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State of New Jersey v. William Boston

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 21, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM BOSTON, DEFENDANT-APPELLANT

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-10-0985.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 7, 2012 -

Before Judges Parrillo, Grall and Skillman.

Defendant William Boston and his co-defendant Thomas S. Nevius were indicted and charged with first-degree murder, N.J.S.A. 2C:11-3a(1)-(2);*fn1 first-degree felony murder, N.J.S.A. 2C:11-3a(3); second-degree burglary, N.J.S.A. 2C:18-2; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; second-degree conspiracy to commit murder, N.J.S.A. 2C:11-3a(1)-(2) and N.J.S.A. 2C:5-2; and third-degree conspiracy to commit burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:5-2. The charges against defendant and Nevius were severed for trial, and a jury found defendant guilty on all counts.

The judge merged defendant's convictions for felony murder, possession of a weapon and conspiracy to commit murder with his conviction for murder, and his conviction for conspiracy to commit burglary with his conviction for burglary. He sentenced defendant to a term of imprisonment for fifty-five years for murder and a concurrent seven-year term of imprisonment for burglary. Both sentences are subject to terms of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also imposed the appropriate fines, penalties and assessments.

The jury to which co-defendant Nevius was tried found him guilty of first-degree purposeful or knowing murder, felony murder, second-degree burglary, and third-degree conspiracy to commit burglary, and he was sentenced to an aggregate term of sixty-five years in prison, subject to NERA. This court affirmed his conviction and sentence in an unpublished opinion. State v. Nevius, No. A-5438-07 (App. Div. June 18, 2012).

Defendant presents these issues on appeal:

I. THE TRIAL COURT'S RULING ADMITTING THE DEFENDANT'S STATEMENTS INTO EVIDENCE SHOULD BE REVERSED.

A. THE STATE FAILED TO PROVE THAT THE DEFENDANT'S WAIVER OF HIS MIRANDA RIGHTS WAS KNOWLING [sic], VOLUNTARY, AND INTELLIGENT.

B. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO REOPEN THE MIRANDA HEARING BECAUSE THE COURT'S RULING WAS INCONSISTENT WITH ITS OBLIGATION TO APPLY A REASONED "TOTALITY OF THE CIRCUMSTANCES" ANALYSIS IN FINDING THAT THE DEFENDANT'S STATEMENTS WERE ADMISSIBLE BY "PROOF BEYOND A REASONABLE DOUBT."

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO PRESENT A COMPLETE DEFENSE BY PRECLUDING TESTIMONY THAT THE DEFENDANT DID NOT HAVE THE COGNITIVE CAPACITY TO WAIVE HIS MIRANDA RIGHTS.

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO CONFRONTATION BY RESTRICTING TRIAL COUNSEL'S RECROSS-EXAMINATION.

IV. THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE TESTIMONY THAT THE DEFENDANT WAS PERFORMING

"COMMUNITY SERVICE" WAS ADMITTED FOR AN IMPROPER PURPOSE AND SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403.

V. THE TRIAL COURT'S FAILURE TO GIVE THE JURY THE REQUESTED CAUTIONARY INSTRUCTION ON THE FAILURE BY THE POLICE TO RECORD THE DEFENDANT'S STATEMENTS WAS REVERSIBLE ERROR BECAUSE THE DEFENDANT HAD A CONSTITUTIONAL DUE PROCESS RIGHT TO THE INSTRUCTION.

VI. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR [A] MISTRIAL MADE PURSUANT TO STATE V. GILMORE.

VII. THE CUMULATIVE EFFECT OF THE ERRORS INVOLVING THE WRONGFUL ADMISSION OF A LETTER PURPORTEDLY SIGNED BY THE DEFENDANT, IMPROPRIETY DURING THE PROSECUTOR'S CROSS-EXAMINATION OF DR. LATIMER, THE ADMISSION OF IMPROPER REBUTTAL TESTIMONY, AND IMPROPER REFERENCES TO THE DEFENDANT'S FAILURE TO TESTIFY DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (RAISED IN PART AND NOT RAISED IN PART BELOW).

A. THE TRIAL COURT ERRED IN ADMITTING THE LETTER INTO EVIDENCE BECAUSE DEFENDANT'S SIGNATURE WAS NOT PROPERLY AUTHENTICATED.

B. THE PROSECUTOR COMMITTED IMPROPRIETY DURING HIS CROSS-EXAMINATION OF DR. LATIMER.

C. THE TRIAL COURT MISAPPLIED THE CONCEPT OF REBUTTAL TESTIMONY.

D. THE DEFENDANT'S RIGHT TO REMAIN SILENT WAS IMPROPERLY MALIGNED BY DETECTIVE O'NEILL AND THE TRIAL COURT. (NOT RAISED BELOW).

VIII. THE 55 YEAR BASE CUSTODIAL TERM IMPOSED ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE WAS MANIFESTLY EXCESSIVE.

Ruth Walker was the victim of these crimes. When she was killed, she was fifty-two years old and residing alone in an apartment in the Chestnut Square apartment complex in Vineland. Defendant was twenty-three years old and lived in the first-floor apartment adjacent to Mrs. Walker with his mother, father and a friend, Damian Stratton.

On the day she was killed, July 30, 2002, Mrs. Walker got home at 8:22 p.m. Her arrival was captured on video by Chestnut Square's surveillance camera. She was planning to have dinner ready for her sons, their families, and her daughter and her boyfriend when they returned to Vineland from a day trip to Wildwood. Her daughter had called at 8:19 p.m. to let her know they were leaving Wildwood, but when she called at 9:30 p.m. to say they were in Vineland, Mrs. Walker did not answer.

