STATE OF NEW JERSEY v. ALBERT W. WESSEL

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1303-05T41303-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT W. WESSEL,

Defendant-Appellant.

________________________________________________________________

 

 
Submitted January 30, 2007 - Remanded

Resubmitted May 7, 2007 - Decided

Before Judges Skillman, Holston, Jr. and Grall.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-09-1830-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Bergen County Indictment No. 03-09-1830-I, filed September 26, 2003, charged defendant, Albert Wessel, with murder, contrary to N.J.S.A. 2C:11-3(a)(1) and (2) (count one); felony murder, contrary to N.J.S.A. 2C:11-3(a)(3) (count two); first-degree armed robbery, contrary to N.J.S.A. 2C:15-1 (count three); second-degree armed burglary, contrary to N.J.S.A. 2C:18-2 (count four); third-degree burglary, contrary to N.J.S.A. 2C:18-2 (count five); fourth-degree theft of movable property, contrary to N.J.S.A. 2C:20-3 (count six); third-degree possession of a weapon, a golf club, for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count seven), and fourth-degree unlawful possession of a weapon, a golf club, under circumstances not manifestly appropriate for its lawful use, contrary to N.J.S.A. 2C:39-5(d) (count eight).

A trial was held from June 15 through July 13, 2005, before a jury. The jury convicted defendant of counts one, two, three, four, five, seven and eight, and of the lesser included disorderly persons offense of theft (count six).

The judge merged count two into count one, count five into count four, and count six, count seven, and count eight into count three. On count one, defendant was sentenced to life imprisonment with thirty years parole ineligibility; on count three, to a consecutive fifteen years imprisonment, with 85% to be served without parole, and on count four, to a concurrent seven years imprisonment, with 85% to be served without parole. Defendant appeals his conviction and sentence. We affirm.

The following evidence was presented at trial. The victim, Edwin Parker, age eighty-seven, lived alone in a first floor garden apartment in Lodi. On June 10, 2001, a neighbor contacted the Lodi police after not having seen Parker for the previous three or four days.

Sergeant John Dorans responded to Parker's apartment at 6:54 p.m. When he entered the unlocked front door, he saw the victim lying in his bed, covered with a blanket. It was clear the victim was dead, as a result of which Dorans notified headquarters.

Bergen County Medical Examiner, Dr. Sundandan Singh, responded to the scene as did Detectives Dennis Suarez and Gerard Dargan of the Bergen County Prosecutor's Office Homicide Squad. Suarez and Dargan conducted an investigation of the crime scene looking for evidence. In the bedroom there was blood on both sides of the bed, on the ceiling, on the headboard, on the wall behind the headboard and on the door. On top of the pillow was a green knit cap, stained with what appeared to be blood. Next to the cap was a bone fragment. On the second shelf of the closet, the officers found a ten inch crescent pipe wrench and a metal hammer with a rubber handle. Detective Suarez seized the wrench and the hammer because they both had the weight to cause the injuries inflicted on Parker, and they both appeared to have blood stains.

On June 11, 2001, Dr. Singh performed an autopsy on Parker. He opined that Parker had died twenty-four to forty-eight hours earlier. Dr. Singh determined that the body received at least ten to twelve blows. There were numerous compound and comminuted fractures. The effects of the blows were clearly visible. The brain was severely lacerated. The nose was broken, as was the upper jaw. The cause of death was "massive blunt trauma of the head, neck and upper thorax." When shown the hammer and wrench, Dr. Singh believed they could have been used to cause the injuries. In April 2004, after defendant's arrest, Dr. Singh examined a golf club and stated he could not exclude it as a potential weapon used in the murder.

There were no signs of forced entry into the apartment. The police believed a burglary had occurred as several bedroom dresser drawers had been opened, and a jewelry box, and button box were found tossed on the floor. Although there were two VCR tapes on top of the television, there was no VCR.

Parker was well-known throughout the apartment complex and was often seen feeding the squirrels, birds and cats in the neighborhood. Parker never locked his door; rather, while the screen door might be closed, the main door to the apartment always would be open.

Elsa Fouskey, and her then husband, Luis Acosta, were next door neighbors of Parker and remained friends with him even after they moved from the complex in 1994. Acosta had sold a VCR to Parker around 1991, which he always kept on top of his television. Fouskey last saw Parker when she went to his apartment on June 5, 2001. The VCR was on the television at that time. Fouskey also noticed that Parker had a golf club in the bedroom in a bucket, which looked to her to be an iron.

An analysis of Parker's caller ID showed that several calls had been made to him from the Passaic County jail. The calls were traced to inmate Cynthia Rodriguez. Rodriguez met Parker in the summer of 2000. She was a prostitute and at times sold herself to Parker. In addition, she became friends with him, helped him around the apartment and visited him two to three times a week. Rodriguez also noticed a golf club in Parker's bedroom.

