STATE OF NEW JERSEY v. ORETTE BUTTERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4424-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ORETTE BUTTERS, a/k/a GARY BRERR,

ROETTE BUTTERS, NASIR AKBAR and

OMAR BUTLER,

Defendant-Appellant.

__________________________________

May 24, 2012

Submitted March 14, 2012 - Decided

Before Judges Axelrad, Sapp-Peterson and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-10-0704.

Joseph E. Krakora, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the briefs).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent(James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was convicted after a jury trial of second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2), and sentenced to an extended term, N.J.S.A. 2C:43-6f, of ten years, with five years of parole ineligibility. Defendant argues on appeal the court erred in denying his motion to suppress a statement he made to police, and the State abused its discretion in seeking a mandatory extended term. We affirm.

I.

The sole witness at the July 2010 Miranda1 hearing was Somerset County Narcotics Task Force Investigator Christopher Gelardi. Gelardi testified that defendant, his girlfriend Shannon Hicks, and Hicks's brother Joseph Schmidt were all arrested on September 22, 2009 after police executed a search warrant of Hicks's Somerville home. Police seized numerous vials of crack cocaine, marijuana and other items. Gelardi questioned defendant in the rear of the home, separate from the other arrestees, after orally providing Miranda warnings, and obtaining defendant's waiver of his right to remain silent. Initially, defendant denied any knowledge of the presence of drugs in the home. He then admitted that he used drugs. When pressed, he further admitted that he sometimes distributed drugs at parties and would occasionally "hook a couple people up."

Defendant and the other arrestees were transported to the Somerset County Prosecutor's office, where they were held in separate rooms. Gelardi asked defendant if he were willing to give another statement on tape, but defendant refused, so Gelardi left defendant alone in the room.

Thereafter, defendant called Gelardi over and asked him who was going to be charged. Gelardi explained that all three were likely to be, but the decision was not his to make. Defendant then stated he wanted to accept responsibility for the drugs. Gelardi explained:

A . . . And he said, well, what if I give a statement? I said, if you want to give a statement that's up to you, but before you said you didn't want to go on tape. Do you want to go on tape or do you not want to go on tape? It is up to you. He said, yeah, I want to go on tape and I want to take possession for what was found.

Gelardi denied making any promises in return for defendant's statement.

Q Okay. Did you tell him that by doing that, did you say anything to him about how that might effect the charges if he went on tape?

A I explained to him that we don't decide what the charges are. The assistant prosecutor decides what the charges are. That it's still possible that everybody might get charged or the prosecutor might say that only he gets charged. We don't make any of that decisions [sic] and just because he gives a statement or says that everything is mine doesn't mean that everybody else is just going to go home. That is not up to us.

In his taped statement, defendant confirmed that Gelardi made no promises or threats to him. Gelardi stated, "I just want to be clear that nobody's made . . . any promises to you or threats or anything like that to give a statement[.] [Y]ou decided[,] again, to provide a statement after you initially said no[.] [Y]ou changed your mind and came to me[.]" Defendant agreed.

Defendant's taped statement was consistent with his statement at the house: he possessed, used, and sometimes distributed crack cocaine. He maintained the seized drugs were mainly for his personal use, notwithstanding that they were packaged in multiple vials, a digital scale was present, and there was no crack pipe in the house. He explained he used the scale to confirm his own purchases, and he smoked crack in soda cans. Defendant asserted that although Hicks was a drug-user, and he shared drugs with her, he tried to keep the drugs away from her as much as possible.

On cross-examination, Gelardi stated that he recognized defendant appeared concerned about his girlfriend, but he rejected the suggestion that he exploited that concern to pressure him to give a statement. He also testified that it was unlikely, but possible, that defendant could hear Hicks as she refused to give a statement in the room across from his. The State introduced into evidence a video recording of defendant's statement, but the record before us includes only a transcript.

In argument before the trial court, defense counsel conceded that defendant was free of physical compulsion and was thinking clearly when he made his statement. There also was no question that Miranda warnings were delivered again before the taped statement, and defendant waived his right to remain silent in writing. However, counsel argued defendant's statement was not voluntary because he was coerced to incriminate himself to shield Hicks from prosecution.

