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State of New Jersey v. Jamillah Fullman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 1, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMILLAH FULLMAN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-04-0386.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 28, 2011

Before Judges Reisner and Sabatino.

After a jury trial, defendant Jamillah Fullman was convicted of the second-degree crime of reckless manslaughter, N.J.S.A. 2C:11-4b(1), as a lesser-included offense of murder; third-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. At defendant's sentencing, the trial court merged the conspiracy offense into the reckless manslaughter conviction. The court imposed an eight-year custodial term for the reckless manslaughter conviction, subject to an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2, plus a seven-year concurrent term on the weapons offense.

On appeal, defendant contends that her conviction must be set aside because the trial court's jury instructions on conspiracy were improper, the jury's verdict was against the weight of the evidence, and the State violated her rights against self-incrimination. Defendant further contends that her sentence was excessive. For the reasons that follow, we affirm.

I.

This case stems from the shooting death of defendant's former boyfriend, Leon Wilkes.*fn1 According to the State's proofs, defendant, after her contentious break-up with Wilkes, conspired with three other men, requesting that they "hurt" him. One of the three men thereafter shot and killed Wilkes in the basement of his home in Newark.

The key proofs developed at trial were as follows. Defendant and Wilkes were in a rocky relationship as of late September 2005. The couple lived together in Wilkes' apartment in Newark. Defendant moved out on October 1, 2005. That night, defendant went with another man, Anthony Jones, to a motel in Elizabeth, where they stayed for the weekend.

On October 2, 2005, defendant returned to Wilkes' apartment to pick up a check that had arrived for her in the mail. Wilkes drove defendant to a check casher and then to the motel where defendant was staying with Jones. After he dropped off defendant, Wilkes left the motel, but returned a short while later and dumped bags of defendant's clothes onto the parking lot.

Defendant then called her daughter, Nikkita Davis. Davis was dating Dorrell Merrett at the time and lived with him in an apartment. The couple shared the apartment with another couple: Davis' friend, Markeyah Jennings, and her boyfriend, Lenwood Brown. Davis and Merrett both testified that Merrett had a close relationship with defendant, describing it as a "mother-son" relationship.

Davis testified that when defendant called her on October 2, 2005, she asked to speak with Merrett. Merrett, however, was not home, so Davis handed the phone to Brown. Brown testified that defendant told him that Wilkes had raped her and dumped her clothes in the motel parking lot. Defendant allegedly told Brown that the situation "needed to be dealt with" and that Brown and Merrett "needed to put [their] hands on [Wilkes]. Do something. Harm him. . . . Hurt him."

Later that day, defendant called Davis' apartment a second time and spoke with Merrett. Defendant repeated her accusations that Wilkes had raped her and dumped her clothes in a motel parking lot. Merrett initially testified that defendant wanted Wilkes' "murdered", but later said that she only wanted him "hurt at that time."

Davis, Jennings, and Merrett each testified that defendant had called Davis and Merrett and accused Wilkes of rape. Jennings testified that during one of those phone calls, defendant "was upset and crying" and "she wanted Dorrell [Merrett] to beat [Wilkes] up."

After the October 2, 2005 phone calls, Brown and Merrett were visibly upset and angry. They decided to meet defendant at her motel, and enlisted Michael Willerson to join them. They each brought a gun.

When they arrived at the motel, Merrett, Brown and Willerson first met defendant, who was in the company of Jones. Defendant then led Merrett, Brown, and Willerson to her motel room. Brown took defendant into the bathroom and asked her if he, Merrett, and Willerson could hide their guns under the bed. Defendant asked Brown why they had guns. Brown responded, "What type of question is that?" Defendant told Brown that they could hide their guns under the bed. As they lifted the mattress and placed their guns underneath it, defendant looked at Jones, smiled and, referring to Merrett and Brown, said "I told you my sons don't play." Merrett, Brown, and Willerson then spent the night in defendant's motel room, while defendant stayed in the other motel room with Jones.

