STATE OF NEW JERSEY v. DAMEON M. STACKHOUSE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1254-06T41254-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAMEON M. STACKHOUSE,

Defendant-Appellant.

________________________________

 

Submitted October 15, 2007 - Decided November 1, 2007

Before Judges Parrillo and Alvarez.

On appeal from the Superior Court of New Jersey,

Law Division, Somerset County, Indictment No.

04-07-0503-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jerry Soffer, Assistant Deputy Public

Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Deborah Bartolomey and Paul Heinzel, Deputy Attorneys General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant Dameon Stackhouse was convicted of two counts of second-degree robbery, N.J.S.A. 2C:15-1(a)(1) (Counts 1 and 2); one count of second-degree eluding, N.J.S.A. 2C:29-2(b) (Count 3); third-degree burglary, N.J.S.A. 2C:18-2 (Count 4); third-degree theft, N.J.S.A. 2C:20-3(a) (Count 5); and fourth-degree obstruction, N.J.S.A. 2C:29-1(a) (Count 6). He was sentenced to consecutive seven year terms, each with an 85% parole bar, on the two robbery convictions, and concurrent terms of seven years for eluding and four years for theft. Count 5 was merged with Count 2 and Count 6 merged with Count 3. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.

According to the State's proofs at trial, in the early morning hours of June 14, 2004, 22-year old Philip Robinson was driving from his girlfriend's home in Hillsborough back to his home in Montgomery Township. During the ten-minute drive, he noticed "an early nineties Buick" - the only other car on the road - following him. When he arrived home and pulled up to the top of his sloped driveway on Westbury Court, Robinson noticed the driver of the car following him pass by, traveling farther into the cul-de-sac. As Robinson sat in his car text messaging his girlfriend that he had arrived home safely, his car door was pulled open by a stranger wearing a black or navy hooded sweatshirt (hoodie), with the hood covering most of his face. The man demanded Robinson's money and valuables, and kept his left hand in the hoodie's pocket, "gesturing like if he had a weapon, like a gun." The man shoved Robinson against the seat, checked his pockets, and took Robinson's wallet from his car's center console. After his attacker fled, Robinson ran inside and one of his housemates called the police. Montgomery Township Police Officer Joseph Zizwarek responded, but as soon as he began to interview Robinson, he received a radio dispatch and left, promising to return.

In the meantime, the robber had sped off and crashed his 1992 Oldsmobile into a tree, abandoning it on Muentner Drive. Although it was 1:00 in the morning, the robber started ringing doorbells at the houses in the neighborhood. Obviously alarmed, several residents called the police. Eventually, the robber broke into a home on Muentner Drive where he accosted its owner on the middle landing. She screamed, and the man - a black male wearing a sweatshirt with a hood over his head - grabbed her arm and told her he needed help and needed to get away. Because her two children were asleep upstairs, she asked what he needed, and he replied that he needed money and a car. She moved toward the kitchen, gave him $5 from her purse, a new $100 bill from her son's wallet, and brought him through the garage to where her silver SUV was parked with the keys inside. The man got into the SUV and drove down the driveway and across the lawn, striking a tree along the way.

At the time, Officer Bruce Heddy was stationed in his police vehicle at the bottom of the driveway, having previously heard the radio dispatch reporting the Westbury Court robbery. When he saw the SUV drive across the lawn, hit the tree and speed off, he followed it with flashing lights as it went west on Muentner. The SUV began to pull away from Heddy, and as the cars rounded a bend, Heddy observed another marked police vehicle, driven by Montgomery Police Sergeant Robert Mitchell, facing them at the other end of Muentner. When Mitchell activated the flashing lights on his vehicle, the SUV accelerated again, began to dovetail out of control, and crashed into Mitchell's vehicle. Mitchell's vehicle was spun around, and burst into flames, although Mitchell was able to climb out to safety. The SUV, on the other hand, rolled over and came to rest on its roof. As the driver crawled out, Heddy saw a $100 bill fall out of his pocket. The driver, who was identified as defendant, was arrested and handcuffed. A search incident to his arrest uncovered a $5 bill, a $10 bill, and a stack of ATM receipts belonging to Robinson, the victim from Westbury Court.

