STATE OF NEW JERSEY v. ROBERT HILL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4536-05T44536-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT HILL,

Defendant-Appellant.

__________________________________________________________

 

Submitted March 10, 2008 - Decided

Before Judges Lintner, Graves and Alvarez.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Indictment No.

05-02-218.

Yvonne Smith Segars, Public Defender,

attorney for respondent (William Welaj,

Designated Counsel, of counsel and on the

brief).

Marlene Lynch Ford, Ocean County Prosecutor,

attorney for respondent (Samuel Marzarella,

Senior Assistant Prosecutor, of counsel;

William Kyle Meighan, Assistant Prosecutor,

on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant Robert Hill was convicted of second-degree conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3, (count one), and first-degree murder, contrary to N.J.S.A. 2C:11-3 (count two). The victim was Gwendolyn Boyd, defendant's fiancé. At sentencing on February 24, 2006, the trial judge stated: "This was a particularly heinous and cruel crime . . . in which the victim, a school teacher who was supporting you and providing you with a home to reside in, was strangled to death by a bungee cord. The murder was planned, the conspiracy entered and executed, as was the victim." The court merged count one into count two and sentenced defendant to life in the custody of the Commissioner of Corrections, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

On appeal, defendant raises the following arguments through counsel:

POINT I

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S RULING PRECLUDING HIM FROM BEING PHYSICALLY PRESENT AT SIDEBAR CONFERENCES DURING JURY VOIR DIRE.

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE VARIOUS STATEMENTS TAKEN FROM THE DEFENDANT BY THE POLICE SINCE THEY WERE OBTAINED IN VIOLATION OF MIRANDA V. ARIZONA.

POINT III

THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BY BEING FORCED TO PROCEED WITH AN UNDESIRABLE JURY WHEN THE COURT REFUSED TO DISMISS VARIOUS JURORS FOR CAUSE, THEREBY REQUIRING THE DEFENSE TO UTILIZE AND EXHAUST ALL PEREMPTORY CHALLENGES.

POINT IV

THE TRIAL COURT ERRED BY PRECLUDING THE DEFENSE FROM ELICITING TESTIMONY REGARDING THE RESULTS OF A VOICE STRESS ANALYZER TEST ADMINISTERED TO THE DEFENDANT BY THE POLICE.

POINT V

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

In addition, defendant presents the following points in his pro se supplemental brief:

POINT I

PROSECUTOR WHO CREATED A CONFLICT OF INTEREST AND PARTOOK IN CUMULATIVE MISCONDUCT (INCLUDING THE VIOLATION OF ATTORNEY-CLIENT PRIVILEGE, DESTRUCTION OF EXCULPATORY EVIDENCE, VIOLATION OF SEQ[UE]STRATION, AND TAMPERING WITH A WITNESS) DEPRIVED THE DEFENDANT-APPELLANT OF HIS RIGHT TO A FAIR TRIAL.

POINT II

BIAS AND ABUSE OF DISCRETION CAUSED BY A CONSIDERABLE CONFLICT OF INTEREST RESULTED IN AN AGGREGATE OF PLAIN ERROR, RENDERING A REVERSAL OF CONVICTION.

POINT III

BECAUSE THE JURY WAS CHARGED WITH AN AMBUSH CATCH-ALL THEORY BY THE JUDGE AND ALLOWED TO DELIBERATE BEFORE BEING FULLY CHARGED, THE GUILTY VERDICT WAS INEVITABLE, AND THUS MUST BE REVERSED.

POINT IV

THE PROSECUTOR'S OPENING REMARK THAT THE JUDGE HAD "TALKED ABOUT THE FACT THAT [THE APPELLANT] CONSPIRED . . ." WAS IMPROPER AND LED THE JURY TO BELIEVE THE COURT HAD CONSIDERED THE CONSPIRACY A FACT.

POINT V

THE DEFENDANT-APPELLANT WAS SUBJECTED TO EXTENSIVE UNDUE PREJUDICE RESULTING FROM THE INTRODUCTION OF EXCESSIVE INADMISSIBLE OTHER-CONDUCT EVIDENCE THAT SHOULD NOT HAVE BEEN ADMITTED PRIOR TO COFIELD/MARRERO TESTS, AND IF ADMITTED SHOULD HAVE BEEN SANITIZED AND FOLLOWED BY MANDATORY LIMITED-USE INSTRUCTIONS TO PREVENT THE JURY FROM CONVICTING DUE TO THE APPELLANT BEING A "BAD PERSON."

POINT VI

APPELLATE COUNSEL'S POINT REGARDING SIDE BAR PRESENCE DURING JURY SELECTION MUST BE SUPPLEMENTED TO INCLUDE THE JUDGE'S FRANK ADMITTANCE.

