STATE OF NEW JERSEY v. EDWARD MCDONALD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0747-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD MCDONALD,

Defendant-Appellant.

May 13, 2011

 

Argued March 29, 2011 - Decided

Before Judges Parrillo, Skillman and Roe.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-10-1460.

Susan Brody, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Brody, of counsel and on the brief).

Lynne G. Seborowski, Assistant Prosecutor, argued the cause for respondent (Edward J. De Fazio, Hudson County Prosecutor, attorney; Ms. Seborowski, on the brief).

 

PER CURIAM

Originally slated as a capital trial, when New Jersey abolished the death penalty in 2007, the capital charges against defendant Edward McDonald and co-defendant Hamilton Sanchez were dismissed and a jury trial proceeded on murder and related charges stemming from a home invasion during which a family of four the parents Amal Garas and Hossam Armanious and their daughters, nine-year-old Monica and sixteen-year-old Sylvia were bound with duct tape and stabbed to death. Following eleven days of trial and an equal amount of time in deliberations, the jury convicted defendant of the felony murder, either by his own conduct or as an accomplice, of all four victims based on the burglary of their home armed with a handgun, for which he also was convicted. Defendant also was convicted of felony murder based on robbery of Sylvia, Amal, and Hossam, as well as the predicate offense, but the jury was unable to reach a verdict on those charges with respect to Monica.

Defendant was acquitted of purposeful or knowing murder and the lesser-included aggravated and reckless manslaughter charges for Sylvia, Amal, and Hossam. The jury was unable to reach a verdict on murder or the lesser-included manslaughter charges for Monica.

With respect to the weapons charges, defendant was convicted of possession of a handgun without a permit, and of possession of a gun for an unlawful purpose with respect to each of the victims, including Monica. He also was convicted of possession of a knife under inappropriate circumstances. He was acquitted of possession of a knife for an unlawful purpose with respect to Sylvia, Amal and Hossam, but the jury was unable to reach a verdict on that charge with respect to Monica.

Finally, defendant was convicted of attempted theft by deception, theft by deception and wrongful impersonation. After the verdict, defendant waived his right to a jury trial on the charge of certain persons not to have weapons, of which he was subsequently found guilty.

Defendant was sentenced to four life terms for the felony murder charges and concurrent terms for the other crimes. Defendant appeals, and we affirm.

The Armanious family lived in the first-floor apartment of a two-story, two-family house at 85 Oakland Avenue in Jersey City. Hossam worked in a hotel in Princeton and Amal worked at the post office.

According to the State's proofs, on January 13, 2005, Amal's brother, sister and parents went to 85 Oakland Avenue and knocked on the door, worried because they had been unable to contact her by telephone. After receiving no response, at midnight they contacted the police, who returned to the home with them.

With a flashlight, Sergeant Mark Cavanaugh was able to see through a porch window that the contents of a drawer in the front room were strewn around the floor. He entered the home through the window and, in the dining room, observed Amal's lifeless body in a puddle of blood, partially hanging off an upended chair, her arms, legs, and head duct taped. A bloody kitchen knife was on the living room couch.

Cavanaugh opened the front door for the other officers. In the bedroom, they found Sylvia's body lying on the bed, "hands duct taped above her head, hands and feet duct taped, covered in blood." A large bloody butcher knife was found on the bed next to her body. They found Monica's body "crouched in the bathroom with her neck slit, drenched in blood." She was in her pajamas, duct tape across her mouth and eyes.

Hossam's body was in the front bedroom, "arms and legs duct taped, arms behind his back, head duct taped, covered in blood." Protruding from his left shoulder was a wooden-handled butcher knife. His pockets had been pulled out. The apartment showed no sign of forced entry, and both the front and rear doors were locked with a dead-bolt. Closet doors and drawers were open.

Autopsies later showed that Hossam had a three-and-a-half-inch deep wound on his neck that was fatal. He also had three facial wounds that were consistent with torture. Amal had two knife injuries to her throat, one of which injured her trachea, and another that injured one of her main arteries and one of her main veins. Her right jugular vein and carotid artery had been cut.

Sylvia had eleven knife injuries. Most of the injuries were to her neck area and one stab wound was in her breast. Her right jugular vein and carotid artery also had been cut. Monica had a total of nineteen injuries. Eleven of the knife injuries were inflicted on her neck, chest and face. She had an additional eight defensive injuries on her arms, wrist and hand. Both sides of Monica's jugular vein and the left side of her carotid artery had been cut. The neck injuries on all of the victims "contribut[ed] significantly to their cause of death."

After discovering the bodies, the officers knocked on the locked door of the second-floor apartment. When they received no response, the police kicked in the door. Inside they found defendant, his girlfriend, Stephanie Torres, and three young children, who all lived there. Defendant was "very calm" as the police questioned him and Torres, both of whom said they had not heard or seen anything unusual. Cavanaugh described defendant's demeanor as "just surprisingly not excited about us kicking in his door," never inquiring why the police had kicked in his door in the early morning hours or what had happened downstairs.

Defendant agreed to accompany the police to the Hudson County Prosecutor's Office, where at approximately 6:30 a.m., he gave a formal statement, which was audiotaped.1 Thereafter, defendant was transported to a relative's home because he was not permitted to return to the crime scene.

