NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 18, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 06-05-1200 and 09-06-1559.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (James F. Smith, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Waugh, Nugent, and Accurso.
Defendant Aaron M. Orr appeals his conviction for three counts of first-degree robbery and two counts of second-degree robbery, all in violation of N.J.S.A. 2C:15-1, as well as three counts of second-degree witness tampering, in violation of N.J.S.A. 2C:28-5(a). He also appeals his aggregate sentence of incarceration for life plus forty-five years. We affirm the conviction and part of the sentence, but remand for reconsideration of the sentence for two of the three witness-tampering counts.
We discern the following facts and procedural history from the record on appeal. For the purposes of this opinion, we concentrate on the facts concerning Orr's arrest and interrogation, as developed at the Miranda hearing, and the trial testimony concerning the alleged witness tampering.
On February 20, 2006, Somers Point Police Officer Scott Handson was investigating an armed robbery at the Burger King in Somers Point. He learned that an employee had been robbed at gunpoint earlier that morning, and was given a description of the assailant and the handgun by the employee.
As Handson was driving around the area, he observed a gold-colored car with tinted windows in front of a laundromat. The car matched the description of the vehicle described by a witness to the robbery of Primo Pizza in Somers Point two days earlier. The police dispatcher informed Handson that Orr was the registered owner of the vehicle, and that Orr was wanted for armed robberies in Maryland.
Handson looked through the laundromat's windows and saw an individual fitting the description provided by the victim of the Burger King robbery. As the man came out of the laundromat, Handson approached him. The man identified himself as Michael Haskins. While talking to Haskins, Handson observed another man inside the laundromat who also fit the description provided by the victim. He went inside and approached the second man, who identified himself as Aaron Orr.
Handson asked Orr to come outside. Once outside, he placed Orr under arrest and advised him of his Miranda rights, using the card that he always kept with him. Handson testified that Orr did not indicate that he wished to speak to an attorney or refuse to talk. According to Handson, Orr was "[v]ery calm, very cooperative, " and did not appear to be under the influence of either alcohol or drugs. Orr was transported to the police station by another officer, while Handson remained on the scene for the tow truck to remove Orr's vehicle.
Somers Point Police Captain Michael Boyd was on his way to investigate the Burger King robbery when he was advised that a vehicle matching the description of the one involved in the Primo Pizza robbery had been spotted at the laundromat. When Boyd arrived at the laundromat, the two males were still inside.
Boyd testified that Handson read Orr his rights at the scene, as he was walking Orr to the patrol car and placing him in the backseat. According to Boyd, he did not hear Orr ask to speak to an attorney or invoke his right to remain silent at any time. Boyd also testified that Orr did not appear to be intoxicated.
Boyd asserted that he did not ask for Orr's permission to search his car. He denied placing Orr in the front seat of his own vehicle or transporting him to police headquarters himself. Boyd also maintained that the car was not searched in the fifteen or twenty minutes it took for the tow truck to arrive.
Detective Sergeant Robert Somers, who was investigating the Primo Pizza robbery, testified that he arrived at the laundromat around 8:15 or 8:30 a.m. He did not talk to Orr, who had already been transported. According to Somers, Orr's car was not searched while he was at the laundromat. Somers stayed on the scene for about thirty to forty-five minutes.
Orr was brought to the interview room sometime before 11:30 a.m. and was interviewed by Somers. Somers, who testified that he knew Orr had been advised of his Miranda rights by another officer earlier that morning, repeated them using a Miranda rights form. Orr initialed each right and signed the form, and Somers also signed the form. It is dated February 20, 2006, at 11:35 a.m.
Somers described Orr as "calm, [but] not real cooperative." He testified that Orr seemed not to "know anything about anything." According to Somers, Orr did not appear to be under the influence of either alcohol or drugs while at police headquarters.
Somers told Orr what the police believed he had been involved in and what evidence they had in terms of the pictures of his car and suspect pictures from another robbery. Somers outlined the case against him and "was pretty confident with it." Orr did not admit involvement in any of the robberies at that point.
