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State v. Brown

July 10, 1995

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONALD BROWN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Approved for Publication July 10, 1995

Before Judge Shebell, Skillman and Kleiner. The opinion of the court was delivered by Kleiner, J.A.D. Shebell, P.j.a.d., Concurring.

The opinion of the court was delivered by: Kleiner

KLEINER, J.A.D.

Donald Brown was indicted for purposeful or knowing murder by his own conduct, contrary to N.J.S.A. 2C:11-3a(1) and (2) and other crimes. Tried to a jury as a capital case, defendant was convicted of non-capital murder, contrary to N.J.S.A. 2C:11-3a(1) (count one); theft, as a lesser-included offense of third degree robbery, contrary to N.J.S.A. 2C:15-1 (count three); possession of weapons under circumstances not manifestly appropriate for their lawful use, contrary to N.J.S.A. 2C:39-5(d) (count four); and possession of weapons with the purpose of using them unlawfully against another person, contrary to N.J.S.A. 2C:39-4(d) (count five). Defendant was acquitted of felony murder, count two, and robbery, count three. Defendant was thereafter sentenced on count one to a custodial term of fifty years with a thirty year period of parole ineligibility and a concurrent term of six months on count three. Counts four and five merged with the conviction on count one. An appropriate penalty payable to the Violent Crimes Compensation Board was imposed.

On appeal, defendant raises three points of error:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS SINCE DEFENDANT HAD A REASONABLE PRIVACY EXPECTATION IN THE SEARCHED PREMISES AND THE STATE FAILED TO ESTABLISH THAT A VALID CONSENT WAS GIVEN TO SEARCH THE BASEMENT ROOM OF THE APARTMENT BUILDING.

POINT II

THE TRIAL COURT SHOULD HAVE EXCLUDED THE ORAL STATEMENTS BY DEFENDANT WHICH WERE THE PRODUCT OF CUSTODIAL FUNCTIONAL INTERROGATION AND ADDITIONAL IMPERMISSIBLE QUESTIONING, NOT PRECEDED BY MIRANDA WARNINGS, AS WELL AS HIS SUBSEQUENTLY OBTAINED WRITTEN STATEMENT, WHICH RESULTED FROM A SINGLE CONTINUOUS INTERROGATION EVENT AND WAS TAINTED BY THE IMPROPERLY OBTAINED ORAL ADMISSIONS.

A. THE TRIAL COURT IMPROPERLY ADMITTED DEFENDANT'S ORAL STATEMENTS WHICH RESULTED FROM IMPERMISSIBLE UNMIRANDIZED CUSTODIAL FUNCTIONAL INTERROGATION AND ADDITIONAL UNMIRANDIZED DIRECT QUESTIONING.

B. THE TRIAL COURT IMPROPERLY ADMITTED DEFENDANT'S WRITTEN CONFESSION WHICH WAS THE PRODUCT OF A SINGLE CONTINUOUS INTERROGATION EVENT AND WAS TAINTED BY THE EARLIER IMPROPERLY OBTAINED UNMIRANDIZED ADMISSIONS.

POINT III

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIEW OF THE FUNDAMENTAL DIFFERENCES BETWEEN DEFENDANT AND HIS TRIAL ATTORNEYS (PARTIALLY RAISED BELOW).

We affirm.

On the morning of September 26, 1988, Fannie Hilton, age 80, who lived alone in a third floor apartment in the Orange Towers Apartment Building in Orange, New Jersey, was found by her adult daughter, Sylvia Hilton, lying on the floor in her apartment. She was bleeding and unconscious, her hands and feet were bound, and her nightgown and bathrobe were pushed up, exposing her buttocks. A hall rug was placed over her head. Blood-stained scissors were next to her body. When the victim's body was turned over, police found a brown-handled knife sticking out of her abdomen.

