February 1, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAREEF ALI PASHA, A/K/A ALI PASHA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-07-00699.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2007
Before Judges Parrillo, Sabatino and Alvarez.
A Union County grand jury returned an indictment charging defendant, Shareef Ali Pasha, with murder, N.J.S.A. 2C:11- 3(a)(1) and/or (2), armed robbery, N.J.S.A. 2C:15-1(a)(1), felony murder, N.J.S.A. 2C:11-3(a)(3), all first degree crimes, as well as third-degree unlawful possession of a weapon,*fn1 N.J.S.A. 2C:39-5(d), and third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d). Defendant was found guilty only of the lesser included offense of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), as well as possession of a weapon for an unlawful purpose.
On October 14, 2005, defendant was sentenced to ten years imprisonment with eighty-five percent parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, and sixty months of parole ineligibility due to the Graves Act, N.J.S.A. 2C:43-6(c), on the reckless manslaughter conviction. The count of possession of a weapon for an unlawful purpose was merged into the reckless manslaughter count. Defendant appeals; we affirm.
The following facts were developed at trial. On December 19, 2003, in Elizabeth, Christopher Palermo and Joel Diaz stopped at Jamil's grocery store to buy cigarettes and Denny's Liquors to buy beer. The men then walked to a bus stop where they stood with fourteen year-old D.M., and her nine year-old friend, K.P. Diaz asked D.M. for a light. K.P. recognized Diaz as a friend of her cousin. A few minutes later they were joined by two other men, one of whom was wearing something similar to a mask. According to D.M., the second taller man wore an "army jacket" with a "half hood" and had a mark near his eye. The two men walked past her and began a conversation with Palermo and Diaz. D.M. testified that the taller man, whom she later identified as defendant, stood next to Diaz. Diaz hit the taller man with a beer bottle, causing the man in the mask to yell, "Malik, let's go." As he and defendant ran away, Diaz chased after them. The taller man drew a gun from the right side of his waist and pointed it at Diaz. D.M. saw a flash as Diaz grabbed his side and ran into a nearby car lot. He died shortly thereafter. The taller man and his companion fled. About a week later, D.M. selected defendant's photo as the shooter from a photographic array.
Palermo testified that the man in the mask and the taller man approached him and asked, "where is the drugs at?" and then commenced to feel about his and Diaz's pockets. After Diaz hit the taller man with a bottle and they began to run away, Diaz gave chase. Palermo said he thought he saw a flash, heard two shots, and saw Diaz run into the car lot where he collapsed.
The owner of Jamil's grocery store identified defendant as a customer who bought cigarettes on the evening in question. In fact, he recalled ejecting him from the store during his second visit as he was drunk. Defendant acknowledged he had been in the grocery store twice that night. An acquaintance of defendant's testified that he encountered him that evening, and defendant allegedly said, "I just did something f---ed up . . . some kid owed me money, whatever, and I popped him." A fellow prisoner at the Union County jail where defendant was incarcerated pending trial also testified that he had known defendant for at least four years, and that he had heard defendant, whose birth name is Shareef, referred to as Malik on several occasions. He said defendant discussed Diaz's death with him, and claimed defendant said Diaz "wouldn't give it up" and so he had to "blat, blat," meaning kill him.
During the pre-trial Miranda*fn2 hearing, Detective Thomas Koczur testified that on December 27, 2003, he went to defendant's home, where he was admitted by defendant's mother, to execute the arrest warrant issued for Diaz's murder. Defendant's mother took Koczur, as well as Detective Louchaun Holmes and Detective Bridget Lawrence, to a basement bedroom where two men were sleeping. Koczur asked, "Shareef, Malik, is that you?" Koczur removed the covers from a bed and defendant stood up. Koczur asked, "Shareef," and defendant said "yes." Koczur then went on to ask, "Malik," and defendant said "yes." Defendant was then placed under arrest. He was not questioned or given his Miranda warnings until after he arrived at the police station. During the ride, defendant repeatedly asked, "Who did I shoot?" despite Koczur repeatedly admonishing him not to say anything until they had an opportunity to administer the Miranda warnings and had arrived at the station. Koczur testified during the Miranda hearing only that defendant asked, "Who did I kill?," not "Who did I shoot?" At trial he testified that defendant asked, "Who did I shoot?," and stated that he memorialized the inculpatory query in his police report.
