April 13, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TRAVIS LANE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-05-1205.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2009
Before Judges Rodríguez and Reisner.
Following a jury trial, defendant Travis Lane was convicted of first degree aggravated manslaughter of Ezequiel Hernandez, N.J.S.A. 2C:11-4; first degree felony murder, N.J.S.A. 2C:11- 3(a)(3); first degree armed robbery, N.J.S.A. 2C:15-1; and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). After appropriate merger of convictions, the judge imposed a forty-year term with a NERA*fn1 parole disqualifier on the aggravated manslaughter conviction. Defendant was seventeen years old at the time, but he was tried as an adult in Superior Court. There is no challenge to the Family Part's decision to refer to the Law Division. We affirm.
The State's proofs can be summarized as follows. On September 11, 2004, Hernandez lived in Neptune with his aunt (Clotilde Hernandez), Eligio Aguilar, and several others. He was a recent immigrant from Mexico. That day, Hernandez went to a store to buy an international phone card. He went there on a bicycle he had recently purchased for $78. Around 6:30 p.m., Hernandez's aunt heard him knocking "desperately" on the front door. Upon opening it, she saw Hernandez bleeding profusely from a neck wound. He told her, "They stole the bike from me and I was stabbed." The aunt screamed for Aguilar. Hernandez told Aguilar, "They robbed my bicycle and wounded me." Hernandez pointed at the perpetrators down the street. Aguilar saw someone riding Hernandez's bicycle with another person running next to him. Aguilar immediately drove Hernandez to the hospital. Hernandez lapsed into unconsciousness and was pronounced dead later that night.
Fifteen-year-old Zane (E.J.) McBride testified that he was riding his bike when he saw Hernandez on a bicycle. Defendant was behind Hernandez and someone on a green bike was behind defendant. Defendant ran up and hit Hernandez in the back of the head. Hernandez hit defendant back on the chin. Defendant "jumped in the street with his hands out" hitting Hernandez again. Hernandez got off his bike and ran into the house screaming something in Spanish. Defendant then got on the bike and rode it toward a nearby deli. McBride gave a statement to the police and identified defendant's photograph as portraying the person who attacked Hernandez.
Sixteen-year-old Antonio Delaney testified that he was near defendant's house when he saw an altercation between defendant and Hernandez. Delaney saw defendant run past him with a knife and hit Hernandez in the lower jaw area as Hernandez was riding his bicycle. After Hernandez fell to the ground, defendant got on Hernandez's bike and rode away. Hernandez held his neck as defendant rode off on the bike.
Fourteen-year-old Albert Miles testified that he did not recall any conversation he had with defendant despite having given a statement to the police to the contrary. He acknowledged the statement given was, however, accurate. In his statement, Miles indicated that the day after Hernandez's death, defendant said "I killed the Mexican." Defendant told Miles that "he went over across the street and he hooked the Mexican and the Mexican hooked him back." By hooking, Miles meant defendant "took a swing at him." Defendant told Miles he had stabbed Hernandez in the neck and took his bike.
As a result of the information received, Neptune Detectives Barry DuBrosky and Eugene Stewart arrested defendant at his school four days after the stabbing. Defendant was called to the principal's office and upon his arrival he was placed under arrest, patted down, and handcuffed. The detectives then took him to the Neptune Police Department where his mother, Edith Fuller, was waiting. Detective DuBrosky explained to Fuller that because defendant was not an adult, she would need to give permission for the detectives to question him. Fuller agreed and defendant also agreed that he would speak with them.
DuBrosky presented defendant with a Miranda*fn2 warning and waiver form. After each of the five Miranda warnings was read aloud, both defendant and Fuller initialed the appropriate section and signed at the end of the form. Detectives DuBrosky and Stewart then signed the form and recorded the date and time: September 15, 2004, at 1:22 p.m.
Defendant initially denied any wrongdoing. He told the detectives that he was playing basketball with friends and filling out job applications the day Hernandez was murdered. He said he came back to his house that afternoon and was sitting in his backyard when McBride came running and told him that "a Mexican got cut in front of the house." Defendant said he did not react to McBride's statement and instead carried on his conversation. He said he had a hard time sleeping that night because he was thinking about his recently deceased grandmother.
DuBrosky asked defendant if he had a hard time sleeping because he had killed Hernandez. Defendant said, "I was in Belmar, ask [McBride]." DuBrosky then told defendant and Fuller that the reason he was arrested was because there were statements by witnesses against him. Defendant still repeatedly insisted that they "ask [McBride]" to verify his story.
