July 13, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WAYNE PARKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-02-0178.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 2, 2008
Before Judges Cuff, C.L. Miniman and Baxter.
A jury found defendant Wayne Parker guilty of two counts of first degree kidnapping, N.J.S.A. 2C:13-1b(1) (Counts One and Three); two counts of third degree criminal restraint, N.J.S.A. 2C:13-2a (Counts Two and Four); one count of first degree robbery, N.J.S.A. 2C:15-1a(1) (Count Seven); one count of second degree robbery, N.J.S.A. 2C:15-1a(1) (Count Nine); one count of first degree conspiracy, N.J.S.A. 2C:5-2 (Count Ten); one count of second degree burglary, N.J.S.A. 2C:18-2 (Count Eleven); one count of second degree conspiracy, N.J.S.A. 2C:5-2 (Count Twelve); two counts of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Counts Thirteen and Fourteen); and one count of third degree aggravated assault, N.J.S.A. 2C:12-1b(7) (Count Fifteen).
At sentencing, after granting the State's motion for imposition of a discretionary extended term, the judge merged Count Two with Count One and imposed a life term of imprisonment subject to a NERA*fn1 parole ineligibility term. The judge merged Count Four with Count Three and imposed a thirty-year term of imprisonment subject to a NERA parole ineligibility term. After merging Count Ten with Count Seven, the judge imposed a twenty-year term of imprisonment subject to a NERA parole ineligibility term. On Count Nine, the judge imposed a ten-year term of imprisonment subject to a NERA parole ineligibility term. Count Twelve merged with Count Eleven and the judge imposed a ten-year term of imprisonment subject to a three-year period of parole ineligibility. Count Fifteen merged with Count Fourteen and the judge imposed a ten-year term of imprisonment with a three-year term of parole ineligibility. All terms are to be served concurrent to the sentence imposed on Count One. The appropriate fees, assessments and restitution were also imposed.
Between 1:30 and 2:00 a.m. on September 8, 2003, Anthony and Carolyn Young, ages 81 and 80, respectively, were awakened in their Vineland home by two masked intruders who entered their bedroom, bound them and covered their eyes. At the time, Mr. Young was confined to a wheelchair as a result of a previous injury.
One of the assailants, later identified as Keith Kenion,*fn2 placed a hood over Mr. Young's face, bound his hands, and hit him on the side of his head with a piece of ceramic fruit. Co-defendant Kenion struck Mr. Young in the left eye and cheek with another piece of ceramic fruit. Then, he dragged Mr. Young towards the window, stopped, and asked him where he kept his coin collection. All the while Mr. Young could hear his wife's moans and other expressions of pain as she was bound and struck by the other intruder.
Another intruder, identified by Mrs. Young as defendant Wayne Parker, forcibly led her downstairs. Defendant was the son of Thurman Parker, a recently evicted tenant of a house owned by the Youngs and located next to their house. According to Mrs. Young, Parker repeatedly struck her on the head and face, placed duct tape over her eyes, and led her to the Youngs' safe on the first floor of the house. When instructed to open the safe, Mrs. Young responded that she needed her glasses. After several trips up and down the stairs, her glasses were located and she proceeded to open the safe. Once opened, defendant led Mrs. Young into another room to retrieve the key to open interior drawers in the safe.
Mrs. Young opened the drawers and asked defendant for a glass of water. Defendant led her to the kitchen and gave her a glass of water. When she requested to use the bathroom, he told her to urinate on the floor and she did so. At that time, defendant instructed her to kneel and perform oral sex.*fn3 When she did as instructed, he led her to a couch and placed pillows on top of her head, causing her to feel like she would suffocate. Meanwhile, Mrs. Young heard the intruders rummaging through her house.
At some point, the Youngs' doorbell rang, which caused the intruders to run out of the house. Before leaving, defendant bound Mrs. Young with ripped clothing. One of the other intruders hit Mrs. Young on her rear as they fled.
After a while, Mrs. Young loosened her bonds and returned upstairs to Mr. Young. She found her husband unresponsive and feared he was dead. She used scissors to free him from his tape restraints, helped him to another room, and instructed him to use his breathing machine. Then she dialed 9-1-1.
At approximately 3:00 a.m. on the night of the intrusion, Dorothy Nelson, a newspaper delivery driver, pulled into the Youngs' U-shaped driveway to deliver their morning newspaper. She was unable to drive to the porch because a beige Honda was parked by the porch. As she waited, Nelson observed the vehicle backing up and then heard a crash which sounded like breaking glass. Next, she saw two men jump from the hedges next to the Youngs' home and enter the car on the passenger side before the driver of the vehicle drove out of the driveway. As Nelson dropped off the Youngs' newspaper, she observed that their porch door was slightly ajar.
At approximately 3:15 a.m., the Vineland Police Department dispatched Officer Steven Triantos to the Youngs' residence. He and Sergeant John Lauria were the first individuals to arrive at the scene and were met at the kitchen door by Mrs. Young. Triantos observed that the door was broken off the frame and hinges. Mrs. Young was very upset and visibly shaken. Triantos noticed that the elderly woman had a laceration to her lip and a bloody nose. Mrs. Young told the officers that her husband had been beaten and he was upstairs in the bedroom.
On the way upstairs to the bedroom, Officer Triantos noticed that the house had been ransacked. He spoke briefly with Mr. Young, who was having difficulty speaking; the elderly gentleman's face was swollen and he appeared to be in pain.
Subsequently, police recovered evidence outside the Youngs' home. EMS personnel gave Triantos the duct tape which had been used by the intruders to cover Mrs. Young's face.
Detective Christopher Brunetta interviewed Mrs. Young at the hospital for approximately one and one-half hours while she was treated for her injuries.*fn4 Brunetta observed that the woman had suffered multiple injuries and that she appeared shaken and scared. Mrs. Young provided Brunetta with physical descriptions of three individuals who committed the crimes against her and her husband. In addition, she informed the officer that she thought her neighbor and former tenant, Thurman Parker, was involved in the break-in and that he had a son, Wayne. Although Mrs. Young initially stated that there were two assailants in her home, she later told Detective Brunetta that there were three.
