Submitted: September 15, 2014.
Approved for Publication January 15, 2015.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-08-0865.
Joseph E. Krakora, Public Defender, attorney for appellant ( Frank M. Gennaro, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent ( Jane C. Schuster, Deputy Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges LIHOLZ, ESPINOSA and ROTHSTADT. The opinion of the court was delivered by LIHOTZ, P.J.A.D.
[439 N.J.Super. 249] LIHOTZ, P.J.A.D.
In reviewing the Law Division's order denying defendant's motion to suppress his custodial statement, we consider not only whether defendant's statement was voluntarily and knowingly made, but also whether the fourteen-day break-in-custody period following a defendant's invocation of the right to counsel, announced in Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 175 [439 N.J.Super. 250] L.Ed.2d 1045 (2010), and applied by our Supreme Court in State v. Wessells, 209 N.J. 395, 37 A.3d 1122 (2012), must also be applied when a defendant invokes the right to remain silent. In Shatzer, the United States Supreme Court specifically recognized an enhanced protective period must follow a break in custody caused by a suspect's invocation of the right to counsel. We conclude such an extensive period of protection need not accompany a break in custody caused by a defendant's request to cease the interrogation.
Defendant Jerome L. Faucette was charged under Indictment No. 08-08-0865
with first-degree offenses of felony murder, N.J.S.A. 2C:11-3(a)(3) (count one); and robbery, N.J.S.A. 2C:15-1 (count two). The charges stem from an incident occurring on April 14, 2008, when defendant acted as the driver for co-defendant Terrance S. Clemons, who robbed and shot a gas station attendant. Following trial, a jury acquitted defendant of felony murder, but found him guilty of first-degree robbery. Defendant was sentenced to thirteen years in prison, subject to the 85% parole ineligibility period required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appeals from his conviction and sentence arguing:
DEFENDANT'S MAY 15, 2008 STATEMENT WAS NOT THE PRODUCT OF A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER OF HIS RIGHT TO REMAIN SILENT AND, THEREFORE, SHOULD HAVE BEEN SUPPRESSED BY THE TRIAL COURT.
A. Waiver of Miranda Rights.
B. Defendant Invoked his Right to Remain Silent.
C. Fruit of the Poisonous Tree.
THE PUBLICATION TO THE JURY OF GRAPHIC AUTOPSY PHOTOGRAPHS, WHICH WERE NOT ADMITTED INTO EVIDENCE, WAS ERROR WHICH UNDULY PREJUDICED DEFENDANT.
THE TRIAL COURT WRONGFULLY DENIED DEFENDANT'S MOTION FOR A NEW TRIAL.
[439 N.J.Super. 251] DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.
In a separately filed supplemental brief, defendant presents these issues:
APPELLANT'S CONVICTION FOR FIRST DEGREE ROBBERY ON BASIS OF ACCOMPLICE LIABILITY THEORY REQUIRES REVERSAL FOR INSUFFICIENCY OF EVIDENCE.
THE TRIAL COURT'S JURY INSTRUCTIONS ON ACCOMPLICE LIABLITY FOR FIRST DEGREE ROBBERY WERE INSUFFICIENT, DEFECTIVE AND ERRONEOUS AND THE ERROR WAS SO FUNDAMENTAL AS TO CONSTITUTE PLAIN ERROR (PLAIN ERROR).
DEFENDANT'S MAY 15, 2008 STATEMENT WAS THE PRODUCT OF PSYCHOLOGICAL COERCION AND WAS NOT THE PRODUCT OF A VOLUNTARY, KNOWING AND INTELLIGENT WAIVER OF HIS RIGHT TO REMAIN SILENT AND THEREFORE SHOULD HAVE BEEN SUPPRESSED BY THE TRIAL COURT.
Following our review of these issues, in light of the record and the applicable law, we affirm.
In Point One and Issue III, defendant challenges the voluntariness of his custodial statements. These facts are taken from the record of the three-day Miranda  hearing, during which Detective Stephen Craig was the sole witness and the State
admitted DVD recordings of defendant's custodial interviews.
On May 14, 2008, Detective Craig and another police detective met defendant at his place of employment around 7:00 p.m. and asked if he would come with them for questioning. Once at the police station, the detectives advised defendant of his Miranda rights.
At approximately 8:00 p.m., defendant stated he " d[id not] want to be [t]here" and " [he] want[ed] to be at work working, go home and get in [his] bed and then wake up and do the whole same [439 N.J.Super. 252] thing again." Thereafter, he asserted, " I ain't going to talk [to] you I just want to leave, my God," and " I'm done talking yo." Despite these protests, which were repeated, Detective Craig continued the interrogation, which lasted for seven hours. Police did not charge defendant and drove him home at approximately 2:30 a.m.
That same day, police returned to defendant's home at approximately 4:30 p.m. and asked him to accompany them to the prosecutor's office. Police had requested a warrant for defendant's arrest, which had not yet been issued. Defendant agreed to go with the officers and his mother followed in her car. ...