May 31, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
KEVIN PRENTISS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 24, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 10-10-1854 and 09-07-0617.
John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, on the brief).
Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Ms. Schuster, of counsel and on the brief).
Before Judges Grall and Accurso.
The grand jurors for Hudson County returned an indictment charging defendant Kevin Prentiss with four counts of first-degree robbery, N.J.S.A. 2C:15-1. Following the denial of his motion to dismiss the indictment or amend it to charge second-degree robberies and the denial of his motion to suppress a video-recording of his confession, defendant entered a conditional guilty plea preserving his right to appeal those determinations. R. 3:9-3(f). The judge sentenced defendant to concurrent ten-year terms of imprisonment subject to terms of parole ineligibility and supervision as required by the No Early Release Act, N.J.S.A. 2C:43-7.2.
In the statement defendant gave to the police following his arrest and at the time of his guilty plea, defendant admitted to committing four bank robberies in Jersey City between April 10 and July 21, 2010. Each of the robberies was captured on a video-recording made with the bank's security camera. Defendant presented each of the tellers with a threatening note demanding money, but he never spoke to any of the tellers. Three of the tellers complied with his demand and one did not. In each case, defendant walked away from the teller and left the bank without further incident. There is no evidence that defendant said anything to any of the tellers or had a weapon during the commission of any of these robberies. Indeed, the prosecutor who presented the case to the grand jury asked the jurors to "no bill" the weapons charges.
On the morning of April 10, defendant entered a Capital One Bank. The note he gave to that bank's teller read: "Give Me All Your 100's, 50's, 20's [and] 10's[.] Now Slowly And No one will get hurt now." Although defendant did not recall whether he had his hand in his pocket, his attorney stipulated that the bank's video depicts him with his hand in his pocket. In fact, the video shows defendant approaching the teller's window with one hand in his jacket pocket, but no gesturing or posturing indicative of a person concealing a weapon is discernible and neither the pocket nor hand is visible after defendant reaches the counter. Detective Michael Post of the Jersey City Police Department, who testified before the grand jury, reported that the teller said he believed defendant had a gun and that he gave defendant $2245.
Just after 9:00 a.m. on June 10, defendant entered a Bank of America in Jersey City. There, he passed a teller a note that read: "Stay calm and Quiet[.] I have a gun [and] I don't want to use it. Do what I say and no one gets hurt. Give me everything all 100's, 50's, and 20's From your top draw [sic] At one time[.] Move quick and don't be stupid. You have 20 seconds to do this. Go!" Defendant had a black plastic bag with him that he placed on the counter. The teller "locked the drawer, exited the teller window, walked to the office, [and] spoke to the manager, " who activated the silent alarm, but defendant left the bank before the police arrived.
Shortly following his failed attempt at Bank of America, defendant, still carrying his black plastic bag, went to the Capital One Bank he had robbed on April 10. This time he presented a note that read: "Stay Calm & Quiet[.] I have a weapon I don't wanna use. Give me 100's 50's and 20's[.] And no one gets hurt[.] Move Quick[.]" The teller gave defendant $2030, and he left.
On July 21, defendant went to a PNC Bank in Jersey City at about 9:23 a.m. He presented the teller with a note that said: "STAY CALM & QUIET[.] I have a weapon I don't wanna use[.] Give me all your 100's 50's and 20's[.] And no one gets hurt[.] Move quick!" The teller gave defendant $1550 plus a hidden GPS tracking device, and by 9:46 a.m. officers determined that defendant was on a bus. Defendant was arrested on the bus, and the officer found money and the GPS in a plastic bag defendant had put on the floor.
Defendant was taken to police headquarters, and he subsequently provided a videotaped statement acknowledging his commission of all four robberies.
In his statement to the police, defendant explained that he committed the crimes to get money to pay his rent and bills and buy food. He was not carrying a weapon during any of the robberies, and he never said anything to any of the tellers. The only thing he had in the black plastic bag he carried into the Bank of America was a bottle of water, which he had with him because it was hot. When he put that bag on the counter in Bank of America, he was not trying to make the teller think he had a gun in the bag, which he took with him after his failed attempt to get money from the Bank of America and later used to carry the money he was given by the teller in the Capital One Bank.
Defendant claims that the evidence provided to the grand jury and his admissions at the time of his guilty plea are insufficient to support an indictment for or his guilty plea to four counts of first-degree robbery. He does not, and on this record could not, dispute that the record supports charges and provides an adequate factual basis for four second-degree robberies.