Rodriguez asked Parker for money on various occasions and sometimes he would give her twenty dollars "for no reason at all." On other occasions, she saw money lying around his apartment and took it without his knowledge. Rodriguez used most of the money Parker gave her for crack cocaine.

Rodriguez met defendant in April 2001, after which they began "dating," getting high together and engaging in sex. She stopped seeing him on May 22, 2001, when defendant told her his girlfriend, Robin Velardo, was out of jail and that he was reconciling with her. Rodriguez did not know Velardo.

Prior to their breaking up, defendant accompanied Rodriguez on two occasions to Parker's apartment so she could get money in order to buy cocaine and get high. On the first occasion, defendant met Parker when Parker came out of his apartment to say hello to him before Parker gave Rodriguez twenty dollars. The second time, while defendant was waiting for Parker to take Rodriguez to the bank to withdraw some money, Rodriguez came out of Parker's apartment and handed defendant a beer. When Parker came out, he saw defendant.

When Velardo was released from prison in May 2001, following her arrest for prostitution, defendant told her that Parker was Rodriguez' "sugar daddy" and that he accompanied Rodriguez to Parker's house to get money for Rodriguez. Velardo testified that one time she was with defendant when he drove to Parker's house to obtain money to help Rodriguez get herself out of some trouble. According to Velardo, she stayed in the car while defendant walked up to the house and got the money. Once they had the money, she and defendant bought some crack and smoked it. Defendant told Velardo that the door to Parker's apartment was always open.

By June 2001, Velardo had been going out with defendant for approximately six years. During the previous few months, she lived with defendant, his mother and his brother in their home in Garfield. Velardo acknowledged engaging in prostitution to earn money to support her long standing drug addiction to crack cocaine, which cost $300 to $400 a day.

Velardo testified that on a night between June 7 and June 10, 2001, defendant left his mother's house in his mother's red Ford between 10:00 p.m. and midnight. Defendant told Velardo he was going to get some money at Rodriguez' "sugar daddy's house" in order to purchase crack cocaine. Velardo stated that when defendant returned, defendant said, "he woke up, I killed him." The defendant did not indicate who had awakened, but she assumed it was Parker. Defendant told Velardo he had killed the victim by hitting him on the head with a golf club, and took six dollars, a VCR and some used stamps. Defendant told Velardo to get rid of the stamps so she flushed them down the toilet. After taking a shower, defendant put his clothes in a bag and left. He told Velardo he threw the clothes in a dumpster in Clifton before going to Paterson to buy crack.

Velardo never saw the defendant with a golf club or a VCR when he returned that evening. However, defendant told Velardo at some point that he got rid of the VCR by throwing it away. He repeatedly told her he killed the man because he "woke up."

Velardo and defendant constantly fought, and she often threatened to call a homicide detective "just to piss him off." In retaliation, defendant told her he would tell the police she had driven the car on the night he killed the victim, and that his mother and brother would swear to that fact. She and defendant subsequently moved to an apartment in Paterson. The fighting between them continued until she was arrested on outstanding warrants.

Jose DiPini testified that in March 2003, he met defendant, when DiPini was looking for work. Defendant, who did carpeting, was able to provide work for DiPini on three separate occasions. The men also shared crack, eventually every day. They bought their drugs from the same drug dealers in Paterson, and got high in defendant's Paterson apartment. On April 7, 2003, DiPini got into a dispute with a drug dealer, which was witnessed by defendant. Defendant asked DiPini, "[Do] you want me to take care of that situation for you?" DiPini declined but defendant stated, "[w]hat's the matter, you never killed anybody. I have."

Two weeks later, DiPini was present during an argument between defendant and Velardo in which Velardo indicated she was tired of cleaning "his messes." When DiPini asked what Velardo meant by "messes," defendant answered "that thing," which DiPini took to mean the homicide.

Sometime thereafter, when DiPini was headed home from defendant's apartment, he saw Velardo and asked her why he did not see her there. She replied that she was scared to return because she had already been away from the apartment for a long time that day. DiPini saw that Velardo was terrified of defendant, so he asked her what had happened, and she told him that defendant had murdered an older man.

DiPini went to defendant's apartment on May 3, 2003, and was told by defendant that the police had come to the apartment the night before. DiPini described defendant as paranoid. He had not opened the door, and feared that Velardo, who was in the Bergen County Jail, was talking "to the wrong people." Defendant stated that the police had been coming to his mother's house and wanted to take a DNA swab from him. He speculated the police might have found something at the scene that could be matched to him. Although defendant told DiPini he had killed an older man, he would "clam up" when DiPini asked for details. On May 6, 2003, DiPini approached Garfield Police Detective Williams to tell him what he had been told by defendant about the murder and eventually gave a statement to members of the Bergen County Prosecutor's Office. He testified, at trial, that no promises had been made to him in exchange for his testimony, although he was serving a sentence at a halfway house at that time. Further, DiPini testified that he and defendant both had an intimate sexual relationship with Velardo.