Upon further investigation, the police determined that neither Hossam nor Amal had gone to work on January 12, 2005, and that their daughters had not been to school. A supermarket receipt found in the Armanious's kitchen trash was dated January 11, 2005, at 7:12 p.m. A security videotape from the Princeton hotel where Hossam worked showed that he left there at 8:40 p.m. on January 11, 2005.

The police also obtained a January 18, 2005 letter sent to Hossam by the Bank of America that advised him of "unusual activity" with his ATM card between January 14 and 16, 2005. Bank records indicated that Hossam's Bank of America ATM card had been used in transactions or attempted transactions twenty-one times between January 12, 2005, at 8:45 a.m. and March 3, 2005. A total of $2907 had been withdrawn. A video surveillance photograph at a Bank of America drive-through several blocks from Oakland Avenue showed that the driver of a 1990 Buick LeSabre used Hossam's ATM card on January 12, 2005, at 8:45 a.m.

According to motor vehicle registration records, defendant's mother owned a 1990 Buick LeSabre. Police surveillance photographs of her car showed decals and objects in the front and back windows that appeared to be the same as in the Buick that was used at the ATMs. In addition, the images of the individual seen on the bank transaction videos were consistent with photographs of defendant. As a result, defendant was placed under surveillance and wiretaps were placed on his home and cell phones.

On March 3, 2005, at 8:30 a.m., detectives stopped defendant on the street and he agreed to accompany them for additional questions. Defendant was taken to FBI headquarters in Newark. He was "[v]ery calm and cooperative." At 9:35 a.m., defendant was read his Miranda2 rights and agreed to waive them.

Defendant initially was interviewed by Detectives Kenneth Kolich and Jeffrey Marsella. When asked about the ATM transactions, defendant first said he knew nothing about them. But when confronted with a video photograph that showed his mother's car at the bank drive-throughs, defendant admitted that he had used Hossam's ATM card. He claimed that, several days prior to the murders, he had intercepted the Armanious's mail and found the card, and that he had a friend who hacked into the bank's computer and obtained the pin number.

However, after being shown additional bank photographs of the car and an individual using the card after the murders, defendant gave yet another account, telling police that his friend Hamilton Sanchez had given him the card. He further explained that on Tuesday, January 11, 2005, he had arranged with Sanchez that he would unlock the front door at 7:30 or 8:00 p.m. and return upstairs so that Sanchez could rob the Armanious family; that Sanchez called him later that night and told him where to meet the next morning so Sanchez could give him the pin number; and that defendant's job was to withdraw as much money as possible from the ATM machines.

That interview, which was not recorded, continued until 3:00 p.m., when detectives took a formal audio and videotaped statement wherein defendant reiterated what he had told police that morning. The day of the murders, he went to work and met Sanchez at lunchtime, when Sanchez told defendant he intended to rob the family that night. As planned, defendant went home and, at 6:00 p.m., unlocked the front door, checking it again at 7:30 p.m. Although defendant did not know the exact time Sanchez entered the apartment, Sanchez called him later that night and they arranged to meet the next morning. When they met at 8:30 a.m. on January 12, 2005, Sanchez handed defendant "a card and a pin number" and said "use this." Defendant was to give some of the money to Sanchez and keep some.

Because Kolich "was not totally convinced [defendant] was telling the truth," he arranged for defendant to be interviewed by special agent Edward Holloman of the Federal Bureau of Investigation, who "ha[d] a lot of experience interviewing people." That interview lasted a couple of hours and, in accordance with FBI policy, it was not recorded and Hollomon took no notes.

Defendant told Holloman that he had assisted Sanchez in robbing the Armanious family because defendant owed money to a loan shark. Defendant initially claimed that he left when the robbery "went bad" and Sanchez killed Monica, saying "he didn't want to have anything to do with any killing."

When Hollomon expressed disbelief, defendant eventually admitted killing Monica after she had loosened her blindfold because he was afraid she would recognize him. He also admitting killing Hossam by stabbing him in the neck with a knife from the apartment, but denied torturing him. Defendant also said he had a handgun that was secreted in a dryer at his residence.

Kolich observed Holloman's unrecorded interview of defendant from another room. At 8:30 that evening, the detectives took a second videotaped statement from defendant wherein he said he had arranged to meet Sanchez at the house at 7:30 p.m. on January 11, 2005. Defendant wore a mask and a hoodie and carried a 9 millimeter gun that he owned. He brought duct tape with him. Sanchez also wore a mask.

When Amal answered the door, defendant threatened her with the gun. Then he and Sanchez tied up Amal and the girls and searched the house for money and "everything." When Hossam came home, they tied him up and put him in the bedroom with the other family members. Hossam gave them his debit card and its pin number.

Defendant panicked when Monica pulled the blindfold off her face and Sanchez said "that she noticed us and that everybody had to die." After defendant put Monica's blindfold back on her, Sanchez "dragged" Monica into the bathroom and told defendant to kill her. Defendant killed Monica with a knife from the kitchen and walked back to the living room "in shock." Defendant never explained why it became necessary to kill Monica given that he and Sanchez wore masks the entire time.

Contradicting his statement to Holloman in which he admitted also killing Hossam, defendant now told the detectives that Sanchez killed the other three people. Defendant said he took a small knife from the house and, after the killings, went upstairs to his home and went to bed. He had "[a] little bit" of blood on his clothes and threw them and the knife into the garbage at his grandmother's house. He told his girlfriend he had robbed a store. Sanchez kept a hundred dollars that they found in Hossam's pocket and defendant kept the ATM card.

