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State v. Salazar

February 6, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALBERTO SALAZAR, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-03-0349-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 15, 2008

Before Judges Fuentes and Grall.

Defendant appeals from his convictions for felony murder, N.J.S.A. 2C:11-3a(3) and second-degree robbery, N.J.S.A. 2C:15-1. The trial judge merged the convictions and sentenced defendant to the mandatory minimum term, thirty years of incarceration without possibility of parole. N.J.S.A. 2C:11-3b.

On appeal, defendant contends that statements he made to the police during an interview at headquarters, which were introduced into evidence at trial, were the product of "custodial interrogation" and inadmissible because he was not given the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). We affirm substantially for the reasons stated by Judge Heimlich in his written decision dated January 12, 2007.*fn1

The question in this case is whether defendant was in custody. "The test of whether an individual is in custody for Miranda purposes is an objective test, which focuses on the totality of the circumstances." State v. Messino, 378 N.J. Super. 559, 576 (App. Div.), certif. denied, 185 N.J. 297 (2005). "[C]ustody must be determined based on how a reasonable person in the suspect's situation would perceive his circumstances." Yarborough v. Alvarado, 541 U.S. 652, 662, 124 S.Ct. 2140, 2148, 158 L.Ed. 2d 938, 950 (2004). The subjective views of the detainee or the interrogating officer are not determinative of custody. Id. at 663, 124 S.Ct. at 2148-49, 158 L.Ed. 2d at 950-51. "[C]ustody exists if the action of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he could not leave freely." Messino, supra, 378 N.J. Super. at 576 (quoting State v. Coburn, 221 N.J. Super. 586, 596 (App. Div. 1987), certif. denied, 110 N.J. 300 (1988)). The determination "is fact-sensitive." State v. Stott, 171 N.J. 343, 364 (2002). The relevant circumstances include "'the time and place of the interrogation, the status of the interrogator,'" and "whether a suspect knew that he or she was a focus of the police investigation." Id. at 365 (quoting State v. P.Z., 152 N.J. 86, 103 (1997)).

A detective who investigated the crime and interviewed defendant testified to the following at the pre-trial hearing on defendant's motion to suppress his statements. The victim of this crime lived in an apartment building in Elizabeth. Defendant lived and worked in the same apartment building. The victim was admitted to the hospital after defendant and the manager found her lying on the floor of her apartment.

The detective and other officers went to the apartment house to investigate later that day. The detective interviewed both defendant and the manager. Defendant told him that he had been in the victim's apartment earlier that day. She asked him to get her coffee and a bun, and he complied. Shortly thereafter, he went to the manager's apartment. The manager and the defendant both told the detective that they heard the victim yelling and went to her aid together. The victim's pocketbook was missing.

Defendant was with the police when they searched and found the pocketbook outside the apartment building in a bank of snow. The detective asked both the manager and defendant if they would be willing to come to headquarters the next day to give a statement. They both agreed.

The following day, the detective and another officer picked up the manager shortly after 9:00 a.m. to take her to headquarters. Defendant was outside working to remove snow and ice when they arrived. He was also outside when the police officers returned with the manager at about 2:00 p.m. He then went to headquarters with the officers in their car. Three officers interviewed him for about one hour in an interview room. He was permitted to smoke during the interview. He gave the officers information that was consistent with what he had said the night before. They asked him if he had any prior convictions, and he told them about a prior drug conviction. Defendant was calm and cooperative during the entire interview.

The detective asked him if he would take a polygraph, and he agreed. He said, "Sure." While defendant waited for the polygrapher to arrive, he was given something to eat and drink. The officers brought another resident of the apartment building into headquarters for an interview.

After the polygraph was done, the officer who conducted the test concluded that defendant was being deceptive when he responded to questions about the incident. He reported his conclusion to the detective.

The detective told the defendant about the results and gave him Miranda warnings. After acknowledging his receipt and understanding of the warnings, defendant waived his rights. He admitted that when he took the bun and coffee to the victim's apartment, he ...


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