By September 12, 2003, based upon information received, police sought two suspects in the home invasion, Wayne Parker and John Palmer. Detectives Scott Collins and Steve O'Neill of the Vineland Police Department conducted an interview with Lena Bricker, grandmother of Parker's girlfriend, Lena Wilson. Thereafter, Collins and O'Neill traveled to Cumberland County College to locate Wilson, who was transported to police headquarters for an interview.
After meeting with Wilson, the police executed a search warrant on her automobile. Inside the vehicle, police discovered a mirrored serving tray which belonged to the Youngs. A search warrant executed at Wilson's home recovered coins belonging to the Youngs.
The next step in the investigation led police to the home of Thurman Parker, where Wayne Parker also resided. There, the officers executed a search warrant and recovered proceeds from the burglary in the bedroom used by Wayne Parker.
During the search of the Parker residence, Sergeant Vincent Solazzo observed a blue Honda Civic automobile driven by John Palmer pass the Parker residence. Solazzo noticed two other individuals riding with Palmer. After the car drove by a second time, Solazzo and Detective Francine Webb followed the vehicle and instructed a marked patrol vehicle to perform a motor vehicle stop of Palmer's car.
Solazzo approached the front passenger-side door, ordered Parker to exit the vehicle, and noticed co-defendant Kenion in the backseat. Initially, Parker was uncooperative and appeared ready to flee. Solazzo observed Parker throw a coin book to the ground as he exited the vehicle. In addition, the officer recovered a fabric bag containing coins from Parker's pocket.
Solazzo also identified the driver of the vehicle as John Palmer.
Webb removed Palmer from the vehicle, handcuffed and performed a pat-down search, and ordered him to the ground. In Palmer's back pocket, she discovered a coin enclosed in a glass case.
Once Palmer was secured and searched, Webb proceeded to remove Kenion from the vehicle. The detective performed a visual inspection of the back seat for weapons and noticed a bag on the floor from which several two-dollar bills and coins had spilled. In addition, Webb observed a paper money guide and a coin book on the seat next to the one occupied by Kenion.
Patrolman Kirchner performed a pat-down search of Kenion. Kirchner recovered a roll of money containing thirty-eight two-dollar bills from Kenion's right front pants pocket. Thereafter, Kirchner transported him to police headquarters. Palmer and Parker were also transported for questioning.
At the station, Palmer signed a consent form to search his car. Numerous coins, jewelry and books on coin values were recovered from the vehicle, as was a woman's vanity with the initials "CGM."
Detectives Collins and Webb interviewed Palmer, after which he provided a handwritten statement of the events which occurred in the early morning of September 8, 2003. Next, Palmer took the police to Parker's aunt's house, where they recovered a plastic storage container which held various items stolen from the Youngs' home. In addition, Palmer accompanied the police to an auto parts store where he claimed Kenion discarded sneakers worn during the burglary. From the store's dumpster, police recovered a pair of sneakers which contained carpet fibers matching the uncommon carpet fibers found at the Youngs' home.
Two months after his initial interview and handwritten statement to Detectives Collins and Webb, Palmer provided a second interview with Collins and submitted two additional recorded statements. Following their interview with Palmer, Detectives Collins and Shane Harris interviewed Parker, who provided a recorded statement to the detectives.
Kenion also provided a recorded statement to Detectives Webb and Ed Ramos. In his statement, Kenion admitted participating in the home invasion, binding Mr. and Mrs. Young, and stealing items from the residence. He denied ever striking either of the victims.
When the three suspects were transported to the Cumberland County jail, they were placed in the same holding cell. While there, Kenion attempted to attack Palmer, but was restrained by Parker.
Subsequently, Palmer negotiated a plea agreement with the State whereby he pled guilty to two counts of first degree robbery with a ten to twenty-year period of incarceration on each count, to run concurrently, subject to an 85% period of parole ineligibility under NERA, in addition to a five-year period of parole supervision. All other charges against Palmer were dismissed pursuant to the plea agreement.
At trial, Palmer testified on behalf of the State. Palmer testified that he received a call from Parker to come to Vineland. He drove to Vineland in his girlfriend's gold or light brown 2002 Honda with the intention of smoking marijuana with Parker and helping him move some things from the house Parker used to occupy with his father. When he arrived, he met Parker's cousin from North Carolina, co-defendant Keith Kenion.
The trio purchased marijuana and Palmer drove to a 7-11 where Parker bought blunts and duct tape. After they smoked the marijuana, Palmer took Parker and Kenion to Parker's former house and left them there. About an hour later, Palmer received a call from Parker. He noted that Parker seemed rushed and excited. Palmer drove directly to the former Parker house. When he arrived, he noticed Parker gesturing to him from the porch of the Youngs' house. He drove the car into the Youngs' driveway, parked it, and Parker started to hand him bags.
When he first entered the Youngs' house, Palmer noticed that it had been ransacked. He observed a broken door frame. Kenion was rummaging through the safe. Parker was running around gathering various items and placing them in bags. Kenion was wearing a mask over his face; Parker wore a mask only partially covering his face. Parker gave bags to Palmer and he took them to the car.
When he entered the house the second time, Palmer noticed Mrs. Young bound and gagged on the couch. As items were being placed in bags, Parker thought he heard an alarm. Mrs. Young testified that it sounded like the doorbell. At this sound, Parker, Palmer, and Kenion picked up their pace. They grabbed bags and rushed from the house into the waiting car. Palmer drove away but returned when Parker realized that he left his cell phone in the house. Parker re-entered the house and grabbed additional bags. The newspaper delivery woman observed the second departure from the Youngs' house.
