STATE OF NEW JERSEY v. AMALIA MIRASOLA

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RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3639-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMALIA MIRASOLA,

Defendant-Appellant.

_________________________________

November 25, 2015

 

Argued March 9, 2015 Decided

Before Judges Espinosa, St. John and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Morris County, Indictment No. 11-02-0201.

Joseph T. Afflitto, Sr., argued the cause for appellant.

Paula C. Jordao, Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Morris County Prosecutor, attorney; Ms. Jordao on the brief).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

Defendant Amalia Mirasola appeals from a judgment of conviction and order for commitment entered after a jury found her guilty of murder and a related weapon offense. After the jury returned its verdict, the court sentenced defendant to forty years imprisonment for murder and to a concurrent term of seven years for the weapon offense.

Before trial, the court denied defendant's motion to suppress certain statements she made to police, and precluded defendant from raising allegations that her husband sexually abused their daughter, V.M., during the State's case-in-chief. Before V.M. testified for the State, the court also warned defendant that statements from V.M.'s journal would be admissible to confront V.M. only if a proper foundation was laid, but reserved ruling on the their admissibility until if and when defendant sought to use them.

On appeal, defendant challenges the admission of her statements to police, the limits placed on her ability to raise the allegations of abuse and confront V.M. with statements from her journal, and the court's sentence. Defendant specifically argues

POINT I

THE COURT ERRED IN PERMITTING LAW ENFORCEMENT OFFICERS TO TESTIFY REGARDING POST-ARREST ADMISSIONS MADE BY DEFENDANT-APPELLANT ON THE MORNING OF HER ARREST

POINT II

THE COURT ERRED IN DEPRIVING DEFENDANT-APPELLANT THE OPPORTUNITY TO CORROBORATE HER CLAIMS REGARDING THE VICTIM'S ALLEGED SEXUAL MISCONDUCT WITH THEIR 13 YEAR OLD DAUGHTER

POINT III

THE COURT ERRED IN PRECLUDING COUNSEL FROM CONFRONTING DEFENDANT-APPELLANT'S DAUGHTER WITH PREVIOUSLY RECORDED STATEMENTS ENTERED INTO A JOURNAL

POINT IV

THE CUMULATIVE EFFECT OF THE COURT'S RULINGS DEPRIVED DEFENDANT-APPELLANT OF A FAIR TRIAL

POINT V

THE SENTENCE OF 40 YEARS IN STATE'S PRISON WITH 34 YEARS TO BE SERVED WITHOUT PAROLE WAS EXCESSIVE AND WAS BASED IN SUBSTANTIAL PART ON THE COURT'S ENHANCING PUNISHMENT BECAUSE OF HER ELECTION TO PLEAD NOT GUILTY AND PROCEED TO TRIAL

We have considered defendant's arguments in light of our review of the record and the applicable legal principles. We affirm.

The charges against defendant arose from her fatally shooting her husband on May 22, 2010. On March 3, 2011, a Morris County Grand Jury returned Indictment No. 11-02-0201, charging defendant with murder in the first degree, N.J.S.A. 2C:11-3(a)(1) and (2) (count one), and possession of a weapon for an unlawful purpose in the second degree, N.J.S.A. 2C:39-4(a) (count two).

The parties do not dispute the basic facts of this case. Defendant admits that she possessed a firearm and that she shot and killed her husband, Carl Mirasola (Carl). The jury was called upon to determine only whether defendant purposely or knowingly killed her husband, and possessed the gun for that purpose, or if she was acting in self-defense.

We recite the remaining facts, as discerned from the record. Shortly after 8 a.m. on the morning of May 22, 2010, defendant called 9-1-1 and told the dispatcher she believed she had shot her husband. The dispatcher instructed defendant to not have the weapon on her when police arrived, and dispatched Sergeant Robert Findura, Jr., and Patrol Officers Scott Sinopoli and Bryan Gordon of the Butler Police Department (BPD) to the scene the home defendant shared with her husband and three children.

When police arrived, not yet knowing the status of the victim or whether anyone else was in the home, they approached the residence with their weapons drawn and found defendant sitting in her wheelchair in the kitchen.1 Findura ordered her to put her hands up and asked what had happened, to which she responded, "I think I shot my husband." When asked where her husband was, defendant told the officers he was in the bedroom and asked that they "not let the children see." When Findura asked where the gun was, defendant informed him it was in the living room on her other wheelchair. The gun was found where defendant indicated, holstered and hidden under a pillow and a t-shirt.

