STATE OF NEW JERSEY v. JOAO M. SPENCER OLIVEIRA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0162-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOAO M. SPENCER OLIVEIRA,

Defendant-Appellant.

_______________________________

October 25, 2011

 

Submitted: September 28, 2011 - Decided:

 

Before Judges Axelrad and Sapp-Peterson.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-08-0680.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Mark P. Stalford, Designated Counsel, on the brief).

 

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Alexander J. Rasi, Assistant Prosecutor, on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Following denial of his motion to suppress statements made to detectives, defendant Joao Spencer Oliveira pled guilty to first-degree murder, N.J.S.A. 2C:11-3. Defendant preserved the Miranda1 issue for appeal.

On May l, 2008, Judge Moynihan sentenced defendant in accordance with the negotiated plea agreement, treating the murder conviction as though it were a conviction for aggravated manslaughter, N.J.S.A. 2C:11-4a. The judge also dismissed the remaining counts of the indictment consisting of two weapons charges and one theft charge. He imposed a twenty-four-year custodial term with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and appropriate fines and penalties. Defendant appeals from his conviction and sentence.

Defendant asserts the following arguments on appeal through counsel:

POINT I

THE COURT ERRED IN FINDING THE DEFENDANT'S STATEMENTS TO THE POLICE WERE ADMISSIBLE AS DEFENDANT DID NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVE HIS RIGHT AGAINST SELF-INCRIMINATION.

 

POINT II

THE SENTENCE IMPOSED BY THE COURT IS MANIFESTLY EXCESSIVE.

 

Defendant asserts the following arguments on appeal in a pro se supplemental brief:

POINT I

[DEFENDANT] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS COUNSEL SHEILA J. TOBIN FAILED TO DO ANY KIND OF INVESTIGATION IN [HIS] CASE OR ATTEMPT TO DEVELOP AN ADEQUATE TRIAL STRATEGY BEFORE CONVINCING HIM TO PLEAD GUILTY IN VIOLATION OF HIS FIFTH AND SIXTH AMENDMENT RIGHTS.

 

POINT II

THE TRIAL COURT/STATE'S PROSECUTOR B. HOLMES AND DEFENSE COUNSEL S. TOBIN BREACHED THE PLEA BARGAIN AGREEMENT BETWEEN [DEFENDANT] AND THE STATE; PROSECUTORIAL MISCONDUCT AND; INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL/PLEA HEARING.

 

POINT III

THE TRIAL COURT'S FAILURE TO CHARGE PASSION/PROVOCATION MANSLAUGHTER AS A LESSER-INCLUDED OFFENSE DENIED [DEFENDANT] A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARAS. 1, 10. AND INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL/PLEA.

 

POINT IV

THE TRIAL JUDGE SCOTT J. MOYNIHAN'S FAILURE TO HONOR HIS DUTY AND MORAL OBLIGATION TO ADDRESS [DEFENDANT] WITH HIS "FACTUAL BASIS" PERSONALLY IS IN VIOLATION OF [DEFENDANT'S] STATE AND FEDERAL CONSTITUTIONAL RIGHTS OF DUE PROCESS CLAUSE; THE TRIAL JUDGE, PROSECUTOR, & DEFENSE COUNSEL "COERCED" [DEFENDANT] INTO PLEADING GUILTY TO MURDER/AGGRAVATED MANSLAUGHTER; PROSECUTORIAL MISCONDUCT AND; INEFFECTIVE ASSISTANCE OF COUNSEL - ALL IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS.

