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State v. Blakney

January 24, 2006

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
BREANE STARR BLAKNEY, DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-11-1806.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 28, 2005

Before Judges Conley, Weissbard and Sapp-Peterson.

Defendant, Breane Starr Blakney, appeals her conviction for murder, second degree aggravated assault, third degree child abuse, and endangering the welfare of a child. We affirm defendant's convictions. We also affirm the sentence imposed on the murder and aggravated assault charges but vacate the sentences imposed on the child abuse and endangering the welfare of a child convictions.

The convictions arise out of the tragic death of defendant's six-month-old son, S.B., on September 18, 1999. The cause of death was multiple blunt force injuries due to battered child syndrome.

On October 20, 1999, defendant was charged in Hudson County Indictment No. 1806-11-99 with first degree murder, N.J.S.A. 2C:11-3 (count one); second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third degree child abuse, N.J.S.A. 9:6-1 and 9:6-3 (count three); and endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count four).

On May 10 and May 24, 2000, a hearing was conducted to determine the admissibility of taped statements defendant made to the police. On June 6, 2000, the trial court ruled the statements were admissible.

The trial took place between January 15 and January 30, 2002. On February 1, 2002, the jury found defendant guilty on all counts.

On May 24, 2002, defendant's motion for a new trial was denied and she was subsequently sentenced. Defendant received thirty years imprisonment with thirty years of parole ineligibility on count one, murder; five years imprisonment on count three, child abuse; and ten years imprisonment with an eighty-five percent No Early Release Act (NERA) parole disqualifier on count four, endangering the welfare of a child. The court merged the conviction on count two, aggravated assault, with the sentence imposed on count four. All the sentences were run concurrently.

The evidence presented at trial, if credited, disclosed the following. On September 14, 1999, at approximately 3:30 a.m., defendant brought S.B. to the Jersey City Medical Center (JCMC) Emergency Room because of persistent vomiting. S.B. was examined by Dr. Victor Uduaghan. He noted that S.B. appeared to be sleepy, had a muscular rash, and had a scar on his abdomen. He also found that S.B. did not seem to be dehydrated. S.B. was also examined by Dr. Andrew Sapiro, who diagnosed him as being overfed. The hospital observed S.B. for approximately an hour and twenty-five minutes, during which time he did not vomit.

S.B. was sent home with instructions for defendant to decrease feeding and to continue giving him Pedialyte.

When defendant returned home with S.B., she changed his diaper and gave him a bottle. He vomited. Approximately two hours later, defendant gave S.B. Pedialyte, which he also vomited. She again gave him Pedialyte an hour later, which he was able to retain. Defendant called S.B.'s pediatrician, Dr. Carmelita Malalis, and left a message on her answering service. Dr. Malalis denied receiving a phone call. However, testimony by a representative from the doctor's answering service confirmed defendant called the doctor to report that her son's eye would not close, his arm would not move, he was unable to keep anything down and he was six months old.

Later that morning, defendant's friend, Miriam Jones, came to see how S.B. was doing. Jones testified that S.B. was calm, like a baby that wasn't feeling well. She also testified that he had "crust" in his eye as if he had a cold. Jones offered to take defendant and S.B. to her pediatrician, which she did after arriving home from work. While at the office, the pediatrician called an ambulance. The ambulance arrived at approximately 5:30 p.m. and the technicians, Michael Carrig and Jennifer Fragel, found S.B. unconscious, unresponsive, and in marked respiratory distress. Carrig testified that S.B. had one dilated and one small pupil, which indicated swelling of the brain. The technicians then took S.B. back to JCMC.

S.B. was treated by Dr. Isabel Belem, the physician in charge of the Pediatric Intensive Care Unit (PICU). She testified that S.B.'s right pupil was wide open and the left pupil was very small. She also testified that S.B. was lethargic and that his eyes were not reacting to light in the proper way. Dr. Belem stated that she noticed several external injuries, including old burns and scars on his chest and arms, an older lesion on his right ear, bruises on his lower abdomen, a lesion on his left foot and its big toe, and other superficial lacerations.

At approximately 8:00 p.m., a CAT scan was performed on S.B. revealing increased intracranial pressure and herniation syndrome. Dr. Belem concluded that S.B. had suffered a severe head injury. She also conducted a full body X-ray, which revealed several rib fractures and an old fracture on S.B.'s lower left leg. S.B. was pronounced dead on September 18, 1999, at approximately 10:40 a.m.