Sinopoli holstered his weapon and remained with defendant while Findura and Gordon continued through the home to search for Carl and anyone else present. After the officers located defendant's three children, Gordon proceeded to the bedroom. Finding the door locked, he kicked it open and saw Carl lying face-down on the floor in a pool of blood, deceased.

After finding the victim's body, Gordon instructed Sinopoli to place defendant in handcuffs. Sinopoli handcuffed defendant and read defendant her Miranda2 rights from a card. Defendant "looked directly at" Sinopoli and appeared "attentive" and "calm" while being advised of her rights. Defendant told Sinopoli she understood her rights as read and, when asked if she would like to speak with him, declined, saying she had already told the officers everything. Sinopoli thereafter gathered only basic identifying information.

BPD Detective Colleen Pascale arrived on scene shortly after 9 a.m. and was informed that defendant was present and had been advised of her rights, but was not told that defendant had invoked her right to remain silent. Pascale escorted defendant's three children out of the house and requested medical attention for the eldest, V.M., who was visibly upset. After attending to the children, Pascale took custody of defendant and placed her in an ambulance to be transported to police headquarters.

While on route, defendant initiated conversation with Pascale, saying Carl threatened that she would never see her children again. Pascale testified that she re-advised defendant of her Miranda rights, and that defendant said she understood, though the officer conceded there was nothing in her report or a written waiver to confirm defendant waived her rights. Further, the emergency medical technician present during the transport testified she did not hear any discussion of rights, though admitted she heard only portions of the conversation between defendant and Pascale.

Defendant continued to initiate conversation with Pascale, "saying something to the effect of [']he said I'm never going to see my children and neither is he . . . because I shot him.[']" Defendant also told Pascale about the family's finances, including that their house was in foreclosure at the time because Carl had not been paying the mortgage. When Pascale asked defendant what happened, defendant said she had shot her husband using every round in the gun and repeated that she would never see her children again because she had shot her husband. Once they arrived at BPD headquarters, defendant stopped speaking.

At trial, several witnesses testified regarding defendant's actions and relationship with her husband in the weeks and months leading up to his death. According to defendant's sister, she spoke with Carl in March 2010 about his desire to file for divorce. Manuel Suarez, a mutual friend of defendant and her husband, testified that defendant had contacted him several times the following month seeking a gun. He explained that when defendant first contacted him on April 13, 2010, she asked for assistance obtaining a gun by legal means, but that when he was unable to help she eventually asked, on April 18, if he "knew where to get an illegal gun." He told her he did not.

Two days later, defendant contacted a locksmith to open a safe in her husband's closet. She testified she wanted access to see what her husband was hiding and because she intended to seek custody of the couple's children and needed their birth certificates and Social Security cards, which were kept in the safe. According to her sister, the safe also contained defendant's gun, which defendant removed. Defendant testified she kept the loaded weapon near her for protection when she was home alone with the children at night.

The following day, April 21, 2010, the Division of Youth and Family Services (the Division) visited the home to investigate allegations that Carl may have been inappropriately touching V.M., who was thirteen years old at the time. The Division initiated the investigation in response to a report filed by a visiting nurse that defendant had seen Carl rubbing V.M.'s bare back while V.M. laid on top of him. When Carl returned home at the end of the Division's visit, defendant testified she told him nothing was wrong because she was afraid of him. The Division's investigation report concluded the abuse allegations were unfounded.3

Shortly thereafter, defendant met with and retained a divorce attorney, who drafted a divorce complaint alleging irreconcilable differences. Defendant testified she sought a divorce because her husband threatened to take their children.

On the evening of May 21, 2010, Carl was at a bar with a friend until around midnight. When he returned home, he woke V.M., who was asleep on the couch, and tried to hug her but she told him to "get off" because she "was tired and cranky." She went upstairs to her room to fall back asleep. She testified her father did not appear intoxicated. According to defendant, she and her husband then watched television together in the living room for an hour or two. She testified her husband suddenly grabbed her arms and shook her, saying he was "very upset by what [she] had done" and went upstairs. Defendant presumed he was going to smoke marijuana, which concerned her because she believed he had been drinking earlier in the evening.