Palmer drove the men to Parker's girlfriend's home. During the ride, Kenion discarded his mask and gloves. After they arrived at Parker's girlfriend's home, the three men carried bags of stolen property into the residence. Once inside, Parker and his girlfriend began to argue. Thereafter, Palmer and Parker's girlfriend left to get something to eat at Wawa, before returning to her home. Kenion and defendant remained at the girlfriend's home. On his return, Palmer noticed that Kenion and defendant had changed clothes and discarded their clothing in a trash bag, which was later disposed of in a dumpster. While in the home, Palmer also noticed many of the stolen items from the Youngs' home, including old coins, coins wrapped in plastic, two-dollar bills, liquor, and jewelry. In addition, he observed an old wooden record player with a large horn on top.
Palmer testified that he went along with the robbery because he was afraid he would end up tied up on the couch like Mrs. Young if he did not. In addition, he thought that by keeping quiet, he would be rewarded.
The next morning, Palmer drove himself, Parker and Kenion to the Cumberland Mall to purchase a book about coins to determine the value of those stolen from the Youngs. Palmer purchased two coin books at the mall and Kenion bought a new pair of sneakers. One of the coin books, in addition to a book given to the three men by a South Street vendor in Philadelphia, was recovered by police inside Palmer's vehicle on the day the three men were arrested. Palmer then dropped off Kenion and defendant at Parker's girlfriend's home and went to his girlfriend's apartment. Subsequently, Palmer purchased two additional coin and currency books at the Deptford Mall.
At some point, Palmer returned to Vineland to drive Kenion and Parker to a store in Richland to sell some of the stolen jewelry. Once in Richland, Kenion and Parker went into a store called Antique Depot and "g[o]t rid of some of the watches [and] . . . pocket watches," while Palmer waited in the car. From there, Palmer drove to Parker's home.
Carolyn Bailey, owner of Antique Depot, testified that Parker and Kenion came into her store in September 2003, seeking to sell several items that were later determined to have been stolen from the Youngs' residence. Bailey explained that she was familiar with Parker prior to that occasion. Bailey agreed to purchase some of the items from the two men, however, she did not have cash to pay them on the spot; nonetheless, they left the merchandise with her.
Approximately two to three days after Parker and Kenion visited Antique Depot, a police officer stopped by the store and discussed the robbery with Bailey. Following their conversation, Bailey turned over the items left by the two men. In addition, Bailey identified Parker and Kenion from photographs provided by the officer as the two individuals who had come into her store seeking to unload the stolen merchandise.
On September 16, 2003, Palmer drove Parker and Kenion to Jeweler's Row and South Street in Philadelphia in a further attempt to sell the stolen items. A vendor on South Street agreed to purchase some of the merchandise and the three men returned to New Jersey to retrieve additional items. Once the stolen items were retrieved, Palmer drove the men to Parker's parent's residence. At this time, they observed what they believed to be unmarked police vehicles in front of the home. At Parker's instruction, Palmer drove around the block. While doing so, Parker telephoned his parents but no one answered. When making a second pass in front of the residence, the men were recognized by a detective and subsequently pulled over by a marked patrol unit.
On appeal, defendant raises the following arguments:
THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY DENYING DEFENSE COUNSEL'S MOTION TO BE RELIEVED AS DEFENDANT'S ATTORNEY BECAUSE OF A CONFLICT OF INTEREST AND/OR THE APPEARANCE OF IMPROPRIETY
A. THERE EXISTED BOTH A CONFLICT OF INTEREST AND THE APPEARANCE OF IMPROPRIETY
B. IN DENYING DEFENSE COUNSEL'S MOTION TO BE RELIEVED AS TRIAL COUNSEL THE TRIAL COURT VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY "TOLERATING" BOTH A CONFLICT OF INTEREST AND THE APPEARANCE OF IMPROPRIETY
THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO PRESENT EVIDENCE BY REPRESENTING THAT IT WOULD BE "DANGEROUS" FOR THE DEFENDANT TO TESTIFY AT THE PRETRIAL MIRANDA HEARING (NOT RAISED BELOW)
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS HIS TAPED [sic] RECORDED STATEMENT
THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS JURY CHARGE (NOT RAISED BELOW)
A. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO SPECIFICALLY INSTRUCT THE JURY THAT IN ASSESSING THE CREDIBILITY OF JOHN PALMER IT MUST TAKE INTO ACCOUNT THE PLEA AGREEMENT THAT HE ENTERED INTO WITH THE PROSECUTOR'S OFFICE (NOT RAISED BELOW)
B. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO SPECIFICALLY INSTRUCT THE JURY THAT JOHN PALMER'S GUILTY PLEA CANNOT BE USED AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT (NOT RAISED BELOW)
THE EXTENDED TERM LIFE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE KIDNAPPING ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND REPRESENTED AN ABUSE OF THE TRIAL COURT'S DISCRETION
A. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM AS A PERSISTENT OFFENDER
B. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A BASE EXTENDED TERM SENTENCE ON COUNT ONE THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE EXTENDED TERM
In a pro se brief, defendant raises the following arguments:
