STATE OF NEW JERSEY v. O.R.Q.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

O.R.Q.,

Defendant-Appellant.

_______________________________________

August 6, 2015

Submitted April 14, 2015 Decided

Before Judges Nugent and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-12-2353.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Christopher Santo D'Esposito, Legal Assistant, on the brief).

PER CURIAM

Defendant, O.R.Q., appeals his conviction for second-degree burglary, third-degree terroristic threats and fourth-degree criminal mischief. We affirm.

On May 5, 2010, during the early hours of the morning, defendant violated a restraining order by going to his former marital home. Defendant kicked in the front door and threatened to kill his wife and himself. Despite his wife's protestations, defendant allegedly sexually assaulted her twice. Eatontown Police Detective Edward Nelson responded to the home on a report of burglary, sexual assault, criminal mischief and a violation of a restraining order. Nelson photographed the residence and brought defendant's wife to Riverview Medical Center to undergo an examination by a Sexual Assault Nurse Examiner. Defendant was arrested at his residence in Asbury Park and transported to Eatontown Police Headquarters.

While at headquarters, defendant was taken to a police interview room. The interview was recorded and preserved on a DVD.1 At the start of the interview, Nelson advised defendant of his Miranda2 rights. After several minutes of colloquy between Nelson and defendant about the reason for his arrest, defendant waived his rights. Nelson responded to defendant's question by advising him that it was based upon a violation of the restraining order. Thereafter, defendant acknowledged that he went to the marital residence, but only due to a financial disagreement with his wife over her use of monies. Only later, upon the pressing of defendant did Nelson advise him that there were other "serious allegations." After about thirty minutes of the interrogation, Nelson exited the room and returned with another detective. At that time defendant invoked his right to counsel and the interrogation was terminated.

A Monmouth County Grand Jury returned an indictment charging defendant with second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (count one); second-degree burglary, N.J.S.A. 2C:18-2 (count two); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) (count three); fourth-degree contempt, N.J.S.A. 2C:29-9 (count four); third-degree terroristic threats, N.J.S.A. 2C:12-3a and/or 2C:13-3b (count five); fourth-degree criminal mischief, N.J.S.A. 2C:17-3a(1) (count six); and third-degree criminal restraint, N.J.S.A. 2C:13-2a (count seven).

Defendant filed a motion to suppress his statement. The judge conducted a testimonial hearing, at which Nelson testified both prior to and after the DVD was played. In his initial testimony, Nelson addressed the investigation and how it lead to defendant's arrest. Nelson also testified about what occurred in the interview room between he and defendant including Nelson providing defendant with his rights. Nelson acknowledged during this testimony that he did not advise defendant about the sexual assault aspect of the investigation. After the DVD was played, Nelson resumed his testimony. Nelson vouched for the fairness and accuracy of the recording and as to the voluntary nature of the statement. After hearing argument the judge set a return date for the decision. On the return date, the judge, after noting her review of the DVD, denied the motion. The judge's reasons were placed on the record.

At the conclusion of the jury trial, defendant was found guilty of second-degree burglary, third-degree terroristic threats and criminal mischief. Defendant's motion for a judgment of acquittal was denied. Defendant was sentenced to an aggregate seven-year term in New Jersey State Prison, subject to the No Early Release Act.

On appeal, defendant raises the following arguments

Point I

Defendant's statement should have been suppressed because detective nelson's failure to advise defendant that he was the suspect/target of a police investigation concerning his wife's allegations that he committed a sexual assault, a burglary, and other crimes, in conjunction with detective nelson's solicitous conduct towards defendant constituted "unfair police conduct."

Point II

The trial court erred in denying defendant's motion for a new trial because the inconsistencies in the jury's verdicts on counts one, two, three, and five demonstrated that it failed to rationally apply the reasonable doubt standard.

Point III

The seven year base term imposed on defendant's conviction for burglary on count two was manifestly excessive because the trial court failed to conduct an accurate aggravating factor/mitigating factoranalysis.

