June 11, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TARIQ MAQBOOL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-03-0430.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 8, 2007
Before Judges Axelrad, R. B. Coleman and Gilroy.
On March 30, 2004, a Hudson County Grand Jury charged defendant and co-defendants, Paul Reid, Steven Reid, and Zaid Tariq,*fn1 in a fourteen-count indictment with first-degree murder of Joong Ahn, N.J.S.A. 2C:11-3a(1) or (2) (Count One);*fn2 first-degree felony murder of Joong Ahn, N.J.S.A. 2C:11-3a(3) (Count Three); first-degree murder of Muni Ahn, N.J.S.A. 2C:11-3a(1) or (2) (Count Four); first-degree felony murder of Muni Ahn, N.J.S.A. 2C:11-3a(3) (Count Five); first-degree armed robbery against Joong Ahn and Muni Ahn, N.J.S.A. 2C:15-1 (Count Six); two counts of first-degree kidnapping of Joong Ahn and Muni Ahn, N.J.S.A. 2C:13-1b (Counts Six and Seven, respectively); two counts of second-degree kidnapping of Jawad Mir and Amit Vishal, N.J.S.A. 2C:13-1b (Counts Nine and Ten, respectively); fourth-degree aggravated assault by pointing a firearm against Joong Ahn, Muni Ahn, Jawad Mir and Amit Vishal, N.J.S.A. 2C:12-1b(4) (Count Eleven); third-degree possession of a weapon (handgun) without a permit, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5b (Count Twelve); second-degree possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Thirteen); and second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (Count Fourteen).
The Grand Jury also returned a Notice of Aggravating Factors as to Count One, subjecting defendant to the death penalty, pursuant to N.J.S.A. 2C:11-3. Following a jury trial, defendant was convicted on all counts, except Counts Nine, Ten, and Eleven. During the penalty phase of the trial, the jury declined to find any aggravating factors, and the death penalty was not imposed. After the denial of defendants' motions for a new trial and for judgment notwithstanding the verdict, defendant was sentenced on Count One to life imprisonment; on Count Four to a consecutive life term; on Count Seven to a concurrent term of thirty years; and on Count Twelve to a concurrent term of five years. The remaining convictions were merged. All sentences, other than Count Twelve, were made subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. All appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
Because defendant does not contend that the verdicts were against the weight of the evidence, we need only state the core facts to place the appeal in context. We will describe and discuss other necessary facts when addressing the issues.
Joong Ahn owned a cell phone business in Philadelphia with his wife, where they also sold prepaid calling cards. Their nephew, Muni Ahn, also worked with them in the business. Defendant, as well as co-defendants Paul Reid and Zaid Tariq, managed separate cell phone businesses and engaged in the sale of prepaid calling cards. Through the assistance of Jawad Mir and Amit Vishal, defendant arranged for the discounted sale of a significant quantity of prepaid calling cards to Joong and Muni Ahn. On October 31, 2002, Joong, Muni, Mir, and Vishal proceeded to co-defendant Paul Reid's store in Sayreville, where defendant and the three co-defendants held the four hostage at gunpoint. As the four laid on their stomachs, defendant and the three co-defendants kicked and punched them. After seizing the large amount of cash that Joong had brought to purchase the prepaid phone cards, defendant sat on Joong's back and placed a shopping bag around his face for about a minute. When Joong struggled, defendant took a wire from an advertising board and strangled him with it until "he just stopped moving."
Defendant then took Mir and Vishal at gunpoint to the front of the store and told them that they had to shoot Muni if they wanted to live. After they refused, Mir and Vishal were dragged into the backseat of a car and driven around by co-defendant Zahid Tariq, accompanied by one of the Reids in the front passenger seat. After having been driven around for approximately fifteen minutes, they stopped and switched cars, placing Mir and Vishal into a white SUV. From there, they were driven around again until they stopped near what Mir believed to be a police precinct because he saw police cars parked nearby. While stopped, the other Reid brother "came running from the back" and sat in the rear of the SUV. Defendant entered the rear of the SUV across from Reid, took a gun from the Reid brother in the backseat, and handed it to Mir and Vishal, telling them to hold it tight so that their fingerprints remained on the gun. Defendant then threatened Mir saying, "I know your family back home. So if you open your mouth, I'll kill them." Mir and Vishal were then taken to a motel where they were given $10,000 each to remain silent. At the motel, defendant stated: "He burned the car and the bodies in them."
In the interim, about 1:30 a.m. on November 1, 2002, police and fire departments responded to a car fire in the parking lot of the Laidlaw Bus Company in Jersey City, across the street from the Hudson County Sheriff's Department and a substation of the Hudson County's Prosecutor's Office. The bodies of Joong and Muni were found in the burned SUV, later identified as Joong's vehicle. Joong had been hogtied and burned beyond recognition; he had to be identified through dental records.
