STATE OF NEW JERSEY v. GREGORY ULYSSE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4425-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY ULYSSE,

Defendant-Appellant.

_____________________________

May 6, 2013

Submitted April 16, 2013 Decided

Before Judges Reisner and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-04-1363.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the briefs).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/

Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In connection with the shooting deaths of Emmanuel Previllon and Edner Pierre, defendant Gregory Ulysse was convicted of two counts of first-degree murder, N.J.S.A. 2C:11-3a(1). He was also convicted of second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3; second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. He was acquitted of aggravated assault on a third victim, Reginald Fils. After merger, the trial court imposed an aggregate sentence of sixty years in prison, the entire term to be served without parole. Defendant appeals from the conviction and the sentence.1 He presents the following points for our consideration:

POINT I

THE STATEMENT OF [DEFENDANT] SHOULD HAVE BEEN SUPPRESSED AS [DEFENDANT] WAS NOT ADVISED OF HIS ARREST WARRANT AND CRIMINAL COMPLAINT UNTIL AFTER HE HAD WAIVED HIS MIRANDA RIGHTS, THEREBY DEPRIVING [DEFENDANT] OF HIS FIFTH AMENDMENT RIGHT TO REMAIN SILENT PURSUANT TO THE U.S. CONSTITUTION AND THE EQUIVALENT PROTECTION PURSUANT TO N.J. LAW.

POINT II

THE STATEMENT WAS NOT VOLUNTARY BECAUSE OF [DEFENDANT'S] INABILITY TO PROVIDE A STATEMENT DUE TO HIS SLEEP DEPRIVATION, LACK OF FOOD, SUBSTANCE ABUSE, AND THE FAILURE TO HONOR HIS REQUEST TO HAVE A LAWYER PRESENT.

POINT III

THE TRIAL PROSECUTOR'S CROSS-EXAMINATION AND SUMMATION REMARKS REFERRING TO [DEFENDANT] AS A LIAR CONSTITUTED PROSECUTORIAL MISCONDUCT (Not Raised Below).

POINT IV

THE SENTENCES SHOULD HAVE BEEN IMPOSED TO RUN CONCURRENTLY.

Having reviewed the record, we affirm the conviction and the sentence.

I.

We first address the Miranda2 issue. By way of background, the case arose from the shootings of Previllon and Pierre on the evening of July 28, 2001 in Newark, New Jersey. The underlying facts were described in some detail in our earlier opinion. State v. Ulysse, supra, slip op. at 2-9. For purposes of our discussion here, the evidence can be summarized as follows. Several witnesses testified about a confrontation between defendant and his friend Fangshu Florexil (Fang), on the one hand, and Emmanuel Previllon, at a family barbeque. Fang punched Previllon in the face and drew a gun. Defendant took the gun from Fang and fired a shot into the ceiling. He, Fang and their friend Steven St. Fleur then left the barbecue. However, they encountered Previllon and his friends standing outside another party later that evening. This meeting ended with defendant shooting Previllon and St. Fleur shooting Pierre, one of Previllon's companions.

Defendant and St. Fleur then fled to Allentown, Pennsylvania, where they were apprehended several months after the shootings. The police recovered a .38 caliber revolver from the house where St. Fleur was staying in Allentown and a nine millimeter semi-automatic pistol from a car owned by the friend with whom defendant was living. Expert testimony established that Pierre was shot with the .38 caliber pistol and Previllon was shot with the nine millimeter weapon.

On December 19, 2003, two days after his arrest, defendant made a confession. At the Miranda hearing, he sought to suppress the statement based on a claim that he was high on drugs when the police interviewed him. He raised no other factual or legal claim with respect to the admissibility of his statement.

The following evidence was produced at the Miranda hearing on January 22, 2003. Newark Detective Vincent Vitiello testified that in July 2001, he was assigned to investigate the fatal shootings of Pierre and Previllon. In December 2001, Vitiello received a telephone call from the Allentown police, advising him that they had arrested defendant and St. Fleur on December 17, 2001. On the morning of December 19, 2001, Vitiello and Essex County Prosecutor's Investigator Branch traveled to Allentown to interview defendant.

According to Vitiello, the Allentown police brought defendant to an interview room in the Lehigh County prosecutor's office. There, defendant's handcuffs were removed and Vitiello read him his Miranda rights. Defendant also read the form and initialed each paragraph, and later signed a written waiver. Vitiello described defendant as "very cooperative" and "very personable." Vitiello, who previously worked in the narcotics bureau and had extensive experience observing people under the influence of alcohol or drugs, saw no sign that defendant was under the influence of alcohol or "mind-altering drugs." After Vitiello interviewed defendant for about a half hour, he re-administered the Miranda warnings before taking a typewritten statement from defendant. According to Vitiello, defendant reviewed the written statement and pointed out typographical errors before he signed the statement.