We begin by addressing the standard of review, particularly as applied to appellate review of fact findings based on video recordings admitted in evidence by the trial court. Although an appellate court has access to the same video recording as a trial court, an appellate court may not simply substitute its assessment of that evidence for the trial court's if that assessment is also informed by the trial court's opportunity to hear and consider live testimony. State v. Elders, 192 N.J. 224, 244-45 (2007) (internal citations omitted).

[A] motion judge [is] entitled to draw inferences from the evidence and make factual findings based on his [or her] "feel of the case," and those findings [are] entitled to deference unless they were "clearly mistaken" or "so wide of the mark" that the interests of justice require[] appellate intervention.

[Id. at 245.]

On the other hand, if as in this matter, the trial court's decision is based principally, if not exclusively, on its evaluation of a video recording of the police's interaction with a defendant, then we are not required to defer to the trial court, but may reach our own findings based on our independent review of the video recording.

[W]hen the trial court's sole basis for its findings and conclusions is its evaluation of a videotaped interrogation, there is little, if anything, to be gained from deference. In that circumstance, as we have observed, appellate courts are not confined to a review of a transcript nor obliged to defer to the trial court's findings, but may consider the recording of the event itself.

[State v. Diaz-Bridges, 208 N.J. 544, 565-66 (2012).]

We may also consider the video recording to assist us in our "evaluation of the motion court's application of legal principles to the essentially undisputed facts . . . ." State v. Baum, 199 N.J. 407, 423 n.4 (2009). We also owe no deference to a court's fact-findings that depend on an "obvious overlooking or under-evaluation of crucial evidence." State v. Johnson, 42 N.J. 146, 162 (1964). Finally, we exercise plenary review of a trial court's application of the law to undisputed facts on a motion to suppress. State v. Cryan, 320 N.J. Super. 325, 328 (App. Div. 1999); see State v. Hubbard, N.J. , , (2015) (slip op. at 23-25).

It is well settled that "New Jersey's privilege against self-incrimination is so venerated and deeply rooted in this [S]tate's common law that it has been deemed unnecessary to include the privilege in our State Constitution." State v. O'Neill, 193 N.J. 148, 176 (2007) (citing State v. Reed, 133 N.J. 237, 250 (1993)). The State has the heavy burden to prove "that a defendant has waived his or her right against self-incrimination." Reed, supra, 133 N.J. at 251 (citation omitted).

The judge made the following findings, which were derived from the video recording of defendant's interrogation

From the very beginning, Detective Nelson was polite and patient. When he entered the room, he immediately removed defendant's handcuffs so he would feel "better."

. . . .

From the outset, it was obvious that the defendant was not passive, na ve, or ignorant of his legal rights regarding the criminal justice system.

Based on his words, his tone, and his body language, he presented as a very savvy person who attempted to take control of the process.

No sooner than Detective Nelson had removed his handcuffs and attempted to get basic information from the defendant about his name, address, etc., defendant cut him off and stated, "I want to know why I'm here first."

After obtaining defendant's name and contact information, Detective Nelson advised the defendant that he was charged with violating a restraining order.

As Detective Nelson read defendant his rights, he acknowledged that he had his rights read to him before. Detective Nelson advised defendant he had a right to remain silent and that anything he said could be used against him. He advised him that he had a right to an attorney and if he could not afford one, one would be appointed. Defendant acknowledged that he understood these rights.

When Detective Nelson advised defendant about the waiver provision, he asked a question, and as Detective Nelson continued to explain to him what the waiver meant and read the language in the form again, defendant cut him off and indicated that he understood and that he could stop questioning whenever he wanted.

Defendant indicated that he wanted to know what was going on and Detective Nelson again advised him that he could not discuss anything with him until he was finished reading him his rights and was satisfied that he understood them and had agreed to waive his Miranda rights.

