STATE OF NEW JERSEY v. ELVIS MARMOLEJOS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6269-06T46269-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELVIS MARMOLEJOS,

Defendant-Appellant.

_______________________________

 

Submitted October 23, 2008 - Decided

Before Judges Winkelstein, Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 05-07-01324 and 05-07-01360.

Bisceglie & DeMarco, LLC, attorneys for appellant (Michael J. Liloia, on the brief).

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

PER CURIAM

On July 19, 2005, a Bergen County Grand Jury charged defendant Elvis Marmolejos and co-defendant Luis Caraballo with two counts each of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(7). Following indictment, defendant moved to suppress the statements he made to the police on July 26, 2004. The trial court denied the motion on December 20, 2005. Tried without a jury, defendant and co-defendant were found guilty of the charges.

On June 28, 2007, the court sentenced defendant to two concurrent ten-year terms of imprisonment with an 85% NERA period of parole ineligibility. On the same day, defendant was also sentenced on an unrelated conviction of third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h, to a concurrent three-year term of imprisonment. The court also imposed all appropriate fines and penalties. Defendant appeals.

On appeal, defendant argues:

POINT I.

THE CONVICTION UNDER INDICTMENT 05-07-01360-I (AGG. SEX. ASSLT.) SHOULD BE REVERSED, AND THE INDICTMENT ITSELF SHOULD BE DISMISSED AND VACATED SINCE ALL WERE PREDICATED UPON DEFENDANT'S STATEMENTS WHICH WERE TAKEN IN VIOLATION OF DEFENDANT'S FIFTH AMENDMENT AND MIRANDA RIGHTS.

A. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS DEFENDANT'S STATEMENTS, SINCE IT WAS SHOWN TO THE COURT THAT THE POLICE FAILED TO PROPERLY ISSUE DEFENDANT HIS MIRANDA WARNING AND RIGHTS PRIOR TO BEGINNING CUSTODIAL INTERROGATION.

B. THE TRIAL COURT ERRED IN CONSIDERING THE MIRANDA WAIVER FORM GIVEN TO DEFENDANT TO BE A LEGALLY SUFFICIENT RECITATION OF HIS MIRANDA RIGHTS.

C. THE TRIAL COURT ERRED IN DENYING THE MIRANDA MOTION AS REASONABLE DOUBT WAS PLACED BEFORE IT THAT THE STATEMENT WAS SIGNED INTELLIGENTLY.

POINT II.

THE CONVICTION UNDER INDICTMENT 05-07-01360-I (AGG. SEX. ASSLT.) SHOULD BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL (A) PRETRIAL AS TO A WHOLLY DEFICIENT MOTION TO SUPPRESS STATEMENTS[, I.E.,] MIRANDA MOTION, AND (B) DURING TRIAL.

A. (i). COUNSEL WAS INEFFECTIVE PRETRIAL IN THAT HE FILED A WHOLLY DEFICIENT MOTION TO SUP[P]RESS STATEMENTS.

A. (ii). COUNSEL WAS INEFFECTIVE PRETRIAL IN THAT HE FAILED TO PROVIDE THE COURT WITH CRUCIAL FACTS EITHER BY CLIENT AFFIDAVIT OR BY CLIENT TESTIMONY OF SAME AT THE MIRANDA HEARING.

B. (i). COUNSEL WAS INEFFECTIVE DURING TRIAL IN THAT HE FAILED TO CALL [DEFENDANT] AND [CO-DEFENDANT] AS DEFENSE WITNESSES.

B. (ii). COUNSEL WAS INEFFECTIVE DURING TRIAL IN THAT HE COUNSELED HIS CLIENT TO WAIVE HIS RIGHT TO A JURY TRIAL.

POINT III.

THE CONVIC[TION] UNDER INDICTMENT 05-07-01360-I SHOULD BE DISMISSED AND VACATED DUE TO DEPRIVAL OF DEFENDANT'S U.S. CONSTITUTIONAL RIGHT TO A TRIAL BY JURY.

POINT IV.

THE CONVICTION UNDER INDICTMENT 05-07-01360-I SHOULD BE DISMISSED AND VACATED SINCE THERE IS REASONABLE DOUBT AS TO THE ACCURACY OF [DEFENDANT'S] STENOGRAPHIC STATEMENT, QUESTIONING ITS ADMISSIBILITY.

POINT V.

