February 10, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GREGORY MARTINEZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-09-2039.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2011 -
Before Judges Payne, Reisner and Simonelli.
Defendant, Gregory Martinez, at the age of nineteen, shot Roberto Diaz in the back multiple times at a high school graduation party after Diaz allegedly brandished a knife and threatened others in the course of a racially charged incident. Defendant confessed, and after his confession was found admissible, he conditionally pled guilty to first-degree manslaughter, N.J.S.A. 2C:11-4a, receiving a negotiated sentence of fifteen years of imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant has appealed the denial of his motion to suppress his confession, following a Miranda*fn1 hearing, and his sentence, raising the following arguments:
THIS APPEAL MAY AND MUST PROCEED, DESPITE DEFENDANT'S GUILTY PLEA, BECAUSE THE PLEA WAS CONDITIONAL.
THE DEFENDANT'S FIFTH-AMENDMENT RIGHTS WERE VIOLATED BY THE FAILURE OF THE AUTHORITIES TO TERMINATE QUESTIONING WHEN THE DEFENDANT AT LEAST AMBIGUOUSLY REQUESTED THAT THEY DO SO. U.S. CONST., AMENDS. V, XIV.
THE TRIAL COURT ERRED IN REJECTING DEFENDANT'S CLAIM THAT HIS BORDERLINE MENTAL FUNCTIONING PRECLUDED HIM FROM MAKING THE REQUISITE KNOWING AND INTELLIGENT WAIVER OF HIS MIRANDA RIGHTS. U.S. CONST., AMENDS. V, XIV; N.J. CONST., ART. 1, PARS. 1, 7, 10.
THE DEFENDANT RECEIVED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
Because the State concedes that defendant preserved his right to appeal from the order denying his motion to suppress his confession, we proceed directly to the issues raised in connection with that confession. Defendant first argues that a request by him to speak to his mother during the course of law enforcement interrogation and prior to his confession should have been considered an equivocal invocation of his right to remain silent that the interrogating investigator failed to respect. As a consequence, he claims his confession should have been suppressed.
We reject defendant's argument. The record reflects that the shooting in question occurred on July 1, 2005. On July 3, defendant was identified as the shooter by a witness to what had taken place. A county-wide bulletin was broadcast seeking to locate defendant and to conduct an interview. According to the testimony of defendant's mother, Gail Walker, on July 3, she and defendant attended a family barbeque, but left at approximately 8:30 or 9:00 p.m. Sometime after 10:30 p.m., Walker was contacted by a close family friend, who informed her that three officers "with guns" were at the friend's house looking for defendant. At that point, Walker "turned [defendant] in," calling or texting the prosecutor's office and stating that she would voluntarily bring her son in for an interview. She testified that she told defendant that he had to go to the prosecutor's office "for his safety" because "they were looking for him with shotguns and rifles."
According to Walker, she and her companion, Gregory Ellis, drove with defendant to the Atlantic County Prosecutor's Office in Mays Landing, where they were met by Investigator Michael Mattioli, who told Walker and Ellis "just sit here in the lobby." They were informed "[w]e'll call you when we get Gregory situated." Defendant was then taken by three officers to an interview room.
Walker testified that she tried to contact the officers by calling a number she had received on the previous day when her younger son, Justin, had been interviewed, and she also banged on an office door with no response. Although Walker stated that Sergeant Michael Corrado came to where she was sitting on two or three occasions to ask her questions, Corrado never stated that defendant wished to speak to her. In fact, she did not see defendant until after his statement had been given, at which time "he just looked terrible . . . he looked tired."
Sergeant Corrado testified that he met defendant at the front entrance of the prosecutor's office upon his arrival. The sergeant stated:
I escorted Greg Martinez from the front vestibule area into the hallway. I explained to Greg Martinez we wanted to interview him regarding this investigation. I asked him if he is voluntarily going to provide a statement, he said, Yes. I explained that he was not under arrest. I asked . . . him if he understood that, and he said, Yes, and I explained to him that he is free to leave whenever he so [chose], that there was nothing there holding him; he expressed to me that he voluntarily wanted to give a statement because he wanted to clear this up.
