August 27, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES H. SCOTT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-05-0414 and 04-05-0415.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2009
Before Judges Fisher and Sapp-Peterson.
A jury convicted defendant of nine counts of robbery, three counts of aggravated assault, four counts of possession of a weapon for an unlawful purpose, three counts of possession of a prohibited weapon or device, three counts of unlawful possession of a weapon, two counts of theft, and one count of receiving stolen property. Following the jury verdict, defendant pled guilty to a violation of N.J.S.A. 2C:39-7, being a person not permitted to be in possession of weapons. He received an aggregate custodial sentence of forty-three years, with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, defendant raises the following points for our consideration:
POINT ONE DEFENDANT'S STATEMENTS SHOULD HAVE BEEN SUPPRESSED BECAUSE UNDER THE TOTALITY OF THE CIRCUMSTANCES[,] DEFENDANT'S CONFESSIONS WERE INVOLUNTARY.
POINT TWO THE TRIAL COURT'S CHARGE ON ACCOMPLICE LIABILITY DENIED THE DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL IN THAT IT FAILED TO ADVISE THE JURORS THAT AN ACCOMPLICE COULD BE GUILTY OF A LESSER OFFENSE THAN THE PRINCIPAL. (NOT RAISED BELOW).
POINT THREE PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).
POINT FOUR THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE INTRODUCTION OF DEFENDANT'S REMOTE CONVICTIONS.
POINT FIVE THE IMPOSITION OF CONSECUTIVE SENTENCES FOR DEFENDANT'S ROBBERY CONVICTIONS IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), CERT. DENIED, 475 U.S.  (1986).
POINT SIX THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN AGGREGATE TERM OF FORTY-THREE YEARS WITH AN [EIGHTY-FIVE PERCENT] PERIOD OF PAROLE INELIGIBILITY BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.
We have carefully considered all of the points raised in light of the record, applicable legal principles, and arguments raised. We reject all of defendant's contentions and affirm.
The court conducted a Miranda*fn1 hearing at which defendant, his mother, and two investigating police detectives testified: Detectives Constantine Sedares and Robert Cheslock. The evidence presented during the hearing disclosed that defendant was arrested on May 20, 2003, when a vehicle he was operating was stopped by police for disregarding a stop sign. During the stop, defendant's passenger, initially identified as Hassan Thomas but later identified as Levell Burnett, made a kicking motion with his feet, causing the investigating officer, Yolanda Foster, to look into the vehicle, at which point she observed a pocket knife on the floor of the vehicle. After removing Burnett from the vehicle, a search of its interior revealed a black handgun with an elongated barrel and large capacity magazine, known as a Tech 9. The weapon was later identified at trial as appearing similar to one used during two robberies. Defendant and Burnett were arrested and transported to the Newark Police Robbery Unit.
During a full search of the vehicle the next day, police discovered a pair of black gloves, a pair of brown knit gloves, one red and one black neoprene face mask, a blue sweatshirt, and a black jacket, all of which matched descriptions of clothing worn by three suspects during a number of robberies police were investigating. Police obtained a search warrant for defendant's residence, a two-story home owned by his uncle, Detective James Mitchell, a Newark police officer. Defendant occupied the second floor of the residence along with his mother, while his uncle occupied the first floor. Police searched only the second floor. They recovered twelve boxes of Newport cigarettes, fifteen lighters, a black neoprene face mask, a bulletproof vest, and a parking ticket issued to a silver Nissan Altima, a vehicle that had been impounded in connection with an earlier robbery for which no arrest had been made.
Defendant initially denied any involvement in the robberies. A little more than one week later, while still being held at the Essex County Jail, defendant implicated himself and his two co-defendants. He completed four written statements.
According to defendant's mother, she initially spoke with Detective Cheslock over the phone. He told her that her brother could possibly lose his job or pension because of defendant's involvement with the robberies. He asked her to speak to her son and tell him that it was in his best interest to cooperate, "it would be a lot easier for him" and he would be "taken care of" if he cooperated.
Defendant testified that at the time of his arrest, he was a heroin user, consuming ten to fifteen bags a day. He acknowledged that at the time of his arrest on May 20, he initially told Detective Cheslock that he was not involved in any robberies. He was sent to the Essex County Jail where he experienced heroin withdrawal and was transferred to Newark University Hospital for treatment. At the hospital, he spoke with his mother, who told him that Detective Cheslock had said that his uncle, Detective Mitchell, was in "great danger" because robbery proceeds and bulletproof vests were found at their house. He explained that he was especially concerned about the vest because Detective Cheslock told him "on another occasion in the hospital" that his uncle could not find his police-issued vest. He also feared that his mother was being implicated because Detective Cheslock told him that the Newark Police Department was holding his mother's vehicle because police suspected it had been used during the robberies they were investigating. Based upon his concerns for his mother and uncle, defendant testified that he felt "pressured into cooperating" so that "no charges would be filed" against them, which is why he requested the meeting with the detectives.
Defendant indicated he first met with the detectives while being treated at the hospital. At that time, he felt "fried" and "drained" and had not eaten the previous week due to his heroin withdrawal. He recounted that Detective Cheslock told him during the meeting that he was facing thirty years but that if he cooperated, he would only face four to seven, but the detective then refused to put the offer in writing, at which point he requested the assistance of an attorney. Detective Cheslock responded by revoking the offer and speaking "about [his] uncle being implicated" and his mom "possibly being involved." Detective Cheslock told defendant that if he spoke to a lawyer, then he couldn't help him and that defendant "needed to think about whether [he] wanted to speak to a lawyer or have them assist [defendant] with the investigation."
Detective Cheslock also told him his son's mother was seeing another man and asked him whether he wanted someone else raising his son while he served time in jail. Defendant explained that he then decided to cooperate, believing that if he did not, his mother and uncle would be implicated.
Defendant related that he met with the detectives and an assistant prosecutor a final time on June 2, at which time his statements were committed to writing. During the meeting, he indicated that Detective Cheslock simply said, "trust [me]," and it was his understanding at the time that the detectives were going to help him see his son again.
Under cross-examination, defendant acknowledged that he was very familiar with the criminal justice system and had at least ten prior felony convictions, including larceny, burglary, possession of a controlled dangerous substance, unlawful possession of a weapon, and armed robbery. He also acknowledged that all of his previous convictions resulted from plea negotiations.
Detective Sedares testified that when he first interviewed defendant shortly after his arrest, defendant denied being involved in any robberies. Several days later, Detective Cheslock contacted him and advised that he had spoken with defendant's mother, who indicated that defendant wanted to speak to the police. He met with defendant, along with Detective Cheslock, at University Hospital in Newark, where defendant was being treated. Defendant implicated himself and his two co-defendants. The meeting lasted approximately twenty minutes, and at its conclusion, they made plans to meet again with a prosecutor. According to Detective Sedares, during this meeting defendant appeared "very alert," "calm," "clear minded," and not "in any discomfort[.]" He also testified that the meeting lasted about twenty minutes and indicated that defendant never asked for an attorney during the meeting. He characterized the meeting as "casual" and "non-confrontational."
At their next meeting, Detective Sedares testified that a full interview occurred during which he, Detective Cheslock and Detective William Fuentes, along with an assistant prosecutor, were present. No specific promises were made to defendant other than Assistant Prosecutor James Donnelly indicating that he would take defendant's cooperation into consideration. After being advised of his constitutional rights and completing the waiver form, defendant completed four written statements, which were all reviewed and initialed as accurate and true. Detective Sedares testified that he brought a laptop computer to the interview which he used to transcribe, verbatim, every question posed to defendant and every answer defendant provided to each question. Detective Sedares characterized this interview as "laid back," "casual," and described defendant as "clear minded." At one point defendant requested juice, which they provided to him. Under cross-examination, he testified he did not recall defendant requesting an attorney during the first interview at the hospital or Detective Cheslock telling defendant that if he wanted an attorney, the detectives who were present would no longer help him. He did acknowledge knowing that defendant's uncle was a police officer.
The State then called Detective Cheslock, whose testimony essentially mirrored that of Detective Sedares. At his request defendant completed two waiver forms, one for Cheslock and one for Sedares, because they were from two different law enforcement jurisdictions. He testified that during their first meeting, defendant was surprised that Detective Sedares was present and asked to speak to him privately, at which point Detective Cheslock told defendant he was working on the case with Detective Sedares. Defendant then allowed Detective Sedares to re-enter the hospital room. Following the first meeting, he completed a report summarizing the conversation with defendant. He explained that in parts of his report, he used all capitals to memorialize parts of the interview in which defendant was "very boisterous," "stern," and "excited."
He too described defendant as very cooperative during the second meeting at which Assistant Prosecutor Donnelly was in attendance.