Later in the night, Carl asked defendant to come to his room. She testified that, when she got upstairs, Carl confronted her about moving money from their shared bank account to her own, and asked her to replace the funds. She recalled asking him why he had not paid their mortgage for several months, and Carl responding that she "was ruining his plans." According to defendant, she told her husband she would "call the police and tell them what he was doing" "that [she] knew what he had been doing with [V.M.], and . . . heard what [V.M.] had said earlier that night, and . . . was going to do something about it." She testified he "became furious," saying again that she was "ruining his plans" and that she was "never going to get the kids because [he was] going to kill [her]." She asserted Carl "started coming toward" her and she knew, from "the look on his face and . . . the sound of his voice and . . . what he said," that "he meant it [and] was going to kill" her. She took her gun from her pants pocket and shot him, causing him to fall onto the bed. She testified that, when he stood back up and "started coming toward [her] again," she aimed the gun, "closed [her] eyes," and began shooting. "The next thing [she] remember[ed]" was waking up in her recliner and going to the bathroom. When she returned, she "noticed [her] gun on the wheelchair next to [her]." When she picked it up, "it smelled like it had been fired" and the magazine was empty.

V.M. testified she heard the gunshots from her room and went to the master bedroom, where she saw her father lying on the floor with defendant standing behind him. When she asked her mother what happened, defendant told her he was drunk and fell. V.M.'s sister had also woken up, and defendant ordered them both back to bed.

Around 8 a.m., defendant called her sister and said she thought she shot Carl. Within minutes, she called 9-1-1 and the officers were dispatched to the home.

I.

We turn first to defendant's arguments regarding the admissibility of her statements to police. Defendant contends the trial court erred in denying her motion to suppress her pre-Miranda statements, made to police upon their arrival at her home, and her post-Miranda statements, made in the ambulance while en route to BPD headquarters. With respect to her pre-Miranda statements asserting her belief that she had shot her husband and alerting officers to the location of her husband and the gun defendant argues they were the product of custodial interrogation and therefore inadmissible because the officers failed to advise her of her rights before questioning her. As to her post-Miranda statements, defendant argues they should have been excluded because they were a product of continued interrogation and Pascale's failure to "scrupulously honor" her previously-invoked right to remain silent. We disagree and find no error in the trial court's admission of either set of statements.

When reviewing the disposition of a motion to suppress statements made to police, we will defer to the trial court's "finding of compliance with Miranda and voluntariness" as long as there is "sufficient credible evidence in the record to sustain the [court's] findings and conclusions." State v. Faucette, 439 N.J. Super. 241, 255 (App. Div.) (quoting State v. W.B., 205 N.J. 588, 603 n.4 (2011)), certif. denied, 221 N.J. 492 (2015). If we are satisfied the trial court's findings had sufficient support, "our task is complete and [we] [will] not disturb the result." Ibid. (first alteration in original) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Our review of the trial court's legal conclusions, however, remains plenary. State v. Shaw, 213 N.J. 398, 411 (2012).

Applying these standards, we conclude from our review that defendant's pre-Miranda statements were not made in response to custodial interrogation. Even if defendant was in custody for Miranda purposes, her statements were still admissible under the emergency aid and safety exceptions to Miranda's requirements. As to her post-Miranda statements, we conclude they were made voluntarily by defendant and with full knowledge of her right to remain silent.

"Attendant to th[e] right [against self-incrimination] is the 'absolute right to remain silent while under police interrogation.'" Faucette, supra, 439 N.J. Super. at 256 (quoting State v. Reed, 133 N.J. 237, 250 (1993)); see also Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07. The right is not "self-implementing," however, and is instead protected by the "prophylactic-procedural safeguards" set forth in Miranda, which demands that a defendant subject to custodial interrogation first be advised of his or her constitutional rights to remain silent and to the presence of counsel. Faucette, supra, 439 N.J. Super. at 256. Thus, before a defendant's statements to police can be introduced at trial, the State must prove beyond a reasonable doubt that they were made voluntarily. Miranda, supra, 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07. If obtained during custodial interrogation, the State must prove the statements were made after the defendant was advised of his or her Miranda rights and waived those rights voluntarily, knowingly, and intelligently. Ibid.; see also Faucette, supra, 439 N.J. Super. at 257 (citing State v. Galloway, 133 N.J. 631, 654 (1993)).