On cross-examination, Vitiello clarified that prior to arriving in Allentown, he had faxed the warrant for defendant's arrest to the Allentown Police Department, and had briefed Allentown Detective Talarico about the shootings Vitiello was investigating. Vitiello testified that he advised defendant that he had been arrested pursuant to a warrant for the two shootings. Initially, Vitiello stated that he gave defendant this information after he obtained the Miranda waiver. However, Vitiello next stated that before he gave defendant the Miranda warnings, he "did advise him why we were there." Vitiello also testified that he believed the Allentown police had previously advised defendant "what he was being arrested for." Vitiello further stated that he "advise[d] Mr. Ulysse why he was detained by Allentown and [why he was] being interviewed by [Vitiello and Branch]."

Defendant testified at the Miranda hearing. According to defendant, he had been living in Allentown for four months prior to his arrest; for the two months prior to the arrest he had been drinking heavily and using a lot of Ecstasy and marijuana. He claimed that at the time he was arrested, he was under the influence of drugs, had not slept in two days, and had not eaten anything that day. He testified that he was still high during the interview with Vitiello. He testified that Branch told him the Miranda form was "nothing to worry about" and, in response to his request for an attorney, told defendant that he could get a lawyer and "take care of this stuff that I sign" when he got back to New Jersey. He testified that he did not know he was being investigated for a murder until the Newark detectives gave him that information, after he signed the Miranda waiver.

Judge Michael L. Ravin placed an oral opinion on the record immediately after the hearing. The judge found Detective Vitiello credible, for reasons he explained in detail. He particularly credited Vitiello's testimony that he observed defendant and saw no signs that he was under the influence of drugs and alcohol at the time.

The judge found defendant not credible, because his testimony was "evasive" in answering questions. The judge also noted that defendant's statement to the police was extremely detailed, demonstrating a "vivid recollection" of the crime, which was not consistent with mental impairment due to drugs or alcohol. The judge reasoned that defendant's attention to reviewing his typed statement and making corrections, was also inconsistent with his claim of impairment. He found no evidence of coercion or abuse during the interrogation, and noted that defendant was a high school graduate who had also attended three months of technical school. The judge concluded that defendant knowingly and voluntarily waived his rights and gave the statement.

In reviewing the trial judge's decision on a suppression motion, we defer to his factual findings and his credibility determinations. See State v. Diaz-Bridges, 208 N.J. 544, 565 (2011); State v. Elders, 192 N.J. 224, 243 (2007). In this case, we find no basis to disturb Judge Ravin's factual findings, which were in turn based on his well-reasoned evaluation of witness credibility. Thus, we take the facts as he found them, and not as defendant's brief posits. We thus reject defendant's claims that his confession was not voluntary because he was sleep-deprived and under the influence of drugs, and the police failed to honor his request to speak with an attorney. Judge Ravin did not believe any of that testimony.

For the first time on appeal, defendant also argues that his Miranda waiver was not knowing and voluntary, because the police did not tell him that he had been arrested pursuant to a warrant for murder until after they read him his Miranda warnings and he signed the waiver. In making that argument, defendant relies on State v. A.G.D, 178 N.J. 56 (2003). In A.G.D., which was decided several months after the Miranda hearing in this case, the Court held that the defendant's Miranda waiver was invalid because the police "did not inform him that an arrest warrant had been issued against him." Id. at 66.

Although clearly not limited by age or immaturity, defendant was disadvantaged by a lack of critically important information. The government's failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights. . . . [A] criminal complaint and arrest warrant signify that a veil of suspicion is about to be draped on the person, heightening his risk of criminal liability. Without advising the suspect of his true status when he does not otherwise know it, the State cannot sustain its burden to the Court's satisfaction that the suspect has exercised an informed waiver of rights, regardless of other factors that might support his confession's admission.

[Id. at 68.]

We conclude that defendant waived the argument concerning the arrest warrant, because he failed to raise it at the Miranda hearing. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). By withholding the argument, he deprived the State of the opportunity to present evidence specifically directed to this issue. However, even if we consider the issue, it is without merit.

On this record, A.G.D. does not warrant suppressing defendant's statement. In A.G.D., the police took the defendant's statement without ever telling him that they had a warrant for his arrest. Id. at 61. Here, it was at best unclear from Vitiello's hearing testimony whether he told defendant about the arrest warrant before or after administering the first set of Miranda warnings. However, it is clear from the testimony of both Vitiello and defendant that the police told defendant about the arrest warrant before they began questioning him.

