COURT STATE OF NEW JERSEY v. CHARLES JOSEPH BOSCH, III

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5387-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES JOSEPH BOSCH, III,

Defendant-Appellant.

______________________________

May 3, 2011

Submitted January 26, 2011 - Decided

Before Judges Fuentes, Ashrafi and Nugent.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Indictment No.

08-02-0621.

Edward J. Crisonino, attorney for appellant.

Warren W. Faulk, Camden County Prosecutor,

attorney for respondent (Patrick D. Isbill,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Charles Joseph Bosch pled guilty to one count of second degree burglary, N.J.S.A. 2C:18-2, pursuant to a negotiated plea agreement.1 The court sentenced him to a term of seven years with an eighty-five percent period of parole ineligibility and three years of parole supervision as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and imposed the mandatory fines and penalties. Defendant now appeals from the order of the trial court denying his Miranda2 motion to suppress an incriminating statement he gave while in police custody. We affirm.

As part of the plea hearing conducted by the court, defendant admitted that on August 16, 2007, he, Adam Hawkins, and Joel Otero were in the Township of Pennsauken and entered a residence, without license or permission from the lawful occupants, with the purpose of stealing money from one of the residents. Defendant was armed with a .38 caliber revolver at the time he committed this crime.

For the purposes of this appeal, defendant does not challenge that he, Hawkins, and Otero entered the residence and demanded to know the whereabouts of a young man who allegedly lived at the house. When they were told that the man they were looking for was not present, a struggle ensued between the intruders and two residents of the home. Eddie Espada was one the residents involved in the struggle. As Espada ran out of the house, defendant shot him. The projectile (later determined to be a "target load") grazed Espada.

I

Before pleading guilty, defendant moved before the trial court to suppress a statement he gave while in custody at the Pennsauken Police Station. Pennsauken police Sergeant Michael Basileo and Patrolman William Monroe testified as witnesses for the State at the hearing conducted by the court to consider defendant's motion. Defendant testified for the defense.

According to Basileo, on August 16, 2007, he was off duty at his residence when he was called to assist in the investigation of a home invasion in which "someone [had been] shot." He reported to the Pennsauken Police Station at approximately 1:30 a.m., where defendant and his two cohorts were detained. Sometime thereafter, Basileo walked to the holding cell where defendant was being held and escorted him upstairs to an interview room located in the Detective Division. The interview room is equipped with a video and audio recording device. Consistent with standard operating procedures, Basileo had turned the recording system on before defendant's arrival to ensure that it was working properly.

In response to the prosecutor's questions, Basileo identified two "Miranda Rights Forms" used by the Pennsauken Police Department that contain the standard constitutional language against self-incrimination and regarding the right to counsel, commonly known as "Miranda warnings." The Form identified as "exhibit one" was signed by Patrolman Monroe and indicated that the officer "Mirandized" defendant at 1:00 a.m. on August 16, 2007.

Basileo explained the term "Mirandize" to mean that the officer read the rights contained in the Form to defendant. The record before us includes a copy of exhibit one, which shows not only the five Miranda rights, but also the word "yes" after each one, i.e., "You have the right to remain silent. Do you understand this? Yes." The Form also contains the word "HOWEVER" (capitalized in the document) followed by this statement and question:

You may waive the right to advise [sic] of counsel and your right to remain silent, and you may answer questions or make a statement without consulting a lawyer if you so desire.

Do you understand this?

The word "yes" appears in the space provided immediately after the question. The Form also contains the date and time it was executed and bears the signatures of Patrolman Monroe and defendant.

Despite this evidence indicating that defendant had previously waived his rights under Miranda, Basileo testified that, before asking him any questions concerning the charges, he read to defendant the standard Miranda Form and personally witnessed defendant writing "yes" after each of the questions. This second Miranda Form was identified at the motion hearing as exhibit two. According to Basileo, defendant was alert, responsive, and coherent; he did not see any signs that defendant was intoxicated, tired, or ill. Basileo also testified that he did not coerce defendant in any way, nor promise him anything in return for agreeing to answer his questions.

On cross-examination, Basileo admitted that he never asked defendant the straightforward question: "Knowing your rights, do you want an attorney?" Basileo began his interrogation based on defendant's written acknowledgment that he understood that he had the right to remain silent and the right to consult with an attorney before answering questions, as well as the right to waive those rights. Basileo also testified that when he did ask defendant if he wanted an attorney, defendant answered "yes." He then stopped the interrogation.

Defendant, who was twenty years old at the time of his arrest, testified that before this incident, his understanding of his rights to remain silent and to have an attorney present before answering questions by the police came from watching television. While en route to the police station from the scene of his arrest, defendant testified that he "[s]tarted talking about the situation" with the officer driving the car (presumably Officer Monroe), but the officer told to him "to wait until [he] was read [his] rights and [they] got back to the police station."

