STATE OF NEW JERSEY v. NICHOLAS H. NIGRO, III

NOT FOR PUBLICATION WITHOUT THE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.

NICHOLAS H. NIGRO, III,

Defendant-Appellant.

________________________________________________________________

November 3, 2016

 

Argued January 5, 2016 Decided

Before Judges Fisher, Espinosa and Currier.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-12-2961.

Jennifer L. Gottschalk argued the cause for appellant (Richard Sparaco and Mark E. Roddy, attorneys; Ms. Gottschalk and Mr. Roddy, of counsel and on the briefs).

Sarah E. Ross, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Ross, of counsel and on the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Defendant was convicted on two counts of first-degree murder, N.J.S.A. 2C:11-3a(1), (2), and related offenses for the murders of his fiancée, Paula Mulder, and her mother, Mary Jane Buri. During approximately eight hours of questioning, defendant steadfastly maintained he called 911 immediately after he came upon a bloody scene at their residence. He referred to Paula as "a sweet little girl" who was the "love of [his] life," repeatedly expressed his commitment to do what he could to find who killed her and stated his belief that a drug dealer he failed to pay was responsible for her death. Detectives ceased interrogating defendant after he unequivocally invoked his right to stop answering questions, leaving him alone in the interview room while they questioned other witnesses.

Two hours later, defendant asked to speak to a detective and proceeded to give a "full confession" to the murders he called "cold-blooded." At the outset, he apologized to the detective for lying to him, stating that, as a criminal, he had a "role" to play. He freely admitted entering the victims' home in the early morning hours and swinging Paula's door open so she could witness him shoot her mother. He said Paula tried to run. She pleaded with him until, as he told the detective "I fucking murdered [her] I told her to keep her fucking mouth shut don't say a word." Then, he shot her twice.

In this appeal, defendant presents the following arguments for our consideration

POINT I

THE TRIAL COURT ERRED IN ADMITTING DEFENDANT'S CONFESSION AS IT WAS OBTAINED FOLLOWING HIS REPEATED REQUESTS TO END QUESTIONING, AND IN CONTRAVENTION OF HIS FIFTH AMENDMENT RIGHTS.

POINT II

DEFENDANT'S WILL WAS OVERBORNE BY INVESTIGATORS DURING QUESTIONING, RENDERING HIS CONFESSION UNRELIABLE.

POINT III

DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE IT WAS BASED SOLELY UPON HIS CONFESSION AND WAS NOT CORROBORATED BY PHYSICAL OR FORENSIC EVIDENCE.

POINT IV

THE TRIAL COURT ERRED BY ALLOWING THE JURY UNSUPERVISED REVIEW OF DEFENDANT'S VIDEO-TAPED INTERROGATION AND ALLEGED CONFESSION DURING ITS DELIBERATION. (not raised below)

POINT V

THE TRIAL COURT ERRED IN PERMITTING JURORS TO TAKE NOTES DURING THE TRIAL AND TO RELY UPON THOSE NOTES IN RENDERING A VERDICT WHICH MUST NOW BE REVERSED. (not raised below)

POINT VI

THE TRIAL COURT ERRONEOUSLY SENTENCED DEFENDANT TO AN EXCESSIVE TERM.

The thrust of defendant's appeal is that his convictions must be reversed and his confession suppressed because the detectives should have ended their questioning earlier. Aside from defendant's challenges to his confession, his arguments lack sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm his convictions and sentence.

I.

Our summary of the facts is based upon the record, the testimony and our own observations of the videotape of the interrogation and defendant's confession, which permitted us to evaluate defendant's demeanor and conduct.

The investigation in this case began with defendant's 911 call at 3:06 a.m. on September 30, 2009. Defendant reported he "just came home and my girlfriend and her mother, somebody hurt them. . . ." He said there was "blood everywhere in the house," including "all over [the] wall" of Mary Jane's bedroom. As he waited in the road for the police to arrive, defendant told the 911 operator he saw a light come on and then go off on the second floor of the house.

When officers from Egg Harbor Township arrived at the scene, they performed a pat down of defendant, confiscated his cell phone, and placed him in the back of a patrol car, where he remained while the police officers performed a sweep of the house to determine if anyone was present.

Police found Paula on her bed with fatal gunshot wounds to the head and neck. Mary Jane was found in her bed, dead with a "gaping open" wound from one shotgun blast to the side of her head. No shell casings were found at the scene.

At around 6:00 a.m., Detective Fred Spano from the Egg Harbor Township Police Department and Detective James Kirschner from the Atlantic County Prosecutor's Office brought defendant to the Atlantic County Prosecutor s office to be interviewed.

