STATE OF NEW JERSEY v. DARNELL O'NEAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3930-06T43930-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARNELL O'NEAL, a/k/a DARNELL NEAL

and EDWARD O'NEAL,

Defendant-Appellant.

___________________________________

 

Submitted October 20, 2009 - Decided

Before Judges Grall, Messano and LeWinn.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

Indictment No. 05-08-1851.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant Darnell O'Neal not guilty of carjacking, N.J.S.A. 2C:15-2a(1), but guilty of a lesser- included offense, unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10c, a crime of the third degree. The judge denied the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3a, and sentenced defendant to a four-year term of incarceration. The appropriate fines, penalties and assessments were imposed.

The evidence presented at trial supports the jury's verdict. On May 21, 2005, Melliodaire Larose was working as a taxi cab driver in Asbury Park. At about 11:00 p.m., Larose saw his friend and co-worker, Eddy Devalcin, walking along Main Street. Larose offered Devalcin a ride. Devalcin accepted and sat in the front seat with Larose.

Larose was dispatched to the American Legion. When he and Devalcin arrived, defendant and another man approached the cab from behind a car parked in the street near the American Legion. Although the men asked to be taken to Elizabeth Avenue, when they reached that destination defendant asked to be taken to Mattison Avenue. Because there were a lot of people outside on Elizabeth Avenue, Larose became concerned that defendant and his companion were looking for a "dark spot." Larose's concern grew when they reached a dark area of Mattison Avenue and defendant then gave Larose a third address, Boston Way.

Larose and Devalcin had heard of other cab drivers being robbed in that area and talked about the problem. Before reaching Boston Way, Larose stopped the cab, told defendant and his companion to get out and said there would be no charge. Defendant did not comply, but his companion left.

Larose left the cab, Devalcin and defendant behind. He ran away and did not take the keys with him. Defendant jumped into the driver's seat and started to leave. He gestured to Devalcin, who was still seated in the front. Interpreting defendant's gesture as a direction for him to get out of the cab, Devalcin opened the door and started to exit; before he was out, defendant drove away. Devalcin was dragged for a distance of about four feet before he fell, struck his head and injured his elbow. Devalcin required sutures to close his head wound and surgery on his elbow.

At about 2:00 a.m., a police officer, who took note of a cab because of the manner in which it was being driven, checked the license plate number and learned that the cab had been reported stolen. He followed and called for assistance. Defendant was arrested and taken to the police station.

At the police station, defendant was given the advisements required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), waived his rights and spoke with Detective Randall Hill for about fifteen to twenty minutes. Defendant admitted that he was in the cab with a man known as "Burglar," but that "Burglar" had jumped from the cab and run away.

Larose later selected defendant's photograph from among those in an array prepared by Detective Hill. Devalcin did not identify defendant.

Defendant testified at trial about events that led him to be concerned for his safety on the night of May 21, 2005. He had recently returned to the Asbury Park area after living in Florida. His younger brother was having trouble with members of a gang and there had been a surge of gang violence in the community; that violence included a drive-by shooting in defendant's neighborhood. In March defendant had been assaulted by a man with a weapon in a liquor store, and he was later assaulted at a local hospital. In May he saw drawings on his garage door; a neighbor explained that the symbols indicated that defendant's life would be taken in a shooting that would occur while he was either getting into or out of a vehicle. Defendant had been hospitalized and diagnosed with psychosis triggered by use of cannabis or alcohol.

On May 21, defendant, Victoria Banks and their two children went to visit defendant's mother at her home on Boston Way. Defendant, feeling that he needed someone to confide in, left there to visit "Burglar," Gershon Clark, who was living across the street from the American Legion. Clark shared his marijuana and cognac with defendant. During their conversation, defendant was "testing [Clark's] demeanor and his person" seeing whether Clark was "the same person [he] had known like the majority of [his] life." Defendant noticed "a slight twist and change" and "no longer felt comfortable in [Clark's] house." When defendant asked about sneakers that were on the floor, Clark said he did not live alone and that there were "other people [t]here" that defendant "just [did not] see." After receiving that response, defendant "became paranoid." He told Clark he did not feel comfortable, and Clark, who wanted to get something to eat, called a cab. As they waited for the cab, defendant received a call from his brother who told him that "seven guys came to

. . . Boston Way with guns, screaming DOA or something like that to that effect."

