March 1, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RANDY JACKSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-06-2174.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2010 - Decided Before Judges Payne and Koblitz.
Defendant, Randy Jackson, appeals from a conviction by a jury for first-degree murder, N.J.S.A. 2C:11-3a(1) and (2), third-degree unlawful possession of a handgun, N.J.S.A. 2C:39- 5b, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a.
On appeal, defendant raises the following arguments through counsel:
THE COURT ERRED IN ADMITTING THE DEFENDANT'S TAPED STATEMENT BECAUSE IT WAS THE PRODUCT OF A MIRANDA VIOLATION.
AN ACCUSATORY STATEMENT BY AN OUT-OF-COURT DECLARANT WAS ADMITTED AS AN EXCITED UTTERANCE THUS DENYING THE DEFENDANT THE RIGHT OF CONFRONTATION.
A. The Accusation By Lynch Was Not An Excited Utterance.
B. The Defendant's Right Of Confrontation Was Violated By Admission of Lynch's Statement.
THE COURT FAILED TO SUPERVISE THE USE OF THE DEFENDANT'S AUDIOTAPED STATEMENT DURING THE PROSECUTOR'S SUMMATION RESULTING IN A DENIAL OF THE RIGHT TO A FAIR TRIAL. (Not Raised Below.)
THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE NEED TO FIND CORROBORATION OF THE DEFENDANT'S CONFESSION. (Not Raised Below.)
ADMISSION OF TESTIMONY ON THE OBTAINING OF THE ARREST WARRANT FOR DEFENDANT ON THE CHARGE OF MURDER WAS HIGHLY PREJUDICIAL, AND WAS COMPOUNDED BY THE COURT'S FAILURE TO ISSUE A LIMITING INSTRUCTION. (Not Raised Below.)
In a pro se supplemental brief, defendant raises the following additional issues:
THE INVESTIGATOR VIOLATED DEFENDANT'S RIGHT TO COUNSEL UNDER ARTICLE 1 PAR. 10 OF THE NEW JERSEY CONSTITUTION.
STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT ALLEGEDLY COMMITTED A CRIME OF MURDER PURPOSELY AND KNOWINGLY. POINT (3)
THE STATE FAILED TO SUBMIT TO THE DEFENSE A FULL AND COMPLETE DISCOVERY.
PROSECUTION MISCONDUCT ON SUMMATIONS, (T.D.C.) THREAT, DURESS, COERCION AND INDUCEMENT ON STATE WITNESS TO TESTIFY AGAINST THE DEFENDANT.
TRIAL COURT ERRED IN DENYING DEFENDANT'S WADE HEARING.
GRAND JURY MISCONDUCT PERMITTED BY THE STATE VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS.
TRIAL COURT ERRED TO INSTRUCT JURY TO SPECIFY FINDING FOR BASIS OF CONVICTION.
The record contains evidence that, during the late evening of December 1, 2006, defendant, defendant's girlfriend Nyiaka James, defendant's sister Latiesha Lynch, Lynch's boyfriend Hassan Hutchins, James's friend Tianna Barclay, and defendant's step-brother Mario Davis were gathered at a club in Orange, New Jersey. When the club closed at 2:00 a.m. on December 2, 2006, the six individuals got into two cars. The first was driven by defendant, with James in the passenger seat and Lynch and her boyfriend Hutchins in the back seat. The second car was driven by Barclay, with Davis in the passenger seat. At the time of their departure from the club, Lynch and Hutchins were arguing, and the fight continued after they entered defendant's car. After the car had proceeded for a short distance, defendant, believing that Hutchins had assaulted Lynch, stopped and ordered Hutchins out of the vehicle. Defendant followed, and an argument ensued, during which defendant shot Hutchins, hitting him twice. Barclay witnessed at least one of the shots and confirmed that the shots were fired by defendant, not by Davis, who had exited the second car.
After the shooting stopped, Lynch went to assist Hutchins, who was lying on the ground. James left defendant's car and drove off with Barclay in the second vehicle. However, the women were quickly intercepted by the police who had responded almost immediately to the scene. Similarly, defendant sought to depart in the first car, but also was stopped by the police. According to Officer Richard Adrianzan, who was the first officer to respond to the scene, defendant appeared unexcited and unimpaired. Officer Fidel Hunter described defendant as "nonchalant."
Hutchins, who was still alive, was transported to the hospital, where he was pronounced dead at 3:15 a.m. An autopsy revealed that he had been hit by two bullets, one in the thigh and the other in the back that traveled through his chest and larynx, lodging in decedent's neck.
