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State v. Owens

April 29, 2010


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 03-12-2436, 03-12-2334, 03-12-2312, 03-11-2249, 03-11-2240 and 03-11-2176.

Per curiam.


Submitted December 1, 2009

Before Judges Skillman and Simonelli.

Defendant Keith Owens appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with thirty counts in six separate indictments. Following the denial of defendant's motion to suppress his taped statement inculpating him in certain crimes, he entered an unconditional guilty plea to several of those charges: first-degree robbery, N.J.S.A. 2C:15-1; three counts of third-degree burglary, N.J.S.A. 2C:18-2; third-degree theft by unlawful taking, N.J.S.A. 2C:20-3; two counts of third-degree conspiracy, N.J.S.A. 2C:5-2; third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h; and fourth-degree issuing or passing a bad check over $200. The trial judge sentenced defendant to an aggregate twelve-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed the appropriate penalties and assessments, and ordered defendant to pay restitution.

The following facts were adduced at the suppression hearing. According to Sergeant Robert Somers (Somers) of the Somers Point Police Department, on August 29, 2003, he received a call from a K-Mart store reporting suspicious activity involving a credit card. Two men had come into the store attempting to purchase more than one thousand dollars worth of merchandise with a credit card issued to a female. The men left the store after the card, which had not been reported stolen, was denied several times.

The following day, Somers went to the K-Mart to view a surveillance tape of the individuals. While there, the Ocean City Police Department called inquiring about the credit card because it had now been reported stolen. The matter then became a joint investigation between the Somers Point Police Department and the Ocean City Police Department.

Somers was unable to identify the individuals in the surveillance tape. He printed still pictures from the tape and later showed the pictures to some members of the Ocean City Police Department, who immediately identified defendant and co-defendant Kristoph Akarman as the individuals in the pictures who were suspects in numerous burglaries and an armed robbery in Somers Point. A warrant was then issued for their arrest.

At approximately 4:00 p.m. on August 30, 2003, the New Jersey State Police advised Somers that they had defendant in custody at the Bellmar barracks. Prior thereto, Akarman had been arrested and allegedly gave a statement inculpating defendant in the crimes. Somers drove to the barracks to retrieve defendant. Once there, Somers introduced himself to defendant, explained the arrest warrant, and read defendant his Miranda*fn1 rights from a card, which was admitted into evidence without objection. Defendant, who did not appear to be under the influence of alcohol or drugs and appeared coherent, said he understood his rights.

Because of heavy rain and a bad accident, the drive back to Somers Point took over an hour. During the drive, Somers and defendant engaged in "quite a bit of idle chat" but did not discuss any crimes. Upon arriving at the police station, Somers read defendant his Miranda rights from a departmental form, which was also admitted into evidence without objection. Defendant read and initialed each right, said he understood his rights and had no questions about them, signed the form at 5:45 p.m., and agreed to answer Somers's questions.

Thereafter, Somers began questioning defendant about the K-Mart matter. Somers permitted defendant to use the restroom several times during questioning and walked him outside to "smoke[] a couple of cigarettes." Somers did not threaten defendant, promise him anything, or coerce him into making a statement. Rather, defendant answered Somers's questions voluntarily, and admitted being at the K-Mart with Akarman but denied attempting to use the credit card. Defendant also admitted using the card at an Acme and giving to Akarman money he had obtained from the card. Defendant denied involvement in any crimes.

At about 6:30 p.m., detective Laura Hall of the Ocean City Police Department joined in the interrogation. At approximately 6:55 p.m., Somers asked defendant if he would submit to a Computer Voice Stress Analyzer (CVSA) test, which Somers is certified to administer.*fn2 Somers explained the test to defendant and made clear that the results are not admissible in court. Somers read defendant a CVSA consent form, which defendant also read and signed. The form, which was admitted into evidence without objection, indicates that defendant "freely and voluntarily" submitted to the test and that he was advised of his rights with respect thereto.

Following a "prepping procedure" involving a half-hour to forty-five minute "de-stressing" period, Somers administered the test, which concluded at approximately 7:06 p.m. Somers advised defendant that the test results indicated deception. Somers continued interrogating defendant, during ...

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