October 15, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MELVIN JOVEL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-2688.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 12, 2012
Before Judges Axelrad and Sapp-Peterson.
Defendant Melvin Jovel, one of the defendants involved in the Newark schoolyard execution of three teenagers and the shooting of a fourth victim on August 4, 2007, challenges denial of his motion to suppress a post-arrest statement based on his purported inability to understand English sufficiently to make a knowing and intelligent waiver of his Miranda*fn1 rights. He also challenges as excessive the sentence imposing three consecutive life sentences following his guilty plea. We affirm.
On September 12, 2008, Essex County Indictment 08-09-2688 charged
defendant and five co-defendants with second-degree conspiracy to
commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one);
first-degree robbery of Terrance Aeriel, Natasha Aeriel,*fn2
Dashon Harvey, and Iofemi Hightower, N.J.S.A. 2C:15-1 (counts
two, three, four, and five); first-degree felony murder of Terrance,
Harvey, and Hightower, N.J.S.A. 2C:11-3(a)(3) (counts six, seven, and
eight); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:11-3(a)(l) and
(2) (count nine); purposeful or knowing murder of Terrance, Harvey, and Hightower, N.J.S.A. 2C:11-3(a)(l) and (2) (counts ten, eleven, and twelve); first-degree attempted murder of Natasha, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(l) and (2) (count thirteen); third-degree possessing a gun without a permit to carry, N.J.S.A. 2C:39-5b (count fourteen); second-degree possessing a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count fifteen); fourth-degree unlawful possessing a machete, N.J.S.A. 2C:39-5d (count sixteen); and third-degree possessing a machete for an unlawful purpose, N.J.S.A. 2C:39-4d (count seventeen).
Miranda hearings were conducted over four days. On January 6, 2010, Judge Michael L. Ravin issued an order and written opinion denying defendant's motion to suppress the recorded statement he made to police following his arrest.
On September 21, 2010, defendant appeared before Judge Ravin and, pursuant to a plea agreement, entered guilty pleas to murdering Terrance, Harvey, and Hightower, attempting to murder Natasha, and possessing the .357 magnum handgun used in these crimes without a permit and for an unlawful purpose (counts ten, eleven, twelve, thirteen, fourteen, and fifteen). The State agreed to dismiss the remaining counts and to make no sentence recommendations. Defendant reserved his right to appeal the order denying his suppression motion.
With the assistance of an interpreter, defendant testified that the crimes took place at the Mount Vernon School in Newark. Two young men and two young women arrived at the school by car. Defendant was sitting on the bleachers, in possession of a gun for which he had no permit. Defendant forced three of the four victims down onto the lowest level of the schoolyard at gunpoint. He then fatally shot each of them in the head once, after which he went upstairs to where the other woman was located and shot her once in the face. Defendant's expressed purpose in shooting the four people in the head was to kill them. Defendant then left the schoolyard.
On November 4, 2010, Judge Ravin sentenced defendant to a term of life imprisonment on count ten (murder of Terrance), subject to the 85% parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the Graves Act parole disqualifer, and a discretionary parole bar of thirty-seven and one-half years, with identical sentences on count eleven (murder of Harvey) and count twelve (murder of Hightower), each to be served consecutively. A consecutive term of twenty years, subject to the NERA and Graves Act parole disqualifiers and a ten year discretionary parole bar was imposed on defendant's conviction for attempted murder on count thirteen. A concurrent five-year term with a two and one-half year parole disqualifier was imposed on count fourteen, and count fifteen was merged with the murder convictions. DNA testing was ordered, and appropriate fees, fines and penalties were also imposed. This appeal ensued.
On appeal, defendant argues the State did not prove beyond a reasonable doubt that his ability to understand English was sufficient for him to make a knowing and intelligent waiver of his Miranda rights in English. He does not challenge the police tactics as coercive. He generally challenges the court's credibility assessments and factual findings regarding the officers and the experts. Defendant also challenges his consecutive sentence as excessive, urging that the crimes were not independent of each other and represent a single period of aberrant behavior.
Based on our review of the record and applicable law, we are not persuaded by either of defendant's arguments. We affirm the order denying defendant's suppression motion for the reasons set forth in Judge Ravin's comprehensive written opinion. The judge performed a thorough factual and legal analysis of the testimony and evidence presented at the Miranda hearing, and made express credibility assessments in favor of the investigating officer, Detective Kevin Green, and the State's forensic psychologist, Dr. Ernesto Perdomo, with detailed explanations and references to the record.
Defendant does not point to any factual errors by the judge. The judge found Detective Green, a nineteen-year veteran, to be "forthright, candid and honest" based on his demeanor and tone. Defendant spoke English from the moment Detective Green and the other officers encountered and arrested him in his bedroom based on a co-defendant's statement, asking, "what's this all about?" The detective then advised defendant of his Miranda rights and, in English, he said he understood them.
The entire interview at headquarters was conducted in English. At no time did defendant speak to Detective Green in Spanish or request an interpreter, and defendant and the detective had no difficulty communicating in English. Although the judge noted concern that the detective had a conversation with defendant regarding his willingness to give a statement before the audio recorder was activated, he found that defendant said nothing incriminating at that time and did not contest the voluntariness of the waiver. Defendant instead claimed the waiver was not informed, relying on expert evidence to attempt to prove his claim. The judge also noted details that the detective did not recall, but found them to be minor and to not detract from his overall assessment of the detective's testimony as credible.