THE POLICE OFFICER'S PROFESSED FAILURE TO APPRISE DEFENDANT OF THE SUBJECT MATTER OF THE INTERROGATION AND/OR OF THE FACT THAT ARREST WARRANTS HAD ISSUED AND THE DEFENDANT DID NOT OTHERWISE KNOW IT, DEPRIVED DEFENDANT OF INDISPENSABLE INFORMATION TO A KNOWING AND INTELLIGENT WAIVER OF MIRANDA RIGHTS AND THUS HIS TAPED RECORDED STATEMENTS SHOULD HAVE BEEN SUPPRESSED (raised below)
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS HIS TAPED RECORDED STATEMENTS OBTAINED IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS (raised below)
A. THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT'S INCULPATORY STATEMENTS WERE NOT THE PRODUCT OF POLICE MISCONDUCT
B. THE DEFENDANT'S ATTEMPT TO INVOKE HIS CONSTITUTIONAL RIGHT TO CUT OFF QUESTIONING, WAS NOT SCRUPULOUSLY HONORED
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS FRUITS GATHERED AS A RESULT OF ARREST WARRANTS ISSUED IN VIOLATION OF FEDERAL AND STATE CONSTITUTIONAL PROVISION (raised below)
THE STATE'S ARBITRARY FORFEITURE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS AND THE STATE EMPLOYING THE FORFEITURE AT TRIAL TO PRESENT ELEMENTS OF CRIMES CHARGED AS CONCLUDED OR SETTLED IMPINGED UPON DEFENDANT'S RIGHT TO A JURY TRIAL UNDER BOTH FEDERAL AND STATE CONSTITUTION (raised below)
A. THE STATE'S FORFEITURE WITHOUT AFFORDING DEFENDANT NOTIFICATION AND OPPORTUNITY TO RESPOND VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS AND THE VIOLATION OF DEFENDANT'S RIGHTS WERE INADMISSIBLE
B. AT TRIAL THE STATE EMPLOYED THE FORFEITURE TO PRESENT ELEMENTS OF THE CRIMES CHARGED AS CONCLUDED OR SETTLED AND THUS EFFECTIVELY ABRIDGED DEFENDANT'S RIGHT TO A JURY TRIAL
DEFENDANT WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO CONFRONTATION AND FAIR TRIAL UNDER BOTH FEDERAL AND STATE CONSTITUTIONS BY THE STATE'S REPEATED RELIANCE ON COUNTLESS NON-TESTIFYING WITNESSES AND CO-DEFENDANT'S HEARSAY STATEMENTS TO IMPLICATE DEFENDANT IN THE COMMISSION OF THE CRIMES; ADMITTING IN EVIDENCE PREVIOUSLY RULED INADMISSIBLE HEARSAY EVIDENCE; AND REFERENCES TO SEARCH WARRANTS THAT MISLED THE JURY AND IMPLIED THAT POLICE HAD PRESENTED EVIDENCE TO THE ISSUING JUDGE THAT HAD NOT BEEN PRESENTED TO THE JURY (raised below)
THE CUMULATIVE EFFECT OF THE PROSECUTOR'S REPEATED INSTANCES OF MISCONDUCT AND THE TRIAL COURT'S INADEQUATE JURY INSTRUCTIONS DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL UNDER BOTH FEDERAL AND STATE CONSTITUTIONS (not raised below)
A. THE PROSECUTOR EXPOSING THE JURY TO EXTRINSIC IRRELEVANT INFLAMMATORY EVIDENCE OF DEFENDANT'S FAMILY'S EVICTION, MONEY PROBLEMS, PRIOR BAD ACTS, AND THE DEFENDANT BEING A PROFESSED DRUG DEALER WHO ALLEGEDLY FILED A FALSE INSURANCE CLAIM FOR WHICH VICTIMS WERE EXPECTING TO BE REIMBURSED AND THE TRIAL COURT'S INADEQUATE JURY INSTRUCTIONS REGARDING THE FOREGOING DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL
B. THE PROSECUTOR IMPROPERLY VOUCHING FOR HER KEY WITNESS'S CREDIBILITY AND THE TRIAL COURT'S INADEQUATE JURY INSTRUCTIONS EFFECTIVELY DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL
C. THE PROSECUTOR IMPROPERLY DEMEANING THE DEFENSE BY MAKING STATEMENTS THAT WERE CLEARLY CONTRARY TO THE EVIDENCE AT TRIAL AND OUTSIDE THE RECORD DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL
THE PROSECUTOR'S FAILURE TO CORRECT TESTIMONY SHE KNEW TO BE FALSE, SOLICITING FALSE TESTIMONY AND THE TRIAL COURT ADMITTING INTO EVIDENCE PHOTOGRAPHS THAT WERE MATERIALLY MISLEADING AND INFLAMMATORY DENIED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL UNDER BOTH FEDERAL AND STATE CONSTITUTIONS (raised below)
THE STATE'S KEY WITNESS'S FALSE TESTIMONY AND THE STATE'S FAILURE TO CORRECT ITS WITNESS'S FALSE TESTIMONY VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL UNDER BOTH FEDERAL AND STATE CONSTITUTIONS (raised below)
THE PROSECUTOR'S DELIBERATE SUPPRESSION OF EVIDENCE CONSTITUTED PROSECUTORIAL MISCONDUCT AND VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL UNDER BOTH FEDERAL AND STATE CONSTITUTIONS (raised below)
THE TRIAL COURT'S FAILURE TO DISMISS THE OFFENSES CHARGED UNDER COUNTS 3, 9, AND 13 EMBODIED IN THE INDICTMENT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL UNDER BOTH FEDERAL AND STATE CONSTITUTION (raised below)
Throughout the proceedings, pre-trial and trial, defendant vacillated about whether he wished to be represented by counsel or proceed pro se. Initially, an attorney was assigned to represent him. By the time of the Miranda*fn5 hearing, defendant had elected to proceed pro se with standby counsel available to assist him. When his motion to suppress was denied, defendant decided he would relinquish his pro se status. On the eve of trial, defendant sought to have his second appointed attorney disqualified. Defendant's fluctuating status informs the first two issues presented by counsel on appeal.
A. Disqualification of Trial Counsel
On the eve of jury selection, defendant surprised the trial judge and defense counsel with a motion to disqualify counsel. Defendant alleged that his attorney made an inappropriate sexual gesture to defendant's girlfriend. After considering the matter over two days in which he heard from defendant and his attorney, the judge denied the application. On appeal, defendant argues that he was denied a fair trial and he was denied effective assistance of counsel because a conflict of interest existed between him and his appointed attorney. We disagree.
On June 13, 2005, defendant advised the trial judge that his "girl says that [defense counsel] made a sexual gesture at her." Defendant advised the court, "I'm not going to go to trial with him." Defendant asserted that if defense counsel informed the judge that he was offended by the allegation then a conflict of interest arose and he would not be "comfortable" with his representation.
