STATE OF NEW JERSEY v. TIMOTHY PARRISH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0563-04T40563-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY PARRISH,

Defendant-Appellant.

_________________________________________

 

Submitted: October 11, 2005 - Decided:

Before Judges A. A. Rodr guez and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 03-09-1698.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, and on the brief).

John Kaye, Monmouth County Prosecutor, attorney for respondent (Jennifer Freyer, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Timothy Parrish, was charged with several offenses arising from the shooting of DeWayne Harper, who was paralyzed from the waist down as a result of the shooting. At the time of the offense, defendant was seventeen years old. The Family Part waived jurisdiction and defendant was tried as an adult. After a jury trial, defendant was convicted of the following charges: second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); third degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (count two); and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three). Defendant moved unsuccessfully for a new trial. At sentencing, the judge merged the conviction for count three into that for count one. The judge also imposed a ten-year term with a period of parole ineligibility pursuant to NERA on the aggravated assault conviction and a concurrent five-year term with two and one-half year parole disqualifier on the weapons conviction. Both sentences will run consecutively to the two-year term he is currently serving for assaulting a youth corrections officer. We affirm the convictions, but vacate the sentence on count one and remand for re-sentencing.

On Friday April 18, 2003, DeWayne Harper attended a party at St. George's Russian Orthodox Church social hall in Howell Township with his twin brother, Devon, and two cousins. In the early morning hours of Saturday, as the party was ending, DeWayne, Devon and one of the cousins were standing on the front porch of the hall. A person came up to Devon, pointed to a man at the bottom of the stairs, later identified as Rayvon Thomas, and asked, "do you have a problem with him." Devon said that he did not know Thomas. Thomas came to the top of the stairs, and referring to Devon, said, "this is him." Then Thomas said to a group of young men at the bottom of the stairs, "pound him, pound him . . . I just want to pound him." After these words were said, DeWayne, Devon and the cousin were attacked by about fifteen young men.

During the fight, DeWayne, Devon and the cousin were pushed back into the lobby of the social hall. DeWayne was hit with a chair and fell to the ground. As DeWayne rolled over, someone, who he could only describe as a black male, stood over him. The next thing he remembers is that the room had cleared out. DeWayne tried to pull himself under the table. He was unaware that he had been shot in the abdomen, but did recall not being able to feel his legs. DeWayne found out that he was shot when he was placed in the ambulance.

DeWayne was taken to Jersey Shore Medical Center where he underwent surgery. He remained in the hospital for six days and was later transferred to Kessler Rehabilitation Center. While at the rehabilitation center, DeWayne looked at a photo array and identified Thomas as the man who said "pound him." Devon also identified Thomas. However, the shooter was not identified.

Howell Township Police Detective Paul Hendershot testified that he was assigned to investigate the shooting. On the day of the shooting, he interviewed Joseph Wynn, the host of the party. Wynn stated that he saw defendant at the party. Wynn also indicted that Kevin Goines, Rayvon Thomas, Zachary Butts and Chawn Givens were at the party.

Subsequently, Hendershot was notified that an anonymous caller had information about the shooting. The unidentified caller told Hendershot that the following young men were involved: defendant, Kevin Goines, Carson Gibbs, Rashawn Pitts and Rayvon Thomas. The caller also said that the shooter was either defendant or Kevin Goines.

Hendershot found out that defendant was wanted on an outstanding warrant. Four days after the shooting, he went to defendant's home. Defendant's father, Timothy Parrish Sr., answered the door. Hendershot identified himself and told Parish Sr. that he had an order of arrest for his son and that he wanted to question his son about a shooting. Parrish Sr. made a phone call and located his son. Sharon Nolan, defendant's step-mother, went to pick him up.

Upon arriving home, defendant was notified that he was being arrested on an outstanding warrant and that he was going to be asked some questions about the shooting. Defendant was taken to the Howell Police Station and given his Miranda warnings in the car. Parrish Sr. and Nolan also went to the police station.

Monmouth County Prosecutor's Detective Brian Veprek and Hendershot conducted the interview of defendant in the presence of Parrish Sr. and Nolan. Veprek read defendant his Miranda rights again and defendant indicated that he understood those rights. Defendant's father also indicated, by initialing the Miranda warnings, that he understood the rights given to his son. During the interrogation, Detective Veprek confronted defendant with information which was not true. Specifically, Veprek stated that several people from the party identified defendant as being in attendance and involved in the shooting. Veprek mentioned names of boys from Freehold Borough that he knew were associates of defendant. Defendant admitted that he was at the party, but stated that Goines was the one who did the shooting. He also admitted that at some point after the shooting, he was in possession of the gun. However, since the date of the shooting, the gun had been thrown into Topanemous Lake in Freehold. The gun was never recovered.