Upon arriving at their mother's apartment, her children saw her car parked outside, but the lights in the apartment were off. Mrs. Walker did not come to the door when they knocked, and after several minutes one of her sons went to his home, got a knife and returned and picked the lock. When the family entered and turned on the lights in the apartment, her daughter's boyfriend found Mrs. Walker lying on her back on her bedroom floor.

The room was in disarray: clothes were thrown everywhere; the bed was "messed up"; the closet door was on the floor; and one of the legs supporting a night table was broken off, and there was a lot of blood. Except to check for a pulse, the family did not move Mrs. Walker. Her daughter ran outside and screamed for help and a son called 911.

Dr. Elliott Gross, the medical examiner for Cumberland County, performed an autopsy. Mrs. Walker had cuts on each hand and bruising on the shoulder. In addition, she had six stab wounds. While most of the stabs were superficial, one had severed her jugular vein. The severance of the jugular vein allowed air from the exterior of her body to rush into her vascular system and reach her heart. This "air embolism . . . getting into the heart and blocking circulation" would have caused death quickly. Because blood from her stab wounds flowed downward and between her breasts, Dr. Gross concluded that Mrs. Walker was standing when stabbed.

Dr. Gross found evidence of a second potential cause of death - strangulation accomplished by a person standing behind her. Mrs. Walker's hyoid bone was fractured, and there were petechial hemorrhages in her eyes. In addition, there were abrasions on the front and side but not the back of her neck; those abrasions were in the pattern of the necklaces she was wearing. The location of the pattern led Dr. Gross to conclude Mrs. Walker was strangled from behind.

In Dr. Gross's opinion, the strangulation and severance of the jugular vein were two "competing" and "virtually simultaneous" causes of Mrs. Walker's death, that would require action by "more than one individual." According to Dr. Gross, it would have been "virtually impossible" for one person to strangle and stab Mrs. Walker from behind, because she was five-feet and six-inches tall, weighed 225 pounds and had defensive wounds on her hands indicative of struggling. Thus, in his opinion, she was stabbed by a person standing in front of her and strangled from behind.

A forensic pathologist retained as a defense expert agreed that Mrs. Walker was strangled and stabbed. He concluded, however, that the medical evidence made it impossible to determine whether the cause of death was strangulation or the air embolism resulting from the severance of the jugular vein, which would have caused death within seconds. In his opinion, the medical evidence did not permit a determination as to whether more than one person killed her.

Both Dr. Gross and the defense expert considered whether the stabbing could have been done with a knife that Mrs. Walker's daughter identified as exactly like one her mother kept in her kitchen. While Dr. Gross could not be certain that this was the knife used, in his opinion that knife was consistent with Mrs. Walker's stab wounds. Defendant's expert fully agreed with those conclusions.

The police officers who gathered evidence from the crime scene found a cut in the screen of Mrs. Walker's kitchen window, which was located in the rear of her apartment, an area not monitored by surveillance cameras. The cut was in a spot that allowed access to the window's handle. They also found a ripped, bloody T-shirt on Mrs. Walker's bed and a palm print on her dresser.

The palm print was later identified as that of co-defendant Nevius, and Nevius's DNA was recovered from the bloody T-shirt left on Mrs. Walker's bed. The State's theory was that the T-shirt was used to strangle her. No physical evidence linking defendant or any person other than Nevius was found at the scene of the crime.

The knife identified by Mrs. Walker's daughter, however, was linked to defendant. It was given to the police on August 8, 2002, and found the day before by Jose Lopez, the maintenance manager of the Park Town apartment complex located adjacent to the Chestnut Square complex. Lopez found the knife in apartment 37A, which was vacant at the time of the murder and undergoing renovations. On July 30, Lopez cleared the kitchen cabinets inside and out and sprayed powdery boric acid on them to address a roach infestation. A week later, he found the knife, which was clean, on top of a cabinet in the kitchen. According to Lopez, vacant apartments were kept locked when he was not working in them and the keys were secured when not in use.

Defendant did community service in apartment 37A on the day Mrs. Walker was killed and on the day after her death. Gina Mave, Park Town's rental manager, kept records of defendant's hours and assignments to send to the courthouse. They reflected that defendant worked from 1:15 p.m. to 4:30 p.m. on July 30, cleaning and scraping paint in apartment 37A, and on July 31, sweeping floors and cleaning kitchen cabinets in that apartment. The knife was discovered after the police had charged defendant with the crime.

On the night Mrs. Walker was killed, officers interviewed her neighbors to gather any information they had. Defendant was on the porch leading to his apartment at the time, and Detective Louis Negron and Lieutenant Steve Cleveland both had conversations with him. Defendant told Detective Negron that:

he and his friend Tom were on the porch when Mrs. Walker got home; he thanked her for giving his mother mangos; Tom left; and defendant then went to his apartment and "hung out" with his stepfather and Damian Stratton on the patio in the rear. Defendant did not tell Detective Negron Tom's surname; he said Tom had not done anything wrong.