The following day, the trial judge convened a Rule 104*fn6 hearing to determine what interaction, if any, occurred between defendant's attorney and defendant's girlfriend. Both parties served subpoenas on defendant's girlfriend; she did not appear. Defendant was sworn and stated that he should not be required to proceed with current counsel even if nothing occurred between his attorney and girlfriend. He reasoned that the very accusation and the offense taken by his attorney created a conflict of interest requiring counsel's disqualification. Defense counsel concurred that he was offended by the accusation, denied that anything untoward occurred, and asked to be relieved as counsel.
The trial judge found that the girlfriend's absence and defendant's argument was telling. He concluded that the accusation was baseless and a deliberate attempt to create a situation that required disqualification of counsel and a delay of the trial. The judge noted that the accusation was made immediately after defendant's request to proceed pro se was denied. The judge reasoned that nothing would preclude defendant from pursuing a similar tactic with other counsel. Accordingly, he denied defense counsel's application to be relieved as counsel and the trial proceeded.
This court has stated that "a defendant cannot 'manipulate the system by wavering between assigned counsel and self-representation.'" State v. Buhl, 269 N.J. Super. 344, 362 (App. Div.) (quoting State v. Crisafi, 128 N.J. 499, 517 (1992)), certif. denied, 135 N.J. 468 (1994). To be sure, if a defendant has good cause for substituting counsel, the trial court should entertain such request. Ibid. (citing Crisafi, supra, 128 N.J. at 518). However, the right of self-representation is not a license to disrupt the criminal calendar, or a trial in progress. Ibid. "[A] defendant cannot be permitted to play a 'cat and mouse' game, thereby placing the trial judge in a position where, in managing the business of the court, he appears to be arbitrarily depriving the accused of counsel." State v. Harris, 384 N.J. Super. 29, 60 (App. Div.) (citing State v. Slattery, 239 N.J. Super. 534, 542 (App. Div. 1990)), certif. denied, 188 N.J. 357 (2006).
Applying these principles, it is clear that the record fails to support the requisite finding of good cause for the trial court to grant counsel's request to be relieved as defendant's attorney. Defendant provided no evidence, save his tacitly withdrawn self-serving hearsay accusation, to support his allegation that defense counsel made a sexual gesture towards his girlfriend. Moreover, defendant offers no evidence of defense counsel's failure to fulfill his ethical and professional responsibilities to him in conformity with the Rules of Professional Conduct. In contrast, the record supports the conclusion that counsel's professional representation of defendant surpassed that required by the Sixth Amendment.*fn7
Defendant's frequent changes of mind with regard to whether he wished to be represented by an attorney and his own role in the proceedings appears to support Judge Farrell's conclusion. Defense counsel was defendant's second appointed attorney. Defendant originally insisted that he wished to proceed entirely without assistance, before he agreed to continue with defense counsel serving as standby counsel. Following denial of his motion to suppress his statements, defendant elected to have defense counsel reassume full representation, before making the underlying allegations and moving again on the eve of trial to proceed pro se. Such circumstances approach the 'cat and mouse' game appropriately censured by this court. Relatedly, this court has noted:
"In every trial there is more at stake than just the interests of the accused; the integrity of the process warrants a trial judge's exercising his discretion to have counsel participate in the defense even when rejected. A criminal trial is not a private matter; the public interest is so great that the presence and participation of counsel, even when opposed by the accused, is warranted in order to vindicate the process itself."
[State v. Wiggins, 158 N.J. Super. 27, 32 (App. Div. 1978) (quoting Mayberry v. Pennsylvania, 400 U.S. 455, , 91 S.Ct. 499, , 27 L.Ed. 2d 532[, 541-42] (1971) (Burger, C.J., concurring)).]
Judge Farrell's determination that no potential or actual conflict of interest existed is reasonable and well-supported by the record. Moreover, nothing suggests that defense counsel's representation of defendant was anything short of adequate or that defendant was thereby prejudiced.
B. The Miranda Hearing
At the Miranda hearing, defendant appeared pro se. Trial counsel had been appointed after defendant's first assigned counsel had been relieved and served as standby counsel at the Miranda hearing. Judge Farrell advised defendant that he should carefully consider whether he should testify at this hearing. Defendant argues that this caution "drove [him] off the witness stand" and prevented him from vindicating his constitutional rights and interests. Defendant did not object to the caution at the hearing; therefore, we may grant relief only if any error rises to the level of plain error. R. 2:10-2; State v. Kuchera, ___ N.J. ___, ___ (2009) (slip op. at 20).
When the motion judge inquired whether defendant intended to call any other witnesses, defendant replied he wished to testify. The following colloquy occurred:
DEFENDANT: Yeah, I'd like to call myself.
THE COURT: Okay. Sir, before you do that I think I need to advise you that that's a pretty dangerous thing to do. Do you understand that when you come up here to testify today that you'll be [under] oath, what you say will be recorded, and can be used against you at your trial? So, if you testify today, the State -- and then you testify at your trial, the State will be able to cross-examine you based on this testimony today.
Also, if you testify today the State will be able to cross examine you relating to your testimony and you will not be able to take the Fifth Amendment and refuse to answer. It'll be bound by the scope of this hearing but still the prosecutor's going to be able to ask you questions. And, considering you're pro se I have some major concerns about that impact on you. So, before you do that, I'm going to take a five minute break so I can use the facilities, and you can talk to [standby counsel] about it before you do it. Okay?
DEFENDANT: Yes, sir.
DEFENSE COUNSEL: Your Honor, just so that he's clear, I represent -- I advised him that --
THE COURT: Well, I don't think I want to know what you advised him at this point. Talk to him and then --
DEFENSE COUNSEL: Okay.
THE COURT: Okay. Mr. Parker, you still intend to testify?
DEFENDANT: No, sir.
