STATE OF NEW JERSEY v. MORGAN T. HARRIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MORGAN T. HARRIS,

Defendant-Appellant.

_______________________________________________

December 30, 2016

Argued September 20, 2016 Decided

Before Judges Espinosa and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 12-12-1217 and 12-12-1223.

John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the briefs).

Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Mr. Glyn, of counsel and on the brief).

PER CURIAM

After his motion to suppress two prior custodial statements was denied, defendant Morgan T. Harris pled guilty pursuant to a plea agreement to first-degree robbery, N.J.S.A. 2C:15-1, and third-degree unlawful theft, N.J.S.A. 2C:20-3(a). Consistent with the terms of the plea agreement, defendant was sentenced on the robbery conviction to a seven-year prison term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a five-year parole supervision term upon release. Defendant received a concurrent three-year term on the theft conviction.

We glean the following facts from the record. On May 1, 2012 at approximately 1:22 a.m., Hopewell Township police responded to a report of a robbery at the QuickChek store on Route 31. The cashier reported that a male, wearing a black hooded sweatshirt and a white plastic mask entered the store, brandishing a knife. The suspect yelled at the cashier to come to the register, but the cashier yelled back, telling the suspect to leave the store. The suspect then ripped the cash register drawer containing approximately $310 in cash off of the counter, ran out of the store, and entered a red minivan.

On May 7, 2012, defendant's grandmother, K.R., who was then eighty-one, called the Hopewell Township police to report that she believed that her grandson, defendant, had stolen a silverware set from her home and she suspected that he sold the set to a coin shop in Flemington. Hopewell Police Officer Joseph Maccaquano contacted the coin shop, determined that defendant had sold silverware to the store, and obtained a receipt in defendant's name evidencing the transaction.

On May 16, 2012, Hopewell Sergeant Michael Cseremsak was on foot patrol when he spotted defendant. Earlier that day, Cseremsak learned that defendant's mother had obtained a temporary restraining order against defendant, but defendant had not been served with the order. In addition, defendant had an outstanding arrest warrant for a traffic violation.

When Cseremsak attempted to place defendant under arrest, he resisted and maintained he was not Morgan Harris. Cseremsak managed to arrest defendant and transport him to Hopewell Police Department for processing.

Hopewell Detective Michael Sherman, who was assigned to investigate the theft of K.R.'s silverware, learned of defendant's arrest late in the day, after he had finished his shift and returned to his home. Sherman traveled back to the stationhouse to question defendant regarding the silverware theft. When Sherman arrived, defendant was still in the processing room. Sherman and defendant knew each other from past interactions. Sherman introduced himself and, without mentioning the silverware theft, told defendant that he would like to speak with him regarding a case. Defendant replied that he knew why Sherman wanted to speak with him and he felt bad about stealing his grandmother's silverware and was sorry he did it. When Sherman told defendant he wanted to bring him to an interview room and advise him of his rights, defendant responded that he did not want to waive his constitutional right to remain silent.

Bail was set at $2500 on the resisting charge and $1000 on the traffic warrant. Defendant remained incarcerated, unable to post bail. On May 26, 2012, defendant was charged in a summons complaint with the silverware theft. Bail was not set on the summons complaint.

On May 31, 2012, a witness identified as T.C. brought several items to the Hopewell Township Police station, including a damaged black cash register drawer and a white mask.1 T.C. explained to the police that around May 13, 2012, he was asked by defendant's mother to conduct an "intervention" with defendant and convinced him to enter a detox facility in Pennsylvania. After defendant left, his mother began cleaning his bedroom when she discovered guns and drugs. She then asked T.C. to remove the items. The record does not indicate when defendant left the detox facility, however it is clear he returned home by May 16, 2012, the date he was arrested by Sergeant Cseremsak.

On June 14, 2012, the police executed a search warrant for defendant's bedroom located in the attic of his mother's home. The police seized a black hooded sweatshirt that was similar to the one worn by the suspect in the QuickChek robbery. The police also noted that defendant's mother owned a red 1999 Mercury Villager minivan, which was consistent with the description of the vehicle used in the robbery.

On June 14, 2012, Hopewell Detective Daniel McKeown, who was assigned to investigate the QuickChek robbery, and Detective Sherman went to the Mercer County Corrections Center (MCCC), where defendant was being held, to attempt to interview him about the robbery.

Sherman and McKeown were joined by MCCC Internal Affairs Investigator Falconi. Portions of the interview were recorded on a hand-held recorder. Before the interview began, Detective McKeown advised defendant of his constitutional rights and presented him with a waiver of rights form. Both Detectives testified that defendant agreed to the waiver and then requested to speak with Detective Sherman alone without the recorder.

