March 14, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES T. COOKS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-01-0296.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2007
Before Judges Wefing, C. S. Fisher and Yannotti.
Defendant James T. Cooks and William D. Reese (Reese) were charged in a Camden County indictment with murder, N.J.S.A. 2C:11-3a(1) or (2) (count one); conspiracy to commit murder, N.J.S.A. 2C:5-2 (count two); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); and unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four). Defendant was additionally charged with possession of a weapon by a person not permitted to possess the same, N.J.S.A. 2C:39-7b (count five). Reese also was charged as a person not permitted to have a weapon, N.J.S.A. 2C:39-7b (count six). Defendant and Reese were tried separately.
At defendant's trial, the State presented testimony from Marisol Cortez (Cortez), who stated that around 7:00 p.m. on February 26, 2002, she met James Biddle, Jr. (Biddle), while she was standing with her sister on the porch of a residence on South 24th Street near Mickle Street in Camden. Biddle was known as "Duck" and he was observing Randall Williams (Williams) selling drugs across the street. Biddle walked over to Williams and took seven bags of heroin from him. Biddle told Cortez that he was going to sell the drugs because he needed money.
Cortez warned Biddle that there was "going to be some stuff now" because Williams would "get the owner of the drugs . . . ." According to Cortez, Biddle sold the drugs and then walked toward a nearby liquor store. Cortez saw Biddle return to the block about twenty minutes later. She saw defendant and Reese. They walked up to Biddle, took off their hoods, and shot Biddle "six, seven times, maybe even more." Biddle later was taken to a hospital, where he died as a result of the gunshot wounds.
Williams testified that he was selling drugs on the corner of 24th Street and Mickel Street around 7:00 p.m. on February 26, 2002. Biddle approached him and said that he should leave the corner and stop selling drugs or he would be "deal[t] with." Biddle pulled out a gun and took money and drugs from Williams. After his encounter with Biddle, Williams called defendant, who was one of his "managers," and informed him of what had occurred.
Williams said that about twenty minutes after he called defendant, he saw defendant and Reese. Their facial expressions indicated to Williams that they were there "to deal with the situation." Williams observed defendant and Reese approach Biddle, who was on a porch with two females. Defendant and Reese shot defendant. Williams said that Biddle did not "pull anything out." He said, "It happened so fast, so it couldn't have been -- there [were] no words."
Investigator Jeffrey W. Long (Long) of the Camden County Prosecutor's Office responded to the scene, and later questioned Cortez at Camden City's Police Administration Building. After speaking with Cortez, Long thought that defendant might have information about the shooting. Defendant was found and brought to the Police Administration Building. Long spoke with defendant. Long asked defendant if he knew why he was there and defendant replied, "Duck." Defendant then was informed of his rights under Miranda.*fn1 Defendant waived his rights and agreed to give a taped statement.
Defendant admitted that he shot Biddle but stated that he did so in self-defense. Defendant asserted that Biddle had walked up to him and pulled a gun on him. Defendant claimed that he grabbed Biddle's wrist and the gun went off. Defendant said that he ran with the gun in his hand and threw the weapon away in a garage several blocks away. The gun was later recovered in a vacant garage but there were no fingerprints on the weapon. Investigator James Joyce, of the State Police Ballistics Unit, testified that the bullet specimens recovered from the victim came from two weapons, one of which was the recovered revolver.
Dr. Robert Segal (Segal) performed the autopsy on Biddle. Segal testified that the autopsy revealed five gunshot wounds:
1) an entrance wound over the left clavicle; 2) a superficial bullet wound on the right side of the chest; 3) a wound that entered the back left buttock/thigh area; 4) a "through-and-through" gunshot wound in the right leg; and 5) a superficial wound in the lower portion of the right buttock. Segal found "no evidence of gunpowder or any evidence of close-range fire." He opined that the weapons were probably no closer to the target than two or three feet. Segal said that the cause of Biddle's death was the "combined effect" of the five gunshot wounds.
Defendant was found not guilty of murder as charged in count one, but guilty of aggravated manslaughter. Defendant was found not guilty on count two, conspiracy to commit murder, and guilty of the weapons offenses charged in counts three and four. After the jury's verdict on these charges, defendant pled guilty to count five, certain persons not to possess weapons.
At sentencing, the judge merged count three with count one and sentenced defendant to a twenty-five year term of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 Defendant was sentenced to a concurrent five-year term on count four, with a two-and-one-half-year period of parole ineligibility. On count five, the judge sentenced defendant to a consecutive term of seven years, with five years to be served without parole. Appropriate fines and penalties also were imposed.
