, 190 N.J. 114, 122 (2007), the second prong is applied in limited circumstances. Nonetheless, we find it was satisfied in this case.

(continued)

(continued)

36

A-3663-07T4

January 12, 2010