On appeal from the Superior Court of New Jersey, Criminal Division, Essex County, Indictment No. 08-09-2688.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 15, 2010
Before Judges Cuff, Fisher and Fasciale.
By leave granted, we review two orders denying defendants Shahid Baskerville and Alexander Alfaro's motions to suppress statements made by them during a police interrogation.*fn1 Each defendant was a juvenile at the time of his arrest. The charges arise from their involvement in the August 4, 2007 shooting of four students, three of whom died, in a Newark schoolyard.
Each defendant gave a statement to police in the presence of his mother following the administration of Miranda*fn2 warnings and waiving his right to remain silent. Each argues he had a right to counsel at that time in accordance with State in the Interest of P.M.P., 200 N.J. 166 (2009), and each argues he did not knowingly and voluntarily waive his right to remain silent. We affirm.
On August 4, 2007, at approximately 11:40 p.m., Newark Police officers arrived at the Mt. Vernon School at 142 Mt. Vernon Place in Newark to investigate a report of a shooting. The officers found three deceased young adults: Terrance Aeriel, Dashon Harvey, and Iofemi Hightower. They also found a young woman, Natasha Aeriel, lying in the parking lot, conscious, and covered in blood from a gunshot wound. Emergency medical personnel transported her to a hospital for treatment.
Autopsies determined that Iofemi Hightower died from a gunshot wound to the neck and "sharp-force" injuries to the face, head, and upper extremities. Terrance Aeriel died from a gunshot wound to the neck. Dashon Harvey died from a gunshot wound to the head.
Between August 4 and August 10, 2007, the Newark Police Department (Newark PD) filed an eleven count juvenile delinquency complaint charging defendant Baskerville with multiple acts of felony murder, robbery, weapons possession, and conspiracy to commit robbery. On August 14, 2007, the Newark PD filed a similar complaint against defendant Alfaro.
Alfaro and Baskerville were waived to adult court on January 29, 2008, and April 17, 2008, respectively. On September 12, 2008, an Essex County Grand Jury returned a nineteen count indictment against defendants and their co- defendants Rodolfo Godinez,*fn3 Jose Carranza, Melvin Jovel,*fn4 and Gerardo Gomez.*fn5 The charges included one count of second degree conspiracy to commit robbery, four counts of armed robbery, three counts of felony murder, three counts of knowing and purposeful murder, and one count of attempted murder. Alfaro was charged in seventeen of nineteen counts. Baskerville and another co-defendant were also charged with aggravated sexual assault and sexual assault.
Baskerville and Alfaro filed motions to suppress statements they gave following their arrests. Alfaro's Miranda hearing commenced on March 26, 2009; the judge issued a written opinion and order denying the motion on July 27, 2009. Baskerville's hearing commenced on March 25, 2009. The judge did not render an opinion before the matter was re-assigned to Judge Ravin. On October 9, 2009, Baskerville requested to recall the witness who had testified in March, and also argued that his statement should be suppressed because counsel had not been appointed before his interrogation as required by P.M.P. Baskerville's hearing resumed on November 10, 2009, and concluded on December 17, 2009. Judge Ravin denied Baskerville's request to recall the witness who had testified in March 2009 after defense counsel conceded the witness's tone or demeanor was not relevant to his decision. On April 9, 2010, Judge Ravin denied the Baskerville motion to suppress and the Alfaro motion for reconsideration in which he argued that P.M.P. should be applied retroactively and counsel should have been provided to him.
On appeal, defendant Shahid Baskerville raises the following arguments:
SINCE THE STATE FAILED TO PRODUCE ANY EVIDENCE REGARDING POLICE INTERACTION WITH DEFENDANT BETWEEN HIS ARREST IN MORRISTOWN AND HIS SUBSEQUENT RECORDED STATEMENT IN NEWARK, DESPITE DEFENDANT'S CLAIMS THAT HE WAS IMPROPERLY QUESTIONED AND ABUSED BY POLICE DURING THAT TIME, THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT HIS RECORDED STATEMENT WAS VOLUNTARY.
SINCE DEFENDANT'S ARREST AND QUESTIONING OCCURRED IN THE ABSENCE OF COUNSEL, HIS RECORDED STATEMENT MUST BE SUPPRESSED PURSUANT TO [P.M.P.].
