On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-05-0433.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2008
Before Judges Lintner and Parrillo.
Following a jury trial, defendant Daniel Holton was found guilty of second-degree robbery, N.J.S.A. 2C:15-1(a)(3) (count one); second-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count two); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count three); and fourth-degree false incrimination, N.J.S.A. 2C:28-4(a) (count four). He was sentenced to an aggregate fifteen-year term subject to an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
This criminal episode arose out of a break-in that occurred around midnight on January 17, 2003, at the residence of eighty-four year old Ida Solda, at 409 Northeast Avenue, Vineland. Solda had been asleep in her bedroom when she was awakened by a bang on the door, only to find a masked man standing in her hallway. The man's mask had small holes in it, just enough to expose his eyes. Solda screamed at the man to leave, but he refused. Instead, the intruder forced Solda back into the bedroom, took the quilt from her bed, pulled her down onto the quilt, tied her arms tightly with duct tape, ripped the phone cord out of the wall, and bound her legs with the wire. After he threw another blanket on top of her, Solda could no longer see, but heard the man rifling through her drawers, turning over her jewelry box, and emptying her purse. When she no longer heard any noise and realized the intruder had left, Solda attempted to free herself, which she was able to do after some effort, whereupon she ran to a neighbor's house to call the police. It was later discovered the intruder stole $53 in cash from the victim's purse.
When Officers Anthony Capelli and Joseph Montana of the Vineland Police Department arrived at the neighbor's house, Solda was upset and shaken, but managed to describe her attacker as a tall masked man wearing white sneakers. Although the man never spoke during the incident, she ascertained he was white because she saw his hands while he tied her up.
The officers then proceeded to Solda's house where they found the front door had been forced open and broken, and though the rest of the house was untouched, the bedroom and hallway were both in disarray. During the search of the premises and immediate vicinity, Officer Montana noticed two sets of footprints in the fresh snow, made by someone wearing sneakers. The officers tracked one set of footprints from the house south on East Avenue to New Paris Street, then eastbound, ending in the area of 411-413 Northeast Avenue.*fn1 411-413 Northeast Avenue is the residence of Vincent Stratton, and the location where defendant was, at the time, renting a room in the garage. The other set of footprints was not traceable.
The following day, January 18, 2007, Vineland Police Officer Louis Carini went to 411-413 Northeast Avenue and found defendant living in a small eight foot by eight foot garage on the property. Defendant shared this living arrangement with another young man, Charles Hope, and the garage was actually divided by a tarp that had been repaired with duct tape. With defendant's permission, Officer Carini searched the garage and confiscated a pair of defendant's black Rim Rocka sneakers that, it was later determined, did not match the footprints found in the snow.
Defendant himself initiated the next contact with the police. Less than one week later, on January 24, 2003, defendant phoned Detective Francine Webb and told her he had information about the Solda robbery. Upon his arrival at the police station, defendant informed Detective Webb that he had overheard his roommate Hope speaking to the landlord, Stratton, about the robbery. Defendant then related specific details about the crime, including the fact that Solda was bound using duct tape not rope, the perpetrator wore a ski mask with the eyeholes cut out, and the exact amount of money taken. In fact, defendant identified the duct tape used as the tape from his garage apartment.*fn2 Because he was not a suspect and was free to leave, defendant was not given Miranda*fn3 warnings at the time.
After Hope and another man, Bruce Holt, were interviewed and eliminated as suspects, Detectives Webb and Martorano decided to interview defendant a second time. Consequently, Detective Martorano brought defendant to the police station and seated him in the interview room at around 8:50 p.m. on February 12, 2003, at which point Martorano told defendant he did not believe defendant's earlier version of the robbery. When defendant disagreed, and before saying anything else, Martorano gave defendant his Miranda rights at 9:12 p.m.
Since defendant neither reads nor writes, Martorano asked him "if he would understand each right if [the detective] verbally read them out loud to him." Defendant replied, "yes." Martorano then read defendant each individual right, asked him whether he understood each right, to which defendant replied yes, then had defendant sign the Miranda form.