Prior to S.B.'s death, Dr. Belem testified that she questioned defendant about the injuries found on S.B., but defendant was not forthcoming. Defendant, however, did tell Dr. Belem that the burn on S.B.'s chest and bruises on his arms were caused when an upright vacuum fell on S.B. when he pulled on the cord. Defendant told Dr. Belem the leg fracture happened during day care.

Regarding the burn, Dr. Belem testified that a normal four-month-old baby does not have the motor skills or strength to grab a cord or pull a vacuum over. Dr. Belem also testified about shaken baby syndrome. She stated it is a condition that develops in babies when they are shaken by the head or chest. Dr. Belem explained a young child's neck muscles are not developed enough to fully control head movement. Thus, when the child is shaken, the movement of the head, especially acceleration and deceleration, also causes movement to the brain which begins to bruise or hemorrhage from hitting the inside of the skull.

Dr. Belem testified that within a reasonable degree of medical certainty, the injuries behind the ear were consistent with those a child would suffer if he had been grabbed by the ears and shaken. She stated most people who shake babies do so out of frustration or anger at whatever is happening with the baby at that particular moment.

After S.B. was admitted to PICU, JCMC contacted the Hudson County Prosecutor's Office Sex Crime/Child Abuse Unit (SAVA). Sergeant Honey Spirito and Investigator Ryan Hadfield responded to the call and were assigned to conduct the investigation. The officers proceeded to the hospital. While waiting to speak to the doctors, who were still intubating S.B. and trying to get him on life support, they introduced themselves to defendant. She agreed to accompany the officers to their office, which was located next door to the medical center, for a taped interview. Spirito testified defendant was advised of her Miranda rights prior to taping her statement and that a pre-tape interview was conducted.

In her statement, defendant discussed S.B.'s various injuries and hospital visits. She told the officers S.B. was first brought to Bayonne Hospital because of a white discharge around the circumcision of his penis. He then was brought back to Bayonne Hospital for his fractured leg. Defendant stated she was told he could have been born with the fracture or that someone could have dropped him. Defendant next discussed the burns. She stated that she was vacuuming and S.B. was in his car seat near the vacuum. As she went to get a bottle, S.B. grabbed the vacuum and pulled it down on himself. She stated that the cord was still in J.B.'s hand when she found him. Defendant never took S.B. to the hospital because he was already scheduled for a doctor's visit the following month. When questioned further as to why she did not take S.B. to the hospital, defendant explained she was scared the Department of Youth and Family Services (DYFS) would take S.B. from her.

Defendant told the officers many people had cared for S.B. the week preceding his September 14, 1999, hospitalization. On Monday, Tuesday, and Wednesday, a friend babysat S.B. while defendant was at work. Defendant was with S.B. all day Thursday and Friday. Defendant's father watched S.B. on Saturday from approximately 2:30 p.m. to 11:30 p.m. On Sunday, S.B.'s biological father, Courtney Hymes, watched him from 8:30 a.m. to midnight. Hymes' mother brought S.B. home, which is when defendant first noticed S.B. was acting differently.

The next day defendant left S.B. with her boyfriend, Rolando Morrison, at about 7:00 p.m. and went to work. She said she called at about 7:30 p.m. to check on S.B. and was told he threw up but that he was sleeping. Defendant arrived home around 11:00 p.m. Morrison told defendant that when he tried to play with S.B., the baby did not respond as he usually did.

Defendant stated she then bathed S.B. and placed him in the bed next to her. Defendant indicated she did not sleep but kept watching S.B. all night. She would call his name and S.B. would open both eyes, look at her, but then "go right back to sleep." Defendant stated things did not feel right to her so she got up and took S.B. to the hospital at 3:30 a.m. She explained that she took S.B. to JCMC because she heard it was a better hospital for children and because she was afraid Bayonne Hospital would call DYFS. She gave her name as Tina Smith and S.B.'s as Sean Smith so DYFS would not become involved.

Defendant told Spirito and Hadfield she did not notice any bruises, cuts, or scratches on S.B. after Hazel, her father, and Hymes had watched him. She indicated she noticed the marks on S.B.'s feet after Morrison had watched him. When she asked Morrison about the marks, he told her that he had seen them when he changed S.B.'s socks and was going to ask her what they were. Finally, defendant stated she did not know what caused the injuries to S.B.'s ears but that it may have been caused by peeling because S.B. had peeled in the past. The interview concluded with defendant acknowledging the statement was true and voluntary.