When the cab arrived, Clark gave the driver an Elizabeth Avenue address, which was the address at which defendant and Banks had lived in the past. Defendant speculated that Clark must not have known that they had moved. During the ride, defendant overheard the cab driver and Devalcin speaking in Haitian; he was able to understand some of what they were saying because of his prior dealings with people who spoke the language. Defendant believed they were talking about a murder by shooting that was about to occur.

When the cab reached Elizabeth Avenue, defendant saw someone he "had a prior altercation with in the month of April." As defendant did not live on Elizabeth Avenue anymore, he asked the driver to take him to Boston Way. Clark, who had offered to pay defendant's fare, criticized defendant for not knowing where he lived but offered to pay the extra fare to take him to Boston Way.

As the cab driver headed toward Boston Way, defendant was "zoning" "trying to compute everything that's going on at one time. And at the same time [he was] not going to allow [himself] to be placed in harm's way." He saw "a mirror on the wall that said rest in peace to a friend of [his] that passed away, [who] was murdered in Asbury Park, [in] 2003." Then a woman appeared on the corner, looked in the car and saw Clark and told the driver to stop. The driver stopped; at that point, a white SUV with tinted windows passed them and turned back.

Defendant told the cab driver he was holding traffic up and asked him to proceed to Boston Way. The driver would not move; Clark told defendant to get out because it was apparent that the driver was not going to take him to Boston Way. Defendant then saw a "suspicious" man look at the driver. The man dropped some bags and then "dipped off on the side of [a] store." When defendant looked back at Clark, Clark was staring at him. Clark then jumped out of the cab and ran toward the SUV.

When Clark ran in that direction, the cab driver also got out and ran, but he left the keys in the ignition. Defendant's cousin had been murdered where the suspicious man had dropped the bags. Defendant explained what was "going on through [his] mind":

[T]he fix is in, something's destined to happen and I need to get out of here. The driver left. I felt as though he abandoned the vehicle. He left the keys in the car. So when I looked back to see where [Clark] went, the next thing I know the white SUV was coming in fast.

So I jumped from my back seat that was my instinct. I went from the back seat to the front seat, took control of the vehicle and pulled off.

Defendant explained that he had no intention to do anything illegal that night, that neither he nor Clark had a weapon or had done anything to threaten Larose or Devalcin. He further explained that he did not want to hurt Devalcin and had no intention of keeping the cab. Clark did not testify, but Banks and a friend who came to defendant's assistance while he was still in possession of the cab testified on behalf of defendant.

As noted above, the jury acquitted defendant of carjacking but convicted him of the lesser-included offense of unlawful taking of a means of conveyance in the third degree.

On appeal defendant argues:

I. THE TRIAL COURT ABUSED ITS DISCRETION

AND VIOLATED THE DEFENDANT'S RIGHT TO COMPULSORY PROCESS BY PERMITTING DEFENSE WITNESS GERSHON CLARK TO INVOKE A SPECIOUS AND UNREALISTIC FIFTH AMENDMENT CLAIM (NOT RAISED BELOW).

II. THE TRIAL COURT COMMITTED

REVERSIBLE ERROR BY ABROGATING

DEFENDANT'S ASSERTION OF HIS SIXTH AMENDMENT RIGHT OF SELF-REPRESENTATION.

a. BASED ON THE STANDARDS FOR DENYING

PRO SE REPRESENTATION ARTICULATED IN INDIANA V. EDWARDS AND STATE V. MCNEIL, THE TRIAL COURT'S RULING DENYING THE DEFENDANT'S MOTION FOR SELF-REPRESENTATION VIOLATED THE DEFENDANT'S RIGHTS UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (RAISED IN SUPPLEMENTAL BRIEF).

III. THE TRIAL COURT'S RULING ADMITTING THE

DEFENDANT'S ORAL STATEMENT INTO EVIDENCE SHOULD BE REVERSED BECAUSE DETECTIVE HILL FAILED TO DETERMINE THE EXTENT OF THE DEFENDANT'S ASSERTION OF HIS RIGHT TO REMAIN SILENT.

IV. THE TRIAL COURT ABUSED ITS DISCRETION

IN IMPOSING A BASE CUSTODIAL SENTENCE THAT EXCEEDED THE STATUTORILY AUTHORIZED 3 YEAR TERM.