POINT VII

THE APPELLANT WAS PREJUDICED BY VARIOUS MISCELLANEOUS ISSUES.

POINT VIII

THE CUMULATIVE IMPACT OF THE ISSUES RAISED IN APPELLATE COUNSEL'S BRIEF AND HEREIN CAUSED AN UNFAIR OUTCOME.

After considering all of these arguments in light of the record and the applicable law, we affirm.

At approximately 1:30 p.m. on May 18, 2002, defendant Robert Hill knocked "heavily" on the door of his neighbor, John Winstanley. After observing defendant was sweating, breathing heavily, and had mucous coming out of his nose, Winstanley repeatedly asked defendant "what the problem was or what's the matter," but defendant did not "reply at all." Because he was unable to get any information from defendant, Winstanley told his daughter to dial 9-1-1. As defendant started to leave, Winstanley told him that help was on the way, at which point defendant dropped to his knees and said, "She's dead. Mother F'er." Winstanley understood that defendant was referring to Gwendolyn Boyd, his fiancé, with whom he resided at 1854 Moore Road. Winstanley stood in his driveway watching as defendant returned to his residence.

Minutes later, Officer Kevin Geoghegan of the Dover Township Police Department arrived at the scene. As he walked up to the front door at 1854 Moore Road he heard a male voice screaming and crying out. Geoghegan opened the screen door and began to enter through the partially-opened interior wooden door when he realized there was a female body clad only in panties lying face-up in the doorway. He quickly determined the victim was cold and had no pulse. Geoghegan then observed defendant sitting on the steps leading to the first floor of the split-level home. Defendant was distraught, yelling "[w]ho could have done this? Why did this happen?"

Shortly thereafter, Edward Spahr of the Dover Township Police Department arrived, and it was determined the victim was forty-year-old Gwendolyn Boyd. Although the police officers attempted to elicit information from defendant, he was extremely agitated, and, for the most part, "he was not forthcoming with direct answers to direct simple questions."

As more officers arrived at the scene, Geoghegan and Spahr asked defendant if he would accompany them to the police station to give a statement, and he agreed to do so. Spahr testified that as they left the house, defendant "was more concerned with looking out the window of the door than actually looking down at his fiancé." Detective James Pissott, of the Ocean County Prosecutor's Office, who was also present in the house as defendant was leaving, recalled defendant stating, "I don't want any cameras out there," and "Damn, why is [sic] there so many cops out there?"

Following defendant's departure, Pissott noticed a bungee cord near Boyd's body, as well as a rubber glove tip under one of Boyd's legs and another one next to her body. He also examined the body and noted there was a ligature mark on the neck. Dr. Hydow Park, the pathologist who performed an autopsy on Boyd's body, subsequently confirmed that she died from "ligature strangulation." At trial, Park would not give an estimated time of death, but he concluded Boyd had "been dead at least six hours, and probably twelve hours" when her body was discovered.

At the police station, Sergeant Vincent Frulio of the Ocean County Prosecutor's Office and another detective interviewed defendant. Defendant stated he and Boyd had been together for two years, and he had moved into her Toms River home in January 2001. He related he had been unemployed since May 5, 2002, and he said he was trying to start an on-line business. He acknowledged he regularly used Boyd's Mitsubishi Montero because he did not own a car, and his cell phone was registered to Boyd.

Defendant told the police he had driven Gwendolyn Boyd to the Newark school where she worked as a second-grade teacher on May 17, 2002, and then spent most of the day in the company of his girlfriend, Nadia Bryant. He later picked Boyd up around 3:30 p.m. and drove home after stopping briefly at a fast food restaurant to pick up some food for Boyd. He remained at the house with Boyd (except for a brief trip to a local restaurant to pick up some take-out food) until approximately 10:00 p.m., when he left to go visit friends in North Jersey.

During the trip north, defendant placed numerous calls to Michelle Simmons, another one of his girlfriends. Defendant told the police he drove to various locations in Jersey City and East Orange in the hopes of seeing some friends, but he was unable to provide details of his whereabouts. Eventually, at approximately 2:30 a.m. on May 18, 2002, defendant went to Nadia Bryant's apartment in East Orange where he spent the rest of the night.

Defendant consented to a search of Boyd's Montero, but he asked to be present when the vehicle was searched. Accordingly, the police took defendant to a motel for the night and then picked him up the next morning and drove him to 1854 Moore Road. Upon arriving at the house, Sergeant Frulio noticed defendant was shaking, and he appeared extremely nervous. During the search, defendant "became visibly upset" when the police told him he "would not be taking possession of the vehicle or have access to the residence" when the search was completed. At trial, Mitchell testified defendant "was shocked" when he was told he would not have access to Boyd's vehicle, and defendant stated: "What am I going to do now?"

