NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 1, 2012
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-04-0711.
Peter Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief).
Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, of counsel and on the brief).
Before Judges Parrillo, Fasciale, and Maven.
Defendant Jose R. Palacios-Rodriguez appeals his conviction and sentence for first-degree attempted murder, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(2) (count three); and third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count four); and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count five). Defendant was acquitted of hindering prosecution, contrary to N.J.S.A. 2C:29-3(b) (count six). After appropriate mergers, the trial court imposed an aggregate sentence of fourteen years in prison with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for counts one though four, and a concurrent eighteen-month term on count five. We affirm the conviction and the sentence.
The trial evidence established that on the afternoon of June 28, 2008, defendant, the victim (defendant's cousin) and two others were sitting in the living room of their home drinking beers when the victim grabbed defendant and threw him down on the sofa. One witness believed the men were "just playing around" and left them alone in the room. The victim pushed defendant down and told him that he was not a man. After a struggle, the victim let defendant up, but then defendant pursued the victim through the house stabbing the victim in the back and the chest.
Defendant left the house and walked to work. Later that evening, the police apprehended defendant outside of his workplace. When arrested, defendant provided the police with a false name. Officers transported defendant to the Ramsey Police Headquarters, where he was placed in a holding cell and subsequently fell asleep. Defendant later participated in a videotaped interview with Detectives James Brazofsky, Brian Huth and Luis Alvarez.
Prior to trial, defendant moved to suppress his confession, and the judge conducted a Miranda hearing. Brazofsky, Huth and Alvarez testified regarding the interrogation. Brazofsky testified that he and Huth brought defendant into an interview room at the Bergen County prosecutor's office. The interview was conducted in Spanish initially by Brazofsky, then later by Alvarez. Before questioning defendant, Brazofsky advised him that his consent was necessary and it was his option to discuss the incident. Brazofsky noticed that defendant's eyes appeared bloodshot and his speech was slurred, but stated that he took into account that defendant had recently been asleep. Brazofsky testified that he smelled an odor of alcohol on defendant's breath.
Defendant admitted to the detectives that he was illiterate, but Brazofsky testified that defendant understood their conversation, and defendant informed him that he understood Spanish, but not English. Brazofsky presented defendant with a Miranda waiver form translated into Spanish. Brazofsky read each of the warnings aloud in Spanish and questioned whether defendant understood. Defendant initialed each paragraph and signed a written waiver. Huth later testified that although defendant appeared to have been drinking, he did understand Brazofsky's questions.
Brazofsky testified that he then began to question defendant about the incident, but called in Alvarez, a native Spanish speaker, to continue the interrogation. Alvarez testified that defendant was "calm, cooperative, attentive" and responded coherently during questioning. Defendant repeatedly informed Alvarez that as a result of his drinking, he could not remember what had occurred. However, defendant stated that the victim pushed him down and claimed that he was not a man. Defendant admitted to stabbing the victim two or three times with a knife. Alvarez testified that defendant detailed his placement of the knife during the altercation, its color, as well as the points of impact on the victim's body. Defendant also stood up from his chair in order to physically demonstrate how he stabbed the victim. Defendant informed the detective that after the stabbing, he left the house, threw the knife away and went to work.
The three-and-one-half-hour interrogation was videotaped. A transcript of defendant's interview and a portion of the videotape were provided to the court during the motion hearing and to the jury during the trial. The video shows defendant waiving his Miranda rights and confessing to the stabbing.
At the conclusion of the Miranda hearing, the judge denied defendant's motion. Defendant thereafter asserted intoxication as a defense to the attempted murder and aggravated assault charges. Nevertheless, the jury found defendant guilty of attempted murder, aggravated assault and the two related charges.
On appeal, defendant presents the following points for our consideration:
I. [DEFENDANT] WAS DEPRIVED OF HIS RIGHT TO A COLLECTIVE AND MUTUAL DELIBERATION OF THE JURORS, AND A NEW TRIAL SHOULD BE ORDERED. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 9, 10. (Not Raised Below).
A. Deliberations Did Not Realistically Begin Anew Where the Original Jury Had Deliberated for One and One-Half Days -- Requesting Play-Backs, Legal Instructions, and Information About the Result of a Deadlock --and, with an Alternate, the Reconstituted Jury Returned a Verdict in Less Than Two Hours.