Upon questioning at the scene, defendant asserted that Hutchins had been shot in a drive-by shooting. However, when he could not support his version of events with any details, the police became suspicious and started searching the scene for a weapon. While searching, Officer Hunter overheard Lynch scream at defendant, "she [sic] didn't have to do that, you could have just got back in the car, you didn't have to shoot." Soon thereafter, Officer Hunter located the weapon, a Charter Arms Undercover 39 Special revolver containing five empty shell casings, on the sidewalk not far from Hutchins's body. Subsequent forensic testing confirmed that the bullet found in Hutchins's neck had been shot from the revolver found at the scene.
Following the discovery of the gun, defendant was arrested for unlawful possession of a weapon and was transported to Orange Police Headquarters. The remaining individuals were also transported to Police Headquarters for questioning.
During the subsequent police investigation, both James and Barclay initially gave false statements, but later implicated defendant. Photo identifications were conducted, and both women identified defendant as the shooter.
At approximately 8:00 p.m., a warrant was issued for defendant's arrest on charges of murder. Shortly thereafter, he was taken to an interview room, where he was administered Miranda*fn1 warnings and was interviewed by a detective from the Essex County Prosecutor's Office, Christopher Smith, in the company of an Orange police detective, Willie Coley. After being confronted with the incriminating evidence obtained from the witnesses to the events, defendant confessed. He was then asked to provide a recorded statement and, after agreeing and again waiving his Miranda rights, defendant did so, stating in part:
Well, we . . . was all at the club, we was drinking and so forth. It was time to go home, dude started grabbing up my sister and he been like on her almost like all day since I met him, you know what I mean? And I'm trying to see what it is, you know, I mean that's wrong and everything. So I go over there, I just - I had talked to him about talking to my sister like that, you know what I'm saying? And he -
Then we leaves and everything, he jumped on her one more time, man you know what I'm saying? Getting out of the car, I forget how that happened, you know what I mean? How he - because he was in my vehicle and I don't remember, I don't know why we got out of the vehicle. I think - I think I said something like hey, get out my car. You know what I'm saying? Leave my sister alone. And then we had words and everything.
When I - when I - me and the guy. . . .
You know? And - and I did it, man. . . .
I shot the guy.
Following the jury's verdict of guilty on all counts, defendant was sentenced to thirty years of imprisonment for the murder with a thirty-year period of parole ineligibility. He was sentenced to a concurrent term of five years for unlawful possession of a weapon. The conviction for possession of a weapon for an unlawful purpose was merged into the murder conviction. The judge found aggravating factor 9 (the need for deterrence) and mitigating factor 3 (that defendant acted under strong provocation). N.J.S.A. 2C:44-1a(9) and -1b(3). She found the aggravating and mitigating factors to be in equipoise. This appeal followed.
On appeal, the defendant first argues that his statement to the police should have been suppressed following the Miranda hearing held by the judge in the matter, since the evidence produced at that hearing demonstrated that defendant's waiver of his Miranda rights was neither voluntary nor knowing.
The testimony offered by the State and by defendant at the Miranda hearing sharply diverged. Detective Smith gave testimony for the State. He testified that he was called in to work on the murder investigation at 4:00 a.m. and reported to Orange Police Headquarters. There, he interviewed other witnesses, but did not speak to defendant until after a warrant for his arrest on murder charges was obtained at about 8:00 p.m. Defendant was then administered Miranda warnings at 8:12 p.m., and a preliminary interrogation was conducted, resulting in defendant's confession. Following the re-administration of Miranda warnings, at 8:45 p.m. he commenced his recorded statement. Detective Smith denied that defendant was intoxicated at the time of his confession, a statement borne out by defendant's confession, itself, in which the following colloquy occurred:
DETECTIVE SMITH: Okay. Are you currently under the influence of any drugs or alcohol?
MR. JACKSON: Alcohol, yeah.
DETECTIVE SMITH: You are under the influence of alcohol?
MR. JACKSON: Well, right now?
DETECTIVE SMITH: Right now?
MR. JACKSON: No, I'm sorry, you said the word currently.
DETECTIVE SMITH: Yeah.
MR. JACKSON: It's coming out of my system now, but -
DETECTIVE SMITH: Okay, but you're sober right now? Is that correct?
MR. JACKSON: Yeah.
The detective did not know whether defendant had been questioned by other officers, or whether he had slept or been fed. He did not recall defendant stating that he was under the influence of Ecstasy, and his confession did not disclose such drug use.
