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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...