Defendant spoke to Lieutenant Cleveland later that night, and told him he knew Mrs. Walker. He agreed to speak to Lieutenant Cleveland at the police station and did at about 1:00 a.m. There, Lieutenant Cleveland asked him when he last saw Mrs. Walker. Defendant asked, "Do you mean the last time I saw her alive?" Defendant said he had seen Mrs. Walker between two and three o'clock in the afternoon and thanked her for the mangos. He did not answer when Lieutenant Cleveland asked if he saw Mrs. Walker after she died. Lieutenant Cleveland ended the interview, but he advised defendant that the police might speak to him again.

On July 31, while defendant was doing community service in apartment 37A of the Park Town complex, Detective Francine Webb visited him and arranged to pick him up and take him to the police station for an interview the next day, which she did. On August 1, she drove defendant and, at his request, a friend of his to the police station and gave them soda when they arrived.

Defendant was taken to an interview room at 1:45 p.m., and his friend stayed with Detective Webb for a few hours before leaving the station. At 1:45 a.m. on August 2, defendant agreed to give a formal statement. Throughout the interviews, defendant identified Tyrone Beals as the person who stabbed and strangled Mrs. Walker. Beals was never charged with the crime.

The advisements required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), were read to defendant three times during the twelve-hour period. Defendant signed forms acknowledging his understanding of the information conveyed at 1:55 and 4:53 p.m. on August 1 and at 1:45 a.m. on August 2.

In addition to signing the Miranda forms, at 5:50 p.m. on August 1, defendant signed another form acknowledging his consent to collection of his DNA by buccal swab and the taking of samples of his hair and material beneath his fingernails. That form advised defendant that he had a right to discontinue the collection process at any point, and defendant ended the procedure by asking the officer to stop before he had completed collecting hair samples.

While at the police department, defendant was given cigarettes and permitted to smoke them in the interview room and was allowed to use the bathroom upon request. In addition, Detective Steve O'Neill gave him sodas, pretzels and two hamburgers, and provided defendant with a newspaper when he asked for something to read. While defendant smoked, ate and read, he was left alone in the interview room. The last break lasted for about ninety minutes.

In a statement mailed to the prosecutor in April 2005 denying his guilt, defendant acknowledged that he was advised of and understood his Miranda rights, was given food and cigarettes during the interview, and agreed to the collection of physical evidence from his person. He also stated that the officer collecting samples stopped when he asked. His signature on that letter was authenticated by the social service director for the Cumberland County jail, who was a notary public and had notarized defendant's signature on documents on three separate occasions and looked at sixteen forms he completed requesting to use the jail's law library. She said the signature on the letter was "very similar" to defendant's signatures on documents that she had seen in the past.

None of the interviews were taped or video recorded, and at trial the officers testified to the questions asked and defendant's responses. Several officers questioned defendant at various times between 1:45 p.m. on August 1 and 1:45 a.m. on August 2. Detective O'Neill, who knew defendant from coaching at his high school, interviewed defendant first and conducted most of the interview. At about 4:50 p.m., Detective Thomas Martorano asked defendant three questions; he was with defendant for about fifteen minutes. Detective Negron questioned defendant for forty-five minutes starting at about 9:30 p.m. and ending when defendant called for Detective O'Neill at 10:15 p.m. Detective O'Neill returned, gave defendant a cigarette and left defendant to speak to Detective Negron at 10:20 p.m. He also spoke to the first assistant prosecutor about charging defendant and then charges were prepared.

At 11:50 p.m., Detective O'Neill returned to the interview room because defendant knocked on the window and motioned for him. Defendant asked Detective O'Neill what was going on, and the detective told defendant he was going to be charged with murder and weapons offenses and explained the charges. He also told defendant that he believed that he had been deceitful.

Upon hearing the new information, defendant said he was not going to go down for the crimes alone and went on to provide more details. In the presence of Detective Webb, defendant and Detective O'Neill talked until 1:45 a.m., when Detective O'Neill again administered Miranda warnings and asked defendant to give a taped statement.

Defendant agreed to give a written, but not a recorded, statement. Mentioning his difficulty with writing, defendant asked Detective O'Neill to write down what he said. Detective O'Neill complied. Defendant read the completed statement and made changes to it before signing. On the bottom of the document defendant wrote, "I told Detective O'Neill to write for me. This is all true statements." This written statement was read at trial and admitted into evidence.

In that statement, defendant said that on July 30 he and Beals smoked marijuana in Beals' apartment and later walked toward his apartment with Damian Stratton. As they passed Mrs. Walker's kitchen window, which was in the rear of her apartment, they noticed that the apartment was dark. Beals tried to get defendant to break in, but defendant did not want to. Beals was cutting the screen with a Swiss knife, but Mrs. Walker saw him and they left. Later, Beals came to defendant and told him they were going to "hit" the apartment. Defendant said he would not do it, but Beals told him he would tell the police that defendant did it anyway.

Defendant and Beals then went to Mrs. Walker's front door and used a flat-head screwdriver to get in. He and Beals went inside and to her bedroom, which is in front of the apartment. Beals asked defendant to be the lookout, and defendant saw Mrs. Walker drive up. He left to go to his apartment, but he met Mrs. Walker outside and thanked her for the mangos.

Defendant then went to the rear of her apartment. When he heard Mrs. Walker screaming, defendant went home and returned with a butter knife. He then jimmied the back door and entered. When Mrs. Walker saw defendant, Beals grabbed a knife from a block next to the refrigerator. Defendant slapped the knife from Beals' hand and tried to get him to leave, but Beals gave defendant a "rib shot," picked up the knife and went to the bedroom. Mrs. Walker followed.

