October 12, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STANISLAW SMOLINSKI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-04-0822.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2007
Before Judges Lintner, Parrillo and Graves.
Following a jury trial, defendant Stanislaw Smolinski was found guilty of aggravated manslaughter, N.J.S.A. 2C:11-4a(1), a lesser-included offense of murder, N.J.S.A. 2C:11-3a(1) and (2), with which he was originally charged.*fn1 Defendant was sentenced to a twenty-five year term of imprisonment with an 85% parole disqualifier. Appropriate fees and penalties were also imposed. Defendant appeals, contending his waiver of Miranda rights was neither knowing nor voluntary, certain evidence was inadmissible, and his sentence was excessive. We affirm the conviction but remand for sentencing in accordance with State v. Natale, 184 N.J. 458 (2005).
The murder charge arose from the death of fifty-year old Grazyna Ziaja, who at one time apparently was romantically involved with defendant. According to the State's proofs, on January 1, 2003, around 10:00 p.m., Slavomir Wysocki, Grazyna's neighbor, saw defendant knocking on the victim's apartment door and heard him yelling. When Grazyna opened the door, defendant pulled her inside.
Grazyna was not seen again until January 7, 2003, when her daughter found her mother's body lying naked on a couch in the apartment. The daughter called the police, who responded to the scene. They saw no signs of a struggle, but observed some small droplets on the wall that were believed to be blood. The death was ruled suspicious and then later a homicide after an autopsy was conducted the next day. Although the exact time of death was uncertain, it was estimated to have occurred days, rather than hours, before discovery of the body.
Specifically, the autopsy performed by Dr. John Krolikowski, the acting State medical examiner, revealed that the victim's face, jaw and neck suffered from multiple abrasions, hemorrhages and bruises; that numerous other parts of the body showed abrasions and bruises; and that hemorrhages were present in the tongue and right eye. Dr. Krolikowski also examined the victim's heart, lungs and liver and found no evidence that her death was the result of natural causes. As a result, Dr. Krolikowski concluded, within a reasonable degree of medical certainty, that the victim's death was a homicide caused by asphyxiation and blunt trauma.
Defendant was questioned by police on January 8, 2002, the day after Grazyna's body was discovered. The interview was conducted by Detective Ryan Muller, but because defendant only speaks Polish, Detective Kwiecinski, who learned the language from his parents, translated. Kwiecinski, however, had no formal education in Polish.
Before the interview, defendant was informed of the investigation into the victim's death and advised of his Miranda*fn2 rights. Detective Kwiecinski had no difficulty understanding defendant, but admitted there were times when defendant seemed to have difficulty understanding him. On these occasions, Kwiecinski communicated by speaking in simpler terms. Although he may have mischaracterized some terminology by doing so, nevertheless, Kwiecinski believed defendant understood him.
With such assurance, the questioning then commenced at 3:00 p.m. and continued to 8:00 p.m., with three to five breaks, approximately ten minutes each. During this time, defendant continuously denied any recent contact with the victim. At around 8:00 p.m., defendant was shown a photograph of the crime scene and falsely told that his fingerprints had been found on a drinking glass visible in the photograph. Defendant then admitted, for the first time, having recently been in Grazyna's apartment. At that point in the interview, defendant was told he was being charged with the victim's murder, and was again read his Miranda rights in Polish. The questioning continued to about 10:00 p.m., at which time defendant claimed that he and Grazyna, who was overweight, had been having consensual rough sex when she began gasping for air and eventually became unresponsive. After being advised yet again of his Miranda rights, defendant gave an audio statement to the same effect, which ended at 10:45 p.m. According to Kwiecinski, all told, defendant had been informed of his Miranda rights approximately ten times during the course of the interrogation, in addition to having been offered food, drink, and access to the bathroom.
