STATE OF NEW JERSEY v. MICHAEL A. MALTESE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL A. MALTESE,

Defendant-Appellant,

________________________________

November 8, 2013

 

Argued October 17, 2013 Decided

 

Before Judges Fuentes, Simonelli and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 09-02-0184 and 10-01-0097.

 

Natalie J. Kraner, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Robert J. Kipnees, Designated Counsel, Bernard J. Cooney, Designated Counsel, David Moses, Designated Counsel, Richard A. Bodnar, Designated Counsel and Ms. Kraner, of counsel, and on the briefs).

 

Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Schuster, of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for second-degree passion provocation manslaughter (Michael J. Maltese), N.J.S.A. 2C:11-4b(1)-(2); first-degree murder (Kathleen Maltese), N.J.S.A. 2C:11-3a(1-2); two counts of third-degree hindering prosecution, N.J.S.A. 2C:29-3b(1); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3; third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h; fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1); fourth-degree false swearing, N.J.S.A. 2C:28-2a; and two counts of second-degree disturbing human remains, N.J.S.A. 2C:22-1a(1). We affirm.

This case involves the gruesome death of defendant's parents at a residence that they shared with defendant and codefendant Nicole Taylor, defendant's girlfriend.1 In the early morning of October 8, 2008, a fight ensued between defendant, who was nineteen-years-old, and his father over defendant's unemployment and inability to join the Coast Guard. Defendant's father threw something at defendant and yelled, "I wish you were never born, and you mean absolutely nothing to me." Defendant jumped on his father and started squeezing his father's neck. His mother attempted to stop the fight, but Taylor restrained the mother, allowing defendant to continue strangling his father until he lay motionless on the floor. Defendant then strangled his mother to death.

Defendant and Taylor worked together to hide the bodies. They obtained latex gloves from under a kitchen sink and dragged the bodies down a hallway into a bathroom. They removed the clothing from the victims, soaked the bodies with bleach and water in the bathtub, and placed bags over the victims' heads to avoid seeing their faces. They then put the victims' bodies in garbage bags, brought them outside, and placed them in the trunk of defendant's father's vehicle. They drove to a nearby park where they dug a shallow grave and buried the bodies.

The following day, defendant began using a bank card that his mother and sister, Leela Parent, had shared.2 The police investigation revealed that over the course of the next week, defendant and co-defendant used the card to withdraw cash on three separate occasions, to rent a hotel room at the Red Roof Inn, and to make various purchases at Barnes & Noble, Wal-Mart, Chili's, Valero gas station, and Kay Jewelers. The couple also used the card to pay for expenses related to a trip to upstate New York a few days after the killings.

On October 17, 2008, defendant and his sister, Ricki Fodor, went to the police and reported their parents missing. Leela also informed the police that someone used the bank card to withdraw cash from the shared account. The police investigated and uncovered a surveillance tape of defendant using the card. The next day, the police arrived at defendant's residence and defendant consented to a search of his father's vehicle. Detective James Ryan opened the trunk and discovered two shovels and a flashlight. Defendant then agreed to go to headquarters for questioning.

On October 18, 2008, defendant waived his Miranda3 rights and gave a statement to the detective.4 At first, he indicated that he had last seen his parents on October 10, 2008, when he allegedly drove them to Pennsylvania; however, after being confronted with evidence that he had been using the bank card, defendant retracted that statement and asserted that his parents had disappeared. The police arrested defendant and charged him with false swearing and obstruction of justice and then released him.

On October 19, 2008, Leela searched her parents' residence and defendant's van. She discovered bank card receipts in the home and a Kay Jewelers receipt in the van. Leela notified the police about what she had discovered and the police obtained additional videotape evidence of the cash withdrawals.

On October 24, 2008, Frank Maltese, defendant's uncle ("Uncle Frank") brought defendant to the police station where defendant agreed to take a polygraph examination. The events that occurred on this day formed the basis for defendant's motion to suppress. Sergeant Paul Vallas gave defendant his Miranda rights, which defendant voluntarily waived, conducted the polygraph examination, and then stated to defendant:

There's no doubt in my mind that you know exactly where your mother and your father are right now. So what you and I need to do right now is sit down here and get this clarified. It's no longer a question of whether or not you're aware of their disappearance. There's no doubt in my mind that you can take me to where they are.

