STATE OF NEW JERSEY v. ELI WILEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3193-03T43193-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELI WILEY,

Defendant-Appellant.

_____________________________

 

Submitted May 15, 2007 - Decided

Before Judges Graves and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Ind. No. 03-05-0578.

Yvonne Smith Segars, Public Defender, attorney for appellant (Raquel Y. Bristol, Assistant Deputy Public Defender, of counsel and 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

Under Mercer County Indictment Number 03-05-0578, defendant Eli Wiley was charged with: two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one and three); two counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a (counts two and four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count five); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count six); two counts of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (counts seven and ten); second-degree eluding police, N.J.S.A. 2C:29-2b (count eight); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (count nine.

Defendant's motion to suppress his November 1, 2002 statement after arrest was denied. Thereafter, defendant entered a guilty plea to count one pursuant to a plea agreement in exchange for the State's sentence recommendation of an eight-year period of incarceration, as a second-degree offender, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court sentenced defendant to seven years of incarceration with a NERA parole ineligibility period, along with applicable penalties and assessments.

On appeal, defendant presents the following arguments for our consideration:

THE TRIAL COURT MADE ERRONEOUS FACTUAL FINDINGS, DENIED DEFENDANT'S MOTION TO SUPPRESS, AND DEEMED DEFENDANT'S INVOLUNTARY STATEMENTS TO BE ADMISSIBLE IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND THE PRIVILEGE AGAINST SELF-INCRIMINATION. U.S. CONST., Amends. V, XIV; N.J. Const. (1947), ART. I, PAR. 1.

A. The Trial Court Made Erroneous Factual Findings and Accordingly Erred in Denying Defendant's Motion to Suppress.

B. The Trial Court Erred in Finding Defendant's Statement to Be Admissible.

We affirm. We state the facts as presented during the suppression hearing, which included the testimony of Detective Christopher Doyle and defendant.

In the course of investigating a robbery of Trenton Seafood and Grocery (TSG), also known as "Sunshine Market," Doyle received an anonymous telephone call from a male caller who identified himself as "The One." The store had been robbed of $150-$300 and two Verizon phone cards, by a single gunman wearing a hood on his head and a scarf over his face. The store owners could not identify the perpetrator. The caller stated that he knew Doyle had been at the TSG that morning investigating the robbery. The caller stated defendant was the perpetrator of the robbery. The caller also stated he had been with defendant that day and described the clothing defendant had been wearing. He also provided a physical description of defendant, which included that defendant wore a short "Afro-hairstyle." The caller further asserted defendant had shown him a gun, which defendant threw in the trunk of a "red Chevy," a car he rented from a white woman named Wendy. Finally, the caller provided addresses where defendant could be found, including 196 Locust Street. The caller refused to meet with police, stating "if anybody sees me talking to the cops[,] I'm done."

Proceeding to 196 Locust Street, Doyle located an un-occupied red Chevrolet Lumina parked in front of the residence. After checking the registration, Doyle learned the car was registered to Wendy Sneddin of Ewing Township. Doyle and his partner, Detective Pollard, parked their unmarked police car and, using binoculars, watched the vehicle and the house. Defendant, whose clothing matched the description given by the caller, exited the home and approached the vehicle accompanied by another male. Defendant's hair was braided.

The police began to follow defendant as he drove the vehicle. Defendant turned around and looked at the detectives, who he suspected were plainclothes police officers. After defendant made a left turn without signaling, Doyle activated the lights and siren and called for back-up. Defendant responded by pulling the vehicle over to the side of the road. When the officers exited their car to approach, defendant drove away. The police gave chase. Doyle took note that defendant ran a stop sign. Defendant pulled into a vacant lot and abandoned the vehicle. The police pursued him on foot. Defendant and his companion, Jamar Hawthorne, were apprehended and taken into custody at approximately 3:30 p.m. The detectives were then required to respond to another street call. They returned to the station at approximately 5:00 p.m. Defendant and Hawthorne were separated; Doyle Mirandized defendant and left him handcuffed in an interrogation room for approximately one hour.

Doyle returned to the interrogation room with Detective Thomas. Doyle testified that as he entered the room, before he again read defendant his Miranda rights, defendant stated "I know why I am here[.] I'm here because everybody said I robbed Sunshine Store." Doyle released defendant's hand from the handcuffs. He had a Trenton Police Department Miranda rights form and advised defendant of his rights for a second time, reading the form in its entirety. Doyle asked defendant if he understood his rights. "He agreed and read the form" aloud. As Doyle again questioned defendant as to his understanding of his rights, he handed defendant a pen to sign the form in two places. Both Doyle and Thomas witnessed defendant sign the form.

After the form was completed, defendant again stated: "I want to know why everybody keeps saying I robbed Sunshine Store." As Doyle conducted a conversation, defendant acknowledged he knew the store's location. Doyle suggested the store had cameras. Defendant responded: "If a bitch was going to rob the store, and I ain't saying I robbed the store, but if a bitch was going to rob the store, a bitch would wear a mask so nobody could see their face because, . . . with cameras . . . ."

Doyle then told defendant that the cameras in that store "were the only cameras in the City of Trenton that are equipped with a retina scan." Doyle further explained a retina scan was "like a fingerprint," and even if someone wears a mask, the retina of the eye is scanned. Defendant's demeanor changed and he became quiet. Doyle left the room.