As a result of DiPini's statement to Williams and members of the prosecutor's office, Velardo was questioned by detectives at the prosecutor's office on May 7, 2003, about her knowledge of defendant's alleged involvement in Parker's death. At that questioning she told the detectives of the details of the murder as told to her by defendant. Velardo informed the detectives that defendant told her he used a golf club as the murder weapon and stole Parker's VCR. Dargan reviewed a photograph of the scene and saw that the VCR was missing. At trial, Velardo confirmed that she spoke to detectives from the prosecutor's office after being arrested in May 2003. She stated that she was not promised any benefit for testifying and just wanted to be done with this matter.

On May 8, 2003, defendant was arrested at his Paterson apartment and was housed in the Bergen County Jail in the lock down unit. Richard Greenwald, who was arrested on March 5, 2004, was in the Bergen County Jail due to his inability to post bail. Greenwald testified that on Sunday, March 14, 2004, he was removed from his cell between 9 and 10 a.m. to attend a church service. Greenwald testified defendant approached him while in line and told him he had been arrested by the Bergen County Prosecutor's Office, and that he had read in the newspaper that Greenwald had been as well. Greenwald confirmed that fact, and defendant told Greenwald that his arrest was for murder. Defendant added that he killed somebody but that there was no evidence due to the lack of DNA matches. Defendant declared that if he were released, "he was going to kill the whore that put him there" because she "[r]atted him out." Defendant did not name the woman.

Greenwald called Detective McMorrow of the prosecutor's office, the officer who had arrested him, because he did not want anyone else to get killed and defendant "seemed pretty confident" about wanting to kill someone when he was released. On March 19, 2004, Greenwald gave a statement, which said defendant "told me that he killed an old man and he was going to kill somebody else." Greenwald's pending charges, for which he had yet to be indicted, were kidnapping, burglary, and armed robbery. His bail was reduced at arraignment, but he did not know the reason. The court informed the jury that his $1,000,000 bail had been reduced twice, in March 2004 to $500,000 and then in April 2004 to $100,000.

Prior to trial, a suppression hearing was conducted pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), to determine the admissibility of statements made by defendant to the police on July 17, 2001. The court determined that although no Miranda warnings were given the statements were admissible because they had not been the result of a custodial interrogation.

During the pendency of this appeal we remanded this case to the trial court to make specific findings regarding the circumstances of defendant's interrogation and to reconsider in light of those findings whether his statements were the product of custodial interrogation. By letter opinion dated May 7, 2007, the court, in accordance with our remand, made specific findings determining that the statements were admissible as they were not a result of custodial interrogation.

At trial no physical evidence linked defendant to the scene, but Velardo, DiPini and Greenwald testified to the details they claimed defendant told them about the homicide. In addition, the State introduced the defendant's statements to the detectives. Defendant did not testify. Defendant presents the following arguments for our consideration:

POINT I.

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE STATEMENTS MADE BY THE DEFENDANT TO THE POLICE SINCE THEY WERE MADE WHILE THE DEFENDANT WAS SUBJECTED TO CUSTODIAL INTERROGATION, AND THE TRIAL COURT ERRED IN CONCLUDING OTHERWISE.

POINT II.

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED BY THE PROSECUTOR FROM A POLICE OFFICER WHICH REFERENCED THE DEFENDANT'S REFUSAL TO SPEAK TO THE POLICE ANY FURTHER, THEREBY INFRINGING UPON HIS PRIVILEGE AGAINST SELF-INCRIMINATION UNDER THE NEW JERSEY STATE CONSTITUTION (NOT RAISED BELOW).

POINT III.

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW).

POINT IV.

THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S PRIOR CONVICTION OCCURRING OVER TEN YEARS EARLIER WAS ADMISSIBLE TO ATTACK CREDIBILITY.

POINT V.

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

I.

Defendant contends that the court erred when it determined the statements made by him during his July 17, 2001 interrogation were admissible because they were not the result of a custodial interrogation. Defendant argues that the detectives were required to issue Miranda warnings to him prior to questioning him and that the failure to administer the warnings violated his Fifth Amendment right against self-incrimination and the admission of the statements deprived him of his Due Process right to a fair trial.

After a thorough review of the record, including the factual finding and credibility determinations made by the trial judge in his May 7, 2007 letter opinion on remand, we conclude that the questioning of defendant did not constitute custodial interrogation within the meaning of Miranda. We are convinced, therefore, defendant's statements were properly deemed admissible.

The following evidence was presented at the suppression hearing. Detectives Gregory Kohles and Dargan interviewed Rodriguez several times after the homicide was discovered. She provided the detectives with names and addresses of people with whom she had associated, including defendant's name and address. Consequently, the detectives went to defendant's residence on July 17, 2001, and asked him to come to headquarters to be interviewed. Kohles told defendant they were investigating a homicide and that Rodriguez informed them he had been an associate of hers. Therefore, they wanted to speak to him regarding any information he might be able to provide.

