December 20, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
LAWRENCE BELL, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 91-05-1163.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Laurie A. Corson,
Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Ashrafi, St. John and Leone.
Defendant Lawrence Bell appeals the denial of his second PCR petition. He claims ineffective assistance of counsel in challenging the voluntariness of his confession. We affirm.
Defendant's convictions arose out of the kidnapping, rape, robbery, and murder of Hope Stauffer, and the kidnapping of her four-year-old son, committed with co-defendant James Earl Jones. The facts of the crimes are detailed in our prior opinions, and thus we simply summarize them here.
On June 29, 1990, shortly after midnight, Stauffer drove her two brothers and a friend to a bar as the designated driver. She waited in the car with her four-year-old son. Jones approached and distracted Stauffer while defendant entered the car and put a gun to her head. Defendant took the wheel while Jones got in the back seat and held the gun to her head. Defendant drove Stauffer, her son, and Jones to a deserted field in Camden. Defendant trained the gun on Stauffer while Jones took her behind the bushes. Jones threw Stauffer to the ground and began choking her. Defendant held her down, grabbed her neck, and threatened to hurt and shoot her. Jones then raped Stauffer. When Jones was done, defendant briefly penetrated her "a little bit." Defendant claimed that he then returned to the car. Jones later emerged, saying "the lady ran." In fact, Stauffer was left naked and strangled. Defendant drove Jones away with Stauffer's son still in her car. They abandoned the car, and Jones took the boy to a relative, claiming he had found the child wandering. Jones was arrested. Based on information from Jones, police looked for defendant. Defendant came to the police station and gave a confession providing the details of the crimes set forth above.
Defendant was tried as an adult and testified at trial. He admitted joining in the robbery, but denied ever having a gun or seeing the gun Jones said he had. Defendant claimed he stayed in the car while Jones, who told defendant he wanted to have sex with the victim, took her into the bushes.
The jury disbelieved defendant and convicted him of murder, N.J.S.A. 2C:11-3a(1); felony murder, N.J.S.A. 2C:11-3a(3); first- and second-degree kidnapping, N.J.S.A. 2C:13-1b(1)-(2); robbery, N.J.S.A. 2C:15-1; conspiracy to commit robbery, N.J.S.A. 2C:5-2; possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a; unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and sexual assault, N.J.S.A. 2C:14-2a(3). The Honorable Isaiah Steinberg, J.S.C., sentenced defendant to prison for life plus fifty years, and made him ineligible for parole for fifty-five years. We affirmed. State v. Bell, A-1632-92 (App. Div. Mar. 7, 1996), certif. denied, 145 N.J. 371 (1996). Six years later, we affirmed the denial of his first petition for post-conviction relief (PCR). State v. Bell, A-2328-99 (App. Div. Jan. 24, 2002), certif. denied, 172 N.J. 180 (2002). We later affirmed the denial of his motion for a new trial based on DNA testing, but remanded for an evidentiary hearing on his second PCR petition. State v. Bell, A-4895-05 (App. Div. Nov. 17, 2009), certif. denied, 201 N.J. 441 (2010).
We relate the circumstances of defendant's confession in greater detail. At a suppression hearing before Judge Steinberg on April 6, 1992, Detective Harry Glemser and defendant testified, agreeing in most respects. Both testified at trial consistently with their hearing testimony, adding some details. Accordingly, we consider their hearing and trial testimony together, and note the person testifying only where the testimony of Glemser and defendant differed.
At about 8:45 p.m. on June 29, Deborah Carter voluntarily brought defendant, aged fourteen years and ten months, to the Police Administration Building (PAB) in Camden. Carter was described as his stepmother or mother. Defendant testified they were accompanied by a family friend, Tina Hammond.
Defendant and Carter went into an interrogation room with Glemser and two other detectives. Glemser advised Carter and defendant that the detectives were investigating the death of a woman, that they had information concerning defendant's involvement, and that they wanted to speak to him about it. Carter gave Glemser permission to speak with defendant. Glemser, in Carter's presence, advised defendant of his Miranda rights. Defendant acknowledged that he understood each right, and both defendant and Carter signed the form. Glemser testified that defendant appeared to understand his rights; defendant testified that he was aware of his rights and knew he did not have to talk to the police.
Glemser then began to speak to defendant about the crime in Carter's presence. Glemser testified that while Carter was present, defendant said he was not the only person and would not "take the weight" himself, but would not discuss details.
