STATE OF NEW JERSEY v. BRANDON C. JACKSON

NOT FOR PUBLICATION WITHOUT THE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.

BRANDON C. JACKSON,

Defendant-Appellant.

________________________________

October 13, 2015

Argued September 16, 2015 Decided

Before Judges Reisner, Hoffman and Whipple.

On appeal from the Superior Court of New

Jersey, Law Division, Ocean County, Indictment

No. 09-04-0733.

Anthony C. Mack argued the cause for appellant

(Mack & Gil, LLC, attorneys; Mr. Mack, of

counsel and on the brief).

William Kyle Meighan, Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Mr. Meighan, on the brief).

PER CURIAM

Defendant Brandon C. Jackson was convicted by a jury of the following offenses: second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault causing serious bodily injury, N.J.S.A. 2C:12-1(b)(7); two counts of third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). After merger, the trial court sentenced defendant to a term of eight years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, for second-degree aggravated assault on one victim, and a consecutive term of four years, two years to be served without parole, for third-degree aggravated assault on a second victim.

On this appeal, defendant challenges both the conviction and the sentence, presenting the following points of argument

A. JACKSON'S MIRANDA RIGHTS WERE VIOLATED WHEN HIS INTERROGATION CONTINUED AFTER HE CLEARLY INDICATED BY HIS CONDUCT THAT HE WANTED ALL QUESTIONING TO CEASE, AND THE TRIAL COURT'S REFUSAL TO SUPPRESS HIS STATEMENT WAS REVERSIBLE ERROR.

B. THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE, AND THE COURT'S FAILURE TO DISMISS THESE CHARGES AT THE CONCLUSION OF THE STATE'S CASE WAS REVERSIBLE ERROR.

C. THE JURY CHARGE FAILED TO PROVIDE THE JURY WITH SUFFICIENT GUIDANCE BECAUSE IT LACKED ANY OF THE FACTS ELIC[I]TED AT TRIAL AND CONSISTED ALMOST EXCLUSIVELY OF THE "CANNED" STATEMENTS FROM THE MODEL CHARGES.

D. APPEL[L]ANT'S CONVICTIONS MUST BE REVERSED BECAUSE OF THE CUMULATIVE ERROR THAT OCCURRED DURING HIS TRIAL.

E. ASSUMING PURELY FOR THE SAKE OF ARGUMENT THAT THE STATE MET ITS BURDEN OF PROOF AT TRIAL, THE DEFENDANT SHOULD HAVE RECEIVED CONCURRENT, AS OPPOSED TO CONSECUTIVE SENTENCES.

Having reviewed the record - including the motion, trial and sentencing transcripts - we conclude that these arguments are without merit. Except as addressed herein, they do not warrant discussion in a written opinion. See R. 2:11-3(e)(2). We affirm the conviction and the sentence.

I

We derive the following facts from the trial evidence. According to the State's witnesses, after being excluded from a social gathering, defendant got into fights with two victims, each of whom he stabbed. One of the victims, S.M.,1 attempted to crawl away, after suffering wounds to his lung and intestines, but defendant pursued him and stabbed him several more times. As a result of the attack, S.M. suffered two collapsed lungs, and surgeons had to remove his spleen and a portion of his pancreas. The other victim, J.F., received more than twenty stitches to close a shoulder wound and was unable to work for three weeks. Several trial witnesses testified that they either saw defendant in possession of the knife or witnessed the stabbings.

In his trial testimony, defendant admitted that he had a knife and was involved in a physical confrontation with S.M. He testified that he was waving the knife around, but asserted that he did so in self-defense because a crowd of people was attacking him. He testified that he did not know whether he actually stabbed either of the victims. Evidently, the jury did not find his explanation credible. Defendant was acquitted of attempted murder and one count of third-degree aggravated assault, but was convicted on all other charges.

II

As previously noted, on this appeal defendant contends that the trial court erred in denying his Miranda2 motion; the State failed to prove that defendant acted purposely or knowingly in stabbing J.F. and failed to prove that either victim suffered serious bodily injury; the trial judge erred in insufficiently tailoring the jury instructions to the trial evidence; there was cumulative error; and the trial judge should have imposed concurrent rather than consecutive sentences for the two stabbings.

We begin with the Miranda motion. Soon after the incident, defendant was detained at the scene of the stabbing and brought to police headquarters.3 There, he made a statement to the police in which he admitted having a knife in his possession but denied intentionally stabbing anyone. He told the police that he was surrounded and attacked by several assailants, and in self-defense, he pulled out his knife and waved it around at them.

Defendant's interview with the police lasted several hours. His Miranda argument centers on one comment he made during the first hour of the interview. Defendant had been insisting that S.M. and a crowd of S.M.'s friends had attacked him, and he was trying to get away from them. One of the police officers who was questioning him summarized what several of the witnesses had told the police, explaining that some of the witnesses supported defendant's version and others did not. At that point, defendant said, "[l]ook I'm not saying anything else because" and did not finish his sentence. The officer then asked defendant, "[w]ho are some of the people that were kicking you in the head let me ask you that? Who were some of the people?" Defendant responded, "I couldn't tell you."