The next morning, on October 3, 2005, Brown returned the motel room key that defendant had given him and told defendant that they were going to Wilkes' apartment. Defendant was asleep at the time and did not respond, but Brown testified that she opened her eyes "for a split second." Merrett, Brown, and Willerson then went to Wilkes' apartment, where Willerson shot Wilkes to death in the basement.

Following an investigation, defendant, Merrett, Brown, and Willerson were all prosecuted for the homicide, and various other related crimes. With respect to defendant in particular, the State charged her with first-degree murder, N.J.S.A. 2C:11-3a(1), 2C:11-3a(2); first-degree carjacking, N.J.S.A. 2C:15-2a; first-degree robbery, N.J.S.A. 2C:15-1a; first-degree felony murder, N.J.S.A. 2C:11-3b; first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2, 2C:11-3; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5a; third-degree unlawful possession of a weapon-loaded rifle, N.J.S.A. 2C:39-5c(2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3.

Prior to trial, defendant moved to suppress the admission of two statements that she had given the police: a written statement on October 3, 2005, and a videotaped statement on October 9, 2005. After a hearing, the trial court denied the suppression motions.

Defendant was tried separately from the other defendants in June 2008. The trial took seven days. After the State presented its case-in-chief, the trial court granted defendant's motion for a judgment of acquittal with respect to the felony-murder and robbery counts, which were then dismissed. The court denied, however, defendant's motion for acquittal on the remaining counts. Defendant did not testify, and she did not present any witnesses.

Following its deliberations, the jury found defendant guilty of reckless manslaughter, conspiracy to commit aggravated assault, and possession of a weapon for an unlawful purpose.

The jury found defendant not guilty of the remaining charges. The court thereafter imposed the aforementioned eight-year custodial sentence.

II.

On appeal, defendant raises the following issues for our consideration:

POINT I

THE JURY CHARGES ON CONSPIRACY AND CONSPIRACY'S RELATIONSHIP TO FORSEEABLE SUBSTANTIVE CRIMES WERE HOPELE[SS]LY CONFUSING THEREBY DEPRIVING DEFENDANT OF DUE PROCESS AND A FAIR TRIAL.

POINT II

IT WAS ERROR TO DENY DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.

The Standard for the Motion.

The Evidence at Trial.

Could a Reasonable Jury Return Verdicts based upon the State's Evidence?

POINT III

DEFENDANT'S ORAL STATEMENT WAS A CUSTODIAL INTERROGATION WITHOUT MIRANDA WARNINGS AND THE LATER VIDEOTAPED STATEMENT BECAME INVOLUNTARY WHEN SHE ASKED FOR THE INTERROGATION TO STOP.

POINT IV

DEFENDANT'S SENTENCE WAS EXCESSIVE.

In a reply brief, defendant reiterates her substantive arguments concerning the jury charges, her motion for acquittal, and the admission of her statements to the police. Having carefully considered these arguments in light of the record and the applicable law, we sustain defendant's conviction and sentence. We examine each of her arguments in turn.

A.

The first issue that we consider is defendant's contention that the jury charge on conspiracy improperly included the following underscored passages,*fn2 which were suggested by the State and included over defendant's objection:

A person is guilty of conspiracy with one or more other persons, if, with the purpose of promoting or facilitating the commission of a crime, he or she agrees with such other person or persons that they, or one or more of them, will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime.

In order for the defendant to be found guilty as a coconspirator to the crime of murder and/or possession of a weapon for an unlawful purpose, or to any lesser included offense, the State must prove beyond a reasonable doubt that:

Three, the murder and/or possession of a weapon for an unlawful purpose, or any lesser included offense was in furtherance of and within the scope of the conspiracy or, if not within the scope of the conspiracy, was reasonably foreseeable or the necessary or natural consequence of the conspiracy.