 

A. [DEFENDANT] SHOULD HAVE BEEN AFFORDED THE BENEFIT OF AN INTERPRETER THROUGHOUT HIS ENTIRE COURT PROCEEDINGS.

 

B. THE TRIAL COURT JUDGE SHOULD HAVE PERSONALLY GIVEN [DEFENDANT] HIS FACTUAL BASIS.

 

POINT V

THE TRIAL COURT JUDGE ERRED AND DEFENSE COUNSEL WAS INEFFECTIVE [AND] PREJUDICED [DEFENDANT] FOR FAILING TO RECOGNIZ[E] HIS REQUEST FOR A JURY TRIAL WITH AN INTOXICATION DEFENSE - A JURY CHARGED AS TO VOLUNTARY INTOXICATION.

 

POINT VI

[DEFENDANT'S] CONSTITUTIONAL RIGHTS TO THE SIXTH AMENDMENT RIGHTS: TO CONFRONT WITNESSES; TO BE INDICTED BY AN INDEPENDENT AND INFORMED GRAND JURY; DUE PROCESS; A FAIR TRIAL; AND INEFFECTIVE ASSISTANCE OF COUNSEL AT STRICKLAND v. WASHINGTON, 466 U.S. 688 [1984].

Based on our review of the record and applicable law, we are not persuaded by any of defendant's arguments and affirm.

I.

The following testimony was presented at the Miranda hearing. According to Detective Patricia Gusmano of the Union County Prosecutor's Office, on March 15, 2007, officers from the Elizabeth Police Department responded to the residence of Nelson Marquez, who was pronounced dead at the scene shortly thereafter. A subsequent investigation revealed information that an individual matching defendant's description was at the victim's residence the night he died.

During the late evening and early morning of March 16 and March 17, 2007, defendant entered a senior citizens' facility in Elizabeth and told the security guards on duty that he had killed someone, and requested they call the police. Elizabeth police officers arrived and transported defendant to headquarters.

Detective Gusmano related that she and other detectives questioned defendant three times over a period of approximately twelve hours on March l7. The interrogation commenced at about 3:10 a.m., and other than defendant's field trip with the officers as discussed below, he was returned to a holding cell between questioning, which occurred at 5:46 a.m. and 4:18 p.m. The detectives read defendant his Miranda rights before each session, and each time defendant acknowledged in writing that he understood each of his rights and waived them. Defendant spoke English during the questioning and also indicated to detectives that he could read, write and understand English. The court reviewed three DVDs containing the video and audio recording of the interrogation sessions.

The first portion of the interrogation lasted about one hour. After the initial waiver of his Miranda rights, defendant agreed to continue speaking with detectives. Within about the first ten minutes of talking, defendant admitted to killing the victim and said he had thrown the knife into the river. Defendant accompanied police to the area of the river where he claimed to have discarded the weapon, but when the knife was not found, detectives escorted him back to headquarters. After subsequent efforts to find the weapon were unsuccessful, defendant admitted he had lied about the location of the knife and had actually given the knife to a friend to discard.

Defendant testified he had an eighth grade education in the Cape Verde Islands and understood English. He admitted that before he was questioned by the police, he told his four friends and two security guards that he had killed Marquez.

On July 2, 2008, Judge Moynihan denied defendant's motion to suppress his statements to detectives. The judge found defendant gave the statements "voluntar[il]y, of his own free will, full[y] knowing what his rights were, and he chose to waive those rights three times."

On February 10, 2009, defendant executed a plea form that was consistent with the plea colloquy and sentencing transcript. At the plea hearing the next day, defendant pled guilty to first-degree murder, to be treated for sentencing purposes as an aggravated manslaughter conviction. He admitted he stabbed the victim with a knife after the two had a verbal argument, causing serious bodily injury that resulted in death. Defendant acknowledged he decided against presenting an intoxication defense after discussing it with his attorney and the expert who had been retained by the Public Defender's office. The judge told defendant that by pleading guilty, he would be giving up his constitutional right to present a defense and defendant acknowledged he understood and was waiving this and other rights.2 The judge also explained, in detail, the length of the negotiated sentence, including the parole disqualifier, and informed defendant of the five-year-period of parole supervision. Defendant testified he understood all the terms of the plea, was satisfied with his attorney's representation, and voluntarily desired to enter the plea.