THE SENTENCE UNDER INDICTMENT 05-07-01324-I (CREDIT CARD FRAUD) SHOULD BE REVERSED AND REMANDED FOR RE-HEARING AS SUCH WAS PREDICATED ON THE IMPROPER CONVICTION AND SENTENCE UNDER INDICTMENT 05-07-01360-I (AGG. SEX. ASSLT.), [I.E.,] WAS TO RUN CONCURRENTLY TO A SENTENCE WHICH SHOULD NEVER HAVE BEEN MADE, AND OTHERWISE, [DEFENDANT] WOULD HAVE RECEIVED P.T.I. OR PROBATION.

We affirm the convictions and sentences without prejudice to defendant filing a petition for post-conviction relief (PCR).

I.

J.S. was an eighteen year-old female. On the evening of July 24, 2004, J.S., accompanied by her girlfriend V.B., drove to J.S.'s boyfriend's house where they drank wine. At approximately 1:00 a.m., J.S. and V.B. left to visit V.B.'s friend Johnny. Although J.S. initially began driving her car to Johnny's house, V.B. took over the operation of the vehicle because J.S. was driving erratically. Thereafter, on route to Johnny's home, J.S. fell in and out of sleep.

On arrival at Johnny's house, V.B. awakened J.S., and they entered his home, initially proceeding to the second floor to use the bathroom. After freshening up, J.S. and V.B. went downstairs and entered Johnny's bedroom where they saw defendant and co-defendant, both of whom they knew from high school. Although J.S. initially sat down on the bed, she soon fell asleep, laying her head on V.B.'s shoulder. While J.S. continued to fall in and out of sleep, defendant and co-defendant removed her shoes and socks, and tickled her feet. Although J.S. continued to fall in and out of sleep, she told them "to stop."

Annoyed because defendant and co-defendant would not stop tickling J.S.'s feet, V.B. decided that she and J.S. should leave. V.B. and Johnny went outside to look for the car keys. After searching for the keys for approximately ten minutes, V.B. and Johnny returned to the bedroom, where J.S. was asleep on the bed, lying on her stomach. V.B. turned J.S. over onto her back to search her pockets for the car keys, but the search proved unsuccessful. V.B. then left the bedroom with Johnny to look in the second-floor bathroom for the keys.

Twenty minutes later, after locating the car keys in the bathroom, V.B. and Johnny returned to the bedroom, finding it locked. V.B. knocked on the door and called out J.S.'s name, but no one answered. V.B. then had Johnny call defendant and co-defendant on a cell phone. Although defendant answered the phone in the bedroom, neither he nor co-defendant came immediately out. V.B. and Johnny waited on a couch outside Johnny's bedroom door for about ten minutes.

While V.B. and Johnny were outside the bedroom waiting for the door to open, the defendant and co-defendant sexually assaulted J.S. J.S. awoke to "something that [she] knew [she] didn't ask for." She noticed that her pants and shoes were off, that co-defendant was lying on top of her, and that defendant was sitting in a chair next to the bed masturbating.

Immediately upon her awakening, defendant and co-defendant ran out of the bedroom with one of them saying, "Oh shit." J.S. immediately followed appearing as though she had been crying or was about to cry. Ignoring V.B.'s question as to what was wrong, J.S. requested that V.B. give her the car keys so that she could go home. After J.S., defendant and co-defendant left the premises, V.B. and Johnny entered the bedroom and observed two open condoms, one lying on a counter and a second in a garbage can. On arriving home, J.S. showered, first noticing two dry white spots on her stomach. After showering, J.S. called her boyfriend and told him that "something just happened to me."

Early that morning on July 25, 2006, J.S. went to V.B.'s house to inquire as to what had happened. V.B. told J.S. what had occurred at Johnny's house, including her finding two open condoms in the bedroom. Later that day, J.S. went to the local police station and reported the assaults. Thereafter, J.S. went to a nearby hospital where she was examined by a sexual assault nurse.

On July 26, 2004, the police questioned defendant and co-defendant separately at the Bergen County Prosecutor's Office in Paramus. In less than two hours, defendant provided the police with both a verbal and signed confession. Specifically, defendant admitted that he was at Johnny's house drinking when J.S. and V.B. arrived; J.S. quickly fell asleep on the bed; he took off some of her clothes; he performed cunnilingus on her and vaginally penetrated her with his penis; and he ejaculated on her stomach. During his statements, defendant acknowledged that J.S. was asleep during the assaults.