At this point, Parrish Sr. was not feeling well and asked to be excused from the interview. Nolan replaced him. Defendant was asked to give a voluntary statement about Goines. Defendant and Nolan agreed to this. The detectives left the room to contact a typist. During this interval, defendant was given food and drinks, and allowed to go to the bathroom.

Defendant and Nolan were left in the room alone. About five minutes later, Nolan told Detective Hendershot that defendant confessed to the shooting of DeWayne. Hendershot notified Veprek. Upon re-entering the interrogation room, Veprek noticed that both Nolan and Parrish Sr. were back in the room and defendant was crying hysterically. Defendant confessed to shooting DeWayne. After the written statement was taken, it was reviewed on videotape.

At a pre-trial Miranda hearing, Detective Hendershot testified and the videotape was played. Parrish Sr. and defendant also testified. The judge found that the confession was admissible because it was voluntarily made by defendant after a knowing and intelligent waiver of his Miranda rights to remain silent.

At trial, DeWayne and Devon testified about the fight and shooting. They were not able to identify the shooter. Detective Veprek testified about defendant's confession.

Dr. Cathy Dudick of North Shore Medical Center testified that DeWayne suffered from an injury to the inferior vena cava, which carries a 70% mortality rate. Dr. Dudick further stated that the bullet "shattered the vertebra and the vertebral body." As a result of his injuries, DeWayne "has a decreased life expectancy and certainly will have consequences of his injury that are as a result of him being confined to a wheelchair."

Defendant testified that he did not shoot anyone at the party. Rather, he stated that he gave the gun to his friend "IJust." Defendant assumes that "IJust" is the one who shot DeWayne. Defendant heard someone say, "if you tell on me I am going to kill you or your pops." It is defendant's testimony that he implicated himself in the shooting because he was afraid this person would harm him or his family, but that his confession was not the truth.

On appeal, defendant contends:

THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE MIRANDA HEARING TESTIMONY OF DETECTIVE HENDERSHOT WAS SO INCOMPLETE AND MISLEADING AS TO CONSTITUTE A MISREPRESENTATION (Not Raised Below).

We disagree. Specifically, defendant argues that because Detective Veprek confronted him with information which was not true during the interrogation, the confession should be suppressed. This issue is raised for the first time on appeal, and thus, the plain error standard applies. State v. Hock, 54 N.J. 526, 538 (1969). "Plain error" is an error which is "clearly capable of producing an unjust result," R. 2:10-2, and must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise would not have reached." State v. Macon, 57 N.J. 325, 336 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

Waiver of a defendant's Miranda rights must be made voluntarily, knowingly and intelligently. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707. The State has the burden of proving waiver beyond a reasonable doubt to ensure that the will of a person in custody is not overborne. State v. Knight, 183 N.J. 449, 463 (2004).

A determination as to the voluntariness of a confession will be made based on the totality of the circumstances, including an examination into the characteristics of the defendant and the nature of the questioning. State v. Galloway, 133 N.J. 631, 654 (1993). The court in Galloway noted specifically that the relevant factors in assessing voluntariness include: "the suspect's age, education and intelligence, advise concerning constitutional rights, length of detention, whether the questioning was [of a] repeated and prolonged . . . nature, and whether physicial punishment and mental exhaustion were involved." Id. (citing Shneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862 (1973)). Other factors, which are relevant, include a defendant's previous encounters with the law and the time period between the Miranda warning and the voluntary statement. State v. Timmendequas, 161 N.J. 515, 614 (1999). An assessment of these factors will be used to determine whether the confession came as a result of defendant's will being overborne. Galloway, 133 N.J. at 655.