At 6:16 a.m., Detective Kirschner read the Miranda1 rights to defendant, who then acknowledged receiving the rights in writing. Defendant was twenty-five years old at the time and had an eighth-grade education. This was not his first experience with police questioning. Defendant informed the detectives he had been interviewed by police previously, once regarding an attempted homicide and on another occasion, regarding an armed robbery.

Defendant informed the detectives he owned firearms and consented to the recovery of his weapons, an AK-47 and two Mossberg twelve-gauge shotguns, from his home safe. Defendant also consented to a search of his vehicle.

In his first account, defendant provided a version of events that was largely consistent with what he told the 911 operator. He said he stayed at Paula's the night before, spent the day with her, then dropped her off at her house, planning to return to Paula's in the evening. He stated he called Paula at approximately 1:00 a.m. from his cell phone and asked her to leave the front door unlocked. He told the officers he arrived at the house approximately fifteen minutes after calling, partially opened the door to Paula's room, saw blood on the walls and ran from the house screaming. He stated he did not see either Paula or Mary Jane before leaving the house.

This version of events was inconsistent with other evidence. First, there was no blood on the walls in Paula's room. This version also differed from what defendant told the 911 operator. Defendant told the 911 operator he entered Mary Jane's room, but when he was questioned by detectives, he insisted he did not enter her room. Defendant's timing of events was also rebutted by his cell phone call log, leaving a one and one-half hour gap in his account. While he said he called Paula at 1:00 a.m., the call log revealed the call was actually placed over one hour later, at 2:12 a.m. There was also a gap between defendant's stated arrival at the house and his call to 911. According to defendant, he called Paula at 1:00 a.m., arrived there fifteen minutes later, called 911 immediately after making his discovery and ran from the house. Records revealed the 911 call was made nearly two hours after the time defendant claimed he arrived at the house.

Defendant later admitted he lied about the time he arrived at Paula's house to "protect himself and his family." At approximately 12:04 p.m., defendant told the detectives he had arrived at the home, entered both Paula's and Mary Jane's rooms, saw their bodies, left the home and went to find a drug dealer, "Fresh," whom he believed perpetrated the killing. After failing to find Fresh, defendant returned to the victim's home and called 911 at 3:06 a.m.

At 3:25 p.m., defendant explicitly stated he did not want to continue answering questions. The detectives ceased questioning and left defendant alone in the interview room.

At 3:54 p.m., defendant opened the door and asked when he would be released. The detectives informed him he would be released after the interviews of his family members were completed. Alone in the room, defendant muttered, "Sons of bitches. There's no reason why my fucking family should be in the middle of this at all. They're just being pricks. They think by getting to my family, they'll get to me." When Lieutenant DeShields checked in on him, defendant complained about being tired and wanting to go home. The detective stated they were all tired and added, "We're all in this for one common goal. Okay? Right?" Defendant answered, "Yeah."

Defendant continued to complain aloud while alone in the room, stating he had already told them everything he knew. At 5:29 p.m., one of the detectives brought defendant a cigarette and he left the room to smoke, returning approximately ten minutes later.

At 5:47 p.m., defendant stood up, walked to the door, touched the knob, walked away and mumbled. One minute later, he opened the door, looked around and closed the door. He repeatedly sat down, got up and paced about the room, apparently vacillating about what he was about to do.

Then, at 5:50 p.m., two hours after interrogation ceased, defendant opened the door and asked to speak to a detective. Defendant told Detective Spano, "I'm gonna give you what you want . . . . I did it alright you charge me . . . . Arrest me now." When asked why he did it, defendant said

Pain that I wouldn't even want to describe to any of you guys or I just know I did it. I'm breaking. I'm stepping up to the plate like a man. Please, please get my family out of this. I don't want any of my family bothered by this. I'm giving you what you want. I'm giving you a confession. I'll write it on paper. You can get it on tape. You can arrest me and charge me now and take me to jail.

Defendant then proceeded to describe the "roles" they had each played

You have a job to do as law enforcement officer. . . . To everything there's a flip side, okay. You have a job as a law enforcement officer to make sure you catch the criminals. The criminals have a job as a criminal to not get caught.

. . . .

Okay, so you were playing your role and I'm playing mine. I'm telling you right now that I killed her and I killed her mother and I'm letting you know that right now. I'm giving you a full confession however you want it.

He explained, "this is the only way I feel I'm gonna be able to make good" because of his concern for the effect on his mother. He volunteered, "I ain't never gonna see the outside again and I know it," that he knew he "made a mistake, big mistake," and that what he did was "a hundred percent unjustifiable."