Approximately forty minutes prior to defendant providing the police with his verbal and written statements, Detective Cecilia Love of the Bergen County Prosecutor's Office conducted an interview of co-defendant. After Detective Love advised co-defendant of his Miranda rights, he provided her with a verbal statement as to what occurred in the bedroom.

Prior to trial, defendant filed a motion seeking to suppress the statements he made to the police on July 26, 2004, and co-defendant filed a motion seeking to sever his trial from that of defendant's. Following an evidentiary hearing on the motion to suppress, Judge Meehan denied the motion. Judge Meehan also denied co-defendant's motion to sever the trials after the prosecutor redacted from defendant's signed statement all incriminating comments made by defendant against co-defendant. On July 31, 2006, defendant and co-defendant waived their rights to a jury trial.

In December 2006, defendant and co-defendant were tried together before Judge Venezia sitting without a jury, during which the State presented testimonies from various witnesses including J.S., V.B., and Detectives Griefer and Love. Detective Griefer testified as to defendant's statements, and Detective Love testified as to co-defendant's statement. In addition, defendant's written statement of July 26, 2004, was admitted into evidence. On January 17, 2007, Judge Venezia found defendant and co-defendant guilty of the charges.

II.

Defendant argues in Point I that the trial court erred in denying his motion to suppress the statements he made to the police on July 26, 2004. Defendant contends that he provided the statements while in police custody, but the police failed to inform him of his Miranda rights. Defendant asserts that the police never advised him that he was a suspect at the time they questioned him and only arrested him after the police procured his statements. Defendant further argues that the Miranda waiver form utilized by the police is inherently coercive. We determine the arguments meritless.

An appellate court's scope of review of a trial court's factual determination is limited. We are obligated to review the record in the light of defendant's contention "that the trial court erred in its determination of the facts . . . but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.; accord State v. Locurto, 157 N.J. 463, 470-71 (1999). When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence present in the record, "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." Johnson, supra, 42 N.J. at 162. "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.

It is well established that warnings about a person's constitutional rights are required when a person is subject to custodial interrogation. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. "[C]ustodial interrogation" means "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. Absent Miranda warnings, statements made by a defendant in custody, whether exculpatory or inculpatory, may not be used in the prosecutor's case-in-chief. State v. Hartley, 103 N.J. 252, 275 (1986). A valid waiver of a defendant's constitutional rights must be made voluntarily, knowingly, and intelligently, and the State bears the burden of proof beyond a reasonable doubt. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 86 L. Ed. 2d at 707; State v. Bey, 112 N.J. 123, 134 (1988).

Here, Judge Meehan conducted an evidentiary hearing on defendant's motion to suppress. The only witness who testified at the hearing was Detective Brian Griefer, a member of the Special Investigation Squad of the Bergen County Prosecutor's Office. The detective testified as follows.

On July 26, 2004, at approximately 5:00 p.m., he was assigned to interview defendant, a suspect in the investigation of the sexual assaults of J.S. At approximately 5:15 p.m., Griefer entered the interview room where he met defendant and Detective Thomas LaMancha of the police department from the municipality where the assaults occurred. Prior to questioning defendant, Griefer stepped outside the interview room with LaMancha, and LaMancha brought him up to date on the investigation.

Approximately ten minutes later, Griefer returned to the interview room with LaMancha and informed defendant of his Miranda rights from a preprinted Miranda waiver form. Griefer read each of the Miranda warnings to defendant. Defendant then read each warning and acknowledged doing so by placing his initials on the Miranda waiver form next to each warning. After defendant acknowledged that he read and understood the warnings, Griefer then read the bottom waiver portion of the form to him. Following the reading of the waiver, defendant read and signed the form, waiving his Miranda rights. The form was then signed by both Griefer and LaMancha.

Defendant initially provided a verbal confession of the sexual assaults he committed while J.S. was asleep at Johnny's house. The verbal statement was completed at approximately 6:15 p.m. Griefer next asked defendant if he would provide a stenographic statement, and defendant agreed. Prior to defendant providing a stenographic statement, he acknowledged that he was previously informed of his Miranda rights and that he voluntarily agreed to waive his rights and speak to the police concerning the assaults. The stenographically-recorded statement began at 6:25 p.m. and ended at 6:42.p.m. After the stenographer prepared a typed statement, Griefer provided it to defendant to review and sign.

On completion of Griefer's testimony, Judge Meehan determined that defendant had been properly informed of his Miranda rights and had waived those rights prior to providing the verbal and stenographic statements to the police. Judge Meehan further determined that the interrogation was short in duration, and that the statements were not coerced, but rather that "the defendant freely and voluntarily waived his rights and did so intelligently . . . [by signing] the appropriate form." Accordingly, Judge Meehan ruled that the statements were admissible. We agree.