Judge Moynihan found aggravating factors three (risk the defendant will commit other offenses) and nine (need for deterrence), N.J.S.A. 2C:44-1(a)(3), (6), and mitigating factors seven (no history of prior delinquency of criminal activity) and twelve (defendant's cooperation with law enforcement authorities), N.J.S.A. 2C:44-1(b)(7), (12). The judge rejected aggravating factor one (the nature and circumstances of the offense), N.J.S.A. 2C:44-1(a)(l), and mitigating factor four (substantial grounds tending to excuse the defendant's conduct though failing to establish a defense), N.J.S.A. 2C:44-1(b)(4). Finding the aggravating factors outweighed the mitigating factors, the judge sentenced defendant in accordance with the plea agreement.

II.

We first address defendant's challenge to the court's denial of his suppression motion. The court held that defendant voluntarily and intelligently waived his Miranda rights and thus his statements to detectives were admissible. The court observed that defendant seemed calm throughout the interview, and noted defendant volunteered information by stating, "I want to talk," after detectives gave him a second explanation regarding his right to remain silent. The court rejected defendant's claim regarding his lack of intelligence, explaining that defendant was intelligent enough to attempt to protect his friends by lying about the location of the murder weapon.

Defendant argues the court improperly admitted his custodial statements, contending his youth, lack of education, foreign nationality and inexperience with the criminal justice system rendered him unable to understand the Miranda warnings. Defendant further contends the detectives' failure to advise him as to his right of consular notification resulted in a violation of the Vienna Convention on Consular Relations (Vienna Convention).

We are not persuaded by defendant's arguments. It is well known that a suspect may waive his Miranda rights provided his waiver is given "voluntarily, knowingly and intelligently" as viewed under the totality of the circumstances. See Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706; see also State v. Galloway, 133 N.J. 631, 654 (l993). There are a variety of factors a court may consider in determining voluntariness, including the defendant's age, education, intelligence, length of detention, advice concerning constitutional rights, whether questioning was repeated and prolonged, and whether physical punishment and mental exhaustion were involved. Galloway, supra, 133 N.J. at 654. It is the State's burden to prove, beyond a reasonable doubt, that the confession was a product of the defendant's own will, rather than any police coercion. State v. Patton, 362 N.J. Super. 16, 42 (App. Div. 2003).

The totality of the record clearly supports Judge Moynihan's conclusion that defendant was properly advised of his Miranda rights at headquarters, knowingly waived his rights, and voluntarily chose to confess to stabbing Marquez. Detective Gusmano explained to defendant what she was reading him from the Miranda form. When asked if he could read, write and speak English, defendant responded that he could. Detective Gusmano even specifically asked defendant if he wanted the aid of an interpreter, but he declined the offer. When the detective explained to defendant that he had the right not to speak to the officers, he replied, "I want to talk to you." Moreover, throughout the interrogation, defendant responded to the detectives' questions in a calm, relaxed, and articulate manner. At no point did the detectives appear to be coercing or forcing defendant to speak, nor did it appear there was any type of language barrier.

We affirmed the admission of statements made by a non-English-speaking, eighteen-year-old defendant of low intelligence in State v. Cabrera, 387 N.J. Super. 81 (App. Div. 2006). There, an illegal Mexican citizen who could not read, write or understand English, and whose highest level of education was sixth grade which was completed in Mexico, was questioned over a period of ten hours regarding the sexual assault of a child. Id. at 87-92. The defendant was given his Miranda warnings several times, and he reviewed his statement with a Spanish interpreter. Id. at 90-97. During a suppression hearing, the trial court found the defendant had voluntarily, knowingly and intelligently waived his Miranda rights. Id. at 98. In affirming, we considered that the defendant was not continuously questioned over the ten hour period, was provided food and drink, was not tired, and was given several warnings regarding his rights. Id. at 98-100.