After being Mirandized, defendant gave an oral and a written statement. He initially claimed he was at his mother's home on December 19, but later acknowledged being in Elizabeth that night, visiting the grocery store and being drunk. In his statement he said he began to drink at noon. He denied being known as Malik and claimed he did not use the name, but did not correct Koczur when arrested because people got his name "mixed up."
Defendant, whose only prior was a joyriding conviction, told the jury during his testimony that on the date in question, he had to go to court because he owed several fines and wanted to have an arrest warrant lifted. He explained the warrant was issued because he was incarcerated in the Essex County Jail the day he was due to appear in the East Orange court. He admitted to having begun to drink on December 19 before noon, before he went to court. He also told the jury he was an alcoholic who was no more drunk the day of the shooting than any other day, and that he was at his "normal level of being drunk." He admitted using ten or more aliases. Contrary to Holmes' testimony, defendant denied ever having acknowledged using Malik as a nickname and in fact, denied ever having made any admissions to anyone, particularly to the witnesses who testified at trial.
Defendant said December 19 was a typical day: "[W]ent to court, was drinking, hanging out." He also said, "[P]eople I tend to hang around with is drug addicts and alcoholics and we hang around each other, to drink and to get high." He also said, "[y]ou shoot an alias and the police try to arrest you, you shoot an alias. That is what its called on the street." He admitted that "the Elizabeth police know me by face." In his written statement defendant claimed he wore a black coat, black hat, white sneakers, and a blue hoody on the date in question. In his trial testimony, he stated that his written statement was accurate, but on redirect, he said he had been wearing a black and blue Carolina Panthers baseball cap.
On appeal, defendant raises the following points:
THE DEFENDANT'S ORAL STATEMENTS MADE TO DETECTIVE KOCZUR AND DETECTIVE HOLMES AND THE DEFENDANT'S WRITTEN STATEMENT SHOULD HAVE BEEN SUPPRESSED.
THE DEFENDANT'S WRITTEN STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE OF THE COERCIVE SOLICITATIONS MADE TO THE DEFENDANT BY DETECTIVE KOCZUR.
THE DEFENDANT'S POST ARREST ORAL STATEMENTS MADE TO DETECTIVE KOCZUR AND DETECTIVE HOLMES SHOULD HAVE BEEN SUPPRESSED.
THE POLICE FAILED TO "SCRUPULOUSLY HONOR" THE DEFENDANT'S RIGHT TO BE ADVISED OF HIS MIRANDA WARNINGS.
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR'S MISREPRESENTATION CONCERNING THE ALLEGED ORAL STATEMENT MADE BY THE DEFENDANT AFTER HE WAS ADVISED HE WAS UNDER ARREST FOR MURDER (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).
THE PROSECUTOR IMPROPERLY INJECTED THE CONCEPT OF THE DEFENDANT'S "INNOCENCE" IN HIS SUMMATION (NOT RAISED BELOW).
THE PROSECUTOR IMPROPERLY SUGGESTED THAT THE DEFENDANT TAILORED HIS TRIAL TESTIMONY (NOT RAISED BELOW).
THE PROSECUTOR IMPROPERLY VOUCHED FOR THE CREDIBILITY OF THE POLICE OFFICERS (NOT RAISED BELOW).
DR. SHAIKH'S TESTIMONY THAT THE MANNER OF DEATH WAS "HOMICIDE" CONSTITUTED AN IMPROPER NET OPINION AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF THE TRIAL COURT'S SENTENCING DISCRETION.
THE TRIAL COURT FAILED TO ARTICULATE ADEQUATE REASONS FOR IMPOSING A BASE SENTENCE ON THE DEFENDANT'S CONVICTION FOR RECKLESS MANSLAUGHTER ON COUNT ONE THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM SENTENCE OF 5 YEARS.
IN IMPOSING THE 10 YEAR BASE TERM ON COUNT ONE THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE
In a pro se supplemental brief, defendant raises the following additional points:
THE COURT ERRED IN DENYING DEFENDANT'S REQUEST TO SUPPRESS DEFENDANT'S STATEMENT MADE TO DETECTIVE KOCZUR AND DETECTIVE HOLMES, WHERE OFFICERS CLAIMED TO OBSERVE DEFENDANT IN BED AND HE CLAIMED TO ACKNOWLEDGE TO THE NAME OF MALIK.