Defendant relies on the fact that the interrogator lied to defendant. However, cases have consistently held that where police lie about a co-defendant's confession or about evidence obtained, the confession will be upheld. State v. Patton, 362 N.J. Super. 16, 32 (App. Div.), certif. denied, 178 N.J. 35 (2003). In Frazier v. Cupp, 394 U.S. 731, 739, 89 S. Ct. 1420, 1425, 22 L. Ed. 2d 684, 693 (1969), involving an untrue co-defendant statement, the United States Supreme Court held that, "[t]he fact that the police misrepresented the statements . . . [is] insufficient . . . to make an otherwise voluntary confession inadmissible." We have held that this form of trickery, lying about the statement of another, is admissible "so long as the statement is voluntary and the will of the person is not overborne. State v. Manning, 165 N.J. Super. 19, 30 (App. Div. 1978), rev'd, on other grounds, 82 N.J. 417 (1980); see also State v. Cooper, 151 N.J. 326, cert. denied, 528 U.S. 55, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000) (holding that misrepresentations are generally insufficient to justify a determination that a confession is involuntary). A confession which is brought about through deception is only inadmissible "if it is calculated to produce an untrue confession or was offensive to due process." Id. at 31.

Defendant relies on the holding in State v. Patton, 362 N.J. Super. 16. However, such reliance is misplaced. We draw a distinction between the use of oral misrepresentations by the police officer and the fabrication of tangible evidence. In Patton, the officers created a tape of an anonymous eyewitnesses recounting the crime. Id. at 18. We held that law enforcement would best be served by the imposition of a bright line rule disallowing police use of fabricated evidence to obtain a confession. Id. at 46, 49.

Here, there is no fabrication of evidence. Rather, the detective engaged in deception only through oral misrepresentations. Moreover, the judge's finding that defendant's confession was voluntary is supported by the proofs and was consistent with the Galloway factors.

Defendant also contends:

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL THAT WAS MADE AT THE END OF THE STATE'S CASE.

We determine that this contention is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The confession, together with defendant's presence at the dance and evidence of the shooting, constitute sufficient evidence to defeat the motion for a judgment of acquittal.

Defendant also contends that:

IMPOSITION OF THE TEN (10) YEAR BASE CUSTODIAL TERM ON THE DEFENDANT'S CONVICTION FOR AGGRAVATED ASSAULT ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON

(A)

IMPOSITION OF A BASE SENTENCE IN EXCESS OF THE PRESUMTIVE SEVEN (7) YEAR BASE SENTENCE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION BECAUSE OF THE APPLICABILITY OF THE NERA PERIOD OF PAROLE INELIGIBILITY.

(B)

IMPOSITION OF A SENTENCE IN EXCESS OF THE PRESUMPTIVE SEVEN (7) YEAR SENTENCE FOR A SECOND DEGREE CRIME VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS AS ARTICULARED BY THE UNITED STATES SUPREME COURT IN BLAKELY V. WASHINGTON.

We conclude that the sentence must be vacated in light of Blakely; State v. Abdullah, 184 N.J. 497 (2005); State v. Natale, 184 N.J. 458 (2005) (Natale II). In fashioning a sentence for the aggravated assault conviction, the judge found the following four aggravating factors as enumerated in N.J.S.A. 2C:44-1a: (1) the nature and circumstances of the offense, and the role of the actor therein; (2) the gravity and seriousness of harm inflicted on the victim; (3) the risk that defendant will commit another offense; and (9) the need for specific and general deterrence from law. The judge found none of the mitigating factors listed in N.J.S.A. 2C:44-1b to exist, and determined that the aggravating factors substantially outweighed the absence of any mitigating factors. The judge imposed the maximum terms for defendant's convictions on count one, a second degree offense, and count two, a third degree offense.

Only statutory aggravating factors (3), (6) and (9) regarding prior convictions, may be used to extend a sentence beyond the presumptive term based solely on judicial factfinding. Abdullah, supra, 184 N.J. at 506 n.2. These factors are "inextricably linked to the recidivism exception noted in Apprendi, supra, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455. Abdullah, supra, 184 N.J. at 506, fn 2. The judge's use of factors (1) and (2) to increase the sentence beyond such term for aggravated assault was a violation of defendant's Sixth Amendment rights. Thus, we remand for re-sentencing, in light of Natale II, on the aggravated manslaughter conviction.

According to the sentencing transcript, the judge found only aggravating factors (3) and (9) in sentencing defendant for unlawful possession of a weapon. Because these two factors deal only with prior convictions, the sentence on this count is affirmed. We conclude that the sentencing factors identified by the judge with respect to count two, are supported by the evidence. 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).

 
The conviction and sentence on count two are affirmed, the sentence on count one is vacated and remanded for re-consideration.

No Early Release Act, N.J.S.A. 2C:43-7.2.

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

542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

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13

A-0563-04T4

 

January 4, 2006