When the search of the vehicle was completed, Mitchell asked defendant if he would return to the police station to speak with him. Defendant agreed. During this interview, Detective Mitchell again reviewed defendant's activities on May 17 and 18, 2002. Defendant told Mitchell that before he left home on the night of the 17th, he had received a phone call from Omar Byrd, the house painter he and Boyd had hired, who had advised him that he would be unable to make it the following day due to the weather. Defendant also told Mitchell that he stayed with Nadia Bryant until about noon on May 18, and when he tried to telephone Boyd while he was driving home, he got no answer. In addition, defendant mentioned that after he returned from Winstanley's house, he touched Boyd and picked up the bungee cord lying nearby. At the end of the interview, defendant was given twenty dollars and driven to the Point Pleasant Train Station, so he could take the train to his mother's house in Roselle.

Over the course of the next few days, police determined there were no broken windows in the house and no sign of a forced entry, although a few windows were open. They found no fingerprints in the house other than defendant's and Boyd's. They submitted numerous items, including the two rubber glove fingertips, to the police lab for DNA analysis. They recorded the messages on Boyd's telephone answering machine, which ultimately turned out to be inaudible, and they confirmed Gwendolyn Boyd owned the home alone, and she died intestate. They also spoke to Michelle Simmons, Nadia Bryant, and Omar Byrd. During the course of their investigation the police discovered a number of Boyd's personal belongings, including her vehicle registration, Blue Cross/Blue Shield card, a paystub and a credit union statement, in a dumpster on Crane Street in Newark, near the home of one of defendant's former girlfriends with whom he was still in contact.

Based upon a review of defendant's cell phone records, the police learned that a call had been placed to Kadisha Little on the night of May 17. They subsequently learned that Little was the girlfriend of one Michael Scott, and they interviewed Scott on May 24, 2002.

Defendant was not arrested for the murder of Boyd until July 2003. The DNA results from the glove tips did not come back until March 2004. The DNA of Gwendolyn Boyd and Michael Scott, but not defendant, was identified in the fingertips of the rubber gloves. At that time Scott was also arrested for the murder of Gwendolyn Boyd. Following his arrest, Scott gave several statements to the police.

At trial, Scott testified that sometime prior to May 2002, defendant told him he had two girlfriends, who were both pregnant, and he asked Scott to help him "get rid of one of them." According to Scott, at approximately 10:00 p.m. on May 17, 2002, defendant telephoned him and said: "Well, today is the day. I'm tired. Got to get rid of -- got to do this today." Defendant subsequently picked Scott up at Scott's girlfriend's apartment on Crane Street in Newark. Scott's trial testimony included the following:

Q. Where did you go?

A. First we went to a gas station on Route 22. And then we went to Toms River.

Q. Did you have any conversation on the way down to Toms River?

Q. No.

. . . .

Q. Why were you going to Toms River?

A. To get rid of his problem.

Q. Did you arrive down at the house you just identified?

A. Yes.

Q. What happened when you got there?

A. I sat out in the truck. He pulled up on the side of the house. I sat in the truck. He went inside through a back door. And when I came in after a light came on, I heard rumbling and bumbling, stuff hitting the floor, whatever. I came in and I went upstairs.

Q. And what did you see when you got upstairs?

A. I came upstairs I seen Gwendolyn Boyd's body.

Q. Where was it?

A. Laying on the bed.

Q. Where was the defendant?

A. Standing in the room.

Q. What did he say to you?

A. He didn't say anything much. He just said, here, take these. Help me move it.

Q. Here, take what?

A. Take these gloves and help me.

Q. What kind of gloves are you talking about?

A. Latex rubber gloves.

Q. And what did you do with the gloves.

A. I put the gloves on.

Q. And did you help move the body?

A. Yes.

Q. Did he tell you where the body was being moved to?

A. No.

Q. How did you grab the body? By the way, did anybody help you move the body?

A. Yes, he did.

Q. Anybody else in the house other than the two of you and the victim?

A. No.

Q. And how did you grab the body?

A. I grabbed the body by the upper torso.

. . . .

Q. You grabbed the upper torso. What does he do?

A. He grabs her down by the legs and stuff. And we start carrying her to the stairs.

Q. And how far did you get?

. . . .

A. The first four or five stairs that's right there on the landing. My back gave out.

Q. When you say your back gave out, what's the deal with your back?

A. I have a chipped disk in the lower back.

. . . .