Following defendant's statement, Spirito and Hadfield continued their investigation. They spoke with the people defendant had mentioned and on September 15, 1999, took pictures at defendant's home. In their judgment, there were numerous inconsistencies and lies so they decided to pick defendant up on September 17, 1999, to conduct another interview. At this point, defendant had become a target of the investigation. Although defendant was not arrested or in handcuffs, Spirito acknowledged they had decided to change the tone of the second interview and "take it from an interview to [an] interrogation to see why she's lying." Defendant was brought to the SAVA office and was advised of her Miranda rights. Spirito testified that at the time of the interrogation, defendant was cooperative, had eaten, and was wearing different clothes from when she was interviewed three days earlier. The jury received copies of the transcript of the interview and the tape was played. The tape was approximately twelve minutes long.

Prior to the recorded statement but after defendant signed the Miranda waiver form, Spirito and Hadfield conducted a pre-tape interview which lasted approximately an hour and twenty minutes. Spirito discussed with defendant the inconsistencies in defendant's statement. During the pre-tape interview, Spirito discussed various ways in which the injuries to S.B. could have been sustained, at which time defendant informed them that it was possible the injuries occurred from the way in which S.B. was placed in his car seat. Spirito testified that during the pre-tape interview, defendant told them she had dropped S.B. into his car seat numerous times. Defendant also demonstrated how she had dropped S.B. into his seat from waist-high. Spirito indicated that according to defendant's demonstration, she did not throw S.B. into the seat.

The transcript of the taped interrogation reveals that defendant was again advised of her rights and the waiver that she had previously signed. Defendant indicated that she understood her rights and the waiver, and wished to speak to the investigators. Defendant was given an oath and swore to tell the truth. When asked if she knew how S.B. might have sustained some of his injuries, defendant stated:

Um, now that I'm talking to ya, and you've explained things to me, and I've told you things. I'm aware that the injuries that my son gotten could of been by me just trying to place him nicely into his car seat but not knowingly that I placed him a little bit hard.

A lot anger with my father, by being mad that Courtney not there, by happening to know I got to go work the next day or knowing I don't have a babysitter, knowing I'm trying my best and I don't know who else I can turn to what else I could so, not purposely.

I could have been angry at the fact that I couldn't get a minute to myself for a few minutes. But, it's na, never directly I was mad at him. I could of been mad at his father, I could been by Rolando not responding to me, I could of mad at plenty different things my father yelling at me for something different, my job talking about if I don't come to work I won't have a job it's different things but it's never directly towards [S.B.] that I was angry with.

During this questioning, defendant again stated she did not know what caused the marks on S.B.'s ears, but she speculated she might have caused them from drying his ears too roughly.

After defendant gave the second statement, she was arrested and charged with aggravated assault, child abuse, and endangering the welfare of a child. After S.B.'s death, the murder charge was subsequently added.

Dr. Kenneth Hutchins performed S.B.'s autopsy on September 19, 1999. Dr. Lyla Perez, an expert in forensic pathology, testified as to the autopsy results. She stated that the autopsy revealed a crusted abrasion on the back of the ear, a healed burn mark on S.B.'s abdomen and the lower part of his chest, two healed skin lesions consistent with burns on the right forearm, a healing abrasion or laceration on the cuticle of the first left toe, and marks on the middle of the foot. Although S.B. had no visible marks on his scalp, there were small and scattered bruises on the top of his head. The skull was not fractured, but the right side of the brain had a subdural hematoma or bleeding. Additionally, bleeding was found in the right cerebral hemisphere and hemorrhages on the optic nerves and eyeballs indicating that the baby had been shaken. Finally, there were hemorrhages on the armpit area and chest wall, several healing rib fractures, several recent rib fractures, and a healing leg fracture.

Dr. Perez testified she agreed with the opinion expressed by Dr. Hutchins in his report that within a reasonable degree of medical certainty, S.B. died from "multiple blunt-force trauma due to battered-child syndrome," and that the death was a homicidal death. On cross-examination, Dr. Perez explained that the use of the terminology "battered-child syndrome" instead of "shaken baby syndrome" in Dr. Hutchins' report was a matter of semantics and that in the death certificate that Dr. Hutchins prepared, shaken baby syndrome was mentioned in the description of how the injuries occurred. Dr. Perez further testified that in her opinion, within a reasonable degree of scientific and medical certainty, there had only been one fatal brain injury and it had occurred within one or two days prior to S.B.'s admittance into the hospital on September 14, 1999.

