STATE OF NEW JERSEY v. JASHAWN J. SNOWDEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3375-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASHAWN J. SNOWDEN a/k/a

J.J.,

Defendant-Appellant.

_____________________________

May 25, 2011

 

Submitted December 8, 2010 - Decided

 

Before Judges Fuentes, Gilroy and Nugent.

 

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-03-0306.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

 

CameliaM. Valdes, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

On March 21, 2006, a Passaic County Grand Jury charged defendant with first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); third-degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three).1 On September 19 and 20, 2007, the court conducted an N.J.R.E. 104(c) Miranda2 hearing on defendant's motion seeking to suppress the statements he gave to the police following his arrest on November 28, 2005. Immediately following the Miranda hearing, the court also conducted a Gross3 hearing to determine the admissibility of prior inconsistent statements of witnesses Victor Jenkins and Darryl Samuels pursuant to N.J.R.E. 803(a)(1).

A jury found defendant guilty on all three counts. On January 4, 2008, the trial court sentenced defendant on count one to a forty-five-year term of imprisonment with an 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a five-year term of parole supervision upon release; and on count two to a five-year term of imprisonment to run concurrent with the sentence imposed on count one. The court merged the conviction on count three with the conviction on count one and imposed all appropriate fines and penalties.

On appeal, defendant argues:

POINT I.

 

DURING HIS CROSS-EXAMINATION OF THE DEFENDANT AND IN HIS SUMMATION, THE PROSECUTOR IMPROPERLY SUGGESTED THAT THE INVESTIGATING POLICE OFFICERS WOULD LOSE THEIR JOBS AND BE SUBJECT TO PROSECUTION IF THE DEFENDANT WAS FOUND NOT GUILTY (RAISED IN PART AND NOT RAISED IN PART BELOW).

 

POINT II.

 

THE TRIAL COURT DEPARTED FROM ITS PROPER ROLE AND PRECLUDED THE DEFENDANT FROM ESTABLISHING REASONABLE DOUBT AS TO HIS GUILT WHEN IT PERMITTED VICTOR JENKINS AND DARRYL SAMUELS TO "TESTIFY" TO THE JURY DESPITE THEIR FAILURE TO BE SWORN AS WITNESSES OR PROPERLY AFFIRM TO TESTIFY TRUTHFULLY.

 

POINT III.

 

ADMISSION OF THE PRIOR INCONSISTENT STATEMENTS OF VICTOR JENKINS AND DARRYL SAMUELS AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT DENIED DEFENDANT A FAIR TRIAL.

 

A. SINCE VICTOR JENKINS AND DARRYL SAMUELS WERE NOT SWORN IN AS WITNESSES AND DID NOT PROPERLY AFFIRM TO TESTIFY TRUTHFULLY AT TRIAL, THE TRIAL COURT ERRED IN ADMITTING THEIR PRIOR INCONSISTENT STATEMENTS UNDER N.J.R.E. 803(A)(1).

 

B. THE TRIAL COURT ERRED IN FINDING THE STATEMENTS WERE SUFFICIENTLY RELIABLE TO BE ADMITTED INTO EVIDENCE AS PRIOR INCONSISTENT STATEMENTS.

 

POINT IV.

 

TESTIMONY THAT A "TEAM" OF INVESTIGATING POLICE OFFICERS "AGREED" THAT THE DEFENDANT SHOULD BE ARRESTED ON THE CHARGE OF MURDER DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

 

POINT V.

 

THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE PROSECUTOR TO REPEATEDLY USE AND MAKE REFERENCE TO THE PRIOR INCONSISTENT STATEMENTS OF VICTOR JENKINS AND DARRYL SAMUELS.

 

POINT VI.

 

THE TRIAL COURT ERRED IN ADMITTING THE DEFENDANT'S STATEMENTS INTO EVIDENCE.

 

POINT VII.

 

THE 45[-]YEAR BASE CUSTODIAL TERM IMPOSED ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE WAS MANIFESTLY EXCESSIVE.

 

Because we conclude that the trial court committed reversible error when it admitted and relied upon a witness's un-sworn trial testimony as a basis for determining the admissibility of a prior out-of-court inconsistent statement, we reverse.

I.

