On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-07-1193.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Payne and C.L. Miniman.
Defendant Dion Miller appeals from a February 23, 2007, judgment convicting him of first-degree felony murder, contrary to N.J.S.A. 2C:11-3a(3); first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d. The judge merged the weapons convictions into the armed robbery conviction and the armed robbery conviction into the felony murder conviction for sentencing purposes and imposed a term of thirty years in prison with no possibility for parole for the entire term. The central issue on appeal revolves around the denial of defendant's two motions to suppress three incriminating statements he gave to investigators from the Hudson County Prosecutor's Office. We remand for further fact-finding.
On January 5, 2003, seventy-four-year-old Romeo Cavero telephoned his family to tell them he had just been mugged near his senior-citizen apartment building. When family members arrived at Cavero's building, they found him bleeding from his head, standing inside the building, and holding the front glass door in the vestibule open for them. Eric Santiago, Cavero's grandson, noticed blood pooled on the sidewalk outside and a bloody handprint in the vestibule. There were also fresh bloody footprints in the snow by a pool of blood; the footprints went up the block toward an intersecting street. Cavero told his family members that he had been attacked from behind on the steps to his home and his attackers left in a black car.
Defendant was at the scene when Cavero's family members arrived, dressed in a dark shirt, jeans, and boots. He lived with his infirm elderly grandmother in an apartment across from Cavero's and was acquainted with him. Santiago knew defendant from seeing him around his grandfather's apartment building and knew that Cavero was acquainted with him as well because defendant was the nephew of Cavero's friend, Lisa Pryor. After Cavero's family members attended to him and called an ambulance, defendant approached Santiago, introduced himself, and said that "it wasn't him." Defendant further told Santiago that he found Cavero in that condition and had tried to help him. Santiago observed that defendant smelled of alcohol and was "rambling." Cavero did not tell Santiago that defendant was his attacker.
Fifteen minutes later, the local police responded to the scene. Cavero told Patrolman Carmine Disbrow that he was robbed by "a black male . . . driving a black vehicle" and that his attacker had hit him on the head, but he did not know the person who did it. Cavero appeared to Disbrow to be coherent but "shaken and a little dazed." Defendant was still present at the scene and asked Disbrow about Cavero's condition. Later that evening in the hospital, Cavero told Detective Peter Urbanowicz that he "might" be able to identify his attacker from a photograph. Urbanowicz told Cavero to call him when he was released from the hospital, but Cavero subsequently went into a coma and his injuries became life-threatening. When the doctors determined that Cavero's coma was irreversible, his family terminated life support, and he died on January 9, 2003, of complications from multiple blunt force trauma to his head. The medical examiner could not rule out Cavero's cane, which had his blood on it, as the weapon.
On the night of Cavero's death, Detectives Martin D'Angelo and Sean Means, both with the Hudson County Prosecutor's Office, sought defendant for questioning sometime between 11:00 p.m. and midnight. It is undisputed that the questioning began sometime shortly after midnight and was comprised of three periods of unrecorded interrogation followed by three formal recorded statements over the next seventeen hours. Defendant was apprised of his constitutional rights immediately before the first recorded statement at 1:51 a.m. on January 10, 2003, after he made some incriminating statements and on two occasions thereafter, one at 2:41 p.m. after defendant made some further incriminating statements and another about two to three hours later.
Defendant sought on two separate occasions to suppress the statements he made pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), and its progeny. The motion judge heard testimony on the first suppression motion on January 13, February 5, February 26, March 3, and May 25, 2004. Oral argument was presented on June 3, and the judge placed her decision on the record on July 1, 2004. Defendant claimed in his first suppression motion that his statements to the police were not made following a knowing, intelligent, and voluntary waiver of his right to remain silent and his right to an attorney. He presented expert testimony on his mental state at the first suppression hearing. Because the voluntariness of his statements has not been raised on appeal, we need only discuss some of the motion judge's fact-findings and the evidence that supported them.
