STATE OF NEW JERSEY v. MAURICE BRACK

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5479-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAURICE BRACK,

Defendant-Appellant.

______________________________

October 22, 2014

 

Submitted October 15, 2014 Decided

Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-10-0851.

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

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

PER CURIAM

Defendant, who was fourteen years old when the crime occurred and was waived up to adult court, appeals from his conviction for first-degree murder, N.J.S.A. 2C:11-3a(1) and (2). We affirm.

The victim was involved in a physical altercation with another person. A large group of individuals chased the victim to a parking lot where he was stabbed and beaten. The police arrived at the scene and located the victim, who died shortly thereafter in the hospital. Defendant was present at the scene of the murder.

Detective Paul Pasternak and two other detectives went to defendant's home. Defendant's mother consented to a search of defendant's room and both defendant and his mother agreed that the police could interview defendant at the police station. As an accommodation, they transported defendant and his mother to police headquarters for the interview. Defendant was not handcuffed or taken into custody at any point.

The police brought defendant and his mother into a reception area/coffee room at the police station while other detectives set up a video camera to record the interview. While waiting to go into the interview room, Detective Pasternak gave defendant and his mother the interview procedures and he asked defendant about lettering found near the crime scene. Defendant indicated that the letters were a gang symbol and further disclosed that he was about to become a member of the Bloods. The detective did not ask any further questions and waited for the interview to start.

Detective Pasternak brought defendant and his mother into the interview room and gave defendant his Miranda1 rights. Defendant stated during the interview that he was in a gang and about to become a Blood, the symbol at the crime scene was a gang symbol, and then defendant gave a detailed description of the events leading up to the murder. He said that the victim punched "one of the . . . big homies" in the Bloods and then the victim fled. Defendant admitted that he chased, caught, and held the victim down until others arrived. Defendant described how others punched, stomped, stabbed, and beat the victim. Defendant stated he handled a knife that was used, but that he did not stab the victim or take part in later hiding the knife. Defendant also stated that the victim's murder may have increased the status of persons within the Bloods. The police released defendant after the interview and arrested him almost two years later, charging him with committing the murder.

Defendant moved to suppress his statements. At the suppression hearing, the judge took testimony from Detective Pasternak, defendant, and defendant's mother, brother, and sister. Defendant and his mother testified that Detective Pasternak brought them directly to the interview room and engaged in detailed questioning prior to the administration of defendant's Miranda rights. The judge found the testimony of Detective Pasternak credible and the testimony of defendant and defendant's mother not credible. He concluded that defendant was not in a custodial situation either at his home or in the police station prior to being Mirandized. The court noted that

Defendant walked into police headquarters of his own volition. The transportation provided by police was an accommodation. The short duration of the interview, the relaxed tenor of the interview, the calm demeanor of the participants, the lack of any evidence of prolonged, repeated questioning or of any threats or other mistreatment, the cordial manner in which the interview ended, and the fact that [defendant's mother] called her son to pick them up and drive her and defendant home indicate without a doubt that . . . defendant was not in custody when he was questioned.

The judge found further that

While some questions about the incident did take place prior to the taped statement, . . . this court finds that defendant made no inculpatory admission regarding the incident to Pasternak prior to the commencement of the taped interview.

[T]here was not enough time before the start of the tape [recording] to talk about all [the things] defendant now contends was discussed before [receiving the] Miranda warnings. . . . The details about the homicide, especially defendant's involvement, could not have been explored to the extent defendant contends in the short time prior to the start of the video.

. . . .

[T]his court finds that the details disclosed by defendant during the taped portion were not disclosed to Pasternak before. The manner and content of follow-up questions were such that it does not seem to be a rehash of prior disclosures.

The same holds true about defendant's gang affiliation. Pasternak's simple question about the tag on the building turned into . . . talk about gangs.

