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State v. Tillery

Supreme Court of New Jersey

June 19, 2019

State of New Jersey, Plaintiff-Respondent,
v.
Kareem T. Tillery, a/k /a Kareem Ali Tillery, Kareem A. Tillery, Kareem J. Tillery, Karim Tillery, Kariem A. Tillery, Kareem Tillery-Jones and Kareem R. Jones, Defendant-Appellant.

          Argued November 27, 2018

          On certification to the Superior Court, Appellate Division.

          Michele E. Friedman, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Michele E. Friedman, of counsel and on the briefs).

          Sarah D. Brigham, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Sarah D. Brigham, of counsel and on the briefs).

          Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexander Shalom, Edward Barocas, and Jeanne LoCicero, on the brief).

          PATTERSON, J., writing for the Court.

         Defendant Kareem T. Tillery was convicted of second-degree unlawful possession of a weapon and a fourth-degree offense. The jury was unable to reach a verdict on the remaining charges against him. The trial court sentenced defendant to an extended term, and the Appellate Division upheld defendant's conviction and sentence. The Court considers defendant's contention that the trial court improperly admitted into evidence his statement to police because he did not expressly or implicitly waive his rights under Miranda v. Arizona, 384 U.S. 436 (1966), before answering questions. Defendant also challenges his sentence, arguing that the court inappropriately considered his criminal record and evidence relating to charges as to which the jury failed to reach a verdict.

         A cooperating informant advised the New Jersey State Police that defendant was involved in the sale of weapons. The lead investigators, Detectives Hugo Ribeiro and Miguel Holguin, arranged for the informant to conduct five controlled purchases from defendant. In each instance, the detectives met the informant at a secure site, searched him for contraband, equipped him with a recording device, and followed him to the location where he met defendant. They observed the informant and defendant at the location of the transaction and then retrieved from the informant the weapon purchased.

         The fourth transaction was the sole transaction that gave rise to defendant's conviction. The informant testified that he arranged to purchase a .38 caliber handgun at defendant's residence in Union. Detective Eric Greener testified that he saw defendant leave his residence with a black plastic bag, enter the informant's car, remain in the car with the informant for four to five minutes, and return to his home without the plastic bag. The jury heard a conversation recorded by the informant in the car, in which defendant and the informant discussed a .38 caliber weapon. Following the transaction, officers recovered from the informant a loaded .38 caliber handgun.

         After the fifth transaction, State Police detectives arrested defendant. After defendant was searched and briefly detained in a holding cell, Detective Ribeiro and Detective Holguin escorted him to an interrogation room and conducted an interview, which was audio-recorded and later transcribed.

         Detective Ribeiro presented a Miranda card, on the front side of which the Miranda rights were set forth. The card's reverse side stated, "I acknowledge that I have been advised of the constitutional rights found on the reverse side of this card," followed by signature lines for the "Accused or Suspect," the "Advising Officer," and the "Witnessing Officer." After Detective Ribeiro read the rights to defendant, he said, "[j]ust sign here that I read you your rights," and "[b]y signing [the Miranda card] you are not admitting you're guilty or anything [it's] just that I read you your rights." Without comment, defendant reviewed and signed the card.

         The conversation turned to the alleged transactions between defendant and the informant. Detective Ribeiro asked defendant about the first controlled purchase, and defendant contended that his role in that transaction was limited to connecting the cooperating informant with the owner of a gun that the informant had sought to purchase. In response to Detective Ribeiro's admonition that it was important for defendant to offer a credible statement, defendant replied, "I'm going to jail regardless alright . . . so what's the point[?]" The officers urged defendant to cooperate in their efforts to "get even more guns off the street," and defendant replied, "I know I can but uhhh it isn't make no point for me doing if I gotta go to jail." During the interrogation, Detective Ribeiro raised the topic of a handgun sale for which defendant was ultimately convicted. Defendant briefly discussed that transaction, focusing on the difficulty that he encountered paying the unidentified individual who supplied the weapon, and the modest profit that he made.

