On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 03-10-0975 and 04-08-1079.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Alvarez.
Defendant, Anyoli R. Gonzalez, was jointly charged in a Passaic County indictment with his co-defendant, Giovianny Gonzalez (Giovianny), with various offenses, including the murder of Darren Cancel. Defendant was tried separately, prior to the anticipated trial of Giovianny. On the murder charge, defendant was convicted of the lesser-included offense of second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1). Defendant was also convicted of the other two charges for which he was tried, third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. The weapons offenses were merged with each other and with the reckless manslaughter conviction, for which defendant was sentenced to nine years imprisonment, subject to an 85% parole disqualifier and three years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Prior to trial, extensive pretrial proceedings were conducted dealing with the admissibility of defendant's statements to the police. Defendant presented evidence at a Miranda*fn1 hearing attempting to establish that he lacked the mental capacity to understand and knowingly and voluntarily waive his rights before giving the statements. The disputed statements, all given by defendant in a single session, spanning several hours, two days after the crime, can be divided into two components for purposes of our analysis. First, defendant gave an oral statement which was not recorded by audio or video means, and which was not reduced to a written form. Then, the detectives who had obtained that oral statement proceeded to commence a videotaped statement. Portions of that statement were reduced to written form and signed by defendant.
Defendant challenged the admissibility of all of the statements on the basis of his diminished intellectual capacity. He also challenged the videotaped and signed statements on the additional grounds that he had asserted his right to counsel before they were given, but the detectives nonetheless wrongfully continued interrogating him. The court denied defendant's Miranda motion, and all of his statements were admitted at trial.
Defendant raises six arguments on appeal as follows:
THE TRIAL COURT'S ADMISSION OF MR. GONZALEZ'S INCULPATORY STATEMENTS VIOLATED HIS CONSTITUTIONAL RIGHT TO COUNSEL. U.S. Const. Amends. V, XIV; N.J. Const. Art. I, p.1.
THE TRIAL COURT ERRED IN FINDING THAT MR. GONZALEZ VOLUNTARILY WAIVED HIS RIGHTS.
THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE AND SENDING TO THE JURY DURING DELIBERATIONS AN INACCURATE AND INCOMPLETE RENDITION OF MR. GONZALEZ'S STATEMENT TO THE POLICE.
THE TRIAL COURT'S IMPROPER ACCOMPLICE LIABILITY CHARGE DEPRIVED MR. GONZALEZ OF DUE PROCESS. U.S. Constit. Amend. XIV; N.J.
Constit. Art. I, para. 1. (Partially Raised Below).
MR. GONZALEZ WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL BECAUSE THE STATE INTRODUCED A PRIOR INCONSISTENT STATEMENT OF ITS OWN WITNESS WITHOUT SATISFYING THE REQUIREMENTS OF N.J.R.E. 803(A)(1). (Not Raised Below).
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
Our disposition of the appeal focuses on the first two points, which deal with defendant's statements.
Point Two deals with all of the statements. In that point, defendant argues that his diminished mental capacity deprived him of the ability to understand his Miranda rights and to knowingly and voluntarily waive them. We are satisfied from our review of the record that the judge's rejection of that argument was supported by the record. We therefore reject defendant's argument in Point Two.
Point One pertains specifically to the videotaped and written statements. Defendant contends that he asserted his right to counsel at the beginning of the videotaped statement, but, instead of honoring his request, the police continued interrogating him. He argues, therefore, that these statements were obtained in violation of his constitutional rights and were improperly admitted at trial. We agree with defendant on this point and we conclude that the error was not harmless. Therefore, we reverse defendant's conviction and remand for a new trial.
In light of this disposition, we find it unnecessary to address the arguments defendant raises in Points Three through Six.
The underlying incident occurred on April 25, 2004 at about 3:00 a.m. in a Checkers fast food restaurant in Paterson. Defendant and Giovianny were in line behind Cancel, Luis Martinez, and Linda Rivera. Giovianny apparently touched Rivera inappropriately. This led to an argument between Giovianny and Cancel, which escalated to a fistfight between the two.
The exact course of subsequent events was the subject of varying accounts by multiple witnesses. The State produced nine eyewitnesses at trial, who gave varying accounts of how the scuffle progressed to its completion. The witnesses included Checkers' employees, customers, Rivera, Martinez, and a uniformed security officer who saw the scuffle when he was driving by and stopped to render assistance. The various witnesses observed the events from different locations, some of which provided a better view than others. Some had a connection to the participants, and others were disinterested parties. Their accounts of defendant's participation varied from a very minor or nonexistent role to a very significant one. Some of the witnesses recanted their original statements and changed their stories at trial. Some were intoxicated on the night of the incident. Thus, the exact course of events and the precise nature of defendant's conduct were left to the ultimate factfinders, the jurors. Because of these circumstances, defendant's statements to the police, describing what happened and what he did, took on great importance in the factfinding process.
In general terms, this is what happened. Cancel appeared to be getting the better of the fight with Giovianny. Defendant intervened. He opened his folding pocket knife, which had a blade of three to four inches. He said he stabbed Cancel once in the area of his waist. Cancel and Giovianny then proceeded outside and continued the fight. Apparently someone handed Giovianny a kitchen knife with an eight-inch blade. Giovianny stabbed Cancel with the kitchen knife.
The medical examiner identified four wounds in Cancel's body. She opined that two of the wounds, to Cancel's lower right abdomen and to his right buttock and hip area, were caused by the folding knife. She opined that either knife could have caused a wound to Cancel's left armpit. However, the fatal wound, which was to Cancel's chest and which severed his aorta, was caused by the kitchen knife.