Doyle and Thomas returned. Thomas reiterated that the store cameras had retina scans. Defendant kept his head on the table, saying nothing. When the police stated that they would be docketing defendant, he began to cry and asked if he could tell his side of the story. Defendant then admitted his participation in the robbery. Beginning a little after 8:00 p.m., Doyle asked questions and Thomas typed the defendant's statement. Defendant read the completed statement and initialed each page, witnessed by Doyle. Doyle testified defendant did not ask for counsel throughout the interview. The statement's details about the robbery matched those given by the store owners.

Defendant's testimony at the suppression hearing maintained that no one read him his rights and that once in the interview room, Doyle and Thomas began questioning him for an hour to an hour and a half, including "did I do the robbery, did I have anything to do with the robbery, . . . questions about the robbery, did [I] have a gun, what was I wearing . . . ."

Defendant asserted he requested "eight times" "to speak to a lawyer and [] plead the Fifth Amendment right." Defendant further asserted the police threatened him "that [he] would never see [his] family again, and . . . if [he] did cooperate with them, that . . . [they] would help talk to the prosecutors and refer [him] to a one year sentence at Jones Farm." Defendant acknowledged the detectives told him they had a retina scan from the TSG, but did not state whose scan was obtained.

Defendant testified that the police continued their questioning, ignored his requests for counsel and threatened him until he gave a statement. He alleged that because the detectives informed him of the details about how the robbery took place and he had heard some facts from a friend who spoke to the owner, his statement was consistent with the owners' description of the events. Defendant testified he did not sign the Miranda rights form until 8:00 p.m., after his statement was taken; and he signed it only because the detectives assured him that he would be released from custody. On cross-examination, defendant attempted to bolster his argument by adding that he signed the statement while he was high, from smoking marijuana, and that he ran from the police when pulled over because he possessed crack cocaine.

The question for our consideration is whether, under the totality of the circumstances, defendant's custodial statement was freely and voluntarily given. State v. Galloway, 133 N.J. 631, 654-55 (1993). In his argument, defendant attaches significance to: the discrepancies in the details such as the amount of money taken in the robbery as reported by the store owners and as listed in the custodial statement; the length of time he was left alone after arrest; the lapse of time between arrest and the commencement of the custodial statement; and that there was no record made of the interview or his statement. Defendant argues that "[c]ommon sense applied to this record leads to the inevitable conclusion that [defendant's] confession was in no way voluntary and was obtained after [defendant's] will was overborne." We disagree.

"Confessions obtained by the police during a custodial interrogation are barred from evidence unless the defendant has been advised of his or her constitutional rights." State v. Knight, 183 N.J. 449, 461 (2005) (citing Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707). A custodial statement must be made with full knowledge of the right to remain silent and the right to be provided counsel. The State must prove the voluntariness of a confession beyond a reasonable doubt. State v. Kelly, 61 N.J. 283, 294 (1972). When examining this issue, a court must look at the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation, to determine whether the defendant's will was actually overborne.

Relevant factors to be considered include the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862 (1973); State v. Miller, 76 N.J. 392, 402 (1978).

[Galloway, supra, 133 N.J. at 654-55.]

We find no disagreement with the motion judge's determination that the Miranda rights form was "completed contemporaneously with [its] execution." After presiding over the suppression hearing, the motion judge assessed credibility stating:

I don't believe the defendant. I find that I could not possibly place any weight on his testimony in that regard. . . .

. . . .

I don't believe he requested a lawyer. I don't believe it at all. . . . [T]he defendant also stated he wanted to plead the Fifth Amendment. I don't believe that either. I believe he waived his rights. I believe the testimony of the officer. That was straightforward, without embellishment and consistent with the documentation that was done that night . . . [with] Detective Thomas.

We accept the trial judge's credibility determination as he had the "feel of the case," and was given the opportunity to make observations of the witnesses. State v. Locurto, 157 N.J. 463, 471 (1999); see also State v. Domicz, 188 N.J. 285, 309 (2006); State v. Johnson, 42 N.J. 146, 161 (1964).

Our study of the record convinces us that the trial court assessed the testimony of the witnesses and the documentary evidence admitted before making factual determinations.

There was sufficient credible evidence in the record for the trial court to conclude that defendant's statement confessing to the robbery was constitutionally obtained. No unreasonable delay resulted because defendant was with Hawthorne while the officers responded to another emergent call, and alone in the interrogation room for approximately one hour before Doyle commenced the discussion with him. See e.g., Darwin v. Connecticut, 391 U.S. 346, 88 S. Ct. 1488, 20 L. Ed. 2d 630 (1968) (the defendant was kept from speaking to attorney or other persons for thirty to forty-eight hours); Blackburn v. Alabama, 361 U.S. 199, 80 S. Ct. 274, 4 L. Ed. 2d 242 (1960) (police interrogated the defendant for eight to nine hours in a small room occasionally filled with police officers, during which time the defendant saw no friends, family, or counsel). Although defendant did not talk to police for a few hours after his arrest, he expressed no discomfort or the denial of any needs. Further, when he asked for something to eat, the detectives complied. His questioning was neither persistent nor excessive. We conclude that the facts presented fail to sustain a finding that police conduct had overborne the will of defendant. See Galloway, supra, 133 N.J. at 656. Thus, we decline to disturb the denial of defendant's motion to suppress. See Johnson, supra, 42 N.J. at 161-62; see also R. 2:10-1.
Affirmed.

 

The store owners estimated the loss at $150, while defendant stated he received $300 from the robbery.

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

(continued)

(continued)

11

A-3193-03T4

August 9, 2007