On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-07-1193.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 9, 2009 -- Remanded: Resubmitted: May 23, 2011
Before Judges Cuff, Payne and C.L. Miniman.
Defendant Dion Miller appeals from a February 23, 2007, judgment convicting him of first-degree felony murder, contrary to N.J.S.A. 2C:11-3a(3); first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d. The judge merged the weapons convictions into the armed robbery conviction and the armed robbery conviction into the felony murder conviction for sentencing purposes and imposed a term of thirty years in prison with no possibility for parole for the entire term.
Defendant appealed and raised the following issues for our consideration.
POINT I - THE TWO-STEP, QUESTION-FIRST INTERROGATION TECHNIQUE WHICH WAS USED IN THIS CASE--WHERE A DEFENDANT WHO IS IN CUSTODY IS INTERROGATED WITHOUT MIRANDA WARNINGS UNTIL HE INCRIMINATES HIMSELF, AND THEN THE INTERROGATION IS REPEATED WITH WARNINGS--CLEARLY VIOLATED [DEFENDANT'S] STATE-LAW RIGHT AGAINST COMPELLED SELF-INCRIMINATION AS WELL AS HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION.
POINT II - AS WAS THE BASIS FOR REVERSAL IN STATE V. GONZALEZ,*fn1 THE TRIAL JUDGE CHARGED THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY, BUT DID NOT EVER DEFINE EITHER THE ACTUS REUS OR THE MENS REA ELEMENTS OF A CRIMINAL ATTEMPT. (Not Raised Below)
POINT III - THE NEED FOR A LESSER-INCLUDED-OFFENSE INSTRUCTION WAS CLEARLY INDICATED BY THE RECORD. (Not Raised Below)
In a prior opinion, we remanded this matter for further fact-findings with respect to the issue of whether certain statements made by defendant occurred while he was in custody. State v. Miller, No. A-4498-06 (App. Div. Aug. 10, 2010) (slip op. at 41-45). We retained jurisdiction. Id. at 45. Thereafter, the judge complied with our mandate and determined that defendant was not in custody at the time of his statements to the police. We now affirm in all respects.
We discussed the facts and procedural history relevant to this appeal in detail in our earlier opinion and incorporate that factual recitation here. Id. at 2-23. We noted that:
We are presented in this case with two diametrically opposite judicial fact-findings respecting the moment defendant was taken into custody. The first judge found on the testimony before her that defendant was taken into custody when he was removed from his grandmother's apartment. That finding is supported by substantial evidence in the record that was before the first judge. The second judge found that defendant was not taken into custody until after he made the first ...