DuBrosky asked defendant how he would feel if someone killed his mother or sister. Defendant did not respond. The detective then asked how he would feel if someone had killed his grandmother for a bicycle. Defendant looked at his mother and became angry. He clenched his fists and was breathing heavy, almost snorting. DuBrosky raised his voice and said, "You've got to be kidding me. I'm pissing you off. You kill a man for a $78 bicycle and I'm fucking pissing you off? You've got to be kidding me." Defendant was mad and again insisted several times that they "ask [McBride]" to verify his story.
At that point in the questioning, Neptune Deputy Chief Guy McCormick knocked on the door and asked the detectives to leave so that he could talk to defendant alone. McCormick came out five minutes later and told the detectives that defendant had just seen McBride's statement and that they should go back in to continue the questioning.
When the detectives re-entered the room, defendant was somber and Fuller seemed very upset. DuBrosky told defendant he needed to be honest with them and his mother. Defendant then stood up from his chair and said, "I'm sorry, I did it." He then walked over to his mother and hugged her, repeatedly saying he was sorry.
After a short bathroom break, defendant agreed to give a formal statement. The statement began at 3:06 p.m., ended at 4:12 p.m., and was ten pages long. Defendant said that he alone was responsible for the stabbing, which was unintentional. He said that he was truly sorry. He denied taking the bicycle. Defendant reviewed the statement with the detectives, which was documented by video recording. Both defendant and Fuller initialed the bottom of each page to indicate that the contents were accurate.
Eleven months later, defendant wrote a letter to DuBrosky asking to speak with him as soon as possible. Defendant wrote:
[Y]ou should know that [had I] not made the statement . . . [t]he real person responsible for this crime threatened me with the same result as the victim. I was in fear for my life as well as the lives of my family."
A second letter was sent to the Monmouth County Prosecutor's Office on July 5, 2005. This letter used the same exact language.
Defendant later testified that he did not stab Hernandez. According to defendant, the letters he sent were lies and he had never been threatened by the "real person" who committed the crime. Instead, he claimed that it was the police who threatened him. He testified that DuBrosky threatened to ask for the death penalty if he did not give a statement and sign the Miranda form. Defendant testified, "I was scared of the death penalty, and I was tired of them saying those things about my grandmother and my family. So, I just told them . . . what they wanted to hear, and made up a story." He said he signed the Miranda form to be "cooperative," but did not understand what it meant.
Prior to trial, defendant moved to suppress his confession. A hearing was held to determine whether defendant was competent to understand the waiver form and to voluntarily, knowingly, and intelligently waive his rights.
Mark Siegert, Ph.D., a psychologist, testified as an expert for the defense. Siegert met with defendant on five occasions and reviewed all documents related to the case, including the videotaped confession, as well as defendant's school records. These records indicated that when defendant was almost eight years old, his testing in math, reading, recognition, and general information put him at an equivalent of less than five years old. Around this time, the school classified defendant as neurologically impaired and "educably mentally retarded" (with an IQ of sixty-three) and placed him in a special school. He was also diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).
Siegert performed a long list of IQ and competency tests. One test revealed "significant distortions in his ability to see, process, and reproduce simple geometric shapes." When asked to draw the face of a clock, defendant did not know if there were twelve or thirteen numbers and then placed the numbers out of order. Defendant did not know the name of the current or past U.S. President, and said "I don't even know who the mayor of New Jersey is." In Siegert's opinion, defendant's drawings of houses, trees, and people were of the types of drawings that "very, very young children" create.
Siegert then administered the Wechsler Adult Intelligence Scale Three Test. Defendant's verbal score was a sixty-nine and his full scale score was sixty, placing him in the first percentile, meaning that 99% of people his age scored higher. More testing revealed that 99.9% of people his age scored better in listening, listening vocabulary, listening grammar, speaking ability, reading, and writing ability. These scores placed Defendant in the mild range of mental retardation.
In terms of specifically testing defendant's ability to understand the Miranda warnings, Siegert used the Grisso test, also called "Understanding and Appreciation of the Miranda Rights Assessment." In this test, Siegert first asked defendant to say in his own words what he thought the Miranda warning meant. Next Siegert used substituted words and asked defendant whether the statements were then the same or different from the ones in the Miranda warning. Only 4.5% of offenders scored as low or lower than defendant did on understanding Miranda rights.