On March 3, 2005, the police also searched the apartment defendant had moved into at 18 Charles Street in Jersey City. There, inside the control panel of the clothes dryer, they found a 9 millimeter semi-automatic pistol with one bullet in the chamber, a sock with nine bullets inside, and a black knit cap. The magazine area of the gun was empty and its serial number was scratched out.

The police found no fingerprints, blood, DNA, hair or other fibers that linked defendant to the scene. All of the bloody knives found in the apartment had been part of the family's kitchen cutlery.

On appeal, defendant raises the following arguments for our consideration:

I. THE TRIAL WAS IRREPARABLY TAINTED BY SERGEANT KOLICH'S TESTIMONY THAT DEFENDANT SAID HE "DOESN'T WANT TO GO BACK TO JAIL," AND THE COURT ERRED IN REFUSING TO GRANT DEFENDANT'S MISTRIAL MOTION.

II. THE COURT ERRED IN FINDING DEFENDANT'S STATEMENTS TO POLICE TO BE ADMISSIBLE AT TRIAL.

 

III. DEFENDANT'S FEDERAL CONSTITUTIONAL RIGHT TO REMAIN SILENT WAS VIOLATED BY SERGEANT KOLICH'S REPEATED TESTIMONIAL REFERENCES TO HIS FAILURE TO TESTIFY AT TRIAL.

 

IV. DEFENDANT WAS DEPRIVED OF A FAIR TRIAL BY THE COURT'S FAILURE TO CHARGE THE STATUTORY AFFIRMATIVE DEFENSE TO FELONY MURDER. (Not Raised Below).

 

V. THE SENTENCE OF FOUR CONSECUTIVE LIFE TERMS WAS MANIFESTLY EXCESSIVE IN LIGHT OF ALL RELEVANT CIRCUMSTANCES.

 

We find that none of these issues, considered either singly or cumulatively, warrants reversal of defendant's conviction.

I.

Defendant argues that the court erred when it denied his motion for a mistrial based on unanticipated testimony by Kolich that defendant told Kolich he had killed Monica because he did not want to go back to jail. We disagree.

Briefly, by way of background, during Kolich's testimony regarding his observations of Holloman's unrecorded interview, the prosecutor asked him to describe what he had heard. Kolich said defendant told Holloman that he had stabbed Monica and Hossam. The prosecutor asked Kolich, "Did he say why?" Kolich replied, "He said he didn't want to go back to jail, his wife had just had a baby, he did not want to go back to jail."

Defense counsel immediately moved for a mistrial based on Kolich's reference to defendant's previous incarceration. He argued that the transcripts of defendant's police statement had been specifically excised to avoid any references to defendant's record, that Kolich's report never mentioned this comment by defendant, and that Kolich never related it during the suppression hearing. The prosecutor responded that he had instructed Kolich that defendant's criminal history was "just not to be spoken of"; that he was "surprised" and "shocked" by Kolich's testimony; and that he believed Kolich had "made a mistake."

The court denied the motion, immediately reminding the jury of its obligation regarding material that was stricken from the record, and directing them that the "last answer of the Detective is to be stricken and you are not to discuss it, it is not to have any bearing on the case." Furthermore, the judge invited any juror who could not comply with this command to approach the court individually.

At the court's invitation, defendant later filed a more formal motion after the presentation of the State's case, arguing that Kolich's comment was "so prejudicial" that "a curative instruction wouldn't be able to fix it." The court denied the motion again, explaining that it had "immediately and strongly" instructed the jury to disregard the statement and had invited any juror to approach individually during a break if he or she were unable to follow the court's directive, but "not one of them came forward." We agree that the trial judge's remedial actions cured any prejudice resulting from Kolich's challenged reference.

"A mistrial is an extraordinary remedy." State v. Mance, 300 N.J. Super. 37, 57 (App. Div. 1997). It should be granted "only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997). See State v. Allah, 170 N.J. 269, 280-81 (2002). The determination of whether inadmissible evidence is capable of being cured by an instruction to the jury, or whether it requires a mistrial, is within the discretion of the trial judge. State v. Winter, 96 N.J. 640, 646-47 (1984). The judge "has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." Id. at 647. A denial of a mistrial motion is reviewable only for an abuse of discretion that has resulted in a manifest injustice. Ibid.

The same level of deference applies to the review of whether the given curative instruction was adequate. Ibid. In determining the adequacy of a curative instruction, an appellate court must focus on "the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." Ibid. When the erroneous admission of evidence does not violate a defendant's constitutional rights, it should be disregarded by an appellate court unless it is clearly capable of producing an unjust result. Id. at 647-48; State v. Zapata, 297 N.J. Super. 160, 175-76 (App. Div. 1997), certif. denied, 156 N.J. 405 (1998).

The essence of defendant's argument is that Kolich's reference constitutes inadmissible "other-crimes" evidence so prejudicial that no curative instruction could rectify its effect. However, other-crimes evidence is not necessarily inadmissible. Although improper to prove a defendant's propensity to commit the crime for which he or she is charged, under N.J.R.E. 404(b), 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." Indeed, evidence of motive "has extremely high probative value." State v. Long, 173 N.J. 138, 164 (2002). The stringent standard generally imposed upon the admission of other-crimes evidence is not frequently used to exclude motive evidence on the basis of its prejudicial nature. Id. at 162. Instead, other-crimes evidence that tends to establish a defendant's motive or intent will be excluded only upon "a very strong showing of prejudice." State v. Koskovich, 168 N.J. 448, 486 (2001) (quoting State v. Covell, 157 N.J. 554, 570 (1999)). Here, as defense counsel himself recognized, defendant's statement was directly relevant to the issue of motive and, as his very own admission, was not otherwise excluded as hearsay. N.J.R.E. 803(b)(1).

