STATE OF NEW JERSEY v. DONG B. LIN
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4559-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONG B. LIN, a/k/a LIN DONG BIAO,
Defendant-Appellant.
____________________________________
Argued October 4, 2017 – Decided April 12, 2018
Before Judges Koblitz, Manahan, and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
10-10-1964.
James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
James K. Smith, of counsel and on the brief).
Mary R. Juliano, Assistant Prosecutor, argued
the cause for respondent (Christopher J.
Gramiccioni, Monmouth County Prosecutor,
attorney; Mary R. Juliano, of counsel and on
the brief).
PER CURIAM
Following his guilty pleas to first-degree murder and felony
murder, defendant Dong B. Lin appeals from his May 5, 2015 judgment
of conviction and sentence. Lin alleges he preserved the ability
to appeal from the May 10, 2013 order that denied suppression of
a statement he gave to the police on June 17, 2010. Lin claims
his Miranda1 rights were incorrectly translated, which rendered
him unable to intelligently waive those rights and that the police
improperly reinstituted interrogation after he invoked them. Lin
appeals his sentence, contending that the trial court incorrectly
found and weighed the aggravating and mitigating factors. We find
no merit in these arguments and affirm Lin's conviction and
sentence.
I.
The case arose from the 2010 murders of Yao Chen and his
sister Yun Chen. Lin and co-defendant Zeng L. Chen were indicted
on multiple charges. Lin's case was severed from Chen's in 2012.
In 2014, Lin pled guilty to two counts of first-degree murder,
N.J.S.A. 2C:11-3(a)(1) (counts two and three) and two counts of
felony murder, N.J.S.A. 2C:11:3(a)(3) (counts four and five). Lin
was sentenced on count two to life in prison with an eighty-five
percent period of parole ineligibility and on count three to thirty
1
Miranda v. Arizona,
384 U.S. 436 (1966).
2 A-4559-14T3
years in prison with a thirty-year parole disqualifier concurrent
with count two. Both terms require a five-year period of parole
supervision. Counts four and five were merged into counts two and
three, and the remaining charges were dismissed.
We gather the following facts from the record developed at
Lin's suppression hearing. Lieutenant John Todd of the Freehold
Township Police Department was on duty on June 16, 2010 when he
received a call about an assault on South Street and to be on the
lookout for "two Asian males, approximately 20 to 25 years old.
One was wearing a green shirt; another one was wearing a light-
colored shirt." Shortly after this, he observed two people (Lin
and Chen) walking, who matched the description, and pulled over
his patrol car in front of them. Their clothing appeared
disheveled. He could see bloodstains on them. Todd ordered the
two men to get on the ground, but they did not immediately comply.
After he guided one of them to the ground, the other complied.
Officer Jason Slatas of the Freehold Borough Police
Department testified that initially he provided first aid to a
male victim on South Street, who was tied up and bleeding. He
then searched for the assailants. He encountered Todd, who at
that time had his weapon drawn and was ordering the suspects to
the ground. They did not appear to understand Todd. Once they
3 A-4559-14T3
were handcuffed, Slatas transported Lin to the police station.
Lin did not speak English.
That evening, Patrolman Robert Wei of the Piscataway Township
Police Department was contacted to act as an interpreter for the
police because both Lin and Chen spoke Mandarin Chinese, not
English. Wei was born in Taiwan and often acted as an interpreter
for the police when needed. Wei met Detective Sergeant Michael
Magliozzo at the Prosecutor's Office for the purpose of providing
translation for Magliozzo's interview of Lin.
At the outset of the June 16, 2010 interview, Magliozzo read
the Miranda rights card to Lin. Wei testified he did not translate
this word for word because "[d]uring the translation from language
to language, often . . . there isn't exact words." He testified
he "made sure the message was conveyed to the defendant." He had
no difficulty understanding Lin. Lin was responding to what Wei
was saying.
When Wei translated the warnings, he said that Lin had the
ability to "hire" an attorney, leaving out that if he could not
afford one, an attorney could be appointed for him. Wei later
translated that if defendant wanted an attorney and could not
afford it, "we can provide one for you," but omitted the portion
about "prior to any questioning." When Magliozzo informed Lin
that he could not speak with him until Lin decided if he wanted
4 A-4559-14T3
an attorney, Wei translated, "We can't talk to you until you decide
if you want an attorney or not," but then on his own added, "[b]ut
talking now will help you." Wei admitted that he added the latter
comment because he was trying to encourage Lin to talk. Lin
invoked his right to have an attorney prior to questioning and the
interview was stopped.