Kohles acknowledged that all of the people involved with Rodriguez "could be possible suspects." Prior to interviewing defendant, Kohles was aware that defendant had driven Rodriguez to Parker's house on at least two prior occasions. He had completed a criminal record check on defendant and knew of his past criminal record. Consequently, defendant was viewed as "a person of interest or a person with information."

Kohles admitted he did not advise defendant that he could refuse to speak with him and Dargan, nor did he offer to question defendant in his own house. Kohles did not recall whether defendant came with them to the prosecutor's office in the police car. Defendant was questioned in an unlocked ten foot by ten foot interview room in the office of the homicide squad of the prosecutor's office beginning at 4:05 p.m. At the beginning of the interview, which Kohles described as a non-custodial factfinding interview, Kohles questioned defendant with respect to where he lived, where he worked, and whether he had a girlfriend, and if so, her name and address. The detectives then asked him about his relationship with Rodriguez, how many times he had gone to Parker's apartment, and whether he had ever gone inside the apartment and met Parker.

Defendant told the officers that he lived in Garfield with his mother and brother and worked as a carpet installer with his father's company, Carpet Wholesalers, in Clifton. Defendant stated that he lived part-time with his girlfriend, who he identified as Gina Pucciarelli of Lakeview Avenue in Clifton. With regard to Rodriguez, defendant revealed that he met her in May 2001, that she was a prostitute, that he paid her for sex, and that he smoked crack with her. Defendant told the detectives that he went to Parker's house about six times, at least twice with Rodriguez, but only entered the apartment once.

Defendant was cooperative during the interview and, at one point, went outside to have a cigarette. However, Kohles was not sure if defendant was by himself or whether detectives accompanied him outside. When the hour and forty minute interview finished at 5:45 p.m., defendant left with his brother, who was waiting for him in the lobby.

Anthony Wessel (Anthony), defendant's brother, testified that at some point on July 17, 2001, two detectives came to the Wessel residence and asked him if his brother were there. When Anthony indicated he was, they told him to get him and he did so, bringing defendant to the door. Anthony remained inside the house while defendant was outside speaking with the detectives for less than twenty minutes. Defendant then came back inside the house and told Anthony, "I have to go down with them." Anthony asked defendant, while the four of them were within a few feet of each other, if they could simply follow the detectives down to headquarters. Defendant then asked if he and his brother could do so, but was told "no, he's coming with us and that was it." Consequently, Anthony followed the two officers and defendant in his own vehicle. Defendant was placed in the back seat of the police vehicle.

In his May 7, 2007 letter opinion in response to our remand, the trial judge made the following findings:

I find to be credible, the testimony of Detective Kohles in indicating that he wished to question the defendant only as an information gathering process and not as a custodial one. . . . I also find that based on the observations made by this Court concerning the demeanor of Detective Kohles as he testified to this Court and the content of his testimony in conjunction with any reports that he may have submitted, that his testimony was credible and truthful. I find further, based upon the testimony that [defendant] was not ordered to come to the Prosecutor's Office, nor was he told that he was a suspect in this homicide. . . . I further find that under no circumstances was the defendant told that he could not drive to the Prosecutor's Office with his brother or that he had to drive with the detectives. I find this to be in direct contradiction to the testimony of Anthony Wessel who indicated that his brother . . . drove down to the Prosecutor's Office with the detectives as per their order and that the defendant was not allowed to travel with his brother Anthony Wessel down to the Prosecutor's Office. . . .

I find it more likely than not that the Detective Kohles' recollection that the defendant did travel with his brother is most probably what did occur, but I do not find at all credible the testimony of Anthony Wessel when he concluded that the defendant traveled with the detectives as per their order and that he could not, even if he wished, travel with his brother Anthony Wessel in his vehicle. I find just the opposite to be true. . . . [I find] Anthony Wessel's testimony is self serving with respect to his brother's circumstance.

I further make the following findings based again upon the observations made by the court of both witnesses as they testified and the content of the testimony. I find that it was the desire of Detective Kohles and Detective Dargan to ascertain the defendant's relationship, if any, to Cynthia Rodriguez and the victim, and the defendant was not at that time a suspect of the homicide of Mr. Parker. I find that they communicated that fact to the defendant and made it clear that he was not being ordered to go the Prosecutor's Office. In fact, I recite the testimony of Detective Kohles where he stated that if the defendant refused to go the Prosecutor's Office "there was nothing he could do about it." This factor underscores Detective Kohles' position that he communicated to the defendant that this was not a custodial setting but an information gathering situation in which the defendant was not a suspect in this investigation nor the focal point of it in any way. As indicated, I find as a fact that the defendant could have driven with his brother to the Prosecutor's Office and that in fact he did ride with Anthony to the Prosecutor's Office based on all of the circumstances of the testimony that I have reviewed, including my notes. . . .

