STATE OF NEW JERSEY v. R.S.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1784-07T41784-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.S.,

Defendant-Appellant.

______________________________

 

Submitted October 20, 2009 - Decided

Before Judges Skillman, Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-00512.

Yvonne Smith Segars, Public Defender, attorney for appellant (John P. Monaghan, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Brent A. Bramnick, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In June 2006, a Union County Grand Jury charged defendant R.S. with committing second-degree aggravated assault by recklessly causing serious bodily injury to another, N.J.S.A. 2C:12-1b(1) (count one); second-degree aggravated assault by attempting to cause serious bodily injury to another, N.J.S.A. 2C:12-1b(1) (count two); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3 (count three). Defendant filed a motion seeking to suppress the videotape statement he gave to the police on December 2, 2005. On June 14, 2007, the trial court granted the motion in part and denied the motion in part.

A jury convicted defendant of counts one and three, and of simple assault, N.J.S.A. 2C:12-1a, as a lesser-included offense on count two. On September 28, 2007, the court sentenced defendant on count one to an eight-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a three-year period of parole supervision upon release. After merging count two with count one, the court sentenced defendant on count three to a five-year term of imprisonment, concurrent with the sentence imposed on count one. The court also ordered defendant to pay restitution in the amount of $11,637.95 for the victim's medical bills. Lastly, the court directed defendant to pay all appropriate fines and penalties.

On appeal, defendant argues:

POINT I.

THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO SUPPRESS THE DECEMBER 2, 2005 STATEMENT WAS BASED UPON ERRONEOUS FINDINGS OF FACT AND MISAPPLICATION OF CONTROLLING FEDERAL AND STATE LAW WHEN IT RULED THAT THE STATE DID NOT VIOLATE THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE CONCOMITANT COMMON LAW RIGHT UNDER STATE V. HARTLEY[] BY FAILING TO SCRUPULOUSLY HONOR [DEFENDANT'S] INVOCATION OF HIS PROTECTION FROM SELF-INCRIMINATION.

POINT II.

THE ENTIRE STATEMENT OF DEFENDANT SHOULD HAVE BEEN PRECLUDED FROM USE AT THE TIME OF TRIAL BECAUSE AFTER DEFENDANT INVOKED HIS MIRANDA[] RIGHTS, DETECTIVE JOHNSON FAILED TO RE-MIRANDIZE DEFENDANT, THUS MAKING THE ENTIRE STATEMENT [INADMISSIBLE] AT THE TIME OF TRIAL.

POINT III.

THE DEFENDANT'S CONVICTIONS MUST BE REVERSED AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW).

POINT IV.

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

POINT V.

THE JUDGE'S DECISION TO ORDER DEFENDANT TO PAY RESTITUTION WAS [MADE WITHOUT] REFERENCE TO DEFENDANT'S ABILITY TO PAY AND THE MATTER MUST BE REMANDED.

We affirm.

I.

Defendant and A.D. are the biological father and mother of Michael, born September 2005. Because defendant worked from home and A.D. worked outside of the home during the day, defendant served as Michael's primary daytime caretaker.

On December 2, 2005, at approximately 11:00 a.m., defendant telephone 9-1-1, advising that Michael was not breathing properly. The emergency medical technicians and the police responded. Believing that Michael was having seizures, they arranged for Michael to be transported by ambulance to Overlook Hospital in Summit. Because of the serious nature of Michael's medical problems, Overlook Hospital immediately transferred Michael to Morristown Memorial Hospital where he was admitted into its pediatric intensive care unit. Michael remained a patient at that hospital until December 22, 2005.