Proceeding with the interview, Martorano inquired whether defendant would be willing to take a polygraph test. Defendant replied that he would not have a problem with that. However, when asked if he would answer questions during the test about the information he gave Detective Webb, defendant refused, saying "[n]o, I'd fail the test." Upon further questioning by Martorano, defendant admitted that he had lied in his previous interview. Martorano then exited the room to talk to Webb.
Both detectives then re-entered to continue the interview. After some additional questioning, defendant admitted having previously lied to Detective Webb, who then left the room. At approximately 10:15 p.m., Martorano administered the polygraph test to defendant, which lasted until 10:40 p.m. Afterwards, when asked by Martorano how he thought he did on the test, defendant replied poorly because while verbally denying involvement in the crime, he was thinking just the opposite. Martorano then informed Webb of the test results and the two detectives spoke with defendant once again.
At this point, defendant offered another account of the robbery, implicating someone named "Q." According to defendant, "Q" had come to defendant's home earlier in the evening of the incident, asking to borrow a crow bar and duct tape to rob a house. Defendant lent "Q" the items, but it was only after defendant heard a loud bang that he realized "Q" was robbing his neighbor.
This version changed once again after Martorano left the interview room. According to Webb, defendant, in an untaped interview, finally admitted conspiring with "Q" to rob the elderly lady, by being the "lookout" while "Q" stole $45*fn4 from her purse. Defendant insisted that he had only acted as a lookout for the robbery: "I was the lookout. I knew what he was going to do, but I swear to God I didn't go into the old lady's house." When asked why he had not mentioned "Q" earlier, defendant cried, saying he was afraid of "Q" because "Q" had threatened his family.
After discussing his involvement off-tape, defendant gave a taped statement, preceded by reissuance of his Miranda warnings at 2:47 a.m., and ending at 3:07 a.m., upon his arrest, approximately seven hours after his arrival at the police station.*fn5 As with the initial Miranda warnings, Webb discussed with defendant the fact that defendant could not read, read each warning to him, asked if he understood the warnings, then had defendant initial each warning as he responded "yes." Defendant acknowledged that he understood his rights, did not have any questions, was willing to talk to the detective, and personally printed his name at the bottom of the form.
Sometime after the taped interview, around 3:00 p.m. on February 13, 2003, defendant called Webb from jail to suggest yet another possible suspect, a person who knew Stratton. Although defendant gave no details, and Webb advised him not to speak with her, defendant nevertheless insisted she talk to Stratton, who apparently was with him in jail. Consequently, Stratton was later interviewed. This followed a previous interview with Stratton about an apparent conversation he overheard between Hope and Holt. Although a tape of that interview had been lost, a supplemental police report of February 11, 2003, summarizes the conversation:
[Stratton] related that he overheard Charles Hope and Bruce Holt bragging to Daniel Holton that they burglarized the residence of the 'old lady[.]' Hope was reported to have tied up the victim and Holt was to have emptied her purse. Stratton gave a taped statement regarding the conversation he overheard.
On appeal, defendant raises the following issues for our consideration:
I. BECAUSE THE STATEMENT THAT THE DEFENDANT MADE TO THE POLICE IN THE EARLY MORNING HOURS OF FEBRUARY 13, 2003, AFTER SEVEN HOURS OF INTERROGATION, WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY MADE, THE TRIAL COURT'S REFUSAL TO GRANT HIS MOTION TO SUPPRESS THE STATEMENT DEPRIVED HIM OF DUE PROCESS OF LAW AND VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION. U.S. CONST., AMEND. V, XIV; N.J. CONST., ART I, ¶ 1.
II. THE TRIAL COURT'S DENIAL OF DEFENDANT'S REQUEST TO PROVIDE THE JURY WITH A CORROBORATION CHARGE VIOLATED HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST., ART I, ¶ 1.
III. THE CRIME OF KIDNAPPING WAS UNSUPPORTED BY SUFFICIENT EVIDENCE BECAUSE THE CONFINEMENT WAS INCIDENTAL TO THE OTHER CRIMES; THEREFORE, THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A JUDGMENT ...