In the bedroom and standing face to face with Mrs. Walker, Beals stabbed her. Using a shirt hanging from his belt to gag her, Beals then stood behind Mrs. Walker and put it around her neck. She tried to get it off, but eventually stopped fighting and fell to the floor. Beals told defendant to take the shirt off her neck, and Beals then used it to clean the knife. They turned out the lights and left when Mrs. Walker stopped breathing. The next day Beals asked defendant if he had said anything and told defendant that he would get someone to stab or shoot him if he did.

During the course of the interviews that preceded his written statement summarized above, defendant said things that were not included in that statement. When Detective O'Neill first asked defendant what he thought happened to Mrs. Walker, defendant told him that he had heard she had been "shanked" with a "knife" and that someone had tried to break in the night before through the kitchen window but abandoned the effort when Mrs. Walker saw them. Defendant also said that the only thing he knew about what happened was that Mrs. Walker "put up a hell of a fight and the table even got broke." In addition, when speaking to Detective Negron at the station, defendant said Beals had run along the side of the apartment building, but he told Detective Negron that he would not "see [that] on the camera because it only covers the parking lot on the street."

In recounting his conversations with defendant, Detective O'Neill recalled urging defendant to tell the truth several times. Detective O'Neill also said that defendant asked if a yellow light that appeared on his hand during a test for contact with metal, to which defendant had consented, meant that he had DNA on him. Although Detective O'Neill knew it did not, he said, "Could be . . . ." At that point, defendant "raised his hand in the air, pulled back his chair" and said "Jesus Christ." He then put his hands over his head. Detective O'Neill told him it was time to start telling the truth, and defendant leaned back in his chair and asked to use the bathroom. Detective O'Neill agreed and also gave defendant a cigarette and a ten-to-fifteen-minute break.

In addition to the officers' testimony about his statements and defendant's written statement, the State presented a document providing a narrative of the crime purportedly written by defendant in 2005 while he was confined pending trial. A fellow inmate, Barrick Wesley, sent that narrative to the prosecutor. At trial, Wesley testified that defendant confided in him. After defendant gave him several differing accounts of the incident, Wesley told defendant to write his account down. In that written narrative, defendant implicated Beals and Nevius. When Wesley received defendant's narrative, he sent it to the prosecutor, with a notation from Wesley indicating that defendant wanted him to read the narrative to see if it sounded true.

According to Wesley, when defendant gave him the written narrative he told Wesley that what he had written was true except for the fact that he had switched the names of the actors. Defendant explained that he had actually done the things he attributed to Nevius in the narrative - i.e., that defendant pushed his way into Mrs. Walker's apartment, took a knife from her when she charged him with it, put the knife to her throat and took her to the bedroom, scuffled with her there, fell on and broke the table, continued the struggle and knocked down the closet door, stabbed Mrs. Walker repeatedly, and then left the knife in apartment 37A in the Park Town complex. Wesley further testified that defendant told him that Nevius had done the things defendant had attributed to Beals in the narrative - i.e., that Nevius tied the shirt around his hands and strangled Mrs. Walker. In addition, defendant told him that he had cleaned the knife with bleach before putting it in apartment 37A, a fact not included in the narrative.

During his trial testimony, Wesley, who was facing a possible life sentence on a pending carjacking charge, admitted that he sent defendant's narrative to the prosecutor, rather than destroying it as he had promised defendant he would, in order to "save himself." He also acknowledged that the State offered him a plea bargain for a term of ten years that was conditioned on his providing truthful testimony at defendant's trial, and he admitted that he had previously received favorable sentences based on testimony he had given against others.

Defendant presented expert testimony about his mental capacity from a clinical psychologist and a psychiatrist. Following a hearing on the admissibility of their testimony, the court permitted those experts to testify and state their opinions on the reliability of the statements but precluded them from testifying about defendant's capacity to knowingly and voluntarily waive his rights. Four months later and just prior to jury selection on May 9, 2007, the judge denied defendant's motion to re-open the hearing on his motion to suppress the statements he made at the police station on August 1 and 2, 2002.

The clinical psychologist administered and interpreted tests and reviewed defendant's medical and educational records. He diagnosed defendant as suffering from ADHD, mild mental retardation and a schizotypical personality disorder, and he concluded that as a consequence of these multiple deficits, defendant himself "could not tell which of his many statements are what he means." In the psychologist's opinion, those statements were not reliable; some of them might be true and others might be false. The psychologist also concluded that because of defendant's mixture of deficits, he was not competent to waive his Miranda rights. The trial court, however, barred the psychologist from stating that opinion during his testimony at trial.

The psychiatrist agreed with the psychologist that defendant was properly diagnosed with mental retardation, ADHD and schizotypical personality disorder. In addition, the psychiatrist concluded that defendant was drug dependent as an adult, had an impulse control disorder with explosive episodes, brief episodes of psychosis and post-traumatic stress disorder resulting from his dysfunctional home life. He had been sexually abused, and his brother was killed by a parent. In the psychiatrist's opinion, defendant's statements to the police were the product of fantasy, fear, suggestibility and fatigue and were not reliable.

Like the psychologist, the psychiatrist believed that defendant could not understand his Miranda rights or the consequences of speaking to the police. The judge, however, did not permit him to present that testimony to the jury.

A library assistant from the Vineland Public Library and the prison's Social Service Director, who oversees the library and religious programs, presented rebuttal testimony for the State. They both described the frequency and duration of defendant's visits to their facilities. During those visits, defendant used the computer for an hour or more at a time.