After performing the evaluations of defendant, Siegert concluded as follows:
I found Travis Lane to be mentally retarded with an IQ less than 70, cognitive deficits beginning before age 18 and more than two significant adaptive skill deficits. . . . I found him to have severe ADHA. . . .
[H]is language deficits are below the first percentile in all measured tasks, that not only would render his ability to understand what is said in the courtroom as inadequate, but combined with other cognitive deficits and his ADHA, it rendered him in my opinion unable to understand the Miranda warning at the time. And I noted there that when [defendant] does not understand something he acts as if he does understand it. That's part of his preserving his self-esteem and trying to act like a man.
I found his reading level to be at the third grade or the first percentile. And I do not believe he could have understood the Miranda warning in terms of beyond - - I think he could read many of the words, not all of them, but I don't believe in real time and without teaching he could have understood the meaning of them on the Miranda form. I noted his memory even both immediate and at a gap of [twenty] minutes as severely deficient, below 0.1st percentile. And that would affect his ability to remember the warning given verbally and read and process what that means so he could weigh or understand the meaning of it.
Louis Schlesinger, Ph.D, a psychologist, testified as the State's expert witness. Schlesinger found Siegert's testing to be flawed. Most notably, Schlesinger disagreed with the use of the Grisso test and Siegert's conclusion that defendant did not understand the Miranda warnings. The Grisso test uses a Miranda form with different language than the one used by the Neptune Police Department and signed by defendant.
In Schlesinger's opinion, defendant was fully capable of understanding the Miranda warnings. Schlesinger reviewed the actual Neptune Miranda form with defendant and asked him to say in his own words what each of the warnings meant. Schlesinger also administered the Grisso test and felt that even though that form was more advanced than the Neptune form, defendant's answers satisfactorily demonstrated that he understood his Miranda rights when he waived them.
Schlesinger also testified that there were errors in the other tests that Siegert administered to defendant. Schlesinger detailed numerous questions where defendant had received a zero score from Siegert, but when asked the same question again by Schlesinger defendant gave an answer worthy of half or full credit. Schlesinger said Siegert failed to ask appropriate follow-up questions when defendant refused to answer or gave a vague answer. Additionally, Schlesinger found calculation errors in Siegert's results. When Siegert's results were recalculated, defendant's verbal IQ was a seventy-eight, not a sixty-nine as Siegert originally found. This placed defendant in the borderline to low average range for verbal intelligence.
After performing a number of other tests, Schlesinger concluded that defendant was not mentally retarded. He noted that in 1999, a psychiatrist had also found that defendant had "borderline intellectual functioning" and was not mentally retarded. Ultimately, Schlesinger presented the following conclusions to the court:
[Defendant] is not mentally retarded according to diagnostic criteria. He has attention deficit hyperactivity disorder of a hyperactive impulsive type, he has conduct disorder that's now developed into a personality disorder, with antisocial and impulsive traits. He has a history of alcohol and marijuana abuse. I also found some mild organicity and a learning disability. But he was completely competent to make a free, knowing, and voluntary waiver of his Miranda rights when they [were] read to him when he was arrested.
The judge also heard testimony from defendant, his mother, and the detectives. Fuller gave conflicting testimony. At first she said she heard DuBrosky threaten her son with life imprisonment if he did not make a statement. After the hearing recessed for lunch, Fuller testified during cross-examination that DuBrosky had threatened defendant with the death penalty.
The judge denied defendant's motion to suppress the statement. The judge found that defendant and Fuller were not credible witnesses because of inconsistencies in their testimony concerning the threats they alleged DuBrosky made. In contrast, the trial judge found that the detectives were credible and their testimony was supported by documentary evidence such as the signed waiver form, the written statement, and the videotaped review of the statement. The judge found that defendant's statement was voluntarily given.
On the issue of defendant's ability to understand the Miranda warnings, the judge found that both expert opinions "were really outweighed by the lay evidence . . . [i]ncluding the testimony of [defendant.]" This lay evidence led to the conclusion that "[defendant] demonstrated sufficient intelligence to understand his Miranda rights. The judge noted defendant's school difficulties, but concluded that "understanding Miranda is really not that complicated." The judge found Schlesinger's testimony "more in accord with the court's findings in evaluation of that lay testimony" and that "Siegert passed the stage of being an impartial expert to that of being [Defendant's] advocate."
