STATE OF NEW JERSEY v. SAMANDER S. DABAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3858-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMANDER S. DABAS,

Defendant-Appellant.

___________________________________

October 26, 2011

 

Submitted September 28, 2011 - Decided

 

Before Judges Lihotz and Waugh.

 

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-1754.

 

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

 

BruceJ. Kaplan,Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Samander S. Dabas appeals from his conviction for the purposeful or knowing murder of his wife Renu Dabas, in violation of N.J.S.A. 2C:11-3(a)(1) or (2) (count one), and the knowing attempt to leave the scene of a fatal motor vehicle collision, in violation of N.J.S.A. 2C:5-1 and 2C:11-5.1 (count two). We affirm the conviction for attempting to leave the scene of a fatal accident, but reverse the murder conviction and remand for a new trial.

I.

We discern the following facts and procedural history from the record on appeal, particularly the transcripts of the motion to suppress and the trial.

A.

Samander1 was born in India. He lived in New Jersey with Shushila and Jitander Khatri, his sister and brother-in-law, from 1990 until his first marriage in 1991. After his divorce in 2000, he resumed living with the Khatris. In the spring of 2003, Samander went to India, where he entered into an arranged marriage with Renu. Although Samander returned to New Jersey shortly after the marriage, Renu could not accompany him because she did not have the required visa. Renu obtained the visa and joined Samander in late July 2004.

In 2004, Samander was working seven days a week at a manufacturing company. He also worked two to three times a week at Dollar City, a store owned by the Khatris and located in South Brunswick Square Mall (Mall).

On Tuesday, August 24, 2004, Halah Shal was working at Dollar City, expecting Shushila to relieve her between 5:00 and 6:00 p.m. Prior to that time, however, Shushila telephoned Shal and told her that Samander would be coming in her place.

Samander arrived at approximately 5:10 p.m., accompanied by Renu. Shal observed them walking the aisles of the store and talking, after which Samander went to the back of the store to open boxes. Shal left at about 5:30 p.m.

Between 9:15 and 9:25 p.m. that evening, Heather Porcello, an employee of a tanning salon at the Mall, heard "a loud bang noise" that she described as "almost like a car backfiring" in the parking lot. She looked out the front window and saw "a van kind of jerked to a stop right in front of the salon," approximately twenty to thirty feet away. She observed smoke coming out of the hood of the car. There were no other vehicles moving in the parking lot at that time.

Jessica Almodovar, the receptionist at a hair salon adjacent to the tanning salon, heard a loud noise from the direction of the parking lot. About ten seconds later, an employee who had been standing at the front door of the salon told Almodovar to call 9-1-1 because there had been an accident. When Almodovar looked out, she noticed a woman, eventually identified as Renu, lying on the curb, and a man, eventually identified as Samander, standing by the van. The man was looking under the hood and then got into the driver's side of the van.

Laura Lako, another employee at the hair salon, went to the tanning salon and told Porcello a van had driven "crazily" through the parking lot and someone was laying on the ground. Porcello went outside and observed Renu lying "along the curb to the left of the tanning salon, a ways down," in front of a jewelry store. When Porcello looked toward the minivan, she observed a man, described as in his forties and of "Asian-Indian descent," standing by the vehicle "messing around with the hood, maybe trying to fix it." According to Porcello, the man "would play around with the hood of the van for a little bit, and then . . . walk around to the driver's side part of the vehicle." Porcello never saw the man walk over to Renu, who was laying motionless on the ground.

Officer Robert Jairdullo of the South Brunswick Township Police Department arrived at the Mall shortly thereafter. He observed a black minivan with front-end damage parked in the area in front of the jewelers. Samander was seated in the front driver's seat, attempting to start the van. When Jairdullo reached the van and asked Samander what had happened, he "shrugged his shoulders." Jairdullo noted "an odor of alcohol coming from his breath" and that he had "red glassy eyes." When Jairdullo asked Samander whether he had been drinking, he responded "yes."