Defendant stated, "this has been building up for the whole 2 years" he was with Paula. Describing his "personal pain," he asked the detective,

You ever have a girl . . . take you and crush you? . . . Literally like a freaking soda can and throw you in the corner like a rag doll. . . . She kept playing me for a fool. Like I was a little puppet on a string.

. . . .

And . . . tonight was just that was it, that was it. As wrong as it is tonight was it.

After defendant volunteered these admissions, Detective Spano asked him to tell what happened. Defendant stated he opened Paula's door first so she could see him entering her mother's room with the shotgun. He shot Mary Jane once, killing her, before forcing Paula back into her room, using the shotgun as a barricade, and telling her to "sit down on the bed and shut the fuck up." He then shot Paula twice, picked up all the shotgun casings, brought them to the kitchen and cut them up with a knife. Defendant brought the cut-up shells back to his house and flushed them down the toilet. He took off his sweatshirt and threw it out somewhere on his route home. Neither the shell casings nor the sweatshirt were recovered. Defendant called Paula at 2:12 a.m. to "[m]ake it look like normal," then drove back to Paula's house and called 911.

Defendant was indicted on two counts of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (counts one and three); two counts of second-degree burglary, N.J.S.A. 2C:18-2 (counts five and six); one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count seven); one count of fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count eight); and one count of third-degree hindering apprehension, N.J.S.A. 2C:29-3b(1) (count nine). Defendant was also charged with four counts of first-degree felony murder, N.J.S.A. 2C:11-3a(3) (counts two, four, ten and eleven), which were dismissed by the court.

Defendant did not testify at trial. His recorded interrogation and confession were admitted into evidence, and the court instructed the jury there would be a computer in the jury room in the event they wanted to view the interrogation and confession.

The jury found defendant guilty of two counts of first-degree murder, possession of a weapon for unlawful purposes, tampering with evidence and hindering apprehension. Defendant was sentenced to sixty-five years with an eighty-five percent period of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for Paula's murder, and sixty years subject to NERA for Mary Jane's murder, to be served consecutively. The court sentenced defendant to a concurrent term of five years for hindering apprehension. The convictions for unlawful possession of a weapon for an unlawful purpose and tampering with physical evidence merged with the murder counts and the hindering apprehension conviction, respectively.

II.

Defendant presents two arguments in challenging the denial of his motion to suppress his confession. First, he contends the officers failed to respect his statements that he was tired and wanted to go home as invocations of his right to remain silent. Second, he contends his will was overborne by the officers, resulting in an involuntary confession. We are not persuaded by either argument.

A.

The privilege against self-incrimination guarantees a person "the right . . . to remain silent unless he chooses to speak in the unfettered exercise of his own free will." State v. Camacho, 218 N.J. 533, 543 (2014) (quoting State v. P.Z., 152 N.J. 86, 100-01 (1997)). This right may be asserted by "indicat[ing] in any manner, at any time prior to or during questioning, that he wishes to remain silent." Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723.

During the course of lawful interrogation, a suspect may "clearly and unambiguously invoke[] his right to remain silent," in which case "interrogation must cease." State v. Maltese, 222 N.J. 525, 545 (2015), cert. denied, ___ U.S. ___, 136 S. Ct. 1187, 194 L. Ed. 2d 241 (2016). There are, however, other times when a "suspect's invocation is 'ambiguous.'" Ibid. (quoting State v. Johnson, 120 N.J. 263, 284 (1990)). When "the invocation is equivocal or ambiguous, leaving the investigating officer 'reasonably unsure whether the suspect was asserting that right,'" State v. Diaz-Bridges, 208 N.J. 544, 564 (2011) (quoting Johnson, supra, 120 N.J. at 283), the officer must either cease interrogation or "ask only questions narrowly directed to determining whether [the] defendant [is] willing to continue." Maltese, supra, 222 N.J. at 545 (citation omitted) (second alteration in original).

We employ "a totality of the circumstances approach that focuses on the reasonable interpretation of defendant's words and behaviors," to determine "whether a particular defendant has invoked his or her rights." Diaz Bridges, supra, 208 N.J. at 564, 572. This requires a "careful and searching review of all the facts and circumstances surrounding any defendant's interrogation," looking to "the words used and the suspect's actions or behaviors" to determine "whether the investigating officer should have reasonably believed that the right was being asserted." Id. at 565, 572.

Evaluating the defendant's statement "in the full context in which the statement is made," Maltese, supra, 222 N.J. at 545, we consider "changes in demeanor and emotional responses to questions about a crime." Diaz-Bridges, supra, 208 N.J. at 568. Although "crying, sniffling, holding one's head in one's hands, looking away or rubbing one's eyes . . . form[] part of the larger mosaic of the circumstances to be considered, none of them taken alone is a sufficient indication of a decision to invoke the right to silence." Id. at 569.