When assessing whether a defendant's statement to police was voluntary, "[a] court must look at the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation." Galloway, supra, 133 N.J. at 654; see Faucette, 439 N.J. Super. at 257. "The failure to administer Miranda warnings prior to custodial interrogation 'creates a presumption of compulsion,'" and renders inadmissible any statement obtained, regardless of whether the statement was "otherwise voluntary within the meaning of the Fifth Amendment." State v. Hubbard, 222 N.J. 249, 265 (2015) (quoting Oregon v. Elstad, 470 U.S. 298, 307, 105 S. Ct. 1285, 1292, 84 L. Ed. 2d 222, 231 (1985)).

However, Miranda's protections apply only when a defendant is subject to custodial interrogation "questioning initiated by law enforcement 'after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'" State v. O'Neal, 190 N.J. 601, 615 (2007) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706).

The determination [of] whether a suspect is in "custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293, 298 (1994). . . . "[T]he only relevant inquiry is how a reasonable [person] in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317, 336 (1984).

[Id. at 615-16 (final alteration in original).]

"The critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, [and] the status of the suspect . . . ." State v. P.Z., 152 N.J. 86, 103 (1997). Among the other factors considered are "the time, place and duration of the detention; the physical surroundings; the nature and degree of the pressure applied to detain the individual; language used by the officer; and objective indications that the person questioned is a suspect." State v. Smith, 374 N.J. Super. 425, 431 (App. Div. 2005).

Because non-custodial questioning does not involve the same "inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely," Miranda, supra, 384 U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719, "[t]he rights set forth in Miranda are not implicated 'when the detention and questioning is part of an investigatory procedure rather than a custodial interrogation,' or where the restriction on a defendant's freedom is not of such significance as to compel the conclusion that his liberty is restrained." State v. Smith, 307 N.J. Super. 1, 9 (App. Div. 1997) (citations omitted) (quoting State v. Pierson, 223 N.J. Super. 62, 66 (App. Div. 1988)), certif. denied, 153 N.J. 216 (1998). Thus, Miranda warnings are not generally required before "'[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact finding process[,]' unless the totality of the objective circumstances" suggest the individual was otherwise in custody. Smith, supra, 374 N.J. Super. at 430 (alterations in original) (citation omitted) (quoting Miranda, supra, 384 U.S. at 477, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725).

"When considering the need for Miranda warnings before questioning in a private residence, our courts have not viewed the home as a location so isolated or dominated by the police as to lead the reasonable person to conclude he or she is in custody or in danger of abuse." Id. at 432. Though "police action subsequent to entering [a] residence is likely to involve some restraint on the occupants' freedom of action," we have analogized the detention involved "to field investigations of suspicious conduct authorized by Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and traffic stops authorized by Berkemer[, supra,] 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317." Smith, supra, 374 N.J. Super. at 431. In doing so, we held that, absent badges of formal arrest or its equivalent, in-home questioning is insufficient to rise to the level of custody necessitating Miranda warnings. Id. at 431-33.

Even when the indicia of custody exists, the Court has recognized "a safety exception to Miranda." O'Neal, supra, 190 N.J. at 618. Thus, where there is "an 'objectively reasonable need to protect the police or public from any immediate danger associated' with a weapon," Miranda warnings are not required prior to questioning. State v. Melendez, 423 N.J. Super. 1, 24 (App. Div. 2011) (quoting O'Neal, supra, 190 N.J. at 618), certif. denied, 210 N.J. 28 (2012). However, "the police must specifically frame the question to elicit a response concerning the possible presence of a weapon." O'Neal, supra, 190 N.J. at 618.

Similarly, the court has recognized an emergency-aid exception to Miranda's requirements. "When public officials question an individual at the site of an emergency in which life or personal safety hangs in the balance and obtain a responsive statement that may be indicative of guilt, that consequence is secondary to the need to protect public safety," and police are not required to give Mirandawarnings before asking questions in furtherance of their duty to render emergency aid. State v. Boretsky, 186 N.J.271, 281 (2006).

With these legal principles in mind, we turn to defendant's contention that the trial court erred in finding she was not in custody until she was handcuffed and, therefore, in admitting her pre-Miranda statements to the responding officers, as they were the result of custodial interrogation. In support, she argues that the officers' questions asking what happened and where defendant's husband and the gun were were designed to elicit incriminating responses, and were not merely investigatory, because the officers were not responding to an ongoing emergency and knew both the nature of the crime and the identity of the shooter prior to arriving at defendant's home. We disagree.