Thus, it was clear that Giovianny actually killed Cancel. The State's theory against defendant was that he was guilty of murdering Cancel as an accomplice of Giovianny.
The investigation led to defendant, and two nights later, on April 27, 2004, Paterson police officers, including Detective Carlos Charon, went to a residence in Paterson to speak to defendant. They found defendant there with his brother and another individual. When the police identified themselves, defendant said, "I knew sooner or later you're [sic] gonna be coming for me." The police took the three men to the stationhouse. Defendant was not placed under arrest at that time, but he was detained. The State does not dispute that he was not free to leave and was in custody.
The police did not speak with defendant before they arrived at the stationhouse. They then began the interview at 8:24 p.m., when Charon advised defendant of his Miranda rights. Defendant was then twenty-three years old. He is a native of the Dominican Republic. Spanish is his first language. Defendant could speak and understand English to a reasonable degree, but he could not read English. Overall, he was more comfortable communicating in Spanish. Charon grew up in a Spanish-speaking household and was fluent in Spanish, in the same dialect used by defendant.
For these reasons Charon administered the Miranda rights to defendant in Spanish and utilized a Spanish-language Miranda form. Defendant acknowledged his understanding of each right and initialed the form accordingly. He also waived his rights, and signed the form to signify his waiver. Defendant does not contend that he asserted his right to counsel (or any other of his Miranda rights) during this phase of his interaction with the police.
In the presence of Charon and Detective Florence Ackerman, who was the lead investigator in the case, defendant proceeded to give an oral statement. The statement was not recorded by any means, and was not reduced to written form. However, Ackerman compiled a summary of defendant's oral statement, through Charon's translation, in her report. Charon testified that the summary in Ackerman's report accurately reflected what defendant said. Charon read the summary at the Miranda hearing and at trial. Charon also testified that any contemporaneous notes taken by him or Ackerman at the time of the statement were destroyed once the report was prepared.
In relevant part, the summary of defendant's oral statement reflected that this is what happened after he arrived at Checkers:
While he waited for his order Giovann[y] and Francis came in. Giovann[y] must have done something, he didn't see what, 'cause the girl said something to Giovann[y] and she was upset. He said the victim said something to Giovann[y] like that is my girl. So Giovann[y] said I didn't say nothing was up. [Defendant] related the big man swung at Giovann[y], that is when he took out his knife and stabbed the victim one time. Then the knife got stuck. He related the victim was fighting with Giovann[y] at the time he stabbed him and had his back to [defendant]. The victim did not have any weapons on him that [defendant] saw. The other guy, the one dressed in white, grabbed [defendant] and was like what happened?
By the time he got outside the victim was on the ground and Giovann[y] was running away
Giovann[y] did not have the knife out inside of the Checkers, but took it out during the fight outside. He described Giovann[y] as wearing a black hoodie with red trim. . . . Dominican, skinny, light complexion, 145 pounds about five/six. . . .
He said somebody gave Giovann[y] the knife. He thinks it was Francis who gave him the knife before he went to . . . Checkers. . . . He described the knife he had in his possession as a small, silver folding knife with black in the middle of the handle and gray outer [sic]. The blade he related [was] about four and a half inches long. . . .
He related he was unsure what happened to the knife he used to stab the victim as he said he didn't know if it stayed stuck or if it fell. He described the knife that Giovann[y] had in his possession as long, like a cooking knife used to cut chicken, which he left by the fight. . . .
After the unrecorded interview, defendant allegedly agreed to give a videotaped statement, which began at 10:45 p.m. and ended at about 12:30 a.m. It is with respect to this statement that defendant claims he invoked his right to counsel. The procedure by which defendant's statements were recorded and described in testimony, both at the Miranda hearing and at trial, is important. Charon communicated with defendant in Spanish. Ackerman was present and was seated at a computer, on which she would type questions and answers. However, what she typed was not a verbatim transcription of questions or answers. Indeed, Charon admitted that less than twenty percent of what was said was transcribed. Like the trial judge, we have viewed the video. There were many passages in which Charon and defendant engaged in extensive colloquy in Spanish, followed by Charon reporting to Ackerman only a few words by way of summary, which she then typed. Therefore, all or most of what was transcribed was Charon's summary of what was said, including his interpretation or characterization of what was said. Charon acknowledged that he regularly left out matters that he thought were unimportant or not relevant.
The prosecutor never produced a complete transcription, translated into English, of the colloquy between Charon and defendant. The reason given was that it would have been too costly. While being cross-examined, Charon acknowledged some inaccuracies in translation that were pointed out to him. He also admitted leaving out matters which might indeed have been relevant and helpful to defendant. We provide an example for purposes of illustration.
According to the written statement, defendant described the victim's condition after he first stabbed him by saying: "[W]hen I stabbed him the knife stayed stuck. I don't know if the knife fell or stayed stuck in his side. Gioviann[y] was still standing upright after I stabbed him." However, when confronted at trial with the video, Charon acknowledged that this was not complete or accurate:
Q: All right. So what he says is ["]I looked at my hand and I didn't have blood or anything. I thought I missed or it was stuck, the knife, but he wasn't about to die or anything. He was fighting.["] That's what he says. And what you say, supposedly translating what he said is . . . Giovann[y] was still standing upright after being stabbed. Is that what he said?
A: No. I gave a summary because throughout the whole statement he kept . . . drilling on the fact that he only stabbed him once and that [the victim] did not die with that blow. . . .
Q: . . . [Y]ou didn't interpret something he did ...