STATE OF NEW JERSEY v. HANSEL J OJEDA-NORIEGA

NOT FOR PUBLICATION WITHOUT THE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.

HANSEL J. OJEDA-NORIEGA, a/k/a

HANSEL NORIEGA, HANSEL OJEDA,

HANSEL OJEDA NORIEGA, HANSEL

OJEDANORIEGA,

Defendant-Appellant.

November 25, 2014

Submitted September 24, 2014 Decided

Before Judges Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-03-0279.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Hansel J. Ojeda-Noriega was convicted of the lesser-included offenses of second-degree robbery, N.J.S.A. 2C:15-1, and disorderly persons simple assault, N.J.S.A. 2C:12-1(a)(1).1

On February 17, 2012, the trial judge merged the simple assault with the robbery and sentenced defendant to a prison term of six years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). Defendant now appeals, contending the trial judge erred: in denying his motion to suppress a recorded interview with police, by allowing the jury unfettered access to the tape of that statement during deliberations, and by sentencing him to an excessive term of imprisonment. We affirm.

During the trial, the jury heard testimony from the victim, Gerald Silverman, who had been an optometrist for approximately fifty years when defendant robbed him. On the day of the incident, he had office hours from 8:30 a.m. to 1:00 p.m. Only he and his receptionist were present when defendant, who was his patient, came to the office late in the morning to pick up a pair of glasses his girlfriend, also a patient, had ordered. Since there was a fifty-five dollar balance due on the glasses, defendant left to go to a nearby ATM to get additional cash. He returned, saying that he would wait for his girlfriend, who would arrive between 12:00 and 12:30 p.m., before paying.

After the receptionist left around 1:00 p.m., defendant went into Silverman's office. While standing next to the doctor, defendant asked if he could borrow fifty dollars because he had lost his job and needed the money. Silverman refused, but defendant persisted. Defendant barred his path, preventing Silverman from leaving.

When Silverman turned his back, defendant pushed him onto the ground and began kicking him. Seeing that defendant had a pair of pliers in his hand, the doctor took all the cash he had from his pocket and threw it on the floor. Defendant "picked up every single bill[,]" which Silverman estimated to be between $150 and $155.

Defendant asked Silverman about an in-office safe. Silverman responded that he did not keep a safe, at which point defendant ordered him into a bathroom. The doctor, believing he was about to be killed, ran into his office lab to grab a golf club to use as a weapon. Defendant followed, Silverman charged at him, and the two men struggled. Silverman fell to the ground, defendant kicked him a couple of times, then fled. Silverman suffered a gash on his forehead, requiring stitches, and bruises on his leg.

Defendant, who was twenty-seven at the time of trial, testified that he was working two jobs when the incident occurred. He confirmed that he went to pick up his girlfriend's glasses, but did not have enough money to pay the full balance. He called his girlfriend, who told him to wait until she could stop by the office to try the glasses on to ensure they fit properly. Defendant further testified, however, that when his girlfriend did not show up, and did not respond to his calls, Silverman became angry. Defendant claimed Silverman said, "you made me look for the glasses for nothing and you have no money," cursed at him, and "pushed him hard." Defendant pushed Silverman back, causing him to fall, and kicked him three times while the doctor was on the ground. After kicking Silverman, defendant "came to [his] senses . . . got scared and [] left."

On cross-examination, defendant agreed that he admitted to the police that he asked Silverman for money and stole from him to pay his bills. Defendant said he felt pressured by the detective during the interview and made the statement because he thought it was what the detective wanted to hear.

During the questioning, defendant admitted assaulting the doctor because he needed money, giving three different reasons for his financial problems: that his six-year-old daughter was in the hospital as a result of asthma, from which she has suffered her entire life; that he needed the money to pay for his car insurance; and that he needed the money to pay for his cell phone bill. Defendant also admitted pushing and kicking Silverman, but initially denied hitting the doctor with pliers. Eventually, defendant acknowledged striking Silverman with the pliers, afterwards throwing them away. Defendant also asked the detective to convey his apologies to the doctor.