 

Defendant asked repeatedly to talk to Uncle Frank, an individual defendant considered to be "even better than a freaking attorney," and reiterated that "before anything else happens I want to talk to my uncle." Sergeant Vallas eventually left the room, came back, and assured defendant that he could speak to Uncle Frank without the conversation being recorded.

Detective Ryan approached Uncle Frank and told him that defendant asked to speak to him. Sergeant Vallas then explained to Uncle Frank that although he told defendant that the recording device would be turned off, the conversation with defendant would be recorded. Uncle Frank entered the room and defendant told Uncle Frank where the bodies were and indicated that "only one other" person was involved. Detective Ryan stood outside the room during the conversation between defendant and Uncle Frank, but he was unable to hear what they said. Investigator James Mullin, however, was in a nearby observation room and could see and overhear their conversation. Defendant would not disclose the other person's identity because defendant was not convinced that the recording device was turned off. Acting on defendant's request for a cigarette break, Detective Ryan escorted defendant and Uncle Frank outside of the building where the three of them stood for roughly seven minutes. Defendant and Detective Ryan then returned to the room, where they met Investigator Mullin.

Investigator Mullin introduced himself to defendant and re-administered defendant his Miranda rights. Defendant waived his Miranda rights and confessed that he strangled his parents, brought their bodies to the park, and buried them. He indicated that co-defendant's role was to help him transport and bury the bodies. Defendant accompanied the police to the park and showed them where he buried the bodies. The police excavated the site and discovered the naked bodies, with garbage bags taped over their heads.

Defendant moved to suppress his October 24, 2008 statements to Uncle Frank, as well as the subsequent incriminating statement he made to Investigator Mullin, contending he was coerced into confessing. The judge conducted an evidentiary hearing in which Investigator Mullin and Detective Ryan testified describing the circumstances that led to defendant's confession. The judge issued a comprehensive written decision in which he found this testimony credible. The judge nonetheless suppressed defendant's statement to Uncle Frank, concluding that by recording defendant's conversation with his uncle, despite assurances to the contrary, the police violated his right to remain silent.

The judge denied defendant's request to suppress his later statements to Investigator Mullin, finding that the police scrupulously honored defendant's initial assertion of his right to be silent by affording defendant a break after confessing to Uncle Frank, re-administering new Miranda warnings, and questioning defendant on only subjects he voluntarily agreed to answer.

Defendant testified at trial that his father abused him sexually for years. He claimed he choked his father to death in self-defense, and that Taylor killed his mother. Defendant called Uncle Frank as his witness; he testified that defendant admitted he buried the bodies in the park.

The jury found defendant guilty of these offenses. The judge sentenced defendant to an aggregate term of sixty-four years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the manslaughter and murder convictions.5

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT'S FAILURE TO SUPPRESS DEFENDANT'S OCTOBER 24, 2008 STATEMENTS AND THE EVIDENCE OBTAINED AS A RESULT OF THE STATEMENTS DEPRIVED DEFENDANT OF A FAIR TRIAL.

 

A. THE TRIAL COURT'S FINDINGS REGARDING DEFENDANT'S CONFESSIONS.

 

B. BOTH THE FIRST AND SECOND CONFESSION WERE PROCURED THROUGH ILLEGAL MEANS AND SHOULD HAVE BEEN SUPPRESSED.

 

1. THE FIRST CONFESSION WAS INVOLUNTARY AND ANY EVIDENCE OF THIS CONFESSION IS INADMISSIBLE.

 

2. THE SECOND CONFESSION WAS TAINTED BY THE ILLEGALITY OF THE FIRST INVOLUNTARY

CONFESSION AND SHOULD HAVE BEEN SUPPRESSED.

 

3. THE EVIDENCE OBTAINED AS A RESULT OF DEFENDANT'S CONFESSIONS SHOULD HAVE BEEN SUPPRESSED.

 

POINT II

THE TESTIMONY OF THE STATE'S MEDICAL EXAMINER, DR. FREDERICK DICARLO, WAS ADMITTED IN VIOLATION OF THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

 

POINT III

THE STATE'S USE OF GRAPHIC PHOTOGRAPHS WAS UNDULY PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR TRIAL.