I find further that the interview of the defendant was a non-custodial information gathering interview, conducted in a very relaxed, informal setting and that the door to the interview room was always unlocked. . . . I find further that at no time was defendant restrained, or in handcuffs, and he was free to leave at any time he wished to and was not being forced to do anything which included even showing up at the interview as previously indicated. I find further that during the interview the defendant took a cigarette break and went outside of the Prosecutor's Office to in fact smoke the cigarette. I find this to be in direct contradiction to the testimony of defendant's brother Anthony Wessel who indicated that his brother did not leave the Prosecutor's Office to smoke a cigarette.

I do not find . . . that Anthony Wessel's testimony is credible based not just on the content of what was stated but in the manner in which it was testified to based on my own observations and notes of the witness. Anthony Wessel's demeanor on the witness stand, ability to recite facts that were over four years old without hesitation and his fidgety nature on the witness stand indicate to me a lack of truthfulness. It is clear to this court based upon all of the circumstances of the testimony of Detective Kohles compared to that of Anthony Wessel that this was not a custodial setting. The defendant, as any reasonable person in this situation would have believed, was free to leave the Prosecutor's Office before the detectives finished questioning him and in fact was not required to go with them and could have refused to do so. . . .

. . . .

Based upon these findings which I have expanded from the pervious hearing of June 7, 2005, the court finds conclusively that the interview of the defendant . . . did not focus on him as a suspect, that he was always free to leave during the interview, and that there was no credible evidence given other than the incredible testimony of his brother Anthony to the contrary. As a result, this court find that based upon the totality of the circumstances and the witnesses credibility that I have assessed from this hearing, I find that a reasonable person in the [defendant's] circumstances would believe that he was free to leave the prosecutor's office throughout the interview and in fact did not have to go to the interview in the first place. The interview was not a custodial one and therefore the guarantees provided by Miranda v. Arizona, do not apply. This was a non-custodial interview.

[Emphasis added.]

Pursuant to Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706, certain warnings are required to be given when an individual is subjected to custodial interrogation by law enforcement officers. Custodial interrogation is defined in Miranda as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Ibid. In State v. P.Z., 152 N.J. 86, 102 (1997), the Court stated that "a custodial interrogation by law enforcement officers is inherently coercive, automatically triggering the Fifth Amendment privilege against self-incrimination."

In this case there is no question that the detectives interrogated defendant. They asked him questions about his personal background and his relationship with Rodriguez and Parker. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 307-08 (1980) (where the Supreme Court stated that interrogation "come[s] into play whenever a person in custody is subjected to either express questioning or its functional equivalent"). The issue in this case is whether the trial court erred in determining defendant was not in custody when he was being questioned by Kohles and Dargan on July 17, 2001.

"The test of whether an individual is in custody for Miranda purposes is an objective test, which focuses on the totality of the circumstances." State v. Messino, 378 N.J. Super. 559, 576 (App. Div.), certif. denied, 185 N.J. 297 (2005). Factors used in determining custody "include the time and place of the interrogation, the length of the interrogation, the conduct of the interrogators and the status of the suspect." Ibid. "Custody must be determined based on how a reasonable person in the suspect's situation would perceive his circumstances." Yarborough v. Alvarado, 541 U.S. 652, 662, 124 S. Ct. 2140, 2148, 158 L. Ed. 2d 938, 951 (2004). The subjective views of the detainee or the interrogating officer are not determinative of custody. Yarborough, supra, 541 U.S. at 663, 124 S. Ct. at 2148-49, 158 L. Ed 2d 950-51. "[T]he court must apply an objective test to resolve the ultimate inquiry [for custody purposes:] was there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Yarborough, supra, 541 U.S. at 663, 124 S. Ct. at 2149, 158 L. Ed. 2d 951 (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465, 133 L. Ed. 2d 383, 394 (1995) (internal quotation marks omitted)). "Custody exists if the action of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he could not leave freely." Messino, supra, 378 N.J. Super. at 576 (quoting State v. Coburn, 221 N.J. Super. 586, 596 (App. Div. 1987)); see also State v. O'Neal, ___ N.J. ___ (2007) (slip op. at 27).

This court's review of the trial court's decision is limited. State v. Johnson 42 N.J. 146, 161 (1964). We must
"give deference to the 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," i.e., the court's credibility determinations. Ibid; see also State v. Locurto, 157 N.J. 463, 474 (1999) (stating, "[a]ppellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.").

We must "determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. The Supreme Court added, "[w]hen the reviewing court is satisfied that the findings and result meet this criterion, its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal. That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.

