On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-06-1397.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2009
Before Judges Stern, Sabatino and Lyons.
Defendant, Bryan Boston, appeals from his conviction for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). The victim was his girlfriend, Cynthia Williams.
The following factual and procedural history is relevant to our consideration of the issues raised on appeal. On May 2, 2005, defendant, who was then forty-nine years old, and his girlfriend were staying at the Trump Plaza Hotel in Atlantic City. That evening, defendant and the victim engaged in an argument at a restaurant. According to defendant, the victim yelled at him, called him vulgar names, and slapped his glasses off. Defendant proceeded to throw a drink in the victim's face.
Afterwards, defendant left the casino, purchased a half-pint of Bacardi rum from a liquor store, and returned to their hotel room. At that point, defendant had been drinking for approximately three hours. The victim had been drinking, too. There, another argument ensued between defendant and the victim. Defendant eventually hit the victim in the head with a lamp, and he subsequently strangled the victim with the lamp's cord.
About one hour later, at 12:05 a.m., the following Trump Plaza employees were dispatched by the Trump Plaza's security staff to room 1477 because "something bad was going on": Tremaine Johnson, a security investigator; Larry Kelder, a chief investigator; Tim Shea, a security shift manager; and Layne Williamson, a shift supervisor. They found defendant standing in the hallway. Shea asked defendant, "what was going on, and his response was, [s]he's dead." When asked who was dead, defendant responded, "[i]n the room," and that he "killed her," pointing at room 1477. Johnson described defendant as being "pretty calm," initially.
Kelder, Williamson, and Shea opened the door and found a body, later identified as the victim, within a large pile of bedding on the floor; a large puddle of what appeared to be blood in front of the bedding; and broken glass on the floor.
Meanwhile, Johnson and defendant waited in the hallway for about fifteen minutes until the police arrived. Johnson did not ask defendant any questions. Defendant repeatedly stated that he "had killed her," and that he was glad "she's dead." Defendant also said, "[s]he pushed my buttons. She got what she deserved." Johnson observed defendant "became more agitated" during this time.
At some point, Shea advised Johnson to handcuff defendant. Johnson and a co-worker handcuffed defendant with his hands behind his back. According to Johnson, defendant continued to speak very loudly, appeared very upset and very agitated, and made further incriminating statements.
Johnson detected an odor of alcohol from defendant's breath, but Shea did not. Johnson did not notice defendant was staggering, slurring his speech, or doing anything else unusual. Shea said that defendant's walk and gait were fine but that defendant's speech was slurred. Defendant neither fell nor lost consciousness in Shea or Johnson's presence. In Johnson's opinion, defendant appeared to be oriented.
Detective Charles Miller, in plain clothes, and several other police officers of the Atlantic City Police Department responded to a radio call regarding a possible homicide of a female at the Trump Plaza. As he exited the Trump Plaza's elevator on the fourteenth floor, Detective Miller could hear defendant yelling and screaming.
After being apprised of the situation, Detective Miller positioned himself in front of defendant, identified himself as a police officer to defendant, told defendant that he was under arrest, and read defendant a Miranda*fn1 warning from a piece of paper. While Detective Miller read defendant these rights, defendant continued to talk, but Detective Miller said that defendant looked at and listened to him as he read the warning. When Detective Miller asked defendant if he understood each of his rights, defendant said "[y]es," and "[y]es, I killed her." According to Detective Miller, defendant was oriented to what the detective was saying and the surrounding circumstances. Detective Miller did not ask defendant any further questions.
Detective Miller and several other police officers then escorted defendant to the detective bureau for questioning. Detective Miller noted defendant was able to follow orders and walk to the police car under his own power. He further recalled that defendant neither staggered nor fell. Detective Miller smelled alcohol on defendant's breath, but he could not recall if defendant exhibited any other symptoms of intoxication.
While being transported in the police car, defendant said, "[s]he disrespected me. She slapped my glasses off my face in front of a bunch of white people. We went up to the room and began to argue and then I strangled the bitch. I strangled the bitch." As they arrived at the detective bureau around 12:45 a.m., defendant said, "[a]s soon as you mix Bicardi [sic] and Hennessy you know what you got to do and I did what I had to do: I killed her. She's dead, I know."
Detectives Neil Kane and Michael Graham, who were on duty at the detective bureau, overheard defendant repeatedly state, "I killed her," as he entered the bureau. Defendant was then placed in an interview room and turned over to Detective Kane.
According to Detective Kane, when he entered the interview room, defendant was loud and vulgar, screaming and pounding his fist on the table. Defendant continued to make incriminating statements. Detective Kane attempted to calm defendant by giving him a cigarette, leaving him alone for a few minutes, and telling him to calm down.
Detective Kane then returned to the interview room and read defendant his Miranda rights from a form. Defendant stated that he understood the rights and would waive them, and he signed the waiver at 1:01 a.m. Detective Kane said that defendant continued to talk while his rights were read to him but that defendant "listen[ed] intently" and reviewed the Miranda form before waiving his rights. Detective Graham witnessed the reading of the form and defendant's execution of the waiver. He said that defendant commented once or twice but was otherwise listening to Detective Kane while the form was being read. Defendant wrote his name, address, date of birth, social security number, phone number, and age on the form.
Detective Kane characterized defendant as "slightly upset" and "angry" at the time, and he smelled alcohol on defendant's breath. Detective Graham also detected alcohol on defendant's breath and noticed defendant appeared to be "under the influence." Both detectives observed that defendant's speech was slurred.