The interview lasted about forty-five minutes to an hour. Somers denied threatening Orr, whom he testified never asked for a lawyer or indicated that he did not want to talk anymore. According to Boyd, although he was in the building when Somers interviewed Orr, Somers "was the sole person" who conducted the interview. Somers testified that he did not believe that Boyd came into the interview room.
Orr's parents arrived at police headquarters and asked to speak with him. Boyd claimed that he advised them of the seriousness of the charges and then brought them back to the cell block area where Orr was being held. He "stayed in the vicinity" for safety reasons while they spoke with their son for ten or fifteen minutes. Boyd testified that he did not advise the parents to tell Orr to confess, nor did he promise them anything.
When Somers returned to the station around 4:00 p.m., he went to Orr's cell. According to Somers, Orr "said he wanted to talk to me again." Somers brought Orr back to the interview room between 4:30 and 5:00 p.m. Somers again advised Orr of his Miranda rights.
What Somers described as a pre-interview began sometime before 5:00 p.m. Somers did not use a tape recorder right away because "[we] weren't ready to take a statement yet." Somers did not recall if Boyd or another officer was present in the interview room at the time.
Somers maintained that Orr confessed during the pre- interview. Somers then began taping a statement from Orr, at the beginning of which Somers again advised Orr of his Miranda rights. The audiotape of the interview with Orr was played for the trial judge during the Miranda hearing.
In the statement, Orr agreed that he waived his Miranda rights and admitted to using a "toy gun, " or a "utility knife" held to look like a gun, during several robberies or attempted robberies in 2006, including: (1) the Dairy Queen in Hamilton Township on February 14; (2) the Dunkin Donuts in Mays Landing on February 17; (3) Primo Pizza in Somers Point on February 18; (4) the 7-11 in Linwood on February 19; and (5) the Burger Kingin Somers Point on February 20. According to Orr, he committed the robberies because of his "gambling problem."
Orr denied involvement in several other robberies about which Somers questioned him. They included Nino's Pizza in Hamilton, Dunkin Donuts in Hamilton Township, Burger King in Pleasantville, 7-11 in Egg Harbor Township, and the Wonderbread store in Egg Harbor Township. All of those robberies were nevertheless included in the indictment subsequently returned against Orr.
Somers testified that he did not make any promises to Orr before he confessed. He also maintained that he did not know what caused Orr to change his mind about admitting to the criminal activity. According to Somers, no other officers assisted him with the interrogation. Somers also testified that he "may have" given Orr a cigarette, but he did not recall doing so. He also testified that Orr was given food during the interview.
Orr's parents, Nevalan and Ezell Orr, testified that their son was living with them in Maryland at the time of his arrest.Nevalan knew that Orr went to the casinos "from time to time." Orr's parents knew that he was on probation after pleading guilty to armed robbery in Maryland. They testified that he had spent "a little over two and a half years" in jail for two robberies.
According to Orr's parents, Orr was sleeping when they were taken to his jail cell. They spoke with Orr for approximately ten to thirty minutes from outside the cell. They both testified that Boyd was standing "[w]ell within earshot." They were told that they could not speak to Orr alone for "security reasons." Both parents testified that Boyd told Orr that it would "make it easier for him" if Orr "cooperated with them." Ezell thought Boyd's statement meant that he "wanted him to confess to something" and that "he would be a little lenient with him or something."
Nevalan testified that Orr responded that he "already told them I want to talk to a lawyer" and repeated that he wanted to speak to an attorney "[m]aybe six, seven" times. She testified that Boyd "didn't really have a response" to those assertions. Nevalan did not advise Orr to cooperate with the police.
Ezell also testified that Orr said he wanted to speak with a lawyer "several times." He thinks that he did "mention" to Orr that it might be in the family's best interest if he cooperated and provided a confession. Orr responded that he wanted to talk to a lawyer.