To be sure, other-crimes evidence is unavoidably prejudicial to a criminal defendant. State v. Stevens, 115 N.J. 289, 309 (1989). That inherent quality creates the risk that a jury that hears it will be distracted from its obligation to consider independently the evidence that bears directly on the elements of the offense for which the defendant is being tried. State v. Blakney, 189 N.J. 88, 93 (2006); State v. G.S., 145 N.J. 460, 468 (1996). In some cases, such evidence may be susceptible to being sanitized to remove the prejudicial comments. State v. Collier, 316 N.J. Super. 181, 185 (App. Div. 1998), aff d o.b., 162 N.J. 27 (1999). But in all cases where a court is confronted by other-crimes evidence that the State seeks to admit for one of the purposes articulated by Rule 404(b), it must apply the four-part test set forth in State v. Cofield, 127 N.J. 328, 605 (1992), to determine whether the evidence is admissible because it is relevant, sufficient, and because its probative value is not outweighed by its apparent prejudice. Long, supra, 173 N.J. at 164.

Here, however, no Rule 404(b) hearing was held and no balancing determination made because the challenged evidence was stricken. The trial court's curative instruction was, in our view, adequate to remedy any undue prejudice or residual taint. The objectionable reference was fleeting and the court's reaction was immediate and thorough. The judge not only ordered the jury to ignore the remark, he bolstered that instruction with the reminder of the jury's obligation regarding evidence that had been ordered stricken from the record and the opportunity for jurors to be heard individually if they had any difficulty with that direction. The jury's inability to reach a decision on the issue of whether defendant killed Monica by his own hand indicates that it followed the court's instruction to disregard Kolich's testimony about defendant's remark. Accordingly, we perceive no abuse of discretion in the trial court's denial of defendant's mistrial motion.

II.

Defendant argues that he was also entitled to a mistrial because, during Kolich's cross-examination, the witness made several remarks about defendant's failure to testify that violated defendant's Fifth Amendment right to remain silent. We disagree.

Kolich's comments must be placed in proper context. They arose during defense counsel's cross-examination of Kolich, when he reviewed defendant's taped statements with Kolich line by line. As part of that inquiry, defense counsel cited defendant's statement to Kolich that "[w]e told [Hossam] not to move and that we had his family." Defense counsel asked Kolich, "Who's the we, we told him not to move, who's the we?" Kolich responded: "The only one that could answer that is the person, the one that uttered the word we."

Counsel did not object, but instead pressed Kolich on whether defendant's response meant there were additional people in the apartment besides defendant and Sanchez. He asked Kolich, "If 'we' means more than one person, who would be watching the other members of the family while we were out confronting the father?" Kolich responded, "Again, the only one that can answer that is the one that uttered it."

Defense counsel later asked Kolich, "Was there anything different about [defendant's] appearance according to what he says in this statement from the time he went into the apartment until the time he left?" Kolich replied, "I don't know, sir. I wasn't there."

Defense counsel then returned to the former line of questioning and referred to the portion of defendant's statement where defendant discussed killing Monica and his reason for doing so. Defense counsel asked Kolich: "But when [defendant] says in that answer to the question[,] 'she seen all of us,' who's 'us'?" Kolich's response was similar to his previous answer: "Again, only the person that uttered that can answer that, sir." Again, defense counsel did not object. Instead, he asked Kolich, "Well, do you remember?"

The court then interrupted, told the jury to disregard the question because it was "hearsay," and instructed defense counsel to ask Kolich only "what, if anything, was told to you or what you know." The court asked to see counsel at sidebar and told defense counsel:

This is the second or third time he answered a question that you have raised. I cannot have a situation before this jury that for some reason, [defendant] has to come up and answer this was said and the form of that question is getting -- let it go once, but now he keeps answering the same way you're asking the questions, that's why I interrupted you, because as he says the only the person who says this can tell you, there's a Fifth Amendment issue that jumps out at me.

Defense counsel refused the court's offer to instruct the jury regarding defendant's Fifth Amendment rights because he did not want to highlight the issue, and he said he would "deal with this in continuation of my cross-examination." The prosecutor agreed to instruct Kolich "that he should not obliquely implicate the Defendant's Fifth or Sixth Amendment rights." The court reiterated that the responses had been "[e]licited by Defense, not State," and that its remarks were directed to the defense.

"[B]ecause a defendant is under no obligation to aid the State's prosecution, his silence cannot be used against him." State v. Daniels, 182 N.J. 80, 90 (2004). Prosecutorial comment on a defendant's failure to testify is forbidden. State v. Deatore, 70 N.J. 100, 112-13 (1976). "Reversal is mandatory if the prosecuting attorney has unambiguously called attention to defendant's failure to testify in exercise of his fifth-amendment constitutional right." State v. Williams, 113 N.J. 393, 454 (1988).