We are convinced, giving deference to the court's factual findings completely discrediting Anthony's testimony and crediting the testimony of Detective Kohles in its entirety, that a reasonable person in defendant's circumstances would not feel that he was in custody. Initially, we note that the evidence upon which defendant's conviction was ultimately based, including his very inculpatory statements to Velardo, had not yet come to the attention of the detectives on the date they interviewed defendant. Essentially, all they knew was that defendant had been an associate of Rodriguez and had visited Parker with her at Parker's house on at least two prior occasions. Defendant was asked to accompany the officers to the prosecutor's office. He was not compelled to go with them. Nor was he required to accompany them in the police car. Defendant was never restrained or in handcuffs. His brother was permitted to remain in the lobby at the prosecutor's office until defendant's interview was completed. No formal statement was ever taken of defendant. When the defendant asked for a cigarette break he was provided with one. Further, the door to the interviewing room was never locked. At the end of the interview, defendant left with his brother Anthony.

Under these circumstances, we are satisfied that defendant was not in custody when he was being questioned by the detectives as the actions of the detectives and the surrounding circumstances would lead a reasonable person in defendant's position to believe he could "leave freely." See Messino, supra, 378 N.J. Super. at 576. Therefore, we are convinced that the detectives were not required to administer Miranda warnings before or during this interrogation. As a result, defendant's July 17, 2001 statements were properly deemed admissible.

II.

Defendant claims the court erred by allowing Kohles to testify that defendant refused the State's request for a second interview. He argues that the testimony was a reference to his silence, which was inherently prejudicial and was compounded by the prosecutor's comment in summation. Kohles indicated he returned to defendant's residence on August 10, 2001, because he had been unable to verify certain of the information previously given by defendant regarding his girlfriend. Accordingly, he and Dargan asked defendant if he would accompany them to headquarters to be reinterviewed. Defendant declined to do so.

When the prosecutor asked Kohles if he requested defendant to accompany them to headquarters for further questioning in order to eliminate him as a suspect, Kohles indicated he did. When asked what the defendant's response was, Kohles stated: "That he was afraid of something he might say might get him into trouble." Defense counsel did not object. Defense counsel had Kohles repeat those comments during cross-examination. Counsel sought to make the point that the reason defendant lied about his girlfriend's name was his concern for any adverse consequences to her, because he knew she had an outstanding warrant for her arrest.

A defendant's silence "cannot be used against him in a criminal trial," which means that the prosecutor may not comment on it and may not elicit references to it from witnesses. State v. Muhammad, 182 N.J. 551, 558, 565 (2005). Here, defendant was neither in police custody nor at or near the point of arrest when Kohles and Dargan asked him if he would consent to be reinterviewed. Additionally, defendant was not responding to an interrogation when he informed the detectives he would not go to police headquarters for a second interview. Thus, the comment defendant volunteered "that he was afraid something he might say might get him into trouble" was not silence. See State v. Adams, 127 N.J. 438, 457 (1992) (Handler, J., concurring) (quoting Wayne R. LaFave & Jerold H. Israel 1 Criminal Procedure 6.7(d), at 514 (1984) (stating "[v]olunteered statements of any kind are not barred by the Fifth Amendment.")) We are convinced, therefore, that defendant's statement was properly elicited and properly commented upon by the prosecutor in summation. See State v. Ripa, 45 N.J. 199, 203-04 (1965).

Moreover, the jury knew that despite defendant's refusal to grant another interview, as well as his acknowledgment of having given false information to the police as to his girlfriend's correct name, he was not arrested by the detectives. Indeed, as Kohles testified, the officers contacted defendant again on November 22, 2002, to ask him to provide a buccal swab. Even though defendant said he would get in touch with the officers about that request, he never did.

It was not until May 7, 2003, after DiPini's statement was given and after finally locating and interviewing Velardo, that a warrant was issued for defendant's arrest. Further, defendant made a similar statement to DiPini as to why he did not return the request of the police for a DNA sample, which clearly was admissible in evidence.

We are convinced that Kohles repeating of defendant's response to his request for a reinterview did not violate defendant's right against self-incrimination. We are equally convinced defendant suffered no prejudice, given the substantial evidence of his guilt contained in the testimony of Velardo DiPini and Greenwald, and the ambiguity of the comment.

III.

Defendant claims that the court erred by allowing the prosecutor to make prejudicial comments in summation. One of defendant's counsel's objections during the prosecutor's summation was in response to his opening comment that "I think I have to clear up a few things that [defense counsel] said, a few misleading things." The court sustained the objection and instructed the prosecutor to make his points without saying "misleading."

During his summary of the evidence, the prosecutor attributed defendant's "lie" about Velardo's real name to defendant's fear that Velardo would tell the police the crime details that he had told her. He asserted that defendant refused to volunteer other information that might have identified her:

No, because he was afraid, he was afraid that she would talk, tell law enforcement of what he told her. That's why he gave the wrong name. That's why he lied about it. That's why he wouldn't give any information. That's why he gave the wrong address. That is why. And he refused to give any information. That's why.

The prosecutor ended his summation by describing Parker as an old man who tried to be useful, who had the community's regard, who tried to help people, and who died because defendant was stealing from him and did not want to get caught.

