STATE OF NEW JERSEY v. ALBERTO MARTINEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERTO MARTINEZ,

a/k/a BERT MARTINEZ,

Defendant-Appellant.

October 12, 2016

Submitted September 14, 2016 Decided

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 10-06-0399.

Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a four-day bench trial, defendant Alberto Martinez was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2), and third-degree possession of a weapon (a baseball bat) for an unlawful purpose, N.J.S.A. 2C:39-4d. The court rejected defendant's affirmative defense of insanity. N.J.S.A. 2C:4-1.

By way of background, we adopt the trial judge's findings at the conclusion of the trial. The judge found

Number one, on May 10, 2010, in Wildwood, . . . [d]efendant . . . deliberately and without provocation struck Vincent DeSario in the head with a wooden baseball bat, causing immediate serious bodily injury to Vincent DeSario. Number two, after he struck Vincent DeSario, [] [d]efendant stated ["]that will teach you not to laugh["].

Number three, after striking Vincent DeSario, [] [d]efendant left the area of the attack on his bicycle, put up the hood on his sweatshirt to avoid detection, rode his bicycle in a direction to avoid apprehension and . . . destroyed, hid or discarded the baseball bat. The fourth finding the [c]ourt makes is that on May 24, 2010, Vincent DeSario died as a result of the cranial and brain injury he suffered when [] [d]efendant hit him in the head with a wooden baseball bat on May 10, 2010.

. . . .

The [c]ourt . . . finds that the proof of purpose or knowledge has been furnished beyond a reasonable doubt by inferences which arise from the nature of the act of the [d]efendant in striking Vincent DeSario and from the surrounding circumstances. This [c]ourt finds from the proofs presented that [] [d]efendant hit Vincent DeSario in the head with a wooden baseball bat with such force that bystanders and witnesses, especially the bystanders across the street, heard a resulting noise that sounded like a gunshot. The [c]ourt finds by inference that [d]efendant, in striking the head of another human being with a wooden baseball bat with such force, knew that his conduct would cause death or serious bodily injury resulting in death.

Furthermore, this [c]ourt finds that [] [d]efendant's actions after leaving the scene of his attack are proof of his knowledge that his conduct would cause death or serious bodily injury resulting in death. The [c]ourt finds from the testimony that [d]efendant fled the scene of his attack, took evasive path of travel to avoid detection, put up the hood of his sweatshirt to avoid detection, deliberately discarded and/or hid the baseball bat in question and deceived the police as to the possible location of the bat. The proof of all of these actions permits this [c]ourt to draw the inference that [] [d]efendant acted knowingly and had knowledge of the results of his conduct.

. . . .

The [c]ourt finds that [] [d]efendant failed to sustain his burden as to [the] affirmative defense [of insanity]. There was no credible evidence presented at the trial that [] [d]efendant was laboring at the time of the occurrence of the attack under such a defect of reason from disease of the mind as to not know the nature and quality of the act or if [] [d]efendant did know it, that he did not know what he was doing was wrong.

A psychiatrist, who was called as a witness for the defense and gave testimony as an expert in clinical and forensic psychiatry, after cross-examination . . . opined that [d]efendant did know the nature and quality of the act in which he engaged. Thus, the [c]ourt finds that [] [d]efendant did not sustain his burden of proof as to the insanity defense.

On July 30, 2013, the trial judge granted the State's motion for an extended term, and sentenced defendant to fifty years' imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge merged the weapon offense into the murder conviction.

Defendant appeals from his July 31, 2013 judgment of conviction. He challenges the denial of his motion to suppress his post-arrest statement to police, and the length of his sentence. Specifically, defendant presents the following points for our consideration

POINT I

[DEFENDANT'S] CUSTODIAL STATEMENT WAS OBTAINED IN VIOLATION OF [] FEDERAL AND STATE LAW, AND THEREFORE SHOULD NOT HAVE BEEN ADMITTED AT TRIAL.

POINT II

[DEFENDANT'S] PURPORTED WAIVER OF HIS MIRANDA RIGHTS, AND HIS SUBSEQUENT CUSTODIAL STATEMENTS, WERE NOT KNOWINGLY AND VOLUNTARILY GIVEN, AND THEREFORE SHOULD NOT HAVE BEEN ADMITTED AT TRIAL.

POINT III

[DEFENDANT'S] DISCRETIONARY EXTENDED-TERM SENTENCE SHOULD BE VACATED OR REDUCED BECAUSE IT WAS MANIFESTLY EXCESSIVE AND PROCEDURALLY DEFECTIVE.