In reviewing a trial court's ruling on a motion to suppress, issues of law are reviewed de novo. See State v. Gandhi, 201 N.J. 161, 176 (2010). Ordinarily, we defer to the factual findings of the trial court "so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (citation omitted). This standard of deference applies "to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Id. at 244 (2007) (citation omitted). Such deference is not required "[w]hen the trial court's factual findings are based only on its viewing of a recorded interrogation that is equally available to the appellate court and are not dependent on any testimony uniquely available to the trial court." Diaz-Bridges, supra, 208 N.J. at 566. Because we have reviewed the videotape of defendant's interrogation and confession, our observations of those events are on an equal footing with those of the trial judge. See ibid. We also acknowledge the opportunity the trial judge had to see and hear the testimony of the witnesses at the suppression hearing and assess their credibility. See Elders, supra, 192 N.J. at 244.

Defendant asserts the detectives violated the requirements of Diaz-Bridges by failing to ask whether he intended to invoke his right to remain silent when he repeatedly stated he was tired and wanted to go home. He contends he equivocally invoked his right to remain silent on six occasions: 8:27 a.m., 9:57 a.m., 11:12 a.m., 3:24 p.m., 3:55 p.m. and 4:52 p.m. We do not have the briefs submitted in the trial court before us. However, at oral argument on the suppression motion, defendant did not identify six separate instances in which his equivocal invocations of the right to end questioning were ignored. The argument made to the court was that defendant invoked his right at 8:27 a.m., further questioning of him was improper and that his later confession was involuntary because it was "psychologically compelled." Although it may be that defendant's contention that he invoked his right five additional times is raised for the first time on appeal, rendering it subject to a review for plain error, R. 2:10-2, we review each of these instances in turn as part of our consideration of the totality of the circumstances.

First, we note our general observations of defendant throughout the eight hours of interrogation. Overall, he was calm, responsive and self-possessed. He used a conversational tone as he identified people with whom the victims had conflicts, who had threatened one of the victims, or had drug or mental health issues. He calmly recounted the activities of the day and portrayed himself as respectful toward Mary Jane and as the boyfriend who did everything he could for Paula, the "love of [his] life." After an emotional display lasting less than one minute when he was told his fiancée was dead, defendant recovered his composure. He was once again casual and conversational, even laughing at the officer's description of one of his weapons as "the Jersey version of the AK-47."

When the detectives questioned him about discrepancies between his version of events, such as whether he had observed the bodies when he looked in the bedrooms, and what investigating officers observed at the scene, defendant became energized and somewhat combative. He emphatically maintained he did not see the bodies and continued to answer questions. Defendant repeatedly expressed his desire to do everything he could to identify the person who committed the murders.

Defendant cites his statement at 8:27 a.m. as the first equivocal expression of his desire to stop questioning. He stated

Dude, I can't I like seriously man after what I've been through tonight I answered your questions as many times as I can. Man, it's like the same questions over and over again. . . . Like, I'm, I'm dizzy right now. . . . Please like I would love to go home and go to bed. . . . I just want to go home and go to bed. That's all I want to do.

Detective Kirschner testified he did not believe defendant was invoking his Miranda rights at this time. He explained he believed defendant "was just merely expressing the fact that he was tired and he was getting frustrated," that he did not want to answer "repeated questions." Kirschner noted that, shortly before, defendant "said he was willing to do whatever it takes."

Even after complaining about being asked the same questions, stating he was tired and wanted to go home, defendant continued to answer questions, cooperating and volunteering more information about possible suspects persons who did not like Mary Jane and had threatened her and stating it was common knowledge that Mary Jane had nearly $1 million as a result of successful lawsuits. Although he claimed to be tired, he engaged in conversation for long periods of time without displaying fatigue, only occasionally yawning. He consented to a search of his vehicle. His conversational tone extended to topics unrelated to the murders.

The next alleged equivocal assertion of rights is at 9:57:18 a.m. Defendant asked what time it was and whether he was "getting out of here soon?" Detective Spano replied, "We're working on it we're working on it." Defendant stated "Can I please though like I'm dying here man, I told you guys everything I know. At least give me a couple of hours of rest and bring me back or something."

Kirschner testified he did not believe defendant's statement to be an invocation of his right to remain silent. He understood defendant's statement to be an expression "that he was tired; he [had] been up for several hours at that point" and said "everybody was tired at that point."