A juxtaposition of the case law and facts supports Judge Meehan's conclusion that defendant voluntarily waived his Miranda rights. The police did not coerce or threaten defendant during his brief questioning. After being apprised of each of his rights, defendant voluntarily signed the waiver form and provided the police with his verbal confession. Defendant then agreed to provide a formal statement and, after doing so, reviewed and signed it. Defendant indicated throughout the interview that he was freely speaking to the police. Accordingly, the totality of the circumstances establishes that defendant's statements were voluntary.

The premise underlying defendant's contention that the police could have arrested him prior to the interview based on their preliminary investigation and, therefore, were required to have first procured an arrest warrant before questioning him, is not supported by legal precedent. See Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 417, 17 L. Ed. 2d 374, 386 (1966) ("There is no constitutional right to be arrested."). The United States Supreme Court provided that the police "are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction." Ibid.

Defendant's final two arguments, that the Miranda form itself is inherently coercive because it contains a preprinted waiver; and defendant's confession is not reliable are both meritless. R. 2:11-3(e)(2). Accordingly, we affirm Judge Meehan's denial of defendant's motion to suppress his statements.

III.

Defendant argues in Point III that the trial court erred in permitting him to waive his right to trial by jury over the objection of the State. Defendant contends that, although he executed a written waiver of his right to a jury trial, the court failed to express its reasons for granting his request in light of the first-degree charges confronting him. We disagree.

A defendant charged with an indictable offense has a constitutional right to a jury trial. U.S. Const. Amend. XI; N.J. Const. art. I, 9-10. As a constitutional right, it is a personal right that belongs to the defendant alone; and as such, the defendant may waive his or her right to trial by jury. State v. Fortin, 178 N.J. 540, 610 (2004); State v. Dunne, 124 N.J. 303, 312 (1991). However, although a defendant may waive his or her right to trial by jury and request that he or she be tried by the court, the defendant "does not have a constitutional right to waive a jury trial and insist on a bench trial." Id. at 316 (emphasis added); accord R. 1:8-1(a) ("Criminal actions required to be tried by a jury shall be so tried unless the defendant, in writing and with the approval of the court, after notice to the prosecuting attorney and an opportunity to be heard, waives a jury trial.").

The Court has provided trial courts with guidance in deciding a defendant's request to waive trial by jury in a criminal proceeding. On such a request, a trial court should determine: (a) "whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel"; (b) "whether the waiver is tendered in good faith or as a stratagem to procure an otherwise impermissible advantage"; and (c) "with an accompanying statement of reasons, whether, considering all relevant factors [pertaining to the issue] . . . it should grant or deny the defendant's request in the circumstances of the case." Id. at 317. In applying that standard on a request to waive trial by jury, the Court informed the trial courts of factors that they should consider. One is the "gravity of the crime" with the higher degree of crime tilting in favor of a jury trial. Ibid. Another factor is the position of the State. Ibid.

Here, on July 31, 2006, defendant and co-defendant appeared before the trial court with their attorneys and waived their rights to trial by jury. The transcript of the court proceeding discloses the following colloquy among the court, defendant, co-defendant, and their attorneys:

The Court: Okay. Both of these gentlemen are going to waive jury trials?

[Co-defendant's Attorney]: That's correct, Judge.

. . . .

The Court: Does [co-defendant] understand what that means, sir? Understand what that means, Sir?

[Co-Defendant]: Yes.

The Court: Understand what that means, sir?

Defendant []: Yes.

The Court: That means you're not going to have a jury. I'm going to be the judge of the law and the facts. You're doing that voluntarily?

The Defendants: Yes.

The Court: Did you have enough time to speak to your respective attorneys before you made that decision, sir?

[Co-Defendant]: Yes.

The Court: Sir?

Defendant []: Yes.

The Court: And they've answered all your questions?

The Defendants: Yes.

The Court: So by waiving a jury means that there'll be no jury to decide the facts. I will be the judge of the law and the facts in this particular case, whenever we get to try it. And I will make the decision as to your guilt or nonguilt.

Is that what you want to do, [defendant]?

Defendant []: Yes.

. . . .

The Court: Okay. Is that what you want me to do?

Defendant: Yes.

. . . .

The Court: Sir, anybody force you to make that decision?

Defendant []: No.

The Court: You're going it of your own free will?