         Defendant was charged in an eight-count indictment. Two of the counts derived in part from the fourth transaction. The State moved before the trial court for the admission into evidence of defendant's statement to police. Pursuant to N.J.R.E. 104(c), the trial court held a Miranda hearing. Detective Ribeiro testified that when defendant was questioned, he "appeared in good health," was "coherent," appeared to "understand his rights," and gave his statement voluntarily. On cross-examination, Detective Ribeiro conceded that after reading each Miranda warning, he did not ask defendant to read the warning aloud or ask defendant whether he understood the warning. He also acknowledged that he had instructed defendant to sign the card as an indication that the detective had read defendant his rights. The trial court acknowledged that the Miranda card included no inquiry regarding defendant's waiver. Nonetheless, it reasoned that waiver could be found "circumstantially by [defendant] continuing to answer and respond to questions." The court also cited defendant's comment that he was "going to jail regardless," viewing that remark to indicate that defendant understood he had the right to decide whether or not to answer the officers' questions. Conceding that it was unclear whether any of defendant's prior encounters with the criminal justice system involved the waiver of Miranda rights, the court generally relied on defendant's prior criminal record as underscoring the defendant's appreciation of his right not to speak with the investigators. The trial court found that the State had sustained its burden to prove beyond a reasonable doubt that defendant voluntarily, knowingly, and intelligently waived his Miranda rights and held the statement admissible.

          At trial, the State presented the testimony of the informant and three investigators, as well as the transcripts of intercepted telephone calls, audio and video recordings relating to the controlled purchases, defendant's statement, and other evidence. The jury returned a verdict of guilty only as to the charges relating to the fourth transaction. The jury was unable to reach a verdict with respect to the other six counts of the indictment.

         The State moved for the imposition of a discretionary extended term for defendant's conviction of second-degree unlawful possession of a weapon. The trial court found that defendant was exposed to a sentencing range of five to twenty years' incarceration. Citing United States v. Watts, 519 U.S. 148 (1997), the State asked the trial court to consider defendant's conduct in connection with the charges on which the jury did not return a verdict -- charges that remained pending at the outset of the sentencing proceeding. Relying in part on Watts, the trial court determined that in sentencing defendant, it could rely on "reliable and trustworthy" evidence relevant to the charges on which the jury had deadlocked. Citing the totality of the evidence, the court applied three aggravating factors and sentenced defendant to an extended term of twenty years. After the court sentenced defendant, the State moved to dismiss the counts as to which the jury had been unable to reach a verdict, and the court granted that motion.

         The Appellate Division affirmed the trial court's judgment as to the waiver and upheld defendant's conviction. The Court granted certification. 232 N.J. 92 (2018).

         HELD: The Court has significant concerns about the procedure followed in this case. Neither the script set forth on the Miranda card nor the detective's statement to defendant addressed whether defendant agreed to waive his rights before answering questions. However, any error in the trial court's admission of the statement was harmless beyond a reasonable doubt because the State presented overwhelming independent evidence of defendant's guilt. And, although the State should have moved to dismiss the charges on which the jury had deadlocked before the court considered evidence relevant to those charges, the trial court did not abuse its discretion in applying three aggravating factors to impose an extended-term sentence at the high end of the statutory range.

         1. The Miranda warnings ensure that a defendant's right against self-incrimination is protected in the inherently coercive atmosphere of custodial interrogation. When the Supreme Court defined a suspect's rights during custodial interrogation in Miranda, it also addressed the waiver of those rights. 384 U.S. at 444. Under New Jersey law, the State must prove beyond a reasonable doubt that the suspect's waiver was knowing, intelligent, and voluntary in light of all the circumstances. However, waiver need not be explicitly stated in order to be effective. Any clear manifestation of a desire to waive is sufficient. To determine the question of waiver, the trial court reviews the totality of the circumstances surrounding the custodial interrogation. The Court lists the factors typically considered in that analysis and agrees with the trial court that the majority of those favor a finding of implied waiver under the circumstances of this case. (pp. 21-25)

