STATE OF NEW JERSEY v. H.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1762-04T41762-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

H.M.,

Defendant-Appellant.

 

Submitted November 27, 2006 - Decided May 3, 2007

Before Judges Lintner, S.L. Reisner and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County,

01-10-1311.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant H.M., was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and second-degree manslaughter, N.J.S.A. 2C:11-4(b)(1). A fourth charge of felony murder, N.J.S.A. 2C:11-3(a)(3), was dismissed at the conclusion of the State's case. Defendant appeals from the convictions. He also appeals from the seven-year custodial sentence imposed on the second-degree sexual assault conviction, into which the endangering conviction merged, and the eight-year consecutive custodial term imposed on the second-degree manslaughter conviction. Both sentences were subject to the eighty-five percent parole disqualifier required by N.J.S.A. 2C:43-7.2a. We reverse and remand for a new trial.

The charges against the defendant arose from the death of fifteen-year-old H.A., whose body was discovered on February 11, 2001. Defendant, who was then twenty-four years old, confessed that he and the victim were engaged in sexual activity in a bathtub when the victim drowned. Defendant's confession was the sole evidence linking him to the crime. On appeal, defendant attacks the denial of his motion to suppress his confession, objects to several "trial errors," and faults the sentence. Specifically, defendant asserts:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS.

A. FACTUAL INTRODUCTION.

B. THE STATEMENTS MADE BY THE DEFENDANT TO THE POLICE WERE NOT VOLUNTARY SINCE THE TOTALITY OF THE CIRCUMSTANCES DEMONSTRATED THAT THE DEFENDANT COULD NOT, AND DID NOT, KNOWINGLY AND INTELLIGENTLY WAIVE HIS MIRANDA RIGHTS.

C. THE POLICE VIOLATED THE DEFENDANT'S RIGHT TO REMAIN SILENT, THEREBY RENDERING ALL ENSUING STATEMENTS MADE BY HIM INADMISSIBLE.

D. THE STATEMENTS OBTAINED BY THE POLICE FROM THE DEFENDANT OCCURRED IN A CUSTODIAL SETTING LACKING SUFFICIENT PROBABLE CAUSE, REQUIRING THEIR SUPPRESSION.

POINT II

THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING THE ISSUE OF IDENTIFICATION.

POINT III

THE TRIAL COURT ERRED IN DENYING

DEFENSE COUNSEL'S MOTION FOR A MISTRIAL BASED UPON THE COURT'S CONDUCT TOWARD COUNSEL.

POINT IV

THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING ITS DUTY WITH RESPECT TO CORROBORATION OF THE DEFENDANT'S ALLEGED CONFESSION TO THE POLICE. (PARTIALLY RAISED BELOW).

POINT V

THE TRIAL COURT ERRED IN DENYING

DEFENSE COUNSEL'S MOTION TO PRESENT TESTIMONY WHICH WAS RELEVANT AS WELL AS INDICATIVE OF THIRD-PARTY GUILT

PURSUANT TO N.J.S.A. 2C:14-7.

POINT VI

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (PARTIALLY RAISED BELOW).

POINT VII

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

POINT VIII

THE 8 YEAR TERM IMPOSED ON COUNT III IS UNCONSTITUTIONAL SINCE IT EXCEEDS THE MAXIMUM SENTENCE AUTHORIZED BY THE JURY'S VERDICT.

We conclude that defendant's argument in Point IV is meritorious and requires that we vacate the verdict and remand for a new trial. See State v. Reddish, 181 N.J. 553, 621 (2004); State v. Lucas, 30 N.J. 37, 56 (1959).

We take the following recitation of facts from both the hearing on defendant's motion to suppress his confession and the evidence produced at trial. In February 2001, G.A. lived in a one bedroom apartment in Trenton with the youngest of her six children, the victim H.A. G.A. testified that she had last seen her daughter on Tuesday morning, February 6, 2001, when she went to work. When she returned, she found the apartment in disarray, which she initially attributed to H.A. and her friends' "wild dancing." She believed that H.A. was not home because she was "getting her hair done." When H.A. had not returned by Thursday, February 8, G.A. filed a missing persons report. On Sunday, February 11, G.A., attempting to investigate an odor in the apartment, discovered her daughter's body in a closet.