Detective Thomas Koczur of the City of Elizabeth Police Department conducted the taped interview. Prior to beginning, Koczur read defendant his Miranda2 rights. While reviewing the waiver form with defendant, the following occurred

Q Okay. Can you read that out loud to me please?

. . . .

A And you have the right to contact a lawyer and have him present before you are questioned.

Q Consent?

A Yes but right now I don't have a lawyer. I don't know.

Q Do you wish to speak to me without your lawyer?

A Yes sir.

Q Okay just put the word yes and your initials.

A If you cannot afford to hire a lawyer, one will be appointed to represent you before any questions, if you wish.

Q Do you understand?

A Yes.

At the pre-trial motion hearing, defense counsel contended that when defendant said "I don't know," he invoked his right to counsel, thereby triggering the officer's legal duty to further explore whether defendant understood his right to counsel and wished to consult with an attorney before proceeding further. The trial judge disagreed, finding defendant's statement to be, at most, ambiguous

[F]irst [defendant] says, yes, to whether he wants a waiver. And then he says, right now, I don't have a lawyer. And then he says, I don't know. I think that, I don't know, is a reference to whether or not you want to talk to me without a lawyer being present or whether you want to assert that your MIRANDA rights. And that's what he's saying I don't know to. And then the next question is, do you wish to speak to me without your lawyer, which is, I think, the detective clarifying an ambiguous [response] first he says, yes, then he says, I don't know. He's clarifying an ambiguous response to whether or not he wants to assert his MIRANDA rights.

Thus the trial judge concluded that Koczur adequately clarified defendant's ambiguous response regarding his right to counsel. Having determined that defendant knowingly, intelligently, and voluntarily waived his Miranda rights, he then ruled that the statement could be played for the jury.

During deliberations, the jurors sent out a note asking for a playback of Silverman's testimony, "at the part when he describes the attack." The jury also asked, in a second note, if they could have a television set to play the DVD of defendant's statement, which was sent into the deliberation room along with the other exhibits admitted into evidence. The judge asked counsel if either had a preference as to the order in which the jury should listen to the replay of Silverman's testimony and watch the DVD. Defense counsel said "I don't really care, you can. But maybe we should just [do it] in the order that they asked, . . . the readback [first] and then the DVD."

The following day, defense counsel reiterated that he had "no objection [to defendant's] statement going in with the television in front of the jury." After noting that he had talked to counsel off the record about the issue, based on his awareness of the holding in State v. Burr,3 the judge said "that under the facts and circumstances of this case, [defense counsel had] no problem with the TV and the DVD going into the jury room." Defense counsel responded, "that's correct, Your Honor."

The jury resumed deliberations briefly, and was then brought into the courtroom to hear the relevant portion of Silverman's testimony. The jury also asked for a recharge on some of the legal definitions. Following the recharge, they returned to the deliberation room with the video recording of defendant's interrogation.

Characterizing the crime as a "premeditated attack on an elderly gentleman[,]" the judge found aggravating factors nine,N.J.S.A.2C:44-1(a)(9), andtwelve, N.J.S.A. 2C:441(a)(12). He also found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), because defendant had no prior criminal history. After weighing the aggravating factors and the single mitigating factor, he imposed a sentence of six years for second-degree robbery.

Defendant raises the following points for our consideration as error

POINT I

BECAUSE THE POLICE VIOLATED OJEDA'S STATE AND FEDERAL RIGHTS TO COUNSEL WHEN THEY FAILED TO HONOR OR ADEQUATELY CLARIFY HIS REQUEST FOR COUNSEL PRIOR TO FURTHER QUESTIONING, THE STATEMENT SHOULD HAVE BEEN SUPPRESSED.

POINT II

THE TRIAL JUDGE'S DECISION TO ALLOW THE JURY TO TAKE THE VIDEO RECORDING OF HANSEL'S INTERROGATION INTO THE JURY ROOM AND VIEW IT UNSUPERVISED, CONSTITUTES REVERSIBLE ERROR. (Not raised below).

POINT III

THE TRIAL JUDGE FAILED TO FIND MITIGATING FACTORS EIGHT AND NINE RESULTING IN A MANIFESTLY EXCESSIVE SIX-YEAR NERA SENTENCE.

