STATE OF NEW JERSEY v. MELVIN RAINEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3457-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MELVIN RAINEY,

Defendant-Appellant.

____________________________

May 28, 2013

Submitted May 15, 2013 Decided

Before Judges Sapp-Peterson and Haas.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-04-0502.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Tried before a jury on a five-count indictment, defendant Melvin Rainey was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a (count one); second-degree leaving the scene of a fatal accident, N.J.S.A. 2C:11-5.1 (count two); third-degree endangering an impaired or helpless person, N.J.S.A. 2C:12-1.2 (count three); third-degree hindering, N.J.S.A. 2C:29-3b(1) (count four); and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1) (count five).

At sentencing, Judge Salem Ahto merged count three into count one and count five into count four. The judge sentenced defendant to twenty years in prison, subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one. He sentenced defendant as if count two had been a third-degree offense to four years in prison, with this sentence to run consecutive to the sentence imposed on count one. Finally, the judge sentenced defendant to a concurrent three-year prison term on count four. The judge also ordered defendant to pay appropriate fines and penalties.

On appeal, defendant has raised the following contentions:

POINT ONE

DR. HUA'S TESTIMONY THAT THE VICTIM IN THIS CASE WOULD HAVE LIVED IF SHE HAD BEEN TAKEN TO A HOSPITAL FOR MEDICAL TREATMENT EXCEEDED THE SCOPE OF PERMISSIBLE FORENSIC EXPERT TESTIMONY AND IMPROPERLY ADDRESSED THE ULTIMATE ISSUE BEFORE THE JURY, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL AND REQUIRING REVERSAL OF HIS CONVICTION.

POINT TWO

THE TRIAL COURT ERRED WHEN IT FAILED TO SUPPRESS THE ALLEGED STATEMENT OF THE DEFENDANT GIVEN PRIOR TO MIRANDA WARNINGS AND TAINTED STATEMENTS THAT FOLLOWED THE NEXT DAY.

POINT THREE

THE WEIGHT OF THE EVIDENCE DID NOT SUPPORT THE VERDICT.

POINT FOUR

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction and sentence.

I.

The State developed the following proofs at trial. Officer Jessica Amarante of the Paterson Police Department testified she responded to a report of an unresponsive female at defendant's home around 12:26 p.m. on November 23, 2007. As she approached the home in her car, defendant "flagged" her down. Defendant told the officer he found the woman in his 1998 Ford Explorer SUV when he got in to take his daughter to the doctor.

Officer Amarante testified the woman was lying face down in the back of the SUV, which had the seats folded down. Her "jacket was ripped in the back with feathers coming out and her pants were unzippered and her belt was unbuckled." The woman was pronounced dead at the scene.

Defendant told Officer Amarante he had parked the car at 5:00 a.m. on November 21 and had not returned to it until he went to take his daughter to the doctor on November 23. He stated he did not know the woman or how she got into his car. Officer Amarante called for other officers and detectives to come to the scene.

Detective Jack DeSalvo testified he was the lead detective assigned to the case. When he arrived at defendant's home shortly before 1:00 p.m., the SUV had been "cordoned off with caution tape." The detective looked inside the SUV and saw that the woman had blood coming out of her nose and mouth area. She also "had an abrasion on the back of her top portion of her buttocks." There were "feathers strewn about the rear of the cargo area as well as on her."

Detective DeSalvo asked defendant "what he knew about this woman and how she got there." Defendant stated he had parked the SUV around 5:00 a.m. on November 21 and did not return to it until he "went outside to get a cigarette from the truck. That's when he discovered the female inside the back of the truck[.]" Defendant also told the detective "he poked her a few times at which time she didn't move and he had his wife call the [p]olice."

Although the SUV was registered to defendant's son, Jamar, defendant told the detective he drove it "almost exclusively." Defendant and Jamar gave the detective permission to search the SUV. Defendant stated the SUV had not been moved since he parked it on November 21.