While at Morristown Hospital, Michael was diagnosed as suffering from a fracture of his left clavicle; multiple posterior fractures of the fifth, sixth and seventh left ribs, and of the fifth and seventh right ribs; a retinal hemorrhage; seizures; fractures of both the left and right sides of his skull; subdural hemmatomas; a laceration of his liver; a contusion to the lower portion of his right lung; and a questionable fracture of the right tibia. The injuries to Michael's skull, liver and the posterior fracture of his seventh right rib were acute, that is, they happened within seven to ten days of his admittance into the hospital. The other multiple rib fractures showed evidence of calcium formation, indicating that the injuries had occurred more than seven to ten days before his admittance.

Because of the nature of Michael's injuries and because the diagnostic tests disclosed that his injuries had occurred on at least two separate days, Doctors Jeanne Annette Craft, a pediatric intensivist, and Sean T. Calhoun, a radiologist, opined that the injuries had been caused by non-accidental trauma. Dr. Elizabeth Susan Hodgson, who examined Michael's medical records from time of birth through discharge from the Morristown Hospital on December 22, 2005, opined that the injuries to Michael's ribs had resulted from "crush forces" to his chest on two separate occasions, and the injuries to his brain had resulted from being violently shaken. Stated differently, the doctors opined that Michael's injuries were inflicted by another.

On December 2, 2005, Detective Walter Johnson of the Union Count Prosecutor's Office and Detective Anthony Marques of the Union Township Police Department conducted a videotape interview of defendant at the Union County Prosecutor's Office. Defendant denied knowledge of the cause of Michael's injuries. He told the police he had fed Michael at approximately 5:30 a.m. that morning, and when he had checked on the child at 11:00 a.m., he saw that Michael had thrown up on himself. Noticing that Michael was not breathing properly, defendant attempted cardio pulmonary resuscitation and telephoned 9-1-1.

Following defendant's interview, the police spoke to A.D. She informed the police that she had left her home at approximately 5:30 a.m., but had not checked on Michael because she did not want to awaken him. She received a telephone call at approximately 12:00 noon from defendant at Overlook Hospital advising her of the incident. While at the hospital, defendant never told her or the hospital personnel that Michael had suffered any trauma. Nevertheless, immediately following their interviews with the police and while waiting in the hallway at the Union County Prosecutor's Office, defendant informed A.D. that he had accidentally dropped Michael earlier that day. When A.D. questioned defendant seeking a further explanation of what exactly happened, "he said he didn't want to talk about it at that point."

On December 5, 2005, the police again spoke with A.D. She informed the police that on December 3, 2005, while at Morristown Hospital, defendant told her that "he was feeding [Michael] downstairs in the basement, and after he was done feeding, he was going upstairs to put [Michael] back in the crib and he tripped over the old rug on the stairs and he dropped him."

II.

Defendant first argues that the trial court erred in determining that the first fifty-three pages of his transcribed December 2, 2005 statement were admissible. Defendant contends that the court erroneously concluded he had not invoked his right to remain silent until page fifty-four of his transcribed statement. Defendant asserts that he had invoked his right to remain silent at the outset of his interview.

An appellate court's scope of review of a trial court's factual determination is limited. State v. Robinson, 200 N.J. 1, 15 (2009). On reviewing a motion to suppress, we "'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Additionally, factual findings of the trial court are entitled to deference 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. (quoting Elders, supra, 192 N.J. at 244).

When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence 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." State v. Johnson, 42 N.J. 146, 162 (1964). "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.

The Fifth Amendment affords defendants the privilege against self-incrimination. U.S. Const. amend. V. The right against self-incrimination has been made applicable to the States through the due process clause of the Fourteenth Amendment. State v. Nyhammer, 197 N.J. 383, 399-400 n. 7, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). The right is now codified in our rules of evidence. N.J.S.A. 2A:84A-19; N.J.R.E. 503.

In situations of custodial interrogation, Miranda warnings are required as procedural safeguards to protect this Fifth Amendment privilege. Miranda, supra, 384 U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719. Prior to a custodial interrogation, the police must advise a suspect that:

[1] he has the right to remain silent, [2] that anything he says can be used against him in a court of law; [3] that he has a right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

[Id. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726.]