The judge held another hearing on the State's motion to have evidence of defendant's gang affiliation produced at trial pursuant to N.J.R.E. 404(b). The State contended that defendant's motive to stab, kick, and punch the victim came from his desire to advance his status within the Bloods. Defendant's counsel argued that evidence of defendant's gang affiliation was highly prejudicial because there was no direct proof that the events leading up to the victim's murder "had anything to do with gang involvement, gang advancement, [or] gang initiation . . . ." The judge conducted an analysis under State v. Cofield2 and found that

the gang status goes to explain why . . . defendant would have chased the victim when even the [individual the victim punched] gave up chasing him. . . . It also goes to explain why [defendant] held the victim down at least until others got there.

The State's theory that . . . defendant wanted to advance from being [in one gang and into another] and that this incident amped his status after he caught the victim who assaulted . . . a big homey in the Bloods was certainly relevant to motive here.

The court redacted numerous portions of defendant's statement that did not prove motive, and also agreed to include a limiting instruction and voir dire the jury with questions regarding gangs.

Defendant was tried by the judge and jury between September 16, 2010 and October 1, 2010. The jury found defendant guilty of first-degree murder. The judge denied defendant's motion for a new trial. The judge imposed a thirty-four-year prison term with thirty years of parole ineligibility.

On appeal, defendant argues the following

POINT ONE

THE TWO-STEP, QUESTION-FIRST INTERROGATION TECHNIQUE WHICH WAS USED IN THIS CASE -- WHERE A DEFENDANT WHO IS IN CUSTODY IS INTERROGATED WITHOUT MIRANDA WARNINGS UNTIL HE INCRIMINATES HIMSELF, AND THEN THE INTERROGATION IS REPEATED WITH WARNINGS -- CLEARLY VIOLATED THE DEFENDANT'S STATE-LAW RIGHT AGAINST COMPELLED SELF-INCRIMINATION AS WELL AS HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION.

POINT TWO

NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

POINT THREE

THE ADMISSION OF IRRELEVANT, HIGHLY PREJUDICIAL EVIDENCE OF DEFENDANT'S GANG AFFILIATION, PURPORTEDLY ON THE ISSUE OF MOTIVE, VIOLATED [N.J.R.E.] 404(b) AND WAS SO HIGHLY PREJUDICIAL AS TO DEPRIVE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

POINT FOUR

IMPOSING A [THIRTY-FOUR-]YEAR SENTENCE WITH A MANDATORY [THIRTY-]YEAR PAROLE DISQUALIFICATION PERIOD ON A CHILD WHO WAS [FOURTEEN] YEARS OLD AT THE TIME OF THE OFFENSE VIOLATES THE PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT OF THE EIGHT AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPH 12 OF THE NEW JERSEY CONSTITUTION.

I.

We reject defendant's contention that the State violated his Fifth Amendment right to remain silent by issuing the Miranda warnings only after obtaining incriminating statements. As a result, we see no error by denying defendant's motion to suppress.

When reviewing a trial court's decision on a motion to suppress evidence, we defer to the trial court's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal quotation marks omitted). The trial court's legal conclusions are subject to de novo review. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).

Our Supreme Court has held that a two-step interrogation "is a technique devised to undermine both the efficacy of Miranda and our state law privilege." State v. O'Neill, 193 N.J. 148, 180 (2007). The Court "discourage[d] law enforcement agencies from engaging in [such] conduct . . . ." Ibid. When deciding a motion to suppress statements given during a two-step interrogation, the Court announced that the judge must consider

(1) the extent of questioning and the nature of any admissions made by defendant before being informed of his Miranda rights; (2) the proximity in time and place between the pre- and post-warning questioning; (3) whether the same law enforcement officers conducted both the unwarned and warned interrogations; (4) whether the officers informed defendant that his pre-warning statements could not be used against him; and (5) the degree to which the post-warning questioning is a continuation of the pre-warning questioning.

[Id. at 181.]

The O'Neill factors are not a bright-line rule, rather "courts must view the totality of the circumstances in light of the relevant factors . . . ." Ibid. The Court indicated that when " [59] the officers' pre-warning questioning is brief and the defendant's admissions are not incriminating or are barely incriminating and if there is a substantial break in time and circumstances between the pre- and post-warning interrogations, then those factors would militate against suppression of the defendant's statements." Ibid.