Accordingly, Detective Kirschner replied, "Okay, we're . . . almost done for now. Now you, you said again that when you made these this [sic] call it was at 1:30 and you['re] saying. . . ." Defendant interrupted Kirschner to say, "Nah I ain't make [sic] the call at 1:30. I made the call at like one, 1:09 it's on my phone (inaudible)."

The reasonableness of Kirschner's interpretation is supported both by the content of the alleged invocation relied upon by defendant and his conduct thereafter. In the alleged invocation, defendant expresses his willingness to continue to answer questions, stating, "bring me back or something." He does not condition his willingness to speak to the detective on being able to rest. And, his willingness to speak is manifested by his continuing to answer questions, even interrupting the detective to correct him.

Defendant asked to call his mother at approximately 11:08 a.m., saying, "she's gonna go crazy if I don't call her." He did not state his continued cooperation was dependent upon being able to call her. Detective Kirschner told defendant that police were near the house and would tell her where defendant was. Shortly thereafter, at 11:12:42 a.m., there was the following exchange, which defendant now contends was an equivocal assertion of the right to remain silent.

Defendant asked

DEFENDANT: Is it possible for me to go home

[inaudible] are we done here? Do

I still have to stay here if I'm

not under arrest?
 

KIRSCHNER: Well we have some more questions

to ask you. I mean we're trying

to [inaudible].

DEFENDANT: So I can't leave if I wanted to I

thought I wasn't under arrest.

When Kirschner stated they were trying to find out who killed defendant's fiancée, defendant responded, "You guys think I did it" and said they were accusing him of lying. Defendant did not state he was unwilling to answer any more questions. His only stated concern was the stress to his mother. Once again, he did not condition his continued cooperation upon any request regarding his mother.

Kirschner testified he did not interpret these statements as an invocation of defendant's right to remain silent. Kirschner confirmed he told defendant he was not under arrest and testified he believed defendant was "just voicing frustration over the length of time that he was attempting to cooperate with" them. The videotape reveals that defendant continued to answer questions without hesitation after this exchange.

At approximately 2:44 p.m., defendant was offered soda and pizza. He declined the pizza but took the soda. He asked to use the bathroom at 3:02 p.m. and returned to the interview room at 3:10 p.m. Questioning did not resume until 3:14 p.m. During the time he was alone in the room, defendant showed no signs of fatigue.

At approximately 3:17 p.m., Detective Spano advised defendant that detectives had spoken to his brother and that his account of the prior evening differed from defendant's. Defendant conceded he could have forgotten the details in question and the following exchange occurred

DEFENDANT: It could've been (inaudible) like

I said I literally my brain is shot right now fellas like for real. I just wish this could end so I'm tired of sitting in this room being asked a million questions seriously. . . . It's not helping nothing. It's not.

KIRSCHNER: [inaudible] saying you don't want

to answer the questions or you can't [inaudible]

DEFENDANT: [inaudible] I don't really. I

don't want to.

KIRSCHNER: Why don't you want to answer the

questions?

DEFENDANT: Cause I can't anymore dude. I've

been doing this, it's 3 o'clock in the afternoon. How many hours are you going to keep me in this room? . . . [M]y mind is so shot right now I need sleep. I am freaking getting delusional. You guys don't understand this. Oh why are you saying this, why are you saying that? Do you understand that, like, for real? Like I can't answer your questions right now fully, and give you guys the help you need. Do you realize that? I've been in this room for how long, man? I was ready to go to bed like six hours ago. This is ridiculous.

KIRSCHNER: So are you . . . saying that you

don't want to find out who . . . did this to your . . .

DEFENDANT: Yeah I do, man, but I don't want

to be sitting here being interrogated like this for fuckin' ever. . . . I can do it better myself and go out there and find the dude and better on myself. [sic]

Questioning did not stop at this point. Instead, Detective Spano accused defendant of committing the murders. Defendant repeatedly deflected the accusations and maintained his innocence. When Detective Spano accused him of planning the murders because he brought the gun to the victims' house, defendant mockingly retorted,

I planned it now, too? Wow. . . . My name must be O.J. Simpson, huh? . . . Wow, I'm a killer now that that's great. . . .

Defendant then emphasized, "No, I'm not, no, I'm not, I'm not a killer at all." Defendant boasted he could do a better job than the police

I can go out and find out how my own way . . . . I bet you I'll find out before you guys do how much do you want to bet? And then what you guys gonna say calling me a killer when you find out.

This exchange ended at 3:25 p.m. with the following

DEFENDANT: Do what you guys gotta do man

(inaudible) I wanna be let go for real cause I'm not under arrest. I want to go home.