The cautionary instruction given by Judge Farrell is entirely consistent with the law. A defendant does not have to forego vindication of his Fourth and Fifth Amendment rights by surrendering his right against self-incrimination. Thus, a defendant may testify at a pre-trial hearing, such as a Miranda hearing, without risk that any incriminating statement made during his testimony may be used as substantive evidence by the State at trial. State v. Petrovich, 125 N.J. Super. 147, 153 (Law Div. 1973). If he testifies at trial, however, the State may confront him with any statements made at trial that are inconsistent with his pre-trial testimony. Id. at 151. Judge Farrell's caution was entirely consistent with this rule, as was his rebuff of defense/standby counsel's attempt to inform the judge of his advice to defendant.
In State v. Bogus, this court held that when a defendant is represented by an attorney, it is not appropriate for a trial judge to discuss directly with defendant whether he should or should not testify in recognition of the possibility of intruding on the attorney-client relationship. 223 N.J. Super. 409, 423-24 (App. Div.), certif. denied, 111 N.J. 567 (1988). When a defendant is self-represented, however, "the trial judge is ordinarily required to inform him of his right not to take the stand," id. at 423, and by inference the limitations on the use of his testimony, if he elects to testify. Here, defendant was self-represented at the Miranda hearing and counsel served only in a standby capacity. This record does not permit us to conclude that defendant was driven from the witness stand when provided with an accurate statement of the risks posed to him at trial by offering his testimony at the Miranda hearing.
Defendant argues in the brief submitted by counsel and in his pro se submission that the trial court erred in failing to suppress his tape recorded statement to police because it was the product of "unfair means" and was not "the product of an essentially free and unconstrained choice." In contrast, the State maintains that "the totality of the circumstances establish that defendant voluntarily, knowingly and intelligently waived his Miranda rights."
This court will not interfere with the trial court's findings of fact to the extent that they "could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 470-71 (1999). Further, a trial court's discretionary determination whether to admit or exclude evidence is entitled to deference absent an "abuse of discretion" or "clear error of judgment." State v. Marrero, 148 N.J. 469, 484 (1997). Stated differently, such a decision should stand unless the trial court's finding "was so wide of the mark that a manifest denial of justice resulted." State v. Kelly, 97 N.J. 178, 216 (1984).
"Confessions obtained by police during custodial interrogation are barred from evidence unless the defendant has been advised of his constitutional rights." State v. Knight, 183 N.J. 449, 461-63 (2005) (citing Miranda, supra, 384 U.S. at 444-45, 467-79, 86 S.Ct. at 1612, 1624-30, 16 L.Ed. 2d at 706-07, 719-26). Accord State v. Timmendequas, 161 N.J. 515, 613 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). For statements made to the police in custodial interrogations to be admissible, the State must prove beyond a reasonable doubt that the defendant waived his right against self-incrimination and that his decision to do so was voluntary, knowing, and intelligent in light of all the circumstances. Knight, supra, 183 N.J. at 461-63; State v. A.G.D., 178 N.J. 56, 67 (2003); State v. Presha, 163 N.J. 304, 313 (2000); Timmendequas, supra, 161 N.J. at 613-14; State v. Reed, 133 N.J. 237, 250-51 (1993). The State must also prove beyond a reasonable doubt that a defendant's statement to the police was voluntarily made and not the product of coercion or "official misconduct." Jackson v. Denno, 378 U.S. 368, 376-77, 84 S.Ct. 1774, 1780-81, 12 L.Ed. 2d 908, 915-16 (1964); Knight, supra, 183 N.J. at 462-63; State v. Cook, 179 N.J. 533, 562-63 (2004); Timmendequas, supra, 161 N.J. at 613-14; State v. Bey, 112 N.J. 123, 134-35 (1988).
In determining the voluntariness of a defendant's statement, courts consider whether the statement was "'the product of an essentially free and unconstrained choice by its maker,' in which case the statement may be used against the defendant, or whether the defendant's 'will has been overborne and his capacity for self-determination critically impaired.'" State v. P.Z., 152 N.J. 86, 113 (1997) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2047, 36 L.Ed. 2d 854, 862 (1973)). "This issue can be resolved only after an assessment of the 'totality of the circumstances' surrounding the statement." Ibid. (quoting Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S.Ct. 1246, 1251-52, 113 L.Ed. 2d 302, 315 (1991)); Timmendequas, supra, 161 N.J. at 613-14; State v. Galloway, 133 N.J. 631, 654 (1993).
Among the factors to consider in determining voluntariness are the suspect's age, education, intelligence, previous encounters with law enforcement, advice received about his or her constitutional rights, the length of detention, the period of time between administration of the warnings and the volunteered statement, and whether the questioning was repeated and prolonged in nature or involved physical or mental abuse. [Timmendequas, supra, 161 N.J. at 614.]
At the Miranda hearing, Detective Harris testified that he administered Miranda warnings to defendant and that Detective Ramos was present when he did so. He used the standard Miranda form and defendant signed the form after Harris told him his rights. Defendant elected to speak to police.
Questioning commenced at 5 p.m. Defendant was not wearing handcuffs. Defendant smoked four cigarettes, drank a bottle of water, and ate two slices of pizza. The interview ended at 9:10 p.m. Near the end of the first interview, defendant complained of pain in his leg due to a prior accident. He refused medical attention.
After he finished eating the pizza slices, defendant agreed to give the taped statement. Detective Collins readvised defendant of his Miranda rights and the renewed questioning started at 9:28 p.m. and concluded at 10:20 p.m. Detective Collins conducted the taped interrogation. In his taped statement, defendant confessed to the robbery. Defendant never requested an attorney. He never asked to call anyone and never asked to stop the interrogation. He did not appear to be under the influence of drugs or alcohol. No one threatened defendant or made any promises to him.
To be sure, at the beginning of the initial interview, Detective Harris advised defendant that he had just left defendant's home and proceeds of the Young robbery had been found at his house. The detective also informed defendant that other items had been found in the trunk of his girlfriend's car. The detective noted that defendant became visibly nervous.