There was also testimony from Dr. Carmelita Malalis, a pediatrician who had seen S.B. on two occasions for vaccinations. On S.B.'s July 8, 1999, visit to Dr. Malalis, the doctor noticed a burn scar on the baby's abdominal quadrant and right arm. Dr. Malalis testified that when she asked defendant how S.B. had obtained the burns, "she told me that she doesn't know, you know, how the boy sustained those injuries because at the time the boy was with the father but that's -- but that the boy was brought to Medical Center for treatment." Dr. Malalis also testified that she had spoken to an emergency room doctor on July 26, 1999 in regard to S.B.'s leg injury (distal tibia and fibula fracture) and had noted that the emergency room doctor and the orthopedic doctor did not think the injury appeared to be the result of abuse.

Latonia Finley, a friend of defendant who babysat S.B. and had known her for approximately ten years, testified that defendant had told her a vacuum had caused S.B.'s burn and that defendant had told her that S.B.'s broken leg was the result of her placing him on her lap wrong, but later told her that it was the result of her putting his shoe on wrong. She also testified that "[y]ou could tell she loved him. But she was very impatient. She didn't have no patience."

Debra Hymes (also called Yvonne), S.B.'s paternal grandmother, testified that when she went with Marcia LaCue to pick up S.B. for their first visit, defendant told her that the burn S.B. had on his stomach had occurred at the Prodigy Day Care Center. However, later on defendant told her it had been caused by a vacuum cleaner. Hymes testified that when she picked up S.B. for their second visit, defendant told her S.B.'s leg injury occurred when "the nurse at the hospital laid him down the wrong way and broke his leg when she was giving him a X-ray." She also testified that defendant told her that DYFS was handling it and that because of the injury, she was going to sue the nurse or the hospital. According to Hymes, defendant also mentioned she was going to sue the day care center where S.B. had been burned. Hymes indicated she did not notice any new injuries during her third visit with S.B., which occurred in August. She also stated she offered to baby-sit S.B., but defendant declined because she did not want to give Courtney more visitation time.

LaCue confirmed defendant told her and Debra Hymes that S.B. sustained his burn at the day care center.

Joseph Palella, the director and owner of the Prodigy Learning Center, a day care center located in Bayonne, testified that S.B. was never enrolled at the center.

Defendant called Syed Shah, Miriam Jones (also referred to as Marcia or Mimi), Denatrice Patten, Anna Towarewicz, Rolando Morrison, Vera Coples, and John Gilmore as witnesses on her behalf. Shah was the general manager of the KFC where defendant worked and testified that defendant brought S.B. to the KFC once or twice and appeared happy to have a baby, and that according to payroll records, defendant worked on September 13, 1999.

Patten testified she had known and been friends with defendant since high school in 1994 and that she saw defendant a few times a week after S.B. was born. Patten further testified that she saw defendant with S.B. and described the manner in which defendant acted towards S.B. as "very loving, caring; she showed a lot of respect; she was a good mother." Patten explained she thought defendant was a good mother because "[s]he took care of him. He was always fed, clean, happy. He was never sad, nothing like that. And I also trusted her with m[y children]." Patten testified she never saw defendant get angry at S.B., strike him, or act in an abusive way towards him. On cross, Patten testified that defendant told her that Rolando had been with S.B. when the vacuum cleaner fell and burned S.B.

Towarewicz testified she was a switchboard operator and performed answering service duties for doctors, including Dr. Malalis, S.B.'s pediatrician. She testified she took a message from defendant on September 14, 1999, at 10:13 a.m. regarding S.B.'s condition, that the doctor did not return her beeps, that she called defendant, who indicated Dr. Malalis had not called her, and that she had delivered the message to Dr. Malalis.