Detective DeSalvo asked defendant if he would come to headquarters to answer some questions about the incident and how the woman got in the SUV. Defendant agreed to do so. Defendant was neither arrested nor handcuffed. He was transported to the station in a police car.

At the station, Detective DeSalvo was joined by Detective Rafael Fermin and they spoke with defendant in an interview room. The interview began at 3:23 p.m. and was videotaped. The videotape was played to the jury. The detectives spoke to defendant and then left the room twice to confer. After the second break, the detectives determined defendant had become a suspect in a crime and, when they returned to the room at 4:26 p.m., they read him his Miranda1 rights. Defendant asked to speak with an attorney and the interview ended. Defendant was then arrested.

The next day, Detective DeSalvo testified he went to the cell where defendant was being held and advised him of the charges against him. The detective testified defendant stated:

I might have hit something with my truck that night. I remember hearing a thump of some sort. He stated when he got out of the truck he heard someone moaning. And then he said I could have put someone in the back of my truck, forgot to bring them to the hospital. I was drinking a little.

The SUV was processed by the Crime Scene Unit, which found blood stains in the back of the SUV and on its front undercarriage. DNA testing indicated the blood stains belonged to the victim. The woman's boot had a tire track on it. There were yellow paint scrapings found underneath the running board. Similar yellow paint scrapings were found on the victim's jacket.

No identification was found on the victim's body. She was fingerprinted and the police canvassed the area in an attempt to find someone who knew her. An ad was placed in the newspaper seeking information. About three or four days later, someone called the detective bureau and identified the victim as Joyce Foster.

Troy Greer saw a newspaper story about the case and came forward with information. Greer testified he had been at an Elks Club in Paterson on the evening of November 21. He left the Club with his friend, Michael Williams, between 1:30 a.m. and 2:00 a.m. As they walked to Greer's car, Greer heard a man, later identified as defendant, speaking to a woman and "saying you better come on. You better get up. I'm going to leave you." Greer stated it looked like defendant was "trying to get this drunk lady off the ground."

Greer and Williams went over to help defendant, who also appeared drunk and smelled of alcohol. Defendant had an SUV and it was parked in the middle of the street with the back hatch open. Defendant wanted to put the woman in the rear cargo area of the SUV, but Greer refused and told defendant the woman should be placed in the back passenger seat. Greer heard the woman moan, but he thought she was drunk. She had some scrapes on her hip and her pants were "coming down." Greer thought that was because defendant had been "sliding her" in the road as he attempted to get her into the SUV.

The woman had boots on and her jacket was torn. When the men picked her up, feathers came out of the jacket. Greer testified the woman was alive and breathing at that time. After they got her into the SUV, defendant thanked them, shook their hands, and drove off.

Williams gave a similar account at trial. He testified defendant told them he found the woman "in the street." The woman was moaning and "complaining about the pain." She seemed to be "in agony in the street, rolling left to right." Williams testified Greer told defendant to take the woman to Barnett Hospital and defendant then drove away with the woman in the back seat of the SUV.

Dr. Zhongxue Hua was qualified as an expert in the field of forensic pathology and he conducted an autopsy of Foster. Dr. Hua stated Foster was between two and a half and three times over the legal limit for alcohol and she also had cocaine in her system. However, he testified her alcohol and drug use did not cause her death.

Dr. Hua found that Foster had external bruising of her left shoulder, back, right knee, and left shin, together with blunt trauma to these and other areas of her body. Foster had nineteen fracture sites on her ribs, a punctured lung and liver damage. She had lost "a large amount" of blood, but not enough to have caused her to suffer a "quick immediate death."

Dr. Hua testified the cause of Foster's death was blunt injury to the torso. He opined she did not die quickly and that he regularly treated patients with more severe injuries who survived because they were brought for treatment in a timely manner. He classified Foster's death as "a homicide," rather than an accident, because she was not taken to a hospital and because emergency personnel were not called to provide her with medical care.2

Defendant did not testify and called no witnesses.

II.

