On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 02-07-0936.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Grall and Chambers.
Defendant Gary Fletcher appeals from a final judgment of conviction and sentence. The grand jurors for Mercer County returned an indictment charging defendant and co-defendants Corey Jones and Arthur Simms as accomplices in eighteen counts alleging crimes committed when four men entered a residence on Lakeside Boulevard in Hamilton Township. The fourth participant, C.K., was charged as a juvenile. The charges against defendant were tried to a jury. C.K. and Simms plead guilty and testified on behalf of the State at defendant's trial. The State was unable to locate Jones. Defendant did not testify at trial, but statements he made to a detective investigating the crimes were admitted into evidence.
The case requires us to consider whether defendant's self-incriminating statements were voluntary or induced by an officer's promise to allow him to speak "off-the-record." Defendant made the self-incriminating statements after he came to police headquarters upon an officer's promise that he could make an "off-the-record" statement. At the station, a second officer presented defendant with a form that included the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966) and a waiver of the rights the warnings are designed to protect. The officers did not retract the promise or explain the conflict between defendant's waiver and an "off-the-record" statement. Relying on State v. Pillar, 359 N.J. Super. 249, 272-73 (App. Div.), certif. denied, 177 N.J. 572 (2003), we conclude that defendant's statements were induced by the promise and not freely and voluntarily given.
[At the court's direction, its recitation of the procedural history has been abbreviated.]
The jury convicted defendant of burglary while armed with a deadly weapon, a crime of the second degree, contrary to N.J.S.A. 2C:18-2a-b(2) (count one); three counts of robbery while armed with a deadly weapon, a crime of the first degree, contrary to N.J.S.A. 2C:15-1a-b (counts two, three and four); three counts of aggravated assault by pointing a firearm under circumstances manifesting extreme indifference to human life, a crime of the fourth degree, contrary to N.J.S.A. 2C:12-1b(4) (counts five, six and seven); simple assault, contrary to N.J.S.A. 2C:12-1a(1) (as a lesser offense included in aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count eight)); three counts of terroristic threats in the third degree, contrary to N.J.S.A. 2C:12-3b (counts twelve, thirteen and fourteen); possession of a firearm for an unlawful purpose in the second degree, contrary to N.J.S.A. 2C:39-4a (count fifteen). The judge sentenced defendant to a term of imprisonment for an aggregate of eleven years, eighty-five percent of the term must be served without possibility of parole and the term is to be followed by a five-year term of parole supervision, N.J.S.A. 2C:43-7.2.
On May 4, 2002, Simms, Jones, C.K. and defendant entered Daniel Zapico's house on Lakeside Boulevard through the unlocked front door. Robert King and Adriene Bush were visiting Zapico.
Zapico, King and Bush gave similar but not wholly consistent accounts of the events. According to Zapico, Simms had a shotgun, told him to sit down and asked for money. When Zapico said he did not have any money, Simms swung the shotgun at his face. Zapico turned to avoid the blow and was struck in the back of the head. Next, Simms directed Zapico to call Montervino and tell him to come to the house. He warned Zapico that if he let Montervino know that defendants were there, "they would kill everyone." Simms took between $10 and $60 and drugs that were on the table. As Jones left the living room to look around the house, he handed his gun to defendant. Jones took cigarettes and about $400 from a back bedroom. When he returned, defendant handed him his gun. Zapico described defendant as the "least vocal" of the men and staying "pretty stationary" in the living room during the entire incident. Zapico recognized defendant from prior contacts with him.
According to King, the men ordered everyone to get on the floor, started looking around the house and were switching guns back and forth. He claimed that Jones put the gun to Zapico's head and took the "stuff" from the table. He did not see defendant take anything. He described defendant and Jones as friends.
Bush said she really could not see and was not sure what was taken. She did not see if defendant was holding a gun, but she remembers him asking for Montervino.
Danielle King arrived while the defendants were in the home. She saw defendant and two other men; one of them had a gun. The defendants left the house when Danielle King arrived.
Simms testified on behalf of the State, and he told the jurors that Jones came up with the plan to rob Montervino. Defendant was there when Jones told Simms about the plan, and they were all together when they picked up the guns. Defendant did not have a gun but could see that Simms had one. Simms went through the door first; defendant was "second or third" behind him.
C.K. also testified on behalf of the State. He said that Jones told him about his plans for Montervino and told them to pick up their guns when they got to Lakeside Boulevard. Defendant was right there when Jones gave the command. When ...