Q. What did you tell him when your back gave out?

A. My back gave out. That's it. I'm done.

Q. Would you have physically been able to help move her any more?

A. No, sir.

Q. What did the defendant do when you told him that?

A. He didn't do nothing. He walked back upstairs and proceeded to get her purse and whatever. And put a red bag by the front door.

Q. How about the gloves, what did you do with them?

A. I took them off and gave them to him.

. . . .

Q. Did you get anything out of this for helping him?

A. He gave me $60 in the house. And he gave me three rings.

Q. What did you do with the rings?

A. I sold them on the street for drugs and cash.

Q. How about the 60 bucks, what did you do with that?

A. When we first got back to Newark, I bought some drugs.

Q. Did you have any conversation on the way back with defendant about --

A. At one point, no. And then after I made two phone calls, then I had a conversation with him. A short conversation with him.

. . . .

Q. And tell us about the conversation you had with the defendant?

A. I asked him why. He said, I needed to take care of my kids. And that was that.

During his testimony, Scott admitted he was a drug dealer, and he was in prison on drug charges and for receiving stolen property. He testified he usually did drugs and drank heavily, and he was high on May 17, 2002. He admitted he had lied in his original statements to the police, and he conceded his plea agreement with the State limited his maximum sentence to fifteen years in prison. He insisted, though, that he did not kill Gwendolyn Boyd.

Michelle Simmons testified she went to high school with defendant, and they reconnected and began an intimate relationship in September 2001. She was married at the time and was aware that defendant was living in Toms River with Boyd in a house she believed they both owned. According to Simmons, defendant told her his relationship with Boyd was not working out, and he wanted to marry Simmons. Defendant told Simmons he wanted to ask Boyd to give him the house so that he and Simmons could move in there together. Because defendant was insistent that he wanted to have children with Simmons, they did not do anything to prevent pregnancy, and every month defendant asked Simmons if she was pregnant.

Nadia Bryant testified she met defendant in 1999, but they did not begin dating until May 2002. She related that defendant told her he had bought a house in Toms River. She confirmed that defendant arrived at her apartment "at about" 3:00 a.m. on May 18, 2002, and he stayed with her through lunchtime.

Omar Byrd, the house painter, testified it was defendant who called him at approximately 8:00 p.m. on May 17, 2002, and cancelled his job for May 18.

Although defendant elected not to take the stand, his mother, Catherine McCallum, testified on his behalf that defendant's daughter, from a prior relationship, was due to visit with him in late May 2002. Defendant's brother, Derrell McCallum, testified he spoke to Michael Scott sometime prior to May 18, 2002, and Scott told him that Boyd "had nice things in [her] house." According to McCallum, Scott also said "he would rob her" if he had the opportunity. Derrell admitted, however, that he only came forward with this information in April 2004.

Defendant contends the lower court committed reversible error in denying his request to be physically present at all sidebar conferences during jury voir dire. "[U]nder Rule 3:16, a defendant, who requests it, ordinarily has a right of presence at voir dire sidebar conferences." State v. W.A., 184 N.J. 45, 48 (2005). However, "presence at sidebar need not always mean physical presence." Id. at 59. Where there are security issues that militate against a defendant's physical presence at a voir dire sidebar, a court may utilize other methods to ensure a defendant is able to meaningfully participate in voir dire. Id. at 48. These methods may include the use of electronic equipment, such as wireless listening devices, the modified struck-jury system, whereby all jurors are individually questioned in open court with the defendant present while all other jurors are absent, and the lawyer-shuttle process. Id. at 48, 60.

Notably, the lawyer-shuttle process may only be employed as a last resort when there are legitimate security concerns, no electronic means are available, and the juror is unwilling to speak in open court. Id. at 61. Under this process, "the lawyer who attends each sidebar thereafter consults with his client regarding what has transpired, thus allowing the client to seek further probing or to acquiesce in the lawyer's recommendation." Ibid. A defendant may also request to listen to the tape, or review the court stenographer's notes, of a sidebar colloquy involving non-excused jurors before making his decision whether to exercise a peremptory challenge. Ibid. While this process is not as effective for peremptory challenge purposes as the others because it interposes the lawyer between the client and the juror, "it is a potential way to secure a defendant's 'presence' and participation in voir dire when direct participation is impractical." Ibid.

A defendant's exclusion from sidebar, after having requested presence, and in the absence of a substituted process, does not automatically warrant reversal. Id. at 64. Rather each case must be assessed under a harmless error analysis. Ibid. Significantly, "a defendant's absence from the sidebar examination of a juror who does not deliberate in the case is necessarily harmless." Ibid.