Here, defendant was even more willing to provide his statements to the police than the defendant in Cabrera. Defendant's questioning, though spread over a period of about twelve hours, amounted to less than three hours of actual interrogation. As Judge Moynihan noted, defendant's essential confession to the crime came within the first five to ten minutes of the investigation.

Further, the detectives advised defendant of his Miranda rights prior to each separate interrogation. He was offered water, coffee and snacks. At no time on the videotape does defendant appear tired and he never complains. Additionally, though defendant raises the issue of his lack of intelligence, he was nineteen years old and had been living in the United States for two years prior to this incident. Moreover, as Judge Moynihan astutely commented, defendant was intelligent enough to lie about the murder weapon in order to protect his friends.

Finally, defendant's argument that his statements should be inadmissible as a result of the detectives' failure to advise him of his rights under the Vienna Convention lacks merit. The United States Supreme Court has held that a violation of the Vienna Convention alone does not render a statement taken from a foreign national inadmissible. Cabrera, supra, 387 N.J. Super. at 86 (citing Sanchez-Llamas v. Oregon, 548 U.S. 331, 126 S. Ct. 2669, 165 L. Ed. 2d 557 (2006)).

Through counsel, defendant also challenges his twenty-four-year sentence as excessive. Specifically, defendant contends that too much weight was given to aggravating factors three and nine, and too little weight was given to mitigating factors seven and twelve. Defendant also urges that the court should have considered mitigating factor four, contending he demonstrated great remorse for his actions.

In reviewing claims of excessive sentences, we are charged with ensuring the trial judge applied the correct legal principle. State v. Bieniek, 200 N.J. 601, 607-08 (2010). A trial judge has much discretion to impose a sentence, and "[t]he fundamental principle is that an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." State v. O'Donnell, 117 N.J. 210, 216 (1989). Modification or remand of a sentence is only appropriate where an appellate court finds the aggravating and mitigating factors to be unsupported by the competent credible evidence in the record, Bieniek, supra, 200 N.J. at 608, or the facts and law show "such a clear error of judgment that it shocks the judicial conscience," State v. Roth, 95 N.J. 334, 364 (1984).

We further note that particularly with negotiated sentences, a "court's decision to impose a sentence in accordance with the plea agreement should be given great respect, since a 'presumption of reasonableness . . . attaches to criminal sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super. 61, 71 (App. Div. 1996) (quoting State v. Sainz, 107 N.J. 283, 294 (1987)).

We are satisfied the court properly sentenced defendant in accordance with his plea agreement, which was within the range for the aggravated manslaughter offense. Moreover, the court made appropriate findings as to the aggravating and mitigating factors. For example, the finding of aggravating factor three was appropriately based on defendant's history of substance abuse, failure to pay taxes, and failure to register with authorities, clearly demonstrating previous noncompliance with the law.

The court also appropriately gave little weight to mitigating factors seven and twelve. Defendant's lack of a criminal record warranted a finding of factor seven, but the fact he had only been in the United States for two years rendered this negligible. See State v. Soto, 340 N.J. Super. 47, 72 (App. Div.) (holding the trial judge's refusal to give weight to defendant's lack of criminal history appropriate because the defendant was only twenty-three years old and had been in the country only a short time), certif. denied, 170 N.J. 209 (2001). Similarly, although factor twelve was warranted because defendant did turn himself in to the security guards and cooperate with the detectives during the investigation, it had little weight because he also "[brought] the police on what more or less amounts to a joy ride because he falsely reported where the knife was."

Contrary to defendant's assertion, the court also had ample basis in law to reject his claim that his ingestion of drugs or alcohol on the day of the murder constituted "substantial grounds tending to excuse or justify [his] conduct, though failing to establish a defense," (emphasis added) warranting a finding of mitigating factor four. N.J.S.A. 2C:44-1(b)(4). See State v. Ghertler, 114 N.J. 383, 389-90 (l989) (holding a defendant's drug dependency was not a mitigating factor to justify or excuse his or her conduct); State v. Setzer, 268 N.J. Super. 553, 567 (App. Div. 1993) (holding that intoxication during the commission of a crime may not mitigate the offense in regards to sentencing), certif. denied, 135 N.J. 468 (1994).