Detective Sherman testified that when he and defendant spoke alone with the recorder turned off, defendant asked for advice on what to do. Detective Sherman replied that he could not give legal advice, but told defendant that if he was under the influence at the time of the robbery, the court may look favorably upon him if he was truthful. Detective Sherman made no promises to defendant and their unrecorded conversation lasted approximately thirty minutes.

After Detective McKeown and Investigator Falconi returned to the room, defendant told them he was willing to continue the interview. Defendant then confessed to the robbery of the QuickChek.

After hearing the testimony of Sergeant Cseremsak, Detectives Sherman and McKeown, and Officer Maccaquano, the trial judge entered an order denying defendant's motion to suppress. In a written decision accompanying the order, the judge found Detective Sherman's testimony to be credible, straightforward, and responsive to questions both on direct and cross-examination. Although defendant had invoked his right to remain silent and refused to speak with Detective Sherman on May 16, 2012, the judge declined to suppress his subsequent statement acknowledging the silverware theft, concluding it was voluntary and not solicited by police.

The judge also refused to suppress defendant's June 14, 2012 statement, finding the credible testimony of Detectives Sherman and McKeown established that defendant's statement was given after a voluntary waiver of his Miranda2 rights.

On appeal, defendant argues

point i

the trial court erred in denying the motion to suppress the defendant's statement on may 16 because he did not knowingly, voluntarily, and intelligently waive his right to remain silent. further, the judge failed to consider whether the illegal detention of mr. harris had rendered the robbery confession insufficiently voluntary. finally, failure to record mr. harris's may 16 statement violated r.3:17 and attorney general guidelines. u.s. const. amends. v, vi, xiv; n.j. const., art. I, 1, 10.

a. on may 16, mr. harris did not knowingly, voluntarily, and intelligently waive his rightS to remain silent.

b. while the judge acknowledged that mr. harris was illegally detained, he failed to consider the illegal detention as a factor in determining whether mr. harris's statements were voluntary.

c. at two crucial points, mr. harris's interactions with a police interrogator were unrecorded, contrary to r.3:17.

point ii

the judge failed to weigh correctly the mitigating and aggravating factors, resulting in an excessive sentence.

We review a determination on a motion to suppress to determine whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record." State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990)). We "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). However, we owe no deference to the trial court's decisions of law. State v. Gandhi, 201 N.J. 161, 176 (2010).

Defendant argues the trial judge erred in denying his motion to suppress the May 16 statement because he did not knowingly, voluntarily, and intelligently waive his right to remain silent, and the police failed to record the statement in violation of Rule 3:17 and the Attorney General guidelines.

When the State seeks to introduce a defendant's confession, it has the burden of proving beyond a reasonable doubt that the confession was actually voluntary and not coerced by police. State v. Galloway, 133 N.J. 631, 654 (1993). The test to determine if a statement is the product of interrogation is whether the suspect's response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response. State v. Ward, 240 N.J. Super. 412, 417 (App. Div. 1990). In Ward, we cautioned that a "statement that is voluntarily blurted out by an accused in custody where the police have not subjected him to an interrogative technique or where the police are about to begin giving the Miranda warnings [is] volunteered and admissible without Miranda warnings." Id. at 419. We reaffirmed this principle recently in State v. Wright, 444 N.J. Super. 347 (App. Div. 2016). In Wright, we held that the defendant's statements to the police were the product of the equivalent of custodial interrogation without required Miranda warnings and therefore should have been suppressed. Id. at 351. However, we qualified our holding by noting that there would be no objection if, after the officers' initial statements to the defendant about why he was being detained, the defendant blurted out that he had the cell phone. Id. at 366-67. In that case, we would not hold the officers accountable for such an unforeseeable result. Ibid.

Similarly, defendant's acknowledgment of stealing his grandmother's silverware was not the product of police interrogation. Rather, defendant's remark that he took the silverware and was sorry for doing so was blurted out voluntarily before the officer had an opportunity to tell defendant the subject of the questioning.

Rule 3:17 provides that all custodial interrogations conducted in a place of detention must be electronically recorded unless an exception applies. Under Rule 3:17(b)(ii), a "spontaneous statement" made "outside the course of an interrogation" is excluded from the recording requirement. Rule 3:17(b)(iv) provides an exception if a statement made "during a custodial interrogation by a suspect who indicated, prior to making the statement, that he/she would participate in the interrogation only if it were not recorded; provided however, that the agreement to participate under that condition is itself recorded."