Defendant called three witnesses on his behalf, including himself. Defendant testified that, during the eighteen hours that he was held at Orange Police Headquarters before his confession, he was fed only coffee, he was repeatedly interrogated, with interrogations by Detective Smith commencing at 2:30 a.m., he was deprived of sleep, he was inadequately dressed and thus cold, he was kept incommunicado, and he was manhandled, threatened and intimidated by Detective Coley, who on a prior occasion had broken defendant's jaw.*fn2 Defendant testified that, on December 1, he had consumed almost a gallon of cognac, had taken one and one-half Ecstasy pills, and while at the club, had consumed two Long Island iced teas. As a consequence, at the time of his confession, he was seeing flashes caused either by alcohol, drugs, or the combination of the two and was under the influence of both substances. He testified that, during the interview, I was scared, I was hungry, I was cold. On top of it, my mind, I kept seeing like flashes, like flashes, you know, I don't know what, was it the ecstasy or the alcohol, but I kept seeing flashes and everything, you know, and I didn't have no sleep and I just been up. You know I'm saying, they just kept bombarding me with questions and telling me I did something that I didn't do.
However, at another point in his testimony, defendant stated that he had not been interviewed in the period between 5:00 or 7:00 a.m. and 3:00 p.m. He also stated in answer to a question regarding whether he had been fed, "I don't recall," following that statement with the explanation that "the only thing they could give me [wa]s coffee . . . because of my condition."
Defendant claimed that his requests to call his mother and his attorney were repeatedly denied. He stated that he did not recall reading the Miranda warnings, and although he signed the form, he did not remember initialing the warnings. Defendant also testified that his confession was coached by the police, who repeatedly stopped the tape to prep defendant as to what he should say.
Defendant's mother corroborated defendant's testimony regarding his drinking during the day of December 1, 2000 and testified that during the evening of that day, defendant was intoxicated.
Detective Coley, who was called as a witness by defendant, testified that he had come to work at 5:00 to 5:30 p.m. on December 2. He did not personally feed defendant or give him an opportunity to make a phone call, and he did not know whether defendant had been removed from his cell previously or questioned. Detective Coley did not know if defendant was asleep prior to the time when he brought him from his cell because defendant had his back to him when he entered the cell.
The detective recalled defendant mentioning that he had been drinking prior to the murder. However, he did not smell alcohol on defendant at the time of his interview and confession. The detective did not recall any mention of Ecstasy.
Detective Coley denied that he had previously arrested defendant and that he had ever broken his jaw. Additionally he denied mistreating defendant on December 2, and he stated that he sat across from defendant during his interrogation, and did not stand behind or to the side of him in a threatening manner as defendant claimed.
At the conclusion of the hearing, the trial judge, in a lengthy and thorough oral opinion, denied defendant's motion to suppress his confession, determining that defendant knowingly and intelligently waived his Miranda rights, despite his prior consumption of alcohol, and that his statement was voluntarily provided. In reaching the conclusion that defendant's thought processes were not impaired by alcohol at the time he waived his rights and offered his confession, the judge compared the manner in which defendant spoke when giving his taped confession with his testimony at the hearing. The judge stated:
I wanted to hear for myself his tone, to be able to discern his quickness of response to questions, so that I could decide whether there was any evidence of slowness on his part or - or impairment, whether the responses were logical to the questions that he was being asked, whether there were any pauses in his answers, anything that would give me the ability to be as present as I could at the time he was giving his statement. So I could hear for myself whether, first of all, I thought I was . . . listening to a person who was under the influence of anything or slow for any reason, whether that be alcohol or drugs or just any other impairment that he might have, so I - including sleep deprivation or anything of that nature . . . .
The judge concluded that no evidence of impairment could be detected. There was no indication of an inability to understand any question that was asked, and in fact, the judge observed that defendant's responses were "instantaneous." According to the judge, defendant gave "[v]ery detailed answers in terms of describing the actual scene where the shooting occurred, who was present, who was standing where." Defendant's acuity was demonstrated by the fact that, at one point, when defendant was asked about the ownership of the car he was driving, he discussed title ownership. The judge "found no evidence of slowness, slurring of words, delay in response, incoherency in substance, [or in]appropriateness of the answer to a question." Moreover, the judge noted, defendant had denied being intoxicated at the commencement of his taped confession. In sum, the judge found no evidence of intoxication, sleep deprivation or anything of that nature that would support defendant's argument that waiver of his rights was not knowingly and intelligently made.
Turning to whether the confession had been voluntary, the judge noted that some evidence had been introduced that Detective Coley had arrested defendant on a prior occasion and that he had received treatment for his jaw, which had perhaps been broken in two places. However, additional evidence suggested that defendant's jaw had been broken in an assault by the Bloods that led to defendant's arrest on a weapons charge on the date in question.
