STATE OF NEW JERSEY v. QUMERE JAQUELL MCCLENDON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

QUMERE JAQUELL MCCLENDON,

Defendant-Appellant.

_________________________________

March 7, 2014

Submitted January 6, 2014 Decided

Before Judges Harris, Kennedy and Guadagno.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-09-0125.

Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was found guilty of second-degree conspiracy to commit burglary and robbery, N.J.S.A. 2C:5-2; possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a(1) and N.J.S.A. 2C:2-6; second-degree burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:2-6; first-degree robbery, N.J.S.A. 2C:15-1a(2) and N.J.S.A. 2C:2-6; first-degree felony murder of Keith Mason, N.J.S.A. 2C:11-3a(3) and N.J.S.A. 2C:2-6; first-degree aggravated manslaughter of Keith Mason, N.J.S.A. 2C:11-4a; third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a and N.J.S.A. 2C:2-6; second-degree witness tampering, N.J.S.A. 2C:28-5a; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. On May 3, 2011, after appropriate mergers, the trial judge sentenced defendant to a term of incarceration of thirty years without parole on the felony murder count; a concurrent term of twenty years' incarceration on the robbery count, subject to eighty-five percent parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2; a consecutive term of ten years' incarceration subject to five years of parole ineligibility on the certain persons count; a consecutive term of ten years' incarceration subject to five years of parole ineligibility on the witness tampering count; and a consecutive term of five years' incarceration on the endangering count.

Defendant appeals and raises the following arguments:

POINT I: THE DEFENDANT'S VIDEOTAPED STATEMENT WAS THE PRODUCT OF COERCIVE INTERROGATION. U.S. Const. Amends. V, XIV; N.J.R.E. 503.

POINT II: THE TRIAL JUDGE ERRED IN NOT SUPPRESSING THE DEFENDANT'S SECOND STATEMENT AS IT WAS OBTAINED AFTER HE INVOKED HIS RIGHT TO COUNSEL. U.S. Const. Amends. V, XIV; N.J.R.E. 503.

POINT III: THE DEFENDANT'S SENTENCE IS EXCESSIVE.

We have considered these arguments in light of the record and applicable law, and we affirm.

I.

Because the appeal is limited to defendant's sentence and the judge's pre-trial orders respecting the admission of statements made by defendant following his arrest, we shall only briefly set forth the facts adduced at trial.

On December 14, 2006, defendant shot and killed Keith Mason during an attempted armed robbery at Mason's apartment. Defendant, along with two other individuals, planned to rob Mason for the marijuana he kept in the apartment. Defendant and Paul Lewis planned the robbery on the night of December 13, 2006, and while planning it defendant showed Lewis his 45-caliber automatic hand gun.

Defendant, Lewis, and Darnell Stovall planned for Lewis to go into Mason's home first because Lewis knew Mason. Lewis would leave the door unlocked, allowing the others to enter. Before going to Mason's, the three men stopped at a store to get gloves and bandanas to cover their hands and faces. The men were driven to Mason's by Aulander Daniels.

Lewis called ahead to let Mason know he was coming over to buy marijuana. Lewis, defendant, and Stovall arrived at Mason's residence at approximately 3:00 a.m., and Lewis walked up an outdoor stairwell to Mason's backdoor. Mason opened the door for Lewis and they, along with Mason's two-year-old son, went to the kitchen. Shortly thereafter, defendant and Stovall entered through the back door brandishing handguns and yelled at Mason to get on the ground. Mason recognized them as friends of Lewis, and "rushed toward" defendant and Stovall, whereupon defendant fired his weapon at Mason, striking him in the chest.

Defendant and Stovall then fled, and Lewis departed shortly thereafter, leaving Mason's son with his father's body. Before leaving, however, Lewis called for emergency assistance on his cell phone but hung up before providing information. The operator called Lewis back and they spoke very briefly before Lewis disabled the phone.