Here, the trial judge concluded that defendant's May 16 statement to Detective Sherman was not the product of a custodial interrogation. That determination is well supported in the record and is entitled to our deference. Therefore, the recording requirement of Rule 3:17 does not apply to defendant's May 16 statement.

As to the June 14, 2012 statement, defendant made a specific request to speak with Detective Sherman alone and that their conversation not be recorded. Detective Sherman testified that the interaction with defendant had been recorded up to the point defendant asked to speak to Sherman alone without being recorded. Detective Sherman testified that the recording device was on when defendant agreed to sign the waiver of rights form and subsequently asked to speak to Sherman alone.3 After speaking with Detective Sherman for approximately thirty minutes, Detective McKeown and Investigator Falconi re-entered the room, turned the recording device back on, and proceeded to question defendant.

Defendant cannot now argue that his conversation with Detective Sherman should have been recorded after he had specifically requested that the recorder be turned off. Moreover, this unrecorded conversation falls within the exceptions to the recording requirement as the device was not turned off until requested by defendant. R. 3:17(b)(iv).

Defendant also maintains that in assessing the voluntariness of his June 14, 2012 confession, the judge failed to consider defendant's incarceration on the municipal court warrants, the failure to provide counsel until his first court appearance on June 28, 2012, and the coercive effect of the threat of additional charges.

Although not raised by defendant, we consider whether defendant's refusal to speak with police on May 16, 2012, can be viewed as an invocation of counsel, and if so, whether the time between that event and the second interrogation can be viewed as a break in custody sufficient to nullify defendant's invocation.

In State v. Wessells, 209 N.J. 395 (2012), the Court adopted the rule announced by the United States Supreme Court in Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010). Under that rule, any statements made by a defendant less than fourteen days after an invocation of the right to counsel are presumed involuntary and must be suppressed. Shatzer, supra, 559 U.S. at 117, 130 S. Ct. at 1227, 175 L. Ed. 2d at 1061.

In Wessells, the defendant invoked his right to counsel on September 3, 2006, and subsequently made additional statements to the police on September 12, 2006. Wessells, supra, 209 N.J. at 413. As only nine days had passed since he invoked his right to counsel, the Court held that his statements were presumed involuntary and had to be suppressed. Ibid.

Here, defendant told Detective Sherman on May 16, 2012, that he did not wish to speak with him and would not execute a waiver of rights form. When defendant was next questioned on June 14, 2012, twenty-eight days had passed. This is double the fourteen-day break-in-custody period announced in Shatzer and adopted by Wessells. Unlike the defendant in Wessells, who was released from custody after the initial questioning, defendant remained in custody between May 16, 2012, when he refused to speak with Detective Sherman, and June 14, 2012, when he confessed. While there may not be a break in custody sufficient to shake off any residual coercive effects of his prior custody, see Wessells, supra, 209 N.J. at 408 (quoting Shatzer, supra, 559 U.S. at 110, 130 S. Ct. at 1223, 175 L. Ed. 2d at 1057), we need not reach that issue as defendant asserted his right to remain silent, but did not specifically invoke his right to counsel.

In State v. Faucette, 439 N.J. Super. 241, 264 (App. Div.), certif. denied, 221 N.J. 492 (2015), we concluded that the Shatzer/Wessels minimum break in custody need not be imposed when a defendant seeks to end an interrogation but has not asserted the right to counsel. After the defendant in Faucette was given Miranda rights, the police continued to question him despite his inquiries as to where his mother was, and his request that she be in the room while he was being questioned. Id. at 261. We noted that "[t]he Fifth Amendment right to counsel is distinguishable from the right against self-incrimination, and actually is an additional protection against self-incrimination." Id. at 264 (citing Michigan v. Mosley, 423 U.S. 96, 104 n.10, 96 S. Ct. 321, 326 n.10, 46 L. Ed. 2d 313, 321 n.10 (1975)). We then concluded that the "defendant's statements suggest a desire for support and cannot be construed as an assertion of his right to remain silent," therefore his second interrogation resulted in a voluntary uncoerced confession. Id. at 262-65.

Similarly, the attempt by Detective Sherman to interview defendant on May 16, 2012, ended immediately after defendant refused to be questioned and without an invocation of his right to counsel. We conclude that the June 14, 2012 confession was preceded by a proper administration of Miranda warnings and resulted in defendant's voluntary choice to admit his involvement in the crimes under investigation. There is no poisonous taint from the May 16 attempted interview requiring exclusion of defendant's confession.