I

Defendant argues that the trial court erred by denying his motion to suppress his statements on the ground that he did not knowingly and voluntarily waive his Miranda rights. In a related argument, he contends that the court erred by refusing to re-open the Miranda hearing to permit the experts to testify about defendant's capacity to knowingly and voluntarily waive his right to remain silent. On these points, we affirm substantially for the reasons stated by the judge in his oral opinion on the suppression motion delivered on February 17, 2006, his oral opinion on the motion to re-open delivered on May 9, 2007, and for the additional reasons set forth below.

Defendant challenges the admission of the statements he made during the interviews conducted between 1:55 p.m. on August 1, 2002 and 1:45 a.m. on August 2, 2002. To admit a statement obtained during custodial interrogation in its case in chief, the prosecution must demonstrate that the defendant was informed in accordance with Miranda and knowingly, voluntarily, and intelligently waived his right. 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726; State v. O'Neill, 193 N.J. 148, 168 (2007). Under the law of this State, proof beyond a reasonable doubt is required. State v. A.G.D., 178 N.J. 56, 67 (2003).

In determining whether the waiver was knowing, voluntary and intelligent, the trial judge must consider the totality of the pertinent circumstances, including "the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved." State v. Miller, 76 N.J. 392, 402 (1978); see State v. Presha, 163 N.J. 304, 313 (2000) (reiterating and reaffirming the Miller factors as germane to the admissibility of a confession).

Defendant does not, and indeed on this record could not, claim legal error in the court's decision. The judge carefully set forth and applied the controlling legal principles.

Defendant's argument is that the totality of the circumstances did not support the judge's finding that defendant's waiver of his rights at the challenged interview session was knowing and voluntary. But in reviewing a motion to suppress, this court must accept the judge's findings so long as they are supported by sufficient credible evidence. State v. Gandhi, 201 N.J. 161, 200 (2010) (review of suppression of statements); State v. Elders, 192 N.J. 224, 243-44 (2007) (review of suppression of physical evidence). In addition, we must recognize that a judge hearing a motion to suppress is "entitled to draw inferences from the evidence and make factual findings based on his 'feel of the case,' and those findings [are] entitled to deference unless they [are] 'clearly mistaken' or 'so wide of the mark' that the interests of justice required appellate intervention." Elders, supra, 192 N.J. at 245 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).

The judge's factual findings include a detailed chronological account of the interview, breaks, serial readings of Miranda advisements and of defendant's condition and reaction during the interview. Those findings can be summarized as follows: Defendant was read the Miranda advisements at the outset of the interview and at two other points during the twelve hours he spent at the police station; defendant acknowledged his understanding and signed forms confirming his understanding on each occasion; defendant was in an interrogation room and not confined; he agreed to the collection of evidence from his person, and the police honored his request to end the procedures; and he agreed to have Detective O'Neill write a verbatim statement, which defendant read, edited and initialed each paragraph.

Based on the police reports presented at the suppression hearing but not at trial, the judge also found that defendant had prior contacts with the police and had received Miranda warnings on September 2, 1998, March 29 and June 3, 1999, and March 2, 2002. The judge considered those prior encounters only for their relevance to show that defendant had some familiarity with Miranda warnings prior to this interview. The judge also considered the implications of defendant's hesitancy to write a statement and request that Detective O'Neill write it for him.

The judge concluded:

In looking to the facts as I find them and comparing that to the law which I reviewed before I started, I would suggest that my review of the totality of the circumstances surrounding this interrogation causes me to find that Mr. Boston waived his Miranda [r]ights and volunteered to make the statement he did freely, voluntarily, and without coercion. I find the [S]tate has proven that beyond a reasonable doubt.

I would suggest that . . . Mr. Boston is young compared to me. He hasn't reached middle age yet, but he is not a juvenile. His education is in the range of high school. But when you look to his education, intelligence, I think it's clear from the testimony given by Detective O'Neill, and also when you look to [the written statement], that Mr. Boston is not a PhD, that he perhaps doesn't spell as well as other folks, and that he was concerned about not being able to write out a statement. However, I do not find that his intelligen[ce] level was such that he did not understand what he was doing on the night in question.

He's Mirandized multiple times. And I would suggest that the officers' testimony, and I believe that would be Detective O'Neill and Detective [Martorano], with regards to the warnings that were given to Mr. Boston, his understanding, his response to them is credible.

Defense suggests that perhaps the waiver would be more credible had it been recorded or had it been written. And I agree that the [S]tate's proof would be easier if that was the case. However, I would suggest that the testimony from the officers, particularly Detective O'Neill, is credible and shows a continuing effort to ensure that Mr. Boston understood what was going on and was willing - and that the officers didn't proceed where he didn't want to.

And I again suggest that this is exhibited, or evidenced by the fact that the police stopped taking exemplars when Mr. Boston asked them to, after he had already signed a waiver consenting to it. As soon as he said he didn't want to go any further, they stopped.

This is a fairly lengthy detention. I agree with the [S]tate. As I understand the case law, that should cause me to look at the statement with a, quote, jaundice eye, close quote.

One of the key elements the [c]court should look at to determine whether there has been coercion is the length of time the defendant is held. And this was a long period of time.

However, I would suggest that the investigation was unfolding. Whenever Mr. Boston asked for a break, he was given it. Whenever he asked for something, such as a cigarette or a newspaper or something to eat or something to drink, it was provided to him. He was re-Mirandized through the process to make sure he understood that he had the right to stop the process at any time.