Defendant appeals contending:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS SINCE THE TOTALITY OF THE CIRCUMSTANCES DEMONSTRATED THE DEFENDANT COULD NOT, AND DID NOT, KNOWINGLY AND INTELLIGENTLY WAIVE HIS MIRANDA RIGHTS.
It is settled that "[c]onfessions obtained by the police during a custodial interrogation are barred from evidence unless the defendant has been advised of his or her constitutional rights." State v. Knight, 183 N.J. 449, 461 (2005). A waiver of the constitutional right against self-incrimination must be voluntary, knowing, and intelligent. Ibid. (citing Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 707). In New Jersey, the burden is upon the State to prove the validity of a Miranda waiver beyond a reasonable doubt. State v. O'Neill, 193 N.J. 148, 168 n.12 (2007).
New Jersey utilizes the "totality of the circumstances" test to determine the validity of a waiver. Knight, supra, 183 N.J. at 462-63. The factors include personal characteristics such as the defendant's age, education, and intelligence, as well indicators of the nature of the interrogation, such as the length in detention and whether physical or mental exhaustion were involved in obtaining the confession. Ibid. Courts also consider a defendant's previous interactions with law enforcement and the length of time between the administration of the warnings and the given statement. Id. at 463.
At the time of arrest, defendant was seventeen. Whether a parent was present when a juvenile's confession is given is a "highly significant factor" in determining whether a waiver is valid. State v. Presha, 163 N.J. 304, 315 (2000). As is required by N.J.S.A. 2A:4A-33, the police officers contacted defendant's mother at the time of his arrest. She was present at the time he signed the Miranda form, when the statement was given, and when the statement was reviewed.
The crux of defendant's argument that his Miranda waiver was invalid rests upon his alleged "severe intellectual deficiencies" and "significantly impaired educational and mental characteristics." Defendant cites State in the Interest of S.H., 61 N.J. 108, 115 (1972), and argues "[a person] cannot make a knowing and intelligent waiver of something he cannot understand." Defendant concedes that a limited intelligence "does not necessarily render [a waiver] involuntary in nature," but argues that according to State v. Flowers, 224 N.J. Super. 208, 214 (Law Div. 1987), aff'd o.b. 224 N.J. Super. 90 (App. Div. 1989)), those with a diminished mental capacity must be "treated differently [than] adults who are presumed to be responsible."
A defendant's IQ is not dispositive in determining whether Miranda warnings were understood. State v. Carpenter, 268 N.J. Super. 378, 385 (App. Div. 1993), certif. denied, 135 N.J. 467 (1994). Nor does participation in special education courses, illiteracy, or even mild retardation automatically render a Miranda waiver invalid. Ibid. Instead, "each case must be examined on an individual basis." Ibid.
Our standard of review of a trial court's findings as to the admissibility of a defendant's confession is the "sufficient credible evidence" standard. State v. Elkwisni, 384 N.J. Super. 351, 366 (App. Div. 2006), aff'd, 190 N.J. 169 (2007). Thus, reversal will occur only if the trial court's findings "are not supported by substantial credible evidence." Ibid. Here, the judge found Schlesinger to be the more credible expert witness and believed that Siegert had moved from being an impartial expert to an advocate for defendant. More importantly, the judge found that both expert opinions "were really outweighed by the lay evidence . . . [i]ncluding the testimony of [defendant.]" From our review of the record, we conclude that the judge's finding that defendant understood the Miranda warnings was based on sufficient evidence in the record.
A final step in the totality of the circumstances test is looking at the nature of the interrogation. Knight, supra, 183 N.J. at 462-63. Defendant claimed DuBrosky threatened him with the death penalty if he did not cooperate, while his mother gave conflicting testimony. The judge found neither credible and instead believed the testimony of the detectives and Chief McCormack who said no threats were ever made. We give deference to the trial judge on issues of credibility. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 695 (2007).
The length of defendant's detention prior to the confession does not render the statement involuntary. See Knight, supra, 183 N.J. at 468-69 (finding a detention that lasted the length of a "daytime work shift" would not render a waiver involuntary); State v. Morton, 155 N.J. 383, 450 (1988) (a nine-and-a-half hour interrogation did not render waiver involuntary). Finally, the time that lapsed between the administration of Miranda warnings and defendant's statement was minimal, as less than two hours passed. We thus conclude that the judge's finding that defendant's statement was voluntarily given must be affirmed.