Sergeant Corrado did not participate in defendant's interview, which was conducted by Investigator Mattioli and Egg Harbor Police Sergeant Raymond Davis. However, following defendant's confession, he assisted in obtaining a warrant for defendant's arrest.
Investigator Mattioli also testified at the hearing. He stated that he, Investigator Edwin Cintron and Sergeant Corrado met defendant, his mother, and Ellis in the parking lot, near the front door of the prosecutor's office. The investigator had met Walker previously when she had accompanied her younger son for his interview; he also knew Ellis, who had appeared as a witness at a trial upon which Investigator Mattioli had worked. Once inside the building, defendant was taken to an interview room in the major crimes unit of the office. Prior to asking defendant any questions, Investigator Mattioli read defendant his Miranda rights and offered the card bearing those rights to him to read to himself. According to Investigator Mattioli, defendant appeared to him to be reading the card, because he observed his eyes moving. Defendant then checked "yes" in response to questions whether he understood his rights and waived them, and he signed the card and returned it to the Investigator, who also signed it. The card was signed at 12:38 a.m. on July 4.
According to Investigator Mattioli, for a couple of hours, defendant was asked non-leading questions regarding what had occurred. During that time, defendant responded readily and never informed his interlocutors that he wished to stop talking or that he wanted to see a lawyer or anybody else. Thereafter, Investigator Mattioli commenced to focus more precisely on the events leading to the shooting, and defendant attempted to distance himself from it, responding to questions more slowly and in a more deliberate manner. The investigator then suggested to defendant that he was the shooter, which defendant denied.
At some point thereafter, Investigator Mattioli left the interview room, and upon his return, he was informed by Sergeant Davis that "Greg has something to tell us." Investigator Mattioli testified:
I said, Okay, and Sergeant Davis said, Well, he wants to see his mom first. And I looked at Greg and I said, Greg, I will gladly get your mom and bring her back here, I said, But why don't you tell us what you have to tell us. You are telling us you have something to tell us. I'm not asking you any questions. You are telling me you have something to tell me, so why don't you tell us and he said, Okay, and he did all the talking now.
According to the investigator, defendant gave a lengthy sigh "like he was relieved, now he wanted to tell us the truth." The investigator stated that, in his experience with homicide suspects, "when you see that body language, that's when they are going to tell you what happened." A narrative confession followed. Investigator Mattioli testified that, during this time, defendant never expressed a desire to stop talking or for a lawyer. Additionally, he did not again "refer to wanting to talk to his mother, or his stepfather, or anybody else." After defendant had described what had occurred, he assisted Investigator Mattioli in diagramming the scene and the events.
Prior to giving a recorded interview, defendant requested and was given a cigarette. At that point, Sergeant Davis, who was sensitive to cigarette smoke, left the room, and Investigator Mattioli obtained the recorded statement with the assistance of Investigator Cintron, commencing the process at 5:05 a.m. and concluding at 5:20 a.m. The record reflects that, before giving that statement, defendant affirmed that he had been informed of his Miranda rights.
After defendant's taped statement was completed, at his request, Investigator Mattioli brought defendant's mother back to the interview room, where she spoke to him privately. Investigator Mattioli testified that, after Walker left the interview room, she stated to him that defendant had previously confessed to her that he had shot and killed Diaz, and that she was aware of defendant's confession when she accompanied her younger son for his interview on July 2. However, at the hearing, Walker denied making such a statement.
The circumstances of defendant's confession were also described by Egg Harbor Sergeant Davis, who was working with the investigators from the Atlantic County Prosecutor's Office on the night of July 3. Sergeant Davis was asked on direct examination whether he recalled an exchange with defendant over his willingness to provide more information. He responded:
He . . . requested to speak to his mother and that he would tell us everything, a similar statement that he had given to me that he wanted to tell us everything if he could speak with his mother.