Applying the O'Neill factors, we conclude that the pre-Miranda questions were limited in nature and no substantive admissions were made by defendant (factor one), defendant was never told that his statements could not be used against him (factor four), and the pre-warning questions significantly differed from the post-warning questions (factor five). We therefore reject defendant's argument that the police used an improper questioning procedure.

The judge also properly determined that defendant's right against self-incrimination had not attached because he was not in custody when questioned at home or while waiting for the interview to start. See, e.g., Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977) (holding that voluntary presence or mere questioning at a police station does not render a person in custody). Even if defendant was in custody, any pre-Miranda questions did not violate his right to remain silent because defendant denied knowing the victim or having any involvement in the murder, and he voluntarily admitted information about gangs. Detective Pasternak then waited until defendant was advised of his Miranda rights before asking any further questions.

II.

Defendant argues that the assistant prosecutor's statements in summation deprived him of the right to a fair trial. We conclude that even if the statements were improper, they did not deprive defendant of a fair trial.

To determine whether a prosecutor's improper comments in summation warrant reversal, we must assess whether the impropriety was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In making this assessment, we must "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "'vigorous and forceful'" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). Indeed, our Supreme Court has recognized that "criminal trials create a 'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (alteration in original) (quoting Bucanis, supra, 26 N.J. at 56).

During defendant's trial, the assistant prosecutor stated, "You know, I could sit here for an hour and say from the testimony I saw I think [Detective Pasternak is] a great guy, really credible, did a great job." Defense counsel objected and the judge immediately instructed the jury that

[y]ou [the jury] are the sole judges of the credibility. You, alone, make the call as to credibility. No attorney, especially the State's attorney, can vouch for the credibility of any witness. I know that wasn't exactly what [the prosecution] was doing, but the words might be construed, by law, for people to think that.

The prosecutor later referred to defendant as "a violent young man," defense counsel immediately objected, and the judge instructed the jury that, "although it's not evidence . . . you can't consider [the prosecutor's] comment that [defendant] was a violent young man. . . . It can't be used by you. Please, strike it and [do] not use it, at all."

When describing the murder, the prosecutor stated that "[defendant] went down [to the victim's level] to go through [the victim's] pockets and stab him up." Defense counsel objected and the court struck the statement from the record. The judge also told the prosecutor at sidebar, regarding an additional comment that was not objected to by defense counsel, that

you made a comment . . . that [defendant] lives in a world that gets "mad credit" for murder and other violent offenses, and the gang world . . . [is] a violent world. That gang stuff is for motive only and you are bringing it in for other purposes. I'm not standing here letting you make a summation that is going to get this case reversed. You are so far afield on this thing that I'm ready to call it right now. I'm not really, but you are stretching this so much. Over the lunch hour get it together.

The judge issued additional curative instructions to the jury

[B]efore we continue I will instruct you that you are not to consider . . . the allegation that [defendant] went through [the victim's] pockets. I'm not going to allow that because I don't find there is sufficient evidence in the record to make any conclusion that he did. So you are not to consider that in your deliberations.

Moreover, any comment about [defendant] living in . . . a gang world that respects violence, again, any evidence with regard to gangs is used for that specific limited purpose that we went over so many times throughout the course of the trial, most recently yesterday, and I'll give you that instruction before you deliberate again. That type of evidence has a limited purpose and that is the only way you can use that evidence.

Defense counsel also objected to the prosecution's characterization of the law on the charge of manslaughter and the court instructed the jury that the law is "what I say the law is. . . . The attorneys can comment about what they think the law is . . . but . . . . you have to take what I say as the law."

Defense counsel raised additional objections after the prosecutor's summation, and also made a motion for a mistrial on the grounds that the number of objections made it "impossible for limiting instructions to remove the taint . . . [that] exists now . . . ." The judge denied the motion and worked with defense counsel to craft the appropriate curative instructions, and the judge reminded the jury "what is said by [c]ounsel . . . isn't evidence for you to consider."