Detective Kane conducted a twenty-four minute pre-interview with defendant. Afterwards, the detective conducted a thirty-three minute interview, which was audio recorded, with defendant that ended at 1:58 a.m. Defendant described in vivid detail the events of that day and evening leading up to and including the victim's death.
Defendant said that when he returned to his room and the victim was there, the victim started calling defendant names. He claimed that the victim grabbed defendant by his collar and chain, which began to cut his neck. Defendant said that he told her to get off of him or that he was "going to kill" her. Defendant indicated that the victim then either punched him or said something, so he "then busted her in the head with the . . . lamp." Defendant said that the victim "kept coming and kept on coming," so he proceeded to strangle her with the cord. Defendant said that the victim "kept breaking up and coughing, and I wanted her dead."
As the interview progressed, it appeared to Detective Kane that defendant's level of intoxication seemed to increase. Yet, the detective also perceived that defendant was oriented to where he was, what he was doing, and what he was saying. Detective Graham said that defendant did not seem to be under any physical or mental distress that interfered with his ability to understand what was going on around him.
Detective Kane noticed defendant had some cuts on the ring finger of his left hand and that there was "a slight injury underneath [defendant's] lip."
Following the interview, defendant was transported by Detectives Robert Campbell and Robert Norocki to the Atlantic County Prosecutor's office for processing. During this time, without any provocation by the detectives, defendant said, "[b]itch pushed by buttons, man," and "it's been five years."
At approximately 7:30 a.m., Detective Norocki informed Detective Campbell that defendant was offering new details about the crime. So, Detective Campbell met with defendant, who consented to the audio recording of his statement. At first, defendant consented to speaking to the detective, but when the detective advised defendant of his Miranda rights, defendant said, "I don't want to be questioned any more until I get a lawyer and I tell my side of the story to the media."
The detective then left defendant alone. The detective described defendant as "very coherent and fine," and said that defendant's speech was not slurred at that point.
At approximately 8:35 a.m., the detective, who was in another room, overheard defendant say loudly from the holding area, "[y]ou take these cuffs off and I'll kill the judge just like I killed her."
On June 29, 2005, an Atlantic County grand jury returned Indictment No. 05-06-1397, charging defendant with first-degree murder, contrary to N.J.S.A. 2C:11-3a(1)(2), and third-degree possession of a weapon, a blunt object and a cord, with the purpose to use it unlawfully against a person, contrary to N.J.S.A. 2C:39-4d.
On September 28, 2006, and April 4, 2007, a N.J.R.E. 104(b) hearing was held to determine the admissibility of defendant's statements to private security personnel and law enforcement officers under Miranda.
Dr. Kenneth Weiss, a psychiatrist testifying as an expert witness for defendant, examined defendant three times. On the first occasion, Dr. Weiss examined defendant regarding his state of mind at the time of the homicide and concluded that, although defendant "may have been mentally ill and intoxicated, it did not rise to the level as I understood it of a defense in New Jersey."
During the subsequent examinations, Dr. Weiss focused on defendant's state of mind when he made his statements to the security officers and police. Dr. Weiss listened to the audio tape of defendant's interview with the police and the audio tape of defendant's statements the subsequent morning. He opined that it would be obvious to anyone that defendant was drunk when he spoke because his speech was slurred and his judgment was "clearly impaired." Dr. Weiss opined that "his waiver . . . was incompetent" and "done without an understanding of what was in [defendant's] . . . liberty interest." Based on defendant's use of profanity and the manner in which he spoke to the officers, Dr. Weiss stated that defendant "was not in good emotional control." The doctor said that defendant's unstable emotional state would tend to support a conclusion that defendant was too drunk to understand what he was doing.
Dr. Weiss contrasted the second audio tape, which was recorded at around 7:30 a.m., with the first tape: defendant's speech "was much more subdued, was in control, reasonably well modulated and not sounding drunk like it did in the first statement." Dr. Weiss said that defendant's invocation of his right to remain silent, made without hesitation, indicated defendant understood his rights. Dr. Weiss opined that defendant was sober during the second audio tape. Dr. Weiss concluded that a reasonable person who saw defendant at the time of the first interview would have known that defendant was drunk. Dr. Weiss admitted that he did not rely on the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) to determine if defendant was intoxicated.
Dr. Louis Schlesinger was called by the State at the Miranda hearing as an expert in forensic psychology. Dr. Schlesinger never met with defendant, but he reviewed Dr. Weiss's report and noted several areas that he would have approached differently compared to Dr. Weiss's methodology.
First, Dr. Schlesinger said that although defendant's speech was slurred, Dr. Weiss did not review nor indicate whether defendant exhibited any of the specific symptoms of intoxication: "incoordination, unsteady gait, a nystagmus, which means eyeballs just moving from dizziness, impairment in retention or memory, stupor or coma" according to DSM-IV. Dr. Schlesinger could not find any evidence that any police officers or witnesses who observed defendant noticed those symptoms.
Dr. Schlesinger said that defendant's loud, unmodulated speech; blurting of information; and use of profanity and braggadocio may have been indicative of defendant's personality rather than his level of intoxication.
Dr. Schlesinger would have reached out to determine how defendant functions in jail, instead of how defendant functions at an individual examination. Dr. Schlesinger noted that defendant had an excellent ...