Muni had had his arms tied behind his back and had been shot. Dr. John Krolikowski performed the autopsy on Joong. During the autopsy, no soot was discovered in Joong's airway, indicating that he was not breathing during the fire. Dr. Krolikowski opined that the cause of death was asphyxia. Medical examiner Lyla Perez performed the autopsy on Muni. Muni had duct tape around his hands and wires around his right ankle. The top of his skull was fractured in many places, and his brain was exposed. There was heat damage to his brain and to the bones of the skull, and traces of blood in the brain. The blood in the brain was in part due to bullet wounds inflicted prior to death. Soot and mucus was discovered in Muni's lungs, which together with the fact that his lungs were hyperinflated, indicated that he was alive during the fire. Perez opined that the cause of Muni's death was blunt trauma to the head and brain, and smoke inhalation.
Defendant raises the following arguments for our consideration:
THE STATE'S FAILURE TO APPRISE THE DEFENDANT OF THE CRIMINAL COMPLAINT AGAINST HIM PRIOR TO THE QUESTIONING NECESSITATES SUPPRESSION OF HIS PURPORTED STATEMENTS. U.S. CONST., AMEND. V, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.
THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS THE DEFENDANT'S PURPORTED UNCOUNSELED STATEMENTS, NECESSITATING REVERSAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART 1, PAR. 1.
THE DEFENDANT WAS EFFECTIVELY DENIED HIS RIGHT TO A JURY TRIAL BY THE TRIAL COURT'S REPETITION, DURING ITS CHARGE TO THE JURY, OF HIGHLY PREJUDICIAL HEARSAY STATEMENTS MADE DURING TRIAL. U.S. CONST., AMEND. VI, XIV; N.J. CONST. (1947), ART. I, PAR. 9. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN PERMITTING ONLY A PARTIAL READBACK OF THE TESTIMONY OF A CRUCIAL WITNESS. (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN REFUSING TO DISALLOW THE TESTIMONY OF A STATE'S MEDICAL EXPERT.
THE DEFENDANT RECEIVED A MANIFESTLY EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
A. THE SENTENCES SHOULD RUN CONCURRENTLY.
B. THE BASE TERMS OF LIFE IMPOSED FOR MURDER ARE EXCESSIVE.
Defendant raises the following arguments pro se: 1) his custodial statements should have been suppressed because they followed his arrest which was obtained without a valid warrant;
2) he was denied effective assistance of counsel because counsel failed to move to suppress defendant's statements on the basis of his illegal arrest; 3) the trial judge erred by giving an incomplete and prejudicial instruction on reasonable doubt; 4) the trial judge failed to tailor his instructions as to the defense theory and failed to give examples during the instructions; 5) the trial judge failed to require the jury to be unanimous in its findings as to the underlying facts of the charges; 6) the trial judge erred by not charging the lesser-included offenses on the charge of murder of Muni Ahn; 7) the trial judge improperly shifted the burden of proof to the defendant, showing his disapproval of defendant's actions leading to the death of the victim; 8) the trial judge erred by failing to instruct the jurors that if some of them were to find defendant had acted purposely or knowingly and others were to find that defendant had acted recklessly it could have determined defendant guilty of aggravated manslaughter; 9) the instructions were prejudicial as to inferences the jury could draw from the use of a firearm; and 10) the instructions concerning use of circumstantial evidence was misleading and prejudicial.
We have reviewed each of these arguments in light of the record and pertinent law and have concluded that they are all without merit. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
In Point I, defendant argues that the trial judge erred by denying his motion to suppress his pretrial statement to the police. Defendant contends that at the time he was questioned, the police failed to inform him that either a criminal complaint had been, or was about to be filed against him, and that such omission impacted upon his ability to knowingly and intelligently exercise his rights to remain silent and to counsel. In Point II, defendant contends that the statement was taken in violation of his rights against self-incrimination and to counsel. The State counters that defendant had waived his rights and voluntarily provided a statement to the police. The State contends that no questioning occurred prior to defendant's arrest, and that defendant was aware he was under arrest in connection with the murders when he waived his constitutional rights. Because the issues are inter-related, we will address them together.
Prior to trial, a hearing was conducted addressing defendant's motion to suppress evidence. Testifying for the State were Detective Lieutenant Charles Russo and Detective Sergeant Theodore Wagner, both from the Hudson County Prosecutor's Office, Homicide Division. Russo testified as follows. On November 3, 2002, having received information that two individuals possibly involved in the double homicide lived in the Sayreville area, he, Wagner, and other officers from the Hudson County Prosecutor's Office proceeded to a Quick Chek store in Sayreville and apprehended defendant and Zaid Tariq as they exited the store. Even though Russo did not have a complaint warrant in his possession at the time of defendant's apprehension, he would not have allowed defendant to leave had he resisted because defendant was a "target" in the investigation.*fn3 Russo handcuffed defendant behind his back and placed him into the police car with Wagner, for the purpose of transporting defendant back to the Prosecutor's Homicide Unit in Jersey City. Although Russo told defendant "basically what was going on" and that "we wanted to talk to him," he never told defendant that he was facing a murder charge; only that they would talk when they got back to Jersey City. However, Russo did inform defendant of his Miranda*fn4 rights, and defendant remained silent throughout the ride to Jersey City.