In order for an act or crime of a coconspirator to be within the scope of and in furtherance of a conspiracy, the act or crime must be closely connected with the conspiracy, the natural or necessary consequence of the conspiracy, objectively foreseeable or reasonably anticipated from attempts to execute the conspiracy, and not committed in a manner too far removed from the objectives of the conspiracy to form a just basis to hold the defendant responsible for the acts of her coconspirators.

A person is liable for the acts of his or her coconspirators if the crime committed is within the scope of and in furtherance of the conspiracy. Even if you determine that the crime committed was actually beyond the scope of the original conspiracy between the defendant and her coconspirators, the defendant may be liable for the criminal acts of her coconspirators as long as you find that the crime committed was objectively foreseeable or reasonably to be anticipated in view of the obvious risks surrounding the attempts to execute the conspiracy and not too far removed or too remote from the objectives of the original conspiracy.

In summary, in order for the defendant to be found guilty of murder and/or possession of a weapon for an unlawful purpose, or any lesser included offense as a coconspirator of Brown, Merrett, and/or Willerson, the State must prove beyond a reasonable doubt that the defendant purposely entered into a conspiracy with Brown, Merrett, and/or Willerson to commit the crime of murder and/or possession of a weapon for an unlawful purpose, or any lesser included offense against Everett Leon Wilkes. The State must also prove beyond a reasonable doubt that the offense of murder and/or possession of a weapon for an unlawful purpose, or any lesser included offense was committed by Brown, Merrett, and/or Willerson while the defendant was a member of the conspiracy and had not withdrawn from it. In addition, the State must prove beyond a reasonable doubt that the act of murder and/or possession of a weapon for an unlawful purpose, or any lesser included offense carried out by Brown, Merrett, and/or Willerson, was in furtherance of and within the scope of the conspiracy, or if it was not within the scope of the conspiracy, was reasonably foreseeable or the necessary or natural consequence of the conspiracy. [Emphasis added.]

The passages added by the trial court to the general language of the then-existing Model Charges for conspiracy*fn3 are derived from the Supreme Court's decision in State v. Bridges, 133 N.J. 447 (1993). That case involved a scenario in which the defendant on appeal, Bridges, participated with others in events that led to the shooting of two victims, one of them fatally, during the course of a melee after a party. After an argument had erupted, Bridges "angrily threatened those at the party that he was going to retrieve his companions from Trenton." Id. at 458. Bridges, in fact, returned to the party with those cohorts, who were carrying loaded guns. Ibid. The physical melee ensued. Although Bridges had only been fighting with his hands, two of his companions who took part in the fight were armed. The jury convicted Bridges of conspiracy and several other substantive crimes, including murder.

Bridges argued that he should not have been held liable as a co-conspirator because he could not have foreseen that the two co-defendants would have purposely or knowingly caused death or serious injury to any of the other partygoers. The trial judge instructed the jury that Bridges could have been liable for those criminal acts as a co-conspirator if they were a "natural or probable consequence" of the conspiracy. Id. at 468.

On appeal, the Supreme Court in Bridges instructed that:

[A] conspirator can be held liable for the acts of others that constitute a reasonably foreseeable risk arising out of the criminal conduct undertaken to effectuate the conspiracy, and occurring as the necessary or natural consequences of the conspiracy. The substantive crime must be reasonably and closely connected to the conspiracy even though those crimes may not have been within the actual contemplation of the conspirators or within the scope of the conspiracy as originally planned.[Id. at 468.]

Applying these principles to the facts in Bridges, the Court concluded that his conviction for both conspiracy and the associated substantive crimes was appropriate.

Although "[t]he conspiracy did not have as its objective the purposeful killing of another person[,]" the surrounding context in Bridges indicated that "a reasonably foreseeable risk and a probable and natural consequence of carrying out a plan to intimidate the crowd by using loaded guns would be that one of the gunslingers would intentionally fire at somebody[.]" Id. at 469. Given this setting, the Court concluded that the discharge of firearms by one or both of the cohorts was "sufficiently connected to the original conspiratorial plan to provide a just basis for a determination of guilt for that substantive crime." Id. at 469.