The next day, June 17, 2010, at Magliozzo's direction, Wei
advised Lin about the charges against him. Magliozzo testified
that Wei translated the charges for Lin in an unrecorded setting
because he "was not expecting any type of interrogation or
interview. It was just a formality to read him the charges." As
the charges were being read and Wei was interpreting, Lin indicated
through Wei that he wanted to talk about what had occurred the day
before. Magliozzo told Lin through Wei that he could not speak
with him because he had asked for an attorney, but Lin told Wei,
he did not want an attorney anymore and he wanted to speak with
them.
The recording then was activated. The transcript provides
in relevant part:
M.M.: All right, Dong . . . a few minutes ago,
we brought you in here to tell you your charges
and feed you. Is that correct?
R.W.: A few minutes ago, we brought you in
here to feed you tell you why you are detained
in here. Is that correct?
5 A-4559-14T3
D.L.: Hmm.
R.W.: Yes.
M.M.: All right. Is it true that we told you
. . . you are being charged with two counts
of felony murder, two counts of murder, one
count of robbery, one count of burglary, and
one count of possession of weapon from
unlawful purpose?
R.W.: Then . . . now I am going to explain to
you the reason you are being detained. You
killed two people.
D.L.: Right.
R.W.: You are a theft [sic]. You robbed other
people's house and you had a knife.
D.L.: Right.
R.W.: Is that correct?
D.L.: Right.
R.W. Yes.
M.M.: Okay. Is it also true at that time you
stated you wanted to talk now?
R.W.: Is it also true that at that time, you
stated you wanted to talk now?
D.L.: Right.
R.W. Yes.
M.M.: Okay. We explained to you that you
requested an attorney prior and that we were
no longer allowed to speak to you.
R.W.: We explained to you last night and asked
you if you wanted an attorney. You said you
6 A-4559-14T3
wanted one, so we were no longer allowed to
speak to you.
D.L. Yes.
R.W.: Yes.
M.M.: You then stated that you wanted to talk
without an attorney.
R.W.: Then you told us that you wanted to talk
without an attorney temporarily.
D.L.: Right.
R.W.: Yes.
M.M.: Is it your position now you still want
to talk without an attorney?
R.W.: So you still want to talk without an
attorney?
D.L.: Right.
R.W.: Yes.
Magliozzo again read the Miranda rights to Lin. Lin
acknowledges that the rights were accurately interpreted. Lin
advised that he wanted to speak with the officers without an
attorney. Lin gave a statement incriminating himself.
In Lin's statement, he said that he and Chen had taken the
bus to a house in Freehold "to steal things." Lin knew the family,
because he had worked at the family restaurant over a year earlier,
but had been fired. Once inside the house, they discovered a man
was there. Lin and Chen "threatened that person not to talk."
7 A-4559-14T3
Lin said that Chen insisted on looking for things to steal both
downstairs and upstairs in the house. Lin went upstairs. He
kicked in a door that was locked and found another person, a woman.
She started to yell. Lin stated he was "very nervous" and "didn't
know what [he] was doing." He killed the woman because he was
"afraid she was going to call the police." She was covered by a
blanket, but he "stabbed right through the blanket." He then went
downstairs and killed the man downstairs because the man had seen
them. Lin stated that Chen "helped me hold the guy [downstairs]
down."
Lin filed a motion to suppress his statement. He contended
that the Miranda warnings were not accurately translated on June
16, 2010. He contended that he should not have been interrogated
on June 17 because he had invoked his Miranda rights. Lin's
counsel argued there was a credibility issue about whether Lin had
initiated communication with the police on June 17 once Lin was
informed of the charges against him.
Lin's suppression motion was denied on May 10, 2013. The
trial court found that there was nothing inculpatory about the
first statement on June 16 because Lin invoked his right to an
attorney. However, Lin was subject to a custodial interrogation,
and Miranda warnings were necessary. The court found that the
following day the charges were read to Lin and that the police did
8 A-4559-14T3
not have to record this. The court also found that after Lin
invoked his right to counsel on June 16, he re-initiated
communications with the police on June 17. Lin said he did not
want an attorney anymore and wanted to talk without an attorney.
The court found both Magliozzo and Wei to be credible witnesses.
The trial court found that Lin "was adequately informed of
the substance of his constitutional rights and knowingly,
intelligently and voluntarily waived his rights before the
confession to the police." The court noted that Lin invoked his
right on the 16th so he "understood the difference between I want
to speak or I don't want to speak." None of the translation
inaccuracies occurred in the re-administration of Miranda. The
court found that under the totality of the circumstances, Wei's
"translation of the Miranda form satisfied the constitutional
requirement."
