On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Petrella, Baime and Villanueva. The opinion of the court was delivered by Baime, J.A.D.
[269 NJSuper Page 585] Following a protracted jury trial, defendant was acquitted of attempted murder (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3), but found guilty of first degree robbery (N.J.S.A. 2C:15-1), second degree aggravated assault (N.J.S.A. 2C:12-1b(1)), ten counts of theft (N.J.S.A. 2C:20-3; N.J.S.A. 2C:20-7; N.J.S.A. 2C:21-6c), and fourth degree uttering a forged instrument (N.J.S.A. 2C:21-1a(3)). The trial court merged all of the counts into the conviction for first degree robbery and sentenced defendant to an extended term of 60 years. As part of the sentence, defendant is to serve 22 1/2 years without parole eligibility. In addition, the trial court imposed a penalty of $10,000 payable to the Violent Crimes Compensation Board.
Defendant appeals, contending that (1) the police failed to scrupulously honor his assertion of the Fifth Amendment privilege against self-incrimination and the resulting statement should have been excluded, (2) the trial court erroneously denied his motion to suppress evidence, (3) the identification procedures employed by the police were impermissibly suggestive, (4) the trial court erred by deciding that his convictions would be admissible if he testified, (5) he was irremediably prejudiced by the State's intentional destruction of evidence, (6) his motion for a judgment of acquittal should have been granted, and (7) the sentence imposed was manifestly excessive. In his pro se supplemental brief, defendant claims that he was denied his right to a speedy trial. We find no error warranting a reversal of defendant's conviction or the sentence imposed.
On May 28, 1988, James Curran was brutally beaten and left for dead in his suburban home located in Colonia, New Jersey. The circumstances surrounding the vicious attack are not entirely clear. Curran's wife and daughter were away for the weekend when the incident occurred and his devastating injuries left him without any memory of the events leading up to the commission of the crime. Earlier in the day, Curran had lunch with his longtime friends and neighbors, Adelle and William Gillis. He was invited to return to the Gillis's house the following day for a barbecue.
On May 29, 1988, Mrs. Gillis awoke at approximately 7:00 a.m. and, as was her custom, went to the bedroom window to view the morning. Her attention was immediately drawn to a man who was exiting Curran's house from the back door. The man initially walked toward the driveway, but suddenly returned to the house. Shortly thereafter, Mrs. Gillis observed the man drive away in Curran's white Ford Taurus. Gillis initially thought the person who departed the residence was Curran's son, who was 23 at the time. Her suspicions were apparently aroused because she commented to her husband that she was not certain the individual was
Curran's son. She nevertheless dismissed the incident as inconsequential.
The Gillises later became concerned when Curran failed to appear for the scheduled barbecue. Mr. Gillis received no response at the door and thus entered Curran's house. After receiving no reply to his calls, Gillis wandered into Curran's den and discovered him lying naked on the floor covered with blood. The police were immediately called. Detective John Jorgensen responded shortly thereafter and found Curran "on the floor, unconscious[,] . . . badly beaten about the face." At trial, Jorgensen testified that Curran's "wrists were swollen" and he "was naked [with] . . . blood emitting from his mouth, . . . nose, . . . ears and . . . head." According to Jorgensen, Curran's head "looked like a pumpkin."
Several items were taken by the police from the Curran residence, including a Dewars Scotch bottle, a Seagram's 7 bottle, and a paperback book entitled First Handbook for Loving Men. Three empty Budweiser beer cans were recovered from the kitchen and two were found on the dining room table. Another empty beer can was found in the den.
The bedroom and den had jewelry strewn about and blood spots on the walls. The house was in "shamble[s]." In the bedroom, an open jewelry box was found on the bed, dresser drawers were open and items were scattered on the floor. All of the silverware was missing. The residence was dusted for fingerprints and Curran's automobile was reported stolen in the national and state computer system, the NCIC.
On May 31, 1988, a white male entered Mayfair Supermarkets in Edison and had the store manager, Michael Fiorentino, cash a paycheck in the amount of $786.74 made payable to James F. Curran. The individual presented Curran's driver's license as identification. Fiorentino subsequently identified defendant as the person for whom he cashed the check.
On June 5, 1988, State Trooper Robert Wilk was patrolling the Garden State Parkway when, at approximately 5:10 p.m., he observed a white Ford Taurus parked on the right hand shoulder near mile post 16. Defendant was seated in the driver's seat, apparently sleeping. Wilk observed an empty brandy bottle between defendant's legs and a beer bottle on the passenger side. After rousing defendant, Wilk asked for his driver's license. In response, defendant produced a license and registration bearing the name James Curran. After smelling alcohol on the defendant's breath and administering a balance test, Wilk placed him under arrest for driving while intoxicated. Defendant was handcuffed and placed in the trooper's patrol car where he was advised of his constitutional rights. At that point, Wilk received an NCIC teletype, noting that the Ford Taurus should be held for latent fingerprints. The automobile was later towed to the State Police barracks in Bass River.
Defendant was taken to the Avalon substation where he was processed on a charge of driving while intoxicated and again apprised of his constitutional rights. After refusing to sign an acknowledgment that he had been advised of his rights, defendant was asked 14 questions from an "Alcohol Influence Report." Defendant responded to the first question concerning his occupation, noting that he was a hairdresser. He offered no response to any of the remaining questions. At some point during the processing, Wilk examined the driver's license and registration that defendant had given him. Believing that defendant looked no more than 30 years old, Wilk questioned him about the 1929 date of birth which appeared on the license. Defendant replied that he was Edward Bohuk.
Wilk then received a telephone call from his supervisor indicating that the automobile defendant had been driving belonged to James Curran and that the suspect was "wanted for aggravated assault and theft." Wilk then exclaimed that the Ford Taurus was a stolen automobile. As Wilk explained at the Evid. R. 8 hearing, this "was not a question" but merely "a statement immediately
made after [he] learned the vehicle was stolen." Wilk testified that he did not "anticipate a response" and that his statement was "spontaneous." In any event, defendant quickly replied that he "knew the [Ford Taurus] had probably been stolen" and he "had gotten [it] from a friend at a party the previous evening." Wilk then examined the ...