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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...