Lewis was later contacted by police and gave a statement incriminating defendant.

II.

Prior to trial, defendant moved to suppress statements he had made to police following his arrest. On August 5, 6, and 7, 2008, Judge Anthony J. Mellaci, Jr., held a Miranda1hearing concerning defendant's statements to police on December 29, 2006.2 The State called four officers to testify during the hearing, including Monmouth County Prosecutor's Detective Jose Cruz, Long Branch Detective Raymond Chaparro, and two others. Defendant presented no witnesses. On August 7, 2008, Judge Mellaci rendered his findings of fact and conclusions of law on the record.

Judge Mellaci found that on December 29, 2006, defendant was arrested pursuant to a warrant, at approximately 3:30 a.m. at his home. The police searched defendant's home and discovered him hiding in the attic wearing a t-shirt and shorts. In front of the attic door, the police found a pile of defendant's clothing. Defendant was brought to the Long Branch Police Department for questioning. Detective Cruz and Long Branch Detective Ed Hennelly conducted the interview. Defendant was read his rights and understood them.

Shortly after questioning began, defendant asked to call his lawyer. The detectives continued the questioning ostensibly to ascertain defendant's intent, but were soon stopped by a sergeant. Detective Hennelly attempted to clarify defendant's request, but the clarification was inadequate and the sergeant stopped the questioning again because defendant had invoked his right to an attorney.

At that point, defendant said "I'll talk to you, I'll talk to you." Judge Mellaci found that defendant had his "wits about him," was not under duress, and "appeared to be jovial, joking with the officers, calm, cool, collected, sure of
himself . . . ." Defendant was then reread his Mirandarights.

Judge Mellaci found that any conversation that occurred between the initial invocation and the time "where the rights were re-read, and the defendant clarified that he was willing to talk," must be suppressed. However, Judge Mellaci also found that, while there was an invocation for a lawyer, it was defendant who "then changed his mind, knowingly and voluntarily, and after being fully advised of his Mirandawarnings, once again, decided to continue with the discussion."

During the interview, defendant consistently denied involvement in the murder and denied knowing anything about the incident. Defendant only said that he had heard that Paul Lewis was at Mason's when the shooting occurred.

Judge Mellaci also suppressed a second part of the same interview. At approximately 4:42 a.m., defendant said "I'm gonna talk to my lawyer." Detective Cruz left the room momentarily, but when he returned they continued questioning defendant. Judge Mellaci found, as a matter of law, the remainder of the interview that morning must be suppressed.

Following the initial interview, defendant was transported from Long Branch to the Asbury Park Police Department in order to keep defendant separate from another suspect being held in Long Branch. During the ride to Asbury Park, defendant made statements to Detective Chaparro, which led him to bring defendant back to Long Branch.

Detective Chaparro testified that defendant started "mumbling that he shouldn't take a hit." Detective Chaparro asked defendant if he wanted to go back to Long Branch to speak to the detectives again. Defendant wanted to be taken out of the car because he felt the car was wired, but Detective Chaparro refused. When they reached Asbury Park, defendant again said "something to the fact he should have said something, should have told." Detective Chaparro took defendant out of the vehicle and defendant "said that he wanted to go back and tell his side of the story, he was gonna tell the truth and to the fact of an accident."

Detective Chaparro then put defendant back into the car, contacted the Long Branch Police Department, and set forth the substance of defendant's statements. He then drove defendant back to Long Branch. Judge Mellaci found that the statements were "made without any solicitation from any law enforcement officer[,]" and that there was "no violation of any Mirandawarning[.]"

After returning to the Long Branch police department, defendant was reread the Mirandawarnings, understood them, wished to waive them, and did not want an attorney present. Defendant also stated that no one forced him to come back to Long Branch and that the decision to come back was voluntary.

During this interview, defendant admitted that he, Paul Lewis, and Darnell Stovall planned to rob Mason for the marijuana kept in Mason's house. He said that the plan was for Lewis to enter the house first, and leave the back door open, and that defendant and Stovall would enter the house thereafter.