Once he arrived at the police station, defendant identified the Miranda Form marked exhibit one as the document the officer read to him. Although the officer, rather than defendant, wrote "yes" after each question, defendant confirmed that he signed the document. Defendant also claimed that he did not read the Form nor did anyone else read it to him before he signed it.

Defendant claimed that, at this point, he told the officer he wanted an attorney. According to defendant, he was then taken to the cell where Basileo found him asleep, approximately one and a half hours later. He was never given the opportunity to call an attorney or anyone else.

Defendant indicated on cross-examination that he left high school after the ninth grade and had been employed as a painter for approximately the last five years. Unlike what defendant claimed occurred with exhibit one, defendant testified that he wrote "yes" after each question on exhibit two, the Miranda Form read to him by Basileo. Defendant also claimed to have been nervous and tired when Basileo took him to the interrogation room.

The State called Officer Monroe to rebut defendant's account of what transpired with respect to the Miranda Form identified as exhibit one. Monroe testified that he witnessed defendant sign the Miranda Form after he had read to him each of the questions on the Form and recorded his answers by writing "yes" on the corresponding line. According to Monroe, defendant did not ask to speak with an attorney or anyone else.

As stated earlier, the interview room where Basileo interrogated defendant was equipped with a video and audio recording device. The recording of defendant's interrogation was thus viewed and heard by the motion judge. Although a copy of the compact disc recording of the interrogation was provided to us as part of the appellate record, we are mindful of the Supreme Court's admonition that the availability of a videotape recording does not extinguish the deference we owe to the trial court's factual findings in a motion to suppress. State v. Elders, 192 N.J. 224, 244-45 (2007).

After reviewing the video and audio recording, the motion judge made the following findings:

I had a chance to observe [defendant] on the tape and read the transcript and I thought his demeanor at the inception of the interview where he says he was asleep and where he describes the words [defense counsel] quoted, that he was - "I'm a little shooken up [sic]; I just woke up."

And right before that, "I'm a little shooken up [sic]; I can't think straight right this second because I just woke up," and I watched that and I noted his demeanor, his slurring of speech, his manner of speaking; his body posture, and I watched the statement and I was satisfied that his demeanor and the way he spoke and his diction did not change substantially.

So I was somewhat concerned about his state of mind at the time, until I saw him testify and I found that his demeanor, verbiage, manner of speaking and appearance and body posture were virtually identical in tone, in diction, in clarity or lack thereof.

Because I saw on the tape and it's clear to me having observed him close that he understood the questions being asked, that he was intelligent and clever in the way he answered them. And I'll go into that in minute.

The man I saw on tape was the same man I saw in testimony here and he was without question understanding of what was going on and in a state of mind evidencing knowingness and voluntariness.

Because in comparing his testimony at the beginning of the statement to the end of the statement and his testimony here in court, I found then to be virtually the same and consistent with, as he said, a man who is pretty shook up, perhaps nervous because he is in a police station for the first time, but not in any way evidencing a man who does not have will, intelligence, coherence, understanding, or is in any way being overborn or manipulated.

The court thus found that the State had satisfied its burden of showing, beyond a reasonable doubt, that defendant made a voluntary, knowing, and intelligent decision to waive his rights under Miranda after being informed of those by the interrogating officer. State v. Yohnnson, 204 N.J. 43, 59 (2010).

Defendant now appeals, raising the following argument:

POINT I

THE STATE FAILED TO PROVE THE DEFENDANT MADE A KNOWING VOLUNTARY WAIVER OF HIS MIRANDA RIGHTS

In reviewing the findings made by a trial court in deciding a motion to suppress, we are bound to uphold those findings that are supported by sufficient credible evidence in the record. State v. Mann, 203 N.J. 328, 336-37 (2010). Here, the record supports the court's findings based on the motion judge's credibility assessment of the three witnesses who testified at the suppression hearing.

Clearly, the better practice would have been for the interrogating officers to ask defendant, forthrightly, whether he wants to waive his right to remain silent and answer questions without first consulting with an attorney. That being said, under the totality of the circumstances, the record here supports the court's finding that defendant's decision to answer questions after being apprised of his rights, is indicative of an implied waiver. There is no evidence that the officers who interacted with defendant coerced, intimated, or otherwise used any tactic that undermined defendant's right to make an informed, intelligent, and voluntary decision to waive his rights under Miranda.

A

1 The State also agreed to dismiss the remaining counts in the indictment that charged defendant with first degree armed robbery, N.J.S.A. 2C:15-1; first degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second degree aggravated assault, N.J.S.A. 2C:12-1b(1); two counts of third degree aggravated assault, N.J.S.A. 2C:12-1b(2) and N.J.S.A. 2C:12-1b(7); three counts of fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4); third degree terroristic threats, N.J.S.A. 2C:12-3a; and third degree possession of alprazolam, a controlled dangerous substance, N.J.S.A. 2C:35-10a(1).

2

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