Similarly, in the present case, the fatal attack upon Wilkes was an event that the jurors could logically consider as a "reasonably foreseeable risk and a probable and natural consequence" of defendant's enlistment of Merrett, Brown, and Wellerson to "hurt" Wilkes. Defendant incited three armed men, two of whom regarded her as the equivalent of their mother, to "hurt" Wilkes for allegedly raping and jilting her. It was entirely foreseeable that such a mission would lead to Wilkes'death, even if defendant had not originally intended for him to be killed.

Defendant was aware that the men had hidden their guns under the bed in the motel room, and she did not withdraw thereafter from the plan. Defendant referred to the cohorts as her "sons," ominously stating that "they don't play." Defendant could have reasonably foreseen that the men would, in fact, fire the guns upon Wilkes. Although the scenario is not entirely identical to Bridges, it is sufficiently similar to justify the inclusion of the additional "foreseeability" language in the conspiracy charge.

The fact that the foreseeability language from Bridges does not appear in the model charge does not preclude a supplementation of the model charge with language consistent with case law such as Bridges. At times, "it may be necessary for the court to adapt the model jury charge to the facts in evidence, and failure to do so will constitute error." Pressler & Verniero, Current N.J. Court Rules, comment 8.1 to R. 1:8-7 (2011); see also State v. Green, 318 N.J. Super. 361, 376 (App. Div. 1999), aff'd, 163 N.J. 140 (2000). In some instances, modifications or additions to the words of the model charge are warranted by case law. See, e.g., State v. Docaj, 407 N.J. Super. 352, 364, 371 (App. Div.), certif. denied, 200 N.J. 370 (2009); State v. N.I., 349 N.J. Super. 299, 307 (App. Div. 2002). That is the case here.

Moreover, the charge was not, as defendant argues, confusing. See State v. Green, 86 N.J. 281, 287 (1981) (requiring jury charges to provide a "comprehensible explanation of the questions that the jury must determine"). The text of the charge was, in fact, clear, and it was essentially drawn from the phraseology in the Court's opinion in Bridges.

In sum, the jury charge on conspiracy was appropriate and did not deprive defendant of a fair trial. See Green, supra, 86 N.J. at 287.

B.

The next point defendant raises is her claim that, at the close of the State's proofs, the trial court erroneously denied the remaining aspects of her motion for judgment of acquittal, particularly with respect to her alleged criminal culpability stemming from the actions of Merrett, Brown, and Willerson. We are satisfied that, given the nature of the evidence, the trial court did not err in allowing the jury to render a verdict on those remaining counts. Indeed, the proofs amply support the jury's determination of defendant's guilt, notwithstanding the fact that she did not shoot or physically attack Wilkes herself.

A court is to enter an order for a judgment of acquittal only "if the evidence is insufficient to warrant a conviction."

R. 3:18-1. The well-known standard to be applied on a motion for a judgment of acquittal at the conclusion of the State's case is expressed in State v. Reyes, 50 N.J. 454, 458-59 (1967):

[T]he question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

Under Rule 3:18-1, the trial court "'is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). "If the evidence satisfied that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004). On appeal, we apply the same standard. State v. Kittrel, 145 N.J. 112, 130 (1996); State v. Sugar, 240 N.J. Super. 148, 153 (App. Div.), certif. denied, 122 N.J. 187 (1990).

The basic elements of conspiracy, the pivotal offense implicated by defendant's argument, is set forth in N.J.S.A. 2C:5-2:

A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. [N.J.S.A. 2C:5-2(a).]