On appeal, defendant Alexander Alfaro raises the following arguments:
THE ISSUANCE OF JUVENILE COMPLAINTS AND A JUDICIALLY APPROVED ARREST WARRANT TRIGGERED A CRITICAL STAGE IN THE PROCEEDING, IMPLICATING THE JUVENILE'S STATUTORY RIGHT TO COUNSEL, AND THEREFORE THE QUESTIONING OF THE JUVENILE IN THE ABSENCE OF COUNSEL REQUIRES THE SUPPRESSION OF HIS SUBSEQUENT STATEMENT TO INVESTIGATORS.
A. The New Jersey Supreme Court's Holding in State in the Interest of P.M.P., 200 N.J. 166 (July 29, 2009), Should Be Applied to the Case at Bar.
1. The Case at Bar is Still in the Pretrial Stage, and Therefore the Interlocutory Orders at Issue are Subject to Revision or Reconsideration at Any Time Prior to the Entry of a final Judgment.
2. The Holding in [P.M.P.] Should be Given Some Form of Retroactive Application.
B. The Holding in State in the Interest of P.M.P. Requires that Defendant-Appellant's Custodial Statement be Suppressed.
THE JUVENILE DEFENDANT DID NOT WAIVE HIS MIRANDA RIGHTS KNOWINGLY AND VOLUNTARILY, BECAUSE HIS MOTHER WAS PREVENTED FROM PROVIDING HIM WITH THE ADVICE AND SUPPORT THAT HE WAS ENTITLED TO DURING THE CUSTODIAL INTERROGATION, AND THEREFORE HIS SUBSEQUENT STATEMENT TO INVESTIGATORS SHOULD BE SUPPRESSED.
The facts pertaining to each defendant are derived from the record of the suppression hearing and the exhibits admitted in that proceeding.
On August 10, 2007, members of the Newark PD arrested Baskerville at his home in Morristown. He was fifteen-years old. Baskerville was taken to police headquarters in Newark and placed in a room with Detective Lydell James. At approximately 4:00 p.m., Detective Kevin Green of the Essex County Prosecutor's Office arrived at the police station. Baskerville's mother Karramah Baskerville*fn6 and his stepfather arrived about an hour later.
Green and James advised mother and son about the investigation and explained why the police wanted to speak to the son. She gave her consent. They also advised Karramah and Baskerville that the statement would be video and tape recorded. There was no pre-interview. Baskerville was not wearing any restraints.
The statement began at 5:23 p.m. Before asking questions, James read the Miranda warnings to Baskerville and his mother and then asked both to read the form. He next asked them to read the waiver portion and, when they finished, to read it to him. Karramah read the waiver aloud, stated that she understood it, and indicated she still wanted the police to question her son. She and Baskerville wrote their initials next to each line and signed their names at the bottom of the form. Baskerville then acknowledged that he was advised of his rights, fully understood those rights, wished to provide a statement, and his mother was in the room with him.
Baskerville proceeded to admit his role in the incident at the school playground. He related that he went to the school with Alfaro and Gerardo "to get some money." They met Carranza, Jovel, and Godinez there. After a few minutes, Jovel pulled a gun. At Godinez's orders, Jovel told the victims to get out of the car and onto the ground. Carranza collected their personal belongings. Godinez then ordered three of the victims down some stairs, and he, Jovel, Alfaro, and Gerardo followed them. Godinez told Baskerville and Carranza "to stay up there and watch the other girl. . . ." Baskerville admitted "harassing her," putting his hands "in her clothes," and "fingering her." He then heard shots, and Jovel came up the stairs and shot the girl. Baskerville concluded his statement at 6:16 p.m.
Green testified that he and James left the room for ten or fifteen minutes so Karramah and her son could speak privately before taking Baskerville's statement. He described Baskerville as nervous, but forthcoming. He had no difficulty communicating with Baskerville or his mother. He described both as lucid.
Green knew of no threats or force used against Baskerville during the investigation. Although he was not present at the arrest, Green explained that Baskerville did not seem upset, under duress, or "beat up" upon his arrival at the Newark PD. He further explained that "[y]ou can look at a young man and see if he was ...