After Almodovar drew his attention to Renu's body laying on the curb, Jairdullo ran over to her. According to Jairdullo, Renu lay on her back, "[h]er feet were on the sidewalk, and her head and upper body were in the No Parking lane of the drive lane." At that time, she was unconscious and did not appear to be breathing. Blood was flowing from her ears and nose.

After observing Renu, Jairdullo went back to the van, asked Samander to exit the vehicle, and placed him in the back of his patrol car for "safekeeping" so that he "could ascertain what had happened." Jairdullo did not formally place Samander under arrest or handcuff him when he put him in the patrol car. He did not observe Samander having any difficulty walking over to the police car, and characterized him as "[c]alm, cooperative, [and] alert."

Jairdullo returned to Renu to ascertain the extent of her injuries. He found that she had no pulse. At approximately 9:34 p.m., two paramedics arrived and began to administer first aid. Renu was unresponsive, exhibited signs of head injury, and was losing blood from her ears, nose, and mouth. One of the paramedics noted that Renu had a "large laceration to the left arm, and bruising . . . to both her arms and her legs." Renu's heart stopped beating at about 9:43 p.m., at which time CPR and intubation were initiated.

Jairdullo and Patrolman Michael Pellino, who had recently arrived at the scene, attempted to find witnesses to the collision, but were unsuccessful. As Patrol Officer Laszlo Nyitrai arrived to take over the investigation, the paramedics were leaving the scene with Renu in an ambulance.

Nyitrai observed "a blood spot on the pavement near [the] jewelers, where the victim had been found laying," as well as the location of the minivan. He went over to Samander in the backseat of Jairdullo's patrol car and "observed that there was a strong odor of an alcoholic beverage coming from his breath" and that "his eyes were both bloodshot and watery." Nyitrai described Samander as alert and coherent.

Nyitrai asked Samander what had happened. Samander responded that he had had an accident. He said that Renu had initially been in the van, but "was not in the van in the end" and that he did not know why. Samander told Nyitrai that he had been drinking whiskey that evening.

Nyitrai placed Samander under arrest for driving while intoxicated (DWI). Nyitrai advised Samander of his Miranda rights.2 According to Nyitrai, he had no difficulty understanding Samander, who appeared to speak and understand English. After Samander had been handcuffed and placed in a police car, Nyitrai asked whether he could ask him questions. Samander responded "no." Nyitrai did not ask further questions at the scene.

At 10:30 p.m., Sergeant Michael Kushwarra directed Jairdullo and Pellino to bring Samander to a hospital for blood-alcohol testing. Kushwarra also ordered Pellino to read the Miranda warnings to Samander while transporting him to the hospital.

Jairdullo and Pellino drove Samander to Robert Wood Johnson University Hospital. According to Jairdullo, Samander was "calm [and] alert" during the drive to the hospital. Pellino noted an odor of alcohol "emanating from his breath" and that "[h]is eyes were bloodshot and watery," but described his demeanor as "calm, polite, cooperative, [and] coherent."

During the ride to the hospital, Pellino read Samander his rights verbatim from a Miranda card. Prior to reading the rights, Pellino activated a video camera mounted near the rearview mirror of the patrol car, and turned the camera so that it was facing Samander. Samander told Pellino he could not hear because of the plastic partition between the front and back seats of the patrol car. Pellino opened the partition and re-read the warning, after which Samander acknowledged that he understood them. Neither Jairdullo nor Pellino questioned Samander during the trip to the hospital.

Jairdullo and Pellino arrived at the hospital at about 11:00 p.m. and brought Samander to the emergency room. Nancy Langill, an emergency room nurse, evaluated Samander, a routine procedure for patients involved in motor vehicle accidents. Her nursing notes reflected that she smelled alcohol on his breath, which caused her to conclude that he had consumed alcohol prior to arriving at the hospital. Langill assessed Samander's neurological status as normal. Langill's notes do not mention slurred speech or difficulty walking. Two vials of Samander's blood were drawn by Langill at 11:35 p.m.