In resolving the conflict between the two versions of what had taken place previously, the judge noted that, toward the end of defendant's confession, Detective Smith asked: "All right, have you been treated fairly today?" Defendant responded: "Yes, by both of you officers." The judge reasoned:
I don't know why he would have included Detective Coley in that response if he was as fearful of him as he claimed he was because the question certainly did not require that he be included. He was simply ask[ed] had he been treated fairly today. The simple answer would have been yes. I would even understand if he didn't include that - yes, but not by Detective Coley. But what I didn't understand was why he would have said - made a point of saying yes, by both of you officers. That did not comport, in my view, with a defendant who is as fearful of this man as he claims to be.
The judge noted as also detracting from the credibility of defendant's claim of assault that he had never reported the alleged police brutality, even after being moved from Orange to the Essex County Jail.
The judge likewise found the remainder of defendant's testimony addressing the issue of voluntariness not to have been credible. As the judge observed, the testimony was "a little bit too legalistic . . . if you read the seminal case law on voluntariness of statements, I don't think he missed a case in the type of testimony that he gave. Every type of abuse that could possibly b[e] the subject of a legal opinion was included in his testimony." The judge also found incredible the fact that, at the Miranda hearing, defendant accused his sister of committing the murder.
As a consequence of this analysis, the judge denied defendant's suppression motion, stating:
[T]he court finds, first of all, that the defendant was properly given his rights. I am not persuaded that he was tortured or taunted in any way or questioned outside of this record, other than that which the police admitted to, that there was a period during which he was preinterviewed before the formal statement was taken.
I am satisfied, based on the fact that I don't feel that he was impaired in any way, that he understood what was said to him, that he knowingly and voluntarily waived his rights.
On appeal, defendant claims that his state of intoxication rendered him unable to knowingly and intelligently waive his Miranda rights. We disagree. Whether defendant's waiver of his Miranda rights was voluntary is tested by the totality of all the surrounding circumstances. State v. Miller, 76 N.J. 392, 402 (1978). In this context, we have held that the fact that a defendant is intoxicated does not invalidate his Miranda waiver or a resulting confession if evidence indicates that the intoxication did not affect defendant's ability to communicate, and he answered questions in a responsive manner. State v. Warmbrun, 277 N.J. Super. 51, 64 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). Intoxication will invalidate a confession only if "the suspect is intoxicated or under the influence of drugs to the point that he/she cannot understand his/her constitutional rights." Leonard N. Arnold, 32 New Jersey Practice, Criminal Practice and Procedure, §17.24 at 292 (2008).
After reviewing the record in this matter in detail, we find that substantial credible evidence supported the trial judge's conclusion that, eighteen hours after his initial arrest, defendant was not so intoxicated that he was unable to knowingly and intelligently waive his Miranda rights, and indeed, he did not give signs of intoxication at all. State v. Johnson, 42 N.J. 146, 162 (1964). The judge's conclusion in this regard is supported by defendant's recorded statement that, at the time he was questioned on the record at 8:45 p.m. on December 2, 2006, he was sober.
We likewise reject defendant's argument that his confession was not voluntary as the result of sleep deprivation, lack of food, lack of sufficiently warm clothing, the inability to contact his mother or an attorney, mistreatment, and intimidation. With respect to defendant's claim of lack of sleep, defendant admitted at the Miranda hearing that he was not removed from his cell in the period between 5:00 or 7:00 a.m. and 3:00 p.m. No evidence suggests that he could not have slept in that interval. Moreover, while Detective Coley was unable to state that defendant was asleep when Coley entered his cell to escort him to the interview room, Coley did testify that defendant's back was to him, thereby suggesting that defendant was lying down at the time. With respect to lack of food, we note that defendant testified that he did not recall whether he had been offered food on December 2, and in a later statement, he suggested that he would not have been able to eat even if food were offered as the result of his intoxication. We are also satisfied, as was the trial judge, that defendant knowingly waived his right to counsel and, further, that he was not the subject of mistreatment or intimidation, such a claim having been refuted by defendant's recorded admission that he had been treated fairly "by both of you officers."
The Supreme Court has held that, in order to determine whether a suspect's waiver of rights and confession were voluntary,
[a] court must look at the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation. Relevant factors to be considered include the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved. [State v. Galloway, 133 N.J. 631, 654 (1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862 (1973) and Miller, supra, 76 N.J. at 402).]
As the trial judge noted in her oral opinion, defendant was at the time of his confession somewhat over thirty years of age, he had an eleventh-grade education, he was advised on several occasions of his constitutional rights, and he had prior experience with the criminal justice system as the result of five arrests for municipal violations and a prior Superior Court weapons conviction. Further, his detention had spanned only eighteen hours, during much of which he was left undisturbed.
There is no evidence that defendant was tricked into confessing by misstatements as to the substance of the information imparted to the police by the witnesses to the shooting. Further, the interrogation leading to defendant's confession was relatively short in duration, lasting for approximately thirty-five minutes prior to the time that defendant consented to repeating his statements on the record. We thus find no basis to conclude that defendant's decision to confess arose from an overbearing of his will, not from a change of mind. Id. at 655. As the Galloway Court observed, "[c]ases holding that police conduct had overborne the will of the defendant have typically required a showing of very substantial psychological pressure on the defendant." Id. at 656. We do not discern such evidence, here.
Prior to trial, the judge ruled admissible as an excited utterance pursuant to N.J.R.E. 803(c)(2) the hearsay statement by defendant's sister, Lynch, to defendant that he "didn't have [to] do that, you could have just got back in the car, you didn't have to shoot." At trial, the statement was introduced by Orange Police Officer Hunter, who responded to the scene shortly after the shooting. Hunter testified that he had heard Lynch utter it while with Hutchins, "crying, upset, shaking nervous, [and] uttering all kind of statements."
On appeal, defendant argues that the statement was improperly admitted by the judge without conducting a preliminary hearing pursuant to N.J.R.E. 104(a) to determine its admissibility as an excited utterance. In the circumstances presented, we do not find that the judge abused her discretion in admitting the statement without holding a separate admissibility hearing. State v. Buda, 195 N.J. 278, 294 (2008) (establishing the standard for review).
In State v. Cotto, 182 N.J. 316 (2005), the Court discussed excited utterances, observing that "[s]uch statements are admissible under the rationale that '"excitement suspends the declarant's powers of reflection and fabrication," consequently minimizing the possibility that the utterance will be influenced by self interest and therefore rendered unreliable.'" Id. at 328 (quoting State v. Long, 173 N.J. 138, 158 (2002) (quoting 2 McCormick on Evidence § 272, at 204-05 (5th ed. 1999))). The Court held "a statement constitutes an excited utterance when 'the circumstances reasonably warrant the inference that the statement was made as an uncontrolled response to the shock of the event before reasoned reflection could have stimulated a self-serving response.'" Ibid. (quoting Cestero v. Ferrara, 57 N.J. 497, 504 (1971)).
The Cotto Court continued by explaining that "when 'deciding whether there was an opportunity to fabricate or deliberate, a court should consider the element of time, the circumstances of the incident, the mental and physical condition of the declarant, and the nature of the utterance.'" Ibid. (quoting Long, supra, 173 N.J. at 159). Of crucial importance is "'the presence of a continuing state of excitement that contraindicates fabrication and provides trustworthiness.'" Ibid. (quoting State v. Lyle, 73 N.J. 403, 413 (1977)).
In this case, testimony by Officer Hunter revealed that he and his partner, Officer Lopez, had responded to the scene immediately following a report that shots were fired. Once there, he witnessed a woman, later identified as defendant's sister, on the ground next to the shooting victim, later identified as her boyfriend Hutchins, crying, hysterical, and blaming defendant for shooting Hutchins, rather than simply returning to the car and driving off without him. In the circumstances, a startling event had occurred shortly before Officer Hunter's arrival on the scene, the unexpected shooting of Hutchins. Evidence likewise indicated that the shooting and injury to Hutchins induced a strong reaction in his girlfriend, Lynch, causing her to become emotionally distraught. Further, evidence established that her ongoing emotional condition had not abated sufficiently to have permitted her the opportunity to deliberate or fabricate. As a final matter, Lynch's spontaneous accusation directly addressed the events and Lynch's view of defendant's culpability. On this basis, we find that Lynch's accusatory statement was properly admitted as an excited utterance, the conditions for its admissibility as set forth in Supreme Court precedent having been met. State ex. rel J.A., 195 N.J. 324, 340 (2008); State v. Branch, 182 N.J. 338, 365 (2005); Cotto, supra, 182 N.J. at 327-38; see also Truchan v. Sayreville Bar & Restaurant, 323 N.J. Super. 40, 48-49 (App.
We are also satisfied that admission of the statement was not barred by the Sixth Amendment's Confrontation Clause under precedent such as Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) as a testimonial statement. Id. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197.
In Buda, supra, the Court described Crawford's holding by stating:
According to Crawford, "[t]he text of the Confrontation Clause . . . applies to 'witnesses' against the accused - in other words, those who 'bear testimony'" Id. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192 (citations omitted). It explained that "'[t]estimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Ibid. (citation omitted). It noted that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Ibid. It highlighted that "[t]he constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of outof-court statement." Id. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192-93. [Buda, supra, 195 N.J. at 300.]
In Buda, the Supreme Court ruled non-testimonial the spontaneous statement of a child to his mother that he had been beaten by his Daddy. Id. at 304. The Court premised its holding on the conclusion that "spontaneous statements do not bear the indicia of 'a formal statement to government officers' but instead are akin to 'a casual remark to an acquaintance.'" Ibid. (quoting Crawford, supra, 541 U.S. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192). We find a similar conclusion to be warranted in the present case. Lynch did not utter her accusation to the police or in response to police questioning. Moreover her statement did not constitute a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, supra, 541 U.S. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192. Rather, it was a spontaneous outcry directed by Lynch at her brother that the police just happened to overhear. In these circumstances, we do not find a Crawford violation to have been demonstrated.
Defendant next claims as plain error the fact that the judge permitted the prosecutor, in summation, to play defendant's recorded confession, without holding a N.J.R.E. 104(a) hearing or giving a cautionary instruction to the jury. In support of his arguments, defendant relies on State v. Muhammad, 359 N.J. Super. 361 (App. Div.), certif. denied, 178 N.J. 36 (2003). However, Muhammad is inapposite, since it concerns the use of segments of a videotaped trial in summation, not a recorded confession. In connection with the latter, the Muhammad court observed:
Audio and videotaped statements of defendants and other witnesses are frequently played during the trial for the jury and when admitted into evidence, may be played during summation. [Id. at 379.]
At no point in its opinion did the court indicate that the precautions that it imposed upon the use of videotaped trial excerpts during summation applied to the use of recorded confessions.
Without question, "prosecutors should confine their summations to a review of, and an argument on, the evidence, and not indulge in improper expressions of personal or official opinion as to the guilt of the defendant, or in collateral improprieties of any type, lest they imperil otherwise sound convictions." State v. Thornton, 38 N.J. 380, 400 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963). However, "'[p]rosecutors are expected to make a vigorous and forceful closing argument to the jury, and are afforded considerable leeway in that endeavor.'" State v. Ingram, 196 N.J. 23, 43 (2008) (quoting State v. Jenewicz, 193 N.J. 440, 471 (2008)).
In the present case, the prosecutor argued:
Detective Smith, once all of the statements had been done, everybody gave statements, identifications were made - Detective Smith went to the Judge, and applied for a warrant and got it. He went back to the Orange Police Department, and he sat down with Randy Jackson. Look, you're under arrest for the murder of Hassan Hutchins. This is what we have against you. Before he did that, he filled out this form. And this form says you don't have to tell me anything. You don't have to say a word. If you want a lawyer, we'll get you a lawyer. You want to keep your mouth shut, you have every right in the world to do that. He signed this form, and talked to Detective Smith, at the point where Detective Smith sat down and told him this is what we have. What happened? He started crying. Detective Smith - and you have the tape in evidence. Listen to it. Listen to it as many times [as] you have to. [Smith] wasn't in a rush to take his statement. His statement to him was: I know this is difficult for you, but we'll get through it as fast as we can.
Ladies and gentlemen, I submit, that is the most important piece of evidence that you have there.
The record reflects that defense counsel did not object to the playing of the tape or claim that the tape had, in some fashion, been unfairly edited. Moreover, at the conclusion of the trial, the judge instructed the jury members, as is standard practice, that they were "the sole and exclusive judges of the evidence, of the credibility of witnesses, and the weight to be attached to the testimony of each witness," regardless of what the attorneys may have said. Further, the judge instructed: "Although the attorneys are permitted to point out to you what they think is important in the case, you must rely solely upon your understanding and recollection of the evidence that was admitted during the trial."
In these circumstances, we see no error, let alone plain error, in the manner in which this portion of the trial was conducted. State v. Macon, 57 N.J. 325, 336 (1971).
Defendant urges additionally that the jury should have been instructed on the need to find corroboration of defendant's confession, and that such an instruction, although not requested, was not given sua sponte. We find no plain error to have occurred. R. 2:10-2.
In State v. Lucas, 30 N.J. 37 (1959), the Supreme Court discussed the requirement of corroboration, noting: "[t]he rule in New Jersey that a confession without more cannot sustain a conviction can be traced back through the decisional law to as early as 1818." Id. at 51 (citing State v. Aaron, 4 N.J.L. 231 (Sup. Ct. 1818)). In determining what the New Jersey corroboration rule required, the Court first observed that there are three basic elements in the proof of any crime: that loss or injury, such as death, in a murder prosecution, has occurred; that the injury or death occurred as the result of criminal conduct, not accident; and that defendant was the perpetrator of the crime. Id. at 53. After discussing whether the State must produce independent proof of the first and second elements, or merely the first, the Court held that "the State must introduce independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness, plus independent proof of loss or injury." Id. at 56.