The balance of the interview was recorded on a digital machine, as a video recorder was unavailable. Detective Green related that defendant "spoke English very clearly." Defendant gave a description of the incident and the victims. He also generally described his relationships with the co-defendants and identified photographs of two of them.
Dr. Atkins conducted several interviews of defendant in English. He testified that defendant related he came to the United States from Honduras at age eleven and, at the time of his arrest, he would have started his senior year in high school. He also consulted with Dr. Frank Dyer, who administered some tests of defendant in Spanish. Among other tests Dr. Atkins administered in English, he performed the Grisso test, a "very structured assessment instrument that deals with the understanding and appreciation of Miranda rights." He was surprised by the findings as they demonstrated to him, contrary to his initial assessment of defendant, that he was, in fact, capable of "a knowing and intelligent waiver" of his rights when administered in English. He shared his opinion with defense counsel, who then met with defendant. Dr. Atkins related that defendant told him he learned the answers to those types of questions in jail prior to Dr. Atkins' evaluation. Dr. Atkins then met with defendant a third time. Given the "full picture," the defense expert was "unable to conclude with any degree of psychological certainty that [defendant] was able to make a knowing and intelligent waiver of his Miranda rights when he was questioned and gave a statement at the time of his arrest in August of 2007." Upon questioning from Judge Ravin, Dr. Atkins confirmed he was "unable to conclude with any degree of psychological certainty that [defendant] was able" to make a knowing and intelligent waiver.
The State's expert, whose native language is Spanish, testified about performing a comprehensive psychological and psychiatric examination of defendant in his counsel's presence. Defendant's performance on several of the tests revealed he was of low-average intelligence. Dr. Perdomo related that when he interviewed defendant in English about his Miranda rights, he had no difficulty communicating with defendant, and defendant had the "intelligence ability" and "English skills" to understand what the warnings meant. The expert opined that within a reasonable degree of psychological certainty, defendant was capable of a knowing and intelligent waiver of his rights upon his arrest.
Judge Ravin responded to defendant's challenges to the testimony of the State's expert in painstaking detail. He agreed that Dr. Atkins had "more impressive credentials" but found Dr. Perdomo's "conclusions are worthy of consideration" based on his curriculum vitae and the "sense that he made." He found Dr. Perdomo thoroughly reviewed all the relevant evidence prior to his evaluation of defendant, performed appropriate tests, and asked defendant insightful probing questions. The judge also found it understandable that Dr. Perdomo first spoke with defendant in Spanish to establish a rapport, then discussed defendant's knowledge of the warnings with him in English. Judge Ravin further found significant that Dr. Atkins was unable to conclude whether defendant "was or was not able to make a knowing and intelligent waiver of his [Miranda] rights."
Moreover, as noted by the judge, during his interview with the police, defendant correctly used words and phrases such as "humiliate," "paying attention," "actually," "upper level," and "discriminating." Judge Ravin reasoned that "[c]ommon sense would seem to dictate that if [defendant] understood English sufficiently to comprehend those concepts, he could understand the concepts expressed in the Miranda warnings." He concluded:
In the end, it was the interview of Defendant as captured on the CD and its accompanying waiver signed by Defendant that resoundingly dispel any evidential doubt. At no point in the interview did Defendant  tell the detectives he did not understand the substantial meaning of his Miranda rights. No one prevented him from telling the detectives he did not understand his rights. The reverse is true. He expressly indicated he understood them and expressly indicated he wanted to waive them. In fact, he exhibited no reluctance or hesitation in speaking with them, since the information he alleges was the product of an unknowing waiver was largely exculpatory.
The Court concludes the State has proven beyond a reasonable doubt that the Miranda requirements were met and the requisite warnings given. The Court further finds the State has proven beyond a reasonable doubt that the Defendant knowingly and intelligently waived each and every one of these rights before making any statements during the custodial interrogation and that the [defendant] neither invoked nor attempted to invoke any of those rights thereafter. The Court also finds beyond a reasonable doubt based on the totality of the circumstances that the statements made by Defendant were voluntary.
The jury shall make the ultimate decision as to the credibility of the statements. [(Internal citation omitted).]
We defer to Judge Ravin's findings as to the admissibility of defendant's statement as amply supported by sufficient credible evidence in the record. See State v. Knight, 183 N.J. 449, 468 (2005); State v. Locurto, 157 N.J. 463, 471 (l999). The trial judge was well within his right to give greater credence to the State's, rather than the defense's, forensic psychologist and supported this decision with a sound analysis. See State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004) (holding that when a judge is confronted with divergent opinions from expert witnesses, the judge must use common sense and ordinary experience to accept or reject those opinions in light of all of the evidence on the record).
The sentence does not shock our judicial conscience. See State v. O'Connell, 117 N.J. 210, 215-16 (l989). Judge Ravin performed an appropriate Yarbough*fn3 analysis, and appropriately concluded under State v. Carey, 168 N.J. 413, 428 (200l) that these "[c]rimes involving multiple deaths or victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences."