STATE OF NEW JERSEY v. ANTHONY BEST

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5795-04T45795-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

ANTHONY BEST,

Defendant-Appellant/

Cross-Respondent.

___________________________

 

Submitted November 13, 2006 - Decided December 13, 2006

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

Indictment No. 03-09-3072.

Yvonne Smith Segars, Public Defender, attorney for appellant/Cross-Respondent (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent/Cross-Appellant (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Anthony Best, appeals from his conviction, following a bench trial, for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), unlawful possession of a knife, N.J.S.A. 2C:39-5(d), and possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). He also appeals his sentence of thirteen years in prison, of which he must serve 85% without parole, plus a concurrent eighteen-month sentence. We affirm the conviction and the sentence.

I

These are the most pertinent facts. The victim, Melvin Sandy, was stabbed on the corner of Branford Place and Washington Street in Newark, at about 9:40 p.m. on April 21, 2003. Police arriving on the scene found defendant standing near the victim. Sandy was taken to the hospital, where he died shortly before midnight.

According to Detective Lee Douglas, who testified at defendant's pre-trial Miranda hearing, at the scene defendant told police that he witnessed the stabbing, and gave police a description of the assailant whom he saw running from the scene. Defendant then voluntarily came to the police station to give a statement. Douglas testified that defendant was not a suspect at that time and he was not given Miranda warnings prior to making a formal statement. At a few minutes after midnight on April 22, 2003, defendant signed a formal statement asserting that he witnessed someone else stabbing the victim. When he gave the April 22 statement, defendant identified himself as "Anthony Belcher." After he gave the statement, the police drove him home.

Later on April 22, defendant was once again taken to the police station. At the Miranda hearing, Detective DeMaio initially testified that defendant was arrested for the murder at that time. He then corrected his statement and testified that defendant was arrested on the basis of an open bench warrant unrelated to the stabbing. He then further testified that defendant was not initially arrested; rather he testified that after reviewing defendant's initial statement he went to defendant's house, "interviewed him briefly at the apartment and asked him if he would come to the homicide squad with us and he agreed." DeMaio took notes of that brief interview but did not have them at trial, and claimed defendant was free to refuse to go to the police station. He did not read defendant his rights before the brief interview.

After arriving with defendant at the police station, DeMaio discovered that defendant had four outstanding arrest warrants. DeMaio testified that he administered Miranda warnings to defendant at the police station, and defendant signed a waiver at 12:30 p.m. on April 22. DeMaio stated that after defendant signed the waiver he "[c]onducted a brief interview with Mr. Best" and then took a formal statement. In the formal statement defendant admitted that his earlier statement was not true, and that he stabbed the victim during an argument over money:

So I was telling him let's split the money . . . He did not want to go for it. I was in his face arguing. When he pushed me I fell to the ground. . . .

So I had a small like 3 inch pocket knife I had in my hand. So when he came at me again, I swung it at him. And, the next thing I knew, he was like, you hit me in my chest. I'm telling him to stop playing and he sat down on the ground. While he was sitting on the ground, kept complaining about his chest.

He laid on the sidewalk and I said, let's go to the hospital.

Defendant then asked some bystanders to call 9-1-1.

Defendant claimed that he did not intend to stab the victim. He said "I swung [the knife] and did not mean to hit him." He claimed that he lied in his first statement because he was "scared." He insisted that he and the victim were "very close friends," and that he "did not mean it to happen." According to DeMaio, defendant understood the Miranda form and was given food and coffee and a bathroom break, during the interrogation.

In ruling on defendant's suppression motion based on Miranda violations, the trial judge held that defendant's first statement was not subject to Miranda requirements, because he was not a suspect at the time, he was not in custody, and he gave the statement voluntarily. The judge concluded that the second time the police brought defendant to the police station, defendant was "clearly in custody" and Miranda applied. He therefore held that any statements defendant made during the interview at his apartment would be inadmissible.

The judge also concluded that the confession itself was voluntary, and that the nature of defendant's statements themselves showed that he "was not being pressured to simply implicate himself in a murder." Because the judge concluded that "the pre-interview [at the police station] was done prior to giving him his Miranda rights," he ruled that nothing said in the pre-interview would be admissible. But he concluded that the formal statement was admissible, because it not only was given after defendant received his Miranda warnings, but DeMaio further highlighted and re-reviewed with defendant his Miranda rights at the beginning of the statement and confirmed that he "still" wanted to give a statement.