In applying the elements of conspiracy here, we are mindful that "[t]he mere knowledge, acquiescence, or approval of the substantive offense, without an agreement to cooperate, is not enough to establish one as a participant in a conspiracy. There must be intentional participation in the activity with a goal of furthering the common purpose; mere association is inadequate." State v. Abrams, 256 N.J. Super. 390, 401 (App. Div.) (citation omitted), certif. denied, 130 N.J. 395 (1992).

"The essential elements of the State's conspiracy case must be understood with reference to its alleged criminal object." State v. Samuels, 189 N.J. 236, 246 (2007). In the present case, the "alleged criminal object" was murder, and its lesser-included offenses, including manslaughter. A person commits murder when she purposely or knowingly "causes death or serious bodily injury resulting in death[.]" N.J.S.A. 2C:11-3a(1), (2). Thus, in order to survive defendant's motion for judgment of acquittal, the State had to present sufficient evidence that defendant, with the purpose of promoting or facilitating the murder or manslaughter of Wilkes, entered into an agreement with Merrett, Brown, and Willerson to achieve that objective. See Samuels, supra, 189 N.J. at 247.

A criminal conspiracy may be proven by circumstantial evidence. Id. at 246. That is so "[b]ecause the conduct and words of co-conspirators is generally shrouded in 'silence, furtiveness and secrecy.'" Ibid. (quoting State v. Phelps, 96 N.J. 500, 509 (1984)). "When 'each of the interconnected inferences [necessary to support a finding of guilt beyond a reasonable doubt] is reasonable on the evidence as a whole,' judgment of acquittal is not warranted." Ibid. (quoting United States v. Brodie, 403 F.3d 123, 158 (3d Cir. 2005)). Here, the circumstantial inferences, along with the direct proofs, clearly support defendant's conspiratorial liability.

The State presented multiple witnesses who testified that defendant asked Merrett and Brown to "hurt" Wilkes after defendant and Wilkes had ended their tumultuous relationship and her clothes were dumped in a motel parking lot. A reasonable jury could infer from the circumstantial evidence that the conspiracy to "hurt" Wilkes escalated to a conspiracy to murder Wilkes after Merrett, Brown, and Willerson arrived at defendant's motel room with guns. Brown testified that he essentially told defendant, during their conversation in the bathroom, that they would use their weapons against Wilkes. See State v. Thomas, 76 N.J. 344, 357 (1978) (noting that "[t]he use of a deadly weapon raises an inference that there was an intent to kill.").

Furthermore, as we have already noted, Merrett, Brown, and Jones testified that when defendant saw the guns being placed under a mattress in the motel room, she smiled and ominously said, "my sons don't play." A reasonable jury could infer from her statement that defendant knew that Merrett, Brown, and Willerson would use their guns to hurt Wilkes, because she knew that when Merrett and Brown intend to hurt someone, they bring and use deadly weapons.

It is inconsequential that the trial proofs do not contain testimony that defendant explicitly asked Merrett or Brown to kill Wilkes. There was sufficient circumstantial evidence to infer that defendant not only acquiesced to Merrett and Brown using deadly weapons to hurt Wilkes, but intentionally participated in the homicidal plot by allowing Merrett and Brown to hide their guns in her motel room and to stay in the room overnight before going to Wilkes' apartment to "hurt" him.

Viewing, as we must, the trial proofs and circumstantial inferences that can be reasonably drawn from that evidence in a light most favorable to the State, we are satisfied that the case properly went to the jury and that defendant's conviction had sound evidential support.

C.

In her third point, defendant argues that the State twice violated her rights against self-incrimination in obtaining statements that were eventually admitted against her at trial: first, when police interviewed her on October 3, 2005 at the police station without providing Miranda*fn4 warnings; and, second, on October 9, 2005, when the police arrested her and, after receiving Miranda warnings, she provided an oral statement that was videotaped. We discern no constitutional violations arising out of either of these interviews.

The first statement was taken on October 3, 2005, the same day that Wilkes was killed. Police officers arrived at the hom e of defendant's mother. They asked defendant if she would accompany them to the police station to discuss Wilkes' death. She agreed to do so, and the officers transported her to the station in an unmarked police car. The officers did not place defendant under arrest and defendant was not handcuffed at any time.