Additionally, a suspect must be advised that he can exercise those rights at any point during the interrogation. Ibid.

The Fifth Amendment privilege may be waived so long as waiver is made knowingly, voluntarily and intelligently. Nyhammer, supra, 197 N.J. at 400-01; State v. Cook, 179 N.J. 533, 563 (2004). If a suspect waives his right to remain silent after the police properly advised him of his Miranda warnings, the police are free to interrogate the suspect. State v. Adams, 127 N.J. 438, 447-48 (1992). However, in accord with the Miranda warnings, even after interrogation has commenced, a suspect may invoke his or her right to remain silent at any time during the interrogation. State v. Johnson, 120 N.J. 263, 281 (1990). That right need not be expressed "with the 'utmost of legal precision.'" Ibid. (quoting State v. Bey, 112 N.J. 45, 65 (1988)). Indeed, if a suspect "indicates in any manner, at any time . . . during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723.

Once a suspect indicates that he desires to remain silent, that right must be "'scrupulously honored.'" Johnson, supra, 120 N.J. at 282 (quoting Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S. Ct. 321, 325-26, 46 L. Ed. 2d 313, 320-21 (1975)). "Where the invocation of the right to remain silent is followed by no interruption in questioning, and where the interrogation continues as if nothing had happened, the right is not scrupulously honored." Ibid.

Nonetheless, "[l]aw enforcement officials . . . are not obligated to accept any words or conduct, no matter how ambiguous, as a conclusive indication that a suspect desires to terminate questioning." State v. Martini, 131 N.J. 176, 233 (1993), overruled on other grounds, State v. Fortin, 178 N.J. 540, 646 (2004). However, if the police are not sure whether a suspect is asserting his right to remain silent, the police are required to cease the interrogation or ask such questions that are only "designed to clarify whether the suspect intended to invoke his right to remain silent." Johnson, supra, 120 N.J. at 283 (quoting Christopher v. Florida, 824 F.2d 836, 842 (11th Cir. 1987), cert. denied, 484 U.S. 1077, 108 S. Ct. 1057, 98 L. Ed. 2d 1019 (1988)); accord State v. Wright, 97 N.J. 113, 120 n. 4 (1984). With these principles in mind, we turn to defendant's argument.

On December 2, 2005, Detectives Johnson and Marques interviewed defendant at the Union County Prosecutor's Office. The videotape interview commenced at 9:59:59 p.m. and ended at 10:33:10 p.m. On May 23, 2007, the interview was transcribed verbatim into a sixty-page typed written statement. Copies of both the videotape and the transcribed statement were presented to the trial court on the motion to suppress. We discern the following facts from a review of the transcript of the June 14, 2007 motion to suppress, the digital video disc (DVD) of the December 2, 2005 police interview, and the May 23, 2007 transcribed copy of the interview.

After confirming defendant's relationship to Michael and A.D., Detective Johnson told defendant that "[w]e just want to find out what happened to your son," but that "before we ask you any questions though we have to advise you of your rights." Johnson next inquired whether defendant could "read, write and understand the English language?" Defendant responded "Yes." Following that brief colloquy, Johnson then had defendant read each of the Miranda warnings out loud one at a time. After defendant read each warning, Johnson asked defendant whether he understood that particular warning, and if so, to place his initials next to that warning. Following defendant's compliance, the following colloquy occurred between Johnson and defendant:

[Johnson]: Okay. And please understand, you're not under arrest, okay? We just want to talk to you. Um, anytime you, you don't want to talk to us anymore, you know, you don't have to, okay? Can you just read this . . . portion out loud also?

22:03:10 [military time of videotape]

[Defendant]: I have read the statement of my rights'[,] and I understand what my rights are. I am willing to make a statement and ans . . . See now that contradicts this.

[Johnson]: What's that?

[Defendant]: I am willing to make a statement and answer questions.

[Johnson]: Right.