Russo stated that they had arrived at the Jersey City homicide base at around 4:15 p.m. Although he removed the handcuffs from behind defendant's back, he handcuffed defendant to a chair in the interview room. Russo read defendant his Miranda rights, and defendant asked to read them himself. After reading the Miranda waiver form, defendant signed the waiver at 4:17 p.m., stating that he had no problem with talking to Russo.
After Russo conversed with defendant about general matters, trying to place him at ease, Russo asked defendant what he had done on Halloween. Initially, defendant told Russo that on October 31, he had worked in his store, that his girlfriend Maribel Aquino had arrived at the store at approximately 8:00 p.m., and that sometime prior to closing at 9:30 p.m., Vishel and Mir had visited and then left. After closing the store, defendant took Maribel to get something to eat and then proceeded to the Gallery Motel where he spent the night with her. Russo, who had been in and out of the interview room getting updates on other witnesses' statements, told defendant he was not telling the truth. At 6:40 p.m., they took a break. When they returned from the break at 7:10 p.m., defendant said, "I'm about to tell you the truth." Defendant then gave a second statement that placed him at the scene of the crimes. When Wagner brought in the bag of money that he had recovered from Maribel's residence, defendant said that it was his, that he was not talking anymore, and that he wanted a lawyer. The interview ended at that time. Russo documented the interview with handwritten notes.
Wagner testified that he was present not only when defendant was arrested at the Quick Chek store, but also when defendant signed the Miranda waiver form. Wagner testified that he had recovered a plastic garbage bag containing cash from Maribel's home in South Amboy sometime after 6:00 p.m. on November 3, 2002, contrary to the November 4, 2002, date that he had placed on his investigation report, stating that the latter date was a typographical error on his part.
Defendant testified to a different version of events. He recalled that when he attempted to leave the Quick Chek store in his vehicle, an unmarked car blocked his exit, and he was "surrounded" by police officers. He asked what it was about, but the police told him to exit the vehicle and put his hands on the car. He was then handcuffed and placed in the police car. The officers neither advised him that he was under arrest for murder, nor did they inform him of his constitutional rights. Defendant asked if he was under arrest, and they told him, "not yet." Defendant stated that it seemed as if he was under arrest and told the police that if they were going to take him in for questioning, he needed an attorney. The officers responded that he was not under arrest, they were just taking him in for an interview.
At the station, they placed defendant in an interview room and handcuffed him to a chair. Russo told him that they were "going to have a chat." When defendant asked about what, Russo said, "Well, you'll find out." Russo then said "a crime has been committed," and when defendant asked "what crime?" Russo said, "you know." When defendant said he did not know, they uncuffed him and told him to look outside and see if it looked familiar. When defendant said "no," they pointed out "white things on top of poles" and told him that they were cameras and said, "we got you." When defendant said "for what?" they put him back in the chair, handcuffed him, and said that there had been a crime, and that they knew he had been involved.
Defendant said he wanted a lawyer, but Russo told him that he was "not a target" and that he "might not have done anything," but they knew he was involved. When questioned, defendant admitted that he did not feel free to leave the building. Russo then asked defendant for his "biodata," after which Russo and Wagner walked out of the room for ten minutes. When they returned, they said "we know you killed the first man." Defendant said, "If you have me here for murder, I would definitely like a lawyer present." Again Russo told him that he might not be a target, and again defendant requested an attorney. Russo told him that "lawyers come later," and that they had to investigate.
Russo read a piece of paper to defendant, showing it to him upon his request. Defendant refused to sign it. Russo then started questioning defendant as to whether he knew certain people. Defendant testified that he signed the Miranda waiver form while being fingerprinted between 10:00 p.m. and 12:00 a.m., when he was taken to the Hudson County Jail. Russo told him that he needed to sign it if he wanted a lawyer. Defendant denied making the statements that Russo stated he made. He also denied identifying the plastic bag that had been brought into the interview room.
At the end of the suppression hearing, the judge denied the motion. The judge found "Detective Russo's credibility to be superior to that of the defendant's on this issue." Russo appeared "forthright, relaxed and candid," and his testimony was "clear, unequivocal and consistent with both his formal reports and his preserved handwritten notes." Russo had preserved his notes from the interview and provided them to the prosecutor and to defense counsel. The judge found that to be "quite significant" in addressing the credibility of Russo because it showed that he did have a detailed conversation with defendant. The judge also found it persuasive that Russo did not attempt to cast defendant in a negative light and had characterized defendant as "intelligent, calm and cooperative."
In Point I, defendant maintains that at the suppression hearing, it was established that at the time defendant was questioned "the filing of a criminal complaint against him either had occurred or was imminent." Defendant was not advised of "this crucial fact," and the "omission greatly impacted upon defendant's ability to knowingly and intelligently exercise his rights to silence and counsel," thus necessitating a suppression of his statements and a reversal of his convictions, citing State v. A.G.D., 178 N.J. 56 (2003).