          2. The trial court, however, did not consider two aspects of the administration of the Miranda warnings in this case. First, the Miranda card used by the New Jersey State Police investigators does not reflect optimal law-enforcement practice. It did not guide an interrogating officer to ensure that the suspect had waived those rights before questioning began. Consistent with Fifth Amendment jurisprudence and state law on the right against self-incrimination, Miranda cards and other written forms used by law enforcement in New Jersey should direct the interrogating officer to address the question of waiver in the Miranda inquiry. The Court requests that the Attorney General review examples of Miranda waiver cards and forms in use by law-enforcement agencies in New Jersey, and make recommendations as to best practices on this issue. Second, the advice that Detective Ribeiro gave defendant as to the purpose of his signature on the Miranda card was incomplete. The detective told defendant that by signing the card, he would simply acknowledge that his Miranda rights had been read to him. To the contrary, a defendant's signature on a Miranda card does much more than acknowledge that law enforcement has recited the Miranda rights. When law enforcement officers request that a suspect sign a Miranda card or form, they should scrupulously avoid making comments that minimize the significance of the suspect's signature on that card or form. Accordingly, although most of the "totality of the circumstances" factors support the trial court's finding of an implied waiver, the advice that law enforcement gave defendant regarding his constitutional rights weighs against such a finding in this case. (pp. 25-27)

         3. The Court does not resolve the difficult question whether the admission of defendant's statement to police demands intervention because, in the unusual setting of this case, any error by the trial court in admitting defendant's statement was harmless beyond a reasonable doubt. The evidence implicating defendant in the single weapon transaction for which he was convicted was overwhelming. The Court recounts the evidence relating to the fourth transaction in detail and notes that defendant's statement contained little -- if any -- incriminating evidence relevant to that transaction. When the evidence is viewed in its entirety, it is extremely unlikely that defendant's statement had an impact on the jury's determination on the single transaction relevant to this appeal. Accordingly, the State has proven beyond a reasonable doubt that if the admission of defendant's statement constituted error, that error was harmless. The Court therefore concurs with the Appellate Division's judgment affirming defendant's conviction. (pp. 27-32)

         4. The Court reviews the requirements for imposing an extended-term sentence. Here, the parties agree defendant was statutorily eligible for a discretionary extended term and that his sentence is within the permissible range. Defendant bases his appeal on the application of aggravating factors to reach the upper end of that sentencing range. He challenges the court's consideration of those factors in two respects. (pp. 33-36)

         5. First, defendant asserts that the court improperly cited his conduct relating to charges on which the jury deadlocked. No Sixth Amendment or other constitutional principle, or statutory provision, generally bars a court from considering competent evidence presented in support of charges -- even if the jury does not go on to convict defendant on those charges. Nevertheless, the Court has two concerns about the court's reliance on evidence pertaining to the four transactions as to which the jury deadlocked in this appeal. First, the charges relating to those four transactions were still pending when the court sentenced defendant. The Court cautions courts not to consider evidence pertaining to charges as to which a jury deadlocked in sentencing unless and until the defendant no longer faces the prospect of prosecution for those charges. Second, the trial court's reliance on Watts was misplaced because Watts did not involve the deadlocked-jury issue raised by this case. The Court concurs, however, with the Appellate Division's view that the evidence pertaining to charges on which the jury deadlocked was not dispositive in defendant's sentencing and finds that resentencing is not warranted. (pp. 36-39)

         6. Second, defendant objects to the court's "duplicative" reliance on his criminal record both to deem him statutorily eligible for an extended term and to find aggravating factors six and nine. In State v. Pierce, the Court envisioned that the defendant's criminal record may be relevant in both stages of the sentencing determination. 188 N.J. 155, 168 (2006). The trial court properly considered defendant's criminal record in deciding defendant's statutory eligibility for an extended term, and in weighing aggravating and mitigating factors to determine that such a term was warranted. (pp. 39-40)

         The judgment of the Appellate Division is affirmed as modified.

          CHIEF JUSTICE RABNER, concurring in part and dissenting in part, agrees with the dissent that it was error to introduce defendant's post-arrest statements at trial because he cannot find that defendant waived his Miranda rights either explicitly or impliedly, but believes this is one of the very rare cases in which the erroneous admission of a defendant's post-arrest statement amounts to harmless error.