Morrison, a drug dealer who was incarcerated at the Bordentown Youth Correction Facility at the time of the trial, testified he had known defendant for six years and that they had "a little involvement," "a relationship, basically," "I wouldn't say [she was my girlfriend], but, you know, yeah," "[s]he was my partner," "[s]exual partner." Morrison denied knowing S.B., but then admitted he had seen him. He proceeded to testify he had been sexual partners with defendant in September of 1999 and had babysat S.B. "[o]nce or twice." Morrison testified the prosecutor's office interviewed him twice in connection with S.B.'s death; once on September 15, 1999, and later in August 2000 (also referred to as the August 2001 statement). He testified that on the evening of September 13, 1999, he babysat S.B. and was "[g]etting my rest in." He testified defendant only called once during the evening. However, he conceded that in his statement to the investigators on September 15, 1999, he stated she was calling him every five or ten minutes. When defendant returned home, Morrison left the apartment and went to deal drugs.

Morrison next saw defendant and S.B. at some point during the early morning hours when she came looking for him. Morrison testified that when defendant found him, "[s]he said something, something was wrong with the baby and she was scared. She didn't want to take the baby to the hospital." Morrison denied defendant asked him what he had done to S.B.

When asked if he had ever picked up S.B., Morrison stated "sometimes." When questioned further as to how he would do that, Morrison responded, "It was basically how any male would treat a child." He explained he picked up S.B. "[l]ike a baby" and from under S.B.'s armpits. Morrison told the prosecutor's office he witnessed defendant pick up S.B. from his crib by his head on one occasion. Morrison acknowledged he gave an earlier statement to the prosecutor's office where no reference to this incident was made. According to Morrison, he was trying to protect defendant.

Morrison also testified that when defendant returned from work on the night of September 13, 1999, they had a "discussion" after he was beeped. Defendant thought it was another woman and did not want him to go out.

Morrison indicated that when he was incarcerated, defendant visited him and they exchanged letters. He found out that Gilmore and defendant were having an affair and acknowledged that he wrote letters to defendant containing threatening language. He claimed the threatening language was simply a figure of speech and that he never harmed defendant. He admitted hitting her once while in the visiting area of the prison, but maintained it was just a "tap," noting they were surrounded by correction officers, so it could not have been "big." Morrison also testified defendant was a habitual liar.

On cross, Morrison indicated he often stayed at defendant's place, but he went to his home to change. He testified he gave defendant money to buy things. Morrison denied breaking S.B.'s leg. According to Morrison, defendant told him S.B.'s burn occurred at the day care center and that she broke S.B.'s leg while she was putting on his shoe. At one point, defendant asked him if he had ever hurt S.B. He responded, by letter, asking why would he hurt S.B., as he was a father himself.

Morrison also testified about his relationship with Gilmore, how Gilmore was angry with him, and how they got into a fight while both were incarcerated in the same institution.

Coples testified that she worked with defendant at KFC before S.B. was born and that she became friends with her. She testified on direct that she visited defendant at her home after S.B. was born and that Rolando lived there at the time. However, on cross, Coples testified that the last time she went to defendant's apartment was in April of 1999, and afterward only saw S.B. when defendant brought him to visit at the KFC in Journal Square where Coples worked. Coples testified that "[defendant] treated him good. She made sure, you know, he eat and he had clean clothes and she made sure he had everything that he needed." She described defendant's demeanor at the hospital on September 14, 1999 as "[v]ery upset, crying, um, coming to me crying, telling me, um, something is wrong with the baby."

Gilmore, a convicted drug dealer incarcerated at Northern State Prison at the time of the trial, testified he met defendant through Morrison, and that Morrison was living with defendant around the time of S.B.'s hospitalization. He stated in the early morning hours of September 14, 1999, he saw defendant carrying S.B. and looking for Morrison. When Morrison approached, Gilmore overheard defendant ask Morrison "what happened to her son, what he did to her son?" Gilmore indicated he went to the hospital with Morrison, defendant and S.B. in a car driven by his friend. After dropping off Morrison, defendant and S.B. at the hospital, he returned to the area he had just left. Gilmore testified that he asked Morrison whether he had "something to do with" S.B.'s death and Morrison told him he had caused the injury to S.B.'s leg when "him and [defendant] was playing and he had picked her up and threw her on top of [S.B.] by accident." Morrison also told Gilmore he had been with S.B. when the vacuum fell on S.B. causing the burn.

On cross, Gilmore conceded he had a "beef" with Morrison over drug money. Gilmore gave Morrison money to bring to his lawyer, but Morrison did something else with the money. Gilmore testified this made him angry. He also testified he got into a fight with Morrison while in prison. Gilmore denied having an affair with defendant and said Morrison was "[l]ying" if he had said that.

Defendant did not testify.