Various investigative leads proved unfruitful. Eventually, G.A. suggested to the police that they consider defendant, with whose family G.A. and H.A. had been friendly. Captain Robert Tedder contacted defendant who agreed to come into the police station on February 20, 2001, the day his name was given to the police. His wife later called to indicate that he could not come to the station and Tedder sent three detectives to defendant's home. The officers received no response when they arrived. On February 21, 2001, however, defendant arrived at the police station at 11:00 a.m. with his wife and child. The officers who were to conduct the interview were Officers McMillan, the lead detective, DiNatale, and Harris. They were not at the police station when defendant arrived and Tedder escorted defendant to an interview room while his wife and daughter remained in the lobby.

When McMillan arrived, he read defendant's Miranda rights to him. Defendant responded that "he understood his rights, that he had heard them before from cop shows on television and from previous dealings with the police." Defendant printed his name on the Miranda form and on the waiver of rights form. During the course of the interview, it became apparent that defendant was providing inconsistent answers to questions. McMillan left the room at approximately 3:00 p.m. and Tedder entered.

Tedder asked defendant if the other detectives had given him his rights, if he understood those rights, if he had been willing to speak to the detectives without a lawyer, and if he was still willing to speak to Tedder. At this point, defendant had not been arrested and no probable cause existed to arrest him. Defendant answered yes to each of those queries. Tedder pointed out many of the discrepancies in the statements defendant had been providing to the police, at which point defendant "broke down and began crying hysterically," ultimately confessing. Tedder told McMillan that defendant had confessed and directed McMillan to take a formal statement. McMillan again read defendant his Miranda rights and defendant signed the form at 5:40 p.m. McMillan then typed a statement in which defendant described initial sexual activities leading to the following events:

So we started having sex in the tub.

So the music was on and it was thumping.

So we were having sex in the tub and during sex she must have slipped down in the tub because the tub had water in it, the next thing I know is that she stopped moving.

So I thought that she must have choked on some water so I took her out of the tub.

I was calling her and calling her but there was no response.

Defendant, unable to revive the victim, said "[s]o I ain't know what to do. Then I saw the door knob I didn't know there was a closet there. So I put her in there. Then I just left." That confession was the only evidence of defendant's involvement in the crime.

At the conclusion of the State's case, defendant moved for a judgment of acquittal claiming that there was insufficient corroboration of his confession to justify a conviction. Defendant correctly asserted that corroboration was necessary. "[A]n uncorroborated extra-judicial confession cannot provide the evidential basis to sustain a conviction for crime." Lucas, supra, 30 N.J. at 51. "[T]he State must introduce independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness." Id. at 56. Moreover, "a defendant [is] entitled to request and receive a charge to the jury on its duty with respect to issues of corroboration." State v. Di Frisco, 118 N.J. 253, 274 (1990).

The judge found sufficient corroboration to withstand the motion and defendant does not attack that finding. Rather, he claims the judge failed to provide a charge explaining to the jury "its duty with respect to issues of corroboration." A trial court's failure to give an unrequested charge is not plain error, at least where the jury is adequately apprised of the standards by which credibility is evaluated. Reddish, supra, 181 N.J. at 621.

Here, however, defendant properly requested the charge. During the charge conference, the following colloquy occurred:

[DEFENSE COUNSEL]: Judge, you know, I didn't bring it up, there is a Lucas charge. They don't identify it as a charge, but it simply talks about adding those additional facts of corroboration into the jury consideration of credibility. If your Honor would be inclined --

THE COURT: I don't really want to do that based on the comments I made about the Lucas decision right here.

[DEFENSE COUNSEL]: Well, if you were going to go on and talk about that, no.

THE COURT: I don't want to have it hanging out there for him and not have any basis to make a decision on bare bones questions of corroboration.

[DEFENSE COUNSEL]: Well, it would just be --

THE COURT: Propose it tomorrow, we will look at it.

The issue was not thereafter raised. We can only speculate what the judge meant by his comments on not wanting "to have it hanging out there for him" and we are not certain why the matter was not thereafter raised. It appears, however, that the judge had made a ruling when he said with respect to a request for a Lucas charge, "I don't really want to do that" and was soliciting only an application for reconsideration when he suggested the matter be raised "tomorrow."