In support of his account, defendant presented Dr. Thomas Gilchrist, a specialist in forensic pathology, who opined that Grazyna had an abnormal heart condition, and that her injuries were neither fatal nor the type usually associated with strangulation. Consequently, Dr. Gilchrist opined that the cause of her sudden death was heart abnormality, given the lack of evidence of a struggle or of any of the injuries typically caused by strangulation. He admitted, however, that the blunt trauma to Grazyna's neck could be consistent with strangulation and that sudden death caused by the particular heart abnormality he diagnosed was rare.
Evidently crediting the State's version, the jury convicted defendant of aggravated manslaughter. This appeal follows in which defendant raises the following issues:
I. DEFENDANT'S STATEMENT SHOULD HAVE BEEN SUPPRESSED.
II. THE COURT ERRONEOUSLY PERMITTED A DETECTIVE TO TESTIFY THAT HE FOUND BLOOD SPLATTER ON THE WALL IN THE [VICTIM'S] APARTMENT.
III. AN INFLAMMATORY PHOTOGRAPH OF THE [VICTIM] WAS UNFAIRLY ADMITTED.
IV. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
V. DEFENDANT'S 25 YEAR SENTENCE, WHICH EXCEEDED THE PREVIOUSLY-EFFECTIVE PRESUMPTIVE TERM FOR DEFENDANT'S CONVICTION BY FIVE YEARS AND WAS CALCULATED BY REFERENCE TO THAT PRIOR CONVICTION, WAS UNCONSTITUTIONAL.
We address these issues in the order raised.
Defendant's challenge to the admissibility of his custodial statement is twofold. He argues first that his waiver was not knowing because the Polish translation was deficient, and second, that it was not voluntary because it was the product of unfair police trickery and deception. We disagree with both contentions.
It is well-settled that "[c]onfessions obtained by the police during a custodial interrogation are barred from evidence unless the defendant has been advised of his or her constitutional rights." State v. Knight, 183 N.J. 449, 461 (2005). "Stated differently, a defendant's custodial statement is admissible if it results from the 'voluntar[y], knowing and intelligent' waiver of his or her constitutional right to remain silent." Ibid. (quoting Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 707). Of course, the burden of establishing that the defendant's waiver was voluntary, knowing and intelligent rests with the State and must be proven beyond a reasonable doubt. See Knight, supra, 183 N.J. at 462; State v. Cook, 179 N.J. 533, 549, 552 (2004); see also State v. Bey (II), 112 N.J. 123, 134 (1988). Whether that burden is carried depends, "[i]n the final analysis, . . . upon the quality of the evidence presented, which must be determined by the trial court." State v. Sheika, 337 N.J. Super. 228, 240 (App. Div.), certif. denied, 169 N.J. 609 (2001).
Appropo to this case, the Supreme Court has noted that "[t]he problem of communicating Miranda rights to non-English-speaking defendants is important, particularly in a state with so diverse a population." State v. Mejia, 141 N.J. 475, 503 (1995), overruled on other grounds, State v. Cooper, 151 N.J. 326 (1997). Indeed, Miranda requires "'meaningful advice to the unlettered and unlearned in language which he can comprehend and on which he can knowingly act.'" State v. Bode, 108 N.J. Super. 363, 367 (App. Div. 1970) (quoting Coyote v. United States, 380 F.2d 305, 308 (10th Cir.), cert. denied, 389 U.S. 992, 88 S.Ct. 489, 19 L.Ed. 2d 484 (1967)).
That said, Miranda "does not require that any specific language be used to inform an accused of his rights." State v. Melvin, 65 N.J. 1, 14 (1974). Rather than requiring "a ritualistic formula," Miranda requires "'[w]ords which convey the substance of the warning along with the required information . . . .'" Ibid. (quoting United States v. Vanterpool, 394 F.2d 697, 698-99 (2d Cir. 1968)). Certainly, deviation from the words of the Miranda opinion is strongly discouraged, see ibid., but "[s]ubstance is to be considered rather than form in passing upon the adequacy of the required Miranda warnings." State v. Godfrey, 131 N.J. Super. 168, 180 (App. Div. 1974), aff'd o.b., 67 N.J. 267 (1975); see also Bode, supra, 108 N.J. Super. at 367.