Means testified that he began working on the investigation by speaking with Cavero's family members on January 7 or 8, 2003. They mentioned defendant, who was also mentioned in the initial police report from January 5. On January 9 between 11:00 p.m. and 12:00 a.m., Means and D'Angelo went to 259 Van Nostrand Avenue with the two uniformed local patrolmen who initially investigated the assault. Both Cavero and defendant lived at this address on the first floor, defendant with his infirm grandmother. Means and D'Angelo knew that the apartment of defendant's grandmother was on the first floor. It was a secure building that the police could not enter without being admitted by an occupant. They had made no effort to contact defendant before this time. Means and one of the uniformed officers went around to the back of the building and stationed themselves at the rear windows of the ground floor apartment; D'Angelo and the other officer stayed by the front door. D'Angelo and a patrolman waited until another tenant in the building opened the front door, which gave them access to the inside of the building. At that time, D'Angelo summoned Means to the front of the building, they inserted an object to prevent the front door from closing, and Means and the other patrolman returned to their position outside the building. D'Angelo and the first patrolman went to the apartment in which defendant resided with his grandmother.
Means further testified that, rather than leaving a business card asking defendant to contact them, D'Angelo and the first officer knocked on the door and were admitted. At that point, Means and the second patrolman were called into the building and they went into the darkened apartment, where defendant was dressing. The detectives asked defendant to accompany them to the homicide office, explaining they needed to speak with him about the events of January 5, 2003, although they knew that defendant took care of his grandmother between midnight and 8:00 a.m. Defendant was totally cooperative and asked to get dressed, and they allowed him to do so. Defendant then reassured his grandmother that he was with friends and not to worry, he would be back. They were in the apartment for five to six minutes. Means and D'Angelo had defendant sit in the back seat of their unmarked vehicle for the drive to the homicide office. They arrived at 12:15 a.m. on January 10.
Means testified that he and D'Angelo brought defendant to an interrogation room, and Means went to make a pot of coffee. While he was doing that, D'Angelo chatted with defendant about his high school basketball activities and his military service. After Means returned and both detectives exchanged pleasantries with defendant, they began to question him around 12:30 a.m. about the events of January 5. He was not told that he was free to leave at any time. Defendant told them that he had been drinking heavily on January 5. Means testified that shortly before 1:45 a.m. the following occurred:
A: So, we are at this preliminary discussion about the event of January 5th, and the interview takes us to a point where my partner and I make a determination that he may be responding with things of incriminating himself.
Q: And what do you do at that point?
According to Means, defendant's responses suggested to the detectives that he might be making incriminatory statements, which included a statement that defendant "had knowledge of the incident and that he was involved in it, but he actually didn't do it." Defendant reported he was only acting as a lookout. These "preliminary discussions" were never memorialized in writing. As well as providing the Miranda warnings, Means testified that he and his partner decided to charge defendant. They told defendant he was a suspect and was going to be charged as a conspirator and an accomplice.
A "pre-statement interview" began sometime before 3:00 a.m. The questioning then continued until 4:00 a.m. when a tape-recorded statement was taken, which was completed at 4:26 a.m. In this statement, defendant said he was acting as a look-out for "Rock" and a Filipino man, that the other men took Cavero's cane and each struck him on the head three times, robbed Cavero, and left in a black pick-up truck. Defendant remained behind to help Cavero get into his house. Following this statement, defendant was arrested, placed in a holding cell, and charged with conspiracy to commit a homicide, robbery, and aggravated assault.
According to Means, defendant's statement led the detectives to gather three people for questioning at 9:30 a.m.: Pryor; her boyfriend, Robert ("Rock") Brewington, Jr., who owned or used a black van; and the boyfriend's son, Cyril Brewington. By the time these people were brought to the homicide office, Detective William Heaney had arrived for the day and was briefed. Pryor and the Brewingtons were interviewed and then released. Meanwhile, defendant signed a consent-to-search form at 11:20 a.m.
Means testified that Heaney then spoke with defendant in the holding cell and advised him that Pryor and the Brewingtons had contradicted defendant's statement, although Heaney's report seemed to indicate that he was interviewing defendant while Means was interviewing the Brewingtons. In any event, defendant told Heaney he wanted to change his story. He was taken to the interrogation room and again subjected to a pre-statement interview of unknown duration. He then signed another waiver-of-rights card at 2:31 p.m.--ten hours after the first recorded statement had been completed. After signing the card, defendant gave a second recorded statement to the detectives at 2:41 p.m.
In this second statement, defendant told the detectives that Cavero said something to him that "triggered something" and he took Cavero's cane and struck him three to six times on his head. Defendant had been drinking more beer than usual. He denied taking any money. Defendant was then charged with the homicide in question.
Means began the paperwork needed to transport defendant to the county jail, including the preparation of a complaint. Some period of time elapsed after the second recorded statement before defendant stated that he wanted to speak with the detectives and Means prepared a third waiver-of-rights card. Defendant then gave a third recorded statement at 5:47 p.m.*fn1 In this statement, defendant told the detectives that he took Cavero's money and left the scene to go to a liquor store but dropped the money in a panic on the way. He then returned to the scene.