According to Jairdullo, Samander appeared "calm, lucid, [and] alert" at the hospital. He remained awake and coherent. Neither Pellino nor Jairdullo questioned Samander at the hospital, although Samander had asked Jairdullo twice about Renu's whereabouts. Samander's speech was not slurred and he did not have difficulty standing or walking. Samander did not appear "emotional" or "upset" to Jairdullo.

Jairdullo and Pellino transported Samander to the South Brunswick Police headquarters. They arrived at headquarters at approximately 12:10 a.m. on August 25, at which point Samander was placed in a holding cell. According to Pellino, Samander never "appear[ed] to have any difficulty understanding or communicating" in English while in his and Jairdullo's custody.

John Dando, an investigator from the Fatal Accident Unit of the Middlesex County Prosecutor's Office, began his investigation of the scene at 11:00 p.m. It lasted for approximately two-and-one-half hours. He reported to Lieutenant Raymond Forziati of the Prosecutor's Homicide Unit that he believed Samander may have struck Renu intentionally. Forziati and Investigator Todd Gerba, also from the Prosecutor's Office, went to the scene for further investigation.

Forziati, Gerba, Dando, and Nyitrai arrived at police headquarters at approximately 2:30 a.m. Samander, who had only been charged with DWI at that time, was in the juvenile conference room on the second floor and was not handcuffed or otherwise restrained. Dando, Gerba, and Nyitrai entered the conference room and introduced themselves.

Having noticed that Samander spoke English with an accent, Dando asked whether he was of Indian descent. Samander responded that he was. Dando next asked Samander whether he would be willing to speak to them regarding the event's leading up to Renu's injuries. After he responded that he would be willing to talk, Dando asked whether he would be more comfortable speaking to them with the assistance of an interpreter. Samander responded that he knew English and there was no need for an interpreter. Dando found him to be "calm," "cooperative," and "very attentive" at that time.

According to Dando, Gerba read Samander his Miranda rights verbatim from a card, pausing to ask him if he understood his rights after each one. Samander affirmed his understanding as to each right. At the completion of the reading, Gerba asked Samander whether he understood all of his rights, to which he responded that he did. Gerba then handed Samander the Miranda card, asked him to read the warnings on one side, and, if he understood them, sign the back of the card. Samander took the card and, "[a]fter a period of time," turned the card over, signed his name, and noted the date and time as 3:05 on August 25. Gerba and Dando signed the card, and Dando added "a.m." to the card to clarify that it was early morning.

The officers then began a "pre-interview" interrogation, which was not recorded by video- or audio-tape. The pre-interview lasted approximately two hours. According to Dando, during the first hour, Samander was asked about his background, including family and work history. During that time, Dando was "assessing quite a few things," including whether or not Samander understood the questions he was being asked, as well as his level of intoxication. Although Dando detected the smell of alcohol coming from Samander's breath and observed his bloodshot and watery eyes, he concluded that Samander was "knowingly and intelligently" answering questions. His speech was not slurred, and he did not exhibit other indicia of intoxication.

Dando and Gerba then began to question Samander regarding the events of August 24. Samander told them that he had gotten up at 6:00 a.m. that day, which was his first day off work since Renu had arrived from India. He picked up his son from his first marriage, spent some time with him, and then returned his son at about 4:15 p.m.

Samander and Renu went to Dollar City at approximately 5:00 p.m. to work at the store. Shal was working there when they arrived. Samander showed Renu how to stock the shelves. After she began to do so, he walked across the Mall to a liquor store, bought a "very large" bottle of scotch whiskey, and returned to Dollar City.

Samander initially stated that he began to drink when he returned to Dollar City, but then stated that he started drinking later, after he closed the store. He told Dando that his sister had told him he was not permitted to drink in the store.

Samander told the police officers that he filled a coffee mug more than halfway with scotch and added a splash of water. He consumed two such drinks. He was working the cash register at the counter near the front of the store, and left the mug underneath the counter and hid the bottle of scotch in the back storeroom.