The interview then continued for several more hours, during which defendant answered questions and made no statement indicating that he wanted the questioning to stop. Toward the end of the interview, defendant confirmed that the police had treated him well, and that he had spoken to them "voluntarily" in the hope that they could "help [him] out." A few sentences later, he repeated that "I talked to you because I wanted to because I had something I just can't hold on my chest."

After listening to the audiotape of the entire interview, the trial judge concluded that "[b]ased on the entirety of the circumstances, the defendant's statement could not reasonably be viewed as an assertion of the right to remain silent" and the detectives "acted lawfully in continuing to question the defendant."

On appeal, we owe deference to the trial judge's evaluation of the evidence so long as it is supported by the record.

When faced with a trial court's admission of police-obtained statements, an appellate court should engage in a "searching and critical" review of the record to ensure protection of a defendant's constitutional rights. That review, however, does not generally involve "an independent assessment of the evidence as if [the reviewing court] were the court of first instance." Instead, an appellate court should typically defer to the trial court's credibility and factual findings, recognizing that the trial court's findings are often "substantially influenced by [its] opportunity to hear and see the witnesses and to have the 'feel' of the case."

An appellate court's review of the trial court's findings is limited to confirming only that "those findings are supported by sufficient credible evidence in the record." If that standard is satisfied, the reviewing court's "task is complete[,] and it should not disturb the result, even though . . . it might have reached a different conclusion were it the trial tribunal."

[State v. Hreha, 217 N.J. 368, 381-82 (2014) (citations omitted).]

Even after agreeing to waive Miranda rights and speak to the police, a defendant has the right to terminate the interview at any time and the police must honor such a request. The Supreme Court recently addressed this issue in State v. Maltese, ___ N.J. ___ (2015)

In the context of custodial interrogation, once a defendant clearly and unambiguously invokes his right to remain silent, interrogation must cease. Because a police officer must "scrupulously honor[]" that right, even when the suspect's invocation is "ambiguous," officers are "required to stop the interrogation completely, or to ask only questions narrowly directed to determining whether defendant [is] willing to continue."

Whether a suspect has invoked his right to remain silent requires analysis of the totality of the circumstances, including consideration of the suspect's words and conduct. The defendant's statement is evaluated in the full context in which the statement is made, including whether the suspect wished to speak to another person in order to seek advice or as a condition before speaking with police.

[Id. at ___ (slip op. at 21-22) (citations omitted).]

In Maltese, the defendant "repeatedly" told the police he wanted to speak to his uncle, who he said was "better" than a lawyer. Id. at ___ (slip op. at 5-9). In fact, he told the police "more than ten times" that he "wanted to speak to a family member before proceeding" with the interview. Ibid. In that context, the Court held that the defendant had invoked his right to remain silent, the police were obligated to respect his expressed wishes, and his confession was "properly suppressed." Id. at ___ (slip op. at 31).

By contrast, in this case, defendant did not state that he wanted the interview to stop. His one unfinished sentence can fairly be construed as stating that he was not going to say anything more on the particular topic the officer was addressing at that moment.4 However, defendant readily responded to every other question he was asked for the next several hours. He had at least one cigarette break, during which he could have expressed an unwillingness to go back into the interview room to continue speaking to the police, but he did not. And, he twice expressed that he had spoken to the police voluntarily because he thought they could help him and he wanted to get things off "[his] chest." On this record we find no basis to second-guess the judge's factual findings and legal conclusions. We affirm the denial of the Miranda motion.

We also note that the State did not introduce defendant's statement in evidence or otherwise use it in its case-in-chief. The State only used the statement to impeach defendant during cross-examination. Since there was no evidence that the statement was the product of physical or mental coercion, the State could have used the statement for impeachment purposes even if the court had granted the Miranda motion. See State v. Burris, 145 N.J. 509, 525-36 (1996).

Defendant's additional challenges to his conviction are without sufficient merit to warrant discussion here. R. 2:11-3(e)(2). Nor do we find merit in his challenge to the sentence. Relying on State v. Carey, 168 N.J. 413, 428-29 (2001), the trial court properly concluded that defendant committed "separate acts of violence" against two victims, causing serious injury to each victim. Consecutive sentencing was appropriate in that situation. Ibid. We affirm the sentence substantially for the reasons stated by the trial judge in her thorough oral opinion at the sentencing hearing on May 25, 2012.

Affirmed.

1 We use initials to protect the victims' privacy.

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

3 Defendant also spoke to the police at the scene, but he is not challenging the denial of his Miranda motion as to that statement.

4 Defendant also briefly argued to the trial judge that defendant tried to stop the recording with his hand when he made this statement. The record does not support that assertion. A police witness testified that, much later in the interview, they told defendant they needed to keep the tape recorder on during his cigarette break. There is nothing in the record of the interview to suggest that defendant wanted to terminate the interview at that point.