I

In reviewing a motion to suppress a recorded statement,4 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. Elders, 192 N.J. 224, 243 (2007) (internal citations and quotation marks omitted). Further, "[a]n appellate court should not disturb the trial court's findings merely because it might have reached a different conclusion were it the trial tribunal." Id. at 244. However, the trial court's application of the law to the factual findings is not given the same deference. State v. Handy, 206 N.J. 39, 45 (2011).

When a defendant challenges a statement made during a police interrogation, the State must prove beyond a reasonable doubt that the waiver of the defendant's Miranda rights "was knowing, intelligent, and voluntary in light of all the circumstances." State v. Presha, 163 N.J. 304, 313 (2000). If an individual "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1966).

Our Supreme Court has held that "a suspect need not be articulate, clear, or explicit in requesting counsel; any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel." State v. Reed, 133 N.J. 237, 253 (1993). To determine whether an individual has invoked his or her right to counsel, our courts employ "a totality of the circumstances approach that focuses on the reasonable interpretation of [the] defendant's words and behaviors." State v. Diaz-Bridges, 208 N.J. 544, 564 (2011).

Should a suspect's "words amount to even an ambiguous request for counsel, the questioning must cease, although clarification is permitted; if the statements are so ambiguous that they cannot be understood to be the assertion of a right, clarification is not only permitted but needed." State v. Alston, 204 N.J. 614, 624 (2011). In responding to an ambiguous statement, the officer must limit himself or herself to clarification, "not questions that operate to[] delay, confuse, or burden the suspect in his assertion of his rights." State v. Johnson, 120 N.J. 263, 283 (1990) (internal citation and quotation marks omitted).

Moreover, under the totality of the circumstances approach, not every equivocal reference to an attorney is an invocation of the right to counsel requiring the cessation of police interrogation. For example, in Alston, supra, 204 N.J. at 626, our Supreme Court held that the defendant's statement "should I not have a lawyer?" was not an assertion of his right to counsel, but rather a request for advice from the investigating officer. The officer responded by asking the defendant if he wanted a lawyer, to which the defendant replied "no" while continuing to pose hypotheticals concerning the mechanics of obtaining counsel. Ibid. The Court determined that the defendant had a clear understanding of his right to counsel, that the defendant's requests and queries were not assertions of that right, and that the officer's responses adequately clarified the defendant's requests. Id. at 628. See also State v. Cardona, 268 N.J. Super. 38, 42-43, 45-46 (App. Div.), certif. denied, 135 N.J. 300 (1994) (finding that the defendant's references to an attorney who stole money from him in previous representations did not amount to an invocation of the right to counsel).

Conversely, we found an equivocal request for counsel barred further questioning where the defendant indicated he would give a statement provided that it would be approved by his attorney. State v. Dickens, 192 N.J. Super. 290, 297-98 (App. Div. 1983), cert. denied, 97 N.J. 697 (1984). See also State v. Wright, 97 N.J. 113, 119 (1984) (holding that the defendant's statement that he would not "sign any more deeds [or waivers] without a lawyer present" was an invocation of the right to counsel).

In this case, sufficient credible evidence in the record supports the trial judge's denial of defendant's motion to suppress. Defendant's comment was factual, indicating "right now I don't have a lawyer." Immediately afterwards, Koczur asked "Do you wish to speak to me without your lawyer?" This was entirely proper and designed to clarify defendant's intent. See Johnson, supra, 120 N.J. at 283.

Koczur's question did not "operate to[] delay, confuse, or burden" defendant. Ibid. It was a clear and simple inquiry and defendant's response was unequivocal: "Yes sir." We therefore agree with the trial judge that defendant waived his rights knowingly, intelligently, and voluntarily. See Alston, supra, 204 N.J. at 623. The court's admission into evidence of defendant's statement was not error.

II

For the first time on appeal, defendant argues that the trial judge should not have allowed the jury to take the video recording of his interrogation into the jury room. Where an issue raised on appeal was not brought to the attention of the trial court, it will be reviewed for plain error. That is, any error will be disregarded unless it is "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971). Under the plain error standard, "[r]eversal of [the] defendant's conviction is required if there was error sufficient to raise a reasonable doubt as to whether it led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citation and quotation marks omitted).

