NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 15, 2012
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-06-666.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, of counsel and on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fuentes and Hayden.
Defendant Brian J. Tykot appeals from the July 29, 2010 Law Division order denying his petition for post-conviction relief (PCR) based upon a claim of ineffective assistance of appellate counsel. For the reasons that follow, we affirm.
The record reveals that on January 5, 2002, three people were found dead inside their North Hanover trailer home. In a statement to the New Jersey State Police on January 9, 2002, defendant confessed to fatally shooting all three victims and stabbing two of the victims during a burglary. In a twelve-count indictment, defendant was indicted on three counts of capital murder, N.J.S.A. 2C:11-3a(1) and (2), three counts of felony murder, N.J.S.A. 2C:11-3a(3), first-degree robbery, N.J.S.A. 2C:15-1a(1), and other related crimes.
Defendant made a pretrial motion to suppress evidence, including his signed statement to the police. Judge John A. Almeida issued a written opinion denying the motion on March 27, 2003. He found that when the police initially questioned defendant on January 7, 2002, he agreed to speak with them, voluntarily waived his Fifth Amendment right to remain silent, and signed a Miranda warning card before a witness. After speaking with the police for several hours, defendant stated around 3:00 a.m. that he "was tired and wanted to take the Fifth." All questioning ceased at that time and defendant was taken to the county jail where he was incarcerated on an unrelated charge.
Thirty-six hours later, after the police located articles stolen from the deceased buried near defendant's girlfriend's house and intercepted defendant's phone conversations from jail revealing that he had hidden some of the victims' stolen items, the police obtained arrest warrants charging defendant with the three homicides. When the detectives visited defendant in jail to inform him of the arrest warrants, they also sought to clarify his early morning statement that he did not want to continue speaking to the police. According to the judge's opinion, the following colloquy took place:
He [defendant] was asked if when he told the detectives that he was too tired to continue talking, and wanted to "take the Fifth, " what he had meant. [Defendant] stated, "I was questioned all night. I didn't want to talk anymore."
He was then asked if he was exercising his rights, specifically his right to remain silent and refuse to answer any questions. [Defendant] ...