On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-06-00721.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Ashrafi.
The opinion of the court was delivered by FUENTES, J.A.D.
Defendant George Melendez was tried before a jury and convicted of murder, N.J.S.A. 2C:11-3(a)(1) and (2), second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The court sentenced defendant to an aggregate term of life imprisonment, with an eighty-five percent period of parole ineligibility and five years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The principal question raised by defendant in this appeal concerns the admissibility of inculpatory statements he gave in response to a police officer's questions, while he was in custody and after he had invoked his right to counsel. These statements led the police to the location where defendant had discarded the handgun he used to kill his wife. Relying on the public safety exception first articulated by the United States Supreme Court in New York v. Quarles, 467 U.S. 649, 655-56, 104 S. Ct. 2626, 2631, 81 L. Ed. 2d 559, 557 (1984), the trial court found the interrogating officer was authorized to question defendant to discover the location of the discarded and presumably loaded handgun. Alternatively, the court found defendant voluntarily and knowingly waived his right to counsel at the time he decided to answer questions posed to him by different officers.
We affirm. Although the circumstances surrounding the missing handgun did not provide a valid basis to invoke the public safety exception under Quarles, the record supports the trial court's finding that defendant voluntarily and knowingly waived his right to remain silent, independent of the initial questions concerning the location of the weapon.
We derive the following facts from the record developed before the trial court.
On the morning of October 11, 2003, Rockaway Township Police Officer Christopher Hulsman was briefed by his shift commander that a woman had been found dead from gunshot wounds outside of the Rockaway Townsquare Mall. The crime occurred two days earlier, on October 9, 2003. An arrest warrant had been issued for defendant, the victim's husband, for violation of a domestic violence restraining order and for questioning in connection with his wife's death. Hulsman left the briefing a little after 6:00 a.m. in a marked police car and in full uniform.
At approximately 10:00 a.m., Hulsman was patrolling on Mount Hope Road, a heavily wooded area near Mount Hope Pond, when he saw a man (later identified as defendant) walking on the side of the road with a slight limp and his head down. As Hulsman drove past, defendant lifted his head, looked in Hulsman's direction, and continued walking towards the center of the road. Concluding defendant may have been trying to get his attention, Hulsman backed up the police car and asked: "Are you okay?" According to Humslan, defendant replied: "I think you're looking for me." Defendant then "held out both arms in front of him with his fists clenched as if he was looking to be handcuffed."
Hulsman testified that defendant was wearing a green coat with the words "Royal Lawns" written on one side, and the name "George" on the other. After reporting the encounter to police headquarters, Hulsman showed defendant a photograph of himself and asked him: "Is that you?" to which defendant answered: "Yes." The back of the photograph read: "Suspected, armed and dangerous." Hulsman ordered defendant to put his hands on top of the patrol car, patted him down, and asked him if "he had any guns or weapons or anything else on him." According to Hulsman, defendant replied: "[I] got rid of the gun."
Hulsman handcuffed defendant, placed him in the back of the patrol car, and read him his rights under Miranda.*fn1 When Hulsman asked him if he understood his rights, defendant answered "yes," and said: "[I] think [I] need to talk to an attorney." Hulsman did not have any further conversation with defendant from this point on. He called the police station to request backup and informed Captain James Sazack that he had defendant in custody.
Officers Michael Herda and Robert Sherr were two of the backup officers who reported to the scene of defendant's arrest. Hulsman testified that Herda saw something sticking out of defendant's pocket and asked defendant to step out of the police car so that he could be searched. When Herda began reading defendant his rights under Miranda, Hulsman intervened and advised Herda that he had already apprised defendant of his rights. Although Hulsman saw Herda continue to speak with defendant thereafter, he did not hear the content of the conversation. Hulsman also informed the detectives from the Rockaway Township Police Department and investigators from the Morris County Prosecutor's Office that defendant had been informed of his rights under Miranda and had requested an attorney.
Although Herda acknowledged that Hulsman told him he had read defendant his rights under Miranda, Herda testified Hulsman did not tell him that defendant had invoked his right to have counsel present before answering any questions. Herda asked defendant if he understood his rights under Miranda, to which defendant responded: "Yes." Herda then removed what appeared to be legal papers from defendant's pockets.
At this point, despite the fact that defendant had been previously searched and was handcuffed, Herda asked defendant if he had a weapon on his person. When defendant answered: "No," Herda asked defendant if he had any weapons on his person before Hulsman stopped him. Defendant answered: "[Y]eah, but I don't have it now." Defendant further asked Herda: "Do you think I need any attorney?" As to this key question, Herda testified as follows:
A. My answer to him was that he was entitled to an attorney. I was just concerned because the area that people go up there fish, kids, hike, that if the gun was -- if there was a gun and it was in that area, somebody could get hurt.
Q. Okay. Now, in response -- did the defendant respond to that statement at all?
A. He stated or he said yes, it was somewhere in the area.
Q. Okay. Did he do -- when you asked that question, did he do anything, did he make any gestures?
A. Yeah, I asked him where, and he motioned with his head up towards like north end of Mount Hope Road, of Mount Hope Pond.
Q. And that's in -- is that in the direction of the pond that we're speaking of?
Q. Now, [who] utilizes that cabin?
A. It's a Rockaway Township Sportsmen cabin, and the Boy Scouts use it, and the Rockaway Township Sportsmen.
Q. Now, is it only used for a certain period of time during the year?
A. I believe is open year round.
Q. Okay. In your experience as a police officer, obviously, you've been a police officer 22-and-a-half years, have you seen that cabin being used all year round?
Q. Now, did he give you -- did he give you a specific statement with respect to where the gun would be?
A. He stated that it was in the woods somewhere near a rock pile.
Q. Okay. And he didn't get anymore specific than that?
Herda also asked defendant about his health and whether he was taking any medications. Defendant told Herda that his leg was hurting him and that he suffers from arthritis in his leg and arm. According to Herda, defendant had not taken his medication for the past four days, and had been walking around the area since the day before his arrest. Herda did not ask defendant: (1) to describe the kind of medication defendant was taking; (2) to identify the illness or condition the medication was intended to treat; or (3) to explain the reasons for not taking his medication for over four days.
Interrogation at Police Station
Captain Jeffrey S. Paul of the Morris County Prosecutor's Officer was assigned to investigate the death at the Rockaway Townsquare Mall. He reported to the Rockaway Township Police Station on the day of defendant's arrest and was informed that defendant "had mentioned the issue in regards to an attorney" and was also told that defendant had been limping and may be injured. After discussing the matter with the Chief of Investigations, Paul was instructed to determine whether defendant needed medical attention.
Based on this directive, Paul approached defendant with the intention of speaking to him "on two issues": (1) to assess whether defendant needed medical care; and (2) to determine whether defendant understood "that he was in custody in connection with a violation of a restraining order." Paul introduced himself to defendant, who in turn stood up and shook his hand. He advised defendant that he wanted to know whether defendant ...