Following our consideration of the arguments presented, in light of the record and applicable law, we affirm.

I.

We first address defendant's challenges to the trial court's denial of his motion to suppress his post-arrest statement to police. Detective Chris Korobellis and Detective Sergeant Kenneth Gallagher of the Wildwood Police Department testified at the October 17, 2011 Miranda1 hearing. Both first observed defendant on May 10, 2010, at the scene of his arrest, shortly after the victim was assaulted. Defendant appeared calm and cooperative, and responded appropriately to questions asked of him.

Defendant was transported to Wildwood Police headquarters, where he was placed in a second-floor interview room and interrogated by the two detectives. Initially, the officers ascertained that defendant was a twenty-eight-year-old high school graduate who could read and write English. After administering defendant his Miranda warnings, defendant advised he understood them and had no questions about his rights. The detectives testified that defendant agreed to speak with them,2 and never indicated that he wished to remain silent or have an attorney present. At the hearing, the State also introduced into evidence a transcript and video-recording of the police interview, and defendant's signed Miranda form waiving his right to remain silent.

Gallagher and Korobellis also testified that defendant had a criminal history comprised of fifteen prior arrests, including eleven in New Jersey and four in Florida. Notably, Wildwood Police Sergeant Edward Ramsey testified that, in 2007, he had questioned defendant in the same interview room about his suspected involvement in a 2007 burglary.3 During that interrogation, after being read his Miranda rights, defendant responded, "Well, we're talking. It's just fine, you know, without an attorney. Well, I would like to get - - to, you know, an attorney be present." As a result, the police on that prior occasion immediately ceased any further questioning. Defendant's 2007 recorded interview was introduced into evidence and played at the hearing.

In a thorough oral decision, the judge denied defendant's motion to suppress the statement he made to the police on May 10, 2010. The judge found

Defendant did not indicate, at any point in time, that he was not willing to talk . . . [or] that he wanted an attorney prior to speaking with law enforcement. That [is] in contradistinction to his clear and unequivocal assertion of that right [in] the September 17, 2007 video of the interview with Detective Ramsey.

[] Defendant arrived at the May 10, 2010 interview not unknown to police, apparently. Again, there had occurred the September 17, 2007 videotaped interview with Detective Ramsey, and as the State's witnesses testified, there were known to law enforcement to have been [fifteen] prior arrests of the [d]efendant, eleven in New Jersey and four in Florida. So, it is clear to the [c]ourt that that which [] [d]efendant was capable of asserting on September 17[,] 2007, his right to counsel before speaking with law enforcement, was not invoked, either literally or even arguably, by [defendant] on May 10[,] 2010.

[T]he court did take note that [] [d]efendant was advised by both [Detective] Korobellis and Detective Sergeant Gallagher that were [] defendant to speak with law enforcement without counsel present, were he to waive his rights under Miranda, that [] [d]efendant, quote, "can stop. We don't get your side. 10:16 p.m., we'll take you back downstairs."

Now, it's the [c]ourt's sense that at that point Korobellis expressed some concern with regard to the clarity with which [] [d]efendant was or was not saying one thing or the other, either that he did wish to speak without counsel or did not. And the comment, quote, "we'll take you back downstairs," was seemingly a comment offered by Korobellis to encourage [] [d]efendant to focus on making a decision one way or the other. There's nothing necessarily wrong about that so long as it is not overbearing. I don't find that comment was overbearing. To the extent that it's overbearing at all, it's overbearing in recognition and support of the need for any waiver of Miranda to be clear, unequivocal, unconditional and intelligently made.

During oral argument on the motion, defense counsel remarked, "we know now that [defendant] was in mental disorder at the time." After the State objected, the motion judge noted, "[t]here is no testimony to that extent within the context of the hearing."4 Ultimately, in addressing the issue, the judge determined

The [c]ourt's file does contain the psychiatric evaluation of [d]efendant that was undertaken at a point in time substantially subsequent to May 10[,] 2010. And while that evaluation does offer diagnoses of the [d]efendant, there is nothing in the [c]ourt's file that competently concludes, or even suggests, that at the point in time of this particular evaluation, or of this particular discussion between law enforcement and [] [d]efendant[] on May 10[,] 2010, that [] [d]efendant was delusional or unclear or confused, did not understand what was happening to him and with regard to him. Such evidence may be forthcoming. I don't know, but there being no such evidence at this juncture, I'm unable to find that . . . [d]efendant was not competent or otherwise unable to appreciate who he was, where he was and what was occurring at the point in time of that particular interview.