Late in the evening on November 12, 2005, Quadriyya Eatman operated an automobile in the City of Paterson. Steven Sizer4 and Yvonne Wilson were passengers in the vehicle. Between 2:00 and 3:00 a.m., Eatman drove Steven Sizer to the intersection of 10th Avenue and 26th Street in Paterson. After leaving Steven Sizer at the intersection, Eatman drove to Wilson's house where they sat in the car and talked.

Sometime after 4:00 a.m., Eatman telephoned Steven Sizer. After speaking for a short while, they lost communication. Because Steven Sizer did not answer Eatman's return call, Eatman drove to the location where she had dropped him off.

En route to look for Steven Sizer, Eatman and Wilson received a cell phone call from Jenkins advising that Steven Sizer had been involved in a fight and had been shot. Eatman sent Christopher Sizer a text message relaying that information. Christopher Sizer immediately proceeded to the vicinity of the shooting to find his brother.

As Eatman approached the scene, she observed Steven Sizer lying on the curb. However, she did not see anyone else in the immediate area. On arrival, Christopher Sizer did not initially see his brother; rather, he only saw Jenkins standing nearby. After seeing his brother's body, Christopher Sizer assumed that he was dead. Christopher Sizer then pushed Jenkins up against a fence and demanded to know what had happened. Jenkins said something to Christopher Sizer before freeing himself and leaving the scene.

Patrolman Christopher Palomino of the Paterson Police Department was the first police officer to arrive on the scene. Palomino called an ambulance before checking Steven Sizer for vital signs and finding none. Palomino asked Eatman, Wilson, and Jenkins if they knew what had happened, and they all replied in the negative. However, Eatman told Palomino that when she had dropped Steven Sizer off earlier, a group of black males wearing articles of red clothing were standing near the intersection. Although Jenkins refused to tell Palomino his name, Palomino heard Christopher Sizer call him "Goldie" just before Jenkins fled the scene.

Christopher Sizer told Paterson Police Detective Michael Rodriguez that he had received a cell phone message from Eatman, advising that his brother had been in a fight with gang members, and one of them had shot him. Christopher Sizer also advised the detective that Jenkins told him that his brother had been in a fight with several Blood gang members and one of them had shot him.

II. Pretrial Investigation.

A. Victor Jenkins.

Believing that Jenkins possessed information concerning the homicide, the police sought to locate him. Paterson Police Detective Edward Lugo discovered an outstanding arrest warrant for Jenkins. A couple of hours after the homicide, Rodriguez and Lugo found Jenkins standing on the corner of 10th Avenue and 28th Street. The detectives placed Jenkins under arrest and drove him to the Paterson Police station for questioning.

Initially, Jenkins told the police that he was standing across the street when the shooting occurred, and that he knew the victim as "S God."5 Moments before the shooting, Jenkins saw Steven Sizer in a fight with a black male. As the two fought, a group of the Bloods gang members stood around them. After the fight ended, Jenkins heard a gunshot, and then saw Steven Sizer fall to the ground.

On November 15, 2005, Lugo and Detective Marco Aliano of the Passaic County Prosecutor's Office picked Jenkins up in Jersey City and took him to Newark for a second interview. He provided no more details. At a third interview on November 16, 2005, Jenkins informed Detectives Lugo and Aliano that before the shooting, he observed Steven Sizer on 10th Avenue and that he appeared intoxicated. Jenkins said he also saw two other individuals at the scene of the shooting--co-defendant Isom, who Jenkins referred to by the street name "K.D."; and Darryl Samuels, who Jenkins knew by the name of "Young One." The detectives asked Jenkins to give a written statement, but Jenkins refused.

On November 22, 2005, Aliano and several other police officers picked Jenkins up at his home and transported him to the Paterson Police Department Detective Bureau (PPDDB) for the purpose of re-interviewing him. Jenkins agreed to provide the police with a written statement. Because Jenkins was not a target of the investigation, neither Aliano nor Detective Akram Abdellatif of the Paterson Police Department provided Jenkins with Miranda warnings. The statement began at 10:20 p.m. on November 22, 2005, and ended at 12:18 a.m. on November 23, 2005. Jenkins told the two detectives that at about 5:00 a.m. on November 13, 2005, he saw Steven Sizer putting on his coat after a brief scuffle with someone Jenkins did not recognize.