When they arrived at the police station, the officers advised defendant that she was free to leave at any time. They placed her in an eight-foot by eight-foot interrogation room. At that time, the officers did not consider defendant a suspect in Wilkes' murder, and they did not read her Miranda rights.

Defendant gave the police an oral statement. Her oral account was then transcribed into a written statement, which she reviewed and signed. After providing her statement, the officers allowed defendant to leave. The entire questioning that day lasted approximately an hour.

The trial judge allowed the transcribed statement to be read to the jury at trial, after determining that defendant was not a suspect at the time the police questioned her, that she had not been placed in custody, and that her Miranda rights had not been violated. In the course of his ruling, the judge specifically found credible the testimony of the detective who had questioned defendant concerning the circumstances of the interview.

On appeal, defendant argues that the trial court should have excluded her October 3, 2005 statement because the police officers violated her Miranda rights. Specifically, defendant contends that the police took her into custody that day and should have issued Miranda warnings before taking her statement.

The determination of whether the police had placed a person in custody is a fact-sensitive analysis that depends on the totality of the circumstances. State v. Brown, 352 N.J. Super. 338, 352 (App. Div.), certif. denied, 174 N.J. 544 (2002). "Those circumstances include the duration of the detention, the place and time of the interrogation, the nature of the questions and the language employed by the interrogator, the conduct of the police, the status of the interrogator, the status of the suspect, and any other relevant circumstances." Ibid.

As a general proposition, police officers do not necessarily place someone in custody simply by asking that person to accompany them to the police station. State v. Marshall, 148 N.J. 89, 225-26, cert. denied, 520 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). See also State v. Dispoto, 383 N.J. Super. 205, 213-14 (App. Div. 2006) (finding that the defendant was not in custody when police officers transported him to a police station in a police car, but only was in custody after the officers formally placed him under arrest), aff'd as modified, 189 N.J. 108 (2007); State v. Purnell, 310 N.J. Super. 407, 421-22 (App. Div. 1998) (finding that the defendant was not in custody after police took him to a police station), rev'd on other grounds, 161 N.J. 44 (1999); State v. McLaughlin, 310 N.J. Super. 242, 253 (App. Div.) (ruling that the defendant was not in custody when police told him that he was free to leave and the defendant left after questioning), certif. denied, 156 N.J. 381 (1998). Where a defendant is merely "the subject of an officer's attempt to gather information, the required compulsion is not present to necessitate Miranda warnings." Dispoto, supra, 383 N.J. Super. at 214.

Applying these principles, there are more than sufficient grounds to treat defendant's police interview on October 3, 2005 as a non-custodial situation. The police went to the house of defendant's mother and asked defendant to accompany them to the police station in order to talk to them about Wilkes. Defendant voluntarily acceded to the officers' request. The officers allowed defendant time to gather her personal items before they drove to the police station. When they arrived there, the officers told defendant that she was free to leave at any time, and they did not place her in handcuffs. Defendant was permitted to leave after giving her statement, which lasted approximately one hour. Under these circumstances, we agree with the trial court that the police officers did not place defendant in custody on October 3, 2005, and that no Miranda warnings in that setting were necessary.

Defendant gave her second statement*fn5 to the police on October 9, 2005, after they placed her in custody and issued her Miranda warnings. On this occasion, the police officers specifically told defendant she was under arrest for the murder of Wilkes.

About halfway through the ensuing interrogation, defendant told the officers, "I'm done." An exchange then ensued between defendant and the main detective who was questioning her. The trial judge summarized and commented upon that exchange as follows:

Detective: "What? How are you done?" [Defendant]: "I'm done." Detective: "How are you done?" [Defendant]: "I'm done."

Then the detective says[,] "how old are you?"

"I'm 35. 34. I'll be 35 next month."