 

POINT IV

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO INTERVIEW JUROR NO. 11.

 

POINT V

THE SENTENCE IMPOSED MUST BE VACATED AS THE TRIAL COURT FAILED TO PROPERLY CONSIDER THE MITIGATING AND AGGRAVATING FACTORS.

 

POINT VI

THE TRIAL COURT FAILED TO PROPERLY CONSIDER THE YARBOUGH FACTORS IN IMPOSING CONSECUTIVE SENTENCES.

I.

We begin by addressing defendant's contention that he was deprived of a fair trial because the judge failed to suppress defendant's October 24, 2008 statement to Investigator Mullin, as well as any evidence that flowed from his statement to Uncle Frank.

At the outset, we conclude that defendant initially invoked his right to be silent by asking to speak to Uncle Frank. The police recorded his conversation with Uncle Frank improperly, and the judge therefore correctly suppressed that statement. Defendant's subsequent confession to Investigator Mullin on October 24, 2008, however, was obtained voluntarily after the police re-administered defendant's Miranda rights. Thus, the judge did not err by denying defendant's motion to suppress defendant's statement to Investigator Mullin.

In general, the Fifth Amendment to the United States Constitution affords all individuals the right against self-incrimination.6 That constitutional right is guaranteed by New Jersey's common law, N.J.S.A. 2A:84A-19, and N.J.R.E. 503. See State v. Nyhammer, 197 N.J. 383, 399 (2009), cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). A person subject to custodial interrogation must first be informed "that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07. It is undisputed that when defendant arrived at headquarters on October 24, 2008, he was in custody and the police advised him of these rights.

The State contends that defendant did not invoke his right to remain silent when he asked to talk to Uncle Frank. Relying on State v. Diaz-Bridges, 208 N.J. 544, 563 (2012), which was decided after the trial court denied defendant's motion to suppress, the State argues the police's conduct here did not violate defendant's constitutional right to remain silent. The State's argument fails to appreciate the factual dissimilarities between Diaz-Bridges and this case. The defendant in Diaz-Bridges repeatedly requested to speak with his mother during his interrogation by police officers, id. at 553-54, but he demonstrated a willingness to continue speaking with the officers and informed them that he simply wanted his mother to hear from him before she heard from the police. Id. at 570. Here, defendant refused to answer any questions by the police until he talked to Uncle Frank. As a result, Diaz-Bridges is factually distinguishable.

A request to terminate questioning must be "diligently honored." State v. Bey, 112 N.J. 123, 142 (1988) (quoting State v. Hartley, 103 N.J. 252, 263 (1986)). The words used by a suspect are to be viewed in "the full context in which they were spoken." State v. Roman, 382 N.J. Super. 44, 64 (App. Div. 2005), certif. dismissed, 189 N.J. 420 (2007). Against this standard, we conclude defendant invoked his right to be silent by insisting that he first be permitted to talk to Uncle Frank. As the State correctly points out, however, the police's transgression proved to be legally inconsequential because "[t]o the extent that the police were wrong in taping their meeting after telling defendant that they would not, the recording [of the conversation with Uncle Frank] was suppressed."

We now turn to defendant's confession to Investigator Mullin. If an accused invokes his right to consult with an attorney or to remain silent "in any manner and at any stage of the process," all questioning must cease, Miranda, supra, 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707, and the right to remain silent must be "'scrupulously honored.'" State v. Johnson, 120 N.J. 263, 282 (1990) (quoting Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S. Ct. 321, 325-26, 46 L. Ed. 2d 313, 320-21 (1975)). Police may resume a custodial interrogation after a suspect invokes the right to remain silent only if they administer a new set of warnings. Ibid.; Hartley, supra, 103 N.J. at 267. (stating the requirement that fresh Miranda warnings are administered is "indispensable to a permissible resumption of custodial interrogation of a previously-warned suspect"). If a police interrogator is unsure whether a defendant is asserting his or her right to silence, the interrogator must either stop the interrogation immediately and completely or "ask only questions narrowly directed to determining whether defendant was willing to continue." Johnson, supra, 120 N.J. at 284.