In State v. Di Frisco, 118 N.J. 253 (1990), the Court observed that "[a]s with any other part of a prosecutor's case, a confession may be shown to be 'insufficiently corroborated or otherwise deemed unworthy of belief.'" Id. at 274 (quoting Lego v. Twomey, 404 U.S. 477, 486, 92 S. Ct. 619, 625, 30 L. Ed. 2d 618, 626 (1972)). Thus, "[i]n the ordinary jury trial, a defendant would be entitled to request and receive a charge to the jury on its duty with respect to issues of corroboration." Ibid.
However, in this case, defense counsel did not make such a request. In State v. Reddish, 181 N.J. 553 (2004), the Court considered such a circumstance in a case, like the present one, where the defense argued that the confession was untrue. There, the Court held that the onus was upon defendant to request the charge. Id. at 621. Further, the Court noted that it had previously held on several occasions that failure of the trial judge to give an instruction on corroboration did not constitute plain error where other aspects of the charge addressed the jury's responsibility to assess credibility, and the focus of the defense was on the assertion that the statement was untrue. Ibid. (citing State v. Roach, 146 N.J. 208, 229, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996); Lucas, supra, 30 N.J. at 63). In Reddish, the Court ruled similarly, concluding that "the failure to instruct the jury on corroboration did not amount to plain error" when in both his opening and his summation defense counsel urged the jury to reject defendant's statements as untrue. Id. at 622.
In the present case, defense counsel argued in his opening: "[i]f a person gives a statement to protect someone they're worried about, but the proofs - the forensic proofs do not support that statement, then you will agree with me that Randy Jackson is not guilty of these charges." Counsel argued in summation that the issue confronting the jury was whether defendant's statement "had certainty to it or accuracy to it." He continued:
Now, a lot of statements were taken by law enforcement, but the reality is are there facts to support that statement? And if those facts do not support the statement, then the statement is unreliable. It's incumbent upon you to determine whether the statement is a truthful statement as it was given or not. Counsel then proceeded to argue, utilizing many of the arguments presented at the Miranda hearing, that defendant's statement was not true, but rather was a fabrication created by police officers who sought to short-cut their investigation.
Further, as in Reddish, id. at 622, the trial judge properly informed the jury of its duty to assess credibility, in general, as well as the credibility of defendant's statements. The judge administered the following charge:
There is for your consideration in this case a statement allegedly made by the defendant. . . . It is your function to determine whether or not the statement was actually made by the defendant, and if made, whether the statement or any portion of it is credible. In considering whether or not the statement is credible, you should take into consideration the circumstances and the facts as to how the statement was made, as well as all other evidence in this case relating to this issue. You may also consider any testimony concerning the defendant being made aware of his Miranda rights. . . . If after consideration of all these factors you determine that the statement is credible, you may give the weight that you think appropriate to the portion of the statement you find to be truthful and credible.
In the circumstances presented by this record, which closely parallel the circumstances of Reddish, we find no plain error to have existed as the result of the absence of a corroboration charge.
During the trial, testimony was given by Detective Smith that, upon arrival at Orange Police Headquarters at 4:00 a.m. on December 2, he individually interviewed James and Barclay, who denied knowledge of the crime. Detective Smith then interviewed Davis, who gave a statement that was inconsistent with what the two women had said. Detective Smith then reinterviewed each of the women who, when confronted with the statement given by Davis, provided a "relatively consistent" version of the events. The two women were then asked to give formal statements, which they did. Additionally, both identified defendant in photo lineups shown to each. The following exchange then occurred on direct examination:
Q And after you had completed your investigation, and taken statements from all of the witnesses, what did you do?
A The, um - I had applied for an arrest warrant for murder for Randy Jackson.
Q And once you - why did you do that?
A Well, we had identifications from all of the witnesses I spoke to identifying Randy Jackson as the individual [who] shot Hassan Hutchins, and the facts of the case supported that Randy Jackson was, in fact, the shooter.
Q Did you obtain that warrant? A Yes.
Q And what did you do once you had that?
A I responded back to the Orange Police Department. . . .
Q For what purpose?
A To serve Randy Jackson with the arrest warrant, and informed him he was being charged now with homicide, and to interview him, and possibly obtain a statement from him.
On cross-examination, the subject of the warrant came up again in the following exchange:
Q . . . So, once you talked to these first series of witnesses, you then say you went back to Mr. Jackson, let him know he was being charged with murder. Correct?