Orr testified that he was a resident of Maryland at the time of his arrest, but was working in New Jersey with the permission of his parole officer. He had pled guilty to two armed robberies in Maryland. Orr maintained that he had not confessed or provided a statement to police following his arrest in Maryland because he wanted to speak to a lawyer first. Although he had "heard about Miranda rights" during the Maryland arrest, he testified that neither Boyd nor anyone else had advised him of those rights at the time of his arrest in New Jersey. Orr maintained that nobody read him his Miranda rights until "the taped statement was being made" in the late afternoon on February 20, when Somers read them to him.
Orr further testified that he did not speak to Handson until the day after his arrest when he was being fingerprinted. On cross-examination, when asked if Orr thought the police had fabricated the fingerprint card dated February 20, 2006, he responded "[they've] done a lot of things that they're not supposed to do."
With respect to the circumstances of his arrest, Orr testified that it was Boyd who asked for his identification when he was inside the laundromat. They then walked to his car to get the identification. Boyd asked to search Orr's car, but Orr responded that he did not want it searched without a warrant.
Orr was not aware that he was a suspect in the robberies until Boyd arrested him, handcuffed, and placed him in the front seat of his unmarked police car at around 8:00 a.m. Orr stated that during the ride, Boyd asked him if he "wanted to talk about the robberies" and he responded that he "wanted [his] lawyer." Boyd told him that it would be "best" for Orr to tell him about them now "because it would be easier on [him]."
Orr was brought into police headquarters around 9:00 a.m. He was strip searched before being placed in a cell. Between 9:30 and 10:00 a.m., Boyd brought him to "the kitchen area, " where he asked Orr to provide a statement without reading him his Miranda rights.
According to Orr, he had only had three or four hours of sleep the night before and had not eaten anything that morning except "a pack of Starbursts." He was cold because he "really didn't have too much on and it was cold out."
Orr maintained that the questioning did not cease when he asked Boyd for a lawyer. He testified that Boyd and Somers alternated in asking him questions. They talked about how Orr should confess to "make it easier" on himself. They showed him items they had retrieved from his car, like clothing, glasses, and "the utility knives, " and said they were related to "certain robberies." Orr testified that he kept repeating that he wanted to speak to a lawyer.
According to Orr, Boyd "started to get frustrated." "Boyd was like the bad cop" and Somers acted "[l]ike he was going to do [Orr] favors." Somers then told Boyd to leave.
Orr testified that he had been questioned for about three or four hours before his parents arrived. He was then placed in his cell, and his parents were brought in about five minutes later. Orr claimed Boyd was present when he spoke with his parents for about fifteen or twenty minutes. When his mother asked Boyd to leave them alone, Boyd refused for "security reasons."
Orr maintained that Boyd interrupted his mother in an effort to get Orr to talk, again saying it would be "easier" for him and his family if he confessed or talked. According to Orr, Boyd told them that "he was in charge of the bails, that he would make it lighter for them to take [him] home, " and that "the judge would look at it as if it was just one charge instead of all of them separate." Orr further testified that Boyd promised that he would be able to go home with his family and that he "wouldn't have to see so much time." Orr's parents supported his decision to wait for a lawyer, but said they could not afford one.
Approximately ten minutes after Orr's parents left, Somers brought Orr back to the kitchen area for more questioning. Orr characterized Somers as "running his spiel about what he thought happened, what part he thought [Orr] had in it." Orr did not volunteer any information and continued to request a lawyer "quite a few times."
Orr testified that Somers left the room and returned with a black gun with a "woodgrain handle, " which he put on the table in front of Orr. Somers "would pick it up, speak about the weight, it looks like a nice gun, it's kind of light" and he "would try to get [Orr] to touch it." Orr maintained that Somers left briefly with the gun still on the table, and then returned and started talking about the gun again. Orr asserted that Somers whispered in his ear that he "could make it look like [Orr] tried for the gun, " after which Orr "chuckled at him." Somers responded, "[O]h, you monkeys think you're tough."
Orr asserted that Somers put his service revolver to the back of his head. According to Orr, when he felt the gun pushed up against the back of his head, he "almost peed on [him]self." Orr told Somers "tell me whatever you want to tell me, don't shoot me." He then decided to do "whatever [Somers] wanted" because he was afraid Somers was going to shoot him. Somers gave Orr a couple cigarettes and a few minutes to calm down.