B. The Mandatory Instruction That a Reconstituted Jury Must Deliberate Anew Was Negated When the Trial Court Immediately Questioned the Original Eleven Jurors About a Prior Play-Back Request and Invited the Foreperson's Response that Prior Deliberations Had Resolved the Issue.
II. [DEFENDANT'S] STATEMENT SHOULD BE SUPPRESSED BECAUSE IT WAS TAKEN IN VIOLATION OF MIRANDA, AND A NEW TRIAL SHOULD BE ORDERED. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, PAR. 1.
A. [Defendant's] Miranda Waiver Was Not Knowing and Intelligent Where He was Misleadingly Told That He Could Remain Silent, But Then "Won't Have the Opportunity to Explain."
B. [Defendant's] Miranda Waiver Was Not Knowing and Intelligent Where He Was a Drunk, Exhausted and Illiterate Immigrant, Who Gave Confusing Responses to the Miranda Warnings.
C. [Defendant's] Miranda Waiver Was Not Knowing, Intelligent, or Voluntary Where, When Asked If He Understood His Right to Silence, His Last Answer Was "No, " and He Seemed to be Trying to Remain Silent by Repeatedly Asserting, "I Don't Remember."
D. [Defendant's] Waiver Was Not Knowing, Intelligent, or Voluntary Due to the Collective Effects of the Misleading Miranda Warnings, [Defendant's] Inability to Understand the Warnings, and the Failure to Clarify His Ambiguous Responses.
E. The Admission of [Defendant's] Statement at Trial Was Not Harmless Beyond a Reasonable Doubt Where the Prosecutor Relied on It to Rebut the Intoxication Defense.
III. [DEFENDANT] WAS DEPRIVED OF A FAIR TRIAL WHERE HIS DEFENSE WAS INTOXICATION, AND THE PROSECUTOR ARGUED IN SUMMATION, WITHOUT SUPPORT IN THE RECORD AND OVER REPEATED OBJECTIONS, THAT [DEFENDANT] DRANK "OFTEN, " AND THAT HABITUAL DRINKERS HAVE A HIGH TOLERANCE FOR ALCOHOL. U.S. CONST. AMEND XIV; N.J. CONST. ART I, PAR. 1.
IV. [DEFENDANT] SHOULD BE RESENTENCED BECAUSE THE COURT FAILED TO ACKNOWLEDGE THAT THE CIRCUMSTANCES LEADING TO THE STABBING WERE UNLIKELY TO RECUR WHERE [DEFENDANT] HAD NO PRIOR RECORD AND HIS DEPORTATION WILL PREVENT HIM FROM REENTERING THE SAME PRESSURE-COOKER ENVIRONMENT. (Not Raised Below).
We begin by addressing the Miranda issues raised in Point II Defendant contends that his confession should have been. suppressed on several theories, namely that he was illiterate and non-English speaking and therefore did not understand his Miranda rights; he was so intoxicated that he was incapable of knowingly and voluntarily waiving his Miranda rights during the police interview; and he was provided misleading and pressure-laden "speak-now-or-hold-your-peace" advice from the detectives. The State asserts that neither the language barrier nor defendant's intoxication prevented him from voluntarily and intelligently waiving his Miranda rights.
It is axiomatic that prior to any custodial interrogation, the police must advise the suspect of his or her Miranda rights. State v. Brown, 352 N.J.Super. 338, 351 (App. Div.) (citing Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706), certif. denied, 174 N.J. 544 (2002). A waiver of these rights must be voluntary, knowing, and intelligent. Ibid. "The State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." State v. Knight, 183 N.J. 449, 462 (2005), certif. denied, 189 N.J. 426 (2007). A reviewing court must look at the totality of the circumstances, including such factors as "the characteristics of the defendant[, ] the nature of the interrogation[, ] . . . suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." State v. Galloway, 133 N.J. 631, 654 (1993).
We turn our attention to the dialogue on which defendant relies to assert that the detectives gave him misleading advice. In the opening minutes of the interview, Brazofsky informed defendant that his consent was needed for the interview:
Q: You need your response, if you want to talk to us, yes. Okay. And if it's possible, you can write "yes" and your initials? Do you know what are the initials of your name? The letters of your name, so that's Jose Rodriguez, J-R.
Q: And the word, yes. If you don't want to talk and don't want to explain, say no and the interview is terminated, but you won't have the opportunity to explain what happened, okay. . . .
Number [one] says, "you have the right to remain silent and refuse to answer any questions." Do you understand? Yes or no?