There is no question that the evidence before the grand jury and the factual basis defendant provided at the time of his plea were adequate to support his indictment for and conviction of four second-degree robberies. Second-degree robbery is established if the defendant, in the course of committing or attempting to commit a theft, threatened another with or purposely put another in fear of immediate bodily injury. N.J.S.A. 2C:15-1a(2). Defendant acknowledged that each of the four notes he gave to a teller conveyed a threat and demanded money.
Defendant's claim is that the grand jury evidence and the factual basis defendant provided were inadequate to permit the grand jury to charge first-degree robbery or the judge to accept defendant's guilty pleas to that crime. A conviction for first-degree robbery requires proof that the defendant, in the course of committing the theft, attempted to kill another, or purposely inflicted or attempted to inflict serious bodily injury, or was armed with, used or "threatened the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b. In each instance, the grand jurors charged defendant with first-degree robbery based on his threatening immediate use of a deadly weapon. A "deadly weapon" is:
any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.
[N.J.S.A. 2C:11-1c (emphasis added).]
The statutory definitions of first-degree robbery and deadly weapon suggest that the defendant must threaten the victim with an object, but the Supreme Court has made it clear that the State is not required to prove that the defendant was, in fact, armed. While "[a] threat or reference to a deadly weapon alone is not enough, " State v. Hutson, 107 N.J. 222, 227 (1987), "a first-degree robbery conviction may be based on the use of a hand or gestures, coupled with threatening words, simulating possession of a weapon." State v. Chapland, 187 N.J. 275, 291 (2006).
The necessary simulation can be established by actions and words "convey[ing] the overall impression of simulating possession of a deadly weapon" — such as a feigned effort to reach behind one's back during a struggle where a gun might be kept while uttering a threatening remark. Ibid. Either "[a]n unequivocal or unambiguous simulation of a weapon possessed" or "an ambiguous or equivocal gesture coupled with threatening words that complete the impression of a concealed weapon, can provide a sufficient factual basis for conviction of first-degree robbery." Id. at 292. In short, "the combination of words and a defendant's gesture or action" must "establish the reasonable impression that the defendant possesses a deadly weapon." Id. at 290; see State v. Huff, 292 N.J.Super. 185, 190 (App. Div. 1996), aff'd o.b., 148 N.J. 78 (1997).
The State also must prove that defendant acted with purpose. Where possession is simulated, the evidence must permit a finding that the simulation was "done 'purposely.'" State v. Nero, 195 N.J. 397, 408 (2008).
With the law governing the elements essential to a conviction of first-degree robbery in mind, we consider defendant's claim that the judge erred in denying his motion to dismiss or amend the first-degree robbery charges. The question for a trial court in reviewing a motion to dismiss or amend a charge in an indictment for lack of support is "whether, viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that [the] crime [charged] occurred and that the defendant committed it." State v. Morrison, 188 N.J. 2, 13 (2006).
In Morrison, the Court likened the inquiry to the one the court must conduct in reviewing a motion for judgment of acquittal at the close of the State's case. Ibid. (citing State v. Reyes, 50 N.J. 454, 459 (1967)). Only the quantum of the evidence is different. On a motion for judgment of acquittal, the State's evidence must be adequate to permit a finding of guilt beyond a reasonable doubt. Reyes, supra, 50 N.J. at 459; accord State v. Wilder, 193 N.J. 398, 406 (2008). But there is a "presumption in favor of the charges set forth in an indictment, " and to rebut it a defendant must "demonstrate that evidence is clearly lacking to support the charge." State v. McCrary, 97 N.J. 132, 142 (1984).
Considering the evidence before the grand jury, we cannot conclude that defendant established a clear lack of evidence of conduct on defendant's part creating the reasonable impression that he possessed a deadly weapon during the robbery of the Capital One Bank on April 10. The bank's video shows defendant approaching the teller with his hand in his pocket, and the teller reported that he believed defendant had a gun. On that evidence, the jurors could reasonably believe that what the teller saw led him to reasonably believe defendant was armed with a deadly weapon.
In contrast, defendant did establish that evidence of first-degree robbery was wholly lacking for the other three robberies. With respect to those robberies, there simply was no evidence of a "combination of words and . . . gesture or action" creating "the reasonable impression" that defendant possessed a deadly weapon. See Chapland, supra, 187 N.J. at 290. In each instance, there was nothing more than a reference to a deadly weapon in the note the defendant handed to the teller, and that is not enough. See Hutson, supra, 107 N.J. at 227. In the absence of any gesture or action suggesting a concealed weapon, the State's reliance on defendant's wearing a coat, carrying a black plastic bag or placing that bag on a teller's counter is wholly inconsistent with the principles discussed above.