And I would suggest that although this detention was somewhat long, there is nothing in the record to suggest that it was coercive in any way. There is no suggestion that there was any physical punishment or mental exhaustion, that is, that they wore Mr. Boston down. That just doesn't jump out in the testimony of the officers or any of the documents that I have.

[Defense counsel] mentions the trickery. And there was some trickery used at one point which caused Mr. Boston to become upset. And that is when he was led to believe that the trace-metal test could disclose DNA. Detective O'Neill admitted on the stand that it cannot. However, I do not find that statement, or that bit of trickery, to run afoul of the case law as I understand it.

It would have been inappropriate for Detective O'Neill, for example, to tell Mr. Boston that they had his DNA and they had already determined that they had it, when they did not. It is permissible for some trickery to be used by law enforcement in eliciting statements. It is not permitted for the [S]tate, that is, law enforcement, to mislead a defendant as to proofs or evidence that it already has in its possession when it does not have it. I find that that did not occur here.

Accordingly, when I look to the total encounter, I find that it's broken into two parts. The earlier part, July 30, I find that there is no proof at all or no suggestion that Mr. Boston was a suspect at any time when he first spoke with Lieutenant Cleveland in the late hours of the 30th of July, the early morning hours of the 31st. The first contact by Detective Webb on the 31st, there is really nothing that came out of it. So I don't think I really need to address it.

I find that he is a suspect when he gets the station on August 1. But he's immediately Mirandized. So he's aware within minutes of arriving at the station that he is a suspect, that he is a person of interest. And he is Mirandized at that point.

He is Mirandized repeatedly. He is permitted to have breaks. And I'm not going to repeat everything I just placed on the record, but I find that the [S]tate has proven beyond a reasonable doubt that he waived his right to remain silent, his Miranda [r]ights, and he voluntary made the statement . . . for purposes of this hearing. Accordingly, I deny the defense's motion to suppress Mr. Boston's statement.

There is no basis for this court to disturb the foregoing determinations. The underlying factual findings are supported by the record, and there is no evidence of any threat, coercion, promises, or oppressive conditions or atmosphere with the potential of overbearing defendant's will or incapacity that the judge overlooked. The shifts and inconsistencies in defendant's various accounts reflect his directed, albeit unsuccessful, effort to deny and later minimize his role in this horrific crime. Moreover, his invocation of the right to discontinue collection of evidence from his person indicates that defendant did understand his rights and had the capacity to assert them.

Defendant also argues that the judge "effectively countenanced the admission of an involuntary confession" when he denied defendant's eleventh-hour application to re-open the Miranda hearing. In denying that motion, the judge set forth the history of the litigation that led him to deny the request to re-open the Miranda hearing. The judge's recitation is summarized in the next three paragraphs.

By September 4, 2003, defendant had an expert report from a doctor who did not testify at trial. That doctor had concluded that defendant "did not possess the capacity to waive" his Miranda rights. Nevertheless, the brief filed in support of defendant's suppression motion on May 6, 2005 did not mention that report, and defendant did not call that doctor to testify at the suppression hearing held on September 30, 2005 and February 17, 2006.

By November 13, 2006, defendant had reports from both experts who testified at trial, but the defense did not mention the need for expert testimony on defendant's capacity in the pre-trial memorandum it filed on January 16, 2007. The only issue raised concerning those experts was the State's objection to their testifying at trial. And, at the pre-trial conference, the defense indicated that it was not seeking to re-open the Miranda issue.

The defense brief submitted in February 2007 opposing the State's motion to bar trial testimony did not mention re-opening the Miranda hearing. Defendant did not raise the issue until oral argument on May 4, 2007 after testimony had been taken on the hearing to determine whether the defense experts could testify at trial. During argument on the application, defense counsel indicated that he had decided to raise the Miranda issue after the testimonial hearing.

Considering those facts, the judge, in our view properly, determined that the evidence could not be considered newly discovered. He concluded: "The defense should not be permitted to raise this issue well-known to it for a substantial period of time at this late date."

In State v. Elkwisni, 384 N.J. Super. 351, 360 n.3 (App. Div. 2006), aff'd, 190 N.J. 169 (2007), this court discussed the importance of pre-trial determinations of suppression motions and the potential for prejudice when those determinations are not made in advance of trial. Indeed, Rule 3:9-1d directs the completion of motions to suppress the defendant's statements prior to the pre-trial conference.

It is clear that judges have broad discretion over the conduct of proceedings over which they preside, Italian Fisherman, Inc. v. Commercial Union Assurance Co., 215 N.J. Super. 278, 286 (App. Div.), certif. denied, 107 N.J. 152 (1987). And, we find no abuse of that discretion here. While the defense acquired expert opinion on defendant's capacity to waive his rights, which it deemed persuasive, after the Miranda hearing, that did not explain the delay from that date until the eve of trial that had the obvious potential to prejudice the State's case.

Even if we were to conclude that the judge should have reopened the record of the suppression motion, the error would not warrant reversal of defendant's conviction because it was not "clearly capable of producing an unjust result." R. 2:10-2. The record demonstrates that the expert testimony would not have changed the judge's decision. At the time of sentencing, the judge stated that he did not find the testimony of the defense experts credible. He explained:

Frankly, with Dr. Siegert, I find that he "cherry-picked," and I'll put that in quotes. And, what I mean by that is if one of the other reports from other doctors supported his position, he adopted it. If it disagreed with it at all, even in the slightest, he took the position that the other professional either didn't know what he or she was doing, made a mistake, or didn't properly administer a test. While some of what Dr. Siegert opined may have been accurate, it is impossible to tell because of the complete insistence that no one but him could be right.