Under these circumstances, we are satisfied that defendant was entitled to have the jury informed as to the necessity of corroboration. It is a basic tenet of our law that

"[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). A court must provide proper instructions to a jury because the "faithful performance of a court's duty of expounding the law for the jury's guidance and instruction, requires a plain and clear exposition of the issues." Id. at 288.

[State v. Jordan, 147 N.J. 409, 421 (1997).]

See also State v. P.H., 178 N.J. 378, 400 (2004) (citing Jordan, supra, 147 N.J. at 421); State v. Marshall, 173 N.J. 343, 359 (2002) ("'clear and correct jury instructions are essential for a fair trial' because the jury charge 'is a road map to guide the jury, and without an appropriate charge, a jury can take a wrong turn in its deliberations.'" (quoting State v. Koskovich, 168 N.J. 448, 507 (2001))); State v. Savage, 172 N.J. 374, 387 (2002) (citing State v. Collier, 90 N.J. 117, 122 (1982)).

In this case, the jury was never charged with respect to the need for corroboration of the confession. The error was particularly harmful in this case because the evidence of corroboration was scant and the requested instruction would have directed the attention of the jury to the necessary element of corroboration when they evaluated the trustworthiness of the confession. See Reddish, supra, 181 N.J. at 621 (assuming that, where the prosecution's principal evidence is a confession, a Lucas charge would "most certainly" be given if requested).

We recognize that the trial judge did provide a generalized instruction with respect to credibility, but he never tied that instruction to corroboration of the confession, as opposed, for example, to the credibility of the witnesses who testified about the events of the investigation. Under these circumstances, the failure to give the instruction deprived the jury of guidance in their evaluation of the credibility of defendant's statement. That failure requires a retrial.

Because the State will seek to introduce the confession on the new trial, we address defendant's claim that the confession was improperly admitted because it (a) was involuntary, (b) was taken after he had invoked his right to remain silent, and (c) was taken while he was improperly detained.

Defendant's first argument regarding his confession is premised on the assertion that his limited intellectual capacity rendered him incapable of a voluntary, knowing, and intelligent waiver of his Miranda rights. A confession obtained in the absence of such a waiver may not be utilized at trial. State v. Timmendequas, 161 N.J. 515, 613 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). A decision as to whether a statement is voluntarily given requires an evaluation of the totality of the surrounding circumstances. State v. Roach, 146 N.J. 208, 227, cert. denied, 519 U.S. 1021, 117

S. Ct. 540, 136 L. Ed. 2d 424 (1996). Those circumstances include both the characteristics of the defendant and the nature of the interrogation. State v. Chew, 150 N.J. 30, 65 (1997). The defendant's age, education, intelligence and mental capacities, the nature of the advice given concerning constitutional rights, the length of the interrogation, and the nature of the questioning are relevant factors. State v. Knight, 183 N.J. 449, 462-63 (2005); State v. Cook, 179 N.J. 533, 563 (2004).

Defendant focused on his mental characteristics, which he argued were insufficient to permit him to make a knowing and intelligent waiver because he could not understand the rights being waived. See State in re S.H., 61 N.J. 108, 115 (1972). The parties produced conflicting expert testimony.

Defendant relied on Dr. Gerald Cook, a forensic psychologist, while the State called Dr. Lewis Schlesinger who is a forensic and clinical psychologist.

Both experts agreed that defendant had a low IQ. Schlesinger placed the IQ at 73, while Cook fixed it at 66. Cook opined that while defendant understood the first two components of the Miranda rights, i.e. the right to remain silent and the possible use of his statements against him, he was unaware of his right to an attorney and his right to stop the questioning. Cook questioned whether those rights were read to defendant, but opined that even if they were, defendant's comprehension level was such that he could not adequately comprehend what was read to him. Dr. Schlesinger disagreed. The judge recapitulated Schlesinger's testimony thusly:

Schlessinger conducted his examination of the defendant on July 2, 2002 - approximately one year after Cook's examination. Schlessinger asked the defendant specifically what was meant by each element of the Miranda warnings. The defendant defined the right to remain silent as, "I don't have to talk. I don't have to say anything." He understood his right to a lawyer and he knew that if he could not afford a lawyer, that a public defender would be appointed. "I had public defenders. I guess they're a lawyer." When asked to explain what it meant to have a lawyer present when questioned, the defendant replied, "My lawyer would be sitting by me." He understood that if he could not afford a lawyer that, "They'd give me a public defender . . . a lot of people told me a public defender works for the prosecutor." He understood the right to stop answering questions at any time: "You don't have to say anything if you don't want to. I could talk if I want to, or I don't have to talk if I don't want to . . . if you don't want to say anything else to them, you leave it at that and don't talk no more." The defendant informed Dr. Schlessinger that he knew when the Miranda warnings were read to him that he was going to be arrested. When asked, "When are you allowed to get a lawyer, Henry?", the defendant responded, "When they charge me with something. I know it's because they say I got a right to remain silent." Schlessinger concluded that based upon his interview of Henry Minus, that defendant understood his Miranda warnings based upon his prior experiences with the police.

As evidence of the defendant's adaptive functioning and life skills, Schlessinger noted that the defendant is capable of speaking clearly and communicating with others, that he can act independently, if wrongly, to obtain money by hustling in the street and selling weed and going to Brooklyn on a train to obtain drugs. He knew how to bag it up and to sell the drugs. The defendant was able to take care of his six-year old daughter and able to cook. Although he possesses minimal intelligence and few academic skills, the defendant was able to do all of those things.

The judge summarized the conflicting testimony:

In summary, Cook concluded that the defendant understood only a portion of the Miranda warnings - the right to remain silent and the right to an attorney; Schlessinger concluded that the defendant understood all of the Miranda warnings. Cook measured the defendant's I.Q. at 66; Schlessinger at 73 with a downward adjustment of three points. Cook opined that because of the defendant's low listening comprehension that he could not have comprehended the Miranda warnings that were given to him. Schlessinger concluded that the defendant knew his Miranda warnings based upon prior experiences with the police and that he understood them at the time of his evaluation.

The judge concluded:

The court finds that the defendant is of minimal intelligence, as supported by the tests conducted by both Cook and

Schlessinger. The difference in the scores is insignificant. The defendant functions in the first to fifth percentile, depending upon the particular test given. The court further finds that the defendant was capable of understanding his Miranda warnings despite low listening comprehension. The defendant's prior experience with the police compensated for the lack of listening comprehension and the court is firmly convinced that the defendant clearly understood the Miranda warnings on February 21, 2001. The defendant is a functioning person able to make day-to-day decisions that constitute ordinary life skills. Given his experience with the law, the court concludes that he comprehended the Miranda warnings given to him and understood the consequences thereof.

We recognize that "the ultimate issue of voluntariness is a legal question requiring independent appellate determination." State v. Burris, 145 N.J. 509, 543 (1996) (Stein, J. concurring)(quoting Arizona v. Fulminante, 499 U.S. 279, 287, 111 S. Ct. 1246, 1252, 113 L. Ed. 2d 302, 316 (1991) (internal quotations omitted). Nevertheless, we are required to give appropriate deference to the trial court's credibility determinations. State v. Johnson, 42 N.J. 146, 161-62 (1964). The suppression hearing was a classic battle of experts. The motion judge determined the State's expert to be the more credible and we have no reason to disturb that credibility determination. Given that determination, we have no warrant to disturb the judge's finding that the confession was given voluntarily.

Next, defendant argues his failure to answer certain questions, although he continued to answer others, constituted an invocation of his right to remain silent, which the police were required to, but did not, honor. Defendant had the right to request that the interrogation cease. Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723. Any invocation of that right "must be 'scrupulously honored.'" State v. Johnson, 120 N.J. 263, 282 (1990) (quoting Michigan v. Mosley, 423 U.S. 96, 103, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313, 321 (1975)). There is no particular manner in which the right must be claimed. "Any words or conduct that reasonably appear to be inconsistent with defendant's willingness to discuss his case with the police are tantamount to an invocation of the privilege against self-incrimination." State v. Bey, 112 N.J. 123, 136 (1988).