After about five minutes, defendant indicated that he did not want Carter to be present, because he wanted to discuss the nature of the crimes and his involvement with the detectives but did not want her to hear it. Glemser told Carter she had a right to be present in the interrogation room. Carter gave Glemser permission to speak with defendant alone, and left at defendant's request. Glemser testified that Carter waited in a waiting area within twenty-five feet of the interrogation room, and that she did not come to the window of the room or otherwise have subsequent contact with defendant or Glemser until the interview was completed. Glemser testified that defendant never asked to speak with Carter or to stop their discussion.
In a "preinterview" that lasted about fifteen minutes, defendant explained the crime. Beginning at 9:05 p.m., the interview was tape-recorded. On tape, Glemser again read the Miranda rights to defendant, who acknowledged his rights and reaffirmed that he had told the detectives and Carter that he did not want her to be present. Defendant then gave a taped statement confessing to the crimes. He acknowledged on tape that no one had forced, threatened, or made promises to him to make the statement.
The taped statement ended at 9:30 p.m. Glemser testified that he then told Carter that defendant had admitted involvement and that a juvenile petition would be filed. Defendant testified that he also saw Carter after the interview ended.
Glemser testified that defendant confessed willingly. Defendant testified that while Carter had been present, police said that if he did not cooperate, he would get an extra ten years on his sentence. Defendant testified that he was nervous, frightened, and confused, and spoke because he wanted to be cooperative. He testified that he tried to tell the detectives "what really happened, " but they told him details given by Jones, and he then repeated the details related by Jones, adding some details of his own invention, "[b]ecause that's what they wanted me to say." He testified that he denied being threatened or coerced on the tape "[b]ecause I assumed that would go along with cooperating."
At the conclusion of the suppression hearing, Judge Steinberg found "Glemser to be much more credible than the defendant." The judge did not find defendant credible, and specifically found that the detectives did not in any way tell defendant he would receive an increased sentence if he did not cooperate. The judge found that Carter and defendant had signed the statement of rights form, that he waived and never asserted his Miranda rights, and that he knowingly and voluntarily gave a statement. The judge also found that Glemser had advised Carter of her right to be in the room even though defendant did not want her there, and that she voluntarily agreed to leave as defendant desired. The judge ruled that defendant could and did waive his right to have Carter present, that his rights were not harmed by her absence, and that his confession was admissible.
In his second PCR petition, defendant again challenged the admissibility of his confession. He argued suppression was required because he confessed when Carter was not present. The Honorable William J. Cook, J.S.C., appointed PCR counsel and received briefing and oral argument. He ruled that, because defendant was fourteen years and ten months old at the time of the interrogation, he was not covered by the bright-line rule of State v. Presha, 163 N.J. 304, 308 (2000). The judge also ruled that there was no prima facie showing that the confession was involuntary. The judge rejected defendant's pro se claim that his trial counsel was ineffective for failing to call Carter to testify at the suppression hearing, because defendant had not shown that she was available or that her testimony would have been favorable. Thus, the judge found no evidentiary hearing was required.
Defendant appealed. We preliminarily remanded for a hearing on DNA testing. During the remand, defendant submitted a March 4, 2007 letter from Carter, which the judge treated as a motion for a new trial, and denied. When the appeal resumed, we treated the letter as a supplement to the record, and remanded "for an evidentiary hearing but only on the issue of the circumstances of the absence of defendant's stepmother from the interrogation and the impact of her absence on the voluntariness of defendant's statements."
Carter testified at the evidentiary hearing. Her testimony about the events at the PAB was very different from the testimony of either Glemser or defendant. According to Carter, she, Hammond, and several other companions brought defendant to the PAB. A homicide prosecutor arrested and handcuffed defendant, making the pregnant Carter so upset that "water started running down [her] legs." She asked the detectives to wait to give her time to go to the bathroom. After about seven minutes in the bathroom, she returned and a detective told her defendant was in the interrogation room. When she tried to go in the room, the detective told her she could not enter. When she insisted, the detective said she could not go in because defendant "doesn't want you in there." When she persisted, the detective said "we already questioned him, he gave us a written statement and a cassette, " and showed her a cassette tape. When she became "rowdy, " the detective brought her a note stating, "mom, please go home, I don't want you here." She denied it was defendant's handwriting, and asked to see him.