KIRSCHNER: You don't want to answer these

questions?

DEFENDANT: Nah I want to go home is what

I want to do.

KIRSCHNER: So you don't want to talk to us

right now?

DEFENDANT: No, I don't.

All questioning ceased at this point.

Defendant's contention that questioning should have stopped at 3:17 p.m. has merit. Kirschner appropriately sought to clarify defendant's statement that he "just wish[ed] this could end" by asking, "[Are you] saying you don't want to answer the questions or you can't." Defendant's response, "I don't really. I don't want to," can only be reasonably interpreted as his decision to end the interrogation.

Although we agree the detectives should have stopped questioning defendant at this time, we do not agree that the detectives' failure to do so required the suppression of defendant's confession. All questioning ceased just eight minutes later. In the interim, the interaction between defendant and the detectives was combative. Defendant rebuffed the detectives' accusations, mocked them and boasted he could do a better job of finding the killer. He made no incriminating statements.

As to the earlier allegations of equivocal assertions of the right to remain silent, we agree with the trial court that defendant's words and actions fell short of requiring a cessation of questioning. The trial court had the opportunity to see and hear the detectives testify regarding their understanding as to whether defendant was asserting the right to remain silent and found their testimony credible. Our observations of defendant's demeanor and willingness to proceed, perhaps with the motive to direct suspicion away from himself, support the conclusion that it was reasonable for the detectives to believe defendant did not exercise the right to remain silent earlier. We therefore find the trial court's factual findings are supported by sufficient credible evidence to warrant our deference. Elders, supra, 192 N.J. at 243-44.

Our review of the videotape has permitted us to evaluate defendant's words and demeanor during the interrogation. Defendant continued to answer questions without pause after each statement about fatigue or wanting to go home. Defendant repeatedly asserted he was willing to do anything to help the detectives find the person responsible for the murders. Without hesitation, he consented to the retrieval of his guns from his home and the search of his car, even after stating he "would love to go home and go to bed." His earlier expressions of a desire to go home and get rest did not include a request that questioning cease. See State v. Faucette, 439 N.J. Super. 241, 258-59 (App. Div.), certif. denied, 221 N.J. 492 (2015). Although he expressed concern for his mother, he did not condition his willingness to answer questions upon being permitted to speak to her. See Diaz-Bridges, supra, 208 N.J. at 569-71. We have observed his posturing as he played for sympathy and attempted to cast suspicion upon others, all for the purpose of performing the "role" he admitted when he confessed. We agree with the trial court that, under the totality of the circumstances, it was reasonable for the detectives to believe he was not invoking his right to remain silent.

B.

Defendant also argues the trial court erred in denying his motion to suppress because his will was overborne by "the badgering and prolonged nature of the questioning and custody," rendering the confession involuntary. We are not persuaded by this argument.

The State must prove voluntariness of a confession beyond a reasonable doubt. State v. Galloway, 133 N.J. 631, 654 (1993). To determine whether a statement is voluntary, courts must examine the totality of the circumstances,

including both the characteristics of the defendant and the nature of the interrogation. Relevant factors to be considered include the suspect'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 and mental exhaustion were involved.

[State v. Knight, 183 N.J. 449, 462-63 (2005) (quoting Galloway, supra, 133 N.J. at 654).]

Other factors include previous encounters with law enforcement and the lapse of time between "administration of the [Miranda] warnings and the volunteered statement[.]" Id. at 463 (alterations in original) (quoting State v. Timmendequas, 161 N.J. 515, 614 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151, L. Ed.2d 89 (2001)).

"Efforts by a law enforcement officer to persuade a suspect to talk 'are proper as long as the will of the suspect is not overborne.'" Maltese, supra, 222 N.J. at 544 (quoting State v. Miller, 76 N.J. 392, 403 (1978)). The analysis turns on "whether an investigator's 'statements were so manipulative or coercive that they deprived [defendant] of his ability to make an unconstrained, autonomous decision to confess.'" Ibid. (quoting State v. DiFrisco, 118 N.J. 253, 257 (1990) (alteration in original)).

The length of the interrogation here, approximately eight hours, is a "critical factor," but "only one of the many factors that must be evaluated in applying the totality of the circumstances test." Knight, supra, 183 N.J. at 469; see, e.g, State v. Cook, 179 N.J. 533, 541, 563 (2004) (although interrogation was lengthy, the facts that the defendant, a twenty-four-year-old high school graduate, was not sleep-deprived, or physically or mentally abused, was given breaks, had one meal and refused another supported finding of voluntariness); State v. Morton, 155 N.J. 383, 449-51 (1998) (finding a confession was voluntary after over nine hours of interrogation where the police "apprised defendant of his rights on more than one occasion and offered him food and drink").

