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State v. Butler

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 10, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHARLES S. BUTLER, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-10-02496.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 27, 2010

Before Judges Fisher and Simonelli.

Following the denial of his motion to suppress evidence and to determine the admissibility of his post-arrest statements, defendant Charles Butler pled guilty to second-degree manufacturing, distributing or dispensing a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) (count three), and second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (count SIX). The trial judge imposed a six-year term of imprisonment with three years of parole ineligibility on the CDS conviction and a concurrent six-year term on the weapons conviction. The judge also imposed the appropriate assessments, penalty, and fee.

On appeal, defendant raises the following contentions:

I. MR. BUTLER EXERCISED HIS RIGHT TO REMAIN SILENT AND TO CONSULT WITH A LAWYER AND THE STATE CANNOT PROVE BEYOND A REASONABLE DOUBT THAT HE LATER KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVED HIS MIRANDA RIGHTS AFTER THE POLICE UNILATERALLY REINITIATED QUESTIONING WITHOUT ALLOWING HIM TO CONSULT WITH A LAWYER AND ON THE SAME TOPIC

II. POLICE QUESTIONING OF MR. BUTLER IN VIOLATION OF HIS MIRANDA RIGHTS VITIATED HIS PURPORTED CONSENT TO SEARCH AND THE TRIAL COURT'S DECISION SHOULD BE REVERSED

We affirm.

According to New Jersey State Police (NJSP) Detective Quinn DeRose, the NJSP were involved in an ongoing investigation of defendant's participation in illegal drug trafficking. As a result of that investigation, the NJSP arrested defendant in Atlantic City on December 13, 2007, transported him to the Marine Bureau, and placed him in a holding cell, where DeRose advised him of the charges against him and read him his Miranda*fn1

rights. Defendant, who was coherent, relaxed and cooperative, acknowledged he understood his rights, did not request clarification, signed a Miranda card, did not request an attorney, and agreed to speak to DeRose.

DeRose also read defendant his rights regarding a consent to search his vehicle, residence and a self-storage unit. Defendant signed a consent-to-search form. No one threatened, coerced, intimidated, verbally or physically abused defendant or made promises to him in order to gain his cooperation.

The NJSP searched defendant's vehicle in his presence, and recovered marijuana, a .32 caliber pistol, holster, magazine and ammunition. The NJSP then searched defendant's residence in his presence, recovering eleven ounces of marijuana and drug paraphernalia. The NJSP also searched defendant's storage unit in his presence, recovering drug paraphernalia. At no time during any of the searches did defendant withdraw his consent to search, limit or terminate the search, or ask to consult with an attorney.

Upon completion of the searches, DeRose escorted defendant to the Buena Vista headquarters for processing. After completion of processing, defendant was placed into the interview room, provided food and water, and permitted to smoke. DeRose discussed whether defendant would agree to give a taped statement, advised him of the nature of the questions to be asked, and again advised defendant of his Miranda rights. On tape, the following colloquy occurred:

DEROSE: Did we discuss this investigation after your mirandize prior to this audio taped interview.

DEFENDANT: Yes.

DEROSE: Mr. Butler earlier during our pre-taped interview I advised you of your Miranda warning which I've read to you uh from the card that I have in my hand is this your signature on the Miranda warning card? DEFENDANT: Yes.

DEROSE: Okay. Now before we continue I will again advise you of these rights. You have the right to remain silent and refuse to answer any questions. Anything you say may be used against you in a court of law. You have the right to consult with an attorney at any time have them present before or during questioning, if you cannot afford an attorney one will be provided if you so desire prior to any questioning. Decision to [waive] these rights is not final, you may withdraw your [waiver whenever] you wish either before or during questioning. Do you understand these rights?

DEFENDANT: Yes.

DEROSE: Have you been advised of these rights do you now wish to provide a statement without the presence of an attorney.

DEFENDANT: Yes.

Defendant then confessed to selling drugs and identified his supplier. The trial judge heard the taped statement.

NJSP Detective Dean Kolonich was present when defendant signed the consent-to-search form after DeRose read it to defendant. The detective was also present at the search of defendant's vehicle, residence and storage unit, and during defendant's processing. He confirmed that at no time did defendant say he wanted to terminate the interview with DeRose or searches, withdraw his consent, or consult an attorney.

Kolonich was also present when DeRose administered defendant his Miranda rights prior to giving the taped statement. DeRose also advised defendant prior to the statement that defendant could terminate the interview at any time. Defendant never asked to terminate the interview or consult an attorney.