When the detectives opened the door, defendant had blood running down his head. Carter said, "you beat my son, " but the detectives said he had been picking at a once bandaged head wound, which Carter knew he had sustained in a recent auto accident. Defendant confirmed he had written the note, and repeatedly asked her to go home because she was "a mess" and because "I don't want you here." Defendant and one of Carter's companions asked her to sign the note, and Carter complied. Carter asked to stay, but the detectives said she was getting too rowdy and had to leave. They also said she had to sign another paper stating "something about Miranda rights." She signed the paper, even though she denied being present when defendant received his Miranda rights. She told defendant not to say anything and that she was getting a lawyer. She, Hammond, and their companions then left.
The Honorable Ronald J. Freeman, J.S.C., who conducted the evidentiary hearing, issued an oral ruling on December 9, 2011. The judge found that "Ms. Carter's memory of events surrounding defendant's interrogation . . . seemed diminished and distorted, " and "she is not a credible witness." The judge found no basis to "question Judge Steinberg's credibility determination, " and adopted Judge Steinberg's findings regarding the events at the PAB, including that Carter gave permission to the detectives to speak with defendant, and that she and defendant agreed that the detectives could speak to him in her absence. Judge Freeman also agreed with Judge Steinberg's "assessment of the totality of the circumstances, " found that "defendant's statements to police were voluntarily made, " and denied defendant's second PCR petition.
On appeal, defendant's counseled brief argues:
PRIOR TO THE DEFENDANT'S SECOND PCR PETITION, NONE OF HIS ATTORNEYS QUESTIONED THE IMPACT THE ABSENCE FROM THE INTERROGATION ROOM HIS STEPMOTHER DEBORAH CARTER HAD ON THE VOLUNTARINESS OF THE JUVENILE'S CONFESSION, WHICH AMOUNTED TO CONSTITUTIONAL DEFICIENCY.
WHERE A HIGHLY SIGNIFICANT IMPACT ON THE VOLUNTARINESS OF THE JUVENILE'S CONFESSION IS REVEALED BY HIS STEPMOTHER'S ABSENCE FROM THE INTERROGATION ROOM, A REASONABLE PROBABILITY EXISTS THAT THE JURY'S VERDICT WOULD HAVE BEEN DIFFERENT.
THE PARENT OR GUARDIAN OF A JUVENILE JUST OVER THE AGE OF 14 YEARS WHO DOES NOT HAVE A CRIMINAL RECORD SHOULD BE PRESENT DURING A CUSTODIAL INTERROGATION IF POSSIBLE REGARDLESS OF THE CHILD'S DESIRES.
Defendant's pro se brief argues:
THE PCR COURT ERRED IN DENYING THE DEFENDANT'S CLAIM THAT HE WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS AND EFFECTIVE ASSISTANCE OF COUNSEL BY THE FAILURE OF HIS TRIAL, APPELLATE AND INITIAL PCR COUNSEL, TO RAISE THE CLAIM THAT THE ABSENCE OF HIS MOTHER DURING THE INTERROGATION AND THE DENIAL OF HER PARENTAL ABILITY TO INVOKE THE RIGHT TO REMAIN SILENT AND TO COUNSEL FOR HER SON'S INTERESTS RESULTED IN A CONFESSION THAT WAS NOT VOLUNTARILY OBTAINED, THEREFORE THE CONVICTION SHOULD BE REVERSED.
In reviewing these arguments, we must hew to our standard of review, which "is necessarily deferential to a PCR court's factual findings based on its review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). "We defer to a PCR judge's credibility findings because that judge has the ability to evaluate the witnesses firsthand." State v. Ways, 180 N.J. 171, 196 (2004). "[W]e will uphold the PCR court's findings that are supported by sufficient credible evidence in the record, " but we review its conclusions of law de novo. Nash, supra, 212 N.J. at 540-41.
To show ineffective assistance of counsel, defendant must meet the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "'First, the defendant must show that counsel's performance was deficient.'" State v. Taccetta, 200 N.J. 183, 193 (2009) (citation omitted). To establish this first prong, "a defendant must show deficient performance by counsel 'so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment.'" State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation omitted), cert. denied, __U.S. __, 133 S.Ct. 1454, 185 L.Ed.2d 361 (2013). There is "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" State v. Arthur, 184 N.J. 307, 319 (2005) (citation omitted).