Just prior to jury selection in the instant case, defense counsel requested that defendant be permitted to be physically present during any sidebar conferences that might take place during jury selection. The trial court responded:

Well, that presents certain difficulties, given the physical layout of our particular courtroom here. I know that the Administrative Office of the Courts is in the process of obtaining certain high-tech equipment which would enable the defendant to sit at counsel table and electronically hear what's said at side bar.

I have inquired about that equipment, anticipating a twelfth-hour application, and am informed that it is not yet available to us here.

Given the physical layout of the court, as you are aware, side bar is at the far end of the bench here, and I would say, I guess, seven feet, not really even that, six feet maybe by seven feet in area, it will have to accommodate at side bar the court reporter, four counsel and a juror.

If the defendant were to be physically brought to the side bar, that would entail the defendant and two sheriff's officers also. And just, we cannot physically accommodate that here. So, given our physical limitations and the absence of the equipment in question, I'm going to not be able to grant your request for his physical presence.

However, I certainly will, after each side bar, give you sufficient time to return to your table and explain as long as it takes for you to advise the defendant of everything that was said, and get his input with regard to it.

Defense counsel subsequently inquired as to whether the judge was suggesting there was both a security issue and an accommodation issue involved, or just an accommodation issue. The court replied that counsel's request raised both issues. The judge noted that, given the nature of the charges, two officers would have to be present with defendant at all times. Defense counsel then suggested that only one prosecutor and one defense attorney participate in the sidebars. However, after the State attorneys objected to this proposed procedure, the court adhered to its original ruling.

Thereafter, the lawyer-shuttle system was employed in connection with all of the sidebar conferences during voir dire. Ultimately, four jurors who were the subject of sidebar conferences were part of the final deliberating jury: Ms. Beard, Ms. Sambella, Ms. Vasquez, and Ms. Howiessen.

Defendant argues the trial judge erred in relying upon accommodation factors rather then security issues in denying his request to be physically present at all voir dire sidebar conferences. According to defendant, "the trial court did not conclude[] the defendant could not be present at sidebar conferences for security reasons," but rather that defendant simply had to be accompanied by two sheriff's officers to any such conferences. In defendant's view, his request to be physically present at the sidebar conferences should have been granted even if it meant squeezing everyone into a small space or restricting the number of attorneys present during the conferences.

Regardless of how defendant chooses to view it, the threshold problem facing the trial court in acceding to defendant's request was security. As the court noted, the fact that defendant had been charged with a violent and deadly crime and was facing life in prison required, for the safety of all in the courtroom, that he be accompanied by two sheriff's officers at all times. Moreover, the trial court was in the best position to decide how many people could fit into the small area available for sidebar conferences. While defendant maintains the judge should have excluded counsel from these conferences so as to permit him to attend, defendant has failed to identify any case law endorsing such an approach, and defendant ignores the fact that he did not have a paramount right to be physically present at the sidebar conferences because he was a security risk. Accordingly, we find neither abuse of discretion nor reversible error by the trial court.

Next, defendant contends the court erred in admitting his out-of-court statements to police. At the Miranda hearing, Frulio testified that, when he arrived at the Dover Township Police Department at 3:30 p.m. on May 18, 2002, defendant was sitting in the squad room casually talking with Detective John Thievon. Frulion and Thievon escorted defendant, who had agreed to be interviewed, to an interview room, whereupon Thievon left and Detective Brian Lomer joined Frulio and defendant. Frulio did not read defendant his Miranda rights, but presented him with a consent-to-question form, which defendant read and signed. This form indicated that defendant had voluntarily agreed to answer questions regarding Boyd's death and that he understood he was free to end the interview at any time and leave.

During the interview, defendant recounted his activities on May 17 and 18, 2002. Frulio described the interview as "standard conversation" and stated defendant was very calm and cooperative and never told them he wanted to leave. Throughout the interview, defendant repeatedly denied any involvement in the homicide.

Frulio denied defendant was a suspect at the outset of the interview, but acknowledged "later in the interview we basically developed him as a suspect" because "there were several inconsistencies in his story," and he was unable to "account for his whereabouts." Nonetheless, Frulio testified that defendant was free to leave the police station or the motel at any point in time.

The next morning, Frulio and another officer picked up defendant at the motel and drove him to 1854 Moore Road where the search of the Montero was conducted. At the conclusion of the search, Mitchell asked defendant if he would meet with him at the police station. Defendant agreed and was transported to the station by the police. At the station, defendant, Mitchell, and another officer met in an interview room, and Mitchell immediately provided defendant with another consent-to-question form, which defendant read and executed. Mitchell then asked defendant about his activities beginning with the late afternoon on May 17, 2002, and defendant repeated his account of where he had been and whom he had seen.