          JUSTICE ALBIN, dissenting, would hold that the State's failure to prove beyond a reasonable doubt that defendant knowingly, intelligently, and voluntarily waived his rights requires the suppression of his confession. Justice Albin also finds that the State did not prove that the admission of defendant's confession was harmless beyond a reasonable doubt. Stressing case law under which courts are constrained to reverse convictions when there is some degree of possibility that a wrongly admitted confession led to an unjust verdict, Justice Albin expresses concern that finding harmless error in this case renders ineffectual the exclusionary rule and reduces the right against self-incrimination to a form of words.

          JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON join in JUSTICE PATTERSON'S opinion. CHIEF JUSTICE RABNER filed an opinion concurring in part and dissenting in part, in which JUSTICE TIMPONE joins. JUSTICE ALBIN filed a dissenting opinion.

          OPINION

          PATTERSON JUSTICE

         Defendant Kareem T. Tillery was convicted of second-degree unlawful possession of a weapon and fourth-degree unlawful disposition of a weapon, arising from one of the five controlled purchases of weapons for which he was charged. The jury was unable to reach a verdict on the remaining charges. The trial court sentenced defendant to a twenty-year extended-term sentence for the second-degree offense and a concurrent nine-month sentence for the fourth-degree offense, and granted the State's motion to dismiss the remaining charges against defendant. The Appellate Division upheld defendant's conviction and sentence.

         Defendant appeals his conviction on the ground that the trial court improperly admitted into evidence his statement to police. He asserts that although a New Jersey State Police detective advised him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), prior to his custodial interrogation, he did not expressly or implicitly waive those rights before answering questions. Defendant also challenges his twenty-year extended-term sentence for the second-degree offense, arguing that the court inappropriately considered his criminal record and evidence relating to charges as to which the jury failed to reach a verdict in applying three aggravating factors.

         In a ruling entitled to substantial deference, the trial court concluded that the State had proven beyond a reasonable doubt that defendant voluntarily, knowingly, and intelligently waived his Miranda rights. The trial court relied on defendant's prior experience with the criminal justice system, his decision to sign a Miranda card after being read his rights, and a comment made by defendant that the court construed to suggest that defendant understood his right not to speak with police.

         Despite those and other factors supporting the court's finding of a Miranda waiver, we have significant concerns about the procedure that was followed in this case. Neither the script set forth on the State Police Miranda card nor the detective's statement to defendant addressed whether defendant agreed to waive his rights before answering questions. Consequently, when we apply the totality-of-the-circumstances analysis that governs defendant's challenge to the admission of his statement, the parties' dispute over defendant's Miranda waiver presents a close question.

         We conclude, however, that any error in the trial court's admission of the statement was harmless beyond a reasonable doubt. With respect to the single weapon transaction for which defendant was convicted -- an informant's controlled purchase of a handgun from defendant -- the State presented overwhelming evidence of defendant's guilt, independent of defendant's statement. Accordingly, we concur with the Appellate Division's decision upholding defendant's conviction.

         We also agree with the Appellate Division's determination affirming defendant's sentence. It is undisputed that defendant met the statutory criteria for a discretionary extended term. Although the State should have moved to dismiss the charges on which the jury had deadlocked before the court considered evidence relevant to those charges, we find no abuse of discretion in the court's application of three aggravating factors to impose an extended-term sentence at the high end of the statutory range.

         Accordingly, we affirm as modified the Appellate Division's judgment.

         I.

         A.

         We base our summary of the facts on the trial record.

         In January 2013, a cooperating informant advised the New Jersey State Police that defendant was involved in the sale of weapons in Essex County. The Division of Criminal Justice authorized the State Police to consensually record telephone conversations between the informant and defendant.