In A.G.D., an arrest warrant was obtained for the defendant's arrest after detectives interviewed a child who accused defendant of sexual abuse. Id. at 59. A few days later, detectives went to the defendant's home and told him that they wanted to interview him about allegations of sexual abuse that had been asserted against him, but they did not specify the charges and did not inform the defendant that a warrant had already been issued. Ibid. The detective said that he neither executed the arrest warrant nor informed the defendant of the warrant because he "'wanted to hear what [defendant] had to say.'" Ibid.
According to the defendant, the detective informed him that he was not under arrest and that the detective wanted to conduct the interview at the prosecutor's office. Ibid. Despite the defendant's wife's plea with her husband to wait and speak with a lawyer, the defendant said he had done nothing wrong and wanted to put an end to the matter, so he went with the detective to the prosecutor's office. Ibid. The police and the defendant told different stories about what happened next, but at some point, the defendant signed a Miranda waiver form and gave an incriminatory statement. Id. at 60. After he finished making his written statement, the defendant was arrested and transported to the county jail. Ibid.
On appeal, the defendant argued that in view of the fact that the detectives had not informed him that an arrest warrant had been issued against him, his waiver of his right to remain silent was not valid. Id. at 66. The Court agreed, stating:
[D]efendant was disadvantaged by a lack of critically important information. The government's failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights . . . . [A] criminal complaint and arrest warrant signify that a veil of suspicion is about to be draped on the person, heightening his risk of criminal liability. Without advising the suspect of his true status when he does not otherwise know it, the State cannot sustain its burden to the Court's satisfaction that the suspect has exercised an informed waiver of rights, regardless of other factors that might support his confession's admission. [Id. at 68.]
Here, in deciding the motion, the judge found A.G.D. distinguishable:
In this case, there was absolutely no doubt that Mr. Maqbool understood the police intended to arrest him in connection with a double homicide.
He was surprised by Officers from multiple jurisdictions on a public street, physically restrained, placed up against his car, searched and handcuffed.
He was then advised of his Rights and that he was being taken from that jurisdiction to Jersey City in connection with a double murder investigation. No questioning was undertaken until the [d]efendant was secured in an interview room in a police interrogation room and only after formal Miranda procedures were undertaken and completed.
There's no question in this matter that a reasonable man in Mr. Maqbool's position would quite clearly understand that he was the focus of a murder investigation.
In A.G.D. The Officers [sic] through their actions and inaction led the [d]efendant to believe that he had a choice as to whether he would accompany them, leaving open to speculation in the [d]efendant's mind what his status was.
Here, [there] was absolutely no doubt in the [d]efendant's mind that he had no such choice, and that he had been arrested in connection with a double homicide.
It is therefore clear that the [d]efendant was fully cognizant of his status as suspect or target at the time of his arrest and prior to his making any statement to the police and being advised of his Rights.
Defendant contends that the judge's "pronouncement does not square with even the State's version of the facts of the defendant's arrest and interrogation." Defendant focuses on Russo's statements that at the time of apprehension, he was not advised as to why he was being arrested, and that Russo's explanation to defendant was "generalized." He claims that Russo made every effort to obscure the situation, noting that at the time when they were in the police car, Russo's response after having been asked if he was under arrest, was "not yet." Defendant also references Russo's concession on cross-examination that at the time of defendant's apprehension, Russo never advised defendant "that by talking to us, you will be inculpating yourself in a murder."
Defendant's recitation of the testimony is selective and leaves out important testimony by Russo, and more important, by himself, which distinguishes this case from A.G.D. and supports the judge's determination that defendant knowingly and intelligently waived his rights.
Defendant acknowledged in his testimony that when he was at the Quick Chek store, he was "surrounded by police officers." He was told to put his hands on the car and was then handcuffed. When defendant asked whether he was under arrest, defendant first testified that Russo said, "[W]e will talk to you when we get to the hub" and then testified that Russo told him that he was not under arrest. Nevertheless, defendant acknowledged that when they arrived at the station, Russo handcuffed him to a chair. Russo told defendant that "a crime had been committed" and when defendant expressed ignorance, Wagner uncuffed him and told him to look out the window at the "cameras." They then re-handcuffed him to the chair and told him that "there has been a crime" and that they knew that he was involved. Defendant was asked during the hearing if at that point in the conversation he felt that he was free to leave. Defendant responded "no." After taking biographical data from defendant, the officers left. Ten minutes later they returned and said, "Tariq, we know you killed the first man." Defendant told them that "if you have me here for murder, I would definitely like a lawyer present." Defendant claimed Russo told him that he "might not be a target of this crime." After this conversation, defendant gave his statement.