Orr then gave a statement. He maintained, however, that he "would've never talked" to Somers had it not been for the gun incident. Orr asserted that he did not volunteer information. Instead Somers would "tell [Orr] what was going on and he just agreed to it."
About an hour later, according to Orr, Somers brought out the tape recorder and read Orr his Miranda rights for the first time that day. Somers told him not to say anything out of the ordinary on the tape "or the deal would be no good." The "deal, " according to Orr, was bail so that his family could take him home and all the charges would run together.
Orr maintained that the tape was stopped a few times because he "would forget what was said." Somers would rewind the tape and start it again if Orr "didn't remember or  took too long to answer." He testified that Somers told him what to say when the tape was off.
In his recorded statement, Orr explained that he had committed the robberies because of his gambling problem. At the Miranda hearing, Orr admitted that he did have a gambling problem, but maintained that Somers had told him what to say in his statement because the police found his "casino cards" in the car. Orr maintained that Somers allowed him to say that the gun used was a toy gun because they did not find a real gun when they searched him or his car.
We now turn to the facts related to the witness tampering charges. Orr's nineteen-year-old sister, Kendahl Lee Orr, testified as part of the State's case-in-chief at trial. She lived in Maryland with her parents. She testified that she received letters from Orr in April or May 2009 asking her to make phone calls to witnesses or to get "[a] male" to do so. Kendahl asked her boyfriend, Paul Prevost, to make the calls. She knew the letters were from Orr because she recognized his handwriting and they had his name on them.
Kendahl identified the envelopes and letters sent to her by Orr. She read the letters to the jury. One letter stated the following:
What's good with Paul? Is he hanging in there? . . . What did he say about that phone card? When you get it, make sure it has a 609 area -- A.C. area code phone number on it. Also I will need -- I will need you to have that because I go to trial the following Monday. My freedom depends on it -- depends on you doing this for me.
Enclosed is the people [sic] that you will have to get at. I don't have them all, but it's a start. Have Paul or some other nigger do it ASAP -- A S A P. When you get that -- when you get that, only use it to do what I need you to do. Don't answer it if anybody calls you on it. Say whatever you have to say to get them to change their minds. I'm including their Social Security numbers so that you know that you're not --so that they know you're not playing. And please get this done for me A S A P. Thank you and I love you.
Don't leave any messages on the voicemail. If you have to -- if you have --if you have to threaten people with actually leaving a message with -- leaving a message with, do so. Don't use my name or yours. Just let them know about what happens to those who snitch. Love, Aaron.
The letter included the names and other information for three witnesses who were to testify at the trial. Kendahl testified she gave the letter to Prevost.
A second letter from Orr to Kendahl included the following:
Listen, I'm including that info again. Please don't lose it or get it washed again. I go to trial May 4th and I need this done before May 3rd. I hope it's not confusing and that it won't be too much for you. I wouldn't have to do things this way if they would practice law and order like they were supposed to. But since they're just doing me dirty, it's only right that I do them dirty.
Google the names -- Google the names and make the necessary corrections to the names. My freedom definitely depends on it. And I'm sorry that I even have to include you in my B.S. I thank you very much for looking out for me and keeping me in your best interest. I owe you big. I love you. I need this ASAP.
A third letter included the following:
Google every one of these names just to be sure of the info and phone numbers before you call them. My intel is a little behind considering I been gone for so long. All of these happened in 2006 between January and February. Call them up, first letting them know that you have their Social Security numbers and home addresses -- home address. Repeat the infos if necessary. Tell them that snitching will not be a good thing for them and their families and that they will be -- and that they will be found anywhere.
Tell them that if they proceed in the robbery matter, the 2006 -- in 2006, points anybody out or shows up to court, then the penalty for snitching will cost them their lives.
Also tell them that if they alert anyone of these threats, then they will suffer the same penalty. Tell them if anybody questions whether or not they will be coming to court or make any further statements, to say no because of not wanting and never want -- ...