Under Rule 1:8-8, "[t]he jury may take into the jury room the exhibits received in evidence." Although the language of Rule 1:8-8 does not distinguish between different types of evidence, a videotaped statement is a hybrid that is both a demonstrative exhibit and testimony. Burr, supra, 195 N.J. at 134. Unlike demonstrative exhibits, "the videotape is powerful evidence for the jury to see again, if it is not placed into context." Ibid. Specifically, our courts have been concerned about the potential of the jury to "unfairly emphasize [the witness's] videotaped statements over other testimony presented at trial." Ibid.

When a jury asks to view a statement in the jury room, the trial judge should take certain precautionary measures to prevent the jury from placing undue emphasis on the particular testimony that is replayed. Ibid. The Supreme Court has said

[T]he court should first inquire of the jury whether it would be satisfied with a readback of [the] testimony [concerning the events videotaped]. If the jury persists in its request to view the videotape again, then the court must take into consideration fairness to the defendant. The court must determine whether the jury must also hear a readback of any direct and cross-examination testimony that the court concludes is necessary to provide the proper context for the video playback.

[Id. at 135].

Recently, the Supreme Court has held that trial courts may not give deliberating jurors unfettered access to a recorded statement admitted into evidence at trial. State v. A.R., 213 N.J. 542, 560-61 (2013).5 In A.R., the Court reiterated the necessity for trial courts to engage in the process outlined in Burr, designed to focus on fairness to the defendant. Ibid. Ultimately, however, in A.R., the Court determined that even though the trial court erred by permitting the jury to have unfettered access to certain video-recorded statements, under the invited-error doctrine the error did not warrant the reversal of the defendant's convictions. Id. at 561. The invited-error doctrine applied because defense counsel relied on the videotaped statements to establish an element of its defense strategy, encouraged the jury to review the video-recorded statements, and supported the trial court's decision to submit the video to the jury. Id. at 561-63.

The judge in this case did not comply with the strictures set forth in Burr. Without making preliminary inquiries to assess whether the jury was firm in its request to hear the taped statement again, and then placing the DVD in context, the judge should not have sent the DVD into the jury room. But the error does not warrant reversal.

It is well-settled that "[m]istakes at trial are subject to the invited-error doctrine." A.R., supra, 213 N.J. at 561. Under the invited-error doctrine, "[t]rial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. Corsaro, 107 N.J. 339, 345 (1987) (quoting State v. Harper, 128 N.J. Super. 270, 277, certif. denied, 65 N.J. 574 (1974)). The doctrine of invited error effectively bars "a disappointed litigant from arguing . . . that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996).

The facts of this case implicate the invited-error doctrine, as they did in A.R. While on the stand, defendant denied that he robbed the doctor but admitted to kicking him three times. Defendant's defense, that he responded inappropriately when Silverman pushed him, necessitated an explanation for the prior statements he provided to the detective. To establish that Koczur intimidated him and pressured him into giving a false confession, defendant testified that the detective "kept on looking at me, he kept on putting pressure, he kept on asking me questions and then I started saying that, but because I was nervous, but I thought I was saying what he wanted to hear."

Defense counsel further developed the theory during Koczur's cross-examination. Counsel specifically asked the detective "And the whole point of the interrogation or interview was to get an admission or a confession. Correct?" In his closing argument, defense counsel actively encouraged the jury to "review the detective's [video-recorded] interrogation" and to "look at everything very closely." Defense counsel told the jurors that the interrogation was designed to get a confession from defendant and that the detective "knows how to get anyone to say anything eventually."

Defense counsel knew before deliberations began that the video-recorded statement would be sent into the jury room with the other evidence because the trial judge repeatedly said so. Defense counsel not only failed to object on the multiple occasions when the judge said he planned to send the videotape into the jury room,6 but also said that he had "no objection of [defendant's] statement going in with the television in front of the jury." Defense counsel did not, at any point in time, request that the trial judge ask the jury if a readback of the testimony would be sufficient, that he replay the video in open court, or that he follow any of the other precautionary steps outlined in Burr. Defense counsel therefore invited the error now claimed to warrant reversal of the convictions.