Samander closed the store between 8:30 and 9:00 p.m., and he and Renu walked to his van, which was parked near the store. Renu climbed into the passenger seat as Samander got into the driver's seat. He put his seat belt on, but did not recall whether Renu put hers on. As he was driving through the parking lot, the van struck a small tree. The impact caused the van's airbags to deploy.

According to Dando, when he asked Samander what happened after he struck the tree, "his entire demeanor changed." Dando testified that, up until that point, Samander "was making eye contact. He was being very open and honest. At that point in time, he sat straight back in his chair. He crossed his arms in front of him, and he looked directly down at the ground, and he said, she wasn't there." Dando asked Samander what he meant, and continued to ask him "a few more times." Samander eventually responded that he did not know what happened, that she "was there, but then she wasn't."

Based on the change in behavior, Dando concluded that Samander was becoming "evasive" and "nervous." Samander repeated that "she wasn't there" and that he didn't know what happened in response to repeated questions about what occurred after he hit the tree. Dando asked Samander to calm down and offered him something to drink, at which point he requested and received water.

After Dando concluded they were "getting basically no place" with Samander, he asked: "[W]hy did you hit your wife?" According to Dando, Samander immediately looked up at him and stated: "She made me mad." After the airbags went off, Renu was scared, exited the van, and began to walk back toward Dollar City.

Samander then told Dando that, after Renu got out of the van, he backed off of the tree, pulled forward, stopped, and told Renu to get back in the van. When she did not do so, he ordered her to get in. When she again refused, he became angry. Samander asserted that she was supposed to listen to him, because she was his wife and had only been there for three weeks.

Renu began to run away from the van. Samander started to "go forward with the van and to chase after her." He told Dando that "his intention was to teach her who the boss was. He wanted to teach her a lesson, and he wanted to bump her with the van." As he approached the store fronts, he turned and struck Renu with the right front side of his minivan. He told Dando that, shortly after hitting Renu, the van stalled and came to a stop. He was unable to start it again. Samander told Dando that he did not go near Renu after she fell to the ground because he was scared.

According to Dando, Samander appeared "relieved" at that point. Although it was almost 5:00 a.m., Dando testified that Samander did not show signs of sleepiness.

Dando then asked Samander whether he would be willing to make a recorded statement. Samander agreed to do so. The tape-recorded statement began at 5:15 a.m. Gerba again advised Samander of his Miranda rights. Dando then asked Samander questions, many of which were leading, based on the information obtained during the unrecorded pre-interview interrogation. Samander answered the leading questions in the affirmative. Following the statement, Samander was charged with aggravated assault.

Later on August 25, with assistance from Shal, the police found a coffee mug containing alcohol and a bottle of scotch at Dollar City.

Renu, was pronounced dead on August 27. Samander was charged with murder on August 28.

B.

Following his indictment on December 21, Samander filed a motion to suppress the statements he made in the early morning hours of August 25. The motion judge held an evidentiary hearing over five days in March 2006. On May 5, he denied the motion to suppress. The judge concluded:

For the record, based upon the totality of all those factors, the fact that I believe [Samander] spoke English sufficiently, the fact that I believe he was remirandized over and over again, that fact the he didn't ask or, rather, there was no need for an interpreter, the fact that the alcohol didn't affect his knowing and voluntary waiver of his constitutional rights, I deny the defense's motion.

 

Samander filed a motion for a stay of the proceedings pending a motion for leave to appeal the denial of the motion to suppress. The judge denied the motion. He then filed a notice of appeal instead of a motion for leave to appeal. We dismissed the appeal as interlocutory. A second motion for a stay was denied in February 2007.