Lin pled guilty on January 8, 2014, to two counts of first-
degree murder and two counts of first-degree felony murder. As
part of the recommended sentence, Lin agreed to testify against
Chen and to tell the truth about what occurred. The prosecutor
advised "there have been no other promises between the defendant
and the State." However, during the plea hearing, the prosecutor
asked Lin a number of questions about the offenses. Defense
counsel objected to the extent of the prosecutor's questions
9 A-4559-14T3
because they had a lengthy Miranda hearing. Defense counsel
stated:
DEFENSE COUNSEL: I don't think it's
appropriate, and I've never seen this in the
context of a plea hearing for the prosecutor
to get into the specifics of the Miranda
hearing. That's an issue we've preserved for
appeal.
The court responded:
THE COURT: Okay. I understand. [Referring to
the prosecutor], if you want to ask another
question without referencing the Miranda,
because, again, it is something -- it is
preserved on appeal.
The prosecutor did not respond to the representation that Miranda
issues were preserved for appeal.
Lin was sentenced in accordance with the State's
recommendation.
On appeal, Lin raises the following issues:
POINT I. BECAUSE DEFENSE COUNSEL AND THE
JUDGE, AND APPARENTLY THE PROSECUTOR, ALL
UNDERSTOOD THAT DEFENDANT WAS PRESERVING THE
DENIAL OF HIS MOTION TO SUPPRESS HIS
STATEMENT, HE IS ENTITLED TO RAISE THE ISSUE
ON THIS APPEAL.
POINT II. THE TRIAL JUDGE ERRED IN DENYING
THE MOTION TO SUPPRESS DEFENDANT'S STATEMENT
BECAUSE THE AFFIRMATIVELY INCORRECT AND
MISLEADING TRANSLATION OF THE MIRANDA WARNINGS
TELLING DEFENDANT THAT HE COULD "HIRE" A
LAWYER AND THAT TALKING TO THE POLICE "WILL
HELP YOU," LEFT HIM UNABLE TO INTELLIGENTLY
WAIVE HIS RIGHTS.
10 A-4559-14T3
A. Advice that Defendant Could "Hire" A
Lawyer.
B. Advice that Defendant Could "Help" himself
By Talking to The Police.
POINT III. AFTER DEFENDANT HAD INVOKED HIS
RIGHT TO COUNSEL, THE POLICE OFFICERS
IMPROPERLY REINITIATED THE INTERROGATION BY
TRANSLATING THE CHARGES AGAINST HIM IN THE
FORM OF AN ACCUSATION, CAUSING HIM TO ADMIT
HIS RESPONSIBILITY FOR THESE OFFENSES PRIOR
TO THE RE-ADMINISTRATION OF THE MIRANDA
WARNINGS.
POINT IV. A REMAND FOR RESENTENCING IS
NECESSARY BECAUSE OF THE TRIAL COURT'S
INCORRECT FINDING AND WEIGHING OF THE
AGGRAVATING AND MITIGATING FACTORS.
II.
A.
"[A] guilty plea generally constitutes a waiver of all issues
which were or could have been addressed by the trial judge before
its entry." State v. Gonzalez,
254 N.J. Super. 300, 303 (App.
Div. 1992). "[A] defendant who pleads guilty is prohibited from
raising, on appeal, the contention that the State violated his
constitutional rights prior to the plea." State v. Crawley,
149 N.J. 310, 316 (1997). A motion to suppress evidence, however, is
automatically preserved. R. 3:5-7(d). Additionally, a defendant
may enter a conditional plea of guilty consistent with Rule 3:9-
3(f) that preserves the right to appeal. A conditional plea of
guilty requires "the approval of the court and the consent of the
11 A-4559-14T3
prosecuting attorney," must be "on the record" and regard an
"adverse determination of any specified pretrial motion." R. 3:9-
3(f). "If the defendant prevails on appeal, the defendant shall
be afforded the opportunity to withdraw his or her plea." Ibid.;
see State v. Davila,
443 N.J. Super. 577, 586 (App. Div. 2016).
In State v. Alexander,
310 N.J. Super. 348, 351 n.2 (App.
Div. 1998), we rejected "the State's argument that defendant
waived his right to appeal from [the outcome of his motion to
dismiss] by entering an unconditional guilty plea" given "the
prosecutor's apparent acquiescence in defense counsel's assertion
at sentencing that defendant intended to appeal from the order
denying his motion to dismiss the indictment." However, in Davila,
443 N.J. Super. at 586, we held that "defense counsel's casual
mention of 'all of the motions' was insufficient" to "satisfy the
requirement of judicial approval or constitute 'on the record'
acknowledgment of a particular motion."