"So why did you say you're done?"

I think the detective is concluding, when she says "I'm done," that I'm physically done, or my life is done.

And then [defendant] says "because I'm done. I'm -- I don't want to talk anymore. That's what I mean. I don't want to talk anymore."

And then the detective says "are you telling us that you're -- that you don't want to talk to us anymore?"

She says[,] "I'm just tired. I'm tired."

Once again, adding to the ambiguity in response to a very direct question.

"Are you telling us that you don't want to talk to us anymore?"

The answer: "I'm tired. I'm just tired."

Then the detective says, again very directly, very simply, "are you telling us that you don't want to talk to us anymore? Is that what you're telling us?"

Once again, trying to get the -- [defendant] to unambiguously say whether she's exercising her rights or not. They didn't go into any more inquiry. [Defendant] says[,] "I'm telling you that I'm telling all -- all that I know. I'mtelling you that I'm telling all that I know."

[Defendant]'s response is, I'm not telling you I don't want to talk to you anymore, her response is I'm -- what I'm saying is, I'm telling you everything that I know.

And the detective says again: "I have to ask you again, are you telling us that you don't want to talk to us anymore?"

Then [defendant] says "no."

Then goes on to say "I'm not saying that I don't want to talk to you anymore." [Emphasis added.]

Based upon this recorded exchange, the trial court concluded that the police had properly asked defendant clarifying questions in response to her ambiguous statements, and that they did not violate her right to remain silent. As the judge put it, "the detective[s] did exactly what the case law is instructing the detectives to do under these circumstances." The judge also found that "[a]fter watching the tape, judging [defendant's] demeanor, what was said, how it was said, I am totally convinced that . . . [her] statement was voluntary." Consequently, defendant's videotaped statement from October 9 was played for the jury as part of the State's proofs.

On appeal, defendant argues that she sufficiently invoked her right to remain silent when she told police, "I'm done,"and, thereafter, "I don't want to talk anymore," and that the interrogation should have stopped at that point. The State counters that, in the overall context of the interrogation, defendant's statement that she was "done" was ambiguous, and the police properly asked questions to clarify her statement and her subsequent responses.

As a matter of law, police interrogation of a suspect in custody must cease "[i]f the individual indicates in any manner, at any time prior to or during questioning, that [s]he wishes to remain silent[.]" Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723. When a suspect clearly invokes her right to remain silent, the police must stop the interrogation, even if the suspect's invocation was not done "with the utmost legal precision." State v. Bey (I), 112 N.J. 45, 65 (1988).

In the present case, we consider the potential ambiguity of defendant's statement, "I'm done." "When a suspect's words are ambiguous, [our courts have] permitted police to follow up by asking questions that are designed to clarify the meaning of those words." State v. Alston, 204 N.J. 614, 623 (2011). "If . . . 'following an equivocal indication of the desire to remain silent,' the police are reasonably unsure whether the suspect was asserting that right, they 'may ask questions designed to clarify whether the suspect intended to invoke his right to remain silent.'" State v. Johnson, 120 N.J. 263, 283 (1990) (quoting Christopher v. Florida, 824 F.2d 836, 842 (11th Cir. 1987), cert. denied, 484 U.S. 1077, 108 S. Ct. 1057, 98 L. Ed. 2d 1019 (1988)). "The scope of that permission, however, is limited because [the Court has] allowed only 'clarification, not questions that operate to delay, confuse, or burden the suspect in his assertion of his rights.'" Alston, supra, 204 N.J. at 623 (quoting Johnson, supra, 120 N.J. at 283).

A "suspect is not required to express a desire to terminate interrogation with the 'utmost of legal precision.'" Johnson, supra, 120 N.J. at 281 (quoting Bey (I), supra, 112 N.J. at 65). "Thus, a suspect who has 'nothing else to say' or who '[does] not want to talk about [the crime],' has asserted the right to remain silent, thereby requiring the police immediately to stop questioning." Johnson, supra, 120 N.J. at 281 (citations omitted).