THE TRIAL COURT VIOLATED DEFENDANT'S FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS AND HIS RIGHT TO A JURY TRIAL WHEN IT SENTENCE[D] HIM TO TERMS GREATER THAN THE PRESUMPTIVE TERM, BASED UPON ON FACTS NEITHER ADMITTED BY DEFENDANT NOR FOUND BY THE JURY. (NOT RAISED BELOW).
THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL WHEN THE STATE'S WITNESS TWICE MADE COMM[EN]TS TO THE JURY EVEN AFTER THE COURT AND PROSECUTOR HAD WARN[ED] THE WITNESS NOT TO.
We address defendant's claim that his Miranda rights were violated in chronological order of when the asserted violations occurred. It bears repeating that Miranda warnings guarantee that the individual has "a meaningful opportunity to exercise" his right to remain silent. State v. O'Neill, ____ N.J. ____, ____ (2007) (slip op. at 22). The right against self- incrimination is guaranteed both by the federal constitution and state law. Id. at 21-22. But in order to be applicable, a defendant must be interrogated while in police custody. It is the combination - interrogation and custody - which triggers the requirement that citizens be reminded that, despite the inherently coercive nature of the setting, they can still exercise their privilege. Ibid.
Defendant contends that Koczur, by inquiring "Shareef, Malik, is that you?," engaged in custodial interrogation in the absence of Miranda warnings. This question is analogous to those which arise during booking procedures, which are routinely posed without the benefit of Miranda warnings. The officers had gone to defendant's home to execute an arrest warrant for murder for a person they believed was probably Shareef Ali Pasha, but who was known to answer to the name of "Malik." In order to serve the warrant on one of the two men asleep in the basement it was reasonable to ask, "Is that you?"
"[B]ooking procedures and the routine questions associated therewith are ministerial in nature and beyond the right to remain silent. Even unexpected incriminating statements made by in custody defendants in response to non-investigative questions by the police without prior Miranda warnings are admissible." State v. M.L., 253 N.J. Super. 13, 21 (App. Div. 1991) (citations omitted). "In order to constitute interrogation, police conduct 'must reflect a measure of compulsion above and beyond that inherent in the custody itself.'" Id. at 20-21 (citing Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed. 2d 297, 307 (1980); see also State v. Coburn, 221 N.J. Super. 586 (App. Div. 1987) (discussing Miranda requirements and police custody), certif. denied, 110 N.J. 300 (1988).
When the officers asked, "Malik, is that you?" the officers were attempting to confirm the identity of the occupants of the room. The police action in this case is similar to that in Coburn, supra, 221 N.J. Super. at 591, where police were told a man by that name had admitted to just killing someone and could be found at that moment at a particular address. The investigating officer asked the only man "in the room if his name was Coburn." Ibid. He then asked Coburn if he had just told his ex-wife that he had just killed his girlfriend, to which he responded in the affirmative, thereafter saying "I killed my girlfriend." Id. at 592. This actual interrogation, albeit abbreviated, was found not to violate Miranda because the defendant was not in custody. Id. at 596, 598.
While providing Holmes with the information necessary for the completion of the arrest report, defendant told her his nickname was "Malik." The defense contends that just as the initial contact required Miranda warnings, because of the significance of the name, the booking procedures in this case also required Miranda warnings. The trial judge ruled this inquiry was merely posed to obtain routine pedigree information and therefore did not require the warnings. Questions of this sort are "ministerial in nature" and do not require that Miranda warnings be given. M.L., supra, 253 N.J. Super. at 21 (citing United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112-13 (2d Cir. 1975), cert. denied. sub nom., Hines v. Bombard, 423 U.S. 1090, 96 S.Ct. 884, 47 L.Ed. 2d 101 (1976); State v. Cunningham, 153 N.J. Super. 350, 352 (App. Div. 1977)). Just because the answer is inculpatory does not make the question inculpatory, nor does it impose on the authorities a burden of sorting through the universe of potential answers a defendant might give which might be inculpatory when they are eliciting pedigree information. We are satisfied, given the nature of the questions, that the admission of this testimony was not error at all but merely in accord with well-settled law.