At the time, Sergeant Davis was unsure whether "everything" meant that defendant was going to confess or that he was going to inculpate another. At that point, Investigator Mattioli returned to the room, and Sergeant Davis informed him what defendant had said. According to the sergeant, "Mattioli sat down, he told Greg, Sure, you can talk to your mother, but why don't you tell us what happened first so we know. Greg just sighed at one point, took a deep breath, said Okay, and then started to tell us what happened." Sergeant Davis confirmed that defendant initially gave his statement in narrative form, followed by questions. According to the sergeant, defendant was cooperative throughout, and he did not indicate that he wanted to speak with a friend, family member, or an attorney. Defendant did not again request to speak with his mother "because we already told him he would." As noted previously, Sergeant Davis left the interview room when, after defendant's informal statement, defendant requested a cigarette, and he did not return.
Following the conclusion of the Miranda hearing, the motion judge issued a lengthy and comprehensive opinion setting forth the bases for denying defendant's suppression motion. In rejecting defendant's position that he had equivocally asserted his right to remain silent when he asked to speak to his mother before telling everything, the judge examined the totality of the circumstances, concluding as follows:
In this case, from all accounts, it appears that the defendant had resolved in his mind to tell the police of his involvement in the murder and the statement concerning his desire to speak with his mother was rendered contemporaneously with the statement of his decision to "come clean."
There is no evidence to reasonably infer that the defendant was requesting the counsel of his mother in order to make a decision as to whether or not he would be willing to speak. It was a fait accompli that he desired to speak. This is evident by his readily yielding to the question of "Why don't you tell us first?" in giving the account of his complicity. It is noteworthy to cite again that the defendant had not been uncooperative in responding to the police questioning (a denial of culpability does not equate to uncooperativeness as asserted by the defendant). And that to all appearances he voluntarily presented himself to the police with the expression "I want to clear this matter up"; and that he could have simply answered "no" when questioned as to why not tell the police what he had to say first before talking to his mother.
Noteworthy also is that when he was reminded of his rights next before his tape recorded confession, he did not invoke any of his Constitutional rights.
Based upon all the foregoing, the court is satisfied beyond a reasonable doubt that he defendant did not invoke his right to remain silent.
We regard the judge's reasoning to be in accord with the analysis set forth in the Supreme Court's recent decision in State v. Diaz-Bridges, ___ N.J. ____ (2012), a murder case in which the defendant, confronted with his interrogator's conclusion that he had killed the victim, broke down into tears and asked to speak to his mother. However, after ten minutes, during which the investigating officers urged the defendant to tell them what happened, the defendant inculpated himself. Id. at __ (slip op. at 8-9). During a thirty-minute break before giving a formal statement, the defendant again requested to speak with his mother on three occasions, and when the detectives told the defendant that they wanted to take a formal statement, he responded "I need a minute . . . I gotta . . . I hate talking about this shit . . . I don't want to talk about it, man." Id. at __ (slip op. at 9-10).
After the interrogation resumed, the defendant repeated his request to speak with his mother "numerous times during the next three-quarters of an hour," explaining that if he did so, he could "stay calm," that she "would understand," and that he wanted her to hear what had occurred from him, not the police. Id. at __ (slip op. at 10-11). However, when asked by a detective whether he still wished to speak, the defendant responded "yes[.] I have no problem talking to you; I just want to talk to my mom. That's it." Id. at __ (slip op. at 11). Multiple additional requests were made by the defendant to speak with his mother in the approximately three-hour period between the defendant's initial confession and a time when the defendant was permitted to make the desired call. Thereafter, the defendant made two further, detailed confessions. Id. at __ (slip op. at 11-12).
Following suppression of the defendant's statements by the trial court and our partial affirmance of that decision, the Supreme Court, on further appeal, held all of the defendant's statements to be admissible. In doing so, the Court utilized "a totality of the circumstances approach that focuses on the reasonable interpretation of defendant's words and behaviors." Id. at __ (footnote omitted) (slip op. at 25 (footnote omitted)). In this regard, the Court noted that the defendant had not explicitly invoked his right to remain silent. Id. at __ (slip op. at 25). The Court held that whether he had done so implicitly required an analysis of "the words used and the suspect's actions or behaviors" to determine whether the investigating officer should have reasonably believed that the right was being asserted. Id. at __ (slip op. at 26). In conducting that fact-sensitive analysis, the Court suggested that appellate review of any available videotape of the interrogation and de novo factfinding based on it would be appropriate. Id. at __ (slip op. at 26-27).