According to defendant, after DeRose advised him of the charges and read him his Miranda rights, he signed the Miranda card and told the detective he was "observing my right to remain silent," and wanted to make a phone call and get a lawyer. Defendant claimed that he asked for an attorney several times, and was coerced and threatened.

Defendant moved to suppress evidence and to determine the admissibility of his taped statement on the grounds that he had invoked his right to remain silent and requested an attorney, and did not receive a Miranda warning prior to giving the taped statement. He also contended that the four-second pause before he admitted to having been advised of his rights and wished to provide a taped statement without an attorney gave rise to reasonable doubt as to whether he waived his rights knowingly, intelligently and voluntarily.

In an oral decision, the trial judge denied the motion, finding that defendant possessed above-average intelligence, was capable of understanding the questions asked, and signed the Miranda card. As for the four-second pause, the judge found as follows:

Friends, it would seem to me, quite frankly, that at that point in time, on tape, after being advised again of his rights and being asked, do you wish to provide a statement without the presence of your lawyer, which he paused a few seconds, he indicates he got head nods from the people in the room basically telling him, say yes, it would seem to me that a man of average intelligence or higher, with some college education, an electrician, and somebody that understands and reads and writes the English language, who was just berated for a period of time, who was coerced, who was threatened, who was not being . . . treated properly, now has a golden opportunity, with the tape running, to say something like, you guys have been breaking them for me for the last three hours, I told you I'm not going to give a statement. . . . You've tried to coerce me into this statement. I told you I'm not going to talk without the presence of my lawyer. What don't you understand?

You guys have treated me wrong, you've kept me here for three or four hours. You've taken me all over the place with these consent forms. Leave me alone, I'm not talking, I want to talk to my lawyer.

That's what I would expect to hear on tape if what the defendant says happened off tape happened. Or maybe not as forceful as I just said it, but I would expect something along those lines of, well, I'm glad this tape is running because you guys are stupid and you don't understand what I've been telling you for the last two hours, so let me put it to you real sweet and short, I ain't talking. I want a lawyer. Don't coerce me. Don't try to trick me. Don't do anything because I ain't talking. No. He says, yes, and in a calm, cool, collected voice, reiterates how he uses drugs, mainly for himself, how he buys drugs, who his supplier is, who he sells to, how many times he sold to the guy at the Borgata, how he got paid, how he dropped the drugs off, how he got the payment for the drugs, and in minute detail indicated all of his involvement.

The judge further found that nothing in the taped statement shows that defendant was coerced or pressured, wanted a lawyer, or did not understand the questions asked and answers given, or the ramifications of a Miranda waiver. The judge concluded that, based on the totality of circumstances, there was "no question" that defendant voluntarily and knowingly waived his rights.

Our review of a trial judge's factual determination is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we "'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Additionally, factual findings of the trial court are entitled to deference when they "'are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting Elders, supra, 192 N.J. at 244).

When we are satisfied that the findings of the trial court could reasonably have been reached on the record, "[our] task is complete and [we] should not disturb the result, even though [we have] the feeling [we] might have reached a different conclusion were [we] the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). Nevertheless, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then [we] should review 'the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting Johnson, supra, 42 N.J. at 162). "[We] owe[] no deference to the trial court in deciding matters of law. When a question of law is at stake, [we] must apply the law as [we] understand[] it." Ibid. (internal citation omitted). Applying these standards, we are satisfied that the trial judge properly denied the motion to suppress.

A defendant's waiver of Miranda rights must be made voluntarily, knowingly, and intelligently. State v. Bey, 112 N.J. 123, 134 (1988). In determining whether a confession is voluntary, courts consider the totality of the circumstances, including the characteristics of the accused and the details of the interrogation. Bey, supra, 112 N.J. at 134-35; State v. Knight, 183 N.J. 449, 462 (2005). "Relevant factors include the defendant's age, education, intelligence, advice concerning his constitutional rights, [the] length of detention, . . . the nature of the questioning," Bey, supra, 112 N.J. at 135, the defendant's "previous encounters with law enforcement[,] and the period of time between [the] administration of the [Miranda] warnings and the volunteered statement," Knight, supra, 183 N.J. at 463 (last alteration in original) (internal citation and quotation marks omitted).

The record in this case contains more than ample evidence that defendant voluntarily, knowingly, and intelligently waived his Miranda rights. Defendant's contentions to the contrary lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the judge in his well-reasoned oral decision rendered May 28, 2009.

Affirmed.


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