Leaving aside defendant's alleged requests for counsel, the events as described by defendant contradict his assertion that he did not understand that a "veil of suspicion" had been cast over him. He was surrounded by police, handcuffed and taken to the homicide unit of the prosecutor's office. He admitted that he did not feel free to leave. This is different from the situation in A.G.D., where detectives had gone to the defendant's house to talk to defendant; a detective had specifically informed the defendant that he was not under arrest; and the defendant voluntarily accompanied the detectives to be questioned. A.G.D., supra, 178 N.J. at 59. Here, any reasonable person in defendant's position would understand that he or she was under arrest.
Further, defendant acknowledged that before giving the second statement, the officers had told him that they knew he was involved in a crime and "knew that he killed the first man." Defendant claims that he said "if you have me here for murder, I would definitely like a lawyer present." If stated, defendant's own words belie his claim that he did not understand the charges against him, and indicate, moreover, that he understood his rights. His claim that Russo then told him he "might not be a target" is not credible. Even if Russo did make that statement, a reasonable person would understand that when you are handcuffed to a chair and officers have just informed you that they know you killed a man, you are at least a target.
Unlike A.G.D., no arrest warrant had been issued for defendant; it was issued the next day. The complaint was signed sometime on November 3, but there was no indication whether it had been signed before or after defendant's arrest. Even if it had been signed before the arrest, there is a major distinction between this case and A.G.D. because defendant in A.G.D. was not arrested until after his statement, even though a warrant for his arrest existed. This "lack of critically important information" deprived the defendant of "information indispensable" to a knowing and intelligent waiver of rights. A.G.D., supra, 178 N.J. at 69. "[W]ithout advising the suspect of his true status when he does not otherwise know it," the State could not show that the suspect had made an informed waiver of his rights. Ibid. Here, in contrast, defendant understood his status as having been arrested for murder. Accordingly, we agree with the trial judge that A.G.D. is distinguishable and is not a basis to suppress defendant's custodial statements.
In Point II, defendant claims that the judge should have suppressed his statements because they were taken in violation of his rights against self-incrimination and to counsel. Specifically, defendant argues that his testimony at the suppression hearing demonstrated that even though he had requested counsel numerous times, he was questioned nevertheless. Further, he argues that the Miranda rights were never "effectually administered" to him.
It is well settled that warnings about a person's constitutional rights are required when a person is subject to custodial interrogation. Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 706. "Custodial interrogation" means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Ibid. Absent Miranda warnings, statements made by a defendant in custody, whether exculpatory or inculpatory, may not be used in the prosecutor's case-in-chief. State v. Hartley, 103 N.J. 252, 275 (1986). A valid waiver of a defendant's constitutional rights must be made voluntarily, knowingly, and intelligently, and the State bears the burden of proof beyond a reasonable doubt. Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 86 L.Ed. 2d at 707; State v. Bey, 112 N.J. 123, 134 (1988).
On a motion to suppress, the court must examine the totality of the circumstances to ascertain whether the accused in fact knowingly and voluntarily decided to forego his or her rights. Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S.Ct. 2830, 2834, 77 L.Ed. 2d 405, 412 (1983); State v. Miller, 76 N.J. 392, 402 (1978). Courts consider the characteristics of the accused, as well as the details of the interrogation. State v. Bey, supra, 112 N.J. at 134-35; State v. Miller, supra, 76 N.J. at 402. Relevant factors include the defendant's age, education, intelligence, previous encounters with the law, advice concerning his or her constitutional rights, length of detention, whether the questioning was repeated or prolonged and whether physical punishment or mental exhaustion was involved. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed. 2d 854, 862 (1973); State v. Bey, supra, 112 N.J. at 135; State v. Miller, supra, 76 N.J. at 402. A "waiver of the right against self-incrimination which, by all subjective indicia, appears knowing, intelligent and voluntary, may still be deemed invalid when elicited in an atmosphere of coercion." State v. Reed, 133 N.J. 237, 256 (1993).
Here, the trial judge found that there was no doubt that defendant understood that the police intended to arrest him in connection with a double homicide, given that he was surprised by multiple officers, physically restrained, placed against his car, searched, and handcuffed. Questioning did not commence until defendant was secured in an interview room and advised of his constitutional rights. "There's no question in this matter that a reasonable man in [defendant's] position would quite clearly understand that he was the focus of a murder investigation." The judge concluded:
It is therefore clear that the [d]efendant was fully cognizant of his status as a suspect or target at the time of his arrest and prior to his making any statement to the police and being advised of his Rights. Not only was he aware of his status, the facts here demonstrate he had a full and complete understanding of his Rights prior to speaking with the police. After having been advised orally of his Rights at the scene of his arrest, he remained silent on the trip to Jersey City.
Upon his arrival, he was read his Rights formally by Lieutenant Russo. He was then asked if he had understood what had been read to him. Before acknowledging his understanding, the [d]efendant asked if he could read the document himself. He was provided with the document, read it and then indicated his understanding of its content.