Applying principles with respect to the invocation of the right to silence derived from precedent in which the exercise of that right was at issue, id. at __ (slip op. at 27-32), the Court concluded that "we do not discern in any of defendant's requests to speak with his mother an invocation of the right to silence." Id. at __ (slip op. at 32).
In support of that conclusion, the Court noted that the defendant had willingly spoken to the police, albeit trying to divert the police's attention from him while doing so. Id. at __ (slip op. at 32-33). It found that the defendant's change of demeanor, aversion of his gaze and weeping could not be considered the invocation of any right, but rather "a reflective pause, defendant's effort to collect his thoughts, consider his options, and attempt to keep his emotions in check as he confronted the enormity of what he had done." Id. at ___ (slip op. at 33). Further, he "never once asked that the interrogators stop or even that they leave him alone." Id. at __ (slip op. at 33). And while it would have been "more prudent" to seek an explanation of the defendant's intent in requesting to speak with his mother, "nothing in the words that defendant used suggested that he was asking for the questioning to stop or intended to invoke his right to silence." Id. at __ (slip op. at 33). Further, the defendant eventually gave a justification for wishing to speak to his mother unrelated to a desire to maintain his silence, he repeatedly told his interrogators that he was willing to speak to them, and he spoke without coercion of a nature sufficient to overcome his will. Id. at __ (slip op. at 34-35). Thus the Court concluded that defendant's request to speak to his mother, "however frequently and fervently repeated," sprang only from the desire to be the first to tell her what had occurred and to hear her words of comfort. The defendant had not asserted his right to remain silent. Id. at __ (slip op. at 36).
Our review of the record in this matter in light of Diaz-Bridges satisfies us that a conclusion similar to that of the Supreme Court in that case is warranted. Unlike the defendant in Diaz-Bridges, defendant only asked once to speak to his mother before confessing. Thus from that perspective, his case is even less compelling than that before the Supreme Court. Like Diaz-Bridges, when defendant's request was not immediately met, defendant did not seek to remain silent, but instead, he consented virtually immediately to continuing the interview, doing so in a much shorter period of time than that which elapsed in Diaz-Bridges. No evidence exists that, at any time, defendant indicated a reluctance to continue to participate in the interrogation. His tape-recorded confession, which we have reviewed, offers no evidence of any hesitance to speak to the investigating officers on defendant's part and to set forth, in some detail, the manner in which the crime occurred. Thus, when we view the circumstances in their entirety, we find no grounds for suppression of defendant's confession on the basis of an alleged equivocal assertion of a right to silence.
Defendant argues additionally that the motion judge erred in rejecting his claim that his borderline mental functioning precluded him from knowingly and intelligently waiving his Miranda rights.
Defendant's intellectual status was a subject of expert testimony at the suppression hearing. Forensic psychologist Edward J. Dougherty testified on behalf of the defense. Dr. Dougherty concluded that defendant, a special education student, was "borderline mentally retarded," possessing a verbal IQ of sixty-seven and a "performance" and "full-scale" IQ of sixty-three. He estimated defendant's reading comprehension to be at a first- or second-grade level. On that basis, the doctor concluded that defendant lacked the capacity to knowingly and intelligently waive his rights. The doctor did not analyze defendant's adaptive functioning in his report or consider it to be significant in his evaluation. Additionally, the doctor did not review the tape recording of defendant's confession when reaching his conclusion, testifying that he did not need to do so when formulating his opinion.
The State's expert, psychologist Louis Schlesinger, testified that he re-administered intelligence tests to defendant, because the scores reported by Dr. Dougherty were significantly less than had been measured by defendant's school. As a result, he obtained a full scale IQ of seventy-three, a verbal IQ of seventy-six and a performance IQ of seventy-four. As such, defendant placed within the borderline level of intelligence, above the level at which mild mental retardation could be found to exist. However, because defendant's IQ levels were less than previously reported, the doctor was of the opinion that he was consciously underachieving. Significantly, Dr. Schlesinger found, when measuring defendant's verbal intelligence, that he had average ability when it came to understanding social situations and using practical reasoning.