Further, after taking defendant's oral statement, Vitiello administered Miranda warnings a second time before taking defendant's written statement. Hence, defendant made his statements to the police with full knowledge that he had been arrested for murder and with full knowledge of his right to remain silent. Under the totality of the circumstances, there is no basis to suppress his statements. See State v. Nyhammer, 197 N.J. 383, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009).3

II.

Next, we address defendant's argument concerning alleged prosecutorial misconduct during the trial. Defendant contends that the prosecutor improperly questioned him about whether he "lied" in an affidavit and in his trial testimony, and improperly referred to defendant's "lies" in summation. See State v. Wakefield, 190 N.J. 397, 466-67 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008); State v. Pennington, 119 N.J. 547, 576-77 (1990). We conclude that defendant's appellate arguments on this point are barred by the doctrine of invited error. See N.J. Div. of Youth and Family Servs. v. M.C., III, 201 N.J. 328, 340 (2010). However, even if we consider the arguments, we find no plain error. See R. 2:10-2; State v. Macon, 57 N.J.325, 329 (1971).

The prosecutor's questions and comments must be viewed in context. In his confession, defendant told the police that he shot Previllon, and stated that St. Fleur shot the other victim, Pierre. However, several months later, defendant signed an affidavit taking responsibility for both shootings, and stating that he lied when he accused St. Fleur of shooting Pierre.

In his trial testimony, defendant recanted his confession and also characterized the affidavit as a "lie," contending that he only signed the affidavit to help St. Fleur obtain a lower bail. Against that backdrop, the prosecutor questioned defendant about which of his statements were lies. In her summation, defendant's attorney freely admitted that her client lied in his affidavit, but told the jury that they should not convict him for being "a liar." The prosecutor's comments in his summation were a response to that argument.

Further, after the closing arguments, Judge Ravin noted that "[t]he prosecutor in his summation referred to the defendant as a liar. You [defense counsel] did not object to that." Defendant's counsel responded, "No, I think I called my client a liar, too." The judge then asked "So you don't request any curative instruction on that?" Defense counsel responded, "No."4 Against this backdrop, defendant's objection, raised for the first time on appeal, is barred by the doctrine of invited error. However, we also conclude that, taken in context, the prosecutor's comments did not deprive defendant of a fair trial. See Wakefield, supra, 190 N.J. at 467. Defendant's appellate contentions on this issue require no further discussion. R. 2:11-3(e)(2).

III.

Finally, we find no abuse of discretion or other error in the sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Ghertler, 114 N.J. 383, 384 (1989). We affirm substantially for the reasons stated in Judge Ravin's lengthy and detailed oral opinion at the sentencing hearing on August 15, 2003. We add the following comment.

We agree with Judge Ravin that the murder of two victims warranted the imposition of consecutive sentences. See State v. Molina, 168 N.J. 436, 442-43 (2001); State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). His statement of reasons appropriately considered the factors set forth in Yarbough, supra, 100 N.J. at 643-44. However, rather than imposing two consecutive life terms, the judge imposed the minimum term of thirty years without parole for each murder. See N.J.S.A. 2C:11-3b(1). We find no error in that sentence.

Affirmed.

1 This case has an unusual procedural history, which we addressed in a prior opinion. State v. Ulysse, No. A-3579-08 (App. Div. Feb. 14, 2011). To summarize, defendant's trial ended in 2003. After his conviction, defendant retained a private attorney to file an appeal on his behalf, but the attorney failed to do so. Thereafter, defendant filed a petition for post-conviction relief (PCR), which was denied. On his appeal from the PCR denial, we concluded that the original trial attorney's failure to file defendant's direct appeal was per se ineffective assistance of counsel. We therefore deemed the PCR petition to be defendant's notice of appeal, accepted it for filing nunc pro tunc, and ordered that the matter be briefed as a direct appeal. Ulysse, supra, slip op. at 15-18.

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

3 We note that in his trial testimony, defendant stated that when he was arrested on December 17, 2001, the Allentown police advised him that he was being arrested on a murder warrant from Newark. Detective Talarico confirmed this in his trial testimony. Defendant also testified that Vitiello and Branch gave him that same information when they first introduced themselves to him. Thus, even if we remanded this case for a new Miranda hearing, it would not yield a different result.

4 In thus quoting defense counsel, we do not imply any criticism of her advocacy on defendant's behalf. In fact, her strategy was reasonable, given her client's contradictory statements. After the trial, Judge Ravin, who conducted the trial with impeccable fairness, noted that both attorneys had done an excellent job. Based on our review of the trial transcripts, we agree.