Defendant indicated that he understood the first five rights. He said, "You read me my rights" as if to move Detective Nelson along. Detective Nelson once again attempted to go over the waiver provision with defendant. When he asked him if he was waiving his rights and agreed to answer questions, the defendant . . . "agreed to answer questions."

Wisely, Detective Nelson asked "are you waiving your rights?" Defendant responded "I want to know what's going on." Detective Nelson yet again in a calm fashion advised that in order to know what's going on he had to waive his rights before he could talk to him. Defendant went back and forth with the detective over whether or not he was going to waive his rights. It appeared he wanted to take control of the situation and get information from the detective without going on record to say that he waived his rights. Detective Nelson assured him that the waiver was to protect both of them and that he would not ask defendant questions or go any further in their contact unless he was sure defendant was waiving his rights.

In what can be characterized as an attempt to manipulate the detective, defendant asserted that "they were wasting each other's time, that he could just get a lawyer, and get locked up, and it would be over," but he then continued to try to persuade Detective Nelson to share with him the results of the investigation by saying "you read me my rights" and "we didn't have to go over this before," meaning the waiver as he pointed to the paper that Detective Nelson was reading from.

He said I did nothing wrong and started to tell Detective Nelson that he was home and did not violate the restraining order. Once more, Detective Nelson advised that he could not get into any of it with him until he was satisfied that he had waived his rights. He advised the defendant that he shouldn't be making statements until he was fully advised of his rights.

Finally, when Detective Nelson asked defendant if he wanted to waive his rights and make a voluntary statement, the defendant responded "as of right now, yeah." When he said this, his arms were folded in a relaxed fashion and he did not appear to be in the aggressive stance as he appeared to be earlier in the interview.

Defendant proceeded to give an interview in which he asked as many questions as he answered. He admitted contrary to his earlier statement that he was at the victim's house on the night in question.

In State v. A.G.D., 178 N.J. 56 (2003), police brought the defendant to the prosecutor's office to question him regarding "allegations of sexual abuse that had been asserted against him, but the detective did not specify the charges." Id. at 59. The police gave defendant Miranda rights prior to questioning him, but did not alert him to the fact that an arrest warrant had already been issued against him. Ibid. Defendant confessed. Id. at 60. The trial court denied a motion to suppress the confession. We reversed and remanded for a new suppression hearing, holding that the conviction would stand unless the confession was suppressed. The trial court denied the motion to suppress. On appeal, the Supreme Court held

The government's failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights. . . . [A] criminal complaint and arrest warrant signify that a veil of suspicion is about to be draped on the person, heightening his risk of criminal liability. Without advising the suspect of his true status when he does not otherwise know it, the State cannot sustain its burden to the Court's satisfaction that the suspect has exercised an informed waiver of his rights, regardless of other factors that might support his confession's admission.

[Id. at 68.]

In State v. Nyhammer, 197 N.J. 383, 389 (2009), the police contacted defendant by telephone and requested that he come to the police station to discuss allegations that his uncle had sexually abused his grand-niece. The detective did not tell defendant the child had made accusations of abuse not only against defendant's uncle, but also against defendant himself. At the time of the request for defendant to appear for questioning, no arrest warrant or criminal complaint against him had been issued. Id. at 389-90. Defendant went to the police station, where he was given Miranda warnings and interrogated. At that point, the police divulged to defendant the accusations that the child had made against him, whereupon he admitted to inappropriate contact with her. Id. at 391.

The Court held that Nyhammer's custodial statement was admissible, even though the police had not mentioned that he was a suspect when they brought him in for questioning. Id. at 405. The Court noted that "the defining event triggering the need to give Miranda warnings is custody, not police suspicions concerning an individual's possible role in a crime." Id. at 406. The Court recognized the subjective nature of the label "suspect," observing that "[a] suspect to one police officer may be a person of interest to another officer." Id. at 405. The Court contrasted "suspect" status to "the issuance of a criminal complaint and arrest warrant by a judge," which is "an objectively verifiable and distinctive step." Nyhammer, supra, 197 N.J. at 404. The Court also noted that the status of the interviewee as a suspect is only one of many factors to be analyzed within the totality-of-circumstances test, not a bright-line basis for exclusion.