In Mejia, the Spanish-speaking defendant was read his rights from a Spanish-language Miranda card by a police officer who, although raised in a Spanish-speaking home, had no formal education in the language. 141 N.J. at 501. The defendant was then interviewed by an investigator who had studied Spanish in high school and acted as a translator for the prosecutor's office, and who proceeded to read the defendant his rights from a bilingual Miranda card. Id. at 501-02. Under those circumstances, the Court found that the police adequately administered the Miranda warnings, even though there were instances when the interpreter deviated from an exact translation of the Miranda rights but offered additional explanation and "[t]he record [was] devoid . . . of any suggestion that [defendant] was confused or did not fully appreciate his rights." Id. at 501-03.
Here, admittedly, there were certain inaccuracies in Detective Kwiecinski's translation of defendant's Miranda rights, but ultimately he was able, by way of more lengthy explanations, to convey to defendant the substantial meaning of his Miranda rights, and to answer his questions. Defendant was repeatedly advised of his rights and whenever he expressed confusion, Detective Kwiecinski clarified any uncertainty to defendant's satisfaction. When, for instance, defendant voiced a problem with the translation, Kwiecinski would persist in explaining the concept until defendant indicated he understood. There is no evidence to suggest otherwise or that defendant failed to appreciate the full extent of his Miranda rights. Equally significant, defendant never alleged that "he was misled into . . . disclosing incriminating information in reliance upon the warning he was given." Melvin, supra, 65 N.J. at 14. To the contrary, defendant exhibited no reluctance or hesitation in speaking with the police since he was adamant that he had done nothing wrong, a position he consistently maintained throughout the entire interview. In fact, the information he alleges was the product of an uninformed waiver was largely exculpatory.
Based on this evidence, the trial judge, at the conclusion of the N.J.R.E. 104(c) hearing, ruled that defendant's statement was admissible as not violative of Miranda. Specifically, the judge reasoned:
This court finds that Kwiecinski's Polish translation of the Miranda form did in fact satisfy constitutional requirements. Defendant was advised that he had the right not to say anything. He was warned that whatever he said would be used in court. He was advised that he had the right to have an attorney there with him as he was being questioned, that the court would give him an attorney if he . . . could not afford one and that he had the right to tell the detectives that he did not wish to speak to them and that if he so advised them, they would be obligated not to speak to him anymore.
Finally he was advised that even if he didn't want an attorney immediately, he could stop the questioning and get an attorney later if he wanted to. This court finds that this fully conveyed the sum and substances of the Miranda warnings. This court also finds that Kwiecinski's Polish translation of the waiver form conveyed the sum and meaning of waiver.
Moreover, this court credits Detective Kwiecinski's testimony and finds beyond a reasonable doubt that the defendant fully understood his Miranda rights and knowingly and intelligently waived them.
With respect to defendant's complaints about Kwiecinski's use of the Polish word "manners" for the word "rights" and his failure to use a Polish word for the words "constitution" and "investigation," this court finds no error of constitutional magnitude. There is nothing in the record indicating that use of these words caused confusion or lack of understanding on the part of the defendant.
To the contrary, Detective Kwiecinski testified positively and unequivocally that defendant indicated that he fully understood his rights.
Based on the foregoing, this court is satisfied that the state has shown beyond a reasonable doubt that defendant's alleged statements were knowingly and intelligently given. This conclusion applies to the statements allegedly made during each of the three phases of the interrogation.
During the first phase, the proofs established that the Miranda form was read to the defendant by Detective Muller in English and by Detective Kwiecinski in Polish.
During the second phase, the proofs establish that the Miranda form was read to defendant in Polish by Detective Kwiecinski.