I

Defendant argues that the trial judge "needlessly encouraged . . . Clark to invoke a specious Fifth Amendment privilege" and thereby deprived him of his right of compulsory process. Washington v. Texas, 388 U.S. 14, 17-19, 87 S. Ct. 1920, 1922-23, 18 L. Ed. 2d 1019, 1022-23 (1967); State v. Fort, 101 N.J. 123, 128 (1985). Because there is nothing in this record that suggests that Clark's invocation of the privilege was encouraged by the judge in any way, that aspect of defendant's claim warrants no further discussion. R. 2:11-3(e)(2); cf. State v. Jamison, 64 N.J. 363, 368-72 (1974) (discussing encouragement by prosecution and the court). The record further demonstrates that any deficiencies in the procedures the judge employed or the judge's explanation of his reasons for allowing Clark to assert his right against self-incrimination were "'harmless beyond a reasonable doubt.'" State v. Castagna, 187 N.J. 293, 312 (2006) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967)); see R. 2:10-2. For that reason, we reject the second prong of defendant's argument.

The question of Clark's testifying on behalf of the defense was raised prior to and during trial. At a hearing addressing discovery conducted on June 30, 2006, defense counsel, at that point acting as stand-by counsel for defendant who was proceeding pro se, advised the judge that Clark had retained an attorney and that his attorney had indicated that Clark would invoke his right to remain silent if called to testify. The judge advised defendant that Clark could not be forced to testify if his testimony might inculpate him. The State, however, advised that Clark had not been charged, that the evidence was that the passenger had run away from the cab prior to the carjacking and that, other than defendant's assertion that Clark was in the cab, there was no evidence indicating that Clark was the person with defendant in the cab. By way of explaining his need for more information about Clark and the victims, defendant asserted that Clark had a connection with the cab company and that Clark knew that Larose and Devalcin had "prestige" within the Haitian community as "voodoo priests."

No ruling on Clark's testimony was made at that time. The judge, however, disclosed his initial impression of Clark's right to invoke the privilege, which was that the man who had entered the cab and taken this ride with defendant would have good reason not to give testimony placing himself in the cab.

The issue arose again once, during a pre-trial hearing, at which the judge addressed the admissibility of defendant's statements and prior convictions and determined that defendant was not competent to represent himself, and once during a colloquy that took place prior to jury selection. On those occasions, defendant provided additional proffers about the value of Clark's testimony. According to defendant, Clark could confirm the telephone conversation defendant had with his brother; testify that the cab was Clark's personal taxi service; testify that a woman, who was with a man who previously assaulted defendant, told the cab driver to stop; and testify that he ran away from the cab because he was afraid. Defendant also asserted, however, that Clark may have sworn an oath of secrecy or been acting as a secret agent.

Neither Clark nor Clark's attorney was present when defendant made any of the foregoing proffers about his testimony. And neither was present when the judge offered his impression of Clark's likely success if he asserted his privilege against self-incrimination.

After defendant testified at trial, Clark was brought before the court in response to a subpoena issued on defendant's behalf. Addressing Clark, the judge stated:

I know you're represented by Mr. Bertuccio. And Mr. O'Neal who's on trial now, has said that you were in the cab with him on the night in question and he wants to call you as a witness.

What I have to find out now is whether you're going to voluntarily testify on Mr. O'Neal's behalf or are you going to exercise your Fifth Amendment right?

Clark replied, "I would like to exercise my Fifth Amendment right." The judge said, "You're not available as a witness. You have the right to exercise your Fifth Amendment right."

Defendant did not object, ask the judge to make further inquiry of Clark under oath, or make any additional proffer as to testimony that would be helpful in light of what defendant had said or the State's evidence. State v. Jennings, 126 N.J. Super. 70, 76 (App. Div.), certif. denied, 60 N.J. 512 (1972). Defendant did not ask the judge to deliver a jury instruction on Clark's unavailability. State v. McGraw, 129 N.J. 68, 72-81 (1992). Nor did defendant ask the judge to elaborate on his reasons for concluding that Clark had a "'reasonable ground to apprehend the peril,' of incrimination," without which a judge may not permit exercise of the privilege. Id. at 77 (quoting State v. Craig, 107 N.J. Super. 196, 199 (App. Div.), certif. denied, 55 N.J. 169 (1969)); see In re Ippolito, 75 N.J. 435, 440 (1978) (noting the judge's obligation to determine whether silence is justified under the circumstances); Jennings, supra, 126 N.J. Super. at 76 (noting the need for a judge to exercise care to avoid requiring disclosure of the incriminating information).