[Defendant]: Not without a lawyer.

[Johnson]: Okay, I mean is that what you . . . .

[Defendant]: This is not routine to me, so . . .

[Johnson]: Okay.

[Defendant]: . . . you know, I won't read that part out loud.

22:03:29

[Johnson]: Okay. No, I mean still, you still read it out loud. I mean, if you don't agree to it.

[Defendant]: This is saying if I'm willing to make a statement and answer questions, not without a lawyer.

[Johnson]: Okay, okay alright. So are you saying that you're not willing to talk to us with, without an attorney?

22:03:41

[Defendant]: I'll talk to you[,] but I want to choose what I'm going, cause, ah, this isn't, I mean I'll tell my story, what happened today . . .

[Johnson]: Okay.

[Defendant]: . . . just like I've been telling all day.

[Johnson]: Okay.

[Defendant]: But . . . Go [a]head, whatever you do.

[Johnson]: Okay. Well just read that aloud and if you agree with it then you sign it and we could talk to you about, you know, your son's injuries, I mean, cause that's what, that's the only thing we're concerned about here. Um, you know cause you've been at the hospital, your son is still there.

[Defendant]: Yeah.

At 10:04:45 p.m., defendant then read the following statement: "I am willing to make a statement and answer questions, no promises or threats have been made to me and no pressure or coercion of any kind have been used against me." After defendant signed the waiver form, the detectives interrogated defendant concerning the events of December 2, 2005. Near the end of the interview, at 10:33:30 p.m., the following colloquy occurred between Detective Johnson and defendant.

[Johnson]: Okay. Um, had you ever dropped him, you know, accidentally or, or anything? Ever?

[Defendant]: (Shakes head).

[Johnson]: No?

[Defendant]: I don't want to answer that either.

[Johnson]: I'm sorry.

[Defendant]: I don't want to answer that.

[Johnson]: What do you mean?

[Defendant]: I don't know what, how to

answer that?

[Johnson]: I mean, well, you know if you

ever dropped your so. . .

[Defendant]: without a lawyer, that's going

back to my rights thing.

Following the trial court's review of the DVD of defendant's interrogation and of the transcribed written statement, the court granted defendant's motion to suppress in part and denied the motion in part.

In so ruling, Judge Peim determined that, although defendant had made an ambiguous statement at the beginning of the interrogation concerning whether he was willing to make a statement and answer questions, initially stating: "Not without a lawyer," Detective Johnson complied with Miranda and its prodigy by clarifying what defendant meant. The court stated:

The Court: . . . [t]his is my ruling. The detective did exactly what the Supreme Court of New Jersey in Chew[] and prior cases said he should do, you stop and you clarify. And he asked the most clear question imaginable[:] "So are you saying that you're not willing to talk to us without an attorney?"

Clear, straightforward, unequivocal.

Then your client says "I'll talk to you, but I want to choose what I'm going to say."

[Defense

Counsel]: I understand that.

The Court: So I find that he was adequately given his Miranda warnings, that there was an ambiguous exchange, . . . that the detective clearly, very clearly clarified, and that your client knowingly and voluntarily waived his Miranda rights.

However, the court determined from defendant's responses to Johnson's questions, see infra pp. 14-15, that defendant had invoked his right to remain silent at 10:33:30 p.m. Accordingly, the court excluded that part of the transcribed statement from page fifty-four to its end at page sixty.

The Court: And I find . . . that the statement, going through Page 53 is fine.

That at the top of [Page] 54, on Page 54 that . . . he was told, and he obviously understood, he was told that he could assert these rights at any time.

And Page 54 he decided to assert those rights.

[Defense

Counsel]: Okay.

The Court: Clearly said I didn't want to answer this particular question.