Here, the statements do not individually or collectively rise to the level of egregiousness necessary for a new trial. Defense counsel made timely objections, the assistant prosecutor corrected himself, and the judge ordered each remark stricken from the record and instructed the jury to disregard them. Unlike in Frost, supra, 158 N.J. at 87, the judge did not issue one generic instruction. He gave specific curative instructions for each statement. The judge also instructed the jury on multiple occasions that the comments made during summation were not evidence and could not be considered as such. See Ramseur, supra, 106 N.J. at 323 (indicating that over the course of a long trial with numerous objections on many issues, when the judge gives proper jury instructions, even improper comments may not "reach the level of reversible error").

III.

Defendant argues that the trial court improperly admitted into evidence defendant's gang affiliation because this evidence was not relevant to any material issue. The judge, however, weighed the probative value against the prejudice to defendant and properly admitted the evidence because the issue of defendant's gang membership was directly connected to his motive.

In general, the admission of evidence of other crimes is generally left to the discretion of the trial court because of its intimate knowledge of the case. State v. Covell, 157 N.J. 554, 564 (1999). The decision of the trial court is thus entitled to deference and is reviewed under an abuse of discretion standard. Ibid.

N.J.R.E. 404(b) provides that

[E]vidence of other crimes, wrongs or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

Gang membership is considered to be evidence of other crimes within the scope of N.J.R.E. 404(b). State v. Goodman, 415 N.J. Super. 210, 227-28 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). Trial courts must undertake a four-part analysis before admitting evidence of other crimes like gang affiliation

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992) (citation and internal quotations omitted).]

The trial court's analysis under Cofield should only be disturbed if there is "'a clear error of judgment.'" State v. Marrero, 148 N.J. 469, 483 (1997) (quoting State v. DiFrisco, 137 N.J. 434, 496 (1994)).

In this case, the judge engaged in a thoughtful and substantive analysis. The judge found that the first Cofield factor was satisfied because the evidence explained defendant's motive in chasing and holding down the victim until others arrived. The judge explained that defendant's desire to become a Blood, and the fact that his "status [would increase] after he caught the victim who assaulted . . . a big homey in the Bloods[,] was certainly relevant to motive here."

The court also found defendant's multiple clear and convincing statements showed his gang involvement and satisfied the third Cofield factor. As to the fourth Cofield factor, the judge found that certain portions of defendant's interview with police were prejudicial because they did not go to show motive, were hearsay, or were other bad acts. The judge struck those portions of defendant's statement. He concluded that the remainder of defendant's statement explained "why the victim was chased and held by . . . defendant and then killed," and that any prejudice is "certainly not outweighed by the gang references which were made by the defendant, himself."

IV.

Finally, we reject defendant's contention that the judge imposed a sentence that violates the Eighth Amendment's ban on cruel and unusual punishment.

The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment and guarantees individuals the right not to be subjected to excessive sanctions. Roper v. Simmons, 543 U.S. 551, 560, 125 S. Ct. 1183, 1190, 161 L. Ed. 2d 1, 16 (2005). The Eighth Amendment's provisions are applicable to the states through the Fourteenth Amendment. Ibid.

New Jersey's analog to the Eighth Amendment similarly declares that "cruel and unusual punishments shall not be inflicted." N.J. Const. art. I, 12. Under both the Eighth Amendment and Article I, Paragraph 12, there is "no constitutional impediment barring imposition of the mandatory [thirty]-year sentence on juveniles whose cases have been waived to the adult court and who have been found guilty of murder."
State v. Pratt, 226 N.J. Super. 307, 326 (App. Div.), certif. denied, 114 N.J. 314 (1988).

Defendant implicitly asks this court to disregard Pratt based on the United States Supreme Court decision in Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). In Miller, the Court held that a mandatory life sentence without the possibility of parole for those under the age of eighteen at the time of their offense violates the [415] Eighth Amendment's prohibition on cruel and unusual punishments. Miller, supra, __ U.S. at __, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. Miller rejected a "categorical bar on life without [36] parole for juveniles." Ibid.

Defendant's sentence is distinguishable from the sentence in Miller because it does not involve a mandatory life sentence without parole. Defendant was subject to a mandatory prison term of thirty years before he is parole eligible. Nothing in Miller prevents such a sentence from being imposed. Even if Miller did apply, the judge found defendant's youth to be a factor at sentencing, just as Miller requires. Ibid.

Affirmed.


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

2 127 N.J. 328 (1992).