His understanding of his Rights and of his continuing options with regard to the exercise of those Rights was demonstrated later in the interrogation when after it became apparent that the police knew or suspected he was lying, he asserted his right to Counsel and thereby stopped the interrogation. This fact also demonstrates that prior to the exercise of his Rights, the [d]efendant had voluntarily agreed to waive them and to speak with the police.
For all of those reasons, I am satisfied the State has demonstrated beyond a reasonable doubt that the [d]efendant was advised of his Rights. That he had knowledge of those Rights. That he understood them fully and completely, and with the full and complete knowledge and understanding, voluntarily waived them.
On appeal, we determine whether there was sufficient, credible evidence to uphold the fact-findings made by the trial court. State v. Johnson, 42 N.J. 146, 162 (1964). The appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Id.
The issue is one of credibility between Russo and defendant. Defendant acknowledges that in order for his argument to be valid, the judge had to accept his version of events around the time the statements were made: "[d]efendant's testimony, if accepted, establishes unequivocally that Miranda rights were not administered to him, and that he was questioned after requesting a lawyer." (emphasis added). Defendant contends that the trial judge erred in his assessment of the two witnesses' credibility.
Specifically, defendant maintains that certain inconsistencies in Russo's testimony showed that he was not credible. First, Russo denied initially telling defendant that he was facing a murder charge while simultaneously asserting that he "told him basically what was going on. That we wanted to talk to him and stuff like that." Telling him what was "going on" in terms of him being taken to the station for a talk is consistent with Russo's not telling defendant exactly what the charge was. Defendant testified that in response to his inquiry of Russo in the car of what "this was about," Russo told him only that they would talk at the station. Both witnesses, therefore, testified that when defendant was initially arrested, Russo did not tell defendant the exact crime the police were investigating.
Next, defendant claims that Russo was not credible because he had testified that defendant had identified a bag that had been brought into the interview room, but Russo's notes made no mention of the identification. While defendant's statement is correct, it is not complete. Russo then testified that although his notes did not mention the bag, he documented defendant's identification of the bag in his formal report, which he had written three days later. Therefore, defendant's claim that Russo's testimony lacked credibility is not appropriately supported by this scenario.
Defendant also claimed that Russo denied that anyone had been in the interview room besides defendant, Wagner and himself, but then admitted upon cross-examination that another officer did enter the room. After denying that anyone had been in the room, Russo said that "[m]aybe somebody stopped in and baby-sat him while I went to the bathroom, whatever. That's a possibility." Russo, however, could not recall the specific person who entered the room. We do not discern that Russo's lapse of this small detail, among the many important details, was sufficient to undermine his credibility.
Finally, defendant points out that Russo testified that he did not "personally" receive any phone calls from relatives of the defendant during the evening of the questioning, but Russo later testified that he had spoken to defendant's brother. Again, this testimony is consistent, the implication being that someone else received the phone call, and at some point, Russo wound up talking to defendant's brother.
We are satisfied that none of these alleged discrepancies cast significant doubt on Russo's credibility. The judge found that Russo was credible, citing to his "forthright, relaxed and candid" demeanor, and the fact that his testimony was "clear, unequivocal and consistent with both his formal reports and his preserved handwritten notes." The judge was particularly impressed that Russo kept his notes, as that was not the typical practice among detectives.
The record supports the judge's findings. Although the judge did not comment on defendant's lack of credibility, it seems incongruous for defendant to assert that he repeatedly asked for a lawyer, did not receive one, yet gave the detailed statements anyway. By all accounts, defendant is an intelligent, fairly educated man. Additionally, it is difficult to believe defendant's claim that he made no statements at all, other than to give his biographical data and to say whether he knew certain people, given Russo's detailed notes. Russo could not have invented the details of those statements, some of which paralleled other witnesses' statements. Accordingly, the judge, having had sufficient reasons to believe Russo over defendant, did not err in refusing to suppress the custodial statements.
In Point V, defendant argues that the trial judge erred in permitting Dr. John Krolikowski, the forensic pathologist who performed the autopsy of Joong, to testify concerning the cause of Joong's death. Defendant contends that "Dr. Krolikowski was so thoroughly discredited that the trial court erred in permitting him to give expert testimony, and that the error is so prejudicial so as to necessitate reversal." The State contends that the doctor was properly qualified, without objection from defendant, and there was no reason to bar his testimony. We concur.
Prior to Krolikowski's testimony, the prosecutor indicated that he had just received a consent order showing that Krolikowski had relinquished his medical license in Massachusetts, and documentation showing that he was on probation in New Hampshire. The judge asked defense counsel whether he planned to use the documentation on voir dire, to which he said, "In all likelihood, yes, Judge, and perhaps even as regards to his substantive testimony." The judge read the documents and found that the information was relevant as to the doctor's qualifications. The judge stated, "It's not going to disqualify him as a witness or as an expert, but it certainly goes to the weight the jury may attach to it."