First, there was no evidence of "[t]he critical determinant of custody [ ] whether there [was] a significant deprivation of [defendant's] freedom of action." P.Z., supra, 152 N.J. at 103. The officers posed their questions in defendant's home, upon and shortly after their arrival, and defendant was not subject to physical restraint prior to being handcuffed and advised of her Miranda rights. Defendant was confined to a wheelchair throughout the encounter, but the associated restraint on her freedom of action was not due to the conduct of the officers themselves. To the extent that the officers ordering defendant to raise her hands when they entered the home or Sinopoli staying with her while the other officers secured the premises may have constituted a detention, the "[m]inimally intrusive curtailment[] of [her] freedom of action [was] reasonably related to securing the safety of the officers and others present at the scene." Smith, supra, 374 N.J. Super. at 432. As the officers had reason to believe a gun was present in the home, Sinopoli simply remaining in defendant's presence, with his own weapon holstered, did not rise to the level of a formal arrest or its functional equivalent that demands Miranda warnings. See id. at 435 (finding Miranda warnings were not required where "[t]he officer's position at the side of defendant's bed and his protective use of the flashlight momentarily restricted defendant's movement, but no more so than a protective frisk during a Terry stop.").

Second, the officers' questioning was limited in both duration and scope, and the phrasing of the officers' questions was neither accusatory nor designed to elicit incriminating responses. Rather, the questions asked of defendant were for the purpose of investigating the circumstances that necessitated the officers' response, including whether her husband required medical attention, and ensuring the safety of those in the home.

Under these circumstances, we find no error in the trial court's conclusion that no reasonable person would have considered herself to be in custody at the time and, therefore, that defendant was not in custody until she was placed in handcuffs. See id. at 435-36. In the absence of custodial interrogation, Miranda warnings were not required and the trial court did not err in admitting the statements made by defendant before being handcuffed. Even if defendant had been subject to custodial interrogation when officers asked the location of her husband and the gun, her responsive statements were nevertheless admissible under the emergency-aid and safety exceptions to Miranda, as police knew there was a gun and a gunshot victim in the house and did not know the victim was already deceased. See O'Neal, supra, 190 N.J. at 618; Boretsky, supra, 186 N.J. at 281-83.

Defendant next contends the trial court erred in admitting her post-Miranda statements to Pascale, made in the ambulance while on route to BPD headquarters.4 We find no such error.

"If [an] individual indicates in any manner, at any time prior to or during questioning, that he [or she] wishes to remain silent, the interrogation must cease." Faucette, supra, 439 N.J. Super. at 257 (alterations in original) (quoting State v. Hartley, 103 N.J. 252, 263 (1986)). A defendant's invocation of the right to remain silent need not be unequivocal, and may be effected by stating that he or she has "nothing else to say" or "[does] not want to talk about [the crime]." State v. Johnson, 120 N.J. 263, 281 (1990) (alterations in original) (citations and internal quotation marks omitted). In determining whether the right has been invoked, the totality of the circumstances are considered, including "the words used and the suspect's actions or behaviors," to discern whether "the investigating officer should have reasonably believed that the right was being asserted." State v. Diaz-Bridges, 208 N.J. 544, 565 (2011). While officers need not cease their interrogation if the defendant's "words or conduct could not reasonably be viewed as invoking the right to remain silent," if the officers "are reasonably uncertain whether the person is asserting the right to remain silent, they may only ask questions directed to resolving that uncertainty." State v. Burno-Taylor, 400 N.J. Super. 581, 590 (App. Div. 2008).

While an individual is free to waive the right to remain silent and provide a statement, for the statement to be admissible at trial the State first "must prove beyond a reasonable doubt that the [defendant]'s waiver was knowing, intelligent, and voluntary in light of all the circumstances." State v. Presha, 163 N.J. 304, 313 (2000). "At the root of the [voluntariness] inquiry is whether a [defendant]'s will has been overborne by police conduct." Ibid. Among the factors considered in making this determination are the defendant's "age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved." State v. Nyhammer, 197 N.J 383, 402 (quoting Presha, supra, 163 N.J. at 313), cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). The absence of a written waiver does not preclude a court from finding a defendant voluntarily waived his or her rights. See State v. Warmbrun, 277 N.J. Super. 51, 62 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995).