With regard to Dr. Latimer, frankly, he seemed to just parrot what Dr. Siegert said. And, he did not appear, in the testimony that I heard, to independently evaluate anything.

II

Defendant contends that the court deprived him of his right to present a complete defense by precluding his experts from testifying at trial about the impact that the multiple deficits identified by his experts had on his capacity to knowingly and voluntarily waive his Miranda rights.

This argument is based on a misunderstanding of the law. There is no question that defendants have a constitutional right to present a complete defense, including "competent, reliable evidence bearing on the credibility of a confession." Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2147, 90 L. Ed. 2d 636, 645 (1986). In short, defendant was entitled to present evidence to cast doubt on the credibility of his statements.

Id. at 689, 106 S. Ct. at 2146, 90 L. Ed. 2d at 644; see State v. King, 387 N.J. Super. 522, 538-39, 550 (App. Div. 2006) (concluding a defendant may present expert testimony about his psychological characteristics relevant to the reliability of his statements). But defendant was permitted to present all of the relevant evidence he offered on that point.

Defendant was barred from presenting testimony relevant to waiver of his Miranda rights. As the Supreme Court made clear in State v. Hampton, 61 N.J. 250, 272 (1972), the truthfulness of defendant's confession is a question for the jury, but the waiver of Miranda rights is a matter for the court to decide. Accordingly, the judge properly excluded expert testimony on those issues.

III

Defendant also contends that the judge abused his discretion by improperly restricting his right to cross-examine the witnesses against him. Prior to trial, the judge informed the attorneys that he would require them to make a showing that re-cross was appropriate before asking any questions. The judge explained that he would permit re-cross if "something new" came up on re-direct.

While we question why a general rule of this sort would be imposed before a judge had any indication that it was necessary to "make the interrogation and presentation effective for the ascertainment of the truth" or to avoid "needless consumption of time," judges have broad authority to control the scope of cross-examination. N.J.R.E. 611(a); State v. Messino, 378 N.J. Super. 559, 582-83 (App. Div.), certif. denied, 185 N.J. 297 (2005). Generally, cross-examination is limited to the scope of direct. N.J.R.E. 611(b). A standard that limits re-cross to new matters raised on re-direct obviously can be applied in a manner that is consistent with N.J.R.E. 611(a) and a criminal defendant's right to effectively cross-examine a witness.

Defendant's statement of facts refers us to five passages in the trial transcript, but he presents no argument discussing how the judge's determinations improperly limited his cross-examination. We have considered the five passages defendant references and found no improper limitation. In the first instance, as far as we can discern, defense counsel re-crossed on all of the areas he sought to cover. In the second instance, defense counsel made no proffer, and the judge explained that he was denying the request because defense counsel had restricted the witness from fully answering a question on cross and the prosecutor limited the re-direct to eliciting the complete response. In the third instance, defense counsel advised the judge that the prosecutor's re-direct expanded the scope of cross-examination but did not identify how. Indeed, when the judge asked defendant to identify the expansion, defense counsel told the judge that he had heard the testimony. In the fourth passage, the judge permitted the re-cross. The fifth and final passage includes nothing other than defense counsel's argument for the court to impose a parallel restriction on re-direct rather than requiring defense counsel to object to questions beyond the scope of cross.

Finding no abuse of the judge's discretion in any of the foregoing determinations or any improper limitation of defendant's right to cross-examination, we conclude that defendant has failed to show that he was deprived of that right or otherwise prejudiced by the judge's discretionary rulings.

IV

Defendant also seeks reversal of his conviction on the ground that the judge did not preclude the rental manager for Park Town from testifying that defendant was working in apartment 37A, where the knife was found, because he was "performing community service" and that she kept records of his attendance to send to the courthouse. We agree that this portion of the testimony should have been precluded.

Because the reference to community service under the supervision of the court had the capacity to suggest that defendant must have done something wrong in the past, it was subject to exclusion pursuant to N.J.R.E. 404(b). That rule is designed to limit the admission of evidence of prior bad acts that is capable of leading a jury to convict the defendant "because he is 'a "bad" person in general.'" State v. Cofield, 127 N.J. 328, 336 (1992) (quoting State v. Gibbons, 105 N.J. 67, 77 (1987)). Pursuant to N.J.R.E. 404(b), such evidence is admissible only for other purposes, such as proof, motive, intent or opportunity, when "relevant to a material issue in dispute."

While defendant's access to the apartment where the knife was found tended to show that he had an opportunity to place it there, his participation in community service added nothing probative. The only relevance of that information was to suggest that defendant had done something wrong. Accordingly, the court should have required the witness to omit this unnecessary and prejudicial portion of the testimony. State v. Gillispie, 208 N.J. 59, 92 (2011).

We cannot conclude, however, that the admission of this testimony warrants reversal of defendant's conviction. The judge gave the jurors the following limiting instruction when the testimony was given and again in his final charge to the jury:

Ladies and gentlemen, at this point I'm going to give you what we call a limiting instruction. And, a limiting instruction . . . is exactly what the word 'limiting' means. It's me telling you that . . . the use of certain evidence is restricted and you can only use it for certain purposes; okay? And, what I'm referring to is the testimony that you have heard that Mr. Boston was on community service in July of 2002. . . . [T]he State has introduced evidence that Mr. Boston was at apartment 37A, Park Town Apartments, on July 30 and 31, 2002, performing community service. This evidence is being offered to attempt to convince you that Mr. Boston was at that location at a time in close proximity to when the knife, which is S9 in evidence, was found.

