Argued January 22, 1998 Before Judges Shebell, D'Annunzio and Coburn. On appeal from Superior Court of New Jersey, Law Division, Mercer County.
The opinion of the court was delivered by: Coburn, J.A.D.
 Defendant, Byron Brooks, after a trial by jury, was convicted on count one of murder, N.J.S.A. 2C:11-3a(1) and -3a(2); on count four of third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d; and on count five of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He was acquitted on the remaining counts of the indictment, which charged felony murder and attempted aggravated sexual assault. The court merged count four into count one, and sentenced the defendant to prison terms of thirty years without parole on count one and five years, to be served consecutively, on count five.The convictions were based on the June 6, 1993, murder of J.S. The murder occurred in the victim's Trenton apartment, where she lived with her four-month old child who was left to fend for himself after the killing. Almost two days passed before the victim and the child were discovered. The defendant confessed. Although at trial he claimed that another person committed the crimes, he does not contend the verdict was against the weight of the evidence. His appeal is limited to these five unpersuasive technical arguments:
THE JUDGE ERRED IN ADMITTING DEFENDANT'S STATEMENT WHICH WAS TAKEN IN VIOLATION OF THE BRIGHT-LINE RULE OF STATE V. HARTLEY.
THE JUDGE'S JURY CHARGE ON THE ISSUE OF DEFENDANT'S STATEMENT TO THE POLICE FAILED TO PROPERLY GUIDE THE JURY'S EVALUATION OF THE CONFESSION AND DEFENDANT'S CONVICTIONS MUST BE REVERSED. (PARTIALLY RAISED BELOW).
A. The Judge's Failure to Specifically Instruct the Jury on the Issue of Corroboration Requires Reversal.
B. The Failure to Charge That the Jury Must Find the Statement Credible Beyond a Reasonable Doubt Requires Reversal.
THE JUDGE'S CURATIVE CHARGE REGARDING THE PROSECUTOR'S OPENING STATEMENT WAS CONFUSING AND INEFFECTIVE AND DEFENDANT'S CONVICTION MUST BE REVERSED.
THE JUDGE'S LIMITING INSTRUCTION REGARDING DRUG USE WAS INADEQUATE, INEFFECTIVE AND PREJUDICIAL TO THE DEFENDANT AND DEFENDANT'S CONVICTIONS MUST BE REVERSED.
THE JUDGE'S CHARGE ON PASSION/PROVOCATION MANSLAUGHTER WAS CONFUSING AND DEFENDANT'S CONVICTION FOR MURDER MUST BE REVERSED. (PARTIALLY RAISED BELOW).
On the afternoon of Saturday June 5, 1993, the victim, four of her cousins, and the defendant gathered in the victim's apartment to watch television, talk, and use drugs. By 8:30 p.m., everyone left except the victim and her child. Later that night, the defendant returned and obtained the victim's promise to have sexual relations in return for crack cocaine. She was a cocaine addict. The defendant purchased the cocaine and again returned to the apartment. After he and the victim smoked the cocaine, they began to engage in sexual relations on the couch. However, before he was able to consummate the act, the victim demanded more drugs or money. When he declined, she told him to leave. They began to fight and she scratched him. He became upset and punched her in the face. She ran to the kitchen and grabbed a butcher knife with a wooden handle. He ran after her, and grabbed a steak knife with a black plastic handle. As they faced each other, he stabbed her in the chest. They fell on an unassembled baby crib that had been propped up against a wall between the couch and the kitchen, landing on top of the crib mattress. The defendant "flipped" and continued stabbing her. He recalled stabbing her at least eight times. The medical examiner indicated that there were "innumerable" stab wounds of the neck and chest and "a throat slashing." After the murder, the defendant wiped blood from his face and neck with a wash cloth which he later threw away near his house. He dumped the contents of the victim's purse to create the illusion of a robbery, got dressed, and fled, leaving the child on the sofa. It would appear that the murder occurred about 2:45 a.m. since at that time a neighbor, who resided in the apartment below that of the victim, heard noises from above which sounded like furniture being pulled back and forth across the victim's apartment floor. The noise lasted about twenty minutes.
On the morning of Monday June 7, 1993, the building manager entered the victim's apartment with a pass key so that, as previously agreed, he could install a new toilet. He discovered the victim's body and immediately called the police. The paramedics arrived first and they found the child under the cushions of the couch. When the police arrived, they found that there were no signs of forced entry into the apartment.
After speaking with the building manager, the police went to the home of the victim's mother. Conversation with the mother led them to contact the victim's brother, F.S., who told them of the defendant's presence in his sister's apartment on Saturday afternoon and evening. The police located the defendant at his home. He agreed to come down to the police station, where, ultimately, he admitted his complicity and provided the police with detailed information entirely in accord with the circumstances revealed at the scene of the murder.