Trial began on May 24 and concluded on July 9, 2007. During the trial, Nyitrai testified that he advised Dando that he had given Samander the Miranda warnings at the scene and that Samander had responded that he did not wish to speak with him or other officers. Dando confirmed that Nyitrai had informed him that he Mirandized Samander, but denied that Nyitrai informed him that Samander had invoked his right to remain silent after he was Mirandized. Dando also testified that, if he had known, "we would not have gone back and questioned him."

At the trial, Dando denied that he had screamed at, threatened, or made any promises to Samander during the pre-interview interrogation. He also testified that he asked leading questions during the recorded statement to "keep everything running in a chronological order," as he already had Samander's answers written down on his note pad. However, he destroyed his notes from the pre-interview interrogation after they were "transposed into [his] report."

At the close of its case, defense counsel made a motion to dismiss, which was denied. During the charge conference, defense counsel requested an adverse inference charge with respect to the notes destroyed by Dando. The judge declined to give such a jury instruction.

The jury found Samander guilty of purposeful or knowing murder and, consequently, did not consider aggravated assault or vehicular homicide, which the judge had charged as lesser included offenses. Samander was also found guilty of third-degree attempting to leave the scene of a fatal motor vehicle collision. Samander moved for a new trial, which was denied.

At sentencing, the judge found aggravating factors one, that the circumstances surrounding the offense were depraved, three, "[t]he risk that defendant [would] commit another offense," and nine, the "need [to] deter[] defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(1), (3), (9). He found mitigating factor number four, "substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense," namely, the defense of intoxication, and mitigating factor eleven on the grounds that Samander's imprisonment would cause excessive hardship to his dependent son. N.J.S.A. 2C:44-1(b)(4), (11). The judge sentenced Samander to imprisonment for thirty years without eligibility for parole on count one, the statutory minimum, and a concurrent term of five years on count two.

This appeal followed.

II.

On appeal, Samander raises the following issues:

POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE STATEMENTS GIVEN TO THE POLICE FOLLOWING HIS ARREST FOR DRIVING WHILE UNDER THE INFLUENCE OF ALCOHOL DURING A LENGTHY PRE-INTERVIEW WHICH WAS NOT RECORDED AS WELL AS DURING AN ENSUING INTERROGATION WHICH WAS AUDIO TAPED.

 

A. FACTUAL INTRODUCTION.

 

B. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE STATEMENTS MADE BY THE DEFENDANT TO THE POLICE SINCE THE TOTALITY OF THE CIRCUMSTANCES DEMONSTRATED THE STATE DID NOT ESTABLISH BEYOND A REASONABLE DOUBT THE STATEMENTS WERE MADE VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY.

 

POINT II: THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S REQUEST THAT IT INSTRUCT THE JURY IT COULD INFER FROM INVESTIGATOR JOHN DANDO'S DESTRUCTION OF HIS NOTES THAT THEY CONTAINED INFORMATION INCONSISTENT WITH HIS TRIAL TESTIMONY WITH RESPECT TO THE DEFENDANT'S PRE-INTERVIEW STATEMENT WHICH TOOK PLACE AT HEADQUARTERS.

 

POINT III: THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF PURPOSEFUL/KNOWING MURDER ARISING OUT OF COUNT I WAS AGAINST THE WEIGHT OF THE EVIDENCE.

 

 

A.

We turn first to the denial of Samander's motion to suppress his statements to the police. He argues that his statements were not the result of a knowing and voluntary waiver of his Miranda rights because of his high level of intoxication, lack of sleep, apparent lack of access to food, and the coercive nature of the lengthy pre-interview interrogation.

In reviewing a trial court's denial of a Miranda motion, we analyze police-obtained confessions using a "searching and critical" standard of review to ensure that constitutional rights have not been trampled upon. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (citations omitted) (internal quotation marks omitted), certif. denied, 178 N.J. 35 (2003). Nevertheless, we will not engage in an independent assessment of the evidence as if we were the court of first instance, State v. Locurto, 157 N.J. 463, 471 (1999), nor will we make conclusions regarding witness credibility, State v. Barone, 147 N.J. 599, 615 (1997), but we instead defer to the trial judge's credibility findings. State v. Elders, 192 N.J. 224, 243-44 (2007); State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).