Mitchell testified that defendant "was very cooperative" throughout the interview and never sought to leave. He was provided with drinks and the opportunity to use the bathroom. Mitchell maintained that if defendant had indicated he wanted to terminate the interview, the request would have been honored.

At the conclusion of the two-hour interview, defendant was driven by police to the Point Pleasant Train Station and given some money so he could take a train to north Jersey. Before defendant departed, he agreed to return on May 21, 2002, so that he could take a drive with Mitchell and show him "his route of travel on the night of May 17th, which was a Friday night." Defendant subsequently returned on the designated day and he and Mitchell retraced his route. They did not discuss the homicide during the trip. When they were finished, Mitchell dropped defendant off at his mother's house in Roselle, as requested.

Following this testimony, the trial court ruled that because defendant had crucial information regarding the victim, "it was only natural" for the police to ask defendant "to come to the police department to assist them in gathering information to help in the investigation." And the court found defendant freely consented to speak with the police on both May 18 and 19, 2002. The court was further persuaded that defendant was never in custody. In this regard, the court noted defendant was free to leave the motel to which he was taken at his own request following the first interview, and after the second interview, he was actually taken to a train station and provided with money so that he could leave the area. The court further observed that defendant voluntarily returned to the Dover Police Station without police assistance on May 21, 2002, and he was later dropped off, as requested, at his mother's house. In sum, the court ruled all of defendant's statements to the police were admissible because there was "a total absence of custodial interrogation."

Warnings are required when an individual is subjected to custodial interrogation by law enforcement officers. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. These warnings include instructing the individual that he has a right to remain silent, that any statement he makes may be used against him, and that he has the right to have an attorney present during questioning. Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528, 128 L. Ed. 2d 293, 298 (1994). Custodial interrogation is "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." Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. Accord Stansbury, supra, 511 U.S. at 322, 114 S. Ct. at 1528, 129 L. Ed. 2d at 2298; State v. Keating, 277 N.J. Super. 141, 144 (App. Div. 1994). In determining whether a custodial interrogation has occurred, a court must examine all of the circumstances surrounding the interrogation. Stansbury, supra, 511 U.S. at 322-23, 114 S. Ct. at 1528-29, 128 L. Ed. 2d at 2298; State v. O'Loughlin, 270 N.J. Super. 472, 477 (App. Div. 1994); State v. Coburn, 221 N.J. Super. 586, 596 (App. Div. 1987), certif. denied, 110 N.J. 300 (1988).

Custody will be found "'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.'" O'Loughlin, supra, 270 N.J. Super. at 477 (quoting Coburn, supra, 221 N.J. Super. at 596). Circumstances a court should consider in making this determination include "the nature and degree of pressure applied to detain the suspect, the duration of the questioning, the physical surroundings, and the language used by police." State v. Timmendequas, 161 N.J. 515, 614 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); see also State v. Pierson, 223 N.J. Super. 62, 67 (App. Div. 1988); State v. Cunningham, 153 N.J. Super. 350, 353 (App. Div. 1977). A court will also look at whether the detainee knew, as a result of some manifestation by the interviewing officer, that he or she was a focus of the police investigation and whether a reasonable person in that position would have altered his or her perception of his or her freedom to leave based upon this knowledge. State v. Stott, 171 N.J. 343, 365 (2002). This inquiry must be done on a case-by-case basis, with an examination of "the totality of the circumstances." State v. P.Z., 152 N.J. 86, 102-03 (1997); see also O'Loughlin, supra, 270 N.J. Super. at 477.

According to defendant, not only did the police view him as a suspect virtually from the inception of their investigation, but this perception was "undoubtedly" conveyed to him, "thereby rendering his encounters with the police not merely fact-finding interviews but rather custodial interrogation." However, defendant's claims must be considered in conjunction with the following facts: (1) the police had to speak with defendant since he was Boyd's cohabitant and fiancé and the last person to see her alive; (2) defendant was repeatedly advised, and he signed forms stating he was free to leave at any time during his interviews; (3) when defendant said he was tired during his interview on May 18, 2002, the police took him to a motel for the night; (4) defendant was not required to be present during the search of the Montero, but voluntarily asked to be present; (5) defendant was taken to a train station following his second interview on May 19, 2002, and provided with a ticket so that he could leave the area; and (6) after defendant voluntarily returned to the police station on May 21, 2002, so that they could retrace his whereabouts on May 17, 2002, the police dropped him off at his mother's house. Additionally, because defendant did not actually own either the home where the murder was committed or the Montero, and the investigation was not completed, there was no reason for him to assume he was being denied access to either because he was a prime suspect in the case.