In contrast to Dr. Dougherty, Dr. Schlesinger testified that mental retardation cannot be found on the basis of an IQ score alone, but rather, it must be based on a combination of IQ score plus an evaluation of adaptive functioning - in other words, how one functioned in daily life. In evaluating defendant's adaptive functioning, the doctor considered both defendant's statements to him during a five-hour interview and information provided by a corrections officer who had daily contact with defendant. Dr. Schlesinger concluded that defendant had no difficulty communicating. He demonstrated that he could read by reading the transcript of the grand jury proceedings in his case, and he had no difficulty understanding what it said. He also had no difficulty in making his needs known, and he could speak clearly and in detail. After reviewing the tape recording of defendant's confession, the doctor found nothing that suggested difficulty in adaptive functioning, and particularly communication skills. The doctor characterized defendant's responses as "clear and lucid as can be." The doctor similarly found defendant to be competent in the other skill areas that the leading psychiatric diagnostic manual, the DSM-IV, specifies as requiring analysis.*fn2
Dr. Schlesinger also attempted to determine from defendant his comprehension of the Miranda warnings that were provided to him and, unlike Dr. Dougherty, in doing so, he utilized the warnings card utilized by Atlantic County at the time of defendant's interrogation, not the standardized test that Dr. Dougherty used. To test comprehension, Dr. Schlesinger read each of the warnings and then asked defendant what it meant. In the doctor's view, defendant's understanding was "perfect." The doctor additionally concluded that defendant, whom he characterized as "street smart," would not be unduly susceptible to police coercion if it occurred during the course of interrogation. When asked whether defendant had the capacity to waive his constitutional rights at the time that the Miranda form was read to him, given to him, and signed by him, Dr. Schlesinger responded: "He was completely competent to do that."
In his written opinion, the motion judge rejected the opinions of Dr. Dougherty and accepted those of Dr. Schlesinger. The judge gave detailed reasons for his determination in that regard. Among those reasons, the judge noted that Dr. Dougherty had found defendant to be illiterate, yet on cross-examination he conceded that defendant had ranked 100 out of a class of 200 at graduation and had been accepted at Atlantic Community College. On cross-examination the doctor also acknowledged that his diagnosis of "borderline mental retardation" was not a diagnosis recognized by the DSM-IV. The doctor additionally acknowledged that he had made no analysis of defendant's adaptive function, indicating that such analysis was not necessary to an opinion on retardation. He did, however, concede that defendant had been employed at McDonald's as a cashier.
Dr. Dougherty did not listen to the tape-recorded confession given by defendant, and he did not utilize the Atlantic County Miranda card - a card containing warnings written at the lowest reading level of that of any New Jersey county - when evaluating defendant's understanding of its warnings. In formulating his opinion, the doctor relied on an IQ test score that was substantially lower than that recorded for defendant at the age of eleven. He did not ask the follow-up questions when administering the IQ tests that Dr. Schlesinger testified were essential, and his low scoring of some of defendant's responses appeared to lack any reasonable basis. Further, the doctor did not investigate evidence that defendant might have been involved in his own legal research.
The judge concluded by stating:
It is this court's observation that based on the aural presentation of the defendant as evidenced in the tape recording of his statement to the police, any level of mental retardation is not apparent. The defendant was at all times coherent, appropriately responsive and articulate in the answers he gave to the police. He did not ask for questions to be repeated. He did not labor over detailed answers and was mindful to inject whether true or not his claim of the need to defend his brother or others as justification for his conduct. At the conclusion of his statement, when given the opportunity to add anything, he credibly articulated his remorse for the consequences of his acts. In sum, based upon the totality of evidence in this case and what I find to be the substantially more persuasive testimony of Dr. Schlesinger over that of Dr. Dougherty, I am satisfied beyond a reasonable doubt that defendant was intellectually capable of understanding and waiving his Miranda rights.