Although the interrogation here was lengthy, there were several breaks in the questioning, including breaks to smoke and to use the restroom. In addition, defendant was offered soda, pizza, and coffee. Defendant went to the prosecutor's office voluntarily and repeatedly stated he wanted to help the police find the perpetrator of this crime. He was advised of his rights at the outset of the interview. He was not a novice to interrogation, having been questioned twice before for attempted homicide and robbery. His unequivocal invocation of his right to remain silent at 3:25 p.m. reflects an understanding of his rights despite his limited education.

Throughout the interrogation, defendant was self-possessed in the "role" he later admitted he was playing. He demonstrated an awareness of the stakes, portraying himself as a devoted fiancé, repeatedly referring to his loss as a means of evoking sympathy and volunteering reasons for others to be considered suspects. He was cognizant of the issues created by inconsistencies between his version of events and the evidence, stating the detectives were accusing him of lying and mocking the allegation that he was a killer. He was also keenly aware of the consequences of his decision to confess, stating his crime was "a hundred percent unjustifiable" and that he knew he was "never gonna see the outside again."

Observations of defendant when he was alone, immediately prior to his confession, reveal a man solitarily weighing the decision to confess. The one consideration that moved him to confess was a desire to relieve his mother and brother from stress, a factor independent of the interrogation. Once he invited the detective to return and declared his decision to give a "full confession," defendant became energized, venting the emotions he had suppressed throughout the interrogation. He now vilified the victim he had previously praised as the love of his life, using coarse language and calling her a devil in a skirt. The content and tone of these statements reflect the exercise of an independent will. Further evidence that defendant's will was not overborne is found in his response to the detective's solicitation that defendant agree he was treated fairly. Defendant unequivocally rejected the suggestion, stating he did not feel he was treated fairly when they accused him of being a killer even though, as he added, he was a killer.

In short, defendant's demeanor and conduct was not that of a man whose will was overborne.

III.

For the first time on appeal, defendant argues his conviction must be overturned because the State failed to produce any evidence corroborating his confession. This argument merits only the following brief comments. R. 2:11-3(e)(2).2

"An uncorroborated extra-judicial confession cannot provide the evidential basis to sustain" a criminal conviction. In re State in Interest of W.J., 116 N.J. Super. 462, 465 (App. Div. 1971) (citing State v. Lucas, 30 N.J. 37, 51 (1959)). Instead, the State must "introduce independent proof of facts and circumstances which strengthen or bolster [a] confession and tend to generate a belief in its trustworthiness. . . ." State v. Reddish, 181 N.J. 553, 618 (2004) (quoting Lucas, supra, 30 N.J. at 56). During a murder trial, the State need only provide "independent proof of the victim's death"; the remaining elements may be proven by the confession as long as the confession is sufficiently corroborated. Id. at 618-19. The requirement for corroboration exists "to avoid the danger of convicting a defendant solely out of his own mouth of a crime that never occurred or a crime committed by someone else." Id. at 617 (quoting State v. Johnson, 31 N.J. 489, 502-03 (1960)).

That danger did not exist here. The bodies of Paula and Mary Jane were found where defendant confessed he shot them. Just as he stated, the evidence showed Mary Jane was shot once and Paula was shot twice. Wounds to Paula's hands corroborated defendant's statement that Paula attempted to escape before he shot her. The fact no shells were found at the scene was consistent with defendant's statement that he took the three shells and disposed of them away from the victims' house. There was ample evidence to corroborate defendant's confession.

IV.

In Point IV, defendant argues the trial judge erred in allowing the jury unsupervised access to the DVD of his interrogation and confession during deliberations. This argument is raised not only for the first time on appeal, rendering it subject to a review for plain error, R. 2:10-2, but is also raised after defense counsel urged the court to follow this procedure over the State's objection.

In State v. Burr, 195 N.J. 119 (2008), the Court considered the "novel issue" of whether a videotape admitted in evidence should be available to the jury to view in its discretion during deliberations. Id. at 132. The Court held, "any playback of the videotape must occur in open court. . . ." Id. at 135. The Court reiterated its holding in State v. A.R., 213 N.J. 542, 546 (2013), and emphasized: "Under no circumstance shall the jury have unfettered access to audio- or DVD-recorded statements in the jury room during deliberations." Id. at 560-61. The Court found such a restriction necessary because "a jury's review of a videotaped witness statement or testimony raises concerns that a particular segment will be overemphasized or viewed out of context." State v. Weston, 222 N.J. 277, 292-93 (2015). It was, therefore, error to permit the jury to have unfettered access to the DVD during deliberations.