D'Angelo also testified at the first suppression hearing. He explained that in order to gain access to the senior-citizen apartment building, Means and one of the uniformed police officers tried to get in through a side door without success. While they were looking for another entrance, someone left through the front door, allowing D'Angelo and the other uniformed officer to gain access to the building.*fn2 Neither Means nor D'Angelo explained why they did not simply try ringing the outside bell or calling defendant's apartment in order to gain entry to speak with him.
D'Angelo testified that he did not have enough information at midnight to consider defendant a suspect. After they arrived at the homicide office, D'Angelo questioned defendant about what he had seen on the night in question, whether he had seen something that seemed out of place, and whether he could recall something then that he did not recall on January 5. As he continued to question defendant, "certain things were starting to change, you know, with answers he was giving. He wasn't being consistent, you know." That led D'Angelo to become suspicious and, with further questioning, defendant sat back in his chair, sighed, and said he had to get it off his chest. The detectives then "realized it may be more than just that." D'Angelo stopped him and then advised him of his constitutional rights.*fn3 Defendant then said he had something to say, which D'Angelo said surprised him. Ultimately, a formal tape-recorded statement was taken.
Heaney, who came on duty at 8:00 a.m. on January 10, was the last of the detectives from the Prosecutor's Office to testify at the first suppression hearing. He explained that he was alternately questioning defendant and listening to the interviews of Pryor and the Brewingtons, which began at 9:30 a.m. At 11:00 a.m., he instructed another officer to secure consent to search from defendant to obtain the clothing he was wearing on January 5.*fn4 At one point, he approached defendant in the holding cell and advised him that the story he provided was not accurate based on what the other people were saying because they had "pretty tight alibis."*fn5 Defendant responded that he wanted to talk further with the detectives to clarify some issues and tell them what actually did occur. This led to the second recorded statement at 2:41 p.m. Later, when the detectives were checking on defendant's welfare and continuing to have conversations with him, defendant said "he wanted to clear his mind and get something off his chest." This led to the third recorded statement at 4:54 p.m.; however, the waiver-of-rights form indicated that it was signed at 5:44 p.m., which may have been mistaken.*fn6
Establishment of bail was requested at 5:45 p.m.
Defendant, who was thirty-five years old at the time of the hearing, testified that he and his grandmother saw flashes of light at her rear bedroom windows around 11:45 p.m. on January 9, 2003, which startled his grandmother. Then, someone shined a flashlight through the living room windows. His grandmother told him to call the police, but then she dialed 911. The dispatcher told her the police were already there, but she could not understand what the dispatcher was saying and passed the phone to defendant. The dispatcher told him the police were at his building. He reassured his grandmother and after a little while there was a knock at their door. After asking who was there several times, the police identified themselves, and he opened the door.
When defendant let them in, D'Angelo picked up his wallet from the kitchen table and started looking through it while Means asked who he was, and he identified himself. One of the detectives told him, "You got to come with me." Defendant told the detectives his grandmother was ill and they had to get her permission before he could leave. Means then spoke with defendant's grandmother. The detectives told defendant that they wanted to ask him some questions, and he agreed to go with them.
Defendant knew they arrived at the homicide office at midnight because one of the detectives wrote the time on a yellow piece of paper when they went into the interrogation room. D'Angelo spoke with him about elementary school summer league basketball and said he remembered him from that league. D'Angelo did not tell him he was a witness or a suspect. When Means returned to the room from making coffee, defendant asked why they needed to question him, and whether it was about Cavero being in the hospital. Means replied, "'Yeah,' . . . that was correct, 'but he's dead, you son of a b[itch] and we're homicide, you mother[fucker],'" and pointed to D'Angelo's windbreaker, which had the word "Homicide" on it.
Means and D'Angelo then began to question him about where he was and what he was doing between 8:00 and 8:30 p.m. on January 5; D'Angelo took notes. Over the course of the next hour or so, defendant told the detectives that he was returning from his mother's house around 8:30 to 8:45 p.m., and when he arrived at his grandmother's building he saw blood on the ground. He followed the blood trail into the building and became worried that something had happened to his grandmother. He buzzed her door and she let him in; he was relieved that she was all right. He then traced the trail of blood to Cavero's door. Defendant knocked, Cavero opened the door for him, and he saw that Cavero was hurt. Cavero said he had called his family and an ...