The prosecutor's summation "must be limited to the facts in evidence and inferences reasonably to be drawn therefrom." State v. Bey, 129 N.J. 557, 620 (1992), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995). Nonetheless, a prosecutor is expected to make a vigorous and forceful closing argument to the jury, State v. Nelson, 173 N.J. 417, 460 (2002), and is permitted wide latitude in summation. State v. Kelly, 97 N.J. 178, 218 (1984). "'[C]omments by way of denunciation or appeal'" do not justify reversal if they are "'merely descriptive of the proofs adduced at trial.'" State v. Chew, 150 N.J. 30, 84 (1997) (quoting State v. Marks, 201 N.J. Super 514, 534 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986)), cert. denied, 528 U.S. 1052, 120 S. Ct 593, 145 L. Ed. 2d 493 (1999).

Accordingly, a prosecutor's comments in summation do not justify reversal unless they were so egregious that they deprived the defendant of a fair trial by "substantially prejudic[ing the] defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515 575-76 (1999). The prosecutor's comments are to be "viewed in the context of the entire record." Bey, supra, 129 N.J. at 620.

After a thorough review of the summations of both defense counsel and the prosecutor, we are convinced that the prosecutor's reference to "a few misleading things" was brief and isolated, and that it was further mitigated by the court's prompt corrective directive to the prosecutor in response to the objection. See State v. Watson, 224 N.J. Super. 354, 362 (App. Div.), certif. denied, 111 N.J. 620, cert. denied, 488, U.S. 983, 109 S. Ct. 535, 102 L. Ed. 2d 566 (1988).

Similarly, while appeals to sympathy are "clearly improper" because they "focus the jury's attention on irrelevant and prejudicial facts," Brodsky v. Grinnell Haulers, Inc., 362 N.J. Super. 256, 265-66 (App. Div. 2003), aff'd in part, rev'd in part on other grounds, 181 N.J. 102 (2004), they do not necessarily have the capacity to cause prejudice if they are mild and fleeting. State v. Marinez, 370 N.J. Super. 49, 55 (App. Div.), certif. denied, 182 N.J. 142 (2004). We are satisfied that the prosecutor's description of Parker as a kindly and well-liked old man who fed stray cats and other animals was not "clearly capable" of affecting the verdict, because it simply repeated without exaggeration Fouskey's and Rodriguez's testimony of how Parker helped the animals and the testimony of neighbors about other aspects of his character.

Finally, the prosecutor's comments about the "lie" that defendant told the police concerning Velardo's identity was a reasonable inference from the evidence. Defense counsel in his summation argued for a different inference to be drawn from the evidence when he stated that defendant lied because "he didn't want [Velardo] being found," since there was a warrant out for her arrest and he wanted to protect her. We are thus satisfied that the prosecutor's comments were a proportionate response to defense counsel's treatment of the subject. State v. Engel, 249 N.J. Super. 336, 379 (App. Div. 1991).

We are also satisfied that the prosecutor's adding of the brief phrase, "[a]nd he refused to give any information," although better left unsaid, given the totality of the summation, did not have the clear capacity to be prejudicial. To determine whether the prosecutor's remarks were directed at a defendant's failure to testify, a reviewing court must analyze "whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." United States v. Fleishman, 684 F.2d 1329, 1343 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S. Ct. 464, 74 L. Ed. 2d 614 (1982); see also State v. McElroy, 96 N.J. Super. 582, 585-86 (App. Div. 1967). We are of the view that the prosecutor's remark cannot be construed as a comment upon defendant's right to remain silent. Rather, with regard to this challenged remark, the prosecutor tied his comment to the testimony of various witnesses and defendant's statements to the detectives and thus did not have the capacity to deny defendant a fair trial.

IV.

Defendant claims that the court erred by ruling that his prior conviction for theft from a person would be admissible to impeach his credibility if he testified. He argues that the prior conviction was too remote and too low in degree to merit such use because it was for a third-degree offense on which he was originally sentenced to probation, because it preceded the trial by eleven years, and because the conduct involved occurred thirteen years before trial.

Defendant was convicted of theft from the person and on September 30, 1994, was placed on probation for five years. He violated probation and was sentenced to state prison in 1995. On December 4, 1996, defendant was paroled. The court ruled that the theft conviction, without reference to the particular crime, would be admissible should defendant testify.

Prior convictions of a defendant are admissible for impeachment purposes should a defendant testify at trial. N.J.R.E. 609. The admissibility of criminal convictions rests in the sound discretion of the trial court. State v. Brunson, 132 N.J. 377, 384 (1993); State v. Sands, 76 N.J. 127, 144 (1978). Ordinarily evidence of prior convictions is admissible and "the burden of proof to justify exclusion rests on the defendant." Sands, supra, 76 N.J. at 144.

We are satisfied the court properly exercised its discretion in ruling defendant's prior conviction admissible. Defendant's conviction was only seven years from the date of these crimes and his release from prison was only five years from that date.

V.

