NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 17, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 09-02-0184 and 10-01-0097.
Natalie J. Kraner, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Robert J. Kipnees, Designated Counsel, Bernard J. Cooney, Designated Counsel, David Moses, Designated Counsel, Richard A. Bodnar, Designated Counsel and Ms. Kraner, of counsel, and on the briefs).
Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Schuster, of counsel and on the brief).
Before Judges Fuentes, Simonelli and Fasciale.
Defendant appeals from his convictions for second-degree passion provocation manslaughter (Michael J. Maltese), N.J.S.A. 2C:11-4b(1)-(2); first-degree murder (Kathleen Maltese), N.J.S.A. 2C:11-3a(1-2); two counts of third-degree hindering prosecution, N.J.S.A. 2C:29-3b(1); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3; third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h; fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1); fourth-degree false swearing, N.J.S.A. 2C:28-2a; and two counts of second-degree disturbing human remains, N.J.S.A. 2C:22-1a(1). We affirm.
This case involves the gruesome death of defendant's parents at a residence that they shared with defendant and codefendant Nicole Taylor, defendant's girlfriend. In the early morning of October 8, 2008, a fight ensued between defendant, who was nineteen
-years -old, and his father over defendant's unemployment and inability to join the Coast Guard. Defendant's father threw something at defendant and yelled, "I wish you were never born, and you mean absolutely nothing to me." Defendant jumped on his father and started squeezing his father's neck. His mother attempted to stop the fight, but Taylor restrained the mother, allowing defendant to continue strangling his father until he lay motionless on the floor. Defendant then strangled his mother to death.
Defendant and Taylor worked together to hide the bodies. They obtained latex gloves from under a kitchen sink and dragged the bodies down a hallway into a bathroom. They removed the clothing from the victims, soaked the bodies with bleach and water in the bathtub, and placed bags over the victims' heads to avoid seeing their faces. They then put the victims' bodies in garbage bags, brought them outside, and placed them in the trunk of defendant's father's vehicle. They drove to a nearby park where they dug a shallow grave and buried the bodies.
The following day, defendant began using a bank card that his mother and sister, Leela Parent, had shared. The police investigation revealed that over the course of the next week, defendant and co-defendant used the card to withdraw cash on three separate occasions, to rent a hotel room at the Red Roof Inn, and to make various purchases at Barnes & Noble, Wal-Mart, Chili's, Valero gas station, and Kay Jewelers. The couple also used the card to pay for expenses related to a trip to upstate New York a few days after the killings.
On October 17, 2008, defendant and his sister, Ricki Fodor, went to the police and reported their parents missing. Leela also informed the police that someone used the bank card to withdraw cash from the shared account. The police investigated and uncovered a surveillance tape of defendant using the card. The next day, the police arrived at defendant's residence and defendant consented to a search of his father's vehicle. Detective James Ryan opened the trunk and discovered two shovels and a flashlight. Defendant then agreed to go to headquarters for questioning.
On October 18, 2008, defendant waived his Miranda rights and gave a statement to the detective. At first, he indicated that he had last seen his parents on October 10, 2008, when he allegedly drove them to Pennsylvania; however, after being confronted with evidence that he had been using the bank card, defendant retracted that statement and asserted that his parents had disappeared. The police arrested defendant and charged him with false swearing and obstruction of justice and then released him.
On October 19, 2008, Leela searched her parents' residence and defendant's van. She discovered bank card receipts in the home and a Kay Jewelers receipt in the van. Leela notified the police about what she had discovered and the police obtained additional videotape evidence of the cash withdrawals.
On October 24, 2008, Frank Maltese, defendant's uncle ("Uncle Frank") brought defendant to the police station where defendant agreed to take a polygraph examination. The events that occurred on this day formed the basis for defendant's motion to suppress. Sergeant Paul Vallas gave defendant his Miranda rights, which defendant voluntarily waived, conducted the polygraph examination, and then stated to defendant:
There's no doubt in my mind that you know exactly where your mother and your father are right now. So what you and I need to do right now is sit down here and get this clarified. It's no longer a question of whether or not you're aware of their disappearance. There's no doubt in my mind that you can take me to where they are.
Defendant asked repeatedly to talk to Uncle Frank, an individual defendant considered to be "even better than a freaking attorney, " and reiterated that "before anything else happens I want to talk to my uncle." Sergeant Vallas eventually left the room, came back, and assured defendant that he could speak to Uncle Frank without the conversation being recorded.
Detective Ryan approached Uncle Frank and told him that defendant asked to speak to him. Sergeant Vallas then explained to Uncle Frank that although he told defendant that the recording device would be turned off, the conversation with defendant would be recorded. Uncle Frank entered the room and defendant told Uncle Frank where the bodies were and indicated that "only one other" person was involved. Detective Ryan stood outside the room during the conversation between defendant and Uncle Frank, but he was unable to hear what they said. Investigator James Mullin, however, was in a nearby observation room and could see and overhear their conversation. Defendant would not disclose the other person's identity because defendant was not convinced that the recording device was turned off. Acting on defendant's request for a cigarette break, Detective Ryan escorted defendant and Uncle Frank outside of the building where the three of them stood for roughly seven minutes. Defendant and Detective Ryan then returned to the room, where they met Investigator Mullin.
Investigator Mullin introduced himself to defendant and re-administered defendant his Miranda rights. Defendant waived his Miranda rights and confessed that he strangled his parents, brought their bodies to the park, and buried them. He indicated that co-defendant's role was to help him transport and bury the bodies. Defendant accompanied the police to the park and showed them where he buried the bodies. The police excavated the site and discovered the naked bodies, with garbage bags taped over their heads.
Defendant moved to suppress his October 24, 2008 statements to Uncle Frank, as well as the subsequent incriminating statement he made to Investigator Mullin, contending he was coerced into confessing. The judge conducted an evidentiary hearing in which Investigator Mullin and Detective Ryan testified describing the circumstances that led to defendant's confession. The judge issued a comprehensive written decision in which he found this testimony credible. The judge nonetheless suppressed defendant's statement to Uncle Frank, concluding that by recording defendant's conversation with his uncle, despite assurances to the contrary, the police violated his right to remain silent.
The judge denied defendant's request to suppress his later statements to Investigator Mullin, finding that the police scrupulously honored defendant's initial assertion of his right to be silent by affording defendant a break after confessing to Uncle Frank, re-administering new Miranda warnings, and questioning defendant on only subjects he voluntarily agreed to answer.
Defendant testified at trial that his father abused him sexually for years. He claimed he choked his father to death in self-defense, and that Taylor killed his mother. Defendant called Uncle Frank as his witness; he ...