Jenkins stated that he then called Wilson and told her to call "Krill"6 because Steven Sizer "was out there in a little bit of trouble." Jenkins next looked back at the crowd and saw that

S God had gotten back into the crowd, and this kid was sitting on a black car. The black car was parked right in front of the medical center. The kid came off of the back of the black car and words were exchanged between him and S God. This kid was getting very aggressive. I saw S God grab this kid's hands, the kid snatched away from S God, hit S God twice in the face, and he pulled out the gun. He yelled green light twice. The second time he yelled "Green light," a shot was fired. Then the whole crowd scattered. The shooter jumped into the black car, the same black car he was sitting on. He rides off towards 28th Street and 10th Ave, made a U-Turn, and came back up. . . . I seen the car coming back up, they stopped, to view the body. They didn't get out of the car.

 

While Jenkins was uncertain what the phrase "green light" meant because he was not a member of the Bloods street gang, he believed it meant asking permission to do something. He recalled seeing Isom, whom he had known for about ten years, at the scene. He knew that Isom was a Bloods gang member, but he did not know what rank he held in the gang. Although Jenkins told the detectives that he had never seen the person who shot Steven Sizer before, he believes he could identify the individual if he saw him again.

During the interview, Jenkins was shown a photo array of six photographs of black males by Detective Jamie Navarro and was asked whether he recognized anyone in the array. Jenkins identified the person in photograph number four as someone who resembled the shooter. On doing so, although Jenkins refused to sign the photograph, he did date it and placed his first initial on the back thereof. Because the detectives were concerned that Jenkins might recant his statement sometime in the future, they recorded a readback of the statement to Jenkins in which he agreed that the statement was voluntarily given without threats, fears or promises.

B. Darryl Samuels.

On November 16, 2005, at about 7:30 p.m., Lugo, Rodriquez and Abdellatif went to Samuels' technical training school in Wayne to question him. The school is operated by the Passaic County Probation Department, and Samuels attended the school as part of his probation for a prior drug conviction. After the detectives spoke to Samuels, he accompanied them back to the PPDDB for questioning. Present in the interview room were Detectives Abdellatif, Rodriguez, and Aliano, as well as defendant. As with Jenkins, the detectives did not give Samuels his Miranda warnings. Initially, Samuels was hesitant to talk to the detectives. After Samuels initially denied being at the scene of the shooting, the detectives showed him a surveillance videotape image of him taken from a nearby store. Upon viewing the videotape, Samuels admitted being one of the men depicted in the video. After that, "he blurted out" that defendant had shot Steven Sizer.

At 3:05 a.m., the detectives took a written statement from Samuels. After advising the police that he was not under the influence of drugs or alcohol, Samuels stated that he had known defendant for three or four years. Samuels told the detectives that since August 2005, he was a member of the Bloods street gang. According to Samuels, defendant was a "foot soldier" in the gang.

Samuels explained what happened on November 13, 2005,

At around 4:30 a.m., Goldie [Jenkins] called my cell phone and told me S God [Steven Sizer] is getting into it with some Bloods. I came outside and seen S God standing on the corner. I asked him if he was alright, and then he said he was alright. I went outside the [c]hicken store to get my cigarettes, and when I was walking out of the chicken store, towards the group, I heard S God and J.J. arguing, and then I heard J.J. saying, "G.P.,[7] green light[.]" I know that K.D. gave him the green light. After J.J. got the green light from K.D., J.J. shot S God. I seen S God fall onto the ground.

 

Samuels told the detectives that "green light" meant asking permission to do something from a higher-ranking gang member, and because Isom was a lieutenant in the Bloods, defendant needed permission from Isom to shoot Steven Sizer. Following completion of his statement, Samuels initialed each page and signed it. Like with Jenkins, the detectives recorded the readback of the statement because they feared Samuels might later recant it.

C. Defendant's Confession.

On November 28, 2005, Detectives Aliano and Lugo arrested defendant outside his uncle's apartment building and drove defendant to the PPDDB. Defendant's mother and uncle followed. Upon arrival, Aliano advised defendant of his Miranda rights. Defendant acknowledged his rights and waived them.