Here, defense counsel stated that Lin preserved the Miranda
order for appeal; the court acknowledged that the issue was
preserved and the prosecutor appeared to have acquiesced. Given
this colloquy, we see no reason to preclude defendant from raising
the issue on appeal.
12 A-4559-14T3
B.
"Under Miranda, prior to any custodial interrogation, an
accused must be advised of the Fifth Amendment right to remain
silent and to have an attorney present during questioning." State
v. Chew,
150 N.J. 30, 61 (1997) (quoting Michigan v. Mosley,
423 U.S. 96, 103 (1975)). The warnings include:
that [the person] has the right to remain
silent, (2) that anything he says can be used
against him in a court of law, (3) that he has
the right to the presence of an attorney, and
(4) that if he cannot afford an attorney one
will be appointed for him prior to any
questioning if he so desires.
[State v. Nyhammer,
197 N.J. 383, 400 (2009)
(quoting Miranda,
384 U.S. at 479).]
"The fifth requirement is that a person must be told that he can
exercise his rights at any time during the interrogation." Ibid.
However, "[t]he burden is on the prosecution to demonstrate not
only that the individual was informed of his rights, but also that
he has knowingly, voluntarily, and intelligently waived those
rights, before any evidence acquired through the "interrogation
can be used against him." Id. at 400-01. See State v. A.M., __
N.J. Super. __, __ (2018) (slip op. at 17) (2018) (finding the
court "improperly shifted the burden of proof to defendant to
alert the interrogating officers about any difficulty he may be
having understanding the ramifications of a legal waiver").
13 A-4559-14T3
"Once an accused invokes the right to counsel, that right
must be 'scrupulously honored.'" Chew,
150 N.J. at 61. This
means that questioning must stop until counsel is available or
"unless the accused initiates further communication, exchanges,
or conversations with the police." Ibid. (quoting Edwards v.
Arizona,
451 U.S. 477, 484-85 (1981)). An "equivocal request for
an attorney is to be interpreted in a light most favorable to the
defendant." Id. at 63 (citing State v. Reed,
133 N.J. 237, 253
(1993)).
Here, the police first read Lin the Miranda warnings on June
16, 2010. Although Lin raises issues about the translation and
thus, the content of the warnings, when Lin appeared to ask for
an attorney, the officers properly terminated the interview as
they were required to do under Miranda. Lin was not questioned
further that night.
Lin challenges the translation of the Miranda warnings on
June 16. Although the Miranda card was read to Lin by Magliozzo,
when Wei translated the warnings he said that Lin had the ability
to "hire" an attorney, leaving out that if he could not afford
one, an attorney could be appointed for him. Wei later translated
that if defendant wants an attorney and cannot afford it, "we can
provide one for you," but omitted the portion about "prior to
questioning." When Magliozzo informed Lin that he could not speak
14 A-4559-14T3
with him until he decided if he wanted an attorney, Wei translated
"We can't talk to you until you decide if you want an attorney or
not" but then on his own added "[b]ut talking now will help you."
In State v. Mejia,
141 N.J. 475, 503 (1995), the Court
recognized "[t]he problem of communicating Miranda rights to non-
English-speaking defendants is important, particularly in a state
with so diverse a population." However, the rights do not have
to be read exactly. "Words which convey the substance of the
warning along with the required information are sufficient." State
v. Melvin,
65 N.J. 1, 14 (1974). "The essential purpose of Miranda
is to empower a person--subject to custodial interrogation within
a police-dominated atmosphere--with knowledge of his basic
constitutional rights so that he can exercise, according to his
free will, the right against self-incrimination or waive that
right and answer questions." Nyhammer,
197 N.J. at 406. Although
Wei's translation was not an exact rendering of Magliozzi's
reading, Lin nevertheless invoked his right to remain silent and
to ask for an attorney. We agree with the trial court that
defendant understood the difference between speaking and not as
reflected by the invocation of his rights.
On the next day, June 17, Wei informed Lin in Mandarin Chinese
of the charges against him, including two charges of first-degree
murder and two charges of first-degree felony murder. This was
15 A-4559-14T3
not videotaped. We agree with the trial court that reading the
charges to Lin did not constitute a custodial interrogation because
it was "not designed to elicit an incriminating response." See
State v. Cryan,
363 N.J. Super. 442, 452 (2003) (Miranda's
protection extends only to words or actions of police officers
that are "reasonably likely to elicit an incriminating
response."). "Inquiries incidental to the custodial relationship
. . . do not initiate further conversation concerning the
interrogation." Chew,
150 N.J. at 64.
Wei testified, however, that when the charges were read to
Lin, he asked to speak with them about the incidents from the day
before. When Lin reiterated this and that he no longer wanted a
lawyer, Lin was placed in an interrogation room so that his
statement could be recorded.