Defendant first argues that Dr. Hua should not have been permitted to testify that Foster would have lived if she had been taken to a hospital for medical treatment and that the cause of her death was therefore "homicide." He complains that the prosecutor improperly elicited this testimony through the use of a hypothetical question which closely mirrored the facts of this case. We disagree.

The admissibility of evidence, including that of expert testimony, is a matter within the sound discretion of the trial court. State v. McGuire, 419 N.J. Super. 88, 123 (App. Div.), certif. denied, 208 N.J. 335 (2011). See also State v. Summers 176 N.J. 306, 312 (2003); State v. Fortin, 189 N.J. 579, 597 (2007). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997) (internal quotation marks and citation omitted)); see also R. 2:10-2.

Here, Dr. Hua's expert testimony was required to assist the jury in analyzing the significance of the time sequence in relation to the severity of Foster's injuries. Dr. Hua testified that, while Foster's injuries were grave, they would not have been fatal had Foster received prompt medical care. This was a legitimate expert medical opinion and was properly admitted in evidence. Dr. Hua was qualified as an expert in forensic pathology. Defendant had the opportunity to fully cross-examine Dr. Hua concerning the basis of his opinion and to make appropriate arguments to the jury concerning it. The judge charged the jury on expert testimony and witness credibility. We perceive no error requiring our intervention.

The fact that Dr. Hua testified in response to a hypothetical question that included facts supported by the State's witnesses was also not improper. The Supreme Court has made clear that a hypothetical question posed to a qualified expert witness "should clearly indicate that it is the witness' opinion that is being sought and that that opinion was formed assuming the facts and circumstances adduced only at trial. It is important that the witness, and the jury, understand that the opinion cannot be based on facts that are not in evidence." State v. Odom, 116 N.J. 65, 82 (1989). Thus, the judge did not err in permitting the prosecutor to present Dr. Hua with a hypothetical question based on the evidence. Indeed, the judge was required to do so.

While Dr. Hua opined that what occurred in this case was a "homicide" rather than an "accident," at no time did he express an opinion on defendant's guilt. Thus, no error occurred when the opinion was admitted. Id. at 79. Dr. Hua's opinion that this was a homicide was necessary to distinguish what occurred from an unfortunate "accident" and was an appropriate expert opinion as to the cause of Foster's death. State v. Baluch, 341 N.J. Super. 141, 185 (App. Div. 2001)(expert's opinion that victim's death was a homicide, rather than "self-inflicted or sustained as a result of mere inadvertence (i.e. accident)" was appropriately admitted in evidence), certif. denied, 170 N.J. 89 (2001). Therefore, we reject defendant's contentions regarding Dr. Hua's testimony.

Defendant next argues the judge erred in denying his pre-trial motion to suppress the statements he gave to police at his home and later at the police station. He contends the statements were obtained in violation of his Fifth Amendment rights as set forth in Miranda, supra. These arguments lack merit.

On review of a motion to suppress evidence, 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." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We defer "to those findings of the trial judge which are substantially influenced by his 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).

After conducting an evidentiary hearing, Judge Ahto found that Detective DeSalvo and the other police officers who spoke with defendant scrupulously honored his Fifth Amendment rights. He found the police properly questioned defendant at his home even though he was not given Miranda warnings at that time. We agree. Defendant's wife called the police to come to the home because defendant asked her to do so. At that time, defendant was alleging he found the body of a woman in his SUV, did not know her, and did not know how she got there. The police were therefore authorized to engage in general on-the-scene questioning to determine the circumstances of defendant's discovery as part of their fact-finding process. State v. Ebert, 377 N.J. Super. 1, 9 (App. Div. 2005).

At his home, the police did not place defendant under arrest, handcuff him, or force him to answer questions. He voluntarily agreed to come to the station to help establish a timeline of exactly when the SUV was in front of his home. He was free to leave at any time. Defendant spoke to the detectives in an interview room with two large windows, a large table and four chairs. There was no credible evidence submitted at the suppression hearing to indicate defendant was threatened in any way. Under these circumstances, we find no basis to disturb the judge's conclusion that the statements made by defendant at the station were also admissible at trial. Contrary to defendant's contention, Miranda warnings are not required "simply because questioning takes place in a police building . . . ." Sate v. Micheliche, 220 N.J. Super. 532, 536 (App. Div.), certif. denied, 109 N.J. 40 (1987).