"'Second, the defendant must show that the deficient performance prejudiced the defense.'" Taccetta, supra, 200 N.J. at 193 (citation omitted). To satisfy this second prong, a defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Allegro, 193 N.J. 352, 367 (2008) (citations and quotation marks omitted). This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (citation omitted).
Defendant first claims that prior counsel were ineffective for failing to find and call Carter as a witness at the suppression hearing or thereafter. He cites Carter's testimony that no attorney contacted her before she wrote her letter in 2007. As Judge Freeman found, however, defendant has presented no evidence, other than Carter's "confused recollection, " that trial counsel failed to investigate or adequately prepare for the suppression hearing.
Defendant himself testified at the suppression hearing that he did not know where Carter was. See Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695-96 ("what investigation decisions are reasonable depends critically on" the "information supplied by the defendant"). Carter moved after defendant was arrested, and then moved again. She said she attended only one pretrial hearing, and claimed she never met trial counsel. She failed to attend defendant's trial or sentencing, and had no contact with him after 1992. Moreover, Carter testified that by the time of the April 1992 suppression hearing, she and defendant had "had words, " he did not want to talk to her, and "he didn't want [her] to come to none of his hearings." "[I]f defendant and [Carter] did not have a good relationship, defense counsel might have been correct in deciding not to call her to testify." State v. Morton, 155 N.J. 383, 432 (1998). Given these problems, defendant has not rebutted the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Arthur, supra, 184 N.J. at 319.
Most importantly, Carter's testimony made clear that defendant cannot show prejudice. As Judge Freeman observed, Carter's testimony "sharply contradicts defendant's taped statement, . . . the sworn testimony given by . . . both defendant and Detective Glemser at defendant's Miranda hearing, " and "court and police records." Carter's testimony also contradicted the testimony of defendant and Glemser at trial. Defendant offers no explanation why Carter's dramatic version of events should be believed even though it is irreconcilable with his own testimony, as well as all the other evidence.
Carter's credibility was further eroded by other inconsistencies. She claimed the homicide interview was on a Friday in 1989 when it was on a Thursday in 1990. She testified that before the interview, she had not seen defendant for days, when her letter stated that she had not seen him for "some weeks." She claimed that defendant had been on house arrest with her for weeks until they went to court on the morning of June 25, but defendant testified and police records showed that on the night of June 24-25 defendant drove in a joyriding incident that resulted in an accident, injuries, and a charge of assault by auto. Even though defendant testified and police records showed that on June 25, she had accompanied defendant to the PAB to answer to that charge, and was present when defendant was advised of his rights, Carter denied knowing of his arrest on that charge, and testified that she had never been to the PAB before the interview concerning the homicide. Judge Freeman therefore had ample basis to find Carter's version of events not credible.
Given the implausibility of Carter's testimony, defendant has not shown a reasonable probability that his confession would have been suppressed if she had testified at the hearing. Calling Carter to testify at the suppression hearing would have contradicted rather than corroborated defendant's testimony, and cast doubt on the credibility of the defense. Nor has defendant shown a reasonable probability that if Carter had testified at trial, the result would have been different, considering defendant's confession, his trial testimony, and the other trial evidence. See State v. L.A., 433 N.J.Super. 1, 17-18 (App. Div. 2013). Thus, trial counsel and subsequent counsel were not ineffective in failing to locate or call Carter to testify.
Defendant next argues that Carter's absence from the interrogation room itself rendered his statement involuntary, and that trial counsel was ineffective for not making that argument. In fact, trial counsel did argue at the suppression hearing that Carter's presence was required, that defendant could not waive it, and that her absence was "fatal" to the admissibility of the confession.
Appellate counsel was not ineffective for not appealing Judge Steinberg's rejection of that argument. In State ex rel. Carlo, 48 N.J. 224 (1966), our Supreme Court ruled that juveniles' statements were involuntary where police took them to the police station and read them their rights in the absence of their parents, began speaking to them without parental permission, and refused the parents' requests to see the juveniles during hours of prolonged questioning. Id. at 229, 232-33, 237-39, 241-43. The Court similarly found involuntariness where the police sent a father away from the police station before questioning a juvenile. State ex rel. S.H., 61 N.J. 108, 114-15 (1972). The testimony of both Glemser and defendant showed that such improprieties did not occur here.Indeed, the detectives here began the interview in Carter's presence, consistent with our Supreme Court's instruction that "whenever possible and especially with young children no child should be interviewed except in the presence of his parents or guardian." Ibid.