Defendant appeals and raises the following contentions:
I. THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT ERRRED IN ADMITTING THE DEFENDANT'S TAPE RECORDED STATEMENT INTO EVIDENCE.
A. THE TRIAL COURT FAILED TO ARTICULATE THE STANDARD OF PROOF IT APPLIED IN ADMITTING THE DEFENDANT'S STATEMENT INTO EVIDENCE.
B. THE DEFENDANT WAS NOT ADVISED OF HIS TRUE STATUS AS A SUSPECT IN THE SHOOTING DEATH OF JAMES "DUCK" BIDDLE.
C. THE POLICE ENGAGED IN IMPROPER SOLICITOUS CONDUCT.
II. THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE IRRELEVANT AND EMOTIONAL TESTIMONY BY BERDINA BIDDLE DEPRIVED THE DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).
III. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).
A. THE PROSECUTOR IMPROPERLY EXPRESSED HER PERSONAL OPINION AS TO THE "TRUTHFULNESS" OF THE STATE'S WITNESSES['] TESTIMONY (NOT RAISED BELOW).
B. THE PROSECUTOR MISREPRESENTED THE STATE'S BURDEN OF PROOF BEYOND A REASONABLE DOUBT (NOT RAISED BELOW).
IV. THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY ON HOW TO ADDRESS THE CREDIBILITY OF RANDALL WILLIAMS AND MARISOL CORTEZ (NOT RAISED BELOW).
V. THE AGGREGATE CUSTODIAL SENTENCE OF THIRTY-TWO (32) YEARS WITH TWENTY-SIX (26) YEARS AND THREE (3) MONTHS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY v. WASHINGTON AND STATE v. NATALE.
A. IMPOSITION OF A SENTENCE IN EXCESS OF THE STATUTORILY AUTHORIZED TERM OF TEN (10) YEARS ON THE DEFENDANT'S CONVICTION FOR AGGRAVATED MANSLAUGHTER ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.
B. IMPOSITION OF A SENTENCE IN EXCESS OF THE THEN-PRESUMPTIVE TERM OF TWENTY (20) YEARS FOR AGGRAVATED ASSAULT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY v. WASHINGTON AND STATE v. NATALE.
C. THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION ON COUNT FIVE CONSECUTIVE TO THE SENTENCE IMPOSED ON COUNT ONE.
We have carefully considered the record in light of the contentions advanced by defendant. We are convinced the arguments raised in Points II, III, and IV are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We address the arguments advanced by defendant in Points I and V.
Defendant argues that the judge erred by admitting his taped statement into evidence. We disagree.
At the suppression hearing, Sergeant Martin Devlin (Devlin) of the Camden County Prosecutor's Office stated that defendant had been identified as a person who might have information about the Biddle shooting. At about 4:00 a.m. on February 27, 2002, Devlin went with Detective Jose Torres, Sergeant Jeff Frampton, and another detective to a residence on Maryland Street in Camden, where it was believed that defendant could be located.
Defendant answered the door and let the officers in. Devlin told defendant that the officers were investigating a shooting and said that he hoped defendant "could help us out." Devlin asked defendant to come with them to police headquarters and, according to Devlin, defendant did not have any problem in doing so. Defendant got dressed and the officers transported him to the Police Administration Building. Defendant was not handcuffed and he was not asked any questions about the shooting at his residence or in the car. According to Devlin, it took about five minutes for the officers to travel to the police station.
Defendant was brought to the detective bureau. He was seated alone in the waiting area. Long introduced himself to defendant and brought him into the interview room. Long testified that defendant was not sleepy and he was conscious of his surroundings. Long asked defendant whether he knew why he was there and defendant responded "about [D]uck." Long immediately informed defendant of his Miranda rights by reading out loud the prosecutor's "Statement of Rights Form." Defendant signed the form, indicating that he understood his rights, and desired to waive those rights and give a statement. Defendant signed the form at 4:43 a.m.
Long asserted that defendant appeared to understand his rights when they were read to him. Defendant did not delay when responding to questions. According to Long, defendant said that he did not want an attorney and did not state that he wanted to remain silent. Long stated that he made no promises to defendant in return for his statement.
Long also stated that he did not coerce defendant to answer his questions with any threats or actions. Long said that, to the best of his knowledge, defendant gave his statement voluntarily and at no point did he refuse to answer any questions or refuse to answer without an attorney being present. Furthermore, Long offered defendant breaks during the questioning. In addition, defendant declined food and drink. According to Long, defendant did not appear tired during the questioning and never stated that he needed to stop.