         The lead investigators, State Police Detectives Hugo Ribeiro and Miguel Holguin, arranged for the informant to conduct five controlled purchases of weapons from defendant. In each instance, the detectives met the informant at a secure site, searched him for contraband, and equipped him with a recording device. The detectives followed the informant as he drove to the location where he had agreed to meet defendant. They observed the informant and defendant at the location of the transaction and followed the informant back to the secure site designated for his meeting with the officers, ensuring that he made no stops on the way. On each occasion, the officers retrieved from the informant the weapon that he identified as a weapon purchased from defendant, and subjected him to a second search of his person and vehicle.

         The first controlled purchase took place on February 12, 2013 in the Newark grocery store where defendant worked. According to Detective Ribeiro, in a monitored telephone conversation, defendant and the informant discussed the sale of a TEC-22 long rifle. Detective Ribeiro testified that he observed and videotaped defendant entering the grocery store carrying a white bag, and that the informant left the grocery store carrying the same bag. The detective stated that he later recovered from the informant a TEC-22 long rifle, two high-capacity magazines, and a sock filled with hollow-point bullets.

          The second controlled purchase occurred on March 8, 2013, in the same grocery store. According to Detective Ribeiro and the informant, defendant sold the informant a .25 caliber handgun in the store. On that occasion, the recording device on the informant did not yield a clear recording, and no electronic record of that transaction was admitted into evidence. At the conclusion of the transaction, the detectives retrieved a loaded .25 caliber handgun from the informant.

         The third controlled purchase, also in the Newark grocery store, occurred on March 28, 2013. According to the informant, he arranged by telephone to purchase a shotgun from defendant, who retrieved a duffel bag from the rear of the building when the informant arrived at the store. Again, the recording device failed to produce an understandable recording of the conversation between the informant and defendant, and no recording of that transaction was admitted into evidence. After leaving the grocery store, the informant turned over to the investigators a Mossberg shotgun, which he identified as the weapon purchased from defendant.

         The fourth transaction -- the sole transaction that gave rise to defendant's conviction -- occurred on April 3, 2013. The informant testified that he arranged to purchase a .38 caliber handgun at defendant's residence in Union, a location familiar to him from prior visits.[1] Detective Eric Greener, assigned to observe the informant and defendant from a location near defendant's home, testified that he saw defendant leave his residence with a black plastic bag, enter the informant's car, remain in the car with the informant for four to five minutes, and return to his home without the plastic bag. The jury heard a conversation recorded by the informant in the car, in which defendant and the informant discussed a .38 caliber weapon. Following the transaction, officers recovered from the informant a loaded .38 caliber handgun.

         The last of the five controlled purchases alleged by the State occurred at the Newark grocery store on April 29, 2013. By the informant's account, he and defendant met at the back of the store and discussed the sale of a single handgun and, although they initially disputed the terms of the transaction, they eventually agreed on a price. The recording device failed to produce a complete recording of the conversation between the informant and defendant, but it captured brief comments about the price. Detective Ribeiro testified that the informant entered the grocery store carrying nothing, and emerged from it carrying a black bag, from which the officers recovered a .44 caliber handgun loaded with four hollow-point bullets.

         B.

         State Police detectives arrested defendant at the Newark grocery store on August 22, 2013, and transported him to the Metro North Station in Irvington. After defendant was searched and briefly detained in a holding cell, Detective Ribeiro and Detective Holguin escorted him to an interrogation room and conducted an interview, which was audio-recorded and later transcribed.[2]

         After asking defendant about his background and employment, Detective Ribeiro presented a Miranda card labeled, "S.P. 429 (Rev. 11-73)." On the front side of the card, the Miranda rights were set forth. The card's reverse side stated, "I acknowledge that I have been advised of the constitutional rights found on the reverse side of this card," followed by signature lines for the "Accused or Suspect," the "Advising Officer," and the "Witnessing Officer," as well as spaces to record the date and time.

         Evidently reading from the Miranda card, Detective Ribeiro advised defendant:

I'm gonna read you your rights ok alright you have the right to remain silent and refuse to answer any questions. Anything you say may be used against you in a court of law. You have the right to consult with an attorney at any time and have him present before and during questioning. If you cannot afford an attorney one will be provided if you so desire prior to any questioning. A decision to waive these rights is not final and you may withdraw your waiver whenever you wish.