Once an individual has invoked the right to remain silent, "custodial interrogation [can] properly be resumed . . . [only after] the issuance of a new set of warnings." Johnson, supra, 120 N.J. at 282 (citing Michigan v. Mosley, 423 U.S. 96, 105-06, 96 S. Ct. 321, 327-28, 47 L. Ed. 2d 313, 322 (1975); Hartley, supra, 103 N.J. at 267).

Defendant argues the trial court failed to support its decision to admit her post-Miranda statements with a finding that she knowingly and intelligently waived her right to remain silent. We disagree.

In reaching its decision, the trial court largely relied upon Pascale's testimony at the suppression hearing, which it deemed credible. Based on this testimony, the court found that defendant initiated conversation in the ambulance, saying her husband told her she would never see her children again, and that, "[i]n the context of the facts of this case, that voluntary statement could fairly be understood as an invitation to discuss the crime for which [d]efendant was being held." Contrary to defendant's claims, the trial court specifically found that Pascale reminded and re-advised defendant of her Miranda rights, that defendant indicated she understood these rights, and that she subsequently "voluntarily answered Det[ective] Pascale's questions." We find no reason to disturb these findings or the legal conclusions derived therefrom. See State v. Hreha, 217 N.J. 368, 382 (2014) ("[A]n appellate court should typically defer to the trial court's credibility and factual findings . . . .").

Given that it was defendant who re-initiated discussion of the crime, and that Pascale responded by immediately re-advising her of her rights, we are not persuaded by defendant's argument that police failed to scrupulously honor her rights. Her argument that the State failed to prove she voluntarily waived her rights is similarly unavailing, as defendant acknowledged to Pascale that she understood her rights and continued to initiate conversation with Pascale. This "conduct could not reasonably be viewed as invoking the right to remain silent," Burno-Taylor, supra, 400 N.J. Super. at 590, and was instead a "clear manifestation of a desire to waive" her previously invoked-right. State v. Graham, 59 N.J. 366, 376 (1971). Defendant does not cite to anything in the record to suggest her waiver or statements were involuntary, nor does our independent review reveal any such evidence.

We conclude the trial court did not err in finding the State proved defendant's statements were voluntary and, as she initiated discussion, constituted waiver of her right to remain silent. Accordingly, we find no error in the court's admission of defendant's post-Miranda statements to Pascale.

II.

We turn next to defendant's contentions that the trial court erred in precluding defendant from developing evidence of her husband's alleged sexual misconduct during the State's case-in-chief, and in unduly restricting her cross-examination of V.M. Defendant argues the court's purported restrictions deprived her of due process and a meaningful opportunity to present a defense. We disagree.

"Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J.383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Thus, we will uphold a trial court's ruling unless it constitutes an abuse of discretion or is inconsistent with established law. State v. Nantambu, 221 N.J.390, 402-03 (2015).

We conclude that the court did not abuse its discretion by prohibiting defendant from cross-examining the State's witnesses about allegations of V.M.'s sexual abuse by Carl. In addition, since defendant has not identified any ruling by the court restricting defendant's use of V.M.'s journal during cross-examination or otherwise, we again find no abuse of discretion.

"The Federal and New Jersey Constitutions guarantee criminal defendants 'a meaningful opportunity to present a complete defense.'" State v. Garron, 177 N.J.147, 168 (2003) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636, 645 (1986)), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004); see alsoU.S. Const.amend. VI; N.J. Const.art. I, 10. Essential to this opportunity, and grounded in the right to due process, are the rights to produce witnesses in one's favor and to cross-examine adverse witnesses. Garron, supra, 177 N.J.at 169 (citing Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297, 308 (1973)); see alsoState v. Garcia, 195 N.J.192, 202 (2008); State v. Harvey, 151 N.J.117, 188 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). However, these rights are not absolute and must occasionally "'bow to accommodate other legitimate interests in the criminal trial process,' such as established rules of evidence and procedure designed to ensure the fairness and reliability of criminal trials." Garron, supra, 177 N.J.at 169 (quoting Chambers, supra, 410 U.S.at 295, 93 S. Ct.at 1046, 35 L. Ed.2d at 309); see alsoState v. Rosales, 202 N.J.549, 562 (2010). Thus, while a trial judge should generally limit the scope of cross-examination to issues raised on direct examination and matters affecting a witness's credibility, any such limitation remains "subject to [the] defendant's overriding constitutional right to present a defense." State v. Jones, 346 N.J. Super. 391, 405 (App. Div.), certif. denied, 172 N.J.181 (2002); see alsoN.J.R.E.611(b).