We begin by acknowledging the importance of placing a witness who intends to assert the privilege under oath during a hearing outside the presence of the jury and the importance of a statement of reasons for the judge's decision to accept an assertion of the privilege by a potential witness for the defense. See generally State v. Burns, 192 N.J. 312, 332-33 (2007) (discussing the procedures generally); McGraw, supra, 129 N.J. at 72-81 (discussing the procedures, standards and instructions to the jurors and noting the Court's disinclination to authorize grants of judicial immunity to defense witnesses). For the purpose of addressing the impact of the deficiencies alleged by defendant, we assume that Clark would have given testimony consistent with defendant's proffers and most favorable to defendant. Viewed in that light, we are confident that Clark's testimony could not have changed the verdict and any error in excluding that testimony could not have harmed defendant.

Defendant testified that he took the cab to secure his own safety and without intent to keep the vehicle or injure Devalcin. The jurors, having concluded that the State failed to prove that defendant was guilty of carjacking, obviously believed defendant's testimony about his state of mind. Nonetheless, they found defendant guilty of unlawful taking of a means of conveyance in the third degree.

To establish defendant's guilt of third-degree unlawful taking pursuant to N.J.S.A. 2C:20-10c, the State was required to prove that, with the purpose conscious object of temporarily withholding the cab from its owner, defendant took or exercised control over the vehicle without consent and operated it in a manner that created a risk of injury to any person. By all accounts, including defendant's, Clark was not present when defendant jumped into the front seat of the cab, took control of the car and drove away in a manner that put Devalcin at risk of harm.

Clark could not have provided testimony favorable to defendant with respect to this crime because he was not there to hear defendant receive consent or see the manner in which defendant drove away. Anything Clark could say to validate defendant's perceptions about Larose and Devalcin, Clark's relationship with those men, their employer or any governmental or criminal organization, or the danger posed by persons on the street, would have no bearing on the material elements of the crime that the jury determined defendant committed. Defendant admitted that it was his purpose to take the cab temporarily to secure his safety. The difficulty for defendant was that his concern for his safety did not negate an element of the crime.

For the foregoing reasons, we reject defendant's claim that he is entitled to a new trial because he was not permitted to present Clark's testimony.

II

Defendant argues that the trial judge erred by denying his application to represent himself at trial. A trial court's decision to deny or terminate self-representation is reviewed for abuse of discretion. State v. Buhl, 269 N.J. Super. 344, 364 (App. Div.), certif. denied, 135 N.J. 468 (1994).

"Criminal defendants have a state and federal constitutional right to waive their right to counsel and to proceed pro se. See, e.g., Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562, 581 (1975); State v. Crisafi, 128 N.J. 499, 509-10 (1992)." State v. McNeil, 405 N.J. Super. 39, 51 (App. Div.), certif. denied, 199 N.J. 130 (2009). Nonetheless, "[b]ecause 'the right to self-representation is not absolute,' a defendant may, at times, 'be required to cede control of his defense to protect the integrity of the State's interest in fair trials and permit courts to ensure that their judgments meet the high level of reliability demanded by the Constitution.'" Ibid. (quoting State v. Reddish, 181 N.J. 553, 587 (2004)).

One instance in which the State's interest is deemed sufficient to override a defendant's right to proceed pro se is when the defendant is "suffer[ing] from severe mental illness to the point where [his lack of competence] to conduct trial proceedings by [himself]" would "undercut[] the most basic of the Constitution's criminal law objectives, providing a fair trial." Indiana v. Edwards, ___ U.S. ___, ___, 128 S. Ct. 2379, 2387-88, 171 L. Ed. 2d 345, 357 (2008); accord McNeil, supra, 405 N.J. Super. at 51-52. The premise of this rule is that "a defendant may be competent to stand trial if represented by counsel, but not have the 'ability to play the significantly expanded role required for self-representation.'" Id. at 52 (quoting Edwards, supra, ___ U.S. at ___, 128 S. Ct. at 2387, 171 L. Ed. 2d at 356). On that ground, "'the Constitution permits judges to take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so.'" Ibid. (quoting Edwards, supra, ___ U.S. at ___, 128 S. Ct. at 2387-88, 171 L. Ed. 2d at 357).