         Detective Ribeiro then said to defendant, "[j]ust sign here that I read you your rights and 8/22/13 at 18:50 hours," and "[b]y signing [the Miranda card] you are not admitting you're guilty or anything [it's] just that I read you your rights." Without comment, defendant reviewed and signed the Miranda card.

         Detective Ribeiro then explained that defendant had been arrested for possession of "several guns" now in police custody, and that the officers wanted to work "to keep you out of jail and . . . for us to get guns off the street that's my goal." Defendant asked whether he would "get a bail or . . . get released from here." Detective Ribeiro responded that "we're gonna work toward you getting a bail ok" and that "more than likely . . . you will get bail," but cautioned that bail is set by a judge, not a police officer.

         The conversation turned to the alleged transactions between defendant and the informant. Detective Ribeiro asked defendant about the first controlled purchase, conducted on February 12, 2013. Defendant contended that his role in that transaction was limited to connecting the cooperating informant with the owner of a gun that the informant had sought to purchase.

          In response to Detective Ribeiro's admonition that it was important for defendant to offer a credible statement, defendant replied, "I'm going to jail regardless alright . . . so what's the point[?]" The officers urged defendant to cooperate in their efforts to "get even more guns off the street," and defendant replied, "I know I can but uhhh it isn't make no point for me doing if I gotta go to jail."

         In his questioning of defendant, Detective Ribeiro focused on identifying individuals who supplied, or offered to supply, the various weapons that defendant was alleged to have sold to, or discussed with, the informant. Defendant did not identify any supplier by name. The conversation between the detective and defendant rapidly shifted from transaction to transaction, and focused in part on a general discussion of weapons trafficking in Essex County. With the exception of defendant's alleged sale of a weapon to the informant on February 12, 2013, no transaction was identified by date in Detective Ribeiro's questions or in defendant's responses to those questions.[3]

         During the interrogation, Detective Ribeiro raised the topic of a handgun sale at defendant's home -- an apparent reference to the April 3, 2013 transaction for which defendant was ultimately convicted. Defendant briefly discussed that transaction, focusing on the difficulty that he encountered paying the unidentified individual who supplied the weapon, and the modest profit that he made on the sale.

         C.

         Defendant was charged in an eight-count indictment. Two of the counts derived in part from defendant's alleged sale of the .38 caliber handgun on April 3, 2013: second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and fourth-degree unlawful disposition of a weapon, N.J.S.A. 2C:39-9(d). The remaining six counts related only to the four weapon transactions alleged to have taken place at the Newark grocery store.

         The State moved before the trial court for the admission into evidence of defendant's statement to police. Defendant opposed the motion, arguing in part that, because he did not validly waive his Miranda rights, the court should suppress his entire statement.

         Pursuant to N.J.R.E. 104(c), the trial court held a Miranda hearing. Detective Ribeiro, the sole witness at the hearing, described defendant's arrest, the setting of his interrogation, and the reading of defendant's Miranda rights. The detective testified that when defendant was questioned, he "appeared in good health," was "coherent," appeared to "understand his rights," and gave his statement voluntarily. Detective Ribeiro testified that he and Detective Holguin did not make promises to defendant, coerce him, or threaten him in order to secure his statement.

         On cross-examination, Detective Ribeiro conceded that after reading each Miranda warning, he did not ask defendant to read the warning aloud or ask defendant whether he understood the warning. Detective Ribeiro also acknowledged that he had instructed defendant to sign the card as an indication that the detective had read defendant his rights.

         At the N.J.R.E. 104(c) hearing, the trial court acknowledged that the Miranda card read to defendant included no inquiry regarding defendant's waiver. Nonetheless, it reasoned that waiver could be found "circumstantially by [defendant] continuing to answer and respond to questions." The court also cited defendant's comment that he was "going to jail regardless," viewing that remark to indicate that defendant understood he had the right to decide whether or not to answer the officers' questions. Conceding that it was unclear whether any of defendant's prior encounters with the criminal justice system involved the waiver of Miranda rights, the court generally relied on defendant's prior criminal record as evidence that he was "not ...


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