But that did not occur here. Instead the comments were elicited by defense counsel, who repeatedly and intentionally elicited the witness's speculation on the meaning of statements that defendant had made. Defense counsel knew that Kolich remained unaware who the other robbers in the apartment were (if, in fact, there were any besides defendant and Sanchez), and that, even if Kolich had evidence of their identity, he was unable to provide it at trial. Yet counsel persisted in asking Kolich to speculate in an attempt to deflect blame to unidentified co-conspirators. Counsel then failed to object to Kolich's answers and refused the court's express offer to instruct the jury regarding defendant's right to not testify. Moreover, at the time Kolich provided his responses, defendant had not yet declared his intention not to testify.

Thus, to the extent there was any error, it was invited. A defendant may not ask the court to take a certain course of action and then, upon an unfavorable outcome, complain that the course he requested was prejudicial. State v. Jenkins, 178 N.J. 347, 358 (2004). As part of his trial strategy, defense counsel pursued a line of questioning seeking responses that necessarily were speculative and inadmissible. The questions required Kolich to speculate about other conspirators, to offer no response, or to point out that only defendant could explain his own statements.

The trial court did not abuse its discretion in denying defendant's motion for a mistrial based on Kolich's testimony. Winter, supra, 96 N.J. at 647. Kolich's responses were not so prejudicial as to require a mistrial. As defendant himself acknowledges on appeal, Kolich's comments were "oblique." Neither by themselves, nor in conjunction with Kolich's reference to defendant's prior incarceration, did Kolich's responses establish a manifest injustice.

III.

Defendant argues that the trial court erred when it denied his motion to suppress his confession because his statements were not freely and voluntarily given. This argument lacks merit.

At the suppression hearing, Kolich testified that, at 8:30 a.m. on March 3, 2005, upon his arrival for an appointment with his probation officer, defendant agreed to accompany police to FBI headquarters in Newark. He was not under arrest at that time.

At 9:35 a.m., defendant was read his Miranda rights, which he waived. Kolich and Detective Jeffery Marsella conducted an unrecorded pre-interview of defendant until 3:00 p.m., with a break for lunch. Defendant was "calm," although "somewhat nervous at the same time." He was provided with food, beverages, and hourly bathroom breaks. He answered all of the detectives' questions and never demanded to speak to an attorney or that the questioning stop.

Before defendant admitted his participation in the crime, the detectives told him that his mother and girlfriend were being questioned, and that it was possible that Torres would be arrested and charged with participating in the crime. They also told him that if Torres was involved, it "would be left up to the courts" where his children would be placed. They showed defendant the photographs depicting him at the ATM machine, and he then admitted that he had used the ATM card. At approximately 11:30 a.m., just before a lunch break, the detectives showed defendant autopsy photographs of the victims. Defendant agreed to provide a videotaped statement, which took half an hour and concluded at 3:30 p.m.

At 5:00 p.m., after defendant was provided with a dinner and bathroom break, Holloman conducted a polygraph examination of defendant.3 According to Holloman, prior to the examination, defendant again was advised of his Miranda rights and afforded the opportunity to waive them. Defendant also signed a form that explained he had the right to refuse to take the test, the right to stop it at any time, and the right to refuse to answer any question on the test. At no time during the examination did defendant indicate that he was no longer willing to answer questions. When he finished the initial polygraph examination at about 5:30 p.m., Holloman concluded that defendant "was not telling the truth." He confronted defendant with his findings. Defendant was "relatively calm, not particularly upset."

During Holloman's interview, he relied on the "theme[]" of talking to defendant about his family. Defendant "seemed to be particularly concerned" about his young baby. Holloman told defendant that the child was going to look at him as an example, that defendant "wouldn't want the child to lie" if caught in something wrong, and defendant should "do the right thing" and tell the truth because "lying just makes it worse." Defendant "ultimately . . . began changing his story" and said he had chased and killed Monica when she loosened her restraints and ran into the bathroom.

Holloman's examination ended at approximately 7:30 p.m. At no point did defendant ask to see an attorney or indicate that he no longer wanted to answer questions.

Approximately a half hour after the polygraph ended and defendant was provided with another bathroom break, Kolich and Marsella took another videotaped statement from him. At the beginning of the videotaped statement, the detectives showed defendant the waiver of rights he had signed earlier that morning. Defendant acknowledged having read and signed the form and having agreed to talk to them as a result. The second statement took approximately thirty or forty minutes and concluded at 8:58 p.m.

The trial court denied defendant's motion to suppress, concluding from its review of the videotapes and other evidence that defendant "spoke freely and voluntarily"; that the interrogation was "undoubtedly free of coercive techniques, threats and duress"; and that defendant's "will was not overborne, to the contrary, he acted upon his own free will." Specifically, the court noted that although defendant "only signed and initialed the Advice of Rights form prior to the first interrogation," the detectives "took more than sufficient measures to rehash the issue of waiving his Miranda rights prior to the second interrogation and polygraph test." For instance, the officers produced the form prior to each subsequent interrogation and "asked the defendant on the record to acknowledge his signature and initials so that he may reconfirm his understanding of the consequences of waiving his rights." Accordingly, the court concluded "[t]he fact that Defendant did not sign three separate Advice [of] [R]ights forms is of little to no consequence" since the detectives' "act of reproducing the Advice Rights form" was "tantamount to re-administering a fresh Miranda warning." We agree with the court's conclusion.