Once it became clear from defendant's statements and from other evidence the police were obtaining from the SUV, while the interrogation was taking place, that defendant's story was not matching the facts being developed in the investigation, Detective DeSalvo determined defendant was no longer free to leave and that he had been involved in a crime. Accordingly, he read defendant his Miranda rights and, when defendant requested a lawyer, the questioning stopped.

Relying on State v. O'Neill, 193 N.J. 148 (2007), defendant argues the police employed an improper "question first, warn later" approach in eliciting incriminating statements from him and that they should have provided him with his Miranda warnings as soon as he arrived at the station. We disagree. In O'Neill, the Court held that, if the police first question a suspect in custody without Miranda warnings and issue the warnings only after he or she makes incriminating statements, the statements made after the Miranda warnings may also be inadmissible at trial. Id. at 154-55. The prohibition of O'Neill, however, only applies when the original questioning was custodial and therefore required that Miranda warnings be given. As we have stated, the initial questioning in this case, both at defendant's home and later at the station, was not conducted while defendant was in custody. Therefore, the holding in O'Neill has no application to the facts of this case.

Defendant's attempt to suppress the statement he made to Detective DeSalvo after the detective advised him of the charges that had been lodged was also correctly rejected by Judge Ahto. A statement is admissible when it is "voluntarily blurted out by an accused in custody where the police have not subjected him [or her] to an interrogative technique . . . ." State v. Ward, 240 N.J. Super. 412, 419 (App. Div. 1990). As we explained in Ward, "the police surely cannot be held accountable for the unforeseeable results of their words or actions . . . ." Id. at 418 (quoting Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S. Ct. 1682, 1690, 64 L. Ed. 2d 297, 308 (1980)).

At the suppression hearing, Detective DeSalvo testified he merely advised defendant of the charges the day after he was arrested. He did not ask defendant any questions and told defendant to stop talking to him once he made his statement. Judge Ahto found the detective's account to be credible and we defer to his credibility determination. Defendant's statement in response to being advised of the charges against him was clearly not the product of a custodial interrogation and it was properly admitted in evidence.

Defendant next argues that his convictions were against the weight of the evidence. However, the record does not support this contention.

In considering whether a guilty verdict was against the weight of the evidence produced at trial, "our task is to decide whether 'it clearly appears that there was a miscarriage of justice under the law.'" State v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (quoting Rule 2:10-1), certif. denied, 134 N.J. 476 (1993). "We must sift through the evidence 'to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.'" Ibid. (quoting State v. Carter, 91 N.J. 86, 96 (1982)). Our objective "is not to second-guess the jury but to correct [an] injustice that would result from an obvious jury error." State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). We do not evaluate the evidence and determine anew how we might have decided the issues.

Here, there was plainly sufficient credible evidence in the record to enable a jury to find defendant guilty beyond a reasonable doubt of each offense charged. Two eyewitnesses saw defendant place Foster into his car and described her condition at that time. Defendant admitted to Detective DeSalvo that he struck something in the road and placed someone in his truck that night. Foster's clothes had paint on them from the undercarriage of defendant's SUV and her boot had a tire track on it. There was no miscarriage of justice under the circumstances of this case.

Finally, defendant argues that his sentence was excessive. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 234, 365 (1984).

We are satisfied the sentencing judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, applied the correct sentencing guidelines enunciated in the Code, and the application of the factors to the law, including the judge's fully-supported decision to impose consecutive sentences, do not constitute such clear error of judgment as to shock our judicial conscience. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989). Accordingly, we discern no basis to second-guess the sentence.

Affirmed.

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

2 Detective DeSalvo testified there were two hospitals, Barnett Hospital and St. Joseph's Hospital, within one mile of the spot where defendant struck Foster in Paterson.