In our view, the record supports the judge's finding that defendant was not in custody when the officers went to his home and asked if he would come to the detective bureau to help in the investigation. Defendant was not handcuffed at home or when he was driven to the Police Administration Building. At the detective bureau, defendant was left in a public waiting room.
Although other detectives were present at the time, defendant was not told he could not leave. Thus, the record does not show that there was any "significant deprivation" of defendant's "freedom of action." State v. Stott, 171 N.J. 343, 365 (2002) (quoting State v. P.Z., 152 N.J. 86, 103 (1997)). Because defendant was not in custody when he was at home, in the police car, or when he first arrived at the Police Administration Building, the investigators were not required at that point to inform defendant of his Miranda rights.
We note that when defendant informed Long that he knew he was there to be questioned about the shooting of "Duck" Biddle, Long informed defendant of his Miranda rights. Defendant did not provide his taped statement until after defendant signed the waiver form. We are satisfied that based on this evidence, the judge correctly found that defendant had been properly informed of his Miranda rights and defendant's statement was given after a knowing and intelligent waiver of his rights.
Defendant argues that the judge erred by failing to articulate the standard of proof that he applied in finding that defendant made a knowing and voluntary waiver of his rights under Miranda. The judge must find that the State has proven beyond a reasonable doubt that a defendant waived his Miranda rights. State v. Adams, 127 N.J. 438, 447 (1992); State v. Setzer, 268 N.J. Super. 553, 561 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). Although in this case the judge did not specifically articulate this standard of proof, defense counsel did not object to the judge's findings on this basis. We are convinced from our own review of the record that the judge's failure to specifically articulate the applicable standard of proof was harmless and the State had proven beyond a reasonable doubt that defendant waived his right under Miranda.
We additionally reject defendant's assertion that his taped statement should have been suppressed because he was not informed that he was a suspect in Biddle's shooting before he waived his Miranda rights. Devlin testified that when he asked defendant to go with him to the police station to "help out" in the investigation, he did not know that defendant was a suspect. Devlin said that defendant matched the description of the shooter and he was someone that the police needed to speak to; however, at that point, defendant was not considered by Devlin to be a suspect. Furthermore, Long testified that before he informed defendant of his rights, he told defendant that he wanted to speak to him about the shooting on 24th and Mickle Street. He told defendant that someone had indicated he was responsible for the shooting. Thus, defendant was aware when he gave his statement that someone had alleged that he shot Biddle.
Defendant also contends that the police engaged in "improper solicitous conduct." Defendant asserts that Devlin's request that defendant "help out" in the investigation was improper. Again, we disagree. In our view, there was nothing improper about Devlin's request that defendant assist the police in the ongoing investigation into the shooting of "Duck" Biddle.
We turn to defendant's contention that the aggregate sentence of thirty-two years with a NERA parole ineligibility period is excessive. Defendant argues that the imposition of a sentence longer than ten years for aggravated manslaughter is manifestly excessive and an abuse of discretion. Defendant further argues that the sentence for aggravated manslaughter was imposed contrary to his rights under the Sixth Amendment to the United States Constitution, as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). Defendant also asserts that the judge abused his discretion by imposing a consecutive sentence on count five, certain persons prohibited from possessing a weapon.
Here, the judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (defendant's prior criminal record and the seriousness of the offenses for which he has been convicted); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge also found a mitigating factor under N.J.S.A. 2C:44-1b(5) (the victim induced or facilitated the commission of defendant's conduct). The judge determined that the aggravating factors outweighed the mitigating factors. In addition, the judge found that a consecutive sentence was appropriate for the conviction on count five because that offense was separate and distinct from the aggravated manslaughter.
We are satisfied that the record supports the judge's findings of regarding the aggravating and mitigating factors. We are also satisfied that the judge's decision to impose a consecutive sentence on count five represented an appropriate weighing of the factors under State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986).*fn2
However, because the sentence imposed for aggravated manslaughter is longer than the previously existing presumptive term for that offense, and because the sentence was imposed based on the judge's findings, defendant is entitled to be re-sentenced pursuant to State v. Natale, 184 N.J. 458 (2005), and State v. Thomas, 188 N.J. 137 (2006).
We therefore affirm the conviction and remand for re-sentencing.
Affirmed in part, vacated in part, and remanded for re-sentencing.