On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-07-0698.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2008
Before Judges Lisa, Lihotz and Simonelli.
Defendant, William Suarez, was the subject of a ten-count indictment. After severance of six counts charging carjacking, robbery, and other offenses, defendant went to trial on the following four counts, which are the subject of this appeal: first-degree murder, N.J.S.A. 2C:11-3a(1) or (2) (count one); third-degree unlawful possession of a handgun without a permit on December 30, 2003, N.J.S.A. 2C:39-5b (count two); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a(1) (count three); and third-degree unlawful possession of a handgun without a permit on December 31, 2003, N.J.S.A. 2C:39-5b (count nine). The jury found defendant guilty of all four counts. After merging count three with count one, the judge imposed a sentence for murder on count one of sixty years imprisonment with an 85% parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. On count two, the judge imposed a sentence of five years imprisonment consecutive to count one. On count nine, the judge imposed a five-year sentence with a two-year parole disqualifier consecutive to counts one and two. Therefore, defendant's aggregate sentence is seventy years imprisonment, of which he must serve 85% of sixty years plus an additional two years before being eligible for parole.
Defendant argues on appeal:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS BECAUSE SERGEANT PINHO'S INITIAL ENTRY INTO THE DEFENDANT'S APARTMENT WAS PRETEXTUAL AND WITHOUT LEGAL JUSTIFICATION, AND BECAUSE SERGEANT PINHO DID NOT OBTAIN A VALID "CONSENT" TO ENTER.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE ORAL AND WRITTEN STATEMENTS HE MADE TO THE POLICE.
THE TRIAL COURT FAILED TO APPLY THE "TOTALITY OF THE CIRCUMSTANCES" TEST IN ADMITTING THE DEFENDANT'S STATEMENTS.
THE POLICE FAILED TO "SCRUPULOUSLY HONOR" THE DEFENDANT'S INITIAL REQUEST TO SPEAK WITH AN ATTORNEY.
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN THE PROSECUTOR ELICITED TESTIMONY THAT THE DEFENDANT'S APARTMENT WAS SEARCHED AND THAT THE DEFENDANT WAS ARRESTED PURSUANT TO WARRANTS THAT WERE SIGNED BY "JUDGE MOYNIHAN." (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN DETECTIVE OLIVERO TESTIFIED THAT HE SPOKE TO "A CERTAIN PERSON THAT I CAN'T MENTION."
THE AGGREGATE 70 YEAR BASE CUSTODIAL SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION, AND VIOLATED STATE V. NATALE.
THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A BASE CUSTODIAL TERM ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE TERM OF 30 YEARS.
THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCES IMPOSED ON COUNTS ONE, TWO, AND NINE CONSECUTIVE TO EACH OTHER.
We reject these arguments and affirm.
On December 30, 2003, shortly before 6:00 p.m., defendant was an occupant of a 1988 Honda Accord, being driven in Elizabeth by Tomas Gonzalez.*fn1 Defendant was in the front passenger seat. Two women, Josanna Robles and Stephanie McDougald, were in the back seat. The car was owned by defendant's girlfriend, Vanessa Cambert.*fn2
The Honda was involved in a minor accident with a new 2004 Nissan Altima being driven by its sole occupant, Joshua Meltzer. Gonzalez drove away from the scene of the accident. According to him, it was a very minor collision, his driving privileges were suspended, he did not know whether Cambert's vehicle was insured, and he did not want to report the accident to the police. However, Meltzer followed the Honda, attempting to have it pull over.
Finally, Gonzalez drove into the rear of a supermarket parking lot. Meltzer followed. Meltzer got of his car, and all four occupants got out of the Honda.*fn3 Meltzer wanted to exchange insurance information. Defendant and Gonzalez (and perhaps the two women) attempted to "negotiate" with Meltzer. They refused to exchange information. Gonzalez reportedly offered to pay for any minor damage to Meltzer's car. Meltzer persisted and eventually took out his cell phone to call the police. Defendant grabbed the cell phone from Meltzer's hand and threw it toward a wall bordering the parking lot, on the other side of which was the Elizabeth River. Defendant directed the other three individuals to get back into the Honda. As they did, defendant removed a loaded .38 caliber handgun from his waist. Meltzer had just gotten back into the driver's seat of his car, with the door still open. From a range of one to two feet, defendant fired one shot into the back of Meltzer's head, causing his death. Defendant jumped back into the Honda and the four sped away from the scene, with Gonzalez driving.