In this case, there was evidence of defendant's mental illness. Although the judge confronted the question before Edwards and McNeil were decided, his determination rests on reasoning consistent with those decisions.

The judge initially determined that defendant was competent to stand trial and granted defendant's application to represent himself with the assistance of court-appointed counsel, but the judge revisited that decision on his own motion. On reconsideration, the judge concluded that although defendant had sufficient mental competence to stand trial, he lacked the mental competence essential to present his own defense.

We set forth the judge's findings and reasoning at length.

Mr. O'Neal originally made an application to represent himself. And I granted that. And I've had to rethink

that. . . . [A] competency hearing was ordered by this [c]ourt and Mr. O'Neal was found competent. . . .

By history[, a hospitalization in March 2005, defendant] . . . was found to be calm and cooperative, but was also grossly illogical and religiously preoccupied.

. . . In several days he was discharged. The prognosis was cannabis abuse, alcohol abuse, and substance induced psychosis.

. . . .

. . . [During the] competency evaluation . . . Mr. O'Neal was found competent to stand trial.

. . . [H]is thinking was logical and clear when he was interviewed. He was goal oriented and expressed a good understanding of the operation of the legal system in general, and of his specific legal situation.

He displayed good concentration and was able to follow the legal proceedings against him, as well as assist in the preparation of his own defense. And he meets the criteria of being competent to stand trial under 2C:4-4.

. . . .

The refusal to accept the assistance of counsel must be honored if it's made knowingly, intelligently and voluntarily. That's the issue. Now, in this case this defendant is charged with a carjacking where he was allegedly in a cab. And during the course of the hearing what's come out is that there was some idea on the part of the defendant that he was being somehow hijacked himself, and that the drivers of this cab were voodoo priests, and there was some concern by the defendant about his own well-being.

This plays into some of the psychiatric aspects of the case that the court is struggling with.

. . . .

. . . This court [conducted a] searching inquiry [into defendant's right to self-representation]. The problem I have is far more fundamental than that. . . .

Here, the defendant's waiver, I found that his waiver was knowing, intelligent, and voluntary, but . . . I have to revisit that issue. I am finding it's not knowing, intelligent, and voluntary. The [c]ourt has no right to be paternalistic, has no right to usurp a defendant's fundamental right to represent himself.

It's not a question of substituting my judgment for that of the defendant's. [Or that w]e're saying it's unwise [for him] to represent himself. It goes much further than that. Rather, it goes to the heart of a fair trial. At what point is the defendant at such a disadvantage that the trial becomes a mockery and no trial at all?

A defendant competent to stand trial does not equate to a defendant competent to represent himself. A defendant competent to understand and aid in his own defense may well be incompetent to conduct that defense. . . . A trial cannot be so one sided as to be no trial at all. . . . A [j]udge must ensure fundamental fairness. There is a public and private interest in a fair trial that must be vindicated.

The defendant's desire not to interpose a psychiatric defense, if one exists, may well be rational and logical. . . .

However, this still begs the question of, at what point is a defendant so situated to be competent to undertake his own representation. Competence to participate in his defense, and not interpose a psychiatric defense, is a far different proposition than conducting the defense itself before a jury.

Mr. O'Neal is certainly competent. There's no question about that. But Mr. O'Neal certainly does have psychiatric issues that have been raised. . . .

. . . [D]efendants situated as Mr. O'Neal, with psychiatric difficulties, want to represent [themselves], he's certainly competent to stand trial, but he's not competent to undertake his own

defense. . . .

. . . .

It's so one-sided that it would be no trial at all if you're up against the prosecutor in your condition. It's just, it would be a massacre. And I can't allow that to happen. . . .

Contrary to defendant's argument on appeal, the judge did not apply the wrong legal standard. Rather, the judge applied a standard consistent with one later adopted by the United States Supreme Court and this court. That standard was adopted in recognition of the distinction between competence to stand trial and competence to present a defense, and that distinction was the focus of the trial judge's decision to require defendant to proceed with counsel. Although the judge's decision was cast in terms of whether defendant's waiver of counsel was knowing and voluntary, it is best understood as resting on the judge's conclusion that defendant lacked the mental competence to present a defense at trial.