Even if not invited error, the trial judge's failure to comply with the procedural safeguards of Burr is not plain error. It is nothing more than speculation to hypothesize that had the jury not been given unsupervised access to the DVD, they might have accepted defendant's version of the altercation.

Defendant's version was inherently less plausible than that of Silverman. Details such as the length of time defendant remained in the office, the fact he stayed after the receptionist left, and that he was short of money, support Silverman's narrative. Defendant does not explain the reason Silverman would, given his age and professional relationship to defendant and defendant's girlfriend, shove and curse at him solely because the doctor had to find a pair of glasses for which defendant could not pay that day. Additionally, the photographs of the doctor's injuries, introduced at trial, depicted harm greater than that which defendant claimed he inflicted when he only kicked the doctor three times and left.

Given the strength of the proofs against defendant, the jury's unfettered access to the DVD did not lead the jury "to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.

III

Our review of a trial judge's sentencing decision is "relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). Under this standard, a criminal sentence must be affirmed unless: (1) the sentencing guidelines were violated; (2) the aggravating or mitigating factors were not based on "competent credible evidence in the record;" or (3) the application of the guidelines made the sentence "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984). Thus, "an 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) (internal quotation and citation omitted). "[W]here mitigating factors are amply based in the record before the sentencing judge, they must be found." State v. Dalziel, 182 N.J. 494, 504 (2005).

In determining which aggravating and mitigating factors were applicable, the trial judge noted that Silverman was a victim "sixty years of age or older" and therefore came within the scope of aggravating factor twelve. The court found mitigating factor seven, defendant's lack of a prior criminal history, but ultimately concluded that the two aggravating factors, nine, the need to deter, and twelve, outweighed the single mitigating factor. This was a second-degree offense in which the term of imprisonment ranged from five to ten years.

The judge's discretionary decision was the product of a thoughtful balance of the relevant statutory factors. There was no basis upon which the judge could have concluded, as defendant now argues on appeal, that mitigating factor eight, N.J.S.A. 2C:44-1(b)(8), "defendant's conduct was the result of circumstances unlikely to recur[,]" applied. Defendant's conduct went unexplained, hence it cannot be said from the available information regarding his character or the circumstances of the event, that it is unlikely to recur. Nor does defendant's steady work history and remorse suffice to create a record supporting N.J.S.A. 2C:44-1(b)(9), that the "character and attitude of the defendant indicate that he is unlikely to commit another offense." The judge did not abuse his discretion in sentencing defendant.

Affirmed.

1 Defendant was tried and acquitted on the indicted charges of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4(d).

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

3 State v. Burr, 195 N.J. 119 (2008). In Burr, the Court found that "allowing a jury unfettered access to videotaped witness statements could have much the same prejudicial effect as allowing a jury unrestricted access to videotaped testimony during deliberations." Id. at 134. When a jury requests a replay of a videotaped pretrial interview that has been introduced into evidence, the court must engage in the "precautionary procedures adopted in Michaels[,]" including conducting the playback in open court in the defendant's presence. Ibid. (citing State v. Michaels, 264 N.J. Super. 579 (App. Div. 1993), aff d on other grounds, 136 N.J. 299 (1994)).

4 In State v. Diaz-Bridges, 208 N.J. 544, 566, (2011) the Supreme Court concluded "[w]hen the trial court's factual findings are based only on its viewing of a recorded interrogation that is equally available to the appellate court and are not dependent on any testimony uniquely available to the trial court, deference to the trial court's interpretation is not required." The Diaz-Bridges de novo standard does not apply to this matter as the trial judge based his findings at the suppression hearing on the oral testimony of Koczur as well as the DVD. Additionally, defendant did not include a copy of the DVD in the appellate record.

5 At the time of the trial in this case, the Supreme Court had not decided A.R.

6 Defense counsel's only concern with the procedure the court followed with the videotape was that the judge "instruct the jury that they should rely on what they actually see [in the video] and not on the transcript [because] it's just an aid."