Defendant lived in a two-bedroom, third floor apartment at 579 Madison Avenue in Elizabeth. Defendant and Cambert shared the back bedroom. Gonzalez and his girlfriend, Jeanette Perez, shared the other bedroom. Each of the men had a safe in his respective bedroom.
On December 31, 2003, an Elizabeth motorcycle officer saw a 1988 Honda Accord matching the description of one that was involved in a carjacking earlier that day in Union. The officer stopped the car, then driven by its only occupant, Jason Branch. The car also matched the description of one that had been involved in several robberies of fast food or convenience stores in the area. The officer began questioning Branch about the carjacking, and Branch volunteered that he was not involved in a bank robbery. This was unusual, because the officer did not mention a bank robbery. In any event, Branch informed the officer that three other occupants of the Honda had recently taken a taxi to go elsewhere. The police contacted the taxi company, and learned that the three occupants were taken to 579 Madison Avenue.
Detectives Stephen Owsiany and Keith White went to 579 Madison Avenue. Owsiany spoke to the building's owner and showed him composite sketches of suspects in the investigation pertaining to the robberies. The owner believed the sketches resembled the people occupying the third floor apartment. Other officers were called to the scene.
Sergeant William Pinho went to the front door of the third floor apartment, while Owsiany went to the rear. Pinho knocked on the door. He was in plain clothes but wearing his police badge around his neck. Cambert answered the door. Pinho identified himself as a police officer and said he was investigating a robbery and carjacking. Cambert allowed him into the apartment. Pinho saw a woman run down a hallway toward the rear of the apartment. He asked Cambert who else was in the apartment. She said no one else was there. Recognizing that this investigation involved individuals involved in violent crimes, who were armed with firearms during their commission, Pinho feared for his safety and went to the area of the apartment to which the woman apparently secreted herself. Other officers entered the apartment.
When Pinho entered the back bedroom, he did not see anyone, but he saw a piece of plywood covering the entry to a small attic crawl space. He removed the plywood and, with his weapon pulled, shined his flashlight into the crawl space. He saw two women hiding there. He directed them to come out. They refused. He reached in and pulled one out; the other followed.
With the illumination from his flashlight, Pinho observed in the crawl space large quantities of currency and unopened cellophane packets containing lottery tickets. The two women in the crawl space were Robles and McDougald. They were arrested, as was Cambert. Gonzalez and his girlfriend, Perez, were in Gonzalez's bedroom. They were also arrested.
Owsiany was in charge of the investigation. Upon learning of the presence of the currency and lottery tickets, he immediately directed that the other officers refrain from searching the apartment until after a search warrant was obtained.
While these events were occurring inside the apartment, there was an obvious police presence outside the apartment building. Defendant walked toward the apartment building. He was encountered on the front porch by a uniformed Elizabeth police officer, Lateef Banks, who was assisting in securing the perimeter, but was not familiar with or involved in the investigation being conducted by the detectives inside the apartment. Banks had known defendant from the neighborhood for about ten years, and he knew defendant's mother and other family members. Banks asked defendant if he lived in the building. When defendant responded affirmatively, Banks asked on which floor, to which defendant responded, "the third floor."
Accordingly, Banks detained defendant and placed him in the back seat of his patrol car. Banks sat in the front seat, and the two conversed for about twenty minutes.
The individuals arrested were being escorted from the building within the view of defendant and Banks. Defendant was not free to leave, and the State concedes that he was in custody. Banks did not administer Miranda*fn4 warnings. In the course of the conversation, Banks told defendant that defendant's mother was concerned about him and that he hoped that defendant was staying out of trouble and doing the right things. According to Banks, defendant volunteered, "Lateef, I got guns and money in the safe and the girls have nothing to do with nothing that's going on." Defendant was eventually transported to the stationhouse and arrested in connection with the investigation pertaining to the carjacking and bank robbery (later to include the convenience and fast food store robberies).
