On appeal from Superior Court of New Jersey, Law Division, Essex County.
O'Brien, Havey and Conley. The opinion of the court was delivered by Conley, J.s.c., temporarily assigned.
Following a jury trial, defendant was convicted of one count of second degree aggravated arson, in violation of N.J.S.A. 2C:17-1a(1) and (2) (Count 1); two counts of felony murder, in violation of N.J.S.A. 2C:11-3a(3) (Counts 2 and 3); two counts of first degree knowing and purposeful murder, in violation of N.J.S.A. 2C:11-3a(1) and (2) (Count 4 and 5); two counts of first degree attempted murder, in violation of N.J.S.A. 2C:5-1 and 2C:11-3 (Counts 7 and 8); and twenty counts of second degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1) (Counts 9 to 28).
Prior to sentencing, Count 1 was merged with Counts 2 and 3. Count 2 was merged into Count 4, and Count 3 was merged into Count 5. A life term with a 30 year period of parole ineligibility was then imposed on Count 4 and a consecutive life term with a 30 year period of parole ineligibility was imposed on Count 5. A consecutive 20 year term with a 10 year period of parole ineligibility was imposed on Count 7 and a concurrent 20 year term with a 10 year period of parole ineligibility was imposed on Count 8. On Counts 15 and 22, two 10 year terms with a 5 year period of parole ineligibility were imposed, consecutive to the sentences on Counts 4, 5 and 7. Concurrent 10 year terms were imposed on Counts 9 to 21 and 23 to 28. A $30 Violent Crimes Compensation (VCCB) penalty was imposed on each of the non-merged counts. Defendant's aggregate term, thus, totalled two life terms plus 40 years with a total of 80 years parole ineligibility and a total VCCB penalty of $720. A motion for sentence reduction was denied.
The critical facts are as follows. At approximately 3:00 a.m. On February 12, 1988, a woman known as "Waheeda," met defendant and asked him to purchase some cocaine for her. Defendant agreed and went to a known drug area. On the way, he saw Michael Jeter. Defendant approached Jeter and asked him if he knew where to buy cocaine. Jeter replied yes, introduced defendant to Artie Webster, a third-floor resident of a rooming house located at 501 21st Street, who sold cocaine to defendant.
After purchasing the cocaine, defendant followed Jeter to a room on the second floor of the building. There, along with Wilson and Jerome Thomas, defendant and Jeter took some of the cocaine that they had purchased. A short time later defendant and Jeter left the room. In the hallway, Jeter and defendant got into an altercation during which Jeter took a fifty-dollar bill from defendant. Defendant knocked Jeter down and Jeter called out for help to Thomas. Thomas responded to Jeter's call for help and pushed defendant against the wall, holding a knife to his throat. Defendant shouted, "I'm coming back to burn this mother fucker down to kill you all." He then again said, "I'll be back to kill you mother fuckers and burn the building down." Jeter and Wilson left the building after defendant made these threats and Jerome Thomas eventually released his grip on defendant, who in turn left the building and returned home.
At home, defendant told co-defendant and others that he had been robbed. Defendant and co-defendant*fn1 then proceeded back to the rooming house at 501 21st Street. As they entered the dwelling through the front door at approximately 3:30 a.m., they rushed past Eunice Daniels, who was leaving the building. Ms. Daniels observed that defendant and co-defendant had angry looks on their faces and that defendant had one of his
hands under his jacket.*fn2 Ms. Daniels walked down the street after she left the building. When she was about one-half block away, defendant and co-defendant ran past her. Just after that, Ms. Daniels heard the sound of windows breaking and saw black smoke billowing out of the building. A few days after the fire, defendant approached Ms. Daniels and told her "whatever you do, don't say nothing because that was some serious shit."
In order to escape the inferno, about seventeen residents of the three story dwelling jumped from windows of their rooms. Many sustained serious injuries and required hospitalization. After the fire was extinguished, investigators discovered the charred body of Tyrone Pickett in the rubble. Several days later, while demolishing the remains of the structure, the burnt remains of an unidentified individual were found. The undisputed medical evidence presented by the State demonstrated the deaths of these two individuals were caused entirely by the fire.
Pursuant to an investigation of the fire, Joseph F. Lake of the New Jersey State Police Arson Unit concluded that the fire originated in the first floor stairwell of the building from a liquid accelerant, such as one gallon or less of gasoline, being poured and ignited by a match or lighter and producing a rapid and severe fire attack. Work boots seized from defendant's apartment tested positive for gasoline. All other clothing seized from the apartment tested negative. Specimens of charred wood flooring and charred baseboard wood taken from the right side of the front entrance of the building tested positive for gasoline. A specimen of charred wood and plaster
taken from the left side of the front stairwell also tested positive for gasoline.