Defendant also contends:
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE. Specifically, defendant argues the judge "abused [his] sentencing discretion by imposing the significant [forty] year base term rather than the mandatory minimum [thirty] year base term." We disagree. Defendant's sentence of forty years was within the statutory guidelines for first degree murder, which is a range of thirty years to life imprisonment. N.J.S.A. 2C:11-3(b)(1). Pursuant to N.J.S.A. 2C:43-7.2(d)(1), the eighty-five percent parole disqualifier was mandatory. We give substantial deference to a trial judge's sentencing determinations unless there is an abuse of discretion. State v. Pagan, 378 N.J. Super. 549, 558 (App. Div. 2005).
In balancing the aggravating and mitigating factors, the judge found two of the aggravating factors listed in N.J.S.A. 2C:44-1(a), namely, (3) the risk defendant would commit another offense, and (9) the need to deter defendant and others from violating the law. The judge applied one mitigating factor, defendant's youth, and found that the aggravating factors "clearly and substantially outweigh[ed] the mitigating [factors.]"
Defendant argues factor (3) was erroneously applied because his "only other adverse contact with the juvenile or criminal justice system involved a [juvenile] hindering apprehension charge." Defendant also violated community service requirements set by the juvenile court for that charge. The judge considered defendant's daily marijuana use as additional evidence of a risk that defendant would commit another offense. Defendant admitted to his marijuana use several times during his testimony and it was also documented in the presentence report.
Defendant concedes that factor (9), the need for deterrence, is a "truly aggravating factor," but maintains "deterrence exist[s] in every criminal sentencing and [is] not a unique aggravating factor to the present case." It is true that deterrence is generally a factor in all cases and that there usually must be specific deterrence for aggravating factor (9) to be applicable. See State v. Gardner, 113 N.J. 510, 520 (1989). However, the judge here emphasized that the need for deterrence was "very, very strong" and that "in this time of so much needless youth violence in our surrounding communities . . . [s]omehow the message has got to go out that . . . if you want to take a life, then you're going to sacrifice your own life." (19T26-10; 19T25-2 to 9.) The judge also correctly noted defendant's lack of remorse and continual denial of any guilt is justification for the application of factor (9). See State v. Rivers, 252 N.J. Super. 142 (App. Div. 1991) (finding factor (9) was properly applied where the defendant had persistently denied involvement in a shooting crime and showed no remorse for his actions).
Defendant agrees with the trial judge that his youth was a mitigating factor, but argues that his mental condition and his cooperation in giving a confession should also be considered mitigating factors. We disagree.
Defendant argues his alleged mental retardation, ADHD, and antisocial conduct disorder are "substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense," pursuant to N.J.S.A. 2C:44-1(b)(4).
Defendant erroneously relies on State v. Nataluk, 316 N.J. Super. 336 (App. Div. 1998), to support his assertion that his mental condition, combined with his dysfunctional family background, is enough to justify the application of mitigating factor (4). In Nataluk, the defendant had bipolar disorder, disassociative disorder, amnesia, and severe hallucinations. Id. at 342. The Nataluk defense experts testified that defendant had blacked out and was not aware of his actions during the crime and thus was technically "insane." Id. at 342-43. While the jury rejected the insanity defense, we held that such a serious mental illness should have been considered a mitigating factor. Id. at 349.
Here, defendant has presented no evidence that he suffered a mental condition that left him unaware of his actions during the stabbing, nor did he present an insanity defense. Evidence of his intellectual capacity and behavioral problems were presented only to challenge the validity of his Miranda waiver, not as a defense or excuse to the crimes he committed. Therefore, this case is distinguishable from Nataluk and the judge did not abuse his discretion by failing to apply mitigating factor (4).
Defendant also argues that his cooperation in giving a "formal statement to the police which essentially acknowledged his criminal culpability" should be considered a mitigating factor pursuant to N.J.S.A. 2C:44-1(b)(12). We have "question[ed] whether a confession qualifies as 'cooperation' within the intent of this subsection, at least in the absence of any indication the confession identified other perpetrators or assisted in solving other crimes." State v. Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196 N.J. 85 (2008). Regardless, here, defendant's confession to the police provided "limited benefit" to the State. Ibid. Defendant later recanted his confession and accused the police of threatening him. Based on defendant's short-lived cooperation with the police, the judge did not abuse his discretion by failing to apply mitigating factor (12).