The detectives interviewed defendant for approximately three hours. At first he denied shooting Steven Sizer. After the police told defendant that they believed he was lying and that other individuals had identified him as the shooter, defendant began to cry and confessed to shooting Steven Sizer. Although he did not know the victim's name, he identified a picture of Steven Sizer as the person he shot.

Beginning at 12:44 a.m., Aliano took a video-recorded written confession from defendant. In the statement defendant said that he had been advised of his Miranda rights, understood them, and chose to waive them. He also said that he was not under the influence of any medications, drugs or alcohol.

According to defendant, he had been a member of the Bloods street gang for the past six months. When Aliano asked defendant about the shooting, defendant said that it occurred around 4:00 a.m. Defendant stated that he "came on 10th Ave to meet a female, I saw friends down the street, I went into the [c]hicken [s]tore on 10th Ave, I got a cigarette inside the chicken store, when I walked out the chicken store, I was bumped by, I don't know his name, a guy, we had a fight." Defendant said that co-defendant Briggs took a gun from his own jacket and "called for a green light," which meant that he "called for the go ahead to shoot [Steven Sizer]." But instead of pulling the trigger, Briggs handed the gun to defendant.

Defendant said he took the gun, and Steven Sizer came toward him in an aggressive manner. According to defendant, Steven Sizer was about five feet away from him when defendant pulled the trigger and shot him in the chest. After Steven Sizer fell to the ground, defendant dropped the gun, got into a car, and went home. During his confession, defendant demonstrated to the police how he shot Steven Sizer. The statement ended at 2:18 a.m. Aliano read the statement to defendant; defendant made some corrections; initialed each page; and signed the last.

III. Trial Proceedings.

A. Motion to Suppress Defendant's Confession.

On the first day of trial, the court conducted an evidentiary hearing on defendant's motion to suppress the statement he had given to the police following his arrest. The only witness who testified at the hearing was Aliano. The detective testified that after he and several other detectives had arrested defendant, they drove him to the PPDDB for questioning. Aliano advised defendant of his Miranda rights; defendant acknowledged his rights and waived them, executing the appropriate Miranda waiver form at 9:43 p.m. Also present during the interrogation were Detective Abdellatif and a police sergeant.

Aliano testified that defendant was not under the influence of alcohol or drugs and did not appear to be physically distressed. He stated that after defendant initially denied being involved in the shooting, he informed defendant that the police had statements from other individuals who identified him as the one who shot Steven Sizer. Aliano denied threatening defendant during the interrogation.

However, Aliano testified that he did tell defendant that "this was the time for him to tell the truth and to let everybody know why he did what he did." He also told defendant that the incident was something that was not going to go away, but if he cooperated with the police and told the truth, the police would let everyone know of his cooperation. Lastly, Aliano informed defendant that he was aware it was not defendant's "idea to pull the trigger[;] it was somebody else's." Defendant then confessed to the shooting, after which the detectives videotaped a readback of his statement. Following a review of the videotape, the trial court denied defendant's motion to suppress, determining that defendant's confession was admissible.

B. The Gross Hearing.

Immediately following the Miranda hearing, because the prosecutor had previously informed the trial court and defense counsel that he anticipated that Jenkins and Samuels would recant their pretrial statements, the court conducted a Gross hearing to determine the reliability of their statements. Again, the only witness who testified during the hearing was Aliano. Aliano testified to the substance of each of the two witnesses' pretrial statements, discussed, supra. According to Aliano, Jenkins and Samuels were not intoxicated, and neither appeared under the influence of drugs. Aliano denied that he or any other police officer ever threatened, coerced, or otherwise improperly induced the witnesses to provide their statements. After Aliano testified to each witness's statement, the court viewed the video recorded readbacks of the two statements and determined that each statement was reliable and voluntarily given. Accordingly, the court ruled that the State could use the statements for substantive purposes if the witnesses were to recant their pretrial statements during the trial.

C. Trial Testimony.

At trial, the State called Jenkins and Samuels to testify. Prior to questioning by the prosecutor, Jenkins was requested to take an oath or affirm to tell the truth pursuant to N.J.R.E. 603. Jenkins refused. Although the court attempted to persuade Jenkins to take the oath, he never did. Nevertheless, the court instructed Jenkins that he had to answer counsels' questions despite his refusal to be sworn or to affirm.