Under these circumstances, the record fully supports the trial court's determination that defendant was not subjected to custodial interrogation. Accordingly, the trial court did not err in admitting defendant's out-of-court statements into evidence.

Next, defendant contends he was denied his right to an impartial jury after the court improperly refused to dismiss certain jurors for cause. As our Supreme Court has recognized, the mere dilution of the number of prescribed peremptory challenges by a trial judge's "erroneous failure to excuse a juror for cause is of no moment to the constitutional guarantee of an impartial jury." State v. DiFrisco, 137 N.J. 434, 469 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Rather, in order to prove the forced expenditure of a peremptory challenge constitutes reversible error, a defendant must show: (1) the trial court erroneously failed to remove a juror for cause; (2) defendant utilized a peremptory challenge to eliminate the juror and, by doing so, exhausted his remaining challenges; and (3) at least one of the remaining jurors who sat on the jury was a partial juror. Id. at 471.

Defendant argues the trial court erroneously failed to remove jurors Malkmus, Stanton, and Heuth for cause. During voir dire, potential juror Malkmus advised that she had read an article regarding the case the prior day, but did not recollect what it said other than defendant was accused of murdering a teacher. She stated she had not really focused on the article and denied that she had formed any opinions regarding the case because of it. She agreed that she could set aside anything she had read and decide the case based solely on the evidence introduced in the courtroom. In denying the request to dismiss Malkmus for cause, the court stated:

She seemed to indicate that she recalls that the victim was a teacher, which of course is going to come out during the course of the trial in any event. I did not recognize any hesitation on her part. I am satisfied that she will fulfill her responsibilities if selected to sit as a juror, so I'm denying your application to dismiss for cause.

Defendant now insists Malkmus should have been dismissed for cause because she answered "[n]o, not really" rather than something more unequivocal when asked whether she had formed any opinions about the case based on what she had read. However, in light of her subsequent confirmation that she could decide the case solely based upon the evidence presented in the courtroom, we see no abuse of discretion or error in the trial judge's determination.

Potential juror Stanton stated she had heard "very little" about the case. Upon further questioning, she stated that she had "heard very little, just what a few people mentioned today. I wasn't familiar with the case at all." She clarified that she had heard that "two people [were] being tried for the murder of a pregnant woman." After the court informed her this information was incorrect, Stanton stated she "believe[d]" she would be able to decide the case solely on the evidence she heard in the courtroom. Although defense counsel subsequently requested that Stanton be removed for cause, the judge refused to do so, explaining that "it's rather obvious that what she heard is totally incorrect," and she indicated she would "decide the case on what she heard here in the courtroom."

Defendant insists that Stanton should have been dismissed for cause because she was exposed to misinformation about the case and because she answered "I believe so" rather than something more unequivocal when asked whether she could decide the case solely on the evidence presented in court. However, the court corrected Stanton's misapprehensions, and Stanton repeatedly used the phrase "I believe so" rather than simply saying "yes" during the entirety of her colloquy with the court. Thus, there is no reason to believe the at-issue response was anything less than unequivocal.

Potential juror Heuth reported she had been the victim of three separate muggings which had occurred thirty-five, thirty-three, and seven years ago, respectively. She maintained these incidents would not affect her ability to be fair to both sides and, she could decide the case solely on the evidence introduced in the courtroom. Although defense counsel subsequently requested she be removed for cause, the court denied the request, ruling that it saw no connection between the muggings and the facts in the instant case, and he was satisfied Heuth could be fair, as she stated.

Defendant insists that, while Heuth was not the victim of a recent crime, she should have nonetheless been dismissed for cause because she had repeatedly been the victim of physical assaults. However, given that even the most recent of Heuth's muggings was remote in time, and her agreement to set her personal experiences aside and "decide the case solely on the evidence introduced here in the courtroom," we are satisfied the court did not abuse its discretion in refusing to dismiss her for cause.

Defendant also argues he was prejudiced by the trial court's failure to remove these jurors for cause because after he exercised his peremptory challenges to remove them, he subsequently exhausted all of his peremptory challenges and two biased jurors, Vasquez and Howiesson, ultimately sat on the final jury. Defendant contends juror Vasquez's statements during voir dire were so troubling that "it was inconceivable this juror could have fairly and impartially decided the defendant's fate." In this regard, it is worth noting defendant still had eight peremptory challenges available at the time Vasquez was interviewed by the court. In any event, not only was Vasquez's connection to the murder case in which she appeared as a witness limited, but she repeatedly confirmed that neither her prior experience as a juror nor her experience as a witness would affect her ability to be fair and impartial. Therefore, there has been no showing that defendant was prejudiced by Vasquez's participation as a juror in this case.

