On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-10-1814.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Wefing, Messano and LeWinn.
Tried to a jury in October 2006, defendant was convicted of one count of knowing and purposeful murder, in violation of N.J.S.A. 2C:11-3(a)(1)(2), and two counts of felony murder, in violation of N.J.S.A. 2C:11-3(a)(3). On February 9, 2007, defendant was sentenced to a term of life with a thirty-year parole ineligibility period; this sentence was consecutive to any sentence defendant was then serving. Defendant appeals, raising four claims of trial error and an argument that his sentence is excessive.
The pertinent factual background may be summarized as follows. Roberto Arenas, known as a small-time narcotics dealer, was murdered in Fair Lawn, New Jersey, on November 21, 1983. The Fair Lawn Police Department initiated an investigation into the homicide, which proved fruitless. The case remained dormant until sometime in 2004 when it was assigned to Detective Mark Bendul of the Bergen County Prosecutor's Office (BCPO) as a "cold case" for review. Bendul's review of the file revealed the names of Albert Bolt and defendant. Bendul focused his investigation on Bolt and defendant and coordinated with Detective John Ietto of the Fair Lawn Police Department, who had been the original detective assigned to the homicide.
At trial, the State's case was essentially based upon defendant's confession. Bendul was the only witness to testify at the pre-trial hearing on defendant's motion to suppress his confession. Bendul stated that he located defendant in the Passaic County Jail. On March 16, 2005, Bendul and Ietto met defendant at the jail and told him that they wanted to speak to him about an old case. Defendant agreed to accompany the detectives to the BCPO's Paramus office, arriving at approximately 10:30 a.m. Bendul told defendant that he had information that defendant, Albert Bolt and another individual named Ronald Wimbush had been involved in a murder in Fair Lawn in 1983. Defendant agreed to speak to Bendul and executed a Miranda*fn1 rights form. Bendul read all of the rights aloud to defendant who indicated that he understood each of them. At Bendul's request, defendant wrote the word "yes" next to each right and signed his initials. Bendul then asked defendant if he would speak to the officers without an attorney; defendant "verbally agreed."
Bendul showed defendant two photographs of Albert Bolt; defendant identified both photographs and stated that he knew Bolt as "Tafari." Defendant wrote the name Albert Bolt and the alias "Tafari" on the margin of each photograph and initialed them.
Bendul began discussing the investigation of the 1983 homicide. Defendant stated that he was not in Fair Lawn at that time and, in fact, had been in jail. Bendul took a break from the interview and ascertained defendant's incarceration status in 1983; he learned that defendant had been lodged in the Passaic County Jail on May 15, 1983, and was released on bail on June 28, 1983; the next time defendant was in the Passaic County Jail was December 5, 1983. Bendul informed defendant that the homicide had occurred in November 1983, and that the detective had determined that defendant was not in jail at that time. Defendant asked Bendul for the exact date of the homicide; when Bendul told him it was November 21, 1983, defendant "said that . . . he could have been on the street at that time."
Bendul told defendant that "based on the information that was . . . obtained during the investigation[,] . . . he was clearly involved in the murder of Roberto Arenas." Bendul also told defendant "that the investigation revealed that he was not the mastermind, that this was not his plan, that he was simply doing what . . . he was told by Albert Bolt." When "confronted with that scenario," defendant "became quiet, and put his head down, and stared at the floor."
When Bendul specifically asked defendant "if it was his idea[,]" defendant "shook his head, and said that it was not his idea. . . . He became very emotional, and he actually broke down and cried." Defendant stated "that he never killed anyone on his own, and . . . that since the incident he has become very religious and swore off all violence."
Bendul asked defendant "how many times he shot the victim," and defendant responded "that he didn't shoot the victim, that it was Albert Bolt who shot the victim." Defendant stated that Bolt shot the victim in the back of the head, which matched the file information that Arenas "had been shot four times in the back of the head." "[E]ventually[,]" defendant "stated that he did, in fact, shoot Roberto Arenas in the back of the head. . . . He said he shot him once."
Bendul told defendant that Arenas "exhibited multiple gunshot wounds to the back of the head[,]" and advised defendant "that at this point it would be in [his] best interest to be honest and truthful with regards to the amount of shots he fired." Defendant then stated that he shot Arenas "two or three more times in the back of the head."
At that point, defendant asked Bendul what would happen to certain Passaic County charges for which he had been arrested in November 2004. Bendul advised defendant that "those charges are independent[,]" but that defendant's "level of cooperation, truthfulness and honesty would be made known . . . to the assistant prosecutor investigating the case."
Bendul then asked defendant, "[W]hat happened on that day, the day of the murder?" Defendant stated that "he was hanging out in the area" of 12th Avenue and 24th Street with Wimbush, when Bolt and Arenas approached them in a blue Datsun. Bendul showed defendant a photograph of the Datsun and defendant recognized it as the vehicle in question. Defendant told Bendul that he and Wimbush "worked for Albert Bolt as drug runners in . . . marijuana for 12th Ave[nue], . . . [and] 24th Street."