That evening, armed with a search warrant, police returned to the apartment and conducted a search. In the safe in the crawl space in defendant's bedroom they found several guns, including a .38 caliber revolver containing two live rounds.
They also found other ammunition and more than $5,000 in cash. In the safe in Gonzalez's room, the police found illegal drugs and drug paraphernalia.
Detective Ismael Olivero was assigned to investigate the murder of Joshua Meltzer. He began by going to the scene of that crime while Meltzer was still in the car and alive. Lifesaving efforts at the scene were attempted, and Meltzer was taken to a hospital, where he died. Meltzer's wallet was intact. His money and other items of value had not been removed. Thus, this was apparently not a robbery. Olivero had no leads.
The next day, when Olivero learned of the arrests made at 579 Madison Avenue, acting on a hunch that the same individuals involved in those violent crimes might have been involved in Meltzer's murder, he went to the Elizabeth jail and interviewed defendant. Although defendant was not a suspect in Meltzer's murder, Olivero, out of an abundance of caution, informed defendant of the nature of his investigation and administered Miranda warnings. Defendant initialed and signed the waiver form and agreed to speak to Olivero.
During the interview, he did not admit to any involvement in the shooting. However, in response to Olivero's questions, he said he had seen someone matching the description driving in the area about a week earlier. Olivero deemed these comments significant because the description defendant gave of the individual, including his size, build, and haircut, and the description of the car, matched Meltzer and his car very closely. He also stated that the car had temporary plates, which was consistent with Meltzer's car.
According to Olivero, defendant told him "if he did it, he wouldn't tell us, but if he knew who did it, he would tell us." According to Olivero, as the interview concluded, defendant said "don't put anything on me," meaning "don't frame me" for this murder. Defendant then said, "Do your homework and then once you do your homework you can come back and talk to me."
At 12:03 a.m. on January 1, 2004, Owsiany sought to interview defendant. He administered Miranda warnings and defendant initialed and signed the waiver form at 12:15 a.m. Defendant sought to terminate the interview, however, because he was tired. Owsiany complied and the interview ended. Owsiany resumed the interview later that morning, at 10:29 a.m. He again administered Miranda warnings, and defendant again initialed and signed the waiver form. Owsiany obtained a written statement from defendant regarding the robbery and carjacking offenses that occurred on December 31, 2003.
Over the several days following Meltzer's murder, Olivero obtained statements from others who were present when it occurred, describing the accident between the Honda and Meltzer's vehicle and the events in the supermarket parking lot. They said defendant shot Meltzer. With that information, Olivero obtained an arrest warrant for defendant for Meltzer's murder, and on January 3, 2004, while defendant was still in custody on the other charges, Olivero served the warrant, arrested him for the murder, and again advised him of his Miranda rights. Defendant initialed and signed the waiver form at 2:41 p.m. He gave a sworn written statement at 3:18 p.m. admitting he killed Meltzer. In particular, he described the events this way:
I had an accident at the stop sign, I got into an accident. I didn't see the car who was to the right of me. I turned right and I clipped him. I stopped the car, got out and we started arguing. Then I told [Gonzalez] to get in the car and let's go. [Gonzalez] got in the driver's side and took off. We went towards Elizabeth Avenue, and the guy that I got in the accident with was chasing us. When we got to Elizabeth Avenue [Gonzalez] made a left on Elizabeth Avenue. When we got to the parking lot by the liquor store I told [Gonzalez] to turn into the parking lot. Meanwhile, the guy was still behind us. We went behind the building. [Gonzalez] wanted to cut across the lot onto the next street by the high school. I told [Gonzalez] to stop the car, and that is when the car that was behind us was pulled behind us on the right side. Then I got out of the car and I started arguing with the guy. I told him what was the big deal about the minor bump, and he had his cell phone open trying to call 911. So I pushed him and snatched his cell phone and I threw it into the river. Then nobody in the car had knowledge that I had the gun in my waist.
By then they were all out of the car looking at us arguing. Then he got into his car and I told all of them to get back in the fuckin' car. When they were all in the car I was between the door and the car, and that is when I pulled out ...