For the foregoing reasons, we conclude the judge's denial of the motion to amend counts two, three and four overlooked the complete lack of evidence supporting inferences that could lead the grand jurors to reasonably believe defendant was guilty of the first-degree robberies charged in counts two, three and four.
The factual basis defendant provided at the time of his plea was on all counts inadequate to permit the judge to accept his guilty plea on any count. In accepting a guilty plea, a trial court must be satisfied that there is a factual basis for each element of the offense. State v. Campfield, 213 N.J. 218, 232 (2013). In other words, the factual basis provided must permit the trial court to find that the defendant is guilty of the crime charged. Id. at 231. In reviewing a trial court's decision to accept a factual basis, an appellate court affirms if there is sufficient credible evidence to support the determination. Id. at 229. We defer to the trial court's findings on matters affected by the judge's feel for the case and opportunity to observe the testimony, but we do not defer to the judge's legal determinations. Id. at 229-30.
Applying those standards, we conclude that the judge abused his discretion in declining to dismiss the indictment for first-degree robbery on all four counts of the indictment. At the time of the plea, there was nothing presented about the two robberies on June 10 or the robbery on July 21 other than defendant's admission to the contents of the notes he gave to the tellers. Because evidence of a reference to a weapon is inadequate to support a conviction of first-degree robbery based on a defendant's threatening immediate use of a deadly weapon, the judge erred in accepting these pleas.
The robbery committed on April 10, 2010 warrants separate discussion. Defense counsel stipulated that the bank's video depicted defendant with his hand in his pocket, and the judge noted that the teller in that case had told the police that he believed defendant had a gun. There was no evidence that the teller described how defendant moved or positioned his hand, and no evidence that the teller believed defendant had a gun based on seeing defendant's hand in his pocket. Defense counsel stressed that there was no allegation that defendant was "doing anything with a finger or anything" during this robbery, and the prosecutor did not dispute that point.
Defendant did not shed any light on the fact that his hand was in his pocket. He simply said he did not recall having his hand in his pocket, and he was not asked whether he intended for the teller to believe he had a weapon.
This factual basis and the inference permitted a finding that defendant made an ambiguous gesture simulating a weapon, but, because this note did not mention a weapon and there was no evidence anywhere in the record that defendant said anything, it did not permit the judge to find a "combination of words . . . gesture or action" that would create a "reasonable impression" that defendant possessed a deadly weapon. See Chapland, supra, 187 N.J. at 290. Nor did it permit a finding that defendant purposely created the impression that he was armed.
Before the judge addressed the adequacy of the factual basis, defendant asked why he was being charged with first-degree robbery. The judge explained, "Because you passed a note and told the tellers you had a weapon." Apart from stating that defendant had given "a factual basis, " the judge did not say anything about the facts supporting his conclusion. Thus, there are no factual findings upon which we can rely.
Based on our review of the record and the foregoing discussion of the pertinent law, the factual basis was inadequate to satisfy a court that defendant is guilty of first-degree robbery on any of the four counts. Accordingly, defendant's plea of guilty to each count of the indictment is vacated, and the matter is remanded for further proceedings.
Defendant has phrased his challenge to the denial of his motion to suppress in terms of whether he "knowingly, voluntarily and intelligently" waived his right to silence. He argues, however, that the State failed to establish that the officers "scrupulously honored" his invocation of the right to remain silent. The questions are different. State v. Hartley, 103 N.J. 252, 260-61 (1986) (explaining that "waiver is an inquiry separate and apart from the . . . question . . . whether the defendant's right to remain silent has been properly respected in the first instance").
Where a defendant's invocation of the right to silence has not been "scrupulously honored, " an inculpatory statement is suppressed notwithstanding its voluntariness. Michigan v. Mosley, 423 U.S. 96, 100, 104, 96 S.Ct. 321, 324-25, 326, 46 L.Ed.2d 313, 319, 321 (1975). A defendant who has invoked the right to silence cannot thereafter waive it. Hartley, supra, 103 N.J. at 260-61; State v. Fuller, 118 N.J. 75, 84 (1990); State v. Burno-Taylor, 400 N.J.Super. 581, 589-90 (App. Div. 2008); State v. Mallon, 288 N.J.Super. 139, 146 (App. Div.), certif. denied, 146 N.J. 497 (1996).