The State must prove beyond a reasonable doubt that the defendant's waiver of his Fifth Amendment right to remain silent was knowing, intelligent and voluntary. State v. Presha, 163 N.J. 304, 313 (2000). The inquiry into whether a suspect's will has been overborne by police conduct involves an assessment of the totality of the circumstances surrounding the interrogation. Ibid. The court should examine the defendant's age, education and intelligence, the advice he or she received regarding constitutional rights, the length of detention, whether the questioning was repeated and prolonged in nature, and whether there was any physical punishment or mental exhaustion. State v. Knight, 183 N.J. 449, 462-63 (2005). Relevant factors also include the defendant's familiarity with the law enforcement process based on previous encounters with the police, and the length of time between the administration of the Miranda warnings and the defendant's statement. Id. at 463.

In reviewing the trial court's decision on a suppression motion, an appellate court must defer to the credibility findings of a trial court to the extent those findings are founded on the judge's opportunity to observe the witnesses' character and demeanor. State v. Locurto, 157 N.J. 463, 474 (1999); State v. Sheika, 337 N.J. Super. 228, 238-39 (App. Div.), certif. denied, 169 N.J. 609 (2001). The judge's decision should be affirmed if it is supported by substantial credible evidence in the record. Locurto, supra, 157 N.J. at 470-71; State v. Johnson, 42 N.J. 146, 161-62 (1964). Here, the record provides substantial support for the court's decision that defendant knowingly and voluntarily waived his right to remain silent.

In his argument to the contrary, defendant complains that he was subject to a day-long interrogation and "a barrage of questioning" that was "long and unrelenting." However, while the length of an interrogation is a critical factor in determining the voluntariness of a defendant's confession, it is only one of the many relevant factors. Knight, supra, 183 N.J. at 469.

In Knight, the Court found that the length of an interrogation that began around sunrise and continued until 3:20 p.m. did not invalidate the defendant's confession. Ibid. Nor was a nine-and-a-half-hour interrogation sufficient to render a confession involuntary, where the officers provided the suspect with food and drink and apprised him of his rights on more than one occasion. State v. Morton, 155 N.J. 383, 450 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

Here, defendant's interrogation occurred primarily over the course of a normal workday. He confessed his involvement in the theft only a couple of hours after his rights were administered, and his involvement in the murders by the early evening. The length of time, alone, does not establish that defendant's confession was involuntary.

Defendant also points to the coercive effect of being told that if he did not confess, his mother and girlfriend could be charged with serious crimes and his children removed from their home. However, defendant provided no evidence at his suppression hearing that his confession was prompted or motivated by the fears he alleges on appeal. Nor does his desire to protect his mother and girlfriend from so-called baseless criminal charges demonstrate that his confession was involuntary. There was nothing impermissible in the police colloquy concerning defendant's family members. Indeed, police investigation into the roles that defendant's girlfriend and mother might have played in the criminal episode was entirely reasonable given that defendant's mother's car was seen in multiple videos of the illicit bank withdrawals, and that his girlfriend lived upstairs from where four murders occurred, but claimed to have heard nothing. Moreover, there was no proof that the police actually apprehended or threatened any of defendant's family members, much less to coerce defendant's confession.

Defendant also argues that the substitution of interrogators from the local prosecutor's office to FBI agent Holloman, and back again, represented "an increase in the level of coerciveness that," under State v. Nyhammer, 197 N.J. 383, 401, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009), "would qualify as an 'intervening event' requiring that new Miranda warnings be administered." Defendant's argument ignores the fact that he was apprised of his constitutional rights three times during the day. The first time he was read his rights, and he read and initialed the waiver form. Holloman then informed defendant again of his rights prior to the administration of the polygraph exam. On the third occasion, Kolich reminded defendant of those rights before the second videotaped statement, although he did not read them again.

In Nyhammer, the Supreme Court "refused to 'adopt an automatic second-warning system.'" Id. at 402 (quoting State v. Magee, 52 N.J. 352, 374 (1968), cert. denied, 393 U.S. 1097, 89 S. Ct. 891, 21 L. Ed. 2d 789 (1969)). Instead, "'the important factors' in determining the validity of a Miranda waiver are 'whether the suspect understood that he did not have to speak, the consequences of speaking, and that he had the right to counsel before doing so if he wished.'" Ibid.

Here, the evidence establishes that defendant's waiver of his rights was voluntary. He was advised multiple times of his rights and clearly expressed his understanding of those rights. Defendant was provided with food, drink and bathroom breaks. There was no evidence of coercion. No threats or misrepresentations were made and defendant was accurately advised that his mother and girlfriend were under investigation. Significantly, the court had the opportunity to view defendant's two videotaped statements and his demeanor and willingness to answer questions exhibited therein. In sum, the record supports the judge's findings that defendant received the appropriate warnings, freely and voluntarily waived his rights, and was not subject to coercion or duress during the interrogation.

IV.

Defendant contends that it was plain error for the court to fail to sua sponte instruct the jury on the statutory affirmative defense to felony murder. This argument fails as well.

The felony murder statute, N.J.S.A. 2C:11-3(a)(3), provides that

in any prosecution under this subsection, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:

 

(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and

 

(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and

 

(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and

 

(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

The Legislature's purpose in adopting the affirmative defense "was to deal with a defendant who did not assume a homicidal risk in 'an appropriate way by holding them responsible for the felony but not for the homicide.'" State v. Walker, 203 N.J. 73, 83 (2010) (quoting II Criminal Law Revision Commission, Final Report of the New Jersey Criminal Law Revision 2C:11-3 commentary at 156-58 (1971)). The four prongs of the defense focus on whether a participant in a felony "'undertook a homicidal risk or could have foreseen that the commission of the felony might result in death.'" Id. at 84 (quoting State v. Martin, 119 N.J. 2, 22-23 (1990)).