A suspect's confession during a custodial interrogation can only be obtained if that suspect was supplied with his or her Miranda rights. Miranda, supra, 384 U.S. at 461, 86 S. Ct. at 1620-21, 16 L. Ed. 2d at 716. There is, however, no additional obligation that the police inform the person being questioned about the nature of their suspicions. State v. Nyhammer, 197 N.J. 383, 406-07, cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009).

Before considering the validity of a waiver of Miranda rights, it must be established that the police scrupulously honored the suspect's rights to remain silent. State v. Burno-Taylor, 400 N.J. Super. 581, 589 (App. Div. 2008). If the suspect's words or conduct, upon being advised of his or her rights, "could not reasonably be viewed as invoking the right to remain silent," this requirement is satisfied and the police may continue their questioning. Id. at 590 (citing State v. Bey, 112 N.J. 123, 136-38 (1988)).

Here, Samander was initially unwilling to answer questions after Nyitrai gave him the first set of Miranda warnings, at which time he was under arrest for a DWI offense. No questioning took place immediately after that response. Samander was given the warnings a second time by Pellino, as he was being driven from police headquarters to the hospital for a blood test. He was not questioned at that time.

After Samander was returned to police headquarters, Nyitrai concluded from his investigation that the police were dealing with a serious assault rather than a DWI and an injury resulting from a related accident. When the investigators returned to police headquarters after their lengthy investigation of the parking lot at the Mall, Dando asked Samander if he was willing to speak with him. When Samander responded that he was, Gerda administered the Miranda warning for a third time. Dando then began the interview.

In light of the significant interval between the initial unwillingness to speak to Nyitrai, the two intervening administrations of Miranda warnings, the change in the focus of the investigation, and Samander's subsequent willingness to speak with Dando, we see no violation of the police duty to honor Samander's Miranda rights scrupulously. State v. Hartley, 103 N.J.252, 267 (1986) (holding that where a suspect indicates his desire to remain silent, the police must re-administer Miranda warnings to him before questioning can recommence).

A trial court will admit a confession into evidence only if the State has proven beyond a reasonable doubt, based on the totality of the circumstances, that the suspect's waiver of those rights was knowing, intelligent and voluntary. Patton, supra, 362 N.J. Super. at 42. The court must specifically consider the defendant's "characteristics . . . and the nature of the interrogation," and may include in its consideration the defendant's "age, education and intelligence, advice concerning constitutional rights, length of detention, whether . . . questioning was repeated and prolonged in nature, and whether physical punishment [or] mental exhaustion were involved." State v. Galloway, 133 N.J. 631, 654 (1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862 (1973)).

Courts analyze whether police conduct coerced a confession by first determining whether the conduct violated the suspect's due process rights. See State v. Smith, 32 N.J. 501, 544 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961). New Jersey thus places a "mandatory burden on all courts to test the admissibility of confessions not only by the ordinary rules of evidence but by the deeper constitutional requirement of fundamental fairness." State v. Driver, 38 N.J. 255, 282 (1962) (citing Smith, supra, 32 N.J. at 544).

A suspect's confession is not considered voluntary if it is the product of psychological or physical coercion. Galloway, supra, 133 N.J. at 654. Unlike cases of physical coercion, however, the use of psychological techniques is not in and of itself coercive; rather, courts must analyze whether the confession was the result of the defendant's change of mind and not a broken will. Id. at 654-55. A confession is voluntary if it is "the product of an essentially free and unconstrained choice" where the defendant's will has not been "'overborne and his capacity for self-determination [has not been] critically impaired.'" State v. P.Z., 152 N.J. 86, 113 (1997) (quoting Schneckloth, supra, 412 U.S. at 225-26, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862). Cases which hold that a defendant's will has been overborne typically require the defendant to demonstrate a showing of "very substantial psychological pressure." Galloway, supra, 133 N.J. at 656.