Here, the trial judge, upon viewing the videotape and considering the proofs of the surrounding circumstances, correctly applied these legal principles in validating the officers' efforts to obtain clarification from defendant after her ambiguous declaration. We owe deference to the trial judge's findings. See State v. Elders, 192 N.J. 224, 245 (2007)(affording deference to the trial court's findings of fact with respect to testimonial and videotape evidence). Our own review of the record, including the DVD recording, confirms that defendant's responses to the officers' direct questions -- asking her if she wanted to stop talking after her ambiguous comment about being "done" -- were met with several unclear, equivocal, and often non-responsive answers. Although in one of those various follow-up responses, defendant said that she did not "want to talk anymore," she then qualified that assertion by first stating that she was "tired," and then contradicted herself by flatly denying that she did not want to talk to the officers anymore.

Based on the officers' words and the manner in which they conversed with defendant when she stated that she was "done," the record reflects that they were legitimately seeking clarification. In the process of doing so, defendant ultimately expressed that she wanted to keep talking, at which point the officers resumed their previous line of substantive questioning. The officers did not "delay, confuse, or burden [defendant] in [her] assertion of [her Miranda] rights." See Alston, supra, 204 N.J. at 623. Rather, the officers were understandably unsure of what exactly defendant was trying to communicate, and tried to ascertain how defendant wished to proceed, if at all.

Their efforts to obtain clarification were therefore justified and constitutional.

In sum, we are satisfied that neither the admission of defendant's October 3 nor her October 9 statements violated her rights against self-incrimination. The trial judge did not err in admitting those statements into evidence at trial.

D.

Lastly, defendant argues that her eight-year custodial sentence was excessive. In imposing that sentence, the trial judge found that three aggravating factors applied: (3), (6), and (9). The judge found no mitigating factors applicable.

As to the first aggravating factor, N.J.S.A. 2C:44-1a(3), a trial court may consider "[t]he risk that the defendant will commit another offense." Second, under N.J.S.A. 2C:44-1a(6), a trial court may consider "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted." Third, under N.J.S.A. 2C:44-1a(9), a trial court may consider "[t]he need for deterring the defendant and others from violating the law[.]"

According to the pre-sentence report, defendant has a criminal history that dates back to 1989. It includes convictions for aggravated assault, possession of controlled dangerous substances, contempt of court, and possession of drug paraphernalia. These prior offenses were appropriately considered as aggravating factors by the trial judge. See State v. Ross, 335 N.J. Super. 536, 542-43 (App. Div. 2000) (finding that a defendant's history of indictable offenses and disorderly persons convictions provided sufficient support for the trial court's finding of aggravating factors under N.J.S.A. 2C:44-1a(3), (6), and (9)), certif. denied, 167 N.J. 637 (2001). In addition, the evidence at trial reflected that defendant, because of her own antipathy towards Wilkes, instigated the conspiracy that culminated in his death. That active and serious wrongdoing was appropriately treated as an aggravating factor warranting a sentence that would provide adequate deterrence.

In determining the appropriate sentence to be imposed on a convicted individual, a sentencing court is to consider the specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 506-07 (2005); State v. Kruse, 105 N.J. 354, 359-60 (1987). If a sentencing court properly identifies and balances the factors and their existence is supported by the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996).

A sentence should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984). "[If] the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing." State v. Bieniek, 200 N.J. 601 (2010). "We grant to the sentencing court] the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence." Ibid.

Applying those principles of deference here, we sustain the eight-year sentence imposed upon defendant by the trial judge. The sentence was near the middle of the range for a second-degree crime, N.J.S.A. 2C-43-6a(2) (indicating an ordinary term of imprisonment between five and ten years), and was entirely justified, particularly in light of the serious nature of defendant's offenses and her extensive prior criminal history.

Affirmed.


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