Judge John H. Pursel rejected defendant's argument, and found, under the totality of circumstances, that defendant's statement was voluntarily given. He found that Gelardi told defendant that everybody probably was going to be charged, but it was the assistant prosecutor's decision. The court also found no coercion, or implicit promise by Gelardi that Hicks would be released if defendant incriminated himself. The court rejected the suggestion that Gelardi coerced defendant by holding out "the bait of releasing Miss Hicks upon confession."

My function is to determine if under all the circumstances the statements given by the defendant were given voluntarily without coercion and knowingly. It is clear to this Court particularly because when he gave the taped statement the recitation of the initial conversation was almost repeated verbatim by Mr. Gelardi or Mr. Butters. So it adds some credibility to the investigator's statement. So I find the statements were freely given and respectfully deny the defense motion to suppress those statements. They may be used by the prosecution as they wish in the trial of this matter.

At trial in August 2010, Gelardi and other law enforcement officers testified about the execution of the search warrant, the seizure of the drugs and other items in Hicks's home, and the taking of defendant's statements. An expert testified that the quantities of drugs in the home were possessed for distribution and not personal use. The defense elicited on cross-examination that all the controlled purchases of drugs preceding the execution of the search warrant involved Hicks, and not defendant. But, the State elicited testimony that defendant was nonetheless observed engaging in drug-related transactions.

Hicks testified as the sole defense witness. She testified that she had pled guilty to second-degree possession with intent to distribute arising out of her arrest on September 22, 2009 and received a five-year special probationary sentence through Drug Court. She asserted the drugs belonged to her, she sold them, and although she and defendant used drugs together, he was uninvolved in sales. She testified that when she was in custody, she refused to give a statement and then, while the doors to her room and defendant's room were open, she asked him to take responsibility for the drugs.

The jury found defendant guilty of second-degree possession with intent to distribute. Judge Pursel also found defendant guilty of related disorderly persons offenses.

Before sentencing, the State filed a motion for an extended term sentence pursuant to N.J.S.A. 2C:43-6f. The State included a certified record of defendant's March 5, 1996 Virginia sentence to ten years, suspended, for possession of cocaine with intent to distribute. The State recommended a sentence of fifteen years, with seven-and-one-half years of parole ineligibility. Defendant did not oppose the motion for an extended term.

At sentencing, defense counsel asked the court to impose a sentence of ten years, with forty months of parole ineligibility, the minimum allowable sentence within the extended term range for a second-degree crime. See N.J.S.A. 2C:44-6f (requiring a minimum term of one third to one half of the sentence imposed, or three years, whichever is greater). In his sentencing decision, Judge Pursel noted defendant's prior conviction from Virginia, as well as convictions in 1997 in New Jersey for multiple counts of burglary and receiving stolen property, for which defendant was sentenced to three years of probation, conditioned on 364 days of incarceration. The court imposed a sentence of ten years, with five years of parole ineligibility.

Defendant raises the following points on appeal:

POINTI

THE MOTION TO SUPPRESS DEFENDANT'S STATEMENT WAS ERRONEOUSLY DENIED.

POINTII

THE STATE'S APPLICATION FOR IMPOSITION OF AN EXTENDED TERM OF IMPRISONMENT AND THE LENGTH OF THE MANDATORY MINIMUM SENTENCE WERE ABUSES OF DISCRETION BY THE TRIAL JUDGE.

II.

A.

We must determine whether there was sufficient credible evidence to support the trial judge's decision, based on the totality of the circumstances, to admit defendant's self-incriminating statements. State v. Knight, 183 N.J. 449, 468 (2005); State v. Johnson, 116 N.J. 99, 102 (1989); State v.Elkwisni, 384 N.J. Super. 351, 366 (App. Div. 2006), aff'd on othergrounds, 190 N.J. 169 (2007). Our cases "mandate an appellate review of police-obtained confessions that is 'searching and critical.'" State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (quoting State v. Pickles, 46 N.J. 542, 577 (1966)), certif. denied, 178 N.J. 35 (2003). In conducting that review, we defer to the trial judge's credibility determinations, and do not reweigh the evidence. Statev. Locurto, 157 N.J. 463, 472 (1999).

The State was required to prove beyond a reasonable doubt that defendant made his statement voluntarily. State v.Galloway, 133 N.J. 631, 654 (1993). Our Court has set forth the relevant factors:

A court must look at the totality of the circumstances, including 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.

[Ibid.]