There was testimony at the Miranda hearing that, at the time the third Miranda warnings were given and the statements were taken, (1) Samander had a blood alcohol level over the legal driving limit, (2) his breath smelled of alcohol, and (3) his eyes were bloodshot and watery. There was also testimony that (1) he was "alert," "calm," and "very attentive," (2) he did not slur his speech or have difficulty walking, (3) he was comfortable speaking in English, (4) he stated that he understood his rights, (5) he was given something to drink when he requested it, and (6) he was not handcuffed. There was no evidence that there were threats or intimidation, or that Samander's will was overborne. In addition to the testimony at the Miranda hearing, the judge had the opportunity to observe the video of the administration of the Miranda warnings given on the way to the hospital and listen to the audio tape of Samader's formal statement. Based upon all of the evidence, the judge denied the motion to suppress.

The judge's findings of fact were supported by sufficient credible evidence in the record before him. Elders, supra, 192 N.J. at 243-44. His legal conclusions based upon those facts were consistent with applicable law as outlined above. Consequently, we affirm the denial of the motion to suppress.

B.

Samander's next argument is that the trial judge erred in refusing to give the requested adverse-inference charge with respect to Dando's destruction of his notes from the pre-interview interrogation. The trial judge denied the request because he determined that the State was "under no obligation to preserve handwritten reports prepared by officers in the field."3

By the time of Samander's trial in 2007, the Supreme Court had twice expressed its disapproval of the police practice of routinely destroying notes. State v. Branch, 182 N.J. 338, 367 n.10 (2005) ("We register our displeasure that police officers engage in the seemingly routine practice of destroying their contemporaneous notes of witness interviews after the preparation of formal reports."); State v. Cook, 179 N.J. 533, 542 n.3 (2004) ("Apparently, once each officer prepared his report, he destroyed his notes from the interrogation sessions, a practice that is apparently common, but one that we disapprove of."); see also State v. P.S., 202 N.J. 232, 253-54 (2010).

In State v. W.B., 205 N.J. 588, 607 (2011), the Court revisited the issue and stated that it "need not take much time to state, once more, that law enforcement officers may not destroy contemporaneous notes of interviews and observations at the scene of a crime after producing their final reports." The Court went on to hold that Rule 3:13-3, specifically subsections (c)(6), (7), and (8), "encompasses the writings of any police officer under the prosecutor's supervision as the chief law enforcement officer of the county" and that, "because an officer's notes may be of aid to the defense, the time has come to join other states that require the imposition of 'an appropriate sanction' whenever an officer's written notes are not preserved." Id. at 608 (citing People v. Wallace, 565 N.E.2d 471, 471-72 (N.Y. 1990); People v. Jackson, 566 N.Y.S.2d 662, 663 (App. Div. 1991)). The "appropriate sanction" referred to by the Court was an adverse inference charge. Id. at 597.

However, the Court delayed implementation of its ruling:

[W]e defer the implementation of this retention and disclosure requirement for thirty days in order to allow prosecutors sufficient time to educate police officers accordingly. Contemporaneously, we refer the matter to the Criminal Practice Committee for any necessary clarification of the Rules. In any event, starting thirty days from today, if notes of a law enforcement officer are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge molded, after conference with counsel, to the facts of the case. Although our holding regarding the discovery obligation is merely a reiteration of existing law, because defendant neither requested an adverse inference charge before the final jury instructions were given, nor raised the issue before filing his motion for new trial, we decline to hold he was entitled to such an instruction in this case.

[Id. at 608-09 (emphasis added) (footnote omitted).]

 

The State argues that the Court's delayed implementation precludes a reversal in this case on the basis of the judge's refusal to give an adverse inference charge. We disagree.