The Rules of Evidence provide that evidence is admissible if, and only if, it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E.401; N.J.R.E.402 (permitting the introduction of "all relevant evidence"). That being said, parties "may examine the witness and introduce extrinsic evidence relevant to the issue of credibility," N.J.R.E.607, "regardless of whether that evidence is relevant to any other issue in the case." State v. Parker, 216 N.J.408, 418 (2014).

However, even relevant evidence may be excluded, or cross-examination precluded, if the trial court determines its "probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury or . . . undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E.403; see alsoState v. P.H., 178 N.J.378, 389-90 (2004); Jones, supra, 346 N.J. Super.at 404-05 (concluding that limiting defendant's cross-examination of State's witness was permissible because the proffered testimony "did not have a sufficient relationship to any material fact actually in issue in the case," including defendant's proffered defense).

We address first defendant's argument regarding her cross-examination of V.M. She contends that the trial court erred in "conclud[ing] that the contents of [V.M.'s] journal were hearsay and the defense would have to provide an exception to the [h]earsay [r]ule in order to refer to it," and in "reserv[ing] the right to rule whether the [contents] w[ere] more prejudicial than probative." She claims that the court made clear during the colloquy that it would be "unduly restrictive and controlling of the cross-examination of V.M.," with "the end result [being] that [defendant] never made use of the journal." We find no error by the trial court.

We conclude from our review of the record that the trial court never ruled that V.M.'s journal entries were inadmissible. While the court warned defendant that V.M.'s statements in her journal "raise[d] questions under [N.J.R.E.] 403, 404, 611, 613, and the hearsay rules," it also made clear that it was reserving decision on the admissibility of individual statements until if and when it became an issue on cross-examination. Absent a formal ruling by the court regarding the admissibility of the statements in V.M.'s journal, defendant's argument that the court erred merely by warning of potential admissibility concerns and reserving decision on the issue is without sufficient merit to warrant full discussion in a written opinion. SeeR.2:11-3(e)(2). We note only that the court acknowledged that the statements evidencing V.M.'s ill-will towards her mother were "certainly relevant," as they "clearly relate[d] to [V.M.'s] credibility and bias[]," and that defense counsel ultimately questioned V.M. about certain statements from her journal and her relationship with her mother without objection by the State or interruption by the court. That counsel did not seek to make further use of the journal entries because he assumed the court would not oblige was not the court's error.

We turn next to defendant's argument that the court erred by precluding her from cross-examining the State's witnesses regarding the allegations of sexual misconduct by her husband because it impaired her ability to corroborate her claim of self-defense. We disagree.

The trial court questioned the overall relevance of the proffered evidence at the hearing and it noted that its ruling was based on the evidence s probative value being outweighed by its "potential for confusion and misleading the jury." Specifically, the court told defendant

Right now it is nothing more than a confusing allegation. You would simply ask a question and leave a question in the jury's mind. Until there's a foundation in this record, until there's testimony from the defendant herself about this issue I don't see the relevance of the evidence, and to the extent that it even was arguably somewhat relevant I see it's more precluded under [N.J.R.E.] 403 as more potential for confusion and misleading the jury than it has probative value.

As the court found that "there [wa]s no 'evidence' of sexual misconduct between the victim and any of his children[,] . . . only general allegations," and that "[j]ust as critically, th[e] allegations ha[d] not logically been connected to any potential defense," it precluded defendant from raising the abuse allegations during the State's case, but reserved decision on whether it would permit her to do so during her case-in-chief.

We agree with the court's determination that defendant's allegations of sexual abuse did not relate to the credibility of the State's witnesses, nor were they within the scope of the State's direct examination of its witnesses. We, therefore, find no error in the court's decision to preclude defendant from cross-examining the State's witnesses regarding the allegations.