During the third phase, the proofs established that at the outset of the taping, defendant was advised of his "constitutional rights." Although the proofs do not expressly delineate what was meant by "constitutional rights," this court finds that under the totality of the circumstances, it is reasonable to infer that the phrase referred to the full panoply of Miranda rights.
In determining whether a trial judge's factual findings, made in furtherance of a decision on a motion to suppress a confession, are supported by "'sufficient credible evidence present in the record,'" State v. Barone, 147 N.J. 599, 615 (1997) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)), we are "obliged to defer to the trial judge's credibility determination to the extent that it was grounded in the court's opportunity to observe the character and demeanor of the witnesses . . . ." Sheika, supra, 337 N.J. Super. at 238. We do not reverse the denial of a motion to suppress unless we find that "[i]t can fairly be said that the trial judge went wide of the mark in his determination that the State had sustained its burden of proof respecting the question of voluntariness." Id. at 239.
We are satisfied that the factual findings upon which the trial judge's decision in this matter relies are supported by "sufficient credible evidence" offered at the N.J.R.E. 104(c) hearing. Barone, supra, 147 N.J. at 615. The judge credited the State's evidence, particularly the testimony of Detective Kwiecinski, who maintained that despite the lack of technical precision in some of his translation, defendant understood his Miranda rights and therefore knowingly and intelligently waived them. We defer to the trial court's determination on this point, grounded as it was in the court's opportunity to observe the character and demeanor of the witnesses -- an opportunity we are not afforded.
Defendant also contends his statement should have been suppressed as the result of police trickery and deception, rather than free will, when police falsely informed him his fingerprints were found at the crime scene. We disagree.
In determining whether a custodial statement was made voluntarily, "'[a] court must look at the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation.'" Knight, supra, 183 N.J. at 462 (quoting State v. Galloway, 133 N.J. 631, 654 (1993)). "Although misrepresentations by police officers to the subject of an interrogation are relevant in analyzing the totality of the circumstances, misrepresentations alone are usually insufficient to justify a determination of involuntariness or lack of knowledge." State v. Cooper, 151 N.J. 326, 355 (1997) (citations omitted). Thus, unlike physical abuse, "use of a psychologically-oriented technique . . . is not inherently coercive." Galloway, supra, 133 N.J. at 654; see also State v. Manning, 165 N.J. Super. 19, 30-31 (App. Div. 1978), certif. denied, 81 N.J. 358 (1979). Moreover, "a misrepresentation by police does not render a confession or waiver involuntary unless the misrepresentation actually induced the confession." Cooper, supra, 151 N.J. at 355.
During interrogation, the police are even permitted to, "by the officer's statements, make misrepresentations of fact or suggest that evidence in the form of reports or witnesses exist that will implicate a suspect." State v. Patton, 362 N.J. Super. 16, 32 (App. Div.), certif. denied, 178 N.J. 35 (2003). However, "the use of police-fabricated evidence to induce a confession that is then used at trial to support the voluntariness of a confession is per se a violation of due process." Id. at 49.
In Patton, police officers fabricated an audiotape wherein a police officer pretended to be an eyewitness to the crime.
Id. at 18. The audiotape was played for the defendant during the interrogation, at which time, he confessed. Ibid. In holding the confession should have been suppressed, we distinguished between oral misrepresentations on the one hand, and the use of police-fabricated tangible evidence on the other, noting:
Unlike oral misrepresentations, manufactured documents have the potential of indefinite life and the facial appearance of authenticity. A report falsified for interrogation purposes might well be retained and filed in police paperwork. Such reports have the potential of finding their way into the courtroom. [Id. at 33 (quoting State v. Cayward, 552 So.2d 971, 974 (Fla. Dist. Ct. App. 1989), review dismissed, 562 So.2d 347 (Fla. 1990)).]
See also State v. Chirokovskcic, 373 N.J. Super. 125 (App. Div. 2004).