The judge's decision is unmistakably based upon his assessment of the psychiatric evidence and informed by his observation of defendant's participation in prior proceedings. His reference to voodoo priests is supported by the transcript of a colloquy between defendant and the judge during prior proceedings regarding discovery that we have discussed in the preceding section of this decision. By the time the judge made the decision to revisit his prior ruling on self-representation, he had an additional opportunity to assess the impact of defendant's mental condition on his ability to present a defense. With that opportunity for observation, the judge was the one in the best position to make the essential determination whether defendant was then "suffer[ing] from severe mental illness to the point where [his lack of competence] to conduct trial proceedings by [himself]" would "undercut[] the most basic of the Constitution's criminal law objectives, providing a fair trial." Edwards, supra, ___ U.S. at ___, 128 S. Ct. at 2387-88, 171 L. Ed. 2d at 357.

We acknowledge that the judge's discussion of the psychiatric evidence and its relevance to defendant's mental capacity to proceed pro se is not as complete as it could be, but defendant has not pointed to psychiatric evidence that the judge misstated, overlooked or undervalued and has not submitted the psychiatric reports on appeal. Thus, there is no basis for us to conclude that the judge's findings lack support in the record. Accordingly, we reject this claim of error.

III

Defendant also contends the trial judge erred in admitting statements he made to Detective Hill without an adequate understanding of the fact that his informal, oral statements could be used against him. To admit a statement obtained during custodial interrogation, the prosecution must demonstrate that the defendant was informed in accordance with Miranda and knowingly, voluntarily, and intelligently waived his or her rights. Miranda, supra, 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726; State v. O'Neill, 193 N.J. 148, 168 (2007). Under New Jersey law, the State must establish admissibility by proof beyond a reasonable doubt. State v. A.G.D., 178 N.J. 56, 67 (2003).

The trial judge determined that the State's proof of defendant's valid waiver of his right to remain silent was adequate, and we must accept the factual findings underlying that determination if they "are supported by sufficient credible evidence in the record." State v. Gandhi, 201 N.J. 161, 200 (2010). In this case, there is no reason to disturb the judge's findings because the record provides the essential support.

Detective Hill testified at the hearing on defendant's suppression motion. Defendant was arrested by officers from Neptune Township after being stopped while driving the cab Larose reported stolen. Thereafter, Detective Hill, of the Asbury Park Police Department, met with defendant at the Neptune police station. When Detective Hill arrived, defendant was seated in an open room with Officer Erick Amadruto, one of the arresting officers.

In Amadruto's presence, Detective Hill told defendant he wanted to speak to him about a carjacking and read defendant each of the Miranda warnings. Defendant acknowledged his understanding by placing his initials after each statement printed on the Miranda form. In addition, he signed a waiver acknowledging his understandings of his rights and his "wish to waive or give up these rights and make a knowing and voluntary statement and answer questions."

Detective Hill said he had not threatened, forced, or used duress to obtain defendant's oral statement and that defendant appeared to understand the Miranda warnings. He and Officer Amadruto witnessed defendant's signature.

Defendant acknowledged that Detective Hill had gone over each of the statements on the Miranda form and that he had initialed and signed the form. According to defendant, Detective Hill read the statements more than once and had defendant repeat them. Defendant said he felt rushed by Detective Hill, but he did not contend that the detective threatened or coerced him. Defendant said he was confused because he was thinking about what had happened on the streets and was intimidated by Officer Amadruto's presence. According to defendant, at the time of the arrest, Amadruto had told defendant he would kill him if did not do what he was told. For that reason, defendant had asked Detective Hill to speak to him in private.

Defendant acknowledged that he was told that he did not have to speak and that he could end the questioning at any time. Nonetheless, he asserted that he could not say that he understood or really comprehended what he was told because "so much was flashing before [his] eyes at the time. So much was going on his head."

What happened after defendant signed the waiver is not in dispute. Detective Hill told defendant he was probably going to need a "formal statement." Defendant told the detective he did not "want to give a formal statement," but he also said he "would tell [Detective Hill] what had transpired."

Although the entire meeting took about twenty to twenty-five minutes, the conversation about the crime lasted for no more than ten minutes before defendant invoked his right to counsel. At that point, Detective Hill terminated the interview.

Detective Hill prepared a report summarizing what defendant said about the crime before invoking his right to counsel.

O'Neal advised that he called an unknown personal taxi service to Boston Way, because he was visiting a subject in Apartment 6, Building 5.