Overall, defendant's sentence does not shock our judicial conscience. Roth, supra, 95 N.J. at 364. He received the benefit of a favorable negotiated plea, had three charges dismissed, and was sentenced as if he had pled to the offense of aggravated manslaughter rather than murder.

We turn now to the points raised in defendant's pro se supplemental brief which, for the most part, are couched in terms of ineffective assistance of trial counsel. We note that a claim of ineffective assistance of counsel generally cannot be raised on direct appeal. State v. Preciose, 129 N.J. 451, 460 (l992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Normally, a hearing is necessary to develop a record and give counsel an opportunity to provide an explanation of his or her conduct. Sparano, supra, 249 N.J. Super. at 419. In this case, however, we are satisfied the trial record is sufficient to dispose of defendant's arguments on direct appeal rather than having them abide a post-conviction relief petition. See State v. Dixon, 125 N.J. 223, 262 (1991).

In his first point, defendant contends his trial attorney failed to develop an adequate trial strategy, failed to investigate witnesses, did not raise the defense of a lesser-included offense, failed to collect medical reports for the possibility of an intoxication offense, and failed to present witnesses on his behalf. These allegations of deficient performance that prejudiced defendant's right to a fair trial are bald assertions that fail to establish a prima facie case of ineffective assistance of counsel. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (l999). Other than our discussion of the intoxication defense, infra, defendant's arguments on this point are of such insufficient merit not to warrant further discussion. R. 2:11-3(e)(2).

Defendant's second and fourth points pertain to his plea bargain. Defendant argues the State "breached" the plea agreement because he did not correctly understand the sentence in his plea agreement, and because he was "coerced" into signing it. According to defendant, the following mistakes on the plea agreement form are evidence of this breach: (1) his name does not appear on the front of the form in the proper spot; (2) Judge Moynihan's name does not appear on the plea form in the proper spot; (3) under the charge to which defendant pled guilty stated "Murder, to treat as Agg. manslaughter for sentencing," the sentence read "life" rather than the agreed-upon twenty-four-year sentence; and (4) the spot for "total exposure as a result of this plea" was left blank. Defendant also claims he unknowingly agreed to provide a DNA sample and understood he was agreeing to just mandatory parole supervision, not a mandatory parole period. Defendant further asserts as "prosecutorial misconduct" that he was charged with theft without a predicate factual basis for the offense.

Defendant's claims are without basis in fact or law. Moreover, to the extent defendant is seeking to vacate his guilty plea, he has not satisfied any of the factors articulated by the Supreme Court in State v. Slater, 198 N.J. 145, 157-58 (2009): "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." See also R. 3:21-l (stating that post-sentencing motions to retract a guilty plea will be permitted only to correct a manifest injustice).

During the plea colloquy, Judge Moynihan referenced the police reports and defendant's signed plea form. The judge clearly articulated the details of defendant's negotiated agreement, including the offense to which he would be pleading, the dismissal of the other charges, and the specific terms of defendant's sentence, including the parole disqualifier and net sentence, as well as the five-year period of parole supervision. Defendant responded "no" when he was asked if he had any questions of the judge or counsel "about anything." Defendant unequivocally acknowledged his understanding of all the terms and consequences of the plea, his satisfaction with his trial attorney, and his voluntary intention to plead guilty to the charge. Judge Moynihan fully complied with the requirements of Rule 3:9-2, and sentenced defendant exactly in accordance with the negotiated plea.