Using this standard, we conclude that the trial judge did not err by denying defendant's motion to suppress his statement to Investigator Mullin. In his written decision denying the motion to suppress, the judge stated that

[t]he defendant was then brought back into the room alone with Investigator James Mullin and Detective James Ryan, and was reread the Miranda warnings. The defendant signed a Miranda rights card. Then the questions began, "[Y]our mom and dad are deceased, correct?"[] to which the defendant replied "Yes, they are." Detective Ryan then asked "And they're in the park?" and the defendant replied "They are in the woods . . . [o]n that trail, on that hill." Detective Ryan asked whether the[y] were buried, and the defendant confirmed "They're buried." Detective Ryan asked how they died, and the defendant replied "I strangled them," . . . . "[W]hat happened?" To which the defendant replied, "I don't want to talk about that part yet because I haven't told my Uncle Frank . . . It's how I am, I've gotta let him know first."

 

Det[ective] Ryan testified that he took this to mean that the defendant "didn't want to speak about one aspect," but that he would be receptive to speaking about other things. Inv[estigator] Mullin also testified that his impression was that the defendant "asked not to talk about certain parts," but "was responsive to the rest."

 

The officers continued to question the defendant and he answered the questions. The defendant confessed to strangling his parents, washing their bodies in bleach, and burying them in [the] park, and to using their debit card.

 

. . . .

 

Once the defendant has asserted his right to remain silent, the police must "scrupulously honor" his request. This requires the authorities to either stop the interrogation entirely or ask only questions "narrowly restricted to clarifying the meaning of his statements and whether the defendant" is willing to continue.

 

. . . .

 

Here, the police conduct survives Hartley's bright-line rule because the defendant was reread the Miranda warnings. Further, at least two of the Mosely factors were met, as the defendant received fresh Miranda warnings, and was questioned by different officers. Even though the questioning concerned the same crime as the interrogation prior to defendant's assertion and the break in the interrogation only lasted ten minutes, the police here scrupulously honored the defendant's invocation of his right to remain silent because the defendant was given a break to speak to [Uncle Frank] and go outside and smoke a cigarette, then received fresh Miranda warnings, was questioned by different officers, and expressed a willingness to make a statement.

 

. . . .

 

[T]he defendant appeared calm, relaxed, and eager to tell his story. . . . [T]hroughout the entire questioning of the defendant there were no threats, bribes, or other inducement that would coerce defendant to confess or lead the [c]ourt to question the reliability of the defendant's statements. Thus, the defendant gave a full confession after a knowing, and voluntary waiver of his Miranda rights.

 

[(Citations omitted).]

 

As a result, we reject defendant's argument that the denial of his motion to suppress deprived him of a fair trial.

II.

Next, defendant argues for the first time that he was deprived of his Sixth Amendment right to confront the medical examiner during the trial. We apply the plain error standard to this contention because defendant did not object at trial. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). Against this standard, we see no plain error.

Andrew Falzon, M.D., conducted the autopsies and prepared two reports. Dr. Falzon, however, did not testify at trial because he had retired and moved to England. Instead, the State produced Frederick DiCarlo, M.D., the acting medical examiner, as its witness. Defense counsel stated that he did not object to the State producing Dr. DiCarlo as an expert pathologist. Dr. DiCarlo worked with Dr. Falzon for approximately ten years before Dr. Falzon retired.

Dr. DiCarlo made an independent evaluation of the cause of death. Dr. DiCarlo testified, in accordance with N.J.R.E. 703, that he reviewed Dr. Falzon's reports, the autopsy photographs, defendant's October 24, 2008 statement, and the retained biopsy samples and larynx from each body. From looking at the photographs, he determined independently that the bodies had been buried for approximately seventeen days before Dr. Falzon performed the autopsies, and that the cause of death to both victims was manual strangulation.

On cross-examination, defense counsel established that Dr. Falzon performed excellent work and did not find external injuries to the victims. Dr. DiCarlo agreed with Dr. Falzon that there were no obvious external injuries. Dr. Falzon stated in his autopsy reports that there were no obvious hemorrhages seen under the scalps of the victims. Dr. DiCarlo disagreed. Defense counsel was able to impeach the credibility of Dr. DiCarlo by demonstrating that Dr. DiCarlo's independent opinion, that hemorrhages existed, was based on his own review of the photographs, rather than the actual autopsies. As a result, although Dr. Falzon was not available to be cross-examined defense counsel established that Dr. Falzon was an excellent medical examiner and Dr. Falzon found no hemorrhages or obvious external injuries.