Defendant stated he was not involved in the shooting. He alleged that he changed his mind and never entered Mason's house, and that he did not have a gun, and did not know Lewis or Stovall had a gun. However, later during the interview, defendant stated he knew that either Lewis or Stovall had a gun. Defendant described the weapon as a black forty-five caliber handgun.

Judge Mellaci found that defendant's invocation of his right to an attorney was "overcome . . . when he [ ] initiated the conversation and then the officers took great pains to clarify if [defendant] really did want to talk and really want a lawyer when they re-read him the Miranda warnings . . . ."

Judge Mellaci was "satisfied there was no attempt to overbear the will of Mr. McClendon in any way, shape, or form. He was under no duress, he was comfortable, and he was ready, willing, and able at that point, to cooperate." Defendant's motion to suppress his second statement to police was denied.

III.

On May 3, 2011, as noted earlier, defendant was sentenced to an aggregate of fifty-five years incarceration, subject to a forty-year parole disqualifier. Judge Mellaci imposed concurrent terms on the felony murder and first-degree robbery counts, but ordered the terms for the remaining offenses to be served consecutively. In doing so, Judge Mellaci evaluated the Yarbough3guidelines in light of the record, and placed his reasons for imposing consecutive terms on the record. Judge Mellaci found aggravating factors three (the risk that the defendant will commit another offense, N.J.S.A.2C:44-1a(3)), six (the extent of defendant's prior record and the seriousness of the offenses of which he has been convicted, N.J.S.A.2C:44-1a(6)), and nine (the need for deterring defendant and others from violating the law, N.J.S.A.2C:44-1a(9)), applied, and that no mitigating factors applied. Judge Mellaci was "clearly convinced the aggravating factors substantially outweigh the mitigating factors."

IV.

We consider initially defendant's arguments that the initial questioning was coercive and that the second statement made by defendant was obtained after he invoked his right to counsel. Thereafter, we shall address defendant's argument that his sentence was excessive.

We begin with a statement of the principles that guide our analysis. Our review of a trial judge's decision on a motion to suppress is limited. State v. Robinson, 200 N.J.1, 15 (2009). In reviewing 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.'" Ibid.(quoting State v. Elders, 192 N.J.224, 243 (2007)). Additionally, we defer to a trial judge's findings "which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy . . . ." State v. Davila, 203 N.J.97, 109-10 (2010) (quotation omitted).

When we are satisfied that the findings of the trial court could reasonably have been reached on the record, "[our] task is complete and [we] should not disturb the result, even though [we have] the feeling [we] might have reached a different conclusion were [we] the trial tribunal." State v. Johnson, 42 N.J.146, 162 (1964). Nevertheless, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then [we] should review 'the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" State v. Mann, 203 N.J.328, 337 (2010) (quoting Johnson, supra, 42 N.J.at 162). "[We] owe[] no deference to the trial court in deciding matters of law. When a question of law is at stake, [we] must apply the law as [we] understand[] it." Ibid. (citations omitted).

The scope of the New Jersey privilege against self-incrimination and the procedures that New Jersey law requires to protect it are generally consistent with those for the federal constitutional right against self-incrimination. State v. Knight, 183 N.J.449, 461 (2005); State v. Burris, 145 N.J.509, 520 (1996). "[T]he Fifth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, guarantees the right against self-incrimination[.]" State v. W.B., 205 N.J.588, 604-05 (2011) (citations and footnote omitted). "Inherent in every Fifth Amendment analysis is the question of whether the statement was voluntary, and, independently, whether the law enforcement officers taking it complied with Miranda." Id.at 605. "The State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." Knight, supra, 183 N.J.at 462 (citing State v. Galloway, 133 N.J.631, 654 (1993)).

