On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 96-10-535.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and C. S. Fisher.
This criminal matter started out as a capital case. There was a first trial at which the jury was unable to return a unanimous verdict against defendant Luis A. Cruz, Jr. At the second trial, the State declined to pursue the death penalty, despite the Supreme Court's holding that the State could pursue such course of action. State v. Cruz, 171 N.J. 419, 432-34 (2002).
Following the second jury trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1) & (2); first-degree felony murder, N.J.S.A. 2C:11-3a(3); (3) first-degree armed robbery, N.J.S.A. 2C:15-1; (4) second-degree conspiracy to commit first-degree armed robbery, N.J.S.A. 2C:5-2; (5) third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and (6) fourth-degree unlawful possession of a weapon under circumstances not manifestly appropriate, N.J.S.A. 2C:39-5d. The trial judge imposed a life term with a thirty-year parole disqualifier on the murder conviction and a consecutive twenty-year term with a ten-year parole disqualifier on the armed robbery conviction. The judge merged all other counts.
This is a summary of the State's proofs. Santina Leonardi, a seventy-four-year old widow, owned a convenience store called "Sam's" in Woolwich Township. She lived above the store with her daughter and her granddaughter. The store provided check-cashing services to its patrons.
On December 11, 1995, Leonardi was found murdered in the store. Her body had multiple stab wounds and she had suffered blunt force trauma to the entire left side of her face and a defensive cut on the back of her hand. The murder weapon, a knife with an eight-inch blade, was left protruding from her chest. Her granddaughter found her lying on the convenience store's floor around 5:45 p.m. The office where Leonardi cashed checks was in disarray.
The Gloucester County Prosecutor's Investigator/Sergeant, Alex Illas, led the investigation. Eighteen days after the murder, Illas spoke with defendant, who had cashed checks at Sam's. These checks had been dishonored by the bank on the same date as the murder. Illas encountered defendant, by chance, outside another person's house. Illas asked defendant his name. Upon hearing it, Illas asked defendant if he had bounced some checks at Sam's. Illas then asked defendant if he would talk to him at the Carney's Point Police Station. Defendant agreed to go and drove himself there with Illas following him.
At the police station, Illas asked defendant if he had any information "that would aid . . . in this investigation." He also asked defendant if he would give a recorded statement and a copy of his fingerprints. Illas did not give defendant Miranda*fn1
warnings at that time. Defendant consented to the recording of the conversation, during which they discussed: defendant's bounced checks; his prior dealings with Leonardi; his whereabouts on the date of her murder; his presence at Sam's on that date; and people who defendant saw around Sam's on that date. Defendant subsequently allowed Illas to fingerprint and photograph him.
Four days later, Illas went to defendant's home to ask to have his fingerprints taken again, and to consent to a search of his apartment. Defendant consented. After the search, defendant and Illas went back to the police station, where defendant consented to give his fingerprints. Once again, defendant drove his own car to the station.
Two weeks later, on January 18, 1995, Illas went back to defendant's apartment to ask him for an interview at the Woodstown State Police Barracks. Illas asked defendant to bring a pair of sneakers that he had seen during the consent search. This time, Illas drove defendant to the barracks. There, defendant was again given Miranda warnings. Defendant waived his rights and gave another recorded statement. Defendant was released and returned home.
Eventually, Illas's investigation led him to Jorge Pinto-Rivera. Pinto-Rivera told the police that defendant told him that two men were willing to pay defendant $5,000 to obtain "real estate papers" stored in a drawer in Sam's office. Pinto-Rivera agreed to wear a body wire and record conversations with defendant.
In a February 24, 1996 recorded conservation, defendant and Pinto-Rivera discussed: whether defendant threw away "the knives"; where defendant threw away "the clothes"; and what amount of money defendant was going to pay him. During a second conversation that same day, defendant and Pinto-Rivera discussed how defendant was going to get the money that he had agreed to pay him. Defendant said, "I'm going to put it there for you." Defendant then gave Pinto-Rivera a check for $500.
During a recorded conversation on February 26, 1996, Pinto-Rivera told defendant that the check had bounced. Defendant offered to give Pinto-Rivera cash. At Pinto-Rivera's prompting, defendant admitted that he killed Leonardi.
At that point, Illas wanted to arrest defendant, but his supervisors told him to see if defendant would come into the Prosecutor's Office voluntarily. On February 27, 1996, Illas approached defendant, who agreed to go to the Prosecutor's Office. Illas did not tell him that either a complaint or an arrest warrant had been issued or was going to be issued against him. Illas handcuffed defendant and placed him into the police vehicle. Before any questions, Illas accused defendant of murdering Leonardi and told him that this was the time to tell the truth. Illas testified that:
I believe I told [defendant] that we were here to get the truth on the murder of Santina Leonardi. I believe I used the words that, I know you killed her, there is some information that we have now that I know you killed her.
Illas read from his report:
[Defendant] was advised that new evidence had been gleaned that indicated that he was the one that murdered Santina Leonardi.
That's me telling him that.
Then, Illas gave defendant Miranda warnings and asked defendant if he waived his rights. He agreed. Defendant was told to complete the top part of a waiver of rights form. Defendant asked what is the category of the case. He was told to write "homicide." Defendant wrote "homoside." Then defendant signed the form and the taped interview commenced.
Defendant confessed, admitting that he killed Leonardi and implicated Pinto-Rivera as a participant. According to defendant's taped statement, he said that the day before the homicide, he was met by a man named Antonio Rodriguez, who was armed with a gun. The man told him:
"I want you to go in there to Santina's and grab something and bring me some papers that are in the drawer, and I'm gonna give you till tomorrow morning. What's more, I'm gonna give you until tomorrow night I want you to bring me those ...