And I find that that shaking of the head is sufficiently ambiguous that I think that it starts at the beginning of Page 54, in my ruling, that he first starts out by saying "I don't want to answer that question." And then makes a more ambiguous question about a demand for a lawyer. "Without a lawyer, that's going back to my rights thing," I find that the expression that "I didn't want to answer that question about accident or dropping the child," I don't find that to be ambiguous. The statement about whether he wanted to go ahead with a lawyer or not, that is ambiguous.

Either way, the officer had an obligation, if it was ambiguous, to stop and clarify again. And he did not.

So that anything after [Page 53] is [suppressed] after the assertion of Miranda rights.

On July 9, 2007, Judge Peim entered an order confirming his June 14, 2007 oral decision.

We have considered defendant's argument in Point I in light of the record and applicable law. We reject that argument substantially for the reasons expressed by Judge Peim in his oral decision of June 14, 2007. We conclude that defendant's "[n]ot without a lawyer" comment, when reading that part of the printed Miranda warning stating "I am willing to make a statement and answer questions" at the commencement of the interrogation, was sufficiently ambiguous to justify a follow-up question by Detective Johnson as to what defendant meant. Defendant's comment was an expression that he believed the written Miranda warning was contradictory, not that he was refusing to continue with the interrogation, absent a lawyer. On clarification by Detective Johnson, defendant expressed a willingness to provide his "story" of what had occurred that day.

In Point II of his brief, defendant argues that the trial court erred in denying his motion to suppress his entire December 2, 2005 statement. Defendant contends that he asserted his right to silence at the commencement of the interrogation proceeding and the police failed to re-administer the Miranda warnings before continuing the interrogation. We agree that Hartley established a bright line test that any statement made following the invocation of a suspect's right to remain silent is considered "unconstitutionally compelled, and hence inadmissible," unless the Miranda warnings are provided anew. Supra, 103 N.J. at 278-79. However, because defendant had not invoked his right to remain silent at the commencement of the interrogation proceeding, we conclude that there was no obligation upon the police to re-advise defendant of his Miranda warnings.

In Point III, defendant argues that the jury verdict was against the weight of the evidence. Because defendant failed to assert this issue in the trial court, he is barred from raising it on appeal. R. 2:10-1 (stating in part that "the issue of whether a jury verdict was against the weight of the evidence shall be not cognizable on appeal unless a motion for a new trial on that ground was made in the trial court"); see also State v. McNair, 60 N.J. 8, 9 (1972). What is more, we are satisfied that the record contains sufficient evidence upon which the jury could have reasonably determined defendant guilty beyond a reasonable doubt.

Defendant argues next that the trial court's sentence on count one to an eight-year term of imprisonment with an 85% period of parole ineligibility, subject to NERA, and to a three-year period of parole supervision upon release, was excessive. We disagree.

When reviewing a sentence, we determine whether the trial court exercised its discretion "based upon findings of fact that are grounded in competent, reasonably credible evidence," and whether the court applied the correct legal principles to those findings. State v. Roth, 95 N.J. 334, 363 (1984). We will only reverse a sentence where the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Id. at 364. "The test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is whether, on the basis of key evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994); accord State v. Cassady, 198 N.J. 165, 180 (2009).

We conclude that the trial court properly "adhered to the sentencing principles set forth in the [New Jersey Code of Criminal Justice] and defined in our case law." State v. Bieniek, 200 N.J. 601, 612 (2010). Accordingly, we find no reason to interfere with the sentence imposed.

Lastly, defendant argues that the trial court erroneously ordered him to pay restitution for Michael's medical expenses without first conducting an ability-to-pay hearing. This argument is meritless. R. 2:11-3(e)(2). At sentencing, defendant agreed to make restitution.

 
Affirmed.

State v. Hartley, 103 N.J. 252 (1986).

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

Michael is a fictitious name.

State v. Chew, 150 N.J. 30 (1997), overruled in part on other grounds, State v. Boretsky, 186 N.J. 271 (2006).

(continued)

(continued)

20

A-1784-07T4

RECORD IMPOUNDED

March 30, 2010