Contrary to defendant's position, we find that the judge's conclusions were amply supported by the evidence introduced at the suppression hearing, State v. Johnson, 42 N.J. 146, 161 (1964), and that, under the totality of the circumstances, defendant's waiver of his rights was knowing and intelligent. State v. Carpenter, 268 N.J. Super. 378, 386 (App. Div. 1993), certif. denied, 135 N.J. 467 (1994). The motion judge was under no obligation to accept the opinions of Dr. Dougherty, particularly when the weight of those opinions was severely undercut during cross-examination and the doctor's initial views were effectively countered by the divergent opinions of Dr. Schlesinger. State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004), certif. granted, 181 N.J. 549 (2004), appeal dismissed, 187 N.J. 74 (2005). Rather, the judge was empowered to accept or reject from among the opinions offered at the hearing and to evaluate them in light of all the evidence in the record. We find no abuse of the judge's discretion in reaching the conclusions that he did on the basis of the evidence presented before him. Compare, id. at 549-52.
Although defendant pled guilty pursuant to a negotiated plea agreement that specified a fifteen-year period of incarceration, subject to NERA, defendant now contests his sentence as excessive. While appellate review of defendant's sentence "is not incompatible with the concept of plea negotiations[,]" State v. Spinks, 66 N.J. 568, 573 (1975), "an appellate court should ordinarily defer to the presumed reasonableness of a bargained sentence and not hold it to be excessive except in compelling circumstances. Ibid. We do not find such circumstances to be present here.
In sentencing defendant, the judge found aggravating factors 3 (the risk of reoffense), based on defendant's lifestyle that included two arrests and considerable party going, as well as substance abuse, and 9 (the need for deterrence), N.J.S.A. 2C:44-1a(3) and (9), as well as mitigating factors 5 (the victim induced the commission of the crime) and 7 (defendant had no prior criminal record), N.J.S.A. 2C:44-1b(5) and (7). The judge found the aggravating and mitigating factors to be in equipoise, and he therefore imposed a sentence at the low end of the first-degree range of ten to thirty years.
On appeal, defendant argues that the aggravating factors found by the judge should be afforded little weight, and that the following additional mitigating factors should have been found: 3 (the defendant acted under strong provocation); 4 (there were substantial grounds tending to excuse or justify defendant's conduct while failing to establish a defense); 9 (defendant's character and attitude suggests that he is unlikely to commit another offense). N.J.S.A. 2C:44-1b(3), (4) and (9). Additionally, defendant notes his low intelligence, a history of substance abuse, the possibility that he was under the influence of drugs and alcohol at the time of the shooting, and that the location of the decedent's wounds provides evidence that defendant did not intend to shoot to kill. Thus, he argues, a ten-year sentence should have been imposed.
We find those additional mitigating factors, which were addressed at the sentencing hearing, to be inapplicable. With respect to factor 3, the evidence demonstrated that the decedent was not attacking defendant and, likely, was not attacking his brother. The opportunity to retreat was present, and defendant's act of obtaining a weapon and repeatedly shooting it was not justifiable. We also reject, as did the judge, factor 4, noting in that regard that there was evidence that defendant had been drinking prior to the event, but no evidence suggested that his drinking was such that it impaired his ability to recognize the potential consequences of his actions. Additionally, we find no error on the judge's part in failing to rely on factor 9 since, as the judge recognized, defendant's lifestyle was such that a risk of reoffense was present. As far as the claim that defendant did not shoot to kill, we note that defendant fired into decedent's back, continuing to shoot after decedent was on the ground. In total, six shots were fired. Such evidence is inconsistent with defendant's claimed benign motivation.
As a consequence, we affirm the sentence imposed in this matter, finding it to have been neither manifestly excessive nor unduly punitive, and that its imposition did not constitute an abuse of the sentencing judge's discretion. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. O'Donnell, 117 N.J. 210, 219-20 (1989); State v. Ghertler, 114 N.J. 383, 389-93 (1989); State v. Roth, 95 N.J. 334, 356-66 (1984).