On cross-examination, Detective Cheslock recounted that he met with defendant and his uncle, Detective Mitchell, on May 20, 2003. Detective Mitchell advised his nephew to "just tell the truth" and no other comments, threats, or promises were made. In addition, Detective Cheslock testified that defendant's mother called him on May 29, and said that defendant wanted to speak to him. Although the Chrysler vehicle that defendant was driving at the time of his arrest was registered to his mother and impounded, Detective Cheslock testified they never discussed the car during their telephone conversation. He denied using the fact that her car was impounded to exert any pressure upon her, explaining that he did not have any authority over the impound yard. He admitted that he did discuss the bulletproof vest with her because he was concerned that it might belong to defendant's uncle. He also denied telling defendant's mother that she faced "potential exposure" because some of the proceeds from the robberies were found in her house and car or that Detective Mitchell faced the loss of his pension because of defendant's alleged involvement. Additionally, he denied telling defendant to cooperate with the investigation because "his girlfriend was hanging around with some jerk and that he didn't want that guy raising his son."
At the conclusion of the proceeding, the court placed its findings on the record. The court found that defendant was "Mirandized repeatedly," never requested an attorney during any of his discussions with the police and the assistant prosecutor, and in fact initiated the meeting at the hospital and agreed to the meeting with the assistant prosecutor. The court also found that the officers "probably" expressed concern for Detective Mitchell's reputation as a police officer and defendant "surely" was aware of the embarrassment he was causing his mother and uncle. The court concluded that defendant's statements were not the product of coercion and admitted the verbal statements defendant provided at the hospital as well as the four written statements he subsequently provided. He ruled that the initial verbal statements defendant made to Detective Sedares on May 21 would not be admitted because defendant was under the influence of heroin at the time those statements were made.
Defendant contends the evidence presented during the suppression hearing demonstrated that his will was overborne when police pressured his mother, who in turn pressured him to cooperate in order to protect his mother and his uncle from being implicated. We disagree.
Our review of a trial court's findings on a motion to suppress is limited to a determination of whether the findings made by the trial court could have reasonably been reached on sufficient credible evidence in the record and whether the legal conclusions are valid. State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990). We are not permitted to "'weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" State v. Locurto, 157 N.J. 463, 472 (1999) (quoting Trusky v. Ford Motor Co., 19 N.J. Super. 100, 104 (App. Div. 1952)). Consequently, if the record reveals the trial court has had the opportunity to observe the witnesses and determine the issue of credibility, we are bound by the findings of the trial court as long as those findings are supported by adequate and credible evidence, especially where the evidence is largely testimonial rather than documentary. Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989). We conclude that the trial court's findings are supported by substantial credible evidence in the record. Id. at 607. We are not, however, similarly constrained with respect to its legal conclusions. Manalapan Realty, L.P., v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995). Nonetheless, we agree with the trial court's conclusions.
Because the statements admitted into evidence were obtained during a custodial interrogation, the State was required to prove beyond a reasonable doubt that defendant's statements were obtained as a result of a knowing, intelligent and voluntary waiver of his constitutional right against self-incrimination, State v. Patton, 362 N.J. Super. 16, 42 (App. Div.), certif. denied, 178 N.J. 35 (2003), rather than as a result of psychological or physical coercion. Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 706-07.
A suspect's confession is considered involuntary if it is the product of psychological or physical coercion. Patton, supra, 362 N.J. Super. at 42. The use of psychological techniques is not, in and of itself, coercive. Ibid. Courts must analyze whether the confession was the result of the defendant's change of mind rather than a broken will. Ibid. In making this determination, courts will specifically consider such factors as the nature of the interrogation, a defendant's age, education, intelligence, length of detention, advice concerning constitutional rights, whether questioning was repeated and prolonged, and whether physical punishment and mental exhaustion were involved. State v. Galloway, 133 N.J. 631, 654 (1993). Moreover, although police deception or trickery do not themselves render a confession involuntary, the use of fabricated evidence to induce a confession will render the confession unconstitutional. See Patton, supra, 362 N.J. Super. at 31, 46. A confession is considered the product of a free and unconstrained choice where a defendant's will has not been "'overborne and his capacity for self-determination critically impaired.'" State v. P.Z. 152 N.J. 86, 113 (1997) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2047, 36 L.Ed. 2d 854, 862 (1973)).