During direct examination, Jenkins said that his pretrial statements to the police were lies. Jenkins said he was high on "PCP"8 every time he talked to the police, and that they had harassed him for hours before he gave his written statement and the video-recorded readback of that statement. The prosecutor questioned Jenkins concerning his written pretrial statement by rephrasing each question and answer in the written statement in the form of a question and asking Jenkins whether he recalled being asked that particular question and giving that particular answer. Jenkins either stated that he did not remember being asked those particular questions or giving those particular answers, or that the answers given were lies. Indeed, Jenkins denied knowing anything about the shooting, stating he only heard that Steven Sizer had been shot and killed.

Later during the trial, based on the Gross hearing ruling, the trial court determined that Jenkins' pretrial written statement was admissible as a prior inconsistent statement. The court permitted Aliano to read Jenkins' written statement into evidence. Over objection, the court also permitted the State to play the videotape readback of Jenkins' statement to the jury.

Although Samuels did not take the witness oath, the record indicates that he did affirm to tell the truth. Samuels denied seeing Steven Sizer involved in an altercation on the morning of the murder or seeing defendant shoot Steven Sizer. Samuels testified that he regularly used PCP and ecstasy, and was "high" inside the chicken store when the incident occurred. Samuels stated that after he heard gunshots, he waited inside the store for about ten to fifteen minutes before walking outside. Upon exiting the store, he saw Steven Sizer lying dead in the street and called the police. He denied seeing anyone in the area. Samuels testified that he remembered talking to the police about the shooting, but did not remember the questions that were posed to him or his answers. As with Jenkins, the prosecutor asked Samuels whether he remembered the questions contained in his written statement and the answers he had given to the police at the time of questioning. Samuels not only answered in the negative, but he also stated he was high on drugs at the time he was questioned, and denied signing the statement. However, he did admit to initialing each page of the statement. Samuels also stated that defendant's photograph was not the photograph he had selected during questioning as resembling the person who shot Steven Sizer.

On cross-examination Samuels testified that the police used excessive force against him during his interrogation. He testified he told the police that he did not know anything about the shooting, and they "started beating me up." He said the police told him what to say by telling him that the Bloods were on the street during the shooting and that defendant was involved.

As with Jenkins, the court ruled that Samuels' written statement was admissible as a prior inconsistent statement. Aliano read the contents of Samuels' statement into the record. The State also played the videotape readback of Samuels' statement to the jury.

Defendant testified on his own behalf as follows. He said that on November 12, 2005, at about 9:00 p.m., he met a girl on 10th Avenue and 24th Street in Paterson. He and the girl stood on the street and talked until about 11:30 p.m., when she left and went into a nearby building. Defendant then called a friend, Bryan Jones, for a ride home. Jones told defendant that he would be there in a little while, so defendant walked down to the fried chicken store for cigarettes.

After defendant bought the cigarettes, he took a couple of steps toward 26th Street and in so doing, he "got bumped from behind" by a man who cursed at him. Although defendant admitted being involved in an altercation with the individual who bumped into him, he denied shooting him or even possessing a weapon. He stated that after he knocked the individual to the ground, Jones grabbed defendant and walked him away from the scene, eventually driving him home. Jones also testified and corroborated defendant's version of the events.

During the trial, Detective Aliano read the contents of defendant's written statement to the jury. Over objection, the court also permitted the State to play the videotape readback of defendant's statement to the jury. It is against this factual background that we consider defendant's arguments.

IV.

Defendant argues that the trial court erroneously allowed Jenkins to be questioned by the prosecutor and to give unsworn testimony to the jury. Defendant contends the same as to Samuels' testimony. Defendant further argues that the court compounded the error by permitting the State to introduce Jenkins' and Samuels' pretrial statements as substantive evidence of his guilt. In furtherance of that argument, defendant contends the trial court erred in determining that Jenkins' and Samuels' pretrial statements were reliable.

The State counters that although Jenkins refused to take an oath to tell the truth, he stated that his in-court answers to counsels' questions were truthful. The State contends that N.J.R.E. 603 does not contain any specific language of a witness's oath and that Jenkins' statement that he was telling the truth in court sufficiently qualified him to testify, asserting that between the time when he had given his out-of-court statement to the police and his in-court testimony, Jenkins had been obviously intimidated by someone. We agree with defendant's arguments concerning Jenkins' in-court testimony and the admission of his out-of-court statement only.