Defendant claims that the court erred by imposing an excessive sentence of life imprisonment with thirty years parole ineligibility for murder. Defendant concedes the existence of two of the aggravating factors found by the court, N.J.S.A. 2C:44-1(a)(2), the seriousness of the harm inflicted on the victim, and N.J.S.A. 2C:44-1(a)(9), the need for deterrence. He argues that his prior record was an inadequate basis for the other two aggravating factors, which were N.J.S.A. 2C:44-1(a)(3), the risk that he would commit another offense, and N.J.S.A. 2C:44-1(a)(6), the extent of his record in conjunction with the seriousness of the offenses. Defendant also contends his record was an insufficient basis for the court to reject the mitigating factors that he had led a law abiding life for a substantial period and that his character and attitude made another offense unlikely.

An appellate court has a limited role. The standard of review is one of great deference. State v. Dalziel, 182 N.J. 494, 500 (2005). A sentence will be affirmed unless the court finds that the aggravating and mitigating factors found were not supported by the sentencing guidelines or that the sentence imposed is so unreasonable as to shock the judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

In imposing sentence, the judge found four aggravating factors: the brutal nature of the offense against a victim incapable of resistance, N.J.S.A. 2C:44-1(a)(2), the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3), defendant's prior record, N.J.S.A. 2C:44-1(a)(6), and the need to deter, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors.

Clearly, the brutality of this murder against a defenseless eighty-seven year old man who was either asleep or just awakened supports a finding of N.J.S.A. 2C:44-1(a)(2). Defendant's prior record, while not extensive, and his admitted extensive use of crack cocaine, show that he was at risk to commit another offense whenever he needed money to feed his addiction. Thus, the finding of aggravating factor N.J.S.A. 2C:44-1(a)(3) is supported by the record. Clearly, the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9), considering the violent crimes of murder and armed robbery used as a means of obtaining money, was supported by the record. Only N.J.S.A. 2C:44-1(a)(6) was arguably not supported by the record.

The judge found that there were no mitigating factors. Defendant admittedly smoked crack cocaine and accepted sex from a prostitute in return for money. We are satisfied that the court did not abuse its discretion in declining to find defendant led the law abiding life contemplated by N.J.S.A. 2C:44-1(b)(7) and that his character made it unlikely he would commit another offense. N.J.S.A. 2C:44-1(b)(9).

Murder has no presumptive term, so "the standard range for murder is a sentence between thirty years and life imprisonment." State v. Abdullah, 184 N.J. 497, 507 (2005). The court has the "discretion to impose a sentence within the statutory range of thirty years to life based on its consideration of [and balancing of] the applicable sentencing factors." Id. at 508. Since the aggravating factors, even if N.J.S.A. 2C:44-1(a)(6) were eliminated, substantially outweigh the non-existent mitigating factors, we are satisfied the judge properly imposed a life sentence for the murder with thirty years parole ineligibility.

Defendant also argues that the trial court abused its discretion in imposing a consecutive fifteen year term for the armed robbery. Defendant argues that the sentence for the robbery should have been concurrent because it occurred within a matter of minutes as part of the same episode as the murder, and did not involve a separate act of violence. The court imposed a sentence of fifteen years for the first-degree robbery with a minimum 85% term of parole ineligibility. It made the sentence consecutive to the murder sentence "because of the nature of this particular incident; the robbery was a separate event from what else occurred in Parker's apartment." The court also imposed a concurrent term of seven years for the second degree burglary with a minimum term of 85%, and merged all the other convictions into those counts.

The court imposed the former presumptive term for the robbery. As respects the robbery sentence, our criminal code emphasizes "proportionality and just deserts." State v. Carey, 168 N.J. 413, 422 (2001); State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The Supreme Court has repeatedly affirmed a sentence for first-degree robbery that was made consecutive to the sentence for the murder that the defendant committed as part of the same episode. See State v. Diloreto, 180 N.J. 264, 274 (2004); State v. Koskovich, 168 N.J. 448, 532-33 (2000). In Koskovich, supra, the Court stated, in rejecting the defendant's argument that the robbery was part and parcel of the murder and, therefore, the sentence should be concurrent, "[w]e are satisfied that the robberies and killing were not so intertwined that the court should have imposed concurrent sentences." 168 N.J. 533. Indeed, the Court has observed that it regularly rejects the argument that a consecutive sentence is improper under Yarbough for a robbery that "was 'part and parcel' of the murder." Id. at 532-33. We are satisfied that the trial court did not abuse its discretion in making the defendant's fifteen year term for first-degree robbery consecutive to his sentence for murder, as the overall sentence was consistent with the gravity of the crime committed by defendant.

 
Affirmed.

At the conclusion of the State's case, defendant moved for a judgment of acquittal on all counts. The judge denied the motion except for count six, finding that the State failed to present evidence of value and, therefore, submitted the charge to the jury as a disorderly person's offense.

Gina Pucciarelli was also referred to as Gina Puccarelli in the trial transcripts.

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37

A-1303-05T4

April 17, 2007

June 20, 2007