The next day Krolikowski testified as to his credentials. He testified that he had briefly been employed by the State of New Jersey as the Acting State Medical Examiner for the previous two years. Prior to that, he was employed by the Regional Medical Examiner's Office in Newark. He was licensed to practice medicine in both New Jersey and Alabama. He admitted to having a "restricted license" in Massachusetts and inactive licenses in New Hampshire and Washington, D.C.
He explained that he had entered into a consent agreement in Massachusetts not to practice "surgical pathology" due to his handling of three prostate biopsy slides. He further explained that "slides that I signed out were misread." He "believed" that he read the slides, but they "had a difficult time trying to pin down exactly what happened." When asked if this meant that people had cancer and he failed to see it, he answered, "My testimony is that I signed out and was responsible for three slides." He also admitted that his reading of twenty-nine other slides was "sub-optimal." He explained that he had agreed not to practice medicine in Massachusetts until there was "a review and practice plan." He admitted to having applied for reinstitution of his license, but the Board told him to wait to re-apply until 2006. He said that the State of New Jersey was aware of the consent order, yet he remained in its employ. He had been qualified as an expert in forensic pathology "several hundred" times.
After the prosecutor conducted a redirect examination on voir dire, and defense counsel conducted a recross-examination, the judge asked, "Any objection, sir?" to which defense counsel answered, "I'll submit, your Honor." At that point, the judge qualified Krolikowski as an expert in forensic pathology.
On appeal, defendant insists that he objected to Krolikowski being able to testify. He argues that defense counsel's "'submission' constituted a request that Krolikowski's testimony be barred." The argument is not supported by the record. Aside from stating, "I submit," defense counsel said that he planned to use the consent order on the substantive examination of the witness. Had counsel objected to the witness's qualification as an expert, he would not have needed to address what he planned to do during Krolikowski's substantive testimony. Accordingly, we treat this argument as not having been raised below.
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." N.J.R.E. 702. An expert witness must possess the minimal technical training and knowledge essential to the expression of a meaningful and reliable opinion. State v. Frost, 242 N.J. Super. 601, 615 (App. Div.), certif. denied, 127 N.J. 321 (1990). "The credibility of the expert, and the weight to be accorded his or her testimony, is assessed by the trier of fact; any testimonial or experience weakness in the testimony may be exposed by cross-examination." Ibid. "In determining the competency of an expert witness, the trial judge is vested with wide discretion." Ibid. An appellate court will not disturb the trial judge's determination on competency unless a clear abuse of discretion appears. Ibid. Because defendant did not object at trial, the appellate court reviews defendant's contentions in the context of the plain error rule, R. 2:10-2. In order to prevail, defendant must convince the appellate court that there was an error clearly capable of producing an unjust result. R. 2:10-2; State v. Summers, 350 N.J. Super. 353, 362-63 (App. Div. 2002), aff'd, 176 N.J. 306 (2003).
Defendant contends that Krolikowski was "so thoroughly discredited" during voir dire that the judge should not have allowed him to testify. Specifically, he points to the suspension of Krolikowski's Massachusetts license and his "lack of candor" on the issue. Lack of candor was an issue for the jury to determine. The judge's role was to determine whether Krolikowski possessed the minimum qualifications to testify, and given his education, New Jersey licensure and employment, he clearly was. Defendant was free to argue the weight of Krolikowski's expertise to the jury, but there was no basis for rejecting his qualification as an expert. Thus, there was no error, much less plain error.
We now address defendant's arguments concerning his sentence. Defendant contends that his sentence was manifestly excessive, both in the length of the individual sentences and that his sentences for murder should run concurrently, not consecutively. We disagree.
"It is well settled that when reviewing a trial court's sentencing decision, '[a]n appellate court may not substitute its judgment for that of the trial court.'" State v. Evers, 175 N.J. 355, 386 (2003) (quoting State v. Johnson, 118 N.J. 10, 15 (1990)). "However, an appellate court may review and modify a sentence when the trial court's determination was 'clearly mistaken.'" State v. Evers, supra, 175 N.J. at 386 (quoting State v. Jabbour, 118 N.J. 1, 16 (1990)). Within these guidelines, an appellate court can:
(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent[,] credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[State v. Roth, 95 N.J. 334, 364-65 (1984).] Punishment, rather than rehabilitation, is the purpose of the New Jersey Criminal Code (the Code). State v. Jabbour, supra, 118 N.J. at 6. Therefore, the Code focuses on the "'gravity of the offense, and not the blameworthiness of the offender.'" Ibid. (quoting State v. Roth, supra, 95 N.J. at 355).
In sentencing a defendant, a trial court must identify the relevant aggravating factors of N.J.S.A. 2C:44-1a and the relevant mitigating factors of N.J.S.A. 2C:44-1b, determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence. State v. O'Donnell, 117 N.J. 210, 215 (1989). "An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." Ibid.