Following his arrest, defendant was taken to a police station and Officer Suarez, one of the arresting officers, read the advisements required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), at 10:30 a.m. A form with the title "RIGHTS & WAIVER STATEMENT" completed by Officer Suarez states that defendant "remained silent" when asked whether he understood what the officer told him about his rights. Defendant did not sign the form to indicate that he waived his rights.
Officer Suarez did not testify at the suppression hearing, and Detective Post, the State's only witness, testified that he was not present when Officer Suarez read defendant his rights and did not know anything about the rights and waiver form Officer Suarez prepared. Defendant testified, and he explained that the officer read him his rights when he was taken to the holding cell. In responding to a question posed by his attorney, defendant agreed that he indicated he wished to remain silent.
On that evidence, the judge found that defendant invoked his right to silence, and the State did not contend otherwise in the trial court and does not dispute that finding on appeal. Because the record supports it, there is no basis for us to disturb that determination.
Thus, under Mosley and Hartley, the initial question is whether the officers scrupulously honored defendant's rights. On that issue, the State had the burden of proof. Hartley, supra, 103 N.J. at 260. This question is not easily resolved because the obligation to scrupulously honor an invocation of the right is not an absolute or permanent bar to further questioning. In Mosley, the Court held that the requirement of Miranda, that a suspect's invocation of the right to remain silent must be "scrupulously honored" cannot "sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent." 423 U.S. at 102-03, 96 S.Ct. at 326, 46 L.Ed.2d at 320-21. The Court concluded that the questioning of the defendant by another police officer, more than two hours after his invocation of the right to silence, at another location and about a different crime than the one with respect to which he had invoked his right to silence, after the fresh administration of Miranda warnings, did not violate the requirement of Miranda that the invocation of the right to remain silent must be "scrupulously honored." Id. at 104-07, 96 S.Ct. at 326-27, 46 L.Ed.2d at 321-22.
In Hartley, our Supreme Court interpreted and applied Mosley. 103 N.J. at 262-87. The Court noted disagreement both in the lower courts and among scholarly commentators as to which of the factors applicable in Mosley was "indispensable to fulfillment of the 'scrupulously honor' requirement" of Miranda. Id. at 267. Without considering the other factors applied by lower courts and discussed by commentators, the Court held that one indispensable requirement is "the furnishing of fresh Miranda warnings." Ibid. The Court explained:
Although the Supreme Court specifically avoided, in Mosley, the adoption of a "per se" test for determining when a suspect's previously-invoked right to silence had been "scrupulously honored, " we nevertheless are convinced that our establishment of a "bright-line" minimum requirement of renewed warnings for determining when that right has not been scrupulously honored not only is sound as a matter of New Jersey common law but is also consistent with the spirit of the Supreme Court's decisions and hence with the federal law as we understand it.
[Id. at 268.]
Because the police officer who resumed questioning of Hartley after his invocation of the right to remain silent failed to administer fresh Miranda warnings, the Court concluded that the suppression of his inculpatory statement was required without considering the other Mosley factors.
Thus, Hartley cannot be read to hold that the readministration of Miranda warnings is sufficient by itself to establish that the privilege against self-incrimination of a suspect who has previously invoked the right to remain silent has been scrupulously honored. The Court made this clear when it noted in Fuller that Hartley "did not . . . state that fresh Miranda warnings alone are sufficient to satisfy the requirement that the right [to remain silent] be scrupulously honored, only that they are indispensable." 118 N.J. at 84; see also Mallon, supra, 288 N.J.Super. at 147 (noting that "[u]nder some circumstances, where the police have not 'scrupulously honored' a previously invoked right to silence, readministration of Miranda rights will not cure the violation").
Since Hartley, the Court has not had occasion to address the other Mosley factors in a case where fresh Miranda warnings had been administered prior to a renewal of questioning. The Court has, however, suggested that the passage of a significant period of time between the invocation of the right and the resumption of questioning is one relevant factor. Cf. State v. Bey, 112 N.J. 45, 70 n.15 (1988) (stressing that the Court was not intimating its view "regarding how long a cessation is required before questioning may be resumed" or "whether a change in location and/or subject-matter is required as well").