The State objected to allowing the jury have such access here. However, defense counsel agreed the confession and interrogation should be given to the jury to view unsupervised during deliberation, stating, "there really isn't any other evidence in the case, two of the State's witnesses have said that. . . . I see nothing wrong with . . . giving it to them." Defense counsel even stated the jury should be given the DVD "up front," without any request. Additionally, defense counsel used the recordings as part of his trial strategy in summation. He encouraged the jury to review the DVD, stating, "if you watch the video, which you will," and, "I'm going to go through the video. You'll have it."

As a result, the doctrine of invited error applies to defendant's argument. Invited error arises when the appellant "consents to, acquiesces in, or encourages an error" and then attempts to use such an error as the basis for appeal. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 341 (2010) (quoting Spedick v. Murphy, 266 N.J. Super. 573, 593 (App. Div.), certif. denied, 134 N.J. 567 (1993)). "[A] 'disappointed litigant' cannot argue on appeal that a prior ruling was erroneous 'when that party urged the lower court to adopt the proposition now alleged to be error.'" A.R., supra, 213 N.J. at 561 (quoting M.C. III, supra, 201 N.J. at 340). Nonetheless, "courts will not bar defendants from raising an issue on appeal if 'the particular error . . . cut[s] mortally into the substantive rights of the defendant. . . .'" Id. at 562 (alteration in original) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)). Thus, if the doctrine of invited error would "cause a fundamental miscarriage of justice, it will not be applied automatically." Ibid. (citation omitted).

In A.R., the trial court allowed the jury to take video recordings of the defendant's confession and the victim's interview into the jury room to view during deliberations after soliciting objections from the parties. Id. at 559-63. The defendant agreed to the procedure but later moved for a new trial, arguing the jury's viewing of the recordings was a miscarriage of justice. Id. at 550. The Court noted defense counsel explicitly acquiesced to and gave a rationale for the procedure followed and that the defendant's counsel considered the recording part of the defense strategy. Id. at 562-63. As a result, the Court held the trial court's error related to "procedural protections" that did not result in a "fundamental miscarriage of justice." Ibid. (quoting M.C. III, supra, 201 N.J. at 342).

The circumstances here are similar. We find no fundamental miscarriage of justice in the trial court's decision to allow the jury to review the DVD in the jury room.

V.

For the first time on appeal, defendant argues the trial court erred in allowing the jurors to take notes during the trial and use those notes during deliberation. Defendant contends the court failed to detail on the record why note-taking was necessary, "and that it simply happened without a pre-trial instruction by the court to the jury."

In State v. Jumpp, 261 N.J. Super. 514 (App. Div.), certif. denied, 134 N.J. 474 (1993), we stated juror note-taking is not appropriate "as a matter of routine" and that the trial court must "determine in the first instance if the case lends itself to the practice. . . ." Id. at 527 (quoting Wigler v. Newark, 125 N.J. Super. 179, 183 (App. Div.), certif. denied, 64 N.J. 490 (1974)). Although the trial court did not "set forth on the record the precise reasons why the practice of juror note-taking was beneficial in light of the factual and legal issues to be presented at trial," we held that allowing note-taking in Jumpp did not rise to the level of plain error. Ibid. We noted there was no prejudice to defendant and that the court had given the jury appropriate instructions. Ibid.

Here, too, the trial court did not set forth "precise reasons" on the record for allowing note-taking. See ibid. However, contrary to defendant's assertion, the trial court instructed the jurors on the proper role of note-taking in its opening instructions to the jury and, as defendant concedes, included the Model Jury Charge on note-taking at the close of the trial. Defendant has not identified any "evidence of confusion, distraction or prejudice," ibid., that resulted from juror note-taking. We therefore conclude this argument fails.

VI.

Finally, defendant argues that the sentence imposed was excessive.

His challenge is directed at the fact that the trial court imposed a sentence five years longer for Paula's murder than the sentence imposed for Mary Jane's murder. Defendant admitted he shot Mary Jane first because he wanted Paula to witness that murder and know she was next. The trial court reasoned that the intentional infliction of the resulting "psychological, mental and emotional suffering" merited a more severe sentence. The sole argument raised against this sentence and reasoning is that "defendant's so-called confession" constituted "one tenuous piece of evidence" that was "insufficient" to support the court's finding. This argument lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

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

2 The State argues defendant's failure to file a motion for acquittal pursuant to Rule 3:18-1 or -2 results in a waiver of this argument. Defendant does not refute this allegation.