. . . .

This unknown taxi service dropped him off at an unknown location, which was the residence of the subject that O'Neal only knows as Burglar, because he just met him on the street. Mr. O'Neal advised that he remained at this location long enough to smoke two cigarettes. Burglar called for another unknown taxi service, and asked Mr. O'Neal where he wanted to go. Mr. O'Neal stated that he asked to be taken to Belmar Avenue in Neptune before advising, that's all I remember.

Burglar got into the cab also, but can't recall nothing else. I guess Burglar jumped out, and the cab driver. When I asked Mr. O'Neal how many people were in the taxi, he responded by advising that the only occupants in the taxi during this incident were himself, the driver, and Burglar. Mr. O'Neal then requested to stop talking until he talked to a lawyer.

The judge concluded that defendant was given the advisements required by Miranda, understood his rights, voluntarily waived them and thereafter provided a statement that minimized his involvement. The judge credited Detective Hill's testimony and identified the following facts that supported his conclusion about the validity of defendant's waiver: the interview with Detective Hill was brief; defendant had numerous prior contacts with the criminal justice system; defendant's explanation of what had happened was selective in that he did not include any information tending to implicate himself in acts of carjacking or violence; and defendant's assertion of his right to counsel before revealing more incriminating information demonstrated that defendant understood that the interrogation would stop at his request.

Defendant argues that the judge overlooked the significance of Detective Hill's failure to explore what defendant now characterizes as an ambiguous invocation of his right to remain silent. For this claim, he relies on Detective Hill's testimony that defendant had declined to give a formal statement but said he would talk about the crime.

Defendant did not ask the judge to consider this claim at the time of the suppression hearing, but in our view, the trial judge's discussion of the evidence fully addresses it. Under the totality of the circumstances found by the judge, we cannot conclude that the judge erred by finding that defendant waived, rather than invoked, his right to remain silent when he said he would tell Detective Hill what happened but contemporaneously declined to give a formal statement. The facts, as the trial judge found them to be, are quite similar to those that have been deemed adequate to support a finding of waiver. See State v. Adams, 127 N.J. 438, 446-47 (1992) (concluding that statements made by a defendant who signed a Miranda form and added a note asserting, "I do not wish to give a statement at this time," but "contemporaneously-stated, unambiguous willingness to talk to [the detective] about the circumstances surrounding the [crime]" were properly admitted and noting that the detective had explained that what he said could be admitted into evidence at trial); cf. State v. Burno-Taylor, 400 N.J. Super. 581, 590-607 (App. Div. 2008) (discussing the obligations of officers faced with ambiguous, and unambiguous, assertions of the right to remain silent and concluding that the police did not scrupulously honor that defendant's assertion of his right to remain silent).

We agree with the trial court's conclusion. Defendant's limited disclosures followed by his prompt assertion of the right to counsel was persuasive evidence that he knowingly and voluntarily waived his rights. There is no basis for this court to disturb the judge's decision to admit defendant's statements.

IV

Defendant, who was qualified by his prior convictions for an extended-term sentence, was sentenced to a term of four years, a sentence in the middle of the range for an ordinary sentence on a crime of the third degree. After reviewing the record and considering the judge's application of the relevant sentencing laws, we find no abuse of the judge's sentencing discretion. The judge's factual findings are adequately supported by the record. The judge's discretion was exercised in conformity with the governing law, and the sentence the judge imposed is not shocking to the judicial conscience. State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009). Defendant's arguments to the contrary lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

 

The judge made this decision at the close of the case. At that point, the State's evidence was sufficient to establish that Larose had been given a series of addresses in an effort to lure him into an area where he would be more vulnerable to attack, and defendant had testified that Clark was the person who gave Larose the first address. That evidence, without more, was adequate to support a finding of a reasonable ground to apprehend that Clark would be in peril of incriminating himself if he confirmed defendant's testimony placing him in the cab. The State's earlier disavowal of any intent to proceed against Clark did not eliminate all reasonable grounds for Clark to fear prosecution. Without testimony from Clark, the State had no evidence, other than defendant's assertions, placing Clark in the cab. It was not error for the judge to conclude that anything Clark said would provide the missing link. Ippolito, supra, 75 N.J. at 440.

(continued)

(continued)

2

A-3930-06T4

May 14, 2010