The judge concluded that defendant's decision to speak to the police without counsel present "was made knowingly and intelligently and without undue coercion to any extent or degree by law enforcement."

A.

In reviewing a trial court's admission of a defendant's confession, our task is to "engage in a 'searching and critical' review of the record to ensure protection of a defendant's constitutional rights." State v. Maltese, 222 N.J. 525, 543 (2015) (quoting State v. Hreha, 217 N.J. 368, 381-82 (2014)), cert. denied, ___ U.S. ___, 136 S. Ct. 1187, 194 L. Ed. 2d 241 (2016). When the trial court has, as here, based its findings and conclusions on a video recording of the interrogation equally available to us, "a review of the videotape of the interrogation is appropriate." State v. Hubbard, 222 N.J. 249, 264 (2015) (quoting State v. Diaz-Bridges, 208 N.J. 544, 566 (2012)). The availability of the DVD does not, however, change our standard of review. Id. at 263-64. We defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014). Our review of the trial court's legal conclusions, however, is plenary. State v. Gandhi, 201 N.J. 161, 176 (2010).

B.

In Point I, defendant argues that, during his custodial interrogation, the police failed to honor the assertion of his right to counsel and his right to remain silent, contrary to Miranda. Defendant contends the police instead continued to question him, and pressured him into signing a waiver and making incriminating statements.

The State responds that defendant never asserted his rights to counsel or to remain silent, either equivocally or unequivocally, prior to giving his recorded statement. To the extent that defendant's comments might be construed as an equivocal assertion of such rights, the police responded by asking only narrowly tailored questions designed to clarify whether he intended to waive his right, rather than seeking to invoke an incriminating response. Alternatively, the State contends that any error in admitting defendant's statement was harmless, since three eyewitnesses positively identified him as the individual who dismounted a bicycle and without provocation struck the victim in the head full force with a baseball bat.

"As the Court [has] made clear, if the accused '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.'" State v. Alston, 204 N.J. 614, 619-20 (2011) (quoting Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 707 (1966)). In deciding this issue, we must consider the differing constitutional standards adopted by the United States and New Jersey Supreme Courts.

The United States Supreme Court has held that "the Fifth Amendment only requires police to stop questioning if the suspect makes a request for counsel that is unambiguous or unequivocal." Id. at 620 (citing Davis v. United States, 512 U.S. 452, 459-62, 114 S. Ct. 2350, 2355-57, 129 L. Ed. 2d 362, 371-73 (1994)). As a result, the Court "decline[d] to adopt a rule requiring officers to ask clarifying questions. If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." Id. at 621 (quoting Davis, supra, 512 U.S. at 461-62, 114 S. Ct. at 2356, 129 L. Ed. 2d at 373). Nonetheless,

its opinion continued with the observation that "when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect's statement regarding counsel."

[Ibid. (quoting Davis, supra, 512 U.S. at 461-62, 114 S. Ct. at 2356, 129 L. Ed. 2d at 373).]

Unlike the United States Supreme Court, our Supreme Court has "set the threshold at whether a suspect's statement 'arguably' amounted to an assertion of Miranda rights, and held that in those circumstances, the officer must clarify with the suspect in order to correctly interpret the statement." Alston, supra, 204 N.J. at 621-22. "[I]f the 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." Id. at 624.

Thus, where a suspect's response is ambiguous or equivocal, the United States Supreme Court permits, and the New Jersey Supreme Court allows - and in some instances requires - the interrogating officers to seek clarification from the suspect. Such clarification or questioning "'is not considered "interrogation" under Miranda, because it is not intended to "elicit an incriminating response from the suspect."'" Id. at 623 (quoting State v. Johnson, 120 N.J. 263, 283 (1990)). "The scope of that permission, however, is limited because we have allowed only 'clarification, not questions that "operate to delay, confuse, or burden the suspect in his assertion of his rights."'" Ibid. (quoting Johnson, supra, 120 N.J. at 283).

Here, the record amply supports a finding that defendant was read his Miranda rights and responded he understood them. Defendant never stated that he wanted an attorney or did not want to talk to the police. Although defendant initially offered certain responses that arguably might be viewed as ambiguous, the police, as permitted, "follow[ed] up by asking questions . . . designed to clarify the meaning of those words." Alston, supra, 204 N.J. at 623. The detectives' comments "did not exceed the scope of permissible clarification," were "neither inaccurate nor misleading," and did not "'"delay, confuse, or burden the suspect in his assertions of his rights."'" Alston, supra, 204 N.J. at 616, 623, 628 (citation omitted). Thus, we do not conclude that defendant's rights under Miranda were violated, or that his ensuing statement was involuntary.

