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State v. Kenney

January 29, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TYSHON KENNEY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 04-12-02877 and 04-06-01369.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 1, 2008

Before Judges Lisa and Reisner.

Defendant shot two individuals on separate dates about two months apart. One survived; the other died. Defendant confessed to both shootings. He was indicted for murder and other offenses under Indictment No. 04-12-02877, and for aggravated assault and other offenses under Indictment No. 04- 06-01369. After defendant's motion to suppress his statements to the police was denied, defendant entered a conditional plea of guilty to various charges in both indictments, preserving his right to appeal the denial of that motion. See R. 3:9-3(f).

The counts to which defendant pled guilty and the sentences imposed, which were in accordance with his plea agreement, are as follows: Under Indictment No. 04-12-02877: (1) first-degree aggravated manslaughter (amended from murder), N.J.S.A. 2C:11-3, twenty-three years imprisonment, with an 85% parole disqualifier and five years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; (2) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, five years imprisonment with a two-and-one-half year parole disqualifier, concurrent to count one; and (3) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, ten years imprisonment with an 85% parole disqualifier and three years parole supervision pursuant to NERA, concurrent to count one; Under Indictment No. 04-06-01369: (2) second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), ten years imprisonment subject to an 85% parole disqualifier and three years parole supervision pursuant to NERA, concurrent to the sentence imposed under Indictment No. 04-12-02877; (3) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, five years imprisonment with a two-and-one-half-year parole disqualifier, concurrent to count two; and (4) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, ten years imprisonment subject to an 85% parole disqualifier and three years parole supervision pursuant to NERA, concurrent to count two. Therefore, defendant's aggregate sentence was twenty-three years imprisonment, with a requirement that he serve 85% of that term before being eligible for parole.

Defendant argues on appeal:

THE TRIAL COURT'S RULING ADMITTING THE DEFENDANT'S INCULPATORY STATEMENTS INTO EVIDENCE SHOULD BE REVERSED BECAUSE THE DEFENDANT'S COGNITIVE AND INTELLECTUAL DEFICITS, IN CONJUNCTION WITH THE "STRESS FACTORS" THAT WERE PRESENT AND THE CONDUCT BY THE POLICE, IMPAIRED HIS ABILITY TO MAKE A KNOWING, VOLUNTARY, AND INTELLIGENT WAIVER OF HIS MIRANDA RIGHTS.

We reject this argument and affirm.

In the early morning hours of March 3, 2004, members of the Asbury Park Police Department responded to a shooting outside of the Cameo Bar. The victim, Samuel "Now U" Hines, suffered four gunshot wounds and was dead. Defendant was a suspect. Because of a domestic dispute with his girlfriend earlier that evening, defendant was in custody at the Neptune Township Police Department. Detective Douglas Johnson of the Monmouth County Prosecutor's Office and Detective Randall Hill of the Asbury Park Police Department went to the Neptune Township Police Department. Defendant was sleeping when they arrived. The detectives woke him up and logged him out of that facility at 5:38 a.m. They transported him to the Asbury Park Police Department, where they arrived at about 5:55 a.m.

The detectives did not question defendant at the Neptune Police Department or during the transport. Johnson described defendant as coherent and alert during the entire time. Defendant walked unassisted and in a normal manner. Johnson testified that defendant did not appear to be under the influence of any substances. At the Asbury Park Police Department, defendant was brought into the Juvenile Bureau to be interviewed. His handcuffs were removed, and he was immediately administered his Miranda*fn1 rights.

Utilizing a standard waiver form, Johnson read each of the rights to defendant and asked defendant to read them himself. Defendant acknowledged his understanding of each right, and he signed the form in two locations. He did not ask any questions regarding his rights and remained, in Johnson's opinion, alert and coherent. Defendant agreed to be interviewed.

When the detectives began interviewing defendant about Hines' shooting, they learned from defendant that Hines was defendant's cousin. The detectives told defendant Hines was seriously injured and they showed him prior photos of Hines.

Defendant denied any involvement. Throughout the process, the detectives continued to show defendant the picture of Hines, and defendant reacted by pushing the picture away, not wanting to look at it, and indicating, in the opinion of the detectives, a sense of uneasiness or guilt. Eventually, the detectives informed defendant that Hines had died from the gunshot wounds and asked defendant for his assistance in finding the killer.

In response to questions about defendant's whereabouts and activities the day before, defendant said he was at his girlfriend's house with Hines and a friend. They smoked marijuana and consumed alcohol. The three men then went to the Cameo Bar. Defendant denied he was involved in an altercation at the bar, but the detectives told him there was a surveillance tape that might reveal otherwise. Defendant then acknowledged having been in a fight with a "light skinned kid," during which Hines hit the kid on the head with a beer bottle. Defendant said he then left the bar and returned to his girlfriend's house, where he and his girlfriend got into an argument resulting in his arrest by the Neptune police.

At about 8:30 a.m., Detective Sergeant Keith Coleman of the Monmouth County Prosecutor's Office arrived at the Asbury Park Police Department and informed Johnson, out of defendant's presence, that defendant's brother, Kevin Elliott, informed police that defendant had shot Hines. After receiving this information, Johnson went back into the interview room. He re-advised defendant of his Miranda rights, reading all five lines on the waiver form. He confirmed with defendant that he was still ...


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