In W.B., the Court declined to give the defendant the benefit of its holding because he had not requested an adverse inference charge during the charge conference or prior to his motion for a new trial. Ibid. Here, defense counsel specifically requested such a charge. He premised his client's entitlement to the charge on the fact that Samander had been the subject of a lengthy pre-interview interrogation during which Dando took extensive notes, which Dando then used during the recorded interview to ask a series of questions, many of them leading, that elicited highly incriminatory responses. Because Dando destroyed the notes, the only remaining contemporary record of the pre-interview interrogation was the audio tape of that interview.

The recorded statement and Dando's testimony about the pre-interview interrogation were used by the State to support its assertion that Samander was guilty of purposeful or knowing murder, as opposed to the lesser offenses of aggravated manslaughter or vehicular homicide. N.J.S.A. 2C:11-3(a) provides that "criminal homicide constitutes murder when: (1) The actor purposely causes death or serious bodily injury resulting in death; or (2) The actor knowingly causes death or serious bodily injury resulting in death." To convict a defendant of purposeful murder under N.J.S.A. 2C:11-3(a)(1), the State must prove that it was the defendant's "conscious object . . . to cause serious bodily injury that then resulted in the victim's death" and that the defendant "knew that the injury created a substantial risk of death and that it was highly probable that death would result." State v. Cruz, 163 N.J. 403, 418 (2000). Alternatively, to convict a defendant of knowing murder under N.J.S.A. 2C:11-3(a)(2), the State "must prove that the defendant was aware that it was practically certain that his conduct would cause serious bodily injury that then resulted in the victim's death, knew that the injury created a substantial risk of death and that it was highly probable that death would result." Ibid. In contrast, aggravated manslaughter only requires proof that "[t]he actor recklessly cause[d] death under circumstances manifesting extreme indifference to human life," N.J.S.A. 2C:11-4(a)(1), and vehicular homicide requires only proof of driving "recklessly." N.J.S.A. 2C:11-5.

We conclude that there was a realistic potential that Dando's contemporaneous notes could have assisted defense counsel in challenging Dando's testimony and the truthfulness of his recorded statement. Such efforts might well have been effective in persuading the jury to acquit Samander of murder in favor of one of the lesser offenses charged by the jury. Such a result is significant because, for example, the sentencing range for aggravated manslaughter is between ten to thirty years, N.J.S.A. 2C:11-4, subject to the eighty-five percent parole ineligibility provisions of N.J.S.A. 2C:43-7.2, in contrast to the minimum sentence of thirty-years without parole for purposeful or knowing murder. N.J.S.A. 2C:11-3(b)(1).

Although there was very strong evidence that Samander's conduct was criminally culpable, there was clearly a jury question as to whether his conduct rose to the level of purposeful or knowing murder. Because much of the direct evidence of Samander's intent and state of mind came from Dando's testimony about the unrecorded pre-interview interrogation and the recorded statement based largely on leading questions, Dando's credibility was extremely important to the defense. Although there is no basis in the record to warrant suppression of the evidence based upon the type of due process violation discussed in State v. Dreher, 302 N.J. Super. 408, 483 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998), we have concluded that the trial judge should have given the requested charge. We approved the giving of such a charge in State v. Zenquis, 251 N.J. Super. 358, 370 (App. Div. 1991), aff d on other grounds, 131 N.J. 84 (1993), in the context of notes we deemed "only tangentially relevant to the factual issues in the case." The notes at issue in this case were far from "tangential."

We affirm the conviction for attempting to leave the scene of a fatal accident. However, we reverse the conviction for murder and remand for a new trial on that charge. In light of our reversal, we need not reach the issue of whether the verdict with respect to the murder charge was against the weight of the evidence adduced at trial.

Affirmed in part, reversed in part.

1 Because defendant and the victim share the same last name, we refer to them by their first names for the sake of convenience.

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

3 Although the judge mentioned the three factors for determining a constitutional due process violation involving lost evidence, (1) whether there was "bad faith or connivance on the part of the government; (2) whether the evidence was sufficiently material to the defense; and (3) whether the defendant was prejudiced," he never analyzed them. See State v. Dreher, 302 N.J. Super. 408, 483 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998).