Detective Harris also informed defendant that he suspected that defendant was involved in the Young robbery. He also told defendant that he thought that either defendant or his cohorts had done "something very bad" to Mrs. Young. As soon as he said this, Harris and Ramos left the room. A few minutes later, Detective Harris re-entered the room accompanied by Detective Collins. He suggested that defendant would feel better if he told the truth. He also told him that Palmer was cooperating with the police and had implicated defendant in the robbery. Defendant started to cry. Forty-five minutes later, defendant confessed.
Defendant argues that his will was overborne because police threatened to charge his girlfriend. Psychological, as well as physical, coercion can produce an involuntary confession. Galloway, supra, 133 N.J. at 654. However, the mere fact that a promise is made to a defendant in exchange for a statement does not automatically render the statement involuntary. See State v. J.G., 261 N.J. Super. 409, 424 (App. Div.) (defendant told he could go home after his statement), certif. denied, 133 N.J. 436 (1993); State v. Starling, 188 N.J. Super. 127, 129, 131 (Law Div. 1983) (prosecutor promised not to seek an extended term or parole ineligibility term), aff'd, 207 N.J. Super. 79 (App. Div. 1985), certif. denied, 103 N.J. 481 (1986). See also State v. Cooper 151 N.J. 326, 354-56 (1997) ("misrepresentations alone are usually insufficient to justify a determination of involuntariness . . . ."), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L.Ed. 2d 681 (2000). Similarly, the simple statement that criminal charges may be filed against another, particularly when such charges are well-founded, is not considered a threat that will render a confession involuntary. State v. Wiggins, 291 N.J. Super. 441, 445, 447 (App. Div.) (the defendant's allegation that his statement admitting ownership of a gun found in a bedroom was involuntarily made after officer threatened to arrest and charge all present in the house with unlawful possession of the weapon is without merit), certif. denied, 146 N.J. 568 (1996).
There is no evidential basis to allow a finding that defendant's confession is the product of "unfair means" or that his will was overborne. No promises were made to defendant. Assuming a statement was made to defendant that his girlfriend would be charged, it cannot be considered over-reaching by the police. Defendant's girlfriend allowed the stolen articles to be moved into and stored in her home. Defendant was fed and allowed to smoke during the interrogation. He was not deprived of sleep. In short, the judge properly denied the motion to suppress defendant's confession.
Defendant argues that the trial court committed plain error by failing to provide the jury with adequate and understandable instructions with regard to co-defendant Palmer's testimony. The State maintains the jury charge was appropriate as a whole and did not amount to plain error.
It is essential to a defendant's right to a fair trial that jury charges be accurate and appropriate, particularly in criminal cases. State v. Green, 86 N.J. 281, 289 (1981). Thus, erroneous instructions on material issues are presumed to constitute reversible error. State v. Collier, 90 N.J. 117, 122-23 (1982); State v. Cook, 300 N.J. Super. 476, 489 (App. Div. 1996); State v. Whitted, 232 N.J. Super. 384, 391 (App. Div. 1989).
Defendant argues that the trial court erred in failing to specifically instruct the jury regarding co-defendant Palmer's guilty plea. In addition, defendant suggests that the trial court erred in failing to charge the jury that Palmer's guilty plea should not be viewed as evidence of defendant's guilt.
Defendant relies on State v. Murphy, 376 N.J. Super. 114 (App. Div. 2005), for the proposition that Palmer's guilty plea cannot be viewed as substantive evidence of defendant's guilt. The facts in Murphy, however, are readily distinguishable from this case.
In Murphy, this court noted that a guilty plea of a co-defendant who testifies at trial is admissible to affect his credibility as a witness. Id. at 122 (citing State v. Stefanelli, 78 N.J. 418, 433 (1979)). However, we observed that "[w]hen evidence of the guilty plea of a co-defendant is admitted at trial, the trial judge must provide a cautionary instruction as to the limited use of the testimony for credibility purposes . . . [and] also the prohibited use of the testimony," as substantive evidence of the defendant's guilt. Id. at 122-23.
Unlike here, in Murphy, the only evidence which implicated the defendant in a gas station theft was provided by two co-defendants who had accepted plea agreements. Id. at 123. At the defendant's trial, one of his co-defendants testified that the defendant had been offered a similar plea agreement as that accepted by both co-defendants. Id. at 121. Based upon this testimony, the defendant moved for a mistrial. Ibid. The trial judge denied the defendant's motion and instead delivered an extensive instruction regarding the merits of plea bargaining and the plea bargaining process in an attempt to cure any negative impact from the co-defendant's volunteered statement. Ibid. In doing so, the judge's instruction actually bolstered the credibility of the testifying witness. Id. at 123. Based upon the particular circumstances of that case, we held that the trial court's failure to define both the limited and prohibited uses of the co-defendant's testimony and the improper curative instruction warranted reversal. Id. at 118.
Recently, our Supreme Court considered this issue in State v. Adams, 194 N.J. 186 (2008). In Adams, three co-defendants were charged with various offenses arising out of multiple robberies and a homicide. Id. at 190. One of the co-defendants subsequently reached a plea agreement with the State and was a crucial witness for the State in its case against the other two defendants. Ibid. During their joint trial, the defendants did not request, and the trial court did not give, a specific jury charge that the testifying co-defendant's guilty plea could only be considered to assess his credibility and that the jury should carefully scrutinize his testimony in light of his special interest in the case. Ibid. Both defendants were found guilty by the jury of conspiracy, felony murder, multiple robberies, theft, and weapons offenses, and received extensive prison sentences. Id. at 198.