The standards for determining when a trial court is obliged to charge a jury on a lesser-included offense also apply to the issue of whether to instruct the jury on the affirmative defense to felony murder. Walker, supra, 203 N.J. at 86-87. When requested by the defendant, a trial court should give the instruction so long as there is a rational basis in the record to give it. Id. at 87. But when, as here, there is no request for an instruction on the affirmative defense, the court should provide it "only when the evidence clearly indicates the appropriateness of such a charge." Ibid.

The defendant has the burden to produce "some evidence" in support of each of the four prongs of the defense, and is not precluded from doing so by the existence of strong evidence to the contrary. Ibid. In this regard, the Legislature has established that "[w]hen the application of the code depends upon the finding of a fact which is not an element of the offense," unless otherwise provided by the code, "[t]he burden of proving the fact is on the prosecution or defendant, depending on whose interest or contention will be furthered if the finding should be made." N.J.S.A. 2C:1-13(d)(1). Moreover, "[t]he fact must be proved to the satisfaction of the court or jury, as the case may be." N.J.S.A. 2C:1-13(d)(2). The State is not required to disprove an affirmative defense unless and until the defendant provides evidence to support it. N.J.S.A. 2C:1-13(b)(1). But, "so long as there is some evidence pertaining to each of the four prongs of the defense, whether produced in the State's case or in defendant's case, the instruction on the affirmative defense to felony murder should be given to the jury." Walker, supra, 203 N.J. at 89.

In Walker, the Court considered whether a trial judge's failure to give the instruction sua sponte was plain error. Id. at 77-91. The victim was found on the floor of his home, with stab wounds and not breathing, his hands and feet taped together, and the house in shambles. Id. at 78. The previous night, one of the victim's friends had allowed the defendant and the co-defendant, Carl Trupaire, into the victim's home and then he left. Ibid.

Although the defendant admitted to the police that they intended to rob the victim, that he had punched the victim in the face and taped the victim's legs together, and that he saw Trupaire stab the victim, at trial he provided a "substantially different" story. Id. at 78-80. He denied going to the house to rob the victim and said that he and Trupaire had gone there to secure a passport for Trupaire's brother, and that a fight began unexpectedly between Trupaire and the victim. Id. at 80-81. The defendant said he hit the victim once in the face while attempting to defend Trupaire, and then "watched for five to ten minutes in a state of shock" as Trupaire "kicked and stomped" the victim. Id. at 81. He then left the home. Ibid. He said he never saw Trupaire with a knife. Ibid.

Based on that testimony, the Court found that it was error for the trial court not to sua sponte instruct the jury on the affirmative defense. Id. at 87-89. If the jury believed his testimony, it could conclude that he had interceded in a contested fight and that his participation ended at a point where he had no reasonable ground to believe anyone intended to engage in conduct likely to result in death or serious physical injury. Id. at 89; N.J.S.A. 2C:11-3(a)(3)(d).

In this case, defendant argues that "there was more than a rational basis" for the affirmative defense charge here because the jury could have chosen to credit only his first videotaped statement to Kolich and reject his two subsequent statements that day. In further support of this position, defendant points to the fact that all of the knives had been taken from inside the apartment; there was no proof that a gun found later was in defendant's possession prior to or during the robbery; and the absence of the gun's magazine rendered the gun ineligible as a deadly weapon.

We agree that defendant's first videotaped statement wherein he said he let Sanchez into the apartment building and never himself entered the Armanious's home provided "some" evidence on the first two prongs of the defense, namely that he did not commit, solicit, request, or aid in the commission of the crime, and that he was not armed with a weapon readily able to cause death. N.J.S.A. 2C:11-3(a)(3)(a) and (b). However, unlike the situation in Walker, supra, 203 N.J. at 80-81, where the defendant affirmatively testified that he saw no weapon and that they went to the house to obtain a passport, not to rob its owner, defendant's first videotaped statement to the police provided no affirmative evidence on the third and fourth prongs under N.J.S.A. 2C:11-3(a)(3)(c) and (d). There was no evidence, from either the defense or prosecution, to support defendant's contention that he "had no reasonable ground" to believe that Sanchez would be armed with a deadly weapon, as required by N.J.S.A. 2C:11-3(a)(3)(c), and, in addition, "no reasonable ground" to believe Sanchez intended to engage in conduct likely to result in death or serous bodily injury, as required by N.J.S.A. 2C:11-3(a)(3)(d).

Defendant's statement was silent on whether his agreement to provide Sanchez with access to the building for the robbery included any discussion of whether Sanchez intended to be armed with a deadly weapon to accomplish the robbery or an indication from Sanchez that, once he gained access to the victims, he intended to refrain from conduct that was likely to result in death or serious physical injury. The absence of any evidence on those prongs is insufficient to meet defendant's burden of persuasion.4

Even if there had been sufficient evidence on all four prongs of the affirmative defense, the trial court's failure to provide the instruction was harmless error in this case. A trial court's erroneous, but unchallenged, failure to instruct the jury on the statutory felony murder defense will be reversed only if it constituted plain error that was clearly capable of causing an unjust result. Walker, supra, 203 N.J. at 89-90.