The judge found the following aggravating factors related to the crimes committed by defendant: (1) The nature and circumstances of the offenses and the role of the actor therein, including whether or not they were committed in an especially heinous, cruel, or depraved manner; (3) The risk that the defendant will commit another offense; and (9) The need for deterring the defendant and others from violating the law. The judge found as the sole mitigating factor, factor (7), that defendant had no prior criminal record. After finding the aggravating and mitigating factors, the judge determined that the aggravating factors substantially outweighed the sole mitigating factor. Defendant was sentenced to two consecutive life sentences for two murders (Counts One and Four); thirty concurrent years for kidnapping of Joong (Count Seven); and five concurrent years on for unlawful possession of a handgun (Count Twelve). Defendant is required to serve 127-1/2 of those years without parole pursuant to the NERA.
Defendant argues that his sentences for murder should not run consecutively. We disagree. It is within the judge's discretion whether to make a sentence consecutive or concurrent. N.J.S.A. 2C:44-5. However, "judges must exercise careful, common sense discretion in imposing punishment for . . . multiple offenses in order to assure that the pyramiding of sentences does not offend notions of fairness or cruel and unusual punishment." State v. Juliano, 52 N.J. 232, 236 (1968). In making the determination, the focus of the court should be on the fairness of the overall sentence. State v. Sutton, 132 N.J. 471, 485 (1993).
Because the Code does not set forth standards to guide a sentencing court in deciding whether to impose consecutive or concurrent sentences, the Court in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), developed criteria to be applied in making those decision:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominately independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense[.]*fn5
[Yarbough, supra, 100 N.J. at 643-44.]
More recently, the Court held that the "multiple victims factor is entitled to great weight and should ordinarily result in the imposition of at least two consecutive terms when multiple deaths or serious bodily injuries have been inflicted upon multiple victims by the defendant." State v. Carey, 168 N.J. 413, 429-30 (2001).
As to whether the sentences should be served concurrently or consecutively, the judge found:
The facts in this case clearly show that Joong Ahn was murdered first, during the initial stages of the robbery, the objective there being to steal approximately $300,000. Muni Ahn, however, was transported some 30 miles, after the defendant had completed the original objective for a different reason. He was transported there to be killed as a potential witness. The objectives of the murders were clearly separate. The crimes involve separate acts of extreme violence, separated not only by time, but location as well. To consider sentencing this defendant to concurrent terms would be to ignore a separate crime, one that, although arguably occasioned by the prior events, was wholly unconnected to them by a plan-designed objective[,] time, place, and manner. It would, in effect, give the defendant a free verdict. That will not happen here. Consecutive sentences are, therefore, appropriate.
We are satisfied that the judge properly exercised his discretion in imposing consecutive terms on the two murder convictions.
Defendant argues next that the base terms of life on the murder convictions were excessive. First, he argues that the judge's "purported rationale for discounting the mitigating factor of no prior involvement is unsound." Specifically, defendant claims there is no support for the proposition that the weight of the no-prior-crimes mitigating factor decreases as the severity of the crime increases. He claims that the presumption against incarceration for third-degree crimes, where the defendant has no prior record, N.J.S.A. 2C:44-1e, is invoked pursuant to a separate and different weighing process identified in N.J.S.A. 2C:44-1e, which provides there shall be a presumption of no imprisonment "unless, having regard to the nature and circumstances of the offense and the history, character and condition of the defendant, [the court] is of the opinion that his imprisonment is necessary for the protection of the public under the criteria set forth the subsection a . . . ."
Defendant's argument fails because N.J.S.A. 2C:44-1e provides that the "court shall deal with a person convicted of an offense other than a crime of the first or second degree, who has not previously been convicted of an offense, without imposing a sentence of imprisonment . . . ." (Emphasis added). Implicit in that statute is that one's law-abiding life can be given more consideration when the crime is less serious than when the crime is one of the first or second degree. That these were defendant's first offenses simply cannot be given much weight in light of the heinous nature of the crimes. A judge may give minimal weight to a defendant's lack of a previous record if he or she explains the reasons for doing so. State v. Soto, 340 N.J. Super. 47, 72 (App. Div.), certif. denied, 170 N.J. 209 (2001). Here, the judge appropriately placed his reasons on the record for not according substantial weight to defendant's lack of a prior record.
Defendant also contends that the "testimony of friends and family, as well as [his] history, flatly contradicts, and indeed disproves, the trial court's highly negative assessment of his character." He argues that, assuming he committed the crimes, the incident was an "isolated aberration" and the "result of circumstances unlikely to recur." Defendant claims the judge should have applied mitigating factor N.J.S.A. 2C:44-1b(8). The judge specifically found that factor (8) did not apply because "the only fact that makes the defendant's reinvolvement unlikely to recur is the punishment he'll receive for this offense. If this defendant were released today, I have no doubt that he would become reinvolved in a crime." Having tried the case, we discern no reason to disagree with the judge's determination.
We conclude that the judge appropriately balanced the aggravating factors and the mitigating factor, and that his decision to sentence defendant to two life sentences for the heinous, cruel and utterly unprovoked deaths of Joong and Muni was supported by the record.