On appeal from the Superior Court of New Jersey, Law Division, Essex County, Ind. No. 04-03-1040.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 19, 2007
Before Judges Axelrad and Payne.
Following denial of a motion to suppress physical evidence and a confession, defendant Wali Williams pled guilty to two counts of first-degree felony murder, N.J.S.A. 2C:11-3a(3) (counts two and eight); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b (count ten); and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count eleven). Pursuant to a negotiated plea agreement, defendant was sentenced to an aggregate custodial term of thirty years, without parole, and numerous charges were dismissed.
On appeal, defendant argues his convictions must be reversed because the waiver of his right to remain silent was not knowing and intelligent due to his not being informed that an arrest warrant had been issued or that a criminal complaint had been filed against him. Thus, he did not have the full knowledge of his status as required by State v. A.G.D., 178 N.J. 68 (2003). The State contends defendant waived his right to contest the admissibility of his confession by failing to enter a conditional plea preserving this right pursuant to Rule 3:9-3(f) and, alternatively, responds to the merits of the appeal.
We find the record unclear, particularly in view of an unrecorded sidebar among counsel and the court that occurred during the plea colloquy. Accordingly, we will address defendant's appeal on the merits. We are not persuaded by the argument he advances and affirm substantially for the reasons articulated by Judge Ravin on the record.
Three police witnesses testified at the Miranda*fn1 hearing, including two officers who took defendant's confession. Neither defendant nor any of the co-defendants presented any witnesses. The following facts were adduced regarding defendant's confession, which hearing also considered the admissibility of the confessions of his co-defendants, Johnnie Davila, Laquan Dwight and Michael Whitfield. On November 13, 2003, Shanfidine Sutton was shot in the back and killed in the course of an attempted robbery in East Orange and Alonzo Brown was shot in the chest and killed in the course of an attempted robbery in Newark. On November l5, Davila was arrested in Newark on narcotics charges. After waiving his Miranda rights, he confessed to police that he, defendant, and the other co-defendants were driving around Newark and East Orange two days prior with the aim of committing armed robberies. He admitted that two people were shot during the attempted robberies. Dwight was arrested the same day and after waiving his Miranda rights, also gave a statement implicating defendant as involved in the incidents. On November l6, 2003, Whitfield was arrested, waived his Miranda rights, and identified defendant as the shooter in both homicides.
Defendant was arrested on November 20, 2003, one week after the murders and after the arrest of his three co-defendants. He was brought to the Newark Police Department in handcuffs. Detective Chirico of the homicide squad read defendant his Miranda rights and defendant read the form and waived his rights orally and by signing and initialing the form. Investigator Cerabando also participated in the interview. The detectives informed defendant they had arrested his friends, who had implicated him in the murders. Defendant acknowledged that he knew prior to his arrest that the police had been looking for him and that his co-defendants had been arrested and had spoken to the police about the murders and had "probably given him up."
Detective Chirico then expressly asked defendant, "[Before] we begin our questioning, did we advise you that you were under arrest for the murder in Newark and the murder in East Orange, which both occurred on November l3, 2003?" Defendant responded in the affirmative. Before questioning him about the crimes, the detective also asked defendant if he wanted to give a statement about a homicide in Newark and one in East Orange on November l3, 2003. Again, defendant replied "yes," and provided a detailed statement in which he confessed to trying to rob both victims and to shooting them in the course of the robbery attempts. Toward the end of the interview, the police asked defendant whether he had been forced or threatened to give his confession. Defendant volunteered the following response, "No. I gave it because [you] were looking for me and knew I did it cause you got Johnnie, Mike and Squeeze [identified as Laquan Dwight]." Defendant added, "And I knew they told when [you] were looking for me."
Defendant acknowledged that prior to the taking of his statement he had been told he had been placed under arrest for the two specific murders. He argued, however, that the failure to inform him that an arrest warrant had been issued deprived him of vital information of his status necessary to intelligently and knowingly waive his Fifth Amendment rights. He contended this procedure violated A.G.D.'s requirements and thus justified the suppression of his confession.
Judge Ravin ruled the confession admissible, concluding the police properly administered Miranda warnings and defendant knowingly and voluntarily waived his rights and provided a detailed inculpatory statement. He rejected defendant's argument regarding A.G.D., stating:
[D]efendant was not told prior to the taking of his statement that an arrest warrant or formal charges had been filed or issued. Defendant argues essentially that because the police did not advise him that probable cause to arrest him for these two murders was found by a neutral magistrate that his waiver was not knowingly and intelligently waived. I should say that his rights were not knowingly and intelligently waived. Defendant cites State v. A.G.D. [citation omitted] for the proposition, but such reliance is misplaced. Unlike the defendant in A.G.D., defendant Williams was told in addition to his Miranda rights that he was under arrest for the two murders in question. Unlike the defendant in A.G.D., defendant was armed with the critically important information that he needed to make an intelligent and knowing choice whether or not to waive his rights.
He was aware that the determination of whether or not he was going to be arrested for these murders was at that point out of his hands. The police were not constitutionally required to educate defendant about the steps that they took prior to being able to tell him that he was under arrest for these murders. That ...