C.

In Point II, defendant raises the related argument that his post-arrest statement was not knowingly and voluntarily given and should not have been admitted because he suffered from severe mental illness at the time. The State counters that there was no evidence at the suppression hearing that defendant was suffering from the effects of a mental illness when he gave his statement. The State also points out that, at the subsequent trial, defendant's own psychiatric expert concluded defendant "did know what he was doing" and was not insane at the time the offenses were committed.

"The fact that [a] defendant . . . suffer[s] from a mental illness at the time of the questioning [does] not render his waiver or his statement involuntary." State v. Smith, 307 N.J. Super. 1, 10 (App. Div. 1997). Such a statement is admissible so long as it "was the product of a free and deliberate choice rather than intimidation, coercion or deception . . . ." Id. at 11 (citation omitted). See also State v. Glover, 230 N.J. Super. 333, 342 (App. Div. 1988) ("Contrary to defendant's contentions, the record clearly demonstrates that defendant's ability to make free and rational choices when interrogated by the police was not 'overborne by defendant's severe mental illness.'"), certif. denied, 121 N.J. 621 (1990).

Here, as the motion judge appropriately noted, defendant did not adduce any expert testimony at the suppression hearing indicating he was mentally ill. Although the judge was generally aware of the issue of defendant's competency by virtue of a competency evaluation that was contained in the court's file, there was no evidence adduced either at the hearing or the subsequent trial that defendant lacked the capacity to understand his rights or to voluntarily waive them. Moreover, when confronted with pending charges three years earlier, defendant displayed the ability to invoke his Miranda rights. Under the totality of the circumstances, we discern no basis to disturb the judge's determination that defendant's statement was admissible.

II.

Defendant's sentencing arguments warrant little discussion. As the Supreme Court has recently reaffirmed, sentencing determinations are reviewed on appeal with a highly deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014).

The appellate court must affirm the 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 guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

Once the trial court has balanced the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and -1(b), it "may impose a term within the permissible range for the offense." State v. Bieniek, 200 N.J. 601, 608 (2010). See also State v. Case, 220 N.J. 49, 65 (2014) (instructing that appellate courts may not substitute their judgment for that of the sentencing court, provided that the "aggravating and mitigating factors are identified [and] supported by competent, credible evidence in the record").

In sentencing defendant, the court found significant the following aggravating factors: (1) the risk of re-offense (factor three), N.J.S.A. 2C:44-1(a)(3); (2) the extent of defendant's prior criminal record and the severity of those offenses (factor six), N.J.S.A. 2C:44-1(a)(6); and (3) the need for deterrence (factor nine), N.J.S.A. 2C:44-1(a)(9). The court noted defendant's extensive history, both in New Jersey and Florida, which included three juvenile delinquency adjudications, two indictable or felony convictions, two misdemeanor convictions, and three disorderly persons convictions.

The court found mitigating factor four, that there were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense. N.J.S.A. 2C:44-1(b)(4). While defendant failed to prove the affirmative defense of insanity at trial, as a basis for this finding the court noted defendant's diagnoses of schizophrenia and antisocial personality disorder. The court also carefully explained its reasons for denying defendant's request that it find additional mitigating factors.

The court ascribed substantial weight to the three aggravating factors, and moderate weight to mitigating factor four. The court then engaged in a balancing process and concluded that the aggravating factors substantially outweighed the single mitigating factor.

We conclude the sentencing court applied correct legal principles and its findings regarding aggravating and mitigating factors are fully supported by the record. SeeState v. Megargel, 143 N.J.484, 493 (1996). We find no clear error of judgment in the court's application of the facts to the law that would shock our conscience. See ibid. Accordingly, we find no abuse of discretion in the imposition of an extended term or the particular sentence imposed here. See State v. Pierce, 188 N.J. 155, 166 n.4 (2006); see also State v. Hudson, 209 N.J. 513, 526 (2012).

Affirmed.

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

2 Defendant initially checked off both boxes on the Miranda form indicating he wished to both have an attorney present and waive his right but later corrected the mistake when it was brought to his attention.

3 Relying on State v. Knight, 183 N.J. 449, 467-70 (2005), the court permitted the testimony, over defendant's objection, reasoning "a suspect's knowledge of the legal process and experience with the legal system are factors that courts may consider in determining [whether] Miranda rights were waived voluntarily, knowingly and intentionally."

4 Defendant did not testify at the suppression hearing and presented no witnesses or documentary evidence on his behalf.