A court must withdraw a plea agreement that is based on misinformation that is material and relied upon by the defendant. State v. Nichols, 71 N.J. 358, 361 (1976). Such "material" issues include a defendant being misled as to the potential length of a sentence, State v. V.D., 401 N.J. Super. 527, 534-35 (App. Div. 2008), or a defendant not being informed of a mandatory 85% NERA parole disqualifier, State v. Cheung, 328 N.J. Super. 368, 371 (App. Div. 2000). Here, however, what defendant perceives as mistakes in his plea agreement actually amount to defendant's own misunderstanding of the form, rather than his misunderstanding of the agreement itself. For example, the reference to "life" represents the maximum sentence defendant could receive for the murder charge under N.J.S.A. 2C:11-3, not the plea agreement sentence. Defendant also expressly agreed in the plea form to provide a DNA sample. This requirement has been held to be constitutional, and is required in this state. State v. O'Hagen, 189 N.J. 140, 145 (2007); N.J.S.A. 53:1-20.20d.

Defendant has not raised any specific misconduct on behalf of the prosecutor. If he is challenging the theft charge contained in the fourth count in the indictment, that charge was dismissed as part of his negotiated plea.

Judge Moynihan also expressly informed defendant of all the rights he was waiving by pleading guilty, including his right to a jury trial. With reference to defendant's point five, as is evident from the following plea colloquy, defendant acknowledged his voluntary decision not to present an intoxication defense:

[Prosecutor]: And you've had some discussions with your defense attorney about possible defenses at trial. Correct?

 

[Defendant]: I did.

 

[Prosecutor]: And, for one, together you investigated the ability of an intoxication defense?

 

[Defendant]: We did.

 

[Prosecutor]: You know the Public Defender's Officer hired a defense expert to consider the intoxication defense. Correct?

 

[Defendant]: Correct.

 

[Prosecutor]: And based on your conversations with Miss Tobin, and the expert's opinion, you decided that that, probably, would not be successful at trial. Correct?

 

[Defendant]: The Doctor stated that he didn't feel comfortable to take the stand and argue that I was really intoxicated at the time or intoxicated enough to do what I did. That is what was said.

 

The court was satisfied defendant had voluntarily waived his rights and, in particular, this defense.

Turning to point six, the record is clear that there was no language barrier and defendant did not require the assistance of an interpreter. He had been in the United States for two years, declined an interpreter when specifically asked by the detectives during the interrogation if he wanted one, spoke English during all custodial and judicial proceedings, and represented at the interrogation and court hearings that he was able to speak and understand English. Moreover, when the court noticed that an interpreter was present at the sentencing hearing, defense counsel clarified that it was for members of the victim's family and defendant did not need an interpreter. Defendant was present and did not contradict the statement.

Defendant fully understood the charge he was pleading to and provided a sufficient factual basis to support a conviction. See State v. Pineiro, 385 N.J. Super. 129, 137 (App. Div. 2006). In contrast with federal practice that requires a court to address a defendant directly, McCarthy v. U.S., 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969), New Jersey procedure does not require a judge to elicit a factual basis from defendant. Defense counsel elicited an appropriate factual basis from defendant that addressed all the elements of the charge to which he pled.

We reject defendant's remaining arguments in point three (that the court erred and counsel was ineffective for failing to charge passion/provocation manslaughter as a lesser-included offense) and in point six (that Detective Gusmano's testimony during the Miranda hearing violated his Sixth Amendment rights to confront witnesses, due process, and a fair trial, and his counsel was ineffective for refusing to investigate witnesses, bring witnesses to the hearing, and object during the hearing) as wholly without merit. To the extent that defendant has raised any other arguments in his pro se brief not expressly addressed in this opinion, they are rejected as without sufficient merit warranting further discussion. R. 2:11-3(e)(2).

Affirmed.

 

 

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

2 We note that defendant stated he was a United States citizen with a green card and acknowledged there was a risk he could be deported. See State v. Nunez-Valdez, 200 N.J. 129 (2009).