It was Heddy's and Mitchell's call for assistance that Zizwarek responded to when he interrupted his interview with Robinson. When he finished, Officer Zizwarek returned to Robinson's home and asked Robinson to accompany him to Muentner Drive to see if he recognized anyone from the driveway incident. Robinson remained in Zizwarek's car, about twenty feet from where defendant lay on a stretcher. Robinson identified defendant as the perpetrator based on his clothes, rather than his face, although he could not identify defendant in court. Robinson's wallet, with items it contained when it was taken about two-and-one-half hours before, and defendant's Nokia cell phone were recovered from the SUV.

On that same morning, Sergeant Gerard DiDonato came upon a 1992 Oldsmobile on Muentner Drive. It had struck a tree on Opossum Road, and came to rest on Muentner. The address on the auto's registration was the same as defendant's. At around 5:00 a.m., Sergeant DiDonato was detailed to Robert Wood Johnson Hospital to have blood drawn from defendant because a witness had smelled alcohol on his breath. Defendant's blood was found to contain metabolites for cocaine, ingested within a few hours of when the blood was drawn. Sergeant DiDonato then transported defendant back to police headquarters where, at 6:30 a.m., defendant was placed in the processing room and advised of his Miranda rights. Defendant executed a waiver of his rights.

During a preliminary unrecorded interview that lasted about forty-five minutes, defendant said that Robinson pulled out in front of him while driving on Route 206, making him angry. Defendant followed Robinson home, and approached Robinson while he was parked in his driveway, sitting in his car. With his hand underneath his shirt, pretending he had a gun, defendant said to Robinson, "give me what you got." At that point, defendant noticed Robinson's wallet on the console, and reached in and took it. After the robbery, defendant returned to his car and while attempting to find his way to the Princeton area, he disabled his car, but managed to park it on an adjoining street, Muentner Drive. He knocked on doors wanting to use a telephone but to no success. He entered a third house through an unlocked sliding glass door as he saw a police car traveling down the street. Once he was inside, he had contact with the female homeowner, who gave him her car keys and some cash. Defendant said that he held onto the woman's arm to keep her away from the window. Defendant left the house in her vehicle and drove away, hitting the tree in the front yard, losing control of the car and eventually crashing into the police vehicle.

After the preliminary interview, Detective Herrling asked defendant if he would agree to give a tape-recorded statement, and defendant said that he would. Herrling then retrieved the tape recorder from the Detective Bureau, tested it, and brought in another detective, Jim Gill, because departmental policy was that two officers should be present during taped statements. Defendant was then questioned while the interrogation was tape recorded.

Defendant testified in his own defense. According to defendant, he had psychological problems for which he was treated with various medications, but that he had stopped taking his prescribed drugs on the advice of his fiancée. Defendant had ingested marijuana, crack, oxycontin, beer and Jack Daniels on the evening in question. A car, "[a] little too fast [and] . . . furious," cut him off that night, and defendant remembered nothing afterwards. Defendant attributed the facts in his taped statement to the suggestions of Detective Herrling, and defendant said that Detective Herrling had promised to help him if he would give a statement.

The jury credited the State's proofs and, as noted, convicted defendant of robbery, burglary, eluding, theft and obstruction. This appeal follows in which defendant, through counsel, raises the following issues:

I. THE ADMISSION OF MR. STACKHOUSE'S RECORDED CONFESSION, WHICH HAD BEEN PRECEDED BY A DELIBERATELY, UNRECORDED INTERROGATION, DEPRIVED MR. STACKHOUSE OF A FAIR TRIAL.

II. THE TRIAL COURT'S INSTRUCTIONS CONCERNING THE DEFENDANT'S RECORDED STATEMENT WERE INADEQUATE, AND DEPRIVED HIM OF A FAIR TRIAL. (Not Raised Below)

Defendant pro se raises these additional issues in a supplemental brief:

I. DEFENDANT WAS DENIED A FAIR TRIAL BY FAULTY JURY INSTRUCTIONS, WHERE THE TRIAL COURT FAILED TO INSTRUCT THE JURORS THAT THEY MUST ACQUIT HIM IF THEY FOUND HIS INTOXICATION WAS SUCH AS TO RENDER HIM INCAPABLE OF ACTING PURPOSELY OR KNOWINGLY.