Defendant's first contention is that the trial court erred in admitting into evidence, after a pre-trial hearing, his oral and written confessions. He argues that his confessions were illegally extracted by the police after he had asserted his right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), because they did not readminister the Miranda warnings as required by State v. Hartley, 103 N.J. 252 (1986) and State v. Harvey, 121 N.J. 407 (1990), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991). In mounting his argument, the defendant ignores State v. Martini, 131 N.J. 176 (1993), which clarified the holding in Harvey and dictates affirmance of the decision of the trial court on this point.
The facts leading up to the confessions are undisputed. The police met the defendant at his home and brought him to the police station with his consent. During the ride, he seemed eager to speak and asked questions about the case. Although he was not yet a suspect, the police read him his Miranda rights and the defendant said he understood them. He made statements indicating his presence at the victim's home on June 5 and the sharing of drugs with the victim and the others. He said he left when the drugs ran out, went home, got $10 from his mother, bought some crack cocaine, smoked it, and went to sleep.
Upon arrival at the police station, at around 7:00 p.m., he was again administered his Miranda rights. He expanded somewhat on his story, but made no admissions of significance. He was calm, cooperative and responsive during the interview. When the police officer noticed fresh scratch marks on the defendant's face and neck, he asked the defendant to remove his sweat shirt. The defendant complied, and the officer noted more scratch marks on defendant's chest and shoulder. The defendant claimed he received the scratches during a ten-second fight with a drug dealer. The officer noted a red substance on the sweat shirt.
Around 8:45 p.m., the defendant permitted the police to photograph his scratch marks and consented to a search of his home. The search turned up nothing of evidential value. The defendant gave the police his sweat shirt, and they returned to the police station. At about 11:30 p.m., the defendant said he was tired and wanted to go home, but that he would come back to speak further with the police the next morning at 11:00 a.m. One of the police officers drove the defendant home.
The next day, June 8, 1993, the police picked defendant up at his home and brought him to the police station. He was calm. At about 12:25 p.m., a detective readministered defendant's Miranda rights. Another detective advised defendant that he was a suspect in the case. The defendant assured that detective that he fully understood his rights and wished to continue speaking with the police. He was polite, cooperative, and responsive to questions, but he continued to claim that he did not kill the victim. During this interview the detective pressed the defendant about the blood on his sweat shirt. The defendant became nervous, his hands and leg began to shake, he began to sweat heavily, and he moved around quickly in his chair. Finally, he asked the detective why he did not just charge him with the murder and "get it over with." The detective responded that he wanted the defendant to tell him the truth. The defendant asked if he could "think about it for awhile." The detective agreed, offered to get the defendant something to eat or drink, which he declined, and they took a break.
Approximately twenty minutes later, at about 2:50 p.m., the detective resumed the questioning. The defendant again assured the detective that he was willing to waive his rights and continue talking to him. Since the interview made no progress, the police decided after a few minutes that another officer, Deputy Chief Joseph Constance, should conduct the questioning.
Constance showed defendant his executed Miranda rights form, and the defendant again said he understood his rights and was willing to waive them and speak with the police. Constance reminded the defendant that he was the last person to see the victim alive, that his previous stories contained discrepancies, and that there was probably a transfer of blood, hairs, and fibers at the crime scene. Constance then asked the defendant where the baby was when he left the crime scene. The defendant replied that the baby was on the couch cushions. Constance asked if the defendant cared for the welfare of the baby since he had been left alone for about thirty hours. The defendant then gave the response upon which he relies for his claim that he asserted his right to remain silent. As related by Constance, the defendant "said if he could have a phone call to his mother, he would then tell me the truth, he would then tell me what occurred."
Constance advised the defendant that he "certainly would allow him to call his mother if we then can resolve this matter." Another detective took the defendant to a room where, in the presence of that detective, the defendant spoke briefly to his mother. He said that he had "fucked up again," that he was going away for a long time and did not want her or his brother visiting him while he was in prison. After a brief pause, he ended the conversation by saying, "I love you, too." The call was placed at 3:15 p.m.
The defendant was then brought back to Constance, and after a few minutes, the defendant gave a detailed oral confession and agreed to give a formal statement. At 3:45 p.m., Detective Sergeant Michael Salvatore began the formal interview by saying this to the defendant:
You have been previously advised of your constitutional rights and stated that you understood your rights. You have also stated that you wish to speak with us at this time in regard to this investigation. We are now going to ask you a series of questions. Will you answer us truthfully and to the best of your knowledge?
The defendant responded that he would and provided a five page typewritten statement, which he ...