Defendant testified at trial. He acknowledged that sometime after 3:00 a.m. on February 12, 1988, Michael Jeter introduced him to Artie Webster and that he purchased cocaine from him. According to defendant, both he and Jeter paid a couple of dollars toward a half vial of cocaine. Defendant admitted that he returned to a room on the second floor of the building at 501 21st Street with Jeter, Wilson and Thomas. According to defendant, he took a pinch of cocaine, determined that the drug was no good and decided to leave. Defendant asserted that when he left the room and started down the stairs Jeter followed him and dragged him back up the stairs. He grabbed Jeter and they struggled with each other. Jeter called out to Thomas for help, Thomas ran into the hallway with a knife in his hand, and held it next to defendant. While Thomas held the knife to defendant, Jeter removed a fifty-dollar bill from his pocket and then left; Thomas released defendant, they talked a little and defendant went home.
Defendant acknowledged that he returned to 501 21st Street shortly after the altercation, accompanied by co-defendant, his brother-in-law. Defendant stated that he got a knife from his house and brought it to the building. He admitted that he entered the rooming house, and that as he did so he passed Eunice Daniels. He said co-defendant left the area and he himself did not stay in the building when he heard scuffling and voices inside. When he left the rooming house, he heard a noise alongside of the building from the direction of a nearby alleyway. Minutes later he heard screaming and saw smoke. He denied that he had gasoline with him or that he started the fire.
On appeal, defendant raises the following points.
I. THE TRIAL COURT ERRED IN ALLOWING STATEMENTS OF THE DEFENDANT, AS THEY WERE THE PRODUCT OF CUSTODIAL INTERROGATION.
II. THE TRIAL COURT'S INSTRUCTIONS TO THE JURY SERVED TO GREATLY PREJUDICE DEFENDANT THEREBY AFFECTING HIS RIGHT TO A FAIR TRIAL.
III. THE TRIAL COURT ERRED IN ADMITTING PHOTOGRAPHS OF DEAD BODIES AS THEIR PROBATIVE VALUE WAS SIGNIFICANTLY OUTWEIGHED BY THEIR INFLAMMATORY POTENTIAL.
IV. THE SENTENCE IMPOSED UPON THE DEFENDANT WAS MANIFESTLY EXCESSIVE AND MUST BE MODIFIED BY THE REVIEWING COURT.
Defendant contends that the context in which he made statements to police after his arrest constituted custodial interrogation in violation of his right to counsel and to remain silent. He claims that the police questioned him and showed him pictures to elicit incriminating statements. He also claims he was ill at the time, had been handcuffed to a chair for 5 1/2 hours and was told by Sergeant Edgar, after his Miranda warnings, that he would get an attorney at arraignment.
Before police may initiate questioning, the accused must be informed of his constitutional rights, particularly his right to counsel and to remain silent, and the consequences of waiving those rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Custodial interrogation must cease upon even an equivocal indication of a desire to assert those constitutional rights. Id.; State v. Johnson, 120 N.J. 263, 281, 576 A.2d 834 (1990). The admissibility of statements made after the accused has asserted his rights depends on whether the police have "scrupulously honored" those rights by ceasing interrogation. Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S. Ct. 321, 325-26, 46 L. Ed. 2d 313, 320-21 (1975); State v. Fuller, 118 N.J. 75, 79, 570 A.2d 429 (1990). Where an accused asserts the right to counsel, all interrogation must cease until a lawyer has been provided.
Such interrogation includes "any words or actions on the part of the police (other than those normally attendant to arrest
and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 308 (1980). However, while police-initiated custodial interrogation may not be resumed without re-administering the Miranda warnings once a defendant has exercised the right to silence, State v. Hartley, 103 N.J. 252, 267, 511 A.2d 80 (1986), the same is not true of defendant-initiated conversations or spontaneous statements. State v. Fuller, 118 N.J. at 85, 570 A.2d 429.
A Rule 8 hearing was conducted to determine the admissibility of defendant's statements, Evid.R. 8(3), during which the following evidence was presented. On February 16, 1988, at 6:00 a.m., the police executed a search warrant for defendant's apartment. They seized clothing from that location and arrested defendant. After orally advising him of his rights under Miranda, the police transported defendant to the headquarters of the Irvington Police Department. At headquarters, Sergeant Edgar escorted defendant to his desk and handcuffed him to a chair. He then advised defendant of his Miranda rights utilizing a written Miranda form. Defendant acknowledged that he understood his rights, but indicated that he did not want to make a statement to the police. Accordingly, defendant refused to sign the waiver portion of the Miranda form. Sergeant Edgar wrote "refused" in the waiver portion of the form and then started to complete a "5A" form to determine defendant's eligibility for representation by a public defender. While Sergeant Edgar worked at completing the "5A" form, defendant advised him that he would not only help Sergeant Edgar fill ...