II. DEFENDANT WAS DENIED A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT, WHEN THE PROSECUTOR REPEATEDLY USED AS EVIDENCE THE $100 GIVEN TO DEFENDANT BY [MRS. G.] TO GET HIM TO LEAVE HER HOME QUICKLY, EVEN THOUGH THERE WAS NO CHARGE BY THE GRAND JURY OF THE $100 BEING AN "ELEMENT" OF THIS ROBBERY CHARGE.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.

Defendant's principal contention is that the deliberate choice of the police to electronically record only the end product of his interview and not the entire interrogation violated his due process and fair trial rights. In response, we need only refer to the Court's contrary decision in State v. Cook, 179 N.J. 533 (2004), finding no such constitutional right to the electronic recordation of custodial statements. Id. at 559-60. The interrogation here in issue occurred on June 14, 2004, only one month after the Cook decision on May 10, 2004, and thus the manner in which defendant's statement was taken and recorded comported with the highest standards of the time. See State v. Domicz, 188 N.J. 285, 297 (2006).

Nevertheless, defendant contends that the only reason for the partial taping in this case was to proselytize him into saying what the police wanted him to say off-camera. This contention, however, was never raised below nor urged as a ground for suppressing his confession. Instead, at the Miranda hearing, defendant argued that his statements were not knowing or voluntary because he had ingested cocaine, been in a car accident, and had not slept the previous night. The trial judge ultimately rejected this argument in light of credible evidence that defendant had executed waivers of his rights freely and intelligently, and that his statements were logical, coherent and comported with the testimony of several witnesses. For present purposes, however, the contention raised by defendant at the Miranda hearing simply did not call for the court's inquiry into the facts relevant to the issue now being raised for the first time, namely whether the recorded confession was tainted by defendant's preliminary unrecorded statements. As such, the issue is not properly before us on appeal. See State v. Macon, 57 N.J. 325, 333 (1971); State v. Green, 346 N.J. Super. 87, 90-91 (App. Div. 2001); State v. Jordan, 115 N.J. Super. 73, 76 (App. Div.), certif. denied, 59 N.J. 293 (1971). Cf. State v. Herrera, 187 N.J. 493, 501 (2006). That said, we are nevertheless satisfied that defendant's blanket, conclusionary allegation in this regard finds no support in the record as developed in this matter. In sum, defendant's interrogation complied fully with the standards in effect at the time and we find no basis for suppression as a penalty for failure to follow standards not in effect until years later.

We reject, for similar reasons, defendant's related contention, also raised for the first time on appeal, Rule 2:10-2, that the trial judge erred in not fashioning an instruction directing the jury to weigh defendant's recorded statement with caution because there was a pre-tape interview session. Suffice it to say, the judge gave the charges mandated by State v. Kociolek, 23 N.J. 400, 421 (1957), advising the jurors to "'receive . . . [the oral statement] with caution, . . . [based on the] generally recognized risk of . . . [misunderstanding] by the hearer[,]'" and State v. Hampton, 61 N.J. 250, 272 (1972), instructing jurors to determine the credibility of a confession by analyzing it against the circumstances of its elicitation. No more was required under the circumstances.

Finally, we deem defendant's remaining arguments not to require discussion. R. 2:11-3(e)(2).

Affirmed.

In Cook, the Court ordered a "study of whether and how to implement the benefits of recording electronically part, or all of custodial interrogations." 179 N.J. at 561 (emphasis added). As a result, Rule 3:17 governing electronic recordation was adopted on October 14, 2005, requiring start-to-finish recordation for homicide investigations effective January 1, 2006, and one year later for all other offenses specified in the rule. Thus, the rule requiring start-to-finish recordation for statements pertaining to crimes like defendant's was not in effect until two-and-one-half years after his interrogation.

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A-1254-06T4

November 1, 2007