With respect to the issue of whether the pre-interview tainted the later formal statement, the judge reasoned that it did not:

If the defendant had not been given his Miranda warnings . . . I wouldn't allow the pre-interview. But, once he's given his Miranda rights, . . . not once, but actually twice -- then the questions are asked. Those questions are questions that are new. Whether or not they have been asked before, I'm not allowing the answers from the [earlier interview] "before."

So I don't find that they taint it.

The judge also reasoned that the eleven-hour gap between the first statement taken at 1:30 a.m. on April 22 and the confession taken at 12:30 p.m. the same day, contributed to a finding that the confession was voluntary. "[I]t . . . wasn't: Get him out of bed. Wake him. Question him before he has a chance to get his wits about him. This [confession] doesn't appear for 11 hours approximately. So he . . . certainly would have a chance . . . to get his wits about him." Hence, he concluded that defendant voluntarily and "knowingly and intelligently" waived his Miranda rights and voluntarily gave the formal confession.

At the trial, Envois Jimenez testified that she owned a beauty salon in Newark and that she had hired Sandy and defendant to transport a large television set for her from Parsippany to her salon. After the two men delivered the television set, she gave Sandy $35, told the two men to split the money, and promised to pay them more the next day. She heard the two men start to argue about how to divide the money. They got out of her car and walked toward Sandy's truck, which was parked around the corner. She heard defendant say that he was going to "do something" to Sandy's truck. As they disappeared around the corner, she "just saw them arguing and grabbing each other and then I left." She testified that neither man appeared to be intoxicated or under the influence of any drug.

At trial, Detective DeMaio testified that after interviewing Jimenez, he went looking for defendant to interview him a second time concerning discrepancies in defendant's first statement to the police. He then testified to defendant's April 22 confession. With defendant's consent, the police searched his apartment and found the folding knife used to stab Sandy. DeMaio admitted that during defendant's confession, he did not ask defendant at what point during the confrontation with Sandy he took the knife out of his pocket. He admitted defendant told him he only swung the knife once.

Dr. Shaikh, an interim deputy medical examiner, testified that Sandy's death was caused by a wound to the left side of the chest that penetrated to the heart. This wound was "V-shaped" indicating that "there was some twisting of the blade" or from "movement by the person who sustained the injuries." He also testified that the victim had a "wide wound," of about one and a quarter inches, on the right side of the chest that penetrated "into the fat tissue that is underneath the skin" but did not penetrate into the chest cavity and would not have caused death. On cross-examination he admitted that there were no blood stains on the victim's clothing on the right side. He also acknowledged that the contemporaneous medical records from the hospital only indicated that the victim had one wound.

Dr. Shaikh also testified that the victim had cocaine in his system, had probably ingested it recently, and that cocaine is a stimulant that could cause a person to become aggressive or agitated. He testified that the victim was five feet nine and one-half inches tall and weighed 222 pounds.

After the State rested its case-in-chief, the defense introduced in evidence the victim's 1993 criminal conviction for assault with intent to cause physical harm, resisting arrest, and menacing. The court denied the defense application to introduce evidence of a 1990 arrest for a terroristic threat that was no-billed, and a 2002 domestic violence complaint as to which there was no record of a disposition.

In rendering his verdict, the trial judge concluded that the knife in question was the kind ordinarily used by "a handyman" and not ordinarily used as a weapon. He also accepted the version of the event as described in defendant's confession, i.e., that the two men argued over money, that the victim knocked defendant down, that defendant got up with a knife in his hand, "[t]hat Mr. Sandy was coming at him again as he got up," and that defendant swung the knife at him. The judge found no evidence of voluntary intoxication on defendant's part. He then considered the defense of self-defense. The judge concluded that "[o]ne can't respond with deadly force [a knife] to a threat of or even an actual minor attack. And, a shove is, in fact, even though it knocked him down, a minor attack." He further found that it "would [not] be reasonable for the defendant to believe that it was necessary for him to stab Mr. Sandy in order to protect himself with him having been shoved down one time." He therefore found that self-defense was not available as a defense.

After finding that defendant did not act purposefully or knowingly to kill Sandy, the judge found him not guilty of murder. He rejected passion provocation manslaughter, because he found that Sandy's pushing defendant was insufficient provocation, and "[a]n argument over $5 is not adequate provocation to take a life." He then concluded, primarily based on the fact that defendant stabbed the victim in the chest, an area where a wound was likely to cause death, that defendant acted "recklessly and . . . under circumstances manifesting extreme indifference to the value of human life" and was therefore guilty of aggravated manslaughter. He also convicted defendant of the associated weapons charges.