In determining whether a statement was made voluntarily, "[a] court must look at the totality of the circumstances[.]" Galloway, supra, 133 N.J.at 654. We apply a deferential standard in reviewing the court's findings at a hearing on the voluntariness of a defendant's statement, and reverse only if they are not supported by substantial credible evidence in the record. State v. J.A.C., 210 N.J.281, 295 (2012); Knight, supra, 183 N.J.at 468.

A defendant's waiver of Mirandarights must be made voluntarily, knowingly, and intelligently. State v. Bey, 112 N.J.123, 134 (1988); Knight, 183 N.J.at 462. In determining whether a statement is voluntary, courts, as noted earlier, consider the totality of the circumstances, including the characteristics of the accused and the details of the interrogation. Ibid.; Bey, supra, 112 N.J.at 134-35. "Relevant factors include the defendant's age, education, intelligence, advice concerning his constitutional rights, [the] length of detention, . . . the nature of the questioning," Bey, supra, 112 N.J.at 135, the defendant's "previous encounters with law enforcement, and the period of time between [the] 'administration of the [Miranda] warnings and the volunteered statement[.]'" Knight, supra, 183 N.J.at 463 (citation omitted).

Moreover, in addition to assuring that a defendant has voluntarily, knowingly, and intelligently waived his rights under Miranda, a court must determine that the statement itself was uncoerced. Id.at 462. "An involuntary confession can result from psychological as well as physical coercion[,]" but the "use of a psychologically-oriented technique during questioning is not inherently coercive." Galloway, supra, 133 N.J.at 654 (citations omitted). Further, "[t]he fact that an investigative officer is friendly, sympathetic, and encourages the trust of the defendant to give a statement ordinarily would not render the confession involuntary." State v. DiFrisco, 118 N.J.253, 257 (1990). Rather, the inquiry must be whether an investigator's statements or actions were so manipulative or coercive that they "deprived [defendant] of his ability to make an unconstrained, autonomous decision to confess." Ibid.(quoting Miller v. Fenton, 796 F.2d 598, 605 (3d Cir.), cert. denied, 479 U.S. 989, 107 S. Ct. 585, 93 L. Ed. 2d 587 (1986)). The focus is on "whether the person's decision to confess results from a change of mind rather than from an overbearing of the suspect's will." Galloway, supra, 133 N.J.at 655.

We are satisfied that the detectives' initial failure to provide defendant with additional clothes did not reach the level of overbearing defendant's will and coercing a confession. In the absence of "very substantial" psychological pressure by detectives, we cannot conclude that defendant's will had been overborne. SeeGalloway, supra, 133 N.J.at 656. Based on the totality of the circumstances, there was sufficient credible evidence in the record supporting the judge's denial of defendant's motion to suppress.

The trial judge properly considered the totality of the circumstances as portrayed on the recorded statement and, in determining voluntariness, looked at the nature of the interrogation, defendant's responses to the detectives' questions, and defendant's physical affect throughout the interrogation.

Defendant also contends that his statements after returning from Asbury Park to Long Branch should have been suppressed because he had asked for counsel. We disagree. "A police officer must 'scrupulously honor' the invocation of the right to counsel. This requires the interrogating officer to cease all questioning until an attorney is present." State v. Melendez, 423 N.J. Super. 1, 29 (App. Div. 2011); see also State v. Burno-Taylor, 400 N.J. Super. 581, 606 (App. Div. 2008) (stating that police must "scrupulously honor" a defendant's right to remain silent). "Once a defendant invokes his or her right to silence, interrogation can resume only if the police administer a fresh set of Mirandawarnings. That rule, however, does not apply if the defendant initiates a dialogue about the crime." State v. Harvey, 151 N.J.117, 221-22 (1997) (citations omitted), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). In addition, "[a]n accused who has expressed his desire to deal with the police only through his counsel is not subject to further interrogation until counsel has been made available, unless the accused himself initiates further communication." State v. Wright, 97 N.J.113, 122 (1984) (citing Edwards v. Arizona, 451 U.S. 477, 484, 101 S. Ct. 1880, 1884, 68 L. Ed. 2d 378, 386 (1981)).