Although Hartley was decided on the narrow ground that Miranda warnings are critical and were not readministered before the resumption of questioning, the Court suggested in dictum that if Miranda warnings are readministered, a "totality of the circumstances" approach should be taken to determine whether a suspect's invocation of the right to remain silent has been "scrupulously honored." 103 N.J. at 268-71.
Decisions of this court indicate that the Mosley factors can be understood to focus on conduct and circumstances that add to or tend to diminish the impact of the coerciveness of the initial custodial interrogation terminated by the defendant's invocation of the right to remain silent. For example, in Mallon we explained that "[t]he inquiry must be whether [police], despite defendant's invocation of silence, continued to interrogate defendant in an effort to 'get him to talk.'" Mallon, supra, 288 N.J.Super. at 148; see also Burno-Taylor, supra, 400 N.J.Super. at 607 (focusing on the officers' "extended attempts to persuade defendant to waive his Miranda rights and agree to speak to them").
Evidence pertinent to the question whether the officers scrupulously honored defendant's invocation of his right to silence was introduced. By defendant's account, about five minutes after he invoked the right, Detective Post and another detective came to him, told him that the FBI was waiting for him outside and left. Soon thereafter, Detective Post returned alone and told defendant he was there because of the robberies and because he fit the description of the perpetrator. This time, Detective Post warned defendant that he was facing a federal charge with a forty-year sentence and that it would be better for defendant if he talked to Detective Post.
Defendant explained that at that point he felt that he had to make a decision and decided to speak to Detective Post. In defendant's words, "I chose [Detective's Post's] side instead of going to the FBI, I was scared." He claims he proceeded to tell Detective Post "everything" that he later told the officer during the video-recorded interview that followed, including that he committed the robberies to pay his rent.
Detective Post's version of his encounter with defendant prior to the video-recorded interview, which he referred to as a "debriefing, " materially differs from defendant's account. According to Detective Post, when he and another detective first met with defendant in the holding cell, they advised defendant of his rights and he agreed to speak with them but did not sign a waiver form. The detective denied saying anything about the FBI or "feds" to defendant or asking defendant any questions during the debriefing. According to him, the debriefing took only about two minutes.
As Detective Post explained it, he then took defendant to an interview room, which was equipped to record defendant's statement. The recording depicts the interview, which started between 10:50 and 11:00 a.m. and ended at about 11:46 a.m. At the outset, Detective Post read defendant his rights, and defendant said he understood, and on the "rights and waiver" form he wrote "Yes" in response to the question asking if he understood what the detective had told him.
Once defendant waived his rights, Detective Post asked defendant "to just give [his] insight as to what occurred today?" Consistent with his testimony indicating a prior conversation with Detective Post, defendant said: "Well, like I said before, I was backed up on my rent, two months, three months backed up on my rent . . . ." During the interview, Detective Post did not mention the FBI or the feds, but defendant did, twice.
After hearing the testimony and argument of counsel and viewing the recorded interviews, the judge issued a written decision setting forth his findings of fact and his reasons for concluding that the officers "scrupulously honored" defendant's initial invocation of his right to remain silent. Crediting Detective Post's testimony, the judge found that when Detective Post first encountered defendant he orally advised defendant of his rights. The judge did not address defendant's testimony explaining that he decided to speak to Detective Post because of what the detective told him about the FBI and the forty-year sentence he would face if prosecuted in federal court.
Apart from noting that Detective Post was a different officer, the judge did not address the circumstances. The apparent reason for that is that the judge misread Hartley. He reasoned, Hartley "only requires that defendant be advised of his Miranda rights anew before a custodial interrogation may resume, which is exactly what occurred here."
Because the determination whether Detective Post scrupulously honored defendant's invocation of the right to silence depends on a resolution of conflicting testimony that the judge did not resolve, it would be inappropriate for us to exercise original jurisdiction to resolve that question. R. 2:10-5; see also State in re J.D.H., 336 N.J.Super. 614, 628 (App. Div. 2001), rev'd on other grounds, 171 N.J. 475 (2002). Accordingly, we remand for further consideration of that question in conformity with this opinion.
Given our determinations about the indictment, factual basis and suppression motion, there is no reason to address defendant's objections to his sentence. Summarizing, on remand: 1) the indictment should be amended to charge second-degree robbery in counts two, three and four; 2) defendant's guilty plea is vacated and the indictment, as amended, is reinstated; and 3) the judge must reconsider his determination that defendant's invocation of the right to silence was scrupulously honored in conformity with this opinion
Reversed and remanded; we do not retain jurisdiction