Defendant []: Yes.

The State did not object to defendant's and co-defendant's requests to waive their rights to trial by jury.

On November 8, 2006, the State belatedly objected to defendant's and co-defendant's waivers of a jury trial, not because it had any "concerns with the [c]ourt hearing the case," but because of the nature of the charges, that is, first-degree aggravated sexual assault charges. On hearing the State's objection, the court inquired of defendant, co-defendant and their respective attorneys, whether: 1) defendant and co-defendant still desired to waive their rights to a jury trial and proceed non-jury; 2) they were waiving their rights knowing that the court would decide the facts as well as the law; 3) they had consulted with their attorneys about waiving their rights to a jury trial before making their decisions; 4) defendant and co-defendant were satisfied with the services of their attorneys; and 5) their decisions to waive trial by jury were voluntarily.

After receiving affirmative responses to all of its inquiries, the court overruled the State's objection, granting leave to defendant and co-defendant to proceed non-jury. Defendant and co-defendant executed written waivers of their rights to trial by jury, stating in pertinent part: "that I am entitled to a jury trial and that I further understand that a jury consists of twelve people chosen to determine the facts of my guilt or innocence of the criminal charges brought against me in this matter"; "[h]aving been advised by the [c]ourt and having had an opportunity to consult with counsel, I knowingly, voluntarily and competently waive my right to a jury trial"; and "I understand that by waiving my right to a jury trial, this matter will be tried by a judge assigned to hear it."

Defendant's argument that he was denied his constitutional right to trial by jury is not supported by the record. Although the trial judge did not expressly state his reasons for granting defendant's request, ibid., we discern no reason to reverse the convictions. Defendant knowingly, voluntarily and competently waived his right to a jury trial after having consulted with his attorney as to the benefits and detriments of trying the case to the court without a jury. Defendant's right to trial by jury is a personal constitutional right, and defendant knowingly and voluntarily waived that right. The fact that defendant was charged with first-degree crimes does not require a contrary holding. Id. at 316 ("Even in capital cases, judges have accepted jury waivers.").

Moreover, rules of court consider defendant's interest in being able to waive a jury "as paramount to the State's right in insisting on that mode of trial." Pressler, Current N.J. Court Rules, comment 1.1 on R. 1:8-1 (2009). Lastly, we determine that it would be unfair and unjust in this matter to reverse the convictions, requiring the victim of defendant's acts to testify again, defendant having invited the court to proceed non-jury. See State v. Jenkins, 178 N.J. 347, 358 (2004) (stating that a defendant may not "'request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial'") (quoting State v. Pontery, 19 N.J. 457, 471 (1955)).

IV.

We next address the balance of defendant's arguments. In Point II, defendant argues that his trial counsel was ineffective pretrial: "in that he filed a wholly deficient motion to suppress statements"; by not "provid[ing] the court with crucial facts either by [defendant's] affidavit or by [defendant's] testimony at the Miranda hearing"; by "fail[ing] to call [defendant] and [co-defendant] as defense witnesses"; and by counseling defendant "to waive his right to a jury trial." Because resolution of these claims may involve matters that lie outside the trial record, for example, trial strategy, we determine that they are best resolved on a petition for PCR. State v. Preciose, 129 N.J. 451, 460 (1992) ("Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record."). Lastly, defendant challenges the sentence imposed on his conviction for third-degree fraudulent use of a credit card. Because defendant's argument is conditioned on our reversing his convictions for aggravated sexual assault, which we have not done, we determine that it is not necessary to address this issue.

The judgment of convictions and sentences are affirmed, subject to defendant's right to file petition for PCR in the Law Division, asserting ineffective assistance of trial counsel.

Affirmed.

Co-defendant filed a separate appeal under Docket No. A-6259-06T4, raising several issues not raised by defendant. Co-defendant's appeal is presently pending before a different panel of this court.

No Early Release Act, N.J.S.A. 2C:43-7.2.

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

See Bruton v. United States, 391 U.S. 123, 126, 88 S. Ct. 1620, 1622, 20 L. Ed. 2d 476, 479 (1968) (holding that a non-testifying co-defendant's confession implicating another co-defendant violates the other co-defendant's "right of cross-examination secured by the Confrontation Clause of the Sixth Amendment").

The record contains various discrepancies regarding the spelling of Detective LaMancha's name. For purpose of this opinion, we adopt the spelling utilized by the State in its brief.

(continued)

(continued)

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A-6269-06T4

December 17, 2008