Hearsay is defined as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Such statements are not admissible at a trial except as provided by the Rules of Evidence or by other law. N.J.R.E. 802. Like most rules, there are exceptions. One exception concerns prior statements of witnesses who testify at a trial. N.J.R.E. 803. Under that rule, "[t]he following statements are not excluded by the hearsay rule:

(a) PRIOR STATEMENTS OF WITNESSES. A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement:

 

(1) is inconsistent with the witness' testimony at the trial or hearing and is offered in compliance with Rule 613 [on prior statements of witnesses]. However, when the statement is offered by the party calling the witness, it is admissible only if, in addition to the foregoing requirements, it (A) is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability or (B) was given under oath subject to the penalty of perjury at a trial or other judicial, quasi-judicial, legislative, administrative or grand jury proceeding, or in a deposition.

[N.J.R.E. 803(a)(1).]

Concerning a witness testifying at a trial, the Rules of Evidence also require that "[b]efore testifying a witness shall be required to take an oath or make an affirmation or declaration to tell the truth under the penalty provided by law. No witness may be barred from testifying because of religious belief or lack of such belief." N.J.R.E. 603.

Jenkins refused to take the witness oath, affirm to the truth, or make a declaration to tell the truth. Nevertheless, believing that the refusal was a "trick" Jenkins had learned while in jail and determining that to allow the trick to preclude admission of otherwise relevant evidence would undermine the criminal justice system, the court required Jenkins to answer counsels' questions. Although we understand the trial court's frustration with Jenkins' refusal to take the oath or to affirm, we conclude that the court erred when it required him to testify. See N.J.R.E. 603; State v. Caraballo, 330 N.J. Super. 545, 555 (App. Div. 2000) (declining to view the "oath or affirmation [as required in N.J.R.E. 603] as an empty gesture" and holding that if the witness "refuses to either take an oath or make an affirmation, he [or she] should not be allowed to testify"); see also State v. Byrd, 198 N.J. 319, 353 (2009) (providing that "failure to place [witness] under oath, alone, was reason enough to disregard his testimony," and noting that although a trial court's concern about a witness's refusal to testify may be valid, such concerns do not justify departing from the Rules of Evidence).

Defendant argues next that the court erred in finding Jenkins' and Samuels' out-of-court statements reliable for the purpose of admission pursuant to N.J.R.E. 803(a)(1). Defendant contends that as to Jenkins, the record does not support the trial court's finding because: 1) Jenkins initially denied possessing information concerning the murder; 2) the police questioned Jenkins over a period of several days; and 3) Jenkins was on parole when the police questioned him. Concerning Samuels' out-of-court statement, defendant argues that the police never advised Samuels that his cooperation was voluntary, and the court failed to consider that the police had picked Samuels up from school and questioned him at the PPDDB until 4:30 in the morning. We are not persuaded by these arguments.

Prior to admitting an out-of-court statement into evidence as a prior inconsistent statement, the court must find that the statement was made under circumstances establishing its reliability. Gross, supra, 121 N.J. at 9-10. In making such determination, courts should consider:

(1) the declarant's connection to and interest in the matter reported in the out-of-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion or the summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement, and (15) the presence or absence of corroborating evidence.

 

[Id. at 10 (quoting State v. Gross, 216 N.J. Super. 98, 109-10 (App. Div. 1987)).]

 

The party offering the statement has the burden of proving the reliability of the prior statement by a "fair preponderance of the evidence." Id. at 15-16. Because the declarant of the out-of-court statement will be subject to cross-examination at trial, the circumstances establishing reliability need not be as persuasive as those required when the declarant is not a witness at trial. Id. at 12.

An appellate court's scope of review of a trial court's factual determination is limited. State v. Robinson, 200 N.J. 1, 15 (2009). Our function is to determine whether the findings of the trial court "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.