Here, defendant was interrogated by Nelson, who advised defendant "that he was under arrest for violation of a restraining order." Nelson read defendant his Miranda rights. Defendant wanted to know what his wife had said and what "was going on." Once defendant learned there were additional allegations being considered, he invoked his right to counsel and the interview ended. No criminal complaint or arrest warrant was filed or issued at the time of the interview. In denying the motion, the judge held

While a Miranda waiver is, per se, invalid when police who are questioning a defendant fail to advise him that a criminal complaint has been filed and an arrest warrant has been issued . . . no such bright-line rule exists when police fail to advise the defendant of his status as a suspect.

. . . .

It is also obvious that unlike the defendants in A.G.D. and Nyhammer, defendant was under arrest when he was questioned. The policy and reasoning behind those cases, the need to advise the defendant that the "veil of suspicion" was over him did not apply here. He was arrested and taken from his home, transported to the Eatontown Police Department, and was in handcuffs before they were removed by Detective Nelson. More importantly, none of the cases available indicate it was necessary to advise him that his wife made allegations of sexual assault because no complaint had been filed and it was in the early stages of the investigation.

As the judge properly concluded, there is no judicially imposed mandate in this jurisdiction, or in other jurisdictions, "that commands that a person be informed of his suspect status in addition to his Miranda warnings or that requires automatic suppression of a statement in the absence of a suspect warning." Nyhammer, supra, 197 N.J. at 406.

In light of our standard of review, our independent review of the video, and in consideration of the controlling decisions of law, we conclude that defendant's statements to the police were knowing, voluntary and intelligent.

Defendant also argues the trial court erred in denying his motion for a new trial. We disagree.

Rule 3:20-1 provides that the trial judge shall not grant a motion for a new trial unless, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." The judge must "canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but rather, to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict." Dolson v. Anastasia, 55 N.J. 2, 6 (1969) (quotations omitted). Our review is not limited to a determination of whether the trial court committed an abuse of discretion. Id. at 7. Rather, we must make our own determination as to whether there was a miscarriage of justice. Ibid. We defer to the trial judge only with respect to those intangible aspects of the case not transmitted by the written record, such as witness credibility, demeanor and the feel of the case. Ibid.; State v. Perez, 177 N.J. 540, 555 (2003); see also R. 2:10-1. The evidence should be sifted to determine whether the jury could rationally have found beyond a reasonable doubt that the essential elements of the crimes were present. State v. Horne, 376 N.J. Super. 201, 208 (App. Div.), certif. denied, 185 N.J. 264 (2005); State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004).

The trial judge held

That testimony, in and of itself, provides support certainly beyond the scintilla of evidence that [defendant] committed the offense of burglary.

The elements of the offense of burglary are that the defendant entered a structure . . . without [his wife's] permission. With the purpose to commit an offense therein, and that in the course of committing the offense, defendant purposely, knowingly, or recklessly inflicted, attempted to inflict, or threatened to inflict bodily injury.

The judge also found "there was sufficient evidence . . . [of] a threat to kill and a threat to use a knife to kill, and . . . defendant intended to terrorize the victim or act in a reckless disregard at the risk of doing so." Predicated upon our review of the trial record, we are satisfied the trial judge's decision to deny the motion for a new trial was amply supported.

Defendant next argues his seven-year term is manifestly excessive because the trial court failed to conduct an accurate aggravating and mitigating factor analysis. The court found three aggravating factors present: the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). None of mitigating factors enumerated in N.J.S.A. 2C:44-1(b) were found.

We conclude that the sentencing factors identified by the judge are supported by the evidence. Johnson, supra, 42 N.J. at 161. The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984); see also State v. Bieniek, 200 N.J. 601, 608-09 (2010).

Affirmed.

1 We have reviewed the DVD of the interrogation.

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