Here, any incriminating statements defendant made after he invoked his Mirandarights on December 29, 2006, were properly suppressed. Thereafter, defendant initiated further communication with the detectives about the crime without any coercion or pressure on the detectives' part. Defendant voluntarily asked to return to the Long Branch Police Department, where he received a fresh set of Mirandawarnings before giving his statement. We are satisfied that the record amply supports Judge Mellaci's conclusion that defendant knowingly, voluntarily, and intentionally waived his rights.

Defendant argues that his sentence of fifty-five years with a forty year parole bar is excessive and does not "conform to the dictates of our Code of Criminal Justice." Specifically, defendant contends that the imposition of four consecutive sentences, three of which were maximum term sentences, is excessive. We do not agree.

An appellate court's review of a sentence is limited and governed by an abuse of discretion standard. State v. Miller, 205 N.J.109, 127 (2011); State v. Blackmon, 202 N.J.283, 297 (2010). Thus, "[a]n appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. Cassady, 198 N.J.165, 180 (2009) (quoting State v. O'Donnell, 117 N.J.210, 215 (1989)). Also, a reviewing court may not "substitute its assessment of aggravating and mitigating factors" for that of the trial court. State v. Bieniek, 200 N.J.601, 608 (2010) (citing O'Donnell, supra, 117 N.J.at 215).

In determining whether consecutive sentences are appropriate, New Jersey courts apply the guidelines set forth in Yarbough, supra, 100 N.J.at 627. "When a sentencing court properly evaluates the Yarboughfactors in light of the record, the court's decision will not normally be disturbed on appeal." Miller, supra, 205 N.J.at 129; Cassady, supra, 198 N.J.at 182.

The Court in Yarboughstated that a sentencing court should consider, among other things, the factual content of the crimes, including whether or not: (1) the crimes and their objectives were predominantly independent of each other; (2) the crimes involved separate acts of violence or threats of violence; (3) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (4) any of the crimes involved multiple victims; and (5) the convictions for which the sentences were imposed were numerous. Yarbough, supra, 100 N.J.at 643-44. These five factors are to be applied qualitatively, rather than quantitatively. State v. Carey, 168 N.J.413, 427 (2001).

The fairness of the overall sentence should be considered in reviewing the imposition of consecutive sentences. State v. Sutton, 132 N.J.471, 485 (1993); State v. Miller, 108 N.J.112, 121 (1987). The YarboughCourt also instructed sentencing courts to separately state on the record "the reasons for imposing either a consecutive or concurrent sentence . . . ." Yarbough, supra, 100 N.J.at 643.

Here, Judge Mellaci thoroughly reviewed all the appropriate factors in imposing defendant's sentence. Regarding the charges of armed robbery and felony murder, Judge Mellaci imposed concurrent sentences because the offenses were "inextricably linked" and involved the same time, place, and victim, and the robbery was one of the predicate offenses for the felony murder charge.

On the certain persons offense, Judge Mellaci justified a consecutive sentence because the offense was "wholly separate and apart" from the felony murder, and "[t]he conduct constituting this offense did not consist of a single action at the victim's home on the day of the homicide."

On the endangering the welfare of a child count, Judge Mellaci found that the evidence presented at trial showed that the offense was corollary to the robbery and felony murder. However, while "the conduct . . . was part of the single period of aberrant behavior defendant was engaged in at the time of murder[,]" he explained that, because this offense involved a separate victim and separate "modus operandi" from the felony murder, the sentence would run consecutively. Lastly, on the witness tampering charge, Judge Mellaci appropriately imposed a consecutive sentence.

The remainder of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. 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 On December 29, 2006, defendant made statements relating to the Keith Mason homicide, as well as statements concerning the homicide of Michael Montgomery on November 21, 2006.

3 State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 465 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).