Defendant argues that the autopsy reports are considered testimonial under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), because their "primary purpose" is to establish or prove past events relevant to the State's criminal prosecution. See Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006).7 The State contends that autopsy reports are non-testimonial and therefore are not subject to the Confrontation Clause because their "primary purpose" is to provide public records of "regularly conducted activity," rather than for use in a criminal prosecution. We need not, and specifically do not address this argument because, applying the plain error standard, we conclude that defendant's inability to cross-examine Dr. Falzon was not clearly capable of producing an unjust result.8 Even admitting evidence that is unduly prejudicial and not outweighed by any probative value is harmless where there is independent, overwhelming evidence of guilt. State v. Gillispie, 208 N.J. 59, 93 (2011). Here, such evidence exists.

III.

After carefully considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add only the following brief remarks.

After conducting a N.J.R.E. 403 analysis, the judge determined that the photographs were not substantially more prejudicial than probative, and admitted them into evidence. We review evidentiary rulings of the trial court for abuse of discretion. State v. Marrero, 148 N.J. 469, 483-84 (1997). Unless there has been "a clear error of judgment," we will not upset those rulings. State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). We conclude the trial judge properly exercised his discretionary authority and his analysis did not amount to "a clear error of judgment." Ibid.

Nor did the judge abuse his discretion by denying defendant's motion to interview juror number eleven. See R. 1:16-1 (addressing interviewing jurors). In response to an email from this juror to defense counsel, the judge concluded that:

In this case, there is nothing to indicate that there was any outside influence, any outside force, or that this Juror's will was overcome simply for purposes of reaching a verdict.

. . . .

 

There's no allegation that anybody was threatened or that anything went on in that Jury deliberation room other than deliberation.

 

This is not simply, simply put this is not a case where there's any reasonable inference that a Juror's will was overborn. To the contrary Juror number 11 was able to convince the other Jurors to return a manslaughter verdict with reference to the father when apparently there was a significant number of Jurors who wanted to go for murder.

 

We see no reason to disturb this finding.

Regarding the sentence, the judge found that aggravating factors N.J.S.A. 2C:44-1a(1) (2), (3), and (9) substantially outweighed mitigating factor N.J.S.A. 2C:44-1b(7). The judge did not place much weight on mitigating factor number seven because defendant admitted to certain drug-related offenses. There is no reason to second-guess the application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions). By imposing a consecutive prison sentence, the judge followed the guidelines established in 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), superseded in part by statute, N.J.S.A. 2C:44-5.

Affirmed.

1 Taylor pled guilty to two counts of second-degree passion provocation manslaughter, N.J.S.A. 2C:11-4b(2); and third-degree attempted theft, N.J.S.A. 2C:5-1 and 2C:20-3.

2 The bank card could be used as a debit or credit card.

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

4 This statement was not the subject of defendant's motion to suppress.

5 The judge sentenced defendant to ten years in prison, subject to NERA, for defendant's conviction of passion provocation manslaughter of defendant's father; a consecutive forty-year prison term, subject to NERA, with thirty years of parole ineligibility for murdering defendant's mother; concurrent five-year prison terms on the hindering convictions; concurrent four-year terms on the theft and fraudulent use of a credit card convictions, consecutive to the sentence on the murder conviction; and concurrent eighteen months in prison on the tampering and false swearing convictions. The judge also imposed two concurrent ten-year prison terms on defendant's convictions for disturbing human remains, consecutive to the manslaughter and murder convictions.

6 The Fifth Amendment right against self-incrimination ("[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . .") is made applicable to the States through the Due Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 1493-94, 12 L. Ed. 2d 653, 659 (1964), abrogated in part by Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991).

7 The New Jersey Supreme Court has adopted the "primary purpose" test for determining whether evidence is "testimonial." State ex rel. J.A., 195 N.J. 324, 341-51 (2008).

8 We are aware that the Court granted certification in another case addressing whether the testimony of a pathologist who did not perform an autopsy violated the defendant's confrontation rights. See State v. Williams, A-3619-09 (App. Div. Mar. 9, 2012), certif. granted, 212 N.J. 103 (2012).