Here, there was no fabrication of physical evidence. The photograph accurately depicted the crime scene, including two drinking glasses on a table in the victim's apartment. Thus, any deception did not emanate from the photograph, but rather from the oral misrepresentation that defendant's fingerprints were found in the apartment. As the trial court held:
This court finds that the verbal misrepresentation of evidence by Sergeant Appleyar was not the police fabrication of tangible evidence which is condemned as a violation of due process and which renders statements [inadmissible] as a matter of law.
Patton held that trickery or false representation is allowable as long as the falsity emanates from the voice of the officer. Thus verbal misstatements or fabrications by the police are allowable. What offends due process is the police fabrication of tangible evidence such as fake audio recordings, fake scientific documents, fake writings on official papers, et cetera.
The instant case does not involve police fabrication of tangible evidence. The photographs which were shown to defendant were not fabricated or fake, they depicted this crime scene. As such, they would be admissible at trial. The lie about fingerprints was verbal. It was not in the form of a false or fake tangible document purporting to [be] an official fingerprint analysis. Thus there is no due process basis for suppressing the statements which were induced from defendant.
We concur in the trial court's assessment. The misrepresentation made in this case was a permissible "suggest[ion] that evidence in the form of [fingerprints] exist[ed] that [would] implicate [defendant][,]" Patton, supra, 362 N.J. Super. at 32, and did not render defendant's statement an involuntary act.
Defendant next argues that, lacking any scientific basis, it was error to admit Sergeant Wagner's testimony that he believed the red spots on the wall to be blood. Trial counsel objected to the reference below, but was overruled by the judge who instructed the jury that no forensic tests had substantiated Warner's impression. We discern no abuse of discretion in the judge's ruling. State v. Nelson, 173 N.J. 417, 470 (2002).
Lay witnesses are permitted to testify as to "opinions or inferences" if that testimony "(a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue."
N.J.R.E. 701. Moreover, "[c]courts in New Jersey have permitted police officers to testify as lay witnesses, based on their personal observations and their long experience in areas where expert testimony might otherwise be deemed necessary." State v. LaBrutto, 114 N.J. 187, 198 (1989).
Here, Sergeant Wagner, who had seen numerous blood splatters in the past, offered his opinion, based on his knowledge, training and experience as a police officer, that the substance on the wall appeared to be blood. The observation was rationally based upon his ability to perceive the substance firsthand and may have assisted the jury in determining the circumstances of the victim's death. Moreover, to allay counsel's expressed concern, the judge instructed the jury that "there's been no scientific evidence" which confirmed that the substance was actually blood. We do not consider this ruling "'so wide of the mark that a manifest denial of justice resulted.'" State v. Marrero, 148 N.J. 469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).
We further reject defendant's contention that the admission of this "lay opinion" was unduly prejudicial because "it evoked images of a chain saw massacre movie." On the contrary, the State merely introduced three photographs of the substance described by Sergeant Wagner. The photographs fairly and accurately depicted the size of the droplets and the nature and appearance of the substance. Thus, the jury had the opportunity to evaluate on its own the nature and amount of the substance found. We perceive no risk of undue prejudice by the admission of such evidence, much less one that substantially outweighs its probative value. N.J.R.E. 403; State v. Carter, 91 N.J. 86, 106 (1982). As such, there was no abuse of the judge's considerable discretion in this regard. Nelson, supra, 173 N.J. at 470.
Nor was there an abuse of discretion in admitting a photograph of the victim depicting her decomposed state. In rejecting defendant's argument below, the judge made a studied effort to limit which photographs could be shown to the jury. The judge reasoned:
I understand. I feel at this point, I think you did an excellent job cross examining the medical examiner. I think you, you know, you attacked him from every corner that you could possibly have done it from. And I think the nature of the cross examinations, . . . entitles the State to put in at least one photo that corroborates the medical examiner's view.