Defendant claims he was subjected to an illegal delay in initiating judicial proceedings. He relies on Rule 3:26-2(c), which states that "[a]ny person unable to post bail shall have his or her bail reviewed by a Superior Court judge no later than the next day which is neither a Saturday, Sunday nor a legal holiday." Defendant cites State v. Tucker, 137 N.J. 259, 270 (1994), cert. denied, 513 U.S. 1090, 115 S. Ct. 751, 130 L. Ed. 2d 651 (1995), which provides that a delay in affording a defendant a probable-cause determination is a factor that courts should weigh in determining whether a confession during the period of detention was voluntary.

A brief review of the timeline here aids our analysis of this claim. The QuickChek robbery occurred on May 1, 2012; defendant's grandmother reported the theft of her silverware and her suspicion of defendant's involvement to the police on May 7; defendant was arrested on an outstanding municipal warrant and charges of resisting arrest on May 16, 2012. Later that day, Detective Sherman spoke with defendant who acknowledged his involvement in the silverware theft. On May 26, 2012, defendant was charged in a summons with the silverware theft. On May 31, 2012, the police learned that items stolen in the QuickChek robbery were found in defendant's bedroom. After police obtained a search warrant, defendant's bedroom was searched pursuant to that warrant on June 14, 2012. Later that day, Sherman, McKeown, and Falconi spoke with defendant at MCCC where he admitted his involvement in the QuickChek robbery. On June 26, 2012, a complaint warrant was filed charging defendant with that robbery.

In determining whether a suspect's confession is the product of free will, courts traditionally assess the totality of circumstances surrounding the arrest and interrogation. State v. A.G.D., 178 N.J. 56, 67 (2003). Clearly, defendant's incarceration from May 16, 2012, albeit on unrelated charges, must be considered as a factor in determining whether his June 14, 2012 confession was voluntary.

Other factors "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." Galloway, supra, 133 N.J. at 654.

Applying these factors, we find no evidence to suggest that defendant's will was overborne. He was twenty-five years old with several prior arrests, although none resulting in indictable convictions. Although Detective Sherman described defendant as "somewhat anxious,"4 he also found defendant to be cooperative and did not seem "stressed" or unable to make a decision.

Detective McKeown testified that he utilized an audio recording device to record the discussion advising defendant of his Miranda rights and defendant's waiver of these rights.5

The motion judge acknowledged that although defendant's incarceration on June 14, 2012 could be "unsettling to anyone," there was no evidence that he was illegally put in that situation or his will to remain silent was broken by police misconduct. A crucial element of this conclusion was the judge's determination that both Detective Sherman and Detective McKeown testified credibly and that their testimony established beyond a reasonable doubt that defendant's June 14, 2012 confession was voluntary. We must defer to these findings if they are supported by the evidence because the trial judge is in a unique position to observe the demeanor of the witnesses as they testify. State v. Locurto, 157 N.J. 463, 474 (1999).

We are satisfied that the State established that defendant made a knowing, intelligent, and voluntary waiver of his right to remain silent, and there is no evidence that his will was overborne by his incarceration on unrelated charges.

Finally, defendant challenges his negotiated sentence, claiming that the judge failed to weigh the aggravating and mitigating factors, resulting in an excessive sentence. This argument lacks sufficient merit to warrant discussion in our opinion beyond the following brief comments. R. 2:11-3(e)(2).

Our review of a trial court's sentencing determination is both limited and deferential. State v. Fuentes, 217 N.J. 57, 70 (2014). Our deference is heightened where defendant has bargained for the sentence imposed pursuant to a plea agreement. Id. at 70-71.

We are satisfied that the sentencing judge made findings of fact concerning the aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, and applied the correct sentencing guidelines enunciated in the Code and applicable case law. Defendant's sentence does not shock our judicial conscience. See State v. Case, 220 N.J. 49, 65 (2014). Accordingly, we discern no basis to disturb the sentence.

Affirmed.

1 The other items brought in by T.C. included: thirteen cell phones, three firearms, four BB guns, one rifle scope, 313 rounds of ammunition, three knives, two bags of gun powder, four flares, twelve pieces of PVC pipe, one bag of cotton balls, three packs of fuses, one model rocket engine, two packs of firecrackers, nine Naltrexone Hydrochloride pills, one digital scale, and coins.

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

3 We were not provided with the audio recording.

4 Detective McKeown described defendant as "calm and normal."

5 For reasons not apparent in the record, the recording was not introduced at the hearing on defendant's motion to suppress.