As noted by the trial court, the allegations of abuse bore little, if any, connection to defendant's claim of self-defense. Defendant's purported justification was not that she acted to protect her daughter, but rather that she shot her husband in her own defense. As such, the allegations were probative only to the extent that they could relate to defendant's reasonable belief that her use of deadly force was immediately necessary to defend against death or serious injury at the hands of her husband. SeeN.J.S.A.2C:3-4(b)(2). The allegations of past sexual abuse of V.M. by Carl did not support either contention. Moreover, the evidence demonstrated the abuse never occurred, as reflected by V.M.'s denial of the allegations and the two reports considered by the court. Given the inherently inflammatory nature of the allegations and that their relevance, if any, would not become apparent until defendant testified, we find no error with the court's ultimate conclusion that the probative value of the allegations was far outweighed by their risk of confusing or misleading the jury during the State's case.

The court's preclusion of cross-examination regarding the allegations did not deny defendant the opportunity to raise them during her case-in-chief, and she did in fact do so. To the extent that defendant sought to bolster her overall credibility by developing evidence to corroborate her proffered testimony regarding the alleged abuse, the court's ruling did not prevent her from doing this either, as she was not precluded from taking the stand, producing witnesses, or re-calling the State's witnesses to testify regarding the alleged abuse during her case-in-chief. The court merely reserved determining the admissibility of such testimony until "if and when it bec[a]me[] an issue."

As we find no curtailment of defendant's right to present her defense, we conclude the trial court did not abuse its discretion by precluding defendant from raising her husband's alleged misconduct on cross-examination.

In the absence of any error by the trial court in its rulings regarding the admissibility of defendant's pre- and post-Mirandastatements, the allegations of the victim's sexual misconduct, and V.M.'s journal entries, defendant's argument that their cumulative effect deprived her of a fair trial is similarly meritless. Quite simply, there were no errors to cumulate.

III.

We turn finally to defendant's contention that her aggregate sentence of forty years was excessive and that the court improperly enhanced her sentence based on her decision to proceed to trial and preserve her right to appeal. Specifically, defendant argues the court erred in placing significant weight on aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (the need for general and specific deterrence), based on its finding that defendant "ha[d] shown little remorse towards the victim, and ha[d] taken no responsibility" for her crime. We find no such error.

The court's obligations when sentencing a defendant are clear. A sentencing court must determine which, if any, aggravating and mitigating factors apply, and balance those found applicable. State v. Fuentes, 217 N.J. 57, 72-73 (2014); see also N.J.S.A. 2C:44-1. Once the court has balanced the applicable factors, it "may impose a term within the permissible range for the offense." State v. Bieniek, 200 N.J. 601, 608 (2010). "At the time sentence is imposed the [court] [must] state reasons for imposing such sentence . . . [and] the factual basis supporting [its] finding of particular aggravating or mitigating factors affecting sentence . . . ." R. 3:21-4(g).

We review criminal sentences under the "clear abuse of discretion" standard. State v. Roth, 95 N.J. 334, 363 (1984). We are bound to uphold the trial court's sentence unless

(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the [23] guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

 
[Fuentes, supra, 217 N.J. at 70 (alteration in original) (quoting Roth, supra, 95 N.J. at 364-65).]

There is no indication in the record that the court rested its application of aggravating factor nine on defendant's election to exercise her constitutional right to proceed to trial, as defendant argues. While defendant never denied killing her husband, in her statement to the court at sentencing, she maintained that her husband's death was unplanned and avoided accepting responsibility for his death, saying instead "[t]he circumstances just happened . . . they couldn't be helped . . . my hand was almost moving on its own . . . it was happening to somebody else." Accordingly, we have no cause to disturb the court's decision to place significant weight on aggravating factor nine based on its finding that defendant neither showed remorse nor accepted responsibility for her husband's death. We conclude that the judge's stated findings regarding the applicability of the aggravating factor were "based upon competent credible evidence in the record," and that the sentence imposed neither falls outside the permissible range for murder, nor "shocks the judicial conscience." Roth, supra, 95 N.J. at 364. As such, we find no error in defendant's sentence.

Affirmed.


1 Defendant suffers from multiple sclerosis (MS) and is largely reliant upon a wheelchair or walker for mobility.

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

3 According to V.M., she and her father had visited his girlfriend in North Carolina the week before his death, but told defendant they were going to New York for a martial arts retreat. Though defendant was concerned about the relationship between V.M. and Carl at the time, she was not disturbed enough to worry about them taking a trip together.

4 There is no dispute that defendant invoked her right to remain silent when she was first advised of her rights and handcuffed, nor is there any dispute that, regardless of whether the other officers communicated defendant's invocation to Pascale, Pascale was bound by that invocation.