Here, the only witness who testified at the Gross hearing was Aliano. After reviewing the videotape recordings of the readbacks of the two statements, the court determined that Aliano's testimony was credible and the statements reliable. The court found that the questions propounded to Jenkins were open-ended, Jenkins initialed the top and bottom of each page of his statement, and the demeanor in the video recording of the readback evidenced that Jenkins' statement was reliable. Although the court recognized that Jenkins had refused to sign the statement, the court concluded that his initialing each page was the equivalent. Concerning Samuels' statement, the court found that the video recording of the readback portrayed "someone who was acknowledging that these were his answers, [and] no force was being used."

Defendant's argument that Jenkins initially denied possessing information concerning the murder and was on parole at the time he was questioned by the police lacks merit. Aliano never threatened Jenkins to give his statement, and the fact that the police questioned Jenkins on several days is not suggestive that the interrogation was coercive. State v. Timmendequas, 161 N.J. 515, 617 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001) (finding nothing coercive about police's questioning the defendant over a three-day period where the questioning was not continuous and defendant was permitted to take breaks and go home).

We also reject defendant's arguments concerning the court's determination that Samuels' statement was reliable. The fact that the police questioned Samuels for several hours until early morning does not render the interrogation coercive, ibid, and although the police did not tell Samuels that his cooperation was voluntary, Aliano testified that Samuels was free to leave at any time, was not handcuffed, and no one forced him to stay or threatened him. Thus, no facts were produced at the Gross hearing to suggest that either statement had been coerced. Accordingly, we conclude that the trial court correctly determined that Jenkins' and Samuels' out-of-court statements were reliable for the purpose of admission in evidence pursuant to N.J.R.E. 803(a)(1).

With that said, we now turn to defendant's argument that the trial court erred in permitting the State to introduce Jenkins' pretrial statement as substantive evidence of defendant's guilt. Although Jenkins' statement was properly characterized as inconsistent when compared to the statements he made at trial after feigning any recollection of the facts contained in his pretrial statement, Caraballo, supra, 330 N.J. Super. at 556, the court erred in allowing the State to introduce the out-of-court statement because Jenkins had "refused to take an oath or make an affirmation. To that extent, his assertions from the witness stand cannot fairly be characterized as 'testimony' under N.J.R.E. 803(a)(1)." Ibid. Because of the highly prejudicial nature of the aforestated two errors, we reverse and remand for a new trial. However, for the sake of completeness concerning defendant's arguments, we also address defendant's challenge to Samuels' in-court testimony and the admission of his out-of-court statement.

We disagree as to defendant's arguments attacking Samuels' trial testimony and the admission of his out-of-court statement. Although Samuels refused to be sworn, the record clearly indicates that he affirmed before giving his testimony. N.J.R.E. 603. The court determined that Samuels' pretrial statement to the police was reliable, and his in-court testimony was inconsistent with the prior statement. Accordingly, Samuels' in-court testimony and the admission of his prior inconsistent statement as substantive evidence was not error.

V.

Defendant argues next that the court erred in finding he waived his Miranda rights before giving police his out-of-court statement. Defendant contends that he did not knowingly and voluntarily waive his Miranda rights because his will had been overcome by Aliano. Defendant asserts that Aliano coerced him by telling him that: 1) Aliano wanted to hear defendant's side of the story; 2) defendant would be helping himself by telling the truth; 3) Aliano would tell others if defendant cooperated with the police; and 4) Aliano knew that someone else had told defendant to shoot Steven Sizer. Defendant argues that these acts constituted an improper attempt by Aliano to bond with him. We disagree.

As previously stated, an appellate court's scope of review of a trial court's factual determination is limited. Robinson, supra, 200 N.J. at 15. On reviewing a motion to suppress evidence, we "'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162.

Nevertheless, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then the appellate court should review 'the record as if it were deciding the matter at inception and make its own findings and conclusions.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting Johnson, supra, 42 N.J. at 162). "[A] reviewing court owes no deference to the trial court in deciding matters of law. When a question of law is at stake, the appellate court must apply the law as it understands it." Id. at 337 (internal citations omitted).

The Fifth Amendment to the United States Constitution and this State's common law afford defendants the right against self-incrimination. State v. Nyhammer, 197 N.J. 383, 399, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009); State v. Hartley, 103 N.J. 252, 260, 284-87 (1986). The right is now codified in our Rules of Evidence. N.J.S.A. 2A:84A-19; N.J.R.E. 503.

