STATE OF NEW JERSEY v. DION MILLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4498-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DION MILLER,

Defendant-Appellant.

________________________________

August 10, 2010

 

A

August 3, 2011

rgued: December 9, 2009 Remanded: Resubmitted: May 23, 2011 Decided:

 

Before Judges Cuff, Payne and C.L. Miniman.

 

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-07-1193.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Dion Miller appeals from a February 23, 2007, judgment convicting him of first-degree felony murder, contrary to N.J.S.A. 2C:11-3a(3); first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d; and fourth-degree unlawful pos session of a weapon, contrary to N.J.S.A. 2C:39-5d. The judge merged the weapons convictions into the armed robbery conviction and the armed robbery conviction into the felony murder convic tion for sentencing purposes and imposed a term of thirty years in prison with no possibility for parole for the entire term.

Defendant appealed and raised the following issues for our consideration.

POINT I - THE TWO-STEP, QUESTION-FIRST INTERROGATION TECHNIQUE WHICH WAS USED IN THIS CASE WHERE A DEFENDANT WHO IS IN CUSTODY IS INTERROGATED WITHOUT MIRANDA WARN INGS UNTIL HE INCRIMINATES HIMSELF, AND THEN THE INTERROGATION IS REPEATED WITH WARNINGS CLEARLY VIOLATED [DEFENDANT'S] STATE-LAW RIGHT AGAINST COMPELLED SELF-INCRIMINATION AS WELL AS HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION.

 

POINT II - AS WAS THE BASIS FOR REVERSAL IN STATE V. GONZALEZ,[1] THE TRIAL JUDGE CHARGED THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY, BUT DID NOT EVER DEFINE EITHER THE ACTUS REUS OR THE MENS REA ELEMENTS OF A CRIMINAL ATTEMPT. (Not Raised Below)

 

POINT III - THE NEED FOR A LESSER-INCLUDED-OFFENSE INSTRUCTION WAS CLEARLY INDICATED BY THE RECORD. (Not Raised Below)

 

In a prior opinion, we remanded this matter for further fact-findings with respect to the issue of whether certain statements made by defendant occurred while he was in custody. State v. Miller, No. A-4498-06 (App. Div. Aug. 10, 2010) (slip op. at 41-45). We retained jurisdiction. Id. at 45. Thereafter, the judge complied with our mandate and determined that defendant was not in custody at the time of his statements to the police. We now affirm in all respects.

I.

We discussed the facts and procedural history relevant to this appeal in detail in our earlier opinion and incorporate that factual recitation here. Id. at 2-23. We noted that:

We are presented in this case with two diametrically opposite judicial fact-find ings respecting the moment defendant was taken into custody. The first judge found on the testimony before her that defendant was taken into custody when he was removed from his grand mother's apartment. That finding is supported by sub stantial evidence in the record that was before the first judge. The second judge found that defendant was not taken into custody until after he made the first incriminating statement, a finding supported by substantial evidence in the limited record before the second judge.

 

[Id. at 41-42.]

 

We concluded that this conflict required resolution "in order to permit us to determine whether defendant was subjected to an impermissible two-step interrogation." Id. at 42. We remanded the following issue:

Accordingly, we remand this matter to the second judge for reconsideration of his fact-finding respecting the moment defen dant was taken into custody. The second judge shall consider the transcripts of the hearing before the first judge as well as the transcripts of the hearing conducted before him. He may also permit the parties to expand the record with such addi tional testimony as will be of assistance in determining the moment when the police took defendant into custody. Once that issue has been resolved, the judge shall, if appropriate, deter mine whether defendant was subjected to an impermissible two-step interrogation. If the second judge ultimately concludes that defendant's statements to the police should be suppressed and a new trial ordered, he shall promptly advise us of that outcome so that we may dismiss this appeal. Otherwise, the judge shall find the facts and state his conclusions of law in a written decision prepared in accordance with the requirements of Rule 1:7-4(a), which shall promptly be transmitted to us no later than ninety days from the date of this opinion.

 

[Id. at 44-45.]

 

In addressing this issue, the second judge issued a thorough written opinion on November 19, 2010, in which he considered the evidence in the record previously before him as well as in the record before the prior judge and made fact-findings based on the entire record.2 He found that the only information known to the officers when they knocked on defendant's door was "that he was present at the scene shortly after the assault and had disavowed any involvement in it." He found that defendant voluntarily agreed to accompany the officers to the police station to answer any questions they might have about the incident. The detectives at no point drew their weapons, and defendant "was not restrained in handcuffs or in any other fashion." "He freely accompanied the detectives to their vehicle and entered the rear, unsecured area." There were no security devices in the vehicle to prevent defendant from exiting it or from making physical contact with the detectives in the front seat. "It was for all practical purposes a civilian passenger car." The ride lasted for fifteen minutes or less, and defendant was not questioned during the ride.

With respect to the questioning at the station house, the second judge found:

Upon arrival at the detectives' office[,] [defendant] was seated in an interview room with D'Angelo. The furniture in the room consisted of a table and two chairs. [Defendant] was not restrained or secured, rather he simply sat on one of the chairs speaking casually with D'Angelo while Means was outside brewing coffee. There was no questioning of [defendant] at this point. Rather D'Angelo, who knew [defendant] previously, spoke to him about basketball and other innocuous topics. After a while D'Angelo explained to [defendant] that he wanted to know if [defendant] had seen anyone driving from the scene before he encountered the victim, or anything that might have seemed to him to have been out of the ordinary for that neighborhood.