Defendant now challenges, for the first time, the admission of his repeated questions, "Who did I shoot?" Because he did not object to the comments now challenged we must review the asserted error under the plain error standard. State v. Macon, 57 N.J. 325, 337-38 (1971); R. 2:10-2. The objection is twofold. First, defendant contends that it was a calculated impropriety or some deceit that Koczur recalled at the Miranda hearing that defendant asked, "Who did I kill?" versus his testimony at trial during which he said defendant asked, "Who did I shoot?" This contention borders on the frivolous, as the more inculpatory question was contained in at least Koczur's police report, presumably supplied in discovery, and therefore defendant had ample fair warning as to the State's proofs at trial. In fact, when cross-examined, Koczur and defense counsel engaged in following exchange:
Q: And so there is no recording of your inquiring of him whether or not you had just misinterpreted what he said. Right?
A: No, sir, because he was very clear what he said, and I documented it in my report.
Q: It's very clear to you that he said to you, as he got out of bed, "Who did I shoot[?"] Right?
A: That is correct.
Q: You took that as some type of an admission, as opposed to a question. Is that correct?
A: I felt that very strange.
The fact Koczur corrected his misstatement at trial was simply not deceitful maneuver.
Secondly, defendant objects that the admission of the questions violated Miranda. The statements were volunteered, and were not the product of interrogation. Volunteered statements, no matter how damning, do not implicate Miranda. Miranda, supra, 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed. at 726 ("Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today."). There must be express questioning or its functional equivalent in addition to custody in order for Miranda to be triggered. Here, police explained to defendant that he was not going to be questioned until after they arrived at the station and his rights were administered. Nonetheless, he persisted in trying to engage them in conversation. No error occurred in the admission of these statements, much less plain error, either as prosecutorial misconduct or a violation of the Miranda doctrine.
In his written statement, after he was given his Miranda warnings twice, defendant admitted being in Elizabeth the day of the shooting, but denied involvement in the crime, or that his nickname was Malik. Defendant did not move to suppress his written statement at trial. He now claims that Koczur impermissibly pressured him to make the written statement by saying, "if you are not guilty of this crime, give us the information that we need to help you prove your innocence." There was nothing coercive about the words used by the officer. They did not impose some improper legal burden upon defendant. Rather, it was just phrasing employed to attempt to glean information. The admission of the written statement was not error, much less plain error.
The following was said by the prosecutor in closing, now asserted to constitute prosecutorial misconduct:
You bring the common sense of your everyday experiences into that jury room with you. Think about it. If somebody just accused you of a murder and then they were calling you by the wrong name, what would your first reaction be? "Oh, they must have made a mistake." Well, yeah, that would be your first reaction, there must be a mistake. If you were innocent and hadn't been Malik that night your first reaction would be, "This isn't me they are talking about. Detective, who you talking about["?] He had plenty of questions about who he shot, but he never said, "Why do you keep calling me Malik["?] He never said that.
The comment was made without objection and is therefore also subject to the plain error doctrine. R. 2:10-2. In making this argument, the prosecutor was merely commenting on the evidence that when informed he was charged with murder and referred to as Malik, defendant did not challenge the use of the name and only asked for the identity of the victim. To say that the language injected an improper standard of proof as is argued, namely, that a defendant has to prove his innocence, as opposed to the State having to bear its burden of proof beyond a reasonable doubt, is entirely without merit. The one word said by the prosecutor in her summation in this context does not negate the court's proper instructions. State v. Nelson, 173 N.J. 417, 478 (2000) (citing State v. Manly, 54 N.J. 259, 270 (1969)).
It is also argued that the prosecutor impermissibly contended that defendant tailored his testimony to the jury, contrary to State v. Daniels, 182 N.J. 80 (2004). Daniels does not prohibit the State from attacking the credibility of a defendant in the same manner as any other witness. "To be sure, defendants who testify are obligated to tell the truth like all other witnesses." Id. at 97 (citing State v. Burris, 145 N.J. 509, 530 (1996)). But "generic accusations" made during a prosecutor's summation that a defendant has tailored his testimony to fit the facts as developed in the courtroom do prejudice his exercise of fundamental rights. Id. at 98. Among these are his right to testify, to be present at trial, to confront witnesses and hear the evidence against him, to present witnesses and evidence in his defense. Id. at 97-98. A prosecutor is permitted, however, in a limited fashion to make specific accusations. Id. at 98-99. The comments "must be based on the evidence on the record and the reasonable inferences drawn therefrom." Id. at 99. In this case, the prosecutor was discussing the discrepancies between the defendant's written statement in which he claimed to be wearing a black hat, which changed on cross-examination to a black and blue Carolina Panthers baseball cap. The prosecutor referred to specific details, did so in a limited fashion, and focused only on the reasonable inferences that could be drawn from the testimony. No error occurred here.