The Fifth Amendment privilege may be waived provided the waiver is made knowingly, voluntarily and intelligently. Miranda, supra, 384 U.S. 444, 86 S. Ct. 1612, 16 L. Ed. 2d at 707; Nyhammer, supra, 197 N.J. at 400-01; State v. Cook, 179 N.J. 533, 549 (2004). If a suspect waives his right to remain silent after the police properly advised him of his Miranda warnings, the police are free to interrogate the suspect. State v. Adams, 127 N.J. 438, 447-48 (1992). On a motion to suppress, "[t]he State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." State v. Knight, 183 N.J. 449, 462 (2005).

As in Knight, "[t]he key question here is whether defendant's waiver of the privilege and resulting statements were made voluntarily, as due process requires." Ibid. Relinquishment of a defendant's right to remain silent is voluntary when it is found to have been "the product of a free and deliberate choice rather than intimidation, coercion, or deception." Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410, 421 (1986). Although psychological coercion can lead to an involuntary confession, Cook, supra, 179 N.J. at 562, the "use of psychologically oriented interrogation techniques is not inherently coercive." Id. at 562-63. Nonetheless, "[c]onfessions are not voluntary if derived from very substantial psychological pressures that overbear the suspect's will." Id. at 563 (internal quotation omitted).

Determining whether a suspect's will has been overborne is fact sensitive. State v. Miller, 76 N.J. 392, 402 (1978). In considering the issue, the court must consider the total circumstances surrounding the interrogation. Ibid. In so doing,

[a] court must look at . . . both the characteristics of the defendant and the nature of the interrogation. Relevant factors to be considered include the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved.

 

[Knight, supra, 183 N.J. at 462-63 (quoting State v. Galloway, 133 N.J. 631, 654 (1993)).]

 

Here, the only witness who testified at the evidentiary hearing was Aliano. After listening to Aliano's testimony and viewing the videotape of defendant's recorded confession, the court determined that defendant's confession was voluntarily

and knowingly given. In so ruling, the court stated:

I'm satisfied that there's no issue here as to the question of the defendant's constitutional rights being violated by . . . police obtaining the statements from him . . . .

 

Based on what's been presented [to the court] there's [really no] issue raised at all of any kind that would suggest there's some question about the voluntariness and the knowingness of . . . giving the statement. The defendant was advised of his rights very scrupulously. He acknowledged the rights, He . . . initialed and signed the Miranda form confirming those thing[s].

 

. . . No reason has been presented to suggest any issue as to whether or not those facts are not credible, and so I accept as a fact that for the purposes of . . . this ruling all the testimony that was given by the only witness presented, being the State's witness, with regard to this issue.

 

We have considered defendant's arguments in light of the suppression motion record and applicable law. We conclude that defendant's confession was not coerced. There is no dispute that Aliano read defendant his Miranda rights, and defendant acknowledged his rights and waived them. There was no evidence produced at the hearing that defendant's will had been overcome by Aliano's statements, or that Aliano or any other police officer had threatened defendant or his family.

VI.

The balance of defendant's arguments in Points I, IV, and V lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The argument in Point VII has been rendered moot by our prior determinations.

Reversed.

1 The indictment also charged co-defendants Dontrell Briggs, a/k/a Buster, or Bus; and Dyrick Isom, a/k/a K.D., or G.P. The trial court severed defendant's trial from that of the co-defendants.

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

3 State v. Gross, 121 N.J. 1 (1990).

4 Because Steven Sizer and his brother Christopher have identical surnames, for the purpose of this opinion we shall refer to Steven Sizer as either "Steven Sizer" or "the victim" and to Christopher Sizer as "Christopher Sizer."

5 "S God" was Steven Sizer's nickname.

6 We assume Jenkins was referring to Christopher Sizer as "Krill."

7 G.P. is an alternative street name used by co-defendant Isom.

8 "PCP is a synthetic drug sold as tablets, capsules, or white or colored powder." PCP/Phencyclidine, National Institute on Drug Abuse, http://www.nida.nih.gov/DrugPages/PCP.html (last visited May 12, 2011). It "is a 'dissociative' drug, distorting perception of sight and sound and producing feelings of detachment. Users can experience several unpleasant psychological effects, with symptoms mimicking schizophrenia (delusions, hallucinations, disordered thinking, [and] extreme anxiety)." Ibid.