Whether this evidence does, in fact, demonstrate that fact, is for you to decide. You may decide that the evidence does not demonstrate that fact and is not helpful to you at all. In that case, you must disregard the evidence. On the other hand, you may decide that the evidence does demonstrate that fact and use it for that specific purpose.

Citizens perform community service of [sic] a variety of reasons. You should not speculate why Mr. Boston performed it. I have admitted the evidence only to help you decide the specific question of whether Mr. Boston was in apartment 37A on July 30 and 31, 2002. You may not consider it for any other purpose.

Viewed in light of this instruction, the testimony was not "clearly capable of producing an unjust result." R. 2:10-2. The testimony was brief, and the judge limited the potential prejudice by indicating that there are a variety of reasons for doing community service. More importantly, the instruction clearly directed the jurors that they could consider the evidence only for the purpose of determining whether defendant was in the apartment and not for any other reason. In the absence of evidence to the contrary, we assume that jurors follow such clear directions from the court. State v. Burns, 192 N.J. 312, 335 (2007).

V

Defendant argues that he was denied due process when the judge did not give the jurors a special instruction directing caution in considering the statements because the police did not record them. He correctly acknowledges that he was not entitled to such a special cautionary instruction pursuant to Rule 3:17. That Rule would have required an instruction if it had been in effect when defendant's statements were made. See R. 3:17(a), (e). The note accompanying the Rule states that it is effective "in respect of all homicide offenses as of January 1, 2006, and as of January 1, 2007, in respect of the other offenses specified in paragraph (a) of the Rule." It was not in effect in 2002 when defendant was interviewed. Here, the judge gave the jurors all of the direction that was required - to treat his statements with caution, State v. Kociolek, 23 N.J. 400, 421 (1957), and evaluate their trustworthiness in light of the circumstances in which they were made, Hampton, supra, 61 N.J. at 272.

Defendant's reliance on the due process clause is misplaced. In the decision that led to the adoption of Rule 3:17, the Court expressly declined to rest its decision on constitutional grounds and expressly held that the due process clause was not implicated by a failure to record a defendant's statement. State v. Cook, 179 N.J. 533, 559-60 (2004).

VI

The denial of defendant's motion for a mistrial based on the prosecutor's use of peremptory challenges is affirmed substantially for the reasons stated by the judge in his oral opinion of May 2, 2007.

VII

The arguments defendant presents in Point VII lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

VIII

Defendant presents only one argument in support of his claim that his sentence is excessive. He submits that the aggravating factors the judge found do not support a sentence longer than the minimum term for murder. We disagree.

The judge found three aggravating factors, those set forth in N.J.S.A. 2C:44-1a(3), (6) and (9), based on defendant's fifteen contacts with the juvenile and criminal justice systems between 1991 and 2004, which included two diversions from the juvenile justice system, three convictions as an adult for disorderly persons offenses, and a 1999 conviction for possession of weapon for an unlawful purpose. Noting the increasing seriousness of defendant's unlawful conduct, the judge assigned "full weight" to the aggravating factors based on the risk that defendant would commit another crime, N.J.S.A. 2C:44-1a(3), and the need to deter him, N.J.S.A. 2C:44-1a(9). Considering the seriousness of defendant's single conviction for a crime, he determined that defendant's criminal record was an aggravating factor, N.J.S.A. 2C:44-1a(6), but assigned it only "some" weight.

The judge also considered the mitigating factors. Based on defendant's learning disability, the judge found it tended to excuse defendant's behavior, N.J.S.A. 2C:44-1b(4). But the judge assigned that mitigating factor only "minor weight," because he found "no credibility in the testimony of" defendant's experts. The judge also explained why he discredited that testimony; his explanation is quoted in section I of this opinion. Finally, the judge considered the mitigating factor based on hardship to the defendant that is set forth in N.J.S.A. 2C:44-1b(11), but he concluded that it did not apply because there was nothing in the record that showed defendant would endure a hardship beyond that inherent in every sentence of imprisonment.

In balancing those factors, the judge concluded that neither the life sentence sought by the State nor the minimum sentence sought by defendant was appropriate. This sentence of fifty-five years is twenty-five years longer than the mandatory minimum term, but it is only two-and-one-half years longer than the midpoint between that minimum sentence and seventy-five years, which is the duration of a life sentence that the Legislature has assigned for purposes of calculating the term of NERA parole ineligibility for murder, N.J.S.A. 2C:43-7.2b. It is worth noting that defendant's sentence is ten years shorter than that of his co-defendant, which we have affirmed.

Contrary to defendant's claim, the factual findings underlying the judge's selection and his balancing of aggravating and mitigating factors "are supported by competent credible evidence in the record." State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). In addition, the judge met his obligation to explain the sentence as required by Rule 3:21-4(g) and adhered to the Code's sentencing scheme as construed by the case law. State v. Bieniek, 200 N.J. 601, 608 (2010); Cassady, supra, 198 N.J. at 180. Consequently, our review is limited. Cassady, supra, 198 N.J. at 180-82. Because the judge did not abuse his sentencing discretion and the sentence is not shocking to the judicial conscience, there is no reason to disturb it.

Affirmed.


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