Here, the court credited the testimony of the State's witnesses surrounding the circumstances under which defendant made his oral statements and provided the written statements and then expressly found that he was not forced by threats about his mother and uncle to give a statement. The court did not discount that officers probably discussed the impact of defendant's involvement in the alleged robberies upon his mother and uncle: "Did the officers advise him they were concerned about his uncle? They probably did. That doesn't mean he was forced by that information to give these statements at all." In addition to finding that defendant was "Mirandized repeatedly . . . more than anyone else has been in quite awhile[,]" the court opined:
Interesting [thing] about those oral statements, he wouldn't give a written statement until he had seen a prosecutor. Now, prosecutors are available. They don't readily go over to Newark [P]olice [D]department unless they are requested to do so. I find that the defendant himself requested to talk to a prosecutor and the officers provided that in the presence of Mr. Donnelly, who gave a letter signed, as we see now, by Mr. Arranco. And it does not specify any particular promise. It says this letter represents the only promise[,] agreement or representation by the Prosecutor's Office or any law enforcement officer, agency, or their employees. I'm paraphrasing. It says essentially they will tell the Judge, if it ever gets to sentencing, that he did, indeed, give statements. The letter speaks for itself.
There were no specific promises made to induce him to give these statements, but he is an experienced, perhaps a skilled criminal. He has nine convictions. He knows to the extent he can help himself, it is a good thing. He gave these things, in my mind, in a voluntary manner, free of any coercion or duress.
Mirandas were properly given to him. Oral statements given by him on 5/23 to the officers are admissible in my mind and in my ruling.
The written statements, four in nature, given by him on June 2 to, I think, Fuentes, and Sedares, and Cheslock, they can come in, too. On that particular date he was Mirandized twice. Twice.
So in my view and my holding I have found beyond a reasonable doubt these factors and, therefore, they justify in my mind a holding that Mirandas were properly given to him by police officers and that he voluntarily waived them with full knowledge of his rights and responsibilities.
I find [the] credible facts are that: After he was hospitalized and then stabilized, officers were able to talk to him, he was not under the influence of drugs or alcohol at that time; on 5/29 and 6/2 he was not coerced, under the influence of drugs or alcohol, and voluntarily gave statements, which he obviously regrets now. I can understand why he regrets them, but he did give them. Now, whether or not they are true, a jury will decide if they are true or not. But four statements come into the record as any oral statements.
These findings are entitled to our deference. Locurto, supra, 157 N.J. at 472. As such, they reflect a knowing, voluntary and intelligent waiver of defendant's constitutional right against self incrimination. Patton, supra, 362 N.J. Super. at 42.
Defendant claims, for the first time on appeal, that the trial court erred in its instruction on accomplice liability. Defendant's theory of the case was that he was not involved in the commission of any of the crimes for which he was charged. He did not argue that he participated in the crimes with a different state of mind. See State v. Fair, 45 N.J. 77, 95 (1965) (holding that each defendant "may participate in the criminal act with a different intent" and as such "[e]ach defendant may thus be guilty of a higher or lower degree of crime than the other, the degree of guilt depending entirely upon his own actions, intent and state of mind"). Hence, the court's failure to instruct the jury that defendant could be found guilty of a lesser crime if he possessed a state of mind different than that of the principal was not an error that was sufficiently egregious that the "'error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
During summation, the prosecutor briefly vouched for the credibility of the witnesses, presumably in response to defense counsel's comments during summation that Detective Cheslock's testimony was unreliable, not "supported by the . . . evidence" and defense counsel noting that additional witnesses were not called to corroborate Detective Cheslock's version of the events because their testimony would go "to the credibility of the State's case." In response, the prosecutor described the State's witnesses as credible, and as to Detective Cheslock in particular, characterized his testimony as being "straightforward" and "entirely credible." He also characterized the testimony of defendant's mother as "terrible."
While prosecutors are accorded broad latitude when arguing the State's position during a summation, this latitude does not extend to vouching for the credibility of the State's witnesses. State v. Staples, 263 N.J. Super. 602, 604-06 (App. Div. 1993). Vouching for a police officer's credibility tends to "divert the jurors' attention from the facts of the case before them," State v. Ramseur, 106 N.J. 123, 322 (1987), and implies that police testimony should be accepted, "not because of its believability but because the witnesses were policemen." State v. Jones, 104 N.J. Super. 57, 65 (App. Div. 1968), certif. denied, 53 N.J. 354 (1969).
Here, the prosecutor's comments were obviously in response to defense counsel's forceful attack upon the credibility of the State's witnesses, especially Detective Cheslock. The comments were isolated and defense counsel raised no objection. Given defense counsel's failure to object, the broad latitude the State is afforded to argue its case to the jury, and the substantial amount of incriminating physical and testimonial evidence presented at trial, the prosecutor's comments, though improper, were not clearly capable of producing an unjust result. State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993).
Defendant's remaining arguments raised in Points IV through VI are without sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(2).