 

As this general questioning pro gressed[,] [defendant's] responses became inconsistent. When the inconsistent responses continued[,] D'Angelo became concerned that [defendant] may be something other than a witness. At that point [defendant] stated he wanted to get something off his chest. D'Angelo stopped him at that point and advised him of his rights. [Defendant's] rights were read to him, and the form was thereafter provided to him to read. After reading the form and acknowledging he understood his rights[,] he signed the waiver.

 

The second judge found based on "overwhelming evidence in the record" that the detectives' intent prior to advising defendant of his rights "was to secure information from a potential witness. Neither detective considered [defendant] as a possible suspect." The judge pointed to twenty separate facts that supported this conclusion as well as his finding that the testimony of the two detectives was credible. In short, "[t]here was not a scintilla of evidence which would lead a reasonable person to believe that [defendant] was a suspect. In fact, the victim's statements to the police at the scene coupled with [defendant's] presence all but eliminated consideration of [defendant] as a suspect."

The judge also found that "a reasonable person in [defendant's] position would not have felt himself or herself to have been deprived of his/her freedom in any way at any point prior to the administration of [Miranda] warnings" because he knew that he was present and had spoken to the victim, heard the victim tell police that the perpetrator left in a black vehicle, provided his name to the police on the night of the incident, and knew the victim died from his wounds. As such, a reasonable person would anticipate further contact with the police. All of these facts led the judge to conclude that defendant was not in custody until he was advised of his Miranda rights by D'Angelo and had not been subjected to a custodial interrogation prior to the administration of those rights. Thus, there was no impermissible two-step interrogation.

We ordered supplemental briefing. Defendant "urges that, notwithstanding the conclusions made by the second judge at the remand proceedings, the proper result is, for all of the reasons in defendant's original Appellate Division brief, a reversal of the denial of suppression and the resulting statements and convictions." He points out that he was challenging the failure of the first judge to suppress and argues that the second judge should have been bound under the law-of-the-case doctrine by the fact-findings of the first judge and suppressed his statement. In any event, he asserts that we should now reverse the first judge's "incorrect denial of suppression."

The State responds that the second judge's findings that defendant was not in custody before being given Miranda warnings and was only subject to custodial interrogation thereafter "are supported by overwhelming credible evidence in the record." As such, we should affirm the denial of the motion to suppress.

Although we recognize the distinction defendant seeks to draw, the doctrine of law of the case would not have bound the second judge because the first judge denied the motion to suppress, despite her fact-finding that defendant was in custody. "The law-of-the-case doctrine is a guide for judicial economy based on the sound policy that 'when an issue is once litigated and decided during the course of a . . . case, that decision should be the end of the matter.'" Feldman v. Lederle Labs., 125 N.J. 117, 132 (1991) (quoting Hale, supra, 127 N.J. Super. at 410), cert. denied, 505 U.S. 1219, 112 S. Ct. 3027, 120 L. Ed. 2d 898 (1992). The issue suppression of defendant's statement was initially decided adversely to him, yet he was not bound by this doctrine to that result, again moving to suppress his statement to the police. The second judge was no more bound under this doctrine by a fact-finding made during the course of the initial denial of suppression than was defendant by the ultimate conclusion.

We see no basis to challenge the thorough fact-findings made by the second judge nor do we perceive any error in his legal conclusions. Thus, we affirm the denial of defendant's first and second motions to suppress his statement to the police substantially for the reasons expressed by the second judge in his initial and remand decisions, all of which are supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999).

After carefully reviewing the record in light of the written and oral arguments advanced by the parties, we conclude that the remaining issues presented by defendant are "without sufficient merit to warrant discussion" in this opinion, Rule 2:11-3(e)(2). Those issues are defendant's contentions that the judge plainly erred when he failed to define criminal attempt for the jury, although he correctly charged all of the elements of robbery, and plainly erred in failing to charge lesser-included offenses to felony murder. This case is unlike Gonzalez, supra, 318 N.J. Super. 527, because here the State produced evidence of actual robbery. Finally, aggravated assault, aggravated manslaughter, and reckless manslaughter cannot be established by proof of the same or a lesser set of facts required to prove felony murder because felony murder has no separate mens rea and is committed when the actor causes death in the course of committing or attempting "robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism." N.J.S.A. 2C:11-3a(3).

Affirmed.

1 State v. Gonzalez, 318 N.J. Super. 527 (App. Div.), certif. denied, 161 N.J. 148 (1999), abrogated in part on other grounds by State v. Hill, 199 N.J. 545, 565-66 (2009).

2 The second judge expressed concern that "consideration here of proceedings which resulted in a mistrial runs afoul of longstanding principles regarding the effect of a mistrial particularly as they relate to . . . hearings" pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), citing State v. Hale, 127 N.J. Super. 407, 412 (App. Div. 1974). However, in Hale we noted the distinction between a pretrial motion to suppress, as here, the determination of which "remains a part of the case and is available for review on appeal," and "an objection to the admissibility of a confession under the Miranda doctrine" during a trial that ended with a mistrial, which is not subject to review. Id. at 412. This is so because "[t]he effect of a jury disagreement mandating the declaration of a mistrial and a subsequent trial negates the finality of any decision or ruling reached on the first trial." Ibid.