It was defendant who asked that Carter leave the interrogation room, which she did voluntarily. Our Supreme Court has ruled that this does not itself render a confession involuntary. Presha, supra, 163 N.J. at 317. In Presha, as here, after a discussion in which the detective told the mother she had a right to be present, the mother and the juvenile decided that she should leave the room during questioning. Id. at 309. The detectives interviewed the juvenile in his mother's absence, and he gave a taped confession. Id. at 309-10. The Court upheld the admission of his confession taken in the absence of a parent, noting that the juvenile expressed a "clear desire to be interviewed without a parent present, " and that the mother "voluntarily left the interrogation room at the start of the interview." Id. at 318.
However, the Court held that "a different standard" governed "when a juvenile is under the age of fourteen." Id. at 308. In that situation, "the adult's absence will render the young offender's statement inadmissible as a matter of law, unless the parent or legal guardian is truly unavailable" or is "unwilling to be present." Id. at 308, 315. As the Court drew the "dividing line" at a juvenile's fourteenth birthday, id. at 316, we reject defendant's argument that we should draw a different line. As Judge Cook held, because defendant was fourteen years and ten months old, "the rule rendering some confessions of juveniles under the age of fourteen inadmissible as a matter of law does not apply to this appeal." Id. at 317.
Therefore, the admissibility of defendant's confession depends on "the totality of circumstances, " including "'the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved, '" and the "'suspect's previous encounters with the law.'" Id. at 308, 313 (citations omitted). We treat "the adult's absence [from the interrogation area] as a highly significant factor among all other facts and circumstances." Id. at 308. Further, "when an adult is unavailable or declines to accompany the juvenile, the police must conduct the interrogation with 'the utmost fairness and in accordance with the highest standards of due process and fundamental fairness.'" Id. at 317 (quoting S.H., supra, 61 N.J. at 115).
Unlike defendant, the juvenile in Presha was almost seventeen years old and had fifteen prior arrests. Id. at 309. Nevertheless, defendant's case has many of the circumstances that led the Court to uphold the admission of the confession in Presha. Defendant had been arrested, received his Miranda rights, and been questioned in Carter's presence only three days earlier, so at least to that extent "defendant was familiar with the criminal process at the time of his statement." Id. at 317. Like the Supreme Court in Presha,
we view as especially important the fact that [Carter] was present at the outset of the encounter with the police, before any questioning of her son. She had the opportunity to offer support to defendant, to witness the signing of the Miranda card, and she consented to her initial absence from the interrogation area.
[Id. at 318.]
We consider also defendant's "clear desire to be interviewed without a parent present, . . . his fair treatment by police, " the relative brevity of the interview and any detention, and the absence of any credible evidence of physical punishment or mental exhaustion. Ibid. Even though his age put him "on the cusp for heightened protections" and his education was not specified, see State ex rel. A.S., 203 N.J. 131, 149 (2010), "defendant's will was not overborne by investigators, the critical factor in this inquiry, " Presha, supra, 163 N.J. at 318. Indeed, the Court has upheld the admissibility of confessions by juveniles under fourteen whose parents similarly removed themselves from the interview room. State ex rel. A.W., 212 N.J. 114, 137-38 (2012); State ex rel. Q.N., 179 N.J. 165, 174-76 (2004).
Further, the nature of Carter's relationship to defendant is another relevant circumstance. She testified that she was not his biological or adoptive mother, or his stepmother. She claimed a court had given her custody when he was eight, but could not substantiate that claim. More importantly, her relations with him were tenuous. Prior to the interview, she had not seen him for several days or weeks. Although purportedly living with her, in fact he had been living out of an abandoned house.^ When she searched for him before the interview, he ran from her, and then refused to talk to her. He did not want her present during his interview, or at his court appearances in this prosecution, and they did not contact each other from 1992 forward. Judge Freeman properly found that Carter and defendant did not have the typical parent-child relationship, and that "her absence did not have a significant impact on his willingness to participate in the investigation, as would the presence of a more consistent parental figure."
Considering the totality of the circumstances. Judges Steinberg and Freeman did not err in finding that defendant's confession was voluntary despite Carter's absence. Because there was no reasonable probability of a different outcome by renewing that unsuccessful argument, defendant's appellate and PCR counsel were not ineffective.^"