Defendant said that Bolt told Wimbush and him to get into the car, "that they had something to take care of . . . ." Arenas then drove the car "to an unknown apartment . . . some place out of Paterson . . . ." Bolt and Arenas exited the car, went into the apartment, and returned several minutes later. Defendant stated that he believed Bolt was "going to take Roberto Arenas['s] . . . cocaine in his apartment." Bolt instructed Wimbush to drive and told Arenas to sit in the back.
Once they were all in the car, "that's when Albert Bolt pulled out a gun, and pointed it toward Roberto Arenas, and told him that he was not going to pay for the drugs." Bolt told Wimbush to drive "to the eventual location of the shooting." They "went over a bridge and then went into a residential area."
Bolt then exited the car and instructed defendant to follow him. Bolt also told Arenas to get out of the car. The three of them "then walked away from the car, between two houses, down the driveway a little bit[,]" and Bolt told Arenas "to get down, and when . . . Arenas resisted a little bit[,] . . . Bolt kicked the knees out from . . . Arenas, forcing him face down onto the ground." Defendant stated he was "[r]ight there . . . with them[,]" and "that . . . Bolt then gave him a gun[,]" which he described as "possibly a .357 Magnum."
Defendant stated that, after giving him the gun, Bolt "took out . . . some type of a plastic rope, and . . . proceeded to tie . . . Arenas's wrists behind his back." Arenas was lying flat on the ground face down at that time. Bolt then "told [defendant] to shoot . . . Arenas[, a]t which time [defendant stated that he] shot . . . Arenas multiple times in the back of the head."
Bolt and defendant then returned to the car, and Bolt "told Wimbush to drive away." They stopped after driving a distance, and Bolt provided defendant and Wimbush "with pieces of cloth, and said wipe down the car for any fingerprints. They did that for several minutes." When they left the area, Bolt told defendant and Wimbush "to lay low. Stay cool. Not say anything." Defendant added that "Wimbush did not want to get rid of the gun for a couple of days[,]" but that defendant was "finally able to convince Wimbush to throw the gun away."
At the conclusion of his interview, Bendul asked defendant if he would provide a stenographic statement regarding the information he had just disclosed, "and he agreed." Bendul commenced taking defendant's stenographic statement at 1:40 p.m., and completed it at 2:15 p.m. Throughout this time, Bendul described defendant's demeanor as "very cooperative. He appeared to be very relieved."
Defendant's acknowledgement of the accuracy of the stenographic statement was videotaped, albeit without his knowledge. Defendant reviewed each page and confirmed its accuracy; he initialed the bottom of each page, as did Detectives Bendul and Ietto. After reading the entire statement, defendant voluntarily signed his name following the written acknowledgement that he had read the foregoing statement and that it was "a true and accurate transcript of the statement" he gave on March 16, 2005. He further acknowledged that he was signing the statement "freely and voluntarily."
Because defendant is a citizen of Jamaica, Bendul asked him if he wanted the officer "to contact the Jamaican embassy, and notify them of . . . these charges." Defendant responded "that he did not want [Bendul] to do that." At Bendul's request, defendant wrote and signed the following statement on a consular rights form: "'I don't want the police to contact the Jamaican Consulate about my arrest'"
Based upon defendant's stenographic statement, Bendul swore out a complaint for his arrest for Arenas's murder. Bendul advised defendant that "complaints were being processed[,]" and that he "had to be processed, photographed and fingerprinted." Defendant remained "cooperative." Defendant was formally arrested at approximately 10:30 p.m., and was transported to the Passaic County Jail.
Defendant did not testify at the Miranda hearing; he did, however, testify on his own behalf at trial. Defendant repudiated his confession and claimed that he had requested an attorney which Bendul refused to provide. Defendant further claimed that he only admitted to the crimes because Bendul promised he would be charged with manslaughter and would receive a sentence concurrent with his sentence on the Passaic County offenses. In addition, defendant testified that he only admitted to shooting Arenas four times because Bendul told him the police could use his statement against Bolt and that he would be charged with a lesser offense.
Defendant also testified that when Bolt told him to shoot Arenas, he refused to do so and held the gun down at his side. Defendant stated that he and Bolt began to argue; Bolt reached for the gun and managed to cock it, as a result of which the gun accidentally went off in defendant's hands, with the shot hitting Arenas behind his right ear, causing a wound that was not fatal. Defendant testified that, at this point, he returned to the car despite Bolt's insistence that he come back. Defendant sat in the back seat of the car and stated that he then heard more shots fired. Bolt returned to the car cursing and making threats, gave the gun to Wimbush and stated that if defendant told anyone about Arenas's murder, he would kill defendant's family. Defendant stated that Bolt ordered Wimbush and him to drive to another location and to wipe down the car.
On appeal, defendant raises the following contentions for our consideration:
THE STATEMENT TAKEN FROM DEFENDANT WAS NOT VOLUNTARILY MADE AND ITS ADMISSION INTO EVIDENCE DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND VIOLATED HIS PRIVILEGE AGAINST SELF INCRIMINATION. (U.S. CONST. ...