The claimed invocation here is the failure to answer a question followed by responses to questions in other areas. McMillan described the procedure by which he conducted the interview with defendant. He testified that "there were times [defendant] didn't answer a question." When that occurred, McMillan "asked the question again" and "[i]f he didn't answer it, I went on to another question." Even if the failure to answer a given question might be construed as a refusal to discuss that issue, the response to questions in other areas evidences that defendant had not sought to terminate the entire interrogation. See United States v. Eirin, 778 F.2d 722, 728 (11th Cir. 1985) (noting that a defendant's "subsequent . . . willingness to discuss selective topics demonstrated a deliberate effort to protect particular information" but did not evidence an invocation of his right to be silent with respect to other areas). The evidence supports the judge's conclusion that, in this case, the failure to answer one question did not rise to the level of even an equivocal assertion of a right to terminate the questioning. Compare Johnson, supra, 120 N.J. at 284 (finding an invocation of the right to stop the interview when defendant "persisted, for well over an hour, in a pattern of prolonged silences and unresponsiveness, refusing to answer any and all questions"); State v. Bey, 112 N.J. 45, 64 (1988) (defendant made affirmative representation that he did not want to discuss a murder).

Finally, defendant argues that the police had no probable cause to hold him and that his confession was therefore inadmissible. The State does not object to the judge's finding that when the confession was given, defendant was not free to leave and the record supports that conclusion. A confession obtained during a custodial interrogation that is not supported by probable cause is not admissible unless the link between the illegal detention and the confession is so attenuated that the confession can be deemed an act of free will. State v. Worlock, 117 N.J. 596, 621 (1990).

The detention, however, is not illegal if the police have a judicially issued warrant permitting detention or other evidence of probable cause necessary to detain defendant for a criminal offense. State v. Moore, 181 N.J. 40, 44-46 (2004). Defendant argues that the police were required to know of an outstanding warrant to have the probable cause to detain defendant. See State v. Shelton, 344 N.J. Super. 505, 516-17 (App. Div. 2001) (noting defendant was legally arrested from the time police discovered an outstanding warrant for another offense), certif. denied, 171 N.J. 43 (2002). The motion judge had before him Schlesinger's testimony that defendant had admitted telling the police that there was an outstanding bench warrant for his arrest. Cook testified that defendant admitted to Cook that defendant was aware of an outstanding warrant.

At the suppression hearing, neither defendant nor the State inquired of the testifying officers whether defendant had advised them of the existence of the warrant or if they had other independent knowledge of it. Accordingly, the motion judge's only evidence on this issue was the statement of the defendant to Schlesinger, admissible under N.J.R.E. 803(b)(1). That evidence supports the judge's conclusion that the police knew of the outstanding warrant. Accordingly, we reject defendant's claim that his confession was improperly admitted.

Our decision to require a new trial moots defendant's arguments with respect to his sentence and we decline to consider the evidential issue raised in defendant's Point IV or the objections to the comments of the prosecutor raised in Point VI since we have no clear understanding of how those issues may arise, if at all, at the retrial.

We do add these comments with respect to defendant's arguments in Point III, not because we have determined the merit of the argument but, rather, to stress the need for judicial impartiality. Any comment or behavior by a trial judge has an extraordinary capacity to influence a jury's evaluation of the evidence. This is so whether the comment is directed to the evidence or disparages or vouches for the attorney or witness producing the evidence. See State v. Figueroa, __ N.J. __ (2007) (slip. op. at 27-28).

We have no need to rule on defendant's complaints given our decision to order a remand on other grounds. In ay event, we fully anticipate that the judge conducting the new trial will be conscious of the influence inherent in the office and insure that any impatience remain hidden.

We also add that, during the trial, defendant sought to introduce the evidence his expert had presented in the Miranda hearing. He sought to do this to allow the jury to evaluate the voluntariness of the confession. The trial court refused to allow the evidence and defendant has not raised that issue on this appeal. Nevertheless, defendant may seek on retrial to present expert testimony with respect to whether the confession was falsely made because, for example, defendant's intellectual limitations and other experiences make him compliant and likely to confess falsely. Such evidence, to the extent it is otherwise admissible, must be permitted. State v. King, 387 N.J. Super. 522 (App. Div. 2006).

Reversed and remanded for a new trial.

 

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

The record refers to the witness as both "Cook" and Cooke." For consistency, we refer to him as "Cook."

Defendant had been arrested and pled guilty in 1997 to charges of aggravated assault and was sentenced to a three-year probationary term.

(continued)

(continued)

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A-1762-04T4

May 3, 2007