On appeal, defendant presents the following arguments for our consideration.

POINT I

THE TRIAL COURT ERRED IN ADMITTING BLAKNEY'S SEPTEMBER 17, 1999, TAPED STATEMENT INTO EVIDENCE BECAUSE IT WAS INVOLUNTARILY GIVEN, AND BECAUSE BLAKNEY ALLEGED THAT DURING A PORTION OF THE INTERROGATION, WHICH WAS NOT ELECTRONICALLY RECORDED, SHE WAS VERBALLY ABUSED AND PSYCHOLOGICALLY COERCED INTO ADOPTING A VERSION OF EVENTS THAT WAS FED TO HER BY HER INTERLOCUTORS (PARTIALLY RAISED BELOW).

POINT II

BLAKNEY SUFFERED EXTREME PREJUDICE FROM THE COURT'S FAILURE TO SEVER THE MURDER COUNT FROM THE COUNTS WHICH INVOLVED PRIOR ACTS OF CHILD ABUSE THAT WERE UNRELATED TO THE MURDER. IN THE ALTERNATIVE, BLAKNEY'S MURDER CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT DID NOT PROPERLY INSTRUCT THE JURY ON THE PERMISSIBLE USE OF THE PRIOR BAD ACTS EVIDENCE (NOT RAISED BELOW).

POINT III

THE PROSECUTOR'S TRIAL TACTICS GROSSLY EXCEEDED THE BOUNDS OF PROPRIETY, THEREBY DEPRIVING BLAKNEY OF A FAIR TRIAL (NOT RAISED BELOW).

POINT IV

BLAKNEY WAS DENIED HER RIGHT TO JURY UNANIMITY ON THE AGGRAVATED ASSAULT COUNT WHERE THE STATE FAILED TO ALLEGE SERIOUS BODILY INJURY WITH PARTICULARITY, AND WHERE THERE WAS EVIDENCE OF SEVERAL SEPARATE AND DISTINCT INJURIES, ALL OF WHICH WERE ARGUABLY SERIOUS (NOT RAISED BELOW).

POINT V

BLAKNEY'S CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD MUST BE REVERSED WHERE THE TRIAL COURT FAILED TO PROVIDE THE JURY WITH THE DEFINITION OF "KNOWINGLY" -- THE REQUISITE MENTAL STATE FOR THAT OFFENSE (NOT RAISED BELOW).

POINT VI

THE TRIAL COURT ERRED IN FAILING TO MERGE BLAKNEY'S CONVICTIONS FOR CHILD ABUSE AND ENDANGERING THE WELFARE OF A CHILD (NOT RAISED BELOW).

We conclude the errors alleged in Points IV and V are without sufficient merit to warrant discussion in a written opinion and therefore confine our discussion to the remaining points and the State's cross-appeal. R. 2:11-4(e)(2).

I.

Defendant contends the statement she gave to SAVA on September 17, 1999, was involuntary and a product of psychological coercion.

Two witnesses testified at the suppression hearing. Sergeant Spirito testified on behalf of the State while defendant testified on her own behalf. Following the hearing, the trial judge found that the statement had "remarkable clarity" and that it was given without coercion. She stated:

The court has had the opportunity to listen to both of the tapes. The court has also had the opportunity to read the text of the tapes and to hear the testimony of Miss defendant.

Certainly the court would be aware, and it would not be unlikely that Miss Blakney certainly at the time of the taking of the second statement, . . . . [w]ould have certainly had little or no sleep. Would have also had an emotional crisis occurring throughout this period of time.

The court must decide whether in fact that was of such a magnitude to have caused her, number one, to be easily coerced, to put her into a mindset that would have then resulted in her answering questions inappropriately, not correctly, not truthfully, answering questions with answers that were given to her by somebody else and on and on.

If you listen to the two statements, interestingly enough, Miss Blakney does not sound very different except at the end of tape two in which she certainly does cry and does have an emotional few moments which are certainly understandable.

She answers the questions, I believe, in both instances with remarkable clarity. And under the circumstances, I do not feel after reading and listening that there was any attempt by members of the Prosecutor's Office to coerce her and nor any attempt by them to put words into her mouth.

Clearly when they were asking questions and there was some hesitation with regard to some of the answers what was done on a few occasions was to suggest variable scenarios. It appears both from the text and from her tone of voice on the tape that she picked up on those variable scenarios and in some instances chose one that may have fit what her answer was going to be or in some cases didn't choose any of them or corrected the Prosecutor's investigator and said something entirely different or something similar, but not the same.