A No. Once I received all of the statements from everybody, I went to - saw a Judge, and the Judge issued an arrest warrant for murder for Randy Jackson, and that's when I came back to the Orange Police Department, and then I spoke to Randy Jackson.
As a final matter, the prosecutor said in his summation:
Detective Smith, once all of the statements had been done, everybody gave statements, identifications were made - Detective Smith went to the Judge, and applied for a warrant and got it. He went back to the Orange Police Department, and he sat down with Randy Jackson. Look, you're under arrest for the murder of Hassan Hutchins. This is what we have against you.
On appeal, defendant contends that admission of the references to issuance of the arrest warrant constituted plain error, warranting reversal of his conviction. In support of that argument, defendant relies on our decisions in State v. Milton, 255 N.J. Super. 514 (App. Div. 1992) and State v. Alvarez, 318 N.J. Super. 137 (App. Div. 1999).
Milton was a drug prosecution in which defendant argued that cocaine found pursuant to a search warrant under a mattress in a room jointly occupied by defendant and his brother belonged to the brother, and that he was unaware of the presence of the drug. There, we found no error in the prosecutor's statement during his opening that the police had a search warrant for the residence. Id. at 519-20. However, we found error in the prosecutor's further reference to a search warrant for the defendant's person. Ibid. In that regard, we held: the defendant was unquestionably prejudiced by the mention of the existence of a warrant to search his person. The natural inference from the mention of the warrant itself, confirmed by the cautionary instruction of the trial judge, was that sufficient independent proof had been presented to a neutral judge to believe that defendant would be found in possession of drugs. The trial judge's explanation to the jury that the burden of proof for a search warrant was less than that required for conviction at trial served to support this prejudicial inference. [Id. at 520.]
We followed Milton in Alvarez, supra, 318 N.J. Super. at 145-48, a case in which defendant defended against weapons possession charges by asserting that he lived in a home for transients who had access to the bedroom in which his personal effects were found. Id. at 143. We held that it was improper for the State to introduce evidence that the police went to the premises to serve an arrest warrant on defendant and, after defendant was arrested, they stationed a police officer inside the premises to insure that no one entered the bedroom occupied by defendant while the police obtained a search warrant for it. Id. at 148.
However, in State v. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), a murder prosecution, the Supreme Court rejected the defendant's claims of prejudice from references to search warrants during trial, holding:
We find those claims to be without merit. They have in common the proposition that the jury should be shielded from knowledge that search warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt. We are aware of no authority in support of such a rule. We are satisfied that a properly instructed jury will not presume guilt based on the issuance of a search warrant. We note, moreover, that the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly. [Id. at 240.]
The Court distinguished Milton, stating: "That case dealt with a prosecutor's reference to a search warrant that had the capacity to mislead the jury. Defendant does not claim that any reference to search warrants in these proceedings was misleading, and we are satisfied from our own review of the record that the references of which defendant complains were accurate." Ibid. We followed Marshall in our decisions in State v. McDonough, 337 N.J. Super. 27, 32-35 (App. Div.), certif. denied, 169 N.J. 605 (2001) and State v. Williams, 404 N.J. Super. 147, 166-69 (App. Div. 2008), certif. denied, 201 N.J. 440 (2010).
Our review of the record of the present case satisfies us that the three passing references to Smith obtaining a warrant for defendant's arrest for murder did not have the capacity to mislead the jury, as did the references in Milton and Alvarez. In Milton, a mention was made of a search warrant for defendant's person, thereby suggesting that the police had prior knowledge of his possession of drugs. However, no facts presented to the jury established that fact and, indeed, the basis for issuance of the warrant was not disclosed. Similarly, in Alvarez, the nature of the charges leading to the warrant for defendant's arrest and the basis for the police's concentration on the bedroom occupied by defendant when seeking a search warrant were not presented to the jury, leaving them free to speculate as to the nature of the evidence presented to the issuing authority.
In contrast, in the present case, the brief references to the arrest warrant had no capacity to mislead the jury because the jury had been informed of the basis for the warrant through the testimony of James, Barclay and Detective Smith.*fn3 Moreover, the determination to seek a warrant provided a necessary explanation to the jury as to why the police's interrogation of defendant was delayed until 8:00 p.m. As a final matter, we are satisfied that the jury was properly instructed as to the presumption of innocence, the State's burden of proof at trial, and as to the evidence the jury could consider in reaching its verdict.
We have carefully reviewed the legal arguments raised by defendant in his pro se supplemental brief and find none to be of sufficient merit to warrant discussion in a written opinion.
Defendant's conviction is affirmed.