II

On this appeal, defendant raises the following issues:

POINT I: THE FORMAL, [MIRANDIZED] STATEMENT WAS TAINTED BY THE TWO PRIOR [UNMIRANDIZED] STATEMENTS AND SHOULD HAVE BEEN [SUPPRESSED] BASED ON THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW PRIVILEGE AGAINST SELF-INCRIMINATION.

POINT II: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART.I PAR.1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S RULING PRECLUDING THE DEFENSE OF JUSTIFICATION.

POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART.I PAR.1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S RULING EXCLUDING RELEVANT AND MATERIAL DEFENSE EVIDENCE.

POINT IV: THE DEFENDANT'S RIGHT TO A FAIR GRAND JURY INDICTMENT PROCEEDING AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND BY ART.I PAR.1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S DECISION DENYING THE DEFENDANT'S PRE-TRIAL MOTION TO DISMISS THE INDICTMENT.

POINT V: THE SENTENCE IS EXCESSIVE.

A. THE TRIAL COURT ERRED BY IMPROPERLY BALANCING THE AGGRAVATING AND MITIGATING FACTORS.

B. THE DEFENDANT MUST BE RESENTENCED BECAUSE HE WAS SENTENCED ON THE BASIS OF AN UNCONSTITUTIONAL SENTENCING SCHEME.

Except as discussed further in this opinion, we conclude that defendant's contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We reject defendant's contention that his formal confession, given after two sets of Miranda warnings, should have been suppressed as the "fruit" of earlier statements that the trial judge found were given before police administered the Miranda warnings. As the Supreme Court held in Oregon v. Elstad, 470 U.S. 298, 318, 105 S. Ct. 1285, 1298, 84 L. Ed. 2d 222, 238 (1985), "a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." Unlike Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004), there is no evidence here of a conscious police policy to question a defendant until a confession is obtained and then administer Miranda warnings followed by a repetition of the earlier confession (a practice described in Justice Kennedy's concurring opinion as "a two-step questioning technique based on a deliberate violation of Miranda." Id. at 620, 124 S. Ct. at 2615, 159 L. Ed. 2d at 660). There is no evidence as to what statements defendant made in what Detective DeMaio characterized as a brief pre-interview and no evidence that DeMaio sought to exploit those statements during the later, formal interrogation. See State v. O'Neill, 388 N.J. Super. 135, 148 (App. Div. 2006). In this case "even if defendant should have been advised of his Miranda rights sooner, the record fully supports the trial court's finding that defendant gave his [formal confession] after he had knowingly, intelligently, and voluntarily waived his Miranda rights." Ibid.

Defendant contends that the indictment should have been dismissed, because the prosecutor did not present to the grand jury evidence that the victim had cocaine in his system at the time of his death. Defendant reasons that, from this information, the grand jurors might have concluded that the victim was aggressive and that defendant acted in self-defense. The trial judge concluded that this evidence was not in the State's possession at the time of the grand jury proceeding and, in any event, it was "not clearly exculpatory." We find no error in the trial judge's ruling. See State v. Hogan, 144 N.J. 216, 235-36 (1996).

We likewise find no merit in defendant's contention that the trial judge erred in rejecting his claim of self-defense. The trial judge carefully considered the self-defense claim and correctly rejected it. We agree with the cogent opinion of the trial judge on this issue. Contrary to defendant's brief, there is no evidence that defendant's skull struck the concrete sidewalk when the victim pushed him down. There is no evidence in this record that defendant needed to use deadly force "to protect himself against death or serious bodily harm." N.J.S.A. 2C:3-4(b)(2). See State v. Kelly, 97 N.J. 178, 197 (1984). On a related issue, we conclude that the trial court properly excluded evidence of the victim's prior arrests for violent crimes for which he was not convicted. There is no evidence that defendant even knew of these arrests and hence they are not relevant to his possible belief that he needed to use deadly force to protect himself.

Finally, we find no error in defendant's thirteen-year sentence, which was above the minimum term, but still below the then-existing presumptive term for aggravated manslaughter. N.J.S.A. 2C:44-1f(1)(a). See State v. Natale, 184 N.J. 458, 484 (2005); State v. Roth, 95 N.J. 334, 365-66 (1984).

Affirmed.

 

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

According to Detective Ausby, who testified at trial, Ausby radioed to the dispatcher "to give out the physical description that [defendant] gave me" so that other police units might be able to "pick up the suspect from the information he gave to me." The police also gave defendant Sandy's personal property to hold onto, since defendant told them Sandy was his friend.

(continued)

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A-5795-04T4

December 13, 2006