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State v. Shelley

February 25, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LEROY SHELLEY,*FN1 DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 97-04-0715 and 97-03-0549.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 23, 2008

Before Judges Yannotti and LeWinn.

After the trial court denied his motion to suppress certain statements that he gave to the police, and found that he was competent to stand trial, defendant pled guilty to count one of Atlantic County Indictment No. 97-03-0549, charging first-degree robbery, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; and count two of Atlantic County Indictment No. 97-04-715, which charged defendant with first-degree robbery, in violation of N.J.S.A. 2C:15-1. Defendant's plea was conditioned on his right to challenge the trial court's suppression and competency determinations. On March 1, 2002, defendant was sentenced to concurrent terms of twenty years of incarceration, each with a nine-and-one-half-year period of parole ineligibility. By order dated March 21, 2006, we granted defendant's motion to file a notice of appeal nunc pro tunc.

Defendant raises the following arguments for our consideration:

POINT I:

THE STATE FAILED TO SUSTAIN ITS BURDEN OF PROOF THAT THE DEFENDANT'S WAIVER OF RIGHTS WAS KNOWING AND VOLUNTARY, AND THE MOTION COURT[']S FINDINGS WERE INSUFFICIENT TO SUPPORT ITS DECISION. (U.S. CONST., AMENDS. V, XIV; N.J. CONST. (1947), Art. I, Par. 10).

POINT II:

THE MOTION COURT ERRED IN FINDING THE DEFENDANT COMPETENT TO STAND TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), Art. I, Par. 10.

POINT III:

THE COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION, AND A REMAND PURSUANT TO STATE v. NATALE IS NECESSARY.

For the reasons that follow, we are convinced that there is no merit in Points I and II. However, we agree in part with the contentions in Point III and therefore remand for re-sentencing.

I.

Defendant first argues that the trial judge erred by denying his motion to suppress the statements he made when he was questioned by the police. There is no dispute that defendant was informed of his rights under Miranda*fn2 and elected to waive his right to counsel and his right to remain silent. Defendant argues, however, that his statements were not freely and voluntarily given because he was physically assaulted by the police, threatened with further abuse if he did not make incriminating statements, and the police withheld the medication required for his mental illness.

"The State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." State v. Knight, 183 N.J. 449, 462 (2005) (citing State v. Galloway, 133 N.J. 631, 654 (1993)). When determining whether a defendant made a statement voluntarily,

[a] court must look at the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation. Relevant factors to be considered include the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved. [Id. at 462-63 (quoting Galloway, supra, 133 N.J. at 654).]

Here, the trial judge found that defendant freely and voluntarily made the statements when he was questioned by the police. We are convinced from our review of the record that there is substantial credible evidence to support the judge's finding.

Defendant's convictions arose from an armed robbery at a Payless Shoe store in Egg Harbor Township, New Jersey on February 12, 1997. Detective Sergeant Raymond Davis of the Egg Harbor Township Police Department (EHTPD), responded to the scene, and a clerk informed him that a black male had entered the store, brandished a firearm, stole money from the cash register, and fled the store on foot. The robbery was recorded by a surveillance camera.

Davis said that a witness saw a black male run from the store and enter the passenger side of a vehicle, which exited the parking lot at a high rate of speed. The witness recorded the vehicle's license plate number. Davis communicated that information to other law enforcement agencies, and he was informed that the vehicle was registered to defendant. That evening, Davis learned that defendant and Andre Jobe had been arrested by officers of the Philadelphia Police Department (PPD).

On February 13, 1997, Davis and Detective John Furlong of the EHTPD went to interview defendant and Jobe, who were being held at a police precinct in Philadelphia. Davis brought with him photos developed from the surveillance tape made during the shoe store robbery. Defendant was taken from a holding cell and walked upstairs to an interview room where he was questioned by Davis and Furlong. Detective Nathan and Lieutenant Dominick of the PPD sat in on the interview.

Davis testified that at approximately 5:30 p.m., Furlong read defendant the Miranda warnings from a standardized card issued through the EHTPD. Defendant told the officers that he understood his rights and did not want to see an attorney. Davis maintained that he did not coerce or threaten defendant, and that defendant gave his statement "freely and voluntarily."

Initially, defendant denied that he was involved in the robbery. He said that the previous evening, he had been with a "girl" and he had loaned his car to Jobe. However, about forty minutes after the questioning began, Davis showed defendant the surveillance photos. Defendant said that the individual in the photos was Andre Jobe. Davis told defendant that he was going to show the photos to Jobe and he asked defendant what he thought Jobe might say if he saw himself in the photos. Defendant again told Davis that he was not involved in the robbery.

The initial interview with defendant ended around 6:10 p.m. Defendant was brought downstairs and again placed in the holding cell. As he was being brought to the holding area, defendant called out to Jobe and said that the police had photos. Davis and a Philadelphia police officer then brought Jobe upstairs to be questioned. Jobe gave the officers a statement.

At 9:30 p.m., Davis, Furlong and Nathan brought defendant back upstairs to the interview room. Defendant was again informed of his Miranda rights. Davis testified that defendant appeared to understand his rights, spoke coherently, and did not ask to see an attorney. Defendant initialed the paragraph on a form, indicating that his rights had been read to him and that he understood what was read. The officers told defendant that they had just finished questioning Jobe, and Jobe told them that defendant was involved in numerous robberies.

Davis testified that defendant did not appear to be intoxicated by alcohol or drugs and his speech was coherent. Davis asserted that defendant understood his rights and agreed to answer the officers' questions without an attorney being present. Davis again stated that he did not promise defendant anything in return for his statement and did not coerce or threaten defendant in any manner. Davis ...


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