Defendant also objects to the prosecutor saying during summation that, "[t]hose officers were telling the truth." Again, the standard is plain error, as no objection to the statement was made below. A prosecutor cannot properly argue "that the 'police had no motive to lie.'" State v. Vasquez, 374 N.J. Super. 252, 260 (App. Div. 2005) (quoting State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994)). Similarly, a prosecutor cannot "personally vouch for the credibility of a State's witness." Ibid. (citing State v. Staples, 263 N.J. Super. 602, 604-06 (App. Div. 1993)). In his closing, defense counsel vigorously attacked the credibility of each of the State's witness, including the police officers. The attack included defense counsel's personal belief about the dishonesty of the officer who completed the booking procedures and arrest card.
Since defense counsel failed to object at trial to the asserted improper remarks of the prosecutor, we must again determine whether they constitute plain error. R. 2:10-2. The test for determining whether prosecutorial misconduct constitutes reversible error is whether the misconduct "was so egregious that it deprived defendant of a fair trial." Ramseur, supra, 106 N.J. at 322 (1987). Thus, the summation must be viewed in the context of the entire proceeding, in order to determine whether defendant was denied a fair trial.
Any failure to object to claimed improper remarks not only deprives the trial court of an opportunity to rule on the objection, but it suggests that defense counsel at that moment did not believe the remarks were so prejudicial that an objection needed to made. State v. Frost, 158 N.J. 76, 84 (1999). Objected to or not, it is inappropriate for a "'prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.'" State v. Marshall, 123 N.J. 1, 154 (1991) (quoting ABA Standards for Criminal Justice §3-5.8(d) (2d ed. (1980)), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993).
The prosecutor's comment that the officers were telling the truth was no doubt in response to defense counsel's summation. Moreover, unlike in Frost or similar cases, the prosecutor did not suggest that the officers had a reason not to lie because charges would then be brought against them, or because of their status as police officers. Our courts have consistently held that statements that a police officer has no motive to lie, coupled with a reference to an adverse consequence to an officer's career, are wholly inappropriate. Frost, supra, 158 N.J. at 85-86. Nevertheless, in our view, in the context of this case, the prosecutor's comment that the officers "were telling the truth," was not so egregious as to deprive defendant of a fair trial. The prosecutor did not stray beyond the evidence, but was commenting specifically upon it to rebut a defense contention. In our view it was harmless.
Defendant asserts that imposition of the ten-year prison term was manifestly excessive and an abuse of discretion. Our task in reviewing a sentence is not to engage in second-guessing the sentencing court. Rather, it is to determine whether the aggravating and mitigating factors were supported by findings of fact based on competent and credible evidence on the record. State v. Kromphold, 162 N.J. 345, 355 (2000) (citing to State v. Jarbath, 114 N.J. 394, 401 (1989)). A sentence may only be modified if the sentencing court was clearly mistaken. Id. at 355. In this case, the sentencing court found aggravating factors one, three and nine, for reasons clearly articulated on the record. N.J.S.A. 2C:44-1(a)(1), N.J.S.A. 2C:44-1(a)(3) and N.J.S.A. 2C:44-1(a)(9). We reject defendant's contention that some legal error was committed by the sentencing judge by his articulation of the sentence, from the beginning of his oral statement of reasons, at the high end of the range, or ten years. The judge found specific facts which justified his award of three separate aggravating factors, and he gave them great weight based on defendant's criminal history and the circumstances of the offense, making imposition of a sentence at the highest end of the range, in the absence of clear mitigating factors, reasonable. See State v. Megargel, 143 N.J. 484, 494 (1996); State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994); State v. Murray, 240 N.J. Super. 378, 403 (App. Div.), certif. denied, 122 N.J. 334 (1990). The sentence imposed is neither manifestly excessive or unduly punitive and does not constitute an abuse of discretion in light of the aggravating factors and entire absence of mitigating factors. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984). Therefore, the sentence is affirmed.
Point IV of defense counsel's brief and all points raised in defendant's pro se brief are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Therefore, we affirm the judgment of conviction and the sentence imposed thereon.