This I'm not going to show to the jury. I'm not going to show those things to the jury because the probative value is minimal in terms of, we already had the testimony, the jurors are not going to be able to look at those photos and say, "Ah yes, I see what [the] doctor said, you know here's the bruising along the neck strap muscles." They're not going to be able to tell that. You'd have to be an expert.
This is one photograph that shows a close up of the face that I asked the doctor [about] specifically and I will you know instruct [the prosecutor] if she intends to use [it] in her closing that she better hue quite closely to the doctor's testimony on it. And I will instruct the jury about what the -- you know the reason the photos are in.
And I will remind them again, I'll remind them about the testimony with regard to lividity. They can see that on the -- on the other photos as well though.
In State v. Thompson, 59 N.J. 396 (1971), our Court addressed the issue of photographs of a homicide victim and noted:
[p]ictures of a murdered body are likely to cause some emotional stirring in any case, but that of itself does not render them incompetent. They become inadmissible only when their probative value is so significantly outweighed by their inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence. [Id. at 421.]
In State v. Johnson, 120 N.J. 263 (1990), the Court further noted: in order to be admissible, photographs must be "logically relevant" to an issue in the case. [State v. Bey (II), 112 N.J. 123, 182 (1988)]. The prosecution may not, however, "use at will any and all pictures at a murder trial as long as they possess some relevancy." [State v. Bucanis, 26 N.J. 45, 53, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958)]. "Whether evidence is admissible depends upon a composite of factors, and its relevance may on occasion be overbalanced by more weighty considerations militating for exclusion."
Ibid. (citation omitted). The "admissibility of photographs of the victim of a crime rests in the discretion of the trial court, and the exercise of its discretion will not be reversed in the absence of a palpable abuse thereof." [Thompson, supra, 59 N.J. at 420 (citations omitted)]. [Id. at 297.]
Indeed, "[p]hotographs of unpleasant and gruesome aspects of a murder case are not objectionable for this reason alone," State v. Huff, 14 N.J. 240, 251 (1954), and courts have admitted photographs containing graphic content when used to demonstrate that an act was purposeful and knowing. See State v. McDougald, 120 N.J. 523, 580-82 (1990) (admitting pictures showing "gaping throat wound" and a "bat protruding from [the victim's] vagina"); State v. Sanchez, 224 N.J. Super. 231, 249-51 (App. Div.) (admitting "closeups of the gunshot wounds on the victim's hand, chest cavity and face"), certif. denied, 111 N.J. 653 (1988).
Here, of course, defendant was charged with the purposeful or knowing killing of the victim and the jury was presented with conflicting expert proofs as to the cause of death. Clearly, the photograph in dispute, which showed positioning and bruising, was highly relevant to the critical issue of knowing or purposeful murder. See McDougald, supra, 120 N.J. at 580-82. Furthermore, decomposition, lividity and the appearance of injuries post-mortem were issues developed in some detail by defense counsel during both cross-examination of the State's expert and on direct of defendant's expert. Consequently, the jurors had been educated that the photograph, while relevant to the victim's injuries, was not representative of the appearance of those injuries at death, thus minimizing any potential for prejudice otherwise inhering in the photograph. In excluding two close-ups, and allowing the third challenged photograph, the judge said she would remind the jury about the medical examiner's testimony and how the blood naturally pools upon one's death. Under the circumstances, the photograph was properly admitted under N.J.R.E. 403.
Defendant claims his sentence was excessive and violative of State v. Natale, 184 N.J. 458 (2005). Because we agree with the latter claim, we need not address the former.
Defendant's twenty-five year sentence, imposed on July 22, 2005 -- one month prior to the Natale decision, was above the then "presumptive" term for aggravated manslaughter. Because the sentence was based on aggravating factors requiring fact-finding, and within the Natale retroactive pipeline, the matter must be remanded for resentencing in conformance with that decision.
Remanded for resentencing in accordance with State v. Natale; otherwise the judgment of conviction is affirmed.