The victim's daughter lived in a basement apartment in the same building. She had telephoned her mother at 8:15 a.m. and talked with her briefly. At 9:00 a.m., Sylvia attempted to call her mother again, without success. Sylvia attempted another call at 9:10 a.m. When her mother again failed to answer the telephone, Sylvia went to her mother's apartment. Sylvia found the apartment unlocked, although it was her mother's habit to keep a deadbolt lock, a doorknob lock and a chain engaged while she was at home alone. On entering her mother's apartment and discovering her body, she immediately telephoned 911 and her mother's physician. On inspection, Sylvia found the apartment in disarray. Drawers were open, dining room chairs had been moved and a bathroom towel was found on one dining room chair. Her mother's body had been bound with scarves that had been removed from one drawer. Ten dollars had been removed from her mother's pocketbook.

Sylvia testified at trial that she saw defendant on the morning of the murder between eight and nine o'clock when she looked out her window, and thereafter near the elevator while en route to her mother's apartment. After she called 911, Sylvia went to the door of her mother's apartment. She observed defendant, who asked if he could be of help.

Detective William Combes arrived at the crime scene at 9:30 a.m. Combes learned from the building superintendent that defendant, the building porter, was the only other person who worked in the building. Combes spoke to defendant, and defendant agreed to accompany him to headquarters for routine questioning. At headquarters, Combes administered Miranda warnings, *fn1 and defendant acknowledged both orally and in writing that he understood his rights.

While Combes was at headquarters, the crime scene was further investigated by County Investigator James Gold. Gold learned from Sylvia Hilton of her mother's habit of keeping the door to her apartment locked. Gold concluded that the crime was probably committed by someone who had access to the building and who the victim knew. Sylvia Hilton advised Gold that she suspected defendant had committed the crime. Further inspection of the victim's apartment revealed what appeared to be sneaker footprints on both sides of the kitchen door. A portion of the apartment wall containing the footprints was removed for analysis.

Gold learned from the superintendent that there was a locked room in the building's basement used to store recycling material. The room was known as the "porter's room." Only the superintendent, defendant, and one other employee had keys to that room. Gold asked the superintendent if he would permit an inspection of the room. The superintendent indicated he had no objection, and the porter's room was unlocked. Gold discovered that the room was used for storing bundled newspapers, old refrigerators, countertops, and other items intended for recycling. The room also had a couch. Gold observed a towel, similar to the towels in decedent's bathroom, on the couch. He also observed fibers on the towel. He confiscated the towel for analysis.

During the initial investigation, the police learned that Richard Praitano, a building resident, saw defendant in the garbage room in the basement at 7:50 a.m. Elizabeth Gallo, another resident, saw defendant in the parking lot at 8:30 a.m. The superintendent heard defendant pulling garbage from the garbage chute at 9:20 a.m. Defendant normally worked from 8:00 a.m. to 4:00 p.m. Defendant told the superintendent that he arrived at work at 9:00 a.m. that day, as he was delayed by family troubles at home. During the day defendant complained of pains in his chest, he appeared to be sick, and he was upset.

The investigation also revealed that the victim had a continuing dispute with defendant. One of defendant's responsibilities was to maintain the building, particularly the garbage room. The victim had been complaining to defendant and the superintendent that the building was unclean, and that she had observed roaches and mice in the garbage room. The superintendent brought the victim's complaints to defendant's attention. Defendant expressed his dislike for the victim to the superintendent.

On September 30, 1988, defendant was asked to visit police headquarters a second time. Gold later testified that at the second interview defendant was a suspect, as defendant had given inconsistent information respecting the time of his arrival at work on the day of the murder, and as he was the only person known to be present in the building who was wearing sneakers on the day of the crime.

When defendant arrived for the second interview, he was advised by Gold that he was a suspect; however, he was not told of the basis for Gold's suspicion. Gold administered Miranda warnings and defendant acknowledged, both orally and in writing, that he understood his rights. Defendant gave a statement denying any involvement ...


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