August 14, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
MARK'QUET STEVENSON, a/k/a MARQUETT STEVENSON, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 8, 2013
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-05-0802.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
Before Judges Fasciale and Maven.
After pleading guilty, defendant Mark'quet Stevenson appeals from his convictions for two counts of first-degree robbery, contrary to N.J.S.A. 2C:15-1; second-degree burglary, contrary to N.J.S.A. 2C:18-2; and three counts of second-degree possession of a firearm by a convicted person, contrary to N.J.S.A. 2C:39-7(b). An aggregate term of eighteen years' imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, was imposed along with the mandatory fines and penalties.
On appeal, defendant contends:
I. BECAUSE DEFENDANT'S POLICE STATEMENTS WERE NOT FREE AND VOLUNTARY, THEIR ADMISSION VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION AND HIS RIGHT TO DUE PROCESS OF LAW. U.S. CONST. AMENDS. V, XIV; N.J. CONST. (1947) ART I. PARS. 1, 9, 10.
II. DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We have considered these contentions in light of the record and applicable law. As to Point I, defendant claims that his statement to police was induced by knowingly false representations by the investigating officer that his cooperation concerning multiple charges of robbery could result in his release on $10, 000 with ten percent bail. We disagree.
According to the transcript of the Miranda hearing, Detective Daniel Tworkoski of the Lakewood Police Department was investigating armed robberies of two grocery stores in Lakewood. These robberies were recorded on the stores' surveillance videos showing the robberies in progress. In the course of those investigations, Tworkoski became involved in an investigation of an armed robbery of a gas station in Toms River. It was believed that the same individuals had committed the robberies.
Police arrested defendant on an outstanding traffic warrant out of Toms River and took him to Lakewood police headquarters. Tworkoski and Detective Louis Santora were present during the interview. Tworkoski testified that before defendant gave his statement, he read defendant his Miranda rights from a form, and then read the waiver portion to defendant. Defendant read the waiver and had no questions regarding his rights or the waiver. Tworkoski and Santora witnessed defendant sign and print his name on the form.
During the interview, defendant repeatedly expressed concern about the amount of bail that may be set. Defendant told the detective that his wife was pregnant and very ill and indicated that he did not want his bail to be high, "[a]t least $10, 000 with ten percent, something." Tworkoski told defendant that he could not promise him a specific amount of bail. He said:
I'm not allowed to promise you a certain number, but I will promise you this . . . if you cooperate with us . . . I will express that to the [j]udge that I call clearly, okay? And I will express that you have a child on the way and that your main concern is with your child and the child's mother, okay? . . .
Thereafter, defendant confessed that he wanted money so he robbed the grocery store, then discarded the handgun. After the interview, Tworkoski contacted a superior court judge with respect to setting bail on the complaints. Tworkoski testified that he informed the bail judge that defendant was concerned about his pregnant wife and had a solid address in Toms River.
Following the suppression hearing, the judge issued a ten-page written opinion in which he rejected defendant's argument that the incriminating statement was not made knowingly, voluntarily, and intelligently. In his decision, the judge wrote:
This court finds that the defendant in this case was fully apprised of his [c]onstitutional rights pursuant to Miranda. . . . The defendant at no time exhibited any behavior, or made any statements which indicated he did not wish to speak to the law enforcement officials, or that he did not understand the officer's statements regarding the defendant's rights.
This court finds that the testimony of Detectives Tworkoski and Santora was credible, and in light of the videotaped interview, that the defendant was not coerced in any way to provide statements to, or converse with, law enforcement. . . .
In reviewing a trial court's denial of a defendant's motion to suppress a statement, we defer to the factual findings of the trial court when they are supported by sufficient credible evidence in the record. See State v. W.B., 205 N.J. 588, 603 n.4 (2011) ("As the finding of compliance with Miranda and voluntariness turned on factual and credibility determinations, we need only find sufficient credible evidence in the record to sustain the trial judge's findings and conclusions."); see also State v. Elders, 192 N.J. 224, 242-44 (2007). Upon a review of the facts, we conclude that the record supports the trial court's denial of the suppression motion.
The decisional law on the voluntariness of confessions after a waiver of Miranda is clear that post-Miranda statements are admissible when the State proves they were made after an individual has knowingly, intelligently, and voluntarily waived his Miranda rights. State v. Knight, 183 N.J. 449, 461 (2005). Whether a waiver is voluntary depends on the totality of the circumstances, with a promise made by police being a factor in that determination. State v. Pillar, 359 N.J.Super. 249, 271- 72 (App. Div.), certif. denied, 177 N.J. 572 (2003). "Promises made by law enforcement are . . . relevant: where a promise is likely to 'strip defendant of his "capacity for self-determination"' and actually induce the incriminating statement, it is not voluntary." State v. Fletcher, 380 N.J.Super. 80, 89 (App. Div. 2005) (quoting Pillar, supra, 359 N.J.Super. at 272-73).
We reject defendant's claim that the detectives promised him a low bail. Rather, the record reflects that Tworkoski clearly told defendant that he could not promise defendant any particular amount of bail but would inform the judge of his requests. The detectives did not lie or mislead defendant with promises of a low bail to induce his confession. Instead, Tworkoski promised to tell the judge of defendant's desire for a reasonable bail so that he could get home to his sick, pregnant wife. Furthermore, the detective upheld his promise by informing the judge of defendant's concerns.
Even if we were to conclude that Tworkoski's statements were a promise of some sort, they were not such as to overbear defendant's will as to negate the voluntariness of the Miranda waiver. See Knight, supra, 183 N.J. at 462-63. The transcript of the interview reveals that defendant answered the detectives' questions regarding the robberies and defendant never expressed that he felt pressured by the detectives and never invoked his right to terminate the interview. The judge reasonably found that defendant made his statements voluntarily and without coercion.
We turn now to defendant's claim that the sentence imposed was excessive. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). "In the end, '[t]he fundamental principle is that an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). When a trial judge has "exercise[d] discretion in accordance with the principles set forth in the Code and defined by [the Supreme Court], " we may not disturb a sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (citations omitted) (internal quotation marks omitted).
Given the limited scope of our review, the arguments presented in support of defendant's claim of excessiveness of sentence lack sufficient merit to warrant more than brief comment in a written opinion. R. 2:11-3(e)(2).
The trial court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses for which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter). The court found no mitigating factors. The judge gave heavy weight to aggravating factor three based on defendant's lengthy prior criminal record, which included at least ten guilty adjudications involving shoplifting, simple assault, eight counts of burglary, theft by unlawful taking, and receiving stolen property. The judge rejected the State's recommended twenty-three-year sentence, and imposed concurrent eighteen-year sentences for the armed robberies, with other lesser sentences imposed concurrent to that. Defense counsel did not request consideration of mitigating factors at the sentencing hearing.
Here, defendant failed to show that findings of one or more mitigating factors would have resulted in his sentencing as a second-degree offender pursuant to N.J.S.A. 2C:44-1(f)(2). The judge did not misapprehend or misapply the statutory factors; the factual findings underlying the judge's conclusions on the relevant aggravating and mitigating factors are supported by the record. State v. Roth, 95 N.J. 334, 364-65 (1984).
The convictions and sentence are affirmed.