In Walker, the Court found no unjust result from the erroneous omission of the charge on the felony murder defense because the defendant's convictions on the charges of conspiracy, robbery, reckless manslaughter, and possession of a knife required the jury to conclude that the defendant had aided in the commission of a homicidal act and possessed a deadly weapon, and that his co-defendant also was armed with a knife and engaged in conduct likely to result in death or serious physical injury. Id. at 90. In making those findings, the jury found against the defendant on most, if not all, of the four prongs of the affirmative defense. Ibid.

A similar result pertains here. The jury found that defendant, either solely or jointly with Sanchez, was armed with a handgun with the purpose of using it against each of the victims, and also that he possessed a knife under circumstances not manifestly appropriate for its use. Based on the wording of the jury questions, the jury's finding could have been based on a determination that defendant had possession of one or both items himself, or that he possessed one or both of them as an accomplice to Sanchez. But it necessarily negated any claims by defendant with respect to prong three (that defendant was not armed with a deadly weapon) or prong four (that he had no reasonable ground to believe that any other participant was armed with a deadly weapon), or both. Defendant was required to establish all four prongs to sustain the defense and he failed to do that. N.J.S.A. 2C:11-3(a)(3). Consequently, the omission of the charge was harmless error.

 

 

V.

Lastly, defendant argues that his sentence of consecutive life terms on the four felony murder convictions was excessive. We disagree.

The trial court found as aggravating factors the risk that defendant would commit another offense, the extent of defendant's prior record and the seriousness of the offenses of which he was convicted, and the need for deterrence, N.J.S.A. 2C:44-1(3),(6) and (9), and no mitigating factors. The judge observed that defendant had "a non-stop criminal record" from the age of eighteen or twenty. Consecutive life terms were imposed because "this wasn't a single act of violence," but instead there were "separate acts of violence and separate crimes against each person." Although the crimes were committed at the same time, they were "separate and distinct." Each family member was bound and gagged, each was taken to a different room, and each was killed in the presence of the others. The court reasoned:

We cannot send a message to society that if you enter into somebody's home and you decide to for whatever reason as a person by their own conduct or as the person involved in the crime as you are, and for some reason, whatever reason, a person dies. And then there are three other people that are there that are witnesses to that offense that you can then go ahead and have killed the other three people with impunity.

Because if you've killed one person and the sentence is the same for one as for four, you might as well kill everybody that's there. That's not what our law intends. That's not what Yarbough5 stands for.

. . . .

[B]ecause these murders . . . were committed in the manner in which they were, and because there shall be no free crimes, and because . . . one life taken is no less valuable than another life taken and to deter you and any others that would consider to kill with impunity, these sentences shall be consecutive . . . .

Great deference is afforded a trial court's exercise of its discretion to impose a particular sentence. State v. Dalziel, 182 N.J. 494, 501 (2005). When a trial court exercises that discretion in accordance with the statutory sentencing guidelines and the principles set forth in case law, it will not be second-guessed on appeal. State v. Bieniek, 200 N.J. 601, 607-08 (2010).

In reviewing a sentence, the appellate court's role is to determine whether the trial court applied the correct legal principles and whether (1) the sentencing court's exercise of discretion "was based upon findings of fact grounded in competent, reasonably credible evidence"; and (2) whether the court's "application of the facts to the law was such a clear error of judgment that it shocks the conscience." State v. Megargel, 143 N.J. 484, 493 (1996). The reviewing court "may not substitute its own judgment for that of the sentencing court." Id. at 493-94. On appeal, a reviewing court

may disturb a sentence imposed by the trial court in only three situations: (1) the trial court failed to follow the sentencing guidelines, (2) the aggravating and mitigating factors found by the trial court are not supported by the record, or (3) application of the guidelines renders a specific sentence clearly unreasonable.

[State v. Carey, 168 N.J. 413, 430 (2001).]

In Yarbough, supra, 100 N.J. at 643-44, the Court set out the factors to be considered by the trial court in determining whether a sentence should be consecutive or concurrent. The trial court should consider the facts of the crime, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

 

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

 

(e) the convictions for which the sentences are to be imposed are numerous[.]

 

[Id. at 644.]

The imposition of consecutive sentences is especially suitable when a defendant's crimes involve multiple deaths. Carey, supra, 168 N.J. at 428. A defendant who commits offenses against different victims in a single criminal event is more culpable than one who commits the same group of offenses against a single victim because the harmful impact of his conduct is greater. Id. at 428-29. That principle is most applicable when a perpetrator intentionally targets multiple victims. Id. at 429.

Here, the imposition of consecutive life terms was supported by the record. Defendant planned the burglary and robbery for the evening when multiple family members would be home. Regardless of whether he himself killed any of the victims, he remained in the home and continued his participation in the underlying felonies during the entire time four people were brutally and repeatedly stabbed to death for a reason that was never explained. Suffice it to say, the aggregate sentence does not shock the judicial conscience.

Affirmed.

1 The audiotape was played for the jury, but no transcript has been provided on this appeal.

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

3 The jury heard only that Holloman interviewed defendant; it was not told that the interview included a polygraph examination.

4 Defendant's statement to the police that he had retrieved the ATM card from the mail provided no basis for an instruction on the affirmative defense because it denied any involvement in the underlying robbery or burglary of the home. The defense is available when a defendant is not the only participant in the underlying crime. N.J.S.A. 2C:11-3(a)(3).

5 State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).