In discussing the issue, the Court explained:
"[A] defendant may be convicted solely on the uncorroborated testimony of an accomplice." State v. Begyn, 34 N.J. 35, 54 (1961). However, because of the inherent conflict in such testimony, "a defendant has a right, upon request, to a specific jury instruction 'that the evidence of an accomplice is to be carefully scrutinized and assessed in the context of his specific interest in the proceeding.'" Ibid. (quoting State v. Spruill, 16 N.J. 73, 80 (1954)). To be sure, "'the status of a witness as an accomplice or co-defendant invites special consideration' with respect to that witness's credibility." State v. Harris, 156 N.J. 122, 179 (1998) (quoting State v. Gross, 121 N.J. 1, 16 (1990))[, cert. denied, 532 U.S. 1057, 121 S.Ct. 2204, 149 L.Ed. 2d 1034 (2001)]. The trial court should caution the jury "regarding the credibility of witnesses who may have a special interest in the outcome of the cause, which might lead to influencing their testimony, because of some involvement in the criminal situation out of which the indictment and trial of the defendant arose." Begyn, supra, 34 N.J. at 54 (citation omitted).
Although a co-defendant's guilty plea may be considered for credibility purposes, it may not be used as substantive evidence of the defendant's guilt. State v. Stefanelli, 78 N.J. 418, 430-33 (1979). We recognize that there may be a myriad of "other undisclosed or collateral factors" that contribute to a co-defendant entering a guilty plea. Id. at 433 (citation omitted).
More importantly, a defendant is entitled "to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else."
Id. at 430-31 (citation omitted). In sum, the trial court should instruct the jury that it must carefully scrutinize the testimony of a co-defendant in light of the witness's special interest and that a co-defendant's guilty plea may be used only to assess credibility and may not be used as substantive evidence of a defendant's guilt. [Adams, supra, 194 N.J. at 207-08.]
Next, the Court considered the defendants' failure to request a limiting instruction or to object to the instructions that were given and found no plain error in the trial court's failure to give a cautionary instruction on the allowable uses of the testifying defendant's guilty plea and testimony. Id. at 208. The Court noted that "defense counsel thoroughly cross-examined [the witness] to challenge his credibility." Ibid. In addition, the Court found that the witness's "detailed testimony" independently established his guilt and, consequently, his guilty plea added little weight to his testimony. Id. at 209. Further, the trial court provided the jury with the standard charge on credibility. Ibid. Based upon such circumstances, the Court was satisfied that "the error did not have the clear capacity to produce an unjust result and that it had a minimal effect on the outcome of [the] trial." Ibid. (citing Stefanelli, supra, 78 N.J. at 437).
The circumstances of Adams virtually mirror the facts of this case as they apply to this issue. Here, Palmer was cross-examined extensively concerning his plea agreement with the State. In addition, Palmer's detailed testimony independently established his guilt of the crime and, like the testifying co-defendant in Adams, the fact of his guilty plea added little weight to that testimony. Further, Judge Farrell provided the jury with a charge on credibility. Finally, the evidence in the record is overwhelming. These circumstances suggest that here, as in Adams, the failure of the trial court to give a cautionary instruction on the allowable uses of Palmer's plea agreement and testimony "did not have the clear capacity to produce an unjust result and that it had a minimal effect on the outcome of [the] trial." Ibid. (citing Stefanelli, supra, 78 N.J. at 437).
The remaining issues raised by defendant in his pro se submission are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Judge Farrell sentenced defendant to a discretionary extended term of life imprisonment. Defendant argues that the imposition of a discretionary extended term is an abuse of the sentencing judge's discretion as is the selection of a base term that exceeds the minimum base extended term. We remand to allow the judge to impose a sentence in accordance with State v. Pierce, 188 N.J. 155 (2006).
Defendant was sentenced in accordance with the law governing discretionary extended terms as specifically related to first degree kidnapping in effect on August 12, 2005. See N.J.S.A. 2C:43-7a(1); State v. Dunbar, 108 N.J. 80 (1987). On August 2, 2006, the Court held that the second step of the Dunbar four-prong analysis, protection of the public interest, informs selection of the base term, not the threshold question of whether an extended term should be imposed. Pierce, supra, 188 N.J. at 170. The Court did so to "rid our sentencing practice of any ambiguity suggestive of a Sixth Amendment transgression." Ibid.
The Court also reiterated that presumptive terms had been eliminated. Ibid.; State v. Natale, 184 N.J. 458, 487 (2005). Thus, the presumptive term is no longer the starting point for fashioning a term, ordinary or extended. Pierce, supra, 188 N.J. at 169-70. Finally, the Natale rule was afforded a pipeline retroactivity remedy, Natale, supra, 184 N.J. at 495-96, and the Court in Pierce elected to "import" the Natale remedy of remand for re-sentence to cases in which a judge imposed a discretionary extended term in accordance with the Dunbar analysis. Pierce, supra, 188 N.J. at 172-73.
Here, as in the companion case of State v. Kenion, defendant did not raise the Pierce issue and seek a remand for resentence. Ordinarily, we would hesitate to raise an issue not presented by counsel, particularly experienced counsel as appear in this appeal. On the other hand, the judge expressly considered the issue of protection of the public interest in his threshold decision whether to impose a discretionary extended term. The Pierce ruling is grounded on constitutional principles. We are not free to ignore a sentence that suffers from a recognized constitutional infirmity. Therefore, we remand for reconsideration of the sentence in light of the rule announced in State v. Pierce.
Although we remand for re-sentencing, we must address the issue raised by defendant that a life term exceeds the minimum statutorily authorized base term for first degree kidnapping. Contrary to defendant's argument, N.J.S.A. 2C:43-7a(1) provides that a judge shall impose a term of imprisonment "for a specific term of years which shall be between 30 years and life imprisonment" when imposing a sentence for first degree kidnapping. Moreover, the judge must impose a thirty-year minimum mandatory term of imprisonment for this offense. N.J.S.A. 2C:43-7a(7). On the other hand, the presumptive base term of life imprisonment, N.J.S.A. 2C:44-1f(1), is of questionable validity following the abolition of presumptive terms. See Natale, supra, 184 N.J. at 487.
Affirmed; remanded for resentencing.