Coercion can be psychological, as opposed to physical, but "use of psychologically-oriented technique during questioning is not inherently coercive." Ibid. The court must decide if the confession "results from a change of mind rather than from an overbearing of the suspect's will." Id. at 655.

Defendant argues that his statement was not voluntary because he was motivated by his desire to shield his girlfriend from prosecution, and the police implicitly promised to release his girlfriend if he took responsibility for the drugs.2 We disagree.

First, we defer to Judge Pursel's finding, based on his credibility determination, that Gelardi did not promise explicitly or implicitly favorable treatment of Hicks in return for defendant's statement. To the contrary, Gelardi emphasized that the assistant prosecutor would decide who to charge. Moreover, in his taped statement, defendant confirmed that no promises were made.

Secondly, defendant's alleged motivation to shield his girlfriend did not automatically render his statement involuntary. "The mere fact that promises are made to a defendant does not render the statement involuntary." State v. Roach, 146 N.J. 208, 227 (1996). That principle applies when the police promise favorable treatment of a relative or close friend. "That defendant's statement was given not to shed his inner burden, but rather in an attempt to minimize his exposure and protect his relatives from prosecution does not make it per se involuntary." State v. Boyle, 198 N.J. Super. 64, 72 (App. Div. 1984), superseded by statute onother grounds as recognizedin State v. Malik-Ismail, 292 N.J. Super. 590, 595 (App. Div. 1996). Ultimately, whether the statement is voluntary "depends on the circumstances of a particular case." Roach, supra, 146 N.J. at 227. This is in accord with the majority view of other jurisdictions that whether a promise to release a relative from custody renders a confession involuntary must be assessed based on the totality of circumstances. C. Miller, Voluntariness ofconfession as affected bypolice statements thatsuspect's relatives willbenefit by the confession, 51 A.L.R.4th 495, 2 (2008).

Applying these standards, we find no error in Judge Pursel's determination, based on the totality of circumstances, that defendant's statements were voluntary. As Judge Pursel noted, defendant's taped statement was not inconsistent with the statement he made at the house. There were no signs of physical coercion. Moreover, Judge Pursel had the opportunity to view defendant's demeanor on the video (which is not before us), to determine that his will was not overborne, and that he acted voluntarily.

B.

We reject defendant's argument that we should vacate his sentence and remand for re-sentencing because, he asserts, the State abused its discretion in seeking an extended term under N.J.S.A. 2C:43-6f. Defendant did not oppose the State's motion for an extended term. It is inappropriate for us to consider for the first time on appeal that the State's request for an extended term was unjustified. Robinson, supra, 200 N.J. at 20.

Defendant bore the heavy burden to show, by clear and convincing evidence presented to the trial court, that the State's exercise of discretion was arbitrary and capricious. State v. Kirk, 145 N.J. 159, 169 (1996); State v.Lagares, 127 N.J. 20, 31 (1992). Defendant made no such attempt. Before us, he relies solely on the asserted remoteness of his predicate 1996 conviction. However, that does not suffice. The statute itself does not impose any time limits on prior convictions. See N.J.S.A. 2C:43-6f (referring to convictions at "any time"). Nor did defendant attempt to demonstrate to the trial court how the State's request for extended term sentencing violated applicable guidelines governing the State's exercise of discretion. Cf. State v.Fowlkes, 169 N.J. 387, 388, 394 (2001) (noting that Brimage Guidelines, pursuant to State v.Brimage, 153 N.J. 1 (1998), superseded previous guidelines, including Directive Implementing Guidelines for Determining Whether to Apply for an Extended Term Pursuant to N.J.S.A. 2C:43-6f from Robert J. Del Tufo, Attorney General, to the Director, Division of Criminal Justice and all County Prosecutors (Apr. 20, 1992), which was issued to comply with Lagares, supra, and approved in Kirk, supra).

Affirmed.

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

2 Defendant also refers to Hicks's trial testimony in support of his argument that the judge erred in denying defendant's pre-trial motion. We do not believe it would alter our analysis, but we shall not consider it. While a defendant may be free to renew a motion to suppress in light of new evidence at trial, State v. Mosner, 407 N.J. Super. 40, 60 (App. Div. 2009), defendant did not do so here. Therefore we confine ourselves to the pre-trial hearing record in reviewing the trial court's decision. State v. Robinson, 200 N.J. 1, 19 (2010) ("The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves.").