So the idea that, of coercion here, I think is misplaced. Yes, she was tired. Yes, I am sure she was emotionally strained, but then, again, is not every statement that's taken under these circumstances after a person is arrested and after a person has had some sort of a traumatic event? I mean, I can't think of any statements that would not have built within them some nervousness, some strain, some emotional output by the person who's giving the statement.

We are dealing in the criminal law here. We are dealing with scenarios. Many, many instances that occur, either you take the statements from people who have been alleged victims. We take statements from people who are going to be charged with crimes and they are never without stress in my opinion.

So, if we would use that as a criteria for whether something would be voluntary or not voluntary or knowing or not knowing, I feel that we would probably eliminate all statements. I don't think that is what the case law says.

It is clear that the State can use a statement like this against a defendant, whether that defendant testifies or not, as long as it is voluntary, it is knowing, it was not coerced, she was not unduly influenced.

And, in fact, in this particular case was given her full Miranda Rights. Not once, more than once, was certainly made aware under the circumstances that she was being questioned, anything that she said would be used and could be used against her. She was given the opportunity to have an attorney and on and on.

And in my opinion Miss Blakney knew what she was saying and what she was doing and the emotional aspects, as I said before is real.

Yes, I do believe that and I am sure the Jury will as well. But under the circumstances there is nothing involuntary.

Nothing coercive or nothing of an undue influence that I can gleam from the statement either by reading it or by hearing it.

In reviewing the results of the Miranda hearing, we defer to the credibility determinations of the trial judge. State v. Locurto, 157 N.J. 463, 474 (1999). We may not "weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997).

The State must prove the voluntariness of any statement with proof beyond a reasonable doubt. State v. Cook, 179 N.J. 533, 552 (2004) (citing State v. Bey, 112 N.J. 123, 134 (1988) (Bey II)).

Although the use of psychologically-oriented techniques to conduct custodial interrogations is not inherently coercive, a court must look at the totality of the circumstances to determine whether the statement given was the product of a knowing, voluntary waiver of the right against self-incrimination or "derived from 'very substantial' psychological pressures that overb[ore] the suspect's will." Cook, supra, 179 N.J. at 562-63. Relevant factors to consider in making this determination include the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved. State v. Galloway, 133 N.J. 631, 654 (1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047-48, 36 L.Ed. 2d 854, 862 (1973); State v. Miller, 76 N.J. 392, 402 (1978)).

While the September 17, 1999, interview was less congenial than the September 14, 1999, interview, applying the Galloway factors, the record does not support a finding that the nature of the interrogation caused defendant's will to be overborne resulting in a statement that was the product of substantial psychological pressures. Cook, supra, 179 N.J. at 563.

Defendant was nineteen years old at the time she gave the statement. She was a graduate of Bayonne High School and had attended Berkeley College for two months where she took marketing courses. She was a supervisor at Kentucky Fried Chicken. She acknowledged receiving Miranda warnings prior to giving a formal statement, that she understood the questions presented and understood where and why she was being questioned. The judge noted that defendant's demeanor in the taped statements was the same on both September 14, 1999, and September 17, 1999, notwithstanding defendant's complaint during the latter questioning that she was tired and that an unidentified officer spent approximately fifteen minutes yelling at her while the tape recorder was off. Thus, the record of the suppression hearing, coupled with the judge's credibility determination, does not support defendant's contention that her statement was the product of impermissible psychological coercion. We therefore conclude the trial judge did not err in her ruling that defendant's September 17, 1999, statement was admissible.

In addition, defendant contends we should adopt the holdings of the Alaska and Minnesota Supreme Courts and find that the entire custodial interview must be electronically recorded for any part of the interview to be admissible. See State v. Scales, 518 N.W.2d 587 (Minn. 1994); Stephan v. State, 711 P.2d 1156 (Alaska 1985). We disagree. Our Supreme Court has previously declined to adopt a similar rule. Cook, supra, 179 N.J. at 559-60.*fn1

II.

Defendant next contends that evidence of defendant's prior abusive acts against S.B. would have been inadmissible under N.J.R.E. 404(b) if the murder count had been tried separately; consequently, she suffered extreme prejudice from the trial court's decision to join the murder charge with the other offenses. Alternatively, defendant argues that the trial court did not ...


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