Defendant claims that juror Howiesson was likely biased against him is equally without merit. During voir dire, juror Howiesson "vaguely" recalled reading about the homicide at the time it occurred and feeling sad for the victim. However, it is worth noting defendant still had three peremptory challenges available at the time Howiesson was interviewed by the court. Moreover, Howiesson stated she did not recall any of the details of the case, and she denied she had any opinions on the matter. She also stated she could decide the case without regard to outside influences. Thus, defendant has not shown he was prejudiced by Howiesson's participation as a juror in this case. We therefore reject defendant's contention that he was denied his right to an impartial jury because the court improperly refused to dismiss certain jurors for cause.

Next, defendant contends the lower court committed reversible error in precluding the defense from eliciting testimony regarding the results of a voice stress analyzer test administered to defendant by the police. During the investigation in this matter, defendant voluntarily took a Computer Voice Stress Analyzer Examination administered to him by a detective with the Dover Township Police Department. The detective subsequently reported that defendant's responses to questions concerning his involvement with the death of the victim did not reveal stress levels indicative of deception.

Prior to trial, defense counsel sought to have this evidence deemed admissible, arguing it was relevant in that it "rebut[ted] the guilt of the defendant," and it was reliable since it was "something that is used by law enforcement to solve cases." The court, however, ruled as follows:

I know of no legal authority, and none has been submitted to me, indicating that any court has ever recognized the voice analyzer stressor test, or whatever it's called, as a reliable, scientific test worthy of admission . . . into evidence, with regard to issues.

I note that apparently a police officer, in part of this investigation, allegedly conducted such a test. I must be totally frank with you, [defense counsel]. If that police officer came to me and submitted to me an affidavit of probable cause for arrest based upon the fact that he . . . [administered] such a test to someone and they failed it, I would absolutely refuse to find probable cause or to give him a warrant for his arrest.

I find such evidence is not admissible and may not be elicited or introduced by you during the course of the trial.

Defendant now contends the trial judge's decision to exclude this evidence constituted reversible error. According to defendant, "while the test had not achieved scientific recognition which would have warranted its admission pursuant to N.J.R.E. 702, its reliability was nevertheless achieved by the fact law enforcement believed it was sufficiently reliable to utilize it in attempting to solve the crime." Thus, defendant argues the State vouched for the reliability of the test "by utilizing it as an investigative tool." However, it is undisputed there was no scientific evidence to demonstrate the reliability of the voice stress analyzer test, there was no showing the test was used extensively by police or other investigative agencies, and there was no stipulation authorizing the admission of this evidence. In these circumstances, the trial court correctly ruled the proffered evidence was not admissible. See, e.g., State v. Domicz, 188 N.J. 285, 314 (2006) ("[W]henever human judgment comes into play there is the potential for error, but we are not convinced that polygraph evidence is likely to lead to more correct outcomes.").

Defendant also contends the trial judge erred in sentencing him to life in prison, rather than either the base term of thirty years or some other term of years. At the sentencing hearing, the court found the following aggravating factors: (1) the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); and (2) the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court found no applicable mitigating factors. In making these findings, the sentencing judge commented as follows:

Aggravating factor 3, the risk of another offense, which I attribute to a continuous course of conduct -- it was only on July 28, 2000, that you were sentenced to three years for the crime of conspiracy to commit bank theft in federal court, and I note that the present offense took place within that three-year period, and so you have a continuous course of conduct -- and also failure to take advantage of a probationary sentence that you received; and, 9, the need to deter.

There's nothing present by way of mitigation. Mitigating factor 7 is not present in this case. You do have a prior criminal record. Mitigating factors 8, 9 and 10 are not in the case at all. Probation is not considered with regard to that. And I can't say that your conduct was a result of circumstances unlikely to reoccur, because you had already committed a crime of conspiracy before this. And imprisonment is not an excessive hardship under the law with regard to this particular matter. So, there's nothing present at all by way of mitigation.

Based on our review of the record, we are satisfied the trial court properly applied the sentencing guidelines to the facts of the case, and we find no mistaken exercise of sentencing discretion. State v. Natale, 184 N.J. 458, 489 (2005); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Defendant has also raised a number of arguments in his pro se supplemental brief. After reviewing defendant's contentions in light of the record and the applicable law, we are satisfied that all of his arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

Scott was charged with second-degree conspiracy and first-degree murder in the same indictment as defendant.

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

(continued)

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36

A-4536-05T4

July 28, 2008