If an accused "'initiates further communication, exchanges,
or conversations with the police,' the police officer may continue
the interrogation in the absence of counsel." State v. Melendez,
423 N.J. Super. 1, 29 (App. Div. 2011) (quoting State v. Edwards,
451 U.S. at 485)). "This type of waiver requires the suspect to
'personally and specifically' initiate conversation." Id. at 30
(quoting State v. Burris,
145 N.J. 509, 519 (1996)). The State
also must prove that "the initiation constitutes a knowing,
16 A-4559-14T3
intelligent, and voluntary waiver of the accused's rights." Chew,
150 N.J. at 61.
The trial court found the officer's testimony credible that
Lin asked to speak with them without his attorney. We defer to
the trial court's factual findings on a motion to suppress unless
they were "clearly mistaken" such that appellate intervention is
necessary in "the interests of justice." State v. Elders,
192 N.J. 224, 244 (2007) (citations omitted).2 Wei's testimony
supported the finding that Lin initiated communication with the
officers about the murders, indicating a desire to speak with them
without his attorney.
Magliozzo re-administered the Miranda warnings with Wei
interpreting. Lin alleges the officers elicited a confession from
him by the accusatory manner in which the charges were reviewed
and also based on the translation errors from the day before.
We do not agree that Lin's responses at the outset of the
transcript constituted an admission to the charges. When read in
context, Wei's interpretation is giving Lin an overview of the
events that lead up to the interview which were not recorded. Lin
simply is agreeing with that.
2
Our review of "purely legal conclusions" is plenary. State v.
Goodman,
415 N.J. Super. 210, 225 (App. Div. 2010) (citation
omitted).
17 A-4559-14T3
We also do not agree that Wei's interpretation on June 16
tainted Lin's "knowing and intelligent" waiver of rights on June
17. Lin plainly understood that he could remain silent and ask
for counsel because he invoked those rights on June 16. We agree
with the trial court that in looking at the totality of the
circumstances, Lin was properly advised of his Miranda rights and
waived those rights on June 17 voluntarily, intelligently, and
knowingly before confessing to the police.
C.
We review the judge's sentencing decision under an abuse of
discretion standard. See State v. Fuentes,
217 N.J. 57, 70 (2014).
We discern no error by the trial judge in evaluating the
aggravating and mitigating factors, which were based upon
competent and credible evidence in the record.
The court found aggravating factors one, two and nine.
Aggravating factor one concerns "the nature and circumstances of
the offense, and the role of the actor therein, including whether
or not it was committed in an especially heinous, cruel, or
depraved manner."
N.J.S.A. 2C:44-1(a)(1). The judge considered
that the victims were stabbed repeatedly and suffered greatly;
many of the wounds were defensive. We disagree with Lin that the
judge erred by giving this substantial weight. Both victims were
stabbed over seventy times, in multiple parts of their bodies.
18 A-4559-14T3
Factor two concerns "[t]he gravity and seriousness of harm
inflicted on the victim including whether or not the defendant
knew or reasonably should have known that the victim of the offense
was particularly vulnerable . . . ."
N.J.S.A. 2C:44-1(a)(2). Lin
incredulously contends that "the record does not suggest that
either victim was particularly vulnerable or incapable of
resistance" when the evidence was that, while they each were being
stabbed seventy or more times, the male victim was bound hand and
foot and to the bed frame and the female victim was stabbed in bed
directly through the comforter that held her down.
Lin contends that the court should have accorded more weight
to mitigating factors seven and twelve and that the court should
have included mitigating factor nine.
N.J.S.A. 2C:44-1(b)(7), (9)
and (12). The court found mitigating factor seven ("no history
of prior delinquency or criminal activity") and twelve
(willingness "to cooperate with law enforcement authorities"), but
gave them little weight. This was appropriate on this record.
Although Lin had no criminal history, his first crime was a double
homicide. Lin testified against Chen, but that was in exchange
for a plea bargain.
Lin contends that mitigating factor nine should have been
found ("character and attitude of the defendant indicate that he
is unlikely to commit another offense").
N.J.S.A. 2C:44-1(b)(9).
19 A-4559-14T3
However, neither the report from Lin's clinical neuropsychologist
nor the letter from the pastor cited by Lin said that he was
unlikely to reoffend, offering only that the murders were committed
in a panic and that the pastor was impressed by Lin's "sincerity
and faithfulness." Thus, we find no abuse of discretion by the
trial court in its application or weighing of the aggravating and
mitigating factors.
Affirmed.
20 A-4559-14T3
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